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The Curse of NGT Judgment – Undoing of Urban Planning

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Impact of NGT Orders on Shimla City's Development

Shimla– An old ‘common law’ proverb from the British era says “A man’s house is his castle, et Domus sua cuique est tutissimum refugium [and each man’s home is his safest refuge]”. This principle, which needs to be strengthened in a free country, is sadly in shambles and perhaps held more truth in the colonial times than it holds now. The level of insecurity a man has with respect to the ownership or for making improvements in his living space/house or building is increasing day by day because of unreasoned judgments of Courts or illogical executive dictates.

In these series of articles (1,2 & 3), the impact of various laws and judgments which have essentially worked for depriving the common citizens in the State of H.P, of their ‘Right to Property” will be critically examined.

This article is aimed at academically discussing and pointing out the perversity and manifest errors in the ‘NGT Judgement’ which was passed on November 16, 2017. The judgment banned all construction activities in the green and core areas and also within 3 meters from national highways. It also restricted the number of stories to two-and-a-half in other areas where construction was permitted to up to 4 to 5 stories.

THE UNHEARD VICTIMS

The Order adversely affects many different categories of people. For instance, a person who has a sanctioned plan in accordance with TCP Law/By-Laws/Rules, who had saved his ‘life savings’ for the construction of his house, is now stuck in limbo, having done nothing wrong. If a man had the approval and sanctioned plan of  ‘four and a half story’ building, which was permitted under TCP law, he is now told that he cannot construct the house in accordance with that initial sanction.

Another man who has his sole plot/property in the core area is prevented from doing anything with it, though he may have buildings on either side of his plot. The significance of the initial sanction and the mandate of the Town and Country Planning Act is bypassed by the Hon’ble Tribunal which is not even competent to decide the matter under such Laws (TCP Act/ MC Act). To add insult to injury, such persons are not even heard or paid compensation before they are so monumentally impacted by the decision.

The Constitution makers bestowed right on every citizen of the country to acquire, hold and dispose of property and also provided ample safeguards against deprivation of the property by confining such deprivation only on payment of compensation to the expropriated owner. As such, the judgment is against the spirit of Article 300-A of the Indian Constitution.

IMPACTING DEVELOPMENT BY ABSURD AND BLANKET DIRECTION

1. Around 52 ‘Shimla Smart City Projects’, which aim at improving the infrastructural base of the city, are directly impacted by this judgment and are stalled. Such a wide impact of this blanket direction neither can be conceived nor can be expected to be implemented if the city has to grow. Further, such powers were never envisaged under the NGT Act which creates the Hon’ble Tribunal.

2. Another blanket and absurd direction is where the judgment prohibits new construction of any kind, i.e. residential, institutional and commercial in any part of the core area as defined under the various notifications issued under the Interim Development Plan as well by the State Government.

According to the standing laws of the State, the reconstruction in the green areas is permissible on old lines and construction in the core area with the permission of the State Government is also permissible, as per the existing laws (Notification/Statutes). If someone’s house is falling or has become structurally unsafe he should obviously be allowed to reconstruct on old lines, but this is also prevented as a consequence of these directions.    The tribunal has not quashed the relevant notifications which deal with this issue and has said something completely contrary to the existing laws. Now the situation is that we have two sets of laws, which are completely opposite to each other. The Tribunal doesn’t have the power to quash these laws nor interpret them.

3. The most Absurd direction is where the judgment says that beyond core, green and the areas falling within the authorities of the Shimla Planning Area, the constructions may be permitted strictly but not beyond two stories plus attic floor.

According to the law of the land, the construction in the core areas is being regulated by the provisions of the Interim Development Plan for Shimla as amended vide notification dated  28th June’ 2016, which clearly provides that the construction in the core area of Shimla is not story-based but is based upon the maximum floor area ratio and the maximum height of the building which is 1.50 to 1.75 & 21 meters respectively. Similarly, in the non-core areas of Shimla, the maximum floor area ratio is 1.75 & the maximum height of the building is 21 meters. Since the provisions of the Interim Development Plan for Shimla are still in operation, the same are now in conflict with the directions imparted by the Hon’ble Tribunal.

Traumatizing & Patent Illegality of the Judgement

There are numerous errors in the said judgment of the Hon’ble Tribunal, some are legal errors and others are factual errors. The judgment not only enters into a field which is outside its purview, but it also gives a shortsighted vision of its own in the matters of planning and development without comprehending the complexity of the factual problems which exists on the ground.

Though there are many flaws in the judgment, in this first article of the series, some of them have been enumerated as follows:

Firstly, the judgment dated 16.11.2017 has been passed in violation of the principles of natural justice and without giving an opportunity of being heard to those persons who stand adversely affected. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision-maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. Right of being heard is a right given to those parties who will be adversely affected by the decision. This right is a backbone for a ‘Fair Trial’. Such an important aspect of the judicial proceeding is missing in this case. Numerous persons whose property rights have been taken away have not been heard until now. The judgment should fall on this ground alone.

Secondly, the Tribunal is not even competent, or in other words, has the necessary jurisdiction to hear or decide matters relating to TCP Act or Municipal Corporation Act. The Tribunal is specifically established for matters which relate to ‘Environment’ and laws/Acts which deal with the protection of the same for e.g Environment Protection Act, Water Act, Air Act, etc. The tribunal certainly cannot be expected to interpret TCP Act and MC Act or bypass the mandate of Article 300 A and deprive persons of their houses or stop future government projects which are necessary for effectively implementing State policies.

Thirdly A peculiar problem which has arisen right now is that ‘Town and Country Planning Act’ provisions are not struck down and NGT judgment, which is saying something completely opposite, also stands. It is a rule of thumb that when the Courts have to disagree with a statuary provision for being unconstitutional etc., they will either quash it or read it down. NGT has done none of it, nor it could have done anything in this respect since these two acts are outside its jurisdiction. These acts fall within the jurisdiction of the Hon’ble High Court or the Hon’ble Apex Court.

When the law of the land has not been quashed or struck down, it obviously means that it is still the law of the land and has to be implemented. The judgment seems to be more on the lines of guidelines rather being a dictate or laying down an authoritative pronouncement.

Another fundamental flaw in the judgment is that the Tribunal has travelled way beyond the petition/application and what was prayed by the Applicant who approached it. The Courts, as a rule of practice, are limited to the pleadings which are filed before it, in this case, the Hon’ble Tribunal has gone far beyond the petition which it was deciding. The phrase ‘knight roaming in a shining armour’ is apt for this judgment. Here, the Court has set out to make right all the problems and evils of the State and has done future planning both for urban and rural areas and for the lakhs of inhabitants of such areas.

An important principle which has been forgotten in these blanket directions is ‘Actus curiae neminem gravabit’. The act of the Court shall prejudice no man. (Cumber v. Wane, i Sm. L. C. i ith ed. p. 338.)’.  The number of people who have been condemned unheard is astoundingly large. The livelihood of thousands is at stake, the development of the urban and rural areas of the State is at stake. These people are not criminals, these development plans are not out of the ordinary rather are a necessity for a growing city. The development plans have rightly been drawn by the competent authority under a well-established law. If the law is ‘common sense’ then this sense demands that these directions need a relook. If a law makes lakhs of people in the State as lawbreakers than there is something wrong with the law itself.

Right to Shelter, Challenges of Providing Housing to the Growing Population

It must be remembered that if everyone is compelled to make two and a half stories or not construct on vacant plots, it would lead to scarcity of housing or it would lead to cutting down of more trees as more land/surface area would be required to construct such houses. To sustain the growing population 4 to 5 storied buildings which if found structurally safe and not impacting the environment were perfectly reasonable and rightly allowed by the TCP/MC laws.

Right to shelter is a fundamental right and right of people to move from rural to urban areas is also a basic right. Both these rights stand defeated if these directions are not quashed. Housing will just become more and more expensive and out of the reach of poor and middle-class families. Old structures won’t be reconstructed, no new constructions will be raised, and no new Government projects can come up. The view of main Shimla town apart from Mall Road, which looks like a ghetto, will always remain like a ghetto.

In case of an earthquake, the chances of survival of the ‘High Court building’ (7 stories) and the ‘Cecil Hotel’ building (9 stories) are way more than the two-storied buildings of  Shimla’s lower bazaar /middle bazaar.  The point is that Morden technology and latest techniques of construction allow us to provide structurally safer buildings than what we had in the past. Further, they can also sustain more population in less surface area of land and fulfil a huge public purpose by doing so. The height of buildings as provided in municipal and TCP laws in accordance with floor to height ratio were reasonably arrived at by the competent authority. The Courts certainly are not equipped nor are expected to venture into this area which is outside their powers and tell us ‘how many stories can be built’, it is certainly the domain of the executive as they have experts with them and also have a better grasp of the ground reality (At least in theory).

The cost of such broad-ranging directions and ideas is very high – particularly on Shimla Town and its housing, making the cost of living and doing business costly and hurting the local enterprises, and thereby, shifting the planned outcomes into a different direction concerning economic opportunities. The focus of the planning approach has to shift from ‘development restricting’ approach toward ‘development enabling’ approach and it requires finalization of the Developmental plan for the city. It is extremely surprising that Shimla City does not have a final development plan in place to date (this will be discussed elaborately in future articles).

There are numerous other directions and issues relating to the final development plan and some arbitrary TCP Rules such a “non-inhabitable attics, no single-window clearances and the power of the babus to extort money in the passing of plans etc which will be critically examined in the next article.

(The post was first published in https://lawumbrella.wordpress.com/ )

Disclaimer: The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the Himachal Watcher.

Deven Khanna is a Lawyer, practicing at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles, he can be contacted at 7018469792 or at [email protected] The personal blog is at https://lawumbrella.wordpress.com/

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Himachal: Tourist Activity Allowed, Read New Rules for Entering State, Quarantine, Plying of Public Transport

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Himachal Pradesh New Rules quarantine on entering state

Shimla: What appears to be a blunder amid continuous surge in COVID-19 cases in India as well as in Himachal Pradesh, the State Government has decided to open the borders and allow movement of all people including tourists without permission or E-Pass. Restrictions on re-opening would be limited to only containment zones.

As a matter of concern, tourists with an advance booking of a minimum of five days and COVID-19 test report obtained not earlier than 72 hours from an ICMR accredited laboratory, would not be quarantined anymore and they would not need any pass to roam around.

The visitors entering the State would have to register on COVID-19 portal (https://covid19epass.hp.gov.in/) in advance. It’s the same portal which was earlier used to issue e-passes. Anyone who wants to visit Himachal from other states or abroad will have to fill their details during registration but would not require a pass/permission from the State or district administration.

Only those arriving from high-load cities would have to follow the mandatory institutional quarantine. Relaxation can be given only in the case of death, pregnancy, medical urgency, elderly people, and children below 10 years or infants. Daily and weekend commuters entering and exiting the State have been exempted from quarantine requirements. It includes industrialists, traders, raw material suppliers, factory workers, project proponents, service providers, inspecting authorities etc. Also, persons falling in these categories are exempted from home-quarantine on arrival from other states.

The residents of Himachal Pradesh exiting the State to visit other states for a short duration for medical, business or official purposes and coming back to the State within 48 hours have also been exempted from home-quarantine provided they are asymptomatic.

Further, persons visiting the State for bonafide purpose of trade, business, job, project, service purpose, marriage ceremonies, commission agents, and ‘artiyas’ can enter the state with supporting documents provided they are not arriving from high-load cities.  

The orchardist, agriculturist, contractors, project proponents etc. would have to get all hired labourers registered on the same portal. They will have to arrange for quarantine facility for all labour brought from other states. The Government has also allowed sending such labour directly to the site of work (orchards, industries, farmlands etc.) provided they follow the guidelines regarding quarantine and social distancing.

Personals of the Armed forces and Central paramilitary Forces would not need registering on the portal and will be allowed to enter by showing their official identity card.

The decision is quite surprising considering the fact that the total of COVID-19 positive cases has crossed the 1000 mark and the rate of appearance of new cases is also on the rise in the State. The State government claimed that it had requested the Centre to allow the State to regulate the entry of people in wake of the rising cases in the State. However, the State Government claimed that the Centre declined this request. Moreover, the economy of the State has been hit adversely due to the lockdown, thus, zero tourist influx.

Therefore, under pressure to resume economic activities, at the same time, the State Government has given a huge relaxation in the lockdown and social distancing measures. The Government has removed the conditions of maintaining 60 percent occupancy in the state carriage buses. Now, the buses could run with 100 percent capacity, informed a  Spokesperson of the HP Transport Department on Friday.

“This will be subject to maintaining social distancing and that no standing passenger would be allowed in the buses during the journey,”

the Spokerspoers said.

Other conditions not related to maintaining 60 percent occupancy mentioned in the Department’s notification issued on May 30, 2020, will remain the same, the Spokesperson said. However, the inter-state movement of public transport would remain prohibited. Inter-state movement of taxis is allowed after obtaining permission from the concerned Deputy Commissioner.

On the situation in the State, Chief Minister Jairam Thakur yesterday said that all is well, and the cause of surge in cases is due to people returning from other States.

“The situation in the State was quite under control. There is a sharp increase in corona patients in the State as over two lakh people from different parts of the country have been brought back to Himachal Pradesh. The people of the State need not worry as the Government is fully aware of the situation,”

Again, he compared the number of cases and fatalities in India with the rest of the world to claim that the spread is contained effectively.

“Number of death due to COVID-19 in the fifteen most developed countries with a population of 142 crore was about five lakh, whereas in India having a population of 135 crore, about 17,000 had lost life due to Corona till date,”

he said.

The State Government said that hotels and restaurants/dhabas would have to follow guidelines issued by the Department of Tourism from time to time. The restaurants and dhabas are allowed to serve food by operating only at 60 percent of their seating capacity. The HPTDC lifts in Shimla city have also been allowed to operate.

On the other hand, the hoteliers are not in favour of opening hotels due to the fear of COVID-19 spread. The Hoteliers & Restaurant Association, Shimla, had written to the State Government a couple of days ago suggesting that tourism activities in the State should not be allowed for the coming few months.

The Association in a written submission had given the following reasons to not open tourism activities (unedited):

  1. Corona cases are increasing at an alarming speed in India and a world at large. As per expert opinion, Corona pandemic will be at peak in the month of July/ Aug. 20
  2. In the summer season, we get bulk of our visitors from Punjab, Delhi, Gujrat, Maharashtra, Tamil Nadu. As most of the areas in the above States are gravely infected and are in the red zone, we should not invite them to visit Himachal and put our public at risk of Corona.
  3. The railway which is the popular mode of transportation for the tourist is not operating till August 12, 2020, and airlines have also suspended their operations till July 15.
  4. As most of the Corona patients are asymptomatic, despite taking all precautions and social distancing, we will be putting the life and health of our hotel staff at grave risk, if they come in contact with them.
  5. At present, there is no vaccine available for the cure of Corona, so there is a fear psychosis amongst the population and they are concerned about their health and safety and would not like to venture out from their homes and stay in hotels.
  6. For the above reasons, we don’t expect many tourists to visit Himachal in July and August 20, It will be financially unviable to open hotels.

The Association had suggested that touristic activities in hotels may be permitted after the rainy season is over, sometime in September or October.

Himachal Pradesh is witnessing a rapid rise in COVID-19 case since the day the Government opened borders for its residents who were stranded in other States. So far they required e-pass and had to go through mandatory institutional and home-quarantine. However, now, with borders opened for all including tourists without obtaining any permission, the people of the State need to be prepared in case the outbreak gets out of control.

In such a scenario, people can’t solely rely on the Government and will have to follow social distancing rules strictly to protect themselves.

Click to Read Full Notification 

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Lahaul-Spiti: Haughty Minister Allegedly Heckling Tribal Women Who Dared to Deny Him Entry in District Over Quarantine Violation

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Lahaul-Spiti tribal women booked

Lahaul-Spiti-Support is pouring in for the tribal women of Spiti after the local administration initiated police action against nearly 200 women for protesting against Himachal Pradesh Agriculture Minister Ram Lal Markanda for violating the local quarantine rules early in June. Locals said earlier only some specific protestors were being identified and booked. In response to this embarrassment, Markanda tried to give it a political color by alleging that oppositions had conspired this protest. So all women from each household gave a list of their names to the police identifying themselves as protestors. Following which these women were booked.

On June 9, hundreds of representatives of Mahila Mandals apart from some youth and other residents including employees of the State Government from Spiti carried out an agitation to protest the violation of the ongoing self-imposed lockdown in the region amidst apprehensions of the spread of Corona pandemic in the region.

The women had gathered at the gate in Kaza and did not allow Markanda and his convey of over a dozen of vehicles to enter district without following community rule regarding mandatory quarantine.

They wanted Markanda and his cavalcade to follow the rule like everyone else. Markanda did not agree to it and had to return to Shimla following this demonstration. However, instead of respecting the decision of the locals, now he is after the protestors. The ego of the haughty minister seems to be so big that the police was made to book a woman in almost every family in Kaza. This action is highly unacceptable if democratic values are considered.  He forgot that he is supposed to respect the mandate of the people who had elected him. Instead, as alleged by the women, he wants a written apology.

More than 190 women were booked under Sections 341 (wrongful restraint), 143 (unlawful assembly) and 188 (disobedience of public order) of the IPC. These charges also include not maintaining social distancing while protesting. Markanda said he believed that the women were politically motivated, and now, as it appears, he is trying to set an example to discourage such dissent in the future.

However, as a matter of fact, Lahaul-Spiti had managed to remain COVID-19 free until June 30 – the day first two cases were reported in migrant labourers working for the BRO. Spiti has still not reported even a single case. It was due to the initiative and proactiveness of the locals who had framed their own rule regarding entry and quarantine. All residents of the region had agreed to follow the same also asked everyone to adhere to these rules.

“We have been following our COVID-19 rules as framed by our local committee, comprising members from local monasteries and community leaders, much before the state framed the rules. Our rules are applicable to all people, including our family members, who are returning to the area for the first time since the pandemic,”

Mahila Mandal President Sonam Dolma told news agency IANS.

The COVID-19 tally has crossed 1000 mark in the State but Lahaul-Spiti district is still doing far better than others with only four cases till July 2.

Instead of filing cases against them, these residents deserved to be appreciated for preventing infection entering into the district at a time when most of the other districts were reporting COVID-19 cases. The display of unity and understanding of democracy by these tribal women is outstanding. Rest of India should learn from these tribal people.

Support Pours in For Tribal Women

These women are receiving support from other organizations and activists.

In this row, close to 20 women, representatives of various organizations, women’s groups, as well as, concerned individuals from across Himachal recently issued a joint solidarity statement in support of these women.

The statement said that the residents have highlighted that even before the imposition of the lockdown there was serious concern amongst the tribal community of Spiti about the pandemic given its remote geographical location and socio-economic vulnerabilities.

Given the tribal lifestyles and dependence on each other for their livelihoods, social distancing within the community was close to impossible. The absence of public health facilities would have meant that any spread of COVID would have unleashed a threat to the very existence of this tribal community, the representatives said in the statement issued.

The representatives said that in this scenario for the last four months, the local people, especially the Mahila Mandals, have worked relentlessly to facilitate quarantine of residents returning from outside, making masks and also guarding against people from outside the region visiting the region. The local committees had resolved that each and every person entering from outside would have to observe 15 days quarantine.

It needs to be noted that the women were already agitated by the continued pressure of some members of the Tribal Advisory Council to bring laborers from outside to the area, the representatives said.

“Despite being well aware of this context, the local administration instead of attempting a dialogue with the protestors has initiated police action against women who were simply asking that the local resolutions be duly followed and respected”,

said Ratan Manjari, leader of Mahila Kalyan Parishad, Kinnaur

The representatives said that the women have made it amply clear that they had no political motives and neither anything personal against the Minister. The representatives alleged that not only summons were issued selectively against some women representatives of Mahila Mandals but they are also being heckled to issue an apology and harassed by the administration daily.

The representatives alleged that some departments have also issued show-cause notices to their local women staff who participated in the protest. Apparently, cases have been registered under IPC sections 341,143 and 188.

“We condemn this harassment of the tribal women by police and the local administration. Whereas across the state legal action was initiated against those violating the lockdown, when local people made the demand that lockdown rules be followed in their area, the police has, in turn, initiated action against them. This reflects the double standards, high-handedness and patriarchal nature of the government agencies and the State. We also believe that this unjustified action of the police is to create fear amongst the local community”

said Himshi Singh of Himdhara Collective Notably, Spiti is a schedule V area and the constitution empowers the communities for self-governance.

Further, the women of the region seem to be well aware that if there is a COVID outbreak then they, who already bear the burden of care and nurturing work in the family and community, will be burdened even further, the representatives said.

 “It is rather unfortunate that women are expected to be present to welcome political representatives but when they have a genuine issue to raise about the actions of the same representatives they are silenced and repressed. In such a scenario how will women even be considered equal citizens of our democracy?”

said Vimla Vishwapremi of Parvatiya Mahila Adhikar Manch.

The open statement has demanded that the charges against the tribal women of Spiti be dropped and that their harassment and repression by the local administration be immediately stopped. The local administration must acknowledge and support the participation and leadership of the local tribal community, specifically the Mahila Mandals, and work together to maintain the safety and security of the region, the representatives said in the joint statement.

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Viral Video: HP PWD Tarring Puddled Road in CM Jairam’s Home District

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Viral Himachal pradesh road tarring video

Mandi– There is no dearth of shocking and bewildering incidents when it comes to corrupt nexus of Departments of State Government and private contractor. The people of the State already know about the alleged ‘PPE kits purchase’ scam of the Health Department in which a higher official was arrested and suspended. Then, there is a separate alleged scam related to purchase of sanitizers at the State Secretariat in which an high rank official has been booked. In Bilaspur, district health authority had allegedly supplied raincoats to health staff instead of PPE kits. The case is being investigated by the Vigilance and Anti-Corruption Bureau.

Also Read: Vigilance Probe Begins into Alleged Delivery of Raincoats to Health Staff Instead of PPE Kits

Today, the HP Public Works Department is in news. While, the Chief Minister Jairam Thakur claims that Himachal Pradesh has touched new heights in terms of development under his and Prime Minister Modi’s leadership, a video showing a complete waste of public tax money in CM ‘s home-district went viral on social media yesterday.  

The video showed labourers throwing tarring material onto a road-cum-pool of accumulated rainwater. The video was reportedly recorded near Bhantal in Karsog area of Mandi district. The contractor was tarring the road without soling/filling potholes. Take a look.

The road is in tatters and impassable, locals said.

It’s not new for contractors to undertake tarring work in the rain, and Himachal Watcher has reported such incidents earlier too. However, this one depicts widespread corruption in a more ugly form. 

When the video went viral on social media, the work was stopped. An official of HPPWD reached the spot and informed that this work was given to a private contractor.

In a live video on a regional Facebook page, the official can be heard saying that the work was being carried out under the supervision of an HPPWD official. The supervisor was also present at the spot. When the supervisor was asked as to why he did not stop the contractor from undertaking the tarring job amid rain, he replied that the contractor did not listen to him and continued the work despite being told to stop it.

Posted by करसोग अब-तक on Thursday, 25 June 2020

While the locals want action against erring officials and contractor, neither PWD nor the State Government has given any statement regarding this video. The chance that the contractor and responsible PWD officials would be held accountable is almost negligible, as always.  

These days, the Chief Minister, his MLAs and Cabinet Ministers are busy in organizing virtual rallies and count achievements of the BJP Government. In statements given by leaders in these rallies, everything is perfect, there is no corruption and the State has witnessed unprecedented development.

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