In CIVIL APPEAL NOs. 5348-5349 OF 2019-SC- Himachal Pradesh Govt and its instrumentalities can proceed with the implementation of Development Plan 2041, rules Apex Court
Justices B.R. Gavai & Aravind Kumar [11-01-2024]

Read Order: THE STATE OF HIMACHAL PRADESH AND OTHERS v. YOGENDERA MOHAN SENGUPTA AND ANOTHER

Tulip Kanth

New Delhi, January 16, 2024: The Supreme Court has given a go ahead to the Himachal Pradesh Government to implement the Development Plan, 2041. The Top Court observed that there are sufficient safeguards to balance the need for development while taking care of and addressing the environmental and ecological concerns.

The facts of the case suggested that a draft development plan for 22,450 hectares of Shimla Planning Area (SPA) which was finalized vide a notification dated 16^th April 2022, came to be stayed by the NGT, vide an interim order dated 12^th May 2022. By the said order, it restrained 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. Despite the pendency of the said writ petition, the NGT, vide its final order dated 14^th October 2022 (second order of NGT) 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 petition, the second order of NGT also came to be challenged before the High Court of Himachal Pradesh. Thereafter, an order was passed to transfer the said case from the High Court of Himachal Pradesh to the Top Court. The State approached the Top Court challenging the first order of NGT and the order passed by the NGT in Review Application.

At the outset, the Division Bench of Justice B.R. Gavai and Justice Aravind Kumar clarified that Chapter-IV of the Himachal Pradesh Town & Country Planning Act, 1977  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.

It was also opined that the powers vested with the Director and the State Government are for enacting a piece of delegated legislation. Reiterating that 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, the Bench opined that the TCP Act provides for exercise of power by a delegatee to enact a piece of subordinate legislation.

The Bench was of the opinion that the first order of NGT was liable to be set aside on the short ground that it had transgressed its limitations and attempted to encroach upon the field reserved for the delegatee to enact a piece of delegated legislation. “We are of the considered view that when the TCP Act empowers the State Government and the Director to exercise the powers to enact a piece of delegated legislation, the NGT could not have imposed fetters on such powers and directed it to exercise its powers in a particular manner”, it said.

Moreover, the Top Court made it clear 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. Despite pendency of the proceedings before the High Court including the one challenging the interim order passed by NGT, the NGT went ahead with the passing of the second order impugned herein.

“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”, it said.

The Top Court further opined that there are sufficient safeguards to balance the need for development while taking care of and addressing the environmental and ecological concerns. It was also considered by the Bench 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 was finalized 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”, the Bench highlighted.

Thus, setting aside the orders of the NGT, the Bench held, “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.”