Shimla Draft Development Plan 2041 declared illegal by NGT

The National Green Tribunal (NGT/ tribunal) has set aside the Draft Development Plan, 2041 prepared by the Town and Country Planning Department, Himachal Pradesh for the city of Shimla [Yogendra Mohan Sengupta vs The State of Himachal Pradesh and Ors.]..A bench of Justices Adarsh Kumar Goel and Sudhir Agarwal, and expert members Prof. A Senthil Veil and Dr. Afroz Ahmad stated that the action taken in violation of NGT's directions cannot be validated by the plan and will remain illegal. .The petitioner Yogendra Mohan Sengupta challenged the plan on the ground that it was contrary to the sustainable development principle, and was destructive of environment and public safety.He referred to expert committee reports based on which the NGT through a 2017 order, had issued regulatory measures required to be adopted in terms of number of floors, restrictions on constructions in core/green areas etc. Stating that the directions were still holding field, the petitioner alleged that there was an illegal and ill conceived effort to violate the binding directions of the tribunal under Section 15 of the NGT Act that have the force of a binding court decree.Further, he stated that as per Section 33, the NGT Act overrides any other law in force and that violation of directions under it is a criminal offence punishable under Section 26. .During the hearing of the case in May 2022, the tribunal had noted that the State of Himachal Pradesh filed an appeal against its 2017 order in the Supreme Court but failed to obtain a stay on it. In view of the above, the NGT concluded that the draft plan was illegal.The tribunal then issued notice to the State and directed it not to take further steps in pursuance of the draft plan..The State of Himachal Pradesh stated in its counter affidavit that the tribunal's judgment could be ignored by it in exercise of its legislative power. It further contended that the Himachal Pradesh High Court had, in 2021, passing an order after taking the draft plan into consideration and that was also a valid ground to ignore the tribunal's orders.The plan, it said, was as per Guidelines of Ministry of Urban Development, Government of India and was necessary to promote development. It was claimed that the recommendations of Expert Committee appointed by the tribunal were duly addressed while preparing it..In his rejoinder, the petitioner contended that the plan was not justified and that the stand taken by the State in its counter affidavit was not tenable.He stated that the High Court did not express views on merits of the tribunal's judgment and also underlined that the apex court did not grant a stay on it either. Therefore, he argued that acting in violation of judgement of the tribunal during pendency of appeal before the Supreme Court, without its permission, would amount to over-reaching the process of law. .On consideration, NGT determined that the Draft Development Plan was undisputedly in violation of its 2017 judgment. In view of the same, it asked whether it was open to the State to issue a development plan in violation of the tribunal's decree and whether such action could be justified on the ground that copy of plan was filed in some matter before the High Court..The tribunal took the view that the State's stand could not be upheld because once the tribunal has adjudicated upon the matter, no further question remained for going into the merits and the view taken was final unless interfered with by a higher legal forum.It said that it was beyond doubt that the State had no jurisdiction to annul or ignore its order as any other view would defeat the purpose of setting up the tribunal.Relying on the Supreme Court's judgment in Mantri Techzone Private Limited v. Forward Foundation and Ors., the NGT stated that it was beyond doubt that the State's view was not final in view of overriding provisions of NGT Act by virtue of express provision under Section 33. .Therefore, the NGT held that the Draft Development Plan was in conflict with its 2017 judgment, and declared that it was illegal and could not be given effect. .[Read Order]