Gujarat High Court
Indian National Trust For Art And ... vs Jamnagar Municipal Corporation & ... on 21 April, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/WPPIL/83/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 83 of 2014
[On note for speaking to minutes of order dated 01/04/2015 in
C/WPPIL/83/2014 ]
With
WRIT PETITION (PIL) NO. 235 of 2014
With
SPECIAL CIVIL APPLICATION NO. 10406 of 2014
==========================================================
INDIAN NATIONAL TRUST FOR ART AND CULTURAL HERITAGE - INTACH
& 1....Applicant(s)
Versus
JAMNAGAR MUNICIPAL CORPORATION & 1....Opponent(s)
==========================================================
Appearance:
MR NIRAV C THAKKAR, ADVOCATE for the Applicant(s) No. 1 - 2
DS AFF.NOT FILED (N) for the Opponent(s) No. 2
MR JAYANT P BHATT, ADVOCATE for the Opponent(s) No. 1
==========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 21/04/2015
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI) We have heard Mr.Nirav Thakkar and Mr. Parth Contractor, learned counsel for the petitioners and Mr. S.I. Nanavati, learned Sr. Advocate, assisted by Mr. Jayant Bhatt with Mr. Jeet Bhatt, learned counsel for the respondent Corporation.
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C/WPPIL/83/2014 ORDER
Name of Mr. Nirav C. Thakkar, learned counsel mentioned in the cause-title as also in second para of the judgment dated 1st April, 2015 rendered in Writ Petition [PIL] No. 83 of 2014 with Writ Petition [PIL] No. 235 of 2014 with Special Civil Application No. 10406 of 2014 is deleted as Mr. Parth Contractor appeared for the petitioners instead of Mr. Nirav C. Thakkar.
The note for speaking to minute is allowed accordingly.
(V.M.SAHAI, ACJ.)
(R.P.DHOLARIA,J.)
pirzadaa
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C/WPPIL/83/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 83 of 2014 With WRIT PETITION (PIL) NO. 235 of 2014 With SPECIAL CIVIL APPLICATION NO. 10406 of 2014 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE R.P.DHOLARIA 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
INDIAN NATIONAL TRUST FOR ART AND CULTURAL HERITAGE - INTACH &
1....Applicant(s) Versus JAMNAGAR MUNICIPAL CORPORATION & 1....Opponent(s) Appearance:
MR NIRAV C THAKKAR, ADVOCATE for the petitioners in Writ Petition (PIL) No. 83 of 2014 MR KALPESH VINODRAY ASHANI, PARTY-IN-PERSON in Writ Petition (PIL) No.235 of 2014 MR PARTH CONTRACTOR for the petitioners in Special Civil Application No.10406 of 2014 MR SUDHIR NANAVATI, SENIOR COUNSEL ASSISTED BY MR JAYANT BHATT WITH MR JEET BHATT, ADVOCATES for the respondent No.1 and MR SHAQEEL A QURESHI, ADVOCATE for the Union of India in Writ Petition No. 83 of 2014, Writ Petition (PIL) No. 235 of 2014 and SCA No.10406 of 2014 MR VANDAN K BAXI, AGP for respondent Nos. 3, 4 and 5 in Special Civil Application Page 1 of 9
3 of 11 C/WPPIL/83/2014 JUDGMENT No.10406 of 2014 CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 01/04/2015 COMMON ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. Since the facts of these Writ Petitions are identical, they are heard together and decided by this common judgment.
2. We have heard Mr.Nirav C.Thakkar, learned advocate for the petitioners in Writ Petition (PIL) No. 83 of 2014, Mr.Kalpesh Vinodray Ashani, party-in-person appearing in his personal capacity in Writ Petition (PIL) No.235 of 2014, Mr.Parth Contractor, learned advocate appearing for the petitioners in Special Civil Application No.10406 of 2014, Mr.Sudhir Nanavati, learned Senior Counsel assisted by Mr.Jayant Bhatt with Mr.Jeet Bhatt, learned advocates for the respondent No.1-Corporation, Mr.Shaqeel A.Qureshi, learned Counsel for the Union of India in Writ Petition (PIL) No.83 of 2014, Writ Petition (PIL) No. 235 of 2014 and Special Civil Application No.10406 of 2014 and Mr.Vandan K. Baxi, learned AGP for respondent Nos. 3, 4 and 5 in Special Civil Application No.10406 of 2014.
3. By way of these aforesaid writ petitions, the petitioners have prayed for the following reliefs:
"(A) The Hon'ble Court may be pleased to admit and allow this petition;
(B) The Hon'ble Court may be pleased to issue appropriate writ, order or direction permanently restraining the respondent No.1 from proceeding further with the proposed beautification of Ranmal Lake (Lakhota Lake) proposed by the DPR published on their website;Page 2 of 9
4 of 11 C/WPPIL/83/2014 JUDGMENT (C) During pendency and final hearing of this petition, the Hon'ble Court may be pleased to restrain the respondent No.1 from proceeding further with the proposed beautification or Ranmal Lake (Lakhota Lake) proposed by the DPR published on their website without addressing the issues raised by the petitioners;
(D) The Hon'ble Court may be pleased to pass such other and further orders as may be deemed fit in the facts and circumstances of the present case."
4. The brief facts of the present case are that respondent No.1 has launched a project for beautification of Lakhota Lake (Ranmal Lake) in Jamnagar city. Jamnagar city was built around the lake and was always at the helm of affairs of the city. The lake enriches lives of thousands of citizens of the city by providing water and a popular tourist destination. This lake is home to thousands of rare migratory birds that visit the lake every year and make it their home. Every year, several birds like Flamingoes, Pelicans, Sea-Gulls, Storks, etc. make the lake their home. Even the State Government provides generous package to optimize this unique gift of nature. Over the time Lakhota lake has become the identity of Jamnagar city for tourists and avid bird lovers. Recently, respondent No.1 launched a project for beautification of the lake and surrounding areas. The said project was proposed in General Board and resolution to that effect was passed somewhere in July 2012. The Development Proposal Report (DPR) for the same has been put up on the website of respondent No.1-Corporation. Though the DPR provides for conservation and preservation of the lake and surrounding structures, it totally lacks the sensitivity of how the task is to be undertaken. The lake provides for oxygenation for its citizens and the project curbs on the visiting time for the citizens and restricts their entry by putting up gates and charging entry fees. The focus should have been to enhance the calm around the lake for peaceful habitation for the birds but the project seeks to destroy the very peace which is essential for the birds. There is provision for setting up temporary market place, adventure plaza, Page 3 of 9 5 of 11 C/WPPIL/83/2014 JUDGMENT boating decks, Giant Wheel Ride, Laser Show, etc. Thus, the project seeks to modernize the surrounding area and not preserve the beauty and peace of it.
4.1 It is averred in the petition that petitioners and other supporting groups are not against the development activities in relation to the lake. However, the development should be of such nature that does not disrupt the natural environment of the lake itself. It should be cohesive to the lives and necessities of the citizens of the city. Neither should there be such disturbance as to affect the avian and aquatic life nor should there be any restriction on the ingress and egress for the lake. There is no proper study undertaken before launching such a project having large repercussions. Hence, these writ petitions.
5. The contention was previously raised in these petitions that petitioners are essentially objecting to the Jamnagar Municipal Corporation implementing its development and beautification plan of a lake by name Ranmal lake (Lakhota talav) which is situated in the centre of Jamnagar city. It is about 150 years old lake. There are number of protected monuments in and around the lake. The lake is a natural habitat for large number of local and migratory birds. It was also pointed out that the aforesaid exercise of development and beautification is being carried out without seeking permission from the State Level Environment Impact Assessment Authority (SLEIAA). Instead of seeking opinion from the Government Agency, the Corporation has obtained a report from a private consultant and consequently therefore, this Court previously directed the respondent-Corporation to obtain a report from the Environment Impact Assessment Authority (EIAA) constituted by the Central Government in consultation with the State Government under sub-Section (3) of Section 3 of the Page 4 of 9 6 of 11 C/WPPIL/83/2014 JUDGMENT Environment (Protection) Act, 1986. Accordingly, the respondent- Corporation has already obtained the report from the State Level Environment Impact Assessment Authority (SLEIAA), Gujarat, dated 16.03.2015. The same is extracted below:
"No.SEIAA/GUJ/GEN/122/2015 Date: 16 th March, 2015 To, THE CITY ENGINEER, Janmagar Municipal Corporation, Jamnagar Sub: Regarding the proposed development and beautification project for "Ranmal Lake (Lakhota Talav)" by Jamnagar Municipal Corporation.
Ref: Letter received from Jamnagar Municipal Corporation with attachments Dear Sir, In connection with the above mentioned subject and letter received from Jamnagar Municipal Corporation on 02.03.2015 seeking report from State Level Environment Impact Assessment Authority as per oral order from the Hon'ble High Court of Gujarat on 11.02.2015 regarding the development and beautification project of the "Ranmal Lake (Lakhota Talav)" by Jamnagar Municipal Corporation, the project was taken up on the priority basis during the the State Expert Appraisal Committee meeting dated 10.03.2015 and the Jamnagar Municipal Corporation was invited for attending the meeting.
The Jamnagar Municipal Corporation officials along with their expert consultant attended the State Expert Appraisal Committee meeting and presented the details during meeting. The proposed project is for beautification & development of "Ranmal Lake (Lakhota Talav)" situated in the middle of Jamnagar city under "Swarnim Jayanti Mukhya Mantri Shaheri Vikas Yojana". The lake is a pilgrimage place for the nearby locality since many years.
The details of the project, as presented before the committee, is given below:
Sr. No. Description Area
1 Area for development 3 ha
2 Area of development including water body 30 ha
3 Built up Area
(a) City Museum (Restoration work) 310 sq.m.
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C/WPPIL/83/2014 JUDGMENT
(b) Administrative Office Building with store 225 sq.m.
(c) Amphitheater & Projector Room 1,172 sq.m.
(d) Toilet block at Senior Citizen Park 68 sq.m.
(e) Food Plaza (12 Shops) 360 sq. m.
(f) Store Room at Ambedkar Garden 18 sq.m.
(g) Security Cabins at Entrance Gates (18 Nos.) 162 sq.m.
Total Built Up Area 2,315 sq.m.
Jamnagar Municipal Corporation has also submitted an undertaking vide their letter dated no. JMC/P&P/27/590/2014-15 dated 10/03/2015 that Jamnagar Municipal Corporation is going to carry out development & beautification of lake-1 only, having total land area of 30 ha and no development will be undertaken for phase 2 & phase 3 for other lake number 2 & 3 respectively.
As per entry no. 8 of the schedule listed to the EIA Notification- 2006, the Building Construction Projects as well as the Townships and Area Development projects with the built-up area and/or land area mentioned below requires prior environmental clearance.
Project or Activity Cat. with Threshold limit Conditions if any 8 A B Building/Construction projects /Area Development projects and Townships Page 6 of 9 8 of 11 C/WPPIL/83/2014 JUDGMENT 8(a) Building and -- ≥20000 m2 and < The term "built up Construction projects 1,50,000 m2 of area" for the purpose built-up area of this Notification the built up or covered area on all the floors put together including basement(s) and other service areas, which are proposed in the building / construction projects.
Note 1:- The projects
or activities shall not
include industrial
shed, school, college,
hostel for educational
institution, but such
buildings shall ensure
sustainable
environmental
management, rain
water harvesting and
may use recycled
materials such as fly
ash bricks.
Note 2:- "General
Conditions" shall not
apply.
8(b) Townships and Area - Covering an area ≥ A project of Township
Development project. 50 ha and or built and Area
up area ≥ 1,50,000 Development Projects m2 covered under this item shall require and Environment Assessment report and be appraised as Category 'B1' Project.
Note:- "General Conditions" shall not apply.
The State Expert Appraisal Committee was of the view that the proposed project for development & beautification of the lake-1 does not come under the purview of the EIA Notification-2006 and hence does not require prior Environmental Clearance from State Environment Impact Assessment Authority, Gujarat.
The opinion/report received from State Expert Appraisal Committee was considered in the State Environment Impact Assessment Authority meeting held on 13.3.2015 at Gandhinagar and after careful consideration and discussion, it was unanimously decided that proposed project for development & beautification of the lake-1 does not come under the purview of the EIA Notification-2006 and hence does not require prior Environmental Clearance as per EIA Notification 2006.
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C/WPPIL/83/2014 JUDGMENT
However, it may be noted that prior Environmental Clearance is required before any construction work for the projects/activity attracts applicability of the EIA Notification 2006 and amended thereof.
With Regards, Yours sincerely, Sd/-
(N.K. Patel) Member Secretary, State Level Environmental Impact Assessment Authority Copy to:
Shri K.C. Mistry, Secretary, State Level Expert Appraisal Committee, C/o. Gujarat Pollution Control Board, "Paryavaran Bhavan" Sector-10A, Gandhinagar-382010."
6. Having heard the learned advocates appearing for the respective parties and on going through the material available on record as well as the report submitted by the Secretary to the State Level Environment Impact Assessment Authority, it is clearly transpires that the aforesaid project of development & beautification undertaken by the Jamnagar Municipal Corporation does not come under the purview of the Environment Impact Assessment Notification-2006 and hence does not require prior Environmental Clearance as per Environment Impact Assessment Notification-2006.
7. In view of the aforesaid opinion/report submitted by the competent authority under the provisions of the law, all these petitions do not survive and, in our view, various contentions raised merely based upon apprehensions and inferences which have no place in the law, the competent authority has spelled out as stated above, it is clear that the aforesaid notification does not apply. Therefore, there is no necessity for obtaining any Environmental Clearance for undertaking the development & beautification of the lake-1.
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C/WPPIL/83/2014 JUDGMENT
8. In view of the above matter, these petitions are devoid of any merits and deserve to be dismissed and accordingly, stand dismissed. Notice stands discharged. There shall be no order as to costs.
9. The oral prayer has been made by Mr.Parth Contractor, learned counsel for the petitioners for stay this judgment. We do not find any justification to stay this judgment passed today. Therefore, the prayer made by learned advocate Mr.Parth Contractor stands rejected.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) Ashish Tripathi Page 9 of 9 11 of 11