IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2719 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE D.H.WAGHELA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- KOSAMBA GRAM PANCHAYAT Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR ANAND YAGNIK, Ld. Advocate for GIRISH PATEL ASSOC for Petitioner MR. S.N. SHELAT, ADDL. ADVOCATE GENERAL with MR V.M. PANCHOLI, ASSTT. GOVERNMENT PLEADER for Respondent Nos. 1 to 5. MR AKSHAY MEHTA with MR JAYANT PATEL, Advocate for respondent No.6 MR DHAVAL C. DAVE with MR. N.V. ANJARIA, Ld. Advocate for Respondent No.7 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE D.H.WAGHELA Date of decision: 07/10/1999 ORAL JUDGEMENT (Per R.K.Abichandani,J.) The petitioner Gram Panchayat has, in this petition, challenged the Resolution of the State of Gujarat, dated 9.9.1996 at Annexure "N" to the petition, and the consequential order made by the respondent No.4 Collector on 31.12.1996 at Annexure "P" to the petition, by which the respondent No.7, which is a religious institution, was granted land admeasuring 9,332 sq.meters from survey No.110 part of village Kosamba in Valsad District, by regularising the encroachment on the land in question. The challenge against these orders is made on the ground that they are issued in violation of the provisions of Sections 37, 38, 61 and 62 of the Bombay Land Revenue Code and Rule 42 of the Gujarat Land Revenue Rules, 1972, and that they also violate the Coastal Regulation Zone Notification issued by the Ministry of Environment and Forests on 19th February, 1991, as amended on 9.7.1997 as well as the Coastal Zone Management Plan of Gujarat, framed under Section 3(2)(v) of the Environment Protection Act, 1986, on 27th September, 1997. The impugned orders are also challenged on the ground that they violate the Government Resolution dated 30th January, 1989 and the Notifications of the Government of India issued in 1982, as also the provisions of the Gujarat Panchayats Act, as well as the Constitutional provisions of Articles 14, 19, 21, 38, 48A and 51A. A direction is sought on the respondent authorities to take over the said land from the respondent No.7 and restore it to its original natural condition. A direction is also sought on the respondent authorities to hand over the land in question to the petitioner Gram Panchayat for its administration and public use and to allow the people of the village to put it to its original use. A further direction is sought on the respondent No.7 institution to pay the cost for the restitution of environment and ecology of the land in question and to pay `pollution fines'. In the alternative, a direction is sought on the State authorities to `de-regularise' the encroachment and the unauthorised structures thereon and transfer and alienate the same in favour of the petitioner Gram Panchayat for its use. Prayer for appointment of an expert committee to study the issue and placing its report before the High Court for guiding the High Court, was also made in the petition. 2. By its resolution dated 9.9.1996, the State Government regularised the encroachment of 9,332 sq.meters of land which was occupied by the respondent No.7 - Bochasanwasi Shri Akshar Purushottam Sanstha. According to the petitioner, the encroachment was made by the respondent No.7 by constructing thereon without any authority, the Swaminarayan temple, air-condition Sant Avas, a huge `Sabha Khand', kitchen, store-rooms, library, garrage and staff quarters within 500 meters of High Tide Line, particularly within 200 meters of High Tide Line which is `No development zone', in Revenue Survey No.110 of Kosamba village, which is situated on the sea-coast. According to the petitioner, the area lies between the sea-coast of Arabian sea and the creek known as Vanki river. 2.1 It is the petitioner's case that Kosamba village is situated in the district of Valsad near Tithal, which is a place known for its beautiful beach on the Arabian coast. It is stated that as the sea-shore of the Kosamba is not exploited, its outstanding beauty, particularly that of the beach, has remained intact. It is also stated that the sea-shore of Kosamba village is far more beautiful than the sea-shore of Tithal. There is a common coast line and a road connecting Kosamba village with Tithal village, which is 2 K.M away. Valsad is about 4 K.M far from Kosamba. Kosamba is inhabited predominantly by fishermen and its population is around 10,000 according to the petitioner. It is stated that the people of the village are believers in Lord Shiva, but in the last decade some sects and denominations of Hindu religion have made inroads. It is stated that the sect of Pandurang Athawale and Swaminarayan sect are two of them. The village is spread over the areas divided by a creek known as Vanki river, and the portion situated between the said creek and the coast of the sea, is known as "Tepar". The said `Tepar' area is also known as Parghi Falia as fishermen community of Parghi sub-caste are having their residences in that area. The said area is a village site land since year 1947 as per the Revenue records. According to the petitioner, there are two wells in the said area, which provided drinking water to the people. These wells were built over a stream of drinking water, which was popularly known as "Gangadhara" and had religious significance. According to the petitioner for more than five decades people of surrounding villages gathered there on Shivratri and they also lit holi near the beach in the said area of `Tepar' around Pargi Falia. It is also stated that the open land around Pargi Falia which was waste land in the village site was also used by children as a playground. There is a primary school near Pargi Falia. A cemetery for children is also there on the sea-side of `Tepar'. 2.2 It is further stated that in mid 1980's people of Kosamba started constructing a temple of Shiva near Parghi Falia in `Tepar'. A substantial part of `Tepar' forms Gamtal of Kosamba village and the temple of Shiva constructed by the people was situated on the disputed land. It is stated that the land in dispute was owned by the respondent State Government and it was `as a matter of fact and law' held by the respondent State as a trustee and it's beneficiaries are the public at large. According to the petitioner, the State was under duty to protect the natural resources and the said property therefore, could not have been converted in to a private ownership, as it was on a sea-shore. It is stated that the land in dispute was being used for community purposes for decades and it was cordoned off by the petitioner Panchayat for preventing encroachment, by constructing a katchha boundary. 2.3 It is stated in paragraph 8 of the petition that in the year 1990-91, the respondent No.7 institution requested the petitioner Gram Panchayat through one Mr.Karsanbhai Gopalbhai Tundel of village Kosamba to give them the temple of Shiva and surrounding land to carry on social and religious activities and to carry out `Jirnodhdhhar' of the temple of Shiva. Impressed by the approach by the respondent No.7 institution, the petitioner Gram Panchayat and senior and respectable citizens of the village collectively passed a resolution on 19.11.1990 handing over the temple of Lord Shiva for carrying on social and religious activities and allowing the respondent No.7 institution to go ahead with further construction in and around the temple for the said purpose. That resolution dated 19.11.1990 of the Panchayat is annexed at Annexure "B" to the petition. It is stated that thereafter, the deciples and sadhus who were the representatives of the respondent No.7 institution, started residing in the temple of Lord Shiva and a kitchen as well as a room known as old `Sant Aavas' and a store-room were constructed to accommodate the followers of the respondent No.7. 2.4 It is then stated that the respondent No.7 institution started making further constructions around the temple and the construction of pucca boundary caused discomfort to the people. It is stated that the followers of the respondent No.7 came in direct conflict with the people of village for the first time when they objected to lighting a fire on the auspicious day of holi in the vicinity of temple. Altercation also took place and the matter came to an end at the intervention of the influential persons of the area. It is also stated that the conflict between the followers of the respondent No.7 institution and the village people increased as the respondent No.7 started "deconstructing" the original temple of Shiva, in the name of `Jirnodhdhhar' (renovation). It is further stated that the conversion of the people of the village and incorporating them in the Swaminarayan sect also added fuel to fire. It is further stated that the conflict between the people of the village and the followers of the respondent No.7 institution grew as the time passed and efforts on the part of the respondent No.7 to establish their independent identity increased hostility between the two groups. It is alleged that the construction of new temple of Swaminarayan on the `deconstructed' temple of Lord Shiva became a symbol of cheating the village people and the progress in the construction of Swaminarayan temple, by passage of time strengthened the sense of villagers being cheated by the respondent No.7 institution. It is also alleged that the respondent No.7 is only interested in the land in question situated on the sea-coast and not in doing any social and religious activities. It is also alleged that it was also understood by the Gram Panchayat that the institution was in fact interested in constructing a monumental Swaminarayan temple and make it a place of tourism and pilgrimage out of it. It is further alleged that the conflict intensified as the point of disagreement increased. 2.5 In paragraph 12 of the petition it is alleged that "the respondent No.7 being politically powerful and knowing full well that it is unofficially the religion of the respondent State of Gujarat, brought pressures on the people of the village and respective authorities from all quarters and instead of taking action against the respondent No.7 for its encroachment and increasing unauthorised construction, the respondent State started providing Police protection to the respondent No.7 and for its followers giving free hand to the respondent No.7 to carry on with its illegal and unauthorised activities" which in turn antagonised the people of the village claiming right over the community resources including sea-shore within the revenue limits of the village. In paragraph 13 it is alleged that the conflict between the people of the village and the followers of the respondent No.7 Sanstha reached its peak when in the year 1995-96 the respondent No.7 completed fortification of their encroachment with pucca boundary and blocked the age old Tithal-Kosamba road situated parallel to the coast and attempt was made to give a diversion outside the boundary constructed by them. 2.6 It is then alleged that on 5th Feb. 1996, the petitioner Gram Panchayat passed a resolution cancelling its earlier resolution dated 19.11.1990 and thereby cancelling the permission given to the respondent No.7 for renovation of the temple and for making constructions around the temple. It is stated that the respondent No.7 was allowed construction only for the purpose of `Jirnodhdhhar' and the additional construction of other small structures was allowed to accommodate the followers staying there at the site and also for the purpose of fulfilment of their basic and fundamental amenities. It is stated that permission of the authorities for carrying out construction was not obtained by the respondent No.7. On 15.2.1996, the petitioner wrote a letter to the State of Gujarat, bringing to its notice the encroachment and illegal construction by the respondent No.7 within 500 meters of High Tide Line and for taking action against them, as alleged in paragraph 15 of its petition. On 15.2.1996, the respondent No.7 had written a letter to the Collector as per Annexure "F" to the petition, pointing out that they had sent a proposal to the Government on 28.2.1991 in respect of the land in question. 2.7 It will be noted from the representation dated 5.2.1996 sent by the petitioner Panchayat to the Collector that it was specifically stated therein that the land in question was given to the respondent No.7 by the Panchayat for the purpose of temple. It is stated in that representation that the land was most willingly given while reserving the right to use the road. It was specifically stated that the people of the village were not against the temple, but because the religious sect of the respondent No.7 stopped them from lighting holi and they had made constructions which had the net effect of closing the original road, that had created an unrest amongst the people. It was stated that the very denomination which was invited by the Panchayat had started working contrary to the interest of the people and hurting their religious feelings. It was prayed that the construction of wall on the eastern side of the temple should be stopped in view of the public road from the bridge of river Waki till the house of Lalabhai. Thereafter on 7.2.1996, the Panchayat wrote another letter to the Police Inspector, alleging that the respondent No.7 institution was carrying on illegal construction which should be stopped and that they were using water from the wells for construction purposes, which also should be stopped. On 15.2.1996, the Panchayat wrote a letter to the Revenue Commissioner of the State, alleging that there was illegal encroachment on the road by the respondent No.7 and that by making construction within 500 meters of the sea-coast, the respondent No.7 had committed illegality which warranted removal of such construction. On 16.2.1996, the Mamlatdar issued notice to the respondent No.7 asking them to remove the construction which was unauthorisedly made on the Government waste land and hand over its possession to the Talati-cum-Mantri of Kosamba within ten days. On 22.2.1996, by its letters Annexure "H" collectively, the respondent No.7 informed the Collector that the proposal of the respondent No.7 was pending with the Government. It was stated therein that there was an old temple in the land in question and the land was handed over to the respondent No.7 by the village people on 4.2.1990 by a decision taken in the Gram sabha and the religious activities were thereafter started thereon. It was also stated that authorisation was obtained from the Panchayat for the construction which was to be made by the respondent No.7, through the leader of the community Krishnabhai (Karsanbhai) Tundel. It was also stated that the institute intended to construct a temple having archaeological excellence at the same place. The Collector was therefore requested not to take any action till the proposal was decided upon by the Government. Karshanbhai Tundel had made an affidavit on 22.2.1996 (Annexure "H" collectively), in which it was stated that he had started construction of a temple in Pargi Falia of `Tepar' in the year 1958, but the construction work could not be completed and therefore, he had, with the consent of village people, handed over the possession of the land in question to the respondent No.7 institution for completing the temple. The respondent No.7 again wrote a letter dated 7th March, 1996 (copy at Annexure "I"), to the Collector, giving the particulars of the construction which already was existing in the land in question. It was pointed out that there was construction in an area of 2266 sq.meters and there was open land of about 10,835 sq.meters. It was also pointed out that the institution had spent a sum of Rs. 53,79,127/- in the construction of the temple and its complex. It was submitted by them that if the construction is ordered to be removed the institution would suffer a loss of Rs. 85 lakhs. It is stated that the institution was prepared to pay the price of the land and fine, if any, for getting the occupation rights in respect of this land. 2.8 The Collector in his communication dated 7th March, 1996, addressed to the State Government gave particulars of the land in question, pointing out that after the land was handed over to the respondent No.7 institution in the year 1990 under a resolution of the Gram Panchayat without demarcating the land, it was in possession of the said institution and that it had constructed a big "sant kutir" and had started the construction of temple on the existing plinth. It was pointed out that in February, 1996, the village people had started objecting to this and tension had mounted, requiring Police bandhobast to be made. It was pointed out that on 4th March, 1996, there was a conflict between the followers of the Swaminarayan sect and other persons of the village over closure of the road and there were complaints and counter complaints filed by them in the Police station. It was stated that the root cause of the conflict was the stoppage of the road and that if the road was opened up, it appeared to the Collector that the dispute would end. The Collector wrote a further letter dated 10.3.1996 to the Government, pointing out the disputes which had arisen after the institution was allotted the land in 1990 under a resolution of Gram Panchayat and the leaders of the village. It was stated that the institution had asked for regularising the encroachment of the land which came to its possession in 1990 because of the ignorance of law of the leaders of the village and the institute. It was also stated that the institution was ready to pay the market price of the land and fine. It was then stated that on either side of the land in question, there were residential areas and on it's western side was the Arabian sea. It was stated that as per the panchakyas, the price of the land would be Rs. 101 per square meter. The Collector also pointed out that the encroached land was within 500 meters of HTL. It was pointed out that an area of 8217 square meters of land could be considered for regularisation of encroachment. It was pointed out that out of the total area of 10622 sq.meters which belonged to the State Government, the village people had an objection in respect of an area of 2405 sq.meters. According to the Collector, there was no objection to granting the land excepting the land between Sant kutir and the river to the Swaminarayan temple. It was also stated that there was possibility of amicable settlement between rival groups. The Deputy Collector had received the report of the Mamlatdar on 9.7.1996 on the above lines. The District Superintendent of Police had also on 10.3.1996 opined that there was no objection to grant of land to the Swaminarayan temple, except the land between Sant kutir and the river. The Government on 11.4.1996 wrote to the Collector to report on the nine specific items mentioned in that letter. This was done with a view to consider as to whether the encroachment by the respondent No.7 should be regularised as proposed by them. The Collector sent his remarks by his communication dated 11.7.1996 to the Government, pointing out the particulars of the land in question, which was part of survey No.110, the fact that the land vested in the Government, that it was part of the village site, that there was dispute raised by the village people in respect of 2342 sq.mtrs. of land and that there was no objection to taking of an appropriate decision for regularisation of the encroachment of the remaining 8282 sq.mtrs. of land on which the institution had constructed Sant nivas, store room, garrage etc. and there was the temple standing thereon. It was also stated that the market price of the land was Rs. 110 per square meter. It was reported that the institution was prepared to pay the market price. It was also reported that the land in question was within 500 meters of the HTL and further that in the adjoining survey Nos. 108 and 109, there already existed constructions which were also within 500 meters. It was stated that the institution was to rejuvenate the old temple, which was constructed in 1958. It was also stated that as recommended by the Mamlatdar, Valsad on 3.6.1996, the encroachment could be regularised as a special case. The Deputy Collector also had, by endorsement dated 8,6.1996, stated that there did not appear to be any objection to regularising the encroachment. In his report on item (6), the Deputy Collector informed the Government that the road between Sant kutir and the river of 15 ft. width was made open for the passage of the village people, but sabha mandap construction which existed between Sant kutir and that road was not removed, against which the village people were objecting. The Town Planning and Evaluation Department, Valsad Branch in their communication dated 30.5.1996 indicated the market price of the land in question at Rs. 110 per sq.meter. The District Inspector of Land Records in his communication dated 1.7.1996, addressed to the Collector, pointed out that from the original survey No.110, on 10.6.1921 survey No.314 was separated while on 7.7.1925 survey No.315 was separated and in the remaining part of survey No.110, there was Swaminarayan temple. In the note made below this communication, it was recorded that between Sant kutir and Sabha mandap, formerly there was a road used by the village people and vehicles on that road and that it was 65 meter in length and 6 ft. in width and that road was closed down due to construction. It was pointed out that the area of that road was 309 sq.mtrs. 2.9 After gathering all the aforesaid information, the State Government made a resolution on 9.9.1996 in context of the proposal which was made by the respondent No.7, regularising the encroachment made by the respondent No.7 in respect of the area other than the public road and wells out of the total area of 10,622 sq.mtrs, which belonged to the State Government in survey No.110 part, on payment of the market price at the rate of Rs. 110 per sq.mtrs. and the fine as was payable under the Revenue law. Certain conditions were also imposed while regularising the occupation of the respondent No.7 of the land in question. These conditions included a condition which laid down that no new construction other than in place of the existing construction would be made within 500 meters of the High Tide Line, as provided by the Coastal Zone Regulations. It was also required of the respondent No.7 to make the road which they had constructed, a pucca road. Then there was a condition for making afforestation towards the sea-coast side. On the basis of this resolution, the Collector made an order on 31.12.1996, stating that out of the total area of 10,622 sq.mtrs. of survey No.110 part, which was in possession of the institution, an area of 9,332 sq.mtrs alongwith the existing constructions was regularised on payment of the market price of the land, which was worked out at Rs. 10,26,520/- and fine at the rate of Rs. 250 per year, as also local fund and education cess was also fixed at Rs. 680/-. It was specifically stated that the portion consisting of the Tithal - Kosamba road and two wells known as "Gangajal", admeasuring 1290 sq.mtrs.