30 March 2023 7:44 AM GMT
The Supreme Court on March 22 allowed the appeal filed by the Shramjeevi housing society, which had challenged the decision of the NGT to halt construction near Teliya lake in Mandsaur. The NGT had ordered the construction to be stopped on the grounds that the land fell within a submergence area. However, the housing society argued that they had previously received permission for the...
The Supreme Court on March 22 allowed the appeal filed by the Shramjeevi housing society, which had challenged the decision of the NGT to halt construction near Teliya lake in Mandsaur. The NGT had ordered the construction to be stopped on the grounds that the land fell within a submergence area. However, the housing society argued that they had previously received permission for the construction and that the land was not actually in a submergence area. The Supreme Court sided with the housing society and overturned the decision of the NGT, allowing the construction to proceed.
The decision was based on the ground that the issue of whether the sanction of conversion of land from agricultural to non- agricultural use owned by the society should be canceled because it fell within the submerged area had already been decreed in favour of the society and the same was affirmed by the Supreme Court.
The bench comprising of Justice S. Ravindra Bhat and Justice Dipankar Datta said that, “When the NGT was made aware of this fact, it chose to ignore it.”
The Court also noted that,“the map on which the NGT based its main order, was only a proposal and not the final map.”
The appeal was filed in the Supreme Court under Section 22 of the NGT Act, and by way of a special leave petition (SLP) by the housing society and other affected parties. The appeal questions various orders of the NGT which directed the Nagar Palika Parishad of Mandsaur to stop granting permission for the construction of properties near the man-made lake called "Teliya Talab" in the city.
Dinesh Joshi filed an original application before the NGT to seek directions for the protection and conservation of Teliya lake in Mandsaur, MP. The applicant alleged that the authorities, i.e., the Parishad and the State, had granted construction permissions to various private parties, resulting in the depletion of the lake's area and reducing the availability of surface water. Additionally, the applicant highlighted that untreated domestic waste and industrial effluents were being discharged or dumped into the lake.
By its order dated 17.02.2016 (main order), the NGT took note of the reply filed by Parishad and the Town and Country Planning Department (TCD), in which they referred to a 'revenue trace map' to assert that the land over which construction permission was given (Khasra No. 1238) fell within both the 'Full Water Line' (FWL) and the 'Maximum Water Line' (MWL). The NGT observed that if water levels were allowed to reach the MWL, the land would be submerged, as it falls within the catchment area. Therefore, the NGT concluded that construction could not be allowed.
All the appellants, except for the appellant in the appeal by special leave, filed a review petition stating that they had previously received permission from the Parishad and that a Development Plan had been sanctioned in 2003. They further argued that this plan included a green area adjacent to the lake and a public road beyond it, and that their lands were located beyond this road. They requested the NGT to review its order, as they had not been given a chance to be heard before the main order was made.
The appellant housing society (the society) argued that their lands were allotted to them a long time ago for the purpose of constructing residential units for their members, who were workers from the poorer segments of society. They also stated that the land use had been the subject of a previous litigation, in which the state authorities had canceled the conversion certificate on the grounds that the land was in a submergence area. The society had filed a suit for the same, and it was decreed by the trial court of Mandsaur and later affirmed by the High Court and Supreme Court.
The review petition filed before NGT questioning the order of cancellation of permission of construction was dismissed.
Thereafter, The Collector 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 lake. Based upon the report received, the Collector issued an order stating that the colonies situated outside the MWL signs are not submerged and hence,construction permission can be given to the colonies situated outside the signs.
The application objecting the order and demarcation of the submergence area was filed by the same applicant who had filed the original application.
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 applicant submitted that the map prepared subsequently and taken on record by the Collector's order, could not be sustained. The MPPCB in its reply stated that the alteration of the boundaries of the lake 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’).
After hearing the parties, NGT directed the state and authorities 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 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 the parties in Supreme Court
The counsel for the society argued that the NGT's orders were erroneous for two reasons.
Firstly, it did not consider the fact that the society had purchased portions of Khasra No. 1238 over four decades ago with the hard-earned money of its lowly paid members who faced litigation for over two and a half decades when the conversion certificate issued to them was canceled.
Secondly, the state was unable to produce any document or material in support of their argument that the land fell within the submergence area. The state's appeal was rejected, and their second appeal and special leave petition were also rejected.
The counsel emphasised that doctrine of res judicata will be applicable in this case because the decree of Mandsaur District Court was confirmed upto the Supreme Court.
The counsel appearing for other appellants supported the contentions 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. It forms the basis for development of Mandsaur. The existence of the lake, its boundaries, and the extent of its catchment area, were made public. No one objected to the plan, which designated a green area immediately adjoining the lake, after which a road was permitted.
The development of residences and colonies was beyond that 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,a draft which had not been finalised.
It was also submitted by the appellants that the boundaries of the Teliya lake is again the subject matter of another litigation before the NGT.
On the other hand the consistent stand of the respondents was that NGT’s orders do not call for interference. It is urged by them, the map relied on by the NGT, was supplied by the Parishad, which cannot now resile from its stand.
Analysis of the Court
The Supreme Court affirmed that the orders passed by the NGT were on the basis of a trace map and not the original one.
On rejection of the review petition, the Court said 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.
The Court referred to the case of Pradeep Kumar Maskara v. State of West Bengal to reiterate that “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 nature, especially where it is confirmed concurrently and upheld by the highest court of the land.”
The court also noted that 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 lake.
In light of the above the Court held that the question whether the land owned by society for which conversion (from agricultural to non-agricultural use) was sanctioned and sought to canceled on the ground that the land fell in submerged area is part of the 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.
Further the court said that, “the 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 reopened, the NGT could not have rejected the society’s contentions. The society’s appeal, therefore, requires to succeed”.
The court allowed the appeal and directed to ensures that the precise boundaries of the talab are ascertained by a properly constituted committee.
The court also directed that the society’s rights, title, and interest in respect of the land purchased by it, for which construction permission was granted by JMFC ,Mandsaur shall not be disturbed or affected.
Case-Shramjeevi Cooperative Housing Society Ltd. v. Dinesh Johi and others.
Citation : 2023 LiveLaw (SC) 258
National Green Tribunal Act 2010 - Supreme Court allows housing society's appeal against NGT's direction to halt constructions near a lake- issue whether the construction was in submerged area was decided in earlier civil proceedings in favour of the society- that decree was affirmed by the SC- So NGT could not have ignored the decree- he 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 reopened, the NGT could not have rejected the society’s contentions. The society’s appeal, therefore, requires to succeed.
Click Here To Read/Download Judgment