https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=461844 https://www.taxtmi.com/caselaws?id=461844 Jurisdiction of National Green Tribunal (NGT) to issue directions affecting the preparation and finalization of the Shimla Planning Area (SPA) development plan under the Himachal Pradesh Town & Country Planning Act, 1977 (TCP Act) - HELD THAT:- 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 delegated legislative body to formulate the provisions which will have a general application to all members of the broadly identifiable classes. In the case of Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur [1980 (2) TMI 262 - SUPREME COURT], 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 - 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. 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. There are 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. Whether the NGT could have issued directions to the legislative body to exercise its legislative functions in a particular manner? - HELD THAT:- In the case of V.K. Naswa v. Home Secretary, Union of India and Ors. [2012 (1) TMI 273 - SUPREME COURT], 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. 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. The first order of NGT is liable to be set aside on the short ground that it has transgressed its limitations and attempted to encroach upon the field reserved for the delegatee to enact a piece of delegated legislation. 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. Whether observations in Para 47 of the Mantri Techzone Private Limited [2019 (3) TMI 1924 - SUPREME COURT] would operate as res judicata? - HELD THAT:- This Court, in the case of Dhanwanti Devi [1996 (8) TMI 146 - SUPREME COURT], 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. 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 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. 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 occasion - Since it is found 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. Whether the NGT was justified in passing the order dated 14th October 2022 when the High Court was seized of the same issue during the pendency of Civil Writ Petition No. 5960 of 2022? - HELD 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 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. 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 constituted - 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. 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 challenging the interim order dated 12th May 2022 passed by NGT, the NGT went ahead with the passing of the second order impugned herein. 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. Balancing the need for Development and Protection of the Environment - HELD THAT:- A need for maintaining a balance between the development and protection/preservation of environmental ecology has been emphasized by this Court time and again - 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. Conclusion - i) 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. ii) The 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. Appeal allowed. Case-Laws Indian Laws Thu, 11 Jan 2024 00:00:00 +0530