Gujarat High Court
Paryavaran Mitra vs State Of Gujarat on 17 February, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 144 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PARYAVARAN MITRA
Versus
STATE OF GUJARAT
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Appearance:
MR NM KAPADIA(394) for the Applicant(s) No. 1,2
for the Opponent(s) No. 5
DS AFF.NOT FILED (N) for the Opponent(s) No. 1
MR KM ANTANI, AGP for the Opponent(s) No. 1,2,3,4,6,7,8
MR HS MUNSHAW(495) for the Opponent(s) No. 5
NOTICE SERVED BY DS for the Opponent(s) No. 2,3,4,6,7,8
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 17/02/2022
ORAL JUDGMENT
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C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. 1st petitioner is a Gujarat based non-profit organization and has been working on socio-environmental issues; it was initiated in the year 1997 as an enviro-legal cell of Center for Social Justice within JANVIKAS to advocate for human rights and to protect environmental degradation and pollution. It is stated in the petition that petitioner has been promoting sustainable development by way of participating in environmental governance at local, regional and national level and undertaking promotion of environment education, spreading awareness amongst all groups of the society through various programmes, seminars, and training. Petitioner is also said to be supporting international initiatives towards evolving systems and processes for sustainable development and has also been espousing the public cause by filing Public Interest Litigation for protecting the environment and ensuring the planet earth is made a better place to live. The trustees of 1st petitioner organization are said to be espousing the cause of preserving the environment and their contribution has been recognized or acknowledged by the United Nations Environment Programme (UNEP) and United Nations Climate Change (UNCC) by virtue of which, they have Page 2 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 been invited on multiple occasions for meeting of Convention at Glasgow, United Kingdom and one of the trustees has been certified as a member of International Pollutants Elimination Network (IPEN). 1st petitioner organization is also said to be an observer partner of United Nations Framework Convention on Climate Change (UNFCCC) and is said to have received special consultative status by United Nations Economic and Social Council (ECOSOC) in the year of 2018.
2. 2nd petitioner is said to be a Trust registered under the Bombay Public Trust Act, 1950 dedicated for protecting the flora and fauna of the country and is said to be espousing the public cause before different forums of law for protecting, preserving, rescuing and welfare of the different bio-diversities. Hence, both petitioners are contending that present petition is filed purely in public interest on its own. Petitioners have sought for the following reliefs:
"(i) To direct the respondent authorities to conduct survey of all water bodies including ponds (both natural and artificial), check dams; other water bodies, whether belonging to Government/ Panchayat or not and to have a complete list with details of measurement, depth, location and to get such list published in official Gazette with further directions to all authorities to maintain, preserve, Page 3 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 conserve all such water bodies and not to permit use thereof for any other purpose;
(ii) To implement the resolution dated 15/03/1999 (Annexure C) issued by the Chief Town Planner in its letter and spirit;
(iii) To issue a writ of mandamus to the respondents to constitute a committee of experts from different Government Departments and NGOs; and to take concrete steps to increase the number of water bodies as well as to increase the green cover on regular and periodical basis;
(iv) To direct the respondents to consider appropriate amendment to the notification dated 14.09.2006 regarding environment impact assessment in all cases of felling of trees in bulk;
and
(v) To restrain the respondent authorities from disturbing / damaging / demolishing and/or change the user of any ponds (both natural and artificial), check dams and other water bodies situated all across the State;"
3. We have heard Mr. N.M.Kapadia, learned counsel appearing for the petitioners and Mr. K.M.Antani, learned Assistant Government Pleader appearing for the respondents-State. Perused the records.
4. It is the contention of Mr. Kapadia that despite notifications and circulars having been issued for protecting the water bodies across the State and also to maintain vegetative bio-diversity as Page 4 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 well as retaining flora and fauna yet, indiscriminately the developmental activities are being carried out by the State and its instrumentalities by giving a complete go-by to such notifications and circulars which are in existence and as such, it has become imminent and very much necessary for the petitioners to approach this Court seeking reliefs as morerfully prayed for in the petition. In substance, petitioners are contending that existing policies are to be re-visited so that there should not be any damage to the biological diversity and in certain circumstances, in order to protect the environment, the State instead of undertaking felling of trees for the purpose of forming a street or road can explore the possibility of formation of zigzag roads which would not only prevent environmental hazards being caused on account of unscientific cutting of trees but would also add to bio-diversity and as such, a proper policy requires to be put in place. He would also contend that all efforts should be made by all the stake-holders to increase the number of water bodies and as such, man-made water bodies with green vegetation cover is not to be destroyed under the guise of so- called development and sustainable development should be the word of the Government rather than ignoring the demand for Page 5 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 stoppage of indiscriminate closure of water bodies or cutting of trees. He would further contend that man-made water bodies are being damaged and destroyed rampantly without realizing the significance of the same, since there is no statutory protection for the same. To substantiate the contentions raised in the petition, Mr. Kapadia, learned counsel appearing for the petitioners has drawn attention of this Court to Annexure-J (at page 105) to contend that the State in "Xavier Kelvani Mandal"
has proposed to construct a road over the land bearing survey No.88/BP and before bringing this road in the Town Planning Scheme, no notice was served and this indiscriminate construction of road by roping the same in the Town Planning Scheme would not only be hazardous to the existing lake but it would also result in the existing water bodies being denunded.
He would also contend that circulars and notifications issued by the State are to be strictly followed which is the need of the hour namely, to extend protection to all water bodies, whether natural or man-made. He would also draw the attention of the Court to the directions issued by the coordinate bench in the case of Shailesh R. Shah Vs. State of Gujarat and others reported in 2002(3) GLR 2295 and prays for directions being Page 6 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 issued to respondents to comply with said directions. It is also contended that under Article 51-A(g) of the Constitution of India, a fundamental duty is cast upon every citizen including the State to protect and improve the natural environment and as such, the State and its authorities cannot damage or demolish the existing water bodies as it would result in irreversible situation which cannot be compensated in any manner whatsoever. He would also contend that all ponds and check dams which are having aquatic eco-system dependent on the water therein cannot be allowed to be damaged under the pretext of development. On the other hand, notified National Plan for Conservation of Aquatic Eco-system propounded by the Central Government is to be implemented in its letter and spirit. Hence, he prays for grant of the prayers sought for in the petition.
5. Per contra, Mr. K.M.Antani, learned Assistant Government Pleader appearing for the State would submit that State is taking all reasonable steps as expected of a welfare State in ensuring protection of environment is for the benefit of citizens and has left no stone unturned in this regard. He would draw the attention of the Court to the circulars produced along with the Page 7 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 petition itself which would clearly establish that respondent State by itself and through its officers are ensuring strict implementation of said circulars, notifications and resolutions with the sole aim and object of protecting the water bodies being conscious of its obligation as a welfare State. He would also submit that all stake-holders like Senior Town Planner, Deputy Town Planner, the Collectors and all other authorities, who are required to implement the action plan for maintaining rivers, lakes, ponds, nalas, canals or any other water bodies in the State of Gujarat are ensuring its maintainance, so as to ensure that there is no damage caused to these existing water bodies. He would also submit that as and when infraction of any circulars issued by the State is brought to its notice, immediate steps to prevent such illegalities being perpetrated are being taken and penal action is also being initiated against such person or persons indulging in causing damage to the existing water bodies. He would hasten to add that in circumstances where there are certain man-made water bodies are having surfaced seasonally which cannot be construed as existing water bodies would not be within the sweep of the circulars and keeping this in mind, steps are also being taken to ensure that there is Page 8 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 sustainable development. He would also submit that guidelines/directions issued in Shailesh Shah's (supra) case is being implemented and enforced in its true letter and spirit and assures the Court that there would be no let up by the State or its instrumentalities in not only ensuring the existing water bodies are maintained, but all reasonable steps to improve the existing water bodies would be taken.
6. Fundamental frailty of the principle of sustainable development is that nature cannot proclaim in advance the extend of its exploitation than it could sustain. For instance, a coolie on the railway platform can at once declare what load his hands or head can sustain but nature at large cannot be expected to forewarn what load on its potential it could sustain; and the gulf between principles and practices is unlikely to be ever bridged.
7. Sustainable development means what type of extent of development can taken place which can be sustained by nature or ecology with or without mitigation. This principle applies when effect of a project is known that principle of sustainable development would come into play, so as to ensure that Page 9 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 mitigative steps are and can be taken to preserve the ecological balance as held by the Hon'ble Apex Court. For which proposition, the judgment of the Hon'ble Apex Court in the case of Narmada Bachao Andolan Vs. Union of India, reported in AIR 2000 SC 3751 can be looked up. The expression 'when effect of a project is known" can be and has been, represented in a subsidiary principle termed as 'the precautionary principle' also known as 'the assimilative principle' which is corollary or rather the basis of the principle of sustainable development.
8. If society cannot go without science and technology, pollution is the price to be paid for progress; and an awareness has grown around the world to maintain a sober balance between progress of science and protection of environment and for that, other principle propounded is that of sustainable development. Keeping the aforesaid principles in mind, when we turn our attention to the facts on hand, it would emerge from the records that issue relating to protection, preservation and improvement of water bodies such as lakes, ponds, etc., insofar as the State of Gujarat is concerned, was the subject matter of consideration of the coordinate bench in the matter of Shailesh Page 10 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 R. Shah Vs. State of Gujarat and others reported in 2002(3) GLR 2295. Keeping in mind the duty of the State authorities to protect and improve the water bodies, several directions have been issued to the Government and local bodies to maintain and preserve all the water bodies. The directions so issued are :
"24. To sum up, we issue the following directions:-
"[A] The State Government will notify all the lakes and ponds as may have been shown in the areas covered by the Town Planning Schemes and the Development Plans, as also those in the areas not so covered throughout the State, in short, all the water bodies in the territory of the State that vest in the State and / or the Area Development Authorities or the local bodies including Panchayats, in the official gazette within three months from the date of this order.
[B] The State Government and all Area Development Authorities and local Bodies will protect, maintain and preserve all the water bodies in the State which are identified as per the development plans, town planning schemes and the government records and which will be notified in the official gazette, as water bodies and they will not be alienated or transferred or put to any use other than as water bodies.
[C] The respondents authorities should take steps to get the standards of quality of water of the lakes and ponds prescribed by the concerned authority under the law, and devise mechanism for periodic monitoring of the quality of water in these lakes and ponds.Page 11 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022
C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 [D] The State Government, the Area Development Authorities and the Local Authorities should take urgent measures to rejuvenate the water bodies which are to be notified in the gazette by undertaking a declared phased programme of desiltation and make adequate provisions for recharging them by appropriate storm water drains and other feasible means and to take measures against pollution of such water bodies.
[E] The State Government shall expeditiously take steps to constitute Water Resources Council as contemplated in the Draft Water Policy of the State, headed by the Hon'ble the Chief Minister with other Ministers, including the Ministers in charge of Environment and Urban Development Departments to oversee the programme for protection, preservation and improvement of the water bodies. The State Government will also constitute the Water Resources Committee headed by the Chief Secretary which may include the Secretaries of Environment, Urban Development and Agriculture Departments, for monitoring the implementation of the programme in a time-bound manner with periodic review of its success. This Committee shall place the particulars of the targets achieved and the causes of non- fulfilment of the targets periodically before the Water Resources Council, for its consideration.
[F] The State Government, the Area Development Authorities and the local bodies are directed to prepare an authenticated record in form of videography, photography and panchnamas of the existing encroachments and take urgent steps to remove them in accordance with law and the rehabilitation policies of the Government.Page 12 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022
C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 Responsibilities of the officers / staff concerned should be fixed in respect of non-
removal of encroachments and fresh encroachments. The Water Resources Committee will closely monitor the removal of encroachments by the concerned authorities, and, the Area Development Authorities and the local bodies shall furnish, quarterly, particulars of such encroachments and their removal to the Water Resources Committee.
[G] The question of determining the peripheral area surrounding a lake or pond on which construction may be prohibited will be taken up by the concerned authorities for consideration in the context of the development of individual lakes and ponds and the authorities will take decisions thereon having regard to the relevant factors which may have a bearing on the protection, preservation and improvement of lakes, ponds and other water bodies, and once the peripheral area, around a lake or pond, in which there will be no construction allowed is determined, the same shall be notified. All the applications for building permissions which may be pending, may accordingly be decided as per the regulations and keeping in view the requirement of individual water bodies."
9. Thus, petitioners, who are not in adversarial litigation, are espousing the cause of protecting the lakes, ponds or any other water bodies in the State of Gujarat and seeking for strict enforcement of notifications, circulations and resolutions issued in furtherance of not only the extant policies of the State but also Page 13 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 the directions issued by the Coordinate Bench for its implementation. One of the aspects which has been highlighted, as already noticed hereinabove by us, is relatable to the construction of a road under the Town Planning Scheme of Xavier Kelvani Mandal in Survey No.88/BP. Said issue is at large in Special Civil Application No.5323 of 2021 and the learned Single Judge of this Court has injuncted the State and its instrumentalities from laying the road by closing the existing water body. This itself would indicate that the issue raised by the petitioners in the present petition which is being examined in Special Civil Application No.5323 of 2021 and apprehension of petitioner has been taken care of.
10. That apart, we notice that way back in the year 1999 i.e. on 15.3.1999, it has been made very clear by State that the authorities while making the original development plan or revised development plan in the area of any development authority or at the time of framing the proposal, would not include rivers, lakes, ponds, nalas, canals or any other water bodies existing in such development plan and clear instructions have been issued in this regard. It has been further clarified Page 14 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 thereunder that such water bodies are to be maintained and not to be altered in the final plot. In fact, Government Resolution dated 27.8.2001 (Annexure-D) is more elaborate which would clearly indicate the State being conscious of the fact that water is the basis of life and not only inevitable for drinking but also necessary for carrying out agriculture, irrigation, factory purposes, cleaning, etc. and taking note of depletion of water level in the existing water bodies has passed the resolution on 27.8.2001 by issuing instructions to all officers of the Revenue Department, District Collectors/District Development Officers which are extracted hereinbelow:
"(1) Carry out survey of ponds, lakes, small ponds, water bodies within each village, Taluka and district under their respective control, and which are almost in dead condition and are almost in scrap condition. Survey report reflecting village wise, Taluka wise, district wise information about the same be sent to Section Officer, C-Branch, Revenue Department, Sardar Bhavan, Block No. 11/5th floor , Gandhinagar, within 30 days.
(2) Aforementioned lakes, ponds, small ponds, water bodies or such sort are not to be disposed of for any other purpose other than development neither any proposal for the disposal be sent to the government.
(3) Continuous vigilance is to be observed that on the aforementioned type of lands, there are no encroachment and if any such encroachment is Page 15 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 found then immediate proceeding to be undertaken to remove the encroachment, as per law.
(4) Proper steps be taken for development of them as lakes, ponds, small ponds, water bodies.
(5) As the matter is of the State Interest, it will be personal responsibility of all District Collectors/District Development Officers to strictly follow these instructions and they are supposed to.
issue proper instruction regarding this to their subordinate offices.
(6) Instruction . is issued to all Collectors/District Development Officers for having immediate planning about these water bodies getting filled at the maximum capacity during the current rainy season.
(7) These instructions are to be followed on permanent basis."
11. A plain reading of the above instructions would clearly indicate that same has been issued for placing a restriction on the disposal of the land where ponds, lakes, small lakes or any other water bodies within the State are located and ensuring continuous vigilance as also ensuring that there would be no encroachment and if any such encroachment being there, to take immediate steps for removal of said encroachment. Said Government Resolution has been made applicable to be in force on permanent basis and this would allay the apprehension Page 16 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022 C/WPPIL/144/2021 JUDGMENT DATED: 17/02/2022 expressed by the petitioners.
12. It would suffice to grant liberty to the petitioners to bring it to the notice of the jurisdictional revenue authorities if there are any infraction of this resolution and the extant circulars issued by the State upon which the State authorities have to necessarily take action failing which, petitioners would be at liberty to seek redressal of such individual grievances by approaching this Court at appropriate stage. We do hope and trust that the State and its instrumentalities would not only implement the Government Resolution dated 27.8.2001 (Annexure-D) in its true letter and spirit but would also take all steps as expected of a prudent welfare State to implement the directions which are already issued in Shailesh R. Shah referred to herein supra.
13. Subject to aforesaid observations, this petition stands disposed of.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) RADHAKRISHNAN K.V. Page 17 of 17 Downloaded on : Sun Apr 24 13:15:02 IST 2022