SOCIETY FOR SAFE STRUCTURES REGD. SOCIETY v. UOI & ORS.

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 % O R D E R 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 As per the petitioner, the Act in question needs to be either repealed or amended to bring it in line with the Constitution.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 74th 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 74th 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 MAY 13, 2009 NEERAJ KISHAN KAUL, J WP(C) No. 7173/2008 Pg.4 of 4