In a second jolt after banning of construction by the National Green Tribunal (NGT) in Shimla Municipal Corporation areas recently, the Himachal Pradesh High Court today strikes down the amendment provisions made in Himachal Pradesh Town and Country Planning TCP Act by the last Congress Government just a year ago. Passing the verdict on a petition filed by the petitioner Abhimanyu Rathore, the Court held that retention policy brought after promulgating the ordinance to allow one settlement of unregulated construction followed by the amendment in the concerned act is ultra vires to the constitution of India.
The Division bench striking down the amendment and giving another major blow to more than 9000 house owners and other builders who had applied under the scheme. The Division bench of acting Chief Justice Sanjay Karol and Justice Tarlok Singh Chuahan passed 86 paged judgment today deciding to strike down the section 30 (B) of TCP Act which allows one-time settlement in the TCP Act and MC planning area of this hill state.
The Court held that insertion of section 30-B by the amending Act is contrary to the object and purpose of the Principal Act, as also ultra vires the Constitution of India, as such we strike it down. The Court also held that Judgment rendered in Consumer Action Group is clearly distinguishable, having no binding effect on the grounds of assailing the validity of the TCP Act. The bench also commented on the recent National Green Tribunal order issuing certain directions of the construction activity to be carried out within Shimla Town, under the Planning and the Corporation Acts.
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The order said that it did not deal with the tribunal recent order and expressed the opinion with regard to the constitutional validity of the amendment act. It is worthwhile to mention here that state government amended the said act with effect from Jun 15 2016, whereby constructions raised by anyone, anywhere and in whatever manner and extent, except for few exceptions, are sought to be regularized by the State.
The State Government has brought this amendment to address the issues of regularization of unauthorized constructions raised in contravention of the provisions of the Himachal Pradesh TCP Act, 1977 by bringing Retention Policies or the guidelines from time to time in the past. Under the said Retention Polices OR Guidelines, total 8,198 cases of un-authorized construction were received, out of which 2,108 cases were retained and remaining 6,090 cases are yet to be regularized. At the moment, there are about 13,000 un-authorized buildings to March 2016 in the notified Planning and Special Areas.
Government pleaded before the Court that demolition of such a large number of unauthorized constructions is neither feasible nor desirable as it would result in undue hardship to the owners and occupants. State Government maintained that this practice was followed in other metropolitan cities of the Country to deal with violated constructions by charging deterrent composition fee instead of demolition of large scale un-authorized constructions which are neither feasible nor practicable for many reasons.
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