Gujarat HC: Less graves in a kabrastan is no ground to vest the land in Govt. [02.02.2022]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application No. 4946 of 2009

Decided On: 02.02.2022

Islahul Sunni Muslim Khidmat Trust

Vs.

Collector

Hon'ble Judges/Coram: Dr. A.P. Thaker, J.

Counsels:
For Appellant/Petitioner/Plaintiff: M.T.M. Hakim
For Respondents/Defendant: Nikunj Kanara, AGP

JUDGMENT

Dr. A.P. Thaker, J.

1. By fling this petition, the petitioner-Trust has prayed to quash and set aside order passed by Collector on 16.9.2006, which is at Annexure-F.

2. Brief facts of the case are that by Revenue Entry No. 246 posted in August 1947, the land bearing Survey No. 1 of Village Champaner admeasuring 2 acres 25.5 Gunthas was allotted for the graveyard (Kabrastan) in the village Form No. 6 after following procedure prescribed under the Bombay Land Revenue Code. It is further the case that entry No. 246 was posted, which also reflects the order dated 3" March, 1947 passed by Collector for the allotment of such land to use the same for the purpose of Kabarstan. On 31st October, 1950 entry No. 283 came to be recorded and said survey No. 1 was bifurcated into land survey numbers namely 1/1/A and 1/1/B. 1/1/A was admeasuring acres 4096.18 Gunthas while survey No. 1/1/B which was allotted to the Kabrastan was admeasuring 2 acres and 27 Guthas. Accordingly, in the Form No. 7/12 also said land is shown as Kabrastan.

2.1. The petitioner trust was registered in the year 1996. After forming of the petitioner-Trust and on making an application to the revenue authorities, by entry No. 689 dated 22.7.1997 the name of the trust was entered into village Form No. 6. The name of the trust was shown against the property bearing survey No. 1/1/B. Since 1997, the petitioner trust is taking care of all affairs of the property situated in survey No. 1/1/B. Since 1997 the petitioner trust has seen so many dead bodies being buried in the land bearing survey No. 1/1/B (Kabrastan). In 2004-2005 and very recently in August, 2008 dead bodies of Muslims staying in and around Champaner are brought to Champaner and have been buried in the Kabrastan. Some of the instances of burial can be seen from the certificates issued by Panchayat showing the burial. The petitioner trust is having possession of the land in question. Despite the above undisputed facts, the respondent passed an order on 16.9.2006 and snatched away the Kabrastan land. It is pertinent to note that entry No. 783 dated 142.2007 was also posted in the revenue record.

3. Heard Mr. Hakim, learned advocate for the petitioner and Mr. Nikunj Kanara, learned AGP for the respondent-State at length.

4. Mr. Hakim, learned advocate for the petitioner has submitted that the respondent authority, while passing the impugned order has exceeded the jurisdiction vested in them and thereby committed an illegality and/or irregularity and if the impugned order is allowed to stand, then the same will cause gross miscarriage of justice and, therefore, the order impugned in the present petition is liable to be quashed and set aside. He has further submitted that the order impugned is misuse of power done by Collector by ignoring normal and regular procedure prescribed by law and the Collector has not even bothered to follow the constitutional mandate. He has submitted that the impugned order suffers from a clear breach of principles of natural justice and equity. The petitioner submits that the name of the trust was recorded in the revenue record in the year 1996. In this regard, he has relied upon annexure-D to the petition. He has also produced village form No. 7-12 showing entries that the land in question is "kabrastan". He further submitted that inspite of this fact the respondent did not bother to call upon and provide hearing to the trust before passing the impugned order.

4.1. He further submitted that even otherwise the perusal of the impugned order makes it clear that the Collector had initiated the proceedings unilaterally and the same were concluded unilaterally. It clearly appears from the impugned order that the Collector did not thought it fit to verify the fact regarding use of the Kabrastan and only relied on the letter of the Mamlatdar.

4.2. He also submitted that the Collector had committed grave error in vesting the Kabrastan land in the Government. It is submitted that as pronounced by this Hon'ble Court as well as the settled principle of law is that once a Kabrastan is always a Kabrastan. The certificate issued by local Panchayat establishes the fact that even today also use of the land in question is for the purpose of Kabrastan. Such use cannot be closed and even if the use is closed the status of the land cannot be changed. He further submitted that even the respondents have admitted in their affidavit in reply that the land in question is used for the purpose of graveyard. He further submitted that bare reading of the impugned order makes it clear that though burial had taken place in past, this fact was ignored and with a view to deprive Muslim community of their last resting place various non existing reasons are mentioned in the impugned order. He also submitted that the entry of the impugned order was posted without following statutory requirement and the same requires to be quashed and set aside.

4.3. He has also relied upon a Judgment in the case of Syed Mohd. Salie Labbai (D), by Lrs. and Ors. v. Mohd. Hanifa (D) By Lrs. and Ors. reported in [1976] 4 SCC 782 to contend that once property became Wakf property it would continue to be Wakf property notwithstanding non-user by the Muslim community.

4.4. He has further submitted that the respondent has no jurisdiction to pass such an order as he lacks jurisdiction of switching over of the property and subsequent conversion. The Collector has tried to play with the sentiments of persons whose relatives have been buried in the said Kabrastan. That the respondent has vested the land in Government with an ulterior motive of allotting the said land to the builder lobby in coming years. In view of above, he has prayed to allow present petition.

5. Per contra, learned AGP, Mr. Kanara for the respondent-State has submitted that the impugned order is of 2006, while present petition is fled in 2009, therefore, there is delay of three years in fling present petition. He also submitted that Circle Officer, Champaner had made spot inspection and it was found that there are five graves (Kabars), which are 20 years old and rest of the land is lying vacant. He submitted that it appears that the land is lying idle and, therefore, looking to the future need for development of Pavagadh, the land in question was vested in Government. In this regard, he has also relied upon page 33, which is a Government Gazette with regard to publication of transaction of The Champaner Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006. He has also relied upon page 48, which is a letter dated 23.4.2006 for Denotifying the land in question for the purpose of development of the area. He has also relied upon further reply fled in compliance of order dated 20.2.2014 and submitted that there are only two muslim families in Champaner village. It is also submitted by him that no land is available which can be allotted to the petitioner-Trust for the purpose of graveyard as most of the land is of the ownership of the Forest Department. In view of these, he has prayed to dismiss present petition.

6. Considering the submissions made on behalf of the parties and the materials placed on record. From the document at Annexure-D, it is clear that the name of the trust was recorded in the revenue record in the year 1996. Even the entries of village form No. 7-12 show that the land in question is "kabrastan".

6.1. In the case of Syed Mohd. Salie Labbai (D), by Lrs. (Supra) it is held as under:-

"We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not.

The following rules in order to determine whether a graveyard is a public or a private one may be stated:

(1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all;

(2) that if the grave-yard is a private a family grave-yard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family grave-yard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public grave-yard;

(3) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community had buried their corpses from time to time in the graveyard. Once this is proved, the Court will presume that the graveyard is a public one; and

(4) that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard.

Applying these principles to the facts of the present case, it is clear that there are graves and even in the revenue records, it is shown as "kabrastan". Considering all these aspects, present petition is allowed."

6.2. As held in aforesaid case, the certificate issued by local Panchayat establishes the fact that even today also use of the land in question is for the purpose of Kabrastan. Not only that the respondents have also admitted in their affidavit in reply that the land in question is used for the purpose of graveyard. It also appears that the respondent did not give opportunity of hearing to the trust before passing the impugned order. It also found that the observations made by the authority are neither relevant nor rational. It is observed by the authority that there are less graves in the graveyard inspite of observing that only two Muslim families are residing in the nearby vicinity. One cannot expect that graveyard should be full always and if there are less graves, it cannot be said to be a ground to vest the land in Government.

7. Considering all these aspects, present petition is allowed. Order dated 16.9.2006 passed by Collector, Panchmahal-Godhra, Annexure-F to present petition, is quashed and set aside. Rule is made absolute accordingly. No order as to costs. Direct service is permitted.

Gujarat High Court in Shree Jangi Grampanchayat vs. State of Gujarat [18.11.2021]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application No. 14198 of 2021

Decided On: 18.11.2021

Shree Jangi Grampanchayat

Vs.

State of Gujarat

Hon'ble Judges/Coram: Dr. A.P. Thaker, J.

Counsels:

For Appellant/Petitioner/Plaintiff: R.D. Kinariwala

For Respondents/Defendant: Nikunj Kanara, AGP

ORDER

Dr. A.P. Thaker, J.

1. Heard learned advocate Mr. R.D. Kinariwala for the petitioner and learned AGP Mr. Nikunj Kanara for respondent-State. None has appeared on behalf of the private respondents though served.

2. By way of filing this petition, the petitioner has prayed for the following reliefs.

"(a) Your Lordships may be pleased to allow this petition.

(b) Your Lordships may be pleased to issue a writ or mandamus or any other appropriate writ, order or direction, directing the respondents herein to comply the order dated 17.01.2018, passed by the respondent no. 3 and further be pleased to direct the respondent no. 4 herein to remove an illegal encroachment and to hand over the peaceful and vacant possession of the Gauchar land bearing revenue survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch.

(c) Pending admission, hearing and final disposal of this petition, be pleased to direct the respondents herein to direct the respondent no. 4 herein to remove an illegal encroachment from Gauchar land bearing revenue survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch. And further be pleased to comply with the order dated 17.01.2018 passed by the respondent no. 3 herein;

(d) Be pleased to grant any other relief/s as may deem fir proper, in the interest of justice."

3. Learned advocate for the petitioner Mr. Kinnariwala has submitted that the petitioner is a Grampachanyat registered under the provisions of the Panchayat Act situated at village Jangi, Taluka: Bachau, District: Kutch. That the respondent no. 4 has made illegal encroachment upon survey no. 1001/Paiki admeasuring 1.00 hectors of land of the Panchayat and has installed wind mill on the said land. He has submitted that the said fact has already been reflected from the inspection carried out by the office of DILR, therefore, has requested to get it removed the wind mill from the Gauchar land. That the respondent no. 4 has admitted that due to some technical error, the respondent no. 4 had installed the wind mill at survey no. 1001/Paiki instead of survey no. 1000/Paiki. According to learned advocate Mr. Kinnariwala, this admission is sufficient to direct the authorities to remove the encroachment on the Gauchar land. Therefore, he has prayed to pass appropriate order in this regard and handover the peaceful possession of the land in question to the petitioner herein.

4. Learned AGP has submitted that considering the materials placed on record, appropriate order may be passed.

5. The decision of Apex Court the case of Jagpal Singh and others Vs. State of Punjab and others reported in 2011(11) SCC 396 is relied on by the learned advocate Mr. Kinariwala for the petitioner. The Apex Court has observed that all the State Governments in the country should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the GramSabha/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 were directed to do the needful, taking the help of other senior officers of the Governments. It was also observed that if long duration of such illegal occupation or huge expenditure in making constructions thereon must not be treated as justification for condoning this illegal act or for regularising the illegal possession.

6. Having considered the submissions made by both the sides, coupled with the documentary evidence placed on record, it appears that there is no dispute that the land in question is a Gauchar land of the panchayat, which was declared as Gauchar land vide order dated 30.09.1971, and the promulgation entry came to be mutated in the revenue record on 20.09.2008, vide entry no. 2565, which was came to be rectified vide entry no. 454 qua survey no. 1001 and accordingly, the name of the petitioner-Grampanchayat was reflected in the survey number. It also appears from the record that the respondent no. 4 ha installed the wind mill upon survey no. 1001/Paiki, admeasuring 1.00 hectors of land. It also appears that respondent no. 3-Mamlatdar of Bhachau had written letter to DILR, Bhuj-Kutch in this regard on 11.07.2016, to carry out an inspection for measurement of the land in question. It also appears from the record that the Mamlatdar, Bhachau has also allowed the case of the petitioner and had directed respondent no. 4 to evacuate the disputed land and handover the peaceful vacant possession of the Gauchar land. As per the DILR report, the respondent no. 4, encroached upon the government land and has also taken stand that due to some technical mistake the wind mill came to be installed in the Gauchar land of the panchayat. Thus, it is incumbent on the part of the respondent that compliance of the order of the Mamlatdar is made and the wind mill be removed from the Gauchar land of the panchayat. It is also duty of the respondent no. 4 to remove the illegal encroachment made upon the Gauchar land bearing survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch and handover the peaceful possession to the panchayat.

7. Considering the aforesaid facts of the case, the present petition deserves to be allowed. Accordingly, the petition is allowed. The respondent no. 4 is hereby directed to remove the illegal encroachment made upon at the Gauchar land bearing survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch and to handover the peaceful and vacant possession of the Gauchar land to the Panchayat, within a period of three months from the date of receipt of writ of this order. The rest of the respondents are directed to get the compliance of this order without fail.

8. With the aforesaid direction, the petition is allowed. No order as to costs.

Supreme Court of India on Encroachments: "All Major Cities Have Turned Into Slums" [16.12.2021]

The Supreme Court said, "Railways cannot be let off the hook of their responsibility. It is not just the state government's responsibility... The time has come for the corporations to take the responsibility of removing the encroachment".

The Indian Railways has to take responsibility for encroachments on its land and take strict action against them, the Supreme Court said today, refusing to allow 5000 hutments to continue in Gujarat."All major cities have turned into slums... This is a sad story going on for 75 years and we are celebrating the 75th year of Independence next year," said a three-judge bench, turning down an appeal from the slum dwellers to stop the demolition.

"Look at any city, Chandigarh might be an exception but there are problems in Chandigarh as well. That is happening everywhere. Let us rise to reality and think how the problem has to be resolved," said Justice AM Khanwilkar, who was on the bench along with Justices Dinesh Maheshwari and CT Ravikumar.

Directing the Railways to initiate criminal action against unauthorised occupants immediately, the court said, "Railways cannot be let off the hook of their responsibility. It is not just the state government's responsibility... The time has come for the corporations to take the responsibility of removing the encroachment". The court said it would also review the action taken.

The Railways have also been asked to take action against officials who have allowed the encroachments to take place.

"Performance will be apprised by us and not your hirers. Your liability is an equal liability along with the state and corporation. The owner who is incapable of protecting the property should be liable along with the State and Corporation," Justice Khanwilkar told Additional Solicitor General KM Nataraj, who was representing the Railways.

The order cleared the path for demolition of a huge swathe of hutments in Gujarat's Surat, that have come up on Railway land. The demolition will lead to the eviction of 10,000 people.

The court has asked the Gujarat government and the Railways to jointly provide a compensation of ₹ 2,000 per month for 6 months for each demolished hut. The money is for the people to manage accommodation till they are rehabilitated.

"The slum dwellers will be eligible for PMAY (Pradhan Mantri Awas Yojana) accommodation if applications are made and eligibility is fulfilled," the court said.

The court had earlier stayed the demolition of the hutments, built along the railway track and issued notices to Centre, Western Railways and the state government.

In their appeal, the Surat-based 'Utran se Besthan Railway Jhopadpatti Vikas Mandal', said the slum dwellers will face irreparable injury if they are not provided with alternate arrangement. Once they are evicted and made homeless, their condition would become more miserable, especially in view of the pandemic, the petition had said.

Senior advocate Colin Gonsalves who appeared for the petitioners, said the people were living on Railway land for more than 60 years and most of them have proof of residence with them.

The Western Railways, he said, had planned a 10 km third railway line between Surat and Jalgaon and ordered the people to vacate the land without any notice or rehabilitation.

Link: https://www.ndtv.com/india-news/all-major-cities-have-turned-into-slums-supreme-court-on-encroachments-2655377

_______________________________________________________________________

SUPREME COURT OF INDIA 

 RECORD OF PROCEEDINGS 

SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 19714/2021 

(Arising out of impugned final judgment and order dated 19-08-2021 in WPPIL No. 222/2014 passed by the High Court Of Gujarat At Ahmedabad) 

UTRAN SE BESTHAN RAILWAY JHOPADPATTI VIKAS MANDAL                      Petitioner(s) 

VERSUS 

GOVERNMENT OF INDIA & ORS.                                                                          Respondent(s) 

WITH Diary No(s). 23559/2021 

Date : 16-12-2021 

These petitions were called on for hearing today. 

CORAM : 

HON'BLE MR. JUSTICE A.M. KHANWILKAR 

HON'BLE MR. JUSTICE DINESH MAHESHWARI 

HON'BLE MR. JUSTICE C.T. RAVIKUMAR 

For Petitioner(s)    Mr. Colin Gonsalves, Sr. Adv. 

Ms. Kawalpreet Kaur, Adv. 

Ms. Hetvi Patel, Adv. 

Mr. Haider Ali, Adv. 

Mr. Satya Mitra, AOR

Ms. Amiy Shukla, AOR 

For Respondent(s) Mr. Tushar Mehta, SG 

MR. K. M. Nataraj, ASG 

Mr. Kanu Agarwal, Adv 

Mr. Akshay Amritanshu, Adv 

Mr. Sanskriti Pathak, Adv 

Mr. Varun Chaugh, Adv 

Mr. Amrish Kumar, AOR 

Mr. K M Nataraj, Ld ASG. 

Mr. Vatsal joshi, Adv. 

Mr. Vikas Bansal, Adv. 

Mr. S.K Singhania, Adv. 

Mr. Sughosh Subramanyam, Adv. 

Mr. Amrish Kumar, AOR 

Mr. Arun Bhardwaj, Sr. Adv. 

Mr. Rahul Kumar Sharma, Adv.  

 Ms. Deepanwita Priyanka, AOR 

Mr. Munawwar Naseem, AOR 

Mr. Dhaval Nanavati, 

Mrs. Ruchi Khurana 

Ms. Sanjna Dua, Advocates 

UPON hearing the counsel the Court made the following 

O R D E R 

Diary No(s). 19714/2021 

This special leave petition takes exception to the judgment and order dated 19.08.2021 in Writ Petition (PIL) No. 222 of 2014 whereby the cause espoused by the petitioners in the public interest litigation, of the occupants of the structures occupied by the concerned persons on Railway property came to be rejected by the High Court. 

The fact that the structures are standing on the Railway property is not disputed at all. Their plea is only to provide suitable rehabilitation in lieu of the premises occupied by the concerned persons on the Railway property. 

The respondent-Western Railways, at the outset asserts that it has not formulated any scheme much less for rehabilitation of persons who have encroached upon the Railway property. In fact, it is an offence to encroach upon any Railway property. Further, they want to execute a public project of linking of railway line between Surat-Udhna upto Jalgaon (Third Railway Line Project). That project is being obstructed by unauthorised structures on the Railway property. The project, though sanctioned in the year 2018, is still incomplete because of the standing structures on the Railway property to the extent of 2.65 kilometers length. The total length of project is 10 kilometers and requiring a width of 25 meters all along. 

As regards the operative order passed by the High Court of Gujarat at Ahmedabad, rejecting the public interest litigation, we do not wish to deviate from that conclusion. However, the question is about rehabilitation of the occupants of the concerned structures, which are likely to be removed due to the proposed action of demolition by Western Railways. 

According to Western Railways, the primary responsibility to ensure that no encroachment takes place on any property is that of the local Government and also of the State Government, in equal measure.

Although, the submission seems to be attractive at the first blush, does not commend to us. For, there is a special enactment which enables the Railway authorities to protect its property. That is its statutory and public trust obligation. It was open to the concerned Authority to invoke the provisions of special enactment including the Public Premises Act. For that, the Estate Officers should have moved into action in right earnest at the earliest opportunity. Even that option is not being invoked for reasons best known to the Authorities. Besides, the Railway establishment maintains a Railway police force whose services could be utilized to safeguard the Railways property, wherever it is situated. 

As a result, the nuanced distinction made by the learned counsel for Western Railways does not commend to us. We hold that the Railways are equally responsible for the situation; and for which reason, it is also equally liable to provide some support to the persons likely to be affected by the removal of their structures. 

Hence, keeping in mind the dictum of this Court in Ahemadabad Municipal Corporation Vs. Nawab Khan Gulab Khan reported in (1997) 11 SCC 121, on that analogy, we propose to issue following directions: 

(i) The respondent – Western Railways do immediately issue notices to the occupants of the concerned structures which are falling within the belt which is required immediately for commencing the remaining project work by giving two weeks' time to the concerned occupant(s) to vacate the respective premises; 

(ii) In respect of the remaining land owned by Railways, even though it may not be immediately required for the project, similar notice be given to the occupants of structures standing thereon by giving six weeks’ time to vacate the respective premises; 

(iii) In either case (i) and (ii) above, the notices be issued within one week from today and if the occupants fail to vacate the unauthorized structure, it will be open to the respondent-Western Railways to initiate appropriate action to forcibly dispossess them and to demolish or remove the unauthorized structure(s) by taking assistance of the local police force. The Superintendent/Commissioner of Police of the concerned area shall ensure that adequate police force is deployed on the site and surrounding areas including to provide protection to the officials/staff engaged in the demolition of unauthorized structures and to facilitate them to commence the eviction process and demolition of the unauthorized structures, referred to in the eviction notices on the specified date and time; 

(iv) Before commencing the process of eviction and removal of the structures, the Collector of the concerned District must ensure that necessary details about the names and number of persons occupying the concerned structure, including their identity and profile should be duly recorded, which record should be preserved by the Collector for considering the eligibility of those persons for being provided suitable residential accommodation after being evicted owning to proposed demolition action; 

(v) The entity, who is the owner of the land, namely, Western Railways in this case as well as the local Government and the State Government shall be jointly and severally liable to pay a sum of Rs. 2,000/- per month per demolished structure for a period of six months from the date of demolition of their structure as ex-gratia amount to the head of the family/occupants unauthorized structure of the removed concerned during demolition action. That amount shall be initially paid by the Collector for a period of six months “only” (not beyond six months each) and shall be later on shared equally by the entity (owner of the land), local Government and State Government; 

(vi) In the event, the local Government has any rehabilitation scheme, the affected persons may apply for being rehabilitated under the said scheme, if eligible and subject to verification of eligibility and complying with all other terms and conditions of the prevalent scheme. The local Government may provide them suitable residential accommodation in lieu of rehabilitation owing to demolition of their structure. 

(vii) If no rehabilitation scheme has been formulated by the local Government or is in force, the persons likely to be affected by the action of demolition can apply for allocation of residential premises under the Pradhan Mantri Awas Yojna Scheme, which application be processed not later than six months from the date of its receipt and taken to its logical end, application-wise within such period. 

(viii) Be it a case of rehabilitation under clause (vi) or (vii) above, the persons affected by demolition action by the Authorities cannot insist for allotment of alternative residential accommodation at the same place from where they have been evicted (as it is not in situ rehabilitation programme). The eligible persons be allotted accommodation wherever available in the same or even in neighbouring districts. 

(ix) In addition, since the Railways have power to initiate civil/criminal action against the unauthorized occupants on the Railway property, must resort to those proceedings against the concerned persons immediately after it is brought to the notice to the concerned official of the Railways. Further, the Railways being the owner of the property, as also the local Government and State Government must initiate appropriate action against the erring persons, including the officials of the concerned establishment for allowing and tolerating such encroachment and for not taking corrective action of removal of encroachments in right earnest and at the earliest opportunity. 

(x) The status report of the action taken by the Railway Board as also by the local Government and State Government be furnished to this Court before the next date. 

List this matter on 28.01.2022. 

In the meantime, learned counsel for the petitioner to cure the defects as pointed by the Registry. 

Diary No(s). 23559/2021 

The order passed in Diary No(s). 19714/2021 will operate even in this special leave petition, only qua the ten structures of the concerned petitioners herein. 

Mr. Colin Gonsalves, learned senior counsel appearing for the petitioner points out that one more petition has been filed by the affected persons before the High Court of Punjab and Haryana being Writ Petition No.19647 of 2021, involving similar issues. The same is withdrawn and shall stand transferred to this Court in terms of this order. 

List the transferred case and this petition along with Diary No. 19714 of 2021 on 28.01.2022. 

In the meantime, learned counsel for the petitioner to cure the defects as pointed by the Registry. 

NGT in Dedharota Grampanchayat vs. Member Secretary, SLEIAA [11.06.2021]

BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

(By Video Conferencing)

Appeal No. 61/2017

With I.A. No. 06/2021

Dedharota Grampanchayat                                                                 Appellant

Versus

Member Secretary, SLEIAA, Gujarat & Ors.                             Respondent(s)

CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON’BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON’BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON’BLE DR. NAGIN NANDA, EXPERT MEMBER

Respondent(s): 1. Mr. Gurang Vaghela, Advocate for Respondents No. 5 & 6.
Mr. Maulik Nanavati, Advocate
Mr. Maulin Raval, Senior Advocate with Ms. Aditi, Advocate

ORDER

1. This appeal has been preferred against grant of Environmental Clearance (EC) by the SEIAA, Gujarat vide letter dated 15.03.2017 in favour of Alimiya Imam Ali Saiyad and Dedhorata Bauxite Mine for Bauxite Mine of Dedhrota Bauxite Mine (Lease Area 200000 Ha) at S. No. 335/1 part, Village Dedhrota, Tehsil Himmatnagar, District Sabarkantha, Gujarat.

2. The appeal was filed on 22.05.2017 and was admitted on 23.05.2017. The points raised in the appeal inter-alia are that land in question is on the bank of Sabarmati river on the hill of Bauxite Stones. Mining will affect the hill. The flood water will wash away the Gaucher (grazing) land and the standing crops. The inhabitants of the village objected to the grant of EC during the public hearing and also filed writ petitions in the High Court being Writ Petition (PIL) No. 192/2015, Zala Vikramsinhji Kishorsinhji & Ors. v. Alimiya Imam Ali Saiyal & Ors., and Writ Petition (PIL) No. 86/2017, Dedharota Gram Panchayat & Ors. v. State of Gujarat & Ors. which were disposed of on 21.09.2015 and 27.06.2017 respectively. On the issue of allotment of grazing land, it was observed that challenge had to be raised separately before an appropriate forum.

3. During pendency of the Appeal, the appellant has filed I.A. No. 06/2021 on 07.01.2021 to withdraw the appeal on the ground that vide order dated 18.06.2020 the nature of the land has been changed. The previous Sarpanch has been removed by order dated 15.09.2020 of the District Development Officer, in pursuance of order of the High Court in Writ Petition No. R/SCA No. 6784/2020. The Panchayat under the new Sarpanch has decided to withdraw the appeal on the ground that the land in question is no longer the grazing land.

4. In view of above developments, while the nature of land may have undergone change as mentioned above, and there can be no objection to withdrawal of the appeal, mitigation measures during the mining as per EC conditions and mining and Environment plans needs to be ensured by the Department of Mining, Gujarat, the State PCB and District Magistrate, Sabarkantha. The District Magistrate needs to act as the nodal agency for compliance and coordination. If any grievance survives on this issue, it will be open to the aggrieved party to take remedies as per law.

The appeal and I.A. No. 06/2021 are disposed of accordingly.

June 11, 2021

Gujarat HC in Jignesh Maheshbhai Pandya vs. State of Gujarat & Ors. [16.07.2019]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Writ Petition (PIL) No. 104 of 2018 and Civil Application No. 1 of 2019

Decided On: 16.07.2019

Jignesh Maheshbhai Pandya

Versus

State of Gujarat and Ors.

Hon'ble Judges/Coram:

Anant S. Dave, Actg. C.J. and Biren Vaishnav, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Amit M. Panchal

For Respondents/Defendant: Kamal Trivedi, Advocate General, Manisha Lavkumar, Government Pleader, Vinay B. Vishen, AGP, Mihir Joshi, Senior Advocate, Mrugen K. Purohit, Maulik Nanavati, Parth Bhatt and Manvi Damle, Advocates for Nanavati and Co.

ORDER

Anant S. Dave, Actg. C.J.

1. This Court once again has had the opportunity of lending its ear to a conflict between so called 'materialistic interests' and 'sustainable development'. It is trite that in the name of environmental development there is exploitation of Mother Earth. However, the present is a glaring case of thousands of hutment dwellers, residing in about 1457 hutment dwelling units and occupying pond/waste land for around four decades. These dwellers came to be displaced by demolishing their huts and on an assurance given by the respondent no. 2 - Vadodara Municipal Corporation for 'In-Situ' rehabilitation for which contract was given to respondent no. 4 through public notice based on the policy of Public Private Partnership (PPP) and as a part of the Pradhan Mantri Awas Yojana, Mukhya Mantri Awas Yojana and Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973. However, the said action has been opposed in this belated Writ Petition PIL on the ground that such 'In-Situ' rehabilitation of slum dwellers is not permissible on the pond/waste land so notified by the Irrigation Department of State of Gujarat under Section 5 of the Bombay Irrigation Act, 1879 and that it is contrary to law laid down by the Supreme Court of India as well as this Court. We, therefore, being conscious of the fact that we are expected to strike a mutual balance between protection of environmental resources and development of the mankind by exploring the possibility of protecting and preserving part of the total area of the water body, so earmarked by the Technical Committee as possible to revive and recharge have heard the petition at length which revolves around 'Kharabo Talavadi' situated at Revenue Survey No. 444, in village Tandalja, Taluka and District Vadodara admeasuring 48259 sq. mtrs and is occupied by almost 1457 hutment units.

2. Before proceeding with the hearing of the main petition, we have heard Civil Application filed by the hutment dwellers for impleading them as party respondents. As a result of hearing and going through the records, we find it to be in the fitness of things if the applicants of the application are given an opportunity of hearing. Therefore, the application is allowed and the applicants are impleaded as party respondents in the main petition.

3. Coming to the facts of the present case, the petitioner has preferred the present Public Interest Litigation for quashing and setting aside the process for Denotification of land, which is sought to be made as per "Letter of Acceptance" to respondent no. 4 dated 20.10.2016 from the office of Additional City Engineer, Vadodara Municipal Corporation in respect of granting approval to developer, M/s. Cube Construction Private Limited, Vadodara for undertaking work under First Vertical PPP for Rehabilitation and Redevelopment at Sahakarnagar at the land situated in village Tandalja, District Vadodara in T.P. Scheme No. 22, Revenue Survey No. 444, Final Plot No. 234, admeasuring 48,259 sq. mtrs.

3.1. As averred in the writ petition, the above area is notified as 'lake' ('Talav' in Gujarati) in Village Form No. 1 and vide notification dated 10.01.2005 by Department of Narmada and Water Resources, Water Supply and Kalpasar Department, Sachivalaya, Government of Gujarat for the purpose of development of slums under the Slum Rehabilitation and Redevelopment Scheme and under the Pradhan Mantri Awas Yojana, as per Standing Committee Resolution No. 339 of the Vadodara Municipal Corporation dated 29.09.2016 at the cost of Rs. 81,41,85,000/- and a premium amount of Rs. 15,16,11,111/- to be paid to Vadodara Municipal Corporation.

3.2. As averred in the writ petition and so submitted emphatically by learned advocate for the petitioner, the above exercise undertaken by respondents is in flagrant violation and with utter defiance and in breach of the directions issued by this Court in the judgement dated 02.08.2002 rendered in the case of Shailesh R. Shah vs. State of Gujarat and Others reported in 2002 (3) GLH 642 : 2002 Vol. 43 (3) GLR 2295 and also contrary to principles enumerated by the decisions of the Apex Court in the cases of M.C. Mehta vs. Union of India and Others reported in (1996) 8 SCC 462, Hinch Lal Tiwari vs. Kamala Devi and Others [(2001) 6 SCC 496], M.C. Mehta (Badkhal and Surajkund Lakes Matter) vs. Union of India and others [(1997) 3 SCC 388], R.K. Mittal and Others vs. State of Uttar Pradesh & Others [(2012) 2 SCC 232, M.K Balakrishnan(1) and Others vs. Union of India and Others [(2009) 5 SCC 507, Susetha vs. State of Tamil Nadu & Others [(2006) 6 SCC 543, Intellecutals Forum Tirupati vs. State of A.P and Others [(2006) 3 SCC 549, M. Velu vs. State of Tamil Nadu & Others [MANU/TN/0351/2010], Residence Welfare Association vs. State (NCT) of Delhi [MANU/DE/3993/2013, Consumer Action Group vs. Project Director and member Secretary [2010 SCC OnLine Mad 3989], Sandeep Brahmbhatt vs. State of Gujarat & Others [2002 (2) GLH 536].

3.3. In the above backdrop of contentions, it is submitted that at Sr. No. 147 Revenue Survey No. 444 is of Kharaba Talavadi situated in village Tandalja of Taluka and District Vadodara admeasuring 48259 sq. mtrs and it reveals 800 huts near Basil School in the notification dated 10.01.2005 issued under Section 5 of the Bombay Irrigation Act (Gujarat Amendment Act, 1982), 1879 by the Department of Narmada and Water Resources, Water Supply and Kalpsar Department. The above fact remains undisputed and keeping in mind law laid down by this Court as well as Apex Court in the above referred decisions along with solemn assertion and declaration made before this Court in earlier round of litigation pertaining to water bodies in the case of Sailesh R. Shah (supra), the land in question which is earmarked as 'tank poramboke' could not have been parted for any use other than development or recharging the water body. The prayer thus reveals that directions to be issued to respondents no. 1 to 3 to ensure that the water body as declared at Sr. No. 147 in the notification dated 10.01.2005 to be maintained and preserved as water body only and not to be alienated in any other manner or for any other purpose and further restraining respondents no. 1 to 3 from denotifying the land in Tandalja village, District Vadodara.

3.4. Reliance is placed on decisions to which reference is made in earlier part of the judgement namely Sailesh R. Shah (supra), Susetha (supra) about requirement of preserving water bodies/resources wherein the Apex Court referred to earlier case of Intellectual Forum, Tirupati (supra) where principles of sustainable development and inter generational equity were enumerated and the duties cast upon constitutional force to consider and direct the state authorities that even Directive Principles of State policy as reflected in paragraph no. 4 of the Constitution particularly Article 48A and 51A(g) vis-à-vis fundamental rights guaranteed by the Constitution of India including Articles 14, 19 and 21 are to be taken care of.

3.5. The case of Kamal Nath (supra) was also relied upon wherein the Apex Court considered 'Public Trust Doctrine' which is part of the Union liability and it extends to natural resources such as rivers, forests, seashores, air etc. for the purpose of protecting the ecosystem. In the above decision, the Apex Court considered the observations of the Apex Court in the case of Supreme Court of California in Mono Lake case reported in 33 Cal 3d 419 (National Audubon Society vs. Superior Court of Alpine County). Other decisions on the line namely voicing concern by the Apex Court about imminent need to conserve, protect and maintain ecological balance vis-à-vis sustainable development was considered as of utmost importance and Court should leave no stone unturned in seeing that natural resources are not scattered away or illegally used by unscrupulous elements namely some section of the society who undertake development work by indulging into construction for residential, commercial or industrial purpose disregarding environmental loss.

3.6. Further, in the case of Jagpal Singh and Others vs. State of Punjab and Others reported in (2011) 11 SCC 396, resolutions were passed by the Gram Panchayat for regularising common village land/community land and when water bodies exist namely either village pond or grazing land they need not be permitted to be encroached either by granting lease or regularizing in any manner. Lastly, in the case of Sarvepalli Ramaiah (Dead) As Per Legal Representatives and Others vs. District Collector, Chittoor District and Others reported in (2019) 4 SCC 500, once again the Apex Court relied on the decision in the case of Susetha (supra), Kamal Nath (supra) and Intellectual Forum, Tirupati (supra) by emphasizing the need to retain and restore the water bodies and held that water bodies are invaluable.

3.7. On the aspect of requirement of maintaining judicial discipline so as not to take a different view or express any doubt on the correctness of the decision of a co-ordinate bench of the same High Court though brought to the notice of the bench and requirement of strict self discipline so as to strengthen an inbuilt mechanism in the judicial system itself, our attention is invited to a decision of the Apex Court rendered in U.P Gram Panchayat Adhikari Sangh and Others vs. Daya Ram Saroj and Others [(2007) 2 SCC 138] and on the aforesaid premise, Mr. Amit Panchal, learned advocate for the petitioner submitted that the petitioner as such has no grievance if slum dwellers are rehabilitated elsewhere on any other government land but not on water bodies and in the facts of this case so identified since 1952 and details about the same is reflected in revenue record as such.

3.8. Further, notification dated 10.01.2005 itself is unequivocally clear that since decades it remained not only described and identified as such but accepted by all authorities namely District Collector, Vadodara, concerned departments of State of Gujarat and Vadodara Municipal Corporation. By taking us to various communications addressed by the authorities themselves inter, se he submitted that it would reveal that Revenue Survey No. 444 at Sr. No. 147 of the notification dated 10.01.2005 is Tank Poramboke ('Talavadi' in gujarati) Kharaba land.

3.9. On 27.08.2001 vide Government Resolution dated 27.07.2001, it was prohibited to alienate tanks/lakes/ponds/water bodies under the Department of Revenue, State of Gujarat in any manner and all authorities were directed in no uncertain terms that even no proposal be forwarded to make any modification or relaxation for usage of such land for the purpose other than preservation and recharging of water bodies. It is submitted that by solemn affirmation made by the then Principal Secretary, Urban Department, Government of Gujarat by filing affidavit dated 30.07.2002, it was accepted in due deference to the suggestion of the Court in that case that General Development Control Regulations were framed or shall be framed and care shall be taken by all Area Development Authorities and Town Development Authorities and Local Authorities to preserve and maintain water bodies and not to permit any construction over such lands.

3.10. That reference made about Gujarat Rural Urban Housing Scheme and PPP for Rehabilitation and Redevelopment viz-a-viz Pradhan Mantri Awas Yojana and contract awarded in favour of respondent no. 4 by respondent no. 2 - Vadodara Municipal Corporation is therefore contrary to law laid down by this Court in case of Sailesh R. Shah (supra) and other such decisions thereafter by the Apex Court to which reference is made earlier. It is further submitted that though an attempt is made by respondent no. 1 - State of Gujarat, respondent no. 2 - Vadodara Municipal Corporation and respondent no. 3 - District Collector, Vadodara by filing affidavits-in-reply to justify the stand that they have taken now about need to provide shelter to slum dwellers occupying more than 1400 huts as on date in the affidavit filed by them and report of the Expert Committee will not in any manner allow such authorities from committing any breach of their own notifications and the law laid down by the Apex Court as well as this Court.

3.11. Mr. Panchal, learned advocate for the petitioner invited our attention to an affidavit-in-rejoinder filed by the petitioner and submitted that respondent no. 2 - Vadodara Municipal Corporation is the local authority and has a role to play under the Gujarat Town Planning and Urban Development Act and is bound by the assertion of the deponent of the affidavit filed by the Principal Secretary, Urban Land Development Department on 30.07.2002. It is submitted that respondent no. 2 - Vadodara Municipal Corporation is responsible for creating such a situation whereby hutments are removed under the requirement of rehabilitation at the very place which is 'tank poramboke' waste land so notified as a water body. Therefore, none of the respondents no. 1, 2 and 3 are permitted to deviate from the stand taken by the Principal Secretary, Urban Land Development Department in his affidavit dated 30.07.2002 in the proceedings of earlier writ petition being Special Civil Application No. 10621 of 2000 and directions contained in paragraph no. 50 of judgement dated 02.08.2002 passed therein i.e. in the case of Sailesh R. Shah (supra).

3.12. According to learned advocate for the petitioner, if respondents are not made to stop by parting with water bodies of subject writ petition then this will become a routine exercise for them to wriggle out of the decision in the case of Sailesh R. Shah (supra) and will continue to exploit and misuse natural resources contrary to law and in blatant disregard to decisions of the Apex Court as well as this Court.

3.13. When the land is described, identified and notified as 'tank poramboke' any decision by respondent no. 2 to rehabilitate and redevelop such land including for the purpose of construction of premises/residential accommodation for slum dwellers by taking recourse to either Pradhan Mantri Awas Yojana or Mukhya Mantri Gruh Yojana is not permissible and therefore all decisions taken in this regard and finally allotting subject land in favour of respondent no. 4 for the purpose of rehabilitation of slum dwellers and redevelopment by awarding contract or entering into any understanding even through PPP is not permissible and the Court shall come down heavily upon respondents and the Writ Petition PIL be allowed by accepting the prayers made.

4. Mr. Kamal Trivedi, learned Advocate General appearing for respondent no. 1 submitted that so far as law laid down by this Court in the case of Sailesh R Shah (supra) and other decisions of the Apex Court are concerned, as such no reliance can be placed but all such decisions can be distinguished in the facts and circumstances of the case. He submitted that Form No. 7/12 of revenue record of the village under the heading "type and area of land" carried an endorsement as "Kharabo Talavdi" with a remark of "Bin Parvangi thi Zupada" (in gujarati) for land bearing Survey No. 444 admeasuring 48,259 sq. mtr in village Tandalja, District Vadodara.

4.1. As early as on 23.06.1976, part of the land in question was reserved for the purpose of establishment of hutment dwellers on a request made by Karmachari Mitra Mandal. Later, a certificate qua 4047 sq. mtr of the land was allotted in favour of Muktinagar Co-operative Housing Society Limited by respondent no. 3 - District Collector, Vadodara and thereafter on 27.08.2001, a Government Resolution was issued by Revenue Department whereby disposal of all reservoirs, lakes, ponds, water bodies etc. coming under the occupation of the Revenue Department came to be prohibited to which reference is made by learned advocate for the petitioner.

4.2. Further attention is invited to decision in the case of Sailesh R. Shah (supra) and the notification dated 10.01.2005 issued under Section 5 of the Bombay Irrigation Act (Gujarat Amendment Act, 1982), 1979. Apropos Mukhya Mantri Gruh Yojana to provide In-Situ rehabilitation of families residing in slums, Government Resolution was issued on 18.07.2013 whereby minimum 25sq. Mtr of land will be made available with constructed house with basic amenities with an obligation on the part of the private developer to arrange alternative accommodation of slum dwellers till their residential units are constructed and ready for occupation.

4.3. Various communications were addressed by respondent no. 2 - Vadodara Municipal Corporation to respondent no. 3 - District Collector, Vadodara namely communication dated 01.01.2014, Government Resolution dated 15.02.2016 whereby Credit Link Subsidy for providing easy and better housing facilities to the slum dwellers at the place of original residence was introduced linking with Pradhan Mantri Awas Yojana or Mukhya Mantri Gruh Yojana. It is brought to our notice that respondent no. 2 - Vadodara Municipal Corporation issued a notice inviting offers from the interested parties for the development of Integrated Group Housing Facility on the land in question at Sahakarnagar as early as on 11.07.2016 and 'Letter of Acceptance' came to be issued in favour of respondent no. 4 on 20.10.2016 for providing residential units and also for redevelopment. No doubt according to learned counsel when the subject land was notified as water body under the control of Department of Revenue as per Government Resolution dated 27.08.2001, the Collector was to submit a proposal after getting said land denotified. As per communication dated 16.11.2016 and letter addressed by District Collect within a month thereafter at the same time, respondent no. 2 - Vadodara Municipal Corporation also requested respondent no. 3 for allotment of land in question for the purpose of constructing residential units for In-Situ development for hutment dwellers by preserving and beautifying land admeasuring 4,200 sq. mtr as water body and onward proposal was sent by District Collector on 26.10.2017 for denotification and allotment of the land for the purpose.

4.4. Mr. Trivedi, learned Advocate General submitted that the State Government issued a Government Resolution on 26.03.2018 appointing a Technical Committee consisting of (i) Additional Collector, Vadodara, (ii) Superintending Engineer, Vadodara Irrigation Project, Vadodara, and (iii) City Engineer, Vadodara Municipal Corporation, Vadodara for the purpose of finding out the feasibility of allotment of the subject land with a query and report to be submitted on four different question namely how many sq. mtr of land is declared as water body, secondly how much area was in existence excluding water body and including the same, whether water was being filled in or filled out in the water body before existence of slum and fourthly, how much area of notified water body where inflow of water existed etc. and the report was submitted by the above Technical Committee along with a Rojkam dated 29.04.2018 which revealed that as per panchnama drawn on 17.03.2015 total land admeasuring about 4200 sq. mtrs is in the form of large 'pit' and about 3000 sq. mtrs is open land and on the remaining land admeasuring about 41,059 sq. mtrs, there are hutments along with religious places and further there was no sign of accumulation of water on the land in question but during monsoon such an accumulation of water takes place and that was also limited to large pit of the land in question. He submitted that the writ petition was thereafter filed in the year 2018.

4.5. Therefore, it is submitted that in the facts and circumstances of the case, when a decision is taken by the authorities namely respondents no. 2 & 3 and allotment of subject land is already made in favour of respondent no. 4 and only part of the total land is a water body, pragmatic view is to be taken when such findings are submitted by the Technical/Expert Committee.

4.6. Mr. Kamal Trivedi, learned Advocate General then distinguished the decisions relied on by Mr. Amit Panchal, learned advocate for the petitioner and submitted that the above decisions are not applicable on the facts and circumstances of the presence case and in fact law laid down by the Apex Court no doubt emphasizes protecting resources and redevelopment of water bodies but at the same time when such an exercise was not possible, a limited deviation is made by taking individual care that no further damage is caused. In his submissions, learned Advocate General emphasized the need for harmonizing between requirement, protection of natural resources viz-a-viz acute need for rehabilitation of slum dwellers by balancing the interests since Public Interest Litigation is not adversary so as to benefit all and in the facts of this case, 1400 huts are already removed by the Corporation and even more than 5000 customers are awaiting shelters as a part of Pradhan Mantri Awas Yojana or Mukhya Mantri Gruh Yojana for which contract is finally awarded in the year 2016. He submitted that the writ petition therefore deserves to be dismissed.

5. Mr. Mihir Joshi, learned advocate for the respondent no. 4 at the outset would oppose maintainability of the writ petition PIL at the behest of the petitioner belatedly namely after two years of finality of the contract awarded by respondent no. 2 in favour of respondent no. 4 after issuing a notice inviting offers on 11.07.2016 and 'Letter of Acceptance' was issued on 20.10.2016 and particularly when the petitioner had knowledge of such public interest and now at this stage respondent no. 4 has invested a huge amount and is paying monthly charges in favour of hutment dwellers who are already removed as a part of the policy of In-Situ development and has an obligation to arrange alternative accommodation till the residential units are constructed on the land in question and they are shifted. He submitted that such a policy has statutory force in addition to the Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973 which creates an obligation on the part of the State Government.

5.1. Mr. Joshi submitted that respondent no. 4 - Private Developer is paying Rs. 2,000/- per month to each eligible hutment dweller/unit holder through Bank and about Rs. 28.54 lakhs are paid to 1427 eligible hutment dwellers very month and other infrastructural and establishment expenditure where a monthly cost borne by respondent no. 4 is about Rs. 4 crore. Our attention is invited to the project summary, project development and Bidding Process, public notice issued and communication addressed to Bank about transmitting amount of monthly expenses for 1427 hutment dwellers.

5.2. According to learned Senior Counsel appearing for respondent no. 4, the present writ petition PIL is not going to subserve any public interest and judgements relied on by learned advocate for the petitioner are not to be read and interpreted like Euclid's theorem but by taking into consideration ratio decidendi. In support of his submissions that when possibility of revival of water bodies is ruled out and contract in favour of respondent no. 4 is concluded finally, a belated attempt on the part of the petitioner to invoke extraordinary jurisdiction by filing Public Interest Litigation under Article 226 of the Constitution of India is contrary to law laid down in the case of Delhi Development Authority vs. Rajendra Singh and Others reported in (2009) 8 SCC 582. It is submitted that the appeal in the present case is settled for all purposes.

5.3. Mr. Joshi, learned Senior Counsel for the respondent no. 4 has also relied on submissions made on the factual scenario and contents of the affidavits-in-reply filed by respondents no. 1 to 3 that how Technical Expert Committee concluded about part of the whole subject land may have traits of water body which is not more than 2400 sq. mtrs. He has also opposed any kind of concession to be given by taking away contracted land for rehabilitation of slum dwellers and redevelopment project. It is submitted that in absence of merit in the present writ petition PIL, the same deserves to be dismissed.

6. Mr. Maulik Nanavati, learned advocate for the respondent no. 2 - Vadodara Municipal Corporation adopted the submissions of learned Advocate General on behalf of respondents no. 1 and 3 and submitted that the Corporation has followed a fair and transparent policy for awarding contract in favour of respondent no. 4 upon issuance of notice inviting tender by way of public advertisement and now slum dwellers are already removed from the place occupied by them with a promise to rehabilitate them at the very same place and therefore any interference by this Court at this stage will not serve any public good but on the contrary will create an irreversible situation. As a part of public obligation, respondent no. 2 - Vadodara Municipal Corporation was following various schemes like Pradhan Mantri Awas Yojana or Mukhya Mantri Gruh Yojana for which the Corporation/Local authorities were directed to rehabilitate slums and that truthful attempts are made by the Corporation namely to preserve and maintain water bodies which really exist and beautify the same and to rehabilitate slum dwellers. Both the above averred objects cannot be termed contrary to law laid down by this Court or the Apex Court. He submitted that therefore the writ petition PIL deserves to be dismissed.

7. Mr. M.T.M. Hakim, learned advocate for the slum dwellers adopted the submissions made by learned Advocate General, Mr. Mihir Joshi, learned Senior Counsel for respondent no. 4 and Mr. Maulik Nanavati, learned counsel for respondent no. 2 and submitted that for decades the slum dwellers were occupying the subject land without any disturbance and pursuant to various schemes so notified by the State and Central governments, it is hoped that a small roof will be provided for their shelter with some basic amenities which should not be taken away particularly when the Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973 is in force whereby name of slum Sahakar Nagar, Opposite Muktinagar Society, Tandalja Road is identified and the owner of the land is State Government for which now rehabilitation is undertaken. Accordingly, it is submitted that petition deserves to be dismissed.

8. Having heard learned advocates appearing for the respective parties and from the entire conspectus of facts what is evident is that the genesis of this PIL is the litigation initiated by way of PIL being Special Civil Application No. 10621 of 2000 (Sailesh R. Shah (supra)) relating to protection, preservation and improvement of water bodies in the State and safeguarding them against encroachments.

8.1. An affidavit dated 30.07.2002 was filed therein stating that the government would collect data from the development plans about water bodies and they will be notified by the government. This led to the issuance of the notification dated 10.01.2005. Reading the notification, it indicates that the lands in question i.e. Survey No. 444 at Tandalja has been referred to as "Kharabo Talavdi" i.e. waste land/water body along with encroachment. The land is admeasuring 48,250 sq. mtrs which consists not only water body but waste land which is flat and occupied by hutment dwellers.

8.2. Similarly, reading of the affidavit filed on behalf of the Vadodara Municipal Corporation would indicate that the claim of the petitioner that the whole parcel of land is a water body seems misplaced. The revenue records describe it as 'Kharabo Talavdi' i.e. waste land - water body or Tank Poramboke. Even when the lake did exist it was on the land admeasuring 4000 to 5000 sq. mtrs and even today the cupped lake/pit is only to that extent. The claim therefore that the entire piece of land is a water body exclusive is not correct.

8.3. It is pertinent to note that as early as in the year 1976 the land was reserved for the purpose of establishing a society for people living in the slums. Slums were established on the land since the year 1978-79. In the year 1988, the land was earmarked as a government waste land. The Corporation's affidavit clearly reveals that since the year 1951 there is no lake. The land in question has an indentation of about 4,200 sq. mtrs where water gets collected during monsoon.

9. The chronology of events so submitted by the learned Advocate General would indicate that the State taking into consideration all the aspects and keeping in mind the notifications dated 27.08.2001 and 10.01.2005 undertook the exercise of identifying the exact area of the water body which is a part of the waste land so notified vide notification dated 10.01.2005. With the objective of providing affordable housing and making urban areas slum free by providing housing to the poor at free of cost or at subsidised rates, the State Government introduced a policy vide resolution dated 17.08.2013 providing for In-Situ rehabilitation of approximately 7 lakhs families residing in the slums. The Central Government also announced a scheme to provide free houses to the hutment dwellers under the Scheme of Pradhan Mantri Awas Yojana. Here too the object was to utilize available land in optimal manner and to improve the neighbourhood at low or minimal cost. Accordingly, the Vadodara Municipal Corporation vide its resolution dated 21.11.2013 resolved to notify Sahakar Nagar, Tandalja as slum area and the Government of Gujarat issued a notification dated 27.01.2014 notifying the area in exercise of powers under clause (j) of Section 2 of the Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973. The Vadodara Municipal Corporation on being satisfied that the area, as per the provisions of the Gujarat Slums Areas Act, notified the land in question for improvement, clearance and redevelopment, invited expression of interest.

9.1. In the backdrop of the above, what followed is that the Revenue Department on 16.11.2016 addressed a letter to the Respondent No. 3 Collector, inter alia, informing that vide Government Resolution dated 27.08.2001, the State Government has put a restriction on the disposal of the land notified as 'talav' and thus, requested the Respondent No. 3 Collector to submit a proposal after getting the said land denotified or submit a proposal for effecting development on the land surrounding 'talav'. Respondent No. 3 Collector accordingly addressed a letter to the Respondent No. 2 Corporation, inter alia, conveying the aforesaid information. Respondent No. 2 Corporation addressed a letter to Respondent No. 3 Collector, inter alia, requesting for allotment of land in question for the purpose of constructing residential units for In-Situ development for hutment dwellers on the land in question after denotification, while preserving and beautifying the land admeasuring about 4,200 sq. mtr. as waterbody.

9.2. Thereafter, on 11.07.2016 an advertisement was issued for development of Integrated Group Housing Facilities. The project implementation required providing transit accommodation to 1427 slum units situated on the land in question. Pursuant to the tender process, a Letter of Acceptance was issued on 20.10.2016 to the respondent no. 4. The cost of slum rehabilitation/construction was Rs. 81,41,85,000/- and slum dwellers were shifted to transit accommodations where the amount of Rs. 2000/- each is to be paid to the slum dwellers towards such accommodation pending completion. Rs. 4 crores have already been spent.

10. From the communications as above, what is evident is that with the sole object of maintaining a balance between sustainable development and ecology/environment, an exercise was undertaken by the authorities of the State of fulfilling the twin objective of slum redevelopment and preservation of a lake/water body on the parcel of land. As it is discernible from the revenue records, out of the aforesaid land admeasuring 48,259 sq. mtrs in the Final Plot No. 234 only 4200 sq. mtrs is a water body/indented portion as is so described in the revenue records also as "Kharabo Talavdi -Waste Land - Water body - Tank - Poramboke". Revenue records reveal a pit of 4200 sq. mtrs which both the State and the Corporation have gone on record to assure that the same will be rejuvenated, beautified and preserved as a lake/water body. The Court has to preserve the delicate balance between the two objectives of sustainable development and ecology.

11. It is a fact that the urban poor who live in slums face serious issues of hygiene, water, sanitation and health. It is with an object of creating a better living environment that the 'In 'Situ Slum Development' program is introduced under the Awas Yojana. The State with this benevolent avowed object appointed a Technical Committee when the Deputy Secretary (Panchayats), Narmada, Water Supply and Kalpasar Department stated that the land can only be denotified by the Urban Development Department. The Technical Committee inspected the area/land in question to decide or inspect as to which and what area of the land in question is covered under the Water body and which is occupied by slums. A report was sought with the following information:

(i) How many square meters of land is declared as waterbody?

(ii) Within how much area, the slum was in existence? (without the waterbody and including the same)

(iii) Whether the water was being filled in the waterbody because of the existence of slum and if no, then since how long the water was not being filled in?

(iv) Within how much area of notified waterbody, there was inflow of water and within how much area thereof, there was slum.

11.1. The Technical Committee physically verified the land and drew a Rojkam dated 19.04.2018 and a report was submitted on 25.04.2018. The highlights of the report are as under:

(i) That total land admeasuring about 48,259 sq. mtrs has been notified as waterbody by the Narmada, Water Resources, Water Supply and Kalpsar Department.

(ii) That pursuant to the Panchnama drawn on 17.03.2015, total land admeasuring about 4,200 sq. mtrs is in the form of large 'pit', whereas, land admeasuring about 3000 sq. mtrs is an open land and on the remaining land admeasuring about 41,059 sq. mtrs, there are hutments along with religious places.

(iii) It appears that in the recent past, there is no sign of accumulation of water on the land in question, however, during monsoons, accumulation of water takes place and that is limited to the large 'pit' forming part of the land in question.

(iv) It appears that there is no source of water and still total land in question i.e. 48,259 sq. mtrs was notified as waterbody. Moreover, out of that total land admeasuring 48,259 sq. mtrs, existence of hutments and religious places over the land admeasuring about 41,059 sq. mtrs. could be believed.

12. What is therefore evident is that right from the beginning the land was designated as a "Sarkari Kharabo Talav" - Waste Land/Poramboke - Water body/Tank. There exists a large pit admeasuring 4200 sq. mtrs where water gets accumulated during monsoon whereas rest of the land, as stated in the affidavit and based on revenue records and photographs is plain land.

13. The apprehensions voiced by the petitioner therefore that the entire parcel of land is a water body are therefore misconceived and misplaced. As far as the existing area of water body of 4200 sq. mtrs is concerned the Corporation and the State authorities have on affidavit assured this Court of rejuvenating and beautifying the same. We, therefore, need to strike a balance in our care of the environment in juxtaposition with sustainable development. The hutment dwellers who have moved out to make way for construction of suitable housing under the Awas Yojana also deserve to be given their share in the economy of sustainability. It is in this context that our views are echoed through the relevant paragraphs in the case of Intellectual Forum, Tirupati (supra).

"68. The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development. The debate between the developmental and economic needs and that of the environment is an enduring one, since if environment is destroyed for any purpose without a compelling developmental cause, it will most probably run foul of the executive and judicial safeguards. However, this court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and judicial bodies across the world have produced the concept of "sustainable development". This concept, as defined in the 1987 report of the World Commission on Environment and Development (Brundtland Report) defines it as "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". Returning to the Stockholm Convention, a support of such a notion can be found in Paragraph 13, which states:

"In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population."

70. This court in the case of Essar Oil v. Halar Utkarsh Samiti, was pleased to expound on this. Their Lordships held: (SCC p. 406, Para 27]

"27. This, therefore, is the sole aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other. "

83. On the other hand, we cannot also shut our eyes that shelter is one of the basic human needs just next to food and clothing. Need for a National Housing and Habitat Policy emerges from the growing requirements of shelter and related infrastructure. These requirements are growing in the context of rapid pace of urbanization, increasing migration from rural to urban centres in search of livelihood, mis-match between demand and supply of sites and services at affordable cost and inability of most new and poorer urban settlers to access formal land markets in urban areas due to high costs and their own lower incomes, leading to a non-sustainable situation. This policy intends to promote sustainable development of habitat in the country, with a view to ensure equitable supply of land, shelter and services at affordable prices.

84. The World has reached a level of growth in the 21st Century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the Courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of the humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leaves us to the conception of growth and development which sustains from one generation to the next in order to secure 'our common future'. In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress." It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally."

14. Keeping the aforesaid principles in view, we do not see any reason to stall the project of rehabilitation and redevelopment of the slum area at Sahakarnagar, Opp. Mukti Nagar Society, Tandalja Road, Tandalja in Revenue Survey No. 444, T.P. No. 22, F.P. No. 234 at Vadodara.

15. In addition to what we have said above, what is apparent is that the redevelopment was notified on 29.01.2014. The tender process commenced in July 2016, the respondent no. 4 was issued a letter of acceptance in October 2016. The work was to be completed in 18 months. The construction had started in November 2016 and the slum dwellers were evicted in July 2017. Without bringing all these facts on record, the PIL was moved in May 2018. Clearly, the PIL was barred by delay and latches. However, since we have heard this writ petition PIL at length on merit, objections raised by Mr. Mihir Joshi, learned Senior Counsel appearing for respondent no. 4 about not to entertain the writ petition solely on the ground of two years of delay in challenging the contract awarded in favour of respondent no. 4 is not gone into. We therefore dismiss the PIL and vacate the interim relief granted vide order dated 28.05.2018.

16. While parting we direct that the participants in the project on the land in question shall rejuvenate and beautify the lake/water body in the 4200 sq. mtrs area so be declared as a water body and see that the water body is preserved in the true spirit of the declaration made before this Court in the litigation namely Special Civil Application No. 10621 of 2000 i.e. Sailesh R. Shah (supra) and in the present proceedings.

17. Petition is accordingly dismissed. Interim relief stands vacated.

18. After completion of dictation of judgement, learned advocate for the petitioner seeks stay of the present order for a period of two weeks. The said request has been vehemently opposed by learned advocates for the respondents. Considering the fact as noted above that the project has not seen the light of the day since it was started i.e. since 2016, we are not inclined to grant any further relief to the petitioner. The issue concerns rehabilitation of slum dwellers who are staying in transit accommodation and due to the operation of the interim stay the construction of their houses under the Awas Yojana has been stalled. Request is accordingly rejected.