IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10621 of 2000 WITH SPECIAL CIVIL APPLICATION NO. 11049 OF 2000 WITH SPECIAL CIVIL APPLICATION NO. 11635 OF 2000 WITH CIVIL APPLICATIONS NOS. 11667/2000 & 7559 OF 2001 IN SPECIAL CIVIL APPLICATION NO.10621 OF 2000 WITH CIVIL APPLICATIONS NOS.2408/2002, 2422/2002, 2645/2002, 2662/2002, 2664/2002, 2663/2002, 2666/2002, 3568/2002 & 4345/2002 IN SPECIAL CIVIL APPLICATION NO.11049 OF 2000 WITH CIVIL APPLICATIONS NOS. 589/2002 & 2424/2002 IN SPECIAL CIVIL APPLICATION NO.11635 OF 2000 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE D.A.MEHTA ============================================================ 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? --------------------------------------------------------- SHAILSH R SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PRADIP D. BHATE for Petitioners in Special Civil Application No. 10621 od 2000 MR I.M. KAPUR for Petitioners in Special Civil Application No.11049 of 2000 MR C.H. VORA for Petitioenrs in Special Civil Application No. 11635 of 2000 MR MIHIR JOSHI, Appointed as Amicus Cuarie MR S.N. SHELAT, ADVOCATE GENERAL FOR AHMEDABAD MUNICIPAL CORPORATION WITH MR. R.M.CHHAYA in all matters MR KAMAL TRIVEDI, ADDITIONAL ADVOCATE GENERAL FOR AHMEDABAD URBAN DEVELOPMENT AUTHORITY WITH MR D.N. PATEL in all matters MR A.D. OZA, GOVERNMENT PLEADER FOR STATE OF GUJARAT in all matters MR J.A. ADESHRA for Memnagar Nagarpalika MR JITENDRA MALKAN for Council for Social Justice MS. E.SHAILAJA for Forum for Social Justice MR A.S. VAKIL for Ahmedabad New Cotton Mills Ltd. and New Subhlakshmi Association, Paldi Patidar (Lehandar) Trust, New Neelkanth Non-Trading Association and Rameshchandra Ramniklal Talati NANAVATI ASSOCIATES for Apang Manav Mandal MR P.R. NANAVATI for Super Star Amusement Pvt. Ltd. MR. P.M.THAKKAR for MR R.Z. OZA for Gujarat (Institute of Housing and Estate Developers) MS. MEGHA JANI for Kamdar Ladat Samittee -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE D.A.MEHTA Date of decision: 02/08/2002 ORAL JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. This group of petitions raises common questions and the petitions have been argued together by the learned counsel appearing for both the sides. 2. The petitions center around the question of protecting, preserving and improving the water-bodies in the State and safeguarding them against encroachments. 3. In Special Civil Application No. 10621 of 2000, the petitioner has sought a direction on the respondents to place water policy of the Government of Gujarat before this Court and also the record to show big and small lakes in and around Ahmedabad as they existed in the year 1960 and their present status. A direction is also sought for removing all encroachments on the land bearing survey No. 353 of Lake Chandola and for executing the work for disiltation, reviving feeder streams and taking effective steps for reviving and recharging it. It is stated in the petition that Lake Chandola which is on the outskirts of Ahmedabad admeasured about 297 acres and 28 gunthas at the relevant time, and it was a natural reservoir harvesting rain water which flowed into it on account of natural gradient from the surrounding areas. It is stated that Chandola Lake is a stark example of the fact that the Government had no water policy. The Government holds such property in trust for the public at large, and therefore, is under a binding obligation to ensure that it was duly preserved. 3.1 In Special Civil Application No. 11635 of 2000, the petitioner No.1 is a committee said to have been constituted with an object of redressing and ventilating grievances of the residents of Navrangpura area of the city. The petitioners have sought a direction on the respondents to take appropriate action for removing unauthorised encroachments from the final plot No.190 of the Town Planning Scheme No.3, which is popularly known as "Lakhudi Talavadi". It appears that the persons residing in some co-operative housing societies near that "Talavadi" (i.e. a small pond), had made applications to the authorities including the Municipal Commissioner for removing encroachments from the final plot No.190 on the ground that unhygenic conditions were prevailing because of unwieldy encroachments on the plot. 3.2 The Special Civil Application No. 11049 of 2000 has been preferred by a member of the managing committee of a co-operative housing society seeking a direction that unauthorised structures may be removed from and around Memnagar "Talav". It is stated in the petition that, instead of developing the ponds at Memnagar and Vastrapur, illegal constructions were allowed to come up and no action was being taken by the authorities to remove them. 4. When the matters came up before the Division Bench on 18-4-2001, a detailed interim order was made, in paragraph 95 of which, a direction was given to the State Government to maintain all water bodies, lakes, ponds etc. and to remove encroachments at the earliest, and further to give priority to water crises. The Government was directed to submit a report after six weeks as to what action it and the Corporation were proposing to take. In this interim order, reference was made to various lakes and ponds which required the attention of the authorities. Interim directions were given to remove the encroachments and recharge the lakes. By order dated 5th April 2002, noting that sufficient time had elapsed but no report was submitted by the Government and that water bodies which were natural were getting virtually destroyed on account of negligence of the authorities or on account of remaining a silent spectator, a Committee came to be constituted "for suggesting ways, means and methods to recharge the lakes / ponds in the City of Ahmedabad, both within the Municipal and AUDA limits, including collection of rain water and water conservation." The Committee was to examine cases whether in the lakes / ponds, buildings had been erected or not. By order dated 10th May 2002, the AUDA and the Municipal Commissioner of the City Corporation were directed to submit all necessary details to the Committee so that it can report. A direction was issued to the Committee to submit its report as early as possible. 5. The respondents - authorities have filed their affidavits in Special Civil Application No. 10621 of 2000, which are relied upon by both the sides for the purposes of all the matters. There are also affidavits filed by Ahmedabad Urban Development Authority in Special Civil Application NO. 11049 of 2000, which are also referred to during the course of hearing by both the sides. 5.1 In the affidavit in reply filed by the Executive Engineer, Ahmedabad Irrigation Division, dated 16th October, 2000, it was stated that the water policy of the Government will be placed on record and that, the draft was under preparation. The list of big and small lakes in and around Ahmedabad was placed on record at Annexure R/1 of the affidavit-in-reply. It was then pointed out that originally the Chandola tank was utilized only for the purpose of irrigation. That tank was handed over to the Public Works Department by order dated 3rd April 1916 made by the Government of Bombay in the Revenue Department for handing over tanks to the P.W.D. It was stated that, during monsoon, flood water was diverted into Kharicut Canal in Section I through Raipur pick up weir and at the end of Section I, two different canals were bifurcating. One was section II for irrigation purpose and the second was Chandola Tank Feeder. The catering capacity of Chandola Tank was 425 cusec (cubic feet per second). The Chandola Tank admeasured 121 hectors and its command area was 525 hectors. It is then stated that Chandola tank is presently within the limits of the Corporation and in the surrounding areas of Chandola tank which were getting the benefit of irrigation system cultivation of the lands was stopped due to urbanization and now there are factories in the surrounding areas and water from Chandola has now no utility for irrigation. It was admitted that there were encroachments in that area. It was stated that, "Tank Chandola was meant for irrigation purpose and not for recreation of wealthy and luxurious citizens". 5.2 An affidavit-in-reply was also filed by the Additional Resident Deputy Collector on 16th October 2000 on the same lines as the above affidavit of the Executive Engineer. It was stated that, on 8th March 1976, with the help of police personnel, the encroachments were removed and the Slum Clearance Board was informed on 19th December 1980 for rehabilitation of the encroachers, but the encroachers were not ready to shift to the proposed site. The Additional Resident Deputy Collector filed a further affidavit on 22nd January 2001 showing the steps taken by the office in compliance of the directions contained in the order dated 21-11-2000. The details were placed giving data of 45 villages in the Annexure "1" to the said affidavit, about the names of the lakes / ponds and their particulars. A list of final plots earmarked for use as playgrounds, public buildings etc. was also annexed at Annexure "2". A list of lands which had been allotted for various purposes from the erstwhile ponds with regard to the said forty-five villages was placed at Annexure "3". The details were given with regard to position of land which was used as lakes / ponds in twelve villages as per Annexures 4, 5 and 6 to that affidavit-in-reply. 5.3 The affidavit in reply dated 12th march 2001 was filed by Officer on Special Duty, Narmada water Resources and Water Supply Department on behalf of the Irrigation Department, stating that the Draft State Water Policy was prepared in August 2000 and would be finalized soon and till then, that draft was adopted by the State. It is stated that, out of 130 lakes to which reference was made, 127 were either within the jurisdiction of Nagar Panchayats or Gram Panchayats. After the finalization of the Town Planning Scheme in and around Ahmedabad, some lands of lakes / ponds vested either in the Ahmedabad Urban Development Authority or the Ahmedabad Municipal Corporation. It is stated that it was the sole responsibility of Panchayats to lookafter the lakes falling within their jurisdiction. It was stated that, in Lake Chandola, water was getting stored but it did not last long. It was also stated that there were 4350 hutments of encroachers in that area. 5.4 The Collector, Ahmedabad (the respondent No.2) filed his affidavit dated 26th June 2001 in context of the directions given in the order dated 18-4-2001 mentioning the actions undertaken by him from time to time pursuant to that order. It was stated in paragraph 4 of that affidavit-in-reply that, as per the directions of the Court, all allotments / alienations of land identifed as Lakes have been stopped since 18-4-2001 and no further allotment has been made since then. It was also stated that all efforts have been made to recharge existing water bodies by undertaking rejuvenation of the dormant and semi-live water bodies in the Nagarpalikas of Memnagar, Vejalpur, Sarkhej-Okaf, Dhandhuka and Bawla, by sanctioning projects wherever possible under the existing developmental programmes, such as "Suvarna Jayanti Swarojgar Yojana". An amount of Rs.3.13 crores was sanctioned under the said Scheme for rejuvenation of 17 Lakes situated in the areas of the Ahmedabad District. It was stated that the work had already commenced, and in Annexure "I", a chart was attached indicating the details of the 17 lakes and the amounts sanctioned towards them. It was further stated that the authority of the Collector extended over all unalienated lands vesting in Government. As regards the Chandola Lake, it was stated that the Irrigation Department of the State Government was assigned the ownership of that lake and its appurtenant lands and that the Collectorate was taking a consistent stand ever since 1978 that should the Irrigation Department wish to handover the lands of Chandola Lake back to the Revenue Department, it should take steps to do so free of encroachments. 5.5 In the affidavit dated 4th April 2002 filed by the Under Secretary in the Urban Development & Urban Housing Department of the state, in context of the order made by the Court on 22nd March 2002, it was stated that the Department was conscious of maintaining water bodies i.e. rivers, ponds, canals and lakes etc. as water bodies, and that prior to the order made on 18-4-2001, a circular was issued by the Chief Town Planner, Government of Gujarat on 15th March 1999 to all the Town Planning Officers and concerned offices for safeguarding the water bodies. Instructions were issued to maintain the water bodies as they were, while preparing and finalizing the draft Town Planning Schemes. A copy of that circular is annexed at Annexure "I" to that affidavit. Further circular was also issued on 10-8-2001 as per Annexure "II" of that affidavit, alongwith a copy of the order dated 18-4-2001 made by the Court. It was stated that, due care was taken by the Government in Town Planning Department for maintaining the water bodies as water bodies, for which, before preparing the Development Plans and draft Town Planning Schemes and sanctioning them, water bodies are shown in light blue colour. Copies of part of Development Plans and Town Planning Schemes of some cities were annexed at Annexure "III" to the affidavit. It is also stated that General Development Control Regulations were made for the safeguard of water bodies specifically for maintaining distance from water portion. Copies of the extracts of the provisions of the said Regulations were placed at Annexure "IV" of that affidavit. It was also pointed out that, for cleaning up the River Sabarmati, a Project known as "Sabarmati River Cleaning Project" was undertaken under the National River Conservation Project of the Government of Gujarat, and till December 2001, an amount of Rs.3,841 lakhs was spent towards the total cost of that project, which was Rs.11,239=13 lakhs. It was proclaimed in that affidavit that the Government was not only conscious to safeguard the water bodies like rivers but was also keen on preserving and conserving them. 5.6 In the affidavit in reply dated 26th July 2002 filed on behalf of the State of Gujarat, it was stated that the Ministry of Water Resources, Government of India had framed the National Water Policy, which was published in April 2002, as per Annexure "A" to that affidavit. The State of Gujarat reviewed its draft Water Policy, and on 17th July 2002, has framed and published a revised draft Gujarat State Water Policy, as per copy at Annexure "B" to that affidavit. As regards Chandola Lake, it was stated that it was located within the limits of the the Ahmedabad Municipal Corporation and the State Irrigation Department was maintaining it. For water resources to impound Chandola Lake, Kharicut Canal was the feeder, and, natural water from the catchment areas was the other source. It was stated that, it was not possible to impound Chandola to its full capacity due to encroachments on the periphery of the Lake. There were more than 6000 hutments in that area. To prevent further encroachment, a trench measuring 10 ft. deep and 10 ft. wide is excavated outside the periphery of the Lake, and that this had resulted in effective curbing of progression of encroachment. It was also stated that attempts were being made to see that encroachments were removed. A copy of the map of Chandola Lake was annexed at Annexure "C" to that affidavit. 5.7 An affidavit-in-reply dated 30th July 2002 has been filed by the Principal Secretary, Urban Land Development Department of the Government of Gujarat, stating that when the Area Development Authority submits Draft Development Plan, there is a provision for inviting suggestions under section 13 of the Gujarat Town Planning Act. The development plan distinguishes the water bodies which are to be used as water bodies. The Town Planning Scheme is framed under section 40 and even in respect thereof, objections and suggestions are invited before finalizing the scheme. All the lands are required to be used as per the finalized scheme. It was stated that there are development plans of Bhavnagar, Rajkot, Ahmedabad, Surat, Vadodara, Jamnagar and Kutch and some are in the process of making. The Government would collect the data therefrom about the water bodies indicated in those plans and the schemes made thereunder. The Government would also collect the data relating to various ponds in other areas where the Scheme or the Development Plan is not operative and identify them. It was stated that the Irrigation Department of the Government was responsible for maintaining existing minor Irrigation schemes and various dams and reservoirs. It was then stated in paragraph 3 that, in deference to the suggestion made by this Court, the State Government will notify in the Gazette the water bodies and will ensure that no lands forming part of the water bodies be alienated or transferred by the various Area Development Authorities or the Local Authorities and will oversee that the water bodies are maintained and preserved as water bodies. The State Government will also undertake relief works as provided in the Gujarat Relief Manual, and as far as possible, priority shall be given for digging up of water bodies. The Local Bodies and Area Development Authorities will be requested and instructed to see that desiltation may be undertaken in a phased and gradual manner and encroachment is removed also in a phased manner. Care will be taken that water bodies are not converted to any other use in the town planning schemes / development plans that may be made hereafter and the Local Authorities and the Area development Authorities will be instructed to ensure that no debris of buildings is dumped by any person or institution in the existing water bodies. The General Development Control Regulations which are now framed take care as regards the distance to be maintained between the development zone and the water bodies, which was minimum of nine meters, as stated in that affidavit. The Regulations also provide for percolating well to be provided if the area of building exceeds 1500 sq. mtrs. and upto 4000 sq. mtrs. The State Government in that affidavit assured this Court that proper monitoring would be undertaken to oversee the preservation and maintenance of water bodies. 5.8 In the affidavit dated 26th July 2002 filed by the Municipal Commissioner, it has been stated that the Corporation has planned to develop the lakes and ponds in the city. Kankaria Lake is a developed water body having perennial water storage. It has been stated that the Corporation has on priority basis, undertaken the development of Asarava pond, Odhav pond and Naroda pond. It has been further stated that the Atelier, Talati, Architects and Planners are entrusted with the designing and study for rejuvinating of Asarva and Odhav ponds. It is stated that "80% of the work of Asarva and Odhav ponds is completed". The priority for further development is to be given to the ten lakes / ponds mentioned in statement marked at Annexure "I' to this affidavit. The details of fund allocation / expenditure for the purpose in the annual budget of the Corporation for the year 1998-2000 have been given in paragraph 2 of the affidavit. It is then stated that the Corporation has taken up a major programme of rain water harvesting under which 66 defunct borewells are being converted into re-charging wells for rain water. Other 34 units comprising of the percolating wells and percolating pits have been constructed in various gardens of the Corporation and for this work, cost of almost Rs.1 crore has been incurred. It is declared that the Corporation has resolved to help the citizens for constructing percolating wells in their private land as a part of rain water harvesting programme. It is stated that the Corporation is pursuing with the Government of India for allocation of grants for development of lakes. A statement identifying the plots of water bodies which can be developed gradually is annexed with the said affidavit. 5.9 In the affidavit in reply dated 30th July 2002 of the Superintendent Engineer, Irrigating Project Circle, Ahmedabad, it is brought on record that, under the Water Resources Department, there are total 182 major and medium irrigation projects which are completed and 14,208 minor irrigation schemes are executed, as per the statement at Annexure "A" to the affidavit, which gives details of existing percolation tanks. It is stated that all the water bodies as stated in the statement at Annexure "A" are being maintained as water bodies. 5.10 In the further affidavit that has been filed by the Chief Town Planner today, it has been stated that the requirement laid down under Regulation No.14 of the Development Control Regulations is only the minimum prescribed, but whenever planning for a pond is undertaken, the distance to be kept is determined depending upon the location of the water body. It is pointed out that, on the periphery of Kankaria Lake, there is 90 mtrs. to 160 mtrs. of green / recreation zone created. On the south-west side, a distance of 120 mtrs. is retained in respect of Chandola lake. For "Sarasiyu Talav" on its southern side, there is village site and on its northern side, open space is kept upto 100 mtrs. It is stated that, while framing the Scheme, proper distance is always provided for keeping the construction away from the water body, having regard to the requirement of the particular water body, and that the above instances are only illustrative. It is further stated that, when planning for a pond is undertaken, embankment itself is phased with varying width according to the requirement of the pond and this coupled with requirement of the minimum distance of 9 mtrs. from the pond, may lead to a distance of more than 9 mtrs. in which no construction can be made. The State Government had also examined the planning undertaken by the various local authorities and the provision of 9 mtrs. is only for the minimum setbacks for different sizes of plots. It is stated that, such minimum distance to be maintained from water bodies is incorporated in the Regulation after consideration by the Area development Authorities and the State Government in consultation with the Local authorities, and that the said Regulation is reasonable having regard to the development of urban area and considering the maintenance of water bodies. We may here make it clear that the validity of the said Regulation No.14 is not in issue in these petitions. 5.11 In the affidavit dated 1st August 2002 of the Chief Executive Officer of the AUDA, it is stated that, as per Regulation No.14 of the G.D.C. Regulations which are a part of the Development Plan sanctioned by the notification dated 18th May 2002 issued under section 17(1)(C) of the Gujarat Town Planning & Urban development Act, 1976, the distance of 9 mtrs. is required to be earmarked for not carrying out any work of development within that area. It is stated that the AUDA, however, examines each case on individual basis, according to the requirement of the individual water body for the purpose of fixing of peripheral distance from the water bodies. 5.12 In the affidavit-in-reply dated 27th March 2001 filed by the Chief Officer of the Memnagar Nagarpalika in Special Civil Application No. 11049 of 2000, it is stated that the respondent No.1 addressed a letter to the AUDA requesting steps to be taken for removing the encroachments around the pond. A resolution was also passed by the Nagarpalika on 30-12-2000 for obtaining permission for revitalization of "Madaria Talav" from the Collector, Ahmedabad and to get the necessary grant. The Gujarat Municipal Finance Board