(Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari, to quash G.O.Ms.No.44 dated 02.04.1990 and G.O.Ms.No.49 dated 24.03.2003.)

N. Dilip Kumar, J.

1. This writ petition is filed with a prayer to issue a WRIT of CERTIORARI and quash G.O.Ms.No.44, Planning and Development (TC.II) Department, dated 02.04.1990 and G.O.Ms.No.49, Housing and Urban Development (UD2.2) Department, dated 24.03.2003. Under G.O.Ms.No.44 the Government constituted the 'Hill Area Conservation Authority'. Under G.O.Ms.No.49, the Government included and excluded certain areas/villages from the purview of the 'Hill Area Conservation Authority'.

2. The writ petitioner is a retired Sherishtadhar; he hails from Melagaram village, situated near the Municipal Town of Tenkasi; he got to know about the impugned Government orders through a Real Estate promoter, while he was scouting lands to build his retirement home; he felt that the requirement of getting the prior concurrence pursuant to the impugned Government Orders from 'Hill Area Conservation Authority' (in short HACA) is unnecessary, as it is only an empty formality adding to the burden of the citizens. In paragraph No.4 of the affidavit he had stated that the constitution of HACA is illegal and unconstitutional, because he feels so. He challenges the competence of the Government to issue these Government Orders. He has alleged discrimination in the manner of including and excluding certain areas/villages from the control of HACA. The writ petitioner was satisfied with the production of the impugned Government Orders alone in the paper book. No other document is produced by the petitioner.

3. The respondents had filed their counter affidavit and they had sought to defend their Orders on merits and by raising objections to the writ petition on the ground of delay and laches, as these Orders have been in force since 1990 for more than 36 years and interference after such a long time will lead to a serious setback in the attempt of the Government to protect the environment and ecologically sensitive areas.

4. The Government seeks to defend the impugned GOs' on the premise that they were issued in recognition of the need to preserve the ecological balance of hill and hill-adjacent regions and to regulate developmental activities therein and to cause these developments in a planned and sustainable manner; the authority is established with the objective of ensuring environmental protection while facilitating orderly and regulated development in ecologically sensitive areas; HACA is constituted in furtherance of the constitutional mandate vested on the STATE under Articles 48A and 51A(g) of the Constitution of India; these Government Orders are a way of discharging their duty to protect and improve the environment and safeguard forests, wildlife, and ecological balance; Inclusion of Tenkasi area under the control of HACA is for valid reasons, as the authority has identified and notified the areas falling under the purview of the HACA on the basis of topographical features, ecological sensitivity and upon receiving recommendations from the competent authorities, including the Directorate of Town and Country Planning and other expert bodies; such identification is only with an intention to ensure sustainable development, protect the environment and preserve the ecological integrity of the notified areas and there is no absolute bar or prohibition on developmental activities including the construction of any buildings. They claimed that the Government Order is only regulatory and not prohibitory.

5. It is further argued that it is a policy decision of the State, which is derived as a part of its responsibility to provide proper planned development and also to protect the environment and to prescribe a sustainable development and hence in the absence of patent illegality or perversity, this Court may not interfere in such policy decision of the State.

6. Insofar as the inclusion of areas covering Tenkasi and Coutralam and the villages thereunder, they contend that these villages are located on the eastern slopes and foothill regions of the Western Ghats and they form part of an environmentally sensitive zone requiring special planing and conservation measures. They claim that the Tenkasi-Courtallam region forms part of an ecologically sensitive foothills of the Western Ghats and it constitutes an important watershed and catchment area, which provides sustainability to several rivers and streams, including the famous Courtallam Falls. These areas are environmentally significant and are identified as vulnerable, warranting regulation of the developmental activities; and that this region of Tenkasi is experiencing increased developmental pressure because of tourism, commercial establishments, residential layouts and others and unregulated development in the hill slopes and foothill areas may lead to environmental degradation, landslides, reduction in groundwater recharge and also will have an adverse impact on the forest ecosystems; these villages are contiguous to reserve-forests and forest catchment areas forming part of the Western Ghats ecosystem; reference is made to the planning and technical expert opinions that were received before arriving at the conclusion to include Tenkasi-Courtallam area. They have justified the inclusion of some villages and exclusion of others on the premise that their classification was based on the geographical and ecological parameters and thus, constitute a valid and reasonable classification with a clear nexus to the object sought to be achieved.

7. Insofar as the claim regarding the reference to Hill Stations, the counter affidavit contends that the competency of HACA is not restricted only to hill stations but is also extended to ecologically fragile hill slopes, forest adjoining regions and watershed zones requiring conservation.

8. The authority had also sought to explain the manner of functioning of the HACA Committee. It states that the HACA Committee involves consultation with the District Level Officers of the Department of Geology and Mining, Agricultural Engineering Department and the District Forest Officer and in necessary cases also involves obtaining concurrence from the Principal Chief Conservator of Forests as well the 'No Objection Certificate' by the Revenue Divisional Officer. The authority contends that the petitioner is always at liberty to approach the HACA Committee, get its approval and proceed with any of his intended development works.

9. The counter affidavit also finds fault with the writ petitioner for failing to produce any scientific study, environmental reports, expert opinion or other technical material to substantiate the claim.

10. We heard Mr.TSR.Venkatramana, Learned Senior Counsel appearing for the petitioner and Mr.M.Mohaboob Athiff, learned Special Government Pleader for the respondents.

11. During the course of arguments, the respective counsels apart from reiterating the contentions in their respective pleadings specifically advanced arguments with regard to the inclusion of Tenkasi as one of the areas warranting prior approval from the HACA Committee. No serious argument, other than a feeble submission on the lack of legislative competence in reference to Tamil Nadu District Municipalities Act, 1920, was advanced on the side of the writ petitioner with regard to the validity of the first impugned Government Order i.e., G.O.Ms.No.44, Planning and Development (TC.II) Department, dated 02.04.1990, where under the HACA was constituted.

12. The learned Senior Counsel, during the course of his arguments, invited our attention to the definition of 'Hill Station' prescribed under the Tamil Nadu District Municipalities Act, 1920. He would submit that under the Tamil Nadu District Municipalities Act (Act 5/1920), there is no competency available with the Government of Tamil Nadu to constitute an authority in the name and style of HACA and in the absence of any source of legislation, such constitution is bad in law. The learned Senior Counsel raised grievances regarding the manner of inclusion and exclusion of areas from the control of HACA.

13. Per contra, the learned Special Government Pleader appearing for the respondents apart from reiterating the contentions in the pleadings would submit that Courtallam known for its famous water falls and the beautiful environment is sought to be preserved by bringing in the regulatory control in the form of compelling any development to have the prior concurrence of the HACA. He answered to the primary argument on the premise that HACA is constituted not under the Tamil Nadu District Municipalities Act, 1920, but under the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter Act 35/1972) and the entire edifice built by the learned Senior Counsel for the petitioner is without any legs. He invited our attention to Chapter III of Act 35/1972 providing for planning areas, planning authorities and plans. He seeks to sustain the Government Orders by tracing the powers to Article 162 of the Constitution of India.

14. We heard the respective counsels at length and have also perused the materials available on record.

15. We would like to first take up the preliminary objections of the learned Special Government Pleader to the entertainability of the writ petition, on the ground of delay and laches.

16. The challenge mounted in this writ petition is to the correctness of the action of the State Government of Tamil Nadu in creating a body in the name of 'Tamil Nadu Hill Areas Development Authority' in supplementation with the authorities constituted under the Tamil Nadu Act 35/1972 and various local body laws. Similarly there is a challenge to the subsequent Government Order in G.O.Ms.No.49, Housing and Urban Development (UD2.2) dated 24.03.2003 as well, whereby there is an exclusion of few villages/places and inclusion of other villages/places under the jurisdiction and control of the HACA.

17. It is true, as argued by the learned Special Government Pleader that these Government Orders had been in existence since 1990 and 2003 respectively and there is an inordinate delay of 24 and 11 years respectively in challenging these respective Government Orders. However, this objection of the Learned Special GP need not deter us. It is a long settled proposition that the challenge to the vires of a legislation or any promulgation of powers or creation of statutory bodies can be made at any point of time and there is no bar against challenging it, at a later stage. Delay and laches or even acquiescence need not be looked in to when such challenges are made. In this regard, we refer to the judgment of the Hon'ble Supreme Court in the case of Motor General Traders and another Vs. State of Andhra Pradesh and others reported in (1984) 1 SCC 222. The Apex Court has specifically held that mere lapse of time does not lend constitutionality to a provision which was otherwise bad and that "Time does not run in favour of legislation. If it is ultra vires, it cannot gain legal strength from long failure on the part of lawyers to perceive and set up its invalidity. Albeit, lateness in an attack upon the constitutionality of a statute is but a reason for exercising special caution in examining the arguments by which the attack is supported”. We are therefore of the conclusive opinion that in matters involving environmental issues and constitutional rights, the argument that the challenge to a legislation or a Government Order is made belatedly and therefore, the writ petition is hit by delay and laches cannot be a solitary ground to dismiss the writ petition.

18. In this case we are concerned with the constitution of an AUTHORITY with the objective of protecting the environment and safeguard ecologically sensitive areas. It concerns the property rights of individuals protected under Art.300-A of the Constitution of India, as the manner of enjoyment of their land is sought to be regulated under the impugned G.O.s'. The challenge mounted in this writ petition is serious and its outcome will have larger ramifications and impact on the environment and right to property. We reject the argument of the learned Special Government Pleader that this writ petition is liable to be dismissed on the ground of delay and laches.

19. We shall test the correctness of the impugned Government Orders on its merits. The learned Senior counsel invited our attention to the definition provided under the word 'Hill' under the Tamil Nadu District Municipalities Act, 1920, which is extracted herein below:-

                     "Hill station" means a place specified in Schedule II and includes any other place which may be notified by the [State Government] as a hill station;”

                     Schedule II provides the List of Hill Stations and they are,

                     i) Ootacamund, the Nilgiri District

                     ii) Coonoor, the Nilgiri District &

                     iii) Kodaikanal, (Madurai District) (sic – it now forms part of Dindigul District)”

Therefore, he would submit that Tenkasi, which is a town situated in the plains can never be brought under the purview of the HACA and accordingly, there is lack of competence for the State Government.

20. The learned Special Government Pleader would submit that the impugned Government Orders have been issued not in exercise of the powers available under the Tamil Nadu District Municipalities Act, 1920 or any other law governing the local bodies. Rather, they are traceable to the statutory provisions contained in the Tamil Nadu Town and Country Planning Act, 1971 (Act 35/1972) and the plenary powers of the State Executive under Article 162 of the Constitution.

21. A perusal of G.O.Ms.No.44, Planning and Development (TC.II) Department, dated 02.04.1990 reveals that the Government of Tamil Nadu has decided to constitute an Adhoc Authority with a proposal to give it a statutory basis in due course (emphasis supplied) and had accordingly constituted 'Tamil Nadu HACA'.

                     The said authority consists of the following members:-

                     “1.Chairman : A very senior of the I.A.S. to be appointed by the Government (Part-time)

                     2.Member Secretary : Senior I.A.S. Officer to be appointed by the Government

                     3.Six Office Member : Secretary, Planning and Development Department

                     4.-do- : Secretary, Finance Department

                     5.-do- : Secretary, Environment and Forest Department

                     6.-do- : Secretary, Agriculture Department

                     7.-do- : Secretary, Animal Husbandry Department

                     8.-do- : Secretary, Public Works Department

                     9.-do- : Secretary, Information and Tourism Department

                     10.-do- : Secretary, Housing and Urban Development Department

                     11.-do- : Secretary, Industries Department

                     12.-do- : Secretary, Rural Development Department

                     13.-do- : Secretary, Municipal Administration and Water Supply Department

                     14.-do- : Secretary, Defense Department

                     15.-do- : Chairman, Tamil nadu Water Supply and Drainage Board

                     16.-do- : Chairman, Electricity Board

                     17.-do- : Director of Town and Country Planning

                     18.-do- : Director of Horticulture

                     19.-do- : Collector, Nilgiris

                     20.-do- : Principal, Chief Conservator of Forests

                     21.-do- : Collector, Dindigul Anna District

The Government had also constituted an advisory council consisting of the following members:-

                     “1. The Vice-Chancellor, Tamil Nadu Agricultural University.

                     2.Chief Engineer, (Agri. Engg.) River Valley Project.

                     3.Chief Engineer, Soil Conservation.

                     4.Chief Engineer, Highways.

                     5.Chief Engineer, Buildings.

                     6.Chief Engineer, Irrigation.

                     7.Chief Engineer, General.

                     8.Director of Rural Development.

                     9.Director of Animal Husbandry.

                     10.Director of Geology & Mining.

                     11.One sitting Member of the Legislative Assembly, representing any one of the constituencies inthe Nilgiris District to be nominated for a two year term by the Government.

                     12.One sitting Member of the Legislative Assembly, representing any one of the constituencies in which one or more of the Hill taluks other than Nilgiris, to be nominated for a two year term by the Government.

                     13.One Chair person of any one of the Panchayat Unions or Municipalities in the Nilgiris areas to be nominated for a two year term by the Government.

                     14.Chairperson of the Kodaikanal Panchayat Union.

                     15.Four Environmentalists to be nominated for a two year term by the Government and one representing Non-Government voluntary Organisations

                     19.connected with environment and ecology to be nominated for a two year term by the Government.

                     20.The Authority may co-opt. any District Collector having jurisdiction over the Hill taluks or any other official or non-official as Associate Member of Invitee or Special Invitee.”

The Government has also prescribed the functions to be performed by the HACA and it is provided as under:-

                     “1.Function listed in Section 12 of the Town and Country Planning Aot, 1971 and

                     2(i) To prepare an environmental report of the Hill area and keep it updated every three years.

                     ii) To undertake-continual monitoring of ecological parameters.

                     iii) To prepare a structural development plan indicating the carrying limits of the hills and propose alternatives to the hill population where reasonable economical development can not be locally provided without serious over all damage;

                     iv) To draw up guidelines for development of hills and Compulsorily require prior clearance for any development listed in Annexure IV altogether.

                     v) To advise Government on the Policy and strategy for all development activities in the hills.

                     vi) To issue such directions as necessary to local authorities to enable the compliance and have necessary powers delegated to it under the Municipal and Panchayat Acts; and

                     vii) To prohibit expenditure by any Government department or undertaking on any plan or scheme not cleared by it in that area and require all budgetary provisions (Plan and not plan) by all Departments are only for schemes cleared by it.”

22. A careful reading of the Government Order more particularly paragraph No.13 indicates that pending extension of the provisions of the Town and Country Planning Act, 1971 to the Hill Areas, the Government upon constitution of the HACA has made it compulsory for these local authorities to get the expert opinion of the HACA in respect of all development programmes undertaken by them within the areas listed in Annexure I.

23. The HACA is created as an expert body to ensure that the local authorities get the prior concurrence of such an expert body before sanctioning the mentioned developmental activities, and thus, ensuring the compliance of the development plans in consonance with the ecological preservation. It is created more in the nature of an environmental oversight Committee. It is certainly not a Planning Permit Authority, but an Environmental Prerequisite Expert Body set up to guide the local authorities before they exercise their legal powers to sanction development plan or building plan. The creation of HACA is not an attempt to pass a localized regulation; it is a macro level State policy decision to address ecological degradation across the identified areas including hills.

24. The impugned Government Orders issued in exercise of the States plenary power under Article 162 are intended only to supplement the statutory law and it does not supplant it. It is only creating a complementary body to the local planning authorities and the other planning authorities framed under Act 35/1972 and there is no overriding or superseding powers provided to HACA. It is created only as an expert body with an intention to protect and preserve the environment and ecology. HACA is certainly not an authority mentioned in Section 11 of the Tamil Nadu Town and Country Planning Act, 1971 (Act 35/1972). It is an independent body created under the impugned GO 44 to supplement the functions of these authorities constituted under Section 11 of the Tamil Nadu Town and Country Planning Act, 1971 (Act 35/1972). The various plan sanctioning authorities in the State of Tamil Nadu varies across the different levels of local bodies, viz., Village Panchayats, Town Panchayats, Municipalities, Municipal Corporations and the Town and Country Planning authorities under the Tamil Nadu Town and Country Planning Act, 1971 (Act 35/1972). These plan sanctioning authorities are not well conversant and are not, at all times, equipped to deal with the impact of the development, that are sought to be sanctioned by them, upon the environment and ecology and hence this vacuum of expert domain is being filled up by creating HACA, under the impugned GO 44. The HACA Committee does not prohibit development, it only regulates the developmental activities.

25. The Executive of the State is competent to exercises powers under Article 162 of the Constitution of India to fill up the gaps in the prevalent statutory schemes by issuing various Government Orders. The executive power is coterminous with the legislative powers. If the State Legislature has jurisdiction to enact law with respect to a subject, the State Executive is having the corollary power to make regulations and issue Government Orders with respect to the said subject, of course, within the constitutional limitations. The Hon'ble Apex Court as early as in 1955 in the judgment delivered in Rai Sahib Ram Jawaya Kapur and others vs the State of Punjab reported in (1955) 1 SCC 553 has elaborately dealt with the nature and scope of Article 162 of the Constitution of India. It is specifically held that the language of Article 162 clearly indicates that the powers of the State Executive extends to matters, upon which the State legislature is competent to legislate. Useful reference can be placed upon the following judgments of the Hon'ble Apex Court:-

                     “i) B.N.Nagarajan and others Vs. State of Mysore and others reported in AIR 1966 SC 1942

                     ii) State of Andhra Pradesh Vs. Lavu Narendranath reported in (1971) 1 SCC 607

                     iii) P.H.Paul Manoj Pandian Vs. P.Veldurai reported in (2011) 5 SCC 214”

26. The matters relating to planning, development and regulation of such developments upon any land is largely governed by the Tamil Nadu Town and Country Planning Act, 1971 (Act 35/1972). The impugned GO is the way in which the GAP between the competing rights of the land owner and the general public to have a protected environment is balanced. There is a recognized duty upon the State to protect and improve the environment as envisaged under Article 48A of the Constitution of India. Entry 18 under the State list enables the State to enact laws on the subject 'LAND' and 'LAND IMPROVEMENT'. It reads as under :-

                     “List II Entry 18: Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.”

Thus, the availability of legislative competence/authority with the State of TN to enact laws on this subject is beyond any cavil of doubt.

27. Once such power falls within the domain of the Executive, it would necessarily fall as corollary that the said plenary power can very well be exercised to constitute an expert body in the form of an ADHOC Committee, till the framing of necessary statutory Rules, with an intention to guide the planning and sanctioning authorities under the Town and Country Planning Act, 1971 and the various local body laws.

28. We do not find any lack of legislative competence with the State in promulgating these Government Orders. However, it is not out of place to mention that what was constituted as an Adhoc Authority before 36 years in 1990 continues to remain as an adhoc auhtority. The State shall have a relook upon the prevalent scenario and ensure the effective functioning of the HACA.

29. One of the restrictions while examining such executive power under Article 162 of the Constitution of India is that when there is a statutory Rule or an Act on the same subject matter, the executive must abide by that Act or Rule and it cannot in exercise of its executive power under Article 162 of the Constitution of India, ignore or act contrary to that Rule or Act.

30. In this case the petitioner has not shown any conflicting provision in any of the statutory enactments. The object of establishing the ADHOC Committee of HACA is only a measure of the executive, to fill up the gap in the prevalent planning laws and local laws and to supplement the Rules. It does not contain any instructions, which are not consistent with the available Act and Rules.

31. The impugned orders are based on the recommendations made by the experts and no material is brought on record by the writ petitioner to substantiate that the Executive had not applied its mind to the relevant questions or that the classification by including or excluding certain areas based on the various geological and other factors. In the absence of any evidence to the contrary, such State action cannot be characterized as arbitrary or unreasonable or not founded on tangible materials without having a rational nexus with the object sought to be achieved.

32. It is the person assailing inclusion/exclusion, which would amount to be a form of classification, to discharge the heavy burden of showing that such classification is invalid, because it is unjust and unreasonable in its consequences. In respect of these matters, the writ petitioner had not furnished any material and in such an event, it is very difficult for us sitting under Article 226 of the Constitution of India to exercise our powers of judicial review.

33. It is well settled that the Courts in exercise of their power of judicial review do not ordinarily interfere with the policy decision of the Executive, unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness, unfairness, irrationality and perversity. It is neither within the domain of the Court nor within the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether the public policy can be evolved in a different dimension.

34. The Court will not ordinarily interfere in the decisions of the authority with regard to a policy matter, which is taken based on the expert knowledge of persons concerned. Useful reference can be made to the decisions of the Hon'ble Apex Court in Jacob Puliyel Vs. Union of India and others reported in (2024) 17 SCC 485 and Shri Sitaram Sugar Company Limited and another Vs. Union of India and others reported in (1990) 3 SCC 223.

35. It is a policy decision of the State to have an expert body, like HACA. The expert's decision to include an area or exclude an area is not demonstrated before us to be ill-logical. The identification and notification of areas falling under the purview of HACA have been claimed to have been carried out on the basis of the topographical features, ecological sensitivity and the recommendation of the competent authorities, including the Director of Town and Country Planning and other expert bodies. When such an identification has been undertaken with a view to ensure sustainable development, environmental protection and to preserve the ecological integrity of the notified areas, it would not be proper on the part of this Court to disturb the same.

36. The respondent has furnished sufficient reasons to include Tenkasi under the areas that are regulated by HACA. It is specifically stated that the developmental activities undertaken in Tenkasi will have an indirect impact on the adjoining environmental sensitive areas, as the increased urbanization will cause pressure on the natural resources and the traffic generation along with infrastructure expansion. Therefore, the expert body has opined that the town of Tenkasi shall be brought behind the regulatory ambit of HACA and since it is a matter of policy and planning based on the environmental consideration, we do not want to interfere with such conclusion in the absence of any other contravening materials. Therefore, the vague assertion that Tenkasi is not a hill area and therefore, cannot be brought under the purview of HACA is rejected.

37. Though we are well aware of the environmental impact, still we are not experts in environmental issues, soil slopes, landslides management, Planned and Sustainable development. When the Government sets up a specialized multi disciplinary expert panel, we in our wisdom would certainly refrain from interfering on the specious plea that there is arbitrary inclusion of the Town of Tenkasi to the midst of places that will be covered under the scrutiny of HACA.

38. One another perspective, through which the subject issue can be looked at is the PUBLIC TRUST DOCTRINE. The State is the trustee of all natural resources. It has an inherent, non-negotiable legal obligation to protect these lands. This doctrine enjoins the State player to protect the resources for the present and future generations. It is essential to protect the environment, ecology and natural resources and ensure that the human activities are in tune with nature and ecology. Whenever any new building is constructed or any other development takes place, even in a private property, it has an impact on the surrounding environment.

39. We reject the argument advanced by the learned Senior Counsel for the petitioner that the HACA can be restricted only to hill stations provided under the Tamil Nadu District Municipalities Act. The District Municipalities Act has no significance to the issue in hand. Hence, the said argument cannot be countenanced at all and it is rejected.

40. We do not find any substantial grounds to interfere with the impugned Government Orders. Accordingly, the Writ Petition stands dismissed. No costs.