Supreme Court clears Shimla development plan
The Supreme Court on Thursday approved the Shimla development plan 2041 that is aimed at regulating construction activities in Himachal Pradesh’s capital city.
The Supreme Court on Thursday approved the Shimla development plan 2041 that is aimed at regulating construction activities in Himachal Pradesh’s capital city, terming it prima facie “sustainable” even as the court underlined the need to balance development with ecological concerns.
A bench headed by justice Bhushan R Gavi set aside the previous orders of the National Green Tribunal (NGT), holding that the entire developmental activities cannot be brought to a standstill by staying the development plan, which has been finalised after taking recourse to the statutory provisions and undergoing the procedural rigours.
“It can be seen that while preparing the development plan, due care has been taken to ensure that environmental aspects are taken care of. Upon its prima facie consideration, we have come to a view that there are sufficient safeguards to balance the need for development while taking care of and addressing environmental and ecological concerns,” said the bench, also comprising justice Aravind Kumar.
Permitting the Himachal Pradesh government to proceed with the implementation of the development plan, the top court underlined that the development plan was finalised after undergoing the rigorous processes, including that of inviting objections and suggestions at two stages and granting hearing to such representations.
To be sure, the bench clarified that its prima facie view on the validity of the plan may not be construed as giving imprimatur to all its provisions, adding it is always open for the litigants to raise a specific challenge to any independent provision before the appropriate forum if the impugned provision is claimed to be detrimental to the environment or ecology.
The judgment further highlighted the need for sustainable development by balancing between environmental protection and developmental activities. “While ensuring the developmental activities so as to meet the demands of growing population, it is also necessary that the issues with regard to environmental and ecological protection are addressed,” held the court. It stressed that both the right to clean environment and the right to development were components of Article 21 (right to live with dignity) and therefore, it was pivotal to strike a balance between the two.
The judgment comes as a shot in the arm for the Sukhvinder Singh Sukhu-led Congress government, which had finalised the new plan in June 2023 and strongly defended it in the top court. Though the court in May last year allowed the government to publish the development plan, it stopped fresh construction based on the draft plan until its final word in the matter.
The bench quashed a series of NGT orders since 2017 that restrained the state government from going ahead with its development plan and issued a slew of directions while noting that unplanned and indiscriminate development in the core, non-core, green and rural areas within the Shimla planning area had given rise to serious environmental and ecological concerns.
The Shimla development plan was approved in February 2022 by the then BJP-led state government, but it did not materialise owing to the NGT’s stay orders in May that year. The tribunal termed it illegal and in conflict with earlier orders passed in 2017 to regulate haphazard constructions in Shimla.
On Thursday, the bench noted that NGT had in effect directed the state government and its authorities to frame a development plan in a particular manner, but it was clearly an attempt to encroach upon the field reserved for the competent authorities to enact a piece of delegated legislation.
“It is a different matter for judiciary to examine as to whether a particular piece of legislation stands the scrutiny of law within the limited grounds of judicial review available. However, giving a direction or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive or the legislature would neither be legal nor proper,” the bench held, pointing out that the Himachal Pradesh Town & Country Planning Act authorises the state government and its authorities to frame a development plan.
The NGT could not have imposed fetters on such powers and directed it to exercise its powers in a particular manner, said the court, adding the tribunal acted without jurisdiction when it issued the directions regarding the proposed plan.
The plan, named Vision 2041, included construction provisions in 17 green belts with certain restrictions and in the core area where construction was earlier banned by the NGT. Detailed guidelines regarding the number of storeys, parking, attic and height of the structures were also mentioned, adding that felling trees would not be permitted in green areas.
The government has already decided to declare the attic as a habitable area and increase its height to 3.5 metres. Construction of one storey with a habitable attic would be permissible in 17 green belts, two storeys with a habitable attic and parking in core areas and three storeys with parking and a habitable attic in non-core areas would be permissible.
A total of 22,450 hectares were taken into account for revision and formulation of the development plan, which included the Municipal Corporation of Shimla, special area development authorities of Kufri, Shoghi and Ghanahatti and additional Shimla planning area besides villages.