Gujarat High Court
Shree vs Union on 26 August, 2010
Author: Chief Justice
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
Print
SCA/3477/2009 27/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3477 of 2009
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE AKIL KURESHI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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SHREE
MAHUVA BANDHARA KHETIWADI PARIYAVARAN BACHAV SAMITTEE & 1 -
Petitioner(s)
Versus
UNION
OF INDIA & 5 - Respondent(s)
=========================================
Appearance :
MR
BHUSHAN B OZA for
Petitioner(s) : 1 - 2.MR AJ YAGNIK for Petitioner(s) : 1 - 2.
None
for Respondent(s) : 1, 5,
MR RITURAJ M MEENA for Respondent(s) :
2,
MR KB TRIVEDI, AG with MR PK JANI, GP and MS SANGITA VISHEN,
AGP for Respondent(s) : 6.
MR.DA DAVE, SR. ADV. for M/S. TRIVEDI
& GUPTA for Respondent(s) :
4,
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 26/04/2010
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. With ever expanding cities and urbanization at a pace not imaginable before, constant need for growth and desire of citizens in general to reach higher end of income brackets, man - animal conflict sometimes spills over to man and man conflict. Requirement of growth, urbanization and industrialization on one hand, preservation of environment and common resources of the community on the other, has given rise to the concept of sustainable growth, a concept which is as difficult to define as it is often times difficult to implement due to the very nature of complex, varying and for-ever conflicting interests. One such issue of considerable importance has reached this Court for resolution of the legal issues arising therein by way of present public interest litigation.
2. Petitioners who are claiming to be espousing the interests of large number of agriculturists and other residents of cluster of villages around and including Samadhiyala village of Mahuva Taluka have filed this petition opposing setting up of a cement plant with captive electricity generation plant proposed by respondent No.4, M/s. Nirma Limited. The main grievance of the petitioners is that the land alloted by the Government for setting up of such a plant is situated right in the middle of sweet-water reservoir created by construction of 250 meters long wasteweir called Samadhiyala Bandhara. It is the case of the petitioners that the proposed site of the plant consists of part of land of Bandhara Reservoir. It is also the allegation of the petitioners that rest of the land falls in the catchment area of the reservoir and construction of the cement plant would in short time destroy the entire reservoir.
3. On the other hand, the case of the respondents is that apprehensions of the petitioners are ill-founded. Series of reports have been collected by the Government from expert bodies. Certain safeguards have been provided. There is no danger to the reservoir. In fact, the capacity of the reservoir upon implementation of the recommendations of the Expert Committees as directed by the Government would increase. Setting up of cement plant would provide employment to many people in the region.
4. Looking to the fact that the outcome of this litigation, one way or the other, would affect large number of people, we have invested considerable time in hearing the arguments of the learned advocates for the parties. Various issues have been presented before us for our consideration. Our prime concern, however, has been to protect the sweet water reservoir created by construction of Samadhiyala Bandhara. Undoubtedly, progress and development would require construction of factories. Such factories would inevitably increase production and generate employment in a remote rural area which is dependent mainly on agricultural activities, which in turn depends on unpredictable and erratic monsoons and inadequate other sources of irrigation. It will also mean perennial source of income for many. However, such development or generation of income cannot be at the cost of permanent damage to common community resources. It will be sad if a small farmer deprived of his rightful source of irrigation is turned overnight into land-less unskilled labourer forced to seek employment in some factory constructed on the land which till the other day was his agricultural field. At the same time, if without affecting the reservoir in any significant manner, it is possible to set up the factory, surely in the name of environment or any such similar slogan, such development cannot be stopped.
5. With the above parameters in mind, before adverting to the rival submissions, some facts need to be noted.
5.1 Petitioner No.1 is an Association of persons formed for the protection of Samadhiyala Bandhara Reservoir. Petitioner No.2 is an agriculturist in the locality. As already noted, the petitioners are opposing the setting up of cement plant by Nirma Limited in Mahuva Taluka. They have made following substantive prayers :-
(A) To issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents, their agents and servants to restore that part of the land with Samadhiyala Check-dam of Padhiyarka and Doliya Villages of Mahuva Taluka and Gaucher Land containing with two check-dams and a natural lake of Vangar Village of Mahuva Taluka of Bhavnagar District to the respective Panchayats from the possession of the respondent No.4, Private Company.
(B) To issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent no.3 to make the necessary changes in the record to incorporate the water reservoir, lakes and dams as per the application of the petitioner No.1, dated 9th March 2009;
It is the case of the petitioners that Nirma Limited has been granted land by the Government which forms part of the Samadhiyala Reservoir. Such allotment of land is without proper inquiry and construction of cement factory would effectively destroy the catchment area of the reservoir and thereby dry up the lake in a short time. It is the case of the petitioners that Samadhiyala Bandhara Reservoir is a water body and no part of the water body can be divested for any purpose as directed by a Division Bench of this Court in the case of Shailesh R. Shah v. State of Gujarat & ors., 2002(3) GLH
642.
6. From the material on record, it can be gathered that near Samadhiyala village in Mahuva Taluka, there is a creek through which the sea-water during high tide used to enter the main land. This caused persistent problem of salty water entering in the region causing salinity problem in the area. This is also an area where during monsoon, through rivulets or other small tributaries, excess rain water would drain into the sea. The Salinity Division of the State of Gujarat, therefore, envisaged a plan to construct a wasteweir of 250 meters. This according to the proposal would on one hand prevent sea-water from entering the creek and on the other side of the weir, the rain water through rivulets and other minor sources would get collected. This construction of weir would not only arrest the sea water entering the main land and thereby solving the salinity problems, but would also create a sweet water reservoir with an estimated capacity of 62.31 million cubic feet (M.C.Ft.). The report further suggested that there is very fertile land in the region, but due to salinity ingress and less rainfall, the water table has gone down and water has become salty. With the above purpose in mind, Samadhiyala Bandhara was constructed. It had water storing capacity of 62.31 M.C.Ft.
6.1 The land going in submergence mainly came from the Government waste land, part of gaucher land of surrounding villages, which the Village Panchayats agreed to surrender to the Government and small portion came from private lands. The Bandhara was constructed in the year 1999.
7. In the year 2004, respondent No.4, Nirma Limited, approached the Government with a request to allot 280-89-42 hectors of land for its cement plant and captive power project in Padhiyarka, Dodiya and Vanger villages of Mahuva Taluka of Bhavnagar District. The Government vide its order dated 16.4.2008 alloted a total 268-86-52 hectors of land on certain conditions.
7.1 There was resistance to the said allotment. Since admittedly nearly 100 hectares of land alloted to Nirma Limited was part of the Bandhara Reservoir, the Government decided to obtain a report from the Salinity Division on the impact of construction of factory on the Bandhara Reservoir. A detailed report, a copy of which is produced at Annexure U at page 198 of the compilation was submitted. The report notes that due to handing over 100 hectares of reservoir land to the Company, there would be reduction of capacity of reservoir to the extent of 21.18 million cubic feet. In view thereof, the report recommended taking following measures.
4.1) During the spot visit carried out on 21.09.2005 as clarified in the recommendations placed forward, on both the sides of the drowning down land drain A and drain B any flow does not seems to be obstructed in any way. Besides, the rain water from area situated in the middle of the above area can easily be brought by connecting drain C in the dam.
4.2) As per the previous recommendations the water that gets stored in the above land from that there is very much likely possible that there can be decrease in the strength of the dam and that can be compensated with the excavation work that can be carried out in areas which are shown in X in the map enclosed herewith, details thereof have been clarified in above paragraph-3.
4.3) It does not seem that there will be any kind of obstruction in the flow towards the dam on account of construction work of Nirma Company liable to be carried out for their cement factory in the above land in question.
4.4) As the suggested factory is adjoining to the dam, a consent letter will be required to be taken from the Nirma Company Ltd. that it will not release its industrial polluted water in the above stated dam.
4.5) As the above suggested factory is adjoining to the Nirma Company Ltd., the company shall not utilize the potable water through the dam or bore directly or indirectly in any way and regarding the same an assurance shall be obtained from the Nirma Company Ltd. Besides before making any bore in this area the company shall obtain permission from the department well in advance.
4.6) Whatever construction work that are liable to be carried out pertaining to the storing capacity of the dam on account of the suggested cement factory all such kind of construction work shall be carried out under the discussion of this department and under its direct supervision.
4.7) The responsibility of maintenance, investigation, examination and preserving and repairing of suggested drain A, B, C and the work of D-salining etc. shall be borne by the Nirma Company Ltd. And each year the Nirma Company shall carried out the above work and regarding the same the final decision will be of the Executive Engineer, Saline Control Division, Bhavnagar.
4.8) The Company will have to keep its land surface at maximum 0.5 meter high from the dam level i.e. of 5.42 meter so that at the time of flood situation the company existing construction does not come under drowning down land and according the company will have to make arrangement for its roads and etc. in order to obtain maximum level of 6 meters instead of necessary basin regarding the dumping work the material shall be obtained outside rather than from the dam itself.
4.9) The face to face surface is 3.82 meters hence, by dumping with necessary sand and mud in the land in question, in suggested land and on reaching 3.82 meters level the perry ferry of the water bodies will come out and as per the directions given by the Honourable High Court of Gujarat in Special Civil Application No.10621/2000 dated 02.08.2002 regarding the water bodies perseverance at page No.48 para No.24(G) of the said judgment after prescribing the areas of he water bodies perry ferry decision can be taken. Further an assurance shall be obtained from the company that in the land within 60 meters nearer to the banks of the dam the company will use the land only for forestation or for residential purpose only.
Thus, in this way after taking the above matters for consideration as per the previous recommendations restricted to the terms and conditions as mentioned hereinabove in paragraph No.4 and taking the above possibilities at Paragraph No.3 into consideration it is hereby opined that, there is no difficulty in making recommendation to the appropriate department for releasing the land for allotting the same to the industrial house.
8. Above measures did not satisfy the opponents of the Project. There was considerable resistance from certain quarters. The entire issue was referred to a High Level Committee constituted for the said purpose headed by Shri S.K.Shelat, Adviser to the Chief Minister as the Chairman. The Committee consisted of :
1. Shri S.K.Shelat Chairman Advisor to Chief Minister, Sachivalaya Gandhinagar.
2. Shri S.J.Desai Member Secretary Narmada Water Resources Water Supply & Kalpsar Department.
3. Shri C.L.Meena (IAS) Member Chairman Gujarat Pollution Control Board
4. Shri A.B.Panchal Member Ex.Collector Bhavnagar.
5. Shri K.N.Patel Member Retired Additional Director Geology & Minerals Department
6. The Commissioner Convener Geology & Minerals Department.
The Committee held public hearings of interested persons to present their cases. Eventually, the Committee submitted its report dated 4.8.2009, copy of which is produced at page 582 of the compilation. The report is based on voluminous material collected by the Committee including technical data and reports submitted by various agencies. The Committee recorded that out of the land of Samadhiyala Bandhara, total 222.0624 hectares has been reclaimed out of which 100 hectares of land forms part of the submergence area of Bandhara whereas 122.0624 hectares of land was being kept open looking to the inflow of the water. The committee considered the representations, suggestions and objections from various quarters and gave its conclusions as under:
9.0 Conclusions of Committee:
Considering the submissions of Hon'ble MLA, submissions of representatives of public, submission of M/s.Nirma Ltd., various technical opinions and procedures done by various departments, Committee has reached to following conclusion.
1. With reference to the submission of Hon'ble MLA regarding the inclusion of Technical Experts, Committee is empowered by the provisions of Government Resolution to take help of experts. Accordingly, for questions regarding agriculture, Director, Agriculture is included as an expert of agricultural field. Over and above, with regard to technical issues raised in submissions, opinions of established technical institutions have been obtained.
2. The scheme of Irrigation Department about increasing the depth in certain areas of dam for balancing the water storing capacity of dam which has reduced because of allotment of part of land of submerged area of Samdhiyada dam to Industrial Department and for transporting the water from catchment area to the dam, has been certified to be just and proper by the technical institution of Government of India, Wapcos Limited , Gandhinagar. Further, the institution has stated that by digging upto the depth of 2.4 meter R.L. At the noted place in dam area, there is no possibility of sea water ingress in dam from the bottom and by making depth in proposed area, storing capacity can be increased upto 21.23 million cubic foot.
3. As per the study of Director (Agriculture), water level of wells of surrounding areas have increased due to Nikol, Kalsar and Samdhiyada dams. There is change in cultivation of crops, cultivation area has increased but no considerable improvement in reduction of salinity of water of wells has been noted. Over and above that, through lift irrigation, maximum 23 hectares of land is irrigated at village Dodiya, which as compared to planned area of 150 hectares of dam is only 15%.
Land of no private land holder / farmer is included in the factory area so, there is no possibility of agriculture getting affected in that area. Out of the 3460 hectare area of mining under LOI, 2871 hectare area is of the private land holder/farmers which Nirma has to purchase from the private farmers as per their willingness. Government will not have to acquire these lands. If the farmers think it proper then they may sell these lands to Nirma as per the existing rules of the State.
4. As per the primary report of NEERI for mining area, M/s.Nirma Ltd. Have to conduct the procedure. It is the opinion of the committee that maintenance of environment should be done as MOEF guidelines as well as EIA/EMP compliance and suggested by NEERY on following points.
(1) Prevention of salinity ingress (2) Restoration of mines area (3) R and R Plan (Rehabilitation and Resettlement Plan).
5. Committee recommends to include the study in EIA report about threat to existence of various wild animals in mining area. It is hereby instructed to include this issue in the public hearing with regard to environment.
6. As stated in para 7.2, 120 hectares of mining lease area of Kalsar and Naip village, the principle approval of which has been granted, is away from the plan of Nirma Ltd. And it being small as compared to the area, if it is cancelled then there is no chance of arising of reduction in capacity of plant to be established.
7. Considering the availability of limestone in sea belt area of Saurashtra and development of small ports, there are ample opportunities of transportation and export of cement to other States, which cannot be overlooked. Thus, if cement industry is developed on this sea belt then there are ample opportunities of local employment and as a result there are circumstances that may lead to fast development of this area. So, in this context, along with development of cement industry, newly establishing industries will have to follow the legal provisions of prevention of environment. In past there had come opportunity of establishing cement industry but because of local objection the said industry was shifted to other place Kodinar/Rajula area. Committee has also noted in industrial development in talukas of Kodinar and Rajula.
8. In cement industry, indirect employment arises more as compared to direct employment and considering the fact that financial condition of surrounding areas also get improved, the Committee recommends for establishment of cement industry. So, it instructs the industries to strictly follow the legal provisions of prevention of environment along with the establishment of industries.
9. Committee recommends to make arrangement so that sweet water can be stored against the sea water ingress into mines because of mining work in mining area. By doing this, the salinity proportion in wells of this area will reduce and there are possibilities of increase in fertility of remaining land of mining area.
8.1 The Committee suggested following alternatives:
10. As a result of study conducted by the Committee, it submits the following three alternatives for consideration of Cabinet Committee of the Government.
(A) Alternative of establishing cement plant in 268 hectare area as per the submission of M/s.Nirma Ltd.
Following are the conclusions of the Committee with regard to alternative of establishing cement plant in 268 hectares of area.
Wapcos Ltd. has given the technical opinion that there will not be any major change with regard to water storing capacity and salinity ingress by this plant. Advocate General has given legal opinion that water body is not notified as water body. Considering the opinion of Director (Agriculture) with regard to crops, quality of water and irrigation, agriculture would not be affected by the land of factory. Agriculture in lands of private land holders of 2,871 hectares of land out of 3460 hectares of mining area will be affected. But the concerned farmers will have to willingly sell the land to M/s.Nirma Ltd. Company will have to follow the conditions of MOEF Environment Clearance obtained for the plant, for prevention of environment. MOEF Clearance is pending for mining area. The conditions that may be imposed in that will have to be followed by the Company. Over and above that, NEERI will have to fill the deficiencies shown in its report.
But, 100 hectare land of submerged area of Samdhiyada dam does not get open by this alternative therefore, public agitation is likely to continue. Feeling of public satisfaction for project does not arise with the help of this alternative. S.C.A.No.3477/2009 filed by Shri Mahuva Dam Agricultural Environment Protection Committee in Hon'ble Gujarat High Court is pending.
(B) Alternative suggested by Nirma Company to establish cement plant in remaining 214 hectare area after deducting 54.295 hectar area from 268 hectar area.
M/s.Nirma Ltd. has shown consent for establishing cement plant on remaining part of land after deducting 54.295 hectare land out of the allotted 268 hectar land which is attached with rea of dam, as a result of which construction of cement plant can be done on the decided place. As also balancing the water storing area, area that of original area can be maintained.
100hectar land of submerged area of Samdhiyada dam does not get open by this alternative. By giving back of 54.295 hectar area by the company, surrounding farmers will not have any benefit because on all its three sides there is plant and mining lease area of M/s.Nirma Ltd. So, in future this area will be useful for the company itself. Further, the main issue in Special C.A. filed before the Hon'ble Gujarat High Court is of reservoir which will continue.
(C) Alternative suggested by NCCBM to establish the cement plant in 168 hectar area:-
Renowned institution like NCCBM, after detailed study, has given technical opinion to establish plant in 168 hectar area after deducing 100 hectar area.
Nirma Ltd. has shown its incapability to accept this alternative because financial arrangements for project, raising of experience and other facilities, they after starting with 1.5 million ton at first stage want to take it to 6.0 million ton stage wise. Over and above that, Company has clarified that there being chances of direct effect on financial capacity of the project by change in plan lay-out, it is really difficult to implement the request because the project with the proposed request can only be established after purchasing land for noted railway line and after removing existing electricity line, water pipeline, school, etc. which will halt the entire project for a considerable period of time.
Committee believes that considering the alternative given by renowned institution like NCCBM, company can start the plant of 1.5 million ton at first stage and because of that naturally public objections will decrease and there are possible chances for the company to get land willingly for mining purpose. The entire agitation against the project and the present public feelings for Samdhiyada dam will also get reduced. NCCBM after examining all aspects have given its opinion. It also requires to be taken into consideration that there is no mention with regard to coke oven plant in the land given by the Collector, Bhavnagar. So, Company shall think to establish the coke oven plant near soda ash project of Nirma Ltd.
Out of these alternatives, whichever is decided, the principle approval which has been granted for 120 hectare area of Naip/Kalsar under the mining lease, is recommended to be cancelled as shown in the conclusions above.
9. The Government acted upon the report of the Shelat Committee and by its order dated 8.12.2009 directed the Company to return 54 hectares of land which formed part of Samadhiyala Bhandara. The order also requires the Company to deepen 40 hectares of the said land which according to the Government would ensure increase in the water carrying capacity of the Reservoir by 22.7%. The order requires the Irrigation Department to demarcate the remaining 214 hectares of land to be alloted to the Company.
10. The Company has accepted the said formula and agreed to accept the land minus 54 hectares which the Government has cancelled from its allotment. The Company has also agreed to deepen the land as per the order of the Government dated 8th December 2009. It may be noted that this is in addition to 75 hectares of Government waste land, which the Company is required to deepen as part of the Reservoir, the Company has also agreed to provide for three different channels of approximately 13 meters wide from three sides of the proposed site of the factory to ensure free flow of water from surrounding areas into the Reservoir.
11. Learned counsel Shri AJ Yagnik for the petitioners vehemently submitted that the allotment of land to the Company for cement factory is wholly illegal. Taking us through various documents, maps and satellite images of the area in question, he contended that the land allotted to Nirma Limited is part of the waterbody and in view of the decision of the Division Bench in the case of Shailesh R. Shah (supra), no part of such land can be alienated much less granted to private companies.
He further contended that satellite images clearly show that water gets collected during monsoon where the land has been alloted to the Company. He contended that alternative suggested by the respondents to compensate for the loss of land and inflow of water are not adequate. He further contended that applying the doctrine of public trust and access to community resources requires that the allotment of land be cancelled. He further contended that contrary to the directions issued by the Division Bench of this Court in the case of Shailesh R. Shah (supra), the State has not even notified Samadhiyala Bandhara as a water body.
11.1 Counsel on both sides have cited several decisions before us. However, not to make this judgment bulky and to avoid citations of several decisions on the same issue, in this order we refer only those decisions on which the counsel laid more emphasize.
11.2 Much stress has been put on the decision of this Court on waterbodies in the case of Shailesh R. Shah (supra) wherein the Division Bench has directed, inter alia, that the State Government or its Area Development Authorities, Local bodies will protect, maintain and preserve all the waterbodies in the State and further that they will not alienate or transfer or put to any use other than as waterbodies.
11.3 Reliance was also placed on a decision of the Supreme Court in the case of M.C.Mehta v. Union of India, (1997) 3 SCC 715 herein the Apex Court stressed the requirement to protect and improve forest, lakes, wildlife, etc. stating and reiterating that principle of sustainable development and precautionary principle.
11.4. Reliance was placed on a decision in the case of M.C.Mehta v. Kamal Nath and others, (1997) 1 SCC 388 where the Apex Court stressed the importance of ecology and public trust doctrine. On that basis, lease granted by the Government on various land for commercial purpose to a private company was quashed.
11.5 Reliance was placed on a decision in the case of Intellectuals Forum v. State of A.P., (2006) 3 SCC 549 wherein the Apex Court set aside the allocation of tank bed land by the State Government for construction of houses. The Supreme Court stressed the requirement of conservation of natural resources. Reliance was also on a decision of the Hon'ble Supreme Court in the case of Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647 pertaining to the issue of pollution caused by industries wherein it has been observed that while industries are vital for country's development, principle of Sustainable Development has to be adopted as a balancing concept. The counsel also relied on a recent decision of the Apex Court dated 5.4.2010 in Civil Appeal No.52 of 2008 in the case of M/s. Jayabheri Properties Pvt. Ltd v. State of Andhra Pradesh and others wherein the issue of construction outer ring road connecting Hyderabad and Secunderabad cities disturbing waterbodies was involved.
12. Learned Advocate General appearing for the State Government stated that only after collecting proper reports from experts, the land was allotted to respondent No.4. Even thereafter, required safeguards have been provided. Further reports were called for. Acting on S.K.Shelat Committee's report, allotment of 54 hectares of land has been cancelled. Several measures required to be taken by the Company would ensure the capacity of the reservoir would increase.
12.1 He relied on a decision of the Apex Court in the case of Susetha v. State of T.N. And others, (2006) 6 SCC 543 wherein the Apex Court observed in para 20 as under:
20.
The Court has not, in the aforesaid decisions, laid down a law that alienation of the property held as a public trust is necessarily prohibited. What was emphasised was a higher decree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogan, it is required to be implemented taking a pragmatic view and not on ipse dixit of the court.
13. Learned counsel Shri Dushyant Dave appearing for Nirma Limited opposed the petition contending, inter alia, that no part of the alloted land to Nirma Limited is part of waterbody. He further contended that the Company has invested crores of rupees and at this belated stage, the petitioners have raised objections which should not be entertained. Reservoir was constructed only for controlling salinity and for ground water recharge. Our attention was drawn to the following decisions:
In the case of D.L.F. Universal Ltd v. Prof. A. Lakshmi Sagar & Ors., (1998) 7 SCC 1 wherein the Supreme Court relied on the assessment of the expert body in development of land which was opposed on the ground that approval of scheme would adversely affect the quality and quantity of water.
In the case of Delhi Development Authority v. Rajendra Singh & Ors., (2009) 8 SCC 582 wherein also the Apex Court relied on the expert opinion, such as, National Environmental Engineering Research Institute (NEERI) for approving change in use of land for Commonwealth Games.
In the case of T.N.Godavarman Thirumulpad v. Union of India (2006) 1 SCC 1, wherein the Apex Court discussed the issues of compensatory afforestation charges for loss of natural forests for other purposes.
The case of R and M Trust v. Koramangala Residents Vigilance Group, AIR 2005 SC 894 was cited to contend that delay would be fatal in case of public interest litigation.
14. At the outset, we find that objection to the petition by the respondent No.4 on the ground of delay and laches must be rejected. Soon after the allotment of land to respondent No.4 Company, there was resistance from villagers and others. This forced the Government to seek further reports on the likely impact on the reservoir. Last report of the S.K.Shelat Committee was available in 2009 and the Government acted upon it in December 2009. Entire issue was thus alive. Land allotment in favour of the Company had thus not achieved finality. We see no inordinate delay on part of the petitioners. We must view the delay in the background of likely impact of the project on large number of people.
Since long right to pollution free water and right of access to water have been recognized by the constitutional courts in the country as an integral part of right to life under Article 21 of the Constitution of India. It is also considered as human right.
In the case of S.R.Shah (supra), the Division Bench stressed the importance of water for the mankind and nature as well in the following manner:
9.
Water is essential to many of the mankind's most basic activities, such as agriculture, forestry, industry, power generation and recreation. Water being an integral part of the environment, its availability is indispensable to the efficient functioning of the biosphere. Without a safe, reliable and stable water supply, human and economic development would not be possible. Nearly every decision whether about housing, transportation, economic growth or developmental work is linked to the use of the water resources of the community. Fresh water is as essential to sustainable development as it is to life and water beyond its geographical, chemical, biological functions in the hydrological cycle, has the social, economic and environmental values that are interlined and mutually supportive. Safe water, adequate sanitation and education about hygiene are basic human rights that protect health, increase the sense of well-being and improve productivity. Water related leisure activities, such as water sports, contribute to a healthy life style. Human habitation near water resources was essential to the very existence of the human race and the ancient civilizations thrived near the vicinity of fresh water.
In the book Reforming Institutions in Water Resource Management Policy and Performance for Sustainable Development by Lin Crase and Vasant P. Gandhi, the importance of water resource management in India has been explained as follows:
Water resource management is also critically important in India because of growing demand for food and because the incomes and employment of 60-70 per cent of the population depend directly or indirectly on agriculture. Small-sized private farms dominate Indian agriculture and the problem of water management is becoming increasingly serious as development proceeds. Local scarcities are now common and frequent. In the context of the challenges of water resource management in India, standard neoclassical theories usually have little to offer in terms of practical and durable solutions.
Such an important issue, therefore, cannot be scuttled on the ground of delay and laches which even otherwise we do not find exists in the present case.
15. Coming to the main challenge, from the material on record, it is clear that out of total 268 hectares of land initially alloted to Nirma Limited, 100 hectares comprise of land which was part of submerged area of Samadhiyala Bandhara. Upon submission of Shelat Committee Report, the State Government accepted one of the three alternatives suggested by the Committee and by its further order dated 8th December 2009 directed respondent No.4 Company to return 54 hectares of land out of 100 hectares falling part of Bandhara submergence area. Nevertheless, another 46 hectares remained with the Company which is part of Bandhara land.
16. Though it has been contended on behalf of the respondents that the sole purpose of construction of wasteweir was to control salinity by arresting sea water, the same flies on the face of the official records. In order dated 25th June 1999 passed by the Collector, Bhavnagar, produced at page 769/A to the compilation, by which gaucher land of various villages were transferred to the salinity control department for the Samadhiyala Bandhara scheme, it is clearly recorded that the land in question is required to be transferred for the purpose of scheme of Samadhiyala Bandhara. The main object by way of this scheme of Bandhara is to restrict the increase of salinity of sea and for maintaining agriculture land as the salinity of the land may be minimized and to resolve the problem of drinking water. It is proper to transfer the land in question to the salinity control department under the beneficial scheme which is going to give advantage to the large number of people of the society . Even in the communication dated 19.5.2006 from the Superintending Engineer, Salinity Entrance Redress Circle, Rajkot, it is recorded that upon construction of three drains as suggested, there will be sufficient flow of water into the bed and 250 hectares of land in the region and 35 wells which depend on Bandhara there would be no adverse impact. Even in the report submitted by the Office of the Executive Engineer, Salinity Control Division, Bhavnagar to the S.K.Shelat Committee, which the Committee has exhibited as document M-1, it is stated that Samadhiyala Bandhara Project near Samadhiyala village of Rajula Taluka of Amreli District on a local rivulet has been completed in July 2000. In this scheme 62.31 M.C.Ft. sweet water is stored. From this project, 1000 hectares of lands of Dolia, Padhiyarka and Vangar villages of Mahuva Taluka of Bhavnagar District, Samadhiyala and Patva villages of Rajula Taluka of Amreli District benefit by re-charge and lift irrigation . This report also gives the break up of such benefits to agriculture lands in the annexure. It is stated that 700 hectares of land benefit out of ground water recharge and 300 hectares by lift irrigation. The season of irrigation however shown is Rabi meaning thereby that water for irrigation from the reservoir is available for only one season after monsoon and water does not last till summer season.
17. It can thus be clearly seen that as per the official records, construction of wasteweir serves three different purposes. First and foremost, arrest spread of salinity by preventing sea-water from entering the main land. However, it simultaneously arrests the sweet water flowing in monsoon season from draining into the see. This creates a reservoir with a maximum capacity of 62.31 million cubic feet. This collection of sweet water improves the sub-soil water quantity and quality. It also permits irrigation of nearby fields through lift irrigation. Existence of Samadhiyala Bandhara, therefore, cannot be viewed as serving a narrow purpose of only prevention of salinity. It's irrigation potential is however limited to Rabi season only.
18. It is true that the Government has suggested various measures to ensure that the reservoir is not adversely affected. As already noted, firstly, 75 hectares of Government waste land is to be excavated at the cost of the Company to add to the capacity of the reservoir to compensate for the loss of 100 hectares of land which was initially alloted to the Company out of submergence area of the reservoir. Since indisputably, the land alloted to the Company would under normal circumstances obstruct the natural flow of water into the reservoir through different slopes of low lying areas, the Government has directed the Company to construct and maintain three drain canals shown as Canal A, B and C in the maps presented before us (and more particularly referred to in report Annexure U) which are of on average approximately 13 meters width. This according to the reports of Salinity Control Department would ensure that the inflow of rainwater in the reservoir will not be reduced. As per the calculations of the respondents, after the Company returns 54 hectares of land, excavates approximately 40 hectares out of it as directed by the Government order dated 8th December 2009, and also upon excavation of 75 hectares of Government waste land, the total water holding capacity of the reservoir, if at all, would increase.
19. Despite such measures suggested by the Government and presented before us, we were of the view that under no circumstances, the Company can be parted with 100 hectares of land out of the submergence area of the reservoir. We are also clear that out of the land alloted to the Company, 100 hectares of land was out of the submergence area of Samadhiyala Bandhara. This is unequivocally clear from the several reports of the Salinity Control Department as well as from the Shelat Committee Report. On this fact, there is neither a dispute possible, none raised. We had, therefore, put to the counsel whether the Company would surrender additional 46 hectares of land so that the total 100 hectares of land which the Company was allotted forming part of the reservoir would be restored. Counsel for the Company readily agreed to the suggestion and also agreed to file an undertaking to this effect with only one rider that the Company cannot afford to return such 46 hectares of land in one block adjacent to 54 hectares already ordered to be returned.
20. Accordingly, an affidavit dated 16th April 2010 has been filed by one V.N.Desai, Vice President of Nirma Limited, in which it is stated that in addition to surrender of 54 hectares of land pursuant to the Government order dated 8.12.09, respondent No.4 is willing to surrender further 46 hectares of land as demarcated in green colour on the map attached to the affidavit at Annexure I to the said affidavit. It is clarified that this 46 hectares of land does not include any area comprising of the canals to be constructed by the Company.
21. Question is whether all the measures provided by the Government coupled with the surrender of additional 46 hectares of land is sufficient safeguard to protect and preserve the Samadhiyala Bandhara reservoir so as to permit respondent No.4 Company to carry on with the further construction of the cement factory. In our view, with certain minor fine tuning and further conditions, it would be so.
22. Firstly further surrendering of 46 hectares of land would ensure that against total allotment of 100 hectares of submergence land of Samadhiyala Bandhara Reservoir, the Company would have surrendered equal area. We are conscious that it will not be exactly the same land. However, we have considered the fact that the Reservoir was created by construction of wasteweir in the year 1999 and is thus an artificial man-made lake. Without in any manner affecting its water carrying capacity or the total inflow of water, if by minor modifications, a major industry can be sustained in a rural area, in our view the Court should not interject by ignoring and discarding the reports of several agencies comprising experts in the field. Secondly, in addition to restoring 100 hectares of land, 75 hectares of additional Government land is to be excavated to increase the water carrying capacity of the reservoir. The Company has also agreed to excavate further approximately 40 hectares of land out of 54 hectares to be surrendered under order dated 8th December 2009 passed by the Government. Thirdly, pursuant to our suggestion, as accepted by the Company, further 46 hectares of land will be returned. This can also be ordered to be excavated as per the suggestions of the Government Agencies. Fourthly, the Company is required to construct and maintain three canals which will act as drains into the Reservoir of rainwater from surrounding area. Fifthly, the Company is prevented from using any part of water of reservoir for its consumption.
23. Considering the above measures and taking into account the reports of various agencies, there is nothing before us to hold that even after implementation of these measures, either the water carrying capacity of the Reservoir would reduce or the availability of water during rainy season will in any manner be adversely affected. Significantly, surrendering of total 100 hectares of land by the Company is one of the alternatives suggested by the Shelat Committee Report also. Here also, we are aware that the location of the land to be returned differs.
24. In the case of Shailesh R. Shah (supra), the Division Bench was considering the question of protecting, preserving and maintaining the waterbodies in the State and safeguarding them against encroachments. The issues raised by the petitioners pertained to Chandola Lake and the encroachments surrounding in the city of Ahmedabad as also another lake called Lakhudi Talavadi in Vastrapur area of the city of Ahmedabad. In the said decision, the Division Bench considered various judgments of the High Court and the Supreme Court and stressed on the responsibility of the Government and other Governmental agencies such as Municipalities and Panchayats to preserve and maintain waterbodies. It was observed that without removing the encroachments, the waterbodies under encroachments can hardly be rejuvenated. In this back ground, several directions were issued including to the Government to notify all lakes and ponds as may have been shown in the areas covered by the Town Planning Scheme and the Development Schemes as also those in the areas not covered throughout the State. The Government, Area Development Authorities and Local Bodies were directed to protect, maintain and preserve all waterbodies in the State which are identified as per the development plans, town planning schemes and the Government records and which will be notified in the official gazette as water bodies and they will not be alienated or transferred or put to any use other than as waterbodies.
In the present case, we do find that though initially substantial portion of the land which was part of submergence area of the Samadhiyala Bandhara was sought to be alienated in favour of respondent No.4 Company, by combination of orders passed by the Government, undertaking given by respondent No.4 Company and the directions that we are in the process of issuing in this order, virtually the entire area would stand restored to the Government.
In addition to return of 100 hectares of land to the Government, various measures directed by the Government as well as by us in the present order, we feel would, to a large degree restore the original position. In that view of the matter, we find that there would be substantial compliance with the directions of the Division Bench in the case of S.R.Shah (supra). Nothing stated in this order is, however, meant to dilute the said directions in any manner. However, when we find that by substantial compliance with the said directions and while simultaneously preserving the waterbody, if an industry in which substantial investment has already been made can be allowed to be set up, such project should not be stalled. By preserving waterbody, if industrial development can still be achieved, surely the same should not be objected to. The cement plant would bring in substantial investment in addition to generating employment in the region and would also sustain ancillary and incidental industries and businesses.
25. Despite such optimism, we would like to trade cautiously and therefore, we are of the view that certain further guidelines and directions are required to be issued to ensure that the Company implements its obligations fully and further that the effect of construction of factory on the Reservoir is closely monitored.
26. Under the circumstances, this petition is disposed of with following directions:
Respondent No.4 Company shall, in addition to 54 hectares of land ordered to be surrendered by the Government in its order dated 8th December 2009, surrender further 46 hectares of land indicated in the map at Annexure I to the affidavit dated 16th April 2010, copy of which map is attached to this judgment at Exh.A and shall form part of this judgment. No part of this 46 hectares will include any land to be occupied by canals which the Company is obliged to construct;
Respondent No.4 Company shall strictly adhere to its obligation to construct canals A, B and C shown in the official maps and maintain the same as directed by the Government and further ensure that it is desilted periodically, so that the flow of rain water from the surrounding areas to the Reservoir is not obstructed;
Respondent No.4 Company shall excavate and deepen 75 hectares of Government waste land as directed by the Government;
Respondent No.4 shall excavate and deepen part of 54 hectares of land returned by it under the Government order dated 8th December 2009;
Respondent No.4 shall excavate and deepen any part of the additional 46 hectares of land as may be suggested by the Government. For this purpose, the Government shall have a survey carried out and make suggestions for excavation of the land as per the topography of the area to ensure that this additionally surrendered land also forms part of Samadiyala Bandhara and increases the water carrying capacity of the Reservoir.
Respondent No.4 Company shall not use any water from the reservoir for its activities.
Respondent No.4 Company shall ensure that its activities shall not pollute or contaminate the Reservoir water in any manner.
It will be open for the respondent No.4 Company to recommence its construction of the factory on condition that within four weeks from today, the Company after proper measurements by the DILR surrenders further 46 hectares of land as already directed hereinabove;
The Government shall ensure that respondent No.4 Company has complied with all the above directions before issuing certificate of completion of construction or before granting permission to start the factory;
The Government shall, on the basis of the records of rainfall in the region and the total amount of water collected in the Reservoir immediately after the monsoon, judge whether on account of setting up of the factory there has been any significant reduction in income of the fresh water in the Reservoir. If so, the Government shall require respondent No.4 Company to take such remedial measures as may be found necessary.
27. With the above directions, the petition is disposed of.
(S.J.Mukhopadhaya, C.J.) (Akil Kureshi, J.)
28. At this stage, counsel for the petitioner prayed for stay of this judgment for a period of four weeks. He has also requested that a certificate of fitness under Article 133 read with Article 134A of the Constitution that the case involves substantial question of law of general importance which needs to be decided by the Supreme, be granted.
29. We find that in the present petition stay against further construction was granted only on 16th March 2010 before which, during the pendency of this petition, no stay was granted by the High Court. In this judgment even while permitting further construction of the factory of respondent No.4, necessary safeguards have been provided. Request for stay of the judgment therefore is refused. With respect to certificate of fitness as prayed for, we do not find that the case involves substantial question of law of general importance which needs to be decided by the Supreme Court. Said request is also rejected.
(S.J.Mukhopadhaya, C.J.) (Akil Kureshi, J.) (vjn) Top