Supreme Court of India
S. N. Dubey vs Raman Khandelwal on 28 November, 2024
Author: B.R. Gavai
Bench: B.R. Gavai
2024 INSC 931 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7004-7005 OF 2021
S. N. DUBEY AND OTHERS …APPELLANT(S)
VERSUS
RAMAN KHANDELWAL AND OTHERS …RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 7664-7666 OF 2021
CIVIL APPEAL NOS. 6185-6186 OF 2021
JUDGMENT
B.R. Gavai, J.
1. These appeals challenge the judgments and orders dated
20.03.2020 and 06.04.2021 passed by the learned National
Green Tribunal, New Delhi (hereinafter referred to as “NGT”) in
OA No. 67 of 2015 (CZ) and Review Application No. 12 of 2020
respectively. There are a total of three appeals. One appeal is
filed by the State Government, another by the Special Armed
Forces and the third one by the private individuals affected by
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2024.12.05
10:16:34 IST
the orders passed by the learned NGT.
Reason:
2. Respondent Nos. 1, 2 and 3 (Raman Khandelwal, Deepak
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Gupta and Sharad Singh Kumhre) had filed an Original
Application being OA No. 67 of 2015 (CZ) praying for directions
to preserve and protect the area known as Bajrang Nagar
Pahadi in village Karondi in District Jabalpur, Madhya
Pradesh.
3. It appears that on 19.10.2016 the learned NGT had
appointed one of its Former Expert Member as a Court
Commissioner and he was asked to submit a report. The Court
Commissioner visited the site on 21.11.2016 and submitted
his report on 08.12.2016.
4. In the report, the salient findings as were recorded by the
learned Court Commissioner were thus:
(i) That no trees were seen at the site in question,
except for a number of bushes and shrubs;
(ii) That already there was no development zone of
30 metres from the boundary of the Talab,
including one Gokulpur Talab;
(iii) That out of the 65 hectares of land, 48.50
hectares was reserved in development plan for
residential purposes, 2 hectares for roads and
14.50 hectares for City Plantation.
(iv) That the area of 48.50 hectares shown for
residential purpose was belonging to Special
Armed Forces.
(v) That the area surrounding 12.32 square
kilometers on south, south east and south west
direction from the Gokulpur Talab, was a
catchment area and any development
surrounding the said area would obstruct the
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free flow of water towards Gokulpur Talab and
Narmada river.
(vi) Finally, the Court Commissioner has
recommended the development activities in
Bajrang Nagar Pahadi should not be allowed as
it lies in the catchment area of Gokulpur Talab
and Narmada river. The Court Commissioner,
therefore, suggested for declaring the said area
as no development zone.
5. The learned NGT by the impugned judgment and order
dated 20.03.2020 accepted the recommendation of the Court
Commissioner as it is and declared an area within the distance
of one kilometer surrounding the Gokulpur Talab as no
development zone. Being aggrieved, the present appeals.
6. We have heard Shri Saurabh Mishra, learned Senior
Counsel appearing for the State of Madhya Pradesh in CA Nos.
7664-7666 of 2021, Shri M.C. Dhingra, learned Senior
Counsel appearing for the appellants in C.A. Nos. 7004-7005
of 2021 and Shri Raghav Sharma, learned counsel appearing
for the Madhya Pradesh Pollution Control Board arrayed as
party-respondent in the appeals.
7. It is submitted by Shri Mishra and Shri Dhingra that if
the directions issued by the learned NGT are implemented, the
entire developmental activities would come to a standstill. It is
further submitted that the development plan for the city of
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Jabalpur has considered all the aspects. It is further
submitted that the specific objection of the State of Madhya
Pradesh, that there is a direct and indirect catchment area,
has not at all been considered by the learned NGT. It is
submitted that while preparing the development plan, the
Planning Authority has taken into consideration the aspect of
the catchment area.
8. Though the original applicants/complainants before the
learned NGT are duly served, no one has appeared on behalf
of them. The respondent-Madhya Pradesh Pollution Control
Board and the private respondents have supported the stand
of the State Government.
9. It is pertinent to note that after the Court Commissioner
submitted his report, the State of Madhya Pradesh had raised
objections qua the said report. Further before the learned NGT,
a reply was filed by the State, where in para 9 it was stated as
under:
“The applicant has also alleged that the subjective
land is the catchment area of Gokulpur pond as well
as Narmada river. It is most humbly submitted that
the catchment is defined as direct catchment and
indirect catchment the direct catchment area is the
area which is the main source of water for the water
body whereas indirect catchment area could be a
huge area which could be more than hundreds of4
square kilometers because each and every surface on
earth could be the catchment area for one or the
other waterbodies therefore the subjective land may
be considered as indirect catchment of Gokulpur
pond as well as Narmada river but it could never be
direct catchment of the same as while preparing the
Jabalpur Development Scheme/Master Plan 2021
the survey pertaining to the natural water dispersal
system was carried out and to show the natural water
dispersal areas map was prepared which is part and
parcel of the master plan. In the said flow map the
subjective area is not shown as the direct catchment
area of Gokulpur pond as well as Narmada River. The
copy map of natural water dispersal system is
marked and filed herewith as ANNEXURE-R-1/3.”
10. The reply clearly states that for every dispersal system
there is direct and indirect catchment area, and that the nalas,
streams and rivers form part of the direct catchment area.
11. Insofar as the indirect catchment area is concerned, the
water is absorbed in the soil and percolates to the main
rivers/lakes.
12. The reply would also reveal that while finalizing the
Jabalpur Development Scheme/Master Plan for 2021, the
survey was also conducted by the Planning Authority
pertaining to the natural water dispersal system. The map of
the natural water dispersal area is a part and parcel of the
Master Plan.
13. The Master Plan did not show the area under
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consideration as a direct catchment area of Gokulpur Talab as
well as Narmada river. However, the learned NGT has not at
all taken into consideration the objections raised by the State
of Madhya Pradesh in the reply. The learned NGT has accepted
the recommendation of the Court Commissioner as it is.
14. If the report of the Court Commissioner is to be accepted,
an area admeasuring 12.32 square kilometers surrounding
the lake will have to be declared as no development area and
a substantial part of construction in the Jabalpur City itself
would be affected.
15. The impugned order passed by the learned NGT does not
depict any independent consideration but a mere acceptance
of the report of the Court Commissioner as it is.
16. This Court, by an order dated 27.11.2024 passed in CA
Nos. 9202-9203 of 2022 titled as “Benzo Chem Industrial
Private Limited v. Arvind Manohar Mahajan and Others”
has deprecated the practice of the NGT of basing its judgment
on outsourced material. A tribunal is expected to carefully
consider the material placed before it and the
contentions raised on behalf of both the parties. It
cannot discharge its function by merely relying on a
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report of the Court Commissioner without even considering
the stand of the parties before it.
17. On this short ground alone, the appeals are allowed. The
impugned judgments and orders dated 20.03.2020 and
06.04.2021 passed by the learned NGT are hereby quashed
and set aside.
18. Needless to add that the permission for development
which was granted after obtaining the approval of the State
Environment Impact Assessment Agency (SEIAA) would
continue to operate. Further, if any specific period is provided
for such activities, the time from the date of stay granted by
the learned NGT till today, shall stand excluded.
19. Pending application(s), if any, shall stand disposed of.
……………………….J.
(B.R. GAVAI)
………………………….J.
(K.V. VISWANATHAN)
NEW DELHI;
NOVEMBER 28, 2024.
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