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2017 DIGILAW 971 (GUJ)

Shantilal Maganbhai Vaghela v. State of Gujarat

2017-05-04

R.SUBHASH REDDY, V.M.PANCHOLI

body2017
JUDGMENT : V.M. Pancholi, J. 1. This petition is filed by way of Public Interest Litigation in which the petitioners have prayed for the following reliefs; "(A) Your Lordships may be pleased to allow the present writ petition (PIL). (B) Your Lordships may be pleased to issue a suitable writ/order/direction and to hold that the action of the respondent authorities in not deciding the representation dated 24.12.2014 being illegal, unreasonable, unconstitutional and contrary to the settled legal position and therefore, the same is violative of Article 15, 48-A, 51A(g) of the Constitution of India. (C) Your Lordships may be pleased to issue a suitable writ/order/direction and to quash and set aside the action of the respondents authority in violating the directions issued by the Division Bench of this Hon'ble Court in identical matter which have been reported as 2002(3) GLH 642 in SCA No. 10621/2000, SCA No. 11049/2000, SCA No. 11635/2000 and further be pleased to direct the respondents authority to remove the illegal status/encroachment and/or any construction constructed by the respondent authorities. (D) Your Lordships may be pleased to issue a suitable writ/order/direction and to initiate the appropriate proceedings against the erring Officer who have committed the breach of the directions issued by this Hon'ble Court to protect, maintain and preserve the water bodies in the local area in the interest of justice. (E) Any other and further reliefs may kindly be granted in the facts and circumstances of the case." 2. It is the case of the petitioners that they are residents of Nadiad Town and are residing nearby "Sher Talavdi". The petition is filed in public interest as the respondent-authorities have granted N.A. Permission to respondent No. 4-Society for constructing residential houses for its Members. It is mainly alleged that "Sher Talavdi" is an area where a "water body" (Pond) is situated. The said land is a waste land, situated in the sim of "Lakhavad" bearing Revenue Survey No. 607 ad-measuring 24 acres and 23 gunthas, forming part of Nadiad Nagarpalika. The said Survey No. is converted into different Plots and the dispute is with regard to Final Plot No. 311 in T.P. Scheme No. 2 ad-measuring 10,790 sq. metres. 3. It is alleged that until 1973, the said land was in the name of the Nagarpalika and is a water body (Pond). The said Survey No. is converted into different Plots and the dispute is with regard to Final Plot No. 311 in T.P. Scheme No. 2 ad-measuring 10,790 sq. metres. 3. It is alleged that until 1973, the said land was in the name of the Nagarpalika and is a water body (Pond). It is the case of the petitioners that the land bearing Survey No. 607 of Nadiad Nagarpalika remained as a Pond and even as on today, it is filled with water. The petitioners have placed reliance upon the Circular dated 05.03.2001 issued by the Urban Development and Urban Housing Department of the State of Gujarat as well as the Circular dated 12.11.2011 issued by the Director of Nagarpalika, by which Survey No. 607 of Nadiad Nagarpalika is declared as a water body. It is, therefore, the case of the petitioners that the Nagarpalika has no authority to sell the land to anybody. In spite of that the Nagarpalika has sold the land to respondent No. 4-Society and the Chairman of respondent No. 4-Society has sought necessary permission from the District Collector. 4. It is the case of the petitioners the District Collector passed order granting N.A. permission in favour of respondent No. 4-Society. The said order was challenged by the petitioners by filing Revision Application before the Additional Secretary, Revenue Department (Appeals). However, the said Revision Application was dismissed, by order dated 22.06.2014 mainly on the ground that the petitioners had no locus standi to file the Revision Application and that the reliefs prayed for are not in public interest. 5. The petitioners had, therefore, preferred Writ Petition (PIL) No. 270 of 2014 before this Court. However, the said petition came to be withdrawn with a view to file representation before the State authorities. It is stated that though the petitioners made a representation to the respondent authorities, the same has not been decided till date. Therefore, the petitioners have preferred the captioned writ petition before this Court. 6. Heard learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. K.R. Koshti for the petitioners, learned G.P. Ms. Manisha Shah for respondents No. 1 & 2, learned advocate Mr. Mehul Sharad Shah for respondent No. 3-Nagarpalika and learned advocate Mr. Dipen Desai for respondent No. 4-Society. 7. Learned Senior Advocate Mr. 6. Heard learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. K.R. Koshti for the petitioners, learned G.P. Ms. Manisha Shah for respondents No. 1 & 2, learned advocate Mr. Mehul Sharad Shah for respondent No. 3-Nagarpalika and learned advocate Mr. Dipen Desai for respondent No. 4-Society. 7. Learned Senior Advocate Mr. Anshin Desai appearing for the petitioners, at the outset, placed reliance upon the Division Bench judgment of this Court in the case of Shailesh R. Shah v. State of Gujarat reported in 2002 (3) GLR 2295 and submitted that the Division Bench of this Court has directed the State authority to protect and improve the water bodies, such as lakes, ponds, etc. Direction was also issued to notify the lakes and ponds and to maintain and preserve the water bodies. It is submitted that in pursuance of the directions issued by this Court, the Revenue Department of the State of Gujarat issued the Resolution dated 27.08.2001 whereby, guidelines have been framed for the protection of water bodies. By Circular dated 12.11.2001, the State Government has framed guidelines for the maintenance of water bodies falling within the jurisdiction of Nagarpalikas and instructions regarding inspections to be carried out by the respective Nagarpalikas, as per the direction given by the Division Bench of this Court in the aforesaid judgment. 7.1 It was submitted that on the basis of the Resolution and Circulars issued by the State Government, the District Collectors of the respective regions were directed to prepare the list of all such water bodies, along with their conditions, after carrying out personal inspection and to prepare reports. It was also directed that the District Collectors shall take personal interest in order to make sure that there is no encroachment in the area of lakes, ponds and other water bodies. 7.2 Learned Senior Advocate Mr. Desai, thereafter, submitted that the State of Gujarat published the Notification dated 10.01.2005 notifying certain areas as lakes and ponds in the State of Gujarat under the definition of "water bodies". It is submitted that the land bearing Survey No. 607 of "Sher Talavdi" has been notified as a "water body". At this stage, it is submitted that the respondent No. 4-Society was incorporated long back. However, it was under liquidation and the Liquidator was appointed by the District Registrar on 29.11.2007. It is submitted that the land bearing Survey No. 607 of "Sher Talavdi" has been notified as a "water body". At this stage, it is submitted that the respondent No. 4-Society was incorporated long back. However, it was under liquidation and the Liquidator was appointed by the District Registrar on 29.11.2007. Thereafter, the newly appointed Members and Chairman of respondent No. 4-Society submitted application to the District Registrar on 29.11.2007 praying for reconstruction of respondent No. 4-Society, vide application dated 07.10.2011. On the said application, the District Registrar passed an order granting permission to reconstruct the said Society. Thereafter, the respondent No. 4 made an application to the District Collector on 10.02.2012 and requested for the grant of N.A. Permission. The Chief Officer gave necessary opinion in favour of respondent No. 4. The District Collector, thereafter, granted N.A. Permission to respondent No. 4 on 26.09.2012. It is contended that when the said order came to be challenged by the petitioners in Revision, it was dismissed by the Additional Secretary, Revenue Department (Appeals). 7.3 Learned Senior Advocate Mr. Anshin Desai, thereafter, submitted that on 04.04.2013, the Mamlatdar sent an urgent communication to the Chief Officer of the Nagarpalika for restraining earth levelling work and for removal of earth from the pond. The Deputy Collector also informed the Additional Collector, on the basis of the investigation carried out, that if the work is continued, then there would be water logging in the area during monsoon season and therefore, any kind of construction is not advisable. The Chief Officer of the Nagarpalika, therefore, sent notice to respondent No. 4-Society. Thereafter, inspection of the area was carried out by the Geologist, Nadiad and the said authority passed an order directing the respondent No. 4 to pay the penalty of Rs. 15,00,774/- for the illegal action of filling up the pond. Thus, it is submitted that the respondent authorities have wrongly granted permission to respondent No. 4 to carry out construction on the land in question by granting N.A. permission. 7.4 It is submitted that though the petitioners approached this Court by filing Writ Petition (PIL) No. 270 of 2014, the said petition came to be withdrawn with a view to approach the Government authorities for appropriate reliefs. However, though representation is made, no decision is taken by the respondent authorities and therefore, the present petition is filed. 7.4 It is submitted that though the petitioners approached this Court by filing Writ Petition (PIL) No. 270 of 2014, the said petition came to be withdrawn with a view to approach the Government authorities for appropriate reliefs. However, though representation is made, no decision is taken by the respondent authorities and therefore, the present petition is filed. It was, therefore, prayed that the petition be allowed and the reliefs as prayed for be granted. 8. On the other hand, learned advocate Mr. Mehul Shah appearing for the respondent Nadiad Nagarpalika submitted that the Revenue Survey No. 607 was earlier known as "Sher Talavdi". However, after T.P. Scheme No. 2 was implemented, it was divided into 08 plots, viz. Final Plots No. 305, 307, 310, 312, 311, 306, 308 and 309. It is submitted that Loyola Training Center was constructed over Final Plot No. 306. Kalpvruksh Cooperative Housing Society was constructed over Final Plot No. 308 and Indiranagar Vasahat was constructed over Final Plot No. 305 wherein 257 persons have been allotted houses by the District Collector, Kheda. So far as Final Plot No. 311 is concerned, it was allotted to Nadiad Nagarpalika for residential purpose. The Nadiad Nagarpalika by Resolution dated 01.07.1972 had allotted this land to the employees of Nadiad Nagarpalika, who have formed a Housing Society. The registered sale deed dated 23.10.1973 was also executed in favour of the Society. Thereafter, Notification dated 25.09.1984 of T.P. Scheme No. 2 was finalized and the land allotted to the Society was given Final Plot No. 311. It is contended that the Chairman of the said Society applied for grant of N.A. permission before the District Collector and therefore, the District Collector, after following procedure, passed an order on 26.09.2012 whereby, N.A. Permission was granted. It is submitted that the said order of the District Collector was challenged by the petitioners by filing Revision Application No. 3 of 2013 before the appellate authority. However, the said Revision Application was dismissed on 24.06.2014. It is submitted that on the basis of N.A. Permission granted by the District Collector, the Nadiad Nagarpalika granted development permission to the members of the Society. At this stage, it is further submitted that the land in dispute is shown in T.P. Scheme for residential purpose and the Nadiad Nagarpalika has granted permission to construct the residential houses. It is submitted that on the basis of N.A. Permission granted by the District Collector, the Nadiad Nagarpalika granted development permission to the members of the Society. At this stage, it is further submitted that the land in dispute is shown in T.P. Scheme for residential purpose and the Nadiad Nagarpalika has granted permission to construct the residential houses. It is, therefore, contended that the land in question cannot be said to be a part of "water body" as alleged by the petitioners. It is submitted that in absence of challenge to the T.P. Scheme itself, which was finalized in the year 1984, it is not open to the petitioners to file the present public interest litigation. 8.1 Learned advocate Mr. Shah thereafter submitted that the petitioner had earlier filed Writ Petition (PIL) No. 270 of 2014 before this Court. However, the said petition was withdrawn for approaching the Government authorities for appropriate reliefs and therefore, the said petition was not pressed and disposed of. It is submitted that no liberty was reserved to file fresh petition for the same cause of action and therefore, the present petition is not maintainable. Hence, the same be dismissed. 9. Learned Government Pleader Ms. Shah supported the submission canvassed by learned advocate Mr. Mehul Shah appearing for the respondent Nadiad Nagarpalika. It is further submitted that the District Collector has not committed any error while granting N.A. Permission in favour of respondent No. 4 Society. When the T.P. Scheme was finalized in the year 1984 and the land in dispute is shown as the land for residential purpose, the present petition is misconceived and therefore, the same be dismissed. At this stage, it is further pointed out that the petitioners are also residing in Survey No. 607 and therefore, when the petitioners themselves are residing in the same area, it is not open for them to contend that Survey No. 607 is shown as water body and therefore, the respondents cannot grant N.A. Permission or development permission. The said submission is misconceived. It is, therefore, requested that the present petition be dismissed. 10. Learned advocate Mr. Dipen Desai appearing for the respondent No. 4 submitted that the present petition is not a public interest litigation but the petitioners have personal interest as they are residing near the land in question. The petitioners are also residing in the Societies constructed in Survey No. 607. 10. Learned advocate Mr. Dipen Desai appearing for the respondent No. 4 submitted that the present petition is not a public interest litigation but the petitioners have personal interest as they are residing near the land in question. The petitioners are also residing in the Societies constructed in Survey No. 607. Therefore, it is not a public interest litigation but the petition is filed in private interest. Hence, only on this ground, the petition deserves to be dismissed. Learned advocate Mr. Desai thereafter submitted that in the year 1973 the land in question was given to the respondent No. 4 Society by registered sale deed executed on 23.09.1973. Thus, the respondent No. 4 became the owner of the land in question. It is submitted that when the T.P. Scheme has been implemented in the year 1984, without challenging the Final T.P. Scheme, it is not open for the petitioners to file the present petition. It is submitted that the District Collector has, after following due procedure, granted permission to convert the land into N.A. Use. It is submitted that the respondent Nadiad Nagarpalika also granted permission to construct the residential houses as the land in question is shown as the land for residential purpose in the T.P. Scheme. It is, therefore, requested that this petition be dismissed. Learned advocate Mr. Desai submitted that by way of communication dated 19.05.2015 from the Office of the Nadiad Nagarpalika addressed to the District Collector, Kheda, they have sought opinion inasmuch as whether to grant construction permission to the respondent Society or not. It is also stated that the Nadiad Nagarpalika has constructed the water-way after incurring expenditure of Rs. 4 Crores for smooth flow of the water in and around the disputed land and there is no water logging during the monsoon season. Thus, the grievance made by the petitioners is without any basis. Learned advocate Mr. Desai submitted that the petitioners filed Writ Petition (PIL) No. 270 of 2014 before this Court for similar relief. However, the said petition came to be withdrawn with a view to approach the State authorities for appropriate relief. No liberty was granted for filing a fresh petition and therefore, this petition is second round of litigation, which is not permissible. It is, therefore, requested that the petition be dismissed. 11. However, the said petition came to be withdrawn with a view to approach the State authorities for appropriate relief. No liberty was granted for filing a fresh petition and therefore, this petition is second round of litigation, which is not permissible. It is, therefore, requested that the petition be dismissed. 11. Having considered the submissions canvassed on behalf of learned advocates for the parties and having perused the material on record, it has emerged that the area known as "Sher Talavdi" was divided into 08 different Final Plots situated in T.P. Scheme No. 2, which was implemented in the year 1984. The Final Plots No. 305, 306, 307, 308, 309, 310, 311 and 312 are given to the original Survey No. 607. It is not in dispute that the present petitioners are also residing in Final Plot No. 307, which was, originally, part of Survey No. 607. It is also not in dispute that Final Plot No. 305 is allotted to Indiranagar Vasahat wherein, different houses are constructed. Loyola Training Center was constructed in Final Plot No. 306 whereas, Final Plot NO. 308 is given to Kalpvruksh Housing Society. The land in dispute, which is part of Final Plot No. 311, was allotted to Nadiad Nagarpalika for residential purpose. In fact, the Nadiad Nagarpalika, by Resolution dated 01.07.1972, allotted the land in question to its employees, who have formed Dattatrai Co-operative Housing Society. The registered sale deed was executed in favour of the said Society on 23.10.1973. The land in question is shown as land for residential purpose in the T.P. Scheme. 12. It is true that the respondent No. 4 Society was in liquidation. However, after its revival, the Chairman of the said Society requested for grant of N.A. Permission and the Collector, Kheda passed an order on 26.09.2012 wherein, N.A. Permission is granted in favour of the respondent No. 4. The said order came to be challenged by the petitioners by filing Revision Application before the appellant authority. The said Revision Application was dismissed vide order dated 26.06.2014. While rejecting the Revision Application, the appellate authority observed that the petitioners had no locus standi to challenge the order of grant of N.A. Permission. However, the appellate authority also examined the merits of the case and considered the various conditions imposed by the District Collector while granting N.A. Permission. 13. While rejecting the Revision Application, the appellate authority observed that the petitioners had no locus standi to challenge the order of grant of N.A. Permission. However, the appellate authority also examined the merits of the case and considered the various conditions imposed by the District Collector while granting N.A. Permission. 13. It is also revealed that Writ Petition (PIL) No. 270 of 2014 filed by the very petitioners before this Court was withdrawn on 10.09.2014 without reserving any liberty to file a fresh petition. It is also revealed from the record that before granting the development permission, the respondent Nadiad Nagarpalika sent a communication to the District Collector, Kheda wherein, it was stated that the Nadiad Nagarpalika has constructed the water-way after incurring expenditure of Rs. 4 Crores for the smooth flow of water in and around the disputed land and there is no water logging even during monsoon season. Thus, the Nadiad Nagarpalika has after considering the various aspects, granted development permission in favour of respondent No. 4. 14. It is true that in the judgment rendered by this Court in the case of Shailesh R. Shah (supra), the Division Bench of this Court has directed the State authorities to protect the water bodies such as lakes, ponds, etc. Direction was also issued to notify the lakes, ponds, etc. and to maintain and preserve them. Pursuant to such directions issued by this Court, the Revenue Department issued the Government Resolution dated 27.08.2001 whereby, guidelines have been framed for protection of the water bodies. Circular dated 12.11.2001 was also issued by the State Government by which guidelines have been framed for the maintenance of water bodies falling within the jurisdiction of the Nagarpalikas. From the Notification dated 10.01.2005 issued by the State Government and from the list produced along with the said Notification, it is revealed that "Sher Talavdi" was declared as water body. However, the petitioners have failed to demonstrate that Final Plot No. 311, where the land in question is situated, is falling within the area of water body. 15. At this stage, it is also relevant to note that the petitioners are also residing in Survey No. 607 and therefore, it is not open for them to contend that Survey No. 607 is reserved as water body and therefore, the respondent authorities have wrongly granted the N.A. and development permission in favour of respondent No. 4. 15. At this stage, it is also relevant to note that the petitioners are also residing in Survey No. 607 and therefore, it is not open for them to contend that Survey No. 607 is reserved as water body and therefore, the respondent authorities have wrongly granted the N.A. and development permission in favour of respondent No. 4. It is also clear from the record that the petitioners have not challenged the Final T.P. Scheme No. 2 implemented in the year 1984 whereby Survey No. 607 has been divided into different Final Plots, as discussed herein above. 16. In view of the aforesaid discussion, we are of the view that the respondents have not committed any illegality while granting N.A. and development permission in favour of respondent No. 4. Hence, we find no merits in this public interest litigation. Accordingly, the petition is dismissed. Consequently, the Civil Applications stand disposed of.