Raghuraj Singh vs Union Of India & Ors
2014 Latest Caselaw 4941 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 30th September, 2014

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 5559/2013 & CM No.15049/2013 (for directions)
       RAGHURAJ SINGH                                        ..... Petitioner
                    Through:            Mr. Kirti Uppal, Sr. Adv. with Mr.
                                        Pramod Arora & Mr. Anshuman
                                        Sahni, Advs.

                                    Versus
       UNION OF INDIA & ORS                                ..... Respondents

                     Through:           Mr. Abhay Prakash Sahay and Ms.
                                        Indu Prabha, Advs. for UOI.
                                        Mr. Gaurav M. Liberhan, Adv. for R-2.
                                        Mr. Anuj Kumar Ranjan, Advs. For
                                        R-3.
                                        Mr. Narender Hooda, Sr. Adv. with
                                        Mr. Sonam Sharma & Ms. Nidhi
                                        Jaswal, Advs. for R-4.
                                        Ms. Zubeda Begum, Adv. for R-6.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This petition filed as a Public Interest Litigation (PIL) flags the issue

of, the State of Uttar Pradesh (respondent no.3), State of Haryana

(respondent no.4), State of Rajasthan (respondent no.5) and Government of

NCT of Delhi (respondent no.6) acting in contravention of the Regional Plan

drawn up by the National Capital Region Planning Board (NCRPB)

constituted under the National Capital Region Planning Board Act, 1985.

The petition avers that though the said State Governments are obliged to

prepare their respective Sub-Regional Plan and Master Plan for the parts of

their respective States covered by National Capital Region (NCR) in

conformity with the Regional Plan and to thereafter only carry out

development in the said parts but are going ahead and allowing development

contrary to the Regional Plan, thereby defeating the very purpose of

harmonious development of the NCR to save Delhi from population

explosion and to avoid haphazard development. It is yet further the plea in

the petition that inspite of the petitioner representing to the Chairman

NCRPB and other authorities, apprising them of the development in NCR

contrary to the Regional Plan, no action has been taken. The petition seeks

the reliefs of, i) direction to the NCRPB to coordinate enforcement and

implementation of Regional Plan and Sub-Regional Plans and bring any

derogation of the provisions of the NCRPB Act committed by the said States

to the notice of this Court, ii) direction to the respondents no.3 to 6 States to

prepare Sub-Regional Plans in conformity with the Regional Plan as per the

NCRPB Act and to take requisite approval of their Sub-Regional Plans from

the NCRPB before finalizing / publishing the same; iii) direction to the

respondents no.3 to 6 States to restrain them from giving effect to any Sub-

Regional Plans and Master Plans not approved by NCRPB and a direction to

the respondents no.3 to 6 States to ensure that no land use be changed

contrary to the Regional Plan.

2. Notice of the petition was issued. Counter affidavits have been filed

by the respondent no.2 NCRPB, respondent no.3 State of Uttar Pradesh,

respondent no.4 State of Haryana and respondent no.5 State of Rajasthan

and respondent no.6 GNCTD and to which rejoinders have been filed by the

petitioner. An additional affidavit has also been filed by the respondent no.2

NCRPB. We have heard the counsels for the parties.

3. The respondent no.2 NCRPB has pleaded, i) that the Regional Plan

prepared by it is a broad policy document indicating inter alia the broad land

uses to which the land falling in NCR can be put to, for example,

urbanizable area, agriculture, green buffer etc. and within the urbanizable

area which uses and functions can be carried out on the land; however it is

for the participating States to draw up the exact location and the particular

use / functions, the said land / area can be put to in their Master /

Development Plans; the Regional Plan does not indicate exact location for

any particular use and function in the urbanizable area; ii) that the

participating States are to prepare their Sub-Regional Plans in conformity

with the Regional Plan and containing slightly elaborated particulars; iii)

thereafter the Master / Development Plans are prepared by the respective

departments in the participating States in conformity with the Regional and

Sub-Regional Plan for the respective towns in the NCR wherein the location

of lands at micro level and their uses as allowed in the Regional Plan are

indicated; iv) coordination and monitoring of the implementation of the

Regional Plan, policies and proposals is being done at various levels; v) that

the representations of the petitioner have been responded to and action taken

thereon; vi) it is denied that it is causing development contrary to the

Regional Plan; vii) that it has been pursuing with the participating States for

immediate preparation of the Sub-Regional Plans; viii) that Sub-Regional

Plan for the State of Uttar Pradesh sub-region had been approved; and, ix)

that the Master Plan for Greater Noida was approved in compliance of the

order dated 1st October, 2011 of the Allahabad High Court.

4. The respondent no.2 NCRPB in the additional affidavit has pleaded

that it has issued a number of letters to the participating States for violation

of the Regional Plan and also issued notices to the participating States under

Section 29(2) of the NCRPB Act; particulars of such letters / notices are

given and copies thereof have been filed along with the additional affidavit.

5. We may notice that the respondent no.4 State of Haryana has also

placed before us the reply sent to the notices of NCRPB.

6. The respondent no.3 State of Uttar Pradesh in its counter affidavit has

pleaded, i) that it has prepared its Sub-Regional Plan and got the same

approved from the NCRPB; ii) that the development carried out by different

developmental authorities / agencies in the Uttar Pradesh sub-region are with

the concurrence of the Government of Uttar Pradesh and in consonance with

the Regional Plan; iii) it is denied that the State of Uttar Pradesh was

allowing any illegal developments in contravention of the Regional Plan; iv)

that there is no provision in the NCRPB Act for the participating States to

obtain approval of the Master Plans of their towns from the NCRPB; and, v)

planning is a State subject and participating States are responsible to plan

their own areas considering the local requirements.

7. The State of Haryana in its counter affidavit has pleaded, i) that the

State of Haryana is making every effort to comply with the provisions of the

Regional Plan prepared by NCRPB and the violations if any are on account

of ever changing dynamics of development which could not be envisaged at

the time of preparation of Regional Plan and the requirements of the area for

which planning is being done; ii) that the Regional Plan itself is in the

process of being revised; iii) that land is a State Subject under List II of

VIIth Schedule of the Constitution of India and the State Government is

empowered to make laws for regularization of land use despite the fact that

by resolution the State of Haryana agreed to the constitution of NCRPB; iv)

the Regional Plan is expected to lay down only the broad contours of the

land use / other policies and its detailing has to be done by the State

concerned; v) that there necessarily has to be a time gap between the date of

preparation of the Regional Plan and the Sub-Regional Plan by the

respective State Governments and during this period development at ground

cannot be stalled; vi) that the development plans are prepared keeping in

view the broad policy framework of the Regional Plan; and, vi) that the State

of Haryana has already prepared its Sub-Regional Plan and forwarded the

same to NCRPB.

8. The State of Rajasthan in its counter affidavit has pleaded; a) that the

petitioner has failed to point out as to which development in the State of

Rajasthan is in violation of the Regional Plan and had only vaguely alleged

such violation; b) that there is nothing in the NCRPB Act that prohibits

development in the absence of Sub-Regional Plan; c) all that the NCRPB

Act requires is that participating State should not undertake any

development in contravention of the Regional Plan; d) that the Sub-Regional

Plan of the State of Rajasthan is under preparation; e) that the development

in the Sub-Region is being carried out as per the Master Plans of the towns

of Rajasthan sub-region of NCR duly prepared and approved under the State

laws and in conformity with the Regional Plan; f) that in preparing the said

Master Plans, it has followed the norms specified under the Regional Plans;

g) that it has always provided a copy of the draft Master Plan of the towns to

the NCRPB for consideration and for seeking suggestions if any in respect

thereof - no objection had been received from the NCRPB in respect of any

of the Master Plans till date; and, h) that before finalizing any Master Plan,

objections from the public also are invited and the petitioner had never

raised objection to any of the Master Plans.

9. Upon the senior counsel for the petitioner urging before us that the

Master Plans prepared by the respondents no.3 to 6 States of the towns

falling in their respective sub-region are in contravention of the Regional

Plan, we had enquired from the senior counsel whether the territorial

jurisdiction of this Court extends to striking down Master Plans of towns

falling in the States of Uttar Pradesh, Haryana and Rajasthan and which

otherwise are beyond the territorial limits of this Court. No specific

allegation of any violations of the Regional Plan within the territorial

jurisdiction of this Court was highlighted. We in this regard also drew the

attention of the senior counsel for the petitioner to the fact that NCRPB Act

does not appear to extend the territorial jurisdiction of this Court to sub-

regions of the other participating States i.e. the States of Uttar Pradesh,

Haryana and Rajasthan even though falling in the NCR.

10. The senior counsel for the petitioner could not controvert the aforesaid

position and agreed that the challenge if any to the Master Plans of any of

the towns in the other participating States would have to be made in the

respective High Court of that State or in accordance with the laws of that

State. He however contended that it is within the jurisdiction of this Court to

issue directions to the NCRPB situated within the jurisdiction of this Court.

Attention in this regard is invited to Sections 7 to 9 and Section 29 of the

NCRPB Act.

11. Section 7 of the NCRPB Act detailing the functions of the NCRPB

inter alia describes one of functions as "enforcement and implementation of

the Regional Plan, Functional Plans, Sub-Regional Plans and Project Plans

through the participating States and the Union Territory" and "to ensure

proper and systematic programming by the participating States and the

Union Territory in regard to project formulation, determination of priorities

in the NCR or sub-regions and phasing of development of the NCR in

accordance with stages indicated in the Regional Plan". Similarly Section 8

while defining the powers of the NCRPB inter alia empowers the NCRPB to

call for reports and information from the participating States and the Union

Territory and to ensure the preparation, enforcement and implementation of

the Functional Plans and / or Sub-Regional Plans and to review the

implementation inter alia of the Regional Plan.

12. Section 9 describes the functions of the Planning Committee

constituted by the NCRPB (under Section 4 of the NCRPB Act) and which

are pari materia to the functions of the NCRPB. Section 29 dealing with

violation of Regional Plan, vide sub-section (1) thereof prohibits

development in the region inconsistent with the Regional Plan and vide sub-

section (2) empowers the NCRPB to direct the erring participating States /

Union Territory to stop violation of the Regional Plan and in the event of the

participating State / Union Territory not doing so further empowers the

NCRPB to withhold financial assistance to the concerned participating State.

13. In the aforesaid position of the statute, we have enquired from the

senior counsel for the petitioner that the directions to the NCRPB also

cannot be, to do anything other than what it is entitled to do under Section

29 of the Act. Though Sections 7 and 8 of the Act describe the functions /

empower the NCRPB to enforce and implement the Regional Plan but the

only machinery therefor placed at the disposal of the NCRPB is to issue

direction to the participating State / Union Territory and if such participating

State / Union Territory fails to abide thereby, to withhold the financial

assistance to it.

14. The counsel for the NCRPB states that NCRPB has already issued

communications in terms of Section 29(2) of the Act to the erring States as

detailed in the additional affidavit and assures that the NCRPB would

exercise all its powers to ensure compliance / implementation by the

participating States of the Regional Plan.

15. The senior counsel for the petitioner laments that the NCRPB has

been spurred into action only upon notice of this petition being issued and

prior thereto had failed to perform its duties / functions.

16. Though the importance and necessity of planned development, and

with which objective the NCRPB Act was enacted, cannot be undermined

but on account of territorial limits of our jurisdiction, our hands are tied. All

that we can direct in this petition is, for the NCRPB to be vigilant of the

developments in the NCR and to, wherever finds any violation, immediately

act in accordance with Section 29(2) of the Act. However since the NCRPB

Act itself does not empower the NCRPB to take any other coercive steps to

ensure compliance of the Regional Plan and / or to prevent violations

thereof, we are unable to issue any other directions. However we find that

Section 39 of the said Act empowers the Central Government to dissolve the

NCRPB if inter alia of the view that the NCRPB has failed in its objectives.

NCRPB would certainly be deemed to have failed in its objective if the

NCRPB either fails to keep a track of the developments in the region, with a

view to gauge and determine whether the same are in consonance with the

Regional Plan or not or if the NCRPB inspite of finding violations of the

Regional Plan fails to issue any directions to the erring State / Union

Territory or if the NCRPB notwithstanding the erring State / Union Territory

not complying with such directions does not withhold financial assistance to

such participating State or Union Territory or if notwithstanding all of this,

the participating States / Union Territory still proceed and continue with the

violations of the Regional Plan. Section 39 further provides that upon the

dissolution of the NCRPB, the Central Government would discharge the

functions entrusted under the Act to the NCRPB. We are of the opinion that

the Central Government, exercising powers of NCRPB would be in a better

position to ensure compliance thereof and would be justified in dissolving

the Board and taking over its functions unto itself.

17. We also implore the respondents no.3 to 6 States to appreciate and

realize the importance of the subject and which is in the common good of

the residents / citizens of all the participating States / Union Territories.

Neither of the participating State / Union Territory for its own short term

gains ought to indulge in violations of the Regional Plan. It cannot be lost

sight of that NCRPB Act has come into being only upon the Governments of

each of the participating States resolving to abide thereby and each of the

participating States is a constituent of the NCRPB. We do not see any

reason as to why any of the participating State should not abide by the

resolution of its respective Government in pursuance whereto the NCRPB

Act has come into force. We are constrained to make these observations

owing to the plea in the counter affidavits of some of the States, of land

being a State subject. We remind the said States that having consented to be

regulated by the NCRPB law, it is now not open to them to renege therefrom

and to contend that land is a State subject. The States should not forget that

they shall also be victims of the havoc resulting from violations of the

Regional Plan and anarchy in development.

18. We accordingly dispose of this petition,

A. by directing the NCRPB:

(i) to monitor and be vigilant of the developments at site in

the NCR and also in preparation of the Sub-Regional

Plans and the Master Plans of the towns falling in the

NCR;

(ii) to immediately, upon finding any violations thereof, take

action under Section 29(1) of the Act;

(iii) to regularly, from time to time, keep the Central

Government informed of the violations if any of the

Regional Plan;

B. by directing the Central Government to also stay abreast of the

functions of the NCRPB and to, if finds NCRPB unable to

fulfill its functions and purpose, dissolve the same and take

over its functions and ensure compliance of the Regional Plan;

C. by imploring the State Governments to, forgetting legalese and

technicalities, ensure that the purpose for which the NCRPB

was created is fulfilled in letter and spirit by ensuring the

developments in the respective sub-regions of the NCR are in

accordance with the Regional Plan and by fully cooperating

with the NCRPB in this respect.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

SEPTEMBER 30, 2014 „gsr‟