NGT Can't Direct Govt To Exercise Rule Making Powers In A Particular Manner : Supreme Court Approves Shimla Development Plan

The Supreme Court in a recent decision approved the Shimla Development Plan, 2041 by holding that the development plan has been finalized after taking into consideration the reports of various expert committees and the studies undertaken with regard to various aspects including environmental and ecological aspects.

Setting aside the finding of the National Green Tribunal (“NGT”), the Division Bench of Justices BR Gavai and Aravind Kumar noted that the Development Plan contains sufficient safeguards to balance the need for development while taking care of and addressing the environmental and ecological concerns. The Court expressed the need to maintain the balance between the development and the ecology, where it noted that while ensuring the developmental activities so as to meet the demands of growing population, it is also necessary that the issues with regard to environmental and ecological protection are addressed too.

Thus, the court found that the development plan, which has been finalized after taking recourse to the statutory provisions and undergoing the rigors thereto, cannot be stalled in entirety thereby putting the entire developmental activities to a standstill.

Factual Background

The State of Himachal Pradesh published a draft development plan on 8th February 2022 in pursuance of the directions issued vide first order of NGT and in exercise of the powers conferred upon it under the TCP Act and the 1978 Rules framed thereunder. In the meantime, on an original application preferred by the Respondent No.1, the NGT, vide interim order dated 12th May 2022, stayed the draft development plan and restrained the State of Himachal Pradesh from taking any further steps in pursuance of the draft development plan. Being aggrieved thereby, the State of Himachal Pradesh under Article 226/227 of the Constitution of India filed civil writ petition before the High Court of Himachal Pradesh. Despite the pendency the NGT, vide its second order, held that the draft development plan, being in conflict with the first order of NGT, is illegal and cannot be given effect to.

The Shimla development plan, sanctioned by the preceding Himachal Pradesh government in February 2022, faced impediments as it failed to materialize due to stay orders issued by the NGT in May 2022. The tribunal deemed the plan illegal, citing a contradiction with prior orders issued in 2017 aimed at controlling unplanned constructions in Shimla. The appellants filed an application before the High Court of Himachal Pradesh, praying for amending the writ petition so as to challenge the second order of NGT. Since, the common issues were considered by the Supreme Court in one of the connected matter, therefore, the court directed the transfer of the said writ petition before itself.

Observation by the Court

Firstly, the court discussed the legislative scheme of the Town and Country Planning Act by highlighting the object and purpose of the legislation, where it observed that the TCP Act has been enacted 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.

The court referred to Section 18 of the Act, which contains various factors that the development plan is required to consist of such as it shall allocate broadly areas or sector of land for various purposes including residential, industrial, commercial or agricultural. It shall also provide for open spaces, parks and gardens, green belts, zoological gardens and play-grounds. It is also required to make proposals for general landscaping and preservation of natural areas. It is required to project the requirement of the planning area of such amenities and utilities as water, drainage, electricity and suggest their fulfilment.

The court further explained the procedure enshrined under Section 18, while finalizing the Development Plan.

Secondly, while discussing on the Nature of functions/powers of the Authorities under Chapter-IV of the TCP Act, that provides for preparation of draft development plan, publication of draft development plan with a publication of its notice, inviting objections and suggestions, giving reasonable opportunity to all persons affected of being heard, making modifications in the draft development plan as may be considered necessary by the Director and thereafter submitting it to the State Government. The court after referring to catena of judgments came to the conclusion 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. We therefore have no manner of doubt in holding that the aforesaid provisions as contained in the TCP Act provide for exercise of power by a delegatee to enact a piece of subordinate legislation.

Thirdly, on the issue whether the NGT could have issued directions to the legislative body to exercise its legislative functions in a particular manner? The question is discussed by the court in perusal of the first order of NGT, that has issued directions to the authority empowered to enact the development plan, to do so in a particular manner. According to the court, the directions cannot be issued to the legislature to enact a law, as the power to enact legislation is a plenary constitutional power which is vested in the Parliament and the State Legislatures. To this effect the court's observation in Para 70 is meaningful:

“In that view of the matter, we find that the first order of NGT is liable to be set aside on the short ground that it has transgressed its limitations and attempted to encroach upon the field reserved for the delegatee to enact a piece of delegated legislation. We are of the considered view that when the TCP Act empowers the State Government and the Director to exercise the powers to enact a piece of delegated legislation, the NGT could not have imposed fetters on such powers and directed it to exercise its powers in a particular manner.”

Fourthly, on the aspect whether the development plan have taken into consideration the suggestions given by the NGT including the consideration of “Green Belt” area, the court after considering the development plan observed that while preparing the development plan, due care has been taken to ensure that environmental aspects are taken care of. To this effect, Para 87 of the Judgment is meaningful:

“We, however, do not propose to stamp our approval to all the provisions made in the development plan. In that regard, if any person feels aggrieved by any of the provisions, they would always be at liberty to take recourse to such remedy as is available in law.”

Fifthly, on the issue whether the NGT was justified in passing the order dated 14th October 2022 when the High Court was seized of the same issue during the pendency of writ petition? The question appears because despite the pendency of writ petition as well as other writ petitions relating to the same subject matter, the NGT passed its second order holding that the draft development plan, being in conflict with its first order, is illegal and therefore cannot be given effect to. The court in Para 100 noted that the High Court was in seisin of the matter related to finalization of the draft development plan, therefore, while taking a note of a decision passed in the Constitution Bench Judgment of L. Chandra Kumar v. Union of India, where it was held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution, the court in Para 111 of the Judgment noted as follows:

“It can be seen from the perusal of the orders of the NGT itself that though the NGT was informed about the High Court being in seisin of the proceedings, it went on to hold that the judgment given by it was binding and therefore, the draft development plan, which in its view, was not in conformity with its judgment, was liable to be set aside.”

Sixthly, the court also emphasized a need for maintaining a balance between the development and protection/preservation of environmental ecology. After taking note of various judgment rendered by the Supreme Court that emphasized the need to have a balance between the requirement of development and preservation of ecology and environment, the court in Para 122 thus observed that:

“while ensuring the developmental activities so as to meet the demands of growing population, it is also necessary that the issues with regard to environmental and ecological protection are addressed too.”

Conclusion

The court ultimately permitted the appellant-State of Himachal Pradesh and its instrumentalities to proceed with the implementation of the development plan as published on 20th June 2023 as the plan contains sufficient safeguards to balance the need for development while taking care of and addressing the environmental and ecological concerns. Accordingly, the court set-aside the orders of the NGT passed in original application and in review application.

The appeal is accordingly allowed.

Case Title: THE STATE OF HIMACHAL PRADESH AND OTHERS V. YOGENDERA MOHAN SENGUPTA AND ANOTHER

Citation : 2024 LiveLaw (SC) 32

Click here to read the judgment