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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 State of H.P, of their ‘Right to Property” will be critically examined.

This article is aimed at academically discussing and pointing out the perversitie 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 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 br 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 traveled 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 armor’ 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 law breakers 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 fulfill 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 with respect to 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 an “non inhabitable attics, no single window clearances and the power of the babus to extort money in passing of plans etc  which will be critically examined in the next article.

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 khannadeven@gmail.com. The personal blog is at https://lawumbrella.wordpress.com/

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Kotkhai Custodial Death Case: Forced to Consume Liquor, Cannabis, then Tortured, Witness Tells Court

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Kotkhai Custodial Death case trail witnesses

Shimla-In the Kotkhai custodial death case, six more witnesses recorded their statements in the special CBI court in Chandigarh on October 9, 2019. One of the witnesses included Ashish Chauhan – an accused in Gudia rape and murder case, who was later discharged by the CBI.

While three accused – former Inspector General of Police, Zahur H Zaidi, former SP, Shimla, DW Negi, and DSP, Theog, Manoj Joshi-were already granted bail by the court, the bail plea of three others was dismissed yesterday. These three accused included former Station House Officer (SHO), Kotkhai Police Station, Rajinder Singh, head constable Rafee Mohammad, and constable Raneeta.

In his statement, prosecution witness Ashish Chauhan told the court that he was picked up from his home on July 9, 2017, by three policemen and was taken to Bankufer rest house, where he was interrogated. On July 9, he was taken to Chhaila police post where he was kept till July 10.

Ashish, in his statement, told the court that Zaidi, Bhajan Dev Negi, Rattan Negi, PSO Sushil, PSO Sunil, and Manoj Joshi started torturing him from July 11 using different techniques. They asked him to confess to the crime, which he had not committed, Ashish said. He alleged that he was tied upside down with a rope and beaten brutally with sticks and given electric shocks. He also alleged that during this torture, he has sustained grieve injury to his spinal cord. 

He also alleged that Zaidi forcefully made him consume neat alcohol. Zaidi smoked cannabis and also forced him to smoke the same, Ashish alleged.

On the intervening night of July 13-14, his signatures were taken and he was told that an FIR was registered. The police was also alleged of keeping him in custody illegally without taking him to the court within 24 hours of arrest. It was only on July 15 that he was taken to the local court in Theog and was officially taken on remand.  

Other than Ashish, statements of other prosecution witnesses including Dr HV Acharya, Assistant Director, Forensic Science Laboratory, Gujarat, who had conducted BEOS and narco test on Ashish Chauhan, Rajinder Singh, Lokjan, Deepak and Subhash Singh, was also recorded. 

As per the conclusion of the report, no the role of five accused was observed in the act of rape and murder of Gudia as the motive of rape and murder were not established. Similarly, narco and BEOS test did not suggest any role of Rajinder in the killing of Suraj inside Kotkhai Police Station lock-up.

Further, prosecution witness Dr Ashwani Soon, who is a radiologist with DDU Zonal Hosptial, Shimla, Pritam Chand, Amar Singh Verma and constable Ajay Kumar also recorded their statement and were cross-examined.

Earlier, in the previous hearing in the case in September 2019, six prosecution witnesses had recorded their statement in the court. As a crucial revelation, the driver of Zaidi had told the court that he was with the accused from July 11 to July 13, 2017. He confirmed that he took Zaidi to the spot where the body of the rape victim was lying on July 11. Later, the driver said, he took Zaidi to Kotkhai Police Station and then to the Guest House of Public Works Department in the afternoon. Five accused were also kept at the HPPWD guest house illegally after their arrest.

Similarly, during a hearing on August 16, 2019, two villagers, Prashant Negi and Ishan, had given statements that they were illegally detained and kept at the said guest house. They had also told the court that they were brutally beaten, kept naked, and given third-degree torture between July 11 and July 13. These two CBI witnesses had identified Zaidi and then SP DW Negi and other police officials who were present during this time.

There are total 60 prosecution witnesses of CBI in the case. Statements of over 26 witnesses have already been recorded.

On August 29, 2017, CBI had arrested eight Police officials including the IG Zaidi in relation to the custodial killing of Suraj – an accused in the Gudia rape and murder case- on July 18, 2017. Later, then SP DW Negi was also arrested. CBI had later discharged all remaining accused alleging that they were innocent and were framed by the said police officials.

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Himachal BJP Leaders Including President Satti Make Mockery of HC Orders and Laws of Entry on Sealed Roads

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Hp BJP President Satpal Satti Breaks Rule

Shimla-Entry of vehicles on the Ridge Maidan is prohibited except for the emergency vehicles and vehicles of the Governor and the Chief Minister. But this is not the only concern; the Ridge Maidan and the tank beneath it have developed cracks. The movement of vehicles could make things worse. However, the Ministers, MLAs, Govt Officials, and even leaders of the ruling BJP do not care about what the law or the state High Court says or they don’t care about the sensitive condition of the Ridge Maidan.

The Chief Minister Jairam Thakur led Bharatiya Janata Party government had made a promise to the people of the state that it will put a check on VIP culture. However, neither the Ministers nor the MLAs of BJP are keeping this promise. They are openly defying laws related to entry and parking on sealed roads, as well as, showing disregard to the orders of the State High Court. The VIP culture is flourishing.

In such an instance, on September 25, 2019, on the occasion of Birth anniversary of Pt. Deendayal Upadhyaya, a drive to clean statues of great leaders of the Nation established in Shimla town was organized. The Chief Minister also took part in the drive and cleaned the statues of Mahatma Gandhi, Lala Lajpat Rai, former Prime Ministers Lal Bahadur Shastri and Indira Gandhi, and first Chief Minister of Himachal Pradesh Dr. Y.S. Parmar and Lt. Gen. Daulat Singh situated at The Ridge Shimla.

BJP State President Satpal Singh Satti also took part in it. But he forgot to show regard to rules and regulations and to the orders of the state High Court. His car was seen parked in front of the state library on the historic Shimla Ridge Maidan. Some other government vehicles including that of the Chief Minister Jairam Thakur was also on the sealed road.

As per the rules, as well as, the High Court orders, except emergency vehicles and vehicles of the Governor and the Chief Minister, no vehicle is allowed to enter the sealed road. However, enjoying the perks of power, the BJP President, displayed how political power allows leaders to over-ride rules and regulations.

This is not the first instance. Earlier, on August 28, 2019, at an event organized by BJP to pay tribute to their senior party leader Arun Jaitley, several ministers, MLA, and other government officials reached the Gaiety Theatre in their vehicles. The police was helpless and instead of enforcing the orders of no entry on the sealed Ridge Maidan, they were seen facilitating them.

Moreover, neither the Dailies nor online news portals highlighted it.

Even the Chief Minister isn’t following the orders of the Supreme Court regarding the ban on usage of the multi-toned horns in official vehicles. As per information obtained through an RTI, the vehicles of the Chief Minister and several other ministers were allegedly still using sirens/multi-tone horns in their official vehicles. A Division Bench comprising acting Chief Justice Dharam Chand Chaudhary and Justice Jyotsna Rewal Dua has sought a reply from the state government in its order passed recently. The order was passed on a petition filed by the HP High Court Bar Association.

Then, daily, several VIP cars with stickers of MLA could be seen parked on the sealed road near Clarks hotel. Pictures of these vehicles could be seen on social media posted by commoners. Several readers have shared these images with Himachal Watcher too. These posts receive a lot of critical comments from the people, but it never bothers these VIPs.

Parking on Sealed Roads Is Prohibited by Court Orders?Though the parking is prohibited on sealed roads of Shimla for…

Himachal Watcher द्वारा इस दिन पोस्ट की गई बुधवार, 7 अगस्त 2019

Then, there are VIP cars breaking traffic queues and parked wrongly, causing traffic jams.

#HPGovt Vehicles Continue Creating Traffic Nuisance With govt stickers on their cars, govt officials continue to…

Himachal Watcher द्वारा इस दिन पोस्ट की गई गुरुवार, 12 सितंबर 2019

What message the ruling party and the government want to send to the people? Do they want to make it a matter of prestige to violate laws and defy court orders

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APMC Bill 2019: Will it End Exploitation of Farmers in Himachal? This is What Minister Markanda and MLA Rakesh Singha Have to Say

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APMC Bill 2019 agriculture minister markanda and mla rakesh singha

Shimla-The Agriculture Produce Marketing Committee Bill 2019 would check exploitation of farmers and apple growers by commission agents and traders, says the Agriculture Minister Ram Lal Markanda. Unless this Bill is passed, the government has no control over existing APMC, thus, despite being the Agriculture Minister, he is helpless to get justice for the farmers, Markanda had told media couple of weeks ago.

However, Rakesh Singh, MLA of Theog Constituency, has a different opinion regarding the Bill. He said he has gone through the Bill thoroughly. Singha rejected Markands’s claim that the government has no control over the APMC. He asks as to how it is possible when the majority of the APMC members are officials of the state government.

Video: MLA Rakesh Singh on Agriculture Minister’s Claim That He Has No Control Over APMC

When asked whether the new APMC Bill would actually benefit farmers and fruit growers of the state, Singha said it was the other way round. With this bill, the government would permit that anyone from anywhere in India could open a market in Himachal. It’s natural that giant firms would use this opportunity, leading to shut down of small local businesses. He asserts that existing laws are equally strong.  

Video: Agriculture Minister Ram Lal Markanda and MLA Rakesh Singha on APMC Bill 2019

It’s pertinent to mention that apple growers, as well as, Kisan Sangharsh Samiti had been protesting over pending payments of hundreds of apple growers, which were not being paid by commission agents. Then there were complaints of unregistered and even blacklisted commission agents infiltrating the market and depriving growers of receiving justified prices for their produce. The growers approached the APMC and the state government several times with pleas to help them in recovering their payments worth lakhs of rupees. None of the two came to their rescue.

Led by the Kisan Sangharsh Samiti, the growers were forced file FIRs against commission agents, following which some of the pending payments were recovered.

The response of the Agriculture Minister to these repeated instances of frauds and exploitations by traders and commission agents despite provisions of rules and regulations regarding the payments and conducting business in the markets was that he has no control over the APMC at all. As per Markanda, the solution lies in the new APMC Bill 2019, which was to be passed in the monsoon session of the HP Legislative Assembly. However, it was deferred till the winters session and was sent to Select Committee after some MLAs pointed out that the Act should be carefully analysed before passing and implementing it.

Markanda says that the APMC Bill 2019 would be passed in the winter session and it would bring relief to the growers. He asserts that the Bill has provisions to prevent farmers and apple growers from frauds.

The Bill would apply on the commission agents based outside the state. After the implementation of this bill, the market fee would only be charged at markets and all other barriers would be lifted. It would open the market of entire India to growers by facilitating online trading, Markanda claimed. 

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