CHETANKUMAR BHIKHUBHAI PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard the learned Counsel appearing for the parties for final disposal of the matter.

(2.) Upon hearing Mr.Pandya, learned Counsel for the petitioners as well as Mr.K.P.Rawal, learned AGP for State authorities and Mr.Desai, learned Counsel for newly added respondent - Surat Municipal Corporation, applicant of Civil Application No.61/2005, it appears that there is no dispute on the point that the petitioners are granted lease for excavation of sand. However, the grievance of the petitioners is that there is no other alternative road available on land, for transportation of the sand from the place in question to any other places and, therefore, a kuchha bridge is constructed by making arrangement of 6 ft. dia pipes with a view to see that the water flow is not adversely affected. Mr.Pandya submitted that the inspection was also made by the Committee of Experts and as per the report submitted, the petitioners have made alteration and the petitioners are further ready to make alteration for the bridge in such a manner that it may not adversely affect the natural flow of water. However, he submitted that before such an action is undertaken, the District Collector by the impugned communication dated 21.5.2004 directed the petitioners to remove the bridge/pala and, therefore, under the circumstances the petitioners are constrained to approach before this Court. It has been submitted by Mr.Pandya, learned Counsel for the petitioners that for removal of any obstruction over any river, the power is that of State Government as per Section 12 of Bombay Irrigation Act, 1879 (hereinafter referred to as the "Irrigation Act") and the District Collector has no such power to direct for removal of such obstruction and, therefore, he submitted that the action is without any authority. He also submitted that the petitioners are using the said Pala by way of right of necessity, because there is no other way provided for continuing with the activity of lease granted in favour of the petitioners. He submitted that as no permission is required to be obtained or there is no legislation compelling the petitioners to obtain permission for such Pala, it cannot be said that the action of the petitioners of constructing the Pala which is as per his submission since 1990 is illegal. He also submitted that even if such obstruction is there and it is considered that the District Collector has such power to remove the obstruction, then also it is not necessary that in every case the District Collector should order to remove the obstruction, but he has to exercise the discretion and then to decide as to whether such obstruction should be removed or not. He further submitted that when the Experts opined that certain modifications will not hamper the natural flow of the water, the District Collector ought not to have directed for removal of the Pala. Mr.Pandya also submitted that as such the decision of the Collector is not an independent decision, but is on the insistence of the business rivalry or Surat Municipal Corporation and, therefore, there is no independent application of mind by the Collector and the decision is arbitrary.

(3.) Mr.Pandya also submitted that there are such Palas which are in existence at Kadod and Shyampura. However, no decision is taken by the District Collector to remove such Palas, whereas in the case of the petitioners, Palas are ordered to be removed. He, therefore, submitted that the impugned communication directing the petitioners to remove the Pala is illegal, arbitrary, without authority and deserves to be quashed and set aside.