When the epitaph of Shimla is written in the not too distant future, as is inevitable, it will be recorded that its death warrant was issued on the 11th of January, 2024, when the Supreme Court chose to go by legal technicalities and assurances of the state govt. rather than on merits of a case, ignoring in the process ground realities and the opinions of any number of experts and environmentalists. Some background first to put the matter in perspective.

[Collapsed buildings in Shimla. Photo courtesy the TRIBUNE, Chandigarh]
In November 2017, acting on a PIL by a concerned citizen regarding the rapidly deteriorating environmental conditions in Shimla, the National Green Tribunal had imposed severe restrictions on future constructions in the city, including a ban on any new construction in the vital core and heritage zones and in the 17 Green Belts which are thick forested areas; it restricted buildings in the rest of the town to two and a half storeys. It did so on the evidence of rampant violations of the town’s Interim Development Plan, destruction of the green cover, the seismic vulnerability of the city, unrestrained building activity on steep slopes, the risks to the citizens, and the government’s repeatedly demonstrated inability/unwillingness to control these activities.

The state government filed an appeal in the HP High Court but it did not get a stay of the NGT’s order. Environmentalists and the older residents of Shimla heaved a sigh of relief, hoping that now at least this once lovely town had been given a chance to recover from the ham handed and short sighted “development: inflicted on it over decades. But these hopes were dashed when the government suddenly published a draft of a new Shimla Development Plan 41 (SDP41) in June, 2022 . This document, probably the most suicidal decree by any govt. in the last 40 years, overturned every direction of the NGT and practically threw it in the wastebin. Purportedly a blue print for Shimla for 2041, it provided, in brief:

* Tripling the population of Shimla to seven lakhs by 2040.

* Opening of the 17 Green Belts, comprising 400 hectares of the only remaining green cover in the town, for construction.

* Permitting construction in the Core and Heritage zones.

* Allowing buildings upto 5 storeys in the remaining zones, in place of the existing 2.5+1.

* A vision of going “vertical” in pursuit of its expansion plan.

* It failed to take into account, or deliberately ignored, the seismic vulnerability of the city, its depleting green cover, the lack of space or open areas, the geographical limitations on building more roads, the lack of parking space, and the effect of the increased traffic volume that any expansion would entail, the existing constraints in ensuring supply of basic needs like power, water and garbage disposal systems.

The draft SDP 41 was immediately challenged by one Ms Minocha in the NGT as violating the NGT order of 2017, which struck it down. The state govt. predictably filed another appeal, this time in the Supreme Court  which first allowed the state to notify the SDP but not implement it for one month (does this make any sense to you?), and finally on Jan 11, 2024 set aside both the NGT orders and declared the Plan legally valid.

It did so, not on merits (which the NGT had considered at length) but on a technicality and a brief, prima facie overview of the SDP, supported by platitudes that sound lofty but are not convincing. It did not go into a detailed examination of the points made by either the petitioners of the NGT. To justify its  decision the Court held as follows[ my layman’s response to each point made by the Court is given in italics in the brackets following them):

* The NGT  had usurped legislative functions by blocking the SDP.

* It had indulged in judicial overreach and ignored the doctrine of separation of powers.

[ Both the above observations are ad-hominem arguments that evade the real issue and seek to hide behind the thicket of legalese. The NGT is a statutory body that is tasked with protecting the natural environment and enforcing the rights of the citizens to a healthy, unpolluted and safe life- in fact, these rights are an extension of the fundamental right to life, as the SC itself has stated on many occasions. Moreover, if the higher judiciary can indulge in suspiciously similar “overreach” in ensuring reemployment for its members post retirement in various Tribunals and Commissions,  in providing perks and facilities for them, and in creatively interpreting the Constitution to justify the striking down of the NJAC (National Judicial Appointments Commission), then surely it could have shown the same creativity on an issue that effects the lives of lakhs of people? (Not for a minute am I suggesting that the examples cited above were wrong-I generally agree with those orders- but what I AM stressing is that judicial interpretation should keep in mind the merits of a case and the public cause, which has not been done in this case.]

* Statutory plans, once formulated, should not be altered by judicial bodies unless there is a constitutional basis to question their constitutionality or legality.

[ The SDP 41 was clearly, and blatantly, in violation of the NGT order of 2017, which  had not been stayed by any higher court. Therefore, the Plan was certainly invalid legally, if not a contempt of the court itself. The intervention of the NGT was also justified by the broader interpretation of the right to life, as already mentioned in the para above.]

* It emphasised on the need to balance development with environmental protection.

[ This is pure lip service platitude, nothing else, and exposes the real weakness of the Supreme Court judgment- its total failure, or unwillingness, to examine the merits of the case. The NGT , on the other hand, had done so in great detail and had even appointed an expert committee to review Shimla’s environmental status. For the situation in Shimla (and indeed the rest of Himachal) is no longer one of maintaining a balance between development and the environment (as the SC seems to think) but one of correcting the existing imbalance which is dangerously skewed in favour of “development”. Strong and immediate affirmative action is needed to restore this balance; the SDP 41 further skews and distorts this balance and it is unfortunate that the apex court could not see the woods for the trees, even though there are not many trees left in this sorry town]. 

*The SC added, as a sop to the concerned citizens of the town, that they could separately raise challenges to specific provisions of the SDP, particularly on environmental or ecological concerns.

[ But this is exactly what was done by the petitioners before the NGT, twice, which upheld these challenges! The SC order simply avoids taking the correct decision and only encourages further litigation!] 

 What is astonishing is that the SC simply ignored the mountain of evidence that proves that the SDP shall only make a bad situation worse for Shimla. Some of these are:

A recent report of the SDMA (State Disaster Management Authority) that landslides in HP have gone up three times in just the last 3 years and are attributable to over construction and inadequate drainage.

A Disaster Management Plan prepared by the Municipal Corporation, Shimla in 2012, and an EIA carried out by the Deptt. of Environment in 2013, both of which recommended against any further dilution or relaxation in the Town Planning Rules.

* The report of an Expert Committee appointed by the NGT in 2017, consisting of technical experts from NDMA, MOEF, NEERI, Wadia Institute, among others, which observed/recommended, inter-alia:

– Shimla is in seismic zone IV, 85% of its area lies in landslide prone areas, most constructions were on unstable slopes of 45* to 75*, only 20% of the buildings met the standards of earthquake proof construction.

– In the event of an earthquake 39% of the buildings would collapse, resulting in a minimum of 20000 deaths. It admitted this could be an underestimation.

– Shimla had exceeded its carrying capacity long ago and needed to be decongested.

– No construction should be allowed in the Green Belts, Core and Heritage areas and more areas should be brought under the No Construction restriction.

– The existing 17 Green Belts should be expanded and more area brought under forest cover.

* To these recommendations one must add that Shimla has no capacity to absorb any more vehicular traffic- it has about 100,000 vehicles of its own and between 10000-20000 more enter it every day during the tourist season. ( During the last Christmas week 100,000 cars entered the town). Yet, it has parking for only about 6000 cars. Any expansion of the town would completely choke it.

*  There are 17000 illegal buildings in the town, an indication of the govt’s inability to enforce its building plans, even if it were interested in doing so. The new SDP will result in the regularisation of almost all of them, and encourage even more violations.

* The town’s majestic deodars are dying of vehicular pollution, construction dust, compaction of soil due to increasing anthropogenic activity, under cutting of their roots and the changing climate; they have stopped regenerating. Hundreds are felled every year under some excuse or the other, but primarily to make way for more buildings and roads. Without them Shimla will just be seven huge rocks.

If any more proof was needed, the rains of 2023 have provided it. The town was practically immobilised and cut off from the world for almost two weeks, all roads were blocked by landslides, power knocked off. Hundreds off trees were uprooted, dozens of building collapsed, at least 50 lives lost. Further confirmation of the potential for further havoc was provided by neighbouring Uttarakhand and Joshimath.

Surely this indisputable mass of evidence should have persuaded the apex court to not stand on  “technicalities” but to realise the massive potential for disaster that the SDP41 contains within itself.  In my view, it was incumbent on the Court to have posed some queries to the state govt. for instance: Does it make sense to go “vertical” at 7000 feet elevation in the Himalayas, on topography which is prone to landslides and is a seismic zone? Will not construction in the Green Belts further denude the city of its already disappearing green cover? Do the hills of Shimla have the carrying capacity to sustain an increase in population of another  four lakhs ? Where is the space to accommodate another 100000 vehicles, considering there is no road space or parking area in the town? How will the additional garbage and rubbish be disposed off, given that the Municipal Corporation is unable to manage even the existing waste, which has choked the town’s hills and natural waterways? Has the govt. even considered the impact of an earthquake on such a sprawling urban sprawl, and its readiness to respond to it?

The larger public interest demanded that the case needed further interrogation, and, while staying the SDP41, the Court could have remanded the matter to the High Court for a more detailed examination on merits. In my humble view, the SC had an opportunity to display some vision and prescribe a template for urban development in the mountains. Unfortunately, it has chosen to follow the path of least resistance. Its order is disappointing and a warrant of death for Shimla and many of its residents. This once-beautiful, historic town certainly deserved better.

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