Shriraj Rajesh Gohil vs State Of Gujarat
2021 Latest Caselaw 4309 Guj

        C/WPPIL/38/2021                                    ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/WRIT PETITION (PIL) NO. 38 of 2021

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                          SHRIRAJ RAJESH GOHIL
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MR MG NAGARKAR(496) for the Applicant(s) No. 1
VIKAS V NAIR(7444) for the Applicant(s) No. 1
 for the Opponent(s) No. 2,3,4,5
MS. MANISHA LUVKUMAR SHAH, LD. GP with MS. AISHWARYA GUPTA,
LD. AGP for the Opponent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
        and
        HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 17/03/2021

                              ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. We have heard Mr. Vikas Nair, the learned counsel appearing for the writ applicant and Ms. Manisha Luvkumar Shah, the learned Government Pleader assisted by Ms. Aishwarya Gupta, the learned AGP appearing for the State- respondents.

2. The subject matter of this public interest litigation is a notified water body/Pragsar Lake, situated at the place called Bhada in Bhuj. According to the learned counsel appearing for the writ applicant, the entire water body is a part of Survey No.736. The entire Survey No.736 is within the jurisdiction of the Bhuj Municipality.

C/WPPIL/38/2021 ORDER

3. By this writ application, two things have been pointed out. First, that the Nagar Palika has allotted a portion of Survey No.736 for the construction of Ran-Basera and Mutton/Fish Market and secondly few Government structures have also been put up in the water-body, i.e. part of Survey No.736.

4. Way back in the year 2002, this High Court had the occasion to deliver a judgment as regards protecting, reserving and improving the water-bodies in the State and safeguarding them against encroachments. The judgment is titled as Shailesh R. Shah vs. State of Gujarat, (2002) 3 GLR 447. Para-24 of the judgment contains various directions issued by this Court. The directions read as under;

"24. To sum up, we issue the following directions :- [A] The State Government will notify all the lakes and ponds as may have been shown in the areas covered by the Town Planning Schemes and the Development Plans, as also those in the areas not so covered throughout the State, in short, all the water-bodies in the territory of the State that vest in the State and/or the Area Development Authorities or the Local Bodies including Panchayats, in the Official Gazette within three months from the date of this order.

[B] The State Government and all Area Development Authorities and Local Bodies will protect, maintain and preserve all the water-bodies 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 water-bodies.

[C] The respondents-authorities should take steps to get the standards of quality of water of the lakes and ponds prescribed by the concerned authority under the law, and devise mechanism for periodic monitoring of the quality of water in these lakes and ponds.

   C/WPPIL/38/2021                               ORDER



[D]       The State Government, the Area Development

Authorities and the Local Authorities should take urgent measures to rejuvenate the water-bodies which are to be notified in the Gazette by undertaking a declared phased programme of desiltation and make adequate provisions for recharging them by appropriate storm water drains and other feasible means and to take measures against pollution of such water-bodies.

[E] The State Government shall expeditiously take steps to constitute Water Resources Council as contemplated in the Draft Water Policy of-the State, headed by the Hon'ble the Chief Minister with other Ministers, including the Ministers in charge of Environment and Urban Development Departments to oversee the programme for protection, preservation and improvement of the water-bodies. The State Government will also constitute the Water Resources Committee headed by the Chief Secretary which may include the Secretaries of Environment, Urban Development and Agriculture Departments, for monitoring the implementation of the programme in a time-bound manner with periodic review of its success. This Committee shall place the particulars of the targets achieved and the causes of non-fulfillment of the targets periodically before the Water Resources Council, for its consideration.

[F] The State Government, the Area Development Authorities and the Local Bodies are directed to prepare an authenticated record in form of video-graphy, photography and panchnamas of the existing encroachments and take urgent steps to remove them in accordance with law and the rehabilitation policies of the Government. Responsibilities of the officers/staff concerned should be fixed in respect of non-removal of encroachments and fresh encroachments. The Water Resources Committee will closely monitor the removal of encroachments by the concerned authorities, and the Area Development Authorities and ^the Local Bodies shall furnish, quarterly, particulars of such encroachments and their removal to the Water Resources Committee,

[G] The question of determining the peripheral area surrounding a lake or pond on which construction may be

C/WPPIL/38/2021 ORDER

prohibited will be taken up by the concerned authorities for consideration in the context of the development of individual lakes and ponds and the authorities will take decisions thereon having regard to the relevant factors which may have a bearing on the protection, preservation and improvement of lakes, ponds and other water-bodies, and once the peripheral area, around a lake or pond, in which there will be no construction allowed is determined, the same shall be notified. All the applications for building permissions which may be pending, may accordingly be decided as per the regulations and keeping in view the requirement of individual water-bodies. "

5. We would like to know two things; (i) whether the Nagar Palika intends to use any portion of Survey No.736 for construction of Ran-Basera/Mutton/Fish Market and (ii) whether Government structures have put up over the Survey No.736, and if yes, to what extent?.

6. We want Mr. Nair, the learned counsel appearing for the writ applicant to place before us few photographs so as to give us a fair idea about the location of Survey No.736, if it is possible, Mr. Nair shall click the photographs of the particular portion of land, which according to him, the Nagar Palika intends to use it for putting up Ran-Basera and the market.

7. Let notice be issued to the respondents, returnable on 31st March, 2021. No notice be issued now to the respondents Nos.1 and 3 respectively as Ms. Shah, the learned Government Pleader has already entered her appearance. The respondents Nos.2,4 and 5 respectively shall be served directly through E- mail. Regular direct service is also permitted.

8. By the next date of hearing, we want the Chief Officer of the Bhuj Municipality as well as the Competent Authority of the

C/WPPIL/38/2021 ORDER

Bhuj Area Development Authority to make the picture clear before this Court. We are saying so because the learned Government Pleader has made it very clear that the pond, i.e, the entire Survey No.736 has been entrusted by the Government to be taken care of by the Bhuj Municipality. At this stage, Ms. Shah clarified that not the entire Survey No.736 but some portion of the Survey No.736.

(J. B. PARDIWALA, J)

(ILESH J. VORA,J)

Vahid