Shimla: In a major setback to Jai Ram Government and specially his Law and Urban Development Minister Suresh Bhardwaj, National Green Tribunal declared Shimla Development Plan 2041 illegal.
A twenty paged order passed by the principal bench of NGT comprising chairperson Adarsh Kumar Goel, judicial member Sudhir Agarwal, Expert member Prof. A. Senthil Vel and Dr. Afroz Ahmad on October 14 accepted the application filed by one Yogendra Mohan Sengupta.
The order said that applicants have challenged the Shimla Draft Development Plan, 2041 prepared by the Town and Country Planning Department, Himachal Pradesh.
The NGT said that applicants stated that such SDP is contrary to the sustainable development principle and destructive of environment and public safety. Applicant quoting Expert Committee reports based on NGT about Shimla town stated that SDP is in its violation as it has already issued regulatory measures required to be adopted in terms of number of floors, restrictions on constructions in core or green areas etc.
NGT held that after consideration of the issue, we are of the view that stand of the SDP of state couldn’t be upheld once the Tribunal has adjudicated upon the matter, no further question remains for going into the merits as view already taken is final unless the same is interfered with by a legal forum.
NGT stated in the order that state could not annul or ignore the order of NGT as there is no jurisdiction with the State to annul or ignore the order of the Tribunal. It held that any other view would negate the rule of law and defeat the purpose of setting up this Tribunal. Again scuttling the SDP to go ahead with implementation NGT categorically state that Jai Ram Thakur Government or State’s view is not final in view of overriding the provisions of NGT Act by virtue of express provision under section 33.
NGT said that despite drafting the new SDP directions given by the tribunal in previous matter are still holding the field. Slapping on the face of state government to go ahead with the SDP tribunal held that there is illegal and ill conceived effort to violate the binding directions of this Tribunal under Sec.-15 of the NGT. It further goes on saying in the order that having the force of binding Court decree, subject to further orders only of Supreme Court.
Under Section 33 of the said Act, the NGT Act has overriding effect over any other law in force. Principal Green bench held that violating such directions is a criminal punishable offence under Section 26 of the NGT Act and heads of concerned Departments of the State are liable to be prosecuted for such offence under Sec.- 28 of the said Act. NGT vide its order dated May 12, 2022, considered the contentions of the applicant against the validity of the draft of SDP permitting construction of more floors, new constructions in core area, constructions in green area, permitting development in sinking and sliding area in violation of order of this Tribunal.
NGT said that verdict passed by this Tribunal is deemed to be decree of Court under sec.- 25 of the NGT Act. It further imposed restriction on the state by this order passed on October 14, 2022 held that Judgements relied upon on behalf of the State do not advance its case since there is no conflicting judgement of the High Court moreover NGT is not dealing with a fresh matter. Showing complete disagreement with the SDP it further held “There is no occasion to revisit the view already taken which has to be treated as final as far as this Tribunal is concerned.”
The NGT affirming observation made by it in its previous order passed on the another application by same applicant said in the operative part of order that in view of above, it is satisfied that the draft development plan, 2041, being in conflict with the judgement of this Tribunal dated November 16.11.2017 ( in O.A No. 121/2014) is illegal and could not be given effect and any action taken in violation of the said judgment could not be validated by the said plan and will remain illegal.
Since 2017 NGT have banned all new construction in the core and green area however it allowed massive construction for purposes of public utilities in core and green area .
The stringent provision were enforced on Private construction in the core and other parts under others Shimla Development Plan. Due to pending litigation and status quo prevailed in the town also increased cases of breaching of construction norms as the deadlock left the state and planning authority in affix.
Jai Ram Thakur Government which is going ahead to face Assembly Election soon may have to face the burnt owing to fresh verdict passed by the NGT.