Gujarat High Court in Rahimbhai Kalubhai v. State of Gujarat & Ors. [Order dated 20.02.2012]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD 

WRIT PETITION (PIL) No. 10 of 2010 

Rahimbhai Kalubhai

...Petitioner

Versus

State of Gujarat through Secretary & 25

....Respondents

CORAM: HON'BLE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA 

                HON'BLE MR.JUSTICE J.B.PARDIWALA

Date : 20/01/2012

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

The present writ-petition in the nature of public interest litigation has been preferred by the petitioner, a resident of Dhandhuka, District Ahmedabad, with the following prayers:

"45(a) Your Lordships be pleased to admit this petition.

(b) Your Lordships be pleased to issue writ of mandamus or any other writ, order or direction that the land of Sarvarsa Pond of Dhandhuka Town i.e. City Survey No.2416 and 2388 of Survey No.203 be kept only for the purpose of water body and any construction in it be declared illegal, ultravires and the Respondent Authorities be directed to stop and remove such illegal construction.

(c) Your Lordships be pleased to issue writ of mandamus or any other writ, order or direction that the permission granted and/or renewed for the land of Sarvarsa Pond of Dhandhuka i.e. City Survey No.2416 and 2388 of Survey No.203 Town by the respondent Authorities be declared illegal, unauthorised, ultravires and it be quashed and set aside.

(d) Your Lordships be pleased to hold that the decision of the Collector, Ahmedabad Dt.23.04.2010 is bad in law and it be quashed and set aside and the Collector be directed to take proper decision according to law as directed by the Hon'ble Court in SCA 646 of 2009 Dt.03.08.2009.

(e) Your Lordships be pleased to direct that pending admission, hearing and final disposal of this petition any construction activities in City Survey No.2416 and 2388 of Survey No.203 of Sarvarsa Pond of Dhandhuka Town be stayed.

(f) Your Lordships be pleased to grant such other order and further relief/s that deemed fit in the facts and circumstances of the case."

It has been brought to our notice that in the town of Dhandhuka there is a pond known as "Sarvarsha Talav". Its revenue Survey Number is 203, whereas the City Survey Numbers are 2388 and 2416. It appears from the material on record that the authorities concerned have permitted few individuals to put up construction in the said pond for residential purpose as well as for commercial purpose. Record also reveals that earlier in point of time the petitioner had preferred Special Civil Application No.11596 of 2008 bringing to the notice of the Court about encroachment in the water body. However, the petition was disposed of by the Division Bench of this Court by order dated September 17, 2008, relegating the petitioner to approach the respondent Nos.1 and 2, and make them aware of the encroachment made in the pond. It appears that inspite of various representations, no action was taken by the respondent Nos.1 and 2 to remove encroachment. This compelled the petitioner to once again prefer Special Civil Application No.646 of 2009. The Division Bench of this Court vide order dated August 03, 2009, directed the Collector to take appropriate decision within two months. It appears that the Collector failed to take necessary action and, therefore, the third petition in the form of present one has been preferred bringing relevant facts to the notice of this Court.

It is the case of the petitioner in public interest that water is one of the most essential elements of life. Water is required for human consumption, for animals and for the agricultural works and operations. The illegal and unauthorised construction put up within the water body has reduced area of the pond and thereby the purpose for which the pond was created, is being frustrated. The learned Counsel for the petitioner vehemently submitted that the Supreme Court in Hinch Lal Tiwari v. Kamla Devi, reported in AIR 2001 SC 3251, held that the land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or for any allied purpose. The Supreme Court in the said case ordered the respondents to vacate the land they had illegally occupied after taking away material of the house. The learned counsel for the petitioner also brought to our notice the judgment of the Supreme Court in Jagpal Singh and others v. State of Punjab and others, reported in AIR 2011 SC 1123 and relied on the following paragraphs of the said decision which are reproduced as under:

"17. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.

18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.

19. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.

xxx xxx xxx

22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

Being satisfied prima facie with the bona fide of the petitioner, this being a public interest litigation and also being satisfied with the public interest involved in the matter, notice was issued upon the respondents. On February 4, 2011, this Court passed the following order:

"From the record and on discussions, it appears that a part of the water body as shown in the revenue record has been auction sold in favour of certain persons and 20 persons have already made construction over such water body. The Collector, Ahmedabad and Dhanduka Nagar Palika are directed to give list of such persons with their present address, including the persons in whose favour the part of the water body has been auction sold, but no construction has been made, so as to implead them as party respondents to the present case and to give notice. Court may ask them as to why the auction sale of water body be not cancelled and construction, if any, made be not demolished. Post the matter on 10.2.2011 within five cases."

In response to the notice issued, the fourth respondent filed affidavit-in-reply giving details about the names and addresses of the property holders having constructed the structures over the water body. The petitioner was allowed to implead 20 persons said to have encroached upon the pond by putting up unauthorised construction as party respondent Nos.7 to 26 to the writ-petition.

On March 14, 2011, this Court passed the following order :

"It appears that the water body (pond) has been settled or auction-sold or sold in favour of one or other party-respondents and construction has been made thereon. As such auction for construction of houses over water body is against the public interest, to find out as to what further measure is required to be taken, we direct the Collector, Ahmedabad (Rural) to get the land of the area of each of the respondents, i.e. respondents nos. 5 to 26, measured through a Surveyor in presence of an officer not below the rank of Deputy Collector, and submit a report relating to construction over the water body along with photographs of the total water body and each of the constructed structure over the respective area allotted to respondents nos. 5 to 26. The report must be filed within a month. Let a copy of this order be handed over to Mrs. Manisha Lavkumar Shah, learned A.G.P., for information to the Collector, Ahmedabad (Rural). Post the matter on 25th April 2011."

The District Collector, Ahmedabad, filed his report in this regard. The following facts emerge from the said report :

"1. It has not been disputed that the construction has been made by respondents Nos. 5 to 26 and others on water body;

2. All the respondents have been allotted land in Survey No. 203 at different point of time between 1982 to 2003 for various purposes;

3. Out of 20 respondents, 16 have encroached over land more than the allotted area.

4. There are 42 property holders out of whom 18 have been allotted by Collector between 1967 to 1996 and rest 24 are encroachers.

5. From the photograph, it appears that still there is vacant portion of the pond, but major part of it has dried with slit deposited in the pond."

In light of the report of the District Collector, Ahmedabad, this Court on April 25, 2011, passed the following order :

"In the circumstances, we direct the respondent State, particularly Collector, Ahmedabad (Rural) to suggest the measures that will be taken for removal of encraochment, revival of the pond, protection of the pond from further encroachment and protecting the interest of persons who have been allotted land over that portion of the water body.

Before the next date, the Competent Authority will issue notice on those who have encroached beyond the allotted area or those who have encroached the pond without any allotment, and after giving them opportunity of hearing, and if necessary on taking re-measurement of their area on the basis of their allotment, if any person is found to have encroached beyond the allotted land or without any allotment he has encroached, the Collector may remove such encroachment. However, if any structure has been constructed by the State Government, Central Government, Public Sector Undertaking for Office purpose or by a religious body, no action be taken till further order is passed by the Court.

In the notice for removal of encroachment, the authority will give reference of the case so that the aggrieved persons, if intend to move the Court, may bring the matter to the notice of the Court in the petition, which will be heard along with the present case.

The Collector and State authority will ensure that no further encroachment is made by any person over the pond/water body in question.

Let a copy of this order be handed over to the Government Pleader for information to the Collector, Ahmedabad (Rural) for necessary action, who will submit action taken report by the next date.

Post the matter on 4th July, 2011."

Pursuant to the order dated April 25, 2011 passed by this Court, steps were taken by the Collector, Ahmedabad, to remove encroachment to a large extent. All those persons who were not allotted any land and were encroacher were the the first to be removed from the land in question. Record also reveals that the others who were allotted land by the authorities, but encroached beyond the allotted area were also removed from the encroached portion. In this regard, this Court on July 20, 2011 passed the following order :

"An affidavit enclosing copy of the action taken report has been filed by the respondent - Collector, Ahmedabad pursuant to the earlier order passed in this case. From the list, it appears that many of the persons who encroached over the land have been removed.

Those persons who have not been allotted any land and were encroachers, they have been removed from the land in question. The others who have been allotted land by the respondent but encroached beyond the allotted area, such encroached portion has been removed.

It is stated that in compliance with the directions of this Court dated 25th April 2011 for revival of pond, the Superintending Engineer, Irrigation Circle, Ahmedabad has been instructed for necessary action vide letter dated 23rd May 2011. For the compliance of the direction of the Court for protection of the pond from further encroachment and protecting the interest of the persons who have been allotted land over the portion of the water body, the Mamlatdar, Dhandhuka and the Chief Officer, Dhandhuka Nagarpalika have been instructed.

In the facts and circumstances of the case, while we direct the respondent to revive the pond named Sarvarsha lake, we further direct the Collector, Ahmedabad to find out as to who have been illegally allotted land on the Sarvarsha lake and shown as the water body in the revenue record. If any portion of Sarvarsha lake, shown as the water body in the revenue record has been allotted in favour of one or other persons, the competent authority of the State may issue notice to such allottees as to why such allotment be not cancelled having made on the water bodies and such allotment being against the decision rendered by the Supreme Court.

It will be also open to the competent authority to allot some other land, which is not a water body, to such allottees who have been allotted land on the water body, on their giving undertaking that they are ready to shift to other place. On failure to do so, the competent authority may remove such allottees from the water body.

A copy of this order be handed over to the learned AGP, who, in turn, forward the same to the Collector, Ahmedabad, the Principal Secretary, the Mamlatdar, Dhandhuka and the Chief Officer, Dhandhuka Nagarpalika.

Action taken report be submitted by the next date.

Post the matter on 29th August 2011."

We have taken notice of the fact that by passage of time and with various orders passed by this Court from time to time, the authorities have taken necessary steps to remove the encroachment as far as possible. However, the learned Government Pleader Mr.P.K. Jani brought to our notice that as on today there are only 40 occupants of the land in question and that too, on the sides i.e. on the periphery of the pond and not actually inside the pond. A statement of 40 occupants has been placed on record along with the affidavit-in-reply dated December 7, 2011 filed by Shri S.K. Prajapati, Deputy Collector, Dhandhuka. The learned Government Pleader brought to our notice that out of 40 occupants, three occupants are Government offices, viz. (1) Sub Divisional Engineer's office, B.S.N.L., (2) Executive Engineer's Office, Roads and Buildings Department, Ahmedabad and (3) Treasury Officer's Office, Ahmedabad.

The Government Pleader brought to our notice that the three offices were allotted land almost two decades ago vide order passed by the Deputy Collector, Ahmedabad. The learned Government Pleader also brought to our notice that so far as 37 independent persons are concerned, they were actually allotted land vide orders passed by the Collector, Ahmedabad. We have noticed that some of the orders are almost more than two decades old. This is suggestive of the fact that out of 40 occupants who are yet to be removed, most of them are in possession of the land in question for the last almost 20 years and they were allotted the lands on the strength of the terms and conditions in the orders which were passed by the Deputy Collector, Ahmedabad. Apart from this, the learned Government Pleader also tried to explain us the exact position by showing us the map of the pond in question which is annexed at page 261 of the paper-book. Perusal of the map is indicative of the fact that most of the constructions are on the periphery of the pond in question, except the B.S.N.L. building. Rest of the portion of the pond appears to be open. The learned Government Pleader, therefore, submitted that 40 occupants as shown in the last statement at page 324 of the paper-book, who are in possession past more than 20 years and were allotted the land by the Deputy Collector, Ahmedabad, may not be disturbed as an exceptional case with clarification that in the peculiar facts and circumstances of the case and without citing the same as a precedent, they are not ordered to be removed from the land in question.

Ordinarily, we would have declined this prayer of the learned Government Pleader in public interest. Public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, water bodies, passages, cremation ground or graveyards, etc. However, in the present case, we have noticed that for the reasons best known to the then Collector, Ahmedabad, lands were actually allotted by passing orders, subject to certain terms and conditions and on the strength of the orders of the allotment, the respective allottees took over the possession and has put up construction. It is not the case as if all of a sudden one fine day without any permission the land has been encroached upon and construction has been put up. The second thing which finds favour with us is that the said 40 occupants are almost on the periphery of the pond in question and not actually inside the pond.

We have also taken into consideration one another important aspect which cannot be overlooked or ignored. The three Government offices which are functioning are also discharging and performing public functions in the interest of the general public at large. Taking this also into consideration, we are inclined to protect the Government offices.

It is in this background of special circumstances emerging from record that we are inclined to protect these 40 occupants who have been named in the list annexed by the Deputy Collector with his affidavit-in-reply at page 324. We are inclined to close this Public Interest Litigation with clarification that the persons who have been named in the list at page 324 may not be evicted. We clarify that if it is possible for the authorities to allot any alternative land and if any of the occupants are ready and willing to shift to such alternative site or land, then the authorities may proceed in that direction. However, they shall not be removed or evicted if they are not willing to shift to such alternative site.

We also direct the concerned authorities to ensure that the pond is well protected from all sides so that in future there may not be any illegal encroachment upon the same. To ensure about this, the authorities shall take all possible steps, including erection of a protective boundary in the form of a wall or a strong barbed-wire fence. In future, if it is found that because of gross negligence or dereliction of duties on the part of the concerned officers, the pond is once again encroached upon or some illegal construction is put up, then such erring officers shall be held personally responsible for the same.

With above observations and directions, this public interest litigation is closed and the same is disposed of. However, there shall be no order as to costs.