Shriraj Rajesh Gohil vs State Of Gujarat
2021 Latest Caselaw 15903 Guj

       C/WPPIL/38/2021                                 ORDER DATED: 08/10/2021




             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. 3
MR AYAAN PATEL, AGP /PP(99) for the Opponent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Opponent(s) No. 2,5
MR BY MANKAD(440) for the Opponent(s) No. 4
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 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                  Date : 08/10/2021

                         ORAL ORDER

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

1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant 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 any nature including allotment of lands inside the catchment area of PRAGSAR 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 and further be pleased to direct stoppage and removal of construction cum encroachment and any other activities inside the Pragsar Lake area;

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(B) Be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ, order or direction directing the respondent authorities to take steps for revival and rejuvenation of PRAGSAR Lake, Bhuj- Kachchh as per the regulations as stipulated in the judgment passed by this Hon'ble Court in Shailesh R. Shah versus State of Gujarat 2002 (3) GLR 2295;

(C) Be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ, order or direction directing the respondent authorities to propose the measures and act accordingly for conservation of the PRAGSAR 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;

(D) 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 in the catchment area of PRAGSAR Lake, Bhuj-Kachchh;

(E) 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 allotment and construction and call for any suitable modifications in the said plan;

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

2. We need not delve much into the facts of this litigation as our orders passed time to time makes the picture abundantly clear.

3. Our order dated 17th March 2021 reads thus:-

"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 Staterespondents.

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

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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.

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.

[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

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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 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

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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 Email. 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 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.

4. Our order dated 23rd July, 2021 reads thus:-

"1. We have heard Mr. M. G. Nagarkar, the learned counsel appearing for the writ-applicant, Mr. B. Y. Mankad, the learned counsel appearing for the Bhuj Municipality and Mr. Krutik Parikh, the learned AGP appearing for the State respondents.

2. The writ-applicant before us is an architect and resident of Bhuj. The grievance voiced by the writ-applicant in public interest

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is that not only the Bhuj Municipality but even the State authorities have failed to protect and preserve a notified water- body by named "Pragsar Lake". The entire Revenue Survey No.736 forms the "Pragsar Lake". Prima facie it appears that, some portion has been encroached upon as is evident from the photographs on record. The Bhuj Municipality has filed its reply. The Assistant Collector, Bhuj (Kutch) has also filed his reply. We find the reply of the Bhuj Municipality a little interesting. It says that the land bearing Survey No.736 undoubtedly is known as the "Pragsar Lake", but in fact, there is no lake in existence. It is further brought to our notice that some part of the land bearing Revenue Survey No.736 has been allotted to the district police and for other extra curricular activities like parade etc. It is also the case of the Municipality that some portion of the land has now been allotted in its favour for the purpose of constructing fish and mutton market. The Municipality also proposes to put up construction of Ran Basera (shelter for urban homeless - SUH) over the Revenue Survey No.736.

3. We would not come in the way of the State Government, if it intends to allot any parcel of its land for any public purpose or project. However, this would be subject to the fact that such allotment should not be a part of any notified waterbody. In other words, what we want to convey is that if the Revenue Survey No.736 is otherwise a notified water-body then despite the fact whether water gets accumulated in this particular parcel of land or not, it would still remain a notified water-body. If that be so then the State Government owes an explanation in what circumstances the land has been allotted to the Bhuj Municipality as well as to the Police Department of the Dist. Bhuj.

4. By next date of hearing we want the learned AGP to take appropriate instructions in this matter and make it clear whether the Revenue Survey No.736 is a notified water-body or not. In other words, whether at any point of time it was a notified water-body or not. In the last we would like to know whether at any point of time the Revenue Survey No.736 came to be de- notified as a water-body.

Post this matter on 6.8.2021."

5. Our last order dated 01st October 2021 reads thus:-

"Post this matter on 08.10.2021.

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By the next date of hearing, we want Mr. Ayaan Patel, the learned AGP to put forward an appropriate plan or proposal for the purpose of allotment of some portion of land to the Nagarpalika on the plot "C" as reflected from the Map at Page- 216 of the paper-book. The suggestion of Mr. Nagarkar is there should not any problem in permitting the Nagarpalika to put up the necessary construction on the periphery/edge of the plot"C". In short, the construction should be permitted in such a manner that it should not obstruct the natural flow of water in the plots "A" and "B" respectively."

6. The State has made its stance very clear that the part of water body admeasuring 15 Hec. - 82 Are - 33 Sq. mtrs. equal to 1,58,233 sq.mtrs. forming part of the revenue Survey No.736 Paikee 1 i.e. Plots 'A' & 'B' respectively shall not be touched in any manner for any other purpose or shall not be utilized for any other purpose. It shall remain as a water body. We have made ourselves very clear in our orders referred to above that even if the lake is running dry still it remains a water body and it should not be tinkered or touched with in any manner. All steps should be taken by the authorities to preserve this water body at any cost. It should also be protected from being encroached upon.

7. So far as the Plot 'C' is concerned, it has been allotted to the Police Department of the District. In such circumstances, today the Nagarpalika has no other parcel of land to put up the shelter home as well as fish market as a part of their project. In such circumstances, we leave it open for the Nagarpalika to go before the State Government and request for allotment of any other parcel of land. If any such request is made, the Government may consider it in accordance with law or in accordance with its policy in that regard. We may only observe that due to lack of adequate land, the

C/WPPIL/38/2021 ORDER DATED: 08/10/2021

project should not be come to a standstill. The Nagarpalika should be permitted to put up a shelter home in accordance with the directions issued by the Supreme Court and if it wants to put up a fish market, then they may be permitted to do so after allotment of land at an appropriate place.

Once the Nagarpalika prefers an appropriate application or representation, the concerned department of the State Government shall act expeditiously and take an appropriate decision.

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

(J. B. PARDIWALA, J)

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