Gujarat High Court
Janak Shivlal Rajpurohit vs State Of Gujarat & 10....Opponent(S) on 5 September, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/WPPIL/72/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 72 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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JANAK SHIVLAL RAJPUROHIT....Applicant(s)
Versus
STATE OF GUJARAT & 10....Opponent(s)
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Appearance:
MR AMIT M PANCHAL, ADVOCATE for the Applicant(s) No. 1
MR P.K. JANI, GOVERNMENT PLEADER for the Opponent(s) No. 1 & 2
MR S.N. SHELAT, SR. COUNSEL with MR SATYAM Y CHHAYA, ADVOCATE for the Opponent(s) No. 3
MR MIHIR JOSHI, SR. COUNSEL with MR. SHITAL R PATEL, ADVOCATE for the Opponent(s) No. 11
MR. PERCY KAVINA, SR. COUNSEL with MS M O NARSINGHANI, ADVOCATE for the Opponent(s) No. 4 - 10
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/09/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By this writ-application in the nature of a Public Interest Page 1 of 22 C/WPPIL/72/2014 CAV JUDGMENT Litigation, the petitioner, claiming to be a public spirited citizen, has brought to our notice an issue relating to the protecting of the water bodies and environment.
2. The case made-out by the petitioner may be summed-up thus:
2.1 The respondent nos.1 to 3, namely, the Chief Secretary to the Government of Gujarat, the Additional Chief Secretary, Urban Housing and Development Department and the Ahmedabad Municipal Corporation respectively have failed to take the necessary effective steps to identify and protect the water bodies, as directed by this Court vide its order dated 2 nd August, 2002, passed in Special Civil Application No. 10621 of 2000 and allied matters.
2.2 The respondents have alienated the "Lakhudi Talavadi"
and is now proposing to put-up construction on the lake, in flagrant disregard and violation of the orders issued by this Court time to time.
2.3 The respondents nos.1 to 3 have failed to remove the encroachments existing on the water bodies, without which the water bodies cannot be rejuvenated. The Principal Secretary, Urban Land Development Department, Government of Gujarat in Special Civil Application no.11635/2005, Civil Application No.11667/2000 and Special Civil Application No.10621/2000 respectively had given an undertaking on oath dated 30th July, 2002 wherein it was stated as under :
"2. I submit that Bhavnagar, Rajkot, Ahmedabad, Surat, Page 2 of 22 C/WPPIL/72/2014 CAV JUDGMENT Vadodara, Jamnagar and Kutch have Development Plans or the same are in the process of making. The Government shall collect the data from those plans and the Schemes made thereunder. The Government shall also collect data relating to the various ponds in other areas where the Scheme or the Development Plan is not operative and identify them. The Irrigation Department of the State Government is responsible for maintaining existing minor Irrigation Schemes and various dams and reservoirs.
3. I submit that the State Government shall, in deference to the suggestion of this Honourable Court, (i) notify in the Gazette the Water Bodies as indicated hereinabove. (ii) The State Government shall ensure that no lands forming part of the Water Bodies are alienated to transfer by the various Area Development Authorities as also Local Authorities, i.e. Municipalities and shall over see that the Water Bodies are maintained and preserved as Water Bodies...
4. I submit that the State Government assures this Honourable Court that proper monitoring would be undertaken to oversee the preservation and maintenance of the Water Bodies as such."
2.4 The respondents are obliged to adhere to the doctrine of public trust and are duty bound to preserve and protect the natural resources for the larger good of the people. The respondents should not be permitted in any manner to abdicate the natural resources and convert them into the Page 3 of 22 C/WPPIL/72/2014 CAV JUDGMENT private ownership or for commercial purpose.
2.5 The State Government vide its Circular dated 15 th March, 1999 had declared that the Development Authority while preparing the scheme should maintain the river, pond, Talav (Lake), Nala (Stream), large lake, canal or any other place connected with the water body that may be a part of the development scheme and should not include the same in the Town Planning Scheme for any other purpose other than the water body.
2.6 On 4th November, 1999, the State Government framed guidelines vide Circular No.PRCH (Misc.)/1099/2044/L issued in exercise of the powers under sec.122(1) of the Development Act. So far as the water bodies were concerned, as indicated in Clause (10) of the Circular, it was pointed-out that the lakes and all water bodies be maintained and no development permission be granted so as to affect its existence. In consonance with the provisions contained in the Development Act, the State Government had issued instructions and, therefore, it became the bounden duty of the Municipal Corporation or the Area Development Authority or the Urban Development Authority or the District Collector, as the case may be, to ensure that the water bodies remain as they were.
2.7 The respondents are planning to alienate and divert "Lakhudi Talavadi" for the purpose of constructing a Housing Scheme with the object of rehabilitating the slum dwellers as a part of the redevelopment scheme.
2.8 In such circumstances referred to above, the petitioner Page 4 of 22 C/WPPIL/72/2014 CAV JUDGMENT has prayed for the following reliefs:
12. (A) To direct the respondents to forthwith ensure that no lands forming part of the water bodies or which existed as water bodies or which were indicated alongwith the record in the case of Shailesh R. Shah be permitted to be alienated or transferred to any person, authority or agency in any manner whatsoever and to forthwith ensure and to oversee that such water bodies are maintained and preserved as water bodies only as undertaken by in the affidavit filed before this Honourable Court and to direct the respondents to forthwith implement the directions by this Honourable Court in various orders and Judgment passed by this Honourable Court in Special Civil Application No.10621 of 2000, Special Civil Application No.11635 of 2000 and Special Civil Application no.11049 of 2000, more particularly the oral judgment dated 2.8.2000 and to forthwith stop alienation of lakes;
(B) To direct the respondents to ensure that no lands forming part of the water bodies be alienated or transferred in any manner and to oversee that the water bodies are maintained and preserved as water bodies only;
(C) To direct the respondent no.1 and 2 to ensure that 'Lakhudi Talavadi' be maintained and preserved as water body only and not to alienate the said land in Page 5 of 22 C/WPPIL/72/2014 CAV JUDGMENT any manner and for any other purpose and preserve the same as a water reservoir only free from encroachments;
(D) To direct the respondent nos.1 and 2 to identify vacant and open plots of land which vest with the Government under the provisions of the Urban Land Ceiling Act so as to make alternative arrangement/provide place of living and shelter to the persons living upon encroachments made over/around lakes/ponds and other water bodies;
(E) Pending admission, hearing and final disposal this Honourable Court may be pleased to -
(i) Stay all the proposed project which is likely to be undertaken on any water body which existed in the State of Gujarat and direct the respondents, their agents, servants, etc., to forthwith stop the implementation and/or execution of the proposed project sought to be undertaken on 'Lakhudi Talavadi' and direct the respondents not to alienate 'Lakhudi Talavadi' for any kind of construction and maintain the same as water body only;
(ii) Direct the respondents to submit a report in form of a chart for all the lakes of the State of Gujarat indicating the name of the lake, survey number, town planning scheme number, final plot number, area, size of the lake, present Page 6 of 22 C/WPPIL/72/2014 CAV JUDGMENT position and controlling authority, whether they can be recharged or not.
(F) To pass such other and further Orders as may be deemed just and proper;
(G) To award costs of this petition."
3. Stance of the respondent No.2, State of Gujarat :
A) On behalf of the respondent No.2 an affidavit-in-reply has been filed duly affirmed by a Senior Town Planner, Town Planning and Valuation Department, Gandhinagar, Gujarat State. Such affidavit has been filed pursuant to the directions issued by us vide our order dated 6 th March, 2014 asking the respondent no.2 to clarify whether the area in question i.e. "the Lakhudi Talavadi" is a recognized water body or not.
B) The stance of the respondent no.2 is that the land of "Lakhudi Talavadi" was included in the Town Planning Scheme No.3 (Ellisbridge), "Shekharpur-Khanpur" Section (First varied).
The State Government had sanctioned the scheme on 13 th February, 1945 and it came into force from 15 th March, 1945.
C) The land in question was thereafter, allotted to the appropriate authorities for the development of garden and playground (Final Plot No.190).
D) The land in question was thereafter included in the Town Planning Scheme No.3 (Ellisbridge) (Second varied). The preliminary scheme was sanctioned by the Government on 4 th Page 7 of 22 C/WPPIL/72/2014 CAV JUDGMENT November, 1988, and it came into force from 15 th December, 1988. The land in question was allotted to the appropriate authority for the slum up-gradation (Final Plot No.190).
E) As the Town Planning Scheme was sanctioned under Sec. 65 of the Gujarat Town Planning & Urban Development Act, 1976, it became a part of the Act. The land in question was included in the First Draft Revised Development Plan of AUDA which was sanctioned by the Government on 8th October, 2002. The land was proposed to be notified as a residential Zone.
F) The land in question was also included in the Second Draft Revised Development Plan or AUDA for which the State Government has recently published a Notification inviting suggestion and/or objections from any person with respect to the development plan within a period of two months from the date of its publication under sec.17(1)(a)(ii) of the Act, 1976 dated 4th March, 2014. After receiving and considering all such suggestions/objections the State Government would take the appropriate decision in accordance with the law and the said land has been proposed under the transit oriented zone.
G) Pursuant to the judgment and order dated 2nd August, 2002 delivered by this Court in Special Civil Application No.10621/2000, Special Civil Application No.11635/2000 and Special Civil Application No.11049/2000, the State Government had published a Notification dated 10 th January, 2005 notifying various water bodies across the State of Gujarat. The said list does not include the land in question, viz., "Lakhudi Talavadi"
F.P.No.190.Page 8 of 22 C/WPPIL/72/2014 CAV JUDGMENT
4. Stance of the Respondent no.4 Safal Construction Pvt.Ltd.
A) The land in question is nothing but a slum, which is in existence past more than 4 to 5 decades. The official record of the Ahmedabad Municipal Corporation and Town Planning Department indicates that the land in question is not a water body. The petition is not a bonafide public interest litigation as the same has been filed for the compliance of the order dated 2nd August, 2002 passed by this Court and more particularly when the said order culminated in a Notification issued by the State Government in the year 2005 notifying various water bodies situated across the State of Gujarat.
B) The State of Gujarat has framed a policy for the welfare and up-gradation of the slum dwellers in the State of Gujarat.
The State Government has also framed a policy known as the "Regulation for the Rehabilitation and Redevelopment of the Slums, 2010". Under the said policy, the respondent carried- out the necessary survey of the land in question where the slums are situated. Thereafter in terms of the policy of the State Government a proposal was made by the respondent before the Ahmedabad Municipal Corporation after obtaining the formal consent of the slum dwellers according to the policy.
C) The proposal of the respondent herein was scrutinized by the Ahmedabad Municipal Corporation considering the various aspects of the policy and after being satisfied, the same was forwarded to the Urban Development and Urban Housing Page 9 of 22 C/WPPIL/72/2014 CAV JUDGMENT Department on 3rd January,2012 for its sanction.
D) The State of Gujarat vide its communication dated 18 th May, 2012 approved the proposal of the respondent forwarded by the Ahmedabad Municipal Corporation. The respondent was accordingly informed by the AMC vide communication dated 29th May, 2012 about the grant of sanction by the State Government and the respondent was further directed to undertake the procedure in accordance with the terms of the policy.
E) Under the Slum Rehabilitation Policy, the respondent as a Developer, has an obligation to provide a free pukka residential unit to each of the eligible slum dweller and till such fully habitable unit is provided to the slum dweller under the policy, the developer would also be under an obligation to provide them with a temporary accommodation on rent.
F) On 16th March, 2012 the Society in the name of "Shree Lakhudi Talavadi Co-op.Housing Society" came to be registered in accordance with the provisions of the Cooperative Societies Act. According to the policy, the respondent is under an obligation to provide more than 500 residential units to the eligible slum dwellers, admeasuring 36 sq.mtrs. built-up area of each of the units.
G) The State Government, vide its notification dated 14 th May, 2013 however, relaxed a few conditions considering the fact that around more than 500 slum dwellers are to be provided with the necessary accommodation including a School, Anganwadi and Community Center.
Page 10 of 22 C/WPPIL/72/2014 CAV JUDGMENTH) On 20th May, 2014 the Ahmedabad Municipal Corporation sanctioned the plans submitted by the respondent, subject to certain conditions and accordingly, granted the development permission.
I) The respondent, in the past, had successfully completed the slum rehabilitation scheme at the Kailashnagar, opp:
Sabarmati Police Station (Town Planning Scheme No.23, Final Plot No.450, 451 and 452) and has provided free pukka residential houses to the slum dwellers according to the policy within the time scheduled.
J) The respondent has also undertaken a similar project at Ambawadi known as Abuji Kuva-na Chhapra (Town Planning Scheme No.21, Final Plot No.422) and at Bawaji-na Chhapra, Kohkhara, Ahmedabad bearing Final Plot Nos.162 and 164 of Town Planning Scheme No.25.
5. Analysis :
We have heard Mr.Amit M. Panchal, the learned advocate appearing on behalf of the petitioner, Mr.S.N. Shelat, the learned Senior Advocate, assisted by Mr.Satyam Chhaya, the learned advocate appearing on behalf of the Ahmedabad Municipal Corporation, Mr.Mihir Joshi, the learned Senior Advocate assisted by Mr.Shital Patel, the learned advocate appearing on behalf of the respondent no.4 and Mr.P.K.Jani, the learned Government Pleader appearing for the State of Gujarat.Page 11 of 22 C/WPPIL/72/2014 CAV JUDGMENT
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this public interest litigation is whether the petitioner is entitled to any of the reliefs prayed for in this petition.
7. The entire petition is based on the judgment and order delivered by this Court dated 2nd August, 2002 in Special Civil Application No.10621/2000 and other allied matters wherein a Division Bench of this Court issued various directions to the State Government and other authorities for maintenance and protection of the water bodies in the State of Gujarat. To put it briefly, the litigation was one centering around the question of protecting, preserving and improving the water bodies in the State and further safeguarding them against encroachments. Appropriate directions were prayed for on behalf of the respondents to place the Water Policy of the Government of Gujarat before the Court and also the record to show big and small lakes in and around Ahmedabad as they existed in the year 1960 and their status as on that date.
8. It appears that one of the allied matters being Special Civil Application No.11635/2000 was relating to the Final Plot No.190 of the Town Planning Scheme no.3 known as "Lakhudi Talavadi" with which we are concerned in this petition. In Special Civil Application No.11635/2000 directions were sought for on the respondents to take appropriate action for removing the unauthorized encroachments from the Final Plot No.190 of the Town Planning Scheme No.3, popularly known as "Lakhudi Talavadi". Few individuals residing in some Cooperative Housing Societies near that "Talavadi" had made applications Page 12 of 22 C/WPPIL/72/2014 CAV JUDGMENT to the authorities including the Municipal Commissioner for removing encroachment from the Final Plot No.190 on the ground that unhygienic conditions were prevailing because of encroachments on the plot.
9. The petitions were adjudicated and Mr.Panchal has placed strong reliance on the observations made by the Court in paras-14 to 18 of its order, which are quoted below:-
14. The powers and functions of Urban Development Authorities prescribed under section 23 of the Gujarat Town Planning & Urban Development Act, include power to execute works in connection with supply of water (clause vi). Similar power is given to the Area Development Authority under section 7(vii). A draft development plan under section 12 shall provide for proposals for reservation of land for public purposes under section 12(2)(b), proposals for water supply and drainage under clause (e), preservation, conservation and development of areas of natural scenery and landscape under clause (h), and for preventing or removing pollution of water under clause (n). These provisions apply to the Urban Development Authority by virtue of section 25 of the Act. Under section 40(3)(a), a Town Planning Scheme may make provisional allotment or reservation of land for public purposes of all kinds as provided in clause (e), for water supply as provided by clause (h), and, drainage as provided under clause (f).
15. The word "environment" as defined in section 2(a) of the Environment (Protection) Act, 1986 includes water and land and inter-relationship which exists among and between water air and land, human beings, other living creatures, plants, micro organism and property. For regulating environmental pollution, the Central Government may by notification make rules which may provide, inter alia, for standards of quality of water under section 6(2)(a) of the said Environment (Protection) Act.
Under section 16 of the Water Act, 1974, the main function of the Central Board is to promote cleanliness of streams, [which includes river, water course, inland water, whether natural or artificial, sub-terrenean waters Page 13 of 22 C/WPPIL/72/2014 CAV JUDGMENT as defined in clause (j) of section 2], and wells in different areas of the States and clause (g) of sub-section (2) of section 16 empowers it to lay down, modify or annul, in consultation with the State Government concerned, the standards for a stream or well and different standards may be laid down for the same stream or well or for different streams or wells, having regard to the quality of water, flow characteristics of the stream or wells, and the nature of the use of the water in such stream or well or streams or wells. Under section 17(1)(a) of the Water Act, the function of the State Board shall be to plan a comprehensive programme for the prevention control and abatement of pollution of streams and wells in the State and secure the execution thereof. These provisions indicate the anxiety of the legislature to maintain the quality of water for which standards are required to be laid down.
16. The above constitutional and statutory provisions clearly bring to fore the paramount duty of the State Government, Municipal and Panchayat authorities, the Area Development Authorities and other legal authorities, to protect and improve water bodies as a part of environment and to ensure supply of safe water to the public. The State as the trustee of all natural resources meant for public use, including lakes and ponds, is under a legal duty to protect them. This duty is of a positive nature requiring the State including the Area Development Authorities and the Local Bodies not only to protect the peoples common heritage of lakes, ponds, reservoirs and streams, but to prevent them from becoming extinct and to rejuvenate and preserve them quantitatively by harvesting rainwater and qualitatively by prescribing and enforcing standards of their water. There is ample legislation to arm these authorities with the power to preserve these natural resources and prevent their abuse. The duty of the State in this regard is clearly spelt out by the Apex Court in M.C.Mehta v. Kamal Nath, reported in (1997) 1 SCC 388, and that of every citizen to protect the natural environment including lakes in M.C.Mehta v. Union of India, reported in (1997) 3 SCC 715. The necessity to limit the construction activities in the close vicinity of the two lakes was recognized by the Supreme Court, as noted above. It is rather unfortunate that decades have passed with laws already governing the field being put to disuse by the Page 14 of 22 C/WPPIL/72/2014 CAV JUDGMENT apathy of the authorities to actively involve themselves in protection and preservation of water bodies. The interim orders made in these petitions have, however, goaded them into some action and the final responses on behalf of the State Government, the Urban Development Authorities and the Municipal Corporation have raised a distinct ray of hope that may in near future glitter on the surface waters of the waterbodies that are promised to be reinforced and preserved.
17. The importance of identifying the waterbodies in the State can hardly be over emphasized. That is indeed the starting point; and, after much exercise, the State Government has placed on record the particulars of the xisting lakes and ponds and acceded to the suggestion of this Court that it will notify in the Gazette all the waterbodies indicated in the Development Plans and the Town Planning Schemes, as also the lakes and ponds in other areas of the State where a Scheme or Development Plan is not operative, so as to identify them for all time to come. We accordingly direct that the State Government will notify all the lakes and ponds as may have been shown in the areas covered by the Town Planning Schemes and Development Plans, as also those in the areas not so covered throughout the State, in short all the waterbodies in the territory of the State that vest in the State and / or the Area Development Authorities or the local bodies including Panchayats, in the official gazette within three months from the date of this order.
18. The next important aspect is that the waterbodies that vest in the State or local bodies should not be alienated or transferred. It appears that, in the past, the land covered by the waterbodies have been put to other uses under the Town Planning Schemes and then a stand is taken up that the Town Planning Schemes having become part of the statute, the Court cannot do anything about it, or, if such land is put to some other use allowed under the scheme, that it will not be appropriate to dig up the construction to revive a waterbody. When State is enjoined upon a duty under Article 48A read with Article 21 of the Constitution to endeavour to protect and improve environment which would include the waterbodies and every citizen is under a duty under Article 51A(g) to protect and improve environment including lakes, which are specifically mentioned therein Page 15 of 22 C/WPPIL/72/2014 CAV JUDGMENT as a part of environment, and when such material resources need to be protected to enable people to enjoy a quality life which is the essence of the right to life guaranteed by Article 21 as held by the Apex Court in Hinchlal's case (supra), there would virtually be no constitutional option to convert the land under the lakes and ponds to any use that may alter their character as waterbodies in violation of the constitutional mandates to the State and the citizens not only to protect but to improve them. The Supreme Court has made this explicit in M.C.Mehta v. Kamal Nath, reported in (1997) 1 SCC 388 by holding that these natural resources are meant for the public use and cannot be converted into private ownership. Step in this direction is taken by the State Government by declaring Draft of the State Water Policy (2002). Announcements on Water Resources Planning, Development and Management in paragraph 4 of the Policy statement include the strategy of making efforts "to protect and use all fresh water / natural resources like lakes, tanks, ponds, talavadis, springs etc. and preservation of existing freshwater bodies shall be ensured. Traditional water retaining structures shall be protected .........". The Circular dated 15-3-1999 (a copy of which is annexed with the affidavit-in-reply dated 4-4- 2002 of the Under Secretary to the Government, Urban Development & Urban Housing Department), was issued instructing the concerned authorities that while making any original development plan or a revised development plan, the waterbodies such as rivers, lakes, ponds, canals or any other type of waterbodies should be preserved as such waterbodies and should not be included in the proposals for other uses and these waterbodies should not be given any final plot number and their character should be preserved. In order to ensure that the waterbodies in the State which are identified as per the development plans, town planning schemes and the government records and which will be notified in the official gazette, we direct that the State Government, all Area Development Authorities and local Bodies will protect, maintain and preserve all the waterbodies in the State which are identified as per the development plans, town planning schemes and the government records and which will be notified in the official gazette, as waterbodies and they will not be alienated or transferred or put to any use other than as waterbodies."
Page 16 of 22 C/WPPIL/72/2014 CAV JUDGMENT10. Mr. Panchal has also placed strong reliance on the final direction issued by the Court which are as under :
24. To sum up, we issue the following directions:-
[A] The State Government will notify all the lakes and ponds as may have been shown in the areas covered by the Town Planning Schemes and the Development Plans, as also those in the areas not so covered throughout the State, in short, all the waterbodies in the territory of the State that vest in the State and / or the Area Development Authorities or the local bodies including Panchayats, in the official gazette within three months from the date of this order.
[B] The State Government and all Area Development Authorities and local Bodies will protect, maintain and preserve all the waterbodies in the State which are identified as per the development plans, town planning schemes and the government records and which will be notified in the official gazette, as waterbodies and they will not be alienated or transferred or put to any use other than as waterbodies.
[C] The respondents authorities should take steps to get the standards of quality of water of the lakes and ponds prescribed by the concerned authority under the law, and devise mechanism for periodic monitoring of the quality of water in these lakes and ponds.
[D] The State Government, the Area Development Authorities and the Local Authorities should take urgent measures to rejuvenate the waterbodies which are to be notified in the gazette by undertaking a declared phased programme of desiltation and make adequate provisions for recharging them by appropriate storm water drains and other feasible means and to take measures against pollution of such waterbodies.
[E] The State Government shall expeditiously take steps to constitute Water Resources Council as contemplated in the Draft Water Policy of the State, Page 17 of 22 C/WPPIL/72/2014 CAV JUDGMENT headed by the Hon'ble the Chief Minister with other Ministers, including the Ministers in charge of Environment and Urban Development Departments to oversee the programme for protection, preservation and improvement of the waterbodies. The State Government will also constitute the Water Resources Committee headed by the Chief Secretary which may include the Secretaries of Environment, Urban Development and Agriculture Departments, for monitoring the implementation of the programme in a time-bound manner with periodic review of its success. This Committee shall place the particulars of the targets achieved and the causes of non-fulfilment of the targets periodically before the Water Resources Council, for its consideration.
[F] The State Government, the Area Development Authorities and the local bodies are directed to prepare an authenticated record in form of videography, photography and panchnamas of the existing encroachments and take urgent steps to remove them in accordance with law and the rehabilitation policies of the Government. Responsibilities of the officers / staff concerned should be fixed in respect of non-removal of encroachments and fresh encroachments. The Water Resources Committee will closely monitor the removal of encroachments by the concerned authorities, and, the Area Development Authorities and the local bodies shall furnish, quarterly, particulars of such encroachments and their removal to the Water Resources Committee.
[G] The question of determining the peripheral area surrounding a lake or pond on which construction may be prohibited will be taken up by the concerned authorities for consideration in the context of the development of individual lakes and ponds and the authorities will take decisions thereon having regard to the relevant factors which may have a bearing on the protection, preservation and improvement of lakes, ponds and other water bodies, and once the peripheral area, around a lake or pond, in which there will be no construction allowed is determined, the same shall be notified. All the applications for building permissions which may be pending, may accordingly be decided as per the regulations and keeping in view the requirement of individual waterbodies."Page 18 of 22 C/WPPIL/72/2014 CAV JUDGMENT
11. Thus, there is no doubt that the Division Bench of this Court took cognizance of a very important issue in public interest relating to preservation and protection of water bodies situated in the entire State of Gujarat. There is also no doubt that the first and the foremost direction which was issued was with regard to notifying all the lakes and ponds as may have been shown in the areas covered by the Town Planning Schemes and the development plans as also those in the areas not so covered through-out the State. Pursuant to such direction, the State Government identified all such Water bodies in the form of lakes and ponds and notified those by way of a notification which was issued in the year 2005.
12. Mr. Panchal has also placed strong reliance on an affidavit filed by the Principal Secretary, Urban Land Development Department, Government of Gujarat in Special Civil Application No.10621/2000. Mr.Panchal has placed strong reliance on the following averments made in the affidavit-in- reply.
"1. I submit that under the provisions of the Gujarat Town Planing Act, the State Government under Sec. 70 sanctions Development Plans. The Development Plans are sanctioned after considering the objections or suggestions at every stage. When the Area Development Authority submits Draft Development Plan, there is a provision for inviting suggestions under Sec.13 of the Act. I submit that Development Plan distinguishes in the Plan, Water Bodies to be used as Water Bodies. The Town Planning Scheme is also framed under Section 40 and provides for inviting objections and suggestions. After the Scheme is finalized, all lands are to be used as such as indicated in the said Scheme. No change of user is permitted.Page 19 of 22 C/WPPIL/72/2014 CAV JUDGMENT
2. I submit that Bhavnagar, Rajkot, Ahmedabad, Surat, Vadodara, Jamnagar and Kutch have Development Plans or the same are in the process of making. The Government shall collect the data therefrom about the Water Bodies indicated in those plans and the Schemes made thereunder. The Government shall also collect data relating to the various ponds in other areas where the Scheme or the Development Plan is not operative and identify them. The Irrigation Department of the State Government is responsible for maintaining existing minor Irrigation Schemes and various dams and reservoirs.
3. I submit that the State Government shall, in deference to the suggestion of this Hon'ble Court,
(i) notify in the Gazette the Water Bodies as indicated hereinabove. (ii) The State Government shall ensure that no lands forming part of the Water Bodies be alienated or transferred by the various Area Development Authorities as also Local Authorities, i.e., Municipalities and shall over see that the Water Bodies are maintained and preserved as Water Bodies. (iii) he State Government undertakes relief works as provided in the Gujarat Relief Manual and, as far as possible, priority shall be given for digging up of Water Bodies. I crave leave to refer to the provisions made in Chapter VIII of the Relief Manual. (iv) The Local Bodies and Area Development Authorities will be requested and instructed to see that desiltation may be undertaken in a phased and gradual manner and removal of encroachment be undertaken gradually and in a phased manner. (v) While sanctioning the Development Plans or Town Planning Schemes, care shall be taken that Water Bodies are not converted to any other use in the Town Planning Scheme now onwards. The Local Authorities and the Area Development Authorities will be instructed to see that no debris of buildings are dumped by any person or institution in the existing Water Bodies. While it will be the subject matter of various local authorities about laying down of storm water lines leading to Water Bodies, the local authorities may hae to consider the same Page 20 of 22 C/WPPIL/72/2014 CAV JUDGMENT having regard to their financial constraints. I submit that the General Development Control Regulations now framed have taken care as regards the distance to be maintained between Development Zone and Water Bodies, which is 9 meters. The Regulations also provide for percolating well to be provided if the area of building exceeds 1500 Sq. Mts. And up to 4000 Sq.
Mts. I crave leave to refer to clause 10.9 and 14.
4. I submit that the State Government assures this Hon'ble Court that proper monitoring would be undertaken to oversee the preservation and maintenance of the Water Bodies as such."
13. Therefore, the first question we need to consider is whether the land in question known as "Lakhudi Talavadi" is a notified water body or not. From the materials on record, as discussed above, it appears that the land in question is not a notified water body. The land in question has been included in the Town Planning Scheme which had already been sanctioned under Sec. 65 of the Act, 1976 and has come into force. The land in question has also been included in the Development Plan and has been allotted to the appropriate authority past many yeasrs.
14. Therefore, the reliance placed by the petitioner on the decision of this Court rendered in the year 2002 is of no assistance. It appears that the land in question was included in the T.P. Scheme No.3 (Ellisbridge) and the State Government had sanctioned such a scheme way back on 13 th February, 1945 which came into force from 15 th March, 1945. The land in question was allotted for the purpose of garden and playground. At a later stage the same was included in the second varied Town Planning Scheme No.3. The preliminary Page 21 of 22 C/WPPIL/72/2014 CAV JUDGMENT scheme was sanctioned by the Government on 4 th November, 1988 and the same came into force w.e.f. 15th December, 1988. Most importantly the land in question was allotted to the appropriate authority for the up-gradation of the slum. With the sanctioning of the Town Planning Scheme under Sec. 65 of the Act, 1976 the land has become a part of the Act.
15. In our opinion, it appears that at no point of time the land was used as a waterbody in the form of a lake. The name "Lakhudi Talavadi" may give an impression that the same might have been a small pond at some point of time. But to say at this stage after almost 65 years that the same should be put to use as a pond does not appear to be reasonable. It also appears that past almost 4 to 5 decades the land is being occupied by slum dwellers and the State Government has thought fit to sanction the scheme of rehabilitation of such slum dwellers in accordance with its policy of 2010 and it is the respondent no.4 who is going to develop the scheme.
16. In such circumstances, we hold that the petitioner is not entitled to any of the reliefs and the petition being devoid of any merit deserves to be rejected.
17. The petition accordingly fails, and is rejected. No costs.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 22 of 22