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Judgment
J.B. Pardiwala, J.—In this appeal, the Appellant - Kachchh District Panchayat through its District Development Officer, Bhuj,District Kachchh challenges the judgment and order passed by the learned Single Judge dated 12.10.2010 in Special Civil Application No. 8860 of 2010, whereby the learned Single Judge allowed the writ petition preferred by Respondent No. 1 herein (original Petitioner) directing the Appellant herein to issue formal order for grant of non-agricultural use permission to Respondent No. 1 - original Petitioner. Facts relevant for the purpose of deciding this appeal can be summarized as under:
Respondent No. 1 - original Petitioner purchased two parcels of land bearing revenue survey No. 351/1 and 352vide two registered sale deeds dated 28.07.2008 and12.07.2007. The sale deed so far as revenue survey No. 352is concerned is dated 12.07.2007 and the sale deed so faras revenue survey No. 351/1 is concerned is dated28.07.2008. It appears that Respondent No. 1 requested the District Development Officer to grant N.A. Permission for residential use of the subject land bearing revenue survey No. 351/1 situated at Mota Kandagra, Taluka Mundra, District Kachchh. The District Development Officer refused to grant necessary permission to put the land for non-agricultural use on the ground that adjoining the said land, there is a water body. While rejecting the application, the District Development Officer also stated that in the layout plan which was put forward by Respondent No. 1, No. water body has been shown and there is no reference of any distance between the point of construction on the water body. Respondent No. 1 was informed that taking into consideration the public interest and the fact that No. distance has been maintained between the subject land and the water body, it was not possible to grant permission to put the land to non-agricultural use. This communication dated 21.06.2010 was made subject matter of challenge before the learned Single Judge by filing Special Civil Application No. 8860 of 2010. Learned Single Judge on certain misconception of facts allowed the petition and directed the Appellant herein to issue a formal order of N.A. Permission to Respondent No. 1. It appears that what weighed with the learned Single Judge is that some adjoining land which was a Government waste land has already been alloted to Coastal Gujarat Power Ltd. for the purpose of setting up of some power project and they have constructed the boundary wall which covers the entire land completely and would not affect the water body.
The Appellant aggrieved by the writ of mandamus issued by the learned Single Judge is here before us by way of this appeal. We have heard learned advocate Mr. H.S.Munshaw appearing for the Appellant - Panchayat, learned advocate Mr. Navin Pahwa appearing for Respondent No. 1 -original Petitioner and learned Advocate General Mr. K.B.Trivedi appearing with Mr. P.K. Jani, Government Pleader for Respondent No. 2.
Learned advocate for the Appellant would submit that the General Body of the Kachchh District Panchayat has delegated the power to grant non-agricultural use permission u/s 65 of the Bombay Land Revenue Code to the Executive Committee of the Kachchh DistrictPanchayat and it consists of the elected members of Kachchh District Panchayat. He would further submit that the District Development Officer is not at all a member of the said Committee and is functioning only as Secretary to the said Committee. He would further submit that he has no power or authority to consider and grant non-agricultural use permission. He submitted that therefore, the impugned order dated 12.10.2010 directing the Appellant to issue formal order for grant of non-agricultural use permission to the Petitioner is erroneous in law.
Learned advocate would further contend that the learned Single Judge has not appreciated the important question of fact that earlier an application dated 12.01.2009 was rejected at the threshold during the scrutiny as the distance of 40 mtrs. from the centre point of the road was not maintained while preparing the plans and layouts by Respondent No. 1. He submitted that it is only thereafter that the revised plans and layouts were prepared by Respondent No. 1. He further submitted that the earlier application dated 13.04.2009 with revised plans and layouts was rejected by the Executive Committee of the Kachchh District Panchayat as competent authority and not by the Appellant herein.
He further submitted very vociferously that the land in question was inspected by the Circle Inspector on 16.02.2009 and in the Rojkam which was prepared, it has been stated that there is a waterway adjoining the land in question. He clarified that through inadvertence, the same was not categorically mentioned in the report forwarded by the Taluka Development Officer, Mundra and therefore, this was not taken up as one of the ground while rejecting the application for N.A. Permission by the Executive Committee by the District Panchayat during its meeting and in the order dated 19.06.2009. He further submitted that the permission for non-agricultural use has been refused as Respondent No. 1 herein has not left sufficient margin of 9mtrs. from the waterway. In fact Respondent No. 1 has only left margin of about 10 ft. He submitted that under such circumstances, if N.A. Permission is granted, then it would be hazards to those residents who would put up construction of their houses which is at a distance of about 10 ft. from the water body. At the time of natural calamities like flood, etc., the same would prove to be fatal. He further submitted that there is sufficient evidence to show that there is a water body adjoining the revenue survey No. 351/1. He tried to substantiate this by relying on measurement sheet dated 2.5.1953 prepared by the office of the District Inspector of Land Record, Kachchh with regard to the land in question showing waterway adjoining revenue survey No. 351. He submitted that there has been No. change in the situation thereafter and even on 22.10.2010, the District Inspector of Land Record, Kachchh-Bhuj addressed a letter to the Appellant pointing out that there is a waterway adjoining to consolidated revenue survey No. 351/1 of village Kandagra.
Learned advocate further submitted that Respondent No. 1herein purchased the land in question by two registered sale deeds dated 28.07.2008 and 12.07.2007. He pointed out that in the sale deed dated 28.07.2008 executed between Respondent No. 1 as purchaser on one hand and one ShriKimji Gopal Harijan as the seller on the other hand in the description of the property as narrated in the sale deed, there is a waterway shown adjoining the land in question.
Learned advocate further submitted that even MotaKandagra Gram Panchayat, Taluka Mundra, District Kachchh has passed resolution No. 7 in its meeting dated 11.08.2010to carry out desiltation and cleaning of said waterway/canal/channel under NREGA scheme. He submitted that the Mundra Taluka Panchayat, District Kachchh has sanctioned an amount of Rs. 3,21,140/-for desiltation and cleaning work of said waterway adjoining the land in question under NREGA Scheme of the Central Government. Learned advocate relied on Division Bench judgment rendered by this Court in Special Civil Application No. 10621 of 2000 and other analogous matters, wherein the Division Bench has held that a clear distance of 9 mtrs.has put left if a water channel or Nala or water body is adjoining the land in question. Lastly he submitted that the allegations levelled by Respondent No. 1 that he being victimized are without any foundation and baseless.
Per contra, learned advocate appearing for Respondent No. 1 submitted that No. error much less an error of law cane said to have been committed by the learned Single Judgewarranting any interference at our hands in this appeal.
He would further submit that the entire stand taken by the Appellant is unreasonable because very much adjoiningto the land in question, there is a Government waste land which has been allotted to Coastal Gujarat Power Ltd. for the purpose of putting up a power project. He submitted that the said Company has already constructed the boundary wall which covers the adjoining land completely. He submitted that if the authorities could grant permission to Coastal Gujarat Power Ltd. for the purpose of putting up a power project, then why permission has been refused by the authorities to Respondent No. 1. Learned advocate further submitted that as a matter of fact, there is no water body which is likely to be obstructed in any manner if N.A. Permission is granted in favour of Respondent No. 1.
Learned advocate for Respondent No. 1 further submitted that the whole action on the part of the Appellant is in violation of Section 65 of the Bombay Land Revenue Code.He submitted relying on Section 65 of the Code that it is the obligation of the authority to take decision on application for grant of N.A. Permission to make due inquiry. He submitted that No. inquiry whatsoever appears to have been made by the Appellant before the impugned order was passed. Lastly he submitted that Respondent No. 1got the plans approved from the office of the Town Planning and Valuation Department, Bhuj-Kachchh.Accordingly, the layout plans were submitted before Town Planner and a scrutiny fee of Rs. 1,09,464/-was also deposited on 15.12.2008. He submitted that the Town Planner endorsed its decision on the layout plan submitted by Respondent No. 1 and recommended grant of N.A. Permission.
We have given our anxious thoughts and considerations to the contentions put forward by the respective parties. We are of the view that the learned Single Judge has committed an error in issuing a writ of mandamus directing the Appellant to pass a formal order of N.A. Permission within a period of one week for the reasons which we may assign herein below.
Firstly according to us, what is important is to know as to whether there is a water body adjoining to the land of Respondent No. 1 or not. We want to undertake this exercise for the simple reason that Respondent No. 1 has tried to blow hot and cold in this regard. During the course of hearing, we perused the sale deed dated28.07.2008 bearing registration No. 5631. This sale deed is in respect of land bearing revenue survey No. 351/1 owned by Respondent No. 1. We noticed that in the said sale deed, description of revenue survey No. 351/1 has been shown. We noticed that there is a clear cut statement that in the eastern direction of revenue survey No. 351/1, there is a water body and open Government land and in the southern direction also, there is a water body and open Government land. When we confronted learned advocate appearing for Respondent No. 1 with this, learned advocate came out with a case to our utter shock and surprise that the description is not correct and some mistake has been committed at the time of drafting of the sale deed. Learned advocate maintained the stand that there is no water body. We also pointed out to learned advocate for Respondent No. 1 that over and above the recital in the sale deed itself about the water body, there is sufficient evidence on record to show that in fact there is a water body adjoining to the revenue survey No. 351/1. After the arguments of both the sides were over, we reserved the judgment. After about two days, learned advocate for Respondent No. 1 mentioned the matter stating that he maybe permitted to place the documents rectifying the mistake so far as the description of the property bearing revenue survey No. 351/1 is concerned by way of an affidavit. We informed the learned advocate that if he wants to place the same, he may place it but the arguments are already concluded and the matter has been posted for judgment. However, still by way of a further affidavit, rectification deed has been placed on record and we are surprised to note that the entire description of revenue survey No. 351/1 has changed all of a sudden within a period of two days. In the rectified part, now on both the sides i.e. on the eastern side as well as southern side, only open Government land is shown and there is no reference of any water body. Before going further in the matter, we clarify that we have not taken cognizance of this further affidavit placed on record with the rectified sale deed. Even otherwise, the Government record itself suggest that there is a water channel adjoining the landin question and there is No. reason for us not to believe or accept the Government record.
Now coming to the merits of the matter, we are of the view that Respondent No. 1 has No. legal right to say that he is entitled to get his agricultural land converted ton on-agricultural use. Section 65 of the Bombay Land Revenue Code undoubtedly empowers the authority concerned to grant N.A. Permission, but of course subject to certain conditions and fulfillment of other provisions of law. We may quote Section 65 of the Bombay Land Revenue Code asunder:
Uses to which occupant of land for purposes of agriculture may put his land.- (1) Any occupant, of land assessed or held for the purpose of agricultureis entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.
Procedure if occupant wishes to apply his land to any other purpose.- But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collector''s permission shall in the first place be applied for by the occupant.
The Collector, on receipt of such application,
(a) shall send to the applicant a written acknowledgment of its receipt, and
(b) may, after due inquiry, either grant or refuse the permission applied for;
Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application.
Unless the Collector shall in particular instances otherwise direct, No. such application shall be recognized except it be made by the occupant.
(2) Notwithstanding anything contained in Sub-section (1) but subject to any terms and conditions laid down by the State Government in this behalf, where an occupant has his holding in an area comprising a gram and such area is not within an urban agglomeration or within a radius of five kilometres from the limits of a municipal borough or notified area or industrial estate and such occupant wishes to use his holding or a part thereof only for a residential purpose, it shall not be necessary for him to obtain permission of the Collector under Sub-section (1).
On plain reading of the Section, it is clear that the power u/s 65 of the Code conferred on the Collector is an executive power or a power of an administrative character. It is, therefore, that it was transferred or delegated to the District Panchayat and Taluka Panchayat. Therefore, when District Panchayat and Taluka Panchayat exercise powers u/s 65 of the Code, it is an executive or administrative power. What is the scope of interference with an administrative order ina writ petition under Article 226 of the Constitution is also an issue which deserves consideration.
Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the State, acts bonafide and within the limits of its power. However, the scope of judicial review in administrative matters has always been a subject matter of debate despite catena of case law on the issue. We may now refer to a few
In Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935 Lord Diplockenunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i)illegality (ii) irrationality and (iii) procedural impropriety. While opining that "further development on acase by case basis may not in course of time add further grounds" he added that principle of "proportionality" maybe a possible ground for judicial review for adoption in future. Explaining the said three grounds, Lord Diplocksaid:
By "illegality" he means that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality" he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that No. sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal''s jurisdiction is conferred, even where such failure does not involve any denial of natural justice.
The principle of "Wednesbury unreasonableness" or decisions, wherein some broad principles of judicial review in the field of administrative law have been evolved. irrationality, classified by Lord Diplock as one of the grounds for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (1948) 1 KB 223 : (1947) 2 All ER 680 as follows:
...the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought notto take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that No. reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.
In State of U.P. and Another Vs. Johri Mal, the Hon''ble Supreme Court has observed thus:
The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court.
In Rameshwar Prasad and Ors. (VI) v. Union of India and Anr. (2006) SCC 1, wherein a proclamation issued under Article 356 was under challenge, Arijit Pasayat, J. observed thus:
A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that No. sensible person could ever dream that it lay within the powers of the authority.
It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.
In the case of Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel and Ors. 2006 (3) GLH 226, the Hon''ble Supreme Court in Para 18 observed as under:
Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but No. standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self�recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that No. reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision.
The following passage from Professor Bernard Schwartz''s book Administrative Law (Third Edition) aptly echo''s our thoughts on the scope of judicial review:
Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action: [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and No. further.
Quoting Judge Leventhal from Greater BostonTelevision Corporation v. FCC 444 F. 2d 841 (D.C.Cir.1970), he further says:
...the reviewing court must intervene if it "becomes aware...that the agency has not really taken a ''hard look'' at the salient problems, and has not genuinely engaged in reasoned decision-making....
In the case of Ganesh Bank, Kurundwad Ltd. and Others Vs. The Union of India (UOI) and Others, the Hon''ble Supreme Court in Paras 50 and 51 observed as under:
There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and No. relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is No. scope for interference. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which No. reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality.- This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
13. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (See State of U.P. and Others Vs. Renusagar Power Co. and Others, . At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor DeSmith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it inany particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (I) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is ''illegality'' the second'' irrationality'', and the third ''procedural impropriety''. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v.Minister for the Civil Service 1984 (3) All ER 935 : 1985 AC 374 : (1984) 3 WLR 1174 (HL)], (commonly known as CCSU Case). If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See Commissioner of Income Tax, Bombay and Others Vs. Mahindra and Mahindra Limited and Others, The effect of several decisions on the question of jurisdiction has been summed up byGrahame Aldous and John Alder in their book" Applications for Judicial Review, Law and Practice" thus:
There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government''s claimis bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewablebut since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service (supra) this is doubtful. Lords Diplock, Scarman and Roskill appeared to agree that there is No. general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. May prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney General''s prerogative to decide whether to institute legal proceedings on behalf of the public interest.
(Also see Pad field v. Minister of Agriculture Fisheries and Food 1968 AC 997: (1968) 1 All ER 694 : (1968) 2 WLR 924 (HL)].
The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
The famous case commonly known as "Wednesbury''scase" is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.
Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v.Wednesbury Corpn. KB at p. 229 : All ER pp. 682 H 683 A). It reads as follows:
It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word'' unreasonable'' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to beacting ''unreasonably''. Similarly, there may be something so absurd that No. sensible person could even dream that it lay within the powers the authority.... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.
Lord Greene also observed (KB p.230: All ER p.683 F-G) ''...it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable.... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.''
Therefore, to arrive at a decision on'' reasonableness'' the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which No. sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fid one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
The principles of judicial review of administrative action were further summarized in 1985by Lord Diplock in CCSU case, [Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935 : 1985 AC 374: (1984) 3 WLR 1174 (HL)] as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows: [CCSU case (supra)]
''Judicial review has, I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ''illegality'', the second ''irrationality'' and the third ''procedural impropriety''. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ''proportionality'' which is recognized in the administrative law of several of our fellow members of the European Economic Community.
'' Lord Diplock explained ''irrationality'' as follows:
(All ER p.951 a-b)
''By "irrationality" I mean what can by now be succinctly referred to as Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn.(supra)] unreasonableness". It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that No. sensible person who had applied his mind to the question to be decided could have arrived at it.''
In other words, to characterize a decision of the administrator as ''irrational'' the Court has to hold, on material, that it is a decision ''so outrageous'' as to be in total defiance of logic or moral standards. Adoption of ''proportionality'' into administrative law was left for the future.
These principles have been noted in aforesaid terms in Union of India and another Vs. G. Ganayutham (Dead) by LRs., In essence, the testis to see whether there is any infirmity in the decision making process and not in the decision itself. (See Indian Railway Construction Co. Ltd. Vs. Ajay Kumar,
Tested on the touchstone of the above principles, we are of the view that on facts in hand, the learned Single Judge was not at all justified in exercising its power of judicial review by directing the District Development Officer to pass a formal order of N.A. within a period of one week.
As discussed earlier, a perusal of the provision of Section 65 of the Code does not confer any right upon any particular person to get agricultural land converted to non-agricultural use. At times, there are many factors which the authorities will have to consider while considering conversion of agricultural use to non-agricultural use and most importantly, keeping in mind the larger public interest, if likely to be affected by any such decision of the authority granting permission to putthe land to non-agricultural use, like in the present case, the authorities have come to the conclusion that as there is a water body very much adjoining to the land in question, it is difficult to grant the permission to putthe land to non-agricultural use on the basis of the plans which have been put for approval by the Respondents. It is also evident that No. space or any margin has been left from the water body and the place from where constructionis sought to be raised. It is, therefore, clear that while testing the legality or otherwise of such orders like the present one, the Court has to examine the challenge within the parameters of judicial review as delineated by decisions of the Hon''ble Supreme Court which we have referred to hereinabove. The duty of the Court is, thus, confined itself to the questions of legality. Its concern should be-
(i) Whether a decision-making authority exceeded its power?
(ii) committed an error of law;
(iii) committed a breach of the rules of natural justice;
(iv) reached the decision which no reasonable authority would have reached, or;
(v) abused its powers.
Therefore, it is not for the Court to determine as to whether a particular decision is right or wrong, but is only concerned with the manner in which the decision has been taken.
The Division Bench of this Court while deciding a public interest petition being Special Civil Application No. 8860 of 2010 has very exhaustively dealt with this issue while deciding the question of protecting, reserving and improving the water bodies in the State and safeguarding them against encroachment. The important paras which we may quote herein below are 18, 19, 20, 21, 23, 23.4 and 24.
The next important aspect is that the water bodies that vest in the State or local bodies should not be alienated or transferred. It appears that, in the past, the land covered by the water bodies have been put to other uses under the Town Planning Schemes and then a stand is taken up that the Town Planning Schemes having become part of the statute, the Court cannot do anything about it, or, if such land is put to some other use allowed under the scheme, that it will not be appropriate to dig up the construction to revive a water body. When State is enjoined upon a duty under Article 48A read with Article 21 of the Constitution to endeavour to protect and improve environment which would include the water bodies and every citizen is under a duty under Article 51A(g) to protect and improve environment including lakes, which are specifically mentioned therein as a part of environment, and when such material resources need to be protected to enable people to enjoy a quality life which is the essence of the right to life guaranteed by Article 21 as held by the Apex Court in Hinchlal''s case (supra), there would virtually be No. constitutional option to convert the land under the lakes and ponds to any use that may alter their character as water bodies in violation of the constitutional mandates to the State and the citizens not only to protect but to improve them. The Supreme Court has made this explicit in M.C. Mehta Vs. Kamal Nath and Others, by holding that these natural resources are meant for the public use and cannot be converted into private ownership. Step in this direction is taken by the State Government by declaring Draft of the State Water Policy (2002). Announcements on Water Resources Planning, Development and Management in paragraph 4 of the Policy statement include the strategy of making efforts "to protect and use all fresh water / natural resources like lakes, tanks, ponds, talavadis, springs etc. and preservation of existing freshwater bodies shall be ensured. Traditional water retaining structures shall be protected.........".The Circular dated 15-3-1999 (a copy of which is annexed with the affidavit-in-reply dated 4-4-2002 of the Under Secretary to the Government, Urban Development & Urban Housing Department), was issued instructing the concerned authorities that while making any original development plan or a revised development plan, the water bodies such as rivers, lakes, ponds, canals or any other type of waterbodiesshould be preserved as such water bodies and should not be included in the proposals for other uses and these water bodies should not be given any final plot number and their character should be preserved. In order to ensure that the water bodies 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, we direct that the State Government, all Area Development Authorities and local Bodies will protect, maintain and preserve all the water bodies 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 water bodies and they will not be alienated or transferred or put to any use other than as water bodies.
Water has also a destructive potential if the standards of its quality are not maintained. Misuse of water resources and poor water management practices would result in depleted supplies, falling water tables, shrinking inland lakes, and stream flows diminished to ecologically unsafe levels. Water pollution, originating mostly from human activities, occurs even more frequently and in a widespread manner, making the quality of water unsuitable for many uses. The management of water quantity cannot be efficiently done without considering the water quality. Water resources should be managed in conjunction with land resources, and water supply schemes which generate large amount of waste water in consumer areas should be designed and built with the required matching drainage networks and waste water treatment facilities. We would therefore direct the Respondents authorities to take steps to get the standards of quality of water of the lakes and ponds prescribed by the concerned authority under the law, and devise mechanism for periodic monitoring of the quality of water in these lakes and ponds.
Normally, lakes and ponds are expected to be permanently wet year round. They fall in the discipline of limnology which is a sub-system of hydrology that deals with the scientific study of freshwaters specifically those found in lakes and ponds. By the fallout of dust from the atmosphere and the sediments washed into the lake, the lake will gradually become eutrophic, with relatively poor water quality and will gradually become shallower and may eventually disappear. A lake may come to its end physically through loss of its water or through infilling by sediments and other materials. Lakes and ponds depend for their very existence upon a balance between their main sources of water and the losses that occur, a sort of water budget which may reflect the hydrologic idiosyncrasies of the individual lake. It will usually be difficult to influence the basic natural factors such as precipitation and evaporation that cause the imbalances. When the balance between photosynthesis and decomposition is upset, either too much organic material accumulates without getting decomposed adequately or too many bacteria grow and overabundance of decomposition occurs. Most inland lakes and ponds are eutrophic. Their bottoms get filled up with rich sediments. Eutrophication causes many harmful effects such as deterioration of the scenic value of lakes and ponds due to decrease in transparency or colour changes, water supply problems including the obstruction of filters, unpleasant odors and taste of its water, and loss of acquaticlife. This emphasizes the need to proper preservation of lakes and ponds, because, in addition to supply of water, freshwater bodies also provide a resource for recreational activities, such as, boating, swimming, fishing and habitats for various aquatic and terrestrial species. Pond waters can have many uses from irrigation to recreational activities. Extensive management plans and programmes have to be established as a part of geographic initiatives to ensure the preservation, protection and restoration of these important environmental resources. The National Water Policy and the State Water Policy, adraft of which is produced, are exhaustive documents containing great vision but now is the time to move beyond policy declarations to concrete action that may produce results by rejuvenating the water bodies, most of which appear to be in a state of "comma".
Monitoring of the rejuvenation, maintenance and preservation of water bodies is essential and it is heartening to note that due importance is given to this aspect in paragraph 30.5 of the Draft Water Policy of the State which envisages constitution of Water Resources Council headed by Chief Minister of Gujarat with Ministers of various Departments as members and Chief Secretary as Member Secretary, as also of Water Resources Committee headed by the Chief Secretary with Secretaries of various Government Departments as members for inter-departmental related activities. Having regard to the urgency and importance of having a centralized control and monitoring of the programmes for the protection, preservation and improvement of water bodies, we direct that the State Government shall expeditiously take steps to constitute Water Resources Council as contemplated in the Draft Water Policy of the State, headed by the Hon''ble the Chief Minister with other Ministers, including the Ministers in-charge of the Environment and Urban Development Departments to oversee the programmed for protection, preservation and improvement of the water bodies. The State Government will also constitute the Water Resources Committee headed by the Chief Secretary which may include the Secretaries of Environment, Urban Development and Agriculture Departments for monitoring the implementation of the programmed in a time-bound manner with periodic review of its success. This Committee shall place the particulars of the targets achieved and the causes of non-fulfilment of the targets periodically before the Water Resources Council for its consideration.
There has been opposition expressed on behalf of the State Government and the authorities, as also on behalf of the parties whose construction plans are held up, against the directions contained in paragraph 92 of the interim order dated 18-4-2001 to the effect that the Corporation, Development Authority, Collector and the State Government "shall not permit any construction whatsoever within 500meters of the lake/pond if the size of the water body lake/pond is 5000 sq. mtrs. or less, and within 1000meters, if the size of the lake/pond water body is larger than 5000 sq. mtrs. save and except for storage of water or making gradient etc." The learned Advocate General argued that a general provision is made in the Regulation 14 of the Revised draft General Development Control Regulations published in the Gujarat Government Gazette dated 18-5-2002, which is reproduced hereunder:
DISTANCE FROM WATER COURSE
No. development whatsoever, whether by filing or otherwise shall be carried out within 30 Mts.from the boundary of the bank of the river where there is No. river embankment and within 15 Mts.or such distance as may be prescribed under any other general or specific orders of Government and appropriate Authority whichever is more, from river where there is river embankment butin case of kans, nala, canal, talav, lake, water-bodies etc. it shall be 9.00 mts.
Provided that where a water course passes through a low lying land without any well defined bank, the applicant may be permitted by the competent Authority to restrict or direct the water course to an alignment and cross section determined by the competent Authority.
23.4. In background of the above averments and statements, we direct that the question of determining the peripheral area surrounding a lake or pond on which construction may be prohibited will betaken 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 be accordingly decided as per the Regulations and keeping in view the requirement of individual water bodies.
To sum up, we issue the following directions:
[A] The State Government will notify all the lakes and ponds as may have been shown in the areas covered by the Town Planning Schemes and the Development Plans, as also those in the areas not so covered throughout the State, in short, all the water bodies 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.
[B] The State Government and all Area Development Authorities and local Bodies will protect, maintain and preserve all the water bodies 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 water bodies and they will not be alienated or transferred or put to any use other than as water bodies.
[C] The Respondents authorities should take steps to get the standards of quality of water of the lakes and ponds prescribed by the concerned authority under the law, and devise mechanism for periodic monitoring of the quality of water in these lakes and ponds.
[D] The State Government, the Area Development Authorities and the Local Authorities should take urgent measures to rejuvenate the water bodies which are to be notified in the gazette by undertaking a declared phased programmed of desiltation and make adequate provisions for recharging them by appropriate storm water drains and other feasible means and to take measures against pollution of such water bodies.
[E] The State Government shall expeditiously take steps to constitute Water Resources Council as contemplated in the Draft Water Policy of the State, headed by the Hon''ble the Chief Minister with other Ministers, including the Ministers in charge of Environment and Urban Development Departments to oversee the programmed for protection, preservation and improvement of the water bodies. The State Government will also constitute the Water Resources Committee headed by the Chief Secretary which may include the Secretaries of Environment, Urban Development and Agriculture Departments, for monitoring the implementation of the programmed in a time-bound manner with periodic review of its success. This Committee shall place the particulars of the targets achieved and the causes of non-fulfilment of the targets periodically before the Water Resources Counci, for its consideration.
[F] The State Government, the Area Development Authorities and the local bodies are directed to prepare an authenticated record in form of ideography, photography and panchnamas of the existing encroachments and take urgent steps to remove them in accordance with law and there habilitation policies of the Government. Responsibilities of the officers/staff concerned should be fixed in respect of non-removal of encroachments and fresh encroachments. The Water Resources Committee will closely monitor the removal of encroachments by the concerned authorities, and, the Area Development Authorities and the local bodies shall furnish, quarterly, particulars of such encroachments and their removal to the Water Resources Committee.
[G] The question of determining the peripheral area surrounding a lake or pond on which construction maybe 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 individualwaterbodies.
In the above conspectus of the entire matter, we hold that the learned Single Judge committed an error in coming to the conclusion that the order dated 21/22.06.2010 passed by the Appellant is malicious and only passed with a view to harass Respondent No. 1. We are not convinced with the reasonings of the learned Single Judge assigned in the judgment and order dated 12.10.2010. In this view of the matter, we are left with No. option but to quash and set aside the judgment and order passed by the learned Single Judge dated 12.10.2010 in Special Civil Application No. 8860 of 2010.
In the result, the appeal succeeds and is allowed. The judgment and order passed by the learned Single Judge dated 12.10.2010 in Special Civil Application No. 8860 of2010 is hereby quashed and set aside with No. order as to costs.
Before parting, we clarify that it will be open for Respondent No. 1 to once again apply for the necessary permission to put the land to non-agricultural use with fresh plans in consonance with revised draft General Control Regulations published in the Gujarat Government Gazette dated 18.05.2002. It is brought to our notice that as per the revised draft General Control Regulations, if a water body is in the form of a canal, lake, Nala, kans,etc., then a distance of about 9 mtr. shall be maintained from the boundary of such kans, Nala, canal, Talav, lake, water bodies, etc. If revised plans are put forward and if permission is prayed for N.A. use of the subject land, then the same shall be considered by the Appellant in accordance with law and pass appropriate order in this regard within a period of four weeks thereafter.