TaxTMI 
TaxTMI 
2024 (1) TMI 1460
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.... the "NGT") in Original Application (OA) No. 121 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....
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....thin 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 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 a....
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....n 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 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 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 pl....
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....its duties and responsibilities as envisaged by the Constitution of India as well as the relevant statutory 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....
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....t Schedule I of the NGT Act does not include town and country 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: Hi....
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.... Raju Kanumuru (Member of Parliament) 2022:INSC:633 : (2022) 8 SCC 156. 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 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....
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.... Ors. 2023:INSC:292 : (2023) 8 SCC 643 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 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 accou....
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....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. 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 Regul....
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....rom 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". 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 ....
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....tion of the draft development plan as suggested by the Director; (iv) the provisions for enforcing the draft development plan and stating the manner 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....
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....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 facade 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 facade 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 spec....
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....uch 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. 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 draf....
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....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 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 fo....
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....ct, 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 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....
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....ne 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 Anr. v. Promoters and Builders Association and Anr. (2004) 10 SCC 796: 2004 INSC 348, 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. Th....
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..... Delhi Development Authority and Ors. 2021:INSC:4 : (2022) 11 SCC 1, 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 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 o....
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....rt 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 Gover....
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....ch 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 s....
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....visory 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. 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 t....
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.... 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 rais....
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....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 4th May 2016 in the case of Forward Foundation v. State of Karnataka 2016 SCC OnLine NGT 1409, 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. 74. As to what could be a binding precedent has been succinctly observed by this Court 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 i....
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....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 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) w....
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....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) 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 arbitrary exercise of power. This Court, therefore, ....
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....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 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 ....
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.... 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. 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 matte....
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....d 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 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 12th May 2022. 96. This Court, vide order dated 14th 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 3rd May 2023, we passed an ord....
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....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 Ors. (1997) 3 SCC 261: 1997 INSC 288 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 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: ....
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....e 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 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 t....
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.... 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 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 purs....
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....gh 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 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 o....
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....nce 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 challenging the interim order dated 12th 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 c....
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....her developments. Both development 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 Ors. (2004) 2 SCC 392 : 2004 INSC 40, 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 susta....
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....al 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 from 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 pre....
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....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 environmental main....
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....ed 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 Ors. v. Uday Education and Welfare Trust and Ors. 2022 INSC 465, 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 ....
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....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 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 de....
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....ereof... 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 7th 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 Ors. 2023 INSC 430 and lastly vide order dated 26th 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....