No Construction Allowed On Water Body: Gujarat High Court Rejects Appeal Against Eviction Notice Over Encroachment Of Lake

The Gujarat High Court on Tuesday (December 2) dismissed an appeal challenging a single judge's order which had rejection a plea against eviction notices issued to certain residents asking them to vacate a property over encroachment of Isanpur lake in Ahmedabad. The court noted that the notice issued by Ahmedabad Municipal Corporation (AMC) categorically recorded that the appellants (petitioners before single judge) had encroached upon a land, which is a water body. The notice asked the appellants to give peaceful vacant possession within 21 days on the ground that their construction is on a water body on which no construction is permissible.After hearing the contentions, a division bench of Chief Justice Sunita Agarwal and Justice DN Ray while dictating its order noted that amongst the contentions made in the writ petition, the appellants (petitioners) were "claiming right on land and in question on the plea of long standing possession". Perusal the revenue records the bench noted that it indicated that land in question–survey no. 630 area 95608, is recorded in the ownership of AMC and the land used thereof is mentioned "talav" (lake). "Taking note of the contentions in the writ petition and the entries of the nature of land in question in the revenue records, we find that learned single judge has categorically recorded that pursuant to finalization of Town Planning Scheme No. 53 Isanpur, Original survey no. 629, 630 and 631 are forming part of the scheme and were given final plot number 160, 161 and 162. These final plots are having ownership of government and the state government gave part of the land to respondent corporation for its development and beautification. The notice impugned categorically records that no construction is permissible on a water body and on account of the illegal usage by construction created by occupants, the water of Isanpur lake is getting polluted. Passing of drainage water in the Isanpur lake is also referred in the said notice"The bench noted that the single judge had categorically recorded that ownership of the land is with the state government as was evident from revenue record."Not a single document has been produced by petitioners justifying the construction after having permission from erstwhile gram panchayat. Mere long possession on property which is a government land and a talav, with production of documents such as payments towards tax bills and incidental charges shall not create title in favour of petitioner. From the facts from the record we do not find any error in findings returned by single judge in rejecting claim of petitioners to quash the notice issued by corporation, terming construction being unauthorized encroachment over a water body," it said. The court said that it does not find any error in opinion of single judge in holding that "petitioners are unauthorized occupants of plot in question namely, survey no. 630 recorded as land in ownership of AMC in revenue records and is a water body". "In this scenario no interference is called for in the decision of learned single judge. It is also pertinent to note, that all issues raised in writ petition require a factual inquiry which cannot be made under Article 226 of Constitution of India. For this reason as well we do not find any error in decision of single judge," the bench added. The appellants had contended before the single judge in the writ petition, that they have residential houses and a temple on the land in question bearing survey No.630 in Isanpur area of Ahmedabad city which is situated on the bank of Isanpur lake. The construction of temple and residential unit have been existing since last five decades. The said construction was put up after taking necessary permission from the erstwhile Isanpur Gram Panchayat.It was contended that the petitioners (appellants) do not possess any documentary evidence of any allotment or permission given by erstwhile gram panchayat, in as much as same is not available. However reference was made to tax receipts to assert that the predecessors of petitioners have paid applicable taxes to the erstwhile Gram Panchayat. After merger of gram panchayat into AMC, AMC has been collecting various taxes which are paid on time and regularly.It was contended that land in question has been given to respondent corporation by Collector in 2009 but no further steps were taken by AMC and it continued to collect taxes. It was also stated that in 1978, notices were issued by Collector to the father of one of the petitioner's herein raising issue of alleged illegal construction and carrying no agricultural activity on the land in question by constructing a temple. A detailed reply to notice was given at relevant point of time.It was contended that presence and existence of petitioners and temple is known to AMC for the time Isanpur gram panchayat merged with corporation long ago. It was also stated in writ petition that land in question had been subject matter of some litigation ...

No Construction Allowed On Water Body: Gujarat High Court Rejects Appeal Against Eviction Notice Over Encroachment Of Lake

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