SHRAMJEEVI COOPERATIVE HOUSING SOCIETY LTD. versus DINESH JOSHI & ORS. on 22 March 2023

1. Special leave granted in SLP (C) No. 12945/2018. In all theseappeals, all respondents were served and had entered appearance. Theoriginal applicant before the National Green Tribunal (hereafter ‘NGT’)too had been served; an affidavit was filed on his behalf. He was however,not represented on the date of hearing. With consent of counsel for theparties, all appeals were heard finally.

2. These appeals, under Section 22 of the National Green TribunalAct, 2010 (hereafter ‘NGT Act’) and appeals by special leave[1], questionvarious orders[2] of the National Green Tribunal which directed that theNagar Palika Parishad, Mandsaur (hereafter ‘Parishad’), should desistfrom granting sanction to develop and construct properties in the vicinityof the “Teliya Talab” (hereafter ‘talab’), a man-made lake or reservoirin the city of Mandsaur.

3. The original applicant, Dinesh Joshi, preferred an applicationbefore the Central Bench of NGT, seeking directions for protection andconservation of the talab, alleging that construction permissions hadbeen granted by the authorities, i.e., the Parishad and the State, to variousprivate parties, and allowed construction upon a water body, resulting indepletion of the lake’s area, thus reducing availability of surface water.It was also further alleged that untreated domestic waste and industrialeffluents were being discharged or dumped into the talab. The Parishadand the Town and Country Planning Department (hereafter ‘TCD’) filedreplies, upon being issued notices.

4. The NGT, by its order dated 17.02.2016 (referred to hereafteras ‘the main order’) took note of the Parishad’s reply, as well as that of1 Against order dated 10.7.2018 in WP No. 3484/2018 (PIL) of the Madhya PradeshHigh Court 2 Dated 17.02.2016 in OA No. 100/2015; dated 19.04.2016 in RA No. 3/2016; dated21.09.2020 in OA No. 17/2018; dated 18.11.2020 in RA No. 8 & 9/2020 and orderdated 25.11.2020 in MA Nos. 9, 11 & 14/2020

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Athe TCD and relied on a ‘revenue trace map’ to say that the “MaximumWater Line” (hereafter ‘MWL’) had been shown and the land overwhich construction permission was given, i.e., Khasra. No. 1238, fellwithin the “Full Water Line” (hereafter ‘FWL’) as well as the MWL. Itwas observed that if the water was allowed to reach the maximumlevel, the lands would be submerged, as according to the NGT, they fellBwithin the catchment area.

5. The appellants (except the appellant in the appeal by specialleave) preferred review petitions, pointing to the fact that they had beengiven permission by the Parishad much earlier, and also drawing to thenotice of the NGT that a Development Plan had been finally sanctionedCin 2003, in terms of which a green area abutted the talab, beyond whicha public road had been sanctioned and built, and further that their landslay beyond this road. It was argued that in these circumstances, theNGT should review its order, as they were not heard before the mainorder was made.

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6. The appellant in C.A. No. 5328-29/2016 (hereafter called ‘thesociety’) additionally urged that the lands owned by it were allotted along time earlier to it, and that its use for construction of residential unitsto its members (who were workers, belonging to the poorer segments ofsociety) became a subject matter of a previous litigation, whereby theEstate authorities had cancelled the conversion certificate, on the groundthat the lands fell in the submergence area. The society filed a suit,which was decreed by the trial court[3]; the state’s appeal was dismissed[4]and its second appeal before the Madhya Pradesh High Court, met thesame fate, i.e., dismissal[5]. It was also pointed out that the special leavepetition filed by the State too, was dismissed[6] by this court.F

7. The NGT, however, dismissed all the review petitions before it,by the impugned orders. On the basis of certain representations andletters, the Collector, District Mandsaur constituted a committee of sevenofficials from the revenue department for the purposes of investigatingand submitting the latest report with respect to the boundaries of the G

3 By order dated 24.12.1994 passed by the Civil Judge First Class, Mandsaur in CS No.524A/88

4 By order dated 18.05.2001 passed by the Additional District Judge in RCA No. 80A/2001

5 By order dated 23.06.2011 of the Madhya Pradesh High Court in SA No. 415/20016 By order dated 08.02.2016 in SLP (CC) No. 2066/2016

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talab. Based upon the report received, the Collector issued an order on06.06.2017. The material portion of that order reads as follows:

“the aforesaid investigation team got the demarcation donevide the Land Record District Mandsaur Letter Number 1316/MP/2016 dated 18-05-2016 and from team comprising 21officers/employees on 04-06-2016 and 06-06-2016 andpunching, report and map were submitted. As per thePanchnama, and Report and for clarifying of the facts/removal of errors mentioned in the application concerned withthe Applicant regarding MWL of Telia Talab, situated at KabaMandsaur the Demarcation team notified the MWL limits ofTelia talab to the employees of Municipal Council and WaterResources at the spot and permanent boundary signs wereestablished, which are mentioned in the map with Green ink.After MWL signs, the colonies are not in submerged area.The survey numbers mentioned above the green ink of themap are recognised beyond the limits of MWL. After markingMWL signs, the permission of construction can be granted.

I examined the case and minutely perused the aforesaidinvestigation report, Panchnama, and map submitted by theCommittee constituted by this Court. Being consented (sicsatisfied) with the report of investigation team and as per theMandsaur Development Scheme 2001, the MWL. (MaximumWater Level) Limit signs which are mentioned in Green inkand the demarcation map of MWL limits of Telia Talab in thereport of Investigation Team, as the colonies situated outsidethe Signs are not submerged and hence, constructionpermission can be given to the colonies situated outside thesigns. This map shall be a part of this order.”

8. The report submitted to the Collector and order made by himbecame the subject matter of controversy before the NGT. An application(No. 17/2018), objecting to the correction of the submergence area andthe MWL, was filed by the applicant who moved the earlier O.A. No.100/2015. The applicant’s grievance was that the NGT had prohibitedany construction in the water bound area and within limits of the MWLand FWL of the talab. The argument made out was that the map preparedsubsequently and taken on record by the Collector’s order dated06.06.2017, could not be sustained. The Madhya Pradesh Pollution

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SUPREME COURT REPORTS

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SUPREME COURT REPORTS

AControl Board in its reply stated that the alteration of the boundaries ofthe talab did not fall within its jurisdiction. It was stated, however, thatthe Board had issued notice to the Parishad from time to time to complywith provisions of the Water (Prevention and Control of Pollution) Act1974 (hereafter ‘Water Act’). This was recorded by the NGT in itsorder. It was further recorded that the Collector’s team had inspectedBthe area and found that 10 colonies were existing within 3 kilometresfrom the talab, and further that untreated sewage water was beingdischarged in it. By its order dated 21.09.2020 (hereafter ‘second order’)the NGT severely chastised the State, the Parishad, and district revenueauthorities, and directed them to immediately proceed to demarcate theCwater body and the area which was previously within the area of thewater body, to ensure that it was not reduced in any manner. The NGTalso prohibited grant of permission for construction without thedemarcation of the area of the water bodies, and up to the MWL. Itfurther directed that the entire Khasra No. 1238 should be protectedand that the water body should not be disturbed.D

Contentions of counsel for the parties

9. Ms. Meenakshi Arora, learned senior counsel appearing forthe society, argued that the NGT’s impugned orders are erroneous ontwo counts. Firstly, that it did not consider or deal with the fact that theEportions of KhasraNo.1238 was purchased by the society over fourdecades ago, with the hard-earned money of its members, who werelowly paid workers. They had faced litigation for over two and a halfdecades, when the conversion certificate issued to them, was cancelledon the ground that the lands fell within the submergence area(Doobkshetra). The society was constrained to file a suit for perpetualFinjunction, where the state was impleaded; the state relied on thedeposition of an engineer from its irrigation department, who reiteratedits stand. However, he was unable to point to any document or materialin support of the state’s argument that the land fell within the submergencearea. The state’s appeal was rejected; the first appellate court noted theGstate’s stand, which was contradictory, i.e., that the lands fell in thesubmergence area, and at the same time, that they were required forsome construction. The state’s second appeal, and special leave petitionwere also rejected.

10. Ms. Arora urged, as the second limb of her submissions, thatHthe doctrine of finality of judgement and res judicata applied to the facts of this case. The principle plays a vital role as it is based on asound firm principle of public policy. The doctrine of finality has evolvedwith the objective of preventing unnecessary litigation under the colourand pretence of law. It also ensures an end to litigation, in public interest.The state, and all its agencies were bound by the decree of the courts,which had been confirmed up to this court. Learned counsel submittedthat the order dismissing the special leave petition also held that thejudgment of the High Court was justified.

11. Mr. A.N.S. Nadkarni and Mr. P.C. Sen, learned senior counsels,Mr. Sumeer Sodhi, Ms. Pragati Neekhra, Mr. Amit Pai, and other counsel,appeared for other appellants. Mr. Brijendra Chahar, learned seniorcounsel, and Mr. Yogeshwaran, learned Additional Advocate General(AAG) for Madhya Pradesh, appeared for the TCD and the Parishadrespectively; and Mr. Saurabh Mishra, AAG, appeared for the state ofMadhya Pradesh. They supported the submissions on behalf of the society,and urged that the NGT fell into serious error in not considering that theTCD had published the Development/Master Plan in 2001, which wasfinally approved on 12.05.2003. This forms the basis for development ofMandsaur. The existence of the talab, its boundaries, and the extent ofits catchment area, were made known. No one objected to the plan,which designated a green area immediately adjoining the talab, afterwhich a road was permitted. The development of residences and colonieswas beyond this road. These facts were known to the general public. Inthis background, the applicant before the NGT persuaded it to issueorders based on a “trace” map, which had not been finalised.

12. Learned counsel submitted that after much inter-departmentalcorrespondence between the Sub-Divisional Officer of Mandsaur, theParishad and the Water Resources Department, as well as the Collector,finally a letter was addressed by the Sub-Divisional Officer, to theCollector, on 31.01.2022, which disclosed that the map shown to theNGT, based on which, it made its orders was “not originally a map, but a proposed map to depict a situationif the FTL of Teliya Talab were to be increased by one feetand which only bore the signature of Shri. L.N. Badgotia, theSub-Divisional Officer of the Water Resources Department.This Map does not bear the signatures of any authorizedRevenue Officer. The Map that was presented by Shri SantoshRathore along with his request letter is in two pages and AB

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Adescribes all categories of land under the submergence areaand which was presented to the then collector on 03.07.2021and the factual description was presented to the then Collector.The then Collector then put the issue up for discussion but hewas transferred and because of which the discussion couldnot take place.B

On the basis of the various communications exchangedbetween the Chief Municipal Officer, Nagar PalikaMandsaur, and the Water Resources Department, what emergesclearly is that Map presented by Nagar Palika Parishadbefore the Hon’ble National Green Tribunal (NGT) which wasCsinged by Shri. L.N. Badgotia, Sub Divisional Officer, of theWater Resources Department, is not the original Map but onlyis descriptive of the proposal in the year 2002 to increase theheight of the dam by one feet. The Map presented to me on30.07.2021 by the Water Resources Department bears theDsignatures of the Sub-Engineer, Water Resources Department,Tehsildar, Revenue Inspector and Halka Patwari and this Mapalso has a clear description of all of the areas that will comeunder the FTL and MWL and hence this is the original map.”

13. It is pointed out that the relevant correspondence between theEvarious authorities and bodies, relating to the map furnished to the NGT,and its accuracy, as well as the instructions issued on it, have been placedon record by affidavit dated 01.11.2022, sworn to by the Chief Officerof the Parishad.

14. Learned counsel also submit that the very same issue, aboutFthe boundaries of the Teliya Talab is again the subject matter of anotherlitigation before the NGT (i.e., Abhay Kumar Akolkar v. State of MP,O.A. No. 70/2022) in which the tribunal is cognizant of the presentappeals.

15. The contesting respondents (applicants in the originalGapplications before NGT), i.e., Mr. Dinesh Joshi and Mr. Alok Sharma,were not represented at the time of hearing. However, they had filedreplies and counter affidavits to some of the appeals. Their consistentstand is that the NGT’s orders do not call for interference. It is urged bythem, the map of 1973-74, relied on by the NGT, was supplied by theParishad, which cannot now resile from its stand. It is also stated thatH

the existence of the Development Plan, was a matter of record, and theNGT was aware of it. Moreover, it is pointed out that the Parishad didnot deny that untreated waste was being dumped into the talab.

Analysis and Conclusions

16. A plain reading of the main order by the NGT shows that itwent by the pleadings, and proceeded to pass orders on the basis of thetrace map produced before it. The NGT was aware that the applicantwished to interdict development in the vicinity of the talab, for whichsanction had been granted. Yet, it did not feel the necessity of seekingparticulars from the parties before it, and whether any parties werelikely to be affected by its orders. As a judicial tribunal, bound by principlesof natural justice, it ought to have impleaded, or at least issued a publicnotice, about the pendency of litigation, and sought intervention of thoselikely to be adversely affected. Its omission to take this step, has resultedin prejudice to all the appellants before this court, who were faced withdrastic and serious consequences, because the sanction for developmentor construction upon the lands owned, purchased or developed by them,immediately became out of bounds.

17. Section 19 of the NGT Act pertinently provides as follows:

“19. Procedure and powers of Tribunal— (1) The Tribunalshall not be bound by the procedure laid down by the Codeof Civil Procedure, 1908 (5 of 1908) but shall be guided bythe principles of natural justice.

(2) Subject to the provisions of this Act, the Tribunal shallhave power to regulate its own procedure.

(3) The Tribunal shall also not be bound by the rules ofevidence contained in the Indian Evidence Act, 1872 (1 of1872).

(4) The Tribunal shall have, for the purposes of dischargingits functions under this Act, the same powers as are vested ina civil court under the Code of Civil Procedure, 1908 (5 of1908), while trying a suit, in respect of the following matters,namely—

(a) summoning and enforcing the attendance of any personand examining him on oath; A

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A(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of Sections 123 and 124 of theIndian Evidence Act, 1872 (1 of 1872), requisitioning anypublic record or document or copy of such record or documentBfrom any office; (e) issuing commissions for the examination of witnesses ordocuments; (f) reviewing its decision; C(g) dismissing an application for default or deciding it exparte; (h) setting aside any order of dismissal of any application fordefault or any order passed by it ex parte;

(i) pass an interim order (including granting an injunction orDstay) after providing the parties concerned an opportunity tobe heard, on any application made or appeal filed under thisAct; (j) pass an order requiring any person to cease and desistfrom committing or causing any violation of any enactmentEspecified in Schedule I; (k) any other matter which may be prescribed.

(5) All proceedings before the Tribunal shall be deemed to bethe judicial proceedings within the meaning of Sections 193,F219 and 228 for the purposes of Section 196 of the IndianPenal Code (45 of 1860) and the Tribunal shall be deemed tobe a civil court for the purposes of Section 195 and ChapterXXVI of the Code of Criminal Procedure, 1973 (2 of 1974).”

18. A plain reading of Section 19 clarifies that though not boundGby the Code of Civil Procedure, the NGT is nevertheless bound byprinciples of natural justice. It is a judicial tribunal, exclusively taskedwith the duty of deciding environmental disputes and causes; its remitincludes wide ranging powers. In these circumstances, the NGT had totake into consideration that the nature of its directions meant that allthose living or owning land near the talab, who had obtained sanctionsHfrom the Parishad and the TCD, were condemned unheard.

19. The second aspect is that when some of the appellantsapproached NGT, in review proceedings, those review petitions weresummarily rejected. Again, these orders cannot be sustained, becausethey do not disclose any application of mind to the existence of theDevelopment Plan, which had permitted development of the disputedareas; the orders in review also do not advert to or deal with the peculiarcircumstances, concerning the society’s plot, on which a previous litigationhad been fought, ending in a decree against the state. Before this court,the Parishad has categorically deposed, and produced several documents,in support of its stand that the map placed before, and considered by theNGT, was only a draft, or proposal to increase the area of the talab.

20. It is too well settled that parties are bound by the principle offinality, which results in a decree by a competent court, acquiring a finaland binding nature, especially where it is confirmed concurrently andupheld by the highest court of the land. In Pradeep Kumar Maskara v.State of West Bengal[7] this aspect was stated, in the following terms:

“24. At the very outset, we are of the view that the Tribunalhas no jurisdiction to differ with the decision given by theCalcutta High Court in the writ petition filed by the appellants.The Tribunal further committed grave error in following thedecision in Ganga Dhar Singh case [Ganga DharSingh v. State of W.B., (1997) 2 CHN 140] treating it to be aDivision Bench judgment of the Calcutta High Court whenas a matter of fact the decision in Ganga Dhar Singhcase [Ganga Dhar Singh v. State of W.B., (1997) 2 CHN 140]was decided by a Single Judge of the High Court. Even thejudgment passed [Pradip Kumar Maskara v. State of W.B.,Civil Revision No. 3465 (W) of 1984, decided on 8-11-1992(Cal)] in the appellant’s writ petition filed in 1984 was neitherconsidered nor distinguished.

25. In the background of these facts, in our consideredopinion, when the judgment rendered by the Calcutta HighCourt in the case of the appellants and the said decisionhaving not been quashed or set aside by a larger Bench ofthe High Court or by this Court, the Tribunal ought not tohave refused to follow the order of the High Court.

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A26. It is well settled that even if the decision on a question oflaw has been reversed or modified by subsequent decision ofa superior court in any other case it shall not be a ground forreview of such judgment merely because a subsequentjudgment of the Single Judge has taken contrary view. Thatdoes not confer jurisdiction upon the Tribunal to ignore theBjudgment and direction of the High Court given in the caseof the appellants.”

21. This court has also ruled, in Lekh Raj v. Ranjit Singh[8] thatsubsequent changes in law, cannot divest parties of the benefit derivedby them in a litigation that attained finality, through a decree:C

“21. If the rights of the parties had already been crystallisedthen, in our opinion, subsequent change in law would nottake away such rights which had attained finality due to liscoming to an end inter se the parties prior to such change.”

D22. In another judgment, pertinent to the facts of this case, thestate invoked its revisional power to nullify the effect of orders whichhad attained finality and were inuring in favour of private parties. It washeld that such action was without authority of law in IbrahimpatnamTaluk Vyavasaya Coolie Sangham v. K. Suresh Reddy[9], where thecourt considered the provisions of the Andhra Pradesh (Telangana Area)ETenancy and Agricultural Lands Act, 1950. The provision in Section 50-B(4) empowered the statutory authority to exercise suo motu revisionalpower at any time. The Court held that:

“9. … Use of the words ‘at any time’ in sub-section (4) ofSection 50-B of the Act only indicates that no specific periodFof limitation is prescribed within which the suo motu powercould be exercised reckoning or starting from a particulardate advisedly and contextually. Exercise of suo motu powerdepended on facts and circumstances of each case. In casesof fraud, this power could be exercised within a reasonableGtime from the date of detection or discovery of fraud. Whileexercising such power, several factors need to be kept in mindsuch as effect on the rights of the third parties over theimmovable property due to passage of considerable time,

9 (2003) 7 SCC 667: [2003] Supp 2 SCR 698

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SHRAMJEEVI COOPERATIVE HOUSING SOCIETY LTD. v.DINESH JOSHI & ORS. [S. RAVINDRA BHAT, J.]

change of hands by subsequent bona fide transfers, the ordersattaining finality under the provisions of other Acts (such asthe Land Ceiling Act). … Use of the words ‘at any time’ insub-section (4) of Section 50-B of the Act cannot be rigidlyread letter by letter. It must be read and construed contextuallyand reasonably. If one has to simply proceed on the basis ofthe dictionary meaning of the words ‘at any time’, the suomotu power under sub-section (4) of Section 50-B of the Actcould be exercised even after decades and then it would leadto anomalous position leading to uncertainty andcomplications seriously affecting the rights of the parties, thattoo, over immovable properties. Orders attaining finality andcertainty of the rights of the parties accrued in the light ofthe orders passed must have sanctity. Exercise of suo motupower ‘at any time’ only means that no specific period suchas days, months or years are not (sic) prescribed reckoningfrom a particular date. But that does not mean that ‘at anytime’ should be unguided and arbitrary. In this view, ‘at anytime’ must be understood as within a reasonable timedepending on the facts and circumstances of each case in theabsence of prescribed period of limitation.”

The above judgment was followed in State of AndhraPradesh v. T. Yadagiri Reddy[10] and Sulochana ChandrakantGalande v. Pune Municipal Transport[11].

23. In view of the above, it is held that the argument of the society(i.e., appellant in C.A. No. 5328-29/2016) is merited. The judgments ofthe courts in its favour, clearly reveal that the 1.4 hectares owned by it,for which conversion (from agricultural to non-agricultural use) wassanctioned, was sought to be cancelled, on the ground that the land, fellwithin the submergence area. The history of the previous litigation –which the NGT was seized with – reveals that the land forming part ofKhasra No. 1248, owned by the society, was directly in issue in a litigationto which the state was a party, and in which it lost. That decree wasaffirmed by all the courts. When the NGT was made aware of this fact,it chose to ignore it. Without a review, or any known process by which adecree concerning the same facts could be re-opened, the NGT could

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Anot have rejected the society’s contentions. The society’s appeal,therefore, requires to succeed.

24. As regards to the other appeals, this court notes that the NGTdid not advert to any facts, such as the existence of the Development/Master Plan, or the green area, and the road, after which the plots wereBsought to be developed, although these were expressly brought to itsnotice, in the review proceedings. Furthermore, this court has also beenappraised of the fact that the inquiry by the revenue authorities, after thesecond order was made, has now resulted in awareness on the part ofthe Collector, and the Parishad, that the map on which the NGT basedits main order, was only a proposal and not a final map. Moreover, aCfresh litigation (O.A. No. 70/2022) is also pending. In these circumstances,it would be appropriate that the other appeals too are allowed, and theNGT considers the issue, afresh in O.A. No. 70/2022, and ensures thatthe precise boundaries of the talab are ascertained by a properlyconstituted committee.

D25. In view of the above, the following directions are issued:

(a) C.A. No. 5328-29/2016 is allowed. The society’s rights, title,and interest in respect of the land purchased by it, for whichconstruction permission was granted, and in respect of whichdecree was made by the Civil Judge First Class, Mandsaur inEC.S. No. 524A/88 dated 24.12.1994, ultimately confirmed by theMadhya Pradesh High Court in S.A. No. 415/2001, by order dated23.06.2011 shall not be disturbed or affected, in any manner.

(b) All other appeals are allowed with the direction that the NGTshall consider the question of precise boundaries of the talab,Fafter considering the report of a committee, in the pendingproceedings, i.e., O.A. No. 70/2022. The appellants in theseproceedings are at liberty to implead themselves in the saidproceeding before the NGT, which shall hear them, and considertheir submissions, before rendering a final order.

G(c) The committee referred to in (b) above shall consist ofcompetent officers nominated by

(i) the Collector, from the Revenue Department;

(ii) the Chief Officer/CEO/Chairman TCD;

(iii) the Chairman/President of the Parishad; and H

(iv) by the competent official of the Department of WaterResources, nominated by the Principal Secretary.

(d) The above officials nominated by the respective named officers,shall inspect the area, and also consider the record. On the basisof the inspection and observation of the record, they shall submita report to the NGT; copies of such report shall be made availableto all parties. The NGT shall thereafter hear all parties, and consider their submissions, while rendering final order.

26. The appeals are allowed, and pending applications, if any, aredisposed of, in the above terms, without order on costs.

Divya Pandey

Appeals allowed.

(Assisted by : Shevali Monga, LCRA)

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