Whether the NGT was justified in passing the order dated 14 October 2022 when the High Court was seized of the same issue during the pendency of Civil Writ Petition No.5960 of 2022? The draft development plan for 22,450 hectares of Shimla Planning Area (hereinafter referred to as “SPA”) which was finalized vide a notification dated 16 April 2022, came to be stayed by the NGT, vide an interim order dated 12 May 2022. 5348-5349 of 2019 transferring the said CWP No 5960 of 2022 from the High Court of Himachal Pradesh to itself, which came to be re-numbered as Transferred Case (C) No. Vide notification dated 11 August 2000 issued by the Department of Town & Country Planning (Government of Himachal Pradesh), further amendments were carried out to the interim development plan for the SPA notified by the aforesaid notification dated 24 March 1979. (ii) Direct the State Government not to change the land use in any forests/green belt area as stated in clause d of notification dated 11.8.2000 to protect the ecology, environment and future of Shimla. 7 3.7 Despite the assurance given by the State Government, the NGT, suo motu, extended the scope of the application and vide an ad-interim order dated 30 May 2014 banned all types of construction activities in the Green Belt areas of Shimla covered under the notification dated 7 December 2000.
Also Read: https://newslaw.in/supreme-court/conviction-upheld-for-offence-under-section-342-of-ipc/
Thereafter the first order of NGT came to be passed, whereby it issued various directions to the appellants herein and further banned all kinds of construction activities in core/forest/green areas in Shimla and further restricted the construction and re-construction activities in the entire SPA. It also directed the said development plan to be notified in accordance 9 with law and directed to take into consideration the directions and precautions as suggested in the first order of NGT while finalizing the development plan. It is to be noted that various directions were also issued by the High Court of Himachal Pradesh from time 10 to time in CWP No 4595 of 2011 for finalization of the development plan in accordance with the TCP Act. The appellants herein filed an application in CWP No 5960 of 2022, before the High Court of Himachal Pradesh, praying for amending the writ petition so as to challenge the second order of NGT. We have heard Shri Anup Rattan, learned Advocate General appearing on behalf of the State of Himachal Pradesh, Shri Vinay Kuthalia, learned Senior Counsel appearing on behalf of the Shimla Municipal Corporation and Shri Sanjay Parikh, learned Senior Counsel appearing on behalf of the common respondent No.1 in Civil Appeal Nos.5348-5349 of 2019 and Transferred Case (Civil) No.2 of 2023. It is submitted on behalf of the appellants that a bare perusal of Chapters 12 and 17 of the development plan would go to show that the entire environmental aspects as well as the suggestions and directions of the NGT issued vide first order of NGT have been fully and duly considered before finalizing the development plan. It is submitted that, in order to protect the environment, various stringent provisions have been made such as: (i) “In the core area, only 2 storeys + attic is permitted and parking floor is permitted only in those plots which are accessible by motorable road; (ii) In the non-core area and the Planning Area, only 3 storeys + attic is permitted and parking floor is only permitted in plots which are adjacent to motorable roads; and (iii) Rebuilding and reconstruction of old buildings has been permitted strictly on old lines. It is further submitted on behalf of the appellants that appropriate setbacks have also been made mandatory in order to avoid overcrowding. It is submitted on behalf of the appellants that various directions issued by the NGT are contrary to the provisions of the TCP Act, Himachal Pradesh Municipal Corporation Act, 1994 (for short, “HPMC Act”) and the various Bye-laws, Rules and Notifications framed thereunder and as such, not sustainable in law. Centre for Environment Protection Research and Development and Others, Director General (Road Development) National Highways Authority of India v. Reliance in this respect is placed on the following judgments of this Court: 17 State of Himachal Pradesh and Others v. The learned Advocate General further submitted that the directions issued by the NGT, rather than subserving any public interest are contrary to the public interest inasmuch as vast number of citizens are being put to great hardships and inconvenience. Shri Parikh further submitted that the first order of NGT is based on the report presented by the High Powered Committee appointed by it.
It is submitted on behalf of the respondents that the NGT has rightly issued the directions to re-construct in core area or green/forest area within legally permissible statutory limits of the old buildings and in any case not beyond 2 storeys and an attic floor. Shri Parikh further submitted that this Court in the case of Mantri Techzone Private Limited v. It is submitted that if the directions issued by the NGT, which provide for a precautionary approach, are not followed 22 and the construction activities as provided in the development plan are carried out, it will be disastrous for future generations and will result in calamities like frequent landslides due to floods and earthquakes, cloudbursts and other natural disasters resulting in loss to the human lives and property.
It will be apposite to refer to the Preamble of the TCP Act, which reads thus: “An act to make provision for planning and development and use of land; to make better provision for the preparation of development plans and sectoral plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective to constitute the Town and Country Development Authority for proper implementation of town and country development plan, to provide for the development and administration of special areas through the Special Area Development Authority, to make provision for compulsory acquisition of land required for the purpose of the development plans and for purposes connected with the matters aforesaid.” (2) The State Government may, by notification,- ( a ) alter the limits of a planning area so as to include therein or exclude there from such area as may be specified in the notification; ( b ) amalgamate two or more planning areas so as to constitute one planning area; ( c ) divide any planning area into two or more planning areas; ( d ) declare that the whole or part of the area constituting the planning area shall cease to be planning area or part thereof.” It can thus be seen that under Section 13 of the TCP Act, the State Government is empowered to constitute planning areas for the purposes of the Act and define the limits thereof.
After the expiry of the period specified in the notice published under sub-section (1), the Director may, after allowing a reasonable opportunity of being heard to all such persons who have filed the objections or suggestions, make such modification therein as may be considered desirable. (4) A copy of the notice shall also be published in the Official Gazette and it shall be conclusive evidence of the fact that the map has been duly prepared and adopted.” Under Section 15 of the TCP Act, the Director is required to carry out the survey and prepare an existing land use map 27 and, forthwith publish the same in such manner as may be prescribed together with public notice of the preparation of the map. Section 15-A of the TCP Act deals with “Freezing of landuse pending preparation of existing landuse map under Section 15(1)”.
development plan shall— ( a ) indicate broadly the land use proposed in the planning areas; ( b ) allocate broadly areas or sector of land for,— ( i ) residential, industrial, commercial or agricultural purposes, ( ii ) open spaces, parks and gardens, green belts, zoological gardens and play grounds, ( iii ) public institutions and offices, ( iv ) such special purposes as the Director may deem fit; ( c ) lay down the pattern of National and State highways connecting the planning area with the rest of the region ring roads, arterial roads, and the major roads within the planning area; ( d ) provide for the location of airports, railway stations, bus terminal and indicate the proposed extension and development of railways; ( e ) make proposals for general landscaping and preservation of natural areas; ( f ) project the requirement of the planning area of such amenities and utilities as water, drainage, electricity and suggest their fulfilment; ( g ) propose broad based regulations for sectoral development, by way of guideline, within each sector of the location, height, 29 size of buildings and structures, open spaces, court-yards and the use to which such buildings and structures and land Such notice shall specify in regard to the draft development plan the following particulars, namely:— ( i ) the existing land use maps; ( ii ) a narrative report, supported by maps and charts, explaining the provisions of the draft development plan; ( iii ) the phasing of implementation of the draft development plan as suggested by the Director; ( iv ) the provisions for enforcing the draft development plan and stating the manner 30 in which permission to development may be obtained; ( v ) an approximate estimate of the cost of land acquisition for public purposes and the cost of works involved in the implementation of the plan. Sanction of Development Plan.—(1) As soon as may be after the submission of the development plan under Section 19, the State Government may either approve the development plan or may approve it with such modifications as it may consider necessary or may return it to the Director to modify the same or to prepare a fresh plan in accordance with such directions as it may issue in this behalf. (4) The State Government shall publish the development plan as approved, under the foregoing 31 provisions in the Official Gazette and shall along with the plan publish a public notice, in such manner as may be prescribed, of the approval of the development plan and the place or places where the copies of the approved development plan may be inspected. It is also required to propose broad- based regulations for sectoral development, by way of guide- 32 lines, within each sector of the location, height, size of buildings and structures, open spaces, court-yards and the use to which such buildings and structures and land may be put including regulations for faade control and sloping roof conforming to the hill architecture and environs.
Under Section 19(1) of the TCP Act, the Director is required to publish the draft development plan prepared under Section 18 in such manner as may be prescribed together with a notice of the preparation of the draft development plan and the place or places where the copies may be inspected. Under Section 20 of the TCP Act, after the development plan under Section 19 is submitted to the State Government, it may either approve the development plan or it may approve it with such modifications as it may consider necessary or may return it to the Director to modify the same or to prepare a fresh plan in accordance with such directions as it may issue in this behalf. Sub-section (4) thereof requires the State Government to publish the development plan as approved, under the foregoing provisions in the Official Gazette and shall along with the plan publish a public notice, in such manner as may be prescribed, of the approval of the development plan and the 35 place or places where the copies of the approved development plan may be inspected. Sub-section (6) thereof provides that after the coming into operation of the development plan, the interim development plan shall stand modified or altered to the extent the proposals in the development plan are at variance with the interim development plan. Firstly, at the stage of Section 19 where the Director is required to invite objections and suggestions to the draft development plan and after giving an opportunity of being heard and considering the objections and suggestions, submit 37 the development plan to the State Government. A perusal of the scheme of the TCP Act and particularly Chapter-IV thereof would establish beyond doubt that the powers vested with the Director and the State Government are for enacting a piece of delegated legislation. “Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.”
A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; whereas an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. It has also been held that rule-making is normally directed towards the formulation of requirements having a general application to all members of a broadly identifiable class; whereas an adjudication, on the other hand, applies to specific individuals or situations. The Notified Area Committee, Tulsipur, again a challenge was made to the notification issued under Section 3 of the U.P. Section 3 of the Act is in the nature of a conditional legislation. Collector, Thane, Maharashtra and Others, the Government of Maharashtra had issued a draft notification under Section 3(3) of the Bombay Provincial Municipal Corporation Act, 1949 (for short, “BPMC Act”). However, taking into consideration the objections, the area of Ulhasnagar Municipal Council was excluded from the area of Kalyan Corporation while issuing the final notification.
The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. In Section 37(2), the legislature has not intended to provide for a public hearing before according sanction. Debasis Das [(2003) 4 SCC 557 : 2003 SCC (L&S) 507].) While exercising legislative functions, unless unreasonableness or arbitrariness is pointed out, it is not open for the Court to interfere. In the said case, the Court also found that since the legislature did not provide for a public hearing before according sanction, the delegated legislation could not be questioned for violating the principles of natural justice in its making except when the statue itself provide for that requirement. It can thus be seen that it is a settled position of law that the exercise of power for the preparation, finalization and approval of development plan is a power exercised by the delegatee for enacting a subordinate piece of legislation.
The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its law-making power in any manner. The courts cannot assume to themselves a supervisory role over the rule-making power of the executive under Article 309 of the Constitution. The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging, for otherwise it is difficult to see why, after the clear and categorical statement by the Chief Secretary on behalf of the State Government that the Government will introduce legislation if found necessary and so advised, the Division Bench should have proceeded to again give the same direction. [(1999) 6 SCC 82 : 1999 SCC (L&S) 1054 : AIR 1999 SC 1351], this Court held that the court cannot fix a period of limitation, if not fixed by the legislature, as “the courts can admittedly interpret the law and do not make laws”. Union of India [(1989) 4 SCC 187 : 1989 SCC (L&S) 569], this Court held that the court cannot direct the legislature to enact a particular law for the reason that under the constitutional scheme Parliament exercises sovereign power to enact law and no outside power or authority can issue a particular piece of legislation. Hinduja [(2003) 6 SCC 195 : 2003 SCC (Cri) 1314 : AIR 2003 SC 2612] 50, this Court held that if the court issues a direction which amounts to legislation and is not complied with by the State, it cannot be held that the State has committed the contempt of court for the reason that the order passed by the court was without jurisdiction and it has no competence to issue a direction amounting to legislation. Bisht
This Court held that issuing any such direction may amount to amendment of law which falls exclusively within the domain of the executive/legislature and the court cannot amend the law. The Judiciary is entrusted with the function to ensure that the laws enacted by the Legislature are within the four corners of the Constitution of India and that the Executive acts within the four corners of the Constitution of India and the laws enacted by the Legislature.
One of the questions that has been considered was whether by taking recourse to the doctrine of advancing constitutional culture, could a court read a disqualification to the already expressed disqualifications either provided under the Constitution or under the Representation of People Act, 1951.
Allowing the appeal filed by the State Government, this Court held that the High Court, while issuing the above directions, acted in a manner contrary to the settled limitations on the power of judicial review under Article 226 of the Constitution of India. It can thus be seen that it is a settled position of law that neither the High Courts while exercising powers under Article 226 of the Constitution nor this Court while exercising powers under Article 32 of the Constitution can direct the legislature or its delegatee to enact a law or subordinate legislation in a particular manner. 4923-24 of 2017, has submitted that the State of Karnataka is also aggrieved by the order of NGT to the extent of setting aside the buffer zone in respect of waterbodies and drains specified in the Revised Master Plan, 2015, and enlargement of the buffer zone in respect of lakes and Rajakaluves.
Vide the impugned judgment, NGT has revised these buffer zones and has directed that the buffer zone be maintained for 75 m around the lake and 50, 35 and 25 m respectively from the primary, secondary and tertiary drain, respectively. It is also not necessary to consider the contentions urged in the other civil appeals except the appeals filed by Respondents 9 and 10.” 73. It could thus be seen that this Court has specifically recorded the submissions made by the counsel that he has no objection if this Court sets aside the general conditions and directions of NGT in para 1 of the order dated 4 May 2016 in the case of Forward Foundation v. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; ( ii ) statements of the principles of law applicable to the legal problems disclosed by the facts; and ( iii ) judgment based on the combined effect of the above. The concrete decision alone 59 is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It has been held that a deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue would constitute a precedent. It can clearly be seen that the learned 60 Advocate General of the State has specifically argued that the Revised Master Plan is statutory in nature and the NGT has no power, competence or jurisdiction to consider the validity or vires of any statutory provision/regulation.
Vide the said directions, it was directed that the planning authorities while preparing development plan for area in their jurisdiction or amending them in respect of undeveloped portion abutting the hills up to 100 feet should be shown as “No Development/Open Space Reservation”. While such directions can be issued, if situations so warrant, such as in extraordinary or emergent circumstances, the complete absence of any reasons why the State issued them, coupled with the lack of any supporting expert report or input, renders it an arbitrary exercise. Consequently, the directions in the notification under Section 154 (dated 14-11-2017) are hereby quashed.” A perusal of the aforesaid would clearly reveal that, though the directive issued by the State Government under Section 154 of the MRTP Act was issued in accordance with the directions issued by the NGT, this Court found such exercise not to be permissible in law. Chapter 12.10 of the development plan elaborately considers the directions given by the NGT. So far as the forest lands are concerned, no construction upon that is permissible unless there is a clearance from the Central Government as per the provisions of Forest Conservation Act. Insofar as “Green Belt” areas are concerned, it has been found that “Green Belt” areas are those areas in which the land is also owned by the private land owners and is occupied by the structures.
In “Green Belt” areas, limited construction with one parking floor + one floor + habitable attic would be permitted for residential use only. The Soil Investigation Report shall be submitted by the applicant before construction/reconstruction of building(s) for the areas falling in sinking and sliding zones as defined in Shimla Planning Area, or for any reclaimed piece of land. It can thus clearly be seen that unless a Soil Investigation Report is provided by the applicant before construction/reconstruction of building(s) for the areas falling in Sinking and Sliding Zones as defined in SPA, construction 67 would not be allowed or allowed only as per the conditions imposed by the consultant.
The first one at the stage of finalization of the draft development plan by the Director, and the second one at the stage of grant of approval and publication of the final development plan by the State Government. After considering the objections and suggestions including the recommendations made by the NGT in its first order, the development plan was finalized for 22,450 hectares of SPA upto the year 2041. The NGT passed an ex parte ad interim order dated 12 May 2022 restraining the 70 appellants herein from taking any further steps in pursuance of the draft development plan. Immediately after the said order was passed, the appellants filed an application before the High Court of 71 Himachal Pradesh in CWP No 5960 of 2022 seeking leave to amend the writ petition so as to challenge the order of the NGT dated 12 May 2022. We, therefore, direct the State of Himachal Pradesh to consider the objections to the draft development plan, decide them and publish the final development plan within a period of six weeks from today. If any such construction is carried out without there being a sanctioned plan, indisputably, such a construction would be an unauthorized construction. 23 and 37 of 2022, challenging the draft development plan, were also pending before the High Court. Union of India and Others was considering the issue regarding ouster of jurisdiction of this Court and the High Courts under Articles 32 and 226 of the Constitution of India as was provided under the Administrative Tribunals Act, 1985 (for short, “AT Act”). While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. It could thus be clearly seen that this Court, even when a provision in the Constitution enabled the Parliament to make a law thereby excluding the powers of judicial review except under Article 136 of the Constitution, held that the 76 power of judicial review vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution, is an integral and essential feature of the Constitution, constituting part of its basic structure and, therefore, the power of High Courts and this Court to test the constitutional validity of legislations can never be ousted or excluded.
If such a view were to be 77 adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of the 78 Constitution. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.” It has further been observed that on the other hand to hold that all such decisions will be subject to jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India and before Division Bench of High Court within whose jurisdiction the concerned Tribunal falls will serve two purposes. The Constitution Bench of this Court clearly holds that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Court’s writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. Violation of the orders of the Court would be its disobedience and would invite action in accordance with law. This Court also expressed the view that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the credibility of judicial institution and encourages chance litigation.
It could thus be seen that this Court in unequivocal terms held that no Court or Tribunal and for that matter any other authority can ignore the law stated by this Court.
Despite pendency of the proceedings before the High Court including the one 83 challenging the interim order dated 12 May 2022 passed by NGT, the NGT went ahead with the passing of the second order impugned herein. Since we have held the first order of NGT itself to be not tenable in law, the second order of NGT which is solely based on the first order of NGT, is liable to be set aside, on the short ground. Both development 85 and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment. This is sought to be achieved by issuing notifications like the present, relating to developmental activities being carried out in such a way so that unnecessary environmental degradation does not take place. Union of India [(2002) 4 SCC 356] it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of “sustainable development”. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. In the classic work, Development As Freedom, the Nobel prize winner Amartya Sen pointed out that “the issue of development cannot be separated from the conceptual framework of human right”.
It contemplates that development ought to be sustainable with the idea of preservation of natural environment for present and future generations. In International Law and Sustainable Development, Arjun Sengupta in the chapter “ Implementing the Right to Development [ International Law and Sustainable Development — Principles and Practice (Publisher : Martinus Nijhoff, Edn. It is observed that the proposal needs a legal framework and a monitoring committee to examine the regional level proposals/big developments by the constitution of an Inter-State High-Powered Regional Environmental Management Board, as per the proposal of the Ministry of Environment and Forests, Government of India.
The United Nations Environment Programme (“UNEP”) notes in its publication titled “ Integrating the Environment in Urban Planning and Management — Key Principles and Approaches for Cities in the 21st Century ” that more than half of the world’s population is now living in urban areas. The said article depicts the sorry state of affairs as to how the City of Bengaluru, once considered to be one of India’s best cities, a “Garden city” has been ruined on account of haphazard urban development. The article notes that, while on one hand, on account of heavy rains, many of the houses were submerged in water, on the other hand, the city faced a huge shortage of drinking water. It further notes that these interlinked man-made lakes worked as a storm-water drain network. The State and its authorities should make meaningful and concerted efforts to ensure that the green cover in the State of Uttar Pradesh is not reduced and to ensure that it increases.
It further observed that, whether mining operations are carried on within 93 the reserved forest or other forest area, it is their duty to ensure that the industry or enterprise does not denude the forest to become a menace to human existence nor a source to destroy flora and fauna and biodiversity. Union of India [(1996) 5 SCC 281] were quoted as under: “While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other 94 developments.
Also Read: https://newslaw.in/supreme-court/c-a-no-006503-006503-2022/
The present generation is answerable to the next generation by giving to the next generation a good environment. We are answerable to the next generation and if deforestation takes place rampantly then intergenerational equity would stand violated. When we talk about intergenerational equity and sustainable development, we are elevating an ordinary principle of equality to the level of overarching principle.” (d) Of course, one cannot ignore one of the several dicta of this Court in T.N.
The term “forest land”, occurring in Section 2, will not 96 only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. The State Government shall also ensure that when such permissions are granted to the applicants, the applicants scrupulously follow the mandate in the said notification of planting 10 trees against 1 and maintaining them for five years.”
Case Title: THE STATE OF HIMACHAL PRADESH Vs. YOGENDRA MOHAN SENGUPTA (2024 INSC 30)
Case Number: C.A. No.-005348-005349 / 2019
