Shramjeevi Cooperative Housing Society Ltd. vs Dinesh Joshi and Others

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 5328-5329 OF 2016

SHRAMJEEVI COOPERATIVE HOUSING SOCIETY LTD. …APPELLANT(S) VERSUS

DINESH JOSHI & ORS. …RESPONDENT(S)

WITH

CIVIL APPEAL NO. 1877 OF 2023 (@ SPECIAL LEAVE PETITION (CIVIL) NO(S). 12945 OF 2019)

CIVIL APPEAL NO(S). 409-410 OF 2021

CIVIL APPEAL NO(S). 407-408 OF 2021

CIVIL APPEAL NO(S). 2370-2371 OF 2021

CIVIL APPEAL NO(S). 10239 OF 2018

JUDGMENT

S. RAVINDRA BHAT, J.

1. Signature Not Verified Special leave granted in SLP (C) No. 12945/2018. In all these appeals, all Digitally signed by NEETA SAPRA respondents were served and had entered appearance. The original applicant Date: 2023.03.22 17:21:11 IST Reason:

before the National Green Tribunal (hereafter ‘NGT’) too had been served; an 2

affidavit was filed on his behalf. He was however, not represented on the date of

hearing. With consent of counsel for the parties, all appeals were heard finally.

2. These appeals, under Section 22 of the National Green Tribunal Act,

2010 (hereafter ‘NGT Act’) and appeals by special leave1, question various

orders2 of the National Green Tribunal which directed that the Nagar Palika

Parishad, Mandsaur (hereafter ‘Parishad’), should desist from granting sanction

to develop and construct properties in the vicinity of the “Teliya Talab”

(hereafter ‘talab’), a man-made lake or reservoir in the city of Mandsaur.

3. The original applicant, Dinesh Joshi, preferred an application before the

Central Bench of NGT, seeking directions for protection and conservation of the

talab, alleging that construction permissions had been granted by the

authorities, i.e., the Parishad and the State, to various private parties, and

allowed construction upon a water body, resulting in depletion of the lake’s

area, thus reducing availability of surface water. It was also further alleged that

untreated domestic waste and industrial effluents were being discharged or

dumped into the talab. The Parishad and the Town and Country Planning

Department (hereafter ‘TCD’) filed replies, upon being issued notices.

4. The NGT, by its order dated 17.02.2016 (referred to hereafter as ‘the

main order’) took note of the Parishad’s reply, as well as that of the TCD and

1 Against order dated 10.7.2018 in WP No. 3484/2018 (PIL) of the Madhya Pradesh High Court 2 Dated 17.02.2016 in OA No. 100/2015; dated 19.04.2016 in RA No. 3/2016; dated 21.09.2020 in OA No. 17/2018; dated 18.11.2020 in RA No. 8 & 9/2020 and order dated 25.11.2020 in MA Nos. 9, 11 & 14/2020 3

relied on a ‘revenue trace map’ to say that the “Maximum Water Line”

(hereafter ‘MWL’) had been shown and the land over which construction

permission was given, i.e., Khasra. No. 1238, fell within the “Full Water Line”

(hereafter ‘FWL’) as well as the MWL. It was observed that if the water was

allowed to reach the maximum level, the lands would be submerged, as

according to the NGT, they fell within the catchment area.

5. The appellants (except the appellant in the appeal by special leave)

preferred review petitions, pointing to the fact that they had been given

permission by the Parishad much earlier, and also drawing to the notice of the

NGT that a Development Plan had been finally sanctioned in 2003, in terms of

which a green area abutted the talab, beyond which a public road had been

sanctioned and built, and further that their lands lay beyond this road. It was

argued that in these circumstances, the NGT should review its order, as they

were not heard before the main order was made.

6. The appellant in C.A. No. 5328-29/2016 (hereafter called ‘the society’)

additionally urged that the lands owned by it were allotted a long time earlier to

it, and that its use for construction of residential units to its members (who were

workers, belonging to the poorer segments of society) became a subject matter

of a previous litigation, whereby the state authorities had cancelled the

conversion certificate, on the ground that the lands fell in the submergence area.

The society filed a suit, which was decreed by the trial court 3; the state’s appeal 3 By order dated 24.12.1994 passed by the Civil Judge First Class, Mandsaur in CS No. 524A/88 4

was dismissed4 and its second appeal before the Madhya Pradesh High Court,

met the same fate, i.e., dismissal5. It was also pointed out that the special leave

petition filed by the State too, was dismissed6 by this court.

7. The NGT, however, dismissed all the review petitions before it, by the

impugned orders. On the basis of certain representations and letters, the

Collector, District Mandsaur constituted a committee of seven officials from the

revenue department for the purposes of investigating and submitting the latest

report with respect to the boundaries of the talab. Based upon the report

received, the Collector issued an order on 06.06.2017. The material portion of

that order reads as follows:

“the aforesaid investigation team got the demarcation done vide the Land Record District Mandsaur Letter Number 1316/MP/2016 dated 18-05-2016 and from team comprising 21 officers/employees on 04-06-2016 and 06-06- 2016 and punching, report and map were submitted. As per the Panchnama, and Report and for clarifying of the facts/removal of errors mentioned in the application concerned with the Applicant regarding MWL of Telia Talab, situated at Kaba Mandsaur the Demarcation team notified the MWL limits of Telia talab to the employees of Municipal Council and Water Resources at the spot and permanent boundary signs were established, 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 the map are recognised beyond the limits of MWL. After marking MWL signs, the permission of construction can be granted.

I examined the case and minutely perused the aforesaid investigation report, Panchnama, and map submitted by the Committee constituted by this Court. Being consented (sic satisfied) with the report of investigation team and as per the Mandsaur Development Scheme 2001, the MWL. (Maximum Water Level) Limit signs which are mentioned in Green ink and the demarcation map of MWL limits of Telia Talab in the report of Investigation Team, as the colonies situated outside the Signs are not submerged and hence,

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. 415/2001 6 By order dated 08.02.2016 in SLP (CC) No. 2066/2016 5

construction permission can be given to the colonies situated outside the signs. This map shall be a part of this order.”

8. The report submitted to the Collector and order made by him became the

subject matter of controversy before the NGT. An application (No. 17/2018),

objecting to the correction of the submergence area and the MWL, was filed by

the applicant who moved the earlier O.A. No. 100/2015. The applicant’s

grievance was that the NGT had prohibited any construction in the water bound

area and within limits of the MWL and FWL of the talab. The argument made

out was that the map prepared subsequently and taken on record by the

Collector's order dated 06.06.2017, could not be sustained. The Madhya Pradesh

Pollution Control Board in its reply stated that the alteration of the boundaries

of the talab did not fall within its jurisdiction. It was stated, however, that the

Board had issued notice to the Parishad from time to time to comply with

provisions of the Water (Prevention and Control of Pollution) Act 1974

(hereafter ‘Water Act’). This was recorded by the NGT in its order. It was

further recorded that the Collector’s team had inspected the area and found that

10 colonies were existing within 3 kilometres from the talab, and further that

untreated sewage water was being discharged in it. By its order dated

21.09.2020 (hereafter ‘second order’) the NGT severely chastised the State, the

Parishad, and district revenue authorities, and directed them to immediately

proceed to demarcate the water body and the area which was previously within

the area of the water body, to ensure that it was not reduced in any manner. The

NGT also prohibited grant of permission for construction without the 6

demarcation of the area of the water bodies, and up to the MWL. It further

directed that the entire Khasra No. 1238 should be protected and that the water

body should not be disturbed.

Contentions of counsel for the parties

9. Ms. Meenakshi Arora, learned senior counsel appearing for the society,

argued that the NGT’s impugned orders are erroneous on two counts. Firstly,

that it did not consider or deal with the fact that the portions of Khasra No.1238

was purchased by the society over four decades ago, with the hard-earned

money of its members, who were lowly paid workers. They had faced litigation

for over two and a half decades, when the conversion certificate issued to them,

was cancelled on the ground that the lands fell within the submergence area

(Doobkshetra). The society was constrained to file a suit for perpetual

injunction, where the state was impleaded; the state relied on the deposition of

an engineer from its irrigation department, who reiterated its stand. However, he

was unable to point to any document or material in support of the state’s

argument that the land fell within the submergence area. The state’s appeal was

rejected; the first appellate court noted the state’s stand, which was

contradictory, i.e., that the lands fell in the submergence area, and at the same

time, that they were required for some construction. The state’s second appeal,

and special leave petition were also rejected.

7

10. Ms. Arora urged, as the second limb of her submissions, that the 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 a sound firm principle of public

policy. The doctrine of finality has evolved with the objective of preventing

unnecessary litigation under the colour and 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 submitted that the order dismissing the special leave petition also held

that the judgment 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 senior counsel, and Mr.

Yogeshwaran, learned Additional Advocate General (AAG) for Madhya

Pradesh, appeared for the TCD and the Parishad respectively; and Mr. Saurabh

Mishra, AAG, appeared for the state of Madhya Pradesh. They supported the

submissions on behalf of the society, and urged that the NGT fell into serious

error in not considering that the TCD had published the Development/Master

Plan in 2001, which was finally approved on 12.05.2003. This forms the basis

for development of Mandsaur. The existence of the talab, its boundaries, and

the extent of its catchment area, were made known. No one objected to the plan,

which designated a green area immediately adjoining the talab, after which a

road was permitted. The development of residences and colonies was beyond 8

this road. These facts were known to the general public. In this background, the

applicant before the NGT persuaded it to issue orders based on a “trace” map,

which had not been finalised.

12. Learned counsel submitted that after much inter-departmental

correspondence between the Sub-Divisional Officer of Mandsaur, the Parishad

and the Water Resources Department, as well as the Collector, finally a letter

was addressed by the Sub-Divisional Officer, to the Collector, on 31.01.2022,

which disclosed that the map shown to the NGT, based on which, it made its

orders was

“not originally a map, but a proposed map to depict a situation if the FTL of Teliya Talab were to be increased by one feet and which only bore the signature of Shri. L.N. Badgotia, the Sub-Divisional Officer of the Water Resources Department. This Map does not bear the signatures of any authorized Revenue Officer. The Map that was presented by Shri Santosh Rathore along with his request letter is in two pages and describes all categories of land under the submergence area and which was presented to the then collector on 03.07.2021 and the factual description was presented to the then Collector. The then Collector then put the issue up for discussion but he was transferred and because of which the discussion could not take place.

On the basis of the various communications exchanged between the Chief Municipal Officer, Nagar Palika Mandsaur, and the Water Resources Department, what emerges clearly is that Map presented by Nagar Palika Parishad before the Hon’ble National Green Tribunal (NGT) which was singed by Shri. L.N. Badgotia, Sub Divisional Officer, of the Water Resources Department, is not the original Map but only is descriptive of the proposal in the year 2002 to increase the height of the dam by one feet. The Map presented to me on 30.07.2021 by the Water Resources Department bears the signatures of the Sub-Engineer, Water Resources Department, Tehsildar, Revenue Inspector and Halka Patwari and this Map also has a clear description of all of the areas that will come under the FTL and MWL and hence this is the original map.”

13. It is pointed out that the relevant correspondence between the various

authorities and bodies, relating to the map furnished to the NGT, and its 9

accuracy, as well as the instructions issued on it, have been placed on record by

affidavit dated 01.11.2022, sworn to by the Chief Officer of the Parishad.

14. Learned counsel also submit that the very same issue, about the

boundaries of the Teliya Talab is again the subject matter of another litigation

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 present appeals.

15. The contesting respondents (applicants in the original applications before

NGT), i.e., Mr. Dinesh Joshi and Mr. Alok Sharma, were not represented at the

time of hearing. However, they had filed replies and counter affidavits to some

of the appeals. Their consistent stand is that the NGT’s orders do not call for

interference. It is urged by them, the map of 1973-74, relied on by the NGT,

was supplied by the Parishad, which cannot now resile from its stand. It is also

stated that the existence of the Development Plan, was a matter of record, and

the NGT was aware of it. Moreover, it is pointed out that the Parishad did not

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 it went by the

pleadings, and proceeded to pass orders on the basis of the trace map produced

before it. The NGT was aware that the applicant wished to interdict

development in the vicinity of the talab, for which sanction had been granted.

Yet, it did not feel the necessity of seeking particulars from the parties before it, 10

and whether any parties were likely to be affected by its orders. As a judicial

tribunal, bound by principles of natural justice, it ought to have impleaded, or at

least issued a public notice, about the pendency of litigation, and sought

intervention of those likely to be adversely affected. Its omission to take this

step, has resulted in prejudice to all the appellants before this court, who were

faced with drastic and serious consequences, because the sanction for

development or 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 Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice. (2) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.

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

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

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

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents;

(f) reviewing its decision;

(g) dismissing an application for default or deciding it ex parte;

(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;

(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;

(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;

(k) any other matter which may be prescribed.

11 (5) All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of Sections 193, 219 and 228 for the purposes of Section 196 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).”

18. A plain reading of Section 19 clarifies that though not bound by the Code

of Civil Procedure, the NGT is nevertheless bound by principles of natural

justice. It is a judicial tribunal, exclusively tasked with the duty of deciding

environmental disputes and causes; its remit includes wide ranging powers. In

these circumstances, the NGT had to take into consideration that the nature of

its directions meant that all those living or owning land near the talab, who had

obtained sanctions from the Parishad and the TCD, were condemned unheard.

19. The second aspect is that when some of the appellants approached NGT,

in review proceedings, those review petitions were summarily rejected. Again,

these orders cannot be sustained, because they do not disclose any application

of mind to the existence of the Development Plan, which had permitted

development of the disputed areas; the orders in review also do not advert to or

deal with the peculiar circumstances, concerning the society’s plot, on which a

previous litigation had 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

the NGT, 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 of finality,

which results in a decree by a competent court, acquiring a final and binding 12

nature, especially where it is confirmed concurrently and upheld by the highest

court of the land. In Pradeep Kumar Maskara v. State of West Bengal7 this

aspect was stated, in the following terms:

“24. At the very outset, we are of the view that the Tribunal has no jurisdiction to differ with the decision given by the Calcutta High Court in the writ petition filed by the appellants. The Tribunal further committed grave error in following the decision in Ganga Dhar Singh case [Ganga Dhar Singh v. State of W.B., (1997) 2 CHN 140] treating it to be a Division Bench judgment of the Calcutta High Court when as a matter of fact the decision in Ganga Dhar Singh case [Ganga Dhar Singh v. State of W.B., (1997) 2 CHN 140] was decided by a Single Judge of the High Court. Even the judgment 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 neither considered nor distinguished.

25. In the background of these facts, in our considered opinion, when the judgment rendered by the Calcutta High Court in the case of the appellants and the said decision having not been quashed or set aside by a larger Bench of the High Court or by this Court, the Tribunal ought not to have refused to follow the order of the High Court.

26. It is well settled that even if the decision on a question of law has been reversed or modified by subsequent decision of a superior court in any other case it shall not be a ground for review of such judgment merely because a subsequent judgment of the Single Judge has taken contrary view. That does not confer jurisdiction upon the Tribunal to ignore the judgment and direction of the High Court given in the case of the appellants.”

21. This court has also ruled, in Lekh Raj v. Ranjit Singh8 that subsequent

changes in law, cannot divest parties of the benefit derived by them in a

litigation that attained finality, through a decree:

“21. If the rights of the parties had already been crystallised then, in our opinion, subsequent change in law would not take away such rights which had attained finality due to lis coming to an end inter se the parties prior to such change.”

22. In another judgment, pertinent to the facts of this case, the state invoked

its revisional power to nullify the effect of orders which had attained finality

7 (2015) 2 SCC 653: [2014] 13 SCR 540 8 (2018) 12 SCC 750: [2017] 7 SCR 542 13

and were inuring in favour of private parties. It was held that such action was

without authority of law in Ibrahimpatnam Taluk Vyavasaya Coolie

Sangham v. K. Suresh Reddy9, where the court considered the provisions of the

Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950.

The provision in Section 50-B(4) empowered the statutory authority to exercise

suo motu revisional power at any time. The Court held that:

“9. … Use of the words ‘at any time’ in sub-section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo motu power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo motu power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act). … Use of the words ‘at any time’ in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary meaning of the words ‘at any time’, the suo motu power under sub-section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power ‘at any time’ only means that no specific period such as days, months or years are not (sic) prescribed reckoning from a particular date. But that does not mean that ‘at any time’ should be unguided and arbitrary. In this view, ‘at any time’ must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation.”

The above judgment was followed in State of Andhra Pradesh v. T. Yadagiri

Reddy10 and Sulochana Chandrakant Galande v. Pune Municipal Transport11.

9 (2003) 7 SCC 667: [2003] Supp 2 SCR 698 10 (2008) 16 SCC 299: [2008] 16 SCR 792 11 (2010) 8 SCC 467: [2010] 9 SCR 476 14

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 of the courts in

its favour, clearly reveal that the 1.4 hectares owned by it, for which conversion

(from agricultural to non-agricultural use) was sanctioned, was sought to be

cancelled, on the ground that the land, fell within the submergence area. The

history of the previous litigation – which the NGT was seized with – reveals

that the land forming part of Khasra No. 1248, owned by the society, was

directly in issue in a litigation to which the state was a party, and in which it

lost. That decree was affirmed 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 a decree concerning the same facts could be re-opened, the NGT

could not 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 NGT did 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 were sought to be developed,

although these were expressly brought to its notice, in the review proceedings.

Furthermore, this court has also been appraised of the fact that the inquiry by

the revenue authorities, after the second order was made, has now resulted in

awareness on the part of the Collector, and the Parishad, that the map on which

the NGT based its main order, was only a proposal and not a final map.

Moreover, a fresh litigation (O.A. No. 70/2022) is also pending. In these 15

circumstances, it would be appropriate that the other appeals too are allowed,

and the NGT considers the issue, afresh in O.A. No. 70/2022, and ensures that

the precise boundaries of the talab are ascertained by a properly constituted

committee.

25. 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 which construction permission was granted, and in respect of which decree was made by the Civil Judge First Class, Mandsaur in C.S. No. 524A/88 dated 24.12.1994, ultimately confirmed by the Madhya Pradesh High Court in S.A. No. 415/2001, by order dated 23.06.2011 shall not be disturbed or affected, in any manner.

(b) All other appeals are allowed with the direction that the NGT shall consider the question of precise boundaries of the talab, after considering the report of a committee, in the pending proceedings, i.e., O.A. No. 70/2022.

The appellants in these proceedings are at liberty to implead themselves in the said proceeding before the NGT, which shall hear them, and consider their submissions, before rendering a final order.

(c) The committee referred to in (b) above shall consist of competent 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

(iv) by the competent official of the Department of Water Resources, 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 basis of the inspection 16

and observation of the record, they shall submit a report to the NGT; copies of such report shall be made available to 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, are disposed

of, in the above terms, without order on costs.

.............................................J. [S. RAVINDRA BHAT]

.............................................J. [DIPANKAR DATTA]

New Delhi, March 22, 2023