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The Curse of NGT Judgment – Undoing of Urban Planning
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.
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PIL Filed in HP High Court Re-Ignites Quest for Recognizing Pahari (Himachali) as Hill State’s Official Language
Shimla- November 10, 2021, Himachal Pradesh High Court on Monday passed an order concerning a public interest litigation (PIL) seeking to recognize Pahari (Himachali) as an official language of the state. The petition also sought effective steps on the part of the government to preserve and promote the Pahari language in the State as its culture and language give it a distinct identity.
The Public Interest Litigation was filed by Arsh Dhanotia with a prayer that the state be directed to declare Pahari (Himachali) as one of the official languages in the State of Himachal Pradesh in any script and also promote further research towards a long-term formal Pahari (Himachali) nuclear language structure and nuclear Tankri script.
Bhawani Pratap Singh Kutlahria, the advocate for the petitioner, argued in the court that the State Government be directed to promote Pahari (Himachali) and other local languages as the medium of instruction in primary and middle-level schools as per the New Education Policy, 2020. On behalf of the petitioner, he also prayed the court to direct the state government to include Pahari (Himachali) language as a separate category for the 2021 Census and simultaneously undertake an awareness campaign to create awareness amongst the masses, especially the youth of the State who speak Pahari (Himachali), to get it marked as their mother tongue in the upcoming Census.
A bench of Chief Justice Mohammad Rafiq and Justice Sabina while disposing off the PIL stated,
“The direction as has been prayed for, cannot be issued to the State Government until and unless it is established on record that the Pahari (Himachali) language has its own script and that a common Pahari dialect is spoken throughout the State of Himachal Pradesh. We, however, set the petitioner at liberty to approach the Department of Language Art & Culture to the Government of Himachal Pradesh with his demand for undertaking research to promote a common Pahari (Himachali) nuclear language structure and nuclear Tankri script. If the petitioner approaches the respondents-State through its Additional Chief Secretary (Language Art & Culture) to the Government of Himachal Pradesh) for the prayer made in the Civil Writ Public Interest Litigation, it would be for the said authority to consider the same in accordance with the law.”
Additionally, the petition had emphasised that Sanskrit, which is the second official language of the state, had only 936 speakers according to the 2011 census and Pahari (Himachali) dialect chain which is spoken by more than 40 lakh people was being neglected and has not been made an official language even after having so many speakers.
The petition also highlighted works of Former Chief Minister Late YS Parmar and Former Education Minister Late Narain Chand Parashar towards the promotion of the Pahari (Himachali) language.
What’s Pahari (Himachali) Language, How Many Districts It Covers
It is to be noted that according to the petitioner, Pahari (Himachali) is a combined term used for the Western Pahari dialect chain spoken in Himachal Pradesh and majorly includes Kangri, Mandeali, Chambeali, Kulvi, Mahasu Pahari and Sirmauri. According to him ever since the creation of Himachal Pradesh, there has been a demand for recognition of Pahari (Himachali) under the Eighth Schedule of the Indian Constitution and it is also officially listed with 37 more languages as a language which is in significant demand to be included in the scheduled languages category.
In his plea, he also stated that the Himachal Pradesh Vidhan Sabha in 1970 and 2010 have also passed resolutions concerning the promotion and development of Pahari (Himachali).
Environment
Himachal’s Snow Covered Area Has Decreased, Poses Big Threat to State Economy’s Lifelines: Report
Shimla-The area under snow cover in Himachal Pradesh has declined by 18.5% according to a recent report published by State Centre on Climate Change (SCCC) and Space Application Center (ISRO) Ahmedabad. The report revealed this decreasing trend for the five major river basins in the State.
As the report points out, the high altitude regions of Himachal Pradesh receive precipitation mainly in the form of snow during the winter season. One-third of the geographical area of the state is covered by a thick blanket of snow during the winter season. Rivers like Chenab, Beas, Parvati, Baspa, Spiti, Ravi, Sutlej and its tributaries flowing through Himachal are dependent on snowfall in winter. These rivers mainly feed into the Indus water system and a decline at this rate rings a death knell for water and also food security for millions of people from Himachal to Kashmir, the plains of Punjab, the food bowl of the country.
Using images and data received from satellites, the report states, that the winter precipitation was mapped in all the basins from October 2020 to May 2021 (a period of two years). The findings indicate that there has been an average decrease of 8.92 percent in Chenab basin, 18.54 percent in Beas basin, 23.16 percent in Ravi basin, 23.49 percent in Sutlej basin compared to last year. The ice covered area of Chenab basin was 7154.11 sq km in 2019-20, which has come down to 6515.91 sq km in 2020-21. Similarly, Beas basin was reduced from 2457.68 to 2002.03 square kilometer, Ravi basin from 2108.13 square kilometer to 1619.82 square kilometer and Sutlej from 11823.1 square kilometer to 9045 square kilometers. Overall, the snow covered area was reduced from 23542 square kilometer to 19183 square kilometer in the entire Himachal.
Figure Source: Hindustan Times
Sutlej Basin covers 45 per cent of the total geographical area of Himachal and it is the longest river of the state. It flows for around 320 kms here, passing through Lahaul and Spiti, Kinnaur, Shimla, Kullu, Mandi, Solan and Bilaspur districts, along its course. The above study shows that the maximum reduction in snow cover has occurred in the Sutlej basin. An area of 4359 square kilometers under snow cover has decreased for the whole state, of which more than half of the Sutlej Basin.
Just two years ago another study had indicated that more than half of glaciers in Sutlej Basin are set to vanish by 2050. Yet another study also showed that the Sutlej basin has the highest 562 number of glacial lakes. These lakes stand the risk of sudden outbursts, which then causes flash floods downstream as the valley has already experienced. So, while the crisis that is unfolding, be it deglaciation, lake formation or reduction in area under snow cover, it seems that the Sutlej river basin is more vulnerable to these changes.
Prakash Bhandari, an environmental researcher and activist and member of Himdhara Collective expressing his concern states that the situation in the Sutlej river basin is certainly indicative of a serious climate emergency and it is critical to look into the drivers of this both local and global.
“The Sutlej basin catchment is the largest and so the changes visible here are more significant. Many factors have worked together to create this crisis which should be studied closely. There is no doubt that global warming is contributing to these changes. But the local conditions also play a role in reducing or increasing its impact”, he says.
The upper reaches of the Sutlej Valley, especially areas like Kinnaur are geologically fragile, with sharp gradients and loose soil strata. Vegetation is in a very small area so the proneness to erosion. We have seen the catastrophic impacts of flashfloods and landslides over the last decade and a half, where crores worth of property has been damaged. This year saw a spate of landslides where lives were lost. “In such a sensitive and also strategically important area, changes in the landscape will have far reaching and irreversible impacts. More construction activities will lead to more deforestation, more erosion”.
Construction of dams has been rampant in the Sutlej valley, a phenomena that started post independence and continues today. If all of the planned dams are built the Sutlej will be cho-a-cloc with more then 150, large and small projects. At the bottom of the valley in Bilaspur is the Bhakra Dam, built almost 6 decades ago, which has a size of 168 sq km and a storage capacity of 9.340 cubic km. Is. This is followed by the Kol Dam which extends for 42 km up to Sunni, which has a total storage capacity of 90 million cubic metres. Nathpa Jhakri Project which is 27.394 kms. is long. When a dam is built, a huge amount of water is stored. The debris of many villages, trees etc. also gets absorbed inside the dam. When water is stagnant, it receives heat from the Sun to form mist in the surrounding area by evaporation and simultaneously generates methane gas. The experience of the lake formed by the Kol dam at Tattapani in Mandi district shows that the area is experiencing heavy haze which was not there earlier.
“In the 30s and 40s, Shikari Devi and Kamrunag used to have snow on the peaks for about 6 months, which now could barely stop for only 2 months. The air route distance of Shikari Devi and Kamrunag is only 26 to 30 kms from Tattapani lake. At the same time, their distance is not much from the cement factories of Darlaghat, Sundernagar”, the elders in the area say. “Today, fog is prevalent and this has also made the area warmer”.
Due to the warming of the weather due to the clouds formed from the mist, the snow has started melting quickly. Apart from this the local crop patterns are affected. Post the 1990s, the Sutlej became a site for run of the river hydroelectric projects using extensive underground tunneling. This involves massive use of explosives for blasting through the mountains. Of the 23,000 MW worth of projects to be constructed in Himachal more than 10,000, a third are from this valley alone. Kinnaur continues to be a hydel powerhouse with 10 run of the river projects in progress and 30 more to be set up including two mega projects of 1500 MW and 1000 MW each. This paints a scary picture.
Interactive Sutlej River-Basin Map indicate Hydropower Station location
It is not just the hydro-electric dams but unplanned tourism and other development activities like mining, cement plants, road expansion and mindless construction across the high Himalayan regions have also add to the shift in local weather patterns, land use changes and thus the ecological crisis. But the reason why we should put the limelight on hydropower is that this is being pushed as “Green Energy”, in the name of climate change mitigation. As opposed to other forms of generating power, hydropower projects are said to cause lesser carbon emissions, which is why there has been a global push to shift to renewable resources. But the climate emergency in the Himalayas has put a question mark on ‘water’ as a renewable resource.
The question then arises that with all this data indicating a steady decline in river discharge and snow cover have our planners and policy makers not considered what will happen to these projects? Will they be able to generate the power they propose to? The people of Himalaya have to wake up to this wastage of public resources. Scarce funds should be diverted to better planning for securing local livelihoods by protecting the forest ecosystems and water sources for the future.
Author: Gagandeep Singh-From Himdhara (Environment Research and Action Collective)
Feature Images: unsplash/@raimondklavins
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Himachal: Warnings of Delta Plus Virulence Fall on Deaf Ears, No Restriction on Visitors from Affected States
Shimla-Yesterday, the Centre government directed the state governments to take immediate measure in wake of the spread of more infectious Delta Plus variant. As the Delta Plus variant is posing a threat of the third wave, the states were told to take steps like preventing crowds, increase testing, more focus on surveillance, contact tracing and put boosting vaccine coverage on a priority basis. Following it, Himachal Pradesh Government might have announced an alert over Delta plus variant, but there wasn’t any follow up on instructions passed by scientists and health experts to take strict restrictive measures ahead of the impending third wave.
To make it worse, high rank officials and political leaders were seen flouting Covid-19 SOPs on several occasion, which sent wrong messages to the masses. The pictures and videos showing flouting of Covid appropriate behavior by Chief Minister Jairam Thakur and Directorial General of Police, Sanjay Kundu, alongwith other staff for Anupam Kher is the most recent to mention. A group photograph and video of the same were widely circulated on social media and invited huge criticism from the people.
So far, the state has not reported any case of the Delta Plus variant. But the neighboring states – Punjab, Haryana, and Jammu & Kashmir – reported their first cases yesterday. This puts the boarding areas, like in Una district, at a higher risk. Chief Secretary to HP Government, Anil Khachi, yesterday said samples have been sent for genome sequencing.
Despite repeated warnings of Delta plus variant (B.1.617.2.1.), Himachal Pradesh has thrown its borders open to all and lifted all restrictions for inter-state travel in just one go. From June 23 onwards, the state government removed the condition for registering on the e-pass portal for visitors intending to enter the state. In the Cabinet meeting held on June 22, 201, the government first decided that e-pass restrictions would be removed from July 1, but later it changed the decision and instead implemented it immediately.
This haphazard decision is said to have come under huge pressure from the hospitality industry – the worst-hit sector, leading to financial crisis and mass unemployment among its stakeholders. Related associations had been approaching Chief Minister Jairam Thakur with their pleas to provide relief, but mostly faced disappointment. The stakeholders say the state government didn’t provide any significant relief, which is making the survival of the industry difficult.
Also Read: Read Eight Reliefs That Himachal’s Devastated Tourism Industry Seeks from HP Govt
Also, stakeholder of the industry, especially hoteliers, had been demanding the removal of restrictions and conditions on the entry of tourists to Himachal so that they could fetch the remaining peak tourist season.
With its inability to offer relief, the HP Government took the chance to waive off restrictions in a haste.
At the same time, the state government has decided to conduct offline examinations for the undergraduate classes starting from July. A section of the students had been condemning the HP government for scheduling exams without vaccinating students. Some student bodies had been asking the government as to why online classes were possible but not online exams.
The state government also waived off restrictions on timings for the opening of markets/shops.
As scientists and health experts warn of the virulence of the new variant and with neighboring states already on alert after reporting cases of the new variant, the HP government hasn’t even mentioned any intention to at least put a check on the visitor from the states where cases of Delta Plus are being reported. Carrying an RT-PCR negative report for visitors from such states/cities would have been a wiser step.
Officially, the state is on alert, but no measures have been announced to check the entry and spread of the variant into the state. The state government does speak of preparing for the anticipated third wave, but there is hardly any long-term preventive strategy. The Covid appropriate behavior is hard to adopt when markets and tourist places are crowded with visitors.
Why Delta Plus is a Big Concern
The World Health Organization (WHO) has labelled the Delta variant as ‘Variant of Concern’.
The Centre and scientific/medical institutes in India also agree with that Delta Plus as a variant of concern and could be the cause of impending third wave. Last Tuesday, based on the findings of INSACOG, the Union Health Ministry had alerted and advised Maharashtra, Kerala and Madhya Pradesh regarding the Delta Plus variant of COVID19.
INSACOG had warned that the Delta Plus variant has increased transmissibility, stronger binding to receptors of lung cells, potential reduction in monoclonal antibody response.
“Delta variant is more resistant to medication, treatment and vaccination. Therefore, people who have been vaccinated can still be affected by this variant and can go on to get a clinical illness, Archana Dhawan Bajaj, director, Nurture IVF, told a national English Daily.
“Neutralising antibodies against this variant post-vaccination seem to be nearly five times lower in people who have already been vaccinated than the other variants,” she said.
Further, Dr Raman Gangakhedkar, ex-Head Scientist of Epidemiology and communicable diseases, ICMR, has also expressed concern over the reports that Delta Plus has reported pathophysiologic change and affecting different organs. Dr Raman says that it could transfer from cell to cell and would more likely produce neurological symptoms as a common manifestation.
So far India has reported 51 cases of the Delta Plus variant.
Delta Plus variant is a variant of Delta with an additional mutation -B.1.617.2.1.
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