Shriraj Rajesh Gohil vs State Of Gujarat
2021 Latest Caselaw 15401 Guj

       C/WPPIL/37/2018                                 ORDER DATED: 01/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/WRIT PETITION (PIL) NO. 37 of 2018

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                               SHRIRAJ RAJESH GOHIL
                                      Versus
                            STATE OF GUJARAT & 4 other(s)
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Appearance:
MR C J GOGDA WITH MR. MG NAGARKAR, ADVOCATE (7488) for the
Applicant(s) No. 1
VIKAS V NAIR for the Applicant(s) No. 1
MR AYAAN PATEL, AGP ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP(99) for the Opponent(s) No. 1
MR BY MANKAD(440) for the Opponent(s) No. 4
MR NIKHILESH J SHAH(3007) for the Opponent(s) No. 5
NOTICE SERVED(4) for the Opponent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                  Date : 01/10/2021

                         ORAL ORDER

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

1. By this writ-application filed in Public Interest, the writ- applicant - a student of Architecture from Nirma University has prayed for the following reliefs:-

12(A) Be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ, order or direction declaring the action of the respondent authorities in proposing the construction and commencement of construction of the pathway and view- point on the surrounding of Hamirsar Lake, Bhuj-Kachchh as reflected in map at "Annexure-B" as unconstitutional, illegal and void as the same has direct adversary impact on the environment leading to infringement of fundamental right of life for public at large;

(B) Be pleased to issue a writ of mandamus or in the nature of

C/WPPIL/37/2018 ORDER DATED: 01/10/2021

mandamus or any other writ, order or direction directing the respondent authorities to propose the measures and act accordingly for conservation of the Hamirsar Lake, Bhuj-Kachchh in consonance with the Environment policies thereunder which shall not lead to reduction of the area of the water body in any manner;

(C) Pending hearing and till final disposal of the present public interest litigation, be pleased to pass an order restraining the respondent authorities from carrying out any construction on the boundaries of Hamirsar Lake, Bhuj-Kachchh;

(D) Pending hearing and till final disposal of the present public interest litigation, be pleased to pass an order for constitution of a committee comprising of Environmental experts and call for their report with regards to the environment impact of the proposed constructions and call for any suitable modifications in the said plan;

(E) That any other further relief that may be deem fit in the facts and circumstances of the case also please be granted;

2. By this litigation in Public Interest, the writ-applicant has brought to the notice of this Court that the Harmisir Lake in Kutch- Bhuj is a water-body and the same is surrounded by a 450 years old ancient parapet stone wall, which was built up by His Highness Rao Khengarji-I. The said parapet stone wall is also known as the "Hamirsar Ni Paari", which is in existence even as on date. It is pointed out that some part of this construction got damaged during the 2001 earthquake. However, the heritage of the lake and the wall still continues.

3. It is further pointed out that Hamirsar Lake is home to many migratory birds such as pelicans, flamingos, widgeons, mallards and pintail ducks etc. It has a rich biodiversity which supports forms of Zooplanktons, Phytoplankton and aquatic macrophytes Biota. It is also pointed that the lake is a support system, when it comes to

C/WPPIL/37/2018 ORDER DATED: 01/10/2021

recharge in the nearby surrounding wells.

4. It is further pointed out that the central part of the lake system catchment is located on a cretaceous sandstone belt, which acts a spongy layer for recharging water. This helps in retention of water in a natural manner leading to a permanent storage for water.

5. It is further pointed out that a lake system was also proposed by various environment expert groups wherein The Hamirsar Lake System's full catchment area was proposed to run for approximately 60 square kilometers in size. In pursuance to the said proposals some reports were prepared by reputed organizations and the same is relied herein.

6. It is very very unfortunate to take notice of the fact that with all this glorious history of Hamirsar Lake, the Bhuj Municipality as usual in the name of beautification floated a Project knowing-fully well that they are not suppose to tinker with a water body, more particularly, after the pronouncement of the judgment by this Court in the case of Shailesh R. Shah Vs. State of Gujarat reported in (2002) 3 GLR 447. In the name of such projects only corruption is indulged into.

7. We take notice of the order passed by a Co-ordinate Bench dated 27.06.2019, which reads thus:-

"Heard learned counsels appearing for the parties.

Till further order, the respondents are directed not to undertake

C/WPPIL/37/2018 ORDER DATED: 01/10/2021

any activity, including construction in and around Hamisar Lake, Bhuj-Kachchh, which may lead to reduction of the area of the water body and inflow of natural streams from catchment area.

Stand over to 25.07.2019."

8. Since 2019 this Court has restrained the Nagarpalika from proceedings further with any activity including the construction in or around the Hamirsar Lake.

9. Today when the matter was taken up for hearing Mr. B.Y. Mankad, the learned counsel appearing for the Bhuj Nagarpalika has placed on record the copy of the resolution passed by the Executive Committee of the Nagarpalika dated 25.07.2019. The true English translation of the same reads thus:-

BHUJ NAGARPALIKA General Meeting dated 25/07/2019

Resolution No.78 Agenda No.4/8 Sub.: Regarding beautification work of Hamirsar... Ref.: 1) Note of Construction Branch

2) Resolution of the Executive Committee

3) Resolution No.288 dated 02/03/2019 of the Executive Committee

As per the note of the Construction Branch of the Nagarpalika referred above, the Bhuj Nagarpalika granted work order of Harmirsar Lake Beautification Part-2 to the Shree P.D.C. Infrastructure by Work Order No.BhuNaPa/Bandhkham/Work- order/2933/17, dated 24/10/2017 and accordingly, the contractor had started work. Thereafter, the Collector by Letter No.MUN/Vashi/473/03/2018 dated 05/03/2018, directed to stop the work of Harmirsar Lake Beautification Part-2 till further instructions and accordingly, this office had directed Shree P.D.C. Infrastructure to stop the work by its Letter No.Bandhkam/3135 dated 23/02/2018 and the agency had stopped the work. Thereafter, the said Shree P.D.C. Infrastructure, by its Letter I/w. No.2753 dated 25/06/2018, has requested to relieve from the said

C/WPPIL/37/2018 ORDER DATED: 01/10/2021

contract and note thereof has been submitted.

Thus, discussing on the note submitted as above, as this office has directed to stop the work of Hamirsar Lake Beautification Part-2 as per the letter of the Collector, Kutch-Bhuj and as the work is stopped currently, Shree P.D.C. Infrastructure, by its Letter I/w. No.2753 dated 25/06/2018, has requested to relieve from the said contract. Therefore, at the end of consideration, as the work is stopped soon after its commencement, the work of the Hamirsar Lake Beautification Part-2 except the work carried out, is hereby canceled. It is hereby resolved to release P.R. and S.D./F.D. and the Chief Officer is hereby granted authority to do the needful as per the opinion of the consultant. It was resolved to approve resolution referred at Sr.No.3 above expecting proposed approval of general meeting and the same is hereby approved.

Proposal:

Support:

Sd/- (Illegible) (Lata I. Solanki) Chairman Bhuj Nagarpalika

10. It appears that wisdom has downed upon the Nagarpalika to drop the Project. We are happy to note this development, however, the matter does not come to an end at this stage. We direct the Nagarpalika to demolish every bit of the construction, which has been put up so far in the Hamirsar Lake within a period of three months from today and report compliance of the same to this Court by way of an affidavit. We leave it open for the writ-applicant also to report to us whether the construction has been removed or not in accordance with the directions of this Court.

11. Although there is a strong assertion on the part of Mr. Mankad that there is no construction as such, however, whatever may be the construction as on date, nothing should remain within the vicinity of the lake or inside the lake. The foundation, if any,

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shall also be removed without causing any further damage to the lake or to the natural habitat surrounding the lake. Even if major work has to be undertaken to remover the foundation, the same shall be done, otherwise the concerned Officials shall be held guilty of contempt.

12. With the aforesaid, this writ-application stands disposed of.

To be placed before this Bench [Mr. J.B. Pardiwala And Ms. Vaibhavi D. Nanavati, JJ] after three months to report compliance.

One copy of this order shall be furnished at the earliest to Mr. B.Y. Mankad, the learned counsel appearing for the Bhuj Nagarpalika for its onward communication and one copy of the order to Mr. Ayaan Patel, the learned AGP appearing for the State Government for its onward communication. We want the State Government also to ensure that our directions are duly complied with by the Nagarpalika.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) A. B. VAGHELA