क्या एनजीटी के आदेश की अनुपालना हो पायेगी
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- Created on Tuesday, 14 August 2018 11:11
- Written by Shail Samachar
शिमला/शैल। एनजीटी ने प्रदेश भर में नये निर्माणों पर रोक लगा दी है। एनजीटी ने राज्य सरकार को निर्देश दिये हैं कि दो कमेटियां गठित की जायें और निर्माणों के लिये आया हर आवेदन इन कमेटियों को सौंपा जाये। यह कमेटीयां यदि प्रस्तावित निर्माण को पर्यावरणीय मानकों पर सही पायेंगी तभी इसकी अनुमति मिलेगी। अनुमति मिलने पर भी कोई भी निर्माण अढ़ाई मंजिल से अधिक नही होगा। एनजीटी के इस फैसले पर प्रदेश भर में कई तरह की प्रतिक्रियांए हुई हैं। इन्ही प्रतिक्रियांओं के बाद सरकार इस फैसले के रिव्यू में गयी थी जो अस्वीकार हो गया है। कुल्लु-मनाली में जब अवैध निर्माणों के दोषी मुख्यमंत्री को मिले थे तब उन्हें यह आश्वासन दिया गया था कि इन निर्माणों को कानून के दायरे में लाकर राहत दी जायेगी। मुख्यमंत्री के इस आश्वासन के बाद यह सवाल उठ रहा है कि क्या अदालत का फैसला आने के बाद पहले से चिन्हित हो चुके अवैध निर्माणों को इस तरह से राहत दी जा सकती है । पाठक इस पर अपनी राय क्या बनाते है इसके लिये यह आदेश-निर्देश जनता के सामने रखे जा रहे हैं।
एनजीटी का आदेश एंव निर्देश
112. Thus, we pass the following directions and order:
I. We hold and declare that the facts and circumstances of the present case, as afore-recorded, clearly demonstrate failure on the part of the State Government, its instrumentalities and local authorities to discharge their constitutional obligations under Article 48A, statutory duties under the Environment (Protection) Act, 1986, under the TCP Act and Municipal byelaws. It is this failure that has exposed the Shimla Planning Area to such vulnerability to natural and man-made disasters. In the event, if such unplanned and indiscriminate development is permitted there will be irreparable loss and damage to the environment, ecology and natural resources on the one hand and inevitable disaster on the other.
II. We hereby prohibit new construction of any kind, i.e. residential, institutional and commercial to be permitted henceforth in any part of the Core and Green/Forest area as defined under the various Notifications issued under the Interim Development Plan as well, by the State Government.
III. Beyond the Core, Green/Forest area and the areas falling under the authorities of the Shimla Planning Area, the construction may be permitted strictly in accordance with the provisions of the TCP Act, Development Plan and the Municipal laws in force. Even in these areas, construction will not be permitted beyond two storeys plus attic floor. However, restricted to these areas, if any construction, particularly public utilities (the buildings like hospitals, schools and offices of essential services but would definitely not include commercial, private builders and any such allied buildings) are proposed to be constructed beyond two storeys plus attic floor then the plans for approval or obtaining NOC shall be submitted to the concerned authorities having jurisdiction over the area in question. It would be sanctioned only after the same have been approved and adequate precautionary and preventive measures have been provided by the special committee constituted under this judgement along
with the Supervisory Committee.
IV. Wherever the old residential structures exist in the Core area or the Green/Forest area which are found to be unfit for human habitation and are in a seriously dilapidated condition, the Implementation Committee constituted under this judgement may permit construction/reconstruction of the building but strictly within the legally permissible structural limits of the old building and for the same/ permissible legal use. The Competent Authority shall sanction the plans and/or approve the same only to that extent and no more; under any circumstances such plans must not be beyond two storeys and an attic floor and only for residential purpose.
V. There shall be no regularization of unauthorised constructions within the Core area and Green/Forest areas which have been raised without obtaining any prior permission/sanction of plans in entirety. It shall also include constructions in complete violation of the sanctioned plan or where additional floors have been constructed in contradiction to the concept of deviation or variation, to constructed areas for which the plans were sanctioned. In such cases, the authorities shall take action in accordance with law and direct demolition of such property.
VI. The State of HP, its departments and authorities are hereby restrained from permitting cutting of hills/forests without prior submission of application for sanctioning of plans for construction. If any person is found to be damaging Forest/Green area and/or cutting of hills, without grant of permission of the concerned authorities and without construction plan being sanctioned, he/she would be liable to pay environmental compensation as may be determined by the concerned department but not less than Rs. 5 Lakhs for each violation. The compensation, if not paid, shall be recovered as land revenue by the State and will be utilized by the State for restorative purposes and/or for afforestation of the Shimla Planning Area.
VII. Wherever unauthorised structures, for which no plans were submitted for approval or NOC for development and such areas falls beyond the Core and Green/Forest area the same shall not be regularised or compounded. However, where plans have been submitted and the construction work with deviation has been completed prior to this judgement and the authorities consider it appropriate to regularise such structure beyond the sanctioned plan, in that event the same shall not be compounded or regularised without payment of environmental compensation at the rate of Rs. 5,000/- per sq. ft. in case of exclusive selfoccupied residential construction and Rs. 10,000/- per sq. ft. in commercial or residential-cum-commercial buildings. The amount so received should be utilised for sustainable development and for providing of facilities in the city of Shimla, as directed under this judgement.
VIII. We direct the State Government and/or its instrumentalities and more, particularly, the Town and Country Planning Department to finalize the Development Plan within three months from the date of pronouncement of this judgement without default. The Development Plan so finalized shall be notified in accordance with law. While finalizing the development plan, the directions and precautions stated in this judgement shall be duly considered by the concerned departments and the State of Himachal Pradesh.
IX. The Registrar or any other authority vested with the responsibility of registering documents of transfer or division of land shall not do so except with the prior NOC from the Town and Country Planning Department, in accordance with the provisions of the law afore-referred. The Department of Science and Technology, Town and Country Planning, Municipal Corporation, Urban Development, Forest, Revenue and Registrar for documents shall depute their senior officers within a period of three weeks from today, who shall prepare Memorandum of Practice which shall be followed by all the departments in regard to cutting of hills, any activity in the forest areas, division and transfer of land, development activity providing of infrastructure and other facilities in the Shimla Planning Area. This memorandum shall provide due coordination and cooperation between the various wings of the State to ensure sustainable development of the entire Shimla Planning Area. This Memorandum will be approved by the Supervisory Committee appointed under this judgement.
X. The State of Himachal Pradesh, its instrumentalities, departments and local authorities shall prepare an Action Plan for providing appropriate infrastructure, water and sewerage facilities, roads, greenery, other public amenities and retrofitting of existing structures (especially public utilities) particularly with the earthquake resistance structures in the areas which have been indiscriminately developed and lacks such facilities like Sanjauli and other congested areas of Shimla including Lower Bazar etc. The Action Plan shall be prepared within a period of three months from the date of pronouncement of this judgement providing retrofitting to public or private buildings against earthquake effect and be implemented in accordance with the State Policy.
XI. No construction of any kind, i.e. residential, commercial, institutional or otherwise would be permitted within three meters from the end of the road/national highways in the entire State of HP, particularly, in Shimla Planning Area. We direct that all the concerned authorities shall duly enforce the valley view regulation and direct the same.
XII. Within the existing Zoning policy, additional layers of slope, geology, soil type and load bearing capacity of soil should be superimposed on different zones to regulate any construction or development works. The height of constructions should be regulated by such safe bearing load capacity of the underlying rock formations rather than uniformly following 18 mtr. of height
requirement. The Interim Development Plan permits 18 mtr. of height requirement, which again has no rational and is not backed by any study. Thus the same will not be implemented till compliance with the other directions.
XIII. Presently slope of 45° for construction is uniformly applicable in all zones and areas irrespective of soil and geology. This can create vulnerability during seismic events and soil saturation/soil liquefaction. Slope in soft rocky areas with over burden soil should be reduced to 35° while retaining 45° for areas with hard sub surface stratum. The concerned department shall ensure that no construction activity takes place where the slope is more than 45°/35° in any case, which should be prior to cutting of the hills.
XIV. Rain water harvesting should be a mandatory requirement for all the building plans. Even the old buildings where such RWH structures are not present must be provided with RWH systems within three months. This direction must be complied with particularly in relation to public buildings, schools, colleges, universities, hotels, hostels, etc.
XV. All the storm water available as surface run off in all the concretised areas like roads, lanes, platforms and market places should be diverted in such a manner to ensure that such run off
does not go in to over burden or flow along hills and depressions, thereby creating over saturation and affecting soil and slope stability. Options be evaluated for storage and use of such water after proper treatment/disinfection.
XVI. There should be no institutional construction in the Core area and the institutions located in the Core area which requires a further demand for space or facilities should be shifted to other district or to the areas falling under the jurisdiction of SADA.
XVII. We appoint the following Committee to be termed as ‘HighPowered Expert Committee’, which shall be responsible for carrying out the specific directions under this judgement and
provide NOC or other necessary permissions to the stakeholders, whether State or private parties. This Committee shall also ensure that there is no further degradation of environment, ecology and natural resources of the Shimla Planning Area. If anything comes to the notice of this Committee, they would be at liberty to move to the Tribunal for appropriate directions. The High Powered Expert Committee shall consist of two components. First would be the Supervisory Committee while the later would be Implementation Committee. The Members of these committees shall be as follows:
I. SUPERVISORY COMMITTEE:
i) Secretary, Urban Development, State of Himachal Pradesh.
ii) Director, Wadia Institute of Himalayan Geology, Dehradun.
iii) Director, Town and Country Planning, Govt. of H.P. shall be the Member Secretary of the Committee
iv) Professor from relevant field nominated by the Director, Punjab Engineering College, Chandigarh.
v) Nominated officer from NDMA not below the rank or equivalent to the Joint Secretary or above.
vi) Member Secretary, H.P. Pollution Control Board.
II. IMPLEMENTATION COMMITTEE:
Chairman: Director, Deptt. Town and Country Planning, Govt. of H.P.
MEMBERS:
i) State Town Planner, Govt. of H.P.
ii) Director, Department of Urban Development, Govt. of H.P.
iii) Municipal Commissioner, Shimla. -
iv) Nominated officer from Wadia Institute of Himalayan Geology, Dehradun not below the rank or equivalent to Director in Govt. of India.
v) Nominated officer from NDMA not below the rank or equivalent to Director in Govt. Of India.
vi) State Geologist, Department of Industries, Govt. of H.P.
vii) Director, Department of Environment, Science & Technology, H.P.
viii) Architect in-Chief, H.P. PWD.
ix) Member Secretary, H.P. Pollution Control Board.
The Supervisory Committee shall meet atleast once in three months, while the Implementation Committee shall meet every month in the first week to perform the functions and duties assigned to them under this judgement, without default.
XVIII. This High Powered Expert Committee shall carry out a survey of lifeline structures and identify those structures that are vulnerable to damage due to seismic events and other natural hazards. Also it will identify and delineate passages for providing emergency services, for medical assistance and relief works, so that enough openings are created for ingress and egress of fire tenders and emergency medical vehicles/ ambulances.
XIX. This Committee shall also advise the State of HP for regulating traffic on all roads, declaring prohibited zones for vehicular traffic, preventing and controlling pollution and for management of Municipal Solid Waste in the Shimla Planning Area. The recommendation of this Committee should be carried out by the State Government and all its departments as well as local authorities, without default and delay.
XX. The Committee shall also deal with the recommendations in relation to zoning policy and would keep in mind the factor of vulnerability risk assessment. The Committee may also make recommendations for permitting construction of buildings of exceptional nature like hospital, fire-brigade or public utility services but strictly in consonance with the laws in force.
XXI. There should be a complete ban on felling of trees in Catchment Forest and Sub-Catchment of water streams and water sources. In such areas, even change of land use to horticulture and
agriculture should not be permitted as that can add pesticides and inorganic chemicals to soil which will eventually drain in to water sources.
XXII. The State Government shall ensure that the Municipal Solid Waste generated in the Shimla Planning Area is managed strictly in consonance with the Solid Waste Management Rules, 2016.
The Waste to Energy Plant located at Bhariyal should positively be made operational as directed by the Tribunal in the other connected matters by 15th November, 2017.
XXIII. The ban on use of plastic bags and plastic packaging in the Shimla Planning Area is again reaffirmed and reiterated. The State of HP, it’s Departments, Himachal State Pollution Control
Board and the Municipal Corporation of Shimla shall ensure that no plastic bags or plastic packing or goods are used, stored, sold and/or given with any product, by the shopkeepers in the Shimla Planning Area.
XXIV. The State Government, concerned departments and the localauthorities are hereby directed to prepare a complete action plan for collection and disposal of sewage in the Shimla Planning Area expeditiously. The plan should deal with laying of pipeline, putting up of STP and reutilisation of the treated sewage and/or its discharge at the appropriate places wherever there is a discharge in the water body. It shall be ensured that the release of the treated sewage should not be at a point prior to any drain or pipe discharging untreated sewage into the river/water bodies directly, which must be stopped. The Action Plan should be placed before the Tribunal within a period of three months from today.
XXV. It is directed that wherever the concerned authorities extract water from the river or water bodies it should do so according to law and positively prior to a point where discharge from any
drain, nalla, etc. meets the river/water body. Though, every effort should be made that no untreated sewage or other polluted water enters the river at all.
XXVI. Wherever there are trees in the compound or land of an owner or a house adjacent to a forest or green area, it shall be the responsibility of such owner/owners to ensure that the trees are properly protected and maintained and no damage is caused or permitted to be caused to their growth.
XXVII. All the directions issued by the Tribunal in relation to collection and disposal of sewage, passed in the case of Abhimanyu Rathor v. State and Ors. (supra) should be strictly complied with.
XXVIII. The concerned departments and the local authorities of the State Government should also prepare a complete and effective Action Plan with regard to disaster management. The Disaster Management Plan should deal with both precautionary and preventive measures that should be taken up presently to ensure that in the event of any untoward incident or natural calamity there is least damage to the natural resources, person and property of the public at large. The action plan should also deal with the preparedness of the concerned wings of the State for the purpose of relief and rehabilitation as a result of disaster.
XXIX. Original Application No. 505 (THc) of 2015 also stands dispose of in terms of this judgement. The Applicant has already submitted the plans for reconstruction of the house on the existing lines on the ground that the same is in dilapidated conditions and is unfit for human habitation. In this judgement, the Tribunal has placed restrictions in consonance with the Notifications issued by the State on the nature and the extent of construction that can be raised in such areas. All these matters are required to be considered by the Supervisory Committee.
Therefore, we direct the concerned authorities to consider the application of the applicant afresh, in light of the directions contained in this judgement and pass orders expeditiously in any case not later than four weeks from today. The orders dated 1st August, 2005 and 13th October, 2010 already passed by the authorities would not be given effect to and they will be subject to fresh orders that may be passed by the competent authority.