Himachal Pradesh High Court
Kusum Bali vs . State Of H.P & Ors. on 27 September, 2022
Bench: Amjad Ahtesham Sayed, Jyotsna Rewal Dua
1 Kusum Bali vs. State of H.P & Ors.
CWPIL No. 13 of 2021 .
27.09.2022 Present: Mr. Vishwa Bhushan, Proxy Counsel, for the petitioner.
Ms. Ritta Goswami, Additional Advocate General, for respondent Nos. 1 to 3 and 5.
Mr. Bonit Thakur, Proxy Counsel, for respondent No.4.
Learned Proxy Counsel for the petitioner seeks time on the ground that since a former Judge of this Court has passed away, only proxy counsel are appearing today before the Court. He requests that the matter be listed on 14.10.2022.
2. On 16.09.2022, we had directed the Chief Secretary to file reply-affidavit setting out what steps the State Government proposes to take in respect of the indiscriminate and haphazard constructions in the area in question as also what steps it proposes to take to ensure that such constructions are regulated in future. As recorded in the said order, the constructions appear to have been carried out by cutting and chopping of hills, which are ecologically sensitive zones. Pursuant to said directions, the learned Additional Advocate General has tendered the affidavit dated 27.09.2022 of the Chief Secretary.
3. We have perused the said affidavit, paragraphs 3(a) to 3(f) whereof read as follows:-
::: Downloaded on - 24/12/2022 09:48:24 :::CIS 2"a) That it is most respectfully submitted before this Hon'ble Court that the area in which .
alleged construction activities is reported is not covered under the provisions of the Himachal Pradesh Town & Country Planning Act, 1977. The area under reference in the present petition does not fall within any planning area.
b) That a committee comprising of Additional Deputy Commissioner, Solan along with Executive Engineer from HP PWD, Kasauli Circle, District Forest Officer as members and Town & Country Planner, Divisional Town Planning Office Solan as Member Secretary was constituted vide office order dated 20.09.2022 to ascertain the quantum and nature of construction activities and was further directed to submit a fact finding inquiry concerning all the issues raised in the petition. The copy of office order along with report is hereby annexed as Annexure R- 1 & Annexure R-2 respectively for kind perusal of this Hon'ble Court.
c) That it is most respectfully submitted that the aforesaid Committee did not find any encroachment on Government land qua the construction in question. The road is village road constructed under PMGSY in the year 2000-01 on public demand with consent of the private land owners. The road passing through the area is been maintained by the HP PWD, Kasauli Division. Thus the road infrastructure map has not been prepared for the road under consideration. However, the provisions of HP Road Side Infrastructure Protection Act can be applied in this road accordingly.
d) That on the issue of what steps the State Government proposes to take in respect of the existing constructions, it is most respectfully submitted that the owner of these buildings shall be directed to submit a structural audit report/ stability certificate to ensure the safety of their buildings in question. Further, the H.P. State Pollution Control ::: Downloaded on - 24/12/2022 09:48:24 :::CIS 3 Board shall be directed to conduct a detailed to identify, whether there is any violation of Water .
(Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981.
e) That it is most respectfully submitted before this Hon'ble Court that henceforth, that there shall be a direction to all the person who have been accorded permission under Section 118 of the H.P Tenancy and Land Reforms Act, 1972, to obtain No Objection Certificate (NOC) of the Respondent Town and Country Planning Department to the effect that land in question, being developed does not attract the provisions of Section 1 (3a) of the H.P Town and Country Planning Act, 1977 or the provisions of Section: 3 of the Real Estate (Regulation and Development) Act, 2016.
f) That it is submitted before this Hon'ble Court that the matter related to inclusion of area in question into adjacent planning/special area can be taken up for consideration. However, the final decision related to such inclusion is to be taken at the level of State Government by the State Cabinet..................."
4. The affidavit thus candidly states that the area in which the construction activities are reported is not covered by the Himachal Pradesh Town and Country Planning Act, 1977 ('HP&TCP Act' for short) and does not fall in any planning area. The affidavit further states that a committee was constituted comprising of (i) Additional Deputy Commissioner/Additional District Magistrate, District Solan, H.P- Chairperson, (ii) District Forest Officer, Solan, H.P-
Member, (iii) Executive Engineer, HPPWD Kasauli, District Solan, H.P-Member and (iv) Town & Country Planner, ::: Downloaded on - 24/12/2022 09:48:24 :::CIS 4 Divisional Town Planning Office, Solan, H.P- Member Secretary, to ascertain the quantum and nature of .
construction activities and was directed to submit a fact finding inquiry concerning all the issues raised in the petition. The said committee has submitted its report, which is annexed as Annexure R-2 to the affidavit.
5. The report inter-alia states that no department or authority is vested with the powers to grant sanction for construction of buildings in the said area, at present. The report further states that joint site inspection was carried out by the committee and it was observed that multi-storeyed buildings have come up on either side of the said road raising from 04 to 09 storeys for different uses such as residential and commercial/tourism. It is observed in the report that prima-facie the multi-storeyed buildings have been constructed with a motive of sale of flats. It is further stated in the report that the road in the village was constructed under PMGSY in the year 2000-01 and no NOC was taken from the land owners at that time as this was a demand road and the said road is passing through the land of private owners as well as Government/Forest land and H.P Road Side Infrastructure Protection Act is not operative over this road being ownership of the land in the name of the individuals and Forest Department.
::: Downloaded on - 24/12/2022 09:48:24 :::CIS 56. We have also perused the affidavits filed by the Director, Town & Country Planning Department, H.P. on .
behalf of respondent Nos. 1 and 2, the Deputy Commissioner, Solan on behalf of respondent No.3, Member Secretary, H.P State Pollution Control Board on behalf of respondent No.4, Conservator, Forest Circle, Solan on behalf of respondent No.5. The stand of the respondents in the said affidavits is essentially that there are no regulations in place in respect of the area of 6 kilometers between Village Kheel Jhalsi to Village Kainthari (including village Koro) which is the subject matter of the present writ petition and therefore construction activities in the area is not being regulated. From the stand of the respondents, it appears that constructions can be carried out in the area in question with impunity and at the whims and fancies of the owners/developers. None of the affidavits deal with the issue of cutting and chopping of hills which are ecologically sensitive zones and affect the environment.
7. We are constrained to observe that the stand of the respondents clearly brings out the sorry state of affairs and shocks the conscience of the Court. The stand of the respondents suggests that despite the constructions/ construction activities being carried out by cutting and chopping hills in the subject area, no action can be taken ::: Downloaded on - 24/12/2022 09:48:24 :::CIS 6 unless the area falls in planning area. Such stand cannot be countenanced.
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8. Having regard to the stand of the respondents and considering the public interest involved in the matter, we find that if the stand of the respondents is accepted, there would be several areas in the State of Himachal Pradesh where constructions can be carried out with impunity by cutting and chopping of hills, as has been done in the present case. We therefore propose to expand the scope of this Public Interest Litigation to include the entire State of Himachal Pradesh, so as to ensure that the constructions and, in particular, constructions by cutting and chopping of Hills, is regulated by the Authorities.
9. Ordinarily we avoid passing orders directing the high officials of the State to remain present in Court.
However, in view of helplessness expressed in the affidavits of the respondents and to ensure that the construction activities and particularly in the hills which are ecological fragile areas of State of Himachal Pradesh are regulated and are not subjected to environment damage or further deterioration, we direct (i) Chief Secretary to the Government of Himachal Pradesh; (ii) Principal Secretary, Town and Country Planning Department, Government of Himachal Pradesh; (iii) Additional Chief Secretary, Revenue, Government of Himachal Pradesh; (iv) Principal ::: Downloaded on - 24/12/2022 09:48:24 :::CIS 7 Secretary of Forest, State of Himachal Pradesh; (v) Member Secretary, State Environment Protection and Pollution .
Control Board, (vi) Director of Town and Country Planning Department, State of Himachal Pradesh; and (vii) Pradhan, Gram Panchayat Koro, to remain present on 17.10.2022 at 2.30 p.m. in the Chambers.
10. We request the learned Advocate General to appear in the matter and assist the Court.
( A.A. Sayed )
Chief Justice
27th September, 2022 ( Jyotsna Rewal Dua )
(priti) Judge
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