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, 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:

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 delegate 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 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 delegate 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 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]