1. The present petition has been filed by the petitioners under Articles 14, 19, 226 and 227 of the Constitution of India as well as under Section 482 read with Section 133 of the Criminal Procedure Code for the prayer that appropriate writ, order or direction may be issued to quash and set aside the order passed by the Sub Divisional Magistrate dated 12.09.2011. It is also prayed that the impugned order may be stayed pending hearing of this petition on the grounds stated in the petition.
2. Learned counsel, Mr.Y.N. Ravani appearing for the petitioners has referred to the grounds mentioned in the petition and contended that the impugned order is in violation of the principles of natural justice and whether in exercise of powers/jurisdiction of Section 133 of the Criminal Procedure Code, it would permit to pass such order. He has submitted that therefore the Sub Divisional Magistrate has exceeded jurisdiction under Section 133 of the Criminal Procedure Code. He has referred to the facts and submitted that as the application has been given under Section 133 of the Criminal Procedure Code by the Sarpanch of Kokashi Gram Panchayat, the order came to be passed malafide. He submitted that there is nothing to suggest about water channel. He referred to Section 133 of the Criminal Procedure Code and submitted that it refers to the public nuisance and strenuously submitted that when there is a private land, such power cannot be exercise as it refers to public nuisance. Learned counsel, Mr.Ravani referred to Section 133 of the Criminal Procedure Code and submitted that the procedure as prescribed is mandatory and as procedure has not been followed, the matter was remanded earlier pursuant to the order passed by this Court in Special Criminal Application No.384/2011 dated 04.07.2011. He, therefore, submitted that even after the matter was remanded, the Magistrate has passed an order without affording opportunity in asmuchas report or the material of the DILR is not produced or made available. Learned counsel, Mr.Ravani has also submitted that the petitioners have not been permitted to examine the expert and the expert opinion could have been placed on record if such an opportunity would have been given. He referred to the papers and submitted that the Executive Engineer, Irrigation Department was to prepare the report in consultation with DILR and such report is not made in detail as it does not give any idea about the size required for the passage of the water in water channel. Learned counsel, Mr.Ravani therefore referred to and relied upon the judgment in case of Maneklal Karsandas Devda Vs. State of Gujarat & Anr., reported in 1990 (2) GLH 370 and submitted that as observed in this judgment, there is no provision in law authorizing the Magistrate to make an inspection in exercise of powers under the provisions of Section 133 of the Code. Similarly, he submitted that Sections 133 to 142 of the Criminal Procedure Code lay down the complete procedure, which has to be followed by the Magistrate while conducting the cases of public nuisance. He submitted that to deprive the petitioners of their land, such an order is passed malafide and as there is no imminent danger, the exercise of power under Section 133 of the Criminal Procedure Code is not justified. He further submitted that the aspect that the drainage may be made with RCC box so that the water may not spill over and may not over flow has not been believed on the basis of the feasibility. He, therefore, submitted that the present petition may be allowed.
3. Learned counsel, Mr.Asim Pandya for the respondent no.1 has submitted that though it has been argued that the principles of natural justice has been violated, same is without any basis. For that purpose, he referred to the details and papers with the history of earlier litigation, wherein the the order was passed in Special Criminal Application No.384/2011 on 04.07.2011 with appropriate direction. He submitted that in compliance with the directions, when the matter was remanded, the report has been prepared by the Executive Engineer, Irrigation Department in consultation with DILR. For that purpose, he referred to AnnexureD and it was emphasized that there is no dispute that there is a natural watter channel, which is passing and flow of the water has been stopped with the obstruction by artificially filling up the whole channel. Learned counsel, Mr.Pandya submitted that in fact the petitioners are claiming the right, title and interest in Survey No.321, whereas as stated in record produced in the petition itself suggest that natural water channel is just adjacent to Survey No.321, which has been filled up and obstruction for the flow of water has been created unauthorizedly. He, therefore, submitted that the matter is squarely covered under Sections 133 to 142 of the Criminal Procedure Code regarding the public nuisance. He submitted that during monsoon season if there is heavy rain and if water has not allowed to flow, it would flow back in the nearby villages and nearby habitation of the nearby area would have to face hardship. Therefore, the Panchayat has passed Resolution and has filed such application. Learned counsel, Mr.Pandya, therefore, submitted that the submissions about the malafide or that only to deprive from the land, the proceedings are initiated are misconceived. He emphasized and submitted that in fact, the water channel is adjacent to land bearing Survey No.321 and is not part of Survey No.321 and, therefore, he has no right if the natural water channel, which has been filled up artificially by the petitioner making catchment and thereby has stopped the flowing water. He submitted that if he is allowed in this manner, it would be against the public interest and his submission about the right that he is deprived of the land cannot be believed or accepted. In fact, learned counsel, Mr.Pandya submitted that the record suggest otherwise. In fact, the petitioner has made an encroachment on the land ment for the water body or water channel, which is the cause of grievance. He submitted that the order has been passed by the Magistrate in discharge of his duty and it is settled law that when there is a natural channel water for the flow of the water, it should not be obstructed. Learned counsel, Mr.Pandya submitted that environmental laws also on the contrary provide for preserving and protecting such natural water channel resources, it cannot be permitted to be filled up or obstructed artificially by filling the sand for the purpose of encroachment. Learned counsel, Mr.Pandya referred to the record including AnnexureA and he pointedly referred to AnnexureE, F etc. and submitted that pursuant to the application at AnnexureD, in fact the AnnexureE would make it clear that the opportunity was given to both sides and as recorded in AnnexureE at Page No.44, the petitioner had also accepted that there is existence of water channel at the place of site when it was jointly visited and inspected. He further submitted that thereafter also, the report/Rojkam suggests that it was filled in by the petitioners. He submitted that even in the old maps also, the natural water channel was shown and the petitioners themselves had agreed that depth may be kept 8 ft. instead of 10 ft. and he was asked to have a flood protection wall. Therefore, learned counsel, Mr.Asim submitted that it is in this background after providing sufficient opportunity, the order came to be passed, which is just and proper. He submitted that after the order was passed by this Court in Special Criminal Application No.384/2011 dated 04.07.2011, the Deputy Engineer, Irrigation Department in consultation with DILR and submitted a report and the petitioner has not raised any objection and such contentions are raised at this stage only to delay the proceedings. He referred to the objections raised by the petitioner and submitted that considering such objections, the order has been passed, which is just, legal and proper.
4. Learned counsel, Mr.Pandya submitted that as per Section 37 of the Bombay Land Revenue Code, such natural water channel would be vested in the State Government and in fact, the disputed site of water channel is adjacent to Survey No.321, for which, the petitioners are making claim. He emphasized and submitted at the cost of repetition that he has extended the area of Survey No.321 by artificially filling the natural water channel by sand to create an impression that it is a part of private land bearing Survey No.321 and there does not exist such water channel. However as submitted that even the record of the Government and old maps have established that there was a watter channel adjacent to land bearing Survey No.321 and this water channel is therefore not part of Survey No.321.
5. Learned counsel, Mr.Pandya has referred to and relied upon the judgment in case of M.C. Mehta Vs. Kamal Nath, reported in (1997) 1 SCC 388 and submitted that as observed in this judgment, natural flow of river by blocking natural relief/spill channel of the river cannot be obstructed. He submitted that even if there was any licence or lease, which is granted, the Court has not approved of it. He pointedly referred to the observations made in this judgment in para no.34 as under : “Our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.”
6. Learned counsel, Mr.Pandya has also referred to the judgment of this Court in case of Shailesh R. Shah Vs. State of Gujarat & Ors., reported in 2002(3) GLR 642 and emphasized the observations as under : “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”.
7. He, therefore, submitted that the petitioners by way of filing such petition, which is an abusing the process of Court cannot be permitted to take advantage of his own wrong.
8. Learned APP Ms.Raval submitted that there is no jurisdictional error or lacuna in the order. Learned APP Ms.Raval submitted that as per the order passed by this Court in Special Criminal Application No.384/2011, direction have been complied with and the report has been prepared in consultation with DILR. She submitted that copy thereof and hearing is also given and in fact the objections have been raised by the petitioners, which have been considered. Learned APP Ms.Raval, therefore, submitted that all the submissions about the violation of principles of natural justice are without any basis. Similarly, she submitted that the contentions about the malafides on the ground that such proceedings initiated to deprive their land is without any basis. She again referred to the papers and submitted that existence of water channel is established and it is also apparent that it has been filled in with sand by the petitioners and thereby encroachment has been made on the water channel, which has been merged with the land bearing Survey No.321. This has created a situation that natural water is not allowed to flow. As a result thereof, water is reverting back spilling over nearby area causing nuisance to the small villages. Therefore, Kokashi Gram Panchayat has taken up this issue in the public interest. She submitted that according to his own say, these proceedings are initiated after he purchased, meaning thereby, earlier there was no such encroachment and only after the petitioners purchased when he obstructed, the proceedings are initiated. Learned APP Ms.Raval has submitted that in exercise of powers under Sections 133 to 142 of the Criminal Procedure Code, only nuisance or imminent danger or situation is taken up other issue can be decided independent and, therefore, the present petition may not be entertained.
9. In rejoinder, learned counsel, Mr.Ravani has reiterated his submissions, which he has made and has tried to emphasized submissions regarding the malafide.
10. In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.
11. Though the submissions have been made by learned counsel, Mr.Ravani with much emphasize referring to Sections 133 to 142 of the Criminal Procedure Code that it has to be followed by Magistrate while conducting the case of public nuisance, it cannot be said by any stretch of imagination that the said procedure has not been followed. As it is revealed from the material and record, which has been referred to by learned counsel, Mr.Asim Pandya that the petitioner had been given sufficient opportunity and has even asked for the time, which was granted and after providing sufficient opportunity or time and after considering the objections, the order came to be passed. The document produced at AnnexureE clearly refers to the fact that same contention was raised by the petitioner that as the matter pertains to flow of water, Section 133 of the Code would not be attracted and it is required to be proceeded under Section 147 of the Code and the order came to be passed on 28.12.2010 and the next date was 31.12.2010 and on that day, both the sides were asked to submit necessary evidence and such opportunity has been given in compliance with the Rules of natural justice. One more aspect, which is required to be noted is that at the local inspection at the side, both sides have admitted and accepted that there was a water body (vaghu). Further, learned counsel for the petitioner has filed appearance and he had also asked for some copies and further time was granted to file reply on 05.01.2011 and 18.01.2011. Thereafter, the matter was proceeded on 20.01.2010 and there is clear finding that village people had stated about the water logging and the map was produced by Talati, which suggested that it was a land for the water body of the flow of water, which is filled in and encroached upon by the present petitioners. Therefore, map of 1968 and prior thereto suggest as vaghu, which was evident and the order came to be passed that it should be maintained with depth of 10 ft. Again on 11.02.2011 after considering the expert opinion and the record, it is observed that the protection wall was required to be made as the flow of water from may spill around the area. If this submission and the record is perused, one cannot say that there is any non compliance of the procedure. There is specific finding with regard to the encroachment as there is also specific finding referring to the old record and the map produced from the authority that it was a land for flow of water as a water body and it could not have been encroached upon. The petitioners having encroached upon the said water body or the land for the natural flow of the water comes forward before the Court below as well as this Court raising such contentions regarding the nuisance and the procedure followed, which would hardly have any application. It is not the question of removal of public nuisance but rather than as a question of encroachment on the land of the natural water or the water body, which is artificially encroached upon. It is required to be mentioned that in earlier round of litigation also before this Court, this Court (Coram : M.R. Shah, J.) while deciding Special Criminal Application No.384/2011 by an order dated 04.07.2011 has clearly observed and directed that the matter is remanded to the respondent No.2–SubDivisional Magistrate, Patan to pass appropriate order afresh, in accordance with law and on merits and after obtaining and considering the report from the office of the Executive Engineer, Irrigation Department, in consultation with the DILR, Patan.
Same report has been submitted, which has been considered.
12. A useful reference can be made to the judgment of this Court in case of Shailesh R. Shah Vs. State of Gujarat & Ors., reported in 2002(3) G.L.H. 642 referred to by learned counsel, Mr.Asim Pandya, wherein it has been observed that “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 the general public”. It is also observed that “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”. It has been further observed referring to the scheme of the Constitution that “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. (Emphasize Supplied). 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”. It has also been observed that “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.”
13. In light of the aforesaid observations and the underlying purpose of the object, the submissions made by learned counsel, Mr.Ravani are misconceived. It is required to be mentioned that in this very judgment, while summing up, the Hon'ble Apex Court in Para No.24, which provide inter alia that “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”. “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.” Further it has been observed in the said guidelines in Para No.
(g) 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 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.
14. In fact inspite of such clear observations and also considering the guidelines by the Hon'ble Apex Court, the position or things have not been improved. It is in these circumstances, any such attempt to stall the flow of water or the water body by any encroachment cannot be permitted.
15. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed. No other contentions have been raised. Notice is discharged.
FURTHER ORDER
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(RAJESH H.SHUKLA, J.) Learned counsel, Mr.Ankit Shah for learned counsel, Mr.Y.N. Ravani has requested for stay of operation of the order to enable the petitioners to approach the higher forum. However, there has not been any interim relief. Therefore, the request cannot be entertained and accordingly the request is refused.
/patil
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(RAJESH H.SHUKLA, J.)