HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 752/2016
Suo Moto
----Petitioner
Versus
State Of Raj. And Anr
----Respondent
Connected With
D.B. Civil Writ Petition No. 13609/2019
Kanwraj Singh Rathore S/o Shri Chandan Singh Rathore, Aged
About 41 Years, R/o Achalpura Post Luna Khurd Tehsil Pokaran
District Jaisalmer At Present Residing Maharana Pratap Marg,
Gandhi Colony, Jaisalmer (Raj)
----Petitioner
Versus
1. State of Rajasthan, Through Secretary Department of
Local Self Government, Rajasthan Jaipur.
2. State of Rajasthan, Through Director of Local Bodies,
Rajasthan, Jaipur.
3. Department of Tourism, Art And Culture, Jaipur Through
Its Secretary.
4. The Secretary, Department of Water Resources, Chariman
of Lakes (Development And Protection) Authority, Jaipur.
5. Director, Department of Archeology And Museum, Albert
Hall, Jaipur.
6. Superintendent Archeological And Museum Department,
Circle Jodhpur.
7. Curator, Government Museum Jaisalmer.
8. Municipal Corporation, Jaisalmer Through Its
Commissioner.
9. Municipal Corporation, Jaisalmer Through Its Chairman.
10. District Collector, Jaisalmer.
----Respondents
For Petitioner(s) : Mr,. Bhavit Sharma, Amicus Curiae
Mr. Manas Khatri
For Respondent(s) : Mr. Manish Vyas, AAG
Mr. Sunil Beniwal, AAG with
Mr. Utkarsh Singh
Mr. D.S. Rajvi for JDA
Mr. Rajesh Panwar for Municipal
Corporation
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
29th September, 2021
Per Hon'ble Mr. Sangeet Lodha, J.
1. By an order dated 15.1.16, this Court taking cognizance of a detailed report published in "Rajasthan Patrika", a leading daily newspaper of the State, pointing out deleterious inaction on the part of the State authorities in maintaining and conserving the old temples and the water bodies of Jodhpur City namely, Achalnath Shivalaya, Kunj Bihari Mandir, Arna Jharna, Bhadreshiya Tirth & Vishnu Kund, directed the Deputy Registrar (Judicial) of this Court to register the news item published as Writ Petition (PIL) and issued notices to the State of Rajasthan, District Collector, Jodhpur and Municipal Corporation, Jodhpur. In response to the notice, the respondents put in appearance before this Court.
2. On 11.2.16, this Court issued directions to the Municipal Corporation, Jodhpur and District Collector, Jodhpur to prepare a complete plan for protection and development of the water bodies as well as the old temples. Directions were issued to clean the areas adjoining to the lakes and temples. Later, vide order dated 20.4.16, the notices were directed to be issued to the Commissioner, Devasthan to explain as to what steps are being taken to protect all the properties of Devasthan in the city of Jodhpur. The progress of maintenance, cleaning and conservation of the lakes and temples was being monitored by this Court by issuing appropriate directions. In the meantime, the issue with regard to the framing of new policy by the Department of Devasthan for protection of Devasthan properties in the State of Rajasthan and in other part of the country, cropped up for consideration of this Court. Pursuant to the directions issued, the Department of Devasthan produced the list of the properties of Devasthan before this Court. The Court expressed its concern to protect and secure the immovable properties of the Devasthan in the State of Rajasthan and throughout the country. The Department of Devasthan, Government of Rajasthan, placed on record Rajasthan Devasthan Rent Policy, 2021, which has come into force w.e.f. 1st April, 2021.
3. Pursuant to order dated 16.4.21 passed by this Court, on 6.8.21, Mr. Bhavit Sharma, Amicus Curiae filed detailed composite affidavit regarding the compliance made and issues raised in the present writ petition. Learned Amicus Curiae submitted the report giving the details regarding the condition of the various lakes/water bodies of the Jodhpur City, namely, Gulab Sagar, Bal Samand Lake, Ummed Sagar, Goverdhan Talab, and drawn attention of this Court to dilapidated condition, lack of cleanliness, contamination and massive destruction of the lakes and other water bodies of Jodhpur City. The Amicus Curias has also drawn the attention of the Court towards the encroachments made on the catchment area of the water bodies. It is pointed out that Bal Samand Lake which is fed by several feeder canals is on the brink of extinction due to illegal mining activities carried out in the vicinity of Bal Samand Lake and feeder canals.
4. The Municipal Corporation, Jodhpur has filed response to the report submitted by the learned Amicus Curiae, wherein it is stated that Gulab Sagar and Fateh Sagar lakes are under the control of the Municipal Corporation, Jodhpur. The steps were taken by the Municipal Corporation time and again for renovation and beautification of the water bodies. The fountains were also installed, but due to continuous throwing of garbages by the locals, the problem still persists. It is pointed out that the State Government has sanctioned Rs. 3 crores for beautification, renovation of Gulab Sagar and Fateh Sagar and pursuant thereto, the Municipal Corporation has already invited Expression of Interest (EoI) for consultancy work for preparing detailed project report for beautification and renovation of Gulab Sagar and Fateh Sagar. It is pointed out that for complete development of Baiji Ka Talab, a detailed project report of 7.22 crores has been prepared. Regarding Ganglao Talab, DPR of 6.02 crores was prepared but due to financial constraint, the work could not be undertaken. Regarding Ummed Sagar and Bal Samand Lake, it is stated that though the said water bodies fall within the jurisdiction of the Municipal Corporation, Jodhpur, the Ummed Sagar is maintained by Irrigation & Public Health Engineering Department.
5. Vide order dated 2.9.21, yet another Writ Petition D.B.Civil Writ (PIL) Petition No.13609/19, pending before this Court, which relate to Gadisar Lake of Jaisalmer, was directed to be listed alongwith present writ petition. In the said writ petition filed, the petitioner has sought direction to declare Gadisar Lake and the area adjoining thereto, as protected area as per the provisions of Rajasthan Lakes (Protection and Development) Authority Act, 2015 ('the Act'). The petitioner has also questioned the resolutions adopted by Municipal Council, Jaisalmer for development and beautification of Gadisar Lake, which according to the petitioner would damage very foundation of 'Talab Ki Paal' comprising khasra no.488 & 490 of Revenue village Jaisalmer.
6. It is noticed that in the first instance, the Governor of Rajasthan promulgated Rajasthan Lakes (Protection and Development) Authority Ordinance, 2015 ('Ordinance, 2015'), in exercise of the power conferred under Article 213 of the Constitution of India, providing for development and protection of the lakes in the State of Rajasthan, for constitution of Lake Development Authority ('the Authority') for the purposes and the matters connected therewith and ancillary thereto.
7. In exercise of the power conferred by Section 8 of the Ordinance, 2015, the State Government vide notification dated 23.2.15, published in Rajasthan Gazette dated 2.3.15 constituted the Authority, for the purpose of protection and development of the lakes and carry out all the functions entrusted to it under the Ordinance, 2015. The Authority in its turn in exercise of the power conferred under Section 9 of the Ordinance, 2015, constituted District Level Lakes Protection and Development Committee ('District Level Committee') for each districts of Rajasthan for the purpose of carrying out its functions provided under Section 6 of Ordinance, 2015. The constitution of the Authority and District Level Committee, is as follows:
Rajasthan Lakes Development Authority
1. Principal Secretary, Local Self Government Chairman
2. Nominee of Principal Secretary, Finance not Member below the rank of Secretary
3. Nominee of Principal Secretary, Revenue Member not below the rank of Secretary
4. Commissioner, Panchayati Raj Member
5. Nominee of the Additional Chief Member Secretary/Principal Secretary, Urban Development and Housing Department not below the rank of Joint Secretary.
6. Secretary, Water Resource Department. Member
7. Nominee of the Principal Chief Conservator Member of Forest not below the rank of Additional Chief Conservator of Forest
8. Member Secretary of Rajasthan Pollution Member Control Board
9. Director, Fisheries Department Member
10. Director, Tourism Department Member
11. Director, Local Bodies Member Secretary
12. Two experts nominated by the State Member Government District Level Lakes Protection and Development Committee for each district
1. District Collector Chairman
2. Chief Municipal Officer of the Municipality Member of District Head Quarter Secretary
3. Secretary of the concern Development Member Authority/Urban Improvement Trust
4. Chief Executive Officer of Zila Parishad Member
5. Conservator of Forest or his nominee not Member below the rank of Deputy Conservator of Forest. In case there are more than one officer of this rank posted, concerned CCF shall nominate one officer from among them to this Committee.
6. Superintending Engineer of his nominee Member not below the rank of Executive Engineer of Water Resources Department
7. Nominee of Director, Tourism Department Member
8. Nominee of Director, Fisheries Department Member
9. Nominee of Member Secretary of Rajasthan Member Pollution Control Board
8. Later, the State Legislature enacted the Act and accordingly, by virtue of Section 37 of the Act, the Ordinance, 2015 stood repealed. However, notwithstanding such repeal, all the things done, action taken or orders made under the Ordinance, 2015 are deemed to have been done, taken or made under the Act.
9. Vide sub-section (1) of Section 3 of the Act, it is declared that notwithstanding any contained in any law, instrument or order, protection and development of all lakes, from the date of commencement of the Act, shall vest in the State Government and no person shall undertake any activity whatsoever within the boundaries of a lake or use or draw any produce or water from a lake otherwise than in accordance with the permission granted by the Authority. Sub-section (2) of Section 3 mandates that the Authority shall not grant any permission under sub-section (1) unless it is satisfied that such permission will not have an adverse impact on protection and development of the lake.
10. Section 4 of the Act, empowers the State Government either suo moto or on the basis of information available with it or on the recommendation of the Authority, to declare and specify the boundaries of a lake and a geographical area around a lake, to be the protected area, by notification published in Official Gazette. As per sub-section (4) of Section 4, the notification issued under the said section shall prevail notwithstanding any other Rajasthan law for time being in force.
11. Section 5 of the Act deals with regulation of activities in the protected area and Section 6 deals with protection and development of lakes, which may be beneficially quoted :
"5. Regulation of Activities in the protected area.- (1) Every town planning authority shall consult the Authority before preparing spatial or development plan of any area comprising a lake and no spatial or development plan in respect of an area comprising lake shall be approved or enforced without the prior approval of the Authority.
(2) No construction shall be undertaken in the protected area without obtaining prior permission of the Authority in the prescribed manner.
(3) Subject to the provisions of sub-sections (1) and (2), the State Government may, by notification in the Official Gazette, either suo-moto on the basis of information available with it or on the recommendation of the Authority, specify such other activities in the protected area as it considers expedient for the protection and development of the lake, which shall be prohibited or be undertaken only after obtaining prior approval of the Authority, in the prescribed manner. (4) The Authority shall not grant any permission under sub-sections (2) or (3) if it is satisfied that such permission is likely to have adverse impact on protection and development of the lake.
6. Protection and development of lakes.- (1) Subject to any Central law relating to forest or environment, and policies or guidelines including any guidelines for National Plan on Conservation of Aquatic Ecosystem issued in this regard by the Central Government from time to time, the Authority shall undertake protection and development of the lakes and for this purpose, the Authority shall carry out following functions, namely :-
(a) to carry out survey and study of lakes and prepare, maintain and publish, in the prescribed manner, the record of lakes including their boundaries, flow area and such other matters as are deemed necessary for protection and development of the lakes;
(b) to prepare and recommend to the State Government plans, projects or schemes for protection or development of lakes;
(c) to implement such plans, projects or schemes of protection or development of lakes as may be approved by the State Government;
(d) to implement projects and raising financial resources from public and private source including Corporate Social Responsibility fund (CSR);
(e) to recommend to the State Government lake boundaries and protected area;
(f) to prevent and stop unauthorised activities within lake boundaries or the protected area;
(g) to prevent, stop and remove unauthorised construction in the protected area.
(2) The Authority may, if it considers expedient in the interest of protection or development of a lake so to do, remove any building, structure or any other object of obstruction within the protected area or the flow area of a lake :
Provided that no building, structure or any other object of obstruction which is a private property shall be removed unless-
(i) Prior approval of the State Government has been obtained:
(ii) the owner and occupier, if any, of the property has been given a reasonable opportunity of hearing;
(iii) the owner of the property has been paid compensation for the damages to be sustained by him due to such removal.
(3) While determining the amount of compensation under this section, the Authority shall follow the principles of determination of compensation laid down by any law for the time being in force providing for compulsory acquisition of similar property.
(4) If any person entitled to compensation under this Section disputes sufficiency of the amount of compensation, he may file an appeal to the District Judge having territorial jurisdiction over the area in which the property is situated, within ninety days from the date of order of the Authority and the decision of District Judge shall be final."
12. In Writ Petition No.13609/19, on 18.12.20, the learned AAG sought time to bring on record the facts regarding steps taken by the Authority and the State Government for protection and development of the lakes in the State of Rajasthan after coming into force of the Act. Later, by way of an additional affidavit filed on behalf of the State Government, it is brought on record that vide notification dated 12.3.21 issued by the State Government, the specified lake area of Gadisar Lake of Jaisalmer has already been declared protected area in exercise of the power conferred under Section 4 of the Act and vide yet another notification issued under Section 5, the activities as specified in the notification have been prohibited in the protected area.
13. By way of the written submissions filed on behalf of the respondents in response to the counter affidavit filed on behalf of the petitioner in the said writ petition (Gadisar), it is brought on record that after constitution of the District Level Committee in each districts, only 7 proposals were received from District Level Committees, out of which, 6 proposal were approved for declaring the lake area as protected area, by the State Government, which are as under:
1. Mansagar Jal Mahal Jaipur.
2. Udaisagar Udaipur
3. Fatesh Sagar Udaipur
4. Anasagar Ajmer
5. Gap Sagar Dungarpur
6. Sursagar Jheel Jodhpur Thereafter, Gadisar Lake has been declared as protected area, as already noticed above.
14. It is also brought on record by the State that the proposal for development of 10 lakes was submitted under the National Lake Conservation Programme, the DPRs were also prepared and the same were forwarded to Ministry of Environment & Forest (MoEF) of Government of India. The proposal remained pending, in the meantime, National Lake Conservation Project was merged in National Plan for Conservation of Aquatic Eco-System (NPCA). The MoEF advised the State Government that instead of insisting upon approval of 10 DPRs of 10 lakes, the State Government should prioritise and send proposals of 1 or 2 lakes of the State for approval under NPCA. The State Government vide communication dated 8.1.17 sent the proposals of Gap Sagar Lake Dungarpur and Gundolav Talab of Kishangarh for approval. Vide communication dated 24.7.18, MoEF informed the Authority to send revised DPR for Gap Sagar and Gundolav Talab taking into consideration the changed ground realities, cost escalation and revised funding pattern, as per NPCA guidelines. The cost of the project was to be shared by the Central Government and the State Government in the ratio of 60:40. However, the revised plans submitted were not approved by the Department of Finance, Government of Rajasthan expressing its inability to bear 40% of the cost of project, as per the revised DPR.
15. It is also brought on record that during the period from 23.11.07 to 24.6.10, the DPRs of about 5 lakes were approved by the Government of India and works for conservation of these lakes were undertaken. The work of Ana Sagar Lake, Pushkar Sarovar and Pichhola Lake Udaipur has been completed utilising the funds of NLCP sanctioned prior to 1.4.16. Under the Smart Cities Mission, the work on the boundaries of Ana Sagar Lake and Sagar Vihar with the amount sanctioned Rs.5.46 crores and 2.1 crores respectively, is in progress. But the fact remains that on account of the State Government declining to share the cost in the proportion proposed under NPCA, the development project of the two lakes of the State namely Gap Sagar Lake Dungarpur and Gundolav Talab of Kishangarh could not be undertaken and no further development projects were mooted by the State Government for approval under NPCA. That apart, on account of deleterious inaction on the part of District Level Committees of various districts, even the process for declaring various lakes of the State as protected area under the provisions of the Act, has not commenced as yet.
16. In Abdul Rahman Vs. State of Rajasthan: (2004) 4 WLC (Raj.) 435, a Bench of this Court has already issued directions to the State Government to remove encroachment in the catchment area of the water bodies and in Suo Moto Vs. State of Rajasthan: S.B.Civil Writ Petition No.11153/11, decided on 29.5.12, decided by Jaipur Bench of this Court vide order dated 29.5.12, specific directions have been issued restraining the allotment of the land falling in catchment areas of water bodies like Johar, Nala, Tank, River, Pond etc. and it is further directed that the appropriate action shall be taken for cancellation of the allotment made in defiance of Section 16 of the Rajasthan Tenancy Act, 1955.
17. In Jagpal Singh & Ors. Vs. State of Punjab & Ors. : 2011 ACR SCW 990, while declining to interfere with the order of the High Court, dismissing the writ petition preferred against the order of the Commissioner, setting aside the order of the Collector, whereby the directions were issued to the Gram Panchayat to transfer the land forming part of the pond to the occupants thereof, the Hon'ble Supreme Court issued directions to all the State Governments in the country in the following terms :
"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/unauthoized occupants of Gram Sabha /Gram Panchayat/ Poramboke/ Shmlat 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 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."
18. In Gulab Kothari Vs. State of Rajasthan & Ors. : D.B. Civil Writ Petition No.1554/2004, this Court vide order dated 12.1.17, has issued directions to the State Authorities to take effective steps for conservation and preservation of natural resources i.e. rivers, other water bodies and catchment area. Further, the State Authorities have been directed to undertake a drive to remove all encroachments made over the natural resources operating thereon and restore such natural resources by taking appropriate action.
19. In Kanti Lal Vs. State of Rajasthan & Anr. : 2019 (1) CJ (Civ.) (Raj.) 153, this Court while considering the issue regarding protection of the land forming part of catchment area in terms of provisions of Section 16 of the Act of 1955, observed:
"16.Under the law if the tank, nadi or talab is required to be protected, then obviously, its boundary and catchment area are also required to be protected and thus, nothing turns on the question that according to the private respondents earlier in the revenue record the land alleged to have been regularised in their favour, comprising Khasra No.407 was shown in the revenue record as 'Talab Ki Pal' and not 'gair mumkin nadi' as such. As a matter of fact in the order dated 31.7.85 passed by the Tehsildar, Aburoad, regualrising possession of father of the private respondents over the land measuring 755 sq. yard comprising Khasra No.529, it is specifically observed that land sought to be regularised forms part of 'gair mumkin nadi'. (emphasis added)
20. Thus, in view of the position of law settled as above and directions already issued by this Court time and again, the land forming part of water bodies and catchment area thereof, cannot be permitted to be divested to any other use, all encroachments made on the said land deserve to be removed forthwith and the water bodies need to be protected and developed so as to subserve the larger public interest.
21. Moreover, as per mandate of provisions of Section 3 of the Act, the protection and development of all lakes in the State, except private properties situated in such lakes, with effect from the commencement of the Act, vest in the State Government and by virtue of Section 4 of the Act, the State Government is under an obligation to take steps either suo-moto or on the recommendation of the Authority to declare the boundaries of lake as defined under Section 2 (x) of the Act as may be considered necessary as protected area.
22. There are thousands of lakes and other water bodies in the State of Rajasthan. Jaisamand, Fatehsagar, Phichhola in District Udaipur, Rajsamand lake in District Rajsamand, Anna Sagar, Foy Sagar, Bisalsar, Gundolav and Pushkar in District Ajmer, Siliserh in District Alwar, Nakki Lake in Mount Abu (Sirohi), Balsamand, Kaylana, Ummed Sagar, Takhat Sagar, Phalodi in District Jodhpur, Gajner, Kolayat and Loonkaransar in District Bikaner, Gadisar, Kavod and Pokaran in District Jaisalmer, Kanak Sagar in District Bundi, Pithampuri and Rewasaa Kochchor in District Sikar, Gap Sagar Lake in District Dungarpur, Khalda (Didwana), Dugri & Gawane in District Nagore, Talchhapar in District Churu, Sambhar Lake in District Jaipur, are some of the prominent lakes of the State of Rajasthan.
23. It is very unfortunate that even after lapse of more than six years, the Authority constituted has not taken any effective steps to carry out the survey and study of the lakes and prepare and maintain the record of the lakes including their boundaries, flow area and other matters necessary for protection and development of the lakes, which is one of the primary functions delineated under Section 6 of the Act entrusted to it.
24. It is argued before this Court that the matter with regard to the survey and the matter with regard to declaration of various lakes area as protected area could not be processed by the Authority inasmuch as the District Level Committees constituted under Section 9 of the Act by the State Government have failed to exercise the powers delegated to them. As a matter of fact, after constitution of the Committees as aforesaid, the Authority has not cared to regulate the functions of the Committees so as to ensure fulfillment of the objects sought to be achieved by enactment of the Act. On account of the delegation made, the Authority does not stand divested from the power vested in it and cannot shirk from its responsibility to carry out the functions entrusted to it by virtue of Section 6 of the Act.
25. We are at pain to notice that the State Government even declined to contribute its share under the DPR prepared for development of Gap Sagar Lake Dungarpur and Gundolav Talab of Kishangarh in the proportion specified under NPCA. The action of the State Government in denying the allocation of budget for development projects of the lakes, only reflects its apathetic attitude towards the laudable objects sought to be achieved by the State legislature by enacting the Act. To say the least, the State Government cannot be permitted to plead financial constraint in undertaking the lakes development projects in various districts of the State frustrating the laudable objects underlying the provisions of the Act. It is for the State to manage its affairs and pursue the local authorities as well to contribute for the protection and development projects of the lakes.
26. In view of the discussion above, we issue following directions:
(i) The District Level Committees constituted under Section 9 of the Act shall carry out survey of the lakes in their respective district and prepare proposals for declaration of Lake boundaries and Protected area, prepare plans and projects and schemes for protection and development of lakes and submit it to the Authority with its recommendations. The proposals for declaring the Lake boundaries and Protected area shall be sent by the District Level Committees to the Authority within a period of six weeks from the date of this order. The remaining exercise of preparing the plans, projects and schemes for protection and development of the lakes shall be forwarded to the Authority within a period of three months thereafter.
(ii) The Authority on receiving the proposal for declaration of boundaries of lake and protected area, shall after due consideration forward the same to the State Government to take appropriate steps within a period of four weeks from the date of the receipt of the proposal. The State Government in its turn, shall issue the notification declaring the lake boundaries and protected area in terms of Section 4 of the Act within a period of four weeks thereafter.
(iii) The development plans, projects and schemes of lakes submitted by the District Level Committee to the Authority with its recommendations shall also be considered by the Authority within a period of two months from the date of the receipt of the plans and shall be forwarded to the State Government for necessary approval and financial sanction.
(iv) The State Government is directed to make separate allocation of the Budget for protection and development of the lakes of the State. The State Government shall consider the development plans submitted by the Authority and issue the approval and financial sanction expeditiously. The local authorities shall also make endeavour to share the expenditure to be incurred in development of the lakes falling within their local limits.
(v) The State Government is directed to release its share of the amount required for the projects of development of the lakes approved under NPCA Project of the Central Government.
(vi) The State Authorities and the Local Authorities are restrained from permitting any construction within 30 meters of perimeter of the lakes. No construction or possession over the land falling within 30 meters of the perimeter of the lakes shall be permitted to be regularised.
27. Keeping in view the fact that the lakes development projects are being undertaken by the Central Government under NPCA, we consider it appropriate and accordingly, direct to implead Union of India through Principal Secretary, Ministry of Environment and Forest as party respondent in suo-moto petition (D.B.Civil Writ Petition No. 752/2016). Let notice be issued to the newly added respondent, returnable within eight weeks.
(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
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