Above Photo: Inderjit Badhwar

The apex court’s dismissal of the petition filed by a resort against a demolition order by NGT is a boost to green activists and residents campaigning against illegal constructions in the hills 

~By Sucheta Dasgupta

It is no small victory for residents of Kasauli and the National Green Tribunal (NGT). On June 21, the Supreme Court refused to stay or amend the May 30 demolition order of the NGT against Chelsea Resorts for flagrant violation of construction rules and environmental norms.

The apex court ruling will have huge ramifications for all properties that have either been raised or expanded illegally in this beautiful hill town in Solan district of Himachal Pradesh. It was once known for its pristine environment but is currently under tremendous ecological pressure from “development” (read unbridled commercial) activity.

The Supreme Court order also comes as an important victory for SPOKE (Society for Preservation of Kasauli and its Environs), the original applicants in the NGT case. This non-governmental organisation was founded by former Indian ambassador to the US BK Nehru, who was its first president, Sampooran Parashar, its first secretary, the late Baljit Malik, social activist, Rabindra Grewal, a long-time resident, and others. SPOKE has been fighting to protect the environment of Kasauli for over 25 years.

On May 30, NGT had slapped a heavy fine on five hotels in Kasauli and asked authorities to demolish illegally constructed portions of their buildings. Two more hotels were named in a separate judgment and asked to pay fines. A bench headed by NGT chairperson Swatanter Kumar had pulled up Bird’s View Resort, Chelsea Resorts, Hotel Pine View, Narayani Guest House, Nilgiri Hotel, Hotel Divshikha and AAA Guest House for causing irretrievable damage to the ecology, polluting the environment and raising unauthorised constructions. The Tribunal had imposed a fine of Rs 5 lakh each on Bird’s View Resort, Hotel Divshikha and AAA Guest House, Rs 7 lakh each on Chelsea Resorts, Hotel Pine View and Narayani Guest House and Rs 10 lakh on Nilgiri Hotel. The Court gave six weeks’ time to the Himachal Pradesh Pollution Control Board to file a report that it has completed the razing.

Each of these properties had built floors and blocks beyond the sanctioned plan. For instance, Hotel Pine View had constructed a seven-storey structure in two inter-connecting building blocks as against only three storeys in one block that was approved. Narayani Guest House constructed a six-storey building, while Nilgiri Hotel had constructed four extra storeys.

All parties appealed to the Supreme Court challenging the NGT order. On June 16, the apex court issued notices staying the demolitions of Bird’s View Resorts, Hotel Divshikha and Narayani Guest House until further hearing.

However, in the case of Chelsea Resorts, the two-judge bench dismissed the petition. Citing photographs of the spot, the bench, comprising Justice DY Chandrachud and Justice Sanjay Kishan Kaul, said that since the property is not developed, the owner does not qualify for the amnesty scheme applicable only to buildings existing for some years. It also said that the owner had expanded the property by two blocks over its sanctioned plan and cut into the hillside to set up a parking lot. As a result, there was a landslide in the area as well as severe pressure on groundwater.

The resort had told the bench that the building was under construction and the order passed by the Tribunal, premature. Only the structure is complete, said the counsel.

The bench took the argument on from that point. “Your pictures show your property is not developed, so you cannot claim the cover of an amnesty scheme. That scheme is for already constructed buildings which have been in existence for long,” it said.

“My other point is, it was a suo motu petition by the NGT, without any complaints, and the tribunal has no jurisdiction. The order is a sweeping direction to remove the entire construction not only the unauthorised construction,” the petitioner argued.

In December 2015, SPOKE had moved NGT over a 42-room property being planned on the narrow Khetarpal Marg in Roscommons Annexe. “It was in the wrong place. Apart from the ecological impact, which would be huge, it would cause massive traffic congestion,” Brigadier WS Choudary (retired), the incumbent SPOKE secretary, had said. The case was filed against the Himachal Pradesh Tourism Department Corporation (HPTDC), an experts’ committee report was filed by the central groundwater department and a stay was made on that basis.

However, this opened up the proverbial can of worms. About 72 new hotels, mainly privately-owned, had come up outside the protected Cantonment area, and they were operating without requisite authorisation for digging borewells from the groundwater department. Further, they had no sewage treatment plants, had a permit for only a few rooms but were building several blocks and storeys, and were flouting PCB rules with impunity. About 11 of these hotels were asked to respond to the expert committee report. The aforementioned hotels were among them.

“You were permitted to build two blocks and you build four. You have done hill cutting, you constructed a parking lot.”

                                                                                                     —SC bench to the owners of Chelsea Resorts

So, the Supreme Court bench had this to say to Chelsea: “You were permitted to build two blocks and you build four. You have done hill cutting, you constructed a parking lot. Water cannot be supplied to the property. There were landslides due to the same…. We are convinced that the property is under construction and, therefore, does not attract the amnesty scheme.” “Hence the petition is dismissed,” it ruled.

“The top court order is certainly a step in the right direction. It is a shot in the arm for the NGT, which will now feel more encouraged and put its foot down on various other illegal constructions in the region,” Grewal, CEO and chairman of Sting Broadband, and a founding member of SPOKE, said.

The case has been argued on behalf of SPOKE by Paramjit Singh Patwalia, additional solicitor general for Supreme Court. Brigadier Choudary called the judgment, a “victory which bodes well for the future of Kasauli”.

An earlier SPOKE petition led to the NGT on March 6 quashing the state pollution board order granting consent to HPTDC for setting up the 42-room hotel-cum-museum at Roscommon Annexe. But there are many other battles that the NGO still has to win.

The appeals of the other hotels contesting the NGT order have not yet been listed for hearing. The cases of Bird’s View, Divshikha and Narayani will come up for hearing on July 11. The mood now is upbeat and it’s hoped that the construction lobby’s siege on Kasauli will be lifted shortly.