Gujarat High Court
Brackish Water Research Centre vs State Of Gujarat on 3 August, 2018
Bench: M.R. Shah, A.Y. Kogje
C/WPPIL/52/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 52 of 2016
With
R/WRIT PETITION (PIL) NO. 16 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/
=============================================
1 Whether Reporters of Local Papers may be allowed to see No the judgment ?
2 To be referred to the Reporter or not ? No
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 ?
============================================= GUJARAT KHEDUT SAMAJ Versus STATE OF GUJARAT ============================================= Appearance:
Appearance in Writ Petition (PIL) No.52/2016 MR AJ YAGNIK(1372) for the PETITIONER(s) No. 1 MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGITA VISHEN, ASSISTANT GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1,2,3 MR MIHIR JOSHI, SR. ADVOCATE with MR ARPIT A KAPADIA(3974) for the RESPONDENT(s) No. 5 MS AMRITA M THAKORE(3208) for the RESPONDENT(s) No. 4 Appearance in Writ Petition (PIL) No.16/2016 MR AJ YAGNIK(1372) for the PETITIONER(s) MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGITA VISHEN, ASSISTANT GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1,3,4,5,6,9 MR VAIBHAV VYAS, ADVOCATE for the RESPONDENT No.3 MR MIHIR JOSHI, SR. ADVOCATE with MR ARPIT A KAPADIA(3974) for Nanavati & Co. for the RESPONDENT(s) No. 8 MS AMRITA M THAKORE(3208) for the RESPONDENT(s) No. 7 MR MAULIK NANAVATI, ADVOCATE for the RESPONDENT(s) No.10 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE A.Y. KOGJE Page 1 of 57 C/WPPIL/52/2016 CAV JUDGMENT Date : 03/08/2018 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As both these petitions are interconnected and with respect to the same land and between the same parties, both these petitions are heard, decided and disposed of together by this common judgment and order.
[2.0] Writ Petition (PIL) No.16/2016 has been preferred by the petitioners - Brackish Water Research Centre and others for the following reliefs:
"A. To restrain the respondent No.8 from carrying any kind of activities related to destruction of mangroves in land admeasuring 68,79,60 square meters in block No.1056/B, village Barbodhan, Taluka Olpad, District Surat, as well as in surrounding areas during pendency and/or final disposal of the present petition.
aa. The Hon'ble Court may be pleased to direct the respondent no.1, 3, 4, 5, 6 and 9 to constitute team of experts, visit the area and land in question and submit report to this Hon'ble Court on the issue of destruction of mangroves, blockage of subcreeks of Tena creek and other issues encompassing the CRZ Notification;
bb. This Hon'ble Court may be pleased to direct the respondent no.1, 3, 4, 5, 6 and 9 to immediately take corrective and remedial action towards unbunding the land in question, removal of all the artificial and other blockages of Tena creeks and Subcreeks and direct private respondents to grow mangroves again B. To appoint a Committee eminent Environmentalists and Public spirited persons to ascertain the damage already caused and derive a expert conclusion taking help of all scientific data and techniques available.
C. To direct the State and the Central government authorities to take appropriate steps and ensure strict implementation of various acts, policies, notifications etc. framed to protect the Environment and the Coastal areas.
DD. To hold and declare that removal of mangroves and filling up of creeks on the land in question by respondent no. 8 to put up a mega residential township project is without prior environmental clearance and therefore, same is in violation of the Environmental Page 2 of 57 C/WPPIL/52/2016 CAV JUDGMENT Impact Assessment Notification 2006 and hence, it is illegal and unconstitutional;
EE. To direct the respondents and the respondent no.8 in particular not to do anything on the land in question without seeking prior environmental clearance from the competent authority as provided in Environmental Impact Assessment Notification, 2006 FF. To direct the respondent no.8 to pay to the respondent State of Gujarat fine / penalty for causing damage to the environment under the principles of "polluters pay" by way of exemplary cost towards the damage caused by respondent no. 8 and be further pleased to direct respondent State of Gujarat to plant mangroves again on the land in question and bring back the creeks and the sub creeks to its original position with the help of the fine / penalty to be paid by the respondent no.8;
H. Be pleased to cancel the Environmental Clearance and CRZ clearance dated 01.05.2017 annexed at AnnexureX1 declaring the same to be illegal and unconstitutional;"
[2.1] Writ Petition (PIL) No.52/2016 has been preferred by the petitioner - Gujarat Khedut Samaj for the following reliefs:
"(A) To direct the respondent State of Gujarat to provide the petitioner Trust a copy of the decision dated 232015 permitting the respondent no.4 to sell 68 hectares of land in question bearing Old Survey No.442/A and Block No.1056/B (part) of village Barbodhan, Taluka Olpad, District Surat on advance payment of 100% premium price @ Rs.934 per sq. meter to the buyer of his choice viz. Respondent No.5;
(B) To hold and declare that the impugned order of the respondent Collector dated 25.03.2015 and 1652015 annexed to the present petition at AnnexureD and E allowing sale of 68 hectares of land in question bearing Old Survey No.442/A and Block No.1056/B (part) of village Barbodhan, Taluka Olpad, District Surat to respondent no.4 to the person of his choice viz. respondent no.5 without auction as arbitrary, irrational, discriminatory, malafide, actuated out of colourable exercise of power, smacks of favouritism and nepotism and therefore violative of Article 14 and 21 of the Constitution of India and hence illegal and unconstitutional;
(C) To hold and declare that the impugned order of the respondent Collector dated 03.08.2015 at AnnexureI with 68 hectares of land in question bearing Old Survey No.442/A and Block No.1056/B (part) of village Barbodhan, Taluka Olpad, District Surat Page 3 of 57 C/WPPIL/52/2016 CAV JUDGMENT to respondent no.5 as arbitrary, irrational, discriminatory, malafide, actuated out of colourable exercise of power, smacks of favouritism and nepotism and therefore violative of Article 14 and 21 of the Constitution of India and hence illegal and unconstitutional;
(D) To set aside and declare as null and void ab initio - the sale deed dated 1162015 registered on 1662015 annexed to the present petition at AnnexureH entered into between the respondent nos.4 and 5 for the sale of 68 hectares of land in question bearing Old Survey No.442/A and Block No.1056/B (part) of village Barbodhan, Taluka Olpad, District Surat declaring the same to be illegal and unconstitutional;
(E) To direct Respondent nos.1 to 3 to forfeit land in question bearing Old Survey No.442/A and Block No.1056/B (part) of village Barbodhan, Taluka Olpad, District Surat and resume its possession forthwith;
(F) To direct the respondent State of Gujarat to hold auction of the land in question bearing Old Survey No.442/A and Block No.1056/B (part) of village Barbodhan, Taluka Olpad, District Surat in order to fetch maximum revenue in the interest of State Exchequer and people at large and be further pleased to fully compensate the respondent no.5 for the consideration by it to the tune of Rs.131 crores from out of the sale proceeds which may be fetched in the auction;"
[3.0] That the chronology of events and the facts leading to the present Writ Petitions (PIL) in nutshell are as under:
[3.1] That the respondent No.8 herein - Shri Rama News Print Limited (hereinafter referred to as "SRNL") applied for grant of land in Block No.1056 (R. S. No.442/A) in village Barbodhan, Taluka Olpad, District Surat for industrial purpose in the year 1992. That the State Government vide order dated 19.02.1992 granted the permission to allot land admeasuring 136 Hectare (13,60,000 sq. meter) in Block No.1056 (R.S. No.442/A) for industrial purpose and in new and impartible basis to SRNL upon payment of Rs.3.50 per sq. meter (totaling Rs.47,60,000/) being the market price. That the SRNL deposited the said amount on 30.04.1992. That thereafter vide order dated 26.05.1992 the Collector, Page 4 of 57 C/WPPIL/52/2016 CAV JUDGMENT Surat passed an order allotting 136 Hectare of land in Block No.1056 (R.S. No. 442/A) on new and impartible basis to SRNL for industrial purpose. That in October/November 1992 certain portion of Block No.1056 (admeasuring 121300 Sq. meter) allotted to SRNL was resumed and the same area of land was allotted to SRNL from adjoining R.S. Nos.1054 and 105. That in the year 1996 SRNL setup its factory and commenced production. That the Coastal Regulation Zone Notification came to be issued on 06.01.2011 declaring certain areas to be considered as CRZ.
[3.2] That in the year 2012 SRNL sought permission to mortgage the land allotted to it which was granted by the Collector in view of the G.R. dated 06.06.2003 which provides that new tenure land is granted by the State Government for nonagricultural purposes except housing purposes can be converted to old tenure on payment of 100% premium at prevailing market price after deducting initial payment made and the land can be converted to old tenure provided it has been held for 15 years or more by the applicant. That vide application dated 08.04.2013, SRNL sought permission to transfer the land admeasuring 6,87,960 sq. meter from out of the total land in Block No.1056/B which had been allotted to SRNL. That the Collector vide its communication dated 12.04.2013 instructed the Mamlatdar, Olpad to inquire into the matter and submit his opinion alongwith relevant documents and prescribed checklist. That the Circle Officer, Olpad submitted a report dated 24.07.2013. That thereafter the Mamlatdar, Olpad submitted his report dated 26.07.2013. That the Deputy Collector submitted a report dated 05.08.2013 opining that the permission can be granted as sought. That on 15.10.2013, the District Level Valuation Committee determined the price of land at Rs.750 per sq. meter. That office of the Collector, Surat submitted to the Revenue Department a detailed report dated Page 5 of 57 C/WPPIL/52/2016 CAV JUDGMENT 19.11.2013 alongwith the valuation of the District Level Valuation Committee. That the Chief Town Planner submitted detailed report determining market value at Rs.750 per sq. meter. The State Level Valuation Committee convened its meeting on 17.01.2014 wherein, after deliberating, it decided to call for information as regards market value of the lands of surrounding villages. That the Chief Town Planner submitted a report furnishing market value of land in surrounding villages. That the State Level Valuation Committee again held its meeting on 04.03.2014 and thereafter requested the Chief Town Planner to procure the details of sale instances of last six months in respect of village Limla, Vansva, Segavachhama and Malgama. That on 24.03.2014 the Chief Town Planner submitted details of sale instances of village Segavachhama of last six months as received from subRegistrar. It appears that there were no sole inconsistencies for last six months in case of the rest of the villages. That the State Level Valuation Committee met again on 04.07.2014 and decided to ask District Level Valuation Committee to once again inspect the land and submit the report. The Collector also submitted a detailed report alongwith panchnama dated 25.07.2014. That thereafter the State Level Valuation Committee convened its meeting on 12.09.2014 and opined that the revaluation may be carried out. That thereafter the District Level Valuation Committee, after taking into consideration passed sale instances, issued its report dated 20.10.2014 determining the value of the subject land at Rs.934.50 per sq. meter. That thereafter the Chief Town Planner, Gujarat submitted a detailed report on 10.11.2014 considering other sale instances and carry out the valuation based on a scientific methodology and concurring with the opinion of the District Level Valuation Committee that the value of the subject land was Rs.934.50 per sq. meter. That the State Level Valuation Committee made its report on 19.11.2014 approving the value of Rs.934.50 per sq. meter. That Page 6 of 57 C/WPPIL/52/2016 CAV JUDGMENT thereafter the District Collector informed SRNL by communication dated 25.03.2015 that the Government had passed a resolution dated 02.03.2015 granting permission to convert the subject land to old tenure on paying the net premium amount of Rs.64,04,90,760/. That the premium amount of Rs.64,04,90,760/ was paid by the respondent No.5
- Pramukh Organizers LLP on 08.04.2015. That thereafter the District Collector issued an order dated 16.05.2015 converting the subject land from new tenure to old tenure in terms of Clause 30(1)(b)(2) of the G.R. dated 06.06.2003. That thereafter the SRNL sold the subject land in favour of the Pramukh Organizers LLP - respondent No.5 and a registered sale deed came to be executed by SRNL in favour of the purchaser Pramukh Organizers LLP on 11.06.2015. That the order dated 16.05.2015 by the District Collector converting the subject land from new tenure to old tenure on payment of the net premium amount of Rs.64,04,90,760/ (Rs.934.50 per sq. meter) is the subject matter of Writ Petition (PIL) No.52/2016.
[3.3] That thereafter the respondent No.5 - Pramukh Organizers LLP - purchaser sought development permission with regard to construction of more than 1500 residences on the subject land. That the Town Planner vide its communication dated 03.08.2015 issued the recommendation for grant of development permission in regard to construction of more than 1500 residences. That the District Panchayat, Surat vide order under Section 65 of the Bombay Land Revenue Code dated 27.08.2015 granted nonagricultural use permission for the subject land. That thereafter the development permission was granted by the Gram Panchayat, Barbodhan vide permission dated 16.10.2015 (subject matter of Writ Petition (PIL) No.52/2016).
[3.4] It appears that thereafter in the month of December 2015, the Page 7 of 57 C/WPPIL/52/2016 CAV JUDGMENT residence of village Barbodhan made a representation to the Chief Minister alleging mangrove cutting on 68 Hectares of the subject land and leveling with the help of JCB machines and alleging violation of CRZ Notification. That on the very same day the petitioner No.1 of Writ Petition (PIL) No.16/2016 also addressed a communication to the Chairman, Gujarat Coastal Zone Management Authority and the District Collector and Chairman of District CRZ Committee, alleging mangrove cutting in industrial zone of TENA creek at Block No.1056/B, blocking of area by earthen bund to stop sea water, blocking of minor subcreaks of TENA creek. That some villagers also addressed an email to the Mamlatdar, Olpad and the SubDivisional Magistrate, Olpad on 29.12.2015 alleging the issue of large scale destruction of mangrove at Block No.1056/B and breach of environmental laws. A similar email was also addressed to the District Development Officer, Surat objecting the grant of NA, alleging bunding in the area and overall damage to the TENA creek. That thereafter some villagers / persons addressed an email to the Collector, Surat on 01.01.2016 alleging that mangroves are being damaged, the roads are being constructed, the original level is being modified by bunding, the creeks are being either filled or cut and no action whatsoever has been initiated. That the Talati cum Mantri of Barbodhan village sent a report dated 01.01.2016 to the Mamlatdar, Olpad alleging that large scale cutting of mangroves was being carried out on the subject land. That another communication was made by certain persons to the Collector, Surat on 02.01.2016 alleging mangroves cutting on the subject land. It appears that thereafter based on visual inspection of the subject land, GPCB issued an internal report alleging that Environment Impact Assessment (EIA) Notification and CRZ Notification were applicable to the subject land. That by another email dated 05.01.2016 addressed by certain persons to the Additional Chief Secretary, Environment and Forest, Gandhinagar, the Gujarat Page 8 of 57 C/WPPIL/52/2016 CAV JUDGMENT Zonal Management Authority and the District Collector, Surat repeating their earlier allegations of cutting mangroves in large scale and leveling the land etc. and destroying the TENA creek and its subcreeks. That at that stage the petitioners - Brackish Water Research Centre & Ors. filed Writ Petition (PIL) No.16/2016 inter alia alleging that the subject land had a large scale mangroves which was being destroyed and that TENA creek and its subcreeks pass through it.
[3.5] That the Talati cum Mantri, Barbodhan and Circle Officer visited the subject land on 10.02.2016 and prepared a panchnama inter alia observing that there were presence of Gando Baval and not mangroves and also observing that the mangroves were seen in the limits of Tena village, which is situated on the west of the subject land.
[3.6] That the Division Bench of this Court issued a notice in the Writ Petition (PIL) No.16/2016 on 15.02.2016 and granted the order of status quo which has been continued till date. That the petitioners amended the petition alleging the violation of CRZ Notification. That the Deputy Conservator of Forest, Surat in its report dated 17/19.02.2016 specifically observed mangroves destruction on the subject land and submitted its report to the Collector, Surat. That thereafter the Gujarat Khedut Samaj - petitioner No.2 in Writ Petition (PIL) No.16/2016, filed Writ Petition (PIL) No.52/2016 before this Court challenging the decision of the State Government of granting permission to SRNL to transfer the subject land. The said subsequent petition came to be filed on 31.03.2016. It appears that during the pendency of both the petitions, the Gujarat State Environment Impact Assessment Authority granted environment clearance and CRL clearance vide communication dated 01.05.2017. That the purchaser Pramukh Organizers LLP - respondent No.8 in Writ Petition (PIL) No.16/2016 filed an additional Page 9 of 57 C/WPPIL/52/2016 CAV JUDGMENT affidavit placing on record the EC and CRZ clearance which had been granted to it. That the petitioners by way of amendment had challenged the EC and CRZ clearance in Writ Petition (PIL) No.16/2016. That thereafter the Gujarat Pollution Control Board has filed a complaint against respondent No.8 in Writ Petition (PIL) No.16/2016 - Pramukh Organizers LLP before the Chief Judicial Magistrate, Surat.
[3.7] Thus, grant of EC and CRZ in respect of the land in question by the Gujarat State Environment Impact Assessment Authority dated 01.05.2017 is the subject matter of Writ Petition (PIL) No.16/2016 and the order passed by the State Government granting the permission to SRNL to transfer the subject land and that too at the price of Rs.934.50 per sq. meter is the subject matter of Writ Petition (PIL) No.52/2016.
Writ Petition (PIL) No.52/2016 [4.0] Shri Anand Yagnik, learned Advocate has appeared on behalf of the petitioners - Gujarat Khedut Samaj and Others and Shri Kamal Trivedi, learned Advocate General has appeared on behalf of the respondent Nos.1 to 3. Shri Mihir Joshi, learned Senior Advocate has appeared with Shri Arpit Kapadia, learned Advocate appearing on behalf of the respondent No.5 - purchaser of the subject land - Pramukh Organizers LLP and Ms. Amrita Thakore, learned Advocate has appeared on behalf of the respondent No.4.
[5.0] Shri Yagnik, learned Advocate appearing on behalf of the petitioners has vehemently submitted that the impugned order passed by the State Government granting permission to the respondent No.4 - SRNL to transfer the subject land and that too on making payment of premium at the rate of Rs.934.50 per sq. meter is absolutely illegal, arbitrary, malafide and capricious. Shri Yagnik, learned Advocate Page 10 of 57 C/WPPIL/52/2016 CAV JUDGMENT appearing on behalf of the petitioners has vehemently submitted that the impugned order passed by the State Government granting permission to the SRNL to transfer the subject land is absolutely in breach of the original order of granting in favour of the SRNL dated 26.05.1992.
[5.1] It is vehemently submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that as such the subject land was allotted to SRNL for a specific purpose namely the industrial purpose so that the villagers of the nearby villages get the employment. It is submitted that even as per the conditions imposed the subject land can be used only for the purpose for which the land was granted at the relevant time at the rate of Rs.3.50 per sq. meter. It is submitted that as per the said condition No.2 the land cannot be used for the purpose other than for which the land was granted. It is submitted that in the present case the land is transferred in favour of the respondent No.5 - Pramukh Organizers LLP for construction of the residential flats and therefore, the conditions imposed while granting the land vide order dated 26.05.1992 shall be breached. It is submitted that in the present case immediately after purchase of the land, the respondent No.5 has obtained the development permission by submitting the plans for construction of 1500 residential premises which shall be absolutely in breach of the conditions of the original grant dated 26.05.1992.
[5.2] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that it is an admitted position that for more than 20 years approximately 50% of the land allotted / granted vide order dated 26.05.1992 has remained unused. It is submitted that even thereafter the permission was sought to mortgage the unused land for availing the financial assistance which was granted. That thereafter in the year 2012 infact the respondent No.4 availed financial assistance of Page 11 of 57 C/WPPIL/52/2016 CAV JUDGMENT Rs.210 Crores from the ICICI Bank. It is submitted that thereafter immediately in the year 2013 the respondent No.4 submitted the application to sell / dispose of 50% of the land originally allotted and thereafter obtained the impugned order to transfer the land in favour of respondent No.5 and that too at the meagre amount of Rs.934.50 per sq. meter. It is submitted that therefore the impugned order permitting the respondent No.4 to transfer the subject land is absolutely illegal, arbitrary and in breach of the terms and conditions of the original agreement dated 26.05.1992.
[5.3] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that even the entire transaction between the respondent No.4 and respondent No.5 is illegal including the valuation / sale consideration mentioned in the Deed of Conveyance.
[5.4] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that even the price mentioned in the impugned order granting the permission to the respondent No.4 to transfer the land in favour of the respondent No.5 at a price of Rs.934.50 per sq. meter is also absolutely illegal and arbitrary and the same cannot be said to be the real market price prevailing.
[5.5] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that in the present case the respondent No.5 - purchaser paid the amount of Rs.67,30,00,000/ by way of premium which as such was required to be paid by the respondent No.4. It is submitted that even the sale consideration mentioned in the Deed of Conveyance is Rs.64,04,90,760/ at the rate of Rs.934 per sq. meter and it does not include even the amount of Rs.67,30,00,000/ paid by the respondent No.5, by way of premium Page 12 of 57 C/WPPIL/52/2016 CAV JUDGMENT which at the most can be said to be paid on behalf of the respondent No.4. It is submitted that even the stamp duty on the Deed of Conveyance between the respondent No.4 and respondent No.5 is paid considering the sale consideration at Rs.934 per sq. meter and it does not include even the payment made to the respondent No.5 by way of premium i.e. Rs.67,30,00,000/.
[5.6] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that even the impugned order granting the permission to respondent No.4 to transfer the land in favour of the respondent No.5 is also contrary to the G.R. and the policy of the State Government. It is submitted that as per the G.R. the land can be permitted to be disposed of only by public auction (Clause 50 of the G.R. dated 06.06.2003).
[5.7] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that even the earlier order passed in 2012 by the State Government by which the respondent No.4 was granted permission to mortgage the land in his order dated 09.07.2012, it has been specifically mentioned that as the land is new tenure land and impartible land and therefore, the interest of the Government is there in the land as and when the land is to be transferred, the land cannot be transferred / sold without prior permission of the Government as well as the land can be transferred / sold only by public auction.
[5.8] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that therefore the impugned order passed by the State Government granting the permission to the respondent No.4 to transfer the land on payment of premium at the rate of Rs.934 per sq. meter is absolutely illegal, arbitrary, contrary to the policy of the State Page 13 of 57 C/WPPIL/52/2016 CAV JUDGMENT Government and the G.R. dated 06.06.2003. It is submitted that by granting such permission the object and purpose for which the land was granted in favour of SRNL has been frustrated.
[5.9] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that even the premium fixed at Rs.64,04,90,760/ is also absolutely at lower price and only with a view to favour the respondent Nos.4 and 5. It is submitted that the permission to transfer the land is granted on condition to pay the premium at Rs.934 per sq. meter and even the sale consideration mentioned in the sale deed is at Rs.934 per sq. meter against the market price prevailing at the relevant time at Rs.10,000 per sq. meter and more. It is submitted that the Jantri price in the year 2011 of the land situated at village Barbodhan was approximately more than Rs.11,000/ per sq. meter. It is submitted that even the market price / Jantri price in respect of the lands situated in Rander area of Surat which is just adjacent to the land in question at the relevant time was Rs.11,500 per sq. meter. It is submitted that against which the permission to transfer the subject land is granted at the price of Rs.934 per sq. meter only. It is submitted that therefore by fixation of such a lower price and as 50% of the market price was required to be paid to the Government by way of premium, there is a huge loss to the State Government and ultimately to the public exchequer. Shri Yagnik, learned Advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Centre for Public Interest Litigation vs. Union of India reported in (2012) 3 SCC 1 as well as in the case of Natural Resources Allocation, In re, Special Reference No.1 of 2012 in support of his submission that the property ought to have been disposed of by public auction only.
Page 14 of 57 C/WPPIL/52/2016 CAV JUDGMENT[5.10] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that as the subject land remained unutilized for more than 23 years, the State having interest ought to have resumed the land and/or bought the land at Rs.934 per sq. meter and thereafter ought to have sold the same by holding public auction so that maximum price could be fetched which shall be in the larger interest. It is submitted that the Government had interest in the land and the public trust was involved and therefore, the State Government ought to have protected their interest rather than permitting the respondent No.4 to transfer the subject land at the meagre amount of Rs.934 per sq. meter.
Making above submissions and relying upon above decisions, it is requested to allow the Writ Petition (PIL) No.52/2016.
[6.0] Present petition is vehemently opposed by Shri Kamal Trivedi, learned Advocate General appearing on behalf of the respondent authorities.
[6.1] It is vehemently submitted by Shri Trivedi, learned Advocate General appearing on behalf of the respondent authorities that in the present case and in the facts and circumstances of the case the permission dated 02.03.2015 granted by the respondent State and the consequent order dated 16.05.2015 to sell the land without auction on accepting 100% premium price cannot be said to be arbitrary, irrational and/or discriminatory.
[6.2] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the respondent authorities that in the present case it cannot be said that in granting permission to the respondent No.4 to sell the land in favour of the respondent No.5, 100% premium has Page 15 of 57 C/WPPIL/52/2016 CAV JUDGMENT been charged on a very lower side and thereby a severe loss to the State exchequer as alleged.
[6.3] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the respondent authorities that as such in the present case the question is not with respect to first time sale of the government land. It is submitted that in the present case the question is with respect to converting the land from new tenure to old tenure which otherwise was held by the respondent No.4 on payment of sale consideration in the year 1992.
[6.4] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the respondent authorities that even otherwise in the present case the premium has been fixed after applying the proper manner and method of determination of the market value of the land for the nonagricultural purpose. It is submitted that the State Government and its Revenue Department has in exercise of powers flowing from the Land Revenue Code as well as those enshrined under the Constitution, has issued various Government Resolutions providing for the method and manner for disposal of the government lands. It is submitted that the State Government and its Revenue Department, in supercession of all earlier Government Resolutions, issued Government Resolution dated 06.06.2003, consolidating the earlier Government Resolutions on the subject, issued from time to time and prescribing guidelines for allotment of government land for nonagricultural purpose. It is submitted that so far as criteria for guidelines for determination of the market value of the land to be allotted are concerned, it is submitted that the State Government has from time to time issued various Government Resolutions / circulars, inter alia providing for manner and method of determination of the market value of the land for non Page 16 of 57 C/WPPIL/52/2016 CAV JUDGMENT agricultural purpose. It is submitted that the State Government vide Government Resolution dated 15.01.1998, had laid down guidelines for constituting two committees - District Level Valuation Committee and State Level Valuation Committee. It is submitted that subsequently, vide circular dated 30.09.2002, it was further clarified that the District Level Valuation Committee has to consider the valuation done by the Town Planner and after deliberating upon the valuation done by the Town Planner, the District Level Valuation Committee will consider the relevant aspects which, in the opinion of the District Level Valuation Committee were not considered by the Town Planner and accordingly the District Level Valuation Committee will suitably modify the valuation. It is submitted that the State Government has issued various Government Resolutions providing for ancillary matters viz. (1) validity period; (2) notional price rise etc. That the last circular in the line is G.R. dated 22.10.2008, inter alia providing for determination of the market value of the government land to be allotted for the nonagricultural purpose alongwith guidelines.
[6.5] It is further submitted by Shri Trivedi, learned Advocate General that in the present case in the year 2013 the respondent No.4 submitted an application dated 08.04.2013 inter alia praying for conversion of the land admeasuring H687960 sq. meter out of H1238698 sq. meter from new tenure to old tenure as per the conditions prevailing in the G.Rs. issued by the State Government from time to time. It is submitted that apropos the said application, the office of the Collector vide letter dated 12.04.2013, instructed the Mamlatdar, Olpad to inquir into the matter and submits its opinion alongwith the relevant documents and the prescribed checklist. It is submitted that the Circle Officer, Olpad on 31.05.2013 in turn carried out the inspection and drew the panchnama. It is submitted that the said report was followed by reports dated Page 17 of 57 C/WPPIL/52/2016 CAV JUDGMENT 26.07.2013 and 05.08.2013 prepared by the Mamlatdar, Olpad, District Surat and the Deputy Collector, Olpad, District Surat. It is submitted that therefore necessary details were called for by the officer of the Collector viz. calling for the report from the office of the Mamlatdar, Deputy Collector etc. and also from the District Level Valuation Committee regarding determination of the price of the land as per the prevalent market value by the District Level Valuation Committee and the opinion of the District Level Valuation Committee determining the market value of the land etc. It is submitted that after collecting all the details, the office of the Collector submitted a detailed report to the Deputy Secretary, Revenue Department for obtaining necessary orders of conversion of the land from new tenure to old tenure as per the provisions contemplated under the G.R. dated 06.06.2003. It is submitted that thereafter in view of the valuation of the land exceeding Rs.50 lakh, the matter was referred to the Chief Town Planner, Gandhinagar, for his opinion. It is submitted that accordingly in tune with the provisions of the G.R. dated 22.10.2008, the Under Secretary, Revenue Department vide letter dated 12.12.2013, requested the Chief Town Planner to give its opinion. That thereafter the Chief Town Planner, submitted a detailed report indicating the market value of the land and concurring with the opinion of the District Level Valuation Committee, determining the market value of the land at the rate of Rs.750 per sq. meter. It is submitted that in furtherance of the provisions of the aforesaid G.R., the matter was thereafter referred to by the Revenue Department to the State Level Valuation Committee on 21.12.2013. That thereafter the State Level Valuation Committee convened its meeting on 17.01.2014 and in the said meeting, after deliberating the issues, desires to have the information as regards the market value of the land of the surrounding villages so as to enable it to determine the correct market value of the land. It is submitted that Page 18 of 57 C/WPPIL/52/2016 CAV JUDGMENT accordingly the State Government, through its Revenue Department, addressed a letter dated 29.01.2014, inter alia, requesting the Chief Town Planner, Surat, to furnish the market value of the land of the surrounding villages. It is submitted that thereafter the Chief Town Planner, Surat submitted its report indicating the market value of the surrounding areas. It is submitted that upon receipt of the report from the Chief Town Planner, Gandhinagar, the Revenue Department, requested the State Level Valuation Committee to give its decision as regards the valuation and accordingly the meeting of the State Level Valuation Committee was convened on 04.03.2014. It is submitted that however, the State Level Valuation Committee further requested the Chief Town Planner to procure the details of the sale instances of last six months with respect to the nearby villages viz. Limla, Vansva etc. from the respective offices of the Registrar of Stamps and to furnish the same to the State Level Valuation Committee. It is submitted that thereafter the Chief Town Planner, Gujarat State vide letter dated 24.03.2014 submitted the details of the sale instances of last six months received from the offices of the SubRegistrar of Stamp of village Segavachhama. It is submitted that however the sale instances of last six months of the remaining villages could not be procured since the same were not available. It is submitted that thereafter the file was once again placed before the State Level Valuation Committee for its decision. However, in the meeting dated 04.07.2014, the State Level Valuation Committee, due to certain wantings, took a decision that the District Level Valuation Committee may carry out the inspection of the lands in question and to submit its report. It is submitted that in the interregnum, the office of the Collector, sought guidance owing to want of certain clarifications and the same was provided by the Revenue Department vide letter dated 01.08.2014. It is submitted that the office of the Mamlatdar and office of the Collector submitted their respective reports dated 11.08.2014. It is Page 19 of 57 C/WPPIL/52/2016 CAV JUDGMENT submitted that the matter was, thereafter, placed before the State Level Valuation Committee alongwith the detailed report dated 11.08.2014 and other relevant papers. It is submitted that the meeting of the State Level Valuation Committee was convened on 12.09.2014 and in the said meeting the matter was once again deliberated and the State Level Valuation Committee was of the opinion that the revaluation of the land may be carried out through the office of the Collector. It is submitted that accordingly, the Under Secretary, Revenue Department addressed a letter dated 23.09.2014 to the office of the Collector requesting it to undertake the revaluation of the land bearing Block No.1056/B. It is submitted that thereafter the office of the Collector submitted a report dated 30.10.2014 to the Revenue Department inter alia indicating the market value of the land at the rate of Rs.934.50 per sq. meter as determined by the District Level Valuation Committee. It is submitted that on receipt of the revised valuation of the market value of the land, the Revenue Department vide letter dated 05.11.2014, referred the matter once again to the Chief Town Planner, Gujarat State, inter alia, requesting to furnish the opinion in the matter of valuation of the land. It is submitted that thereafter the Chief Town Planner, Gujarat State submitted a detailed report dated 10.11.2014 concurring with the opinion of the District Level Valuation Committee determining the market value at Rs.934.50 per sq. meter. It is submitted that thereafter the State Level Valuation Committee, finally gave its approval to the market value of the land, which came to be determined at the rate of Rs.934.50 per sq. meter in its meeting dated 19.11.2014. It is submitted that therefore it is evident from the aforesaid sequence of events that the matter was deliberated threadbare and it is only after getting the concrete valuation of the market value of the land, a decision was taken by the State Government in its Revenue Department to place the matter before the cabinet for its approval. Accordingly, the matter as placed Page 20 of 57 C/WPPIL/52/2016 CAV JUDGMENT before the cabinet on 25.02.2015, followed by the decision allowing the respondent No.4 to convert the land from new tenure to old tenure on certain terms and conditions. It is submitted that aforesaid decision was led to the passing of the order dated 05.03.2015, allowing the conversion of the land in question while charging 100% premium. It is submitted that therefore the determination of the market value at the rate of Rs.934.50 per sq. meter for the purpose of charging 100% premium cannot be said to be on lower side and/or malafide.
[6.6] Now, so far as the submission on behalf of the petitioner that the State ought to have resumed the land in question and ought to have thereafter sold by public auction is concerned, it is vehemently submitted by Shri Trivedi, learned Advocate General that infact the land was already allotted in favour of the respondent No.4 on payment of market price prevailing at the relevant time way back in the year 1992 and what has been requested in the year 2013 by the respondent No.4 was a conversion of land from new tenure to old tenure. It is submitted that therefore there was no question of either resuming the land and/or thereafter selling the land by holding the public auction. It is submitted that therefore the permission to sell the land on converting the land from new tenure to old tenure, without auction cannot be said to be in violation of the provisions of the G.R. dated 06.06.2003 more particularly Clauses 39 and 40 thereof. It is submitted that therefore the impugned permission converting the land from new tenure to old tenure land and/or thereafter granting the permission to the respondent No.4 to sell the land on payment of 100% premium at the market rate is absolutely in consonance with the policy of the State Government contained in G.R. dated 06.06.2003.
Making above submissions and relying upon the decisions of the Hon'ble Supreme Court in the case of Gohil Jesangbhai Raysangbhai Page 21 of 57 C/WPPIL/52/2016 CAV JUDGMENT and Ors. vs. State of Gujarat and Another reported in (2014) 5 SCC 199 (Para 9) and another decision of the Hon'ble Supreme Court in the case of reported in (2012) 10 SCC 146, it is requested to dismiss the present petition.
[7.0] Present petition is vehemently opposed by Shri Mihir Joshi, learned Senior Advocate appearing on behalf of the respondent No.5 - Pramukh Organizers LLP. It is submitted that so far as respondent No.5 is concerned, respondent No.5 is purchaser of a private land on payment of full sale consideration of Rs.67,30,00,000/ and also on payment of 100% premium determined by the State Government. It is submitted that therefore the respondent No.5 has invested a huge amount as far as back in the year 2015 and thereafter the present petition is preferred in the year 2016.
[7.1] Now, so far as the procedure followed by the State Government and the State authorities determining the market price at Rs.934.50 per sq. meter for the purpose of charging 100% premium is concerned, Shri Joshi, learned Counsel appearing on behalf of the respondent No.5 has adopted the submissions made by Shri Trivedi, learned Advocate General appearing on behalf of the respondent State authorities. He has vehemently submitted that a thorough inquiry has been made and a concrete long drawn procedure has been followed by various authorities and thereafter after considering even the sale instances at the relevant time, thereafter the premium has been fixed at Rs.934.50 per sq. meter, which cannot be said to be on a lower side and/or malafide and/or to favour the respondent No.4 and/or the respondent No.5.
[7.2] Now, so far as the submission on behalf of the petitioner that the land in question could not have been sold otherwise than the auction, Page 22 of 57 C/WPPIL/52/2016 CAV JUDGMENT relying upon Clause 39 and 40 of the G.R. dated 06.06.2003, Shri Joshi, learned Counsel appearing on behalf of the respondent No.5 has vehemently submitted that the aforesaid shall not be applicable at all in the facts and circumstances of the case. It is submitted that in the present case the land was allotted / granted to the respondent No.4 - Rama News Print and Paper Ltd. by the State Government for industry by charging the price. It is submitted that under Section 73 of the Bombay Land Revenue Code, such occupancy rights are transferable and heritable and subject only to the condition appended to the grant. It is submitted that there was no condition in the allotment grant order that the Rama News Print and Paper Ltd. can only sell by auction. It is submitted that on the contrary the terms of the grant expressly recognized the right of private transfer subject only to permission of the State. It is submitted that condition / clause 39 of the G.R. of 2003 has no application since the subject land is not "government waste" land but a private land. It is submitted that similarly even reference to the permission of 14.06.2012 also is not applicable since it imposes condition in the event land has to be auctioned for recovery of dues by the Bank and does not mandate auction for every transfer by the grantee. It is submitted that as per the policy of the Government the land can be converted from new tenure to old tenure and permission to sale can be granted after a period of 15 years from the original grant subject to payment of 100% premium. It is submitted that there is a policy of the State Government for determination of the valuation for the purpose of determination of the premium, which has been scrupulously followed in the present case.
[7.3] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of the respondent No.5 that in the present case it is purchase of a private land by the respondent No.5 - Pramukh Organizers LLP from the Page 23 of 57 C/WPPIL/52/2016 CAV JUDGMENT respondent No.4 by way of registered sale deed after getting the necessary permission for conversion from new tenure to old tenure. It is submitted that it is a consistent policy applicable throughout in the State of Gujarat for a conversion of a new tenure into old tenure by accepting the amount of premium. It is submitted that such policy has been taken into consideration by the Hon'ble Supreme Court in the case of Gohil Jesingbhai Raysangbhai and Ors. (Supra). It is submitted that the petitioner has as such not challenged the policy dated 06.06.2003.
[7.4] Now, so far as the submission on behalf of the petitioner that the valuation of the land at Rs.934.50 per sq. meter is on a lower side is concerned, it is vehemently submitted by Shri Joshi, learned Counsel appearing on behalf of the respondent No.5 that in the present case the valuation procedure has been followed by various authorities and thereafter a final decision has been taken on the basis of the report and/or decision of the State Level Valuation Committee determining the market price for charge of premium at Rs.934.50 per sq. meter. It is submitted that there is no breach of procedure pointed out. It is submitted that all the relevant facts and factors have been taken into account. It is submitted that therefore in absence of any error of procedure the Court will not take upon itself the task of valuation which is for the expert and technical body. It is submitted that the decision is multilevelled and therefore, it rules out arbitrariness or favourism.
[7.5] It is submitted that so far as the submission on behalf of the petitioner that Jantri price of Rander needs to be considered is fallacious. It is submitted that Rander area is fully developed in the city of Surat since last many decades and is a part of Municipal Corporation wherein the land in question is situated far away from the city area and there is no habitation in the near vicinity. It is submitted that therefore Page 24 of 57 C/WPPIL/52/2016 CAV JUDGMENT both the instances are not comparable.
[7.6] Now, so far as the submission on behalf of the petitioner that sale price itself is an indicator of the real value is concerned, it is submitted that the sale price is distinct from the valuation of the property for the purpose of levy of premium. It is submitted that in a case where there is a condition of levying 100% premium, price can never be determinative of value for the purpose of premium because in such a case the entire amount would have to be paid as premium and the grantee would not et any amount at all. It is submitted that it would amount to confiscation of the property. It is submitted that for example, if the bank was to undertake sale of property of grantee mortgaged to it, the entire amount of consideration would have to be paid as premium reducing the security interest to nil. It is submitted that therefore the stage contention would result in absurdity and therefore, is not tenable at law.
[7.7] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of the respondent No.5 that therefore, there is always a difference between the market value and the market price for the purpose of determination of the premium.
[7.8] Now, so far as the submission on behalf of the petitioner that the Government ought to have forfeited the land instead of granting permission to transfer the same, it is submitted by Shri Joshi, learned Counsel appearing on behalf of the respondent No.5 that the said prayer is hit by delay. It is submitted that purported nonuse if the petitioner alleges is since 1992. It is submitted that no objection has been taken by the petitioner at any time prior to sale of the property. It is submitted that the land has been sold to the respondent No.5 after due permission from the State Government on 16.06.2015 and the third party rights are Page 25 of 57 C/WPPIL/52/2016 CAV JUDGMENT created and the respondent No.5 is the owner of the land. It is submitted that therefore the land cannot be now forfeited in its hand.
[7.9] It is submitted that assuming that there was a power of forfeiture for nonuse (which there is none) even then it is discretionary power of the government to be exercised as a measure of last resort. In support of his above submissions, Shri Joshi, learned Counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Teri Oat Estates (P) Ltd. vs. U.T., Chandigarh and Others reported in (2004)2 SCC
130. [7.10] It is submitted that even otherwise in the facts and circumstances of the case, such a drastic power of forfeiture was not warranted at all. It is submitted that as such there are no conditions imposed of forfeiture for nonuse in the grant order. It is submitted that even assuming that there is such a condition, the same has been complied with. It is submitted that industry has been set up on the land and is even at present fully functional. It is submitted that it is not that every inch of the land has to be utilized and there can be various reasons for the land not being constructed upon including the green cover, open storage, expansion etc. It is submitted that even the mortgage of the land for the purpose of obtaining finance for running the plant can be considered as use of the land for the purpose of the industry. It is submitted that forfeiture would entail immediately recall of loans and lead to closure of the industry itself. Therefore, relying upon the following decisions, it is requested to dismiss the present petition.
1. State of M.P. and Others vs. Nandlal Jaiswal and Ors. (1986) 4 SCC 566
2. Teri Oat Estates (P) Ltd. vs. U.T., Chandigarh and Others (2004) 2 SCC 130 Page 26 of 57 C/WPPIL/52/2016 CAV JUDGMENT
3. R & M Trust vs. Koramangala Residents Vigilance Group & Ors. (2005) 3 SCC 91
4. Bombay Dyeing & Mfg. Co. Ltd. (3) vs. Bombay Environmental Action Group and Ors.
(2006) 3 SCC 434 [8.0] Heard learned Counsel appearing on behalf of the respective parties at length.
At the outset it is required to be noted that by way of this Writ Petition (PIL), the petitioner - Gujarat Khedut Samaj through its Secretary has as such prayed to quash and set aside the order dated 25.03.2015 passed by the State Government and the consequential order dated 16.05.2015 passed by the Collector, Surat converting the land in question from new tenure to old tenure and consequently permitting / allowing the sale of 68 hectares of land to the respondent No.4 - original grantee / allottee to the respondent No.5, which has been granted on payment of 100% of the market price determined, as a premium. The grounds on which the impugned orders are challenged are alrady stated herein above. The sum and substance of the submission on behalf of the petitioner is that the land in question ought to have been permitted to have been sold by public auction only; that the land in question was not used by the respondent No.4 for the purpose for which it was allotted i.e. for industrial purpose, the same ought to have been resumed and/or forfeited by the State Government and thereafter the State Government ought to have sold it by auction; that the premium fixed at Rs.934.50 per sq. meter is absolutely on a lower side and not as per the market value more particularly when the market value mentioned in the sale deed and not even as per the market value prevailing at the relevant time. Heavy reliance is placed upon clause 39 and 40 of the G.R. dated 06.06.2003 by the learned Counsel appearing on behalf of the petitioner.
Page 27 of 57 C/WPPIL/52/2016 CAV JUDGMENTTherefore, as such applicability of G.R. dated 06.06.2003 is not in dispute. However, considering Clauses 39 and 40 of the G.R., we are of the opinion that the said clauses / conditions shall not be applicable to the facts of the case on hand. In the present case the land in question was granted in favour of the respondent No.4 of payment of market price prevailing at the relevant time, however for industrial purpose and as a new tenure / impartible land. Therefore, as such the respondent No.4 become the owner of the land on payment of the price mentioned in the said order of 1992, however subject to conditions more particularly as a new tenure land i.e. land cannot be transferred without the prior permission of the Collector and/or the appropriate authority. Clause 39 of the G.R. dated 06.06.2003 shall be applicable only in a case where the government waste land and/or gaucher land is to be disposed for industrial purpose and in that case only the land can be disposed of by holding public auction. Clause 40 of the G.R. dated 06.06.2003 provides that in a case where land is allotted as a new tenure land is mortgaged with the financial institutions and in case the financial institution proposes to auction the property for releasing its dues, prior permission of the government is required to be taken so that the government may get the amount of premium and it further provides that at the time the new tenure land is mortgaged with the financial institution, the undertaking from such financial institution is to be obtained to comply with Clause 40 i.e. prior permission of the State Government is required so that the government gets the amount of premium. Meaning thereby even on payment of premium and after obtaining necessary permission from the State Government, the same is permissible. Therefore, reliance placed upon Clauses 39 and 40 of the G.R. dated 06.06.2003 by the learned Counsel appearing on behalf of the petitioner that the land in question ought to have been permitted to be sold only by auction, cannot be accepted considering the facts and Page 28 of 57 C/WPPIL/52/2016 CAV JUDGMENT circumstances of the case narrated herein above. At this stage it is required to be noted that as such the respondent No.4 who as such was granted the land in question on payment of the price mentioned in the order of grant become absolute owner subject to certain terms and conditions mentioned in the order of grant viz. the land cannot be sold / transferred without the prior permission of the government and even the same can be permitted to be sold after obtaining necessary permission from the State Government / Collector after a period of 15 years of grant and on payment of 100% premium. Therefore, the submission on behalf of the petitioner that the impugned orders are in breach of G.R. dated 06.06.2003, cannot be accepted.
[8.1] It is next contended on behalf of the petitioner that the determination of the premium at Rs.934.50 per sq. meter is on a lower side and that whatever the market value is mentioned in the sale deed must be the market price for the purpose of determination of the premium is concerned, the same has no substance. It is required to be noted that in the present case the market price for determining premium while granting the permission / for converting from new tenure to old tenure a long drawn procedure has been followed at various stages stated herein above. At every stage there is a consultation and thereafter considering various factors including the sale instances of the nearby villages of last six months and after following the scientific method and manner ultimately the State Level Valuation Committee consisting of experts have determined the market price at Rs.934.50 per sq. meter for the purpose of premium. There is no procedural lapse even suggested. As per the policy of the State Government the amount of premium is to be determined on the basis of the market price determined by the District Level Valuation Committee and thereafter by the State Level Valuation Committee consisting of the experts. The same is a consistent Page 29 of 57 C/WPPIL/52/2016 CAV JUDGMENT practice / policy being followed by the State Government.
[8.2] Now, so far as the submission on behalf of the petitioner that the sale consideration mentioned in the sale deed after getting the land converted from new tenure to old tenure, the same must be the market price for the purpose of premium is concerned, at the outset it is required to be noted that the same has no substance and cannot be accepted and it will lead to an absurd result and/or eventuality. There is always a difference between the market price determined for the purpose of determining the amount of premium and the market value for the sale consideration. As rightly submitted by the learned Counsel appearing on behalf of the respondent No.5 that if the sale consideration mentioned in the sale deed is considered as a market price for the purpose of deciding the premium, in that case the entire amount paid to the seller would go for payment of the premium and he will not get anything on sale of such property. As rightly submitted infact it would amount to confiscation of the property. For example, if a Bank was to undertake sale of the property of grantee mortgaged to it, if the submission on behalf of the petitioner is accepted, in that case, entire amount of consideration would have to be paid as premium reducing the security interest to nil. Therefore, the price can never be determinative of value for the purpose of premium because in such a case the entire amount would have to be paid as premium and as observed herein above the seller / grantee would not get any amount at all. Even such submission is also required to be considered from another angle. In a given case it may happen that the permission for converting the land from new tenure to old tenure is obtained first on payment of 100% premium determined by the appropriate authority and thereafter it may happen that the property is sold thereafter after a few months and by the time the prices might have gone high. In such a situation the amount of Page 30 of 57 C/WPPIL/52/2016 CAV JUDGMENT premium is not required to be revised. Therefore, the amount of premium is required to be determined by the District / State Level Valuation Committee as the case may be after following scientific method and manner and after obtaining the reports from various authorities right from Circle Officer, Mamlatdar, Town Planning Department etc. Therefore, in the present case, determination of the premium at Rs.934.50 per sq. meter cannot be said to be on lower side.
[8.3] Now, so far as the submission on behalf of the petitioner that as the land in question was not used by the respondent No.4 Company for the purpose for which it was allotted / granted for number of years and therefore, the government ought to have forfeited the land and thereafter ought to have sold the land by public auction is concerned, at the outset it is required to be noted that firstly in the order of grant there is no such condition of forfeiture. Even otherwise in the facts and circumstances of the case, such a drastic step of forfeiture was not warranted (infact there is no condition of forfeiture in the original order of grant). In the present case it is not the case where the respondent No.4 Company has not at all used the land for the purpose for which it was granted. On the middle portion of the land allotted, the respondent No.4 Company has constructed the factory and for the remaining land they sought the permission to repay the loan taken from the financial institution. There may be number of reasons not to use the entire land inch by inch. Even in the original order of grant the only condition is that the land allotted cannot be sold without the prior permission of the Collector / appropriate Authority. Under the circumstances, the submission on behalf of the petitioner that the State Government ought to have forfeited the land and ought to have thereafter sold the same by public auction cannot be accepted. There is one another additional reason not to accept such a contention / submission. The land in Page 31 of 57 C/WPPIL/52/2016 CAV JUDGMENT question was allotted to the respondent No.4 in the year 1992. Some portion of the land remained unused / unutilized. Thereafter, at no point of time till the land in question was sold in favour of respondent No.5 in 2015, the petitioner made any grievance and/or made such a request. Now, the third party rights are already created. Respondent No.5 has become the owner on payment of full sale consideration. Therefore, now the respondent No.4 did not remain the owner. Therefore, the land cannot be resumed from the respondent No.5 - third party.
[9.0] In view of the above and for the reasons stated above, challenge to the order dated 25.03.2015 passed by the State Government and the consequential order dated 16.05.2015 passed by the Collector, Surat fail and Writ Petition (PIL) No.52/2016 deserves to be dismissed and is, accordingly, dismissed.
Writ Petition (PIL) No.16/2016 [10.0] Shri Anand Yagnik, learned Advocate appearing on behalf of the petitioners has vehemently submitted that the activities / new project of putting up mega mega township project of respondent No.8 herein - Pramukh Organizers, LLP, including filling up of creeks and removal of mangroves in the land in question which is subject matter of the present petition are in direct contravention of the Environmental Impact Assessment Notification, 2006, ("EIA Notification, 2006") as amended from time to time. It is submitted that the EIA Notification is issued by the Union of India, Ministry of Environment and Forest under Rule 5 of the Environment (Protection) Rules, 1986 issued under Section 3 of the Environment Protection Act, 1986. It is submitted that on and from the date of publication, the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule attached to the Notification shall be Page 32 of 57 C/WPPIL/52/2016 CAV JUDGMENT undertaken in any part of India only after the prior environment clearance from the Central Government or, as the case may be, by the State Level Environmental Impact Assessment Authority.
[10.1] It is submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that Clause 7 of the EIA Notification is with respect to stages of seeking environmental clearance for new projects and there are four stages provided therein, namely, stage1 is screening, stage2 is scoping, stage3 is public consultation and stage4 is appraisal. It is submitted that in view of the first stage with respect to screening, in the context of Clause 8(a) and 8(b) of the Schedule of EIA Notification, 2006, the project of respondent No.8 is category B1 project. It is submitted that respondent No.8 is in the process of putting up mega township project on 68 Hectares of land and the total builtup area is going to be 2,39,225=32 square meters and therefore, they fall within clause 8(b) of the Schedule provided in EIA Notification, 2006. It is submitted that therefore, the said mega township project requires mandatory environmental clearance from the State Level Environment Impact Assessment Authority. It is submitted that therefore, the removal of mangroves and filling up of creeks are absolutely illegal and unconstitutional in the context of EIA Notification, 2006.
[10.2] It is vehemently submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that without prior permission, including the mandatory environment clearance as well as CRZ clearance under the Environment Protection Act, 1985, the private respondents have in the land in question changed the landscape by resorting to reclamation, filling up of subcreeks of Tena creek which pass from the land in question and which are active intertidal creeks, large scale destruction of mangrove forests, bunding and leveling of the Page 33 of 57 C/WPPIL/52/2016 CAV JUDGMENT land and thereby disturbing the ecosensitive intertidal zone which is active.
[10.3] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that respondent No.8 has obtained the environmental clearance and the CRZ clearance dated 01.05.2017 during the pendency of the present petition. It is submitted that after the respondent No.8 in the land in question changed the landscape by resorting to reclamation, filling up of subcreeks of Tena creek which pass from the land in question and which are active intertidal creeks, after large scale destruction of mangrove forests, bunding and leveling of the land and thereby disturbing the ecosensitive intertidal zone which is active, they applied for the environmental clearance and the CRZ clearance which has been granted by the appropriate authority without considering the position prior to the date of the application and/or considering the position as on 01.05.2017 which was after the large scale destruction of mangroves and filling up of subcreeks of Tena creek.
[10.4] Shri Yagnik, learned Advocate appearing on behalf of the petitioners has submitted that the petitioners challenged the environmental clearance granted by the respondentState Environmental Clearance Appraisal Authority dated 01.05.2017 on the following amongst other grounds:
(i) That the environmental clearance is based on suppression of facts and suggestion of falsehood. It is submitted that the EIA report is based on deliberate and willful suppression of material facts and suggestion of falsehood and therefore even as per the EIA Notification (2006 as amended) and the Page 34 of 57 C/WPPIL/52/2016 CAV JUDGMENT condition of actual environmental clearance, the impugned EC is liable to be cancelled.
(ii) That the EIA report and all other material provided by respondent Pramukh Developers are;
(a) That based on satellite images and the physical assessment of the land in question as existed after the respondent no. 8 has without any prior permission whatsoever, resorted to reclamation, filling up of subcreeks of Tena creek which pass from the land in question and which are active intertidal creeks, large scale destruction of mangrove forests, bunding and levelling of the land in question.
(b) That between December, 2015 to February, 2016 the respondent no.8 filled up few subcreeks of the Tena creek which are active intertidal zones, destroying the mangrove forest which were in existence in the land because of the fact that the water of the Arabian Sea through the complex web of creeks and subcreeks that were passing from the land in question reaching the land in question and beyond which have been destroyed now, undertook large scale reclamation and levelling of the landscape so as to destroy the evidence of the fact that the land was intricately a part of the creeks and sub creeks filled with water of the Arabian Sea and are active inter tidal zones. As few subcreeks as well as part of the Tena creek passed form the land in question unless all such sub creeks are filed up and their existence destroyed no Environmental Clearance and CRZ Clearance could be granted at all, and therefore, willfully, deliberately and consciously the condition of the land as it existed prior to December, 2015 has Page 35 of 57 C/WPPIL/52/2016 CAV JUDGMENT not been dealt with at all in the EIA report which is nothing but false and misleading information.
(c) That the respondent Mamlatdar, Talati and Forest & Environment Department of the State of Gujarat have accepted that filing up of creeks has taken place, mangroves destroyed and the landscape has been changed completely. Neither the affidavits of the competent authority together with Panchnama which form a part of the record of this Hon'ble Court nor the material information, satellite images and photographs of the land in question placed on record by the petitioners in Writ Petition No.16 of 2016 and 52 of 2016 have been dealt with and discussed in the EIA report or even by the Environment Impact Assessment Appraisal Authority.
[10.5] It is submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that the EC and CRZ Clearance are received by fraud and therefore the impugned EC is ab initio void.
[10.6] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioner that the Environment Impact Assessment Appraisal Authority of the respondent State of Gujarat has not taken into consideration the land in question as it existed prior to December, 2015 as per its own record and has relied upon the record of the present petition before recommending the EC and CRZ clearances' and therefore the process of arriving at the recommendation is absolutely arbitrary, discriminatory and does not pay attention to the relevant factors and therefore in violation of Article 14 of the Constitution of India.
Page 36 of 57 C/WPPIL/52/2016 CAV JUDGMENT[10.7] It is further submitted that the action on the part of the private respondents to damage and destroy the mangroves and modify the actual levelling and plinth near the sea shore and that too without any prior environmental assessment is bad and contrary to the law and would result in devastation of the ecology and thereby pose a serious threat to the nearby residents as well as adjacent lands.
[10.8] It is further submitted that the coastal mangroves are the trees and shrubs that grow in saline coastal habitats, coastal mangroves are useful for the sea creatures for various purposes like breeding, shelter etc. It is submitted that the mangroves grow only on the shore, where the muddy soil is found and the sea water comes as per the tide at regular intervals making it favourable for such plantation. It is submitted that in fact the mangroves are an indication of fertility and also help conserve the land fertility.
[10.9] It is further submitted that the roots of the mangroves are a favourable habitat for oysters and help to impede water flow, thereby, enhancing the deposition of sediment in areas, where it is already occurring. It is further submitted that the fine anoxic sediments under the mangroves act as sinks for a variety of heavy (trace) metals which are scavenged from the overlying seawater by colloidal particles in the sediments. It is submitted that in areas of the world where mangroves have been removed for development purposes, the disturbance of these underlying sediments often creates problems of trace metal contamination of seawater and biota.
[10.10] It is further submitted by Shri Yagnik, learned advocate appearing on behalf of the petitioners that the mangroves protect the coast from erosion, surge storms (especially during hurricanes), and Page 37 of 57 C/WPPIL/52/2016 CAV JUDGMENT tsunamis. It is submitted that their massive root system is efficient at dissipating wave energy. It is submitted that likewise, they slow down tidal water enough that its sediment is deposited as the tide comes in and is not resuspended when the tide leaves, except for fine particles. It further submitted that as a result, mangroves help build their own environment because of the unique ecosystem and they give protection against erosion, they are often the object of conservation programs including national Biodiversity Action Plans.
[10.11] It is further submitted that the State of Gujarat has the 2nd highest mangroves vegetation in India and its is very important for the environment and the ecology as a whole. It is further submitted that it is calculated that tonnes of organic plant detrirus per hectare per year is produced by the withered mangroves leaves. It is submitted that these leaves are colonized by bacteria and fungi, which in turn is eaten by protozoa. It is submitted that all these give rise to rich particulate organic matter, forming the source of food the several animals like crabs, worms, shrimps, small fishes which in turn form prey to more than 60 species of larger fish living here. It is submitted that several species of small organisms live inside the proproot system, which form the food for post larvae, juvenile and adult fishes and prawns like penaeus indicus, P. Monodon, P.semisulcatus, Metapenaeus dobsoni and M. monocerous. It is submitted that mangroves are used as breeding grounds for the prawns like macrobrachium spp. and certain fish. It is further submitted that an earlier study of the food week pattern (prince Jeyaseelan, 1981) shows that 67 species of the fishes belonging to 51genera and 33 families are living in various areas where mangroves are found. It is submitted that in fact, the importance of mangroves have been highlighted time and again and in the case pertaining to the mangroves located at Kutch, even the committee came to be appointed and the Page 38 of 57 C/WPPIL/52/2016 CAV JUDGMENT reports were called upon and the steps were taken accordingly. It is submitted that the importance of mangroves, creek and other similar habitats and vegetations cannot be ignored in view of commercialization or any industrial development, it is our duty to respect the nature, otherwise the grave consequence are in waiting.
[10.12] It is further submitted that the satellite photos of the area in question clearly establish disappearance of large areas of mangrove green belt and also disappearance of number of big and small creek as well as sea shore area situated between the low tide and high tide of this coastal area due to reclamation of shore land for the purpose of development.
[10.13] It is further submitted that the inquiry commission during its investigation on floods found that due to various construction activities and filling up of drains and creeks substantial part of original water ways are blocked and thus it was recommended that development activities should not allow to obstruct existing major water ways or drains and creeks.
[10.14] It is further submitted that it was also found by the inquiry commission that various development activities has resulted into higher than natural ground levels which has created obstructions in flow of Tapi river into Tena creek, where the lands in question is situated. It is further submitted that since the natural flow of water was obstructed the water spilled into other plains of coastal region which resulted into floods.
[10.15] It is further submitted that the activities of the respondent no.8 has in a systematic destruction of mangroves with the ever vigilant eyes of the responsible offices of the state government is wide shut to the Page 39 of 57 C/WPPIL/52/2016 CAV JUDGMENT extent of collusion, the petitioners have no other alternative but to approach this Hon'ble Court.
[10.16] It is further submitted that the state machinery willfully ignored all the old maps of revenue department, old maps of forest department which shows the existence of centuries old mangroves forest in the area and also ignored rules and regulations framed from time to time for coastal regions.
[10.17] It is submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that the respondent authorities have not dealt with reasons given on behalf of the petitioner - organization in their communications and therefore the respondent authorities have completely overlooked the most rational and relevant factor which is resulting into continuous large scale destruction of mangroves, thus violative of Article 14 of the Constitution of India.
[10.18] It is submitted that the letters and representations made on behalf of the farmers as well as petitioner organizations to the concerned respondent authorities have been completely ignored and thereby no attention is paid to the relevant factors and hence the process suffers from arbitrariness, discrimination and irrationality and therefore the same is in violation of Article 14 of the Constitution of India and hence unconstitutional.
[10.19] It is further submitted that even under the Fisheries Act, 2003 of Government of Gujarat, it is clearly mentioned that no person shall destroy or collect mangroves. It is submitted that the importance of mangroves has been taken note of in various judgments of the Hon'ble Supreme Court as well as this Hon'ble Court.
Page 40 of 57 C/WPPIL/52/2016 CAV JUDGMENT[10.20] It is submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that the land in question is in CRZ1 as stipulated in CRZ Notification at Clause 7 and particularly falls within Clause 7 SubClause (I) (A)(a). It is further submitted that as per Clause 8 of the CRZ notification which provides for norms for regulation of activities permissible under this Notification, it is stated that no new construction for residential purpose is permissible and exceptions have been given such as projects relating to Department of Atomic Energy, Pipelines, Installation of weather radars, construction of trans harbor sealink and so and so forth. It is further submitted that therefore all activities subject to exceptions on the land in question is prohibited and if that be so the landscape in the land in question cannot be changed in any manner whatsoever. It is further submitted that from the Panchnama and the report of village Secretary at Annexure - F it is clear beyond reasonable doubt that mangroves beyond 1000 sq meters are being removed in a large scale manner though any activity is completely prohibited.
[10.21] It is further submitted by Shri Yagnik, learned advocate appearing on behalf of the petitioners that the satellite and the google images clearly show that few subcreeks are being blocked by bunding and by illegally storing sludge and thereby the inter tidal zone is artificially restricted and thereby restricting the flow of sea water. It is further submitted that these are the creeks and subcreeks which cannot be bunded and blocked in any manner whatsoever in view of Clause 3 of the CRZ Notification which completely prohibits land reclamation, bunding or disturbing the natural course of sea water. It is submitted that therefore the bunding as well as the blocking of subcreeks is absolutely illegal and unconstitutional.
Page 41 of 57 C/WPPIL/52/2016 CAV JUDGMENT[10.22] It is further submitted by Shri Yagnik, learned Advocate appearing on behalf of the petitioners that assuming for a while that the land in question falls within the CRZ3 then also if it is a part of inter tidal influenced water body with the presence of creeks then also the area around tidal influenced water body and the creeks as stated in the notification in CRZ3, is "no development zone".
[10.23] It is submitted that even as per CRZ3 subclause A (iii) or B no new construction residential in nature except reparation and construction of the existing houses can take place.
[10.24] It is submitted that however by any eventuality even if it is a private land if it falls within CRZ then in that case removal of mangroves and blocking of creeks is completely prohibited and therefore the same is illegal and unconstitutional.
[11.0] Present petition is vehemently opposed by Shri Mihir Joshi, learned Senior Advocate appearing on behalf of respondent No.8 Pramukh Organizers, LLP.
[11.1] It is submitted by by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the impugned permission/ environmental clearance and CRZ clearance by the appropriate authorities are absolutely just, proper and legal and have been granted after following the due procedure as required and after considering and having been satisfied that there is no breach of any of the provisions of any of the environmental laws.
[11.2] It is vehemently submitted by by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that as such, the petitioners did not challenge the EC and CRZ clearance by way of an appeal as provided Page 42 of 57 C/WPPIL/52/2016 CAV JUDGMENT under the National Green Tribunal Act, 2010. It is submitted that very belatedly and much beyond the limitation period for filing an appeal under the National Green Tribunal Act, 2010, the petitioners filed a Draft Amendment seeking to challenge the EC and CRZ clearances before this Court. It is submitted that the Division Bench allowed the Draft Amendment dated 09.10.2017 keeping the question of delay and/or alternative remedy open for consideration at the time of deciding the main matter. It is submitted that therefore, the present petition may not be further considered on merits and the same may be dismissed on the ground of limitation / delay and latches as well as on the ground of availability of alternative remedy by way of filing an appeal before the National Green Tribunal.
In support of the above, Shri Joshi, learned Counsel appearing on behalf of respondent No.8 has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group And Others - (2006)3 SCC 434 (Paragraphs 341 to 349) and State of M.P. And Others v. Nandlal Jaiswal And Others - (1986)4 SCC 566 (Paragraphs 24 and 25).
[11.3] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the entire case of the petitioners in respect of the subject land suffers from serious contradictions and the bona fides of the petitioner are questionable since
(i) in WP (PIL) No.52/2016, it is sought to be alleged that the subject land is a very valuable parcel of land and has been under valued for the purpose of arriving at premium amount and, on the other hand, in WP (PIL) No.16/2016, it is sought to be alleged that the subject land cannot be permitted to be developed by alleging that it is falling with CRZ and/or contains mangrove cover and/or subcreeks, and (ii) the aforesaid petitions raising these contradictory allegations are made at a Page 43 of 57 C/WPPIL/52/2016 CAV JUDGMENT grossly belated stage considering the fact that the subject land was allotted to SRNL in 1992 for industrial purpose, it was permitted to be mortgaged in the year 2012, it was sold to respondent No.8 in June 2015 pursuant to permission granted in May 2015 and development permission and NA permission were also granted in 2015. During the course of the aforesaid events, no authority or person has made any of the allegations which are now sought to be made by the petitioner belatedly before this Court.
[11.4] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the petitioner's allegation that the subject land contained/ contains creeks/ subcreeks of Tena creek which have been illegally and artificially blocked by respondent No.8 contrary to Clause 3 of the CRZ Notification, 2011, thereby restricting the intertidal zone and flow of sea water is ex facie incorrect and untenable.
It is submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that none of the official records which are on record indicate presence of any creek/ subcreek on the subject land. No authority has observed at any stage from 1992 till date that any creek/ subcreek is/was passing through the subject land.
It is submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the land is situated about 56 kilometers away from the sea. It is nobody's case that the Tena creek is/ was passing through or close to the subject land. In fact, the Tena creek is very far, about 56 kms away from the subject land.
It is submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the purported subcreek of Tena creek does not pass through the subject land, and it only passes next to the west portion of the subject land and a very small portion of the purported subcreek Page 44 of 57 C/WPPIL/52/2016 CAV JUDGMENT passes through the south portion of the subject land. In support of his submission, learned Senior Counsel has relied upon the satellite images of the subject land which are at pages 614616 of WP(PIL) No.16/2016.
It is submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that what is passing inside the land can at best be alleged to be rain water shallow gullies/ channels leading to the purported subcreek of Tena creek. However, in fact, to the best of the information and understanding of respondent No.8, these gullies / channels are in fact not naturally occurring but have been created on account of man made activities near the subject land. The subject land is surrounded by several agricultural lands and the agriculturists in this area have, over time, been digging up several large portions of land around their agricultural lands inter alia for obtaining fertile soil. This digging activity has resulted in formation of such gullies/ channels on account of rain water collecting and flowing out around such dug up areas or trenches and creating such gullies/ channels on account of the path of flow of such water further from such trenches. It is submitted that thus, these gullies/ channels are created on account of man made reasons. Learned Senior Counsel has referred to the photographs in support of his above submission.
It is submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that assuming without admitting that the gullies/ channels are in fact naturally occurring, such gullies/ channels are not covered under CRZ Notification, 2011.
It is submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that thus, no creek/ subcreek passes through the subject land as alleged (except to the extent as stated hereinabove) and it cannot be said that the subject land is in an intertidal zone and there Page 45 of 57 C/WPPIL/52/2016 CAV JUDGMENT is natural flow of sea water in the subject land.
It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the petitioner's allegation that the subject land falls within CRZ, and is covered by the CRZ Notification, 2011, that is falling in CRZI or at least CRZIII and that it is part of intertidal zone, that it is ecologically sensitive containing geomorphological features which play a role in maintaining integrity of the coast and creeks, are patently untenable.
[11.5] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that CRZ Notification, 2011 is applicable only to areas which are mentioned in the 5th unnumbered paragraph thereof. The classification of areas into CRZI to CRZIV is only with respect to areas which are firstly declared as CRZ areas as per the 5th unnumbered paragraph of the CRZ Notification, 2011. Therefore, it is only if a land falls under any of the categories mentioned in the 5th unnumbered paragraph of the CRZ Notification, 2011 that it can be said to be governed by the CRZ Notification, 2011 and would thereunder be categorized as CRZI, II, III or IV.
[11.6] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that as submitted earlier, the land is situated 56 kilometers away from the sea. It is therefore not falling within 500 mts from the High Tide Line (HTL) on landward side along with sea front and no authority has declared it to be falling within 500 mt from HTL. The subject land therefore does not fall in Clause (i) of the 5th unnumbered paragraph of the CRZ Notification, 2011.
[11.7] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the subject land is situated Page 46 of 57 C/WPPIL/52/2016 CAV JUDGMENT about 56 km away from Tena Creek. Even the purported subcreek of Tena Creek only passes next to the west portion of the subject land and a very small portion of the purported subcreek passes through the south portion of the subject land. Thus, except for that portion of the subject land through which the purported subcreek of Tena creek passes (and which is declared as CRZ), the respect of the subject land does not fall within Clause (ii) of the 5th unnumbered paragraph of the CRZ Notification, 2011.
[11.8] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that in any case, for considering whether any land falls within Clause (ii) of the 5th unnumbered paragraph of the CRZ Notification, 2011, it is necessary that the distance upto which tidal effects are experienced be clearly identified and demarcated in the Coastal Zonal Management Plan (CZMP). Nothing is produced on record to show that any such exercise of identification and demarcation has been carried out.
[11.9] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that likewise for considering whether any land falls within Clause (iii) of the 5th unnumbered paragraph of the CRZ Notification, 2011, it is necessary that Ministry of Environment and Forest denotes the "Hazard Line" taking into account tides, waves, sea level and shoreline changes. Nothing is produced on record to show that any such exercise has been carried out.
[11.10] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the subject land being 56 kms away from the sea cannot fall within the area between HTL and Low Tide Line (LTL) and is therefore no part of intertidal zone. No Page 47 of 57 C/WPPIL/52/2016 CAV JUDGMENT authority has declared it to be falling within the area between HTL and LTL. That the subject land therefore does not fall in Clause (iv) of the 5th unnumbered paragraph of the CRZ Notification, 2011.
[11.11] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that likewise, the subject land being 56 km away from the sea cannot fall within the water and bed area between the LTL to territorial water limit. There being no creek/ subcreek passing through the subject land (except to the extent stated hereinabove), the subject land cannot fall within the water and bed area between the LTL to the LT on opposite side of the bank of a tidal influenced water body. The subject land therefore does not fall in Clause (v) of the 5th unnumbered paragraph of the CRZ Notification, 2011.
[11.12] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the subject land is not covered by the same except to the extent of some area in the west portion of the subject land and some area in the south portion thereof considered to be within CRZ only on account of the fact that the purported subcreek of Tena creek passes next to and through the same respectively.
[11.13] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the TRZ clearance granted makes it clear that the restriction on development is limited to the aforesaid two portions of the subject land totally comprising 1.93 ha and the balance portion of the subject land is not covered under CRZ Notification, 2011.
Page 48 of 57 C/WPPIL/52/2016 CAV JUDGMENT[11.14] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that therefore in the present case, since the subject land, except to the extent of 1.93 ha, is not falling with any of the categories of the 5th unnumbered paragraph of the CRZ Notification, 2011, it cannot fall within any of the categories of CRZI to CRZIV of the CRZ Notification, 2011. Only 1.93 ha out of the subject land is covered by the CRZ Notification, 2011 and is therefore the only area which can fall within CRZI or CRZIII and be subject to restrictions contained therein. The said area of 1.93 ha has been subjected to restrictions under the CRZ clearance and no construction is permitted thereon.
[11.15] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that land cannot be termed as "ecologically sensitive" or as containing "geomorphological features which play a role in maintaining integrity of the coast and creeks", which are merely terms borrowed from the CRZI categorization in the CRZ Notification, 2011 and are not descriptive of the subject land, especially when the subject land, except to the extent of 1.93 ha, is not CRZ land at all.
[11.16] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the subject land is not part of any "intertidal zone" which is a term defined in Clause (iv) of the 5th unnumbered paragraph of the CRZ Notification, 2011 and which means the land area between HTL and LTL.
[11.17] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that even the petitioners' allegation that the subject land receives seawater and was covered with Page 49 of 57 C/WPPIL/52/2016 CAV JUDGMENT mangroves beyond 1000 sq.mt., which have been removed illegally by respondent No.8 are also not correct and tenable.
[11.18] It is submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the subject land does not have any purported creek/ subcreek passing through (except to the extent stated hereinabove) and does not receive seawater. In fact, the subject land was allotted as industrial land and at no stage prior to or after the allotment has it been observed by any authority that the subject land received sea water.
[11.19] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that it is not correct to allege that the entire subject land was covered with mangroves or that there were mangroves beyond 1000 sq.mt. Or that mangroves beyond 1000 sq.mt. have been removed illegally by respondent No.8 since (a) none of the records pertaining the subject land mention presence of large scale mangrove cover, (b) when land was allotted for industrial purpose to respondent No.7 in the year 1992, the authorities had observed that Baval (Prosopis juliflora) trees were found only in a certain portion of Block No.1056 (admeasuring 40 hectares) and such portion was not allotted to respondent No.7 and no authority observed large scale mangroves, (c) when the authorities determined the premium payable for the subject land during 2013 and 2014, the authorities had visited the site and had prepared reports and had observed in those reports that the subject land had tine bushes of Baval (Prosopis juliflora) trees. No authority observed presence of large scale mangroves, (d) the Mangrove Atlas of Gujarat State prepared by the Gujarat Ecology Commission along with Bhaskaracharya Institute for Space Applications and Geo Informatics contains details of mangroves found in the different regions Page 50 of 57 C/WPPIL/52/2016 CAV JUDGMENT of Gujarat. As per the said report, in Surat District, large mangrove patches are found in Dandi, Paradi and Karanj villages of Olpad Taluka and Dummas and Rajgiri of Chauryasi Taluka and it further states that no mangrove area in this District is notified as Reserved Forest under the Indian Forest Act, 1927.
[11.20] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the photographs and satellite images produced by the petitioners showing a green cover over the subject land do not and cannot establish that the subject land was covered by mangroves. That the experts have opined that using satellite data only, it is not possible to differentiate between various coastal and terrestrial vegetations like mangroves, sea grass, acanthus, etc. It is submitted that thus, no such presumption is warranted on the basis of photographs and satellite images. Moreover, the latitude and longitude in photographs can be manipulated. It is submitted that therefore, producing some photographs cannot be conclusive evidence of the allegations being made by the petitioners. It is submitted that the photographs produced by the petitioners show some sparse vegetation on a small portion of some land and such photographs are not evidence that the subject land had a large scale mangrove cover. That therefore, the photographs and satellite images produced by the petitioner neither establish presence of large quantities/ areas of mangroves over the subject land nor do they establish large scale disappearance/ removal of mangroves over the subject land.
[11.21] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that looking to the factual position as narrated herein, it is incorrect to allege that there was any large scale destruction of mangroves on the subject land. It is submitted Page 51 of 57 C/WPPIL/52/2016 CAV JUDGMENT that there is no prohibition in law in regard to the activities undertaken by respondent No.8 over the subject land.
[11.22] It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the challenge to the EC and CRZ clearance dated 01.05.2017 is also not sustainable as the petitioners, instead of availing the alternative remedy of filing an appeal before the National Green Tribunal within the stipulated period of limitation, filed a Draft Amendment, much after the expiry of the period of limitation, seeking to challenge the same. It is submitted that the Draft Amendment itself was grossly delayed and was not even pressed by the petitioners for a very long time and it was only on 05.04.2018 that it was allowed subject to the respondents' right to take all available objections including the objection regarding alternative remedy and delay.
It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the challenge to the EC and CRZ clearance is completely justified on merits since it cannot be argued that the subject land which was originally allotted as industrial land, which does not fall within CRZ and whose development would not have any bearing on the Tena creek or its purported subcreek, cannot or ought not to be cleared for development.
It is further submitted by Shri Joshi, learned Counsel appearing on behalf of respondent No.8 that the challenge to the EC and CRZ clearance is based on conjectures and surmises and cannot be sustained unless supported by admissible evidence in support of the petitioners' allegations, which is completely lacking in this case.
[12.0] Shri Maulik Nanavati, learned Advocate has appeared on behalf of the newlyadded respondent. Various affidavitsinreply are Page 52 of 57 C/WPPIL/52/2016 CAV JUDGMENT filed on behalf of respondent No.10 - State Level Environment Impact Assessment Authority ("SEIAA"). Last additional affidavit filed on behalf of respondent No.10 is dated 07.05.2018.
[12.1] It is submitted by Shri Nanavati, learned Advocate appearing on behalf of respondent No.10 that now and subsequently, and during the pendency of the present petition, SEIAA has issued show cause notice upon respondent No.8 by which respondent No.8 - Pramukh Organizers, LLP is called upon to show cause as to why the authority should not take action under Clause 8(vi) of the EIA Notification, 2006. The said show cause notice has been issued on going through the information and data submitted by respondent No.8 and at the time of grant of EC and having primafacie found that the information of presence of Mangroves on project site was not mentioned at any stage. It is submitted that the authority - SEIAA has also taken note of the criminal case filed by the Regional Officer, GPCB, in the Court of learned JMFC, Surat, dated 19.04.2018 for the violation of EIA Notification, 2006, where cutting of mangroves is reported.
[12.2] It is submitted by Shri Nanavati, learned Advocate appearing on behalf of respondent No.10 that therefore, the show cause notice has now been issued upon respondent No.8 to show cause as to why the Environmental Clearance granted to it on its application under cover letter dated 13.05.2016 be not cancelled on the ground of "deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application".
An affidavitinreply is also filed by respondent No.9 - GPCB dated 07.05.2018 (Page 729763). In the said affidavitinreply, it is pointed out that the Gujarat Pollution Control Board has received a complaint Page 53 of 57 C/WPPIL/52/2016 CAV JUDGMENT from Brackish Water Research Centre, Olpad, District: Surat, regarding violation of provisions of CRZ Notification, 2011, Forest Conservation Act, etc. It is stated that upon receipt of the said complaint dated 28.12.2015 immediately inspection was carried out on 30.12.2015. A copy of the said inspection report was provided to the concerned person of the said Project and thereby written instructions were given to him to submit necessary details and it was also instructed not to carry out any work which had the effect of resulting in breach of provisions of EC and CRZ. It is stated that thereafter, after considering the various complaints received and after due deliberation, the Gujarat Pollution Control Board had filed a compliant against respondent No.8 under the provisions of the Environment Protection Act for violation of the EIA Notification as well as CRZ Notification, as no further action was taken by the Forest Department in spite of the decision of the Gujarat Coastal Zone Management Authority. It is submitted that the said complaint is registered as Criminal Case No.18580/2018 before the Court of Chief Judicial Magistrate, Surat. It is stated that therefore, considering the totality of the facts and circumstances of the case, appropriate orders may be passed.
[13.0] Heard learned Counsel appearing for the respective parties at length.
At the outset, it is required to be noted that what is challenged in the present Public Interest Litigation Petition is the environment clearance and CRZ clearance. Number of submissions have been made by learned counsel appearing for the respective parties on whether on the land in question, mangroves were there or not. It is the specific case on behalf of the petitioners and it is specifically alleged that the private respondents have changed the landscape in question by resorting to reclamation, filling up of subcreeks of Tena creek which Page 54 of 57 C/WPPIL/52/2016 CAV JUDGMENT pass from the land in question and which are active intertidal creeks, large scale destruction of mangrove forests, bunding and leveling of the land and thereby disturbing the ecosensitive intertidal zone which is active. Number of material, including the Report of the Forest Department and other relevant material have been relied upon in support of the above. On the other hand, the private respondents in whose favour the environment clearance and CRZ clearance have been issued are denying the aforesaid allegation.
[13.1] However, considering the relevant material on record and even the case on behalf of the SEIAA, it appears that what was considered by the SEIAA and the appropriate authority was the position as on the date on which the applications were given for such clearances, which, according to the petitioners, were after the damage was done and after large scale destruction of mangrove forests, bunding and leveling of the land and closing the intertidal creeks - subcreeks of Tena creek. Therefore, as such, the appropriate authorities, including the SEIAA are required to consider in detail after holding an inquiry the allegations made by the petitioners recorded hereinabove, more particularly, with respect to the allegation that the private respondents have in the land in question changed the landscape by resorting to reclamation, filling up of subcreeks of Tena creek which pass from the land in question and which are active intertidal creeks, large scale destruction of mangrove forests, bunding and leveling of the land and thereby disturbing the eco sensitive intertidal zone which is active. At this stage, it is required to be noted that even the Forest Department has also filed a complaint pending in the Court of learned Chief Judicial Magistrate for violation of forest laws and subsequently, even the SEIAA has also issued the show cause notice upon respondent No.8 to show cause as to why the environment clearance granted to it on its application under cover letter Page 55 of 57 C/WPPIL/52/2016 CAV JUDGMENT dated 13.05.2016 be not cancelled on the ground of "deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application". Therefore, considering the overall facts and circumstances of the case and as a detailed inquiry/ investigation is needed, we are of the opinion that the matter requires reconsideration by the appropriate authority, more particularly, the SEIAA. If the allegations are found to be true, in that case, they are very serious. Cutting of mangroves cannot be permitted as it ultimately affects the environment and the ecological balance. No one can be permitted to play with nature and ultimately affect the future generations. Similar is with respect to creeks / subcreeks. To stop/ close the creeks / sub creeks is also not in the larger public interest and it can be said to be against the nature. Therefore, before granting the environmental clearance and the CRZ clearance, a detailed scrutiny/ investigation is required and such environment clearance and/or CRZ clearance cannot be granted mechanically, which seems to have happened in the present case. Under the circumstances, we are of the firm opinion that let the impugned clearances be quashed and set aside and the matters be remanded to the appropriate authority, including SEIAA for fresh decision in accordance with law on merits and after holding a detailed investigation/ inquiry and after giving opportunity to all the parties, including the petitioners and respondent No.8.
[14.0] In view of the above and for the reasons stated above and without further observing anything on merits in favour of either parties and for the reasons stated above, we set aside the impugned environment clearance and CRZ clearance and we remand the matter to the appropriate authorities including the State Level Environment Impact Assessment Authority for fresh decision on the application Page 56 of 57 C/WPPIL/52/2016 CAV JUDGMENT submitted by respondent No.8 and we direct the appropriate authorities, including the SEIAA to take appropriate decision in accordance with law and on merits after holding a detailed investigation/ inquiry, more particularly on the allegations made by the petitioners recorded hereinabove and after giving fullest opportunity to all the concerned, including the petitioners as well as respondent No.8 and other appropriate concerned authorities, including the Forest Department, etc. Rule is made absolute accordingly to the aforesaid extent so far as Writ Petition (PIL) No.16/2016 is concerned.
Sd/ (M.R. SHAH, J) Sd/ (A.Y. KOGJE, J) Ajay** Page 57 of 57