C/WPPIL/253/2015                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/WRIT PETITION (PIL) NO. 253 of 2015
                                 With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2016
                In R/WRIT PETITION (PIL) NO. 253 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL

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

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law

as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ ISHWARBHAI NATHUBHAI NAIK Versus STATE OF GUJARAT & 4 other(s) ================================================================ Appearance:

Mr. R.R.MARSHALL SENIOR ADVOCATE with MR R E VARIAVA(971) for the Applicant(s) No. 1 UTKARSH SHARMA AGP for the Opponent(s) No. 1,2,3,4 MR SP HASURKAR(345) for the Opponent(s) No. 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE V.P. PATEL Date : 25/11/2019 CAV JUDGMENT Page 1 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE V.P. PATEL)

1. The Petitioner - Ishwarbhai Nathubhai Naik has filed the present Public Interest Litigation under Articles 226 and 227 of the Constitution of India for claiming the following main reliefs: "(b) A writ of mandamus or any other appropriate writ, order or any other direction be issued. And set aside the order passed by the Respondent No.3 and quash the circular at annex. A & B and also quash the order giving the possession of said piece of 3400 sq. meters of land of Block No.405 to the Respondent no.5 as per Annexure-D to the petition;

(c) Be pleased to quash an set aside the entry No.5257 made in Village Form No.6 Hak Patrak of Gandevi on 16.2.1984 (Annexure-C) to the petition;

(d) Pending the admission, hearing and final disposal of this petition, the Respondents its servants, agents, etc. be prohibited to make the construction work in the area of 3400 sq. meters of land of Block No.405 of Village Gadat where the pond is situated;"

2. Facts of the Case:

2.1 It is the case of the petitioner that the two ponds situated at village Gadat is being used by the peoples of the said village since time immemorial for different purposes. One pond is situated in Block No. 405 and its area is O. Hector 50 Are and 75 Sq. mt. and the another pond is situated in Block No. 197 having area 4 Hector 92 Are and 31 sq. mt. of the village Gadat Taluka Gandevi, District Navsari That the trust named Shree Kameshwar Mahadev Mandir Trust Gadat has applied to village panchayat for development of both the ponds. That the Gram Sabha held on 7.3.2008 has unanimously accepted the proposal for development of the said two ponds, as both the ponds were in a very poor condition. That in pursuance of the said unanimous decision, the Trust has Page 2 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT accordingly started the development work in the said two ponds.

2.2 During the development work, the Respondent No. 2 has come with a Circular dated 4.9.2012 (at Annexure-A) stating that the Gauchar and / or Government padtar land be given to the electric companies for power plant in view of the Resolution of the Department dated 7.9.2009. The possession is to be given to the electricity company immediately for which the Respondent No.2 has further passed Amended Circular dated 21.5.2013 stating that the Gauchar and / or padtar land be transferred to those electric companies for public purpose by getting consent of the Gram Panchayat.

2.3 It is stated that the Respondent No.2 - The Deputy Secretary, Revenue Department by the aforesaid Circular dated 4.9.2012 instructed the Respondent No.3-Collector, Navsari to transfer the said land to the electric companies for the purpose of power plant considering the public purpose as per the Resolution of the Revenue Department dated 7.9.2009. Accordingly the Respondent No.4 - The Mamlatdar, Gandevi, Navsari has made Entry No.5257 for the land admeasuring 3400 sq. meters of Blok No. 405 of village Gadat in Village Form 6 Hak Patrak by order dated 19.10.2014.

2.4 The order dated 11.9.2014 (at Annexure-D) passed by the Respondent No.3 - The Collector, Navsari under Section 38 read with Section 73 of the Gujarat Land Revenue Code and declared the land of the State Government, admeasureing 3400 sq. meters of Block No.405 as Padtar Land and / or Gauchar land and directed Page 3 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT that the said land be given to Respondent No.5 - The Gujarat Energy Transmission Corporation, Kabipor (for short "GETCO") with immediate effect for the purpose of Power Plant.

2.5 That, being aggrieved by the aforesaid steps taken by the Respondents, the Petitioner, through his Advocate, has issued notice dated 17.10.2015 to the Respondent No.3 - The Collector, Navsari as well as Respondent No.5 - The Gujarat Energy Transmission Corporation, Kabipor, Navsari.

2.6 The Petitioner has further prayed for a prohibitory relief that the Respondents, its servants and agents etc. be prohibited to make the construction work in the area of 3400 sq. meters at Block No.405 of Village Gadat where the pond is situated.

3. Heard learned Senior Advocate Mr. R.R.Marshal appearing with learned Advocate Mr. R.E.Variava for the Petitioner, learned Advocate Mr. S.P.Hasurkar for Respondent No.5 - The Gujarat Energy Transmission Corporation, Kabipor, Navsari and learned AGP Mr. Sharma for the Respondent - State of Gujarat.

Submission on behalf of the Petitioner:

4. It is argued by the learned Senior Advocate for the Petitioner that the order passed by Respondent No.2 declaring the land as the government padtar land or gauchar land is manifestly illegal, invalid and ab initio void. That Respondent No.2 has not acted in consonance with the judgment of the Hon'ble Supreme Court and the High Court which are binding to the Respondent No.2. He submitted that the State is bound to notify all the water bodies Page 4 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT which vest in the government in the official gazette and the same are required to be protected, maintained and preserved as per the development plans, town planning schemes and the government records. That such pond and are not be alienated or transferred and shall not be utilized for any other purpose than the water bodies. It is submitted that it is the bounden duty of the Respondent No.2 to get the standard of quality of water of the water bodies as prescribed by the concerned authorities under the law and device the mechanism of periodic monitoring of the quality of water in such water bodies.

4.1 Learned Senior Advocate for the petitioner has submitted that the natural resources can only be used for public purpose and its use cannot be transferred or converted into private ownership. In support of this contention he has referred to and relied upon the judgment of the Hon'ble Supreme Court in case of M.C. Mehta v. Kamal Nath reported in (1997) 1 SCC 388.

4.2 Learned Senior Advocate for the petitioner has further referred to and relied upon the judgment of the Hon'ble Apex court in case of Chigurupati Venkata Subbayya v. Paladuge Anjayya, reported in (1972) 1 SCC 521 (529) and submitted that that the suit lands in view of Section 3 of the Estates Abolition Act if vest in the government, that by itself does not mean that the rights of the community over can be taken away. He therefore submitted that the action of the Respondent No.2 is against the observations made by the Hon'ble Apex Court in the aforesaid judgments.

4.3 The learned Senior Advocate for the petitioner has further Page 5 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT invited the court's attention to the guidelines mentioned by this court in Special Civil Application No. 10621 of 2000 dated 2.8.2000 with respect to 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 areas not so covered throughout the State, in the official gazette within three months from the date of the order passed the SCA 10621/2000 and also to protect, maintain and preserve all the water bodies in the State which are identified as per the development plans, town planning schemes and the government records. That may be notified in the official gazette and not to alienate or transfer or put to any use other than as water bodies. Learned Advocate for the petitioner has further referred to some other guidelines referred to in paragraph 24 (A) to 24 (G) of the SCA 10621/2000 by this court.

4.4 The learned Senior Advocate of the petitioner therefore submitted that the order of the Respondents is erroneous, illgal and bad in the eye law and the present petitioner therefore deserves to be allowed and the order passed by the Respondent No.3 - The Collector, Navsari deserves to be quashed and set aside along with the Circulars dated 4.9.2012 and 21.5.2013 at Annexure-A and Annexure-B respectively and requested to allot the petition with cost.

Submission on behalf of the Respondent No. 1 to 4:

5. Learned AGP Shri Sharma has argued that none of the fundamental rights or the of the legal rights of the petitioners have been violated because of any action or inaction on part of the present Respondent. That the land in question is not falling under the Page 6 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT notified water bodies. Therefore the contention of the petitioner as regards to protect the land of the pond on Survey No. 405 is required to be rejected. It is further argued that the revenue land in question for the year 1967 shows that the land was given to the gram panchayat for the purpose of of pond without any compensation. That the allotment of order clearly contemplates that whenever the State Government requires parcel of land for any public purpose the same should be made available to the Government without any compensation.

5.1 That on the land in question at present no pond was ever created over said site till 2016. That the revenue records are submitted to that effect. That the petitioner is motivated on behalf of someone who has affected to the public purpose. That the Petition is not maintainable in law and the same deserves to be dismissed in limine. That the Collector has received representation dated 2.1.2016 wherein the villagers have requested the Collector to see to it that the sub station is installed, is made functional at the earliest. That the gram panchayat vide its Resolution dated 10.10.2012 consented to give the land in question for installation of sub station.

5.2 It is also argued that the panchnama of the site was prepared which shows that the parcel of land is levelled as same level to the nearby land. Therefore it is requested to dismiss the writ petition with costs.

Submission on behalf of Respondent No.5:

6. Learned Advocate Mr. S.P.Hasurkar for the Respondent No.5 -

Page 7 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT

GETCO has adopted the submissions made by the Respondent - State Government.

6.1 Further it is stated that the proposal of the Respondent No.5

- GETCO was examined by the Collector and it is found that the proposed land is suitable for the sub station. That the government has handed over the possession of the land to GETCO on 10.9.2015. That the amount of Rs.6,38,324/- was paid by the GETCO to the government. That considering the various parameters there is no other land better suitable for the sub station.

6.2 It is further argued that the petitioner is motivated in order to either exert pressure on the various authorities so as to get the land allotted to the GETCO at Survey No. 405 or to lead GETCO to succumb to some illegal demand. That the petitioner is one of the office bearer of Kameshwar Mahadev Mandir Trust. That the said temple trust has addressed the communication dated 13.10.2013 giving consent for allotting the land to the GETCO for construction and erection of sub station since the same was in the interest of the village and the surrounding area. That the trust has also consented to the Sarpanch and to the Talati-cum-Mantri of the Gadat Gram Panchayat for consideration and erection of the sub station with some conditions. That the trust has incurred cost for development of tourism on the said land which is required to be returned. That the petitioner is motivated to approach before the Hon'ble High Court by way of present petition for not good cause. That the petitioner being office bearer of the said trust wants to develop the temple and the lake around the temple. That the petitioner is the Treasurer of the said trust. Therefore the petitioner is interested Page 8 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT person who wants to settle his personal grievance by way of this petition. He requested to dismiss this petition with cost.

General Principle on Locus Standi:

7. This court has come across the judgment in case of Kushum Lata v. Union of India & ors. reported in AIR 2006 SC 2643 wherein the Hon'ble Supreme Court has held as under:

"5. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation" or the latest trend "paise income litigation .... If not properly regulated and abuse averted, it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant borne out of wishful thinking. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in The Janta Dal v. H.S. Chowdhary (1992 (4) SCC 305) and Kazi Lhendup Dorji v. Central Bureau of Investigation, (1994 Supp (2) SCC 116). A writ Page 9 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. (See Ramjas Foundation vs. Union of India, (AIR 1993 SC 852) and K.R. Srinivas v. R.M. Premchand, (1994 (6) SCC 620).

8. In Janata Dal case (supra) this Court considered the scope of public interest litigation. In para 52 of the said judgment, after considering what is public interest, has laid down as follows:

"The expression 'litigation' means a legal action including all proceedings therein initiated in a Court of law for the enforcement of right or seeking a remedy. Therefore, lexically the expression "PIL" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."

9. In paras 60, 61 and 62 of the said judgment, it was pointed out as follows:

"Be that as it may, it is needless to emphasis that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold."

10. In para 96 of the said judgment, it has further been pointed out as follows:

"While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert Page 10 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT and a note of severe warning that Courts should not allow its process to be abused by a mere busy body or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration."

11. In subsequent paras of the said judgment, it was observed as follows:

"It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have as locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly a vexatious petition under the colour of PIL, brought before the Court for vindicating any personal grievance, deserves rejection at the threshold".

13. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind.

Page 11 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT

Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.

15. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.

16. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra vs. Prabhu, (1994 (2) SCC

481), and Andhra Pradesh State Financial Corporation v. M/s GAR Re-Rolling Mills and Anr., AIR 1994 SC 2151). No litigant has a right to Page 12 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao v. Mr. K. Parasaran, 1996 (7) JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.

18. In S.P. Gupta v. Union of India (1981 Supp. SCC

87), it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution: (SCC p.219, para 24) "But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective."

Scrutiny of Petitioner on Locus standi:

8. It is stated in the petition at paragraph 3 that the present petition is filed as purely in the public interest of the village Gadat on his own and not in the interest of any other person or organization. That this petition does not involve individual, private or personal grievance or gain of the petitioner or anyone else.

8.1 The affidavit in reply on behalf of Respondent State is filed at page no.47. In paragraph 8 therein, the Respondent No.4 - Mamlatdar has stated that this Hon'ble Court may while Page 13 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT considering the PIL may also examine the aspect that the petition appears to be motivated on behalf of someone would be affected if sub-station is installed on survey no.405. It is further submitted that the Collector has received representation dated 2.1.2016 wherein the villagers have requested the Collector to see to it that the sub-station is installed and is made functional at the earliest. That the gram panchayat vide its Resolution dated 10.10.2012 resolved that the land in question was given for the sub-station. That the sub-station is installed for the betterment of the entire village who would be getting electricity.

8.2 That the petitioner has filed affidavit in rejoinder at page 118, wherein, in, in response to paragraph 8 of the affidavit in reply, it is submitted that the question of petitioner being motivated by someone to file the present litigation is absolutely without any foundation.

8.3 That the Executive Engineer of Respondent No.5 GETCO has filed further affidavit in reply at page 121 to 126 wherein it is stated as under:

"2. I state that that recently Deponent has learnt that the present petition in the form of Public Interest Litigation is in fact a motivated petition in order to either exert pressure on various authorities so as to grab the land allotted to the Gujarat Energy Transmission Corporation Ltd. (GETCO) at Survey No.405 or to lead GETCO to succumb some illegal demand. Petitioner is one of the office bearers of one Kameshwar Mahadev Mandir Trust (herein after referred to as Temple Trust)...

...It is stated that, the above letter clearly reflects that the Trust has communicated it's consent to the Sarpanch and Talati-cum-Mantri of Gadat Gram Panchayat, giving Page 14 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT consent for construction and erection of the sub-station with some conditions stated therein. It is observed in the said letter that, the said land was earlier allotted to the Temple Trust on the condition that after leveling at the cost of the trust the same it should be developed for tourism. It appears that now there is some dispute with reference to some of the condition and, therefore, the petitioner is motivated to approach before this Hon'ble High Court by way of present PIL writ petition. It is pertinent to note that that petitioner being one of the office bearers of the said Trust who, wants to develop temple and lake around the temple...

...In the area surrounding the said S.No.405 there is no lake at all and even temple trust intended to use the said area for parking prupose as is reflected in one of it's brochuere.

...In view of the above, it is humbly submitted that the petition may not be entertained, the same being motivated and the petitioner's personal interest through temple trust is manifestly involved behind such litigation. It may further be kindly note that petition is given ting of the public interest but while preferring the petition fact that that land or part of the land is allotted to the temple trust and agreeing to allotment of the land on condition is deliberately suppressed so as maintain cluster of public interest intact. Gadat Gram panchayat is not deliberatly joined as party respondent so that fact of the land allotted earlier to the temple trust and agreeing of trust may not surface."

8.4 In the affidavit in rejoinder to further affidavit in reply filed by the Executive Engineer, on page no.137, it is stated as under:

"In fact, the public interest petition is filed by me as a citizen of village Gadat. I say that the petitioner may be a trustee of any temple trust but that does not mean that he cannot raise a public cause for the lake. He being a citizen of the village that would be benefited by the lake."

8.5 The brother of the i.e. Deepakbhai Manibhai Naik has filed affidavit dated 1.7.2019 at page no.148 wherein it is stated that no Page 15 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT water was filled in on the land allotted to the GETCO. That there was no existence of any water in the past or at present on the said land. That the pond of the village is situated on the left side of the Kameshwar Mahadev Temple. The disputed land is situated 1000 ft. away from the said pond. That the facts as regards to the collection of water on the disputed land is falsely fabricated. That the level of the disputed land is on the higher side.

9. It is not in dispute that the petitioner is one of the office bearer (i.e. Treasurer) of the Temple Trust. This fact shows in the brochure of the Trust which is produced at page 133 and 135. The said Tempe Trust had demanded certain portion of land i.e. 30.00 Are for parking and 62.05 Are for Panchvati and the Gadat Gram Panchayat had passed Resolution No.90 dated 10.3.2008 for the said purpose which is produced at page no. 130 and 131. The Temple Trust has written a letter dated 13.10.2013 giving consent for allotment of the land to Respondent No.5 - GETCO for the construction and erection of sub-station with certain conditions. The condition No.2 pertains to the cost of levelling of 3400 sq. meter to be paid to the Temple Trust by the GETCO (page 128-

129).

10.From the above facts, we find that:

(a) This litigation is for personal gain or private profit or a political move.

(b) It does not disclose the legal action is initiated for the enforcement of public interest or class of the community is affected, but the fact disclosed that the action is against the public interest.

Page 16 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT

(c) That the court's indulgence is called for personal gain or private profit or other oblique consideration.

(d) That the present PIL is not for the public purpose having interest of the unrepresented poor people.

11.Issue regarding public cause:

11.1 The petitioner has taken following grounds to make out his case:

"(e) That the Respondent no.2 and all Area of Development Authorities and Local Bodies will protect maintain and preserve all the water bodies in the State which are identified as per Development Plans Town Planning Schemes and the Governments Records and will notify in the Official Gazette as water-bodies and they shall not be alienated or transferred or put to any use other than water bodies.

(f) The Respondent no.2 should take steps to get the standard of quality of water of the lakes and ponds prescribed by the concerned authority under the law and the device mechanism of periodic monitoring of the quality of water in those lakes and ponds."

11.2 Respondent No.3 has stated in his Affidavit in reply in paragraph 7 as under:

"I say and submit that on perusing the revenue record of the land in question it is found the said land in the year 1967 was given to the Gram Panchayat for the purpose of having pond. The said land at the relevant point of time was allotted for the purpose of pond without any compensation. One of the conditions in said order clearly contemplates that whenever the State Government requires the parcel of land for any other public purpose the same should be made available to the Government without any compensation. As on today the land in question is in a same situation and no pond was ever created over the land right from the year 1967 till 2016."

Page 17 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT

11.3 The officer of the Respondent No.5 - GETCO has stated in his further affidavit (page 124) as under:

"...the brochure issued by the Trust for the purpose of further development of lake and temple wherein land of S.No.405 is stated to be going to be used as parking area. Recently, after last order passed, along with Government Officers, a Panchnama (Spot inspection Report) is drawn stating, inter alia, that there is no lake in the area of Survey No.405 and the said land is flat land and the said land has no feeding source of water and there is no lake in the said land..."

11.4 This court has passed an order dated 4.5.2016 to file an affidavit to explain that old record prior to 1967 showing disputed land as lake. However, in affidavit in reply filed by State Government, it is stated that it was merely allotted to the panchayat to develop the land as lake, but it was not developed.

In pursuance of the said order the I/c Mamlatdar has filed an affidavit (page 154), wherein it is stated that:

"...in fact, it is worth noting that the resolution passed by the Gram Panchayat and the Panchnama drawn clearly reflects that the whole parcel of land is more or less on the same level as other nearby land (samthed), it is also worth noting that the out of total parcel of land even as on today 5875 sq. mtrs of land is identified as lake. However even that portion is levelled land therefore, it cannot be said that the land allotted to the Electricity Company is the only levelled portion.

...I say and submit that, in view of the above mentioned clarification, it becomes clear that the land was identified as lake and the same is levelled land and not having in depth like a lake."

11.5 As per the panchnama (at page 175) prepared by the Talati-

Page 18 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT

cum-Mantri of the Gadat Gram Panchayat, it is disclosed that the land admeasuring 3400 sq. mt. bearing Block No. 405 is given to the GETCO for sub-station. The land admeasuring 5875 sq. meter including the disputed land is laveled as table surface. That there is no existence of any pond / tank on the disputed place. Therefore there is no question of any water or pond / tank.

11.6 Mr. Rameshbhai Ravjibhai Halpati who is the former Sarpanch of the Gadat Gram Panchayat for the year 2002 to 2007 has filed affidavit dated 1.7.2019 in favour of Respondent No.6 (at page 149 to 150). Similarly Mr. Amrutlal Khandubhai Nayak who is the senior citizen of the Gadat village has also filed affidavit dated 1.7.2019. Both of these persons have stated in their affidavit that no water was filled-in on the land allotted to the GETCO. There was no existence of any water in the past or at the present on the said land. The pond of the village is situated on the left side of the Kameshvar Mahadev Temple. The disputed land (the land allotted to the GETCO) is situated 1000 ft. away from the said village pond. The fact as regards to the collection of water on the disputed land is falsely fabricated by the petitioner. The level of the allotted land to the GETCO is on the higher side.

11.7 Mr. Narendra Nathubhai Naik who is the President of Gadat Irrigation Mandali Limited has also filed affidavit dated 1.7.2019 against the petitioner wherein the contents of the affidavit filed by the former Sarpanch and the sernior citizen of the Gadat Gram Panchayat are reiterated in his affidavit. Moreover, it is further stated in his affidavit that Survey No. 405 of the Gadat Gram Panchayat have planed for cooperative farming before 45 years.

Page 19 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT

The agricultural work was carried out at the behest of the Gram Panchayat. Thereafter Gadat Gram Panchayat and Gadat Tree Produce Cooperative Mandali have cultivated trees. The trees were cut off two times. The Irrigation Cooperative Mandali had supplied the water to such construction.

12.In view of the documentary evidence and the affidavits produced by the third parties, it can safely be concluded that the level of the land allotted to the GETCO is equal to the level of the land of the surrounding area. There is no possibility of collection of water on the land allotted to the GETCO - Respondent No.5. Considering the object of the allotment of the land it appears that it is not for a personal cause but is for the benefit of the people of the village of the Gadat and the surrounding villages. Thus, we conclude that the Appellant has failed to establish that the land allotted to the GETCO - Respondent No.5 is against the public purpose.

13.Learned Advocate for the Petitioner has relied upon the following judgments:

(i) 2002 (3) GLR 2295 - Shailesh R. Shah v. State of Gujarat;

(ii) AIR 2011 SC 1123 - Jagpal Singh v. State of Punjab

(iii) AIR 2000 SC 1997 - M.C.Mehta v. Kamal Nath

(iv) AIR 1972 SC 1421 - Chigurupati Venkata Subbayya & Ors.

v. Paladugu Anjayya and Ors.

13.1 In the case of Slhailesh R. Shah v. State of Gujarat (supra) this court has considered the Environment (Protection) Act 1986, Water (Prevention and Control of Pollution) Act 1974 and issued direction to the State Government to notify the lakes and ponds and Page 20 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT further directed to maintain and preserve all the water bodies. Learned Senior Counsel for the Appellant has drawn attention towards paragraph 24(B) of the judgment in case of Shailesh R. Shah v. State of Gujarat (supra) which reads as under:

"The State Government and all Area Development Authorities and Local Bodies will protect, maintain and preserve all the water-bodies 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 water-bodies and they will not be alienated or transferred or put to any use other than as water-bodies."

Herein in this case there is no town planning scheme or the development of plans are in consideration by the government. This judgment is not applicable as the facts of the case are different. The disputed land is not in the form of pond, the level is at a higher side than the surrounding land. The land is allotted for the public purpose (i.e. the installation of sub station).

13.2 The Hon'ble Supreme Court in a judgment in case of Jagpal Singh v. State of Punjab (supra) has also issued directions in paragraph 22 which reads as under:

"Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of Page 21 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Caste / Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

This judgment is not applicable in this case because herein in this case there is no illegal or unauthorized occupants on the disputed land. The government has allotted the land to the GETCO for the establishment of the substation which will be for the service of electricity to the people of the village.

13.3 The Hon'ble Supreme Court in a judgment in case of M.C.Mehta v. Kamal Nath (supra) has observed in paragraph 24 as under:

"Pollution is a civil wrong. By its very nature, it is a Tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender. The powers of this Court under Art. 32 are not restricted and it can award damages in a PIL or a Writ Petition as has been held in a series of decisions. In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner."

This judgment is not applicable to the facts of the present case because there is no question of causing pollution or for the restoration of the environment or ecology. The Apex Court has granted damages to the pollutants. Here there is no case as regards Page 22 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT to award of damages.

13.4 The judgment in case of Chigurupati Venkata Subbayya & Ors. v. Paladugu Anjayya and Ors. (supra), relied upon by the learned Advocate for the petitioner is not applicable to the facts of the present case as the facts in the said judgment is different than that of the present case.

14.Learned Advocate for Respondent No.5 - GETCO has relied upon the judgment of the Hon'ble Supreme Court in case of Mrs. Susetha v. State of Tamil Nadu & Ors. report5ed in AIR 2006 SC 2893 wherein the Hon'ble Supreme Court has observed in paragraph 23 as under:

"The case at hand must be judged having regard to the aforementioned principle in mind. The Respondents categorically denied and disputed that there is any water shortage in the village. The village is situated near a sea having five water tanks in or around therein. It is, therefore, difficult to accept that there had been acute water shortage in the village, as was submitted by Ms. Malhotra. The tank in question is not a natural tank. Only rain water could be collected in it. It has been a dumping ground for a long time. Although there is no material on records to show as to since when it has fallen in disuse, indisputably the tank in question is in a dilapidated condition for a long time and has been used as a dumping yard and sewage collection pond. In our opinion, thus, it is not a case where we should direct its resurrection."

Herein in this case it is not the case of the petitioner that village Gadat has paucity or shortage of water.

15.This court has considered the contents of the petition, contents of Page 23 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019 C/WPPIL/253/2015 CAV JUDGMENT the Affidavit in reply filed by the Respondent, the present situation of the disputed land, the documentary evidence produced by the parties, the status of the petitioner, the arguments advanced by the learned Advocates for the parties and also the facts and circumstances of the case, we are of the view that the petition as PIL is not maintainable and is required to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief if any granted earlier shall stand vacated forthwith.

16.Civil Application stands disposed of accordingly.

(S.R.BRAHMBHATT, J) (V. P. PATEL,J) Further Order:

At this stage, Mr. R.R.Marshall, learned Senior Counsel appearing with Mr. R.E.Variava, learned Advocate for the Petitioner urges the Court for extension of interim relief, which has been continued from 2015, which, Shri S.P. Hasurkar, learned Counsel for Respondent no.5 has objected.

Looking to the reasonings for dismissing the petition, we are unable to accede to the request. Hence, the same is rejected.

(S.R.BRAHMBHATT, J) (V. P. PATEL,J) J.N.W.

Page 24 of 24 Downloaded on : Mon Nov 25 22:24:32 IST 2019