Read Time: 12 minutes

Synopsis

The Supreme Court on January 11, 2024 allowed the Himachal Pradesh government to go ahead with its implementation of Shimla Development Plan as published on June 20, 2023, saying that it had been finalised after taking recourse to the statutory provisions and undergoing the rigors, therefore it could not be stalled in entirety putting the entire developmental activities to a standstill.

A bench of Justices B R Gavai and Aravind Kumar set aside and quashed the National Green Tribunal's orders passed in 2017 and 2018, which banned all kinds of construction activities in core, forest, green areas in Shimla and further restricted the construction and re-construction activities in the entire Shimla Planning Area.

The court also questioned NGT on judicial propriety for passing orders in 2022 when the high court was seized of the matter. The draft development plan for 22,450 hectares of Shimla Planning Area, finalised by a notification of April 16, 2022, came to be stayed by the NGT by an interim order of May 12, 2022. 

The bench said that the order of NGT was not sustainable on the ground of encroaching upon the powers of the delegatee to enact a delegated legislation and also amounted to imposing fetters on the exercise of such powers.

The bench noted that the development plan had been finalised after taking into consideration the reports of various expert committees and the studies undertaken with regard to various aspects including environmental and ecological aspects.

"We, however, clarify that we have not considered the development plan in minute details. Upon its prima facie consideration, we have come to a view that there are sufficient safeguards to balance the need for development while taking care of and addressing the environmental and ecological concerns. We may however not be construed as giving our imprimatur to the said development plan," the bench said.

Considering a civil appeal filed by the Himachal Pradesh government, the bench noted that the preparation of draft development plan under Section 18 of the Town and Country Planning Act, its finalisation of the same under Section 19 by the Director and grant of approval by the State under Section 20 were all legislative functions. 

"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 bench said.

"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," the bench added.

The court also found that the appellants, while preparing the draft development plan, had taken into consideration the suggestions given by the NGT and Chapter 12.10 of the development plan elaborately considered the directions given by the NGT. 

"As per the plan, reconstruction would be permitted in the 'green belt' area and that too on old lines. No more new construction or increase in constructed area is permissible in these areas. So far 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", the bench noted.

The plan also stated that construction in “green belt” areas, would be permitted only to the extent of single storey with attic. 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, the bench highlighted.

While preparing the development plan, due care has been taken to ensure that environmental aspects are taken care of, the bench said while adding, "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".

The court was informed that 97 objections were received and 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," the bench noted.

The court also declared 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 on challenging the interim order dated 12th May 2022 passed by NGT, the NGT went ahead with the passing of the second order impugned herein," the bench said.

"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," the bench said.

The court also emphasised that while ensuring the developmental activities so as to meet the demands of growing population, it was also necessary that the issues with regard to environmental and ecological protection were addressed too. 

Case Title: The State of Himachal Pradesh And Others Vs Yogendera Mohan Sengupta And Another