SANDEEP BRAHMBHATT MANAGING TRUSTEE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Shri A.J.Patel and Shri Kalpesh Jhaveri waive serivce of Rule on behalf of private respondents in Special Civil Applcation No.2583 of 2001. Mrs.Manisha Lavkumar waives service of Rule on behalf of respondent-State and its authorities and Shri D.N.Patel waives service of Rule on behalf of Ahmedauad Urban Development Authority, in both these petitions.

(2.) All the petitioners in these two petitions state that they are actively involved with the Non Governmental Organizations working in the area of protection of animal rights and preservation of natural resources. They are also working volunteers as guides for various bird watching groups and nature lovers in the State of Gujarat. These petitions have been filed in the public interest seeking directions from this Court to the authorities of the State of Gujarat (respondents herein) to take immediate steps to preserve and conserve the shallow water lake of Gopalnagar covering Survey Nos.80/2, 80/1B, 1506, 1507/1, 1507/2, 1508, 1509, 1507/3 and 1510/1 of Saij village and Survey Nos.147, 148, 159, 160, 161, 157, 164, 162, 170, 168, 165, 156, 151, 152 and 150 of Borisana village near Kalol. According to the petitioners, Gopalnagar lake, also popularly known as mini Nal Sarovar, has been a natural habitat since last several years for numerous migratory birds. Their habitat and the birds are required to be protected under the provisions of the Wild Life (Protection) Act, 1972. The petitioners submit that the geological history of the land which now forms lake is that there was a river name `Vyantri'. This fact is duly recorded in the documents of Railways of Union of India. Gradually, the water level in the river decreased and the land in the above Survey numbers only remained a wet land. During rainy season, lake is formed but during dry season, farming takes place. It is now disclosed that the said Survey numbers stand in the name of various land holders in the form of agricultural lands. It is stated that as the cultivation of crops is not possible for the whole year because of collection of water, farming takes place only during dry season. It is submitted that with the passage of time, it has converted into a natural shallow water lake which is now popularly known as Gopalnagar lake or mini Nal Sarovar. The petitioners state that the said wet land is home to about twenty two various species of birds including Flamingos, Ibis, Spoonbills and Pelicans. It is also a natural habitat for various other migratory birds like Pin-tailed Duck, Shoveler, Heron, Little Grebe, jacana, Babbler, Hoopoe and many other species of Cranes and Kingfishers. The petitioners then point out that in the Development Plan prepared by the Ahmedabad Urban Development Authority (hereinafter referred to as `AUDA'), the Survey numbers which were wet lands forming Gopalnagar lake were reserved for recreational purpose. This was statutorily so declared under Section 12 read with Section 17 of the Gujarat Town Planning & Urban Development Act, 1976. The final Development Plan was sanctioned sometime in the year 1981. It is now reported that in the year 1998, some builders and private contractors have been able to persuade the AUDA to make available these lands for building purposes. The proposed variation in the Development Plan as such is pending approval before the State Government. The petitioners say that such conversion of the use of land from recreational zone to residential zone would be against public interest and would harm the objects of Wild Life (Protection) Act, 1972, and the Environment Act. It is submitted that when the petitioners saw that huge quantity of material was stacked near the lake site for filling the lake and for changing the landscape, they raised protest in writing including through the Hon'ble Minister Mrs.Maneka Gandhi who is one of the well-known environmentalist of the country. According to the petitioners, representations and protest were raised by the petitioners in the interest of protection of wild life and environment, but no heed was paid through any of the authorities of the State. Hence they were compelled to approach this Court for seeking necessary directions by this public interest litigation.

(3.) Then we entertained these petitions and issued notice. On behalf of the agriculturists who had acquired agricultural rights in some of the survey numbers intervened through Senior Counsel Shri A.J.Patel and Shri Kalpesh Jhaveri. We allowed their intervention and permitted to produce revenue records and Title Deeds to show their nature of rights in these Survey numbers. On behalf of the agriculturists who have intervened, it has been submitted that the Survey numbers were never recognized and recorded as lake in the revenue records. The agriculturists are exercising their agricultural rights since more than fifty years. It is stated that it is a low lying land in which water accumulates only during the monsoon season and sometimes the land gets flooded because of effluent from the nearby industries and mills. It is submitted that even during monsoon season, the agriculturists do some farming for Kharif crops and in dry season, they are raising several kinds of crops. It is submitted that any restraint in exercising of their agricultural rights would affect their source of livelihood and this Court should therefore refrain from issuing any directions for allowing conversion of the land for being preserved as lake. The agriculturalists however stated that they would have no objection if the lands are acquired by the State or other authorities of the State and they are paid due compensation for the acquisition.