2024 INSC 30 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5348-5349 OF 2019

THE STATE OF HIMACHAL PRADESH

AND OTHERS …APPELLANT(S)

VERSUS

YOGENDERA MOHAN SENGUPTA

AND ANOTHER …RESPONDENT(S)

WITH

TRANSFERRED CASE (C) NO. 2 OF 2023

INDEX

I INTRODUCTION Paras 1 to 2

II. FACTS Paras 3 to 4.1

III. SUBMISSIONS Paras 5 to 29

IV. CONSIDERATION Paras 30 to 122

A. Legislative Scheme of the TCP Act. Paras 30 to 44

B. Nature of functions/powers of the

Authorities under Chapter-IV of the TCP

Act.

Paras 45 to 61

C. Whether the NGT could have issued

directions to the legislative body to

exercise its legislative functions in a

particular manner?

Paras 62 to 70

D. Whether observations in Para 47 of the

Mantri Techzone Private Limited (supra)

would operate as res judicata?

Paras 71 to 78

E. Development Plan 2041. Paras 79 to 90

F. Whether the NGT was justified in

passing the order dated 14

th

October

2022 when the High Court was seized of

the same issue during the pendency of

Civil Writ Petition No.5960 of 2022?

Paras 91 to 112

G. Balancing the need for Development

and Protection of the Environment.

Paras 113 to 122

V. CONCLUSION Paras 123 to 128

2

List of Abbreviations

1. NGT - National Green Tribunal, Principal

Bench, New Delhi

2. First order of

NGT

- Order of NGT dated 16

th

November

2017

3. Second order of

NGT

- Order of NGT dated 14

th

October

2022

4. SPA - Shimla Planning Area

5. CWP - Civil Writ Petition

6. TCP Act - Himachal Pradesh Town & Country

Planning Act, 1977

7. 1978 Rules - Himachal Pradesh Town & Country

Planning Rules, 1978

8. OA - Original Application

9. FC Act - Forest (Conservation) Act, 1980

10. NDMA - National Disaster Management

Authority

11. HPMC Act - Himachal Pradesh Municipal

Corporation Act, 1994

12. BPMC Act - Bombay Provincial Municipal

Corporation Act, 1949

13. MRTP Act - Maharashtra Regional and Town

Planning Act, 1966

14. AT Act - Administrative Tribunals Act, 1985

J U D G M E N T

B.R. GAVAI, J.

I. INTRODUCTION

Civil Appeal Nos. 5348-5349 OF 2019

1. These appeals challenge the judgment and order dated

16

th November 2017 (hereinafter referred to as the “first order

of NGT”) passed by the National Green Tribunal, Principal

Bench, New Delhi (hereinafter referred to as the “NGT”) in

Original Application (OA) No. 121 of 2014, whereby various

3

directions were issued by the NGT, and the order dated 16

th

July 2018 passed by the NGT in Review Application No. 8 of

2018, whereby the review sought of the first order of NGT by

the present appellants was dismissed.

Transferred Case (C) No. 2 of 2023

2. 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

th April 2022, came to be

stayed by the NGT, vide an interim order dated 12

th May 2022.

By the said order, it restrained the appellants herein from

taking any further steps in pursuance of the draft development

plan of the SPA. The State of Himachal Pradesh and its

instrumentalities-appellants herein preferred Civil Writ

Petition (CWP) No. 5960 of 2022 titled State of Himachal

Pradesh and another v. Yogendra Mohan Sengupta and

Others before the High Court of Himachal Pradesh challenging

the said interim order. Despite the pendency of the said writ

petition, the NGT, vide its final order dated 14

th October 2022

(hereinafter referred to as the “second order of NGT”) in OA No.

297 of 2022, held that the draft development plan, being in

conflict with the first order of NGT, was illegal and cannot be

4

given effect to. Thereafter by an amendment in the said CWP

No. 5960 of 2022, the second order of NGT also came to be

challenged before the High Court of Himachal Pradesh. On

14

th November 2022, this Court passed an order in Civil

Appeal Nos. 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. 2 of 2023.

II. FACTS

Facts giving rise to filing of Civil Appeal Nos.5348-5349 of

2019:

3. Facts, in brief, giving rise to the filing of Civil Appeal Nos.

5348-5349 of 2019, are as follows:

3.1 The Himachal Pradesh Town & Country Planning Act,

1977 (hereinafter referred to as “TCP Act”) was enacted by the

State of Himachal Pradesh in the year 1977. Vide Government

Notification dated 30

th November 1977, the SPA came to be

constituted. The State of Himachal Pradesh, in exercise of

powers conferred upon it by Section 87 of the TCP Act, enacted

the Himachal Pradesh Town & Country Planning Rules, 1978

(hereinafter referred to as “1978 Rules”). The existing land-

5

use for SPA was notified by a notice dated 29

th December 1977

and was adopted by another notice dated 14

th March 1978.

3.2 The interim development plan for SPA was approved by a

notification dated 24

th March 1979 for the period 1979-2001.

Vide notification dated 11

th 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

th March 1979.

3.3 By another notification dated 7

th December 2000 issued

by the Department of Town & Country Planning (Government

of Himachal Pradesh), in pursuance of the notification dated

11

th August 2000, a survey of “Green Belt” within existing Core

& restricted areas of the SPA was carried out and areas were

declared as “Green Belt”.

3.4 A writ petition being CWP No. 4595 of 2011 titled Rajeev

Varma and Others v. State of Himachal Pradesh and

Others came to be filed in the year 2011 before the High Court

of Himachal Pradesh. A direction was sought in the said writ

petition to the State of Himachal Pradesh to prepare a

6

development plan for the SPA in accordance with the TCP Act

within a time-bound schedule.

3.5 Respondent No.1 herein Yogendera Mohan Sengupta

filed an OA (No. 121 of 2014) before the NGT, wherein he made

the following prayers:

(i) “Direct the State Government and the Respondent

Nos. 3 and 4 to recognize the areas mentioned in

notification dated 7.12.2000 as forest and any non-

forest activity should not be allowed without prior

permission under Section 2 of the Forest.

(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.

(iii) Pass any other orders as the Hon’ble Tribunal may

deem fit and proper in facts and circumstances of the

case.”

3.6 The appellant-State of Himachal Pradesh (respondent in

the said OA) filed a reply dated 23

rd July 2014 before the NGT,

wherein it specifically contended that the use of the words

“Green Belt” does not include or bring the areas under forests

and the “Green Belt” includes both forest and non-forest areas

and that no permission for construction or any non-forestry

activity would be allowed on forest land without approval

under the Forest (Conservation) Act, 1980 (hereinafter referred

to as the “FC Act”).

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

th May 2014 banned all types

of construction activities in the Green Belt areas of Shimla

covered under the notification dated 7

th December 2000.

3.8 Thereafter, vide order dated 12

th October 2015 in the said

OA No. 121 of 2014 , the NGT constituted a Committee

comprising of officers from the National Disaster Management

Authority (NDMA), a senior scientist from Wadia Institute of

Himalayan Geology, Dehradun as nominated by the Director

and other officials of the State and Central Governments for

submitting its report on various aspects including water

supply and the strength of carrying capacity of the hills.

3.9 Pursuant to the said order dated 12

th October 2015

passed by the NGT, the Additional Chief Secretary,

Department of Town & Country Planning (Government of

Himachal Pradesh) issued a notification dated 6

th November

2015 for the constitution of an Expert Committee. The Expert

Committee submitted a report to the NGT on 29

th August

2016. Along with an affidavit filed by the State of Himachal

8

Pradesh, the final report of the Expert Committee came to be

submitted to the NGT on 20

th May 2017.

3.10 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.

3.11 Some of the directions issued vide first order of NGT, inter

alia, prohibited new construction of any kind, i.e. residential,

institutional and commercial, in any part of the core and

green/forest area and also directed that even in the other

areas which fall within the SPA, construction would not be

permitted beyond 2 storeys + attic floor. It further directed

that, in case of unsafe and unfit residential structures in the

core and green/forest areas, re-construction would only be

allowed for residential purposes and that too, not beyond 2

storeys and an attic floor.

3.12 In direction No. VIII in the first order of NGT, it directed

the State to finalise the development plan within three months

from the date of the pronouncement of its first order. 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.

3.13 The NGT also constituted an Implementation Committee

and a Supervisory Committee entrusted with the responsibility

for carrying out the specific directions given under the first

order of NGT and to provide NOCs or necessary permissions

to the stakeholders, whether State or private parties.

3.14 The appellants thereafter filed a Review Application No. 8

of 2018 seeking review of the first order of NGT. However, the

same was dismissed vide order dated 16

th July 2018. Being

aggrieved thereby, Civil Appeal Nos.5348-5349 of 2019 have

been filed before this Court.

Facts giving rise to filing of Transferred Case (C) No.2 of

2023:

4. 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, the State of

Himachal Pradesh published a draft development plan on 8

th

February 2022. 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 State

of Himachal Pradesh also invited objections and suggestions

from the general public in relation to the draft development

plan. In all, 97 objections/suggestions were received by the

State of Himachal Pradesh within stipulated time-period and

the same were heard by the Director in due course. CWP Nos.

23 and 37 of 2022 were also filed before the High Court of

Himachal Pradesh praying inter alia for stay of the draft

development plan.

4.1 In the meantime, respondent No.1 herein-Yogendera

Mohan Sengupta filed another OA (No. 297 of 2022) before the

NGT in relation to the draft development plan. The NGT, vide

interim order dated 12

th 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 filed CWP No. 5960 of 2022 under Article

226/227 of the Constitution of India before the High Court of

Himachal Pradesh. Despite the pendency of the said CWP No.

5960 of 2022, the NGT, vide its second order, held that the

11

draft development plan, being in conflict with the first order of

NGT, is illegal and cannot be given effect to. 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. Since

common issues were being considered by this Court in Civil

Appeal Nos.5348-5349 of 2019, this Court vide an order dated

14

th November 2022, directed the transfer of the said CWP No.

5960 of 2022 before itself.

III. SUBMISSIONS

5. 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..

Submissions on behalf of the Appellants:

6. It is submitted on behalf of the appellants that the State

was fully aware of its duties and responsibilities as envisaged

by the Constitution of India as well as the relevant statutory

12

provisions. It is submitted that while finalizing the

development plan, the State has adopted a proactive role to

ensure that a balance is struck between the developmental

and environmental issues.

7. It is submitted on behalf of the appellants that the

development plan has been finalized in exercise of statutory

powers vested in the appellants under Sections 13 to 20 of the

TCP Act, after considering all the recommendations and

suggestions of various expert bodies and technical committees

as well as the directions and recommendations of the NGT.

8. 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.

9. It is submitted on behalf of the appellants that while

taking steps to finalise the development plan, the appellants

have attempted to balance the developmental requirements for

catering to the needs of the expanding population, with the

safeguards to preserve and protect the environment. It is

13

submitted that while finalizing the development plan, the

entire procedure as prescribed under the Statutes was duly

followed.

10. The learned Advocate General as well as Shri Kuthalia

submitted that the planning regulations divide the areas into

different categories. 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. With the efflux of

time in many buildings, there are different owners of

each floor;

(iv) In green belt areas which are lying between

constructed areas, only single storey construction

with attic is permissible. However, no tree will be

permitted to be felled in any such area and no

14

construction will be permitted in forest area without

following the mandate of the Forest Conservation Act.”

11. 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 that because of the

peculiar climate of Shimla, the attic is necessary because the

roof is required to be sloping in hilly terrain, to allow for run-

off of rain and snow. It is further submitted that construction

will only be permitted after a soil investigation report of the

area and assessment of structural stability by an expert are

made. The construction is required to be approved by a

qualified architect or engineer.

12. The first and second orders of NGT are also challenged

by the appellants on the ground that the jurisdiction of NGT is

limited to the civil cases where a substantial question relating

to environment (including enforcement of any legal right

relating to environment), is involved and such question arises

out of the implementation of the enactments specified in

Schedule I of the National Green Tribunal Act, 2010

(hereinafter referred to as the “NGT Act”). It is submitted that

Schedule I of the NGT Act does not include town and country

15

planning and as such, the orders passed by the NGT are

without jurisdiction.

13. It is further submitted on behalf of the appellants that

the exercise of power for finalisng the development plan is a

quasi-legislative power and the NGT could not have issued

directions to exercise that power in a particular manner. It is

submitted that the said would amount to encroachment upon

the statutory functions of the State which are entrusted to it

by virtue of the TCP Act.

14. It is also submitted on behalf of the appellants that the

NGT could not have suo motu enlarged the scope of OA No. 121

of 2014 as it is a body constituted under a statute and it has

to exercise its jurisdiction within the four corners of the

statute.

15. 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. A reliance in this respect is placed on the

following judgments of this Court:

16

Himachal Pradesh Bus Stand Management and

Development Authority (H.P. BSM & DA) v. Central

Empowered Committee and Others

1, State of Madhya

Pradesh v. Centre for Environment Protection Research

and Development and Others

2, Director General (Road

Development) National Highways Authority of India v.

Aam Aadmi Lokmanch and Others

3, Tamil Nadu Pollution

Control Board v. Sterlite Industries (India) Limited and

Others

4 and Techi Tagi Tara v. Rajendra Singh Bhandari

and Others

5.

16. It is submitted that since the development plan was

prepared by the State in exercise of its constitutional powers

under Article 162 of the Constitution of India and statutory

powers under the TCP Act and HPMC Act, the NGT could not

have issued directions to act in a manner which would be

contrary to those provisions. Reliance in this respect is placed

on the following judgments of this Court:

1

(2021) 4 SCC 309 : 2021 INSC 18

2

(2020) 9 SCC 781 : 2020 INSC 516

3

(2021) 11 SCC 566 : 2020 INSC 452

4

(2019) 19 SCC 479 : 2019 INSC 220

5

(2018) 11 SCC 734 : 2017 INSC 986

17

State of Himachal Pradesh and Others v. Satpal Saini

6,

Ambesh Kumar (Dr.) v. Principal, L.L.R.M. Medical College,

Meerut and Others

7 and Bishambhar Dayal Chandra

Mohan and Others v. State of Uttar Pradesh and Others

8.

17. 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. It is submitted that on account of the

directions issued by the NGT, re-construction of the old

structures which are in dilapidated condition and which is

permissible on the existing plinth area, has been brought to a

complete halt.

18. The learned Advocate General further submitted that the

State is alive to the requirement of protecting environment and

as such, the Cabinet has taken a decision wherein it

prescribed more stringent measures.

19. Both the orders of NGT are also challenged on the ground

that when the High Court was seized of the matter with regard

6

(2017) 11 SCC 42

7

1986 Supp SCC 543 : 1986 INSC 275

8

(1982) 1 SCC 39 : 1981 INSC 189

18

to the draft development plan, the NGT could not have

entertained the proceedings and passed the orders therein.

Reliance in this respect is placed on the judgment of this Court

in the case of State of Andhra Pradesh v. Raghu

Ramakrishna Raju Kanumuru (M ember of Parliament)

9.

Submissions on behalf of the Respondents:

20. Shri Parikh, on the contrary, submitted that the first

order of NGT threw light on the serious concerns regarding the

fragile ecology of State of Himachal Pradesh in general and

Shimla in particular. The first order of NGT has also tried to

address issues with regard to continuous instances of

landslides and collapsing of buildings, cloud bursts and

earthquakes.

21. Shri Parikh further submitted that the first order of NGT

is based on the report presented by the High Powered

Committee appointed by it. The NGT has considered in detail

the report of the High Powered Committee, various other

documents and government records. After consideration of

the same, directions have been given in order to ensure the

9

(2022) 8 SCC 156 : 2022 INSC 632

19

protection of ecology and environment. It is submitted that the

development plan is finalized keeping in view the directions

issued by the NGT with regard to core areas, green areas,

sinking areas and heritage areas.

22. 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. It is submitted that further direction was that if

any construction, particularly public utilities like hospitals,

schools, offices are proposed to be constructed beyond 2

storeys plus an attic floor, then the plan has to be duly

approved and permission has to be obtained from the

concerned authorities.

23. Shri Parikh submitted that the “Green Belt” areas, by

notification dated 7

th December 2000, are covered under the

dictionary meaning of ‘forest’ and are thus required to be

protected under the provisions of the FC Act as per the order

20

of this Court passed in the case of T.N. Godavarman

Thirumulkpad v. Union of India and Others

10.

24. Shri Parikh submitted that the challenge to the second

order of NGT is also without substance inasmuch as the

directions issued by the NGT, vide its first order, were binding

upon the appellants and the draft development plan could not

have been notified in contravention of the directions of the

NGT. A reliance in this respect is placed on the judgment of

this Court in the case of Punjab Termination of Agreement

Act, 2004, In Re, Special Reference No. 1 of 2004

11.

Reliance is also placed on the judgment of this court in the

case of State of Tamil Nadu v. State of Kerala and

Another

12.

25. Shri Parikh further submitted that this Court in the case

of Mantri Techzone Private Limited v. Forward

Foundation and Others

13 has held that the NGT has

overriding powers over anything inconsistent contained in any

other law or in any instrument having effect by virtue of any

10

(1997) 2 SCC 267 : 1997 INSC 226

11

(2017) 1 SCC 121 : 2016 INSC 1018

12

(2014) 12 SCC 696 : 2014 INSC 373

13

(2019) 18 SCC 494 : 2019 INSC 315

21

law. He further submitted that this Court has held that while

providing for restoration of environment in an area, the NGT

can specify buffer zones around specific lakes and waterbodies

in contradiction with zoning regulations under these statutes

or Revised Master Plan.

26. Shri Parikh relies on the judgments of this Court in the

cases of Pragnesh Shah v. Dr. Arun Kumar Sharma and

Others

14, Supreme Court Monitoring Committee v.

Mussoorie Dehradun Development Authority and Others

15

and Resident’s Welfare Association and Another v. Union

Territory of Chandigarh and Others

16 in support of the

proposition that the NGT has jurisdiction to issue directions

in order to protect the ecologically sensitive areas.

27. It is submitted that the jurisdiction of this Court under

Section 22 of the NGT Act is very limited and an interference

is warranted only when the court finds that there is an error

apparent on the face of record in the findings of the NGT.

28. It is submitted that if the directions issued by the NGT,

which provide for a precautionary approach, are not followed

14

(2022) 11 SCC 493 : 2022 INSC 47

15

(1997) 11 SCC 605

16

(2023) 8 SCC 643 : 2023 INSC 22

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

is therefore submitted that the present appeals as well as the

transferred case arising out of the writ petitions pending before

the High Court are liable to be dismissed.

Submissions on behalf of the Interveners/Land Owners:

29. It was argued on behalf of the interveners who were

owners of the plots in “Green Belt” areas that on account of

the restrictions imposed in the “Green Belt” areas, they were

deprived of enjoyment of their property which would be

violative of Article 300A of the Constitution of India. It was

therefore submitted that a direction be given to the State to

pay compensation to such owners for not being in a position

to utilize their plot of lands. We prima facie find that such an

issue could be beyond the scope of the present proceedings.

23

IV. CONSIDERATION:

A. Legislative Scheme of the TCP Act.

30. 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

the compulsory acquisition of land required for the

purpose of the development plans and for purposes

connected with the matters aforesaid.”

31. It can thus be seen 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. It also provides for constitution of

Town and Country Development Authority for proper



As amended vide Himachal Pradesh Town and Country Planning (Amendment)

Act 2015 (Act 14 of 2015).

24

implementation of town and country development plan. It also

provides for development and administration of special areas

through the Special Area Development Authority.

32. Section 13 of the TCP Act reads thus:

“13. Planning Area.—(1) The State Government may,

by notification, constitute planning areas for the

purposes of this Act and define the limits thereof.

(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.”

33. 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.

It is also empowered to alter the limits of a planning area,

amalgamate two or more planning areas and also to divide any

planning area into two or more planning areas.

25

34. Section 14 of the TCP Act reads thus:

“14. Director to prepare Development Plans.—

Subject to the provisions of this Act and the rules

made thereunder the Director shall—

*(a) prepare an existing land use map

indicating the natural hazard proneness of

the area;

*(b) prepare an interim development plan

keeping in view the regulation for land use

zoning for natural hazard prone area;



(c) prepare a development plan keeping in

view the regulation for land use zoning for

natural hazard prone area;

(d) prepare a sectoral plan;

(e) carry such surveys and inspections and

obtain such pertinent reports from

Government departments, local

authorities and public institutions as may

be necessary for the preparation of the

plans;

(f) perform such duties and functions as

are supplemental, incidental, and

consequential to any of the foregoing

functions or as may be assigned by the

State Government for the purpose of

carrying out the provisions of this Act.”

35. Clauses (a), (b) and (c) of Section 14 of the TCP Act have

been amended vide Himachal Pradesh Town and Country



As amended vide Himachal Pradesh Town and Country Planning (Amendment)

Act 2013 (Act No. 41 of 2013).

26

Planning (Amendment) Act 2013 (Act No. 41 of 2013). It can

be seen that these clauses provide a special emphasis on the

areas indicating the natural hazard.

36. Section 15 of the TCP Act reads thus:

“15. Existing Land use Maps.—(1) The Director

shall carry out the survey and prepare an existing

land use map and forthwith publish the same in such

manner as may be prescribed together with public

notice of the preparation of the map and of the place

or places where the copies may be inspected, inviting

objections and suggestions in writing from any

person with respect thereto within thirty days from

the date of publication of such notice.

(2) 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.

(3) As soon as may be after the map is adopted with

or without modifications the Director shall publish a

public notice of the adoption of the map and the place

or places where the copies of the same may be

inspected.

(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.”

37. 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. It also provides for inviting objections and suggestions

in writing from any person with respect thereto within thirty

days from the date of publication of such notice. Sub-section

(2) of Section 15 thereof provides for allowing a reasonable

opportunity of being heard to all such persons who have filed

the objections or suggestions. It also enables the Director to

make such modification therein as may be considered

desirable. Sub-section (3) thereof provides that after the map

is adopted with or without modifications, the Director shall

publish a public notice of the adoption of the map. A copy of

the notice is required to be published in the Official Gazette.

38. Section 15-A of the TCP Act deals with “Freezing of

landuse pending preparation of existing landuse map under

Section 15(1)”. Section 16 of the TCP Act deals with “Freezing

of land use on the publication of the existing land use map

under Section 15”. Section 17(1) of the TCP Act deals with

“Interim Development Plans”.

28

39. The provisions of Sections 18, 19 and 20 of the TCP Act

are most relevant for considering the issues involved in the

present matter, which read thus:

“18. Development Plan.—A 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

may be put



“including regulations for

façade control and sloping roof conforming

to the hill architecture and environs”;

(h) lay down the broad based traffic

circulation patterns in a city;

(f) suggest architectural control features,

elevation and frontage of buildings and

structures;

(j) indicate measures for flood control,

*“and protection against land slide”,

prevention of air and water pollution,

disposal of garbage and general

environmental control.

19. Publication of Draft Development Plan.—(1)

The Director shall forthwith publish the draft

development plans 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, inviting objections and the suggestions in

writing from any person with respect thereto, within

thirty days from the date of publication of such

notice. 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



As amended vide Himachal Pradesh Town and Country Planning (Amendment)

Act 2013 (Act No. 41 of 2013).

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.

(2) The Director shall, not later than ninety days after

the date of expiry of the notice period under sub-

section (1), consider all the objections and

suggestions as may be received within the period

specified in the notice under sub-section (1) and

shall, after giving reasonable opportunity to all

persons affected thereby of being heard, make such

modifications in the draft development plan as he

may consider necessary, and submit not later than

six months after the publication of the draft

development plan, the plan so modified, to the State

Government for approval together with all connected

documents, plans, maps and charts.

20. 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.

(2) Where the State Government approves the

development plan with modifications, the State

Government shall, by a notice published in the

Official Gazette invite objections and suggestions in

respect of such modifications within a period of not

less than thirty days from the date of publication of

the notice in the Official Gazette.

(3) After considering objections and suggestions and

after giving a hearing to the persons desirous of being

heard the State Government may confirm the

modification in the development plan.

(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.

(5) The development plan shall come into operation

from the date of publication thereof in the Official

Gazette and as from such date shall be binding on all

Development Authorities constituted under this Act

and all local authorities functioning within the

planning area.

(6) 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.”

40. It can thus be seen that the development plan is required

to consist of various factors. Clause (b) of Section 18 of the

TCP Act provides that 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. 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 façade control and sloping roof

conforming to the hill architecture and environs.

41. It can thus be seen that a special emphasis is placed on

regulations for façade control and sloping roof conforming to

the hill architecture and environs. Clause (j) of Section 18 of

the TCP Act, also specifically provides to indicate measures for

flood control, protection against land slide, prevention of air

and water pollution, disposal of garbage and general

environmental control.

42. 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. It

provides for inviting objections and suggestions, in writing,

from any person with respect thereto, within thirty days from

the date of publication of such notice. The notice to be issued

under Section 19 requires that it should specify the existing

33

land use maps, a narrative report supported by maps and

charts, explaining the provisions of the draft development

plan, the phasing of implementation of the draft development

plan as suggested by the Director, the provisions for enforcing

the draft development plan and stating the manner in which

permission to development may be obtained and the

approximate estimate of the cost of land acquisition for public

purposes and the cost of works involved in the implementation

of the plan.

43. Under sub-section (2) of Section 19 of the TCP Act, the

Director is required to consider all the objections and

suggestions as may be received within the period specified in

the notice under sub-section (1) thereof, not later than ninety

days after the date of expiry of the notice period. He is also

required to give reasonable opportunity to all persons affected

thereby of being heard and make such modifications in the

draft development plan as he may consider necessary. He is

also required to submit, not later than six months after the

publication of the draft development plan, the plan so

modified, to the State Government for approval together with

all connected documents, plans, maps and charts.

34

44. 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. Under sub-section (2) thereof, where the State

Government approves the development plan with

modifications, the State Government shal l, by a notice,

published in the Official Gazette, invite objections and

suggestions in respect of such modifications within a period of

not less than thirty days from the date of publication of the

notice in the Official Gazette. Under sub-section (3) thereof,

after considering objections and suggestions and after giving a

hearing to the persons desirous of being heard, the State

Government may confirm the modification in the development

plan. 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 (5) thereof provides that

the development plan shall come into force from the date of

publication thereof in the Official Gazette and as from such

date shall be binding on all Development Authorities

constituted under this Act and all local authorities functioning

within the planning area. 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.

B. Nature of functions/powers of the Authorities under

Chapter-IV of the TCP Act.

45. A perusal of the aforesaid provisions, leaves no manner

of doubt, that Chapter-IV of the TCP Act is a complete code,

providing 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

36

considered necessary by the Director and thereafter

submitting it to the State Government.

46. Under Section 20 of the TCP Act, the State Government

is empowered to 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. Sub-section (2) thereof provides

that where the State Government approves the development

plan with modifications, it is again required to be published in

the Official Gazette to invite objections and suggestions in

respect of such modifications. The State Government is

empowered to confirm the modification in the development

plan after considering objections and suggestions and after

giving a hearing to the persons desirous of being heard.

47. It could thus be seen that Chapter-IV of the TCP Act

provides for inviting objections and suggestions at two stages.

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. Under Section

20 of the TCP Act, a second opportunity of making objections

and suggestions has been provided. Again, the State

Government is required to give an opportunity of hearing to

such objectors before granting final approval to the

development plan.

48. 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.

49. The distinction between the legislative function and

administrative function is succinctly described by this Court

in the case of Union of India and Another v. Cynamide

India Ltd. and Another

17, which reads thus:

“7. The third observation we wish to make is, price

fixation is more in the nature of a legislative activity

than any other. It is true that, with the proliferation

of delegated legislation, there is a tendency for the

line between legislation and administration to vanish

into an illusion. Administrative, quasi -judicial

decisions tend to merge in legislative activity and,

conversely, legislative activity tends to fade into and

present an appearance of an administrative or quasi-

judicial activity. Any attempt to draw a distinct line

between legislative and administrative functions, it

17

(1987) 2 SCC 720 : 1987 INSC 100

38

has been said, is “difficult in theory and impossible

in practice”. Though difficult, it is necessary that the

line must sometimes be drawn as different legal

rights and consequences may ensue. The distinction

between the two has usually been expressed as “one

between the general and the particular”. “A legislative

act is the creation and promulgation of a general rule

of conduct without reference to particular cases; 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”. “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.” It has also been said: “Rule-making

is normally directed toward the formulation of

requirements having a general application to all

members of a broadly identifiable class” while, “an

adjudication, on the other hand, applies to specific

individuals or situations”. But, this is only a broad

distinction, not necessarily always true. …..”

50. Though, this Court, in the celebrated case of Cynamide

India Ltd. (supra) observed that any attempt to draw a

distinct line between legislative and administrative functions

is difficult in theory and impossible in practice, it attempted to

draw a line between the two inasmuch as different legal rights

and consequences may ensue, in exercise of such functions. It

has been held that the distinction between the two has usually

been expressed as “one between the general and the

39

particular”. 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 been held that legislation is the process of formulating

a general rule of conduct without reference to particular cases

and usually operating in future. Whereas, administration is

the process of performing particular acts of issuing particular

orders or of making decisions which apply general rules to

particular cases. 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.

51. When we apply the aforesaid principles to the facts of the

present case, it will be amply clear that the preparation of draft

development plan under Section 18 of the TCP Act, finalization

of the same under Section 19 of the TCP Act by the Director

and grant of approval by the State under Section 20 of the TCP

Act are all legislative functions. The provisions enable the

40

delegated legislative body to formulate the provisions which

will have a general application to all members of the broadly

identifiable classes.

52. In the case of Tulsipur Sugar Co. Ltd. v. The Notified

Area Committee, Tulsipur

18, again a challenge was made to

the notification issued under Section 3 of the U.P. Town Areas

Act, 1914 on the ground that before issuance of final

notification, the principles of audi alteram partem were not

followed. While rejecting the said contention and holding the

exercise of powers as a piece of conditional legislation, this

Court observed thus:

“7. …..The power of the State Government to make a

declaration under Section 3 of the Act is legislative in

character because the application of the rest of the

provisions of the Act to the geographical area which

is declared as a town area is dependent upon such

declaration. Section 3 of the Act is in the nature of a

conditional legislation. Dealing with the nature of

functions of a non-judicial authority, Prof. S.A. De

Smith in Judicial Review of Administrative

Action (3rd Edn.) observes at p. 163:

“However, the analytical classification of a

function may be a conclusive factor in

excluding the operation of the audi

alteram partem rule. It is generally

assumed that in English law the making

of a subordinate legislative instrument

18

(1980) 2 SCC 295 : 1980 INSC 38

41

need not be preceded by notice or hearing

unless the parent Act so provides.”

………

9. We are, therefore, of the view that the maxim “audi

alteram partem” does not become applicable to the

case by necessary implication.”

53. It is thus clear that this Court held that a declaration

under Section 3 of the U.P. Town Areas Act, 1914 provided for

enabling the application of the rest of the provisions of the Act

to the geographical area which is declared as a town area. It

was thus held that the declaration made under Section 3 was

legislative in character.

54. In the case of Sundarjas Kanyalal Bhatija and Others

v. Collector, Thane, Maharashtra and Others

19, 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”). The draft

notification proposed for formation of “Kalyan Corporation”.

Against the said proposal, there were many objections and

representations received from different sections. In the earlier

draft notification, the area of Ulhasnagar Municipal Council

19

(1989) 3 SCC 396 : 1989 INSC 202

42

was proposed to be merged in the proposed area of Kalyan

Corporation. 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 same was challenged before the

High Court by filing a writ petition. One of the reasons which

weighed with the High Court while allowing the petition was

that the opportunity of hearing was not given to one of the

parties while issuing the final notification under Section 3(2)

of the BPMC Act. It will be relevant to refer to the following

observations of this Court while reversing the order of the High

Court in the said case:

“28. Equally, the rule issued by the High Court to

hear the parties is untenable. The Government in

the exercise of its powers under Section 3 is not

subject to the rules of natural justice any more than

is legislature itself. The rules of natural justice are

not applicable to legislative action plenary or

subordinate. The procedural requirement of hearing

is not implied in the exercise of legislative powers

unless hearing was expressly prescribed. The High

Court, therefore, was in error in directing the

Government to hear the parties who are not entitled

to be heard under law.”

55. It could thus be seen that this Court clearly held that the

issuance of draft notification, consideration of objections and

43

publication of final notification are done in exercise of

legislative powers. The procedural requirement of hearing

would not be implied unless the statute so provides for.

56. This Court, in the case of Pune Municipal Corporation

and Another v. Promoters and Builders Association and

Another

20, had an occasion to consider somewhat similar

provisions under the Maharashtra Regional and Town

Planning Act, 1966 (for short, “MRTP Act”). In the said case,

this Court was considering the power of the State Government

to make any changes of its own in the modifications submitted

by the Planning Authority under Section 37 of the MRTP Act.

This Court observed thus:

“5. Making of DCR or amendments thereof are

legislative functions. Therefore, Section 37 has to be

viewed as repository of legislative powers for effecting

amendments to DCR. That legislative power of

amending DCR is delegated to the State Government.

As we have already pointed out, the true

interpretation of Section 37(2) permits the State

Government to make necessary modifications or put

conditions while granting sanction. In Section 37(2),

the legislature has not intended to provide for a

public hearing before according sanction. The

procedure for making such amendment is provided

in Section 37. Delegated legislation cannot be

questioned for violating the principles of natural

justice in its making except when the statute itself

provides for that requirement. Where the legislature

20

(2004) 10 SCC 796 : 2004 INSC 348

44

has not chosen to provide for any notice or hearing,

no one can insist upon it and it is not permissible to

read natural justice into such legislative activity.

Moreover, a provision for “such inquiry as it may

consider necessary” by a subordinate legislating body

is generally an enabling provision to facilitate the

subordinate legislating body to obtain relevant

information from any source and it is not intended to

vest any right in anybody. ( Union of

India v. Cynamide India Ltd. [(1987) 2 SCC 720] ,

SCC paras 5 and 27. See generally H.S.S.K.

Niyami v. Union of India [(1990) 4 SCC 516]

and Canara Bank v. 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.

(See generally ONGC v. Assn. of Natural Gas

Consuming Industries of Gujarat [1990 Supp SCC

397] .) Therefore, the view adopted by the High Court

does not appear to be correct.”

57. It could thus be seen that this Court in the case of Pune

Municipal Corporation (supra) held that making of

Development Control Rules (DCR) or amendments thereof are

legislative functions.

58. 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 th e statue itself provide for that

requirement. The Court went on to hold that where the

45

legislature has not chosen to provide for any notice or hearing,

no one can insist upon it and it is not permissible to read

natural justice into such legislative activity.

59. Again, in the case of Bangalore Development Authority

v. Aircraft Employees’ Cooperative Society Limited and

Others

21, the scheme for finalization of the development plan

as provided under the Karnataka Town and Country Planning

Act, 1961 was considered and the said power was held to be

in exercise of the legislative powers.

60. Recently, a three-Judges Bench of this Court in the case

of Rajeev Suri v. Delhi Development Authority and

Others

22, after considering the earlier judgments, held that

the change of use of government land which is of general

nature would be a function which has a quasi-legislative hue

to it.

61. 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. We

21

(2012) 3 SCC 442 : 2012 INSC 50

22

(2022) 11 SCC 1: 2021 INSC 4

46

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.

C. Whether the NGT could have issued directions to the

legislative body to exercise its legislative functions in

a particular manner?

62. A perusal of the first order of NGT would reveal that the

NGT, in effect, has issued directions to the authority

empowered to enact the development plan, to do so in a

particular manner. The question therefore that will have to be

considered is as to whether the NGT could have exercised its

jurisdiction in such a manner, to issue such directions.

63. In the case of V.K. Naswa v. Home Secretary, Union of

India and Others

23, the petitioner-in-person had approached

this Court to issue directions to the Central Government,

through the Ministry of Law & Justice, to amend the law for

taking action against a person for showing any kind of

disrespect to the national flag or for not observing the terms

contained in the Flag Code of India, 2002. In the alternative,

23

(2012) 2 SCC 542 : 2012 INSC 10

47

it was prayed by the petitioner-in-person that this Court may

be pleased to issue direction(s) in that regard.

64. This Court, in the said case, after surveying various

earlier judgments on the issue, observed thus:

“6. It is a settled legal proposition that the court

can neither legislate nor issue a direction to the

legislature to enact in a particular manner.

7. In Mallikarjuna Rao v. State of A.P. [(1990) 2 SCC

707 : 1990 SCC (L&S) 387 : (1990) 13 ATC 724 : AIR

1990 SC 1251] and V.K. Sood v. Deptt. of Civil

Aviation [1993 Supp (3) SCC 9 : 1993 SCC (L&S) 907

: (1993) 25 ATC 68 : AIR 1993 SC 2285] , this Court

has held that the writ court, in exercise of its power

under Article 226, has no power even indirectly to

require the executive to exercise its law-making

power. The Court observed that it is neither legal nor

proper for the High Court to issue directions or

advisory sermons to the executive in respect of the

sphere which is exclusively within the domain of the

executive under the Constitution. The power under

Article 309 of the Constitution to frame rules is the

legislative power. This power under the Constitution

has to be exercised by the President or the Governor

of a State, as the case may be. 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 . While

deciding the said case, the Court placed reliance on

a large number of judgments, particularly Narinder

Chand Hem Raj v. UT, H.P. [(1971) 2 SCC 747 : AIR

1971 SC 2399] , where it has been held that

legislative power can be exercised only by the

legislature or its delegate and none else.

48

8. In State of H.P. v. Parent of a Student of Medical

College [(1985) 3 SCC 169 : AIR 1985 SC 910] , this

Court deprecated the practice adopted by the courts

to issue directions to the legislature to enact a

legislation to meet a particular situation observing :

(SCC p. 174, para 4)

“4. … 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. Thus the Division Bench was

clearly not entitled to do. It is entirely a

matter for the executive branch of the

Government to decide whether or not to

introduce any particular legislation.”

9. In Asif Hameed v. State of J&K [1989 Supp (2)

SCC 364 : AIR 1989 SC 1899] this Court while

dealing with a case like this at hand observed : (SCC

p. 374, para 19)

“19. … While doing so the court must

remain within its self-imposed limits. The

court sits in judgment on the action of a

coordinate branch of the Government.

While exercising power of judicial review of

administrative action, the court is not an

appellate authority. The Constitution does

not permit the court to direct or advise the

executive in matters of policy or to

sermonise qua any matter which under the

Constitution lies within the sphere of

legislature or executive.”

10. In Union of India v. Deoki Nandan

Aggarwal [1992 Supp (1) SCC 323 : 1992 SCC (L&S)

49

248 : (1992) 19 ATC 219 : AIR 1992 SC 96] , this

Court similarly observed : (SCC p. 332, para 14)

“14. … It is not the duty of the court either

to enlarge the scope of the legislation.…

The court cannot rewrite, recast or

reframe the legislation for the very good

reason that it has no power to legislate.

The power to legislate has not been

conferred on the courts.”

11. Similarly in Ajaib Singh v. Sirhind Coop.

Marketing-cum-Processing Service Society Ltd. [(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”. The court cannot interpret the statutory

provision in such a manner “which would amount to

legislation intentionally left over by the legislature”.

12. A similar view has been reiterated by this Court

in Union of India v. Assn. for Democratic

Reforms [(2002) 5 SCC 294 : AIR 2002 SC 2112]

observing that the court cannot issue direction to the

legislature for amending the Act or Rules. It is for

Parliament to amend the Act or Rules. In District

Mining Officer v. TISCO [(2001) 7 SCC 358] , this Court

held that function of the court is only to expound the

law and not to legislate.

13. Similarly, in Supreme Court Employees' Welfare

Assn. v. 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. (See also State of

J&K v. A.R. Zakki [1992 Supp (1) SCC 548 : 1992

SCC (L&S) 427 : (1992) 20 ATC 285 : AIR 1992 SC

1546] .)

14. In Union of India v. Prakash P. 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.

15. The issue involved herein was considered by this

Court in University of Kerala v. Council of Principals

of Colleges [(2010) 1 SCC 353 : AIR 2010 SC 2532] .

The Court elaborately explained the scope of

separation of powers of different organs of the State

under our Constitution; the validity of judicial

legislation and if it is at all permissible, its limits; and

the validity of judicial activism and the need for

judicial restraint, etc. The Court observed : (SCC p.

361, para 13)

“13. … ‘19. At the outset, we would say

that it is not possible for this Court to give

any directions for amending the Act or the

statutory rules. It is for Parliament to

amend the Act and the rules.’ [Ed. : As

observed in Union of India v. Assn. for

Democratic Reforms, (2002) 5 SCC 294, p.

309, para 19.] ”

16. In State of U.P. v. Jeet S. Bisht [(2007) 6 SCC 586]

, 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.

17. In Delhi Jal Board v. National Campaign for

Dignity and Rights of Sewerage and Allied

Workers [(2011) 8 SCC 568 : (2011) 2 SCC (L&S) 375]

, this Court while dealing with the issue made the

observation that in exceptional circumstances where

there is inaction by the executive, for whatever

reason, the judiciary must step in, in exercise of its

constitutional obligations to provide a solution till

such time the legislature acts to perform its role by

enacting proper legislation to cover the field. (See

also Vishaka v. State of Rajasthan [(1997) 6 SCC 241

51

: 1997 SCC (Cri) 932 : AIR 1997 SC 3011] ; Common

Cause v. Union of India [(2008) 5 SCC 511 : AIR 2008

SC 2116] and Destruction of Public and Private

Properties v. State of A.P. [(2009) 5 SCC 212 : (2009)

2 SCC (Cri) 629 : AIR 2009 SC 2266] )

18. Thus, it is crystal clear that the court has a very

limited role and in exercise of that, it is not open to

have judicial legislation. Neither the court can

legislate, nor has it any competence to issue

directions to the legislature to enact the law in a

particular manner.”

[emphasis supplied by us]

65. Constitution of India recognizes the independence and

separation of powers amongst the three branches of the State

viz. the Legislature, the Executive and the Judiciary. Each of

the branches are co-equal. The Parliament or the Legislature

is entrusted with the function of legislation, i.e., enacting the

laws. The Executive is entrusted with the function and power

to implement those laws and discharge their functions in

accordance with the provisions made in the Constitution of

India and the laws so enacted. 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.

As to what should be the laws and the policy behind the said

laws is clearly within the domain of the Legislature. It is a

52

different matter for Judiciary to examine as to whether a

particular piece of legislation stands the scrutiny of law within

the limited grounds of judicial review available. However,

giving a direction or advisory sermons to the Executive in

respect of the sphere which is exclusively within the domain

of the Executive or the Legislature would neither be legal nor

proper. The Court cannot be permitted to usurp the functions

assigned to the Executive, the Legislature or the subordinate

legislature. The Court cannot also assume a supervisory role

over the rule-making power of the Executive under Article 309

of the Constitution of India.

66. It is a settled law that the Constitution of India does not

permit the courts to direct or advise the Executive in the

matters of policy or to sermonize qua any matter which under

the Constitution lies within the sphere of Legislature or

Executive. It is also settled that the courts cannot issue

directions to the Legislature for enacting the laws in a

particular manner or for amending the Acts or the Rules. It is

for the Legislature to do so.

53

67. A Constitution Bench, in the case of Manoj Narula v.

Union of India

24, was considering various questions. 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. Answering the

question in the negative, the Court observed thus:

“67. The question that is to be posed here is whether

taking recourse to this doctrine for the purpose of

advancing constitutional culture, can a court read a

disqualification to the already expressed

disqualifications provided under the Constitution

and the 1951 Act. The answer has to be in the

inevitable negative, for there are express provisions

stating the disqualifications and second, it would

tantamount to crossing the boundaries of judicial

review.”

68. This Court, in the case of Satpal Saini (supra),

considered whether it was permissible for the High Court to

call upon the State Government to amend the provisions of

Section 118 of the Himachal Pradesh Tenancy and Land

Reforms Act, 1972. The directions were issued by the High

Court to the State Government to make amendment within 90

24

(2014) 9 SCC 1 : 2014 INSC 568

54

days. 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 held that the directions cannot be

issued to the legislature to enact a law. The power to enact

legislation is a plenary constitutional power which is vested in

the Parliament and the State Legislatures.

69. 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. If the High Courts and this Court, in their

extra-ordinary powers under Articles 226 and 32 of the

Constitution cannot do so, the answer to the question as to

whether a Tribunal constituted under a statute, having a

limited jurisdiction, can do so or not, would be obviously ‘No’.

70. 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

55

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.

D. Whether observations in Para 47 of the Mantri

Techzone Private Limited (supra) would operate as

res judicata?

71. A reliance in this respect is placed by respondent No.1 on

the judgment of this Court in the case of Mantri Techzone

Private Limited (supra). It will be relevant to refer to the

arguments advanced by the State Government and the other

private parties in the said case, which read thus:

“27. The learned Advocate General, Shri Udaya

Holla, appearing for the appellant State of Karnataka

in CAs Nos. 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. It is

also aggrieved by the order of NGT directing the

authorities to demolish all the offending

constructions raised/built in the buffer zone, which

will result in demolition of 95% of the buildings in

Bengaluru. It is submitted that the Revised Master

Plan is statutory in nature and NGT has no power,

competence or jurisdiction to consider the validity or

vires of any statutory provision/regulation.

56

Therefore, the order of NGT to that extent is liable to

be set aside.

28. The learned Senior Counsel appearing for the

appellants in other cases, have also supported the

arguments of the learned Advocate General. It was

contended that the Revised Master Plan provides for

a 30 m buffer zone around the lakes and a buffer zone

of 50 m, 25 m and 15 m from the primary, secondary

and tertiary drains, respectively to be measured from

the centre of the drain. 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.

Variation of buffer zone, as directed by NGT is

without any legal and scientific basis and has the

effect of amending the Revised Master Plan, 2015,

without there being any challenge to the same or any

relief sought with respect to the said Revised Master

Plan.”

72. It will be relevant to refer to the contention made by the

counsel appearing on behalf of the applicants in the said case,

which reads thus:

“29. On the other hand, Shri Sajan Poovayya,

learned Senior Counsel, appearing for the applicants,

has fairly submitted that the applications were filed

only against the appellants in CAs Nos. 5016 and

8002-03 of 2016 (Respondents 9 and 10). He has no

objection to set aside the order insofar as the

appellants in other appeals including the State of

Karnataka are concerned. He has also no objection

to set aside the general conditions and directions of

NGT in para 1 of the order dated 4-5-2016 [Forward

Foundation v. State of Karnataka, 2016 SCC OnLine

NGT 1409] except the directions issued against

Respondents 9 and 10. In view of the above, it is not

57

necessary to examine the contentions of the learned

Advocate General in Civil Appeals Nos. 4923-24 of

2017. 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

th May 2016 in

the case of Forward Foundation v. State of Karnataka

25,

except the directions issued against Respondents 9 and 10. It

could thus be seen that this Court, in view of the submissions

recorded on behalf of the counsel for the applicants, did not

find it necessary to consider the contentions urged in the other

civil appeals except the appeals filed against Respondents 9

and 10. As such, the observations made in para 47 of Mantri

Techzone Private Limited (supra) will have to be construed

as restricted to the cases of respondent Nos. 9 and 10. The

position is further clarified from the observations of this Court

in the said case in paras 60-61.

25

2016 SCC OnLine NGT 1409

58

74. As to what could be a binding precedent has been

succinctly observed by this Court in the case of Union of India

and Others v. Dhanwanti Devi and Others

26, which reads

as under:

“9. ……It is not everything said by a Judge while

giving judgment that constitutes a precedent. The

only thing in a Judge's decision binding a party is the

principle upon which the case is decided and for this

reason it is important to analyse a decision and

isolate from it the ratio decidendi. According to the

well-settled theory of precedents, every decision

contains three basic postulates—(i) findings of

material facts, direct and inferential. 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.

A decision is only an authority for what it actually

decides. What is of the essence in a decision is its

ratio and not every observation found therein nor

what logically follows from the various observations

made in the judgment. Every judgment must be read

as applicable to the particular facts proved, or

assumed to be proved, since the generality of the

expressions which may be found there is not

intended to be exposition of the whole law, but

governed and qualified by the particular facts of the

case in which such expressions are to be found. It

would, therefore, be not profitable to extract a

sentence here and there from the judgment and to

build upon it because the essence of the decision is

its ratio and not every observation found therein. The

enunciation of the reason or principle on which a

question before a court has been decided is alone

binding as a precedent. The concrete decision alone

26

(1996) 6 SCC 44 : 1996 INSC 911

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 is only the principle laid down in the

judgment that is binding law under Article 141 of the

Constitution. A deliberate judicial decision arrived at

after hearing an argument on a question which arises

in the case or is put in issue may constitute a

precedent, no matter for what reason, and the

precedent by long recognition may mature into rule

of stare decisis. It is the rule deductible from the

application of law to the facts and circumstances of

the case which constitutes its ratio decidendi.”

75. This Court, in the case of Dhanwanti Devi (supra) in

paragraph 9, has held that it is not profitable to extract a

sentence here and there from the judgment and to build upon

it. It has been held that the essence of the decision is its ratio

and not every observation found therein. 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.

76. Though at a first blush, the observations made in para

47 of the judgment in the case of Mantri Techzone Private

Limited (supra), would appear to support the case of the

respondents, but if the entire judgment in the said case is

perused, it is not so. 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. It was therefore

argued that the order of the NGT to that extent was liable to

be set aside. It was similarly argued on behalf of the other

appellant that the order of the NGT impugned therein which

revised buffer zones also had the effect of amending the

Revised Master Plan 2015. A perusal of para 29 of the Mantri

Techzone Private Limited (supra) would clearly reveal that

the counsel appearing for the applicants before the High Court

has fairly conceded to the setting aside of those general

directions. It could thus be seen that, though the issue was

raised before the High Court with regard to the power of the

NGT to issue such directions, this Court did not go into that

issue on the basis of the concessions made by the appellants.

We are therefore of the considered view that the observations

found in para 47 of the Mantri Techzone Private Limited

(supra) could not be construed to be a precedent or a ratio

decidendi.

61

77. We may also gainfully refer to the observations made by

this Court in the case of Director General (Road

Development) National Highways Authority of India

(supra). In the said case, one of the challenges was the

notification issued by the State Government under Section

154 of the MRTP Act. The notification dated 14

th November

2017 referred to the general directions issued by the NGT in

its order dated 19

th May 2015. 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”. It further directed that in the event the 100 feet

area abutting hills, has already been developed, in that area

no permission be granted for additional FSI or TDR. The Court

observed thus:

“92. In the present case, the State of Maharashtra

has not shown any material or file containing the

reasons behind the directive of 14-11-2017. It is not

in dispute that the direction was consequential to,

and solely based on the directions of the NGT in para

17(e). As noticed earlier, those directions were not

based on any scientific evidence or report of any

technical expert. Furthermore, even the impugned

notification does not specify what constitutes “hills”,

and how they can be applied in towns and

62

communities set in undulating areas and hilly

terrain. This is not only vague, but makes the

directions arbitrary as they can be applied at will by

the authorities concerned. More importantly, they

amount to a blanket change of all regional and

development plans. 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. That they are based only on the NGT's

orders [Aam Aadmi Lokmanch v. State of

Maharashtra, 2015 SCC OnLine NGT 11] , only

underlines the lack of any application of mind on the

part of the State, while issuing them.

93. For the above reasons, we hold that the

impugned judgment [ Harshada Coop. Housing

Society Ltd. v. State of Maharashtra, 2018 SCC

OnLine Bom 2576 : (2018) 6 Bom CR 154] of the

Bombay High Court cannot be sustained; it is set

aside. Consequently, the directions in the notification

under Section 154 (dated 14-11-2017) are hereby

quashed.”

78. 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. This Court held that the

complete absence of any reasons as to why the State issued

such directions, coupled with the lack of any supporting

expert report or input, renders such a directive to be an

63

arbitrary exercise of power. This Court, therefore, disapproved

such a directive issued under Section 154 of the MRTP Act

merely on the basis of the directions issued by the NGT and

set aside the same.

E. Development Plan 2041.

79. In any case, we find that the appellants herein, while

preparing the draft development plan , have taken into

consideration the suggestions given by the NGT. Chapter

12.10 of the development plan elaborately considers the

directions given by the NGT.

80. Insofar as “Green Belt” areas, core areas and non-core

areas are concerned, the development plan has considered as

under:

“12.11.4 Implication of Ld. NGT Order

That it is a settled position of law that normally a

Tribunal will deal with the controversy brought

before it. That is to say, it will adjudicate upon case

put up by any aggrieved party before it. Without

conceding on the point of limitation, that the Learned

Tibunal could have only adjudicated upon the case

put up before it. The case put up before it in nutshell

was that no construction should be allowed in forests

and green belt area. As already submitted green belt

areas are those areas in which the land is also owned

by the private land owners and is occupied by the

structures. As per IDP Provisions, only

reconstruction is permitted in the area and that too

64

on old lines. No new construction or increase in

constructed area is permissible in these areas. 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. Further, no construction is

permissible on the forest land until or unless

proposal is cleared by the Competent Authority i.e.

Central Government, but while disposing of the case,

the Learned Tribunal has entered the field, which

does not belong to it. Whether the building should

be one storey or three storeys is for the Competent

Authority to decide. Town Planning does not come

under the purview of the NGT. Further the state of

Himachal Pradesh is not a non-compliant State. It

has been taking care of environment and has also

been taking care of Town Planning.”

81. 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. It provides that as per the provision,

reconstruction would be permitted in the area and that too on

old lines. No more new construction or increase in constructed

area is permissible in these areas. It further provided that

insofar as forest lands are concerned, no construction upon

them would be permitted unless there is a clearance from the

Central Government as per the provisions of the FC Act.

82. Not only that, as has already been referred to

hereinabove, the learned Advocate General has placed on

65

record a Cabinet decision which provides that construction

would be permitted only in those plots in which there are no

trees. It is further pointed out that the construction in “Green

Belt” areas, would be permitted only to the extent of single

storey with attic.

83. The development plan has elaborately considered as to

how vertical construction will have to be preferred over the

horizontal construction, inasmuch as the land to be utilized

for actual construction would be lesser and there would be

more open space.

84. The development plan also consists of the Chapters on

“Land Use Zoning” and “Development Control Regulations”. In

“Green Belt” areas, limited construction with one parking floor

+ one floor + habitable attic would be permitted for residential

use only. It is further clear that the parking floor is

permissible only where the plot of land has an access to the

motorable road. The maximum permissible height shall be 10

metre. The maximum permissible FAR shall be 1.0. The

setbacks norms as prescribed for R1 use in core area shall be

applicable. Reconstruction on old lines shall be permissible

with same plinth area and number of storeys. Cutting and

66

felling of trees shall be prohibited. Change of land use and

building use shall be prohibited. So also detailed provision has

been made for heritage land use as well as core areas and non-

core areas.

85. A special provision has been made for Sinking and

Sliding Areas which reads thus:

“17.2.2.9. Sinking and Sliding Area

i. The development permission shall be granted

by the Competent Authority in whose

jurisdiction the Sinking and Sliding Area falls.

ii. The Regulations as applicable for Core/Green

Area and Non-Core Area shall be applicable in

Sinking and Sliding Area.

iii. 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. The Soil Investigation

Report shall be given by the Geologist in the

prescribed form. In case of negative

observations, the construction shall not be

allowed/shall be allowed as per conditions

imposed by the consultant.”

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 Soil Investigation Report is

required to be given by the Geologist in the prescribed form.

86. It can thus be seen that while preparing the development

plan, due care has been taken to ensure that environmental

aspects are taken care of.

87. 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.

88. However, we are of the considered view that the NGT

could not have directed the delegatee who has been delegated

powers under the TCP Act to enact the regulations, to do so in

a particular manner. As a matter of fact, the NGT has imposed

fetters on the exercise of powers by the delegatee, who has

been delegated such powers by the competent legislature. In

any case, it is clear that there were sufficient safeguards under

the provisions of the TCP Act inasmuch as an aggrieved citizen

was entitled to raise objections, give suggestions and was also

entitled to an opportunity of hearing on more than one

68

occasion. 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. We are informed

that 97 objections were received to the draft development plan

in the present case. An opportunity of being heard was given

to all of them before finalization of the draft development plan.

We are also informed that out of 97 objectors, all, except 5,

had requested for more relaxation.

89. The first order of NGT is also sought to be attacked by

the appellants on the ground that the subject matter of the

dispute did not concern any of the enactments listed in

Schedule I of the NGT Act and therefore, the OA filed under

Section 14 of the NGT Act itself was not tenable.

90. Since we find that the first order of NGT is not

sustainable on the ground of encroaching upon the powers of

the delegatee to enact a delegated legislation and also amounts

to imposing fetters on the exercise of such powers, we do not

propose to go into the said issue and we keep the same open

to be adjudicated upon in appropriate proceedings.

69

Transferred Case (C) No. 2 of 2023.

F. Whether the NGT was justified in passing the order

dated 14

th

October 2022 when the High Court was

seized of the same issue during the pendency of Civil

Writ Petition No.5960 of 2022?

91. Insofar as the second order of NGT is concerned, the

same arises out of publication of the draft development plan

on 8

th February 2022. After the draft development plan was

published, in all 97 objections/suggestions were received by

the State of Himachal Pradesh within the stipulated time

period and the same were heard. 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.

However in the meantime, CWP Nos. 23 and 37 of 2022 were

filed before the High Court of Himachal Pradesh praying inter

alia for stay of the draft development plan.

92. Subsequent to the finalization of the draft development

plan, the respondent No.1 herein filed another application

being OA No. 297 of 2022 before the NGT. The NGT passed an

ex parte ad interim order dated 12

th May 2022 restraining the

70

appellants herein from taking any further steps in pursuance

of the draft development plan.

93. Being aggrieved thereby, the State of Himachal Pradesh

– appellant herein preferred CWP No. 5960 of 2022 before the

High Court of Himachal Pradesh under Article 226/227 of the

Constitution of India. A prayer was made in the said writ

petition to declare the order of the NGT dated 12

th May 2022

to be without jurisdiction. It was also prayed that the Town

and Country Planning Department and Municipal Corporation

be permitted to perform their statutory duties and be

authorized to grant approvals, sanctions a nd building

permissions in accordance with the development plan. The

respondents therein have filed their reply to the said writ

petition and the appellants filed their rejoinder.

94. Despite the pendency of CWP No. 5960 of 2022 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.

95. 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

th May 2022.

96. This Court, vide order dated 14

th November 2022, in Civil

Appeal Nos. 5348-5349 of 2019, transferred the said CWP No.

5960 of 2022 before itself and directed it to be heard along

with Civil Appeal Nos. 5348-5349 of 2019. The said writ

petition has been renumbered as Transferred Case (C) No. 2 of

2023.

97. At the outset, we allow the application seeking leave to

amend the writ petition so as to challenge the second order of

NGT and the impleadment application filed before the High

Court of Himachal Pradesh.

98. Subsequently, on 3

rd May 2023, we passed an order in

these proceedings, as under:

“1. We are informed that on account of directions

issued by the National Green Tribunal (NGT), the

final development plan which is presently at the stage

of ‘draft notification’ could not be published. We are

further informed by the learned Advocate General for

the State of Himachal Pradesh that 97 objections

have been received to the draft development plan.

2. In light of the facts and circumstances of these

cases, we find that it will be appropriate, that the

State Government decides the objections received to

72

the draft development plan and after considering the

same issue a final development plan.

3. 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.

4. We further clarify that after the final development

plan is published, it would not be given effect to for a

period of one month from the date of its publication.

5. It is further directed that no construction should

be permitted on the basis of the draft development

plan.

6. Learned counsel appearing for the impleadors

submits that certain constructions are being carried

out without there being a sanctioned plan.

7. If any such construction is carried out without

there being a sanctioned plan, indisputably, such a

construction would be an unauthorized

construction.

8. We, therefore, grant liberty to the applicant(s) to

take recourse to the remedy available under Article

226 of the Constitution of India and bring

unauthorized constructions to the notice of the High

Court.

9. Needless to state that on such petitions being filed,

the High Court would decide such petitions with due

urgency that the issue requires.

10. List these matters on 12.07.2023.”

99. In pursuance of the aforesaid directions, the Town and

Country Planning Department, Government of Himachal

Pradesh had notified the final development plan on 20

th June

2023.

73

100. It could thus be seen that when the second order of NGT

was passed, the writ petition challenging the interim order

dated 12

th May 2022 was very much pending before the High

Court. Not only that, two other writ petitions being CWP Nos.

23 and 37 of 2022, challenging the draft development plan,

were also pending before the High Court. It is thus clear that

the High Court was in seisin of the matter related to

finalization of the draft development plan.

101. A Constitution Bench of this Court in the case of L.

Chandra Kumar v. Union of India and Others

27 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”). The

AT Act was constituted under the enabling provisions of Article

323-A of the Constitution of India. Sub-clause (d) of Clause (2)

of Article 323-A specifically enables the Parliament to legislate

a law for establishment of AT Act and also provides for

exclusion of jurisdiction of all the Courts except jurisdiction of

27

(1997) 3 SCC 261 : 1997 INSC 288

74

this Court under Article 136 with respect to disputes or

complaints referred to in Clause (1). This Court after scanning

the entire law on the question as to whether the powers of this

Court and High Courts of judicial review as could be found in

Articles 32 and 226 respectively amounts to basic structure or

not, observed thus in paragraph nos. 78 & 79:-

“78. The legitimacy of the power of Courts within

constitutional democracies to review legislative

action has been questioned since the time it was first

conceived. The Constitution of India, being alive to

such criticism, has, while conferring such power

upon the higher judiciary, incorporated important

safeguards. An analysis of the manner in which the

Framers of our Constitution incorporated provisions

relating to the judiciary would indicate that they were

very greatly concerned with securing the

independence of the judiciary. These attempts were

directed at ensuring that the judiciary would be

capable of effectively discharging its wide powers of

judicial review. 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 inclusion of such elaborate provisions

appears to have been occasioned by the belief that,

armed by such provisions, the superior courts would

be insulated from any executive or legislative

attempts to interfere with the making of their

decisions. The Judges of the superior courts have

been entrusted with the task of upholding the

Constitution and to this end, have been conferred the

power to interpret it. It is they who have to ensure

that the balance of power envisaged by the

Constitution is maintained and that the legislature

75

and the executive do not, in the discharge of their

functions, transgress constitutional limitations. It is

equally their duty to oversee that the judicial

decisions rendered by those who man the

subordinate courts and tribunals do not fall foul of

strict standards of legal correctness and judicial

independence. 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.

Consequently, Judges of the latter category can never

be considered full and effective substitutes for the

superior judiciary in discharging the function of

constitutional interpretation. 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. Ordinarily,

therefore, the power of High Courts and the Supreme

Court to test the constitutional validity of legislations

can never be ousted or excluded.

79. We also hold 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. This is because a

situation where the High Courts are divested of all

other judicial functions apart from that of

constitutional interpretation, is equally to be

avoided.”

102. 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. This Court further goes on to observe 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.

103. It will be further relevant to refer to the following

observations of this Court in paragraph nos. 90 to 92 in the

said case which read thus: -

“90. We may first address the issue of exclusion of

the power of judicial review of the High Courts. We

have already held that in respect of the power of

judicial review, the jurisdiction of the High Courts

under Article 226/227 cannot wholly be excluded. It

has been contended before us that the Tribunals

should not be allowed to adjudicate upon matters

where the vires of legislations is questioned, and that

they should restrict themselves to handling matters

where constitutional issues are not raised. We

cannot bring ourselves to agree to this proposition as

that may result in splitting up proceedings and may

cause avoidable delay. 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.

Moreover, even in these special branches of law,

some areas do involve the consideration of

constitutional questions on a regular basis; for

instance, in service law matters, a large majority of

cases involve an interpretation of Articles 14, 15 and

16 of the Constitution. To hold that the Tribunals

have no powe r to handle matters involving

constitutional issues would not serve the purpose for

which they were constituted. 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.

While saving the power of judicial review of legislative

action vested in the High Courts under Article

226/227 of the Constitution, it will ensure that

frivolous claims are filtered out through the process

of adjudication in the Tribunal. The High Court will

also have the benefit of a reasoned decision on merits

which will be of use to it in finally deciding the

matter.

91. It has also been contended before us that even in

dealing with cases which are properly before the

Tribunals, the manner in which justice is dispensed

by them leaves much to be desired. Moreover, the

remedy provided in the parent statutes, by way of an

appeal by special leave under Article 136 of the

Constitution, is too costly and inaccessible for it to

be real and effective. Furthermore, the result of

providing such a remedy is that the docket of the

Supreme Court is crowded with decisions of

Tribunals that are challenged on relatively trivial

grounds and it is forced to perform the role of a First

Appellate Court. 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 R.K. Jain's case, after taking note of

these facts, it was suggested that the possibility of an

appeal from the Tribunals on questions of law to a

Division Bench of a High Court within whose

territorial jurisdiction the Tribunal falls, be pursued.

It appears that no follow-up action has been taken

pursuant to the suggestion. Such a measure would

have improved matters considerably. Having regard

to both the afore-stated contentions, we hold 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.

92. We may add here that under the existing system,

direct appeals have been provided from the decisions

of all Tribunals to the Supreme Court under Article

136 of the Constitution. In view of our above -

mentioned observations, this situation will also

stand modified. 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.”

104. It would thus reveal that the Constitution Bench of this

Court in unequivocal terms has held that the Tribunals will

have a power to handle matters involving constitutional

issues. This Court held that if it is held that the Tribunals do

not have power to handle matters involving constitutional

issues, they could not serve the purpose for which they were

79

constituted. 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. It held that while saving powers of

judicial review of legislative action, vested in the High Courts

under Articles 226 and 227 would ensure that frivolous claims

are filtered out through the process of adjudication in the

Tribunal. The High Court will also have the benefit of a

reasoned decision on merits which will be of use to it in finally

deciding the matter. 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.

105. The perusal of paragraph 92 of the judgment of the

Constitution Bench would further reveal that the function of

the Tribunals is only supplementary and all such decisions of

80

the Tribunals would be subject to scrutiny before the Division

Bench of respective High Courts. The Constitution Bench

holds that all such Tribunals will continue to act as the only

Courts of first instance in respect of areas of law for which

they have been constituted. It has been held that it will not be

open for a litigant to directly approach the High Courts even

in cases where the question of vires of statutory legislations

(except as mentioned where the legislations which creates the

particular legislation) is challenged by availing the jurisdiction

of the Tribunal concerned.

106. It could thus clearly be seen that it is a settled position

of law that the High Courts exercise the power of judicial

review over all the Tribunals which are situated within its

jurisdiction.

107. We may gainfully refer to the observations of this Court

in the case of Priya Gupta and Another v. Additional

Secretary, Ministry of Health and Family Welfare and

Others

28, wherein this Court has succinctly culled down the

position as under : -

28

(2013) 11 SCC 404 : 2012 INSC 601

81

“12. The government departments are no exception

to the consequences of wilful disobedience of the

orders of the Court. Violation of the orders of the

Court would be its disobedience and would invite

action in accordance with law. The orders passed by

this Court are the law of the land in terms of Article

141 of the Constitution of India. No Court or Tribunal

and for that matter any other authority can ignore

the law stated by this Court. Such obedience would

also be conducive to their smooth working, otherwise

there would be confusion in the administration of law

and the respect for law would irretrievably suffer.

There can be no hesitation in holding that the law

declared by the higher court in the State is binding

on authorities and tribunals under its

superintendence and they cannot ignore it. 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 must be

remembered that predictability and certainty are

important hallmarks of judicial jurisprudence

developed in this country, as discipline is sine qua

non for effective and efficient functioning of the

judicial system. If the Courts command others to act

in accordance with the provisions of the Constitution

and to abide by the rule of law, it is not possible to

countenance violation of the constitutional principle

by those who are required to lay down the law.

(Ref. East India Commercial Co. Ltd. v. Collector of

Customs and Officials Liquidator v. Dayanand) (SCC

p.57, paras 90-91).”

108. 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. It held

that such obedience would also be conducive to their smooth

82

working, otherwise there would be confusion in the

administration of law and the respect for law would

irretrievably suffer. It has been held that the law declared by

the higher court in the State is binding on authorities and

tribunals under its superintendence and they cannot ignore

it. This Court expressed a caution 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. This Court further held that predictability and

certainty are important hallmarks of judicial jurisprudence

developed in this country, as discipline is sine qua non for

effective and efficient functioning of the judicial system.

109. In view of the settled legal position, we are of the view

that the continuation of the proceedings by the NGT during

the pendency of the writ petitions before the High Court was

not in conformity with the principles of judicial propriety.

Needless to state that the High Court of Himachal Pradesh,

insofar as its territorial jurisdiction is concerned, has

supervisory jurisdiction over the NGT. Despite pendency of the

proceedings before the High Court including the one

83

challenging the interim order dated 12

th May 2022 passed by

NGT, the NGT went ahead with the passing of the second order

impugned herein.

110. It will also be relevant to refer to the observations of this

Court in the case of Raghu Ramakrishna Raju Kanumuru

(Member of Parliament) (supra), which read thus:

“13. We are, therefore, of the considered view that it

was not appropriate on the part of the learned NGT

to have continued with the proceedings before it,

specifically, when it was pointed out that the High

Court was also in seisin of the matter and had passed

an interim order permitting the construction. The

conflicting orders passed by the learned NGT and the

High Court would lead to an anomalous situation,

where the authorities would be faced with a difficulty

as to which order they are required to follow. There

can be no manner of doubt that in such a situation,

it is the orders passed by the constitutional courts,

which would be prevailing over the overs passed by

the statutory tribunals.”

111. 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.

84

112. In any case, the second order of NGT is passed basically

on the basis of the first order of NGT. 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. This, apart from

the fact that as discussed hereinabove, on the ground of

judicial propriety, the NGT ought not to have continued with

the proceedings after the High Court was in seisin of the

matter and specifically when it was informed about the same.

G. Balancing the need for Development and Protection

of the Environment.

113. A need for maintaining a balance between the

development and protection/preservation of environmental

ecology has been emphasized by this Court time and again.

114. A three-Judges Bench of this Court in the case of Indian

Council for Enviro-Legal Action v. Union of India and

Others

29, has observed thus:

“31. ….. 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 developments. Both development

29

(1996) 5 SCC 281 : 1996 INSC 237

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. In other words, in

order to prevent ecological imbalance and

degradation that developmental activity is sought to

be regulated.”

115. This Court, again in the case of Essar Oil Limited v.

Halar Utkarsh Samiti and Others

30, emphasizing on the

need for removal of deadlock between the development on the

one hand and the environment on the other hand, observed

thus:

“27. This, therefore, is the aim, namely, to balance

economic and social needs on the one hand with

environmental considerations on the other. But in a

sense all development is an environmental threat.

Indeed, the very existence of humanity and the rapid

increase in the population together with

consequential demands to sustain the population

has resulted in the concreting of open lands, cutting

down of forests, the filling up of lakes and pollution

of water resources and the very air which we breathe.

However, there need not necessarily be a deadlock

between development on the one hand and the

environment on the other. The objective of all laws on

environment should be to create harmony between

the two since neither one can be sacrificed at the

altar of the other…..”

30

(2004) 2 SCC 392 : 2004 INSC 40

86

116. Emphasizing the need for sustainable development by

balancing between the environmental protection and

developmental activities, this Court, in the case of N.D. Jayal

and Another v. Union of India and Others

31, observed thus:

“22. Before adverting to other issues, certain aspects

pertaining to the preservation of ecology and

development have to be noticed. In Vellore Citizens'

Welfare Forum v. Union of India [(1996) 5 SCC 647]

and in M.C. Mehta v. 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”.

This is a development strategy that caters to the

needs of the present without negotiating the ability of

upcoming generations to satisfy their needs. 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. It is a guarantee to

the present and a bequeath to the future. All

environment-related developmental activities should

benefit more people while maintaining the

environmental balance. This could be ensured only

by strict adherence to sustainable development

without which life of the coming generations will be

in jeopardy.”

117. Again, in the said case, stressing on the right to clean

environment to be a right guaranteed under Article 21 of the

Constitution and also noting that the right to development also

31

(2004) 9 SCC 362 : 2003 INSC 438

87

is a component of Article 21 of the Constitution, this Court

observed thus:

“24. The right to development cannot be treated as a

mere right to economic betterment or cannot be

limited as a misnomer to simple construction

activities. The right to development encompasses

much more than economic well-being, and includes

within its definition the guarantee of fundamental

human rights. The “development” is not related only

to the growth of GNP. In the classic

work, Development As Freedom , the Nobel prize

winner Amartya Sen pointed out that “the issue of

development cannot be separated f rom the

conceptual framework of human right”. This idea is

also part of the UN Declaration on the Right to

Development. The right to development includes the

whole spectrum of civil, cultural, economic, political

and social process, for the improvement of peoples'

well-being and realization of their full potential. It is

an integral part of human rights. Of course,

construction of a dam or a mega project is definitely

an attempt to achieve the goal of wholesome

development. Such works could very well be treated

as integral component for development.”

118. Recently, in the case of Rajeev Suri (supra), emphasizing

the need for sustainable development, this Court observed

thus:

“520. The principle of sustainable development and

precautionary principle need to be understood in a

proper context. The expression “sustainable

development” incorporates a wide meaning within its

fold. It contemplates that development ought to be

sustainable with the idea of preservation of natural

environment for present and future generations. It

would not be without significance to note that

88

sustainable development is indeed a principle of

development, it posits controlled development. The

primary requirement underlying this principle is to

ensure that every development work is sustainable;

and this requirement of sustainability demands that

the first attempt of every agency enforcing

environmental rule of law in the country ought to be

to alleviate environmental concerns by proper

mitigating measures. The future generations have an

equal stake in the environment and development.

They are as much entitled to a developed society as

they are to an environmentally secure society.

521. By the Declaration on the Right to

Development, 1986, the United Nations has given

express recognition to a right to development. Article

1 of the Declaration defines this right as:

“1. The right to development is an

inalienable human right by virtue of which

every human person and all peoples are

entitled to participate in, contribute to,

and enjoy economic, social, cultural and

political development, in which all human

rights and fundamental freedoms can be

fully realized.”

522. The right to development, thus, is intrinsically

connected to the preservance of a dignified life. It is

not limited to the idea of infrastructural

development, rather, it entails human development

as the basis of all development. The jurisprudence in

environmental matters must acknowledge that there

is immense interdependence between the right to

development and the right to natural environment.

523. 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. 2004) p.

354.] ” notes thus:

89

“… Two rights are interdependent if the

level of enjoyment of one is dependent on

the level of enjoyment of the other…””

119. In the case of Resident’s Welfare Association (supra),

this Court, speaking through one of us (B.R. Gavai, J.),

observed thus:

“151. One another important aspect that needs to be

taken into consideration is the adverse impact on

environment on account of haphazard urbanisation.

It will be relevant to refer to Clause 20.3 of the CMP-

2031 which we have already reproduced

hereinabove. It has been recommended that an

Effective Environmental Management Plan be

devised for the region including Chandigarh, which

includes environmental strategy, monitoring

regulation, institutional capacity building and

economic incentives. 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.

152. 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. It further

noted that by the year 2050, more than half of Africa

and Asia's population will live in towns and cities. It

recognised that City Development Strategies (“CDSs”)

have shown how to integrate environmental concerns

in long-term city visioning exercises. It states that

90

environmental mainstreaming can help to

incorporate relevant environmental concerns into the

decisions of institutions, while emerging ideas about

the green urban economy show how density can

generate environmental and social opportunities. It

states that the strategies need to be underpinned

with governance structures that facilitate integration

of environmental concerns in the planning process.

153. The said publication defines EIA to be an

analytical process or procedure that systematically

examines the possible environmental consequences

of the implementation of a given activity (project). It

is aimed to ensure that the environmental

implications of decisions related to a given activity

are taken into account before the decisions are made.

154. Judicial notice is also taken of the cover story

published in the weekly, India Today, dated 24-10-

2022, titled as “Bengaluru — How to Ruin India's Best

City” by Raj Chengappa with Ajay Sukumaran. 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. It takes

note of as to how on account of one major spell of

rain in the September of 2022, the city bore the brunt

of nature's fury. Various areas of the city were

inundated with heavy rains. The loss the flood

caused to the Outer Ring Road tech corridor alone

was estimated to be over Rs 225 crores.

155. 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.

156. The article further notes that rapid expansion

of the city with no appropriate thought given towards

transportation and ease of mobility has led to

nightmarish traffic jams on its arterial roads. It notes

91

that, almost overnight, Bengaluru's municipal

jurisdiction grew from 200 sq km to 800 sq km. It

observes that the only one to benefit was the

politician-businessman-builder nexus, which has

thrived. It further noted that though posh colonies

mushroomed in new areas, the infrastructure lagged,

as roads remained narrow, the drainage poor, and no

adequate provision for garbage disposal too.

157. The article notes that the primary canals known

locally as rajakaluves were once natural rain-fed

streams across which farmers built small bunds over

time, to arrest the flow of water and create lakes. It

further notes that these interlinked man-made lakes

worked as a storm-water drain network. However, in

order to meet the demand for space for construction

and roads, the administrators allowed the lakes to be

breached regularly. The lakes, which once numbered

a thousand-odd, are now reduced to a paltry number.

Worse, the rajakaluves that channelised the storm

water had buildings built over them.

158. The warning flagged by the City of Bengaluru

needs to be given due attention by the legislature,

executive and the policy-makers. It is high time that

before permitting urban development, EIA of such

development needs to be done.”

120. Again, while emphasizing the need for balancing the

development along with preservation of ecology and

environment, this Court, speaking through one of us (B.R.

Gavai, J.), in the case of State of Uttar Pradesh and Others

92

v. Uday Education and Welfare Trust and Others

32, while

referring to the earlier judgments on the issue observed thus:

“100. Though we are allowing the appeals, setting

aside the orders of the learned NGT, and upholding

the action of the State Government in granting

licenses, we would like to remind the State and its

authorities that it is their duty to protect the

environment. The State and its authorities should

ensure that necessary steps are taken for arresting

the problem of declining forest and tree cover. 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.

101. The conservation of forest plays a vital role in

maintaining the ecology. It acts as processors of the

water cycle and soil and also as providers of

livelihoods. As such, preservation and sustainable

management of forests deserve to be given due

importance in formulation of policies by the State. In

this regard, it will be apposite to refer to certain

earlier pronouncements of this Court.

(a) In the case of Samatha v. State of A.P.

[AIR 1997 SC 3297 : (1997) 8 SCC 191], a

three-Judge Bench of this Court after

referring to the earlier judgment in the

case of State of H.P. v. Ganesh Wood

Products [(1995) 6 SCC 363] observed

that, even while considering the grant of

renewal of mining leases, the provisions of

the Forest (Conservation) Act, 1980 and

the Environment (Protection) Act, 1986

would apply. This Court held that the

MOEF and all the States have a duty to

prevent mining operations affecting

forests. It further observed that, whether

mining operations are carried on within

32

2022 SCC OnLine SC 1469 : 2022 INSC 465

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. It has further been held that

if it becomes inevitable to disturb the

existence of forests, there is a concomitant

duty upon the State to reforest and restore

the green cover and to ensure adequate

measures to promote, protect and improve

both man-made and natural environment,

flora and fauna as well as biodiversity. It

further held that there can be no

distinction between government forests

and private forests in the matter of forest

wealth of the nation and in the matter of

environment and ecology.

(b) In the case of Essar Oil Ltd. v. Halar

Utkarsh Samiti [(2004) 2 SCC 392], this

Court discussed the need for a balance

between the economic and social needs

and development on the one hand and

environment considerations on the other.

It was observed that laws on environment

should be to create harmony between the

two since neither one can be sacrificed at

the altar of the other. In this regard, the

observations of this Court in the case

of Indian Council for Enviro -Legal

Action v. 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. Both

development and environment

must go hand in hand, in other

words, there should not be

development at the cost of

environment.”

(c) In the case of Maharashtra Land

Development Corporation v. State of

Maharashtra [(2011) 15 SCC 616]

reference was made to Glanrock Estate

Private Limited v. State of Tamil Nadu

[(2010) 10 SCC 96] wherein it was

observed as under:

“27. …. Forests in India are an

important part of the

environment. They constitute

[a] national asset. In various

judgments of this Court

delivered by the Forest Bench of

this Court in T.N. Godavarman

Thirumulpad v. Union of

India (Writ Petition No. 202 of

1995), it has been held that

‘intergenerational equity’ is part

of Article 21 of the Constitution.

28. What is intergenerational

equity? 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.

29. The doctrine of sustainable

development also forms part of

Article 21 of the Constitution.

The ‘precautionary principle’

and the ‘polluter pays principle’

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flow from the core value in

Article 21.

30. The important point to be

noted is that in this case we are

concerned with vesting of

forests in the State. 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.

Godavarman Thirumulkpad v. Union of

India [(1997) 2 SCC 267 : AIR 1997 SC

1228] wherein this Court enunciated the

definition of “forest” in the following words:

“4. The Forest Conservation

Act, 1980 was enacted with a

view to check further

deforestation which ultimately

results in ecological imbalance;

and therefore, the provisions

made therein for the

conservation of forests and for

matters connected therewith,

must apply to all forests

irrespective of the nature of

ownership or classification

thereof. The word “forest” must

be understood according to its

dictionary meaning. This

description covers all

statutorily recognised forests,

whether designated as

reserved, protected or otherwise

for the purpose of Section 2(i) of

the Forest Conservation Act.

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. This is how it

has to be understood for the

purpose of Section 2 of the Act.

The provisions enacted in the

Forest Conservation Act, 1980

for the conservation of forests

and the matters connected

therewith must apply clearly to

all forests so understood

irrespective of the ownership or

classification thereof…”

102. Though we find that for the sustainable

development of the State and on account of the

availability of the timber, sanction of granting

licenses can be permitted to continue, however, as a

responsible State, it needs to ensure that

environmental concerns are duly attended to. We,

therefore, direct the State Government to ensure that

while granting permission for felling trees of the

prohibited species, it should strictly ensure that the

permission is granted only when the conditions

specified in the Notification dated 7

th January 2020

are satisfied. 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.”

121. It is needless to state that, this Court, in a series of

judgments and orders passed in the case of T.N. Godavarman

Thirumulkpad v. Union of India and Others

33 and lastly

33

2023 INSC 430

97

vide order dated 26

th April 2023, passed by a three-Judges

Bench to which one of us (B.R. Gavai, J.) was a member, has

emphasized the need to have a balance between the

requirement of development and preservation of ecology and

environment.

122. It is thus clear 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.

V. CONCLUSION

123. We have gone through the development plan. 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.

124. We, however, clarify that we have not considered the

development plan in minute details. Upon its prima facie

consideration, we have come to a view that there are sufficient

safeguards to balance the need for development while taking

care of and addressing the environmental and ecological

concerns. We may however not be construed as giving our

98

imprimatur to the said development plan. At the same time,

it cannot be ignored that the development plan has been

finalized after various experts from various fields including

those concerned with urban planning, environment etc., were

taken on board. It also cannot be ignored that the

development plan has been finalized after undergoing the

rigorous process including that of inviting objections and

suggestions at two stages, giving the hearing to such objectors

and suggesters and after considering the same. If any of the

citizen has any grievance that any provision is detrimental to

the environment or ecology, it is always open to raise a

challenge to such an independent provision before the

appropriate forum. Such a challenge can be considered in

accordance with law. But, in our view, 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.

125. Insofar as the grievance of the Interveners, who are the

plot holders in the ‘Green Belt’ area, with regard to payment of

compensation is concerned, we find that the said issue would

99

be beyond the scope of the present proceedings. We, therefore,

without specifying any opinion on such claim, relegate the

interveners to avail the appropriate remedy available to them

in law.

126. In the result, we pass the following order:

(i) The Civil Appeal Nos. 5348-49 of 2019 as well as the

Transferred Case (C) No. 2 of 2023 are allowed;

(ii) The orders of the NGT dated 16

th November 2017 in

Original Application No. 121 of 2014, dated 16

th July

2018 in Review Application No. 8 of 2018, dated 12

th

May 2022 and 14

th October 2022 in Original

Application No. 297 of 2022 are quashed and set

aside; and

(iii) The appellant-State of Himachal Pradesh and its

instrumentalities are permitted to proceed with the

implementation of the development plan as published

on 20

th June 2023 subject to what has been observed

by us hereinabove.

127. In the facts and circumstances of the present case, there

is no order as to costs.

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128. Pending application(s), if any, shall stand disposed of in

the above terms.

….……..….......................J.

[B.R. GAVAI]

……………..….........................J.

[ARAVIND KUMAR ]

NEW DELHI;

JANUARY 11, 2024.