Society For Safe Structures Regd. ... vs Uoi & Ors.
2009 Latest Caselaw 2008 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI



+      W.P.(C) 7173/2008



       SOCIETY FOR SAFE STRUCTURES REGD. SOCIETY
       THR.ITS. GENERAL SECRETARY ANIL AGGARWAL                        ..... Petitioner
                       Through: Mr. Anil Aggarwal, Adv.

                      versus



       UOI & ORS.                                    ..... Respondents
                               Through: Mr. Gaurav Duggal, Adv. for R-1/UOI
                               Mr. Asheesh Jain, Adv. for Respondent No.2
                               Mr. Vikramjit, Adv. for Respondent No.3
                               Dr. Mohan Sharma, Mr. R.D. Upadhyay, Advs. for R-4
                               Mr. Gaurav Liberhan, Adv. for Respondent No.5

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL



                      ORDER

% 13.05.2009

The principal grievance of the petitioner in the present writ petition is that the

region covered under the National Capital Region Planning Board Act, 1985 (hereinafter

referred to as the Act) is now a metropolitan area as also the Board constituted thereunder

is not only entirely devoid of any local representation but is performing tasks and duties

that are now the Constitutional obligations of the units of democratic local government

and the said Act is inconsistent with the Constitutional provisions under Part IX-A and

Article 243ZF of the Constitution of India. As per the petitioner, the Act in question

needs to be either repealed or amended to bring it in line with the Constitution. As per

the petitioner, the Board under Section 3 of the Act is entirely devoid of any local

representative of the people. The petitioner thus, inter alia, sought a writ of mandamus

restraining the respondents from enforcing the said Act as it was inconsistent with and contrary to the Constitution of India.

2. In the counter affidavit filed by Respondent No.5 National Capital Regional

Planning Board, it is stated that the National Capital Region has been created under the

provisions of National Capital Region Planning Board Act, 1985 and covers a total area

WP(C) No. 7173/2008 Pg.1 of 4 of 33,578 Sq.Kms. with four Constituent sub-regions. It is also stated on behalf of

respondent No.5 that it is concerned only with the area within the National Capital

Region and thereby the Regional Plan for the National Capital Region as per provisions

of the Act, whereas the planning with regard to Panchayats is to be done as per Article

243G and the 73rd Constitutional Amendment Act, 1992 and that of the Metropolitan area

is done by the respective States as per the provisions of the 74 th Constitutional

Amendment Act, 1992. According to the respondents, the said amendments have given

powers to the Metropolitan Planning Committees and District Planning Committees to

prepare the draft plans for Metropolitan Areas and Districts respectively whereas the

powers to finalize these plans lies with the concerned State Governments. Similarly, it is

stated that the District Planning Committee has been empowered to consolidate the draft

plans prepared by Panchayats and Municipalities for each district. There is no provision

in the said amendments to converge all the District Development Plans to prepare a sub-

regional plan by addressing inter-district concerns or prepare a Development Plan at the

Regional Level for the National Capital Region specially with regard to integration of

Physical (Spatial) Plan/Land Use Plan with Economic, Fiscal and other Sectoral Plans

and programmes.

3. As per the respondents, the Parliament and the NCR Constituent States have

empowered the NCR Planning Board through the Act for the preparation of a plan for the

development of the entire National Capital Region. It is also submitted that the 74 th

Constitutional Amendment Act, 1992 has not taken away the power of the NCR Planning

Board as the NCR Planning Board does not do the planning at the district level as

envisaged by the 74th Constitutional Amendment Act, 1992. Further, there is no

overlapping function between the NCR Planning Board and the State Municipality as the

Board does the planning only for the 'National Capital Region' and the planning for 'Municipal area' as per 74th Constitutional Amendment Act, 1992 is to be carried out by

the concerned ULBs/States. The 'National Capital Region' and the 'Metropolitan Area'

are two different and distinct areas and the functions to be performed qua those areas are

performed by separate bodies, i.e. NCR Planning Board and the State respectively. The

WP(C) No. 7173/2008 Pg.2 of 4 Regional Plan prepared by the Board lays down the broad policy guidelines for planning

and development of the NCR area in a harmonious manner. In fact it integrates the plans

and addresses inter-district concerns into a sub-regional Plan. Therefore, as per the

respondents, the provisions of the Act which lays down the procedure for the preparation

of the Regional Plan are relevant for ensuring harmonious and sustainable development

of a Region even after the passing of the 74th Constitutional Amendment Act, 1992.

4. In view of the reply filed by the respondents, we fail to see how the Constitutional

mandate has been violated or the National Capital Region Planning Board Act, 1985

stands repealed by the Constitution or is inconsistent with the Constitution of India as

claimed by the petitioner. The petition is vague and lacks specifics as to the challenge to

the vires of the Act. Neither during the course of the arguments nor in the petition has a

case been made out to establish how the National Capital Region Planning Board Act,

1985 is contrary to the Constitution. The challenge to the vires of an Act is a serious

issue and requires proper and specific challenges and grounds of unconstitutionality

being set out in the petition. However, the present petition is completely lacking in the

same.

5. In the case of R.K. Garg v. Union of India (1981) 4 SCC 675, it has been held by

the Supreme Court that every legislation is essentially empiric and it is based on

experimentation. There may be crudities, inequities and even possibilities of abuse but

on that account alone, it cannot be struck down as invalid. These can always be set right

by the legislature by passing amendments. The court must therefore adjudge the

constitutionality of such legislation by the generality of its provisions. Laws relating to

economic activities should be viewed with greater latitude than laws touching civil rights

such as freedom of speech, religion etc. It has been further held by the their lordships that there is always a presumption in favour of the constitutionality of a statute and the

burden is upon him who attacks it to show that there has been a clear transgression of the

constitutional principles. The legislature understands and correctly appreciates the needs

of its own people, its laws are directed to problems made manifest by experience and its

WP(C) No. 7173/2008 Pg.3 of 4 discrimination are based on adequate grounds. In adjudging constitutionality, the Court

may take into consideration matters of common knowledge, matters of common report,

the history of the times and may assume every state of facts which can be conceived

existing at the time of legislation.

6. Similarly, in the case of Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942, it has

been held that there is a presumption in favour of the constitutionality of an enactment

and the burden is upon him who attacks it to show that there has been a clear

transgression of the constitutional guarantee; that it must be presumed that the legislature

understands and correctly appreciates the needs of its own people and that its laws are

directed to problems made manifest by experience and that its discriminations are based

on adequate grounds; and further that the legislature is free to recognise degrees of harm

and may confine its restrictions to those cases where the need is deemed to be the

clearest.

7. To the same effect is the decision of the Supreme Court in the case of Sant Lal

Bharti v. State of Punjab (1988) 1 SCC 366, wherein it has been held by their lordships

that a petition challenging the constitutional validity of certain provisions must be in the

context of certain facts and not in abstract or vacuum.

The essential facts necessary to challenge the validity of the Act are lacking in the

instant writ petition.

8. In view of what is stated hereinabove, there is no merit in the writ petition. The

same is hereby dismissed. All pending applications also stand disposed of accordingly.

                                                      CHIEF JUSTICE
                       NEERAJ KISHAN KAUL, J
MAY 13, 2009
pk




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