Kantilal Harjibhai Patel vs State Of Gujarat
2023 Latest Caselaw 7268 Guj

                                                                                  NEUTRAL CITATION




     C/WPPIL/112/2023                              ORDER DATED: 04/10/2023

                                                                                   undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/WRIT PETITION (PIL) (WRIT PETITION (PIL)) NO. 112 of 2023

==========================================================
                        KANTILAL HARJIBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MS KRUTI M SHAH(2428) for the Applicant(s) No. 1
for the Opponent(s) No. 2,3,4,5,6,7,8
MS HETAL PATEL AGP for the Opponent(s) No. 1
==========================================================

 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                            Date : 04/10/2023

                              ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. The present petition in the nature of Public Interest Litigation has been filed with the following reliefs :-

"(B) issue appropriate writ, order or direction to appoint an expert committee empowered with an effective, functional, well-qualified quasi-governmental/semi- statutory body/task force, that includes subject experts (ecologists, geologists, hydrologists, botanists, zoologists, wetland specialists, soil scientists, environmental/urban/ecological planners, environmental/ civil engineers, landscape architects, wastewater specialists, other built environment professionals) as well as knowledgeable and experienced members of the community-at-large, related to the various facets of the lake system in order to fulfill the above agenda in a proactive, transport, and accountable manner, for the purpose of Notification, conservation, restoration and rejuvenation of the lakes, ponds and other water bodies in the region of Bhuj city in the State of Gujarat.

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

(C) issue appropriate writ, order or direction to the State Government to take immediate steps to Notify, Protect, Restore and Rejuvenate all the Lakes of Bhuj City region in a time bound manner.

(D) issue appropriate writ, order or direction to the respondent authorities to stop illegal discharge or untreated sewage into lakes, ponds other water bodies in the region of Bhuj City.

(E) issue appropriate writ, order or direction to remove encroachments, impediments on the catchments and storm water drains leading to the lakes situated within the region of the Bhuj City.

(F) issue appropriate writ, order or direction to the respondent authorities to remove debris, municipal waste and encroachments in the lakes, ponds, other water bodies in the region of Bhuj City."

2. The statement made in the writ petition is that the petitioner is the senior citizen residing in the Bhuj City and is a vigilant national and citizen and being a retired government employee, is actively taking up the issues pertaining to the conservation of the water bodies in Bhuj City.

3. We may note that in a previous Public Interest Litigation i. e. Special Civil Application No.10621 of 2000, the issue was raised by another person, seeking direction for protecting, preserving and improving the water bodies in the State and safeguarding them against encroachments. A direction was sought on the respondents to place water policy of the Government of Gujarat before the Court and also to show on record that the water bodies existing in the State of Gujarat and specially, in the City of Ahmedabad, are existing at their original status.

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

The said public interest litigation was disposed of vide judgment and order dated 02.08.2002 with the statement in paragraph 24 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 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

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

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 Counci, 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 videography, 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 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. Rule is made absolute in all these petitions accordingly with no order as to costs. All the applications filed in these petitions stand disposed of

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

in light of this decision with no order as to costs.

4. The second round of litigation in the nature of public interest litigation pertaining to conversation, preservation and protection of water body in the State came up for consideration before this Court along with other issues i. e. Writ Petition (PIL) No.144 of 2021, which has been decided vide judgment and order dated 17.02.2022. The observations made therein with regard to the issuance of the government resolution dated 27.08.2001 in paragraph 10, are relevant to be extracted here under:-

"10. That apart, we notice that way back in the year 1999 i.e. on 15.3.1999, it has been made very clear by State that the authorities while making the original development plan or revised development plan in the area of any development authority or at the time of framing the proposal, would not include rivers, lakes, ponds, nalas, canals or any other water bodies existing in such development plan and clear instructions have been issued in this regard. It has been further clarified thereunder that such water bodies are to be maintained and not to be altered in the final plot. In fact, Government Resolution dated 27.8.2001 (Annexure-D) is more elaborate which would clearly indicate the State being conscious of the fact that water is the basis of life and not only inevitable for drinking but also necessary for carrying out agriculture, irrigation, factory purposes, cleaning, etc. and taking note of depletion of water level in the existing water bodies has passed the resolution on 27.8.2001 by issuing instructions to all officers of the Revenue Department, District Collectors/District Development Officers which are extracted herein below:

"(1) Carry out survey of ponds, lakes, small ponds, water bodies within each village, Taluka and district under their respective control, and which are almost in dead condition and are almost in scrap condition. Survey report reflecting village wise, Taluka wise, district wise information about the same be sent to Section Officer, C-Branch, Revenue Department, Sardar Bhavan, Block No. 11/5th floor , Gandhinagar, within 30 days.

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

(2) Aforementioned lakes, ponds, small ponds, water bodies or such sort are not to be disposed of for any other purpose other than development neither any proposal for the disposal be sent to the government.

(3) Continuous vigilance is to be observed that on the aforementioned type of lands, there are no encroachment and if any such encroachment is found then immediate proceeding to be undertaken to remove the encroachment, as per law.

(4) Proper steps be taken for development of them as lakes, ponds, small ponds, water bodies.

(5) As the matter is of the State Interest, it will be personal responsibility of all District Collectors/District Development Officers to strictly follow these instructions and they are supposed to. issue proper instruction regarding this to their subordinate offices.

(6) Instruction . is issued to all Collectors/District Development Officers for having immediate planning about these water bodies getting filled at the maximum capacity during the current rainy season.

(7) These instructions are to be followed on permanent basis.".

4.1 This Court, on reading of the government resolution dated 27.08.2001, which is addressed to the Revenue Officers of the Revenue Department, District Collectors, District Development Officers, has noted in paragraph 11 that the instructions in the aforesaid government order had been issued for placing a restriction on the disposal of the land where ponds, lakes, small lakes or any other water bodies within the State are located and ensuring continuous vigilance as also ensuring that there would be no encroachment and further, in case of any encroachment, immediate steps for removal thereof has to be taken by the concerned officer. It was further noted that the government order has been made applicable to be in force on permanent basis and this would allay

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

the apprehension expressed by the petitioners. The petitioners therein were granted liberty to approach the jurisdictional revenue authorities to bring to their notice, if there are any infraction of this resolution and the circulars issued by the State from time to time. There is no dispute about the fact that the government circular had been issued, mandating the jurisdictional revenue authorities to ensure preservation of the water body in the State within the area of their jurisdiction and ensure that they are not encroached upon by unscrupulous person.

5. In the instant Pubic Interest Litigation, it is stated that there were approximately about 80 water reservoirs/lakes in the city of Bhuj and its surroundings were connected with its vast catchment area. However, after devastating 2001 earthquake, when the city was expanded to decongest the walled city and four relocation sites were developed with the various development works, the water channels were disturbed. Presently, only 38 water reservoirs are visible in the city and of this, 13 are registered as a lake in the revenue record, whereas, rest are shown as "Shree Sharkar" (Government Land). The revenue record pertaining to the said 38 water reservoirs are not part of the present petition. It is further contended by the petitioner that the above 38 water reservoirs/lakes are in poor condition facing problems of encroachment, sewage outflow, dumping garbage and debris, which is contrary to the direction issued by the State Government, Gujarat High Court and the Supreme Court of India. The contention, thus, is that the letter dated 27.03.2023 was sent to various authorities, copy of which is appended as Annexure-E to the writ petition at page 78 of the paper-book with the subject matter "Notify, Protect and Rejuvenate all the lakes of the Bhuj city region". The said letter

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

is addressed to various public departments, such as, Bhuj Municipality, Collector Kutch, Urban Development and Urban Housing Department, Gujarat Pollution Control Board etc. by 29 concerned citizens of Bhuj city. The concern was raised with regard to shrinking lakes, encroachments, dumping of waste, inflow of sewage and other issues, which required immediate actions. Certain communications were issued by the competent authority pursuant to the representation moved by the petitioner. Certain other actions are also immediately taken pursuant to the issues raised by the petitioner. However, there is no clarity with respect to non- compliance of the government resolution dated 27.08.2001. There is no categorical statement in the writ petition about any instance of particular encroachment. There is no clarity, nor there is any categorical representation to the Collector with respect to the nature of encroachment over a particular water body out of 38 water bodies mentioned in the writ petition. The representation made by the petitioner, which is appended as Annexure-E, raises a general grievance with respect to various water bodies existing in the city of Bhuj, the details of which have been given in a tabular chart at pages 83, 84 and 85 of the writ petition.

The statement in the representation is same as made in the writ petition that all the above lakes are in poor condition facing problems of encroachment, sewage outflow, dumping garbage and debris.

6. As there is no categorical assertion with respect to a particular nature of encroachment or sewage outflow in particular water body, it would not be possible for us to make any inquiry in the present public interest litigation as it would unnecessary burden the court.

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

7. For the aforesaid, having noted the averments made in the writ petition and the previous orders passed by this Court as also the government resolution dated 27.08.2001, we grant liberty to the petitioner to raise a specific grievance with respect to each of 38 water bodies, the details of which are given in the representation (as appended at pages 83, 84 and 85 of the writ petition).

8. The issue pertaining to the encroachment is required to be brought to the knowledge of the concerned Collector, Bhuj with respect to the specific water body. With respect to the issue raised about sewage outflow, dumping garbage and debris, the grievances are to be placed before the concerned Municipality. We make it clear that in case, the petitioner raises a specific grievance or bring the instance of encroachment before the concerned Collector about the water body in Bhuj City, the Collector, Bhuj shall be under an obligation to take appropriate action to remove the encroachment and restore the water body to its original status/condition. Similarly, if the issue pertaining to the sewage disposal into the water body or dumping of garbage is brought before the Bhuj Municipality, then the officer of the Bhuj Municipality shall be under an obligation to take action against the erring person and to ensure that no sewage is discharged in the water body or no garbage is dumped in or around the water body.

9. In case of non-compliance of the directions given above, it would be open for the the petitioner to approach this Court with the the specific instance of non-compliance.

NEUTRAL CITATION

C/WPPIL/112/2023 ORDER DATED: 04/10/2023

undefined

10. With the above observations, the writ petition stands disposed of.

(SUNITA AGARWAL, CJ )

(ANIRUDDHA P. MAYEE, J.)

cmk