Gujarat High Court
Indian National Trust For Art And ... vs Jamnagar Municipal ... on 20 August, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, J.B.Pardiwala
C/WPPIL/83/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 83 of 2014
With
WRIT PETITION (PIL) NO. 235 of 2014
With
SPECIAL CIVIL APPLICATION NO. 10406 of 2014
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INDIAN NATIONAL TRUST FOR ART AND CULTURAL HERITAGE - INTACH
& 1....Applicant(s)
Versus
JAMNAGAR MUNICIPAL CORPORATION....Opponent(s)
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Appearance:
MR NIRAV C THAKKAR, ADVOCATE for the Applicant(s) No. 1 - 2
MR JAYANT P BHATT, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/08/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. In these petitions, the petitioners are essentially objecting to the Jamnagar Municipal Corporation implementing its development and beautification plan of a lake by name Ranmal lake (Lakhota talav) which is situated in the centre of Jamnagar city. Although in each petition slightly different angle of the challenge is brought out, yet the central theme of all the petitions is that the lake in question is a historical site. It is about 150 years old lake. There are number of protected monuments in and around Page 1 of 14 C/WPPIL/83/2014 ORDER the lake. The lake is a natural habitat for large number of local and migratory birds. Drawing our attention to the development and beautification project report prepared by the Corporation, it is pointed out that the said lake is considered a best place for watching the birds where upto 75 bird species are known to be visiting in winter season. Counsel for the petitioners also drew our attention to the Birds Population Census for the year 2012 of aquatic birds in Jamnagar which shows thousands of birds counted. The Jamnagar Municipal Corporation has undertaken an extensive and an ambitious beautification plan of the said lake.
2. From the affidavit in reply filed by the Municipal Corporation in Writ Petition (PIL) No.83/2014, it can be seen that such beautification project is to be implemented in three phases. Phase1 would cover lake no.1 which is located from Bhujiya Kotha to Pabrai hall to RTO to Ashapura ground which would have a heritage theme, phase2 would be covering the area between lake no.1 and lake no.3 which would have a nature theme and phase3 would be a lake near by S.T. Depot which would have a recreational theme. As per the Corporation in phase1, the following developmental activities would be undertaken :
"The following development works will be carried out under this Ranmal Lake Development Project, Phase1, Part1.
1) Pedestrain Zone The dedicated zone only for pedestrians, where no vehicles will be permitted, starting from Satyanarayan Templeto Pabari Hall to Ambedker Park will be provided exclusively.Page 2 of 14
C/WPPIL/83/2014 ORDER 2) Pedestrian path way :
The dedicated path way (average 4.5 m wide) for people to wall at the lake edge will be provided throughout so that people can enjoy the beauty and environment of the lake precinct.
3) Battery operated car track The dedicated way (next to path way) (average 2 mt. Wide) for battery operated car track will be provided. This facility will largely cater children's elders and handicapped person to have a glance of Lake Perimeter.
4) Synthetic jogging track :
Next to battery operated car track exclusive synthetic jogging track will be provided (average 3 mt. Wide() for walkers and joggers to perform health and fitness related activity.
5) Other activity area :
The area left between jogging track and outer boundary of the lake precinct will be paved for various activities such as lands scapping, sitting arrangements, central plazas sculptures signages etc.
6) Compound wall :
The compound wall from Satyanarayan Temple, Bhujio Kotho AshapuraRTO with heritage plaster and ornamental heritage grill with very less visual obstruction will be provided to separate Traffic from lake visitors. This wall will provided 100% safety to people from vehicles while enjoying freely in park hours of day as well.
7) Entry/ Exit gates Nine entry gates will be provided for case of access to the lake precinct for people to enter or exit the lake area.
8) Parking Facilities :
Adjustment to each entry gate wherever it is feasible, Page 3 of 14 C/WPPIL/83/2014 ORDER adequate parking facility will be provided for four wheelers and two wheelers.
9) Senior Citizen Park, Jagdamba Garden and Ambedkar Garden:
The above mentioned three gardens will be redeveloped with appropriate access and more tree plantation and sitting arrangements.
10) Lion sculptures & other artistic sculptures The identity of SaurashtraThe lionsculpture along with various artistic sculpture will be places with the help of local crafts and arts in the Lake precinct.
11) Jam Ranjit Heritage Museum :
The museum (presently act as Digjam Aquarium) will be renovated and conserve to its historic glory of the premises.
12) Aquarium & bird museum :
The space behind to Jam Ranjit heritage museum will be utilized to develop an aquarium and Bird's museum.
13) Heritage Chhatris :
On the perimeter of the lake, eight heritage chattris will be restored and 28 new heritage chattris will be construed as per original heritage design.
14) Amphitheatre with musical fountain and laser show The amphitheatre is very though fully placed where there are no disturbance to the migratory birds as well as no need to cut any trees placed at the triangular portion of the lake. The show will conduct and throw lights on the history and culture of the city through the means of Laser on aqua screen.
15) Food Zone & handicraft zone :
At present there are many informal food joints sets at the lake edge which adds plastic litter and stinking waste Page 4 of 14 C/WPPIL/83/2014 ORDER around the place. The space in front of Ambedkar park will be thoughtfully developed for food shops and handicraft shops. Thus visitors gets clean and controlled space to eat while they will also be exposed to the local art and craft of the city. Such as "Bandhani".
16) Entrance Plazas :
The space near Entry/Exit gate will be deevloped as plazas for pleasing the people while entering or existing at five places along the lake.
Along with the lake development, heritage structures such as Bhujjo Kotho, Lakhota Kotho and Khambhaliya Gate, which are protected monuments will also be developed simultaneously. Khambhaliya gate work has been started, DPR for Lakhota Kotha has been approved while DPR for Bhujio Kotho is under progress.
Thus the cost of Phase1, PartI of Ranmal Lake Development will be round about Rs.45 crores out of which works of costing Rs.7 crores (15%) are completed.
3. It is the case of the petitioners that such development activities will seriously damage the ecology of the region resulting into a serious impact on the population of both the migratory as well as the local birds. It is also the case of the petitioners that the lake is a wetland and would be covered as a protected wetland under the Wetlands (Conservation and Management) Rules, 2010. As per rule 4 thereof, there would be restrictions on activities within such wetlands. The development plan of the Corporation would result in breach of such provisions. Permission of the authority has not been taken. It is also the case of the petitioner that such development activities would effect the protected monuments and such activities are without the Page 5 of 14 C/WPPIL/83/2014 ORDER permission of the authority under the Gujarat Ancient Monuments and Archaeological Sites and Remains Act, 1965.
4. On the other hand, the case of the Jamnagar Municipal Corporation is that after inviting objections from the members of the public, dealing which such objections and making adjustments and modifications as may be required, the Corporation has embarked on the important project. The project in addition to beautifying the region, is also aimed at protecting the monuments in and around the lake. It would also improve the environment for the birds. The contracts for various activities have already been given. The construction activity is at an advanced stage. No interference, therefore, at this stage, is called for.
5. It is undisputed that the lake in question is an important water body and is a natural habitat to large number of local as well as migratory birds. The Wetlands (Conservation and Management) Rules, 2010 framed under the Environment (Protection) Act, 1986, makes detailed provisions for notifying the protected wetlands and to control the activities within such wetlands. Rule 2(g) of the Wetlands (Conservation and Management) Rules, 2010, defines the term 'wetland' which would includes marsh, fen, peatland or water, natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt and includes all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks estuaries and manmade wetland and the zone of direct influence on wetlands.
Page 6 of 14C/WPPIL/83/2014 ORDER 6. Rule 3 of the Wetlands (Conservation and Management)
Rules, 2010 pertains to the protected wetlands and read as under :
"3. Protected wetlands : Based on the significance of the functions performed by the wetlands for overall well being of the people and for determining the extent and level of regulation, the following wetlands shall be regulated under these rules, namely :
(i) wetlands categorised as Ramsar Wetlands of International Importance under the Ramsar Convention as specified in the Schedule.
(ii) wetlands in areas that are ecologically sensitive and important, such as, national parks, marine parks, sanctuaries, reserved forest, wildlife habitats, mangroves, corals, coral reefs, areas of outstanding natural beauty or historical or heritage areas and the areas rich in genetic diversity.
(iii) wetlands recognised as or lying within a UNESCO World Heritage Site.
(iv) high altitude wetlands or high altitude wetland complexes at or above an elevation of two thousand five hundred meters with an area equal to or greater than five hectares.
(v) wetlands or wetland complexes below an elevation of two thousand five hundred metres with an area equal to or greater than five hundred hectares.
(vi) any other wetland as so identified by the Authority
Page 7 of 14
C/WPPIL/83/2014 ORDER
and thereafter notified by the Central Government under the provisions of the Act for the purposes of these rules."
7. Rule 4 provides for restrictions on activities within the wetlands. Subrule(1) thereof provides that the activities specified at clauses (i) to (vii) of the said subrule within the wetlands shall be prohibited. Relevant of these clauses are :
"(1) The following activities within the wetlands shall be prohibited, namely,
(i) reclamation of wetlands;
xxx
(vi) any construction of a permanent nature except for boat jetties within fifty metres from the mean high food level observed in the past ten years calculated from the date of commencement of these rules.
(vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specific in writing by the Authority constituted in accordance with these rules."
8. Subrule(2) of rule 4 provides that the activities specified in clauses (i) to (xii) thereof shall not be undertaken without prior approval of the State Government within the wetlands. Relevant of these clauses are :
"(2) The following activities shall not be undertaken without the prior approval of the State Government within the wetlands, namely, xxx Page 8 of 14 C/WPPIL/83/2014 ORDER
(v) plying of motorized boat, if it is not detrimental to the nature and character of the biotic community.
xxx
(vii) construction of boat jetties.
(viii) activities within the zone of influence as per the definition of wetlands, that may directly affect the ecological character of the wetland.
xxx
(xi) repair of existing buildings or infrastructure including reconstruction activities.
(xii) any other activity to be identified by the Authority."
9. Subrule(4) of rule 4 requires the State Government to ensure that a detailed Environment Impact Assessment to be carried out in accordance with the procedures specified in the Government notification. Such subrule reads as under :
"(4) The State Government shall ensure that a detailed Environment Impact Assessment is carried out in accordance with the procedures specified in the notification of the Government of India in the Minister of Environment and Forests. S.O. number 1533(E) dated the September 14th 2006 as amended from time to time."
10. Subrule(5) of rule 4 prohibits the conversion of wetland to nonwetland use, unless the Central Government is satisfied on the recommendation of the Authority that it is expedient in the public interest and Page 9 of 14 C/WPPIL/83/2014 ORDER reasons justifying the decision are recorded.
11. Rule 5 of the Wetlands (Conservation and Management) Rules, 2010 pertains to constitution of Central Wetlands Regulatory Authority.
12. Rule 6 pertains to process for identification of wetlands under different categories and reads as under :
"6. Process for identification of wetlands under different categories : (1) Wetlands covered under item (i) of rule 3 specified under Schedule shall be the wetland to be regularized under these rules.
(2) The State Government shall prepare, within a period of one year from the commencement of these rules, 'Brief Document' identifying and classifying the wetlands within their respective territories in accordance with the criteria specified under Rule 3 and submit the same to Authority.
(3) The 'Brief Document' of each wetland for identification shall comprise of following information, namely:
i) broad geographic delineation of the wetland;
ii) its zone of influence along with a map (accurate and to scale)
iii) the size of the wetland;
iv) account of preexisting rights and privileges, consistent or not consistent with the ecological health of the wetland.
(4) The Authority shall on receipt of 'Brief document' under subrule(2), if consider it necessary refer in Page 10 of 14 C/WPPIL/83/2014 ORDER consultation with the State Government to a research institute or university having relevant multidisciplinary expertise related to wetlands, to conduct a comprehensive survey of the wetland within a period of thirty days;
provided that the institute or university to which the matter has been referred under subrule(4) shall submit a report within next ninety days from the date of such reference to Authority, which shall contain information with respect to the criteria specified under rule 3.
(5) The Authority shall, thereafter, arrive at a decision in consultation with the State Government, on the proposal, within a period of ninety days from the date of receipt of the report under subrule(4).
(6) The Central Government shall on the receipt of the recommendation of the Authority notify the area of wetlands as recommended by the Authority for public information inviting objections and suggestions from the general public likely to be affected to make representation to the Central Government within a period of sixty days;
(7) The Authority shall consider all the representations which the Central Government may receive under sub rule(6) and submits its recommendations on the such representations to the Central Government within a period of sixty days for final notification.
(8) The Central Government shall on receipt of the recommendations of the Authority under subrule(7) issue a final notification notifying therein the area of wetland its category or classification to be regulated under these rules and display the said notification in public places in English and vernacular languages.
(10) The Authority may, suo motu or on application made to it, review any decision under these rules or issue direction for inclusion of wetland under these rule."
Page 11 of 14C/WPPIL/83/2014 ORDER
13. From the abovementioned rules, it would prima facie emerge that the lake in question would fall within the definition of wetland under section 2(g) of the Wetlands (Conservation and Management) Rules, 2010. From the record, it is not emerging clearly whether any exercise has been undertaken by the State Government in terms of rule 6 for identification of the wetlands in the State in different categories. It is also not clear whether the regulatory authority under rule 5 has been constituted. However, what is clear from the material so far produced before us, is that the entire project for beautification is undertaken without assessment of its impact on the ecology and the environment particularly, with focus on the bird habitat. The Municipal Corporation has not produced any report of any scientific study undertaken by any agency of the environment and ecological impact of this project. Prima facie, it would suggest that large scale development in the form of construction and other related activities are envisaged to a common untrained eye. This would certainly reveal a serious threat to the bird habitat. If the lake is already designated as a protected wetland, all the rigors of rule 4 would apply. Pausing for a second, even if it is not yet so declared, simply because either the State agency have not undertaken the exercise as envisaged under rule 6 of the Wetlands (Conservation and Management) Rules, 2010 and as the regulatory authority under rule 5 is not fully functional, can it be denied that lake is an important wetland. Pending such consideration, if any development or modernisation activity is likely to impact the wetland, which impact would be irreversible, should we await the Page 12 of 14 C/WPPIL/83/2014 ORDER designation of lake as a wetland protected under any of the categories specified in rule 3 and then assess the irreversible damage already done?
14. We would have been circumspect in raising these questions if the Municipal Corporation had presented a scientific study undertaken in this regard before envisaging and implementing the development programme showing that the environment impact on the bird habitat is either negligible or can be compensated in some manner or the other. Surely, such development project cannot be at the alter of impacting ecological site at any rate not without any full environment study scientifically undertaken by an independent and qualified agency.
15. Under the circumstances, following directions are issued :
1) The State Government shall file an affidavit clarifying whether the exercise for categorising different wetlands in the State as required under rule 6 of the Wetlands (Conservation and Management) Rules, 2010 has been initiated or not with special focus on the lake in question.
2) The petitioners shall join the Union of India, Ministry of Environment, as an additional respondent to which notice shall be issued, returnable on 10.9.2014.
3) Till further order, there shall be no further construction or development activity in connection with the beautification and development project undertaken by the Page 13 of 14 C/WPPIL/83/2014 ORDER Jamnagar Municipal Corporation.
Direct service through registered AD is permitted to the additional respondent.
(AKIL KURESHI, J.) (J.B.PARDIWALA, J.) raghu Page 14 of 14