Himachal High Court stuns builder mafia, greedy politicians in latest order

In an order that will have far-reaching ramifications, the Himachal Pradesh High Court has struck down the 'HP Town and Country Planning Regularization Amendment Act, 2016' that allowed regularisation of both residential and commercial unauthorised structures in the state by paying a compounding fee.

The order is a scathing indictment of the politicians in the state from both the Congress as well as the Bharatiya Janata Party (BJP) who have brought the state on the brink of a disaster by turning a blind eye to the rampant illegal construction in their greed for votes.

The system in almost every town and city is crumbling because of their lack of foresight and ignorance of the huge cost that the people are paying because of the damage to the environment.

Eying petty political gains, both the BJP and the Congress governments have shamelessly allowed rampant illegal construction while ignoring the fact that the state lies on a high seismic zone with a fragile ecology.

In its quest for public support, the outgoing Congress government led by Virbhadra Singh had come out with a populist move making an amendment to the Himachal Pradesh Town & Country Planning Act, 1977 by inserting a new section 30-B.

The state Assembly had passed the Bill in August last year that included the provision to regularise all construction on 'as is where is basis' while giving no concession to unsafe buildings. The Governor Acharya Devvrat had given his assent to the controversial legislation in January after seeking certain clarifications, much to the dismay of activists and concerned citizens. The high court had stepped in on time stay the implementation of the Act in April 2017.

Now the decision by a Division Bench comprising Acting Chief Justice Sanjay Karol and Justice Tarlok Singh Chauhan has provided the much-needed relief.

The court has reportedly observed, “Evidently, from the perusal of provisions of the Planning Act, the Municipal Corporation Act and the Municipal Act, all activities of building are controlled and can be carried out after obtaining sanction from the authority concerned. Not only that, such construction has to be carried out in consonance with the sanctioned plan and any construction beyond the sanctioned or compoundable limit is illegal.”

It has also underlined that the insertion of Section 30-B by the amending the Act is contrary to the object and purpose of the main Act, as also 'ultra vires' of the Constitution of India.

The court has clearly underlined, “The enactment tantamount to saying that 'the violation of law is permissible if one has the means required to pay for such violations'.”

The court in its 86-page judgement has also observed that the amending Act is, in fact, a legislation for a class of dishonest persons. The judges have held the amendment to be violative of Article 14 of the Constitution, being 'manifestly arbitrary, irrational, illogical, capricious and unreasonable'.

The court has come down heavily on the state pointing that the despite the mechanism for enforcement of the three enactments in place, successive governments not only repeatedly allowed rampant growth of concrete jungle but 'relentlessly pursued the policy of appeasement by promoting and propagating dishonesty, for regulating unauthorized possession (Encroachment Policy) or unauthorized construction (Retention Policy)'.

The government had so far reportedly received 8,782 online applications for regularisation of unauthorised structures.

The court has correctly given an example saying, “illustratively, if in a highly Seismic Zone of a hilly terrain, a building like Qutab Minar constructed, undoubtedly, it would get regularized. In other words, all illegal acts committed by an owner in violation of statutory provisions, as contemplated in the Planning Act, get condoned by one stroke of the pen and that too without any accountability.”

It has also pointed, “The object of the Act is not to collect a fee or to utilise the same for any development. Hence, the collection of an amount, being the compounding fee, is not the answer. Nor would it work as a deterrent or make the authorities to perform their functions. However, by virtue of the impugned amendment, State has created a separate and distinct class, which consists of those persons who may have or may not have any sanction to carry out any development activity and yet would stand regularized.”

The court has pronounced that the effect of such regularization on safety, in terms of fire and traffic remains ignored. The fragile ecology of the State warrants demolition of all illegal constructions, which are beyond the planning and permissible limits.

“We repeat, excessive construction in an unplanned manner, only results into depletion of the source of civic amenities, burdening the stakeholders for providing the same, beyond their limited resources and capacities,” it said.

RTI activist Prem Singh Tanganiya who has been waging a battle against the builders indulging in illegal construction said, “This is a landmark judgement and a victory for the honest people. Demolition of all the illegal structures should now be ensured.”

Rajeev Kaundal, another social activist who has been fighting against the plundering of natural resources in the state told Catch, “The judgement exposes the politics of the two main parties in the state. Who will be responsible if hundreds perish in a natural disaster? The courts are the only ray of hope for the people. This is a judgement that has emboldened those fighting to save the state from the greed of a few.”

Following the high court directions in another matter, the power and water connections of around 150 hotels that have come up illegally in Dharamshala have been snapped. With the state expected to have a fresh face as the new chief minister, preserving the environment should be one of high-priority areas of the new government.

“This has been a good season to bring back the rule of law in the hills.First came a series of tough green court orders on #Shimla and #Himachal and now the illegal retention policy goes for a big six,leaving the builder mafia,law breakers and vote-hungry politicians stunned !” is how a senior political analyst has put it in a tweet.