* Author
[2024] 1 S.C.R. 973 : 2024 INSC 30
The State of Himachal Pradesh and Others
v.
Yogendera Mohan Sengupta and Another
(Civil Appeal Nos. 5348-5349 of 2019)
With
Transferred Case (C) No. 2 of 2023
11 January 2024
[B.R. Gavai* and Aravind Kumar, JJ.]
Issue for Consideration
What is the Legislative Scheme of the Himachal Pradesh Town
& Country Planning Act, 1977 (TCP Act); What is the nature
of functions/powers of the Authorities under Chapter-IV of the
TCP Act; Whether the NGT could have issued directions to the
legislative body to exercise its legislative functions in a particular
manner; Whether observations in Para 47 of the Mantri Techzone
Private Limited would operate as res judicata; Whether the NGT
was justified in passing the order dated 14.10.2022 when the High
Court was seized of the same issue during the pendency of Civil
Writ Petition No.5960 of 2022; Balancing the need for Development
and Protection of the Environment.
Headnotes
Himachal Pradesh Town & Country Planning Act, 1977 (TCP
Act) – Legislative scheme of:
Held: The TCP Act has been enacted to make provision for planning
and development and use of land; to make better provision for the
preparation of development plans and sectoral plans with a view
to ensuring that town planning schemes are made in a proper
manner and their execution is made effective – It also provides
for constitution of Town and Country Development Authority for
proper implementation of town and country development plan – It
also provides for development and administration of special areas
through the Special Area Development Authority – 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 – Under Section 15 of the TCP Act, the Director is required
to carry out the survey and prepare an existing land use map and,
974 [2024] 1 S.C.R.
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forthwith publish the same in such manner as may be prescribed
together with public notice of the preparation of the map – It also
provides for inviting objections and suggestions in writing from
any person with respect thereto within thirty days from the date
of publication of such notice – Section 15-A of the TCP Act deals
with “Freezing of land use pending preparation of existing land
use map u/s. 15(1)” – S.16 of the TCP Act deals with “Freezing
of land use on the publication of the existing land use map u/s.
15” – s.17(1) of the TCP Act deals with “Interim Development
Plans” – The provisions of ss.18, 19 and 20 of the TCP Act deals
with development plan, Publication of draft publication plan and
sanction of development plan. [Paras 30-40]
Himachal Pradesh Town & Country Planning Act, 1977 – Nature
of functions/powers of the Authorities under Chapter-IV of the
TCP Act – The powers vested with the Director and the State
Government are for enacting a piece of delegated legislation:
Held: 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 – Chapter-IV
of the TCP Act provides for inviting objections and suggestions
at two stages – Firstly, at the stage of Section 19 where the
Director is required to invite objections and suggestions to the
draft development plan and after giving an opportunity of being
heard and considering the objections and suggestions, submit the
development plan to the State Government – Under Section 20
of the TCP Act, a second opportunity of making objections and
suggestions has been provided – Again, the State Government is
required to give an opportunity of hearing to such objectors before
granting final approval to the development plan – A perusal of the
scheme of the TCP Act and particularly Chapter-IV thereof would
establish beyond doubt that the powers vested with the Director
and the State Government are for enacting a piece of delegated
legislation. [Para 45, 47]
Administrative Law – Distinction between the legislative
function and administrative function:
[2024] 1 S.C.R. 975
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
Held: A legislative act is the creation and promulgation of a general
rule of conduct without reference to particular cases; whereas an
administrative act is the making and issue of a specific direction or
the application of a general rule to a particular case in accordance
with the requirements of policy – Legislation is the process of
formulating a general rule of conduct without reference to particular
cases and usually operating in future – Whereas, administration is
the process of performing particular acts of issuing particular orders
or of making decisions which apply general rules to particular cases
– It has also been held that rule-making is normally directed towards
the formulation of requirements having a general application to all
members of a broadly identifiable class; whereas an adjudication,
on the other hand, applies to specific individuals or situations –
In the instant case, it will be amply clear that the preparation of
draft development plan u/s. 18 of the Himachal Pradesh Town &
Country Planning Act, 1977, finalization of the same u/s. 19 of the
TCP Act by the Director and grant of approval by the State u/s.
20 of the TCP Act are all legislative functions – The provisions
enable the delegated legislative body to formulate the provisions
which will have a general application to all members of the broadly
identifiable classes. [Paras 50, 51]
Himachal Pradesh Town & Country Planning Act, 1977 –
Whether the NGT could have issued directions to the legislative
body to exercise its legislative functions in a particular manner:
Held: A perusal of the first order (16.11.2017) 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 – 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 – It is also a settled position
of law that neither the High Courts while exercising powers u/Art.
226 of the Constitution nor the Supreme Court while exercising
powers u/Art. 32 of the Constitution can direct the legislature
or its delegatee to enact a law or subordinate legislation in a
particular manner – If the High Courts and the Supreme Court, in
their extra-ordinary powers u/Arts. 226 and 32 of the Constitution
976 [2024] 1 S.C.R.
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cannot do so, the answer to the question as to whether a Tribunal
constituted under a statute, having a limited jurisdiction, can do
so or not, would be in negative – The first order of NGT is liable
to be set aside on the short ground that it has transgressed its
limitations and attempted to encroach upon the field reserved for
the delegatee to enact a piece of delegated legislation – When
the TCP Act empowers the State Government and the Director to
exercise the powers to enact a piece of delegated legislation, the
NGT could not have imposed fetters on such powers and directed
it to exercise its powers in a particular manner. [Paras 66, 69, 70]
Himachal Pradesh Town & Country Planning Act, 1977 – A
reliance is placed on the case of Mantri Techzone Private
Limited by respondent No.1 – Whether observations in Para
47 of the Mantri Techzone Private Limited would operate as
res judicata:
Held: In the said case the Advocate General of the State had
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 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, the Supreme Court
did not go into that issue on the basis of the concessions made
by the appellants – Therefore, the observations found in para 47
of the Mantri Techzone Private Limited could not be construed to
be a precedent or a ratio decidendi. [Para 76]
Himachal Pradesh Town & Country Planning Act, 1977 –
Whether the NGT was justified in passing the order dated
14.10.2022 when the High Court was seized of the same issue
during the pendency of Civil Writ Petition No.5960 of 2022:
Held: The second order of NGT (order dated 14.10.2022) arises
out of publication of the draft development plan on 08.02.2022 – It
was held that the draft development plan, being in conflict with the
[2024] 1 S.C.R. 977
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
first order (dated 16.11.2017) of NGT, was illegal and cannot be
given effect to – The Constitution Bench of the Supreme Court in
the case of L. Chandra Kumar v. Union of India and others clearly
holds that all Tribunals will act as the only Courts of first instance
in respect of areas of law for which they have been constituted
– 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 – In view of the settled legal position, 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 12.05.2022 passed by
NGT, the NGT went ahead with the passing of the second order
dated 14.10.2022 impugned herein – The perusal of the orders
of the NGT itself reveal 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 – The NGT ought
not to have continued with the proceedings after the High Court
was in seisin of the matter and specifically when it was informed
about the same – That apart, the second order of NGT (dated
14.10.2022) is passed basically on the basis of the first order of
NGT (dated 16.11.2017) – Since, the first order of NGT itself to be
not tenable in law, the second order of NGT which is solely based
on the first order of NGT, is liable to be set aside.[Paras 91, 94,
105, 106, 109, 111, 112]
Environment – Balancing the need for Development and
Protection of the Environment – Discussed.
Himachal Pradesh Town & Country Planning Act, 1977 –
Development Plan 2041 – Finalization of:
Held: The development plan has been finalized after taking into
consideration the reports of various expert committees, the studies
undertaken with regard to various aspects including environmental
& ecological aspects and after undergoing the rigorous process,
including that of inviting objections and suggestions at two stages.
[Paras 123, 124]
978 [2024] 1 S.C.R.
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Case Law Cited
L. Chandra Kumar v. Union of India and Others [1997]
2 SCR 1186 : (1997) 3 SCC 261 – followed.
Himachal Pradesh Bus Stand Management and
Development Authority (H.P. BSM & DA) v. Central
Empowered Committee and Others [2021] 1 SCR 344
: (2021) 4 SCC 309; State of Madhya Pradesh v. Centre
for Environment Protection Research and Development
and Others [2020] 12 SCR 1139 : (2020) 9 SCC 781;
Director General (Road Development) National Highways
Authority of India v. Aam Aadmi Lokmanch and Others
[2020] 6 SCR 1050 : (2021) 11 SCC 566; Tamil Nadu
Pollution Control Board v. Sterlite Industries (India)
Limited and Others [2019] 3 SCR 777 : (2019) 19
SCC 479; Techi Tagi Tara v. Rajendra Singh Bhandari
and Others [2017] 12 SCR 956 ; State of Himachal
Pradesh and Others v. Satpal Saini [2017] 1 SCR 658
: (2017) 11 SCC 42; Ambesh Kumar (Dr.) v. Principal,
L.L.R.M. Medical College, Meerut and Others [1987] 1
SCR 661 : 1986 Supp SCC 543; Bishambhar Dayal
Chandra Mohan and Others v. State of Uttar Pradesh and
Others [1982] 1 SCR 1137 : (1982) 1 SCC 39; State of
Andhra Pradesh v. Raghu Ramakrishna Raju Kanumuru
(Member of Parliament [2022] 6 SCR 810 : (2022) 8
SCC 156; T.N. Godavarman Thirumulkpad v. Union of
India and Others [1996] 9 Suppl. SCR 982 : (1997) 2
SCC 267; Punjab Termination of Agreement Act, 2004,
In Re, Special Reference No. 1 of 2004 [2016] 11 SCR
15 : (2017) 1 SCC 121; State of Tamil Nadu v. State
of Kerala and Another [2014] 12 SCR 875 : (2014) 12
SCC 696; Mantri Techzone Private Limited v. Forward
Foundation and Others [2019] 4 SCR 995 : (2019) 18
SCC 494; Pragnesh Shah v. Dr. Arun Kumar Sharma
and Others [2022] 8 SCR 154 : (2022) 11 SCC 493;
Supreme Court Monitoring Committee v. Mussoorie
Dehradun Development Authority and Others (1997) 11
SCC 605; Resident’s Welfare Association and Another
v. Union Territory of Chandigarh and Others [2023] 1
[2024] 1 S.C.R. 979
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
SCR 601: (2023) 8 SCC 643; Bangalore Development
Authority v. Aircraft Employees’ Cooperative Society
Limited and Others [2012] 4 SCR 881 : (2012) 3 SCC
442; Rajeev Suri v. Delhi Development Authority and
Others [2021] 15 SCR 283 : (2022) 11 SCC 1; T.N.
Godavarman Thirumulkpad v. Union of India and Others
[2023] 6 SCR 601 : 2023 INSC 430 – referred to.
Union of India and Another v. Cynamide India Ltd. and
Another [1987] 2 SCR 841 : (1987) 2 SCC 720; Tulsipur
Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur
[1980] 2 SCR 1111 : (1980) 2 SCC 295; Sundarjas
Kanyalal Bhatija and Others v. Collector, Thane,
Maharashtra and Others [1989] 3 SCR 405 : (1989) 3
SCC 396; Pune Municipal Corporation and Another v.
Promoters and Builders Association and Another [2004]
2 Suppl. SCR 207 : (2004) 10 SCC 796; V.K. Naswa
v. Home Secretary, Union of India and Others [2012] 2
SCR 912 : (2012) 2 SCC 542; Manoj Narula v. Union
of India [2014] 9 SCR 965 : (2014) 9 SCC 1; Union of
India and Others v. Dhanwanti Devi and Others [1996]
5 Suppl. SCR 32 : (1996) 6 SCC 44; Priya Gupta and
Another v. Additional Secretary, Ministry of Health and
Family Welfare and Others [2012] 12 SCR 818 : (2013)
11 SCC 404; Indian Council for Enviro-Legal Action v.
Union of India and Others [1996] 1 Suppl. SCR 507 :
(1996) 5 SCC 281; Essar Oil Limited v. Halar Utkarsh
Samiti and Others [2004] 1 SCR 808 : (2004) 2 SCC
392; N.D. Jayal and Another v. Union of India and Others
[2003] 3 Suppl. SCR 152 : (2004) 9 SCC 362; State
of Uttar Pradesh and Others v. Uday Education and
Welfare Trust and Others [2022] 19 SCR 781 : 2022
SCC OnLine SC 1469 – relied on.
State of Himachal Pradesh and another v. Yogendra
Mohan Sengupta and Others Civil Writ Petition (CWP)
No. 5960 of 2022; Rajeev Varma and Others v. State
of Himachal Pradesh and Others, CWP No. 4595 of
2011; Forward Foundation v. State of Karnataka 2016
SCC OnLine NGT 1409 – referred to.
980 [2024] 1 S.C.R.
Digital Supreme Court Reports
List of Acts
Himachal Pradesh Town & Country Planning Act, 1977;
Himachal Pradesh Town & Country Planning Rules, 1978;
Forest (Conservation) Act, 1980; Administrative Tribunals Act,
1985; Constitution of India.
List Keywords
Planning area, Director to prepare development plans; Existing
land use maps; Development plan; Publication of draft
publication plan; Sanction of development plan; Delegated
legislation; Administrative Law; Legislative body; Legislative
function; Administrative function; Tribunals; Power of Judicial
review of the High Court; Principles of judicial propriety;
High Court’s supervisory jurisdiction over the Tribunals;
Development and Protection of the Environment; Development
Plan 2041.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5348-5349
of 2019.
From the Judgment and Order dated 16.11.2017 of the National
Green Tribunal in OA No.121 of 2014 and Dated 16.07.2018 in RA
No.08 of 2018.
With
Transferred Case (C) No.02 Of 2023
Appearances for Parties
Anup Rattan, Vinay Kuthalia, Sr. Advs., Puneet Rajta, Joydip Pati,
Rishi Malhotra, Himanshu Tyagi, Advs. for the Appellants.
Sanjay Parikh, Rajive Bhalla, P.V. Surendranath, Sr. Advs., Rahul
Choudhary, Ms. Srishti Agnihotri, Ms. Itisha Awasthi, Ms. Sanjana
Grace Thomas, Ms. Tara Elizabeth Kurien, Raghav Goel, Anurag
Tandan, Sanjay Jain, Subhash Chandran K.R., Ms. Krishna L R,
Biju P Raman, Sawan Kumar Shukla, Dharmendra Kumar Sinha,
Subodh Kr. Pathak, Shashi Ranjan, Raghav Goel, Pawan Kumar
Sharma, Advs. for the Respondents.
[2024] 1 S.C.R. 981
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
Judgment / Order of the Supreme Court
Judgment
B .R. Gavai, J.
INDEX*
I INTRODUCTION Paras 1 to 2
II. FACTS Paras 3 to 4.1
III. SUBMISSIONS Paras 5 to 29
IV. CONSIDERATION Paras 30 to 122
A. Legislative Scheme of the TCP Act. Paras 30 to 44
B. Nature of functions/powers of the
Authorities under Chapter-IV of the TCP
Act.
Paras 45 to 61
C. Whether the NGT could have issued
directions to the legislative body to
exercise its legislative functions in a
particular manner?
Paras 62 to 70
D. Whether observations in Para 47 of the
Mantri Techzone Private Limited (supra)
would operate as res judicata?
Paras 71 to 78
E. Development Plan 2041. Paras 79 to 90
F. Whether the NGT was justified in passing
the order dated 14th October 2022 when
the High Court was seized of the same
issue during the pendency of Civil Writ
Petition No.5960 of 2022?
Paras 91 to 112
G. Balancing the need for Development and
Protection of the Environment.
Paras 113 to 122
V. CONCLUSION Paras 123 to 128
List of Abbreviations
1. NGT - National Green Tribunal, Principal Bench,
New Delhi
2. First order of NGT - Order of NGT dated 16th November 2017
* Ed. Note: Pagination is as per the original judgment.
982 [2024] 1 S.C.R.
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3. Second order of
NGT
- Order of NGT dated 14th October 2022
4. SPA - Shimla Planning Area
5. CWP - Civil Writ Petition
6. TCP Act - Himachal Pradesh Town & Country
Planning Act, 1977
7. 1978 Rules - Himachal Pradesh Town & Country
Planning Rules, 1978
8. OA - Original Application
9. FC Act - Forest (Conservation) Act, 1980
10. NDMA - National Disaster Management Authority
11. HPMC Act - Himachal Pradesh Municipal Corporation
Act, 1994
12. BPMC Act - Bombay Provincial Municipal Corporation
Act, 1949
13. MRTP Act - Maharashtra Regional and Town Planning
Act, 1966
14. AT Act - Administrative Tribunals Act, 1985
I. INTRODUCTION
Civil Appeal Nos. 5348-5349 OF 2019
1. These appeals challenge the judgment and order dated 16th November
2017 (hereinafter referred to as the “first order of NGT”) passed by
the National Green Tribunal, Principal Bench, New Delhi (hereinafter
referred to as the “NGT”) in Original Application (OA) No. 121 of
2014, whereby various 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
[2024] 1 S.C.R. 983
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
the appellants herein from taking any further steps in pursuance
of the draft development plan of the SPA. The State of Himachal
Pradesh and its instrumentalities-appellants herein preferred Civil Writ
Petition (CWP) No. 5960 of 2022 titled State of Himachal Pradesh
and another v. Yogendra Mohan Sengupta and Others before
the High Court of Himachal Pradesh challenging the said interim
order. Despite the pendency of the said writ petition, the NGT, vide
its final order dated 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 order of NGT, was
illegal and cannot be given effect to. Thereafter by an amendment
in the said CWP No. 5960 of 2022, the second order of NGT also
came to be challenged before the High Court of Himachal Pradesh.
On 14th November 2022, this Court passed an order in Civil Appeal
Nos. 5348-5349 of 2019 transferring the said CWP No. 5960 of 2022
from the High Court of Himachal Pradesh to itself, which came to
be re-numbered as Transferred Case (C) No. 2 of 2023.
II. FACTS
Facts giving rise to filing of Civil Appeal Nos.5348-5349 of 2019:
3. Facts, in brief, giving rise to the filing of Civil Appeal Nos. 5348-5349
of 2019, are as follows:
3.1 The Himachal Pradesh Town & Country Planning Act, 1977
(hereinafter referred to as “TCP Act”) was enacted by the
State of Himachal Pradesh in the year 1977. Vide Government
Notification dated 30th November 1977, the SPA came to be
constituted. The State of Himachal Pradesh, in exercise of
powers conferred upon it by Section 87 of the TCP Act, enacted
the Himachal Pradesh Town & Country Planning Rules, 1978
(hereinafter referred to as “1978 Rules”). The existing land-use
for SPA was notified by a notice dated 29th December 1977 and
was adopted by another notice dated 14th March 1978.
3.2 The interim development plan for SPA was approved by a
notification dated 24th March 1979 for the period 1979-2001. Vide
notification dated 11th August 2000 issued by the Department of
Town & Country Planning (Government of Himachal Pradesh),
further amendments were carried out to the interim development
plan for the SPA notified by the aforesaid notification dated 24th
March 1979.
984 [2024] 1 S.C.R.
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3.3 By another notification dated 7th December 2000 issued by
the Department of Town & Country Planning (Government of
Himachal Pradesh), in pursuance of the notification dated 11th
August 2000, a survey of “Green Belt” within existing Core &
restricted areas of the SPA was carried out and areas were
declared as “Green Belt”.
3.4 A writ petition being CWP No. 4595 of 2011 titled Rajeev Varma
and Others v. State of Himachal Pradesh and Others came
to be filed in the year 2011 before the High Court of Himachal
Pradesh. A direction was sought in the said writ petition to the
State of Himachal Pradesh to prepare a development plan for
the SPA in accordance with the TCP Act within a time-bound
schedule.
3.5 Respondent No.1 herein Yogendera Mohan Sengupta filed an
OA (No. 121 of 2014) before the NGT, wherein he made the
following prayers:
(i) “Direct the State Government and the Respondent Nos.
3 and 4 to recognize the areas mentioned in notification
dated 7.12.2000 as forest and any non-forest activity should
not be allowed without prior permission under Section 2
of the Forest.
(ii) Direct the State Government not to change the land
use in any forests/green belt area as stated in clause
d of notification dated 11.8.2000 to protect the ecology,
environment and future of Shimla.
(iii) Pass any other orders as the Hon’ble Tribunal may deem
fit and proper in facts and circumstances of the case.”
3.6 The appellant-State of Himachal Pradesh (respondent in the
said OA) filed a reply dated 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”).
[2024] 1 S.C.R. 985
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
3.7 Despite the assurance given by the State Government, the
NGT, suo motu, extended the scope of the application and vide
an ad-interim order dated 30th May 2014 banned all types of
construction activities in the Green Belt areas of Shimla covered
under the notification dated 7th December 2000.
3.8 Thereafter, vide order dated 12th October 2015 in the said OA
No. 121 of 2014, the NGT constituted a Committee comprising
of officers from the National Disaster Management Authority
(NDMA), a senior scientist from Wadia Institute of Himalayan
Geology, Dehradun as nominated by the Director and other
officials of the State and Central Governments for submitting
its report on various aspects including water supply and the
strength of carrying capacity of the hills.
3.9 Pursuant to the said order dated 12th October 2015 passed by
the NGT, the Additional Chief Secretary, Department of Town &
Country Planning (Government of Himachal Pradesh) issued a
notification dated 6th November 2015 for the constitution of an
Expert Committee. The Expert Committee submitted a report
to the NGT on 29th August 2016. Along with an affidavit filed by
the State of Himachal Pradesh, the final report of the Expert
Committee came to be submitted to the NGT on 20th May 2017.
3.10 Thereafter the first order of NGT came to be passed, whereby
it issued various directions to the appellants herein and further
banned all kinds of construction activities in core/forest/green
areas in Shimla and further restricted the construction and reconstruction activities in the entire SPA.
3.11 Some of the directions issued vide first order of NGT, inter
alia, prohibited new construction of any kind, i.e. residential,
institutional and commercial, in any part of the core and green/
forest area and also directed that even in the other areas which
fall within the SPA, construction would not be permitted beyond
2 storeys + attic floor. It further directed that, in case of unsafe
and unfit residential structures in the core and green/forest
areas, re-construction would only be allowed for residential
purposes and that too, not beyond 2 storeys and an attic floor.
3.12 In direction No. VIII in the first order of NGT, it directed the
State to finalise the development plan within three months
986 [2024] 1 S.C.R.
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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 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 of the development plan in accordance with the TCP
Act. The State of Himachal Pradesh also invited objections and
suggestions from the general public in relation to the draft development
plan. In all, 97 objections/suggestions were received by the State of
Himachal Pradesh within stipulated time-period and the same were
heard by the Director in due course. CWP Nos. 23 and 37 of 2022
were also filed before the High Court of Himachal Pradesh praying
inter alia for stay of the draft development plan.
4.1 In the meantime, respondent No.1 herein-Yogendera Mohan
Sengupta filed another OA (No. 297 of 2022) before the NGT
in relation to the draft development plan. The NGT, vide interim
order dated 12th May 2022, stayed the draft development plan
and restrained the State of Himachal Pradesh from taking any
further steps in pursuance of the draft development plan. Being
aggrieved thereby, the State of Himachal Pradesh filed CWP
[2024] 1 S.C.R. 987
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
No. 5960 of 2022 under Article 226/227 of the Constitution of
India before the High Court of Himachal Pradesh. Despite the
pendency of the said CWP No. 5960 of 2022, the NGT, vide
its second order, held that the draft development plan, being
in conflict with the first order of NGT, is illegal and cannot be
given effect to. The appellants herein filed an application in
CWP No. 5960 of 2022, before the High Court of Himachal
Pradesh, praying for amending the writ petition so as to challenge
the second order of NGT. Since common issues were being
considered by this Court in Civil Appeal Nos.5348-5349 of 2019,
this Court vide an order dated 14th November 2022, directed
the transfer of the said CWP No. 5960 of 2022 before itself.
III. SUBMISSIONS
5. We have heard Shri Anup Rattan, learned Advocate General
appearing on behalf of the State of Himachal Pradesh, Shri Vinay
Kuthalia, learned Senior Counsel appearing on behalf of the Shimla
Municipal Corporation and Shri Sanjay Parikh, learned Senior Counsel
appearing on behalf of the common respondent No.1 in Civil Appeal
Nos.5348-5349 of 2019 and Transferred Case (Civil) No.2 of 2023..
Submissions on behalf of the Appellants:
6. It is submitted on behalf of the appellants that the State was fully aware
of its duties and responsibilities as envisaged by the Constitution
of India as well as the relevant statutory 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.
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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
Statutes was duly followed.
10. The learned Advocate General as well as Shri Kuthalia submitted that
the planning regulations divide the areas into different categories. It is
submitted that, in order to protect the environment, various stringent
provisions have been made such as:
(i) “In the core area, only 2 storeys + attic is permitted and parking
floor is permitted only in those plots which are accessible by
motorable road;
(ii) In the non-core area and the Planning Area, only 3 storeys +
attic is permitted and parking floor is only permitted in plots
which are adjacent to motorable roads; and
(iii) Rebuilding and reconstruction of old buildings has been
permitted strictly on old lines. With the efflux of time in many
buildings, there are different owners of each floor;
(iv) In green belt areas which are lying between constructed areas,
only single storey construction with attic is permissible. However,
no tree will be permitted to be felled in any such area and no
construction will be permitted in forest area without following
the mandate of the Forest Conservation Act.”
11. It is further submitted on behalf of the appellants that appropriate
setbacks have also been made mandatory in order to avoid
overcrowding. It is submitted that because of the peculiar climate
of Shimla, the attic is necessary because the roof is required to
be sloping in hilly terrain, to allow for run-off of rain and snow. It is
further submitted that construction will only be permitted after a soil
investigation report of the area and assessment of structural stability
by an expert are made. The construction is required to be approved
by a qualified architect or engineer.
12. The first and second orders of NGT are also challenged by the
appellants on the ground that the jurisdiction of NGT is limited to
the civil cases where a substantial question relating to environment
[2024] 1 S.C.R. 989
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
(including enforcement of any legal right relating to environment), is
involved and such question arises out of the implementation of the
enactments specified in Schedule I of the National Green Tribunal
Act, 2010 (hereinafter referred to as the “NGT Act”). It is submitted
that Schedule I of the NGT Act does not include town and country
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:
Himachal Pradesh Bus Stand Management and Development
Authority (H.P. BSM & DA) v. Central Empowered Committee
and Others1
, State of Madhya Pradesh v. Centre for Environment
Protection Research and Development and Others2
, Director
General (Road Development) National Highways Authority of
India v. Aam Aadmi Lokmanch and Others3
, Tamil Nadu Pollution
Control Board v. Sterlite Industries (India) Limited and Others4
and Techi Tagi Tara v. Rajendra Singh Bhandari and Others5
.
1 [2021] 1 SCR 344 : (2021) 4 SCC 309 : 2021 INSC 18
2 [2020] 12 SCR 1139 : (2020) 9 SCC 781 : 2020 INSC 516
3 [2020] 6 SCR 1050 : (2021) 11 SCC 566 : 2020 INSC 452
4 [2019] 3 SCR 777 : (2019) 19 SCC 479 : 2019 INSC 220
5 [2017] 12 SCR 956 : (2018) 11 SCC 734 : 2017 INSC 986
990 [2024] 1 S.C.R.
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16. It is submitted that since the development plan was prepared by
the State in exercise of its constitutional powers under Article 162
of the Constitution of India and statutory powers under the TCP Act
and HPMC Act, the NGT could not have issued directions to act in
a manner which would be contrary to those provisions. Reliance in
this respect is placed on the following judgments of this Court:
State of Himachal Pradesh and Others v. Satpal Saini6
, Ambesh
Kumar (Dr.) v. Principal, L.L.R.M. Medical College, Meerut and
Others7 and Bishambhar Dayal Chandra Mohan and Others v.
State of Uttar Pradesh and Others8
.
17. The learned Advocate General further submitted that the directions
issued by the NGT, rather than subserving any public interest are
contrary to the public interest inasmuch as vast number of citizens
are being put to great hardships and inconvenience. It is submitted
that on account of the directions issued by the NGT, re-construction
of the old structures which are in dilapidated condition and which
is permissible on the existing plinth area, has been brought to a
complete halt.
18. The learned Advocate General further submitted that the State is
alive to the requirement of protecting environment and as such, the
Cabinet has taken a decision wherein it prescribed more stringent
measures.
19. Both the orders of NGT are also challenged on the ground that
when the High Court was seized of the matter with regard to the
draft development plan, the NGT could not have entertained the
proceedings and passed the orders therein. Reliance in this respect is
placed on the judgment of this Court in the case of State of Andhra
Pradesh v. Raghu Ramakrishna Raju Kanumuru (Member of
Parliament)9
.
Submissions on behalf of the Respondents:
20. Shri Parikh, on the contrary, submitted that the first order of NGT
threw light on the serious concerns regarding the fragile ecology of
State of Himachal Pradesh in general and Shimla in particular. The
6 [2017] 1 SCR 658 : (2017) 11 SCC 42
7 [1987] 1 SCR 661 : 1986 Supp SCC 543 : 1986 INSC 275
8 [1982] 1 SCR 1137 : (1982) 1 SCC 39 : 1981 INSC 189
9 [2022] 6 SCR 810 : (2022) 8 SCC 156 : 2022 INSC 632
[2024] 1 S.C.R. 991
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
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 proposed to be constructed beyond
2 storeys plus an attic floor, then the plan has to be duly approved
and permission has to be obtained from the concerned authorities.
23. Shri Parikh submitted that the “Green Belt” areas, by notification
dated 7th December 2000, are covered under the dictionary meaning
of ‘forest’ and are thus required to be protected under the provisions
of the FC Act as per the order of this Court passed in the case of
T.N. Godavarman Thirumulkpad v. Union of India and Others10.
24. Shri Parikh submitted that the challenge to the second order of NGT
is also without substance inasmuch as the directions issued by the
NGT, vide its first order, were binding upon the appellants and the
draft development plan could not have been notified in contravention
of the directions of the NGT. A reliance in this respect is placed on
the judgment of this Court in the case of Punjab Termination of
Agreement Act, 2004, In Re, Special Reference No. 1 of 200411.
Reliance is also placed on the judgment of this court in the case of
State of Tamil Nadu v. State of Kerala and Another12.
10 [1996] 9 Suppl. SCR 982 : (1997) 2 SCC 267 : 1997 INSC 226
11 [2016] 11 SCR 15 : (2017) 1 SCC 121 : 2016 INSC 1018
12 [2014] 12 SCR 875 : (2014) 12 SCC 696 : 2014 INSC 373
992 [2024] 1 S.C.R.
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25. Shri Parikh further submitted that this Court in the case of Mantri
Techzone Private Limited v. Forward Foundation and Others13 has
held that the NGT has overriding powers over anything inconsistent
contained in any other law or in any instrument having effect by
virtue of any law. He further submitted that this Court has held that
while providing for restoration of environment in an area, the NGT
can specify buffer zones around specific lakes and waterbodies in
contradiction with zoning regulations under these statutes or Revised
Master Plan.
26. Shri Parikh relies on the judgments of this Court in the cases
of Pragnesh Shah v. Dr. Arun Kumar Sharma and Others14,
Supreme Court Monitoring Committee v. Mussoorie Dehradun
Development Authority and Others15 and Resident’s Welfare
Association and Another v. Union Territory of Chandigarh
and Others16 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 account of the restrictions imposed
in the “Green Belt” areas, they were deprived of enjoyment of their
13 [2019] 4 SCR 995 : (2019) 18 SCC 494 : 2019 INSC 315
14 [2022] 8 SCR 154 : (2022) 11 SCC 493 : 2022 INSC 47
15 (1997) 11 SCC 605
16 [2023] 1 S.C.R. 601 : (2023) 8 SCC 643 : 2023 INSC 22
[2024] 1 S.C.R. 993
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
property which would be violative of Article 300A of the Constitution
of India. It was therefore submitted that a direction be given to the
State to pay compensation to such owners for not being in a position
to utilize their plot of lands. We prima facie find that such an issue
could be beyond the scope of the present proceedings.
IV. CONSIDERATION:
A. Legislative Scheme of the TCP Act.
30. It will be apposite to refer to the Preamble of the TCP Act, which
reads thus:
“An act to make provision for planning and development
and use of land; to make better provision for the preparation
of development plans and sectoral plans with a view to
ensuring that town planning schemes are made in a proper
manner and their execution is made effective to constitute
the Town and Country Development Authority for proper
implementation of town and country development plan, to
provide for the development and administration of special
areas through the Special Area Development Authority17,
to make provision for the compulsory acquisition of land
required for the purpose of the development plans and for
purposes connected with the matters aforesaid.”
31. It can thus be seen that the TCP Act has been enacted to make
provision for planning and development and use of land; to make
better provision for the preparation of development plans and sectoral
plans with a view to ensuring that town planning schemes are made
in a proper manner and their execution is made effective. It also
provides for constitution of Town and Country Development Authority
for proper implementation of town and country development plan. It
also provides for development and administration of special areas
through the Special Area Development Authority.
32. Section 13 of the TCP Act reads thus:
“13. Planning Area.—(1) The State Government may, by
notification, constitute planning areas for the purposes of
this Act and define the limits thereof.
17 As amended vide Himachal Pradesh Town and Country Planning (Amendment) Act 2015 (Act 14
of 2015).
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(2) The State Government may, by notification,-
(a) alter the limits of a planning area so as to include
therein or exclude there from such area as may be
specified in the notification;
(b) amalgamate two or more planning areas so as to
constitute one planning area;
(c) divide any planning area into two or more planning
areas;
(d) declare that the whole or part of the area constituting
the planning area shall cease to be planning area
or part thereof.”
33. It can thus be seen that under Section 13 of the TCP Act, the
State Government is empowered to constitute planning areas for
the purposes of the Act and define the limits thereof. It is also
empowered to alter the limits of a planning area, amalgamate two
or more planning areas and also to divide any planning area into
two or more planning areas.
34. Section 14 of the TCP Act reads thus:
“14. Director to prepare Development Plans.—Subject
to the provisions of this Act and the rules made thereunder
the Director shall—
*(a) prepare an existing land use map indicating the
natural hazard proneness of the area;
*(b) prepare an interim development plan keeping in view
the regulation for land use zoning for natural hazard
prone area;
*(c) prepare a development plan keeping in view the
regulation for land use zoning for natural hazard
prone area;18
(d) prepare a sectoral plan;
18 *As amended vide Himachal Pradesh Town and Country Planning (Amendment) Act 2013 (Act
No. 41 of 2013).
[2024] 1 S.C.R. 995
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
(e) carry such surveys and inspections and obtain such
pertinent reports from Government departments,
local authorities and public institutions as may be
necessary for the preparation of the plans;
(f) perform such duties and functions as are supplemental,
incidental, and consequential to any of the foregoing
functions or as may be assigned by the State
Government for the purpose of carrying out the
provisions of this Act.”
35. Clauses (a), (b) and (c) of Section 14 of the TCP Act have been
amended vide Himachal Pradesh Town and Country Planning
(Amendment) Act 2013 (Act No. 41 of 2013). It can be seen that
these clauses provide a special emphasis on the areas indicating
the natural hazard.
36. Section 15 of the TCP Act reads thus:
“15. Existing Land use Maps.—(1) The Director shall
carry out the survey and prepare an existing land use map
and forthwith publish the same in such manner as may be
prescribed together with public notice of the preparation
of the map and of the place or places where the copies
may be inspected, inviting objections and suggestions in
writing from any person with respect thereto within thirty
days from the date of publication of such notice.
(2) After the expiry of the period specified in the notice
published under sub-section (1), the Director may, after
allowing a reasonable opportunity of being heard to all such
persons who have filed the objections or suggestions, make
such modification therein as may be considered desirable.
(3) As soon as may be after the map is adopted with or
without modifications the Director shall publish a public
notice of the adoption of the map and the place or places
where the copies of the same may be inspected.
(4) A copy of the notice shall also be published in the
Official Gazette and it shall be conclusive evidence of the
fact that the map has been duly prepared and adopted.”
996 [2024] 1 S.C.R.
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37. Under Section 15 of the TCP Act, the Director is required to carry
out the survey and prepare an existing land use map and, forthwith
publish the same in such manner as may be prescribed together
with public notice of the preparation of the map. It also provides for
inviting objections and suggestions in writing from any person with
respect thereto within thirty days from the date of publication of such
notice. Sub-section (2) of Section 15 thereof provides for allowing
a reasonable opportunity of being heard to all such persons who
have filed the objections or suggestions. It also enables the Director
to make such modification therein as may be considered desirable.
Sub-section (3) thereof provides that after the map is adopted with
or without modifications, the Director shall publish a public notice
of the adoption of the map. A copy of the notice is required to be
published in the Official Gazette.
38. Section 15-A of the TCP Act deals with “Freezing of landuse pending
preparation of existing landuse map under Section 15(1)”. Section 16
of the TCP Act deals with “Freezing of land use on the publication
of the existing land use map under Section 15”. Section 17(1) of the
TCP Act deals with “Interim Development Plans”.
39. The provisions of Sections 18, 19 and 20 of the TCP Act are most
relevant for considering the issues involved in the present matter,
which read thus:
“18. Development Plan.—A development plan shall—
(a) indicate broadly the land use proposed in the planning
areas;
(b) allocate broadly areas or sector of land for,—
(i) residential, industrial, commercial or agricultural
purposes,
(ii) open spaces, parks and gardens, green belts,
zoological gardens and play grounds,
(iii) public institutions and offices,
(iv) such special purposes as the Director may deem fit;
(c) lay down the pattern of National and State highways
connecting the planning area with the rest of the region
ring roads, arterial roads, and the major roads within the
planning area;
[2024] 1 S.C.R. 997
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
(d) provide for the location of airports, railway stations,
bus terminal and indicate the proposed extension and
development of railways;
(e) make proposals for general landscaping and preservation
of natural areas;
(f) project the requirement of the planning area of such
amenities and utilities as water, drainage, electricity and
suggest their fulfilment;
(g) propose broad based regulations for sectoral development,
by way of guideline, within each sector of the location,
height, size of buildings and structures, open spaces,
court-yards and the use to which such buildings and
structures and land may be put 19“including regulations
for façade control and sloping roof conforming to the hill
architecture and environs”;
(h) lay down the broad based traffic circulation patterns in
a city;
(i) suggest architectural control features, elevation and
frontage of buildings and structures;
(j) indicate measures for flood control, *“and protection against
land slide”, prevention of air and water pollution, disposal
of garbage and general environmental control.
19. Publication of Draft Development Plan.—(1) The Director
shall forthwith publish the draft development plans prepared
under section 18 in such manner as may be prescribed together
with a notice of the preparation of the draft development plan
and the place or places where the copies may be inspected,
inviting objections and the suggestions in writing from any
person with respect thereto, within thirty days from the date of
publication of such notice. Such notice shall specify in regard to
the draft development plan the following particulars, namely:—
(i) the existing land use maps;
19 As amended vide Himachal Pradesh Town and Country Planning (Amendment) Act 2013 (Act
No. 41 of 2013).
998 [2024] 1 S.C.R.
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(ii) a narrative report, supported by maps and charts,
explaining the provisions of the draft development plan;
(iii) the phasing of implementation of the draft development
plan as suggested by the Director;
(iv) the provisions for enforcing the draft development
plan and stating the manner in which permission to
development may be obtained;
(v) an approximate estimate of the cost of land acquisition
for public purposes and the cost of works involved
in the implementation of the plan.
(2) The Director shall, not later than ninety days after the date of
expiry of the notice period under sub-section (1), consider all the
objections and suggestions as may be received within the period
specified in the notice under sub-section (1) and shall, after
giving reasonable opportunity to all persons affected thereby of
being heard, make such modifications in the draft development
plan as he may consider necessary, and submit not later than
six months after the publication of the draft development plan,
the plan so modified, to the State Government for approval
together with all connected documents, plans, maps and charts.
20. Sanction of Development Plan.—(1) As soon as may be
after the submission of the development plan under Section 19,
the State Government may either approve the development plan
or may approve it with such modifications as it may consider
necessary or may return it to the Director to modify the same
or to prepare a fresh plan in accordance with such directions
as it may issue in this behalf.
(2) Where the State Government approves the development
plan with modifications, the State Government shall, by a
notice published in the Official Gazette invite objections and
suggestions in respect of such modifications within a period
of not less than thirty days from the date of publication of the
notice in the Official Gazette.
(3) After considering objections and suggestions and after giving
a hearing to the persons desirous of being heard the State
Government may confirm the modification in the development plan.
[2024] 1 S.C.R. 999
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
(4) The State Government shall publish the development plan
as approved, under the foregoing provisions in the Official
Gazette and shall along with the plan publish a public notice,
in such manner as may be prescribed, of the approval of the
development plan and the place or places where the copies of
the approved development plan may be inspected.
(5) The development plan shall come into operation from the
date of publication thereof in the Official Gazette and as from
such date shall be binding on all Development Authorities
constituted under this Act and all local authorities functioning
within the planning area.
(6) After the coming into operation of the development plan, the
interim development plan shall stand modified or altered to the
extent the proposals in the development plan are at variance
with the interim development plan.”
40. It can thus be seen that the development plan is required to consist
of various factors. Clause (b) of Section 18 of the TCP Act provides
that it shall allocate broadly areas or sector of land for various
purposes including residential, industrial, commercial or agricultural.
It shall also provide for open spaces, parks and gardens, green belts,
zoological gardens and play-grounds. It is also required to make
proposals for general landscaping and preservation of natural areas.
It is required to project the requirement of the planning area of such
amenities and utilities as water, drainage, electricity and suggest their
fulfilment. It is also required to propose broad-based regulations for
sectoral development, by way of guide-lines, within each sector of
the location, height, size of buildings and structures, open spaces,
court-yards and the use to which such buildings and structures and
land may be put including regulations for façade control and sloping
roof conforming to the hill architecture and environs.
41. It can thus be seen that a special emphasis is placed on regulations
for façade control and sloping roof conforming to the hill architecture
and environs. Clause (j) of Section 18 of the TCP Act, also specifically
provides to indicate measures for flood control, protection against
land slide, prevention of air and water pollution, disposal of garbage
and general environmental control.
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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 be
received within the period specified in the notice under sub-section
(1) thereof, not later than ninety days after the date of expiry of the
notice period. He is also required to give reasonable opportunity to all
persons affected thereby of being heard and make such modifications
in the draft development plan as he may consider necessary. He is
also required to submit, not later than six months after the publication
of the draft development plan, the plan so modified, to the State
Government for approval together with all connected documents,
plans, maps and charts.
44. Under Section 20 of the TCP Act, after the development plan under
Section 19 is submitted to the State Government, it may either approve
the development plan or it may approve it with such modifications
as it may consider necessary or may return it to the Director to
modify the same or to prepare a fresh plan in accordance with such
directions as it may issue in this behalf. Under sub-section (2) thereof,
where the State Government approves the development plan with
modifications, the State Government 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. Under
sub-section (3) thereof, after considering objections and suggestions
[2024] 1 S.C.R. 1001
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
and after giving a hearing to the persons desirous of being heard, the
State Government may confirm the modification in the development
plan. Sub-section (4) thereof requires the State Government to publish
the development plan as approved, under the foregoing provisions
in the Official Gazette and shall along with the plan publish a public
notice, in such manner as may be prescribed, of the approval of the
development plan and the place or places where the copies of the
approved development plan may be inspected. Sub-section (5) thereof
provides that the development plan shall come into force from the
date of publication thereof in the Official Gazette and as from such
date shall be binding on all Development Authorities constituted under
this Act and all local authorities functioning within the planning area.
Sub-section (6) thereof provides that after the coming into operation
of the development plan, the interim development plan shall stand
modified or altered to the extent the proposals in the development
plan are at variance with the interim development plan.
B. Nature of functions/powers of the Authorities under
Chapter-IV of the TCP Act.
45. A perusal of the aforesaid provisions, leaves no manner of doubt,
that Chapter-IV of the TCP Act is a complete code, providing
for preparation of draft development plan, publication of draft
development plan with a publication of its notice, inviting objections
and suggestions, giving reasonable opportunity to all persons affected
of being heard, making modifications in the draft development plan
as may be considered necessary by the Director and thereafter
submitting it to the State Government.
46. Under Section 20 of the TCP Act, the State Government is empowered
to either approve the development plan or may approve it with such
modifications as it may consider necessary or may return it to the
Director to modify the same or to prepare a fresh plan in accordance
with such directions as it may issue in this behalf. Sub-section (2)
thereof provides that where the State Government approves the
development plan with modifications, it is again required to be
published in the Official Gazette to invite objections and suggestions
in respect of such modifications. The State Government is empowered
to confirm the modification in the development plan after considering
objections and suggestions and after giving a hearing to the persons
desirous of being heard.
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47. It could thus be seen that Chapter-IV of the TCP Act provides for
inviting objections and suggestions at two stages. Firstly, at the
stage of Section 19 where the Director is required to invite objections
and suggestions to the draft development plan and after giving
an opportunity of being heard and considering the objections and
suggestions, submit the development plan to the State Government.
Under Section 20 of the TCP Act, a second opportunity of making
objections and suggestions has been provided. Again, the State
Government is required to give an opportunity of hearing to such
objectors before granting final approval to the development plan.
48. A perusal of the scheme of the TCP Act and particularly Chapter-IV
thereof would establish beyond doubt that the powers vested with
the Director and the State Government are for enacting a piece of
delegated legislation.
49. The distinction between the legislative function and administrative
function is succinctly described by this Court in the case of Union of
India and Another v. Cynamide India Ltd. and Another20, which
reads thus:
“7. The third observation we wish to make is, price fixation
is more in the nature of a legislative activity than any other.
It is true that, with the proliferation of delegated legislation,
there is a tendency for the line between legislation and
administration to vanish into an illusion. Administrative,
quasi-judicial decisions tend to merge in legislative activity
and, conversely, legislative activity tends to fade into and
present an appearance of an administrative or quasijudicial 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
20 [1987] 2 SCR 841 : (1987) 2 SCC 720 : 1987 INSC 100
[2024] 1 S.C.R. 1003
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
cases; an administrative act is the making and issue of
a specific direction or the application of a general rule to
a particular case in accordance with the requirements of
policy”. “Legislation is the process of formulating a general
rule of conduct without reference to particular cases and
usually operating in future; administration is the process
of performing particular acts, of issuing particular orders or
of making decisions which apply general rules to particular
cases.” It has also been said: “Rule-making is normally
directed toward the formulation of requirements having a
general application to all members of a broadly identifiable
class” while, “an adjudication, on the other hand, applies to
specific individuals or situations”. But, this is only a broad
distinction, not necessarily always true. …..”
50. Though, this Court, in the celebrated case of Cynamide India Ltd.
(supra) observed that any attempt to draw a distinct line between
legislative and administrative functions is difficult in theory and
impossible in practice, it attempted to draw a line between the two
inasmuch as different legal rights and consequences may ensue,
in exercise of such functions. It has been held that the distinction
between the two has usually been expressed as “one between
the general and the particular”. A legislative act is the creation
and promulgation of a general rule of conduct without reference to
particular cases; whereas an administrative act is the making and
issue of a specific direction or the application of a general rule to a
particular case in accordance with the requirements of policy. It has
been held that legislation is the process of formulating a general rule of
conduct without reference to particular cases and usually operating in
future. Whereas, administration is the process of performing particular
acts of issuing particular orders or of making decisions which apply
general rules to particular cases. It has also been held that rulemaking is normally directed towards the formulation of requirements
having a general application to all members of a broadly identifiable
class; whereas an adjudication, on the other hand, applies to specific
individuals or situations.
51. When we apply the aforesaid principles to the facts of the present
case, it will be amply clear that the preparation of draft development
plan under Section 18 of the TCP Act, finalization of the same under
Section 19 of the TCP Act by the Director and grant of approval by
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the State under Section 20 of the TCP Act are all legislative functions.
The provisions enable the delegated legislative body to formulate
the provisions which will have a general application to all members
of the broadly identifiable classes.
52. In the case of Tulsipur Sugar Co. Ltd. v. The Notified Area
Committee, Tulsipur21, again a challenge was made to the notification
issued under Section 3 of the U.P. Town Areas Act, 1914 on the ground
that before issuance of final notification, the principles of audi alteram
partem were not followed. While rejecting the said contention and
holding the exercise of powers as a piece of conditional legislation,
this Court observed thus:
“7. …..The power of the State Government to make a declaration
under Section 3 of the Act is legislative in character because
the application of the rest of the provisions of the Act to the
geographical area which is declared as a town area is dependent
upon such declaration. Section 3 of the Act is in the nature of
a conditional legislation. Dealing with the nature of functions of
a non-judicial authority, Prof. S.A. De Smith in Judicial Review
of Administrative Action (3rd Edn.) observes at p. 163:
“However, the analytical classification of a function may
be a conclusive factor in excluding the operation of the
audi alteram partem rule. It is generally assumed that
in English law the making of a subordinate legislative
instrument 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.
21 [1980] 2 SCR 1111 : (1980) 2 SCC 295 : 1980 INSC 38
[2024] 1 S.C.R. 1005
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
54. In the case of Sundarjas Kanyalal Bhatija and Others v. Collector,
Thane, Maharashtra and Others22, the Government of Maharashtra
had issued a draft notification under Section 3(3) of the Bombay
Provincial Municipal Corporation Act, 1949 (for short, “BPMC Act”).
The draft notification proposed for formation of “Kalyan Corporation”.
Against the said proposal, there were many objections and
representations received from different sections. In the earlier draft
notification, the area of Ulhasnagar Municipal Council was proposed
to be merged in the proposed area of Kalyan Corporation. However,
taking into consideration the objections, the area of Ulhasnagar
Municipal Council was excluded from the area of Kalyan Corporation
while issuing the final notification. The same was challenged before
the High Court by filing a writ petition. One of the reasons which
weighed with the High Court while allowing the petition was that
the opportunity of hearing was not given to one of the parties while
issuing the final notification under Section 3(2) of the BPMC Act. It
will be relevant to refer to the following observations of this Court
while reversing the order of the High Court in the said case:
“28. Equally, the rule issued by the High Court to hear the
parties is untenable. The Government in the exercise of
its powers under Section 3 is not subject to the rules of
natural justice any more than is legislature itself. The rules
of natural justice are not applicable to legislative action
plenary or subordinate. The procedural requirement of
hearing is not implied in the exercise of legislative powers
unless hearing was expressly prescribed. The High Court,
therefore, was in error in directing the Government to hear
the parties who are not entitled to be heard under law.”
55. It could thus be seen that this Court clearly held that the issuance
of draft notification, consideration of objections and publication of
final notification are done in exercise of legislative powers. The
procedural requirement of hearing would not be implied unless the
statute so provides for.
56. This Court, in the case of Pune Municipal Corporation and
Another v. Promoters and Builders Association and Another23,
had an occasion to consider somewhat similar provisions under
22 [1989] 3 SCR 405 : (1989) 3 SCC 396 : 1989 INSC 202
23 [2004] 2 Suppl. SCR 207 : (2004) 10 SCC 796 : 2004 INSC 348
1006 [2024] 1 S.C.R.
Digital Supreme Court Reports
the Maharashtra Regional and Town Planning Act, 1966 (for short,
“MRTP Act”). In the said case, this Court was considering the power
of the State Government to make any changes of its own in the
modifications submitted by the Planning Authority under Section 37
of the MRTP Act. This Court observed thus:
“5. Making of DCR or amendments thereof are legislative
functions. Therefore, Section 37 has to be viewed as
repository of legislative powers for effecting amendments to
DCR. That legislative power of amending DCR is delegated
to the State Government. As we have already pointed
out, the true interpretation of Section 37(2) permits the
State Government to make necessary modifications or put
conditions while granting sanction. In Section 37(2), the
legislature has not intended to provide for a public hearing
before according sanction. The procedure for making such
amendment is provided in Section 37. Delegated legislation
cannot be questioned for violating the principles of natural
justice in its making except when the statute itself provides
for that requirement. Where the legislature has not chosen
to provide for any notice or hearing, no one can insist upon
it and it is not permissible to read natural justice into such
legislative activity. Moreover, a provision for “such inquiry
as it may consider necessary” by a subordinate legislating
body is generally an enabling provision to facilitate the
subordinate legislating body to obtain relevant information
from any source and it is not intended to vest any right in
anybody. (Union of India v. Cynamide India Ltd. [(1987) 2
SCC 720], SCC paras 5 and 27. See generally H.S.S.K.
Niyami v. Union of India [(1990) 4 SCC 516] and Canara
Bank v. Debasis Das [(2003) 4 SCC 557 : 2003 SCC
(L&S) 507] .) While exercising legislative functions, unless
unreasonableness or arbitrariness is pointed out, it is not
open for the Court to interfere. (See generally ONGC v.
Assn. of Natural Gas Consuming Industries of Gujarat
[1990 Supp SCC 397] .) Therefore, the view adopted by
the High Court does not appear to be correct.”
57. It could thus be seen that this Court in the case of Pune Municipal
Corporation (supra) held that making of Development Control Rules
(DCR) or amendments thereof are legislative functions.
[2024] 1 S.C.R. 1007
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
58. In the said case, the Court also found that since the legislature
did not provide for a public hearing before according sanction,
the delegated legislation could not be questioned for violating the
principles of natural justice in its making except when the statue
itself provide for that requirement. The Court went on to hold that
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.
59. Again, in the case of Bangalore Development Authority v. Aircraft
Employees’ Cooperative Society Limited and Others24, the
scheme for finalization of the development plan as provided under the
Karnataka Town and Country Planning Act, 1961 was considered and
the said power was held to be in exercise of the legislative powers.
60. Recently, a three-Judges Bench of this Court in the case of Rajeev
Suri v. Delhi Development Authority and Others25, 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.
24 [2012] 4 SCR 881 : (2012) 3 SCC 442 : 2012 INSC 50
25 [2021] 15 SCR 283 : (2022) 11 SCC 1: 2021 INSC 4
1008 [2024] 1 S.C.R.
Digital Supreme Court Reports
63. In the case of V.K. Naswa v. Home Secretary, Union of India and
Others26, 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 direction to the legislature to enact in
a particular manner.
7. In Mallikarjuna Rao v. State of A.P. [(1990) 2 SCC 707 :
1990 SCC (L&S) 387 : (1990) 13 ATC 724 : AIR 1990 SC
1251] and V.K. Sood v. Deptt. of Civil Aviation [1993 Supp (3)
SCC 9 : 1993 SCC (L&S) 907 : (1993) 25 ATC 68 : AIR 1993
SC 2285], this Court has held that the writ court, in exercise
of its power under Article 226, has no power even indirectly
to require the executive to exercise its law-making power. The
Court observed that it is neither legal nor proper for the High
Court to issue directions or advisory sermons to the executive
in respect of the sphere which is exclusively within the domain
of the executive under the Constitution. The power under Article
309 of the Constitution to frame rules is the legislative power.
This power under the Constitution has to be exercised by the
President or the Governor of a State, as the case may be.
The courts cannot usurp the functions assigned to the
executive under the Constitution and cannot even indirectly
require the executive to exercise its law-making power in
any manner. The courts cannot assume to themselves a
supervisory role over the rule-making power of the executive
under Article 309 of the Constitution. While deciding the
said case, the Court placed reliance on a large number of
judgments, particularly Narinder Chand Hem Raj v. UT, H.P.
[(1971) 2 SCC 747 : AIR 1971 SC 2399], where it has been
held that legislative power can be exercised only by the
legislature or its delegate and none else.
26 [2012] 2 SCR 912 : (2012) 2 SCC 542 : 2012 INSC 10
[2024] 1 S.C.R. 1009
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
8. In State of H.P. v. Parent of a Student of Medical College
[(1985) 3 SCC 169 : AIR 1985 SC 910], this Court deprecated
the practice adopted by the courts to issue directions to the
legislature to enact a legislation to meet a particular situation
observing : (SCC p. 174, para 4)
“4. … The direction given by the Division Bench was really
nothing short of an indirect attempt to compel the State
Government to initiate legislation with a view to curbing the
evil of ragging, for otherwise it is difficult to see why, after
the clear and categorical statement by the Chief Secretary
on behalf of the State Government that the Government
will introduce legislation if found necessary and so advised,
the Division Bench should have proceeded to again give
the same direction. Thus the Division Bench was clearly
not entitled to do. It is entirely a matter for the executive
branch of the Government to decide whether or not to
introduce any particular legislation.”
9. In Asif Hameed v. State of J&K [1989 Supp (2) SCC 364 :
AIR 1989 SC 1899] this Court while dealing with a case like
this at hand observed : (SCC p. 374, para 19)
“19. … While doing so the court must remain within its
self-imposed limits. The court sits in judgment on the
action of a coordinate branch of the Government. While
exercising power of judicial review of administrative action,
the court is not an appellate authority. The Constitution
does not permit the court to direct or advise the executive
in matters of policy or to sermonise qua any matter which
under the Constitution lies within the sphere of legislature
or executive.”
10. In Union of India v. Deoki Nandan Aggarwal [1992 Supp (1)
SCC 323 : 1992 SCC (L&S) 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.”
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11. Similarly in Ajaib Singh v. Sirhind Coop. Marketing-cumProcessing Service Society Ltd. [(1999) 6 SCC 82 : 1999 SCC
(L&S) 1054 : AIR 1999 SC 1351], this Court held that the court
cannot fix a period of limitation, if not fixed by the legislature,
as “the courts can admittedly interpret the law and do not make
laws”. The court cannot interpret the statutory provision in such
a manner “which would amount to legislation intentionally left
over by the legislature”.
12. A similar view has been reiterated by this Court in Union of
India v. Assn. for Democratic Reforms [(2002) 5 SCC 294 : AIR
2002 SC 2112] observing that the court cannot issue direction to
the legislature for amending the Act or Rules. It is for Parliament
to amend the Act or Rules. In District Mining Officer v. Tisco
[(2001) 7 SCC 358], this Court held that function of the court
is only to expound the law and not to legislate.
13. Similarly, in Supreme Court Employees’ Welfare Assn. v.
Union of India [(1989) 4 SCC 187 : 1989 SCC (L&S) 569], this
Court held that the court cannot direct the legislature to enact
a particular law for the reason that under the constitutional
scheme Parliament exercises sovereign power to enact law
and no outside power or authority can issue a particular piece
of legislation. (See also State of J&K v. A.R. Zakki [1992 Supp
(1) SCC 548 : 1992 SCC (L&S) 427 : (1992) 20 ATC 285 : AIR
1992 SC 1546] .)
14. In Union of India v. Prakash P. Hinduja [(2003) 6 SCC 195
: 2003 SCC (Cri) 1314 : AIR 2003 SC 2612], this Court held
that if the court issues a direction which amounts to legislation
and is not complied with by the State, it cannot be held that the
State has committed the contempt of court for the reason that
the order passed by the court was without jurisdiction and it has
no competence to issue a direction amounting to legislation.
15. The issue involved herein was considered by this Court in
University of Kerala v. Council of Principals of Colleges [(2010) 1
SCC 353 : AIR 2010 SC 2532] . The Court elaborately explained
the scope of separation of powers of different organs of the
State under our Constitution; the validity of judicial legislation
and if it is at all permissible, its limits; and the validity of judicial
activism and the need for judicial restraint, etc. The Court
observed : (SCC p. 361, para 13)
[2024] 1 S.C.R. 1011
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
“13. … ‘19. At the outset, we would say that it is not possible
for this Court to give any directions for amending the Act
or the statutory rules. It is for Parliament to amend the
Act and the rules.’ [Ed. : As observed in Union of India
v. Assn. for Democratic Reforms, (2002) 5 SCC 294, p.
309, para 19.] ”
16. In State of U.P. v. Jeet S. Bisht [(2007) 6 SCC 586], this
Court held that issuing any such direction may amount to
amendment of law which falls exclusively within the domain of
the executive/legislature and the court cannot amend the law.
17. In Delhi Jal Board v. National Campaign for Dignity and Rights
of Sewerage and Allied Workers [(2011) 8 SCC 568 : (2011) 2
SCC (L&S) 375], this Court while dealing with the issue made
the observation that in exceptional circumstances where there
is inaction by the executive, for whatever reason, the judiciary
must step in, in exercise of its constitutional obligations to
provide a solution till such time the legislature acts to perform
its role by enacting proper legislation to cover the field. (See
also Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997
SCC (Cri) 932 : AIR 1997 SC 3011]; Common Cause v. Union
of India [(2008) 5 SCC 511 : AIR 2008 SC 2116] and Destruction
of Public and Private Properties v. State of A.P. [(2009) 5 SCC
212 : (2009) 2 SCC (Cri) 629 : AIR 2009 SC 2266] )
18. Thus, it is crystal clear that the court has a very limited role
and in exercise of that, it is not open to have judicial legislation.
Neither the court can legislate, nor has it any competence
to issue directions to the legislature to enact the law in a
particular manner.”
[emphasis supplied by us]
65. Constitution of India recognizes the independence and separation of
powers amongst the three branches of the State viz. the Legislature,
the Executive and the Judiciary. Each of the branches are co-equal.
The Parliament or the Legislature is entrusted with the function of
legislation, i.e., enacting the laws. The Executive is entrusted with
the function and power to implement those laws and discharge their
functions in accordance with the provisions made in the Constitution
of India and the laws so enacted. The Judiciary is entrusted with
the function to ensure that the laws enacted by the Legislature
1012 [2024] 1 S.C.R.
Digital Supreme Court Reports
are within the four corners of the Constitution of India and that the
Executive acts within the four corners of the Constitution of India
and the laws enacted by the Legislature. As to what should be
the laws and the policy behind the said laws is clearly within the
domain of the Legislature. It is a different matter for Judiciary to
examine as to whether a particular piece of legislation stands the
scrutiny of law within the limited grounds of judicial review available.
However, giving a direction or advisory sermons to the Executive in
respect of the sphere which is exclusively within the domain of the
Executive or the Legislature would neither be legal nor proper. The
Court cannot be permitted to usurp the functions assigned to the
Executive, the Legislature or the subordinate legislature. The Court
cannot also assume a supervisory role over the rule-making power
of the Executive under Article 309 of the Constitution of India.
66. It is a settled law that the Constitution of India does not permit the
courts to direct or advise the Executive in the matters of policy or to
sermonize qua any matter which under the Constitution lies within the
sphere of Legislature or Executive. It is also settled that the courts
cannot issue directions to the Legislature for enacting the laws in
a particular manner or for amending the Acts or the Rules. It is for
the Legislature to do so.
67. A Constitution Bench, in the case of Manoj Narula v. Union of India27,
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.”
27 [2014] 9 SCR 965 : (2014) 9 SCC 1 : 2014 INSC 568
[2024] 1 S.C.R. 1013
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
68. This Court, in the case of Satpal Saini (supra), considered whether it
was permissible for the High Court to call upon the State Government
to amend the provisions of Section 118 of the Himachal Pradesh
Tenancy and Land Reforms Act, 1972. The directions were issued by
the High Court to the State Government to make amendment within
90 days. Allowing the appeal filed by the State Government, this Court
held that the High Court, while issuing the above directions, acted in
a manner contrary to the settled limitations on the power of judicial
review under Article 226 of the Constitution of India. It held that the
directions cannot be issued to the legislature to enact a law. The
power to enact legislation is a plenary constitutional power which is
vested in the Parliament and the State Legislatures.
69. It can thus be seen that it is a settled position of law that neither
the High Courts while exercising powers under Article 226 of the
Constitution nor this Court while exercising powers under Article
32 of the Constitution can direct the legislature or its delegatee to
enact a law or subordinate legislation in a particular manner. If the
High Courts and this Court, in their extra-ordinary powers under
Articles 226 and 32 of the Constitution cannot do so, the answer to
the question as to whether a Tribunal constituted under a statute,
having a limited jurisdiction, can do so or not, would be obviously ‘No’.
70. In that view of the matter, we find that the first order of NGT is liable to
be set aside on the short ground that it has transgressed its limitations
and attempted to encroach upon the field reserved for the delegatee
to enact a piece of delegated legislation. We are of the considered
view that when the TCP Act empowers the State Government and
the Director to exercise the powers to enact a piece of delegated
legislation, the NGT could not have imposed fetters on such powers
and directed it to exercise its powers in a particular manner.
D. Whether observations in Para 47 of the Mantri Techzone
Private Limited (supra) would operate as res judicata?
71. A reliance in this respect is placed by respondent No.1 on the
judgment of this Court in the case of Mantri Techzone Private
Limited (supra). It will be relevant to refer to the arguments advanced
by the State Government and the other private parties in the said
case, which read thus:
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“27. The learned Advocate General, Shri Udaya Holla,
appearing for the appellant State of Karnataka in CAs Nos.
4923-24 of 2017, has submitted that the State of Karnataka
is also aggrieved by the order of NGT to the extent of
setting aside the buffer zone in respect of waterbodies
and drains specified in the Revised Master Plan, 2015,
and enlargement of the buffer zone in respect of lakes
and Rajakaluves. It is also aggrieved by the order of
NGT directing the authorities to demolish all the offending
constructions raised/built in the buffer zone, which will
result in demolition of 95% of the buildings in Bengaluru.
It is submitted that the Revised Master Plan is statutory in
nature and NGT has no power, competence or jurisdiction
to consider the validity or vires of any statutory provision/
regulation. Therefore, the order of NGT to that extent is
liable to be set aside.
28. The learned Senior Counsel appearing for the appellants
in other cases, have also supported the arguments of the
learned Advocate General. It was contended that the
Revised Master Plan provides for a 30 m buffer zone around
the lakes and a buffer zone of 50 m, 25 m and 15 m from
the primary, secondary and tertiary drains, respectively
to be measured from the centre of the drain. Vide the
impugned judgment, NGT has revised these buffer zones
and has directed that the buffer zone be maintained for
75 m around the lake and 50, 35 and 25 m respectively
from the primary, secondary and tertiary drain, respectively.
Variation of buffer zone, as directed by NGT is without any
legal and scientific basis and has the effect of amending
the Revised Master Plan, 2015, without there being any
challenge to the same or any relief sought with respect
to the said Revised Master Plan.”
72. It will be relevant to refer to the contention made by the counsel
appearing on behalf of the applicants in the said case, which reads
thus:
“29. On the other hand, Shri Sajan Poovayya, learned
Senior Counsel, appearing for the applicants, has fairly
submitted that the applications were filed only against
[2024] 1 S.C.R. 1015
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
the appellants in CAs Nos. 5016 and 8002-03 of 2016
(Respondents 9 and 10). He has no objection to set
aside the order insofar as the appellants in other appeals
including the State of Karnataka are concerned. He has
also no objection to set aside the general conditions and
directions of NGT in para 1 of the order dated 4-5-2016
[Forward Foundation v. State of Karnataka, 2016 SCC
OnLine NGT 1409] except the directions issued against
Respondents 9 and 10. In view of the above, it is not
necessary to examine the contentions of the learned
Advocate General in Civil Appeals Nos. 4923-24 of 2017.
It is also not necessary to consider the contentions urged
in the other civil appeals except the appeals filed by
Respondents 9 and 10.”
73. It could thus be seen that this Court has specifically recorded the
submissions made by the counsel that he has no objection if this
Court sets aside the general conditions and directions of NGT in
para 1 of the order dated 4th May 2016 in the case of Forward
Foundation v. State of Karnataka28, 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 Others v. Dhanwanti
Devi and Others29, 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
28 2016 SCC OnLine NGT 1409
29 [1996] 5 Suppl. SCR 32 : (1996) 6 SCC 44 : 1996 INSC 911
1016 [2024] 1 S.C.R.
Digital Supreme Court Reports
analyse a decision and isolate from it the ratio decidendi.
According to the well-settled theory of precedents, every
decision contains three basic postulates—(i) findings of
material facts, direct and inferential. An inferential finding
of facts is the inference which the Judge draws from the
direct, or perceptible facts; (ii) statements of the principles
of law applicable to the legal problems disclosed by the
facts; and (iii) judgment based on the combined effect
of the above. A decision is only an authority for what it
actually decides. What is of the essence in a decision is
its ratio and not every observation found therein nor what
logically follows from the various observations made in
the judgment. Every judgment must be read as applicable
to the particular facts proved, or assumed to be proved,
since the generality of the expressions which may be
found there is not intended to be exposition of the whole
law, but governed and qualified by the particular facts of
the case in which such expressions are to be found. It
would, therefore, be not profitable to extract a sentence
here and there from the judgment and to build upon it
because the essence of the decision is its ratio and not
every observation found therein. The enunciation of the
reason or principle on which a question before a court
has been decided is alone binding as a precedent. The
concrete decision alone is binding between the parties to
it, but it is the abstract ratio decidendi, ascertained on a
consideration of the judgment in relation to the subjectmatter of the decision, which alone has the force of law
and which, when it is clear what it was, is binding. It is only
the principle laid down in the judgment that is binding law
under Article 141 of the Constitution. A deliberate judicial
decision arrived at after hearing an argument on a question
which arises in the case or is put in issue may constitute a
precedent, no matter for what reason, and the precedent
by long recognition may mature into rule of stare decisis.
It is the rule deductible from the application of law to the
facts and circumstances of the case which constitutes its
ratio decidendi.”
[2024] 1 S.C.R. 1017
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
75. This Court, in the case of Dhanwanti Devi (supra) in paragraph 9,
has held that it is not profitable to extract a sentence here and there
from the judgment and to build upon it. It has been held that the
essence of the decision is its ratio and not every observation found
therein. It has been held that a deliberate judicial decision arrived
at after hearing an argument on a question which arises in the case
or is put in issue would constitute a precedent.
76. Though at a first blush, the observations made in para 47 of the
judgment in the case of Mantri Techzone Private Limited (supra),
would appear to support the case of the respondents, but if the entire
judgment in the said case is perused, it is not so. It can clearly be
seen that the learned Advocate General of the State has specifically
argued that the Revised Master Plan is statutory in nature and the
NGT has no power, competence or jurisdiction to consider the validity
or vires of any statutory provision/regulation. It was therefore argued
that the order of the NGT to that extent was liable to be set aside. It
was similarly argued on behalf of the other appellant that the order
of the NGT impugned therein which revised buffer zones also had
the effect of amending the Revised Master Plan 2015. A perusal
of para 29 of the Mantri Techzone Private Limited (supra) would
clearly reveal that the counsel appearing for the applicants before
the High Court has fairly conceded to the setting aside of those
general directions. It could thus be seen that, though the issue was
raised before the High Court with regard to the power of the NGT
to issue such directions, this Court did not go into that issue on the
basis of the concessions made by the appellants. We are therefore
of the considered view that the observations found in para 47 of the
Mantri Techzone Private Limited (supra) could not be construed
to be a precedent or a ratio decidendi.
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 referred to the general directions issued by the NGT in its
order dated 19th May 2015. Vide the said directions, it was directed
that the planning authorities while preparing development plan for
area in their jurisdiction or amending them in respect of undeveloped
portion abutting the hills up to 100 feet should be shown as “No
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Development/Open Space Reservation”. It further directed that in the
event the 100 feet area abutting hills, has already been developed,
in that area no permission be granted for additional FSI or TDR.
The Court observed thus:
“92. In the present case, the State of Maharashtra has
not shown any material or file containing the reasons
behind the directive of 14-11-2017. It is not in dispute
that the direction was consequential to, and solely based
on the directions of the NGT in para 17(e). As noticed
earlier, those directions were not based on any scientific
evidence or report of any technical expert. Furthermore,
even the impugned notification does not specify what
constitutes “hills”, and how they can be applied in towns
and communities set in undulating areas and hilly terrain.
This is not only vague, but makes the directions arbitrary
as they can be applied at will by the authorities concerned.
More importantly, they amount to a blanket change of all
regional and development plans. While such directions can
be issued, if situations so warrant, such as in extraordinary
or emergent circumstances, the complete absence of any
reasons why the State issued them, coupled with the lack
of any supporting expert report or input, renders it an
arbitrary exercise. That they are based only on the NGT’s
orders [Aam Aadmi Lokmanch v. State of Maharashtra,
2015 SCC OnLine NGT 11], only underlines the lack of
any application of mind on the part of the State, while
issuing them.
93. For the above reasons, we hold that the impugned
judgment [Harshada Coop. Housing Society Ltd. v. State
of Maharashtra, 2018 SCC OnLine Bom 2576 : (2018)
6 Bom CR 154] of the Bombay High Court cannot be
sustained; it is set aside. Consequently, the directions in
the notification under Section 154 (dated 14-11-2017) are
hereby quashed.”
78. A perusal of the aforesaid would clearly reveal that, though the
directive issued by the State Government under Section 154 of the
MRTP Act was issued in accordance with the directions issued by
the NGT, this Court found such exercise not to be permissible in
[2024] 1 S.C.R. 1019
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
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 Tibunal could have only adjudicated
upon the case put up before it. The case put up before it
in nutshell was that no construction should be allowed in
forests and green belt area. As already submitted green belt
areas are those areas in which the land is also owned by
the private land owners and is occupied by the structures.
As per IDP Provisions, only reconstruction is permitted in
the area and that too on old lines. No new construction or
increase in constructed area is permissible in these areas.
So far as the forest lands are concerned, no construction
upon that is permissible unless there is a clearance from
the Central Government as per the provisions of Forest
Conservation Act. Further, no construction is permissible
on the forest land until or unless proposal is cleared by
the Competent Authority i.e. Central Government, but
while disposing of the case, the Learned Tribunal has
entered the field, which does not belong to it. Whether
the building should be one storey or three storeys is for
the Competent Authority to decide. Town Planning does
1020 [2024] 1 S.C.R.
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not come under the purview of the NGT. Further the state
of Himachal Pradesh is not a non-compliant State. It has
been taking care of environment and has also been taking
care of Town Planning.”
81. Insofar as “Green Belt” areas are concerned, it has been found that
“Green Belt” areas are those areas in which the land is also owned
by the private land owners and is occupied by the structures. It
provides that as per the provision, reconstruction would be permitted
in the area and that too on old lines. No more new construction or
increase in constructed area is permissible in these areas. It further
provided that insofar as forest lands are concerned, no construction
upon them would be permitted unless there is a clearance from the
Central Government as per the provisions of the FC Act.
82. Not only that, as has already been referred to hereinabove, the
learned Advocate General has placed on record a Cabinet decision
which provides that construction would be permitted only in those
plots in which there are no trees. It is further pointed out that the
construction in “Green Belt” areas, would be permitted only to the
extent of single storey with attic.
83. The development plan has elaborately considered as to how vertical
construction will have to be preferred over the horizontal construction,
inasmuch as the land to be utilized for actual construction would be
lesser and there would be more open space.
84. The development plan also consists of the Chapters on “Land Use
Zoning” and “Development Control Regulations”. In “Green Belt”
areas, limited construction with one parking floor + one floor +
habitable attic would be permitted for residential use only. It is further
clear that the parking floor is permissible only where the plot of land
has an access to the motorable road. The maximum permissible
height shall be 10 metre. The maximum permissible FAR shall be
1.0. The setbacks norms as prescribed for R1 use in core area shall
be applicable. Reconstruction on old lines shall be permissible with
same plinth area and number of storeys. Cutting and 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:
[2024] 1 S.C.R. 1021
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
“17.2.2.9. Sinking and Sliding Area
i. The development permission shall be granted by the
Competent Authority in whose jurisdiction the Sinking
and Sliding Area falls.
ii. The Regulations as applicable for Core/Green Area
and Non-Core Area shall be applicable in Sinking
and Sliding Area.
iii. The Soil Investigation Report shall be submitted by
the applicant before construction/reconstruction of
building(s) for the areas falling in sinking and sliding
zones as defined in Shimla Planning Area, or for any
reclaimed piece of land. The Soil Investigation Report
shall be given by the Geologist in the prescribed form.
In case of negative observations, the construction
shall not be allowed/shall be allowed as per conditions
imposed by the consultant.”
It can thus clearly be seen that unless a Soil Investigation Report
is provided by the applicant before construction/reconstruction of
building(s) for the areas falling in Sinking and Sliding Zones as defined
in SPA, construction would not be allowed or allowed only as per the
conditions imposed by the consultant. The Soil Investigation Report
is required to be given by the Geologist in the prescribed form.
86. It can thus be seen that while preparing the development plan, due
care has been taken to ensure that environmental aspects are taken
care of.
87. We, however, do not propose to stamp our approval to all the
provisions made in the development plan. In that regard, if any
person feels aggrieved by any of the provisions, they would always
be at liberty to take recourse to such remedy as is available in law.
88. However, we are of the considered view that the NGT could not have
directed the delegatee who has been delegated powers under the
TCP Act to enact the regulations, to do so in a particular manner.
As a matter of fact, the NGT has imposed fetters on the exercise
of powers by the delegatee, who has been delegated such powers
by the competent legislature. In any case, it is clear that there were
sufficient safeguards under the provisions of the TCP Act inasmuch as
1022 [2024] 1 S.C.R.
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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 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 of Himachal Pradesh within
the stipulated time period and the same were heard. After considering
the objections and suggestions including the recommendations made
by the NGT in its first order, the development plan was finalized
for 22,450 hectares of SPA upto the year 2041. However in the
meantime, CWP Nos. 23 and 37 of 2022 were filed before the High
Court of Himachal Pradesh praying inter alia for stay of the draft
development plan.
[2024] 1 S.C.R. 1023
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
92. Subsequent to the finalization of the draft development plan, the
respondent No.1 herein filed another application being OA No. 297
of 2022 before the NGT. The NGT passed an ex parte ad interim
order dated 12th May 2022 restraining the appellants herein from
taking any further steps in pursuance of the draft development plan.
93. Being aggrieved thereby, the State of Himachal Pradesh – appellant
herein preferred CWP No. 5960 of 2022 before the High Court of
Himachal Pradesh under Article 226/227 of the Constitution of India.
A prayer was made in the said writ petition to declare the order of
the NGT dated 12th May 2022 to be without jurisdiction. It was also
prayed that the Town and Country Planning Department and Municipal
Corporation be permitted to perform their statutory duties and be
authorized to grant approvals, sanctions and building permissions
in accordance with the development plan. The respondents therein
have filed their reply to the said writ petition and the appellants filed
their rejoinder.
94. Despite the pendency of CWP No. 5960 of 2022 as well as other
writ petitions relating to the same subject matter, the NGT passed its
second order holding that the draft development plan, being in conflict
with its first order, is illegal and therefore cannot be given effect to.
95. Immediately after the said order was passed, the appellants filed
an application before the High Court of 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 order in these
proceedings, as under:
1024 [2024] 1 S.C.R.
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“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 publication.
5. It is further directed that no construction should be permitted
on the basis of the draft development plan.
6. Learned counsel appearing for the impleadors submits
that certain constructions are being carried out without
there being a sanctioned plan.
7. If any such construction is carried out without there being
a sanctioned plan, indisputably, such a construction would
be an unauthorized construction.
8. We, therefore, grant liberty to the applicant(s) to take
recourse to the remedy available under Article 226 of the
Constitution of India and bring unauthorized constructions
to the notice of the High Court.
9. Needless to state that on such petitions being filed, the
High Court would decide such petitions with due urgency
that the issue requires.
10. List these matters on 12.07.2023.”
[2024] 1 S.C.R. 1025
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
99. In pursuance of the aforesaid directions, the Town and Country
Planning Department, Government of Himachal Pradesh had notified
the final development plan on 20th June 2023.
100. It could thus be seen that when the second order of NGT was passed,
the writ petition challenging the interim order dated 12th May 2022
was very much pending before the High Court. Not only that, two
other writ petitions being CWP Nos. 23 and 37 of 2022, challenging
the draft development plan, were also pending before the High Court.
It is thus clear that the High Court was in seisin of the matter related
to finalization of the draft development plan.
101. A Constitution Bench of this Court in the case of L. Chandra Kumar
v. Union of India and Others30 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:-
“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
30 [1997] 2 SCR 1186 : (1997) 3 SCC 261 : 1997 INSC 288
1026 [2024] 1 S.C.R.
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effectively discharging its wide powers of judicial review.
While the Constitution confers the power to strike down
laws upon the High Courts and the Supreme Court, it
also contains elaborate provisions dealing with the tenure,
salaries, allowances, retirement age of Judges as well as
the mechanism for selecting Judges to the superior courts.
The inclusion of such elaborate provisions appears to
have been occasioned by the belief that, armed by such
provisions, the superior courts would be insulated from any
executive or legislative attempts to interfere with the making
of their decisions. The Judges of the superior courts have
been entrusted with the task of upholding the Constitution
and to this end, have been conferred the power to interpret
it. It is they who have to ensure that the balance of power
envisaged by the Constitution is maintained and that the
legislature and the executive do not, in the discharge of their
functions, transgress constitutional limitations. It is equally
their duty to oversee that the judicial decisions rendered
by those who man the subordinate courts and tribunals
do not fall foul of strict standards of legal correctness and
judicial independence. The constitutional safeguards which
ensure the independence of the Judges of the superior
judiciary, are not available to the Judges of the subordinate
judiciary or to those who man Tribunals created by ordinary
legislations. Consequently, Judges of the latter category
can never be considered full and effective substitutes
for the superior judiciary in discharging the function of
constitutional interpretation. We, therefore, hold that the
power of judicial review over legislative action vested in
the High Courts under Articles 226 and in this Court under
Article 32 of the Constitution is an integral and essential
feature of the Constitution, constituting part of its basic
structure. Ordinarily, therefore, the power of High Courts
and the Supreme Court to test the constitutional validity
of legislations can never be ousted or excluded.
79. We also hold that the power vested in the High Courts
to exercise judicial superintendence over the decisions of
all Courts and Tribunals within their respective jurisdictions
is also part of the basic structure of the Constitution. This
[2024] 1 S.C.R. 1027
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
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 this Court to test the constitutional
validity of legislations can never be ousted or excluded. This Court
further goes on to observe that the power vested in the High Courts
to exercise judicial superintendence over the decisions of all Courts
and Tribunals within their respective jurisdictions is also part of the
basic structure of the Constitution.
103. It will be further relevant to refer to the following observations of this
Court in paragraph nos. 90 to 92 in the said case which read thus: -
“90. We may first address the issue of exclusion of the
power of judicial review of the High Courts. We have
already held that in respect of the power of judicial review,
the jurisdiction of the High Courts under Article 226/227
cannot wholly be excluded. It has been contended before
us that the Tribunals should not be allowed to adjudicate
upon matters where the vires of legislations is questioned,
and that they should restrict themselves to handling matters
where constitutional issues are not raised. We cannot bring
ourselves to agree to this proposition as that may result in
splitting up proceedings and may cause avoidable delay.
If such a view were to be adopted, it would be open for
litigants to raise constitutional issues, many of which may
be quite frivolous, to directly approach the High Courts and
thus subvert the jurisdiction of the Tribunals. Moreover,
even in these special branches of law, some areas do
involve the consideration of constitutional questions on a
regular basis; for instance, in service law matters, a large
majority of cases involve an interpretation of Articles 14,
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Digital Supreme Court Reports
15 and 16 of the Constitution. To hold that the Tribunals
have no power to handle matters involving constitutional
issues would not serve the purpose for which they were
constituted. On the other hand, to hold that all such
decisions will be subject to the jurisdiction of the High
Courts under Articles 226/227 of the Constitution before
a Division Bench of the High Court within whose territorial
jurisdiction the Tribunal concerned falls will serve two
purposes. While saving the power of judicial review of
legislative action vested in the High Courts under Article
226/227 of the Constitution, it will ensure that frivolous
claims are filtered out through the process of adjudication
in the Tribunal. The High Court will also have the benefit
of a reasoned decision on merits which will be of use to
it in finally deciding the matter.
91. It has also been contended before us that even in
dealing with cases which are properly before the Tribunals,
the manner in which justice is dispensed by them leaves
much to be desired. Moreover, the remedy provided in
the parent statutes, by way of an appeal by special leave
under Article 136 of the Constitution, is too costly and
inaccessible for it to be real and effective. Furthermore, the
result of providing such a remedy is that the docket of the
Supreme Court is crowded with decisions of Tribunals that
are challenged on relatively trivial grounds and it is forced
to perform the role of a First Appellate Court. We have
already emphasised the necessity for ensuring that the
High Courts are able to exercise judicial superintendence
over the decisions of Tribunals under Article 227 of the
Constitution. In R.K. Jain’s case, after taking note of these
facts, it was suggested that the possibility of an appeal
from the Tribunals on questions of law to a Division Bench
of a High Court within whose territorial jurisdiction the
Tribunal falls, be pursued. It appears that no follow-up
action has been taken pursuant to the suggestion. Such
a measure would have improved matters considerably.
Having regard to both the afore-stated contentions, we hold
that all decisions of Tribunals, whether created pursuant
[2024] 1 S.C.R. 1029
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
to Article 323A or Article 323B of the Constitution, will be
subject to the High Court’s writ jurisdiction under Articles
226/227 of the Constitution, before a Division Bench of
the High Court within whose territorial jurisdiction the
particular Tribunal falls.
92. We may add here that under the existing system,
direct appeals have been provided from the decisions of
all Tribunals to the Supreme Court under Article 136 of the
Constitution. In view of our above-mentioned observations,
this situation will also stand modified. In the view that we
have taken, no appeal from the decision of a Tribunal will
directly lie before the Supreme Court under Article 136 of
the Constitution; but instead, the aggrieved party will be
entitled to move the High Court under Articles 226/227
of the Constitution and from the decision of the Division
Bench of the High Court the aggrieved party could move
this Court under Article 136 of the Constitution.”
104. It would thus reveal that the Constitution Bench of this Court in
unequivocal terms has held that the Tribunals will have a power to
handle matters involving constitutional issues. This Court held that
if it is held that the Tribunals do not have power to handle matters
involving constitutional issues, they could not serve the purpose for
which they were constituted. It has further been observed that on the
other hand to hold that all such decisions will be subject to jurisdiction
of the High Court under Articles 226 and 227 of the Constitution of
India and before Division Bench of High Court within whose jurisdiction
the concerned Tribunal falls will serve two purposes. It held that while
saving powers of judicial review of legislative action, vested in the
High Courts under Articles 226 and 227 would ensure that frivolous
claims are filtered out through the process of adjudication in the
Tribunal. The High Court will also have the benefit of a reasoned
decision on merits which will be of use to it in finally deciding the
matter. The Constitution Bench of this Court clearly holds that all
decisions of Tribunals, whether created pursuant to Article 323A or
Article 323B of the Constitution, will be subject to the High Court’s
writ jurisdiction under Articles 226/227 of the Constitution, before a
Division Bench of the High Court within whose territorial jurisdiction
the particular Tribunal falls.
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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 observations of this Court in the case
of Priya Gupta and Another v. Additional Secretary, Ministry of
Health and Family Welfare and Others31, 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 the constitutional
ethos and breach of discipline have a grave impact on the
31 [2012] 12 SCR 818 : (2013) 11 SCC 404 : 2012 INSC 601
[2024] 1 S.C.R. 1031
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
credibility of judicial institution and encourages chance
litigation. It must be remembered that predictability and
certainty are important hallmarks of judicial jurisprudence
developed in this country, as discipline is sine qua non for
effective and efficient functioning of the judicial system.
If the Courts command others to act in accordance with
the provisions of the Constitution and to abide by the rule
of law, it is not possible to countenance violation of the
constitutional principle by those who are required to lay
down the law. (Ref. East India Commercial Co. Ltd. v.
Collector of Customs and Officials Liquidator v. Dayanand)
(SCC p.57, paras 90-91).”
108. It could thus be seen that this Court in unequivocal terms held that no
Court or Tribunal and for that matter any other authority can ignore
the law stated by this Court. It held that such obedience would also
be conducive to their smooth working, otherwise there would be
confusion in the administration of law and the respect for law would
irretrievably suffer. It has been held that the law declared by the
higher court in the State is binding on authorities and tribunals under
its superintendence and they cannot ignore it. This Court expressed
a caution that it had become necessary to reiterate that disrespect
to the constitutional ethos and breach of discipline have a grave
impact on the credibility of judicial institution and encourages chance
litigation. This Court further held that predictability and certainty are
important hallmarks of judicial jurisprudence developed in this country,
as discipline is sine qua non for effective and efficient functioning
of the judicial system.
109. In view of the settled legal position, we are of the view that the
continuation of the proceedings by the NGT during the pendency of
the writ petitions before the High Court was not in conformity with the
principles of judicial propriety. Needless to state that the High Court
of Himachal Pradesh, insofar as its territorial jurisdiction is concerned,
has supervisory jurisdiction over the NGT. Despite pendency of the
proceedings before the High Court including the one 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 case of Raghu Ramakrishna Raju Kanumuru (Member of
Parliament) (supra), which read thus:
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“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 case, the second order of NGT is passed basically on the
basis of the first order of NGT. Since we have held the first order of
NGT itself to be not tenable in law, the second order of NGT which
is solely based on the first order of NGT, is liable to be set aside,
on the short ground. This, apart from the fact that as discussed
hereinabove, on the ground of judicial propriety, the NGT ought not
to have continued with the proceedings after the High Court was
in seisin of the matter and specifically when it was informed about
the same.
G. Balancing the need for Development and Protection of the
Environment.
113. A need for maintaining a balance between the development
and protection/preservation of environmental ecology has been
emphasized by this Court time and again.
114. A three-Judges Bench of this Court in the case of Indian Council
for Enviro-Legal Action v. Union of India and Others32, has
observed thus:
32 [1996] 1 Suppl. SCR 507 : (1996) 5 SCC 281 : 1996 INSC 237
[2024] 1 S.C.R. 1033
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
“31. ….. While economic development should not be
allowed to take place at the cost of ecology or by causing
widespread environment destruction and violation; at
the same time, the necessity to preserve ecology and
environment should not hamper economic and other
developments. Both development 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 Others33, emphasizing on the need for removal of
deadlock between the development on the one hand and the
environment on the other hand, observed thus:
“27. This, therefore, is the aim, namely, to balance
economic and social needs on the one hand with
environmental considerations on the other. But in a sense
all development is an environmental threat. Indeed, the
very existence of humanity and the rapid increase in
the population together with consequential demands to
sustain the population has resulted in the concreting of
open lands, cutting down of forests, the filling up of lakes
and pollution of water resources and the very air which
we breathe. However, there need not necessarily be a
deadlock between development on the one hand and
the environment on the other. The objective of all laws
on environment should be to create harmony between
the two since neither one can be sacrificed at the altar
of the other…..”
33 [2004] 1 SCR 808 : (2004) 2 SCC 392 : 2004 INSC 40
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116. Emphasizing the need for sustainable development by balancing
between the environmental protection and developmental activities,
this Court, in the case of N.D. Jayal and Another v. Union of India
and Others34, observed thus:
“22. Before adverting to other issues, certain aspects
pertaining to the preservation of ecology and development
have to be noticed. In Vellore Citizens’ Welfare Forum v.
Union of India [(1996) 5 SCC 647] and in M.C. Mehta
v. Union of India [(2002) 4 SCC 356] it was observed
that the balance between environmental protection and
developmental activities could only be maintained by
strictly following the principle of “sustainable development”.
This is a development strategy that caters to the needs
of the present without negotiating the ability of upcoming
generations to satisfy their needs. The strict observance
of sustainable development will put us on a path that
ensures development while protecting the environment, a
path that works for all peoples and for all generations. It is
a guarantee to the present and a bequeath to the future.
All environment-related developmental activities should
benefit more people while maintaining the environmental
balance. This could be ensured only by strict adherence to
sustainable development without which life of the coming
generations will be in jeopardy.”
117. Again, in the said case, stressing on the right to clean environment
to be a right guaranteed under Article 21 of the Constitution and also
noting that the right to development also is a component of Article
21 of the Constitution, this Court observed thus:
“24. The right to development cannot be treated as a
mere right to economic betterment or cannot be limited
as a misnomer to simple construction activities. The right
to development encompasses much more than economic
well-being, and includes within its definition the guarantee
of fundamental human rights. The “development” is not
related only to the growth of GNP. In the classic work,
Development As Freedom, the Nobel prize winner Amartya
34 [2003] 3 Suppl. SCR 152 : (2004) 9 SCC 362 : 2003 INSC 438
[2024] 1 S.C.R. 1035
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
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 preservation of natural
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.”
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522. The right to development, thus, is intrinsically connected
to the preservance of a dignified life. It is not limited to the
idea of infrastructural development, rather, it entails human
development as the basis of all development. The jurisprudence
in environmental matters must acknowledge that there is
immense interdependence between the right to development
and the right to natural environment.
523. In International Law and Sustainable Development, Arjun
Sengupta in the chapter “Implementing the Right to Development
[International Law and Sustainable Development — Principles
and Practice (Publisher : Martinus Nijhoff, Edn. 2004) p. 354.]
” notes thus:
“… Two rights are interdependent if the level of enjoyment of
one is dependent on the level of enjoyment of the other…””
119. In the case of Resident’s Welfare Association (supra), this Court,
speaking through one of us (B.R. Gavai, J.), observed thus:
“151. One another important aspect that needs to be taken
into consideration is the adverse impact on environment
on account of haphazard urbanisation. It will be relevant
to refer to Clause 20.3 of the CMP-2031 which we have
already reproduced hereinabove. It has been recommended
that an Effective Environmental Management Plan be
devised for the region including Chandigarh, which includes
environmental strategy, monitoring regulation, institutional
capacity building and economic incentives. It is observed
that the proposal needs a legal framework and a monitoring
committee to examine the regional level proposals/big
developments by the constitution of an Inter-State HighPowered 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
[2024] 1 S.C.R. 1037
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
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 mainstreaming can help to incorporate
relevant environmental concerns into the decisions of
institutions, while emerging ideas about the green urban
economy show how density can generate environmental
and social opportunities. It states that the strategies need
to be underpinned with governance structures that facilitate
integration of environmental concerns in the planning
process.
153. The said publication defines EIA to be an analytical
process or procedure that systematically examines
the possible environmental consequences of the
implementation of a given activity (project). It is aimed to
ensure that the environmental implications of decisions
related to a given activity are taken into account before
the decisions are made.
154. Judicial notice is also taken of the cover story
published in the weekly, India Today, dated 24-10-2022,
titled as “Bengaluru — How to Ruin India’s Best City” by
Raj Chengappa with Ajay Sukumaran. The said article
depicts the sorry state of affairs as to how the City of
Bengaluru, once considered to be one of India’s best cities,
a “Garden city” has been ruined on account of haphazard
urban development. It takes note of as to how on account
of one major spell of rain in the September of 2022, the
city bore the brunt of nature’s fury. Various areas of the
city were inundated with heavy rains. The loss the flood
caused to the Outer Ring Road tech corridor alone was
estimated to be over Rs 225 crores.
155. The article notes that, while on one hand, on account
of heavy rains, many of the houses were submerged in
water, on the other hand, the city faced a huge shortage
of drinking water.
156. The article further notes that rapid expansion of the city
with no appropriate thought given towards transportation
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and ease of mobility has led to nightmarish traffic jams
on its arterial roads. It notes that, almost overnight,
Bengaluru›s municipal jurisdiction grew from 200 sq km to
800 sq km. It observes that the only one to benefit was the
politician-businessman-builder nexus, which has thrived.
It further noted that though posh colonies mushroomed in
new areas, the infrastructure lagged, as roads remained
narrow, the drainage poor, and no adequate provision for
garbage disposal too.
157. The article notes that the primary canals known locally
as rajakaluves were once natural rain-fed streams across
which farmers built small bunds over time, to arrest the
flow of water and create lakes. It further notes that these
interlinked man-made lakes worked as a storm-water drain
network. However, in order to meet the demand for space
for construction and roads, the administrators allowed the
lakes to be breached regularly. The lakes, which once
numbered a thousand-odd, are now reduced to a paltry
number. Worse, the rajakaluves that channelised the storm
water had buildings built over them.
158. The warning flagged by the City of Bengaluru needs
to be given due attention by the legislature, executive and
the policy-makers. It is high time that before permitting
urban development, EIA of such development needs to
be done.”
120. Again, while emphasizing the need for balancing the development
along with preservation of ecology and environment, this Court,
speaking through one of us (B.R. Gavai, J.), in the case of State of
Uttar Pradesh and Others v. Uday Education and Welfare Trust
and Others35, while referring to the earlier judgments on the issue
observed thus:
“100. Though we are allowing the appeals, setting aside the
orders of the learned NGT, and upholding the action of the
State Government in granting licenses, we would like to remind
the State and its authorities that it is their duty to protect the
35 [2022] 19 SCR 781 : 2022 SCC OnLine SC 1469 : 2022 INSC 465
[2024] 1 S.C.R. 1039
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
environment. The State and its authorities should ensure that
necessary steps are taken for arresting the problem of declining
forest and tree cover. The State and its authorities should make
meaningful and concerted efforts to ensure that the green cover
in the State of Uttar Pradesh is not reduced and to ensure that
it increases.
101. The conservation of forest plays a vital role in maintaining
the ecology. It acts as processors of the water cycle and soil
and also as providers of livelihoods. As such, preservation and
sustainable management of forests deserve to be given due
importance in formulation of policies by the State. In this regard,
it will be apposite to refer to certain earlier pronouncements
of this Court.
(a) In the case of Samatha v. State of A.P. [AIR 1997 SC
3297 : (1997) 8 SCC 191], a three-Judge Bench of this
Court after referring to the earlier judgment in the case
of State of H.P. v. Ganesh Wood Products [(1995) 6 SCC
363] observed that, even while considering the grant of
renewal of mining leases, the provisions of the Forest
(Conservation) Act, 1980 and the Environment (Protection)
Act, 1986 would apply. This Court held that the MOEF and
all the States have a duty to prevent mining operations
affecting forests. It further observed that, whether mining
operations are carried on within the reserved forest or
other forest area, it is their duty to ensure that the industry
or enterprise does not denude the forest to become a
menace to human existence nor a source to destroy flora
and fauna and biodiversity. It has further been held that if
it becomes inevitable to disturb the existence of forests,
there is a concomitant duty upon the State to reforest
and restore the green cover and to ensure adequate
measures to promote, protect and improve both manmade and natural environment, flora and fauna as well as
biodiversity. It further held that there can be no distinction
between government forests and private forests in the
matter of forest wealth of the nation and in the matter of
environment and ecology.
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(b) In the case of Essar Oil Ltd. v. Halar Utkarsh Samiti
[(2004) 2 SCC 392], this Court discussed the need for
a balance between the economic and social needs
and development on the one hand and environment
considerations on the other. It was observed that laws on
environment should be to create harmony between the
two since neither one can be sacrificed at the altar of the
other. In this regard, the observations of this Court in the
case of Indian Council for Enviro-Legal Action v. Union of
India [(1996) 5 SCC 281] were quoted as under:
“While economic development should not be allowed
to take place at the cost of ecology or by causing
widespread environment destruction and violation; at
the same time, the necessity to preserve ecology and
environment should not hamper economic and other
developments. Both development and environment
must go hand in hand, in other words, there should
not be development at the cost of environment.”
(c) In the case of Maharashtra Land Development
Corporation v. State of Maharashtra [(2011) 15 SCC 616]
reference was made to Glanrock Estate Private Limited v.
State of Tamil Nadu [(2010) 10 SCC 96] wherein it was
observed as under:
“27. …. Forests in India are an important part of the
environment. They constitute [a] national asset. In
various judgments of this Court delivered by the Forest
Bench of this Court in T.N. Godavarman Thirumulpad
v. Union of India (Writ Petition No. 202 of 1995), it
has been held that ‘intergenerational equity’ is part
of Article 21 of the Constitution.
28. What is intergenerational equity? The present
generation is answerable to the next generation by
giving to the next generation a good environment.
We are answerable to the next generation and
if deforestation takes place rampantly then
intergenerational equity would stand violated.
[2024] 1 S.C.R. 1041
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
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 results in ecological imbalance; and
therefore, the provisions made therein for the
conservation of forests and for matters connected
therewith, must apply to all forests irrespective of
the nature of ownership or classification thereof.
The word “forest” must be understood according to
its dictionary meaning. This description covers all
statutorily recognised forests, whether designated
as reserved, protected or otherwise for the purpose
of Section 2(i) of the Forest Conservation Act. The
term “forest land”, occurring in Section 2, will not
only include “forest” as understood in the dictionary
sense, but also any area recorded as forest in the
Government record irrespective of the ownership.
This is how it has to be understood for the purpose
of Section 2 of the Act. The provisions enacted in the
Forest Conservation Act, 1980 for the conservation
of forests and the matters connected therewith must
apply clearly to all forests so understood irrespective
of the ownership or classification thereof…”
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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 Others36 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 and preservation
of ecology and environment.
122. It is thus clear that while ensuring the developmental activities so as
to meet the demands of growing population, it is also necessary that
the issues with regard to environmental and ecological protection
are addressed too.
V. CONCLUSION
123. We have gone through the development plan. The development
plan has been finalized after taking into consideration the reports of
various expert committees and the studies undertaken with regard
to various aspects including environmental and ecological aspects.
124. We, however, clarify that we have not considered the development
plan in minute details. Upon its prima facie consideration, we have
come to a view that there are sufficient safeguards to balance the
need for development while taking care of and addressing the
36 [2023] 6 SCR 601 : 2023 INSC 430
[2024] 1 S.C.R. 1043
The State of Himachal Pradesh and Others v.
Yogendera Mohan Sengupta and Another
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 considering the
same. If any of the citizen has any grievance that any provision is
detrimental to the environment or ecology, it is always open to raise
a challenge to such an independent provision before the appropriate
forum. Such a challenge can be considered in accordance with law.
But, in our view, the development plan, which has been finalized
after taking recourse to the statutory provisions and undergoing the
rigors thereto, cannot be stalled in entirety thereby putting the entire
developmental activities to a standstill.
125. Insofar as the grievance of the Interveners, who are the plot holders
in the ‘Green Belt’ area, with regard to payment of compensation is
concerned, we find that the said issue would be beyond the scope
of the present proceedings. We, therefore, without specifying any
opinion on such claim, relegate the interveners to avail the appropriate
remedy available to them in law.
126. In the result, we pass the following order:
(i) The Civil Appeal Nos. 5348-49 of 2019 as well as the Transferred
Case (C) No. 2 of 2023 are allowed;
(ii) The orders of the NGT dated 16th November 2017 in Original
Application No. 121 of 2014, dated 16th July 2018 in Review
Application No. 8 of 2018, dated 12th May 2022 and 14th October
2022 in Original Application No. 297 of 2022 are quashed and
set aside; and
(iii) The appellant-State of Himachal Pradesh and its instrumentalities
are permitted to proceed with the implementation of the
development plan as published on 20th June 2023 subject to
what has been observed by us hereinabove.
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127. In the facts and circumstances of the present case, there is no order
as to costs.
128. Pending application(s), if any, shall stand disposed of in the above
terms.
Headnotes prepared by: Ankit Gyan Result of the case: Civil Appeals and
Transferred case allowed.
