The possession was given by way of interim order - by it's order directed to re delivery of the property while dismissing the main lis - no irregularty - sec.144 cpc not applies

The possession was given by way of interim order - by it's  order directed to re delivery of the property while dismissing the main lis - no irregularty - sec.144 cpc not applies 

Indisputedly,   the   possession   was handed over to the appellant­plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came  to be dismissed, its logical consequence was to restore back the peaceful   possession   of   the   subject   property   to   respondentsdefendants.   In the given circumstances, the provisions of Section 144 CPC, in our view, are not attracted as there being no variation or reversal of a decree or order as contemplated by Section 144 CPC.


NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8400  OF 2019
(ARISING OUT OF SLP(CIVIL) No(s). 23679 OF 2019)
BANSIDHAR SHARMA(SINCE DECEASED)
REP BY HIS LEGAL REPRESENTATIVE    …...APPELLANT(S)
VERSUS
THE STATE OF RAJASTHAN & ORS. …..RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. This appeal arises from the order dated 21st  August, 2019
passed by the High Court of Rajasthan Bench at Jaipur.
3. The seminal facts relevant for the purpose are that late Shri
Bansidhar Sharma(predecessor of the appellant) filed a suit on 15th
July, 1961 for possession, rendition of accounts and permanent
1
injunction before the Additional District and Session Judge, No. 1,
Jaipur City in which following issues were framed:­
1. Whether the suit temples were founded by the plaintiffs
ancestors and his ancestors were Shebeit and Mahant of
the temples entitled to manage the same?
2. Whether the said temples and 24 shops attached to them
were founded, built and maintained by the former Jaipur
State and managed through their servants?
3. Whether the plaintiff is in possession and management of
the suit temples in his own rights and not on behalf of the
state as their Pujari or servant?
4. Whether Pandit Mahadev Ji was the Mahant or Shebait of
the suit temples and he handed over management of the
temples   and   shock   attached   to   them   to   the   Dharmarth
Vibhag of the former Jaipur estate in the year 1925 for
safety   and   security   and   proper   management   as   he   was
going on long pilgrimage?
5. Whether the plaintiff is the descendant of Pandit Mahadev
Ji and entitled to claim the possession of the temple and
shops and the account of the income thereof for the period
since 1925 from the defendants?
6. Whether the notice under Section 80 of C.P.C. is defective?
7. Whether the suit is within time?
8. Relief?
4. After the matter being heard, trial Court vide its judgment
dated 26th November, 1977 holding that there was no substance in
the suit dismissed it with costs.   The judgment of the trial Court
2
dated 26th November, 1977 came to be assailed in S.B. Civil First
Appeal No. 86/1979.   During pendency of the appeal, the High
Court of Rajasthan passed an ad­interim order on 11th  January,
1978:­
“Issue   notice   to   the   G.A.   and   the   respondents.
Meanwhile   the   appellant   shall   not   be   dispossessed
from the premises where he resides.   The rest of the
relief claimed by the appellant will be considered after
the notices are served.”
5. In furtherance of the ad­interim order dated 11th  January,
1978, S.B. Civil second stay application no. 163/96 came to be filed
at the instance of the appellant­plaintiff on 9th October, 1996 and
the Single Judge of the High Court passed a further interim order
on   second   stay   application   on   10th  October,   1996   which   is   as
under:­
“I   have   heard   learned   counsel   for   the   parties   on   the
second stay application.
During the course of hearing, learned counsel for the
appellant has placed at large upon the copy of the Order
dated 11.1.78 whereby the learned Division Bench of this
Court had directed that “in the meanwhile the party will not
be dispossessed.”
This   fact   has   also   not   been   controverted   by   the
respondents in their reply to the application, since the same
has been reproduced in the reply.
3
Shri Mathur, learned counsel for the respondents has
placed on record some documents along with his affidavit.
The   copies   of   the   said   document   have   already   been
supplied to the learned counsel for the appellant.
Let  reply  to the said  affidavit  be  filed by the learned
counsel for the appellant within one week from today.
In the meanwhile the status quo which existed as on the
date of passing of the order dated 11.1.78 in respect of the
premises in question shall continue pending the hearing
and disposal of this appeal.
Let this appeal be listed on 20th October, 1996.”
6. In sequel thereof, further interim order came to be passed on
22nd November, 1996.  The operative part of the Order dated 22nd
November, 1996 is referred hereunder:­
“Consequently   the   second   stay   application   is   allowed.
The respondents are directed not to interfere with the rights
of the applicants to perform sewa Pooja of the idols in the
said temple and also not to dispossess the applicants from
the   premises   of   the   temple   in   which   they   are   residing.
Respondents are further directed to restore the possession
of   the   temple   of   Lord   Laxminarainji,   i.e.,   the   temple   in
question to the applicants/appellants forthwith or in any
case   not   later   than   3rd  of   December,   1996   and   the
compliance report be submitted by the respondents in this
regard immediately since the possession of the aforesaid
temple was taken by the respondents in 1988 from late
Bansidhar   forcibly   and   without   due   process   of   law   and
without obtaining any decree of possession or an order of
eviction   against   late   Bansidhar   or   the   present
applicant/appellants from a competent court.  The interim
order, dated 10.10.1996 passed by this Court clarifying the
earlier order dated 11.1.1978 passed by learned Division
bench of this Court is confirmed pending hearing and final
disposal of the appeal.  Let the appeal be listed for hearing
and final disposal on 17.12.1996.”
4
7. Later, the S.B. Civil First Appeal no. 86/1979 after finally
being heard, came to be dismissed vide judgment dated 20th April,
2018 and the learned Single Judge was conscious of the fact that
certain interim orders had been passed pending first appeal and
noticing the order dated 10th  October, 1996 and 22nd  November,
1996, while dismissing the appeal, passed the following operative
order:­
“ In compliance of the said order, appellant had been given
the possession of the suit property.   Through the instant
application, it is prayed that the position as existed prior to
10.10.1996 be restored or the order dated 10.10.1996 be
recalled or modified.  In the opinion of this Court, when the
appeal   has   been   dismissed   and   the   appellant   has   been
found   to   have   no   rights   whatsoever   over   the   disputed
temple  and properties appurtenant  to it, the application
deserves to be allowed and the position as existed before
10.10.1996 deserves to be restored.  Application is allowed
accordingly.
Resultantly,   this   appeal   is   dismissed   with   a   cost   of
Rupees One Lakh and the plaintiff is directed to hand over
the possession of the disputed property to the defendantsrespondents   within   a   period   of   two  months   from  today,
failing which, the defendants­respondents will be entitled to
get   the   possession   through   the   Court.     Further,   the
defendant­respondents are also entitled to get the cost of
litigation from the plaintiff­appellant.”
5
8. The judgment dated 20th April, 2018 was further challenged in
SLP(C ) No. 13439 of 2018 before this Court and that came to be
dismissed on 17th May, 2018.  After dismissal of the special leave
petition by this Court, the respondents sent an intimation to the
appellant­plaintiff to hand over the possession in compliance of the
order of the Single Judge of the High Court dated 20th April, 2018,
but   when   no   action   was   taken   by   the   appellant,   interlocutory
application was filed under Section 151 read with Section 144 of
Code of Civil Procedure, 1908(hereinafter being referred to as CPC)
before the Single Judge of the High Court.
9.   After hearing the parties, the Single Judge of the High Court
noticing the rival contention of the parties allowed the application
vide   its   order   dated   21st  August,   2019,   with   a   liberty   to   the
respondent­State to take possession of the suit property and to take
police or other aid, if necessary, in taking possession of the subject
property in question which is under challenge in appeal before us.
6
10. Basic   bone   of   contention   of   the   learned   counsel   for   the
appellant is that the execution application under Section 144 CPC
would   lie   only   before   the   Court   of   first   instance   which,   in   the
instant case, is the Court of Additional District and Session Judge,
No. 1, Jaipur City and not the High Court and according to the
learned counsel, the impugned order passed by the High Court
dated 21st August, 2019 is without jurisdiction. 
11. Learned counsel further submits that  appellant  has lost a
valuable right of appeal in view of exercise of jurisdiction by the
High Court and submits that the order being not sustainable in law
deserves to be set aside and the respondents may be permitted to
adopt and avail the remedy prescribed under the law.
12. Learned counsel for the respondents, on the other hand, while
supporting   the   finding   recorded   by   the   learned   Single   Judge
submits that there was no decree or order of the trial Court by
virtue of which the appellant was given possession of the subject
property as the suit came to be dismissed in the first instance by
the trial Court which came to be affirmed in first appeal and also by
7
this Court.  In the present circumstances, the provisions of Section
144 CPC are not attracted as there being no variation or reversal of
a decree or order as contemplated by Section 144 CPC.
13. Learned counsel further submits that since the possession
was handed over to the appellant under the interim order passed by
the Single Judge of the High Court pending first appeal, which
finally came to be dismissed and thus, in the given circumstances,
it was imperative upon the appellant to restore possession of the
subject property and mere mentioning of Section 144 would not
denude   the   rights   of   the   parties   in   adopting   an   appropriate
admissible   mechanism   under   the   law   and   this   what   has   been
considered by the High Court under the impugned order dated 21st
August, 2019 and that needs no interference by this Court.
14. Before   evaluating   the   rival   submissions,   it   would   be
appropriate to advert to Section 144 CPC:­
 “144.  Application for restitution – (1) Where and in so far
as a decree or an order is varied or reversed in any appeal,
8
revision or other proceeding or is set aside or modified in
any suit instituted for the purpose, the Court which passed
the decree or order shall, on the application of any party
entitled in any benefit by way of restitution or otherwise,
cause such restitution to be made as will, so far as may be,
place the parties in the position which they would have
occupied but for such decree or order or such part thereof
as has been varied, reversed, set aside or modified; and, for
this purpose, the Court may make any orders, including
orders   for   the   refund   of   costs   and   for   the   payment   of
interest, damages, compensation and mesne profits, which
are   properly   consequential   on   such   variation,   reversal,
setting aside or modification of the decree or order.”
15. The scope of post 1976 amended Section 144 CPC has been
considered by this Court in  Neelathupara  Kummi  Seethi  Koya
Phangal(Dead)  by  LRs  Vs.  Montharapalla Padippua  Attakoya  &
    Ors.1
in paragraph 3 as under:­
“3. In the 1976 Amendment Act suitable amendment was
made and Explanations (a) to (c) were added but they have
no   relevance   for   the   purpose   of   the   case.   The   question
therefore, is whether the transferee executing court is a
“court   of   first   instance”   within   the   meaning   of   Section
144(1) CPC. A bare reading of sub­section (1) does indicate
that   the   application   for   restitution   would   lie   when   the
decree   executed   is   reversed   or   varied   or   modified.   The
doctrine   of   restitution   is   based   upon   the   high   cardinal
principle that the acts of the court should not be allowed to
work   in   injury   or   injustice   to   the   suitors.   Section   144,
therefore, contemplates restitution in a case where property
has been received by the decree­holder under the decree,
which was subsequently either reversed or varied wholly or
partly in those proceedings or other proceedings. In those
set of circumstances law raised an obligation on the party
that   received   the   benefit   of   such   reversed   judgment   to
1 1995 Supp(3) SCC 760
9
restitute the property to the person who had lost it. In that
behalf in sub­section (2) a right of suit was taken out and
an application under sub­section (1) was contemplated for
execution of the decree by way of restitution. Sub­section
(1) clearly indicates that it is a “court of first instance” in
which the proceedings in the suit had been initiated and a
decree   was   passed   or   the   suit   was   dismissed,   but
subsequently on appeal decreed or vice versa. The court of
first   instance   would,   therefore,   mean   the   court   which
passed the decree or order. The transferee executing court
is not the court that passed the decree or order, but the
decree was transmitted to facilitate execution of that decree
or order since the property sought to be executed or the
person who is liable for execution is situated or residing
within the jurisdiction of that executing court. Therefore,
the court which is competent to entertain the application
for   restitution   is   the   court   of   first   instance   i.e.
Administrator's Court (Subordinate Judge) that decreed the
suit, and not the court to which the decree was transmitted
for   execution.   The   court   of   first   instance   of   the
administrator is now designated as Court of Subordinate
Judge, but application for restitution was filed in executing
court,   namely,   the   Court   of   District   Munsif   at   Androth.
Thus in the face of the language of Section 144, the District
Munsif   at   Androth,   by   no   stretch   of   imagination   be
considered   to   be   court   of   first   instance.   Its   order   of
restitution   is   without   jurisdiction   and,   therefore,   it   is   a
nullity. The High Court is accordingly right in its conclusion
that the order for restitution is clearly vitiated by error of
law and lack of jurisdiction. We do not find any ground
warranting interference. The appeal is dismissed, but in the
circumstances without costs.”
16. It has been further considered by other coordinate Bench of
this Court in the recent past in Murti Bhawani Mata Mandir Rep.
Through Pujari Ganeshi Lal(D ) Through LR Kailash Vs. Rajesh
    & Ors.2
 as under:­
2 2019(3) SCC 707
10
“Section 144 applies to a situation where a decree or an
order is varied or reversed in appeal, revision or any other
proceeding or is set aside or modified in any suit instituted
for the purpose.   In that situation, the Court which has
passed the decree may cause restitution to be made, on an
application of any party entitled, so as to place the parties
in the position which they would have occupied but for the
decree or order or such part thereof as has been varied,
reversed, set aside or modified.  The court is empowered to
pass orders which are consequential in nature to the decree
or order being varied or reversed.”
17. It clearly transpires that Section 144 applies to a situation
where a decree or order is varied or reversed in appeal, revision or
any   other   proceeding   or   is   set   aside   or   modified   in   any   suit
instituted for the purpose.  The principle of doctrine of restitution is
that on the reversal of a decree, the law imposes an obligation on
the party to the suit who received the benefit of the decree to make
restitution to the other party for what he has lost.  This obligation
arises automatically on the reversal or modification of the decree
and necessarily carries with it the right to restitution of all that has
been done under the decree which has been set aside or an order is
varied or reversed and the Court in making restitution is bound to
restore the parties, so far as they can be restored, to the same
11
position as they were in at the time when the Court by its action
had displaced them.
18. Indisputedly, in the instant case, there was no decree or order
of   the   trial   Court   by   virtue   of   which   the   appellant   was   given
possession of the subject property.  On the contrary, the suit filed
at the instance of the appellant­plaintiff came to be dismissed with
costs and that came to be confirmed on dismissal of the first appeal
by the Single Judge of the High Court and special leave petition
filed before this Court also came to be dismissed.  The possession
was handed over to the appellant of the subject property under the
interim order passed by the High Court pending first appeal of
which a reference has been made and after the appeal came to be
dismissed, its logical consequence was noticed by the High Court in
its judgment dated 20th April, 2018 directing the appellant to hand
over   possession   of   the   subject   property   to   the   respondentsdefendants obviously for the reason that on dismissal of the first
appeal preferred by the appellant, he was under an obligation to
12
restore back peaceful possession to the respondents on vacation of
the interim orders .
19.   In the present facts and circumstances, the respondents have
not   committed   any   error   in   taking   decision   to   call   upon   the
appellant for handing over possession of the subject property at
least after the special leave petition filed at the instance of the
appellant came to be dismissed under order dated 17th May, 2018
and in sequel thereto, there was no other remedy left with the
respondents than to file an application under Section 151 CPC
before the High Court for restoration of possession of the subject
property.
20. After we have heard the parties, find no error being committed
by the High Court in passing of the order dated 21st August, 2019
directing   the   appellant   to   hand   over   possession   of   the   subject
property in question which was handed over to the appellant under
the interim orders passed by the High Court pending S.B. Civil First
13
Appeal   No.   86/1979   which   finally   came   to   be   dismissed   vide
judgment dated 20th April, 2018.
21. The submission of the learned counsel for the appellant that
execution application under Section 144 CPC would lie only before
the Court of first instance, which in the instant case is Additional
District and Session Judge, No. 1, Jaipur City and not the High
Court   and   the   impugned   judgment   is   without   jurisdiction,   is
without substance for the reason that there was no decree or order
of the trial Court which is varied or reversed in appeal, revision or
any   other   proceeding   or   is   set   aside   or   modified   in   any   suit
instituted   for   the   purpose.     Indisputedly,   the   possession   was
handed over to the appellant­plaintiff pursuant to the interim order
passed by the High Court, pending first appeal which finally came
to be dismissed, its logical consequence was to restore back the
peaceful   possession   of   the   subject   property   to   respondentsdefendants.   In the given circumstances, the provisions of Section
144 CPC, in our view, are not attracted as there being no variation
14
or reversal of a decree or order as contemplated by Section 144
CPC.
22.  Before parting with the order, taking note of the fact that the
proceedings were initiated at the instance of the appellant­plaintiff
way back in the year 1961 and almost 59 years have rolled by now,
to give a quietus to the litigation and also the fact that the appellant
had failed at all the stages, having no authority to hold possession
of the subject property, we, therefore, consider it appropriate to
direct the appellant to hand over peaceful possession of the subject
property   to   the   respondents­defendants   in   compliance   of   the
judgment of the High Court dated 20th  April, 2018 followed with
order dated 21st  August, 2019 positively within a period of eight
weeks from today failing which this Court will take serious note of
the matter and proceedings may be instituted against the appellantplaintiff for deliberate defiance of the order of this Court.
15
23. The appeal is without substance and accordingly dismissed
with the observations as indicated above.  No costs.
24. Pending application(s), if any, stand disposed of.
……………………………………………J.
(MOHAN M. SHANTANAGOUDAR)
..………………………………………….J.
(AJAY RASTOGI)
NEW DELHI
NOVEMBER 05, 2019
16

Sukhna Wildlife Sanctuary - No houseing project is valid the housing project, on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary. The Survey Map of India dated 21.09.2004, demarcating the area of Sukhna Lake, is binding on the State of Punjab. The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is invalid.

Sukhna Wildlife   Sanctuary - No houseing project is valid

the housing project, on the ground that the area in question falls within the catchment
area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife   Sanctuary.   The   Survey   Map   of   India   dated   21.09.2004, demarcating the area of Sukhna Lake, is binding on the State of Punjab.
The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is invalid.

= considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, in our opinion, no such project can be allowed to come up in the area in question.
The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. I
t is clear why Government has not been able to protect the eco­sensitive zone around a Wildlife and has permitted setting up of high­rise buildings up to 92 meters in the area in question, which is not at all permissible.
Resultantly, we hold that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Moreso, in view   of   the   Notification   issued   with   respect   to   the   Sukhna   wildlife sanctuary   towards   the   side   of   Chandigarh   Union   Territory   and   also
considering   the   fact   that   proposal   made   by   the   Punjab   Government, confining the Buffer Zone to 100 meters, has rightly not been accepted by MoEF, as the Government of Punjab as well as the MoEF, cannot be the final arbiter in the matter. 
The Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco­sensitive zone.   T
he entire exercise of obtaining clearance relating to the project is quashed.  We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly.   The  entire  exercise  smacks  of  arbitrariness  on  the  part  of
Government including functionaries. 

REPORTABLE
SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
    CIVIL APPEAL NOS.   8398-8399  OF 2019
(ARISING OUT OF SLP(C) NOS.21375­21376 OF 2017)
TATA HOUSING DEVELOPMENT COMPANY LTD.    ..APPELLANT(S)
VERSUS
AALOK JAGGA AND OTHERS      ..RESPONDENT(S)
J U D G M E N T
ARUN MISHRA, J.
1. The   appellant   has   questioned   the   judgment   and   order   dated
12.04.2017 passed by the High Court of Delhi, concerning the housing
project, on the ground that the area in question falls within the catchment
area of Sukhna Lake and is 123 meters away from the boundary of Sukhna
Wildlife   Sanctuary.   The   Survey   Map   of   India   dated   21.09.2004,
demarcating the area of Sukhna Lake, is binding on the State of Punjab.
The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya
Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is invalid.
The   environment   clearance   dated   17.09.2013,   granted   by   State   Level
Environment Impact Assessment Authority (SEIAA) for development of the
project   is   not   in   conformity   with   the   Notification   dated   14.09.2006   of
Ministry of Environment and Forest (MoEF), has also been set aside. It has
also been ordered that if the permission is granted by the State of Punjab
in   favour   of   the   appellant   if   it   so   desires,   it   may   apply   to   Central
Government for environmental clearance treating project category 'A.'
2. The Tata HDCL proposed to develop a project, namely, “CAMELOT” in
the revenue estate of village­Kansal, Tehsil­Kharar, District­Mohali, State of
Punjab. The total project area is 52.66 acres, out of which 41.54 acres is to
be developed for group housing built­up area of 4,63,144.54 sqm. The
parking facility is to be provided for 3645 ESS. The estimated population of
the project area was about 9788. The proposed maximum height of the
building was to be 92.65 meters. Environmental clearance was required in
terms   of   the   Notification   dated   14.09.2006   issued   by   MoEF,   which
mandates prior to environmental clearance from the Central Government
or by the SEIAA. The Notification has a statutory force having been issued
under Section 3(1) and 3(2)(v) of the Environmental (Protection) Act, 1986
(“E.P. Act”) read with Rule 5(3)(d) of the Environment (Protection) Rules,
1996 (“E.P. Rules”). Tata HDCL applied for environmental clearance from
SEIAA,   Punjab.   The   application   was   forwarded   to   the   State   Expert
Appraisal   Committee   (SEAC).   In   the   meeting   dated   06.06.2009,   the
committee   awarded   “gold   grading”   to   the   proposed   project   and
recommended to forward the project to SEIAA for grant of environmental
clearance   subject   to   the   conditions   specified   therein.   The   MoEF
recommended   for   environmental   clearance   in   its   meeting   held   on   09­
10.11.2010. However, MoEF had called a report from Northern Regional
Office, Chandigarh vide letter dated 14.10.2010 regarding the proposed
project.  A team of officers inspected the project site, and, in the report, the
distance   of   the   housing­cum­retail   project   “CAMELOT”   from   Sukhna
Wildlife Sanctuary is found to be 123 meters on Northern side and 183
meters on the Eastern side. Besides, the report stated that the project falls
in the catchment area of Sukhna Lake as per the Survey of India Map.
3. On 12.01.2011, Tata HDCL addressed a letter to MoEF stating that
the project site does not contribute to the catchment area of Sukhna Lake
as physically the project area does not obstruct the natural flow of water
towards Sukhna Lake.
4. In   the   meanwhile,   C.W.P.   No.20425/2010   titled   “Aalok   Jagga   vs.
Union of India and others” was filed in the High Court of Punjab and
Haryana at Chandigarh, challenging the project to be in violation of the
provisions of Punjab New Capital (Periphery) Control Act, 1952 as well as
the E.P. Act claiming that the project lies in the eco­sensitive and protected
area, apart from falling within the catchment area of Sukhna Lake.
5. The   SEIAA   sought   clarification   from   MoEF   as   to   whether   it   is
competent to consider the application since the Sukhna Wildlife Sanctuary
is located at a distance of 123 meters from the project site as per the report
of Northern Regional Office of MoEF. The High Court vide order dated
26.03.2012 directed the Tata HDCL to comply with the requirements of the
E.P.   Act   and   Wildlife   (Protection)   Act   for   obtaining   grant   of   necessary
clearances/sanctions/permissions from the competent authorities.
6. Sarin   Memorial   Legal   Foundation   filed   Writ   Petition   (Civil)
No.994/2013   in   this   Court   on   09.11.2013,   under   Article   32   of   the
Constitution   of   India   challenging   the   decision   of   SEIAA,   Punjab   dated
06.09.2013.
7. Order dated 21.08.2013 was passed by the High Court of Punjab and
Haryana in which it was ordered that the project of Tata HDCL would not
be affected by the orders passed on 14.03.2011 and 14.05.2012 in CWP
No.18253/2009. Sarin Memorial Legal Foundation also questioned the said
order in this Court. This Court vide order dated 22.04.2014 disposed of
W.P.(C) No.994/13 and Civil Appeal No.4848/2014 filed by Sarin Legal
Memorial Foundation. The order passed by the High Court of Punjab and
Haryana on 26.03.2012 was set aside. The writ petition was restored; the
matters were transferred for the decision to the High Court of Delhi.
8. Municipal Area of Naya Gaon was notified on 18.10.2006 as the 'Local
Planning Area’ of Naya Gaon. 'Existing Land Use Plan’ and 'Draft Master
Plan’ for Nagar Panchayat Naya Gaon were prepared. Nagar Panchayat
Naya Gaon granted permission to raise the construction to Tata HDCL on
09.04.2012. The Tata HDCL claimed, because of the permission granted,
under   Section   6(2)   of   the   Periphery   Control   Act,   1952,   and   the
environmental clearance granted under the EP Act, that they were entitled
to proceed with the construction of the project in question. However, the
petitioners, as well as the Chandigarh Administration, disputed the stand
taken by the State of Punjab.
9. Union Territory of Chandigarh has taken the stand that the area falls
within the catchment area of Sukhna Lake as such no construction can be
raised as per the Survey of India Map. It was adjacent to the wildlife
sanctuary, and the distance was 123 meters. There was a violation of the
Periphery Control Act, and also clearance was not granted in terms of
Notification dated 14.09.2006 of MoEF.
10. It is pointed out that under the order passed by this Court to specify
the area as the eco­sensitive zone around wildlife sanctuary, the State of
Punjab   had   forwarded   a   proposal   to   the   MoEF   for   permitting   the
construction beyond 100 meters that has not been accepted by MoEF. It is
also submitted that towards the other side of the Sukhna Wildlife Santuary
Lake area of 2 km. to 2.75 km. has been declared as an eco­sensitive zone.
The MoEF had asked the State of Punjab to send a proposal for keeping the
eco­sensitive zone within 1 km. to which the State of Punjab has not
responded for the reasons best known to it.
11. It  is  also   the   case   set  up  that  initially,  the   housing  project  was
proposed   for   the  'Punjab   MLA   Society'   for   construction   of   residential
houses of MLAs of Punjab Legislature. Subsequently, the said land was
sold to M/s. Hash Builders Private Limited with an understanding that
each   member   of   Punjab   MLA   Society   would   be   allotted   one   flat.   The
impugned environment clearance dated 17.09.2013 has also suffered from
legal malafides, and it amounts to colourable exercise of power since about
95  MLAs  of  the  State  of  Punjab  are  the  beneficiaries   of  the  proposed
project.
12. In W.P.(C) No.2999/2014, it was submitted that the proposed project
for extraneous considerations is illegal. The proposed project is located
about 1500 meters from Sukhna Lake and 123 meters from the Wildlife
Sanctuary.   The   project   is   zero   kilometers   from   the   periphery   of
Chandigarh. The project would destroy the wildlife sanctuary and would
cause a serious threat to Sukhna Lake. The High Court had banned all
construction activities in the catchment area of Sukhna Lake in C.W.P.
No.7649/2003. The project would adversely affect the environment within
Chandigarh and increase noise pollution by several manifolds, which would
harm   the   wildlife   present   in   the   adjoining   Sukhna   Wildlife   Sanctuary.
Impact of a high­rise building having 28­storeys on the edict and norms of
the city of Chandigarh has not been properly considered.
13. The State of Punjab has supported the case set up by Tata HDCL, the
edict of Chandigarh is not applicable in the area in question. Survey of
India Map regarding the catchment area of Sukhna Lake, is not conclusive
since the objections are yet to be heard. SEIAA rightly considered the
application since the nearest distance of Sukhna Wildlife Sanctuary from
the project boundary on the northern side is 123 meters., as per the Office
Memorandum   dated   02.12.2009   of   MoEF.   Tata   HDCL   has   to   obtain
clearance from the Standing Committee of the National Board for Wildlife
before starting any work on the site.
14. In the counter affidavit filed by the Union Territory of Chandigarh, it
is  submitted   that  the   area  in  question  falls  in   the  catchment  area  of
Sukhna Lake and the heritage zone of the Capitol Complex, the project
would have a direct impact on the existence of Sukhna Lake and the
environs of Chandigarh City. The Northern side of the Chandigarh, which
is also the catchment area of Sukhna Lake, is an ecologically fragile area
and   substantial   part   thereof   comprises   of   forest   area   that   has   been
declared   a   Wildlife   Sanctuary.   The   Chandigarh   Administration   is   fully
committed to saving the heritage of Chandigarh, its forest area, wildlife
sanctuaries, and preserve Sukhna Lake. The Conservator of Forests of
Chandigarh has written a letter to the Chief Architect, UT of Chandigarh,
for the inclusion of the area proposed as Wildlife Corridor along with the
approval accorded by the Planning Commission of India in the Master Plan
of Chandigarh. It is also submitted that the project is located within the
eco­sensitive zone and 10 km. from Sukhna Wildlife Sanctuary, thus the
prior clearance from the Standing Committee of National Board of Wildlife
before seeking environmental clearance was required to be obtained. The
High Court has passed the orders for protection of Sukhna Lake and its
catchment area that no housing, commercial, or industrial project can be
allowed on the North of the Capitol Complex of Chandigarh. Thus, it is
submitted   that  no   construction   may  be   permitted   to   the   North   of  the
Chandigarh. The environmental clearance has been illegally granted. There
was no jurisdiction to SEIAA, Punjab to grant environmental clearance as
the project in question is category 'A.' The High Court vide order dated
14.05.2012   has   also   noted   that   the   Chandigarh   Administration   had
adopted  the  Survey of  India  Map  as  a  map  of  the  catchment  area of
Sukhna Lake. The order was passed to give wide publicity to the general
public that no construction is permitted in that area. In paragraph 60 of
the   impugned   judgment,   in   respect   of   Survey   of   India   Map,   following
finding has been recorded:
“60. xxx  xxx xxx
(i) The Survey of India map dated 21.09.2004 is the only document
available on record identifying and demarcating the catchment area of
Sukhna   Lake.   Admittedly   the   said   map   was   prepared   under   the
directions   of   the   High   Court   of   Punjab   and   Haryana   in CWP
No.7649/2003 (Dr. B. Singh vs. Union of India). It is also not in
dispute that the demarcation of boundaries of catchment area was
made after carrying out a survey by Technical Experts and in due
consultation  with  the  State  of Punjab,  State  of Haryana  and  U.T.
Chandigarh.”
15. The High Court has also referred to the joint inspection report made
on 10.01.2011 by a team of the officer from different department along with
Tata   HDCL.   The   observations   of   the   inspecting   team   are   extracted
hereinunder:
“1.   The   nearest   distance   from   the   boundary   of   the   project   site   was
measured   by   the   staff   members   of   Forest   Department   of   U.T.
Administration Chandigarh using measuring tape at two points:
i. The nearest distance of Sukhna Wildlife Sanctuary from the project
boundary on northern side is 123 meters.
ii.  The   distance   of  Sukhna  Wildlife   Sanctuary  from  the   boundary  of
project area on Eastern side is 185 meters.
It is clarified that a part of the catchment area of Sukhna Lake has been
declared as Sukhna Wildlife Sanctuary under Section 26­A of the Wildlife
(Protection) Act, 1972 by Chandigarh Administration vide Notification
No.694­HII(4)98/4519 dated 6th March 1998 (copy enclosed).
The Tata Housing Project falls in the jurisdiction of Nagar Panchayat,
Naya Gaon, District Mohali, State of Punjab, which is approximately
1500 metres away from Sukhna Lake (aerial distance). Further, it also
falls under the catchment area of Sukhna Lake as per the Survey of India
map.
2. It has been observed by the team that no construction activities have
been started by the Project authorities at site. Only wire fencing has been
done to demarcate the boundary of the acquired land area. In addition to
it, solar light posts have been raised at different spots of the boundary,
and a site office comprising three rooms has been constructed. It is
stated by the Project Proponent that these offices were constructed by the
Defence Services Cooperative Housing Building Society Ltd., and the Tata
Housing Development Company has only renovated them for using as a
site office. The photographs of different locations of the sites are attached
to show that there is no construction activity at the site so far.
It   is   also   mentioned   here   that   there   are   existing   houses   and   other
constructed buildings in Kansal area, which are a part of Kansal village
in Punjab and other spontaneous construction.
During   the   inspection,   it   has   been   informed   that   any   notification
declaring eco­sensitive zones has not been issued by U.T. Chandigarh
Administration and State Government of Punjab till date.
The report is submitted to the Ministry of Environment and Forests for
kind information and further necessary action."
The High Court has ultimately given the finding that the project site
is found to be a part of the area of Sukhna Lake. The permission granted
by Nagar Panchayat on 05.07.2013 to Tata HDCL has been set aside.
Verification was sought from the MoEF as Sukhna Wildlife Sanctuary was
located at a distance of 123 meters away from the proposed project. SEAC,
Punjab,   considered   the   matter   on   18.04.2013.   Pursuant   to   that,   Tata
HDCL filed a revised application on 08.05.2013 in Form I and Form IA. In
Form I, the project was described as “Group Housing (CAMELOT) Project"
and it falls under Item 8(b) of the Schedule. The plot area was shown as
52.66 acres, and the net plot area (after the surrender of area for services)
was shown as 46.10 acres. The built­up area was shown as 4,63,144.54
sq.m.   Concerning   the   information   as   to   whether   the   proposal   involves
approval/clearance under the Wildlife Protection Act, 1972, in the form it
was stated:
"Clearance required from Standing Committee of National Wildlife Board,
New Delhi being project within 10 km. from the boundaries of Sukhna
Wildlife Sanctuary, as on date Eco­Sensitive Zone has not been declared
around Sukhna Wildlife Sanctuary." 
16. With respect to wildlife sanctuary, the High Court has made the
following observations:
“183.   It   is   relevant   to   note   that   the   consideration   by   EAC   of   MoEF,
Government of India, was on the basis of the Tata HDCL's first application
dated 25.03.2009. In the light of the stand taken by SEIAA Punjab in its
counter affidavit, it is clear that no EIA Report was prepared after the
submission of the revised application dated 08.05.2013 by Tata HDCL. In
the revised application dated 08.05.2013, it was for the first time admitted
by Tata HDCL that its proposed project is situated within the prohibited
distance of 10 km. from Sukhna Wildlife Sanctuary. It was also admitted
that the ariel distance from the proposed project and Sukhna Lake is 123
meters (N) and 185 meters (E).”
184. xxx xxx  xxx
185. Significantly, this is a case where the project in question is situated
within 123 meters from Sukhna Wildlife Sanctuary as recorded in the Site
Inspection Report dated 10.01.2011 on the basis of the inspection of the
project   site   conducted   by   a   team   of   officers   in   the   presence   of   the
representatives of Tata HDCL in compliance with the direction of MoEF vide
letter   dated   14.10.2010.   Though   Tata   HDCL   addressed   a   letter   dated
12.01.2011 to MoEF explaining that the project area does not obstruct the
natural   flow   of   water   towards   Sukhna   Lake,   the   factum  of   location   of
Sukhna Wildlife Sanctuary within 123 meters on Northern side and 183
meters on the Eastern side of the project was not disputed. In the light of
the said admitted fact, SEIAA, Punjab in its meeting dated 15.12.2011
decided to get a clarification from MoEF as to whether SEIAA, Punjab is
competent to consider the application and accordingly addressed a letter to
MoEF.”
17. Concerning   the   declaration   of   the   Buffer   Zone   around   Wildlife
Sanctuary, the following facts have been noted by the High Court:
“193. Regarding the representation of UT Chandigarh dated 09.05.2013
under  Section 3 of the Environment (Protection) Act, requesting to declare a
Buffer Zone up to 2 ­ 2.75 km. around all sanctuaries, including Sukhna
Wildlife Sanctuary, it is submitted by the learned Senior Counsel that the
State of Punjab by its proposal dated 18.09.2013 thought it fit to confine
the Buffer Zone to 100 meters only. It is also pointed out by the learned
Senior Counsel that so far no notification has been issued by the Central
Government under Section 3 of the Environment Protection Act.  Thus, it is
sought to contend that there is no area earmarked as eco sensitive zone
around   the   Sukhna   Wildlife   Sanctuary   nor   a   Buffer   Zone   has   been
declared as of today.
194. xxx  xxx  xxx
195. It is also pointed out by Sh. Gopal Subramaniam that in fact State of
Punjab, had sent a proposal dated 18.09.2013 requesting the Union of
India/MoEF to confine the buffer zone to 100 mtrs. only in the context of
Section 3 of Environment (Protection) Act, 1986.”
18. The High Court has noted that after reserving the matter, a short
affidavit dated 09.03.2017 has been filed on behalf of the Union Territory,
Chandigarh,  stating that Ministry of  Environment  Forests  and  Climate
Change, in exercise of the powers conferred by Section 3(2) and 3(3) of the
E.P. Act read with Rule 5(3) of the E.P. Rules has notified an area of 1050
hectares, to an extent varying from 2 km. to 2.75 km. from the boundary of
Sukhna Wildlife Sanctuary in the Union Territory of Chandigarh, for that
Notification dated 18.01.2017 has been issued. The High Court has also
relied on the conditions of Notification, which is extracted hereinunder:
“197…….However, after reserving the judgment in the petitions, a short
affidavit dated 09.03.2017 came to be filed on behalf of U.T. Chandigarh in
W.P.(C) No.2924/2014 stating that the Central Government, Ministry of
Environment,   Forests   and   Climate   Change,   in   exercise   of   the   powers
conferred by Section 3(2) and (3) of the Environment (Protection) Act, 1986
read with Rule 5(3) of the Environment (Protection) Rules, 1986 notified an
area of 1050 hectares, to an extent varying from 2.0 kilometers to 2.75
kilometers from the boundary of Sukhna Wildlife Sanctuary in the Union
Territory of Chandigarh on the side of Chandigarh as the Sukhna Wildlife
Sanctuary, Eco­Sensitive Zone vide Notification dated 18.01.2017. A copy
of   the   said   Notification   has   also   been   produced,   and   Para   4   thereof
contains the list of activities prohibited or to be regulated within Ecosensitive Zone. "Construction Activities" have been included in the said list
under Part B­"Regulated Activities."     Rule 4 to the extent, it is relevant for
the present case may be extracted hereunder:
"4. list of activities prohibited or to be regulated within Eco­Sensitive Zone.
­ All activities in the Eco­sensitive Zone shall be governed by the provisions
of the Environment (Protection) Act, 1986 (29 of 1986) and the rules made
thereunder and shall be regulated in the manner specified in the Table
below, namely:­
TABLE
A. Prohibited Activities 
B. Regulated Activities
12. Construction activities:
No new commercial construction of any kind shall be permitted within 0.5
kilometre   (Zone­I)   from   the   boundary   of   protected   area   or   up   to   the
boundary of the Eco­sensitive Zone whichever is nearer:
Provided that, local people shall be permitted to undertake construction in
their land for their residential use, including the activities listed in subparagraph (1) of paragraph 3.
(a) Construction of all types of new buildings and houses up to a distance
of 0.5 kilometer i.e., in the zone­I shall be prohibited; from 0.5 kilometre to
1.25   kilometre   from   the   boundary   of   Sukhna   Wildlife   Sanctuary,
construction of low density (ground coverage less than half of the plot size)
and low rise building (height up to 15 feet) can be allowed if permissible
under the prescribed land use plan of the area; any construction will have
to adhere to the Development Regulation applicable to the area and shall
be regulated as per the Eco­sensitive Zone management plan; beyond 1.25
kilometre construction of new buildings and houses shall be regulated as
per existing Chandigarh Administration Building Bylaws and Architectural
Control/Zoning regulation of Union territory Administration. Construction
of basement in Zone­I of Eco­sensitive Zone shall not be allowed, however,
reconstruction/repair of building in Zone­I shall be allowed subject to the
restriction as above i.e. construction of low density (ground coverage less
than half of the plot size) and low rise building (height upto 15 feet).
 (b) The construction activity related to small scale industries not causing
pollution shall be regulated and kept at the minimum, with the prior
permission from the competent authority as per the applicable rules and
regulations, if any.
(c) The further construction and augmentation of civic amenities shall be
regulated as per the Zonal Master Plan.
198.   As   could   be   seen   from   Para   4   of   the   above   Notification,   the
construction activities in the Eco­sensitive Zone apart from being governed
by the provisions of the Environment (Protection) Act, 1986 and the Rules made
thereunder shall be regulated in the manner specified therein. Admittedly,
the project in question is located at a distance of 123 meters from Sukhna
Wildlife Sanctuary. Therefore, the construction of the proposed project not
only   requires   the   environmental   clearance   as   provided   under   the
Notification dated 14.09.2006, but it is also subject to the regulations
provided under Para 4 of the Notification dated 18.01.2017 issued by the
Ministry of Environment, Forests and Climate Change.”
(emphasis supplied)
19. The Notification makes it clear that no new commercial construction
of   any   kind   shall   be   permitted   within   0.5   km.   from   the   boundary   of
protected   area   or   up   to   the   boundary   of   the   eco­sensitive   zone.
Construction of all types of new buildings and houses up to a distance of
0.5   km.   in   the   zone­I   shall   be   prohibited   from   0.5   km.   to   1.2   km,
construction of low density (ground coverage less than half of the plot size)
and low rise building about 15 feet can be permitted.
20. Given   the   findings   above,   recorded   by   the   High   Court   as   to   the
distance from the Wildlife Sanctuary, we have heard learned counsel for
the   parties   on   the   issue   at   length.   Whether   housing   activities   are
permissible within a short distance of 123 meters from Sukhna Wildlife
Sanctuary, such a project can be permitted to come up.
21. It is not in dispute that proposal, which was sent by the Government
of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from
Sukhna Wildlife Sanctuary, had not been accepted and the direction was
issued to resubmit the proposal for at least 1 km Buffer Zone has not been
forwarded by State of Punjab.
22. In Goa Foundation vs. Union of India, (2011) 15 SCC 791, order for
the purpose of protection of wildlife sanctuary and eco­sensitive zone has
been passed to following effect: 
 “1. The order dated 16­10­2006 refers to a Letter dated 27­5­2005, which
was addressed by the Ministry of Environment and Forests (MoEF) to the
Chief Wildlife Wardens of all States/Union Territories requiring them to
initiate measures for identification of suitable areas and submit detailed
proposals at the earliest. The order passed on that date was that MoEF
shall file an affidavit stating whether the proposals received pursuant to
the letter of 27­5­2005 have been referred to the Standing Committee of
the National Board for Wildlife under the Wildlife (Protection) Act, 1972 or
not. It was further directed that such of the States/Union Territories who
have not responded to the letter dated 27­5­2005 shall do the needful
within four weeks of the communication of the directions of this Court by
the Ministry to them.
2.   It   seems   that   despite   the   letter   dated   27­5­2005   and   despite   the
Ministry having issued reminders and also bringing to the notice of the
States/Union Territories the orders of this Court dated 16­10­2006, the
States/Union Territories have not responded. However, we are told that
the State of Goa alone has sent the proposal, but that too does not appear
to be in full conformity with what was sought for in the letter dated 27­5­
2005.
3. The order earlier passed on 30­1­2006 refers to the decision which was
taken on 21­1­2002 to notify the areas within 10 km of the boundaries of
national parks and sanctuaries as eco­sensitive areas. The letter dated 27­
5­2005 is a departure from the decision of 21­1­2002. For the present, in
this case, we are not considering the correctness of this departure. That is
being examined in another case separately. Be that as it may, it is evident
that the States/Union Territories have not given the importance that is
required to be given to most of the laws to protect environment made after
Rio Declaration, 1992.
4. The Ministry is directed to give a final opportunity to all States/Union
Territories to respond to its letter dated 27­5­2005. The State of Goa also
is permitted to give appropriate proposal in addition to what is said  to
have already been sent to the Central Government. The communication
sent   to   the   States/Union   Territories   shall   make   it   clear  that   if   the
proposals are not sent even now within a period of four weeks of receipt of
the communication from the Ministry, this Court may have to consider
passing orders for implementation of the decision that was taken on 21­1­
2002, namely, Notification of the areas within 10 km of the boundaries of
the sanctuaries and national parks as eco­sensitive areas with a view to
conserve the forest, wildlife and environment, and having regard to the
precautionary   principles.   If   the   States/Union   Territories   now   fail   to
respond, they would do so at their own risk and peril.
5. The MoEF would also refer to the Standing Committee of the National
Board   for   Wildlife,   under   Sections   5­B   and   5­C(2)   of   the   Wildlife
(Protection) Act, the cases where environment clearance has already been
granted where activities are within 10 km zone.
6. List the matter after eight weeks.”
(emphasis supplied)
23. It was incumbent upon the State of Punjab to send a proposal to the
MoEF, as required but it appears that it has not chosen to do so for a
reason precious project concerning the MLAs is involved, and MoEF has
not accepted its proposal for keeping Buffer Zone to 100 meters. It has also
been pointed out from the respondent side that Naya Gaon forms part of
the Greater Mohali Region in the State of Punjab. In the statutory, Greater
Mohali   Area   Development   Authority,   Regional   Plan   for   Greater   Mohali
Region in paragraph 14.3.1, it has been mentioned that no development is
possible within 5 kms buffer distance from existing forest  i.e., Sukhna
Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of
forests distributed all over the Greater Mohali Region. These have to be
conserved, and the buffer zone recommended should be protected against
urban development.
24. It is also clear that 2­2.75 km area has been ordered as eco­sensitive
zone by the MoEF and the notification dated 18.1.2017 has been issued as
to   the   adjacent   area   towards   Chandigarh   side   of   the   Sukhna   Wildlife
Sanctuary.
25. The most potent threat faced by the earth and human civilization as a
whole which is confronted with, today, is environmental degradation and
wildlife degeneration. The need to protect flora and fauna which constitutes
a   major   portion   of   our   ecosystem   is   immediate.       Development   and
urbanization   coming   at   the   cost   of   adversely   affecting   our   natural
surroundings will in turn impact and be the cause of human devastation
as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala.  The
climate change is impacting wildlife by disrupting the timing of natural
events. With warmer temperatures, flowering plants are blooming earlier in
the year and migratory birds are returning from their wintering grounds
earlier in the spring.   Wildlife conservation in India has a long history,
dating back to the colonial period when it was rather very restrictive to only
targeted species and that too in a defined geographical area. Then, the
formation of the Wildlife Board at the national level and enactment of
Wildlife   Act   in   1972   laid   the   foundation   of   present   day   “wildlife
conservation” era in post­independent India. Project Tiger in the 1970s and
the Project Elephant in 1992–both with flagship species–attracted global
attention. India then also became a member of all major international
conservation   treaties   related   to   habitat,   species   and   environment   like
Ramsar   Convention,   1971;   Convention   on   International   Trade   in
Endangered   Species   of   Wild   Fauna   and   Flora,   1973;   Convention   on
Migratory Species, 1979; Convention on Biological Diversity, 1992, among
others.
26. The human as well as the wildlife are completely dependent upon
environment for their survival.   Human is completely dependent on the
environment.   Like the human, the wild life is also dependent on the
environment for it’s survival and also get effected by the environment.  The
relationship between the human and animal can be understood by the
food­chain and food­web.  The wildlife is affected by several reasons such
as   population,   deforestation,   urbanization,   high   number   of   industries,
chemical   effluents,   unplanned   land­use   policies,   and   reckless   use   of
natural resources etc.
27. The Directive Principles of State Policy provide that protection and
improvement of environment, safeguarding forest and wildlife have been
duly   enjoined   upon   the   Government.     Those   principles   have   found
statutory expression in various enactments  i.e., Wildlife (Protection) Act,
E.P. Act etc., which have been enforced by this Court in various decisions.
The inaction of State  to constitutional  and  statutory duties cannot be
permitted.     The Court has to  issue  appropriate  directions to  fulfil the
mandate. Article 51(A) provides fundamental duty to protect and preserve
environment, wild life etc.
28. Articles 48(A) and 51(A)(g) of the Constitution of India reads as under:
“48A.   Protection   and   improvement   of   environment   and
safeguarding of forests and wild life.­ The State shall endeavour to
protect and improve the environment and to safeguard the forests and
wild life of the country.
51A.  Fundamental  duties.­ It shall be the duty of every citizen of
India­
(g) to protect and improve the natural environment including forests,
lakes,   rivers   and   wild   life,   and   to   have   compassion   for   living
creatures;”
29. In  Animal and Environment Legal Defence Fund v. Union of India,
(1997)   3  SCC   549,   the   Court   in   order  to   protect  wildlife,   forest,   tiger
reserve, fragile ecology, dealt with public trust doctrine thus:
“11. Therefore, while every attempt must be made to preserve the
fragile ecology of the forest area, and protect the Tiger Reserve, the
right of the tribals formerly living in the area to keep body and soul
together must also receive proper consideration. Undoubtedly, every
effort should be made to ensure that the tribals, when resettled, are in
a position to earn their livelihood. In the present case it would have
been far more desirable, had the tribals been provided with other
suitable fishing areas outside the National Park or had been given land
for cultivation. Totladoh dam where fishing is permitted is in the heart
of the National Park area. There are other parts of the reservoir which
extend to the borders of the National Park. We are not in a position to
say whether these outlying parts of the reservoir are accessible or
whether they are suitable for fishing, in the absence of any material
being placed before us by the State of Madhya Pradesh or by the
petitioner. Some attempts, however, seem to have been made by the
State   of   Madhya   Pradesh   to   contain   the   damage   by   imposing
conditions on these fishing permits. The permissions which have been
given are subject to the following conditions:
(1) The identified families will be given photo identity cards on the
basis of which only fishing and transport will be permitted;
(2) During the rainy season (months: July to October) fishing will
be totally banned;
(3) During the rest of the year, entry will be permitted in the water
from 12 p.m. to 4 p.m. and transport of fish will be allowed before
sunset;
(4) The photo identity card­holders will not be allowed to enter the
National Park or the islands in the reservoir nor will they be allowed to
make night halts;
(5) Transport of fish will be allowed only on Totladoh­Thuepani
Road from Totladoh reservoir.
15. Since all the claims in respect of the National Park area in the
State of Madhya Pradesh as notified under Section 35(1) have been
taken care of, it is necessary that a final notification under Section
35(4) is issued by the State Government as expeditiously as possible.
In the case of  Pradeep Krishen  v.  Union of India,  (1996) 8 SCC 599,
this Court had pointed out that the total forest cover in our country is
far less than the ideal minimum of 1/3rd of the total land. We cannot,
therefore,   afford   any   further   shrinkage   in   the   forest   cover   in   our
country. If one of the reasons for this shrinkage is the entry of villagers
and tribals living in and around the sanctuaries and the National Park
there can be no doubt that urgent steps must be taken to prevent any
destruction or damage to the environment, the flora and fauna and
wildlife in those areas. The State Government is, therefore, expected to
act with a sense of urgency in matters enjoined by Article 48­A of the
Constitution keeping in mind the duty enshrined in Article 51­A(g).
We, therefore, direct that the State Government of the State of Madhya
Pradesh shall expeditiously issue the final notification under Section
35(4) of the Wild Life (Protection) Act, 1972 in respect of the area of the
Pench National Park falling within the State of Madhya Pradesh.”
30. The Doctrine of Public Trust has been considered by this Court in
M.C. Mehta vs. Kamal Nath and others, (1997) 1 SCC 388. This Court has
made the following observations:
“24.  The ancient Roman Empire developed a legal theory known as the
"Doctrine of the Public Trust." It was founded on the ideas that certain
common properties such as rivers, seashore, forests and the air were held
by Government  in trusteeship for the free  and unimpeded use of the
general public. Our contemporary concern about “the environment” bear a
very close conceptual relationship to this legal doctrine. Under the Roman
law these resources were either owned by no one (res nullious) or by every
one   in   common   (res   communious).   Under   the   English   common   law,
however, the Sovereign could own these resources, but the ownership was
limited in nature, the Crown could not grant these properties to private
owners if the effect was to interfere with the public interests in navigation
or fishing. Resources that were suitable for these uses were deemed to be
held in trust by the Crown for the benefit of the public. Joseph L. Sax,
Professor   of   Law,   University   of   Michigan   —   proponent   of   the   Modern
Public Trust Doctrine — in an erudite article “Public Trust Doctrine in
Natural   Resource   Law  :  Effective   Judicial   Intervention”,   Michigan   Law
Review, Vol. 68, Part 1 p. 473, has given the historical background of the
Public Trust Doctrine as under:
“The source of modern public trust law is found in a concept
that received much attention in Roman and English law — the
nature of property rights in rivers, the sea, and the seashore.
That history has been given considerable attention in the legal
literature, need not be repeated in detail here. But two points
should   be   emphasized.   First,   certain   interests,   such   as
navigation  and  fishing,  were  sought  to be  preserved  for  the
benefit   of   the   public;   accordingly,   property   used   for   those
purposes was distinguished from general public property which
the sovereign could routinely grant to private owners. Second,
while it was understood that in certain common properties —
such   as   the   seashore,   highways,   and   running   water   —
'perpetual use was dedicated to the public,' it has never been
clear whether the public had an enforceable right to prevent
infringement of those interests. Although the State apparently
did protect public uses, no evidence is available that public
rights   could   be   legally   asserted   against   a   recalcitrant
government.”
25. The Public Trust Doctrine primarily rests on the principle that certain
resources   like   air,   sea,   waters,   and   the   forests   have   such   a   great
importance to the people as a whole that it would be wholly unjustified to
make them a subject of private ownership. The said resources being a gift
of nature, they should be made freely available to everyone irrespective of
the status in life. The doctrine enjoins upon the Government to protect the
resources for the enjoyment of the general public rather than to permit
their  use  for  private  ownership  or commercial   purposes.   According  to
Professor Sax, the Public Trust Doctrine imposes the following restrictions
on governmental authority:
33. It is no doubt correct that the public trust doctrine under the English
common law extended only to certain traditional uses such as navigation,
commerce, and fishing. But the American Courts in recent cases have
expanded the concept of the public trust doctrine. The observations of the
Supreme Court of California in  Mono Lake case,  33 Cal 3d 419, clearly
show the judicial concern in protecting all ecologically important lands, for
example, freshwater, wetlands, or riparian forests. The observations of the
Court in  Mono Lake case  to the effect that the protection of ecological
values is among the purposes of public trust may give rise to an argument
that the ecology and the environment protection is a relevant factor to
determine which lands, waters or airs are protected by the public trust
doctrine. The Courts in United States are finally beginning to adopt this
reasoning and are expanding the public trust to encompass new types of
lands and waters. In  Phillips Petroleum Co.  v.  Mississippi, 108 SCT 791
(1988), the United States Supreme Court upheld Mississippi's extension of
public trust doctrine to lands underlying non­navigable tidal areas. The
majority judgment adopted ecological concepts to determine which lands
can be considered tidelands. Phillips Petroleum case assumes importance
because the Supreme Court expanded the public trust doctrine to identify
the   tidelands   not   on   commercial   considerations   but   on   ecological
concepts. We see no reason why the public trust doctrine should not be
expanded to include all ecosystems operating in our natural resources.”
31. In Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647,
the Court considered the concept of sustainable development thus:
“10. The traditional concept that development and ecology are opposed
to each other is no longer acceptable. “Sustainable Development” is
the answer. In the international sphere, “Sustainable Development” as
a   concept   came   to   be   known   for   the   first   time   in   the   Stockholm
Declaration  of 1972.  Thereafter,   in  1987  the concept  was  given  a
definite   shape   by   the   World   Commission   on   Environment   and
Development   in   its   report   called   “Our   Common   Future”.   The
Commission was chaired by the then Prime Minister of Norway, Ms
G.H.   Brundtland   and   as   such   the   report   is   popularly   known   as
“Brundtland Report”. In 1991 the World Conservation Union, United
Nations   Environment   Programme   and   Worldwide   Fund   for  Nature,
jointly came out with a document called “Caring for the Earth” which
is a strategy for sustainable living. Finally, came the Earth Summit
held in June 1992 at Rio which saw the largest gathering of world
leaders ever in the history — deliberating and chalking out a blueprint
for the survival of the planet. Among the tangible achievements of the
Rio Conference was the signing of two conventions, one on biological
diversity   and   another   on   climate   change.   These   conventions   were
signed by 153 nations. The delegates also approved by consensus
three   non­binding   documents   namely,   a   Statement   on   Forestry
Principles, a declaration of principles on environmental policy and
development initiatives and Agenda 21, a programme of action into the
next century in areas like poverty, population and pollution. During
the two decades from Stockholm to Rio “Sustainable Development” has
come to be accepted as a viable concept to eradicate poverty and
improve the  quality of human life while  living within the carrying
capacity of the supporting ecosystems. “Sustainable Development” as
defined by the Brundtland Report means “Development that meets the
needs of the present without compromising the ability of the future
generations   to   meet   their   own   needs”.   We   have   no   hesitation   in
holding   that   “Sustainable   Development”   as   a   balancing   concept
between ecology and development has been accepted as a part of the
customary international law though its salient features have yet to be
finalised by the international law jurists.
16. The constitutional and statutory provisions protect a person’s right
to   fresh   air,   clean   water   and   pollution­free   environment,   but   the
source   of   the   right   is   the   inalienable   common   law   right   of   clean
environment.   It   would   be   useful   to   quote   a   paragraph   from
Blackstone’s commentaries on the Laws of England (Commentaries on
the Laws of England of Sir William Blackstone) Vol. III, fourth edition
published in 1876. Chapter XIII, “Of Nuisance” depicts the law on the
subject in the following words:
“Also, if a person keeps his hogs, or other noisome animals, or
allows filth to accumulate on his premises, so near the house of
another,   that   the   stench   incommodes   him   and   makes   the   air
unwholesome, this is an injurious nuisance, as it tends to deprive
him of the use and benefit of his house. A like injury is, if one’s
neighbour sets up and exercises any offensive trade; as a tanner’s,
a tallow­chandler’s, or the like; for though these are lawful and
necessary trades, yet they should be exercised in remote places; for
the rule is, ‘sic utere tuo, ut alienum non leadas’; this therefore is
an   actionable   nuisance.   And   on  a   similar  principle   a   constant
ringing   of   bells   in   one’s   immediate   neighbourhood   may   be   a
nuisance.
…   With   regard   to   other   corporeal   hereditaments;   it   is   a
nuisance to stop or divert water that used to run to another’s
meadow or mill; to corrupt or poison a watercourse, by erecting a
dye­house or a lime­pit, for the use of trade, in the upper part of
the stream; to pollute a pond, from which another is entitled to
water his cattle; to obstruct a drain; or in short to do any act in
common property, that in its consequences must necessarily tend
to the prejudice of one’s neighbour. So closely does the law of
England enforce that excellent rule of gospel­morality, of ‘doing to
others, as we would they should do unto ourselves’.””
32. In Intellectuals Forum, Tirupathi vs. State of A.P. and others, (2006) 3
SCC 549, principle of sustainable development has been considered by this
Court, which reads as under:
“84. The world has reached a level of growth in the 21st century as never
before envisaged. While the crisis of economic growth is still on, the key
question which often arises and the courts are asked to adjudicate upon is
whether economic growth can supersede the concern for environmental
protection and whether sustainable development which can be achieved
only by way of protecting the environment and conserving the natural
resources for the benefit of humanity and future generations could be
ignored in the garb of economic growth or compelling human necessity.
The   growth   and   development   process   are   terms   without   any   content,
without an inkling as to the substance of their end results. This inevitably
leads us to the conception of growth and development, which sustains
from one generation to the next in order to secure "our common future." In
pursuit of development, focus has to be on sustainability of development,
and   policies   towards   that   end   have   to   be   earnestly   formulated   and
sincerely observed. As Prof. Weiss puts it, "conservation, however, always
takes a back seat in times of economic stress”. It is now an accepted social
principle that all human beings have a fundamental right to a healthy
environment,   commensurate   with   their   well­being,   coupled   with   a
corresponding   duty   of   ensuring   that   resources   are   conserved   and
preserved in such a way that present as well as the future generations are
aware of them equally.”
33. In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, the Court evolved
polluter pays principle and observed:
  “8. Apart from the above statutes and the rules made thereunder,
Article   48­A   of   the   Constitution   provides   that   the   State   shall
endeavour to protect and improve the environment and to safeguard
the forests and wildlife of the country. One of the fundamental duties
of every citizen as set out in Article 51­A(g) is to protect and improve
the natural environment, including forests, lakes, rivers and wildlife
and to have compassion for living creatures. These two articles have to
be considered  in the  light  of Article  21  of the Constitution  which
provides that no person shall be deprived of his life and liberty except
in accordance with the procedure established by law. Any disturbance
of the basic environment elements, namely air, water and soil, which
are   necessary   for   “life”,   would   be   hazardous   to   “life”   within   the
meaning of Article 21 of the Constitution.
9.  In  the  matter  of  enforcement  of  rights   under  Article   21  of  the
Constitution, this Court, besides enforcing the provisions of the Acts
referred to above, has also given effect to fundamental rights under
Articles 14 and 21 of the Constitution and has held that if those rights
are violated by disturbing the environment, it can award damages not
only for the restoration of the ecological balance, but also for the
victims who have suffered due to that disturbance. In order to protect
“life”, in order to protect “environment” and in order to protect “air,
water   and   soil”   from   pollution,   this   Court,   through   its   various
judgments has given effect to the rights available, to the citizens and
persons alike, under Article 21 of the Constitution. The judgment for
removal of hazardous and obnoxious industries from the residential
areas, the directions for closure of certain hazardous industries, the
directions for closure of slaughterhouse and its relocation, the various
directions issued for the protection of the Ridge area in Delhi, the
directions for setting up effluent treatment plants to the industries
located in Delhi, the directions to tanneries etc., are all judgments
which seek to protect the environment.
10. In the matter of enforcement of fundamental rights under Article
21, under public law domain, the Court, in exercise of its powers
under Article 32 of the Constitution, has awarded damages against
those who have been responsible for disturbing the ecological balance
either by running the industries or any other activity which has the
effect   of   causing   pollution   in   the   environment.   The   Court   while
awarding damages also enforces the “POLLUTER­PAYS PRINCIPLE”
which is widely accepted as a means of paying for the cost of pollution
and control. To put in other words, the wrongdoer, the polluter, is
under   an   obligation   to   make   good   the   damage   caused   to   the
environment.”
34. In  M.C. Mehta (Badkhal and Surajkund Lakes matter) vs. Union of
India and others, (1997) 3 SCC 715, this Court had observed:
“6. Mr. Shanti Bhushan, learned Senior Advocate, appearing for some of
the builders had vehemently contended that banning construction within
one km radius from Badkhal and Surajkund is arbitrary. According to
him, it is not based on technical reasons. He has referred to the directions
issued by the Government of India under the Environment Protection Act
and has contended that the construction can at the most be banned
within 200 to 500 metres as was done by the Government of India in the
coastal areas. He has also contended that restriction on construction only
in the areas surrounding Surajkund and Badkhal lakes is hit by Article 14
of the Constitution of India as it is not being extended to other lakes in the
country. We do not agree with Mr. Shanti Bhushan. The functioning of
ecosystems and the status of environment cannot be the same in the
country.   Preventive   measures   have   to   be   taken,   keeping   in   view   the
carrying   capacity   of   the   ecosystems   operating   in   the   environmental
surroundings   under   consideration.   Badkhal   and   Surajkund   lakes   are
popular tourist resorts almost next door to the capital city of Delhi. We
have on record the Inspection Report in respect of these lakes by the
National Environmental Engineering Research Institute (NEERI) dated 20­
4­1996, indicating the surroundings, geological features, land use, and
soil types and archaeological significance of the areas surrounding the
lakes. According to the report, Surajkund lake impounds water from rain
and natural springs. Badkhal Lake is an impoundment formed due to the
construction of an earthen dam. The catchment areas of these lakes are
shown in a figure attached with the report. The land use and soil types, as
explained in the report, show that the Badkhal Lake and Surajkund are
monsoon­fed   water   bodies.   The   natural   drainage   pattern   of   the
surrounding hill areas feed these water bodies during rainy season. Largescale construction in the vicinity of these tourist resorts may disturb the
rainwater drains, which in turn may badly affect the water level as well as
the water quality of these water bodies. It may also cause disturbance to
the aquifers which are the source of ground water. The hydrology of the
area may also be disturbed.”
35. In Indian Council for Enviro­Legal Action vs. Union of India and others,
(1996) 5 SCC 281, this Court has made the following observations:
“41.  With   rapid   industrialisation   taking   place,   there   is   an   increasing
threat to the maintenance of the ecological balance. The general public is
becoming aware of the need to protect environment. Even though laws
have been passed for the protection of environment, the enforcement of
the   same   has   been   tardy,   to   say   the   least.   With   the   governmental
authorities not showing any concern with the enforcement of the said
Acts, and with the development taking place for personal gains at the
expense of environment and with disregard of the mandatory provisions of
law,   some   public­spirited   persons   have   been   initiating   public   interest
litigations. The legal position relating to the exercise of jurisdiction by the
courts for preventing environmental degradation and thereby seeking to
protect   the   fundamental   rights   of   the   citizens   is   now   well   settled   by
various decisions of this Court. The primary effort of the Court, while
dealing   with   the   environmental­related   issues,   is   to   see   that   the
enforcement agencies, whether it be the State or any other authority, take
effective steps for the enforcement of the laws. The courts, in a way, act as
the guardian of the people's fundamental rights, but in regard to many
technical matters, the courts may not be fully equipped. Perforce, it has to
rely  on  outside  agencies   for reports   and  recommendations  whereupon
orders have been passed from time to time. Even though it is not the
function of the Court to see the day­to­day enforcement of the law, that
being the function of the Executive, but because of the non­functioning of
the enforcement agencies, the courts as of necessity have had to pass
orders directing the enforcement agencies to implement the law.”
36. In the aforesaid facts and circumstances of the case, considering the
distance of 123 meters from the Northern side and 183 meters from the
Eastern side of the project in question from wildlife sanctuary, in our
opinion, no such project can be allowed to come up in the area in question.
The State of Punjab was required to act on the basis of Doctrine of Public
Trust. It has failed to do so. The origination of the project itself indicates
that State of Punjab was not acting in furtherance of Doctrine of Public
Trust as 95 MLAs were to be the recipients of the flats. It is clear why
Government has not been able to protect the eco­sensitive zone around a
Wildlife and has permitted setting up of high­rise buildings up to 92 meters
in the area in question, which is not at all permissible.
37. Resultantly, we hold that such projects cannot be permitted to come
up within such a short distance from the wildlife sanctuary. Moreso, in
view   of   the   Notification   issued   with   respect   to   the   Sukhna   wildlife
sanctuary   towards   the   side   of   Chandigarh   Union   Territory   and   also
considering   the   fact   that   proposal   made   by   the   Punjab   Government,
confining the Buffer Zone to 100 meters, has rightly not been accepted by
MoEF, as the Government of Punjab as well as the MoEF, cannot be the
final arbiter in the matter. The Court has to perform its duty in such a
scenario when the authorities have failed to protect the wildlife sanctuary
eco­sensitive zone.   The entire exercise of obtaining clearance relating to
the project is quashed.  We regret that such a scenario has emerged in the
matter and that it involved a large number of MLAs of Punjab Legislative
Assembly.   The  entire  exercise  smacks  of  arbitrariness  on  the  part  of
Government including functionaries. 
Thus, we dismiss the appeals with the directions mentioned above.
     ....……………………… J.
      (ARUN MISHRA)
…………………………. J.
      (M.R. SHAH)
…………………………. J.
              (B.R. GAVAI)
NEW DELHI;
NOVEMBER 05, 2019.

The person who obtained job on forged documents is not entitled to continue the same even a benefit of doubt was given in criminal proceedings or he was released on probation . This Court held that the employee cannot claim a right to continue in service on the ground that he was released on probation. It was observed: “The release under probation does not entitle an employee to claim a right to continue in service. In fact the employer is under an obligation to discontinue the services of an employee convicted of an offence involving moral turpitude. The observations made by a criminal court are not binding on the employer who has the liberty of dealing with his employees suitably.” In the present case the accused obtained a job on the basis of forged documents. Even if he was to be given benefit of the Act, then also he could not retain his job because the job was obtained on the basis of forged documents.

The person who obtained job on forged documents is not entitled to continue the same even a benefit of doubt was given in criminal proceedings or he was released on probation .
This   Court   held   that   the   employee cannot claim a right to continue in service on the ground that he was released on probation.  It was observed: “The   release   under   probation   does   not   entitle   an employee to claim a right to continue in service.  In fact the employer is under an obligation to discontinue the services of an employee convicted of an offence involving moral turpitude.   The observations made by a criminal court are not binding on the employer who has the liberty of dealing with his employees suitably.”   
In the present case the accused obtained a job on the basis of forged documents.  Even if he was to be given benefit of the Act, then also he could not retain his job because the job was obtained on the basis of forged documents.  

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 410 OF 2011
STATE OF MADHYA PRADESH    …APPELLANT(S)
Versus
MAN SINGH        …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
Whether a Judge of the High Court can exercise powers
under Section 482 of the Code of Criminal Procedure, 1973 (for
short ‘CrPC’) to alter the sentence which has been passed by the
High Court itself is the issue involved in this appeal.
2. The   respondent,   Man   Singh   was   prosecuted   for   having
committed offences punishable under Sections 468, 471 and 419
of   Indian   Penal   Code,   1860   (for   short   ‘IPC’).     The   allegation
1
against him was that he had used a transfer certificate of one
Kalu Singh and forged the certificate to show that it bore his
name and date of birth.  Using this certificate, he had procured
appointment to the post of Buffalo Attendant in the Veterinary
Department.     The   trial   court   convicted   the   accused   for   the
offences punishable under Sections 468, 471 and 419 IPC.  On
the issue of sentence, it was specifically urged before the trial
court that benefit of Probation of Offenders Act, 1958 (for short
‘the Act’) may be given to the respondent, Man Singh.  The trial
court came to the conclusion that the accused had got service on
the basis of forged documents depriving a deserving unemployed
person of getting such employment and, therefore, according to
the   trial   court,   this   is   not   a   fit   case   to   grant   probation.
Accordingly, the trial court imposed punishment under various
provisions of IPC for different offences but essentially the accused
was to undergo rigorous imprisonment for one year and was to
pay a total fine of Rs.2000/­.
3. The accused­respondent, Man Singh filed an appeal.   The
Sessions Judge dismissed the appeal.  On the issue of sentence
he found that the accused had been dealt with leniently and
2
refused to interfere with the sentence.   A criminal revision was
filed in the High Court.  The High Court affirmed the conviction
but reduced the substantive sentence from one year to the period
already undergone and enhanced the fine to Rs.10,000/­.
4. The accused­respondent, Man Singh deposited the fine and
then filed a petition under Section 482 of CrPC praying that the
fine had been deposited and since he is in Government job, he
may be granted benefit of the Act.  The learned Judge, without
giving any other reasons, directed as follows:­
“After   having   heard   learned   counsel   for   the   parties,
prayer   is   allowed   and   the   benefit   of   Probation   of
Offenders   Act   is   extended   to   the   petitioner   for   the
purpose that the sentence, which has already undergone
would not affect service career of the petitioner.
With the aforesaid observations petition stands disposed
of C.C. today.”
This order is challenged before us.  At the outset, we note that
the manner in which the learned Judge entertained the petition
under Section 482 CrPC is highly improper and uncalled for.
There is no power of review granted to the Courts under CrPC.
As soon as the High Court had disposed of the original revision
petition,   upheld   the   conviction,   reduced   the   sentence   to   the
3
period   already   undergone   and   enhanced   the   fine,   it   became
functus officio  and, as such, it could not have entertained the
petition under Section 482 CrPC for altering the sentence.
5. It   is   well   settled   law   that   the   High   Court   has   no
jurisdiction to review its order either under Section 362 or under
Section 482 of CrPC1
.   The inherent power under Section 482
CrPC cannot be used by the High Court to reopen or alter an
order disposing of a petition decided on merits2
.  After disposing
of a case on merits, the Court becomes functus officio and Section
362 CrPC expressly bars review and specifically provides that no
Court after it has signed its judgment shall alter or review the
same except to correct a clerical or arithmetical error3
. Recall of
judgment   would   amount   to   alteration   or   review   of   judgment
which is not permissible under Section 362 CrPC.  It cannot be
validated by the High Court invoking its inherent powers4
. 
6. We have, therefore, no doubt in our mind that the High
Court had no power to entertain the petition under Section 482
CrPC and alter the sentence imposed by it.  We may also add that
1 State of Kerala v. M.M. Manikantan Nair, (2001) 4 SCC 752
2 State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., 2009 CriLJ 355 SC
3 Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169
4 Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736
4
the manner in which the probation has been granted is not at all
legal.  The trial court had given reasons for not giving benefit of
probation.     When   the   High   Court   was   deciding   the   revision
petition against the order of conviction, it could have, after calling
for a report of the Probation Officer in terms of Section 4 of the
Act,  granted  probation.    Even   in  such  a  case it  had  to  give
reasons   why   it   disagreed   with   the   trial   court   and   the   first
appellate court on the issue of sentence.  The High Court, in fact,
reduced the sentence to the period already undergone meaning
thereby   that   the   conviction   was   upheld   and   sentence   was
imposed.  After sentence had been imposed and served and fine
paid, there was no question of granting probation.
7. Another error is that the order quoted hereinabove has been
passed in violation of the provisions of Section 4 of the Act which
mandates that before releasing any offender on probation of good
conduct,   the   Court   must   obtain   a   report   from   the   Probation
Officer and can then order his release on his entering bonds with
or without sureties, to appear and receive sentence when called
upon during such period, not exceeding three years, or as the
Court may direct, and in the meantime to keep peace and good
5
behaviour.   The proviso to sub­section (1) of Section 4 clearly
provides that Court cannot order release of such an offender
unless it is satisfied that the offender or his surety has a fixed
place of abode or regular occupation in the place over which the
Court can exercise jurisdiction.  Sub­section (2) lays down that
before making any order under sub­section (1), the Court shall
take into consideration the report of the Probation Officer.  This
Court in a number of judgments has held that before passing an
order of probation, it is essential to obtain the report of the
Probation Officer concerned.   Reference in this behalf may be
made to M.C.D. v. State of Delhi & Anr.5
 
8. In the present case, on 03.01.2011, the counsel for the
accused­respondent sought an adjournment on the ground that
the accused proposes to file a special leave petition (SLP) against
the   order   passed   in   criminal   revision   petition   upholding   his
conviction.   That SLP was filed but dismissed on 28.01.2011.
Once that SLP has been dismissed, we cannot grant any relief to
the accused­respondent.
5 AIR 2005 SC 2658
6
9. We are also constrained to observe that the High Court in
its   order   directed   that   the   sentence   which   the   accused   has
already undergone, would not affect his service career.  We fail to
understand  under what  authority the  High  Court could have
passed such an order.   Even in a case where the High Court
grants benefit of probation to the accused, the Court has no
jurisdiction to pass an order that the employee be retained in
service.     This   Court   in  State   Bank   of   India   &   Ors.  v.  P.
Soupramaniane6
 clearly held that grant of benefit of probation
under the Act does not have bearing so far as the service of such
employee   is   concerned.     This   Court   held   that   the   employee
cannot claim a right to continue in service on the ground that he
was released on probation.  It was observed:
“The   release   under   probation   does   not   entitle   an
employee to claim a right to continue in service.  In fact
the employer is under an obligation to discontinue the
services of an employee convicted of an offence involving
moral turpitude.   The observations made by a criminal
court are not binding on the employer who has the liberty
of dealing with his employees suitably.”   
10. In the present case the accused obtained a job on the basis
of forged documents.  Even if he was to be given benefit of the
Act, then also he could not retain his job because the job was
6 AIR 2019 SC 2187
7
obtained on the basis of forged documents.  We are constrained
to observe that the High Court passed the order in a mechanical
and   pedantic   manner   without   considering   what   are   the   legal
issues involved.  
11. In view of the above discussion, the appeal is allowed and
the order of the High Court is set aside.  Pending application(s), if
any, stand(s) disposed of. 
…………………………….J.
(Deepak Gupta)
……………………………..J.
(Aniruddha Bose)
New Delhi
November 04, 2019
8