NGT Cannot Direct State to Frame Development Plan in a Particular Manner: Supreme Court on Shimla Planning Area
Overview of the Dispute
The Supreme Court of India, in State of Himachal Pradesh And Others Vs Yogendera Mohan Sengupta And Another, delivered a landmark ruling settling the question of whether the National Green Tribunal (NGT) possesses the authority to compel a State or its delegatee to frame a statutory development plan in any particular manner. The Court allowed Civil Appeal Nos. 5348-5349 of 2019 and Transferred Case (C) No. 2 of 2023, quashing multiple NGT orders and permitting the State of Himachal Pradesh to proceed with the implementation of its development plan for the Shimla Planning Area (SPA).
Background and Genesis of the Litigation
Statutory Framework
The Himachal Pradesh Town & Country Planning Act, 1977 (TCP Act) was enacted to govern the planning, development, and regulation of land use within designated planning areas in Himachal Pradesh. Pursuant to a Government Notification dated 30th November 1977, the Shimla Planning Area was formally constituted. Subsequently, the Himachal Pradesh Town & Country Planning Rules, 1978 were framed under Section 87 of the TCP Act.
The interim development plan for the SPA was approved on 24th March 1979 covering the period 1979–2001. A notification dated 7th December 2000 surveyed the Green Belt within existing Core and Restricted areas of the SPA and formally designated certain zones as "Green Belt."
Early Legal Proceedings
In 2011, CWP No. 4595 of 2011, Rajeev Varma and Others v. State of Himachal Pradesh and Others, was filed before the High Court of Himachal Pradesh seeking directions to the State to prepare a development plan in conformity with the TCP Act within a defined timeframe.
Separately, Yogendera Mohan Sengupta filed OA No. 121 of 2014 before the NGT seeking, among other reliefs:
- Recognition of areas covered by the notification dated 7th December 2000 as forests
- Prohibition on non-forestry activities without prior clearance under
Section 2of the Forest (Conservation) Act, 1980 - Protection of ecology and environment by preventing land use changes in forest/green belt zones
NGT's Intervention and First Order
Suo Motu Expansion and Initial Restrictions
Despite the State's assurance that Green Belt areas were not synonymous with forests and that no non-forestry activity would be permitted on actual forest land without compliance with the Forest (Conservation) Act, 1980, the NGT expanded the scope of proceedings on its own motion. By an interim order dated 30th May 2014, the NGT banned all construction activities in the Green Belt areas of Shimla covered under the notification dated 7th December 2000.
Expert Committee Constitution
By an order dated 12th October 2015 in OA No. 121 of 2014, the NGT constituted a Committee comprising officers from the National Disaster Management Authority (NDMA), a senior scientist from the Wadia Institute of Himalayan Geology, Dehradun, and other officials to examine issues such as water supply and carrying capacity of the hills. An Expert Committee constituted pursuant to this order submitted its report on 29th August 2016, with the final report being placed before the NGT on 20th May 2017.
First NGT Order — 16th November 2017
Based on the Expert Committee's findings, the NGT passed its first order on 16th November 2017 in OA No. 121 of 2014, issuing the following key directions:
- Complete prohibition on new construction of any kind — residential, institutional, or commercial — in Core and Green/Forest areas
- General restriction limiting construction in other areas of the SPA to two storeys plus an attic floor
- Reconstruction of unsafe structures in Core and Green/Forest areas to be permitted for residential purposes only, not exceeding two storeys and an attic floor
- Direction to the State to finalise the development plan within three months, taking into account the precautions suggested in the order
- Constitution of an Implementation Committee and a Supervisory Committee
The State's Review Application No. 8 of 2018 challenging the first order was dismissed on 16th July 2018, prompting the filing of Civil Appeal Nos. 5348-5349 of 2019 before the Supreme Court.
Draft Development Plan and Second NGT Order
Publication of the Draft Plan
In compliance with the TCP Act, the 1978 Rules, and the directions in the first NGT order, the State published a draft development plan on 8th February 2022. In all, 97 objections and suggestions were received within the stipulated period, all of which were heard by the Director.
CWP Nos. 23 and 37 of 2022 were simultaneously filed before the High Court of Himachal Pradesh seeking a stay of the draft development plan.
NGT's Intervention — Second Round
Yogendera Mohan Sengupta filed OA No. 297 of 2022 before the NGT challenging the draft development plan. The NGT, by interim order dated 12th May 2022, stayed the draft development plan and restrained the State from proceeding further.
The State challenged this interim stay by filing CWP No. 5960 of 2022 under Articles 226/227 of the Constitution of India before the High Court of Himachal Pradesh. Despite the pendency of this writ petition, the NGT proceeded to pass its second order on 14th October 2022 in OA No. 297 of 2022, declaring the draft development plan to be in conflict with the first order of NGT and therefore illegal and unenforceable.
On 14th November 2022, the Supreme Court transferred CWP No. 5960 of 2022 from the High Court of Himachal Pradesh to itself, which was renumbered as Transferred Case (C) No. 2 of 2023.