The Gujarat High Court has delivered a judgement in August 2002 which has not only far reaching implications for the State but also raises critical issues in law and policy for protecting urban wetlands all over the country. Hence this note.
The final judgement on a group of Public Interest Petitions demanding revival of the lakes of Ahmedabad, requires Government authorities to notify all lakes in the State and protect them. Further, it directs the authorities to take urgent measures to regenerate the waterbodies, to remove encroachments from it and to rehabilitate the affected slum dwellers. The judgement also precipitates critical State policy decisions on water management. It requires the State Government to constitute Water Resources Council headed by the Chief Minister "to oversee the programme for protection, preservation and improvement of waterbodies." The State Government is also ordered to constitute a Water Resource Committee headed by the Chief Secretary to monitor the implementation of the Programme in a time bound manner.
So far so good. The judgement seems to be doing a great public service by bringing the issue of protection of urban water bodies to the fore and by goading the authorities to do something about it.
However, let us not forget that Public Interest Litigation (PIL) are invariably double-edged swords. This judgement too doesn't merely cut the right way. A closer reading of the verdict would suggest that major areas of concern for protecting waterbodies remain. The judgement cannot escape the continuing problem of all such large-scale PIL cases -- of asking the very authorities to take corrective measures who were the wrongdoers or who allowed the wrongdoing! Thus while the Court says that there has been "established neglect" of Urban Development authorities and local bodies which had brought the situation to such a pass, it adds that its interim orders in the case has "goaded them into some action" which has "raised a distinct ray of hope". On this basis comprehensive directions are issued to the same authorities to take all possible remedial actions. Really the future of lakes in Ahmedabad would depend on whether the Court's 'hope' is lived upto -- or belied upon -- by the authorities.
The total reliance on executive authorities, with not even a word in the judgement on possible public- private partnerships in this regard, is particularly glaring in the context of the changing tone of law and policy at the national level including the 74th Constitutional Amendment and the National Housing and Habitat Policy 1998. In fact the 1998 Policy talks about "correcting the imbalance caused by excessive dependence on Public agencies" and adds that the "central theme of this policy is on creating strong Public-Private partnerships for tackling the housing and habitat issues." The possibilities of the Municipalities combining hands with the Resident welfare Associations to maintain waterbodies with their catchment and stormwater drains has been left unexplored.
Notwithstanding the 74th Amendment, which seeks to usher in local self-governance in urban areas, the legal framework in this area continues to be fuzzy. Take for example the subjects of urban planning and land use. Even the present Ahmedabad case in its pendency witnessed intense conflicts over land use. This was because of an Interim Order, which had restricted building activity around all the city lakes. Regulation of land-use, construction of buildings and urban planning including town planning are all matters which should be with the urban local bodies as per the 12th Schedule of the Constitution. However this mandate can be watered down as it is up to the State Governments to decide as to which of the 12th Schedule functions may be devolved to the Urban Local Bodies. The judgements like this one under review, affords a clear opportunity to direct the State to take the necessary steps to give effect to the Constitutional mandate. This omission appears more glaring in light of the fact that the Gujarat High Court was not averse to directing the State to take critical policy decisions.
Besides, while encroachment of the water bodies were at the heart of the problem in Ahmedabad, the Court's approach to it was simplistic. It merely asked the authorities to use their statutory powers to remove all encroachments. Especially in cases where land covered by water bodies have been put to other uses under Town Planning Schemes (The authorities admitted of such cases before the Court), merely removing the people who acted in pursuance of such schemes, and dubbing them as "encroachers", would not be right. Unless such people are paid due compensation, it would amount to taking such people to task for neglect and follies of the authorities!
On the crucial question of determining the peripheral area surrounding a lake where building and other activities are to be prohibited, the Court's direction to authorities to take decisions for "the development of individual lakes and ponds" is welcome. It is broadly in sync with the approach of devising specific strategies for specific water bodies. However, it is worth noting that the Gujarat High Court has not excluded from its ruling those water bodies which have been irreversibly altered by duly authorised constructions, by changes in land use under lawfully given permits and by time. That was the approach of the Allahabad High Court in its decision on water bodies in a district in Uttar Pradesh in April 2000 where it made such a distinction. The approach of distinguishing water bodies which can be recharged from those which cannot be regenerated, was however overruled by the Supreme Court in the Hinch Lal Tiwari case in 2001. It is this verdict which in fact was relied upon by the Gujarat High Court in the present case while reaffirming the protection of these lakes as essential for proper and healthy environment guaranteed under Article 21 of the Constitution.
Finally, following the Supreme Court ruling in the Kamal Nath case in 1997, and notwithstanding the Bombay Land Revenue Code which declares all lakes and tanks to be the properties of the Government (which are not individually owned), the High Court has again made clear 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." If the Governments of the day were to internalize this truth alone, the 'war over city lakes' -- between those concerned with Development and those bothered with the Environment -- would never had surfaced in the first place.
