Aastha Thakur
Published on: 18 October 2022 at 21:23 IST
Shimla’s Draft Development Plan 2041 has been ruled unlawful by the National Green Tribunal (NGT), as it contradicts a previous ruling from November 16, 2017.
NGT ordered that, “Any action taken in violation of the said judgment cannot be validated by the said plan and will remain illegal. We declare accordingly,”
The Tribunal was debating whether Himachal Pradesh (HP) has the right to publish a “development plan” in defiance of the tribunal’s ruling. The second question was whether this action could be justified by the fact that a copy of the plan was submitted in a case before the high court or by the fact that the state justified it.
The HP government’s argument that the state may disregard the NGT’s ruling when exercising its legislative authority was refuted.
The bench headed by Chairperson of NGT, Justice Adarsh Kumar Goel (retd), in the judgment dated October 14, “After due consideration of the issue, we are of the view that stand of the State (HP) cannot be upheld. Once the Tribunal has adjudicated upon the matter, no further question remains for going into the merits. View already taken is final unless the same is interfered with by a legal forum,”
Further it was added that, “There is no jurisdiction with the State to annul or ignore the order of the Tribunal. Any other view will negate the rule of law and defeat the purpose of setting up this Tribunal.”
“State’s view is not final in view of overriding provisions of NGT Act by virtue of express provision under Section 33 (of the NGT Act),”
The NGT order dated November 16, 2017, said, “We hereby prohibit new construction of any kind, i.e. residential, institutional and commercial to be permitted henceforth in any part of the Core and Green/Forest area (of Shimla) as defined under the various notifications issued under the Interim Development Plan as well, by the State Government.”
Furthermore, it was added that, “Beyond the Core, Green/Forest area and the areas falling under the authorities of the Shimla Planning Area, the construction may be permitted strictly in accordance with the provisions of the TCP (Town and Country Planning) Act, Development Plan and the Municipal laws in force. Even in these areas, construction will not be permitted beyond two storeys plus attic floor.”
In contrast, the plans for approval or getting a NOC for more over two floors must be presented to the relevant authorities having authority over the area in issue for hospitals, schools, and offices of important services.
It wouldn’t be approved until the Supervisory Committee and the special committee established by the 2017 judgement, along with suitable precautionary and preventive measures, had been supplied.
The committee established in accordance with this judgement may approve construction or rebuilding of the building as long as it carefully adheres to the original structure’s structural parameters and is used for the same or an authorised legal purpose.
Any unlawful buildings within the Core area and Green/Forest regions were forbidden from being regularised. Additionally, the illegal buildings outside of Core/Green/Forest regions would not be compounded or regularised.
However, if the owners had submitted their plan and the building work had already been finished before the 2017 ruling, they might have been able to have it regularized after paying environmental compensation.