Argument concluded in the Shimla Development Plan Case before the  SC

In the much-debated Shimla Development Plan Case Argument concluded before the division bench of the Supreme Court on Tuesday. The court reserved the judgment and directed the respondent to file the list of authorities in this matter before next Friday.

Supreme Court of India on Tuesday heard the argument on the petition of the state of Himachal Pradesh about the implementation of Shimla Development Plan-2041 and directed the respondent Yogender Mohan Sen to file brief notes Friday sighting authority to move before the NGT in the matter.

The case was fixed for hearing before the Divisional Bench of Justice BR Gavai and Justice Arvind Kumar for adjudication of the matter. The State Government moved in the SC in 2019 challenging the NGT order passed in November 2017 and other similar petitions related to the Shimla Developments Plan pending in the High courts and set aside by the NGT.

The SC asked the counsel for the Respond Mr Sanjay Parikh to submit the list of authorities to explain under which Authority it has challenged the issue of the Shimla Development Plan before the National Green Tribunal.

The counsel for the petitioner the state of Himachal Pradesh pleaded before the SC that NGT has jurisdiction to hear the matter of seven acts related to environment, pollution forest, etc. but the Town and Country Planning Act is not under the ambit of NGT.

The state contended before the division bench that NGT seized over the matter of the Shimla Development Plan after the Respondent moved against the state before NGT in 2022. The green tribunal couldn’t take suo moto cognizance in the matter and the power to adjudicate construction and development matters lay with the court not the tribunal and the NGT has exceeded its jurisdiction by entering into the domain of the court.

The state also pleaded before the SC that it could not enact the Shimla Development Plan due to pending litigation before the NGT as the first interim development plan was published in 1979 and till May 3, 2023, no SDP was notified hampering the process of planning for years.

Appearing for state advocate general Anoop Rattan stated that the state government had followed the directions of NGT before preparing the SDP and duly addressed each aspect raised by the NGT in its 2017 verdict. He said that before notifying the SDP various stakeholders including local people, organizations, and several expert committees were consulted. Only 97 objections were filed which were duly heard and replied to by the state. He said that since 2012 the respondent has applied the NGT which did not allow the state to finalize the Shimla developments plan and it was set aside by the NGT and Himachal Pradesh High Court.

He said that while hearing the application respondent NGT did not consider that Shimla town was raised during the last 100 years and the people living in the town could not be deprived. He said several buildings are allowed in the town for the public interest after seeking the permission of an expert committee constituted by the NGT. He said that NGT directions are taken care of while preparing the SDP and the contention of the respondent that the plan aligns with the directions of the NGT verdict and the recommendation of the expert committee constituted by the NGT.

He said that all those buildings which are multistory on Mall Road and other places built a hundred years ago could not be replaced by the two-half story as it is not feasible to allow such constructions sandwiched between such tall buildings without having permission on the old line. He said that many buildings in Mall Road, Middle, and Lower Bazaar require reconstruction on the old line and people are living in the depilated structures and many of them are wooden structures. He said that the NGT has also mentioned in its judgment about such depilated strictures. The state contended before the SC that those plots in the green belts having no trees from Ramchandra Choke to Richemont and Jakho and from IGMC to  Lakkar Bazar should be allowed to construct the one-floor plus parking or attic. He said that several people have submitted their maps for approval in the green areas and the state is not in a position to pay the compensation of the plots for such plot owners who are seeking permission and bought plots many years ago. He said that the government should be allowed to permit such construction strictly by following the restrictions as it was imposed by the NGT.

He said that there are 47 areas apart from the core or green areas which are also covered under SDP and planning areas are affected by the NGT order.
The state prayed for the implementation of the Shimla Development Plan as submitted to the SC. He said that the state couldn’t consider and allow construction in which people are seeking clearance to renovate and reconstruct unsafe and depilated buildings and people are still being permitted to live in such unsafe structures and several cases are pending before the state. e petitioner to consider the issue of the Shimla Development Plan in the previous hearing and the state didn’t want to create litigation on the matter of the Shimla Development Plan.

The counsel for the state said that governments published the SDP plan following the due procedures. He said that the state Government published an interim Development plan in 1979 and till 2023 no development plan could be notified. He said that the power of NGT is confined to seven acts. The NGT should not interfere with the planning of the state. Several judgments emphasized that NGT would not interfere with state planning. 

He said that there are several order of NGT which shows that NGT interfere with the power of the state. The council said that the Shimla Bustand case is one of the issues that was stopped by the NGT. He said that NGT increased the scope of its jurisdiction Suo Moto. The tribunal shall have jurisdiction but no such questions which are beyond the scope of the seven acts are to not dealt with by the Tribunal. He said that the TCP act is not under the NGT ambit. He said that if the state indulges in any illegal activity your lordship may strike it down. He said that whatever NGT has gone beyond the seven acts should be within the purview of the court only. He said that governments are coming in court to ensure that there is a development plan and no residents could be rooted out of the town by enacting statutorily provisions.    

The counsel for the respondent Yoginder Mohan Sen Advocate Sanjay Parikh said that the Shimla Development Plan notified by the state Government does not align with the National Green Tribunal Order and NGT directions and the Expert committee constituted by NGT. The Respondent seeks to appoint another independent expert committee in the wake of recent deaths caused by the landslides and rain in Shimla. Respondent demanded that those buildings that are raised on the steep hills up to 70 degrees of angle cause devastation every year in the rainy season. He said that before allowing any projects the court should emphasize that an environmental impact assessment should be made compulsory to the town.    

The advocate for former deputy mayor Tikender Singh Panwar Sr Counsel Surinder Nath supported the Shimla Development Plan however the SDP should be based upon the Geological study which is absent in the current one. Mr Panwar said that he had filled application for objection in the SDP in 2022. He said that safety premises should be looked at before allowing SDP and sustainable materials should be used before allowing construction in vulnerable areas to save people’s lives. He said that there is no topographical zoning missing in the plan and there should be the proper categorization of zones to divide it for industrial, commercial, and nonresidential use