Gujarat High Court
Patel Samirkumar Sureshbhai & 19 vs Ahmedabad Urban Development Authority ... on 25 April, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy
C/WPPIL/5/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 5 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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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PATEL SAMIRKUMAR SURESHBHAI & 19....Applicant(s)
Versus
AHMEDABAD URBAN DEVELOPMENT AUTHORITY & 2....Opponent(s)
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Appearance:
MR KV SHELAT, ADVOCATE for the Applicant(s) No. 1 - 20
MR DHAWAN JAYSWAL, AGP for the Opponent(s) No. 3
MR PREMAL R JOSHI, ADVOCATE for the Opponent(s) No. 1 - 2
NOTICE SERVED BY DS for the Opponent(s) No. 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
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HC-NIC Page 1 of 17 Created On Tue Apr 26 02:47:52 IST 2016
C/WPPIL/5/2015 CAV JUDGMENT
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 25/04/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The present petition in the nature of public interest litigation has been filed by the petitioners who are residents of village Zundal, wherein the petitioners have prayed that the respondent-authorities be restrained from constructing the drainage pumping station adjacent to the natural pond and also prayed for the direction to shift such proposed construction of drainage pumping station to any other alternative place. It is also prayed that proposed action of the respondent-authorities for constructing the drainage pumping station be declared as illegal, arbitrary, unreasonable and violative of Articles 14 and 21 of the Constitution of India.
2. Heard learned advocate Mr.K.V.Shelat appearing for the petitioners, learned advocate Mr.Premal R Joshi for respondent nos.1 and 2 and learned AGP Mr.Jayswal for respondent no.3.
2.1. Learned advocate Mr.Shelat appearing for the petitioners submitted that the land situated at survey no.9 of village Zundal is used by the residents and villagers as gauchar land which is Page 2 of 17 HC-NIC Page 2 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT adjacent to the natural pond. The said pond is used by the villagers since more than 60 years. The land is managed by the Gram Panchayat. It is contended that the said Gram Panchayat initially passed the resolution dated 8.7.2013 whereby the land bearing survey no.9 was allocated for construction of a drainage pumping station. However, the residents of the village have objected to the decision taken by the Panchayat and pointed out that the said land is not a government waste land but is actually `gauchar land' (grazing land). At this stage, it is pointed out by learned advocate that when the Gram Panchayat came to know about the aforesaid aspect and objection taken by villagers, it cancelled the resolution dated 8.7.2013 and passed a new resolution on 4.10.2013. Learned advocate Mr.Shelat thereafter contended that inspite of the cancellation of the earlier resolution by the panchayat, respondent authorities and its contractors started the digging of the land and laying of pipe lines towards the proposed area for the construction of drainage pumping station. At this stage, it is pointed out that the respondent authorities have installed the pipe line which is inconsistent with the natural gradient i.e. by constructing a drainage path from a lower plane to higher plane. When the villagers residing around the proposed Page 3 of 17 HC-NIC Page 3 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT site of construction of drainage pumping station came to know about the activities started by the respondent authorities, they objected the action of the respondent and sent the communication dated 20.12.2014. However, the respondent authorities have not given any reply to the said representation and continued to lay down the pipe lines towards the proposed construction site. The petitioners are therefore constrained to prefer this petition in the public interest.
2.2. Learned advocate Mr.Shelat thereafter contended that the construction of the drainage pumping station will create environmental nuisance for the residents, grazing cattle as well as female students residing in the hostel adjoining to the proposed construction site. At this stage, it is pointed out that the proposed construction site is in the close proximity to the residential areas and therefore health of residents will be in jeopardize as the drainage water can percolate into the ground and mix with water which is utilized for drinking and it will also deteriorate the condition of the pond beyond any remedial measures.
2.3. Learned advocate would thereafter contend that as per the technical opinion given by Soham Consultancy services which is a project Page 4 of 17 HC-NIC Page 4 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT consultant on the panel of the Government of Gujarat, the proposed construction is of wet well type which will create ethane, methane and ammonia gases and the said gases are known to be very harmful to human health. Learned advocate has referred to the said opinion produced at Annexure `E' with the compilation and submitted that in the said report, it is specifically stated that it is not possible to stop this by any mechanism or locking arrangement because these gases are lighter than air which will also have far reaching adverse consequences on the environment. The drainage pumping station has no overflow position, hence in case there is failure in the pump or power, the overflow drainage water may percolate to the pond thereby making it hazardous for the cattle.
2.4. Learned advocate for the petitioner thereafter submitted that the proposed site for construction is gauchar land which is reserved for grazing purposes and therefore in view of various decisions rendered by this Court, no construction can be made on the gauchar land.
2.5. At this stage, it is further contended that no construction or development can take place adjacent or at the place of pond as per various decisions rendered by this Court and Page 5 of 17 HC-NIC Page 5 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT therefore the present petition be allowed and respondents be restrained from constructing the drainage pumping station.
2.6. Learned advocate Mr.Shelat appearing for the petitioner has placed reliance upon the decision rendered by this Court on 9.5.2013 in Writ Petition (PIL) No.113 of 2013, in case of Karansinh Prabhatsinh Rathod V/s State of Gujarat, on the decision dated 11.8.2011 given in Letters Patent Appeal No.2529 of 2010 in the case of Kachchh District Panchayat V/s Nilesh Ramanbhai Patel and decision rendered by the Hon'ble Supreme Court in the case of State of Jharkhand and others V/s Pakur Jagran Manch and Others, reported in (2011)2 SCC 591.
3. On the other hand, learned advocate Mr.Premal Joshi appearing for the respondent nos.1 and 2 has placed reliance upon the affidavit-in-reply and additional affidavit-in- reply filed on behalf of respondent no.1 and thereafter submitted that the present petition is not maintainable which is in the nature of public interest litigation. It is contended that the petitioners are having their land near survey no.9 in which drainage pumping station is to be constructed. Thus, if the petitioners are affected by the action of the respondent nos. 1 Page 6 of 17 HC-NIC Page 6 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT and 2, they could have certainly filed petition before this Court, however, the writ petition in the nature of public interest litigation is not maintainable and therefore only on this ground the petition be dismissed.
3.1. Learned advocate Mr.Joshi thereafter submitted that as per the requirement and demand of the Zundal Gram Panchayat, respondent AUDA decided to construct drainage pumping station in the said Panchayat. For the said purpose, respondent AUDA approached the Gram Panchayat for allocating suitable land for the aforesaid purpose. Project consultant was also appointed on 1.6.2012 for preparation and finalization of the design. The said project consultant carried out the detailed survey work in the area and thereafter submitted the detailed project report after considering all technical soundness, economical design, site condition, ground levels of beneficiary area and availability of land for pumping station and on the basis of the same, decided to divide the entire area into two parts for effective implementation of the project with economy.
3.2. At this stage, learned advocate for the respondent submitted that the area of survey no.9 situated at village Zundal is a huge area Page 7 of 17 HC-NIC Page 7 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT admeasuring 16,592 sq.mtrs of land. In the said land, one crematorium is also situated and just adjacent to the crematorium, there is a margin land from which land admeasuring only 345 sq.mtrs is allocated for construction of drainage pumping station. Thus, learned advocate for the respondent AUDA has submitted that out of 16,592 sq.mtrs of land only 345 sq.mtrs of land is allocated for the said purpose and the remaining land is available for gauchar land. Even otherwise, the land which was allocated is in margin land near crematorium and therefore it was not used as such for grazing of the cattle and therefore the submission of learned advocate for the petitioner is misconceived.
3.3. Learned advocate Mr.Joshi thereafter contended that there is nine meter road between pond and survey no.9 and the land which is allocated for construction of the pumping station is approximately at the distance of 90 meters from the pond. It is further pointed out that no drainage facility is available at the Gram Panchayat and the villagers are disposing off the drain water in the pond itself. The respondent AUDA wants to develop the pond once the pumping station is constructed and therefore the said project is for the benefit of the villagers at large.
Page 8 of 17HC-NIC Page 8 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT 3.4. Learned advocate for the respondent AUDA then contended that the Gram Panchayat allocated alternative land towards ring road near HUDCO area for setting up a pumping station by resolution dated 4.10.2013.
3.5. Learned advocate Mr.Joshi thereafter submitted that after the resolution dated 4.10.2013 passed by the Panchayat, the respondent AUDA once again undertook the technical survey of the newly allocated land through Project Consultant Agency. During the said survey, it was found that the gradient of Zundal Gram Panchayat going downwards from 100.50 R.L. to 98.41 R.L. towards survey number 9. It is contended that looking to the said report, it is not feasible to construct the pumping station at the newly allocated place.
3.6. At this stage, it is submitted by learned advocate for the respondent that tender has been invited and work order has been issued on 24.6.2014 to one M/s Visat Construction and as per the said work order, the work is required to be completed before 23.6.2015. Pursuant to the said work order, the aforesaid contractor had carried out the survey and designed the network and 40% of the work has been completed. However, Page 9 of 17 HC-NIC Page 9 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT because of the pendency of the present petition, the respondent AUDA has not carried out the further work. Thus, if the place of pumping station is to be changed, the entire design will get changed and to fulfill the technical aspect, one pumping station near survey number 9 will have to be constructed for which additional cost will have to be incurred. He, therefore, submitted that the present petition be dismissed.
3.7. Learned advocate Mr.Joshi submitted that the design of pumping station is RCC type structure and there will not be any type of treatment of sewage water at the pumping station in survey number 9. Sufficient care is taken while designing the pumping station so that there may not be any leakage of water or spreading of gases in the area as apprehended by the petitioner and therefore the submission canvassed on behalf of learned advocate for the petitioner is misconceived.
3.8. Learned advocate Mr.Joshi thereafter submitted that as per the direction given by this Court technical/feasible reports for construction of drainage pumping station are produced on record. Such reports were prepared on 1.6.2012 and 11.2.2015. Learned advocate referred to the relevant observation made in the said report by Page 10 of 17 HC-NIC Page 10 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT the expert and submitted that in the said report, it is specifically stated by the expert that "it is not feasible to lay against gravity sewer network lines towards AUDA trunk line near ring road and also not advisable to construct a new pumping station in HUDCO area." He therefore submitted that this petition be dismissed.
4. Learned AGP has supported the contention of the learned advocate Mr.Joshi appearing for the respondent AUDA.
5. In response to the submissions canvassed on behalf of learned advocate Mr.Joshi appearing for the respondent authority, learned advocate Mr.Shelat appearing for the petitioner referred to the affidavit-in-rejoinder filed by the petitioner and comments given by Soham Consultancy Services in response to the technical opinion produced by respondent AUDA and submitted that as per the said report produced at page 95, it is possible to construct the pumping station near HUDCO or other four places other than HUDCO suggested by the said consultant. Learned advocate reiterated the submissions which he has already canvassed and urged that the petition be allowed and reliefs prayed for in this petition be granted.
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6. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record and decisions relied upon by learned advocate appearing for the petitioners, it has emerged on record that Zundal Gram Panchayat passed resolution dated 8.7.2013 whereby the land bearing survey number 9 was allocated for construction of drainage pumping station. Thereafter, some of the residents of village have objected to the said decision on the ground that the land which is allocated is `gauchar' land. The Panchayat therefore cancelled the resolution dated 8.7.2013 and thereafter passed the new resolution on 4.10.2013 by which it was decided to allocate another land for the aforesaid purpose. However, before that, the project consultant was appointed by respondent AUDA on 1.6.2012 for preparation and finalization of the design for construction of pumping station and respondent AUDA approached the Gram Panchayat for allocation of suitable land for construction of pumping station. The project consultant carried out the detailed survey work and submitted report in the year 2012. While preparing the project report, the concerned expert considered all technical soundness, economical design, site condition, ground levels of beneficiary area and availability of land for Page 12 of 17 HC-NIC Page 12 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT pumping station. Thereafter, when the resolution dated 4.10.2013 was passed by the Panchayat, another survey was carried out by respondent AUDA through an expert agency and the said agency also submitted the report on 11.2.2015. The said report is produced at page 72 of the compilation. In the said report, the concerned expert has observed as under:
"Again technical survey has been initiated by consultant, finding of this survey of HUDCO area, • Lowest G.L.R.L.97.83 mt towards HUDCO Township.
• Highest G.L.R.L100.26 mt towards Ring Road.
So it is not possible to lay against Gravity Sewer Network line to be disposed in AUDA main Trunk line. After site investigation, it is found that AMC had already laid Under Ground Drainage Network in HUDCO area, which is going towards lowest G.L.R.L of 97.83 mt and and sewages proposed to drop in AMC main Trunk line towards Chandkheda area. Again as per the looking to the technical survey of total geographical condition of Zundal area, it is observed that G.L.R.L is varying from G.L.R.L 98.41 mt at Samsan Gruh R.S.9, crossing highest level G.L.R.L 100.50 mt near Mileniyam society and G.L.R.L 100.26 mt at crossing of Ring Road towards AUDA Main Trunk line.
So it is not feasible to lay against gravity sewer network lines towards AUDA trunk line Page 13 of 17 HC-NIC Page 13 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT near Ring Road and also not advisable to construct a new Pumping Station in HUDCO Area."
In the said report, it has been further observed as under:
"Also, as stated earlier major pipeline work has already been completed and if the place of pumping station is to be changed then entire technical as well as hydraulic design will needs to be changed, which would adversely affect the existing completed pipe line work adversely and project cost need to an additional burden."
7. It has further borne out from the record that 40% of the work has been completed as the tender was invited by respondent AUDA and the work order was already given to M/s Visat Construction on 24.6.2014. It is also revealed that the design of the pumping station is RCC type structure and there will not be any type of treatment of sewage water at the pumping station in survey number 9. As per the report, sufficient care is taken while designing pumping station so that there may not be any leakage of water or spreading of gases in the area. Thus, the apprehension shown by the petitioner that the proposed construction will create ethane, methane and ammonia gases which will be harmful to the human health is misconceived.
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8. It is further clear from the record that the land bearing survey number 9 situated at village Zundal is a huge land admeasuring 16,592 sq.mtrs out of which 345 sq.mtr of land is allocated for construction of drainage pumping station that too in the margin land near crematorium. Thus, the land is allocated for public purpose for the benefit of the village people. It is further revealed that the pond is situated at a distance of 90 mtrs. from the land which is allocated for construction of pumping station. In fact, as per the say of the respondent AUDA, no drainage facility is available at the Gram Panchayat and villagers themselves are disposing off the drain water in the pond. The photographs are produced by respondent AUDA on record which suggest the condition of the pond. On the contrary, respondent AUDA has stated on affidavit that after construction of the pumping station, AUDA is desirous to develop the pond.
9. The petitioners have tried to rely upon the report given by another expert namely Soham Consultancy Services and submitted that the construction of the pumping station is feasible at another place also. However, when the AUDA has appointed the expert agency twice and got the report, there is no reason for this Court to Page 15 of 17 HC-NIC Page 15 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT disbelieve the said report. When there are two different opinions given by two different experts, this Court is not an expert on the technical subject and therefore when the consultant appointed by AUDA which is competent authority working for the benefit of the villagers of Panchayat has opined, this Court is ready and willing to accept the report submitted by such expert.
10. There is no dispute with regard to the proposition of law laid down by this Court as well as the Hon'ble Supreme Court in the decisions relied upon by learned advocates appearing for the petitioners. However, the said decisions are not applicable to the facts of the present case as in the present case, the Panchayat itself has passed a resolution allocating the land for construction of the pumping station at the place in dispute. The project report was prepared by the consultant as observed hereinabove. The work order is already executed in favour of M/s Visat Consultancy and 40% of the work is already over. It is not feasible to construct a pumping station at another site suggested by the Panchayat in another resolution near HUDCO as per the second report prepared by the experts. Moreover, out of 16,592 sq.mtrs. of land of survey number 9, only Page 16 of 17 HC-NIC Page 16 of 17 Created On Tue Apr 26 02:47:52 IST 2016 C/WPPIL/5/2015 CAV JUDGMENT 345 sq.mtrs. land is allocated for construction of drainage pumping station that too near the margin land near crematorium and therefore in the facts of the present case, the aforesaid decisions are not applicable.
11. In view of the aforesaid discussion, the present petition is devoid of merits and hence the same is dismissed. Notice is discharged.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Srilatha Page 17 of 17 HC-NIC Page 17 of 17 Created On Tue Apr 26 02:47:52 IST 2016