Lessons up the hill

On 18 September 2008, the Central Empowered Committee (CEC) of the Supreme Court's Godavarman bench finalised a set of well placed, straightforward and strong recommendations in Application No.1018 - which dealt with the irregularities in the construction of a parking lot and a bus stand in Mcleodganj, Himachal Pradesh.

This is a case I have written about previously in India Together (see here and here), and partly this article is a follow-up to the earlier ones. But this update is also relevant for another, important reason. The CEC's report calls for the demolition of one illegal structure, the rectification of another, and - most importantly - blacklisting the project consultancy firm that had carried out illegal activities. If these recommendations are accepted by the Supreme Court, they will set an important precedent in regulating the way construction should take place in sensitive hill stations all across the country. It would also send out a signal to many other violators - and there are countless number of them - that the law may finally be catching up to their brazen-ness.

To recap, the key arguments of this case are as follow: two tracts of forest land had been cleared in 1997 and 2001 to establish a parking lot and bus stand in Banoi Reserve forests. The land diverted for the parking lot was 0.093 hectares and for the bus stand was 0.48 hectares. But the project authorities, M/s Prashanti Surya Construction Company had instead used the land identified for the parking lot to build a commercial complex and a hotel instead. At the bus stand site too, there were major deviations in the construction.

There were three hearings of the CEC in this case on 21 May, 10 July and 31 October - all in 2007. The Chairman of the committee also carried out a site inspection on 27 September 2007. As the case began to be heard by the CEC, some other very interesting and complex facts came to light which took the case beyond the scope of the Forest Conservation Act (FCA), 1980 under which the land was diverted for non-forest use in the first instance. It turned out that violations of many other kinds had taken place.

• The laws and rules pertaining to Town and Country Planning have a very significant role to play in the planning for development in sensitive hill areas. The CEC, in its report, notes that M/s Prashanti Surya started the construction of the bus stand complex in December 2005, without its drawings being approved by the concerned Town and Country Planning Department (TCPD). In fact the drawings were received by the TCPD only three months after the construction began. The TCPD also kept pointing out that the construction was in violation of zoning regulations for the land, but the HP Bus Stand Management and Development Authority (from whom the developer had leased the land) paid no heed to this.

• Eight months after the construction began, officials of the HPBSM&DA engaged an engineering consulting company to compare the drawings submitted by the construction company at the time they had bid for the project and those later submitted to the TCPD. Naturally (since the original approval was for a parking lot, and the actual construction was a hotel) major differences were found. The consultants clearly recorded that there were "major deviations" in the conceptual plan which is not permitted as per the contract. At the same time the TCPD issued notices to M/s Prashanti Surya for violating the Himachal Pradesh Town and Country Planning Act, 1977.

• Meanwhile, there was a parallel attempt to 'regularise' the illegal construction. In May 2007, the northern regional office of the Ministry of Environment and Forests (MoEF) in Chandigarh received a proposal from the Himachal Pradesh State Government to change the land use in the already approved proposals for the bus stand and parking place. This was when the construction was on in full swing in violation of the purpose for which clearances were granted. In June 2007, the MoEF regional office rejected the proposal and asked the state government to stop the work on the project.

• The CEC report records that there are huge variations in the area being constructed by M/s Prashanti Surya, compared to what was permitted. Although only 6459 square metres of construction were envisioned originally, the Board of Directors, HPBSM&DA approved the construction of an additional 1600 square metres for commercial use. Quite interestingly, the additional area was added under the chairmanship of G S Bali, the then state Minister for Transport, Tourism and Civil Aviation, who was also the chairman of the HPBSM&DA.

With all these facts in hand, as well as from the submissions made by the applicants, the allegedly violating company, TCPD and the state government, the CEC report concluded that there have been gross violations of law in this case. And its clarity on understanding the violations is followed by a strong set of observations and recommendations. The CEC report does not mince any words and clearly states, amongst other things that:

• the deviation in construction could not have been possible without the "... active connivance and support of the senior functionaries of the HPBSM&DA and the state and indicates blatant nepotism towards M/s Prashanti Surya."

• the CEC does not agree with the contention of the concerned company that the project has been undertaken in public interest and that the construction of a "small hotel is for public service."

• the five storey hotel structure with 40 rooms and shopping complex on forest land is totally unauthorized and illegal. It has been allowed to come up knowingly and brazenly in a location which is already facing serious parking problems and traffic bottlenecks. The same is for the bus stand complex, and the TCPD is yet to give approval of the same.

Based on these and several other substantive observations and conclusions, the CEC report recommended very clear cut and hard hitting steps. It vehemently states that "there has been absolute anarchy in the matter of construction of the parking space and Bus Stand. At the same time there is a very real need in Mcleodganj for both the parking space and Bus Stand complex on the two pieces of forest land. With a few to finding a way out from this terrible muddle created by the deep vested interests and at the same time ensuring that those who have connived in the serious lapse are not allowed to go scot free the following is recommended.".

To state a few:

• the complete demolition of the hotel structure and that the forest land should be cleared of debris within three months. Followed by this the parking place originally envisaged should be constructed after the approval of the TCPD.

• rectification in the serious shortcomings in the construction of the Bus Stand Complex after the approval of the TCPD. For this a committee needs to be set up under the Chairpersonship of the Chief Secretary of the state. This committee is to propose in two months how the bus stand can be salvaged from the present mess.

• the state government of Himachal Pradesh needs to take the blame of the collective failure and serious lapses on the part of the officials and others connected with the illegal construction. Therefore the state government should deposit an amount of Rs.1 crore in a special fund for conservation and protection of wildlife.

• the state government to identify and initiate stringent and deterrent action against all the concerned persons for "complete abdication of their responsibility and accountability in the matter of governance and who are responsible for blatantly allowing" the construction.

• M/s Prashanti Surya Construction Company should be blacklisted and penalized.

This report is still to be accepted by the Supreme Court. If that happens it will send out a very important message to the rampant unproven illegalities that are taking place many of the hill stations across India. The conservation of these pristine habitats is very important to retain their ecological balance. As an MoEF report of 2002 states "Good healthy hill areas, besides being prosperous themselves, also bring prosperity downstream. Similarly, degraded hill or mountain areas bring poverty and drudgery downstream. Therefore, it is important to maintain the environmental balance and economic and social viability of hill areas, both for the sake of mountain inhabitants and for those living in low land areas." (Determination of Environmental and Ecological Sensitivity of Hill Stations- A report by the Ministry of Environment and Forests, 2002).

The wake-up call long ago went unheeded. Now, perhaps the alarm bell will inspire action to remedy that failure.