The jurisdictional Shivaliks: Can the NGT vet State policy?

From the slopes of Mohali to the edges of Pathankot, the Shivalik Hills serve as the solitary "green lungs" for a State otherwise defined by its relentless monoculture. This ecological belt has now become a high-stakes legal battleground following the Punjab government’s November 2025 "Green Habitat" notification.

By attempting to regularise farmhouses across roughly 55,000 hectares of land recently delisted from the Punjab Land Preservation Act (PLPA), 1900, the State has ignited a constitutional debate that goes far beyond simple land-use permits.

The beginning of 2026 marked the legal fraternity grappling with a foundational dilemma: can the National Green Tribunal (NGT) legally stay a sovereign policy, or is it merely a "creature of statute" overstepping into the judicial review powers reserved for constitutional courts?

Untangling the current impasse requires a look at the century-long chronology of the PLPA. Since 1900, this Act shielded the fragile Shivalik-Kandi region from non-forest activities, primarily to curb soil erosion. The recent delisting of these tracts did not happen in a vacuum; they were the result of site-specific determinations mandated by the Supreme Court.

Crucially, these orders distinguished "deemed forests" from revenue land rather than granting a blanket legislative withdrawal of environmental protection.

The "Green Habitat" policy, notified on November 20, 2025, presents itself as a blueprint for "low-impact" residential growth, capping structures at a G+1 format on 4,000-square-yard plots. However, the veneer of sustainability hides a deep-seated legal conflict. While the Supreme Court allowed for delisting, it explicitly tied the land’s use to bona fide agricultural or sustainable livelihood purposes. Permitting "farmhouses", which, in Punjab’s contemporary socio-legal landscape, are frequently high-end suburban retreats, appears to sidestep the core philosophy of the TN Godavarman Thirumulpad precedent.

When the NGT’s Principal Bench stayed this policy in December 2025 and subsequently clubbed the challenge on January 5, 2026, with broader petitions against illegal structures in the Shivaliks, the State’s retort was purely jurisdictional. In face, it claimed that a tribunal simply cannot sit in judgment over the "vires" of executive action.

The State’s defense leans heavily on a rigid interpretation of L Chandra Kumar v. Union of India (1997), arguing that Article 226 vests the power of judicial review exclusively in High Courts. This argument, however, rests on the flawed assumption that the NGT is currently performing a "vires" test on the notification. In reality, the Tribunal’s intervention is an interim protective measure, not a final declaration of invalidity. It is a well-settled principle of Indian administrative law that regulatory bodies can suspend executive actions to stave off irreparable harm without necessarily adjudicating their ultimate constitutionality.

In the Wilfred J v. Ministry of Environment & Forests (2014) case, the NGT clarified its "limited judicial review" mandate - a power designed to ensure that the spirit of scheduled environmental laws isn't hollowed out by executive fiat. In a State like Punjab, where forest cover has dwindled to a precarious 3.6% (according to the latest State of Forest Report estimates), the Tribunal’s "merit jurisdiction" must logically include the power to pause policies that threaten irreversible ecological shifts. The NGT is far more than a mere adjudicatory body; it is a specialised forum whose technical members provide the "expert eyes" necessary to dissect the scientific fallout of administrative choices.

The "Green Habitat" policy remains particularly vulnerable under the public trust doctrine, famously articulated in MC Mehta v. Kamal Nath (1997). This doctrine posits that resources like the Shivalik foothills are held by the State not as a proprietor, but as a trustee for the public. Any policy that facilitates the transfer of "trust property" from ecological preservation to private residential enjoyment demands the most rigorous judicial scrutiny.

By regularising structures that were once unauthorised, the State essentially creates a "premium on illegality." This flies in the face of the precautionary principle and the polluter pays principle, both of which are statutory requirements for the NGT under Section 20 of the National Green Tribunal Act, 2010. The Shivalik-Kandi belt functions as a critical wildlife corridor and catchment area. Introducing large-scale habitation, regardless of "low-impact" branding, inevitably ramps up anthropogenic pressure on a geologically unstable landscape. The State’s fiduciary obligation is to safeguard this frontier for the future, not to act as a land-clearance agent for orderly urbanisation.

A chronic ailment in Indian environmental law is the "doctrine of fait accompli." All too often, by the time a legal challenge winds through the courts, the trees have vanished and the concrete has set. The NGT’s stay in this instance is a vital preventative valve. If the High Court were to vacate this stay on purely jurisdictional technicalities, it would set a troubling precedent: that environmental safety is secondary to the executive's convenience.

Furthermore, the "Green Habitat" policy ignores the necessity of a cumulative environment impact assessment. By fixating on individual plot restrictions, the State fails to account for the aggregate toll thousands of such dwellings would take on local biodiversity and the water table. This also touches upon federal balance; while States implement environmental protections, they do so within a nationally harmonised framework - including the Forest Conservation Act - that executive notifications cannot simply dilute.

Ultimately, the judiciary must decide if the "finality of policy" is absolute. In ecological matters, policy can never serve as a shield against accountability. The NGT’s stay is not an overreach into the executive’s kitchen; it is a necessary "pause button" to ensure that the State doesn't present the public with an ecological disaster.

For the legal community, the Punjab case serves as a stark reminder: our environmental protections are only as robust as the forums that defend them. If the NGT is stripped of its ability to question the impact of policy, it risks becoming a forum that only issues post-facto penalties – a toothless regulator in the face of systemic damage. We must advocate for a harmonious construction where the High Court’s constitutional oversight and the NGT’s technical precision work in tandem.

The Shivaliks are watching. The final outcome here will determine if "Green Habitat" is a legitimate ecological blueprint or just a sophisticated euphemism for the dismantling of Punjab's last wilderness. The State must realise that in the court of ecology, short-sighted policies carry no statute of limitations.

Paras Sharma is an advocate practicing before the Punjab and Haryana High Court.