With around 2,000 people who are thought to be buried under rubble after a landslide that occurred in Papua New Guinea’s mountainous Enga region on the 24th of May, 2024, the Papua New Guinea authorities have stated that nearly 7,900 people living near the site of the deadly landslide were “at risk” as rock and debris continues to move down the hillside.
In dealing with the implication of hill cutting, it needs to be highlighted that slope instability is one of the most frequent disasters in mountains.
In placing reliance on a decision of the Supreme Court in Director General (Road Development) National Highways Authority of India vs. Aam Admi Lokmanch 2020 SCC OnLine 572, the proceedings to the Supreme Court were carried from an order passed by the National Green Tribunal wherein it had been directed that the instructions may be issued to the Municipal authorities to ensure that no construction permission shall be given to any construction/development work, which is being proposed and is located at a distance may be of 100 ft. away from lowest slope i.e. incline of any hill within its territorial limits, as well as hill-tops, except for Bamboo cottages.
In a Judgment of the National Green Tribunal (Western Zone Bench, Pune) in the matter of M/s. Nanu Estates Pvt. Ltd. Vs Sayed Tayeeb & Others dated: 08.01.2016 regarding illegal hill cutting by the Town and Country Planning Department, Government of Goa which is resulting in a change in natural drainage pattern and increase in instances of hillslope instability and landslides, thereby adversely affecting the environment.
NGT directed the respondents authorities to initiate action against Respondent No.7 for hill cutting i.e. without permission and/or being in excess of any permission granted for hill cutting, is without such mandatory statutory permission for the same, including action under Section 17B of the (Goa) Town & Country Planning Act.
In a batch of Writ Petitions before the High Court of Judicature at Bombay in Writ Petition No. 2665 of 2018, by the bench of justices S.C. Dharmadhikari & Smt. Anuja Prabhudesai, JJ, as per the observations by Justice S.C. Dharmadhikari:
“5. The short point involved is that acting on the directions of the NGT, the State of Maharashtra purported to invoke its powers under section 154 of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”) to direct that insofar as the hilltops and hill-slopes are concerned, no development is permissible on hill-tops and on the hill-slopes having depth of less than 1.5 and, therefore, the area surrounding/abutting to hills and within 100 feet should not be used by exploiting additional FSI or TDR. The other direction is that insofar as the approved development plan is concerned, the portion admeasuring 100 feet abutting a hill, though permissible to be developed, while granting development permission, the 100 feet area as above shall be declared as non-buildable. That can be used as an open space or a road. Thus, the issue is whether the State Government can direct as above in exercise of its powers to issue directions conferred by section 154 of the MRTP Act, 1966.”
In the case of Susetha vs. State of Tamil Nadu, reported in (2006) 3 SCC 549 the Hon’ble Supreme Court, while relying on Articles 21, 48-A and 51-A(g), held that while considering the challenge to competing claims of environment and housing, the court must bear in mind that the responsibility of the State to protect the environment is now well accepted notion in all the countries. The two Articles, together with the duty of the State, would enable the court to understand the scope and purport of the fundamental rights guaranteed by the Constitution, including Articles 14, 19 and 21 as also the various laws enacted by the Parliament and the State legislatures. All human beings have a right to healthy environment commensurate with their well being coupled with the corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as future generations can avail of them equally. These have to be held in trust by the State. It is in position of a trustee and guardian of the public.”
In M. C. Mehta vs. Union of India and Ors .reported in 2004(12) SCC 118, it was impliedly enunciated that if an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be damage to the economic interest. In case of doubt, however, protection of environment would have precedence over the economic interest. The harm can be prevented even on the suspicion. It is not always necessary that there must be direct evidence of harm to the environment.
In the case of Kausarbag Cooperative Housing Society Ltd. vs. State of Maharashtra & Anr. (2003) 5SCC 413, there was an attempt by the State Government to override the provisions of law by taking recourse to the unamended section 154 of the MRTP Act. That is why the Courts consistently held that a power to issue directions to ensure efficient administration of the Act will not take in its sweep a power to override other provisions of the Act and the procedure prescribed therein, especially for amending the Development Control Regulations and the Development Plan itself.
Recently, the Himachal Pradesh High Court on the 30th of January, 2023 banned the cutting of hills without prior permission from the Town and Country Planning Director. The Himachal Pradesh High Court thus directed the State government to frame a policy for conservation, preservation and cutting of hills in consultation with the Department of Environment, Science and Technology and such other departments, as may be necessary.
The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences
