Gujarat High Court
Sanket Desai S/O Mahendrabhai ... vs State Of Gujarat on 3 January, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/WPPIL/202/2015 ORDER DATED: 03/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 202 of 2015
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
In
R/WRIT PETITION (PIL) NO. 202 of 2015
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SANKET DESAI S/O MAHENDRABHAI NATHUBHAI DESAI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR SUBRAMANIAM IYER(2104) for the Applicant(s) No. 1
MR DM DEVNANI ASSISTANT GOVERNMENT PLEADER for the
Opponent(s) No. 1,2
MR DEVANG VYAS(2794) for the Opponent(s) No. 3
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 03/01/2022
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Petitioner, who is espousing public cause is contending inter alia, that he has no personal interest in the issue involved in this petition viz., construction of protection wall along the sea coast at Tithal, Valsad District, which is not in compliance with the specifications laid down by Central Water and Power Research Station (for short 'CWPRS'), Government of India, Ministry of Water Resources and as such, has sought for the following reliefs :-
"(A) direction to the respondents to construct Erosion Protection Wall along the sea coast at Tithal in compliance with the Tetrapod design and specification of stones laid down by the Central Water & Power Research Station, Government of India, Ministry of Water Resources, vide order No. 121/1/CE-
2007-2648 dated 02.08.2010 and in accordance with the design and specifications of Protection Wall constructed by Page 1 of 8 Downloaded on : Wed Jan 12 16:18:20 IST 2022 C/WPPIL/202/2015 ORDER DATED: 03/01/2022 Swaminarayan Temple at Tithal beach, Valsad, and
(ii) direction to the respondents to strictly follow the mandatory conditions stipulated by the Government of India Ministry of Environment & Forests vide order No. F. No. 11-36/2013-IA.III dated 10.12.2013 granting CRZ clearance for construction of erosion/coastal protection wall."
2. We have heard Shri Subramaniam Iyer, learned counsel appearing for the petitioner and Shri D.M. Devnani, learned Assistant Government Pleader appearing for respondents no. 1 and 2. Respondent no. 3 is served, represented, but none appears. It is the contention of Mr. Subramaniam Iyer, learned counsel appearing for the petitioner that on account of the protection wall along the sea coast at Tithal, not being in accordance with the design prescribed by the CWPRS and in order to reduce the cost factor, the State of Gujarat having adopted to construct the said protection wall by using a different design than the prescribed one, it would result in future the sea water travelling beyond the sea coast and entering the main land and thereby resulting in water saline being polluted, which would result in drinking water scarcity as well as the damage caused to the land resulting in fertility of the agricultural land being extinguished and as such, he has sought for a direction to the respondent to construct the soil erosion protection wall along the sea coat at Tithal, in accordance with the design prescribed by CWPRS or in the alternate, he has sought for an appointment of High Level Inquiry Committee consisting of experts of CWPRS to study the technical viability of the present and existing protection wall and other similar protection wall in the State of Gujarat and to direct the State Government to take appropriate action against the erring officers. A further direction is also sought for demolition of existing the protection wall along Tithal coast line and to construct the same as per 'Gabian style' in compliance with the design and specifications Page 2 of 8 Downloaded on : Wed Jan 12 16:18:20 IST 2022 C/WPPIL/202/2015 ORDER DATED: 03/01/2022 laid down by CWPRS or in the alternative to direct construction of the said wall as constructed by Swaminarayan Temple at Tithal and to strictly follow the mandatory conditions stipulated by the Government of India, Ministry of Environment and Forests granting CRZ clearance for construction of coastal protection wall.
3. Respondents on being notified have appeared and second respondent alone has filed the reply affidavits namely, at the first instance, on 28.10.2015 and subsequently on 29.12.2021. Petitioner has filed rejoinder to the reply affidavit, on 14.10.2019. The learned Assistant Government Pleader drawing the attention of the Court to the affidavits filed by second respondent would contend that based on the recommendations of CWPRS, the protection wall has been constructed and even after the warranty period fixed under the contract while entrusting the construction of the wall, having expired, said wall has withstood beyond the said period and even now the said wall is in existence without there being any damage and to drive home said contention he has drawn the attention of the Court to the photographs, annexed to the affidavit dated 29.12.2021. Hence, he seeks for the writ petition being disposed of by recording the said affidavits.
4. In reply Shri Subramaniam Iyer, learned counsel appearing for the petitioner would reiterate the grounds urged in the rejoinder filed and would contend that though the second respondent claims to have constructed the wall in accordance with the prescribed design of CWPRS, the said authority namely, CWPRS being the third respondent has not whispered a word with regard to the compliance or the wall constructed by the first and second respondent being in compliance with the design prescribed by the said authority and the present litigation being a Public Interest Litigation and public cause Page 3 of 8 Downloaded on : Wed Jan 12 16:18:20 IST 2022 C/WPPIL/202/2015 ORDER DATED: 03/01/2022 be espoused for the public good, if a statutory authority Central Government authority, namely CWPRS, were to certify that the existing wall is in accordance with the design prescribed by it, it would suffice. He would hasten add that CWPRS having prescribed protection wall is to be constructed by using Tetrapod Blocks, the course adopted by respondents 1 and 2 is by constructing a wall with heavy stones and thereby it is contrary to the directions issued by CWPRS itself and as such, the act of the respondent nos. 1 and 2 smacks of legal malice. Hence, he prays for suitable writ being issued to the respondent authorities.
5. Having heard the learned advocates appearing for the respective parties and on perusal of the records, we notice that Mr. Subramaniam Iyer, learned counsel appearing for the petitioner is correct in contending that cause espoused in this petition, being a public cause and for the public good and there cannot be any doubt with regard to the intentions of the petitioner who is espousing public cause for the public good, namely to ensure that there is no deterioration of the fertile agricultural lands or the water level in the sea coastal areas are not denuded. In fact, the co-ordinate Bench after having heard the learned advocates appearing for the parties, vide a order dated 24.08.2021, had observed thus :-
"Respondent No. 2 will file his Affidavit along with recent site photographs for the protection wall which is said to have been damaged in last 2-3 years at Teethal, Valsad. The question involved in the Public Interest Litigation Petition is whether the protection wall should be constructed with Heavy Stones or Tetrapod Blocks as suggested by Central Water & Power Research Station, Pune, vide order dated 02.08.2010 is placed on record.
List on 14.09.2021."Page 4 of 8 Downloaded on : Wed Jan 12 16:18:20 IST 2022
C/WPPIL/202/2015 ORDER DATED: 03/01/2022
6. Thus, what was required to be considered or is required to be considered is whether the protection wall along Tithal coastal area is to be constructed with Heavy Stones or Tetrapod Blocks by second respondent. As observed herein-above, on the one hand, it is the vehement contention of the learned counsel appearing for the petitioner, that protection wall is to be constructed using Tetrapod Blocks as suggested by CWPRS, but on the other hand, learned Assistant Government Pleader has strenuously contended that very said authority itself has suggested that Heavy Stone protection wall can be constructed as an alternate. In this background, when the affidavit filed by the State, namely the affidavit dated 28.10.2015 is perused, it would clearly indicate that at the first instance, the CWPRS had clearly suggested for constructing of the protection wall by using Tetrapod Blocks. As against this suggestion which was made based on expert opinion that usage of heavier stones in Armour layer would be more viable both from the point of view of the fiscal expenditure as well as from the point of view of availability of the said stone in the area and this would have an edge over the one suggested by CWPRS clarification was sought for by second respondent. In other words, State authorities informed CWPRS accordingly and requested for an alternate design being given and in turn, CWPRS, Pune has given two alternatives for construction of the protection wall namely
(i) using Tetrapod Armour blocks and (ii) using Heavy Stones instead of Tetrapod in Armour Blocks.
7. The authority which propounded the project was of the opinion that heavier stones are available in the locality, then design of Tetrapod can be replaced by heavier stones to achieve the economy of work and it concluded that difference in both the design is only the weight of the stones which will be higher then the Tetrapod if the stones are used. The CWPRS on receiving the communication and the Page 5 of 8 Downloaded on : Wed Jan 12 16:18:20 IST 2022 C/WPPIL/202/2015 ORDER DATED: 03/01/2022 report of the State authorities undertook a preliminary enquiry by conducting site enquiry and approved the specific design of using heavier stones, as per the design approved on 02.08.2010 and 03.02.2011 respectively. It is only after obtaining the approval from the CWPRS, Pune, the State authorities has initiated the procedure for inviting bids from the contractors and thereafter has entrusted the work of construction of protection wall. In fact, the Gujarat Engineering Research Institute has provided a test report with regard to the relevant materials that was being used for the project having been tested and it was opined by the said Institute that the parameters required are being fulfilled vide Annexure-R2. The Coastal Protection and Development Advisory Committee (CPDAC), which is highest Central Body for performance evaluation of coastal protection work, has also visited the protection site on 19.06.2015 and submitted a detailed report on 05.10.2015 expressing thereunder that the construction of protection wall for a length of 3085 meters along the coastal villages of Tithal, Bhagdawada and Surwada, adopting the design of CWPRS, Pune for safeguarding human life and property to an extent of 165.0 hectares of land covering villages, religious places, hotels, guest houses and other properties, as also 6.0 meter wide road along with parapet wall and steps provided on protection wall to facilitate tourism. Th report of the CPDAC is annexed to the affidavit dated 28.10.2015 as per Annexure-R4. The said report insofar as Tithal, Bhagdawada and Surwada villages are concerned, reads thus :
"3.5. Tithal (19/06/2015) Tithal, Bhagdawada and Surwada villages are located about 5.0 km away from Valsad town along the coast. Tithal Beach is an important tourist destination where Swaminarayan Temple, Sai Temple, Shanti Niketan, Jain Temple and other tourist places are located. Besides, private property, local residential houses, Page 6 of 8 Downloaded on : Wed Jan 12 16:18:20 IST 2022 C/WPPIL/202/2015 ORDER DATED: 03/01/2022 agriculture land, hostels, guest houses and various Government properties are also existing.
Due to severe erosion endangering life and property, Govt. of Gujarat constructed protection wall for a length of 3085 m along the coast of these villages adopting the design given by CWPRS, Pune. The protection wall is safeguarding human life and property of 165.0 hectare land of villages Tithal, Bhagdawada and Surwada. Religious places, Hotels, Guest Houses and other properties. A 6.0 m wide road along with parapet wall and steps is provided in the wall to facilitate tourism.
The design features and schematic drawing of the project as provided by the State Govt. Officers is enclosed as Annurex- VII-A. The photographs of the filed visit of this site is at Annexure-VII-B."
8. There is no adverse remarks in this report insofar as the construction of the protection wall by usage of stones. The communication accompanying the report Annexure-R4 dated 05.10.2015 would clearly indicate that the same has been duly approved by the Chief Engineer, C&SRO, CWC, Coimbatore and Convener of the CPDC Sub-Committee.
9. We also notice from the additional affidavit filed pursuant to order dated 24.08.2021 that same is accompanied by photographs, which would depict that protection wall has neither collapsed, nor there being any damage caused to the said protection wall as claimed. In fact, the Courts are not equipped to comment upon the experts opinion, as it would not be in the domain of the Court. The Courts would not sit in the armchair of experts to evaluate the correctness or otherwise of the findings recorded in the technical report (Annexure- R4). When the competent authority like CWPRS itself has opined that either the Tetrapod Blocks or the Stones can be used for constructing the protection wall to prevent soil erosion and to maintain the salinity Page 7 of 8 Downloaded on : Wed Jan 12 16:18:20 IST 2022 C/WPPIL/202/2015 ORDER DATED: 03/01/2022 of the water in the adjacent agricultural fields, this Court cannot sit in judgment as an appellant authority over that of the experts. In fact, the project in question has been undertaken in view of the designed approved by the CWPRS, Pune as such, it cannot be construed or accepted that protection wall constructed by the respondent authority is contrary to the design approved by the CWPRS namely the third respondent. It is needless to state that CPDAC which is highest Central Body for performance evaluation of the coastal protection work done by State authorities being empowered to issue suitable directions if there were to be any infraction in the protection wall as per the designed approved by CWPRS which would be in the best interest of safeguarding human life and property as such, the said authority would be at liberty to take appropriate action if need arises. Subject to this observation, this petition stands disposed of. No order as to costs.
10. All pending Civil Application stands consigned to records.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) phalguni Page 8 of 8 Downloaded on : Wed Jan 12 16:18:20 IST 2022