# The State of Himachal Pradesh and Others v. Yogendera Mohan Sengupta and Another

- **Citation:** 2024 INSC 30
- **Court:** Supreme Court of India
- **Decided:** 2024-01-11
- **Case number:** Civil Appeal Nos. 5348-5349 of 2019
- **Bench:** B.R. Gavai, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-himachal-pradesh-and-others-v-yogendera-mohan-sengupta-and-another-37496
- **Pages:** 72

## Headnote

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
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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 be

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* 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
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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
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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]
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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
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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.
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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.
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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.
Digital Supreme Court Reports
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.
988
[2024] 1 S.C.R.
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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.
Digital Supreme Court Reports
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.