TaxTMI 
TaxTMI 
2024 (1) TMI 1460
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of 2014, whereby various directions were issued by the NGT, and the order dated 16th 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 16th April 2022, came to be stayed by the NGT, vide an interim order dated 12th 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 Anr. v. Yogendra Mohan Sengupta and Ors. 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 14th 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 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 23rd 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"). 3.7 Despite the assurance ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....irected 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 16th 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 8th February 2022. It is to be noted that various directions were also issued by the High Court of Himachal Pradesh from time to time in CWP No. 4595 of 2011 for finalization ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as 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 submitted that while finalizing the development plan, the entire procedure as prescribed under the S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lisng 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: Himachal Pradesh Bus Stand Management and Development Authority (H.P. BSM & DA) v. Central Empowered Committee and Ors 2021:INSC:18 : (2021) 4 SCC 309, State of Madhya Pradesh v. Centre for Environment Protection Research and Development and Ors.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate 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 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 pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owered 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. 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- As amended vide Himachal Pradesh Town and Country Planning (Amendment) Act 2013 (Act No. 41 of 2013). (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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....otice 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". 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tice 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 suggest....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l 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 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 b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....osals 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 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ative 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 distincti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y, 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 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 Ors. v. Collector, Thane, Maharashtra and Ors. (1989) 3 SCC 396 : 1989 INSC 202, 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 d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons. 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 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. C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions 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 Ors. (2012) 2 SCC 542: 2012 INSC 10, 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, 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 direc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecutive 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) 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 : 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 P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Legislature to do so. 67. A Constitution Bench, in the case of Manoj Narula v. Union of India 2014:INSC:568 : (2014) 9 SCC 1, 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 Te....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt in the case of Union of India and Ors. v. Dhanwanti Devi and Ors. (1996) 6 SCC 44: 1996 INSC 911, 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 genera....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble 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. 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 14th November 2017 re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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. 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 Tribunal could have only adjudicated upon the case put up before it. The case pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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-Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so 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. Transferred Case (C) No. 2 of 2023. F. 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? 91. Insofar as the second order of NGT is concerned, the same arises out of publication of the draft development plan on 8th February 2022. After the draft development plan was published, in all 97 objections/suggestions were received by the State....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n so as to challenge the second order of NGT and the impleadment application filed before the High Court of Himachal Pradesh. 98. Subsequently, on 3rd 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 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 public....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onstituting 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 an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....its jurisdiction. 107. We may gainfully refer to the observations of this Court in the case of Priya Gupta and Anr. v. Additional Secretary, Ministry of Health and Family Welfare and Ors. (2013) 11 SCC 404: 2012 INSC 601, wherein this Court has succinctly culled down the position as under: 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 112. In any ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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..... 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 Anr. v. Union of India and Ors. (2004) 9 SCC 362 : 2003 INSC 438, 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 strateg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al environment for present and future generations. It would not be without significance to note that 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 rig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thorities 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. Thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tional 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' 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 re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th 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 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 ....