NGT Can't Direct Govt To Exercise Rule Making Powers In A Particular Manner : Supreme Court Approves Shimla Development Plan

The Supreme Court in a recent decision approved the Shimla Development Plan, 2041 by holding that the development plan has been finalized after taking into consideration the reports of various expert committees and the studies undertaken with regard to various aspects including environmental and ecological aspects. Setting aside the finding of the National Green Tribunal (“NGT”), the Division Bench of Justices BR Gavai and Aravind Kumar noted that the Development Plan contains sufficient safeguards to balance the need for development while taking care of and addressing the environmental and ecological concerns. The Court expressed the need to maintain the balance between the development and the ecology, where it noted 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. Thus, the court found that 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. Factual Background The State of Himachal Pradesh published a draft development plan on 8th February 2022 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. In the meantime, on an original application preferred by the Respondent No.1, 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 under Article 226/227 of the Constitution of India filed civil writ petition before the High Court of Himachal Pradesh. Despite the pendency 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 Shimla development plan, sanctioned by the preceding Himachal Pradesh government in February 2022, faced impediments as it failed to materialize due to stay orders issued by the NGT in May 2022. The tribunal deemed the plan illegal, citing a contradiction with prior orders issued in 2017 aimed at controlling unplanned constructions in Shimla. The appellants filed an application before the High Court of Himachal Pradesh, praying for amending the writ petition so as to challenge the second order of NGT. Since, the common issues were considered by the Supreme Court in one of the connected matter, therefore, the court directed the transfer of the said writ petition before itself. Observation by the Court Firstly, the court discussed the legislative scheme of the Town and Country Planning Act by highlighting the object and purpose of the legislation, where it observed that the TCP Act has been enacted to make provision for planning and development and use of land; to make better provision for the preparation of development plans and sectoral plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective. The court referred to Section 18 of the Act, which contains various factors that the development plan is required to consist of such as it shall allocate broadly areas or sector of land for various purposes including residential, industrial, commercial or agricultural. It shall also provide for open spaces, parks and gardens, green belts, zoological gardens and play-grounds. It is also required to make proposals for general landscaping and preservation of natural areas. It is required to project the requirement of the planning area of such amenities and utilities as water, drainage, electricity and suggest their fulfilment. The court further explained the procedure enshrined under Section 18, while finalizing the Development Plan. Secondly, while discussing on the Nature of functions/powers of the Authorities under Chapter-IV of the TCP Act, that provides 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. The court after referring to catena of judgments came to the conclusion that it is a settled position of law that the exercise of power for the preparation, finalization and approval of development plan is a power exercised by the delegatee for enacting a subordinate piece of legislation. We therefore have no manner of doubt in holding that the aforesaid provisions as contained in the TCP Act provide for exercise of power by a delegatee to enact a piece of...

NGT Can't Direct Govt To Exercise Rule Making Powers In A Particular Manner : Supreme Court Approves Shimla Development Plan

Yash Mittal

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