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.
I understand a review application has been filed but you are quite right. It is a death knell and there seems to be no light at the end of the tunnel.
ReplyDeleteNot filed yet, Mr Kotwal, but the petitioners are considering one. It is, however, a long, lonely and uphill battle for them, one they are waging with their own funds and with the odds stacked against them. One no longer has any positive expectations from the judiciary where wheels turn within wheels, if you get my drift. But what shocks me is the utter silence of the citizens of Shimla, counting their tourist dollars, and the retired bureaucrats of the state, content to live in the world of Whattsapp forwards-and to hell with what is happening/likely to happen to their own town! Not one word of protest or support for the petitioners. I guess they deserve what they will get, but, sadly, this historic town does not.
ReplyDeleteAlthough politicians supposedly get elected to "serve" the people they represent, what is happening to Shimla and other hill stations clearly shows that SELF before all ELSE continues to be the raison de-etre of our brand of politics and its practitioners. It would come as no surprise that most politicians including present and past ministers or kin etc. have goodly plots in the 17 Green belts slated to go under the axe! What is more disheartening is that the Judiciary (Supreme Court in this case) has run away from the real issue citing indefensible technicalities. For those who have known Shimla of yesteryear, it is now quite puzzling as to why tourists come to this concrete and tin shack city anyway? It cannot be for "tourism" alone. And, it is not just the retired bureaucrats who are on WhatsApp etc. but the serving ones too. Esp. when looking for 'plots' in Shimla's green belts. The ordinary citizen has been rendered helpless by the Power of the Crooked which includes those one thought one could turn to in times of despair.
ReplyDeleteEvery grouse of Mr. Shukla’s against the government and the Supreme Court is legitimate. A unified, cohesive effort from all those affected directly may achieve an outcome similar to the one evinced by the Chipko movement years back. Not by sticking to the trees, but to the petition. Crowdfunding may be the means to plumb the money for a project as desperate as this.
ReplyDeleteIf the government is shifting the goalpost on the field, the hapless citizens are running after the football without a team. So one senses upon reading Mr. Shukla's wail of despair.
Nice writeup. HP govt can't run a cafe in the townhall how can one expect them to plan a city
ReplyDelete"The Indian population of Simla was composed overwhelmingly of outsiders to the district during the summer season, and a substantial minority were outsiders to the province of Punjab as a whole. Among the lowliest inhabitants were the sweepers, who consisted largely of untouchables from the Jullundur and Hoshiarpur districts to the west of the Simla hill states. Poverty-stricken peasants from these districts as well as the Kangra hills north of Simla filled the ranks of the rickshaw-coolie force. Most of the porters who carried heavy loads through the station, as well as many construction workers, came from Kashmir and Ladakh. Taken together, the porters, rickshaw coolies, sweepers, and other low-skilled laborers made up about 20 percent of the employed Indian population, according to the summer census of 1904.[31] Another 25 percent or so of the population consisted of shopkeepers and other merchants, petty artisans, and a small contingent of professionals. Soods from Kangra and, to a lesser extent, the Punjab plains dominated this sector of employment. They counted among their numbers lawyers and doctors, moneylenders, timber contractors, forest lessees, and traders in various goods. They owned the greater part of the lower bazaar, as well as properties elsewhere in the station. Other groups found niches in commerce as well, including Jain shopkeepers, Sikh building contractors and tailors, Kashmiri shawl and dried-fruit merchants, and Punjabi Muslim butchers. Another 12 percent of the Indian working population consisted of government clerks, most of whom were Bengalis until the government began to recruit Punjabis in significant numbers in the early twentieth century. Finally, servants were the largest single occupational category among the Indian population of Simla, constituting 37 percent. This category probably included the chaprassis (office messengers) who carried out menial tasks for government agencies. They came for the most part from the neighboring hill states. Unfortunately, we know a good deal less about the large number of domestic servants in private homes. Anecdotal sources suggest that they were an extremely mixed group, with local peoples dominating the lower ranks, especially as bheestis and mehtars, while the more skilled employees, such as khansamahs and khitmatgars, often came with their employers from sundry parts of northern India."
ReplyDelete"Although the massive influx of seasonal laborers to the hill stations produced dreadfully overcrowded and unsanitary conditions, the British were initially reluctant to acknowledge, much less confront, this problem, clinging instead to the illusion that their highland retreats were pristine and unpolluted. It was especially easy for the British to ignore the conditions in the bazaars since so few of them ever entered those areas, but the neglect of sanitation requirements extended quite literally into their own backyards. "Very few private houses in Simla," reported municipal officials in 1877-78, "were provided with latrines for the use of servants and natives living in the compounds, many had only mere mat or wooden enclosures, and all were of such faulty construction as to be most offensive. Individual employers simply assumed that their servants would fend for themselves, as they generally did on the plains."
ReplyDelete"The outbreak of plague at the end of the nineteenth century was used to sanction another policy for controlling the influx of Indians to the hill stations.[59] In Simla the British opened medical-inspection posts on the main routes into the station in 1899. The most important of these posts was at Tara Devi, one of the final stops on the train journey to Simla. All third-class passengers were required to disembark for a physical examination that seemed designed to humiliate them. Those suspected of carrying contagions were turned away; the rest were fumigated and their belongings disinfected. The post continued to operate long after the epidemic had subsided. In 1926, vehement protests from Indians persuaded the Punjab's director of public health to close the inspection post, which he condemned as "that medieval anachronism," but others missed its powers, and it reopened in 1930. It was widely thought to have been used to prevent nationalist agitators from entering Simla. Sanitation policies and other public health measures were not the only means by which the British sought to regulate the Indians in their midst. In 1883, the Municipal Porter's Act was enacted in response to what local authorities described as "insolent, clamorous and turbulent" behavior and "extortionate" fee demands by the stations' porters. The act regulated porters' rates, required them to obtain licenses and wear brass identity badges, and imposed penalties on those who deserted or otherwise failed to fulfill their terms of service. Legislation was introduced in Simla, Mussoorie, and other Himalayan hill stations. The Simla municipality introduced a bylaw in 1891 that prohibited all porters, except those carrying the baggage of European visitors, from appearing on the Mall from 4 to 8 P.M. between the months of April and October—when, in other words, the Mall was most heavily frequented by Europeans. Simla went even further, cutting a tunnel under the Mall in 1905 to divert coolie traffic from the notice of Europeans. Whatever other purposes these road projects and labor regulations and sanitation measures were intended to serve, each had the effect of making the Indians' presence less visible and vexatious to the British."
ReplyDelete"Above all, however, the use of topography made the Indian inhabitants of the hill stations "invisible." The British understood the symbolic significance of altitude. As one of them put it, "Nothing is more likely to maintain British prestige than the occupation of commanding ground by the British race." Invariably, the British took the high ground for themselves, consigning the Indians to the lower elevations, where they were usually out of sight and out of mind. This practice was especially apparent in the Himalayas, where the precipitous terrain favored the strict segregation of Briton and Indian across a vertical plane. British justified this use of topography, as they did so many other measures to separate themselves from Indians, on sanitary grounds: The natural separateness of the European from the Native part of the town . . . is of supreme importance from a sanitary point of view. Above, the air is fresh and pure, and cannot be contaminated by that below. The undulating surface and slopes of the hills carry away in their surface drainage all decaying matter and there is no chance for stagnation. So distinct are the two localities, that they bear but slight relationship [to one another]. In Simla, the government deliberately reinforced this association by providing senior officials with fine houses upon the ridge, English and Anglo-Indian clerks with cottages along the slopes, and Indian clerks with rooms in dormitories further below. As long as the Indians remained sequestered in the bazaar wards at the lower reaches of the hill stations, the British could to some degree retain their illusion of seclusion. As one visitor remarked about the Simla bazaar, "This is a place where no Europeans ever dream of going." They had no reason to do so, given the physical and social structure of the hill stations. But when Indians began to infiltrate the station wards that the British themselves inhabited, this illusion experienced intolerable strains."
ReplyDeleteSuch a sad commentary on what USED to be called, and rightfully so, the Queen of the Hills.
ReplyDeleteAll that one sees there now is ugly urban sprawl which simply continues to expand ever outward, eating into more of what used to be lovely forests and grasslands.
Just don't understand how this could be passed off as being 'development'?