Gujarat High Court
Shri Swaminarayan Mandir Trust vs State Of Gujarat & on 27 April, 2016
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/6648/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6648 of 2016
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SHRI SWAMINARAYAN MANDIR TRUST....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PREMAL R JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR. J. K. SHAH AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 27/04/2016
ORAL ORDER
1. Challenger made in the present petition filed under Article 226/27 of the Constitution of India is against the order dated 24/12/2014 passed by the Secretary, Revenue Department (Appeals) in Revision Application No. MVV/JMN/KUTCH/137/2009 preferred by the petitioner as also the order dated 03/08/2009 passed by the Collector. It appears that the petitioner made an application to the President, Bhuj Municipality for allotment of some land being part of pond, which is stated to be falling just behind the establishment of the petitioner, as stated in such application at Annexure-B. The petitioner requires such land to provide for sufficient accommodation to meet with a future requirement of the students. It appears that based on the said Page 1 of 4 HC-NIC Page 1 of 4 Created On Sat Apr 30 02:05:56 IST 2016 C/SCA/6648/2016 ORDER application, the Municipality sent proposal to the Collector. The Collector rejected the demand of the petitioner by relying on the direction issued by this Court in Special Civil Application No. 10621 of 2000 and allied matters which was to make open the encroachment from the lands where the water sources are available and to ensure that no encroachment on such lands is made. The Collector has observed in his order that Hamirsar pond is declared as a prohibited source of water and therefore the demand of the petitioner for allotment of the from pond lands cannot be accepted. The Secretary has concurred with the view taken by the Collector and rejected the revision application of the petitioner by the impugned order.
2. Learned advocate Mr. Joshi for the petitioner submitted that the Collector rejected the demand of the petitioner only on the ground that allotment of any land from Hamirsar pond is prohibited but the demand of the petitioner for land was not from Hamirsar pond. Mr. Joshi submitted that just behind the building of the petitioner, land of Fatel pond is situated, and the said pond is totally dried and surrounding Fatel pond, hospital and commercial building have come up on part of the land of Fatel pond. Mr. Joshi therefore, Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Apr 30 02:05:56 IST 2016 C/SCA/6648/2016 ORDER submitted that the Collector be directed to reconsider the matter as the demand of the petitioner is not for land of Hamirsar pond.
3. Learned AGP Mr. Shah, on the other hand, submitted that the application made by the petitioner was for allotment of the land from the pond land, which is situated to be just behind the present establishment of the petitioner. Mr. Shah submitted that in view of the High Court direction not to allot any land from the pond land or from any land where the water sources exist, the Collector and the Secretary committed no error in rejecting the demand of the petitioner.
4. The Court, having heard learned advocates for the parties, finds that undisputably, as stated in the application made by the petitioner at Annexure-B, the demand of the petitioner for allotment of the land was from the pond land. It is the say of the petitioner that just behind the establishment of the petitioner fatal pond in dried form exists and on such land of fatal pond, other building for commercial purposes have come up. The Collector however has observed in his order that as per direction issued by the High Court in above referred petitions, water sources of ponds etc are to be Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat Apr 30 02:05:56 IST 2016 C/SCA/6648/2016 ORDER protected and if there is encroachment on any such land having water sources, such encroachment is to be removed. The Collector though, has considered prohibition in connection with Hamirsar pond, however, fact remains that demand of the petitioner is for allotment of the land from pond land. The water sources once were there in the Fatal pond, if allotment land from such is permitted, there will remain no chances for revival of pond.
5. By virtue of the directions issued by this Court and in order to ensure that no land could be allotted from the pond land, if the impugned decision is taken, the Court would not like to sit in appeal over the decision taken by the lower authorities in exercise of power under Article 226/227 of the Constitution of India.
6. The petition is, therefore, rejected.
(C.L.SONI, J.) MANOJ KUMAR Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Apr 30 02:05:56 IST 2016