Supreme Court Upholds State’s Power in Town Planning, Overturns NGT Orders: State of Himachal Pradesh vs. Yogendera Mohan Sengupta (2024)

Introduction

Date of the Judgment: 11 January 2024

Citation: 2024 INSC 30

Judges: B.R. Gavai, J., and Aravind Kumar, J.

Can a specialized environmental tribunal dictate how a state government formulates its town planning policies? This question was at the heart of a recent Supreme Court case involving the State of Himachal Pradesh and the National Green Tribunal (NGT). The Supreme Court, in its judgment, clarified the boundaries of the NGT’s powers, emphasizing the state’s authority in town planning. The court overturned the NGT’s orders, which had restricted construction activities in Shimla Planning Area (SPA), holding that the NGT cannot impose fetters on the state’s legislative powers.

Case Background

The case revolves around the development of the Shimla Planning Area (SPA) and the role of the NGT in overseeing environmental regulations within this area. The Himachal Pradesh Town & Country Planning Act, 1977 (TCP Act) established the SPA. Over the years, various notifications and plans were issued, including the declaration of “Green Belt” areas in 2000. In 2011, a writ petition was filed in the High Court of Himachal Pradesh, seeking a development plan for the SPA.

In 2014, Yogendera Mohan Sengupta filed an Original Application (OA) before the NGT, raising concerns about construction in forest and green belt areas. The NGT, in 2017, issued its first order, imposing restrictions on construction in core, forest, and green areas of Shimla. This order also directed the State to finalize a development plan within three months, taking into account the NGT’s directions. The State filed a review application which was dismissed.

Subsequently, the State prepared a draft development plan in 2022, which was challenged by Sengupta again before the NGT. The NGT then stayed the draft plan. The State challenged this interim order in the High Court of Himachal Pradesh. Despite the pendency of this writ petition, the NGT issued a second order, declaring the draft development plan illegal, as it conflicted with the NGT’s first order. The State then challenged this second order in the High Court by amending their writ petition. The Supreme Court transferred the High Court case to itself.

Timeline

Course of Proceedings

The NGT’s first order in 2017 imposed significant restrictions on construction activities within the SPA, particularly in core, forest, and green areas. It also directed the State to finalize a development plan within three months, incorporating the NGT’s directions. The State’s review application was dismissed.

The State then prepared a draft development plan in 2022, which was challenged by Sengupta before the NGT, leading to an interim stay. The State challenged this stay in the High Court of Himachal Pradesh. Despite the High Court proceedings, the NGT passed its second order, declaring the draft development plan illegal because it conflicted with the NGT’s first order. The State then challenged this second order in the High Court. The Supreme Court transferred the High Court case to itself.

Legal Framework

The case primarily involves the interpretation and application of the Himachal Pradesh Town & Country Planning Act, 1977 (TCP Act). Key sections include:

• Section 13, TCP Act: Empowers the State Government to constitute planning areas and define their limits.
• Section 14, TCP Act: Outlines the duties of the Director of Town and Country Planning, including preparing land use maps, interim development plans, and development plans, keeping in view the regulation for land use zoning for natural hazard prone area.
• Section 15, TCP Act: Mandates the Director to prepare and publish existing land use maps, inviting objections and suggestions.
• Section 18, TCP Act: Specifies the contents of a development plan, including land use allocation, infrastructure, and regulations for building construction, with emphasis on hill architecture and environmental control.
• Section 19, TCP Act: Requires the Director to publish the draft development plan, inviting objections and suggestions.
• Section 20, TCP Act: Empowers the State Government to approve the development plan, with or without modifications, after considering objections and suggestions.

Other relevant statutes include the Forest (Conservation) Act, 1980 (FC Act), and the National Green Tribunal Act, 2010 (NGT Act). The court also considered the constitutional framework, particularly the separation of powers between the legislature, executive, and judiciary.

Arguments

Submissions on behalf of the Appellants (State of Himachal Pradesh):

• The State argued that it had acted responsibly and balanced developmental needs with environmental concerns while finalizing the development plan.
• The development plan was prepared using statutory powers under the TCP Act, considering recommendations from expert bodies and the NGT’s directions.
• The planning regulations divide the areas into different categories with stringent provisions like:
  • Core area: 2 storeys + attic, parking only on plots accessible by motorable road.
  • Non-core area and Planning Area: 3 storeys + attic, parking only on plots adjacent to motorable roads.
  • Rebuilding and reconstruction of old buildings on old lines.
  • Green belt areas between constructed areas: Single storey with attic, no tree felling, no construction in forest area without FC Act compliance.
• The NGT’s jurisdiction is limited to cases arising from the implementation of enactments specified in Schedule I of the NGT Act, which does not include town and country planning.
• The NGT could not have issued directions to exercise quasi-legislative powers in a particular manner, as this encroaches on the State’s statutory functions.
• The NGT’s directions are contrary to the TCP Act, Himachal Pradesh Municipal Corporation Act, 1994, and related rules and notifications.
• The NGT could not have suo motu enlarged the scope of the original application.
• The NGT’s orders caused hardship by halting reconstruction of old structures.
• The NGT could not have entertained proceedings when the High Court was already seized of the matter.

Submissions on behalf of the Respondents (Yogendera Mohan Sengupta):

• The NGT’s first order addressed serious concerns about the fragile ecology of Himachal Pradesh, particularly Shimla.
• The NGT’s directions were based on the report of a High Powered Committee and aimed to protect the ecology and environment.
• The NGT’s directions regarding reconstruction in core/green areas were within statutory limits and necessary for environmental protection.
• The “Green Belt” areas should be protected under the FC Act, as per the Supreme Court’s order in T.N. Godavarman Thirumulkpad v. Union of India and Others [1997] 2 SCC 267.
• The second order of NGT was justified as the draft development plan violated the NGT’s first order.
• The NGT has overriding powers to protect the environment, as established in Mantri Techzone Private Limited v. Forward Foundation and Others [2019] 18 SCC 494.
• The NGT has jurisdiction to issue directions to protect ecologically sensitive areas.
• Interference by the Supreme Court is warranted only when there is an error apparent on the face of the record in the findings of the NGT.
• The NGT’s directions are a precautionary approach, and if not followed, it will be disastrous for future generations.

Submissions on behalf of the Interveners/Land Owners:

• Owners of plots in “Green Belt” areas argued that restrictions deprived them of their property rights under Article 300A of the Constitution, seeking compensation.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court considered the following key issues:

1. Whether the NGT could have issued directions to the legislative body to exercise its legislative functions in a particular manner?
2. Whether observations in Para 47 of the Mantri Techzone Private Limited (supra) would operate as res judicata?
3. 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?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered various cases and legal provisions to arrive at its decision. These are categorized by the legal point they address:

Legislative vs. Administrative Functions:

• Union of India and Another v. Cynamide India Ltd. and Another [1987] 2 SCC 720: Defined the distinction between legislative and administrative functions.
• Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur [1980] 2 SCC 295: Held that a declaration under Section 3 of the U.P. Town Areas Act, 1914 is legislative in character.
• Sundarjas Kanyalal Bhatija and Others v. Collector, Thane, Maharashtra and Others [1989] 3 SCC 396: Held that the issuance of notifications under the Bombay Provincial Municipal Corporation Act, 1949, is an exercise of legislative power.
• Pune Municipal Corporation and Another v. Promoters and Builders Association and Another [2004] 10 SCC 796: Held that making of Development Control Rules (DCR) or amendments thereof are legislative functions.
• Bangalore Development Authority v. Aircraft Employees’ Co operative Society Limited and Others [2012] 3 SCC 442: Held that the finalization of a development plan under the Karnataka Town and Country Planning Act, 1961, is an exercise of legislative power.
• Rajeev Suri v. Delhi Development Authority and Others [2022] 11 SCC 1: Held that the change of use of government land is a function with a quasi-legislative nature.

Limitations on Court’s Power:

• V.K. Naswa v. Home Secretary, Union of India and Others [2012] 2 SCC 542: Held that the court cannot direct the legislature to enact laws in a particular manner.
• State of H.P. v. Parent of a Student of Medical College [1985] 3 SCC 169: Deprecated the practice of courts directing the legislature to enact legislation.
• Asif Hameed v. State of J&K [1989] Supp (2) SCC 364: Held that courts cannot direct or advise the executive on matters of policy.
• Union of India v. Deoki Nandan Aggarwal [1992] Supp (1) SCC 323: Held that the court cannot rewrite or reframe legislation.
• Ajaib Singh v. Sirhind Coop. Marketing -cum-Processing Service Society Ltd. [1999] 6 SCC 82: Held that the court cannot fix a period of limitation if not fixed by the legislature.
• Union of India v. Assn. for Democratic Reforms [2002] 5 SCC 294: Held that the court cannot issue directions to the legislature for amending the Act or Rules.
• District Mining Officer v. TISCO [2001] 7 SCC 358: Held that the function of the court is to expound the law, not to legislate.
• Supreme Court Employees’ Welfare Assn. v. Union of India [1989] 4 SCC 187: Held that the court cannot direct the legislature to enact a particular law.
• Union of India v. Prakash P. Hinduja [2003] 6 SCC 195: Held that if the court issues a direction amounting to legislation, non-compliance does not constitute contempt of court.
• University of Kerala v. Council of Principals of Colleges [2010] 1 SCC 353: Held that it is not possible for the court to give directions for amending the Act or the statutory rules.
• State of U.P. v. Jeet S. Bisht [2007] 6 SCC 586: Held that issuing any direction may amount to amendment of law which falls exclusively within the domain of the executive/legislature.
• Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers [2011] 8 SCC 568: Held that in exceptional circumstances where there is inaction by the executive, the judiciary must step in.
• Manoj Narula v. Union of India [2014] 9 SCC 1: Held that a court cannot read a disqualification to the already expressed disqualifications.
• State of H.P. and Others v. Satpal Saini [2017] 11 SCC 42: Held that the High Court cannot direct the State Government to amend the provisions of a statute.

Binding Nature of Precedents:

• Union of India and Others v. Dhanwanti Devi and Others [1996] 6 SCC 44: Explained the concept of ratio decidendi and what constitutes a binding precedent.

NGT’s Powers and Jurisdiction:

• Mantri Techzone Private Limited v. Forward Foundation and Others [2019] 18 SCC 494: Discussed the powers of the NGT, but the court clarified that the observations in para 47 were specific to the facts of that case.
• Director General (Road Development) National Highways Authority of India v. Aam Aadmi Lokmanch and Others [2021] 11 SCC 566: Held that directives issued by the State government based solely on NGT orders are arbitrary if not supported by reasons or expert reports.

Judicial Review and High Court’s Supervisory Powers:

• L. Chandra Kumar v. Union of India and Others [1997] 3 SCC 261: Held that the power of judicial review vested in the High Courts under Articles 226 and 227 of the Constitution is part of the basic structure of the Constitution.
• Priya Gupta and Another v. Additional Secretary, Ministry of Health and Family Welfare and Others [2013] 11 SCC 404: Held that the law declared by the higher court is binding on authorities and tribunals under its superintendence.
• State of A ndhra Pradesh v. Raghu Ramakrishna Raju Kanumuru (M ember of Parliament ) [2022] 8 SCC 156: Held that it was not appropriate for the NGT to continue with proceedings when the High Court was seized of the matter.

Sustainable Development:

• Indian Council for Enviro-Legal Action v. Union of India and Others [1996] 5 SCC 281: Emphasized the need for balancing economic development and environmental protection.
• Essar Oil Limited v. Halar Utkarsh Samiti and Others [2004] 2 SCC 392: Emphasized the need to create harmony between development and environment.
• N.D. Jayal and Another v. Union of India and Others [2004] 9 SCC 362: Stressed the importance of sustainable development and the right to a clean environment.
• Rajeev Suri v. Delhi Development Authority and Others [2022] 11 SCC 1: Emphasized the principle of sustainable development and the need for controlled development.
• Resident’s Welfare Association and Another v. Union Territory of Chandigarh and Others [2023] 8 SCC 643: Highlighted the adverse impact of haphazard urbanization on the environment.
• State of Uttar Pradesh and Others v. Uday Education and Welfare Trust and Others [2022] SCC OnLine SC 1469: Emphasized the duty of the State to protect the environment and ensure that green cover is not reduced.
• T.N. Godavarman Thirumulkpad v. Union of India and Others [1997] 2 SCC 267: Enunciated the definition of “forest” and emphasized the need to conserve forests.

Legal Provisions:

• Himachal Pradesh Town & Country Planning Act, 1977 (TCP Act): Sections 13, 14, 15, 18, 19, and 20 were specifically discussed.
• Forest (Conservation) Act, 1980 (FC Act): Referred to for the protection of forest areas.
• National Green Tribunal Act, 2010 (NGT Act): Referred to for the jurisdiction of the NGT.
• Constitution of India: Articles 32, 226, 227, 300A, and 141 were discussed.
• Bombay Provincial Municipal Corporation Act, 1949 (BPMC Act): Referred to in the context of legislative power.
• Maharashtra Regional and Town Planning Act, 1966 (MRTP Act): Referred to in the context of legislative power.
• Administrative Tribunals Act, 1985 (AT Act): Referred to in the context of the power of judicial review.

Judgment

How each authority was viewed by the Court:

• Union of India and Another v. Cynamide India Ltd. and Another [1987] 2 SCC 720: Used to distinguish between legislative and administrative functions.
• Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur [1980] 2 SCC 295: Used to establish that the declaration of a town area is a legislative function.
• Sundarjas Kanyalal Bhatija and Others v. Collector, Thane, Maharashtra and Others [1989] 3 SCC 396: Used to show that the issuance of notifications under the BPMC Act is a legislative function.
• Pune Municipal Corporation and Another v. Promoters and Builders Association and Another [2004] 10 SCC 796: Used to establish that making DCRs is a legislative function.
• BangaloreDevelopment Authority v. Aircraft Employees’ Co operative Society Limited and Others [2012] 3 SCC 442: Used to show that finalizing a development plan is a legislative function.
• Rajeev Suri v. Delhi Development Authority and Others [2022] 11 SCC 1: Used to establish that the change of use of government land is a quasi-legislative function.
• V.K. Naswa v. Home Secretary, Union of India and Others [2012] 2 SCC 542: Used to support the principle that the court cannot direct the legislature to enact laws in a particular manner.
• State of H.P. v. Parent of a Student of Medical College [1985] 3 SCC 169: Used to support the principle that courts should not direct the legislature to enact legislation.
• Asif Hameed v. State of J&K [1989] Supp (2) SCC 364: Used to support the principle that courts cannot direct or advise the executive on matters of policy.
• Union of India v. Deoki Nandan Aggarwal [1992] Supp (1) SCC 323: Used to support the principle that the court cannot rewrite or reframe legislation.
• Ajaib Singh v. Sirhind Coop. Marketing -cum-Processing Service Society Ltd. [1999] 6 SCC 82: Used to support the principle that the court cannot fix a period of limitation if not fixed by the legislature.
• Union of India v. Assn. for Democratic Reforms [2002] 5 SCC 294: Used to support the principle that the court cannot issue directions to the legislature for amending the Act or Rules.
• District Mining Officer v. TISCO [2001] 7 SCC 358: Used to support the principle that the function of the court is to expound the law, not to legislate.
• Supreme Court Employees’ Welfare Assn. v. Union of India [1989] 4 SCC 187: Used to support the principle that the court cannot direct the legislature to enact a particular law.
• Union of India v. Prakash P. Hinduja [2003] 6 SCC 195: Used to support the principle that if the court issues a direction amounting to legislation, non-compliance does not constitute contempt of court.
• University of Kerala v. Council of Principals of Colleges [2010] 1 SCC 353: Used to support the principle that it is not possible for the court to give directions for amending the Act or the statutory rules.
• State of U.P. v. Jeet S. Bisht [2007] 6 SCC 586: Used to support the principle that issuing any direction may amount to amendment of law which falls exclusively within the domain of the executive/legislature.
• Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers [2011] 8 SCC 568: Used to support the principle that in exceptional circumstances where there is inaction by the executive, the judiciary must step in.
• Manoj Narula v. Union of India [2014] 9 SCC 1: Used to support the principle that a court cannot read a disqualification to the already expressed disqualifications.
• State of H.P. and Others v. Satpal Saini [2017] 11 SCC 42: Used to support the principle that the High Court cannot direct the State Government to amend the provisions of a statute.
• Union of India and Others v. Dhanwanti Devi and Others [1996] 6 SCC 44: Used to explain the concept of ratio decidendi and what constitutes a binding precedent.
• Mantri Techzone Private Limited v. Forward Foundation and Others [2019] 18 SCC 494: The court clarified that the observations in para 47 were specific to the facts of that case and not a general rule.
• Director General (Road Development) National Highways Authority of India v. Aam Aadmi Lokmanch and Others [2021] 11 SCC 566: Used to support the principle that directives issued by the State government based solely on NGT orders are arbitrary if not supported by reasons or expert reports.
• L. Chandra Kumar v. Union of India and Others [1997] 3 SCC 261: Used to support the principle that the power of judicial review vested in the High Courts under Articles 226 and 227 of the Constitution is part of the basic structure of the Constitution.
• Priya Gupta and Another v. Additional Secretary, Ministry of Health and Family Welfare and Others [2013] 11 SCC 404: Used to support the principle that the law declared by the higher court is binding on authorities and tribunals under its superintendence.
• State of Andhra Pradesh v. Raghu Ramakrishna Raju Kanumuru (Member of Parliament) [2022] 8 SCC 156: Used to support the principle that it was not appropriate for the NGT to continue with proceedings when the High Court was seized of the matter.
• Indian Council for Enviro-Legal Action v. Union of India and Others [1996] 5 SCC 281: Used to emphasize the need for balancing economic development and environmental protection.
• Essar Oil Limited v. Halar Utkarsh Samiti and Others [2004] 2 SCC 392: Used to emphasize the need to create harmony between development and environment.
• N.D. Jayal and Another v. Union of India and Others [2004] 9 SCC 362: Used to stress the importance of sustainable development and the right to a clean environment.
• Rajeev Suri v. Delhi Development Authority and Others [2022] 11 SCC 1: Used to emphasize the principle of sustainable development and the need for controlled development.
• Resident’s Welfare Association and Another v. Union Territory of Chandigarh and Others [2023] 8 SCC 643: Used to highlight the adverse impact of haphazard urbanization on the environment.
• State of Uttar Pradesh and Others v. Uday Education and Welfare Trust and Others [2022] SCC OnLine SC 1469: Used to emphasize the duty of the State to protect the environment and ensure that green cover is not reduced.
• T.N. Godavarman Thirumulkpad v. Union of India and Others [1997] 2 SCC 267: Used to define “forest” and emphasize the need to conserve forests.

Decision

The Supreme Court allowed the appeal filed by the State of Himachal Pradesh and set aside the orders of the NGT dated 16th November 2017 and 14th October 2022. The Court held that:

• The NGT could not have issued directions to the legislative body to exercise its legislative functions in a particular manner.
• The observations in Para 47 of the Mantri Techzone Private Limited (supra) would not operate as res judicata.
• The NGT was not 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.

The court emphasized that the preparation and approval of a development plan is a legislative function and the NGT cannot impose fetters on the exercise of such powers by the State. The court also held that the NGT should not have continued proceedings when the High Court was already seized of the matter.

Flowchart

Conclusion

The Supreme Court’s judgment in State of Himachal Pradesh vs. Yogendera Mohan Sengupta (2024) clarifies the limits of the NGT’s powers and reaffirms the state’s authority in town planning. The court emphasized the separation of powers and the importance of allowing the state to exercise its legislative functions without undue interference from environmental tribunals. This judgment ensures that the state can formulate its town planning policies while still adhering to environmental regulations. The court’s decision also highlights the need for judicial propriety, preventing parallel proceedings in different forums. The judgment underscores the importance of balancing development with environmental protection and the need for the state to exercise its powers responsibly and in accordance with the law.