Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 1

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No 10621 of 2000

WITH

SPECIAL CIVIL APPLICATION NO. 11049 OF 2000

WITH

SPECIAL CIVIL APPLICATION NO. 11635 OF 2000

WITH

CIVIL APPLICATIONS NOS. 11667/2000 & 7559 OF 2001

IN

SPECIAL CIVIL APPLICATION NO.10621 OF 2000

WITH

CIVIL APPLICATIONS NOS.2408/2002, 2422/2002,

2645/2002, 2662/2002, 2664/2002, 2663/2002,

2666/2002, 3568/2002 & 4345/2002

IN

SPECIAL CIVIL APPLICATION NO.11049 OF 2000

WITH

CIVIL APPLICATIONS NOS. 589/2002 & 2424/2002

IN

SPECIAL CIVIL APPLICATION NO.11635 OF 2000

For Approval and Signature:

Hon'ble MR.JUSTICE R.K.ABICHANDANI

and

Hon'ble MR.JUSTICE D.A.MEHTA

============================================================

1. Whether Reporters of Local Papers may be allowed : YES

to see the judgements?

2. To be referred to the Reporter or not? : YES

3. Whether Their Lordships wish to see the fair copy : NO

of the judgement?

4. Whether this case involves a substantial question : NO

of law as to the interpretation of the Constitution

of India, 1950 of any Order made thereunder?

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 2

5. Whether it is to be circulated to the concerned : NO

Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?

---------------------------------------------------------

SHAILSH R SHAH

Versus

STATE OF GUJARAT

--------------------------------------------------------------

Appearance:

MR PRADIP D. BHATE for Petitioners in Special Civil

Application No. 10621 od 2000

MR I.M. KAPUR for Petitioners in Special Civil

Application No.11049 of 2000

MR C.H. VORA for Petitioenrs in Special Civil

Application No. 11635 of 2000

MR MIHIR JOSHI, Appointed as Amicus Cuarie

MR S.N. SHELAT, ADVOCATE GENERAL FOR AHMEDABAD

MUNICIPAL CORPORATION WITH MR. R.M.CHHAYA in all

matters

MR KAMAL TRIVEDI, ADDITIONAL ADVOCATE GENERAL

FOR AHMEDABAD URBAN DEVELOPMENT AUTHORITY WITH

MR D.N. PATEL in all matters

MR A.D. OZA, GOVERNMENT PLEADER FOR STATE OF

GUJARAT in all matters

MR J.A. ADESHRA for Memnagar Nagarpalika

MR JITENDRA MALKAN for Council for Social

Justice

MS. E.SHAILAJA for Forum for Social Justice

MR A.S. VAKIL for Ahmedabad New Cotton Mills Ltd.

and New Subhlakshmi Association, Paldi Patidar

(Lehandar) Trust, New Neelkanth Non-Trading

Association and Rameshchandra Ramniklal Talati

NANAVATI ASSOCIATES for Apang Manav Mandal

MR P.R. NANAVATI for Super Star Amusement Pvt. Ltd.

MR. P.M.THAKKAR for MR R.Z. OZA for Gujarat

(Institute of Housing and Estate Developers)

MS. MEGHA JANI for Kamdar Ladat Samittee

--------------------------------------------------------------

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 3

CORAM : MR.JUSTICE R.K.ABICHANDANI

and

MR.JUSTICE D.A.MEHTA

Date of decision: 02/08/2002

ORAL JUDGEMENT

(Per : MR.JUSTICE R.K.ABICHANDANI for the Court)

1. This group of petitions raises common questions

and the petitions have been argued together by the

learned counsel appearing for both the sides.

2. The petitions center around the question of

protecting, preserving and improving the water-bodies in

the State and safeguarding them against encroachments.

3. In Special Civil Application No. 10621 of 2000,

the petitioner has sought a direction on the respondents

to place water policy of the Government of Gujarat before

this Court and also the record to show big and small

lakes in and around Ahmedabad as they existed in the year

1960 and their present status. A direction is also

sought for removing all encroachments on the land bearing

survey No. 353 of Lake Chandola and for executing the

work for disiltation, reviving feeder streams and taking

effective steps for reviving and recharging it. It is

stated in the petition that Lake Chandola which is on the

outskirts of Ahmedabad admeasured about 297 acres and 28

gunthas at the relevant time, and it was a natural

reservoir harvesting rain water which flowed into it on

account of natural gradient from the surrounding areas.

It is stated that Chandola Lake is a stark example of the

fact that the Government had no water policy. The

Government holds such property in trust for the public at

large, and therefore, is under a binding obligation to

ensure that it was duly preserved.

3.1 In Special Civil Application No. 11635 of 2000,

the petitioner No.1 is a committee said to have been

constituted with an object of redressing and ventilating

grievances of the residents of Navrangpura area of the

city. The petitioners have sought a direction on the

respondents to take appropriate action for removing

unauthorised encroachments from the final plot No.190 of

the Town Planning Scheme No.3, which is popularly known

as "Lakhudi Talavadi". It appears that the persons

residing in some co-operative housing societies near that

"Talavadi" (i.e. a small pond), had made applications to

the authorities including the Municipal Commissioner for

removing encroachments from the final plot No.190 on the

ground that unhygenic conditions were prevailing because

of unwieldy encroachments on the plot.

3.2 The Special Civil Application No. 11049 of 2000

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 4

has been preferred by a member of the managing committee

of a co-operative housing society seeking a direction

that unauthorised structures may be removed from and

around Memnagar "Talav". It is stated in the petition

that, instead of developing the ponds at Memnagar and

Vastrapur, illegal constructions were allowed to come up

and no action was being taken by the authorities to

remove them.

4. When the matters came up before the Division

Bench on 18-4-2001, a detailed interim order was made, in

paragraph 95 of which, a direction was given to the State

Government to maintain all water bodies, lakes, ponds

etc. and to remove encroachments at the earliest, and

further to give priority to water crises. The Government

was directed to submit a report after six weeks as to

what action it and the Corporation were proposing to

take. In this interim order, reference was made to

various lakes and ponds which required the attention of

the authorities. Interim directions were given to remove

the encroachments and recharge the lakes. By order dated

5th April 2002, noting that sufficient time had elapsed

but no report was submitted by the Government and that

water bodies which were natural were getting virtually

destroyed on account of negligence of the authorities or

on account of remaining a silent spectator, a Committee

came to be constituted "for suggesting ways, means and

methods to recharge the lakes / ponds in the City of

Ahmedabad, both within the Municipal and AUDA limits,

including collection of rain water and water

conservation." The Committee was to examine cases whether

in the lakes / ponds, buildings had been erected or not.

By order dated 10th May 2002, the AUDA and the Municipal

Commissioner of the City Corporation were directed to

submit all necessary details to the Committee so that it

can report. A direction was issued to the Committee to

submit its report as early as possible.

5. The respondents - authorities have filed their

affidavits in Special Civil Application No. 10621 of

2000, which are relied upon by both the sides for the

purposes of all the matters. There are also affidavits

filed by Ahmedabad Urban Development Authority in Special

Civil Application NO. 11049 of 2000, which are also

referred to during the course of hearing by both the

sides.

5.1 In the affidavit in reply filed by the Executive

Engineer, Ahmedabad Irrigation Division, dated 16th

October, 2000, it was stated that the water policy of the

Government will be placed on record and that, the draft

was under preparation. The list of big and small lakes

in and around Ahmedabad was placed on record at Annexure

R/1 of the affidavit-in-reply. It was then pointed out

that originally the Chandola tank was utilized only for

the purpose of irrigation. That tank was handed over to

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 5

the Public Works Department by order dated 3rd April 1916

made by the Government of Bombay in the Revenue

Department for handing over tanks to the P.W.D. It was

stated that, during monsoon, flood water was diverted

into Kharicut Canal in Section I through Raipur pick up

weir and at the end of Section I, two different canals

were bifurcating. One was section II for irrigation

purpose and the second was Chandola Tank Feeder. The

catering capacity of Chandola Tank was 425 cusec (cubic

feet per second). The Chandola Tank admeasured 121

hectors and its command area was 525 hectors. It is then

stated that Chandola tank is presently within the limits

of the Corporation and in the surrounding areas of

Chandola tank which were getting the benefit of

irrigation system cultivation of the lands was stopped

due to urbanization and now there are factories in the

surrounding areas and water from Chandola has now no

utility for irrigation. It was admitted that there were

encroachments in that area. It was stated that, "Tank

Chandola was meant for irrigation purpose and not for

recreation of wealthy and luxurious citizens".

5.2 An affidavit-in-reply was also filed by the

Additional Resident Deputy Collector on 16th October 2000

on the same lines as the above affidavit of the Executive

Engineer. It was stated that, on 8th March 1976, with

the help of police personnel, the encroachments were

removed and the Slum Clearance Board was informed on 19th

December 1980 for rehabilitation of the encroachers, but

the encroachers were not ready to shift to the proposed

site. The Additional Resident Deputy Collector filed a

further affidavit on 22nd January 2001 showing the steps

taken by the office in compliance of the directions

contained in the order dated 21-11-2000. The details

were placed giving data of 45 villages in the Annexure

"1" to the said affidavit, about the names of the lakes /

ponds and their particulars. A list of final plots

earmarked for use as playgrounds, public buildings etc.

was also annexed at Annexure "2". A list of lands which

had been allotted for various purposes from the erstwhile

ponds with regard to the said forty-five villages was

placed at Annexure "3". The details were given with

regard to position of land which was used as lakes /

ponds in twelve villages as per Annexures 4, 5 and 6 to

that affidavit-in-reply.

5.3 The affidavit in reply dated 12th march 2001 was

filed by Officer on Special Duty, Narmada water Resources

and Water Supply Department on behalf of the Irrigation

Department, stating that the Draft State Water Policy was

prepared in August 2000 and would be finalized soon and

till then, that draft was adopted by the State. It is

stated that, out of 130 lakes to which reference was

made, 127 were either within the jurisdiction of Nagar

Panchayats or Gram Panchayats. After the finalization of

the Town Planning Scheme in and around Ahmedabad, some

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 6

lands of lakes / ponds vested either in the Ahmedabad

Urban Development Authority or the Ahmedabad Municipal

Corporation. It is stated that it was the sole

responsibility of Panchayats to lookafter the lakes

falling within their jurisdiction. It was stated that,

in Lake Chandola, water was getting stored but it did not

last long. It was also stated that there were 4350

hutments of encroachers in that area.

5.4 The Collector, Ahmedabad (the respondent No.2)

filed his affidavit dated 26th June 2001 in context of

the directions given in the order dated 18-4-2001

mentioning the actions undertaken by him from time to

time pursuant to that order. It was stated in paragraph

4 of that affidavit-in-reply that, as per the directions

of the Court, all allotments / alienations of land

identifed as Lakes have been stopped since 18-4-2001 and

no further allotment has been made since then. It was

also stated that all efforts have been made to recharge

existing water bodies by undertaking rejuvenation of the

dormant and semi-live water bodies in the Nagarpalikas of

Memnagar, Vejalpur, Sarkhej-Okaf, Dhandhuka and Bawla, by

sanctioning projects wherever possible under the existing

developmental programmes, such as "Suvarna Jayanti

Swarojgar Yojana". An amount of Rs.3.13 crores was

sanctioned under the said Scheme for rejuvenation of 17

Lakes situated in the areas of the Ahmedabad District.

It was stated that the work had already commenced, and in

Annexure "I", a chart was attached indicating the details

of the 17 lakes and the amounts sanctioned towards them.

It was further stated that the authority of the Collector

extended over all unalienated lands vesting in

Government. As regards the Chandola Lake, it was stated

that the Irrigation Department of the State Government

was assigned the ownership of that lake and its

appurtenant lands and that the Collectorate was taking a

consistent stand ever since 1978 that should the

Irrigation Department wish to handover the lands of

Chandola Lake back to the Revenue Department, it should

take steps to do so free of encroachments.

5.5 In the affidavit dated 4th April 2002 filed by

the Under Secretary in the Urban Development & Urban

Housing Department of the state, in context of the order

made by the Court on 22nd March 2002, it was stated that

the Department was conscious of maintaining water bodies

i.e. rivers, ponds, canals and lakes etc. as water

bodies, and that prior to the order made on 18-4-2001, a

circular was issued by the Chief Town Planner, Government

of Gujarat on 15th March 1999 to all the Town Planning

Officers and concerned offices for safeguarding the water

bodies. Instructions were issued to maintain the water

bodies as they were, while preparing and finalizing the

draft Town Planning Schemes. A copy of that circular is

annexed at Annexure "I" to that affidavit. Further

circular was also issued on 10-8-2001 as per Annexure

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 7

"II" of that affidavit, alongwith a copy of the order

dated 18-4-2001 made by the Court. It was stated that,

due care was taken by the Government in Town Planning

Department for maintaining the water bodies as water

bodies, for which, before preparing the Development Plans

and draft Town Planning Schemes and sanctioning them,

water bodies are shown in light blue colour. Copies of

part of Development Plans and Town Planning Schemes of

some cities were annexed at Annexure "III" to the

affidavit. It is also stated that General Development

Control Regulations were made for the safeguard of water

bodies specifically for maintaining distance from water

portion. Copies of the extracts of the provisions of the

said Regulations were placed at Annexure "IV" of that

affidavit. It was also pointed out that, for cleaning up

the River Sabarmati, a Project known as "Sabarmati River

Cleaning Project" was undertaken under the National River

Conservation Project of the Government of Gujarat, and

till December 2001, an amount of Rs.3,841 lakhs was spent

towards the total cost of that project, which was

Rs.11,239=13 lakhs. It was proclaimed in that affidavit

that the Government was not only conscious to safeguard

the water bodies like rivers but was also keen on

preserving and conserving them.

5.6 In the affidavit in reply dated 26th July 2002

filed on behalf of the State of Gujarat, it was stated

that the Ministry of Water Resources, Government of India

had framed the National Water Policy, which was published

in April 2002, as per Annexure "A" to that affidavit.

The State of Gujarat reviewed its draft Water Policy, and

on 17th July 2002, has framed and published a revised

draft Gujarat State Water Policy, as per copy at Annexure

"B" to that affidavit. As regards Chandola Lake, it was

stated that it was located within the limits of the the

Ahmedabad Municipal Corporation and the State Irrigation

Department was maintaining it. For water resources to

impound Chandola Lake, Kharicut Canal was the feeder,

and, natural water from the catchment areas was the other

source. It was stated that, it was not possible to

impound Chandola to its full capacity due to

encroachments on the periphery of the Lake. There were

more than 6000 hutments in that area. To prevent further

encroachment, a trench measuring 10 ft. deep and 10 ft.

wide is excavated outside the periphery of the Lake, and

that this had resulted in effective curbing of

progression of encroachment. It was also stated that

attempts were being made to see that encroachments were

removed. A copy of the map of Chandola Lake was annexed

at Annexure "C" to that affidavit.

5.7 An affidavit-in-reply dated 30th July 2002 has

been filed by the Principal Secretary, Urban Land

Development Department of the Government of Gujarat,

stating that when the Area Development Authority submits

Draft Development Plan, there is a provision for inviting

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 8

suggestions under section 13 of the Gujarat Town Planning

Act. The development plan distinguishes the water bodies

which are to be used as water bodies. The Town Planning

Scheme is framed under section 40 and even in respect

thereof, objections and suggestions are invited before

finalizing the scheme. All the lands are required to be

used as per the finalized scheme. It was stated that

there are development plans of Bhavnagar, Rajkot,

Ahmedabad, Surat, Vadodara, Jamnagar and Kutch and some

are in the process of making. The Government would

collect the data therefrom about the water bodies

indicated in those plans and the schemes made thereunder.

The Government would also collect the data relating to

various ponds in other areas where the Scheme or the

Development Plan is not operative and identify them. It

was stated that the Irrigation Department of the

Government was responsible for maintaining existing minor

Irrigation schemes and various dams and reservoirs. It

was then stated in paragraph 3 that, in deference to the

suggestion made by this Court, the State Government will

notify in the Gazette the water bodies and will ensure

that no lands forming part of the water bodies be

alienated or transferred by the various Area Development

Authorities or the Local Authorities and will oversee

that the water bodies are maintained and preserved as

water bodies. The State Government will also undertake

relief works as provided in the Gujarat Relief Manual,

and as far as possible, priority shall be given for

digging up of water bodies. The Local Bodies and Area

Development Authorities will be requested and instructed

to see that desiltation may be undertaken in a phased and

gradual manner and encroachment is removed also in a

phased manner. Care will be taken that water bodies are

not converted to any other use in the town planning

schemes / development plans that may be made hereafter

and the Local Authorities and the Area development

Authorities will be instructed to ensure that no debris

of buildings is dumped by any person or institution in

the existing water bodies. The General Development

Control Regulations which are now framed take care as

regards the distance to be maintained between the

development zone and the water bodies, which was minimum

of nine meters, as stated in that affidavit. The

Regulations also provide for percolating well to be

provided if the area of building exceeds 1500 sq. mtrs.

and upto 4000 sq. mtrs. The State Government in that

affidavit assured this Court that proper monitoring would

be undertaken to oversee the preservation and maintenance

of water bodies.

5.8 In the affidavit dated 26th July 2002 filed by

the Municipal Commissioner, it has been stated that the

Corporation has planned to develop the lakes and ponds in

the city. Kankaria Lake is a developed water body having

perennial water storage. It has been stated that the

Corporation has on priority basis, undertaken the

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 9

development of Asarava pond, Odhav pond and Naroda pond.

It has been further stated that the Atelier, Talati,

Architects and Planners are entrusted with the designing

and study for rejuvinating of Asarva and Odhav ponds. It

is stated that "80% of the work of Asarva and Odhav ponds

is completed". The priority for further development is

to be given to the ten lakes / ponds mentioned in

statement marked at Annexure "I' to this affidavit. The

details of fund allocation / expenditure for the purpose

in the annual budget of the Corporation for the year

1998-2000 have been given in paragraph 2 of the

affidavit. It is then stated that the Corporation has

taken up a major programme of rain water harvesting under

which 66 defunct borewells are being converted into

re-charging wells for rain water. Other 34 units

comprising of the percolating wells and percolating pits

have been constructed in various gardens of the

Corporation and for this work, cost of almost Rs.1 crore

has been incurred. It is declared that the Corporation

has resolved to help the citizens for constructing

percolating wells in their private land as a part of rain

water harvesting programme. It is stated that the

Corporation is pursuing with the Government of India for

allocation of grants for development of lakes. A

statement identifying the plots of water bodies which can

be developed gradually is annexed with the said

affidavit.

5.9 In the affidavit in reply dated 30th July 2002 of

the Superintendent Engineer, Irrigating Project Circle,

Ahmedabad, it is brought on record that, under the Water

Resources Department, there are total 182 major and

medium irrigation projects which are completed and 14,208

minor irrigation schemes are executed, as per the

statement at Annexure "A" to the affidavit, which gives

details of existing percolation tanks. It is stated that

all the water bodies as stated in the statement at

Annexure "A" are being maintained as water bodies.

5.10 In the further affidavit that has been filed by

the Chief Town Planner today, it has been stated that the

requirement laid down under Regulation No.14 of the

Development Control Regulations is only the minimum

prescribed, but whenever planning for a pond is

undertaken, the distance to be kept is determined

depending upon the location of the water body. It is

pointed out that, on the periphery of Kankaria Lake,

there is 90 mtrs. to 160 mtrs. of green / recreation

zone created. On the south-west side, a distance of 120

mtrs. is retained in respect of Chandola lake. For

"Sarasiyu Talav" on its southern side, there is village

site and on its northern side, open space is kept upto

100 mtrs. It is stated that, while framing the Scheme,

proper distance is always provided for keeping the

construction away from the water body, having regard to

the requirement of the particular water body, and that

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 10

the above instances are only illustrative. It is further

stated that, when planning for a pond is undertaken,

embankment itself is phased with varying width according

to the requirement of the pond and this coupled with

requirement of the minimum distance of 9 mtrs. from the

pond, may lead to a distance of more than 9 mtrs. in

which no construction can be made. The State Government

had also examined the planning undertaken by the various

local authorities and the provision of 9 mtrs. is only

for the minimum setbacks for different sizes of plots.

It is stated that, such minimum distance to be maintained

from water bodies is incorporated in the Regulation after

consideration by the Area development Authorities and the

State Government in consultation with the Local

authorities, and that the said Regulation is reasonable

having regard to the development of urban area and

considering the maintenance of water bodies. We may here

make it clear that the validity of the said Regulation

No.14 is not in issue in these petitions.

5.11 In the affidavit dated 1st August 2002 of the

Chief Executive Officer of the AUDA, it is stated that,

as per Regulation No.14 of the G.D.C. Regulations which

are a part of the Development Plan sanctioned by the

notification dated 18th May 2002 issued under section

17(1)(C) of the Gujarat Town Planning & Urban development

Act, 1976, the distance of 9 mtrs. is required to be

earmarked for not carrying out any work of development

within that area. It is stated that the AUDA, however,

examines each case on individual basis, according to the

requirement of the individual water body for the purpose

of fixing of peripheral distance from the water bodies.

5.12 In the affidavit-in-reply dated 27th March 2001

filed by the Chief Officer of the Memnagar Nagarpalika in

Special Civil Application No. 11049 of 2000, it is

stated that the respondent No.1 addressed a letter to the

AUDA requesting steps to be taken for removing the

encroachments around the pond. A resolution was also

passed by the Nagarpalika on 30-12-2000 for obtaining

permission for revitalization of "Madaria Talav" from the

Collector, Ahmedabad and to get the necessary grant. The

Gujarat Municipal Finance Board had also intimated by its

letter dated 16-1-2001 that an amount of Rs.63,25,518=00

was sanctioned by the Board for the Project. A copy of

that letter is at Annexure "VI" to the said affidavit.

5.13 In the affidavit of the Chief Executive Officer,

AUDA, dated 19th April 2001 in Special Civil Application

No.11049 of 2000, it was stated that the AUDA had never

attempted to fill up the lake and in fact, it had shown

its desire to develop lakes situated at Vastrapur,

Memnagar, Chandlodia and other places. The State

Government was required to handover the possession of the

lakes. A copy of the Vastrapur Lake Development Project

is annexed to the affidavit.

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 11

5.14 In the additional affidavit dated 3-4-2002 filed

on behalf of the respondent No.2 - AUDA in Special Civil

Application No. 11049 of 2000, it was stated that the

lake and its surrounding was the property of the State

Government, and that it was not possible to make any

arrangement for relocation of the unauthorised occupants

and beautification of periphery of the lake. Particulars

are given about recharging the sub-soil water by saying

that 134 surface level percolating borewells were

constructed on the lands of the AUDA. It was stated

that, by June 2002, AUDA was to construct at least 10

surface level percolating borewells in four ponds, one at

Memnagar and three at Vastral. It was also stated that

the AUDA undertook to make proposals in the Town Planning

Schemes in such a way that all the existing water bodies

are retained as such and will be maintained as water

bodies with the development of gardens on their

peripheries, on the grant of actual possession. As

regards the possession of lands of and around the water

bodies, it was made clear to us by the learned Advocate

General that there would be no difficulty in the AUDA

proceeding on the footing that it was having possession

of those lands for the purpose of preservation and

improvement of the water bodies.

5.15 In the additional affidavit dated 29th July 2002

filed on behalf of the AUDA by the Chief Executive

Officer, it was stated that, in the revised development

plan which came to be sanctioned by the notification

dated 18th May 2002, Regulation No.14 of the GDC

Regulations and provided for distances from water course.

It was also stated that the AUDA had already formulated

schematic plans to recharge the "Memnagar Talav" as well

as various other water bodies. So far as, lakes at

Vastrapur and Vejalpur are concerned, many actions have

already been implemented in that regard. Particulars of

Digging, laying of underground storm water pipeline etc.

are given in that affidavit.

6. It has been contended on behalf of the

petitioners by the learned counsel appearing for the

petitioners as well as the learned counsel who assisted

the Court as Amicus Curiae that the neglect on the part

of the respondents authorities has brought a situation to

the present pass where most of the water bodies have

dried up and encroachment is rampant in many of them.

Referring to the provisions of Articles 39(b), 48A,

51A(g) of the Constitution, as also the provisions

showing the functions of the local authorities under

Articles 243-G and 243-W, read with Schedules 11 and 12

to the Constitution, the counsel argued that, despite

there being clear Constitutional mandate to preserve and

improve lakes and ponds, the State and the Urban

Development Area Authorities, as also the Local Bodies

have miserably failed in the discharge of their duties,

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 12

though fully armed with powers, coupled with duty, under

various provisions of the laws laying down their

functions. The learned counsel referred to the

provisions of the Bombay Provincial Municipal Corporation

Act 1949, the Gujarat Municipalities Act, 1963 and the

Gujarat Panchayats Act, 1993 to point out that the local

bodies were amply armed with powers to remove

encroachments and to preserve lakes and ponds and do

appropriate water management of the water supply sources

falling within their areas. The provisions of

Environment (Protection) Act, 1986 and the Water

(Prevention and Control of Population) Act, 1974 were

referred, to point out that both quantity and quality of

water were required to be preserved by the concerned

authorities, in the interest of public having an access

to the water from lakes and ponds. It was submitted that

these authorities were trustees of such natural resources

and were duty bound to preserve them and it was no answer

to say that lakes have dried up. It was submitted that

all the lakes and ponds should be notified so that their

identity does not get lost in future and necessary

desilting should also be done to rejuvenate them. For

that purpose, storm water drainage system and water

harvesting programme should be implemented. There should

not be allowed any construction near the periphery of the

water bodies so as to hamper their use or to prevent the

natural course of water which fill such lakes and ponds

during the rainy season. It was submitted that the water

policy should be announced and implemented to ensure that

the posterity is assured of water supply suited to good

health of the community.

6.1 The learned counsel relied upon the decision of

the Supreme Court in Hinchlal Tiwari v. Kamaladevi and

others, reported in (2001) 6 Supreme Court Cases 496, in

which, the Court held that the material resources of the

community like forests, tanks, ponds, hillock, mountain

etc. are nature's bounty. They maintain delicate

ecological balance. They need to be protected for a

proper and healthy environment which enables people to

enjoy a quality life which is the essence of the right

guaranteed under Article 21 of the Constitution. It was

held that the Government, having noticed that a pond is

falling in disuse, should bestow its attention on

developing the same which would, on one hand, prevent

ecological disaster and on the other provide better

environment for the benefit of the public at large.

6.2 The decision in M.C. Mehta v. Union of India

and others, reported in (1996) 8 Supreme Court Cases 462,

was cited to point out that the Supreme Court having

regard to the opinion of the two expert bodies, held that

the mining activities in the vicinity of the tourist

resorts were bound to cause severe impact on the local

ecology and therefore, mining activity should be stopped

within three kilometers of Badkal Lake and Surajkund.

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 13

This was done after noticing the noise levels which were

observed.

7. The learned Advocate General submitted that there

can be no dispute over the fact that the water bodies

which vest in the State or the Area Development

Authorities or the Local Bodies must be preserved as such

water bodies. It was submitted that the State has

prepared a draft of State Water Policy which is placed on

record. The Central Government has also prepared a

National Water Policy, a copy of which is placed on

record. It was submitted that though, in the past, due

attention has not been given to the preservation of the

water bodies, the State is now aware of the importance

that they deserve and is keen to discharge its

constitutional and legal duties to safeguard the lakes

and ponds. It was submitted that the State will take

care to see that the water bodies are not lost and their

desiltation will be taken up in a phased manner. Action

will also be taken for removing encroachments.

Furthermore, attention will be paid to recharging of the

water bodies by providing for storm water drainage system

and other means. The Area Development Authorities and

the Local Bodies will be free to start the processes for

preservation and improvement of water bodies without

awaiting of any formal handing over of possession of the

lands covered by such water bodies. As regards the

peripheral distance which as per the interim orders made

on 18th April 2001 was to be 500 meters and 1,000 meters

in case of larger areas as mentioned in paragraph 92 of

the order, the learned counsel submitted that, providing

of such distance was a matter which was to be dealt with

under the provisions of the Town Planning Act under which

the process involved taking into consideration the

objections and formulation of regulations to provide for

distances which are required to be maintained from the

pond and actual constructions. He relied upon Regulation

14 to point out that, after the interim order was made,

now the field is governed by this statutory regulation

which provides for a distance varying from 9 to 30 meters

from the water course. On being asked as to what was the

rationale behind fixing minimum of 9 meters, the learned

Advocate General and the learned Additional Advocate

General have come out with a further affidavit on behalf

of the State and the AUDA showing that the provisions of

9 meters in Regulation 14 was only the minimum

prescribed, and that depending upon the nature of water

bodies, the authorities have been prescribing greater

distance on which construction is not allowed around the

water bodies.

7.1 The learned Advocate General and other Counsel

for the respondents, in support of their contentions,

relied upon the following decisions :-

[a] The decision of this Court in State of Gujarat v.

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 14

Shankerji Chaturji, reported in 37 (3) GLR 755

was cited for the proposition that inherent

powers of the High Court under section 482 of the

Criminal Procedure Code cannot be exercised

contrary to the statutory provisions.

[b] The decision of the Supreme Court in U.P. State

Road Transport Corporation v. Mohd. Ismail,

reported in 1991 (3) SCC 239 was cited for the

proposition that the statutory discretion cannot

be fettered by self-created rules or policy. The

Court cannot dictate the decision of the

statutory authority that ought to be made in the

exercise of discretion in a given case or to

exercise it in a manner not expressly required by

law. (paragraph 12 of the judgement).

[c] The decision of this Court in Gordhanbhai

Kahandas Dalwadi v. The Anand Municipality,

reported 16 GLR 558 was cited for the proposition

that Final Town Planning Scheme would prevail

over byelaws, regulations etc.

[d] The decisions of this Court in Motiben Somaji v.

State of Gujarat, reported in 37(2) GLR 286 and

Karimbhai Kalubhai Belim v. State of Gujarat,

reported in 1996(1) GLH 200, were cited for the

proposition that, once development permission is

obtained under section 29 of the Town Planning

Act, it is not necessary to obtain permission

under section 65 and 66 of the Bombay Land

Revenue Code.

[e] The decision of the Supreme Court in Prakash

Amichand Shah v. State of Gujarat, reported in

AIR 1986 SC 468 was cited for the proposition

that, merely because a decision of the Town

Planning Officer under section 32 is not made

appealable, it does not follow that the

provisions should be struck down.

[f] The decision of this Court in Bhupendrakumar

Ramanlal v. State of Gujarat, reported in 1995

(1) GLH 1124 was cited for the proposition that,

the framing of a town planning scheme is a form

of delegated legislation and under section 65(3),

it becomes a scheme as if it is enacted under the

Act.

[g] The decision of this Court in Chandulal H.

Godasara v. State of Gujarat, reported in 1997

(1) GLH 757 was cited to point out that, it was

held that since the scheme sanctioned has force

of law under section 65(3) of the Gujarat Town

Planning Act, even the government as owner was

estopped from raising any dispute as regards the

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 15

re-distribution since by virtue of section 67,

all lands vested in the authority.

[h] The decision of the Supreme Court in Mansukhlal

Vithaldas Chauhan v. State of Gujarat, reported

in JT 1997(7) SC 695 was cited for the

proposition that the authority under section 6 of

the Prevention of Corruption Act has to apply its

mind and exercise discretion and not to act under

the instructions of the High Court. (paragraph

32 and 33 of the judgement).

[i] The decision of the Supreme Court in Sher Singh

v. Union of India, reported in 1995 (8) JT 323

was cited for the proposition that the Court

would not interfere with the matters of

government policy.

[j] The decision of the Supreme Court in

Sanchalakshri v. Vijaykumar Raghuvirprasad

Mehta, reported in JT 1998(8) SC 55 was cited for

the proposition that the High Court cannot

normally substitute its own conclusion on penalty

and impose some other penalty.

[k] The decision of the Supreme Court in Sh. Mayank

Rastogi v. Sh. V.K.Bansal, reported in JT 1998

(1) SC 33, was cited for the proposition that,

merely because at an earlier point of time when

construction was raised the plot had been shown

as open space, it cannot give right to challenge

or prevent the construction.

[l] Jayamal Jayantilal Thakor v. Chief Commissioner

of Income-Tax & others, reported in XXXIX (1) GLR

43 was relied upon for the proposition that the

High Court would not be entitled to pass any

order which it thought fit in the interest of

justice, but which may be contrary to statutory

provision.

[m] The case of Her Highness Maharani Shantadevi P.

Gaekwad v. Savjibhai Haribhai Patel, reported in

2001 (3) 2097 was referred to for the proposition

that Town Planning was a State subject and that

the right of development and Town Planning was

essentially the right within the purview of the

State Government.

[n] The decision in Indian Acrylics v. Union of

India, reported in (2000) 2 SCC 678 was cited to

point out that, it was held that it is not for

the Supreme Court to direct as to how the

municipal authorities should carry out their

functions and resolve difficulties in regard to

management of solid waste.

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 16

[o] Reliance was also placed on the observation made

in Goa Foundation v. Diksha Holdings Pvt. Ltd.,

reported in AIR 2001 SC 184, at page 187, to the

effect that the society shall have to prosper,

but not at the cost of the environment and in the

similar vein the environment shall have to be

protected but not at the cost of the development

of the society. There shall have to be both

development and proper environment and as such, a

balance has to be found out and administrative

action ought to proceed in accordance therewith

and not dehors the same.

8. The learned counsel who appeared for the parties

who have made applications grudging against the distances

of 500 meters and 1000 meters mentioned in paragraph 92

of the interim order dated 18-4-2001 have argued that the

Court has no power to make any such interim orders, and

that making of such orders would amount to legislating,

because, providing for such distances in a judicial order

would tantamount to substituting the power to frame

Regulations under the Act for prescribing distances to be

kept open from the periphery of the water bodies, in

which no construction could be made.

9. Water is essential to many of the mankind's most

basic activities, such as, agriculture, forestry,

industry, power generation and recreation. Water being

an integral part of the environment, its availability is

indispensable to the efficient functioning of the

biosphere. Without a safe, reliable and stable water

supply, human and economic development would not be

possible. Nearly every decision whether about housing,

transportation, economic growth or developmental work is

linked to the use of the water resources of the

community. Freshwater is as essential to sustainable

development as it is to life, and, water beyond its

geographical, chemical, biological functions in the

hydrological cycle, has the social, economic and

environmental values that are interlinked and mutually

supportive. Safe water, adequate sanitation and

education about hygiene are basic human rights that

protect health, increase the sense of well-being and

improve productivity. Water related leisure activities,

such as water-sports, contribute to a healthy life style.

Human habitation near water resources was essential to

the very existence of the human race and the ancient

civilizations thrived near the vicinity of freshwater.

10. The citizens have a fundamental right under

Article 15(2)(b) of the Constitution, of not being

subjected to any disability, liability, restriction or

condition with regard to the use of wells, tanks and

bathing ghats, roads and places of public resort

maintained out of State funds or dedicated to the use of

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 17

the general public. The word "tank" also means a pool,

pond, reservoir or cistern, especially one for drinking

water or irrigation - see Webster's II New Riverside

University Dictionary. The State is enjoined with a duty

under Article 48A of the Constitution to protect and

improve the environment and to safeguard the forests and

wildlife of the country and every citizen has a duty

under Article 51A(g), inter alia, to protect and improve

the natural environment including forests, lakes and

rivers. The State Legislature has, under Entry 17 of

List II of the Seventh Schedule to the Constitution,

competence to make laws with regard to water i.e. water

supplies, irrigation and canals, drainage and

embankments, water storage and water power, subject to

the provisions of Entry 56 of the Union List. The

Legislature of a State may, by law, endow the Panchayats

with such powers and authority as may be necessary with

respect to schemes for economic development and social

justice, as may be entrusted to them including those in

relation to the matters covered in the Eleventh Schedule

right from Article 243G of the Constitution, namely,

"Minor irrigation, water management and watershed

development" at entry 3, and "drinking water" at entry

11. Similarly, the Municipal Corporations and the

Municipalities may be entrusted by law the matters

enumerated in the Twelth Schedule, which included "water

supply for domestic, industrial and commercial purpose"

at entry 5, "Urban forestry, protection of environment

and promotion of ecological aspects", at entry 8, besides

"Urban planning including town planning", at entry 1, all

read with Article 243W of the Constitution. The State

Legislature has exclusive power to legislate with regard

to local government, that is to say, the Constitution and

power of Municipal Corporations etc. under Entry 5 of

the State List.

10.1 All lakes and tanks which are not the properties

of individuals are declared to be the properties of the

Government by virtue of section 37 of the Bombay Land

Revenue Code. Disposal of water vesting in the

Government is regulated by Chapter 9A of the Gujarat Land

Revenue Rules, 1972.

11. The Municipal Corporations are under an

obligation to make reasonable and adequate provision for

"the management and maintenance of all municipal water

works and the construction or acquisition of the new

works necessary for a sufficient supply of water for

public and private purposes", under section 63(1)((20) of

the Bombay Provincial Municipal Corporation Act, 1949 and

has discretion to provide for protection of the

environment and promotion of ecological aspects, urban

planning including town planning and regulation of land

use, under sub-sections (8) and (8B) of Section 66 of

that Act. For ensuring sufficient water supply for

meeting with the reasonable requirement of the residents

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 18

of the City, the Commissioner may "construct, maintain in

good repair, alter, improve and extend water works either

within or without the City", under section 189(2)(a) of

the Act; and, "all municipal water works shall be

maintained by the Commissioner", as provided by section

189(3) of the Act. The expression "Water works" as

defined by section 2(76) of that Act includes a lake,

tank etc. The expression "municipal water works" is

defined under section 2(39) to mean water works belonging

to or vesting in the Corporation. Thus, it is the

statutory duty of the Municipal Commissioner to maintain

and manage the municipal lakes and ponds of the City.

11.1 Prohibition of certain acts affecting the

municipal water works is provided for in section 194 and

sub-section 1(a) provides that, except with the

permission of the Corporation, no person shall erect any

building for any purpose whatever on any part of such

area as shall be demarcated by the Commissioner

surrounding any lake, tank or reservoir from which a

supply of water is derived for a municipal water work.

Carrying on of any operation of manufacture, trade or

agriculture in any manner, or doing of any act whatever,

whereby injury may arise to any such lake, tank, well or

reservoir or to any portion thereof or whereby the water

of any such lake, tank, well or reservoir may be fouled

or rendered less wholesome, is prohibited by clause (d)

of sub-section (1) of Section 194 of the B.P.M.C. Act.

11.2 Under section 196(1), all existing public

drinking fountains, tanks, reservoirs, cisterns, pumps,

wells, ducts and works for the gratuitous use of the

inhabitants of the City shall vest in the Corporation and

be under the control of the Commissioner; and under

sub-section (2) of section 196, the Commissioner may

maintain the said water works and regulate the use of any

water of such work under section 197 and Chapter X of

Appendix IV of the said Act of 1949. Thus, the

Commissioner is enjoined with the duty to maintain lakes

and ponds of the city which are to statutorily vest in

the Corporation, and regulate the water supply therefrom.

Except as permitted by any order made under the B.P.M.C.

Act, no person shall bathe in or near any lake, tank,

fountain, reservoir or on any part of a river vesting in

the Corporation or wash any animal or clothes or other

articles in or near any such place or work, throw or put

any animal or thing therein or foul or corrupt the water

in any degree, as provided by Sections 311, 312 and

314(b) of that Act. These are the statutory provisions

meant to ensure the quality of water of lakes and ponds.

Whoever contravenes any of the provisions of sections

194(2), 311 clauses (a), (b), (c) and (d), and 312 of the

Corporations Act shall be deemed to have committed an

offence under section 277 of the Indian Penal Code, as

provided in section 393 of that Act. Contravention of

section 194(1), which prohibits certain acts including

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 19

erection of any building on any part of such area as

shall be demarcated by the Commissioner surrounding any

lake is an offence punishable under section 397 of the

Corporations Act, 1949 with imprisonment and fine. These

provisions suggest that, for safeguarding the lakes and

ponds, the Commissioner is empowered to demarcate the

area surrounding any such lake or pond, on which no

person can construct any building except with the

permission of the Commissioner. Under section

271(1)(a)(iii), the draft improvement scheme made by the

Commissioner shall provide for the laying of storm water

drains for efficient draining of streets. The

Corporation can make byelaws under section 458(2) for

regulating all matters and things connected with the

supply and use of water.

12. As regards the Municipalities, Section 80(2) of

the Gujarat Municipalities Act, 1963, inter alia,

provides that all property of the nature specified

therein, not being specially reserved by the State

Government, shall be vested in and belong to the

municipality, and shall, together with all other property

of whatever nature or kind, which may become vested in

the municipality, be under its direction, management and

control, and shall be held and applied by it as trustee,

subject to the provisions and for the purposes of the

Act. Such properties include all public streams, banks,

reservoirs (which would mean large natural or artificial

lakes / ponds used as a source of water supply),

cisterns, springs, aqueducts. The duties of the

municipalities, in the sphere of public health and

sanitation, include obtaining proper and sufficient

supply of water for preventing danger to the health of

the inhabitants; in the sphere of development,

constructing and maintaining drinking fountains, tanks,

wells, dams, and the like which obviously will include

lakes and ponds; and in the sphere of town planning,

devising town planning within the limits of the borough

according to the law relating to town planning for the

time being in force, as laid down in clauses (B), (C),

(D)(a) and (E) of section 87 of the Gujarat

Municipalities Act, 1963. The municipality has power to

regulate bathing places such as tanks and reservoirs

under section 199 of that Act and fouling of water tanks,

reservoirs etc. belonging to the municipality is an

ofence punishable under section 201 of the Act.

Provisions are also made for abatement, of nuisance from

wells, ponds etc. under section 202(1).

13. The Panchayats also have a duty to make

reasonable provision in regard to supply of water for

domestic use and cattle, construction and cleaning of

ponds, tanks and wells, constructing drinking fountains,

tanks, wells, dams and the like, under Schedule I read

with section 99 of the Gujarat Panchayat Act, 1993.

Under section 108 (1) of that Act, the State Government

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 20

may vest in a Panchayat property including wells,

riverbeds, tanks, streams, lakes, nallas, canals and

water courses. The power of the State Government, to

prepare for the whole State the Five Year Plan or the

Project and programmes relating to water supply and other

matters, is kept intact by section 237 of the Gujarat

Panchayat Act, 1993.

14. The powers and functions of Urban Development

Authorities prescribed under section 23 of the Gujarat

Town Planning & Urban Development Act, include power to

execute works in connection with supply of water (clause

vi). Similar power is given to the Area Development

Authority under section 7(vii). A draft development plan

under section 12 shall provide for proposals for

reservation of land for public purposes under section

12(2)(b), proposals for water supply and drainage under

clause (e), preservation, conservation and development of

areas of natural scenery and landscape under clause (h),

and for preventing or removing pollution of water under

clause (n). These provisions apply to the Urban

Development Authority by virtue of section 25 of the Act.

Under section 40(3)(a), a Town Planning Scheme may make

provisional allotment or reservation of land for public

purposes of all kinds as provided in clause (e), for

water supply as provided by clause (h), and, drainage as

provided under clause (f).

15. The word "environment" as defined in section 2(a)

of the Environment (Protection) Act, 1986 includes water

and land and inter-relationship which exists among and

between water air and land, human beings, other living

creatures, plants, micro organism and property. For

regulating environmental pollution, the Central

Government may by notification make rules which may

provide, inter alia, for standards of quality of water

under section 6(2)(a) of the said Environment

(Protection) Act. Under section 16 of the Water Act,

1974, the main function of the Central Board is to

promote cleanliness of streams, [which includes river,

water course, inland water, whether natural or

artificial, sub-terrenean waters as defined in clause (j)

of section 2], and wells in different areas of the States

and clause (g) of sub-section (2) of section 16 empowers

it to lay down, modify or annul, in consultation with the

State Government concerned, the standards for a stream or

well and different standards may be laid down for the

same stream or well or for different streams or wells,

having regard to the quality of water, flow

characteristics of the stream or wells, and the nature of

the use of the water in such stream or well or streams or

wells. Under section 17(1)(a) of the Water Act, the

function of the State Board shall be to plan a

comprehensive programme for the prevention control and

abatement of pollution of streams and wells in the State

and secure the execution thereof. These provisions

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 21

indicate the anxiety of the legislature to maintain the

quality of water for which standards are required to be

laid down.

16. The above constitutional and statutory provisions

clearly bring to fore the paramount duty of the State

Government, Municipal and Panchayat authorities, the Area

Development Authorities and other legal authorities, to

protect and improve water bodies as a part of environment

and to ensure supply of safe water to the public. The

State as the trustee of all natural resources meant for

public use, including lakes and ponds, is under a legal

duty to protect them. This duty is of a positive nature

requiring the State including the Area Development

Authorities and the Local Bodies not only to protect the

peoples common heritage of lakes, ponds, reservoirs and

streams, but to prevent them from becoming extinct and to

rejuvenate and preserve them quantitatively by harvesting

rainwater and qualitatively by prescribing and enforcing

standards of their water. There is ample legislation to

arm these authorities with the power to preserve these

natural resources and prevent their abuse. The duty of

the State in this regard is clearly spelt out by the Apex

Court in M.C.Mehta v. Kamal Nath, reported in (1997) 1

SCC 388, and that of every citizen to protect the natural

environment including lakes in M.C.Mehta v. Union of

India, reported in (1997) 3 SCC 715. The necessity to

limit the construction activities in the close vicinity

of the two lakes was recognized by the Supreme Court, as

noted above. It is rather unfortunate that decades have

passed with laws already governing the field being put to

disuse by the apathy of the authorities to actively

involve themselves in protection and preservation of

water bodies. The interim orders made in these petitions

have, however, goaded them into some action and the final

responses on behalf of the State Government, the Urban

Development Authorities and the Municipal Corporation

have raised a distinct ray of hope that may in near

future glitter on the surface waters of the waterbodies

that are promised to be reinforced and preserved.

17. The importance of identifying the waterbodies in

the State can hardly be over emphasized. That is indeed

the starting point; and, after much exercise, the State

Government has placed on record the particulars of the

existing lakes and ponds and acceded to the suggestion of

this Court that it will notify in the Gazette all the

waterbodies indicated in the Development Plans and the

Town Planning Schemes, as also the lakes and ponds in

other areas of the State where a Scheme or Development

Plan is not operative, so as to identify them for all

time to come. We accordingly direct that the State

Government will notify all the lakes and ponds as may

have been shown in the areas covered by the Town Planning

Schemes and Development Plans, as also those in the areas

not so covered throughout the State, in short all the

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 22

waterbodies in the territory of the State that vest in

the State and / or the Area Development Authorities or

the local bodies including Panchayats, in the official

gazette within three months from the date of this order.

18. The next important aspect is that the waterbodies

that vest in the State or local bodies should not be

alienated or transferred. It appears that, in the past,

the land covered by the waterbodies have been put to

other uses under the Town Planning Schemes and then a

stand is taken up that the Town Planning Schemes having

become part of the statute, the Court cannot do anything

about it, or, if such land is put to some other use

allowed under the scheme, that it will not be appropriate

to dig up the construction to revive a waterbody. When

State is enjoined upon a duty under Article 48A read with

Article 21 of the Constitution to endeavour to protect

and improve environment which would include the

waterbodies and every citizen is under a duty under

Article 51A(g) to protect and improve environment

including lakes, which are specifically mentioned therein

as a part of environment, and when such material

resources need to be protected to enable people to enjoy

a quality life which is the essence of the right to life

guaranteed by Article 21 as held by the Apex Court in

Hinchlal's case (supra), there would virtually be no

constitutional option to convert the land under the lakes

and ponds to any use that may alter their character as

waterbodies in violation of the constitutional mandates

to the State and the citizens not only to protect but to

improve them. The Supreme Court has made this explicit

in M.C.Mehta v. Kamal Nath, reported in (1997) 1 SCC 388

by holding that these natural resources are meant for the

public use and cannot be converted into private

ownership. Step in this direction is taken by the State

Government by declaring Draft of the State Water Policy

(2002). Announcements on Water Resources Planning,

Development and Management in paragraph 4 of the Policy

statement include the strategy of making efforts "to

protect and use all fresh water / natural resources like

lakes, tanks, ponds, talavadis, springs etc. and

preservation of existing freshwater bodies shall be

ensured. Traditional water retaining structures shall be

protected .........". The Circular dated 15-3-1999 (a

copy of which is annexed with the affidavit-in-reply

dated 4-4-2002 of the Under Secretary to the Government,

Urban Development & Urban Housing Department), was issued

instructing the concerned authorities that while making

any original development plan or a revised development

plan, the waterbodies such as rivers, lakes, ponds,

canals or any other type of waterbodies should be

preserved as such waterbodies and should not be included

in the proposals for other uses and these waterbodies

should not be given any final plot number and their

character should be preserved. In order to ensure that

the waterbodies in the State which are identified as per

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 23

the development plans, town planning schemes and the

government records and which will be notified in the

official gazette, we direct that the State Government,

all Area Development Authorities and local Bodies will

protect, maintain and preserve all the waterbodies in the

State which are identified as per the development plans,

town planning schemes and the government records and

which will be notified in the official gazette, as

waterbodies and they will not be alienated or transferred

or put to any use other than as waterbodies.

19. Water has also a destructive potential if the

standards of its quality are not maintained. Misuse of

water resources and poor water management practices would

result in depleted supplies, falling water tables,

shrinking inland lakes, and stream flows diminished to

ecologically unsafe levels. Water pollution, originating

mostly from human activities, occurs even more frequently

and in a widespread manner, making the quality of water

unsuitable for many uses. The management of water

quantity cannot be efficiently done without considering

the water quality. Water resources should be managed in

conjunction with land resources, and water supply schemes

which generate large amount of waste water in consumer

areas should be designed and built with the required

matching drainage networks and waste water treatment

facilities. We would therefore direct the respondents

authorities to take steps to get the standards of quality

of water of the lakes and ponds prescribed by the

concerned authority under the law, and devise mechanism

for periodic monitoring of the quality of water in these

lakes and ponds.

20. Normally, lakes and ponds are expected to be

permanently wet year round. They fall in the discipline

of limnology which is a sub-system of hydrology that

deals with the scientific study of freshwaters

specifically those found in lakes and ponds. By the

fallout of dust from the atmosphere and the sediments

washed into the lake, the lake will gradually become

eutrophic, with relatively poor water quality and will

gradually become shallower and may eventually disappear.

A lake may come to its end physically through loss of its

water or through infilling by sediments and other

materials. Lakes and ponds depend for their very

existence upon a balance between their main sources of

water and the losses that occur, a sort of water budget

which may reflect the hydrologic idiosyncrasies of the

individual lake. It will usually be difficult to

influence the basic natural factors such as precipitation

and evaporation that cause the imbalances. When the

balance between photosynthesis and decomposition is

upset, either too much organic material accumulates

without getting decomposed adequately or too many

bacteria grow and overabundance of decomposition occurs.

Most inland lakes and ponds are eutrophic. Their bottoms

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 24

get filled up with rich sediments. Eutrophication causes

many harmful effects such as deterioration of the scenic

value of lakes and ponds due to decrease in transparency

or colour changes, water supply problems including the

obstruction of filters, unpleasant odors and taste of its

water, and loss of acquatic life. This emphasizes the

need to proper preservation of lakes and ponds, because,

in addition to supply of water, freshwater bodies also

provide a resource for recreational activities, such as,

boating, swimming, fishing and habitats for various

aquatic and terrestrial species. Pond waters can have

many uses from irrigation to recreational activities.

Extensive management plans and programmes have to be

established as a part of geographic initiatives to ensure

the preservation, protection and restoration of these

important environmental resources. The National Water

Policy and the State Water Policy, a draft of which is

produced, are exhaustive documents containing great

vision but now is the time to move beyond policy

declarations to concrete action that may produce results

by rejuvenating the waterbodies, most of which appear to

be in a state of "comma".

20.1 The Year 2003 is to be celebrated as

International Year of Freshwater and the United Nations

Educational Scientific and Cultural Organization has

undertaken International Hydrological Programme which is

an intergovernmental scientific programme in water

resources. The I.H.P. - VI (2002 - 2007) Programme has

been launched coinciding with the emergence of a profound

paradigm shift in society's approach towards water.

There is a shift in thinking about water from fragmented

compartments of scientific inquiry to a more holistic

integrated approach towards both quality and quantity of

water, the surface water and ground water as well as

atmosphere and terrestrial part of the hydrological

cycle. It is, therefore, essential that the State

Government, the Area Development Authorities and the

Local Authorities should hold themselves jointly and

severally responsible to achieve the purpose of the

constitutional and legal mandates for preserving the

waterbodies in their proper and useful state. We

therefore direct that the State Government, the Area

Development Authorities and Local Authorities should take

urgent measures to rejuvenate the waterbodies which are

to be notified in the gazette by undertaking a declared

phased programme of desiltation and make adequate

provisions for recharging them by appropriate storm water

drains and other feasible means and to take measures

against pollution of such waterbodies.

21. Monitoring of the rejuvenation, maintenance and

preservation of waterbodies is essential and it is

heartening to note that due importance is given to this

aspect in paragraph 30.5 of the Draft Water Policy of the

State which envisages constitution of Water Resources

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 25

Council headed by Chief Minister of Gujarat with

Ministers of various Departments as members and Chief

Secretary as Member Secretary, as also of Water Resources

Committee headed by the Chief Secretary with Secretaries

of various Government Departments as members for

inter-departmental related activities. Having regard to

the urgency and importance of having a centralized

control and monitoring of the programmes for the

protection, preservation and improvement of waterbodies,

we direct that the State Government shall expeditiously

take steps to constitute Water Resources Council as

contemplated in the Draft Water Policy of the State,

headed by the Hon'ble the Chief Minister with other

Ministers, including the Ministers in-charge of the

Environment and Urban Development Departments to oversee

the programme for protection, preservation and

improvement of the waterbodies. The State Government

will also constitute the Water Resources Committee headed

by the Chief Secretary which may include the Secretaries

of Environment, Urban Development and Agriculture

Departments for monitoring the implementation of the

programme in a time-bound manner with periodic review of

its success. This Committee shall place the particulars

of the targets achieved and the causes of non-fulfilment

of the targets periodically before the Water Resources

Council for its consideration.

22. Without removal of encroachments, the waterbodies

under encroachment can hardly be rejuvenated. It is

therefore essential for the State Government, the Urban

Development Authorities and the local bodies to exercise

their statutory powers to remove the existing

encroachments and take measures to prevent encroachments.

These authorities are, therefore, directed to prepare an

authenticated record in form of videography, photography

and panchnamas of the existing encroachments and take

urgent steps to remove them in accordance with law and

the rehabilitation policies of the Government.

Responsibilities of the officers / staff concerned,

should be fixed in respect of non-removal of

encroachments and fresh encroachments. The Water

Resources Committee will closely monitor the removal of

encroachments by the concerned authorities, and, the Area

Development Authorities and the local bodies shall

furnish, quarterly, particulars of such encroachments and

their removal to the Water Resources Committee.

23. There has been opposition expressed on behalf of

the State Government and the authorities, as also on

behalf of the parties whose construction plans are held

up, against the directions contained in paragraph 92 of

the interim order dated 18-4-2001 to the effect that the

Corporation, Development Authority, Collector and the

State Government "shall not permit any construction

whatsoever within 500 meters of the lake / pond if the

size of the waterbody lake / pond is 5000 sq. mtrs. or

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 26

less, and within 1000 meters, if the size of the lake /

pond waterbody is larger than 5000 sq. mtrs. save and

except for storage of water or making gradient etc." The

learned Advocate General argued that a general provision

is made in the Regulation 14 of the Revised draft General

Development Control Regulations published in the Gujarat

Government Gazette dated 18-5-2002, which is reproduced

hereunder :

"14. DISTANCE FROM WATER COURSE

No development whatsoever, whether by

filing or otherwise shall be carried out

within 30 Mts. from the boundary of the

bank of the river where there is no river

embankment and within 15 Mts. or such

distance as may be prescribed under any

other general or specific orders of

Government and appropriate Authority

whichever is more, from river where there

is river embankment but in case of kans,

nala, canal, talav, lake, water-bodies

etc. it shall be 9.00 mts.

Provided that where a water course passes

through a low lying land without any well

defined bank, the applicant may be

permitted by the competent Authority to

restrict or direct the water course to an

alignment and cross section determined by

the competent Authority."

23.1 Admittedly, the above provision did not exist

when the interim order was made on 18-4-2001. Exercise

of Constitutional power under Article 226 by issuing an

interim order cannot be branded as exercise of

legislative function. As a precautionary and interim

measure, the Court can grant an interim order to prevent

constructions that may harm the natural resources which

are required to be protected, preserved and improved.

Since the direction not to construct within the area

specified was of interim nature, given when the above

regulation did not exist, and the matter is now being

finally decided, the attack against such interim

direction on the ground that the Court had impinged on

the legislative function of prescribing such limits is

unwarranted. The judicial powers of the Court can be

exercised in context of executive functioning to prevent

wrongs and illegalities and to enforce statutory duties

and obligations, and there can arise no question of the

Court exercising executive or legislative powers when it

makes interim judicial orders under Article 226 to

prevent illegalities or wrongs and to enforce statutory

obligations and duties. The character of such judicial

power is distinct and different from the nature of

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 27

legislative or executive powers and it has a

constitutional backing.

23.2 There can be no dispute over the proposition that

the Court will not substitute its wisdom for that of the

legislature or the executive. The function of

prescribing the parameters for effective preservation of

the water bodies undoubtedly is of the State Government,

Area & Urban Development Authorities, and the local

bodies under the laws, but the established neglect of the

water bodies prompted the Court to issue interim

directions to prevent construction in the areas specified

in the interim order, around the periphery of the lakes

and ponds, and that need not irk the authorities any

more, when they have now chosen to become alert and alive

to the needs of the situation realising the

constitutional and legal requirement to protect, preserve

and improve lakes and ponds.

23.3 Though initially reliance was placed on the

Regulation 14, when asked to disclose on what basis that

minimum was fixed, the learned Advocate General for the

State and the learned Additional Advocate General for

AUDA very fairly stated that though nine meters was

prescribed, it was only the minimum and in reality, the

concerned authorities have provided a larger peripheral

margins to prevent construction activities, because, the

lakes are usually surrounded by garden and then come the

peripheral roads which vary in their width and in many

case, they were shown to be eighteen meters or even more

in the development plans. On such examination of the

material, it has been stated in the affidavit filed by

the Chief Town Planner that, when planning for a pond is

undertaken, embankment itself is phased with varying

width according to the requirement of the pond and

coupled with 9 mtrs. distance from the pond, may lead to

a distance of more than 9 mtrs. from the pond. It is

stated that, when the planning for a pond is undertaken,

the distance to be kept is determined, depending upon the

location of the water body. On the periphery of Kankaria

Lake, there is 90 mtrs. to 160 mtrs. green / recreation

zone created. On its south-west side, a distance of 120

mtrs. is retained in respect of Chandola lake, as

already noted hereinabove. In the affidavit filed by the

AUDA by its Chief Executive Officer, it has been stated

that, inspite of the provision of minimum 9 mtrs. of

distance mentioned in the G.D.C.R. No.14, the AUDA

always examines each case on individual basis, according

to the requirement of the individual water body for the

purpose of fixing of peripheral distance from the water

bodies.

23.4 In background of the above averments and

statements, we direct that the question of determining

the peripheral area surrounding a lake or pond on which

construction may be prohibited will be taken up by the

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 28

concerned authorities for consideration in the context of

the development of individual lakes and ponds and the

authorities will take decisions thereon having regard to

the relevant factors which may have a bearing on the

protection, preservation and improvement of lakes, ponds

and other water bodies, and once the peripheral area,

around a lake or pond, in which there will be no

construction allowed is determined, the same shall be

notified. All the applications for building permissions

which may be pending, may be accordingly decided as per

the regulations and keeping in view the requirement of

individual waterbodies.

24. To sum up, we issue the following directions:-

[A] The State Government will notify all the lakes

and ponds as may have been shown in the areas covered by

the Town Planning Schemes and the Development Plans, as

also those in the areas not so covered throughout the

State, in short, all the waterbodies in the territory of

the State that vest in the State and / or the Area

Development Authorities or the local bodies including

Panchayats, in the official gazette within three months

from the date of this order.

[B] The State Government and all Area Development

Authorities and local Bodies will protect, maintain and

preserve all the waterbodies in the State which are

identified as per the development plans, town planning

schemes and the government records and which will be

notified in the official gazette, as waterbodies and they

will not be alienated or transferred or put to any use

other than as waterbodies.

[C] The respondents authorities should take steps to

get the standards of quality of water of the lakes and

ponds prescribed by the concerned authority under the

law, and devise mechanism for periodic monitoring of the

quality of water in these lakes and ponds.

[D] The State Government, the Area Development

Authorities and the Local Authorities should take urgent

measures to rejuvenate the waterbodies which are to be

notified in the gazette by undertaking a declared phased

programme of desiltation and make adequate provisions for

recharging them by appropriate storm water drains and

other feasible means and to take measures against

pollution of such waterbodies.

[E] The State Government shall expeditiously take

steps to constitute Water Resources Council as

contemplated in the Draft Water Policy of the State,

headed by the Hon'ble the Chief Minister with other

Ministers, including the Ministers in charge of

Environment and Urban Development Departments to oversee

the programme for protection, preservation and

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 29

improvement of the waterbodies. The State Government

will also constitute the Water Resources Committee headed

by the Chief Secretary which may include the Secretaries

of Environment, Urban Development and Agriculture

Departments, for monitoring the implementation of the

programme in a time-bound manner with periodic review of

its success. This Committee shall place the particulars

of the targets achieved and the causes of non-fulfilment

of the targets periodically before the Water Resources

Counci, for its consideration.

[F] The State Government, the Area Development

Authorities and the local bodies are directed to prepare

an authenticated record in form of videography,

photography and panchnamas of the existing encroachments

and take urgent steps to remove them in accordance with

law and the rehabilitation policies of the Government.

Responsibilities of the officers / staff concerned should

be fixed in respect of non-removal of encroachments and

fresh encroachments. The Water Resources Committee will

closely monitor the removal of encroachments by the

concerned authorities, and, the Area Development

Authorities and the local bodies shall furnish,

quarterly, particulars of such encroachments and their

removal to the Water Resources Committee.

[G] The question of determining the peripheral area

surrounding a lake or pond on which construction may be

prohibited will be taken up by the concerned authorities

for consideration in the context of the development of

individual lakes and ponds and the authorities will take

decisions thereon having regard to the relevant factors

which may have a bearing on the protection, preservation

and improvement of lakes, ponds and other water bodies,

and once the peripheral area, around a lake or pond, in

which there will be no construction allowed is

determined, the same shall be notified. All the

applications for building permissions which may be

pending, may accordingly be decided as per the

regulations and keeping in view the requirement of

individual waterbodies.

Rule is made absolute in all these petitions

accordingly with no order as to costs. All the

applications filed in these petitions stand disposed of

in light of this decision with no order as to costs.

25. While parting, we record our appreciation of the

efforts put in by the Committee in assisting the Court by

placing on record important material having bearing on

the issues involved in these petitions. We express our

gratitude to the Chairman of the Committee for the

attention that he has bestowed to the questions involved

in these matters and for his enlightening report and the

pains that he took in gathering the material which is

mentioned in the report. The learned Government Pleader,

Aug 28 15:17 2002 Order dated 02/08/2002 for SCA/10621/2000 Page 30

in fairness, states that appropriate orders may be made

for remunerating the Members of the Committee, which will

be borne by the State Government. While expressing our

gratitude for the assistance rendered by the Committee,

we direct the State Government to pay a token sum of

Rs.25,000=00 [Rupees twenty five thousand only] to the

Chairman of the Committee and Rs.15,000=00 [Rupees

fifteen thousand only] to each of the Members of the

Committee, other than the government officers. This will

be over and above the reimbursement of the expenses that

may have been incurred by the Committee which will be

promptly done by the State Government.

[R.K.ABICHANDANI, J.]

[D.A.MEHTA, J.]