2024 (1) TMI 1460 - SC - Indian Laws

Jurisdiction of National Green Tribunal (NGT) to issue directions affecting the preparation and finalization of the Shimla Planning Area (SPA) development plan under the Himachal Pradesh Town Country Planning Act 1977 (TCP Act) - HELD THAT - It will be amply clear that the preparation of draft development plan Under Section 18 of the TCP Act finalization of the same Under Section 19 of the TCP Act by the Director and grant of approval by the State Under Section 20 of the TCP Act are all legislative functions. The provisions enable the delegated legislative body to formulate the provisions which will have a general application to all members of the broadly identifiable classes. In the case of Tulsipur Sugar Co. Ltd. v. The Notified Area Committee Tulsipur 1980 (2) TMI 262 - SUPREME COURT again a challenge was made to the notification issued Under Section 3 of the U.P. Town Areas Act 1914 on the ground that before issuance of final notification the principles of audi alteram partem were not followed - this Court held that a declaration Under Section 3 of the U.P. Town Areas Act 1914 provided for enabling the application of the rest of the provisions of the Act to the geographical area which is declared as a town area. It was thus held that the declaration made Under Section 3 was legislative in character. It can thus be seen that it is a settled position of law that the exercise of power for the preparation finalization and approval of development plan is a power exercised by the delegatee for enacting a subordinate piece of legislation. There are no manner of doubt in holding that the aforesaid provisions as contained in the TCP Act provide for exercise of power by a delegatee to enact a piece of subordinate legislation. Whether the NGT could have issued directions to the legislative body to exercise its legislative functions in a particular manner? - HELD THAT - In the case of V.K. Naswa v. Home Secretary Union of India and Ors. 2012 (1) TMI 273 - SUPREME COURT the Petitioner-in-person had approached this Court to issue directions to the Central Government through the Ministry of Law Justice to amend the law for taking action against a person for showing any kind of disrespect to the national flag or for not observing the terms contained in the Flag Code of India 2002. It is a settled law that the Constitution of India does not permit the courts to direct or advise the Executive in the matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of Legislature or Executive. It is also settled that the courts cannot issue directions to the Legislature for enacting the laws in a particular manner or for amending the Acts or the Rules. It is for the Legislature to do so. The first order of NGT is liable to be set aside on the short ground that it has transgressed its limitations and attempted to encroach upon the field reserved for the delegatee to enact a piece of delegated legislation. When the TCP Act empowers the State Government and the Director to exercise the powers to enact a piece of delegated legislation the NGT could not have imposed fetters on such powers and directed it to exercise its powers in a particular manner. Whether observations in Para 47 of the Mantri Techzone Private Limited 2019 (3) TMI 1924 - SUPREME COURT would operate as res judicata? - HELD THAT - This Court in the case of Dhanwanti Devi 1996 (8) TMI 146 - SUPREME COURT has held that it is not profitable to extract a sentence here and there from the judgment and to build upon it. It has been held that the essence of the decision is its ratio and not every observation found therein. It has been held that a deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue would constitute a precedent. A perusal of the aforesaid would clearly reveal that though the directive issued by the State Government Under Section 154 of the MRTP Act was issued in accordance with the directions issued by the NGT this Court found such exercise not to be permissible in law. This Court held that the complete absence of any reasons as to why the State issued such directions coupled with the lack of any supporting expert report or input renders such a directive to be an arbitrary exercise of power. This Court therefore disapproved such a directive issued Under Section 154 of the MRTP Act merely on the basis of the directions issued by the NGT and set aside the same. The NGT could not have directed the delegatee who has been delegated powers under the TCP Act to enact the Regulations to do so in a particular manner. As a matter of fact the NGT has imposed fetters on the exercise of powers by the delegatee who has been delegated such powers by the competent legislature. In any case it is clear that there were sufficient safeguards under the provisions of the TCP Act inasmuch as an aggrieved citizen was entitled to raise objections give suggestions and was also entitled to an opportunity of hearing on more than one occasion - Since it is found that the first order of NGT is not sustainable on the ground of encroaching upon the powers of the delegatee to enact a delegated legislation and also amounts to imposing fetters on the exercise of such powers we do not propose to go into the said issue and we keep the same open to be adjudicated upon in appropriate proceedings. Whether the NGT was justified in passing the order dated 14th October 2022 when the High Court was seized of the same issue during the pendency of Civil Writ Petition No. 5960 of 2022? - HELD THAT - This Court even when a provision in the Constitution enabled the Parliament to make a law thereby excluding the powers of judicial review except Under Article 136 of the Constitution held that the power of judicial review vested in the High Courts Under Articles 226 and in this Court Under Article 32 of the Constitution is an integral and essential feature of the Constitution constituting part of its basic structure and therefore the power of High Courts and this Court to test the constitutional validity of legislations can never be ousted or excluded. This Court further goes on to observe that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. It would thus reveal that the Constitution Bench of this Court in unequivocal terms has held that the Tribunals will have a power to handle matters involving constitutional issues. This Court held that if it is held that the Tribunals do not have power to handle matters involving constitutional issues they could not serve the purpose for which they were constituted - The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. The Constitution Bench of this Court clearly holds that all decisions of Tribunals whether created pursuant to Article 323A or Article 323B of the Constitution will be subject to the High Court s writ jurisdiction Under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. The continuation of the proceedings by the NGT during the pendency of the writ petitions before the High Court was not in conformity with the principles of judicial propriety. Needless to state that the High Court of Himachal Pradesh insofar as its territorial jurisdiction is concerned has supervisory jurisdiction over the NGT. Despite pendency of the proceedings before the High Court including the one challenging the interim order dated 12th May 2022 passed by NGT the NGT went ahead with the passing of the second order impugned herein. It can be seen from the perusal of the orders of the NGT itself that though the NGT was informed about the High Court being in seisin of the proceedings it went on to hold that the judgment given by it was binding and therefore the draft development plan which in its view was not in conformity with its judgment was liable to be set aside. Balancing the need for Development and Protection of the Environment - HELD THAT - A need for maintaining a balance between the development and protection/preservation of environmental ecology has been emphasized by this Court time and again - It is thus clear that while ensuring the developmental activities so as to meet the demands of growing population it is also necessary that the issues with regard to environmental and ecological protection are addressed too. Conclusion - i) The continuation of the proceedings by the NGT during the pendency of the writ petitions before the High Court was not in conformity with the principles of judicial propriety. ii) The power of judicial review vested in the High Courts Under Articles 226 and in this Court Under Article 32 of the Constitution is an integral and essential feature of the Constitution constituting part of its basic structure and therefore the power of High Courts and this Court to test the constitutional validity of legislations can never be ousted or excluded. Appeal allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the National Green Tribunal (NGT) had jurisdiction to issue directions affecting the preparation and finalization of the Shimla Planning Area (SPA) development plan under the Himachal Pradesh Town & Country Planning Act, 1977 (TCP Act).

- Whether the exercise of powers by the State Government and Director under the TCP Act for preparation and approval of the development plan constitutes a legislative or quasi-legislative function, and if so, whether the NGT could direct the manner in which such powers are exercised.

- Whether the NGT's first and second orders, which imposed restrictions on construction activities and stayed the draft development plan, were legally sustainable.

- Whether the continuation of NGT proceedings and issuance of orders during the pendency of writ petitions before the High Court was appropriate, considering judicial propriety and jurisdictional hierarchy.

- Whether the observations in a previous Supreme Court judgment (Mantri Techzone Private Limited) operate as binding precedent on the issues concerning NGT's jurisdiction and powers.

- The balance between developmental needs and environmental protection in the context of urban planning and ecological sensitivity.

- Whether the compensation claims by private landowners in "Green Belt" areas for restrictions imposed on their properties fall within the scope of the present proceedings.

2. ISSUE-WISE DETAILED ANALYSIS

Jurisdiction of NGT over Town and Country Planning matters

The NGT's jurisdiction is limited to civil cases involving substantial questions relating to environment arising under enactments specified in Schedule I of the National Green Tribunal Act, 2010 (NGT Act). Town and country planning is not included in Schedule I. The State contended that the NGT lacked jurisdiction to interfere with the development plan prepared under the TCP Act. The Court observed that the NGT's orders, particularly the first order dated 16th November 2017 and the second order dated 14th October 2022, transgressed the limits of the NGT's jurisdiction by issuing directions that encroached upon the legislative functions of the State under the TCP Act.

The Court noted that the NGT had suo motu enlarged the scope of the Original Application (OA) No. 121 of 2014 beyond its statutory mandate and imposed blanket bans on construction activities in "Green Belt" and core areas, which were not within the NGT's jurisdiction.

Nature of powers under the TCP Act and legislative character of development plan preparation

The TCP Act provides a comprehensive legislative framework for town planning, including the constitution of planning areas, preparation of land use maps, draft development plans, inviting objections, and final approval by the State Government. Sections 13 to 20 of the TCP Act vest powers in the Director and the State Government to prepare, modify, and approve development plans, which have the force of delegated legislation.

The Court referred to precedents distinguishing legislative/quasi-legislative functions from administrative or adjudicatory functions, emphasizing that the preparation and approval of development plans constitute legislative acts. This is supported by the fact that the development plan applies generally to all persons within the planning area and involves formulation of general rules and regulations.

Precedents such as Union of India v. Cynamide India Ltd., Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Sundarjas Kanyalal Bhatija v. Collector, Pune Municipal Corporation v. Promoters and Builders Association, and Rajeev Suri v. Delhi Development Authority were cited to underscore that the exercise of powers under town planning statutes is legislative in nature and not subject to the principles of natural justice unless expressly provided.

Whether NGT could direct the legislative body to exercise powers in a particular manner

The Court held that the NGT could not issue directions to the State or its delegated authorities on how to exercise their legislative powers under the TCP Act. This would amount to judicial legislation, which is impermissible. The Court extensively reviewed precedents including V.K. Naswa v. Home Secretary, Mallikarjuna Rao v. State of A.P., State of H.P. v. Parent of a Student of Medical College, Asif Hameed v. State of J&K, and Manoj Narula v. Union of India, which establish that courts cannot direct the legislature or executive to enact or amend laws in a particular manner.

The Court emphasized the constitutional doctrine of separation of powers, noting that legislation is the exclusive domain of the legislature and its delegatees, and the judiciary's role is limited to judicial review within constitutional parameters. The NGT, being a statutory tribunal with limited jurisdiction, cannot encroach upon these legislative functions.

Binding nature of observations in Mantri Techzone Private Limited case

The Respondents relied on observations in paragraph 47 of the Mantri Techzone Private Limited judgment to support the NGT's powers. However, the Court clarified that those observations were made in the context of specific parties and were not a ratio decidendi applicable generally. The Court analyzed the submissions and noted that the observations were not binding precedent for the issues in the present case.

The Court further referred to the Director General (Road Development) National Highways Authority of India case, where directions issued by the State based solely on NGT orders without scientific basis were held to be arbitrary and set aside, underscoring the necessity of reasoned and evidence-based decision-making.

Appropriateness of NGT's continuation of proceedings during pendency of writ petitions before the High Court

The Court examined the propriety of the NGT passing the second order dated 14th October 2022 while the High Court was seized of the writ petition challenging the interim stay of the draft development plan. The Court referred to the Constitution Bench judgment in L. Chandra Kumar v. Union of India, which affirms that the High Courts and Supreme Court possess basic structure powers of judicial review under Articles 226 and 32, respectively, which cannot be ousted.

The Court held that while Tribunals like the NGT have jurisdiction to handle matters within their domain, their decisions are subject to supervisory jurisdiction of the High Courts under Articles 226/227. It is improper for the NGT to continue proceedings and pass orders conflicting with those of the High Court, as this leads to conflicting directions and confusion among authorities.

The Court observed that the NGT's second order was based solely on the first order, which was held to be unsustainable, and therefore the second order was liable to be set aside. The Court emphasized judicial propriety and the primacy of constitutional courts in such matters.

Balance between development and environmental protection

The Court acknowledged the critical need to balance developmental imperatives with environmental and ecological protection. It referred to authoritative precedents including Indian Council for Enviro-Legal Action, Essar Oil Ltd., N.D. Jayal, Rajeev Suri, and Resident's Welfare Association cases that emphasize sustainable development, intergenerational equity, and the precautionary principle.

The Court noted that the finalized development plan for SPA had incorporated numerous safeguards addressing environmental concerns, including restrictions on construction in core, green belt, and forest areas, provisions for soil investigation in sliding zones, and limitations on vertical construction to preserve hill architecture and ecology.

The Court observed that the development plan had undergone a rigorous statutory process involving public notice, invitation of objections and suggestions (97 objections received), hearings, and expert committee reports, indicating a balanced approach to development and environmental protection.

Compensation claims by private landowners in Green Belt areas

The Court noted submissions by interveners who are private landowners in Green Belt areas seeking compensation for restrictions imposed on their property use, invoking Article 300A (right to property). The Court held that such claims fall outside the scope of the present proceedings and directed the interveners to pursue appropriate legal remedies independently.

3. SIGNIFICANT HOLDINGS

- "The preparation of draft development plan Under Section 18 of the TCP Act, finalization of the same Under Section 19 of the TCP Act by the Director and grant of approval by the State Under Section 20 of the TCP Act are all legislative functions." (Para 51)

- "The Court can neither legislate nor issue a direction to the legislature to enact in a particular manner." (Para 64)

- "The 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 Court cannot be permitted to usurp the functions assigned to the Executive, the Legislature or the subordinate legislature." (Para 65)

- "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." (Para 70)

- "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." (Para 76)

- "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." (Para 109)

- "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." (Para 101)

- "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." (Para 122)

- "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." (Para 124)

- The Court allowed the Civil Appeals and Transferred Case, quashed and set aside the impugned NGT orders dated 16th November 2017, 16th July 2018, 12th May 2022, and 14th October 2022, and permitted the State to proceed with the implementation of the development plan published on 20th June 2023, subject to observations made. (Para 126)