Vijay Vallabhbhai Patel & vs State Of Gujarat & 4 on 10 April, 2015

[Cites 23, Cited by 1]

Gujarat High Court

Vijay Vallabhbhai Patel & vs State Of Gujarat & 4 on 10 April, 2015

Bench: Abhilasha Kumari

      C/SCA/1631/2015                                 CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             SPECIAL CIVIL APPLICATION NO. 1631 of 2015



FOR APPROVAL AND SIGNATURE:


HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
===========================================================
1   Whether Reporters of Local Papers may be allowed to see Yes
    the judgment ?

2   To be referred to the Reporter or not ?                          Yes

3   Whether their Lordships wish to see the fair copy of the         No
    judgment ?

4   Whether this case involves a substantial question of law as No
    to the interpretation of the Constitution of India or any order
    made thereunder ?

================================================================
               VIJAY VALLABHBHAI PATEL & 1....Petitioner(s)
                               Versus
                 STATE OF GUJARAT & 4....Respondent(s)
================================================================
Appearance:
MR SHALIN N MEHTA, LEARNED SENIOR ADVOCATE WITH MR
ABHISHEK M MEHTA, ADVOCATE for the Petitioner(s) No. 1 - 2
MS VACHA DESAI, LEARNED ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 3 , 5
MR DHAVAL G NANAVATI, ADVOCATE for the Respondent(s) No. 4
===========================================================

         CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
                KUMARI

                            Date : 10/04/2015


                            CAV JUDGMENT

Page 1 of 63 C/SCA/1631/2015 CAV JUDGMENT

1. Rule. Ms. Vacha Desai, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1, 3 and 5 and Mr.Dhaval G. Nanavati, learned advocate, waives service of notice of Rule for respondent No.4.

2. By way of the present petition preferred under Article 226 of the Constitution of India, the petitioners have, interalia, prayed for the issuance of a writ of Mandamus or any other appropriate writ or direction, quashing and setting aside the decision taken by the respondent authorities in seeking to put up the construction of the retaining wall/embankment, behind the subject land belonging to the petitioners and not along the periphery of the river boundary, on the right bank of the river Tapi, starting from Nehru Bridge to Magdalla Bridge in District Surat, as being arbitrary, malafide, irrational, unjustified and without any basis, in addition to being violative of Articles 14 , 19 , 21 , 48A and 300A of the Constitution of India. The petitioners have further prayed for directions to the respondent authorities to reconsider the alignment of the retaining wall/embankment on the Page 2 of 63 C/SCA/1631/2015 CAV JUDGMENT basis of the river boundary demarcated in the report submitted on 04.07.2013, prepared pursuant to the meeting held on 13.03.2009.

3. Respondent No.1 is the Secretary, Narmada and Water Resources Supply and Kalpsar Department, State of Gujarat. Respondent No.2 is the Secretary, Roads and Buildings Department, State of Gujarat. Respondent No.3 is the Executive Engineer, Irrigation Department, which is contemplating the construction of the retaining wall/embankment in question, behind the subject land belonging to the petitioners, towards the city of Surat. Respondent No.4 is the Surat Municipal Corporation and respondent No.5 is the Narmada Water Resources Water Supply and Kalpsar Department, which has issued the tender in question.

4. The factual matrix, necessary background and the issues arising in the petition are briefly summarised as under:

4.1 Land bearing Revenue Survey Nos.602, 686, 687 and 688 (admeasuring 3 Hectare, 89 Are and 51 sq. meters) of Village Adajan, Taluka Choryasi, District Surat Page 3 of 63 C/SCA/1631/2015 CAV JUDGMENT ("the subject land" for short) is agricultural land situated adjacent to the right bank of the river Tapi in Surat. It falls under the Recreation Zone in the Town Planning Scheme Nos.10 and 11 of Adajan, in terms of the provisions of the Gujarat Town Planning and Urban Development Act ("the T.P. Act" for short). The subject land was in the joint name of the petitioners and one Jairambhai and Gauriben Jairambhai, who are the deceased parents of the present petitioner No.2.

The subject land is, therefore, of the private ownership of the petitioners.

4.2 The Tapi river flows through the city of Surat, cutting it into two parts. Over a period of time spanning more than fifty years, the city of Surat has expanded in length and breadth, which has led to people making the river bank, as well as the lands adjacent to the river Tapi, as their home. The entire city of Surat has, in fact, expanded more or less along the banks of the river Tapi. There have been occasions in the past when, due to excessive water in the river Tapi during the monsoon season, flooding has occurred in Surat, endangering life and property. A Page 4 of 63 C/SCA/1631/2015 CAV JUDGMENT situation occurred in the year 1968, when, due to incessant rain in the catchment area of the river Tapi, a natural calamity occurred, resulting in flood waters entering the city of Surat. This situation prompted the authorities to consider alternatives to stop the flooding in the city in order to avoid such natural calamities.

4.3 In the year 1972, respondent No.3 Irrigation Department, had constructed an embankment of around 3 kms. covering an area commonly known as Rander, in Surat city, which was located on the right bank of the river Tapi. Some construction was carried out at another part of the river bank, in an area known as Bhatpore (Icchapore), which is at a distance of 12 to 15 Kms from Rander. According to the petitioner, no construction was carried out in between the said areas.

4.4 Thereafter, from 1972 to 2006, no further activity of construction of the embankment on the right bank of the river took place. According to the petitioners, in the years 1978, 1979, 1994 and 1998, Page 5 of 63 C/SCA/1631/2015 CAV JUDGMENT water from the river Tapi had entered into the city, affecting the citizens residing on the river banks as well as the interior areas of the city, causing loss of life and property. In the month of August, 2006, due to the excessive discharge of water from the Ukai Dam during the monsoon season, a massive natural calamity occurred, resulting in the water of the river Tapi entering the city of Surat. This affected a major part of Surat city, which was submerged in water, resulting in extensive loss to life and property. In view of the aforesaid calamity, the respondent State of Gujarat constituted a Commission headed by a retired Judge of the Gujarat High Court, Ms. Justice Sugnyaben K. Bhatt, as Chairperson, and Mr. P.D. Soni, as Member. The Commission submitted its Report in the year 2008, making several recommendations. According to the petitioners, none of the recommendations suggested the construction of an embankment or the proposed line or demarcation for the same. In fact, according to the petitioners, the Report recommended that providing an embankment in the area would create a very high efflux on the upstream side and would also submerge Kathor bridge. It is stated in the Page 6 of 63 C/SCA/1631/2015 CAV JUDGMENT Report that in view of the recorded history of flooding in Surat and the floodplain areas and the manmade causes brought out in the report, it is impossible to provide a foolproof arrangement against floods for Surat city. However, flood mitigation efforts have to be implemented strictly by way of completely restricting development in the lowlying areas, floodplains, drains etc. 4.5 It is stated in the petition that as a consequence of the aforesaid Report, the authorities of the State, including the Surat Urban Development Authority, Surat Municipal Corporation (respondent No.4), respondent No.3 and other officers of the State Government, held a meeting on 13.03.2009, under the auspices of the Chief Secretary, in order to discuss the implementation of the recommendations of the Commission. Pursuant to the aforesaid meeting, the authorities decided to undertake certain steps, one of which was in respect of the demarcation of the boundary of the river Tapi. Insofar as the subject land belonging to the petitioners is concerned, the same is not shown as part of the river, but is falling Page 7 of 63 C/SCA/1631/2015 CAV JUDGMENT outside the boundary land demarcating the river Tapi. Meaning thereby, that the authorities have recognised the subject land as part of the entire landmass of Surat city and not a part of the area of the river Tapi. This is over and above the fact that the subject land is demarcated even in the Town Planning Scheme Nos.10 and 11 of Adajan and is designated as a Recreation Zone in terms of the General Development Control Regulations ("GDCR" for short), as applicable. 4.6 It is further stated in the petition that a part of the subject land belonging to the petitioners was earlier acquired by way of land acquisition proceedings, as it was required for the purpose of the construction of a bridge commonly known as "Cable Bridge" starting from Adajan to Athwalines area of Surat city. In view of the acquisition, compensation came to be awarded in favour of the petitioners. 4.7 The impetus for preferring the present petition is that the petitioners have come to know of correspondence between respondent No.3 Irrigation Department and respondent No.4 Surat Municipal Page 8 of 63 C/SCA/1631/2015 CAV JUDGMENT Corporation, between the year 20102011, wherein, respondent No.3, of his own volition, requested for land from respondent No.4, for the purpose of the construction of a retaining wall. According to the petitioners, this has been done to avoid and bypass the accepted procedure of acquiring the land for the purpose of the construction of the retaining wall as an extension to the earlier embankment constructed in the year 1972. According to the petitioners, the decision to take up the defunct project which was practically shelved by the respondents in the year 1972, is arbitrary and unjustified and has no rationale or nexus to the object sought to be achieved, namely, the ostensible purpose of constructing a retaining wall in order to protect the area of Surat city on the right bank of the river Tapi, from flooding. According to the petitioners, the decision of the concerned respondents to construct the wall will not benefit the public but, on the contrary, will cause damage to the ecology and environment, in addition to being contrary to the Report of the Justice Bhatt Commission. The petitioners state that the proposed wall is not proposed to be extended Page 9 of 63 C/SCA/1631/2015 CAV JUDGMENT uniformly along the right bank of the river Tapi, but is to be constructed at a distance of more than 100 meters away from the river bank/river boundary, resulting in cutting off vast chunks of land which are otherwise not a part of the river but fall within the city area outside the river boundary and are demarcated private survey numbers, from the landmass of Surat city. It is the case of the petitioners that the decision to construct a retaining wall, as proposed, has no scientific justification or technical reasoning. Normally, all over the world, retaining walls are constructed along the river banks but in the present case, the wall is being constructed in a haphazard and zigzag manner resulting in cutting off the subject land of the petitioners from Surat city, as if the subject land was forming a part of the riverbed. The petitioners have illustrated this point by referring to the construction of the Riverfront along the banks of the Sabarmati River at Ahmedabad, stating that the same is constructed along the banks of the river and not into the City of Ahmedabad. However, in the present case, the retaining wall is proposed to be constructed behind the subject land and Page 10 of 63 C/SCA/1631/2015 CAV JUDGMENT not along the river boundary. As a result of this, the petitioners would be greatly prejudiced as it would result in cutting off the land of the petitioners from the landmass of Surat city and pushing it towards the river. The subject land would, therefore, be sandwiched between the proposed retaining wall and the river Tapi, exposing it to inundation by floods during the monsoon season, instead of protecting it. The ecology of the region would also get adversely affected as the flood waters would enter the land at various places and ruin it. The petitioners further state that no land has been acquired by the State Government for the purpose of putting up the retaining wall. Instead, the wall is sought to be constructed on a Town Planning road belonging to respondent No.4 Surat Municipal Corporation, which is approximately 100 meters-150 meters away from the river bank. Respondent No.4 has decided to give six meters out of its twentyfour meters road to respondent No.3 Irrigation Department, for the construction of the retaining wall. According to the petitioners,it is unheard of that the retaining wall, ostensibly proposed to be constructed for the purpose of Page 11 of 63 C/SCA/1631/2015 CAV JUDGMENT prevention of flood waters of the river from entering the city, is being constructed within the city and not along the banks of the river.

4.8 The petitioners apprehend that the construction of the retaining wall in the manner proposed would prove disastrous for them, as they are residing on the part of the land that would be cut off from the city due to the construction of the retaining wall. The land would become prone to floods, which would lead to submergence of the entire area on the side of the retaining wall, facing the river Tapi. It is the case of the petitioners that their land would suffer the permanent adverse effects of flooding due to the construction of the retaining wall, inasmuch as the land would be rendered permanently prone to flooding from the Tapi river. The petitioners would be deprived of their right to enjoy their property for all times to come, resulting in a violation of Article 300A of the Constitution of India. Besides this, the retaining wall would make the subject lands inaccessible for the petitioners.

Page 12 of 63 C/SCA/1631/2015 CAV JUDGMENT 4.9 The petitioners have clearly stated in the memorandum of the petition that they are not against the construction of the retaining wall per se, but are aggrieved by the manner in which it is proposed to be constructed, which would ruin the subject land for all times to come and deprive them of its effective use and enjoyment. It is further the case of the petitioners that in the year 1972, when an embankment was being constructed in a similar fashion, the respondent authorities acquired the land of the private parties who would have been affected in a similar manner as the petitioners, and had paid compensation to them. However, in the case of the petitioners, the procedure of acquisition is not being resorted to and no compensation is contemplated to be paid to them, though their land would be rendered useless by the action of the respondents. The petitioners allege that this amounts to discrimination and a violation of Article 14 of the Constitution of India. In the present case, the respondent authorities have proposed a haphazard construction of the retaining wall away from the riverbed and behind the land of the petitioners, thereby pushing the subject Page 13 of 63 C/SCA/1631/2015 CAV JUDGMENT land towards the river, in order to avoid the payment of compensation to the affected parties, including the petitioners. According to the petitioners, the action of the construction of the retaining wall by the respondents which would expose their land to floods and deprive the petitioners of its effective use and enjoyment for all times to come amounts to "passive taking" and the petitioners would be entitled to compensation from the concerned respondent authorities for the deprivation of their right to use and enjoy their property.

5. While advancing submissions before this Court, Mr. Shalin N. Mehta, learned Senior Advocate with Mr.Abhishek Mehta, learned counsel for the petitioners, has stated that, though several persons would be affected by the proposed action of the respondents in putting up the retaining wall and the properties of a large number of persons would become prone to flooding due to the zigzag alignment of the said wall, the present petition is confined to the legal rights of the petitioners only.

Page 14 of 63 C/SCA/1631/2015 CAV JUDGMENT

6. Pursuant to the issuance of notice, respondent No.3 has filed an affidavitinreply to which an affidavitinrejoinder has been filed on behalf of the petitioners. Respondent No.3 has, thereafter, filed a further affidavit in response to the affidavitin rejoinder.

7. Mr.Dhaval G. Nanavati, learned advocate for respondent No.4 Surat Municipal Corporation has submitted that respondent No.4 has no role in the present petition, hence, he would adopt the arguments advanced by respondent No.3.

8. In the above background, learned counsel for the respective parties have advanced detailed submissions.

9. Mr.Shalin N. Mehta, learned Senior advocate for the petitioners has submitted as below:

(a) That the petitioners are being constructively deprived of their private property as the respondents have decided to construct the retaining wall in a manner that would separate the land of the petitioners Page 15 of 63 C/SCA/1631/2015 CAV JUDGMENT from the landmass of Surat city and push it towards the Tapi river, thereby exposing the said land to the vagaries of floods which are likely to occur frequently, as the area is prone to flooding. The construction of the retaining wall would result in sandwiching the land of the petitioners between the river and the wall, as a result of which the petitioners would be deprived of the effective use and enjoyment of their property forever, which amounts to a deprivation of property within the meaning of Article 300A of the Constitution of India.

(b) That the land of the petitioners has not been acquired by the respondents department, nor is any compensation contemplated to be paid to them. However, in a similar situation in the past, when the land of the other similarly situated persons was being exposed to the vagaries of floods due to the construction of an embankment in the year 1972, the respondents had acquired the affected lands and paid compensation to the owners. The petitioners ought to be given similar treatment. They cannot be discriminated against, in the manner in which the respondents are doing. The Page 16 of 63 C/SCA/1631/2015 CAV JUDGMENT action of the respondents in not giving similar treatment to the petitioners is violative of Article 14 of the Constitution of India.

(c) The action of the respondents in proposing to construct the retaining wall behind the land of the petitioners and not along the banks of the Tapi river, thereby depriving them of the use and enjoyment of the subject land, amounts to "passive taking" of the land.

No acquisition proceedings have been initiated or compensation contemplated to be paid to the petitioners. The respondents cannot be permitted to do indirectly, what they cannot do directly, by rendering the land totally useless for any future activity and making it dangerous to live on as it would be vulnerable to floods. This action of the respondents amounts to constructive acquisition and "passive taking". They are, therefore, liable to pay compensation to the petitioners. It is a classic case of constructively, though not formally, acquiring someone's land but not paying compensation to him.

(d) That the subject land is agricultural land. The Page 17 of 63 C/SCA/1631/2015 CAV JUDGMENT petitioners have a right to cultivate or sell it, as it is old tenure land. The land is in the Recreation Zone of the Town Planning Scheme and the petitioners have a right to do any business or occupation on the said land under Article 19(1)(g) of the Constitution of India. This right has been completely snatched away by the action of the respondents.

(e) As per Article 300A of the Constitution of India, an individual can be deprived of property only by the "authority of law". In the present case, the action of constructing a retaining wall does not have the authority of law, inasmuch as no acquisition proceedings have been initiated or compensation paid to the petitioners for the deprivation of the enjoyment of their property.

(f) The judgment of this Court dated 05.09.2014 passed in Writ Petition (PIL) No.31 of 2014 with Writ Petition (PIL) No.56 of 2014, does not govern the case of the petitioners, as the said petition was filed in the public interest, whereas, in the present case, the petitioners have approached this Court for the breach of their fundamental and legal rights under Articles Page 18 of 63 C/SCA/1631/2015 CAV JUDGMENT 14 , 19(1)(g) and 300A of the Constitution of India. Besides, in the said PIL, no question was raised regarding the constructive deprivation of private property or regarding "passive taking" by construction of a well. Individuals can always approach the Court under Article 226 of the Constitution of India for the violation of their legal and fundamental rights. The issues raised in the present petition were neither raised, nor adjudicated, in the PIL, therefore, the case of the petitioners is on a different footing. Similarly, the judgment dated 13.06.2011 passed in Special Civil Application No.723 of 2011, relied upon by respondent No.3 in his affidavitinreply, is regarding the cancellation of the development permission due to floods and not about constructive deprivation of the private property of an individual. This judgment would also not be applicable in the case of the petitioners.

(g) That the petitioners are not against the construction of a retaining wall, as such, but are aggrieved by the manner in which the said wall is proposed to be constructed. There is no scientific Page 19 of 63 C/SCA/1631/2015 CAV JUDGMENT basis for the execution of this project which was commenced in the year 1972 and abandoned thereafter, till it was again taken up in a haphazard manner, in December, 2014, when the petitioners become aware of it. The petitioners, along with other affected persons, made representations to the Collector, Surat City, as well as to respondents Nos.3 and 4, requesting them to reconsider their decision and change the alignment of the wall so as to construct it along the banks of the riverbed. The petitioners also offered to give away a part of their land without any charge/compensation for the construction of the wall in this manner. However, the respondents have persisted in their decision of the construction of the retaining wall in a manner that has no scientific or technical basis or justification. No reports suggest the coordinates for constructing the retaining wall in such a manner. The wall is being constructed 100150 meters inside the land and away from the riverbed, instead of along the river bank, which is unheard of, as the water of the river would enter into the land of the petitioners as there would be no wall between the land and the riverbed to protect it from floods. Page 20 of 63 C/SCA/1631/2015 CAV JUDGMENT

(h) There is no clarity on the point as to how the petitioners would be provided a right of way to their land, as the retaining wall would make the land of the petitioners inaccessible to them, thereby depriving them even of a proper right of way to their property.

(i) That the situation which the respondents have created prevails only on the right bank of the river Tapi. On the left bank of the river, the construction of the embankment is completely as per the actual river boundary and not inside the city limits. Meaning thereby, no land of private ownership has been excluded from the benefit of the river embankment and the construction of the embankment ensures protection to all the persons residing on the land adjacent to the river, as the embankment extends along the line of the river boundary. However, insofar as the right bank of the river is concerned where the subject land is situated, the respondents are not constructing the retaining wall along the river boundary but are constructing it in a zigzag manner, so that parts of it are away from the boundary and inside the land Page 21 of 63 C/SCA/1631/2015 CAV JUDGMENT mass, which is adversely affecting the lands of not only the petitioners but of other similarly situated persons as well.

On the above grounds, it is prayed that the petition be allowed.

(j) In support of the above submissions, learned Senior Counsel for the petitioners has placed reliance upon the following judgments:

(1) Lachhman Dass Vs. Jagat Ram and others reported in (2007) 10 SCC 448;

(2) Tukaram Kana Joshi and others Vs. Maharashtra Industrial Development Corporation and others reported in (2013) 1 SCC 353;

(3) Dev Sharan and others Vs. State of Uttar Pradesh and others reported in (2011) 4 SCC 769.

10. The petition has been strongly opposed by Ms. Vacha Desai, learned Assistant Government Pleader, appearing for respondents Nos.1, 2, 3 and 5, by Page 22 of 63 C/SCA/1631/2015 CAV JUDGMENT submitting that:

(a) This Court, in a Writ Petition under Article 226 of the Constitution of India, may not go into issues that require technical expertise such as the construction of a retaining wall.

(b) There is no question of the payment of compensation to the petitioners, as no land of theirs has been acquired. The retaining wall is being constructed on the public road of respondent No.4 Surat Municipal Corporation. As the land of the petitioners is not being touched or entered upon, there is no need to acquire the same and no compensation is liable to be paid to them.

(c) Pursuant to the tender issued by respondent No.3, a work order was given. Respondent No.3 has already acted in furtherance of the permission given for construction of the protection wall. The delay in the execution of the work within a timebound period would cause irreparable injury or loss to the public exchequer, as well as involve the risk of flooding.

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(d) The prayers made in the petition are similar to the prayers made in Writ Petition (PIL) No.31 of 2014, wherein the Division Bench held that the issue of the construction of the embankment is not for the Court to decide, as Courts do not possess engineering expertise in the field of construction of embankments or the viability and feasibility of a particular project. The said decision would cover the case of the petitioners.

(e) Similarly, in judgment dated 13.06.2011 passed in Special Civil Application No.723 of 2011 which has been upheld in Letters Patent Appeal would also cover the case of the petitioners.

(f) The respondents have decided to construct the retaining wall in order to protect the city of Surat from floods. The wall is being constructed on the basis of reports of technical experts which have been prepared after collection of data and the analysis and interpretation of satellite data, wherein specific calculation and recommendations with respect to constructing and raising of existing embankment and longterm measures were suggested.

Page 24 of 63 C/SCA/1631/2015 CAV JUDGMENT

(g) That the allegation of the petitioner that there is no logic in constructing the wall in a zigzag manner is not tenable, as the morphology of the meandering of the river has to be considered, and the design finalised and alignments have to be given accordingly. The work has been started after considering the nature of the soil exploration, land and other factors.

(h) That the allegation of the petitioners that their land would be deliberately cut off without proper acquisition, thereby violating their legal and fundamental rights, is not correct. The construction of the retaining wall is to be made on the road provided by respondent No.4. The petitioners have themselves constructed a huge compound wall towards the land side on their private land and respondent No.3 would be constructing the retaining wall parallel to the land of the petitioners, therefore, there is no question of their deliberately cutting off the private properties of the petitioners from the city.

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On the basis of the above submissions, it is prayed that the petition be rejected.

11. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and other documents on record. This Court has accorded deep consideration to the submissions advanced by the respective parties.

12. The undisputed facts of the matter that emerge may be noticed, before examining the submissions advanced by the learned counsel for the respective parties.

(1) Admittedly, the subject land is the private property of the petitioners. It falls under the Recreation Zone of the Town Planning Scheme Nos.10 and 11 of the Adajan and is old tenure land, not restricted in any manner.

(2) The subject land faces the right bank of the river Tapi. The Tapi river is prone to floods during the monsoon season and the land adjoining the river banks gets inundated and submerged with water from the Page 26 of 63 C/SCA/1631/2015 CAV JUDGMENT Tapi river in the monsoon season or when a flood like situation occurs.

(3) The retaining wall proposed to be constructed by the concerned respondents on the right bank of the river Tapi, near the land of the petitioners, is not proposed to be constructed along the riverbed but about 100 to 150 meters away from the river bank, into the landmass of Surat city and behind the property of the petitioners. The land of the petitioners would then face the Tapi river and be sandwiched between the wall and the river with no protection from the waters of the river.

(4) In the year 1972, when an embankment was constructed in a similar fashion, the lands of those private owners whose properties were exposed to the river in a similar manner were acquired and compensation paid to them. This aspect has been highlighted by the petitioners in their pleadings and has not been denied by the respondents. In fact, it is admitted by the learned Assistant Government Pleader during her arguments.

Page 27 of 63 C/SCA/1631/2015 CAV JUDGMENT (5) No proceedings for the acquisition of the land of the petitioners have been initiated by the concerned respondents.

13. Having noticed the above undisputed aspects of the matter, the submissions advanced by the learned Senior Advocate for the petitioners may be evaluated.

It has been contended on behalf of the petitioners that by constructing the retaining wall behind the land of the petitioners, instead of along the right bank of the Tapi river, the land would get sandwiched between the retaining wall and the river, thereby exposing it to the vagaries of floods and inundation during the flooding of the river, as there is no protective wall along the river bank to prevent the water from entering the land of the petitioners.

The learned Senior Advocate for the petitioners has forcefully contended that the construction of the retaining wall in such a fashion would segregate the land of the petitioners from the landmass of Surat city and push it towards the river, exposing it to Page 28 of 63 C/SCA/1631/2015 CAV JUDGMENT floods instead of protecting it. According to the learned Senior Advocate, the petitioners have the right to the enjoyment of their property and they cannot be deprived of their property, save by authority of law, as per Article 300A of the Constitution of India. It has been submitted that though the right not to be deprived of property, save by authority of law, is no longer a fundamental right, it is still a constitutional right and also a human right.

14. The learned Senior Advocate has placed reliance upon a judgment of the Supreme Court in Lachhman Dass Vs. Jagat Ram and others (supra), wherein the Supreme Court has held as below:

"16. Despite such notice, the appellant was not impleaded as a party. His right, therefore, to own and possess the suit land could not have been taken away without giving him an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in Page 29 of 63 C/SCA/1631/2015 CAV JUDGMENT accordance with the provisions of a statute. If a superior right to hold a property is claimed, the procedures therefore must be complied with. The conditions precedent therefore must be satisfied. Even otherwise, the right of pre emption is a very weak right, although it is a statutory right. The court, while granting a relief in favour of the a preemptor must bear it in mind about the character of the right visa vis the constitutional and human right of the owner thereof."

(emphasis supplied)

15. Another judgment relied upon by the learned Senior Advocate for the petitioners is Tukaram Kana Joshi and others Vs. Maharashtra Industrial Development Corporation and others (supra), wherein the Supreme Court has held as below:

"8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the Right to Property ceased to be a fundamental Right, taking possession of or acquiring the property of a citizen most certainly tantamounts to Page 30 of 63 C/SCA/1631/2015 CAV JUDGMENT deprivation and such deprivation can take place only in accordance with the "law", as the said word has specifically been used in Article 300A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar, v. State of Gujarat, it has been held as follows: (SCC p.627, para 48) "48. In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There [is] no deprivation without [due] sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300A. In other words, if there is no law, there is no deprivation."

9. The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment, etc. Now however, human rights are gaining an even greater multifaceted dimension. The right to Page 31 of 63 C/SCA/1631/2015 CAV JUDGMENT property is considered, very much to be a part of such new dimension. (Vide Lachhman Dass v. Jagat Ram, Amarjit Singh v. State of Punjab, State of M.P. v. Narmada Bachao Andolan, State of Haryana v. Mukesh Kumar and Delhi Airtech Services (P) Ltd. v. State of U.P)

10. In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the rule of law, the State should be allowed to deprive a citizen of his property, without adhering to the law. The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal."

(emphasis supplied)

16. In Dev Sharan and others Vs. State of Uttar Pradesh and others (supra), also replied upon on behalf of the petitioners, wherein the Supreme Court has held as below:

"15. Admittedly, the Land Acquisition Act, a preconstitutional legislation of colonial vintage is a drastic law, being expropriatory in nature Page 32 of 63 C/SCA/1631/2015 CAV JUDGMENT as it confers on the State a power which affects person's property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory. This Court is considering these questions, especially, in the context of some recent trends in land acquisition. This Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State.

16. The concept of "public purpose" cannot remain static for all time to come. The concept, even though sought to be defined under Sections 3(f) of the Act, is not capable of any precise definition. The said definition, having suffered several amendments, has assumed the character of an inclusive one.

17. It must be accepted that in construing "public purpose", a board and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people, especially of the Page 33 of 63 C/SCA/1631/2015 CAV JUDGMENT common people, defeats the very concept of public purpose. Even though the concept of public purpose was introduced by preconstitutional legislation, its application must be consistent with the constitutional ethos and especially the chapter under fundamental rights and also the directive principles.

18. In construing the concept of public purpose, the mandate of Article 13 of the Constitution that any preconstitutional law cannot in any way take away or abridge rights conferred under Part III must be kept in mind. By judicial interpretation the contents of these Part III rights are constantly expanded. The meaning "public purpose" in acquisition of land must be judged on the touchstone of this expanded view of Part III rights. The openended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio economic reality in this country."

(emphasis supplied)

17. Apart from the above, it would be fruitful to advert to other judicial pronouncements of the Supreme Court regarding Article 300A of the Constitution of India.

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18. In Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke and Chemicals Ltd. and others reported in (2007) 8 SCC 705, the Supreme Court has held as below:

"Human Right Issue :

53. The right of property is now considered to be not only a constitutional right but also a human right.

54. The Declaration of Human and Civil Rights of 2681789 enunciates under Article 17:

"17. Since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".

Further under Article 17 of the Universal Declaration of Human Rights, 1948 dated 10121948, adopted in the United Nations General Assembly Resolution it is stated that: (I) Everyone has the right to own property alone as well as in association with others. (ii) No one shall be arbitrarily deprived of his property.

55. Earlier human rights were existed to the claim of individuals right to health, right to Page 35 of 63 C/SCA/1631/2015 CAV JUDGMENT livelihood, right to shelter and employment, etc. but now human rights have started gaining a multifaceted approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams (17971801) put it:

"Property is surely a right of mankind as real as liberty."

Adding, "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence".

56. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law."

(emphasis supplied)

19. In K.T. Plantation Private Limited and another Vs. State of Karnataka reported in (2011) 9 SCC 1, the Supreme Court has held as below:

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"187. The legislative field between Parliament and the legislature of any State is divided by Article 246 of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters enumerated in Schedule VII List I, called the Union List and subject to the said power of Parliament, the legislature of any State has power to make laws with respect to any of the matters enumerated in List III, called the Concurrent List. Subject to the above, the legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in List II, called the State List. Under Article 248, the exclusive power of Parliament to make laws extends to any matter not enumerated either in the Concurrent List or State List.

188. We find no apparent conflict with the words used in List III Entry 42 so as to infer that the payment of compensation is inbuilt or inherent either in the words "acquisition and requisitioning" under List III Entry 42. Right to claim compensation, therefore, cannot be read into the legislative List III Entry 42.

189. Requirement of public purpose, for deprivation of a person of his property under Article 300A, is a precondition, but no compensation or nil compensation or its illusiveness has to be justified by the State on Page 37 of 63 C/SCA/1631/2015 CAV JUDGMENT judicially justiciable standards. Measures designed to achieve greater social justice, may call for lesser compensation and such a limitation by itself will not make legislation invalid or unconstitutional or confiscatory. In other words, the right to claim compensation or the obligation to pay, though not expressly included in Article 300A, it can be inferred in that article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors.

190. Article 300A would be equally violated if the provisions of law authorising deprivation of property have not been complied with. While enacting Article 300A Parliament has only borrowed Article 31(1) (the "Rule of Law"

doctrine) and not Article 31(1) (which had embodied the doctrine of eminent domain). Article 300A enables the State to put restrictions on the right to property by law. That laws has to be reasonable. It must comply with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restrictions must not be disproportionate to the situation or excessive.

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191. The legislation providing for deprivation of property under Article 300A must be "just, fair and reasonable" as understood in terms of Articles 14 , 19(1)(g), 301, etc. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above.

192. At this stage, we may clarify that there is a difference between "no" compensation and "nil" compensation. A law seeking to acquire private property for public purpose cannot say that "no compensation shall be paid". However, there could be a law awarding "nil" compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the Government to establish validity of such law. In the latter case, the Court in exercise of judicial review will test such a law keeping in mind the above parameters."

(emphasis supplied)

20. In State of Madhya Pradesh Vs. Narmada Bachao Andolan and another reported in (2011) 7 SCC 639, the Page 39 of 63 C/SCA/1631/2015 CAV JUDGMENT Supreme Court has held as below:

"93. Compensation in the present context has to be understood in relation to the right to property. The right of the oustee is protected only to a limited extent as enunciated in Article 300A of the Constitution of India. The tenure holder is deprived of the property only to the extent of land actually owned and possessed by him. This is, therefore, limited to the physical area of the property and this area cannot get expanded or reduced by any fictional definition of the word "family" when it comes to awarding compensation. Compensation is awarded by the authority of law under Article 300A of the Constitution is awarded by the authority of law under Article 300A of the Constitution read with the relevant statutory law of compensation under any law made by the legislature and for the time being in force, only for the area acquired.

94. Rehabilitation on the other hand, is restoration of the status of something lost, displaced or even otherwise a grant to secure a dignified mode of life to a person who has nothing to sustain himself. This concept, as against compensation and property under Article 300A, brings within its fold the presence of the elements of Article 21 of the Constitution of India. Those who have been rendered destitute, have to be assured a permanent source of basic Page 40 of 63 C/SCA/1631/2015 CAV JUDGMENT livelihood to sustain themselves. This becomes necessary for the State when it relates to the rehabilitation of the already depressed classes like Scheduled Castes, Scheduled Tribes and marginal farmers in order to meet the requirements of social justice."

(emphasis supplied)

21. The sum and substance of the above exposition of law by the Supreme Court is that a citizen has a legal and constitutional right to hold property in terms of Article 300A of the Constitution of India. He cannot be deprived of his right save by authority of law. The right of an individual to hold property has also been held to be a human right. The deprivation of the property of a citizen can take place only by the authority of law. For example, if the State requires property for a public purpose and initiates proceedings to acquire the said property by paying just compensation in lieu of the deprivation of the property of the individual concerned, it would be by the authority of law. Such deprivation is permissible. What is prohibited by Article 300A is deprivation of the property of an individual without the authority of law and without paying compensation.

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22. The key word used in Article 300A of the Constitution of India is 'deprived'. As per the Concise Oxford Dictionary, Tenth Edition, the word 'deprive' means, to deny (a person or place) the possession or use of something. In the context of Article 300A of the Constitution of India, to 'deprive' would mean to deny a citizen the possession or use of his property.

23. Viewed in this context, a piquant and rather peculiar situation has arisen in the present case. The petitioners are the owners of the subject land and are in possession of it. Their grievance is that the proposed action of the concerned respondents in constructing the retaining wall in a manner that deviates from the riverbed and goes behind the land of the petitioners, resulting in sandwiching the said land between the wall and the river, would deprive them of the effective use and enjoyment of their land forever. Deprivation of the property of a citizen can occur when its possession is taken over from the citizen by the State, after following the prescribed Page 42 of 63 C/SCA/1631/2015 CAV JUDGMENT legal procedure, as in land acquisition cases. However, in the present case, another kind of deprivation can occur by the acts of the respondents, without their following any formal prescribed legal procedure. Such deprivation occurs from "passive taking" of the land without any formal procedure being followed. Nonetheless, it amounts to the deprivation of property. "Passive Taking" is a concept recognised by the Courts in the United States of America, though it has not gained much recognition in the Courts of this country. The learned Senior Advocate for the petitioners has relied upon an article by Christopher Serkin, Vanderbilt Law School, published in Volume 113 Issue 3 of the Michigan Law Review, titled "Passive Taking: The State Affirmative Duty to Protect Property". An extract of the article, insofar as it relates to the issue involved in the petition, is extracted hereinbelow:

"B. Passive Takings Defined Passive takings should arise when property is subject to such regulatory control that the government is understood to be responsible for the resulting harm, whether it acts or not. Or, Page 43 of 63 C/SCA/1631/2015 CAV JUDGMENT to put it in affirmative terms, the government should have a constitutional duty to act when it is complicit in creating the conditions that are responsible for harm to property. Passive takings liability will therefore attach to property that the government substantially regulates and has consequently rendered especially vulnerable to a change in the world.

If the government were also responsible for the underlying threat to property rights - if the government, for example, were responsible for global warming - then the duty to act would be stronger still. Nevertheless, even in the absence of that level of responsibility, where the content of statedefined rights and obligations exposes property to harm, the government should not necessarily be able to avoid liability by claiming inaction. By defining the content of property, the government is analogous to the driver who sets the car in motion. The government cannot later claim that it did not act when that definition of property comes crashing into some new reality.

There is, of course, a sense in which the government is always entangled with property, the substantive content of which comes largely, if not entirely, from positive law. If that level of entanglement were all that is necessary to create liability, then passive takings claims would be Page 44 of 63 C/SCA/1631/2015 CAV JUDGMENT ubiquitous. The purpose of this Part, however, is not to find the outer bounds of passive takings liability but instead to identify the core. After all, this Article's fundamental goal is simply to prove the existence of passive takings claims. Future scholarship can push the limits. At a minimum, then, passive takings claims should arise when:

1. The state has effective control over the injury causing condition; or

2. The state has rendered the property especially susceptible to adverse changes in the world."

(emphasis supplied)

24. The concept of "passive taking" is still new to Courts in this country. However, law is constantly evolving and adapting to new situations. The relevance of the concept of "Passive Taking" cannot be ignored in certain situations such as the one in the present case, where an act of the Government makes the property of an individual susceptible to adverse changes in a manner that the owner of the property loses his ability to protect the property. In the present situation, it is the State that has effective control of the injurycausing condition, amounting to Page 45 of 63 C/SCA/1631/2015 CAV JUDGMENT "passive taking" of the subject land. In such cases, it can be said that the Government owes a special obligation to provide protection and its failure to do so can give rise to a "passive taking" liability. The situation that has arisen in the present case is just such a one. The petitioners assert that their land, which is in the Recreation Zone of the Town Planning Scheme and can be used for construction of buildings and projects related thereto, or for starting a business or any other lucrative purpose, would be irreparably harmed by the action of respondent No.3 by building the retaining wall behind their land, thus severing it from the main landmass of the Surat city and pushing it towards the river. This action would result in exposing the land to submersion when floods occur in the Tapi river, which is a frequent phenomenon in Surat. Thus, the petitioners would be effectively deprived of the use of their property, in violation of Article 300A of the Constitution of India.

25. In the view of this Court, there is considerable substance in the submissions advanced on behalf of the Page 46 of 63 C/SCA/1631/2015 CAV JUDGMENT petitioners. It stands to reason, that if the petitioners are unable to make use of their land in any manner due to the construction of the retaining wall as it would be exposed to the danger of inundation by floods, the result would be the deprivation of the property of the petitioners, without the authority of law. Instead of protecting the land of the petitioners, which is the ostensible purpose for the construction of the wall, it would have the opposite effect of endangering the land and preventing them from using and enjoying their property, which is their legal and constitutional right. The action of respondent No.3 in building the retaining wall would cause injury to the petitioners resulting in the susceptibility of the land to adverse changes, leading to the erosion of the land and causing environmental and ecological damage. Though the petitioners would still retain the possession of their property, it would be a possession sans their right to enjoy it, reducing it to a mere empty holding, and that too without the payment of compensation to them.

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26. An argument of a technical nature has been advanced on behalf of respondent No.3 by the learned Assistant Government Pleader, to the effect that, as the retaining wall is to be built on six meters out of the twentyfour meters road belonging to respondent No.4 Surat Municipal Corporation, the land of the petitioners has not been touched or entered upon, therefore, there is no requirement to acquire it or pay compensation to the petitioners.

27. Generally speaking, deprivation of property within the meaning of Article 300A of the Constitution of India must take place for a public purpose or in the public interest. After the forty fourth Amendment Act, 1978, the constitutional obligation to pay compensation to a person who is deprived of his property primarily depends upon the terms of the Statute and the legislative policy. However, there is no prohibition to the payment of just compensation when a person is deprived of his property under Article 300A of the Constitution of India.

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28. As held by the Supreme Court in K.T. Plantation Private Limited and another vs. State of Karnataka (supra), the right to claim compensation or the obligation to pay, though not expressly included in Article 300A, can be inferred in that article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy and other factors. Though article 300A enables the State to impose restrictions on the right to property in accordance with law, such law has to be reasonable and must comply with other provisions of the Constitution. The limitation or restriction ought not to be disproportionate to the Constitutional mandate, or excessive in nature. In the same judgment, the Supreme Court has held that there is a different between "no compensation" and "nil compensation" and a law seeking to acquire private property for public purpose cannot say that "no compensation" shall be paid. However, there could be a law awarding "nil compensation" in cases where the State undertakes to discharge the liabilities and the onus is on the Government to establish the validity of such law. In the latter case, the Court can test such law in Page 49 of 63 C/SCA/1631/2015 CAV JUDGMENT exercise of its judicial review.

29. In the present case, the difficulty has arisen due to the fact that the proposed action of the concerned respondents would apparently and perceivably deprive the petitioners of the effective use of their property. The land of the petitioners has not been acquired and, therefore, no compensation is contemplated to be paid to them even though the land is most likely to be ruined for all effective purposes by the action of the respondents.

30. In the affidavitinreply filed on behalf of respondent No.3, there is a general denial to the contention that the petitioners would be deprived of the use of their property. However, there are no specific pleadings as to how they would not be so deprived. It is not denied that the property of the petitioners would be rendered open to inundation by floods, as there would be no retaining wall along the right bank of the Tapi river to prevent the water from entering the subject land. The retaining wall is to be be built behind the property of the petitioners, thereby exposing it to the river waters. It is not Page 50 of 63 C/SCA/1631/2015 CAV JUDGMENT denied by respondent No.3 that, in a similar situation that had arisen earlier due to the construction of an embankment, the private properties of persons who were similarly situated and affected as the petitioners, were acquired by the State Government and compensation paid to them. In fact, this has been expressly admitted by the learned Assistant Government Pleader. This fact is also evident from the order dated 26.03.1997 annexed to the affidavitinrejoinder filed by the petitioners. In the further affidavit filed by respondent No.3 responding to the affidavitin rejoinder, this document is not denied or disputed.

31. The petitioners have alleged that there is discrimination against them by respondent No.3 as they are not being treated equally with those persons whose lands were acquired in a similar situation, therefore, their fundamental rights under Article 14 of the Constitution of India have been infringed. The lands of similarly situated persons were acquired for the construction of an embankment as they would have been rendered susceptible to floods. The same treatment ought to be meted out to the petitioners. There is no effective denial or counterargument to this on behalf Page 51 of 63 C/SCA/1631/2015 CAV JUDGMENT of respondent No.3, except for the reiteration of the fact that the petitioners cannot be granted compensation as their land has not been entered into. No reason has been stated why the land of the petitioners cannot be acquired, in view of the fact that it would most definitely be adversely affected and rendered useless due to frequent flooding.

32. The petitioners further asserted that as the subject land is situated in the Recreation Zone of the Town Planning Scheme, it could have been put to some lucrative use by them, by carrying on any suitable occupation, trade or business upon it, as permitted by Article 19(1)(g) of the Constitution of India. However, now that the retaining wall is proposed to be built in a manner that would ruin the land for all times to come, the petitioners would be deprived of their fundamental rights under Article 19(1)(g) of the Constitution of India.

33. It has been submitted by the learned Assistant Government Pleader that the retaining wall is being constructed to give protection against floods. Page 52 of 63 C/SCA/1631/2015 CAV JUDGMENT Earlier, in the year 1972, the construction of the said retaining wall was begun but it remained incomplete. Now the construction is being completed. It has been further submitted that the construction of the wall is for the greater public good and the said construction is being carried out in a scientific manner under the guidance of technical experts and this Court, while exercising jurisdiction under Article 226 of the Constitution of India may not interfere with technical matters. It has been submitted that the wall is proposed to be constructed after taking into consideration scientific, technical, mathematical, geographical and hydrological data, regarding which the Court has no technical expertise.

34. It may not be forgotten that the petitioners have unequivocally stated in the petition as well as the affidavitinrejoinder, that they are not against the construction of the retaining wall, but are aggrieved by the manner in which it is to be constructed, to the extent that it adversely affects the land of the petitioners. In the view of this Court, given the frequent, looming threat of floods during the Page 53 of 63 C/SCA/1631/2015 CAV JUDGMENT monsoons, protection from the flood waters of the Tapi river is required. At the same time, it must be ensured that the measures of protection proposed by the respondents should be such that would actually result in protection, without depriving a citizen of his property due to their action which would expose it to floods.

35. True it is, that this Court does not possess expertise in scientific, technical, or engineering matters such as the construction of a retaining wall. Such matters are best left to the experts in the field. What the Court is concerned about, and cannot shy away from, is the infringement of any legal, constitutional or fundamental right of a citizen by the State Government, without the authority of law. There can be no doubt that the right of an individual is subservient to the public interest or the public good. However, in such cases, the private right of a citizen can be taken away only by compensating the citizen for the deprivation of such right. When such right is a fundamental, legal or constitutional one, it cannot be infringed or violated without the Page 54 of 63 C/SCA/1631/2015 CAV JUDGMENT authority of law, in a manner that offends the constitutional mandate, as no citizen can be deprived of his property without adhering to the law.

36. As held in Dev Sharan and others Vs. State of Uttar Pradesh and others (supra), "public purpose"

must be judged on the touchstone of the expanded view of ChapterXIII of PartIII of the Constitution of India. To requote, "the openended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socioeconomic reality in this country".

37. This Court is of the view that the mighty State cannot trample upon or extinguish, the fundamental, legal or constitutional rights of a citizen without the authority of law, howsoever small or insignificant the citizen may be. This is not to say that public interest should not be looked after. A balance is required to be struck between the actions of the State Government to fulfil the ends of the public good and protect the fundamental, legal and constitutional rights of a citizen. As far as possible, the State Page 55 of 63 C/SCA/1631/2015 CAV JUDGMENT must ensure that the manner in which the public purpose is sought to be fulfilled does not infringe upon the constitutionally guaranteed rights of a citizen.

38. This Court is not, even for a moment, proposing that the State should be prohibited from constructing the retaining wall. Its only concern is that the construction of the retaining wall ought not to deprive a citizen of his property in violation of Article 300A, or violate his fundamental rights under Articles 14 and 19(1)(g) of the Constitution of India. This Court may not endorse the submissions advanced on behalf of the petitioners, in general, that the retaining wall is being built without any technical or scientific basis, as it has no means to judge the same. However, the contention of the petitioners that the wall is not being constructed along the riverbed but in deviation therefrom, behind the land of the petitioners, resulting in sandwiching the land between the wall and the river, is definitely a cause for concern due to the devastating effect it would have on the land. Besides, this is not the normal manner in Page 56 of 63 C/SCA/1631/2015 CAV JUDGMENT which retaining walls are usually constructed. This aspect, therefore, deserves consideration. Normally, retaining walls are constructed along the riverbed or boundary, so that the waters are prevented by the wall from entering the land; unless such type of a construction is technically unfeasible due to a variety of factors. In the present case, there are no averments in the affidavitinreply or the further affidavit filed on behalf of respondent No.3, that it is not technically feasible to construct the wall along the right river bank of the Tapi. There is no explanation why it has to be constructed away from the river bank or in a zigzag manner. As this Court possesses no technical or scientific expertise, the question of interference in the construction of the retaining wall does not arise. However, when the respondents have not specifically pleaded what technical reasons necessitate the construction of the wall in a manner that exposes the land of the petitioners to floods by cutting it off from the land mass of Surat city, this Court can surely ask the respondents to reconsider the alignment of the wall, so as to prevent the violation of the constitutional, Page 57 of 63 C/SCA/1631/2015 CAV JUDGMENT legal and fundamental rights of the petitioners.

39. The learned Assistant Government Pleader has vehemently argued that the judgment in PIL Writ Petition (PIL) No.31 of 2014 with Writ Petition (PIL) No.56 of 2014 dated 05.09.2014, wherein similar reliefs were prayed for, would cover the present case. The Division Bench has held how to construct the embankment or where to construct the embankment, is not for the Court to decide and the Court ought not to sit over the judgment of the authorities entrusted with the task of planning and executing a project relating to the construction of an embankment. What is stated by the Division Bench is an accepted principle of law. However, the case before it was a Public Interest Litigation in which the violation of the legal, fundamental and constitutional rights of an individual were not involved. This is the main differentiation between the PIL and the present case. The PIL was brought by agriculturists against the issue relating to the construction of an embankment on the right side of the Tapi river. The present petitioners were not parties to the said petition. It Page 58 of 63 C/SCA/1631/2015 CAV JUDGMENT may be true that somewhat similar relief is sought by the petitioners in the present petition. The distinction is that the relief sought in the PIL was for the public good, whereas in the present case it arises out of the violation of the individual rights of the petitioners under Articles 300A, 19 (1)(g) and 14 of the Constitution of India. Filing of a PIL by other persons cannot deprive the present petitioners from agitating their individual legal, constitutional or fundamental rights. This Court finds no substance in the submissions advanced by the learned Assistant Government Pleader in this regard.

40. Another judgment relied upon by the learned Assistant Government Pleader is that of this Court in Special Civil Application No.723 of 2011 dated 13.06.2011, as affirmed by order dated 03.04.2014 in Letters Patent Appeal No.1104 of 2011. That was a case wherein an order was passed by the Surat Urban Development Authority, cancelling the development permission with respect to certain lands situated in Surat District, on account of the fact that the land was located in a lowlying area and was likely to be Page 59 of 63 C/SCA/1631/2015 CAV JUDGMENT submerged by floods. The facts of that case have no bearing upon the facts of the present one. In that case, the development permission was cancelled by an order that was ultimately upheld by this Court, for reasons stated in the judgment. In the present case, the petitioners are being deprived of the use of their property without the authority of law. No order has been passed against them that can be challenged and no proceedings have been initiated as prescribed by law. The judgment relied upon by the learned Assistant Government Pleader would not be relevant in the context of the present case.

41. After deeply considering all aspects of the matter as discussed hereinabove, this Court is of the considered view that the action of respondent No.3 in proposing to construct the retaining wall in a manner that sandwiches the land of the petitioners between the wall and the right bank of the river Tapi, thereby exposing it to floods and rendering it useless, results in depriving the petitioners of the use of their property without authority of law, in violation of Article 300A of the Constitution of India. Due to Page 60 of 63 C/SCA/1631/2015 CAV JUDGMENT the constant danger of floods, the petitioners would be unable to make any construction upon the said land or put it to any lucrative use by selling it or carrying on any trade, business or occupation thereupon. This would amount to the violation of the fundamental rights of the petitioners under Article 19(1)(g) of the Constitution of India. It is not denied that in a similar situation that arose in the year 1972 when an embankment was sought to be constructed, lands of persons who were similarly situated as the petitioners, were acquired by respondent No.3 and compensation was paid to them. Similar treatment is not being meted out to the petitioners, resulting in discrimination, which offends the provisions of Article 14 of the Constitution of India.

42. The above situation necessitates the following order:

(1) The concerned respondents are not restrained from constructing the retaining wall, subject to the caveat that they shall consider the realignment of the wall Page 61 of 63 C/SCA/1631/2015 CAV JUDGMENT so that it is constructed along the right bank of the river Tapi, thus preventing the flood waters from the river Tapi from entering the land of the petitioners.

(2) In the event that the concerned respondents do not find it possible or technically feasible to change the alignment of the wall, they shall take steps to initiate land acquisition proceedings for the land of the petitioners that would be adversely affected by the construction of the retaining wall, and pay just compensation to them for the deprivation of their land, as has been done in similar cases.

43. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.

(SMT. ABHILASHA KUMARI, J.) piyush Ms. Vacha Desai, learned Assistant Government Pleader, has prayed that this judgment be stayed. For reasons stated in the judgment, the request is declined.

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Direct Service of this judgment is permitted.

(SMT. ABHILASHA KUMARI, J.) piyush Page 63 of 63

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