Govt to move HC against NGT order on illegal constructions in Shimla

Bhanu P Lohumi
Tribune News Service
Shimla, October 16

Delaying action against illegal constructions and siding with violators, the state government is all set to challenge the order of the National Green Tribunal (NGT), imposing restrictions on construction activities in the Shimla planning area.

“The government is keen to provide relief to affected persons as the repercussions of the NGT order are affecting a large segment of people and causing hardships. The matter has been discussed at the highest level and the government will soon file a petition in the High Court, challenging the NGT order,” sources in the government said.

“The draft of the petition is ready and the writ can be filed anytime after the court opens post-Dasehra,” the sources added.

The government had filed a review petition before the NGT, but no relief had been granted and now the government is contemplating challenging the order in the High Court.

The NGT had, in its November 16, 2017, order, banned all construction activities in the green and core areas as also within 3 m from national highways. It also restricted the number of storeys to two-and-a-half in the areas where construction was permitted. The orders were hailed by law-abiding people at large, but some affected people pressured the government to provide relief to them by challenging the order.

However, in the light of the NGT order, restricting the height of buildings to two-and-a-half storey, chances of relaxation are bleak.

Successive state governments had been keen on rewarding the defaulters raising constrictions in violation of the law and the state assembly had unanimously adopted a bill, seeking amendments to the Town and Country Planning Act in September 2016.

A section was included in the Bill, which provided for regularisation of all illegal structures on the “as is, where is” basis on nominal compounding fee and even the multi-storey buildings constructed without any building plan were covered under the amended Bill.

The government had claimed that it was a “one-time relaxation” and provided relief to house owners who had made minor deviations, arguing that mass demolition of illegal structures was not possible, but it opened the floodgates for large-scale illegal and unauthorised constructions. The High Court had stayed the retention policy on April 4, 2017, following a PIL filed by advocate Abhimanyu Rathore, who pleaded that such laws would bring discomfort to law abiding and honest citizens.

The controversial amendment was struck down by the High Court on December 22, 2017, which held the amendment “violative of Article 14 of the Constitution, being manifestly arbitrary, irrational, illogical, capricious and unreasonable”.

Ruling that the amendment being totally ultra vires could not be saved by adopting the doctrine of severability, the court observed that “the Act did not try to protect the naive, the innocent and the people belonging to marginal sections of society who might have raised construction through honest means”.

Expressing concern over the mushrooming of buildings, the order stated: “The effect of such regularisation on safety in terms of fire and traffic remains ignored, while the fragile ecology of the state warrants demolition of all illegal constructions, which are beyond the planning and permissible limits.”

The government has filed a review petition in the court, but there is no stay. It is hesitating in initiating action to demolish illegal structures and bringing erring officials to the book even after lapse of nearly 10 months.