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

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Development/Open Space Reservation”. It further directed that in the event the 100 feet area abutting hills, has already been developed, in that area no permission be granted for additional FSI or TDR. The Court observed thus: “92. In the present case, the State of Maharashtra has not shown any material or file containing the reasons behind the directive of 14-11-2017. It is not in dispute that the direction was consequential to, and solely based on the directions of the NGT in para 17(e). As noticed earlier, those directions were not based on any scientific evidence or report of any technical expert. Furthermore, even the impugned notification does not specify what constitutes “hills”, and how they can be applied in towns and communities set in undulating areas and hilly terrain. This is not only vague, but makes the directions arbitrary as they can be applied at will by the authorities concerned. More importantly, they amount to a blanket change of all regional and development plans. While such directions can be issued, if situations so warrant, such as in extraordinary or emergent circumstances, the complete absence of any reasons why the State issued them, coupled with the lack of any supporting expert report or input, renders it an arbitrary exercise. That they are based only on the NGT’s orders [Aam Aadmi Lokmanch v. State of Maharashtra, 2015 SCC OnLine NGT 11], only underlines the lack of any application of mind on the part of the State, while issuing them.

93. For the above reasons, we hold that the impugned judgment [Harshada Coop. Housing Society Ltd. v. State of Maharashtra, 2018 SCC OnLine Bom 2576 : (2018) 6 Bom CR 154] of the Bombay High Court cannot be sustained; it is set aside. Consequently, the directions in the notification under Section 154 (dated 14-11-2017) are hereby quashed.”

78Copy pinpoint78. 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

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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. E. Development Plan 2041.

79Copy pinpoint79. In any case, we find that the appellants herein, while preparing the draft development plan, have taken into consideration the suggestions given by the NGT. Chapter 12.10 of the development plan elaborately considers the directions given by the NGT.

80Copy pinpoint80. Insofar as “Green Belt” areas, core areas and non-core areas are concerned, the development plan has considered as under: “12.11.4 Implication of Ld. NGT Order That it is a settled position of law that normally a Tribunal will deal with the controversy brought before it. That is to say, it will adjudicate upon case put up by any aggrieved party before it. Without conceding on the point of limitation, that the Learned Tibunal could have only adjudicated upon the case put up before it. The case put up before it in nutshell was that no construction should be allowed in forests and green belt area. As already submitted green belt areas are those areas in which the land is also owned by the private land owners and is occupied by the structures. As per IDP Provisions, only reconstruction is permitted in the area and that too on old lines. No new construction or increase in constructed area is permissible in these areas. So far as the forest lands are concerned, no construction upon that is permissible unless there is a clearance from the Central Government as per the provisions of Forest Conservation Act. Further, no construction is permissible on the forest land until or unless proposal is cleared by the Competent Authority i.e. Central Government, but while disposing of the case, the Learned Tribunal has entered the field, which does not belong to it. Whether the building should be one storey or three storeys is for the Competent Authority to decide. Town Planning does

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not come under the purview of the NGT. Further the state of Himachal Pradesh is not a non-compliant State. It has been taking care of environment and has also been taking care of Town Planning.”

81Copy pinpoint81. Insofar as “Green Belt” areas are concerned, it has been found that “Green Belt” areas are those areas in which the land is also owned by the private land owners and is occupied by the structures. It provides that as per the provision, reconstruction would be permitted in the area and that too on old lines. No more new construction or increase in constructed area is permissible in these areas. It further provided that insofar 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.

82Copy pinpoint82. Not only that, as has already been referred to hereinabove, the learned Advocate General has placed on record a Cabinet decision which provides that construction would be permitted only in those plots in which there are no trees. It is further pointed out that the construction in “Green Belt” areas, would be permitted only to the extent of single storey with attic.

83Copy pinpoint83. 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.

84Copy pinpoint84. The development plan also consists of the Chapters on “Land Use Zoning” and “Development Control Regulations”. In “Green Belt” areas, limited construction with one parking floor + one floor + habitable attic would be permitted for residential use only. It is further clear that the parking floor is permissible only where the plot of land has an access to the motorable road. The maximum permissible height shall be 10 metre. The maximum permissible FAR shall be 1.0. The setbacks norms as prescribed for R¹ use in core area shall be applicable. Reconstruction on old lines shall be permissible with same plinth area and number of storeys. Cutting and felling of trees shall be prohibited. Change of land use and building use shall be prohibited. So also detailed provision has been made for heritage land use as well as core areas and non-core areas.

85Copy pinpoint85. A special provision has been made for Sinking and Sliding Areas which reads thus:

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“17.².².⁹. Sinking and Sliding Area i. The development permission shall be granted by the Competent Authority in whose jurisdiction the Sinking and Sliding Area falls. ii. The Regulations as applicable for Core/Green Area and Non-Core Area shall be applicable in Sinking and Sliding Area. iii. The Soil Investigation Report shall be submitted by the applicant before construction/reconstruction of building(s) for the areas falling in sinking and sliding zones as defined in Shimla Planning Area, or for any reclaimed piece of land. The Soil Investigation Report shall be given by the Geologist in the prescribed form. In case of negative observations, the construction shall not be allowed/shall be allowed as per conditions imposed by the consultant.” It can thus clearly be seen that unless a Soil Investigation Report is provided by the applicant before construction/reconstruction of building(s) for the areas falling in Sinking and Sliding Zones as defined in SPA, construction would not be allowed or allowed only as per the conditions imposed by the consultant. The Soil Investigation Report is required to be given by the Geologist in the prescribed form.

86Copy pinpoint86. It can thus be seen that while preparing the development plan, due care has been taken to ensure that environmental aspects are taken care of.

87Copy pinpoint87. 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.

88Copy pinpoint88. However, we are of the considered view that 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

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an aggrieved citizen was entitled to raise objections, give suggestions and was also entitled to an opportunity of hearing on more than one occasion. The first one at the stage of finalization of the draft development plan by the Director, and the second one at the stage of grant of approval and publication of the final development plan by the State Government. We are informed that 97 objections were received to the draft development plan in the present case. 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.

89Copy pinpoint89. The first order of NGT is also sought to be attacked by the appellants on the ground that the subject matter of the dispute did not concern any of the enactments listed in Schedule I of the NGT Act and therefore, the OA filed under Section 14 of the NGT Act itself was not tenable.

90Copy pinpoint90. Since we find 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. Transferred Case (C) No. 2 of 2023. 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?

91Copy pinpoint91. Insofar as the second order of NGT is concerned, the same arises out of publication of the draft development plan on 8th February 2022. After the draft development plan was published, in all 97 objections/ suggestions were received by the State of Himachal Pradesh within the stipulated time period and the same were heard. After considering the objections and suggestions including the recommendations made by the NGT in its first order, the development plan was finalized for 22,450 hectares of SPA upto the year 2041. However in the meantime, CWP Nos. 23 and 37 of 2022 were filed before the High Court of Himachal Pradesh praying inter alia for stay of the draft development plan.

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92Copy pinpoint92. Subsequent to the finalization of the draft development plan, the respondent No.¹ herein filed another application being OA No. 297 of 2022 before the NGT. The NGT passed an ex parte ad interim order dated 12th May 2022 restraining the appellants herein from taking any further steps in pursuance of the draft development plan.

93Copy pinpoint93. Being aggrieved thereby, the State of Himachal Pradesh – appellant herein preferred CWP No. 5960 of 2022 before the High Court of Himachal Pradesh under Article 226/227 of the Constitution of India. A prayer was made in the said writ petition to declare the order of the NGT dated 12th May 2022 to be without jurisdiction. It was also prayed that the Town and Country Planning Department and Municipal Corporation be permitted to perform their statutory duties and be authorized to grant approvals, sanctions and building permissions in accordance with the development plan. The respondents therein have filed their reply to the said writ petition and the appellants filed their rejoinder.

94Copy pinpoint94. Despite the pendency of CWP No. 5960 of 2022 as well as other writ petitions relating to the same subject matter, the NGT passed its second order holding that the draft development plan, being in conflict with its first order, is illegal and therefore cannot be given effect to.

95Copy pinpoint95. Immediately after the said order was passed, the appellants filed an application before the High Court of Himachal Pradesh in CWP No. 5960 of 2022 seeking leave to amend the writ petition so as to challenge the order of the NGT dated 12th May 2022.

96Copy pinpoint96. This Court, vide order dated 14th November 2022, in Civil Appeal Nos. 5348-5349 of 2019, transferred the said CWP No. 5960 of 2022 before itself and directed it to be heard along with Civil Appeal Nos. 5348-5349 of 2019. The said writ petition has been renumbered as Transferred Case (C) No. 2 of 2023.

97Copy pinpoint97. At the outset, we allow the application seeking leave to amend the writ petition so as to challenge the second order of NGT and the impleadment application filed before the High Court of Himachal Pradesh.

98Copy pinpoint98. Subsequently, on 3rd May 2023, we passed an order in these proceedings, as under:

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“1. We are informed that on account of directions issued by the National Green Tribunal (NGT), the final development plan which is presently at the stage of ‘draft notification’ could not be published. We are further informed by the learned Advocate General for the State of Himachal Pradesh that 97 objections have been received to the draft development plan.

2. In light of the facts and circumstances of these cases, we find that it will be appropriate, that the State Government decides the objections received to the draft development plan and after considering the same issue a final development plan.

3. We, therefore, direct the State of Himachal Pradesh to consider the objections to the draft development plan, decide them and publish the final development plan within a period of six weeks from today.

4. We further clarify that after the final development plan is published, it would not be given effect to for a period of one month from the date of its publication.

5. It is further directed that no construction should be permitted on the basis of the draft development plan.

6. Learned counsel appearing for the impleadors submits that certain constructions are being carried out without there being a sanctioned plan.

7. If any such construction is carried out without there being a sanctioned plan, indisputably, such a construction would be an unauthorized construction.

8. We, therefore, grant liberty to the applicant(s) to take recourse to the remedy available under Article 226 of the Constitution of India and bring unauthorized constructions to the notice of the High Court.

9. Needless to state that on such petitions being filed, the High Court would decide such petitions with due urgency that the issue requires.

10. List these matters on 12.07.2023.”

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99Copy pinpoint99. In pursuance of the aforesaid directions, the Town and Country Planning Department, Government of Himachal Pradesh had notified the final development plan on 20th June 2023.

100Copy pinpoint100. It could thus be seen that when the second order of NGT was passed, the writ petition challenging the interim order dated 12th May 2022 was very much pending before the High Court. Not only that, two other writ petitions being CWP Nos. 23 and 37 of 2022, challenging the draft development plan, were also pending before the High Court. It is thus clear that the High Court was in seisin of the matter related to finalization of the draft development plan.

101Copy pinpoint101. A Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and Others30 was considering the issue regarding ouster of jurisdiction of this Court and the High Courts under Articles 32 and 226 of the Constitution of India as was provided under the Administrative Tribunals Act, 1985 (for short, “AT Act”). The AT Act was constituted under the enabling provisions of Article 323-A of the Constitution of India. Sub-clause (d) of Clause (2) of Article 323-A specifically enables the Parliament to legislate a law for establishment of AT Act and also provides for exclusion of jurisdiction of all the Courts except jurisdiction of this Court under Article 136 with respect to disputes or complaints referred to in Clause (1). This Court after scanning the entire law on the question as to whether the powers of this Court and High Courts of judicial review as could be found in Articles 32 and 226 respectively amounts to basic structure or not, observed thus in paragraph nos. 78 & 79:- “78. The legitimacy of the power of Courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of

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effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action 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. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.

79. We also hold 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. This

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is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.”

102Copy pinpoint102. It could thus be clearly seen 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.

103Copy pinpoint103. It will be further relevant to refer to the following observations of this Court in paragraph nos. 90 to 92 in the said case which read thus: - “90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14,

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15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. 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.

91. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of the Constitution. In R.K. Jain’s case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the afore-stated contentions, we hold that all decisions of Tribunals, whether created pursuant

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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.

92. We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.”

104Copy pinpoint104. 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. It has further been observed that on the other hand to hold that all such decisions will be subject to jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India and before Division Bench of High Court within whose jurisdiction the concerned Tribunal falls will serve two purposes. It held that while saving powers of judicial review of legislative action, vested in the High Courts under Articles 226 and 227 would ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. 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.

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105Copy pinpoint105. The perusal of paragraph 92 of the judgment of the Constitution Bench would further reveal that the function of the Tribunals is only supplementary and all such decisions of the Tribunals would be subject to scrutiny before the Division Bench of respective High Courts. The Constitution Bench holds that all such Tribunals will continue to act as the only Courts of first instance in respect of areas of law for which they have been constituted. It has been held that it will not be open for a litigant to directly approach the High Courts even in cases where the question of vires of statutory legislations (except as mentioned where the legislations which creates the particular legislation) is challenged by availing the jurisdiction of the Tribunal concerned.

106Copy pinpoint106. It could thus clearly be seen that 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.

107Copy pinpoint107. We may gainfully refer to the observations of this Court in the case of Priya Gupta and Another v. Additional Secretary, Ministry of Health and Family Welfare and Others31, wherein this Court has succinctly culled down the position as under : - “12. The government departments are no exception to the consequences of wilful disobedience of the orders of the Court. Violation of the orders of the Court would be its disobedience and would invite action in accordance with law. The orders passed by this Court are the law of the land in terms of Article 141 of the Constitution of India. No Court or Tribunal and for that matter any other authority can ignore the law stated by this Court. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and the respect for law would irretrievably suffer. There can be no hesitation in holding that the law declared by the higher court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. This Court also expressed the view that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the

31 [2012] 12 SCR 818 : (2013) 11 SCC 404 : 2012 INSC 601

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credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country, as discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and to abide by the rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. (Ref. East India Commercial Co. Ltd. v. Collector of Customs and Officials Liquidator v. Dayanand) (SCC p.57, paras 90-91).”

108Copy pinpoint108. It could thus be seen that this Court in unequivocal terms held that no Court or Tribunal and for that matter any other authority can ignore the law stated by this Court. It held that such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and the respect for law would irretrievably suffer. It has been held that the law declared by the higher court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. This Court expressed a caution that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the credibility of judicial institution and encourages chance litigation. This Court further held that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country, as discipline is sine qua non for effective and efficient functioning of the judicial system.

109Copy pinpoint109. In view of the settled legal position, we are of the view that 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.

110Copy pinpoint110. It will also be relevant to refer to the observations of this Court in the case of Raghu Ramakrishna Raju Kanumuru (Member of Parliament) (supra), which read thus:

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“13. We are, therefore, of the considered view that it was not appropriate on the part of the learned NGT to have continued with the proceedings before it, specifically, when it was pointed out that the High Court was also in seisin of the matter and had passed an interim order permitting the construction. The conflicting orders passed by the learned NGT and the High Court would lead to an anomalous situation, where the authorities would be faced with a difficulty as to which order they are required to follow. There can be no manner of doubt that in such a situation, it is the orders passed by the constitutional courts, which would be prevailing over the overs passed by the statutory tribunals.”

111Copy pinpoint111. 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.

112Copy pinpoint112. In any case, the second order of NGT is passed basically on the basis of the first order of NGT. Since we have held 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, on the short ground. This, apart from the fact that as discussed hereinabove, 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. G. Balancing the need for Development and Protection of the Environment.

113Copy pinpoint113. A need for maintaining a balance between the development and protection/preservation of environmental ecology has been emphasized by this Court time and again.

114Copy pinpoint114. A three-Judges Bench of this Court in the case of Indian Council for Enviro-Legal Action v. Union of India and Others32, has observed thus:

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“31. ….. While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment. This is sought to be achieved by issuing notifications like the present, relating to developmental activities being carried out in such a way so that unnecessary environmental degradation does not take place. In other words, in order to prevent ecological imbalance and degradation that developmental activity is sought to be regulated.”

115Copy pinpoint115. This Court, again in the case of Essar Oil Limited v. Halar Utkarsh Samiti and Others33, emphasizing on the need for removal of deadlock between the development on the one hand and the environment on the other hand, observed thus: “27. This, therefore, is the aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other…..”

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116Copy pinpoint116. Emphasizing the need for sustainable development by balancing between the environmental protection and developmental activities, this Court, in the case of N.D. Jayal and Another v. Union of India and Others34, observed thus: “22. Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens’ Welfare Forum v. Union of India [(1996) 5 SCC 647] and in M.C. Mehta v. Union of India [(2002) 4 SCC 356] it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of “sustainable development”. This is a development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environment-related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to sustainable development without which life of the coming generations will be in jeopardy.”

117Copy pinpoint117. Again, in the said case, stressing on the right to clean environment to be a right guaranteed under Article 21 of the Constitution and also noting that the right to development also is a component of Article 21 of the Constitution, this Court observed thus: “24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. The right to development encompasses much more than economic well-being, and includes within its definition the guarantee of fundamental human rights. The “development” is not related only to the growth of GNP. In the classic work, Development As Freedom, the Nobel prize winner Amartya

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Sen pointed out that “the issue of development cannot be separated from the conceptual framework of human right”. This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples’ well-being and realization of their full potential. It is an integral part of human rights. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development.”

118Copy pinpoint118. Recently, in the case of Rajeev Suri (supra), emphasizing the need for sustainable development, this Court observed thus: “520. The principle of sustainable development and precautionary principle need to be understood in a proper context. The expression “sustainable development” incorporates a wide meaning within its fold. It contemplates that development ought to be sustainable with the idea of preservation of natural environment for present and future generations. It would not be without significance to note that sustainable development is indeed a principle of development, it posits controlled development. The primary requirement underlying this principle is to ensure that every development work is sustainable; and this requirement of sustainability demands that the first attempt of every agency enforcing environmental rule of law in the country ought to be to alleviate environmental concerns by proper mitigating measures. The future generations have an equal stake in the environment and development. They are as much entitled to a developed society as they are to an environmentally secure society.

521. By the Declaration on the Right to Development, 1986, the United Nations has given express recognition to a right to development. Article 1 of the Declaration defines this right as: “1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

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522. The right to development, thus, is intrinsically connected to the preservance of a dignified life. It is not limited to the idea of infrastructural development, rather, it entails human development as the basis of all development. The jurisprudence in environmental matters must acknowledge that there is immense interdependence between the right to development and the right to natural environment.

523. In International Law and Sustainable Development, Arjun Sengupta in the chapter “Implementing the Right to Development [International Law and Sustainable Development — Principles and Practice (Publisher : Martinus Nijhoff, Edn. 2004) p. 354.] ” notes thus: “… Two rights are interdependent if the level of enjoyment of one is dependent on the level of enjoyment of the other…””

119Copy pinpoint119. In the case of Resident’s Welfare Association (supra), this Court, speaking through one of us (B.R. Gavai, J.), observed thus: “151. One another important aspect that needs to be taken into consideration is the adverse impact on environment on account of haphazard urbanisation. It will be relevant to refer to Clause 20.³ of the CMP-2031 which we have already reproduced hereinabove. It has been recommended that an Effective Environmental Management Plan be devised for the region including Chandigarh, which includes environmental strategy, monitoring regulation, institutional capacity building and economic incentives. It is observed that the proposal needs a legal framework and a monitoring committee to examine the regional level proposals/big developments by the constitution of an Inter-State High- Powered Regional Environmental Management Board, as per the proposal of the Ministry of Environment and Forests, Government of India.

152. The United Nations Environment Programme (“UNEP”) notes in its publication titled “Integrating the Environment in Urban Planning and Management — Key Principles and Approaches for Cities in the 21st Century” that more than half of the world’s population is now living in urban areas. It further noted that by the year 2050, more

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than half of Africa and Asia’s population will live in towns and cities. It recognised that City Development Strategies (“CDSs”) have shown how to integrate environmental concerns in long-term city visioning exercises. It states that environmental mainstreaming can help to incorporate relevant environmental concerns into the decisions of institutions, while emerging ideas about the green urban economy show how density can generate environmental and social opportunities. It states that the strategies need to be underpinned with governance structures that facilitate integration of environmental concerns in the planning process.

153. The said publication defines EIA to be an analytical process or procedure that systematically examines the possible environmental consequences of the implementation of a given activity (project). It is aimed to ensure that the environmental implications of decisions related to a given activity are taken into account before the decisions are made.

154. Judicial notice is also taken of the cover story published in the weekly, India Today, dated 24-10-2022, titled as “Bengaluru — How to Ruin India’s Best City” by Raj Chengappa with Ajay Sukumaran. The said article depicts the sorry state of affairs as to how the City of Bengaluru, once considered to be one of India’s best cities, a “Garden city” has been ruined on account of haphazard urban development. It takes note of as to how on account of one major spell of rain in the September of 2022, the city bore the brunt of nature’s fury. Various areas of the city were inundated with heavy rains. The loss the flood caused to the Outer Ring Road tech corridor alone was estimated to be over Rs 225 crores.

155. The article notes that, while on one hand, on account of heavy rains, many of the houses were submerged in water, on the other hand, the city faced a huge shortage of drinking water.

156. The article further notes that rapid expansion of the city with no appropriate thought given towards transportation

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and ease of mobility has led to nightmarish traffic jams on its arterial roads. It notes that, almost overnight, Bengaluru›s municipal jurisdiction grew from 200 sq km to 800 sq km. It observes that the only one to benefit was the politician-businessman-builder nexus, which has thrived. It further noted that though posh colonies mushroomed in new areas, the infrastructure lagged, as roads remained narrow, the drainage poor, and no adequate provision for garbage disposal too.

157. The article notes that the primary canals known locally as rajakaluves were once natural rain-fed streams across which farmers built small bunds over time, to arrest the flow of water and create lakes. It further notes that these interlinked man-made lakes worked as a storm-water drain network. However, in order to meet the demand for space for construction and roads, the administrators allowed the lakes to be breached regularly. The lakes, which once numbered a thousand-odd, are now reduced to a paltry number. Worse, the rajakaluves that channelised the storm water had buildings built over them.

158. The warning flagged by the City of Bengaluru needs to be given due attention by the legislature, executive and the policy-makers. It is high time that before permitting urban development, EIA of such development needs to be done.”

120Copy pinpoint120. Again, while emphasizing the need for balancing the development along with preservation of ecology and environment, this Court, speaking through one of us (B.R. Gavai, J.), in the case of State of Uttar Pradesh and Others v. Uday Education and Welfare Trust and Others35, while referring to the earlier judgments on the issue observed thus: “100. Though we are allowing the appeals, setting aside the orders of the learned NGT, and upholding the action of the State Government in granting licenses, we would like to remind the State and its authorities that it is their duty to protect the

35 [2022] 19 SCR 781 : 2022 SCC OnLine SC 1469 : 2022 INSC 465

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environment. The State and its authorities should ensure that necessary steps are taken for arresting the problem of declining forest and tree cover. The State and its authorities should make meaningful and concerted efforts to ensure that the green cover in the State of Uttar Pradesh is not reduced and to ensure that it increases.

101. The conservation of forest plays a vital role in maintaining the ecology. It acts as processors of the water cycle and soil and also as providers of livelihoods. As such, preservation and sustainable management of forests deserve to be given due importance in formulation of policies by the State. In this regard, it will be apposite to refer to certain earlier pronouncements of this Court. (a) In the case of Samatha v. State of A.P. [AIR 1997 SC 3297 : (1997) 8 SCC 191], a three-Judge Bench of this Court after referring to the earlier judgment in the case of State of H.P. v. Ganesh Wood Products [(1995) 6 SCC 363] observed that, even while considering the grant of renewal of mining leases, the provisions of the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986 would apply. This Court held that the MOEF and all the States have a duty to prevent mining operations affecting forests. It further observed that, whether mining operations are carried on within the reserved forest or other forest area, it is their duty to ensure that the industry or enterprise does not denude the forest to become a menace to human existence nor a source to destroy flora and fauna and biodiversity. It has further been held that if it becomes inevitable to disturb the existence of forests, there is a concomitant duty upon the State to reforest and restore the green cover and to ensure adequate measures to promote, protect and improve both man- made and natural environment, flora and fauna as well as biodiversity. It further held that there can be no distinction between government forests and private forests in the matter of forest wealth of the nation and in the matter of environment and ecology.

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(b) In the case of Essar Oil Ltd. v. Halar Utkarsh Samiti [(2004) 2 SCC 392], this Court discussed the need for a balance between the economic and social needs and development on the one hand and environment considerations on the other. It was observed that laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other. In this regard, the observations of this Court in the case of Indian Council for Enviro-Legal Action v. Union of India [(1996) 5 SCC 281] were quoted as under: “While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment.” (c) In the case of Maharashtra Land Development Corporation v. State of Maharashtra [(2011) 15 SCC 616] reference was made to Glanrock Estate Private Limited v. State of Tamil Nadu [(2010) 10 SCC 96] wherein it was observed as under: “27. …. Forests in India are an important part of the environment. They constitute [a] national asset. In various judgments of this Court delivered by the Forest Bench of this Court in T.N. Godavarman Thirumulpad v. Union of India (Writ Petition No. 202 of 1995), it has been held that ‘intergenerational equity’ is part of Article 21 of the Constitution.

28. What is intergenerational equity? The present generation is answerable to the next generation by giving to the next generation a good environment. We are answerable to the next generation and if deforestation takes place rampantly then intergenerational equity would stand violated.

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29. The doctrine of sustainable development also forms part of Article 21 of the Constitution. The ‘precautionary principle’ and the ‘polluter pays principle’ flow from the core value in Article 21.

30. The important point to be noted is that in this case we are concerned with vesting of forests in the State. When we talk about intergenerational equity and sustainable development, we are elevating an ordinary principle of equality to the level of overarching principle.” (d) Of course, one cannot ignore one of the several dicta of this Court in T.N. Godavarman Thirumulkpad v. Union of India [(1997) 2 SCC 267 : AIR 1997 SC 1228] wherein this Court enunciated the definition of “forest” in the following words: “4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word “forest” must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land”, occurring in Section 2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof…”

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102. Though we find that for the sustainable development of the State and on account of the availability of the timber, sanction of granting licenses can be permitted to continue, however, as a responsible State, it needs to ensure that environmental concerns are duly attended to. We, therefore, direct the State Government to ensure that while granting permission for felling trees of the prohibited species, it should strictly ensure that the permission is granted only when the conditions specified in the Notification dated 7th January 2020 are satisfied. The State Government shall also ensure that when such permissions are granted to the applicants, the applicants scrupulously follow the mandate in the said notification of planting 10 trees against 1 and maintaining them for five years.”

121Copy pinpoint121. It is needless to state that, this Court, in a series of judgments and orders passed in the case of T.N. Godavarman Thirumulkpad v. Union of India and Others36 and lastly vide order dated 26th April 2023, passed by a three-Judges Bench to which one of us (B.R. Gavai, J.) was a member, has emphasized the need to have a balance between the requirement of development and preservation of ecology and environment.

122Copy pinpoint122. 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. V. CONCLUSION

123Copy pinpoint123. We have gone through the development plan. 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.

124Copy pinpoint124. 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

36 [2023] 6 SCR 601 : 2023 INSC 430

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environmental and ecological concerns. We may however not be construed as giving our imprimatur to the said development plan. At the same time, it cannot be ignored that the development plan has been finalized after various experts from various fields including those concerned with urban planning, environment etc., were taken on board. It also cannot be ignored that the development plan has been finalized after undergoing the rigorous process including that of inviting objections and suggestions at two stages, giving the hearing to such objectors and suggesters and after considering the same. If any of the citizen has any grievance that any provision is detrimental to the environment or ecology, it is always open to raise a challenge to such an independent provision before the appropriate forum. Such a challenge can be considered in accordance with law. But, in our view, 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.

125Copy pinpoint125. Insofar as the grievance of the Interveners, who are the plot holders in the ‘Green Belt’ area, with regard to payment of compensation is concerned, we find that the said issue would be beyond the scope of the present proceedings. We, therefore, without specifying any opinion on such claim, relegate the interveners to avail the appropriate remedy available to them in law.

126Copy pinpoint126. In the result, we pass the following order: (i) The Civil Appeal Nos. 5348-49 of 2019 as well as the Transferred Case (C) No. 2 of 2023 are allowed; (ii) The orders of the NGT dated 16th November 2017 in Original Application No. 121 of 2014, dated 16th July 2018 in Review Application No. 8 of 2018, dated 12th May 2022 and 14th October 2022 in Original Application No. 297 of 2022 are quashed and set aside; and (iii) The appellant-State of Himachal Pradesh and its instrumentalities are permitted to proceed with the implementation of the development plan as published on 20th June 2023 subject to what has been observed by us hereinabove.

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127Copy pinpoint127. In the facts and circumstances of the present case, there is no order as to costs.

128Copy pinpoint128. Pending application(s), if any, shall stand disposed of in the above terms.

Headnotes prepared by: Ankit Gyan Result of the case: Civil Appeals and Transferred case allowed.