Bombay High Court
Swacch Association, Nagpur Thr. ... vs The State Of Maha., Thr. Ministry Of ... on 30 November, 2023
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2023:BHC-NAG:16604-DB
1 PIL-4-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Public Interest Litigation No.4 of 2023
Swacch Association, Nagpur ... Petitioner
Versus
The State of Maharashtra and others ... Respondents
Shri S.A. Rajeshirke with Shri Amogh Parlikar and Shri K.S. Narwade,
Counsel for Petitioner.
Shri S.K. Mishra, Senior Advocate, assisted by Shri A.S. Fulzele,
Additional Government Pleader for Respondent Nos.1, 2 and 9.
Shri S.K. Mishra, Senior Advocate, assisted by Shri J.B. Kasat, Counsel
for Respondent No.3.
Shri Anand Parchure, Counsel for Respondent No.4.
Shri S.M. Puranik, Counsel for Respondent No.5.
Shri A.R. Patil, Counsel for Respondent Nos.6 and 7.
Shri N.S. Deshpande, Deputy Solicitor General of India for
Respondent No.8.
CORAM : A.S. CHANDURKAR & MRS. VRUSHALI V. JOSHI, JJ.
Date when arguments were heard : 11th October, 2023.
Date when the judgment was pronounced : 30th November, 2023.
JUDGMENT (PER A.S. CHANDURKAR, J.) :
1. The present proceedings have been filed in public interest by
Swacch Association, a Society registered under the Societies
Registration Act, 1860 as well as under the Maharashtra Public Trusts
Act, 1950. It seeks to raise the issue with regard to impermissibility of
installation of musical fountain and associated machinery inside the
body of Futala Tank. It also seeks to object to the construction of the
viewer's gallery on the bank of Futala Tank and prays that the Tank be
2 PIL-4-2023.odt
restored to its original state after demolishing the viewer's gallery.
The prayer for interim relief was made by the petitioner during the
pendency of the present proceedings and by the order
dated 5-7-2023, the interim relief as prayed for was not granted.
However, directions were issued to the respondents to ensure that the
spirit behind imposing restrictions under Rule 4 of the Wetlands
(Conservation and Management) Rules, 2017 ('the Rules of 2017') is
strictly observed and no construction of a permanent nature within
Futala Lake is undertaken. In the aforesaid backdrop, the present
proceedings are being considered.
2. According to the respondents, the order dated 5-7-2023 takes
into consideration all the apprehensions expressed by the petitioner.
They submit that as Futala Lake is not a 'wetland' as defined under
Rule 2(1)(g) of the Rules of 2017, the interim order dated 5-7-2023 be
made absolute and the parties be directed to act in accordance with
the directions issued therein. The petitioner however contends
otherwise to urge that the prohibition, as contemplated by Rule 4 of
the Rules of 2017 to undertake any activity of a permanent nature in a
wetland be implemented insofar as Futala Lake is concerned.
3. Shri S.A. Rajeshirke, learned counsel for the petitioner,
submitted that Futala Lake, though not declared as a 'wetland' in
terms of Rule 2(1)(g) of the Rules of 2017, was an identified wetland
and the same found mention in the National Wetland Inventory and
Assessment (NWIA). The said inventory having been taken in the year
3 PIL-4-2023.odt
2006-07 and Futala Lake having been identified as a wetland, the
provisions of the Rules of 2017 ought to be applied with full rigor.
Referring to the very same decisions that were pressed into service
when the prayer for interim relief was considered, the learned counsel
submitted that no construction of any nature whatsoever was
permissible in such water body. Referring to Rule 4(2) of the Rules of
2017, it was urged that the activities undertaken by the respondents
were prohibited for being so undertaken at a wetland. Such activities
amounted to committing an encroachment on a water body. Referring
to the provisions of the Unified Development Control and Promotion
Regulations for the State of Maharashtra, it was submitted that even
for a construction of a temporary nature, permission of the Planning
Authority was necessary. Such permission was not taken, thus
resulting in breach of the said Regulations as well as violation of
Rule 4 of the Rules of 2017. A similar contention was raised insofar as
construction of viewer's gallery on the bank of Futala Lake was
concerned. Though the said area fell within the green zone,
commercial activities were sought to be undertaken therein. This
construction was within 50 metres of the water body and there was no
power whatsoever with the Planning Authority to relax such criteria.
The parking plaza being constructed across the road also fell within
the green zone wherein construction was not permissible. Giving a
go by to the Regulations and without changing the user of such land,
the construction had been undertaken which required interference at
4 PIL-4-2023.odt
the hands of the Court. The learned counsel then referred to the
Environment Status Report of the City of Nagpur that was prepared by
the National Environmental Engineering Research Institute, Nagpur to
submit that the quality of the Lake water would deteriorate with the
user of the Lake for such activities. Huge amounts were likely to be
spent on the said venture which was highly arbitrary. Commercial
interests of the respondents could not be given precedence over
environmental concerns of the general public. Reference was made to
the provisions of Section 63 of the Maharashtra Municipal
Corporations Act, 1949 to indicate the nature of duties and
responsibilities of the Municipal Corporation in that regard.
4. To substantiate the stand of the petitioner, the learned counsel
referred to the Public Trust Doctrine as envisaged in the decisions in
M.C. Mehta Versus Kamal Nath and others [(1997) 1 SCC 388] ,
and Hinch Lal Tiwari Versus Kamala Devi and others
[(2001) 6 SCC 496] that had been referred to in Navi Mumbai
Environment Preservation Society and another Versus Ministry of
Environment through its Secretary, Department of Environment and
others [2018 SCC OnLine Bom 4074]. The learned counsel also
referred to the decision in Jitendra Singh Versus Ministry of
Environment and others [(2020) 20 SCC 581] in that regard.
Attention was also invited to the Precautionary Principle that stands
accepted by the Hon'ble Supreme Court in its decisions and it was
submitted that the activities undertaken by the respondents ought to
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be discontinued. The said venture itself could be shifted to a place
otherwise than a green belt so as to protect Futala Lake. On this
premise, it was prayed that this Court may pass appropriate directions
in public interest.
5. Shri S.K. Mishra, learned Senior Advocate for the respondent
Nos.1, 2 and 9 which included the State Wetland Authority, opposed
aforesaid submissions. He reiterated the stand taken by the said
respondents while opposing the prayer for interim relief. He
submitted that though the activities in question had commenced in
2019, the present proceedings had been filed in December 2022 and
thereafter by amending the prayers in June 2023, the petitioner had
sought to raise a belated challenge to such activities. There was no
explanation whatsoever furnished by the petitioner for the delay in
approaching the Court in the present proceedings. The construction
activities that had commenced after obtaining due sanction were on
the verge of completion. Reference was made to the sanction orders
dated 18-10-2019 and 1-9-2022 issued by the Competent Authorities.
It was pointed out that these orders of sanction had not been
challenged by the petitioner nor was a prayer made that the sanctions
granted were illegal. As long as the orders of sanction operated, there
was no question of demolishing the construction that was undertaken
on that basis.
It was submitted that as a Wetland Authority constituted by the
Ministry of Environment of the State Government, it had taken a
6 PIL-4-2023.odt
specific stand that Futala Lake was not a 'wetland' under Rule 2(1)(g)
of the Rules of 2017. The contents of the affidavit filed on behalf of
the Wetland Authority were neither disputed nor controverted. Since
Futala Lake was a man-made water body, it did not answer the
definition of a 'wetland' under Rule 2(1)(g) of the Rules of 2017.
While the petitioner sought to support its stand by contending that
Futala Lake was an identified wetland, the Wetland Authority had
specifically asserted that it was not a declared 'wetland' under the
Rules of 2017. There was no reason whatsoever to disregard the
opinion of the Competent Authority that was placed on record. It was
then submitted that after obtaining all due permissions and without
disturbing the ecology, the activities in question had been undertaken.
Due permission of the Heritage Committee had also been obtained
which had not been challenged by the petitioner. The requisite plans
were sanctioned by the Planning Authority under the relevant
regulations which again were not subjected to challenge. Since all
activities were being undertaken in accordance with the sanctioned
plans, there was no illegality in the same. The learned Senior
Advocate submitted that the State was conscious of the responsibilities
envisaged by Articles 48-A and 51-A of the Constitution of India.
Since it was clear that the provisions of Rule 4(2) had not been
violated, no relief whatsoever be granted to the petitioner. The
directions issued in the interim order dated 5-7-2023 were being
complied with by the respondents.
7 PIL-4-2023.odt
6. Shri Anand Parchure, learned counsel appearing for the
respondent No.4- Maharashtra Metro Rail Corporation Limited
(MMRCL), submitted that the said respondent was merely an
executing agency of the plans that had been duly sanctioned by the
Competent Authority. He referred to the affidavits filed on behalf of
the said respondent dated 14-6-2023 and 25-8-2023. It was reiterated
that no permanent structure was being constructed in the water body.
The artificial banyan tree was in fact a projection on a screen and the
same was not to be constructed. The plans as well as the drawings
undertaken under the guidance of Visvesvaraya National Institute of
Technology, Nagpur were also referred to. It was further submitted
that various activities had been undertaken to restore the precincts of
the Futala Lake at the instance of the Heritage Committee. The
activities in the Lake would result in agitating the surface of the water
which would ultimately result in maintaining its quality. There was no
threat to aqua life in that regard. The respondent No.4-MMRCL would
ensure that none of the activities undertaken would result in causing
any damage to the Tank. It was reiterated that the directions issued in
the interim order would be obeyed by the said respondent. Since no
permanent structure was being constructed, the apprehensions
expressed by the petitioner were misconceived.
7. Shri S.M. Puranik, learned counsel appearing for the
respondent No.5- Nagpur Metropolitan Regional Development
Authority reiterated the stand that was taken earlier. He too
8 PIL-4-2023.odt
questioned the delay on the part of the petitioner in approaching the
Court and submitted that after obtaining all due permissions, the work
in question had been undertaken.
Shri A.R. Patil, learned counsel for the respondent No.6-
Dr. Punjabrao Deshmukh Krishi Vidyapeeth, Nagpur referred to the
resolution dated 9-6-2020 that was passed by the respondent No.6
permitting use of the land for construction of the parking plaza. Since
the said land was not of much use to the respondent No.6, the same
was permitted to be used as parking plaza. The ownership of the said
land continued with the respondent No.6 while permitting such user.
Reference was also made to the sanction granted in that regard along
with the permission for change of user dated 6-2-2023 issued by the
Urban Development Department of the State of Maharashtra. It was
thus submitted that no further directions ought to be issued in the
present proceedings.
8. We have given due consideration to the respective submissions
and we have also perused the documentary material on record. At the
outset, we may state that most of the contentions now urged were also
urged when the prayer for interim relief was considered. The said
contentions find mention in the order dated 5-7-2023 and hence with
a view to avoid repetition, a separate reference to the same is not
being made herein. Suffice it to observe that the order dated 5-7-2023
was not subjected to any further challenge and the same continues to
operate. On the basis of the material on record, a finding has been
9 PIL-4-2023.odt
recorded based on the affidavit filed by the Director, Environment and
Climate Change Department of the State Government/Principal
Secretary to the State Wetland Authority that Futalaka Lake being a
man-made water body, it does not fall within the definition of the term
'wetland' under Rule 2(1)(g) of the Rules of 2017. There is no
additional material placed on record thereafter for this Court to
re-consider the said issue afresh. It may be noted that the learned
counsel for the petitioner reiterated that the petitioner was relying on
the fact that Futala Lake was an identified wetland as per the
NWIA 2006-07 while the respondents urged that the said Lake being a
man-made water body is not a declared wetland. Since the field is
covered by the Rules of 2017 and Futala Lake does not answer the
definition of the term 'wetland', we hold that being a man-made water
body, Futala Lake is not a 'wetland' under Rule 2(1)(g) of the Rules of
2017.
9. Notwithstanding the aforesaid position on record, we may refer
to the Office Memorandum dated 8-3-2022 issued by the Ministry of
Environment, Forests and Climate Change of the Government of India.
In the light of the order passed by the Hon'ble Supreme Court on
4-10-2017 in Writ Petition (Civil) No.230 of 2001 [M.K. Balakrishnan
and others Versus Union of India and others], it was
clarified/reiterated by the said Office Memorandum that the wetlands
identified as per NWIA 2011 should be protected as per Rule 4 of the
Rules of 2017.
10 PIL-4-2023.odt
Thus even if Futala Lake is not a declared wetland by the State
Wetland Authority, the restrictions imposed vide Office Memorandum
dated 8-3-2022 ought to apply to the said Lake. It is in this backdrop
that the respondents had been directed to ensure that the spirit behind
enacting the Rules of 2017 is not violated by undertaking any
construction of a permanent nature within Futala Lake. We are
inclined to continue this direction with a view to protect and preserve
Futala Lake from any construction of permanent nature being
undertaken therein. At this stage, we may refer to the affidavit
dated 25-8-2023 filed on behalf of the respondent No.4-MMRCL.
In Paragraph 13 of the said affidavit, it has been stated as under :
"13. ... It is submitted that the Respondent No.4 assures this
Hon'ble Court that none of the above activities would be
carried out without appropriate sanctions and permission of
which are already obtained and it would be ensured that not
only the guiding provisions and rules are adhered to but even
the cleanliness, hygiene and associated items as contemplated
under the Swacch Bharat Mission would be implemented. It is
further ensured that any of the activities undertaken would not
result in causing any damage to the tank. It is further ensured
that during the construction by this Respondent, the water
body where the floating banquet hall, floating restaurant as
well as Artificial Banyan Tree are proposed is kept clean and is
properly maintained by taking all necessary precautions/steps
in this regard."
11 PIL-4-2023.odt
10. Notwithstanding the fact that Futala Lake is not a declared
wetland, we cannot be oblivious of the expectations envisaged in
Part IV and Part IV-A of the Constitution of India. Article 48-A requires
the State to protect and improve the environment and to safeguard
the forest and wildlife of the country. Article 51-A(g) recognizes the
duty of every citizen of India to protect and improve the natural
environment including lakes. Thus even if Futala Lake is not a
declared wetland, the duties and responsibilities imposed by the
aforesaid provisions would have to be adhered to in true letter and
spirit. The learned counsel for the petitioner is justified in invoking
the Public Trust Doctrine that has been recognized by the Hon'ble
Supreme Court in its various decisions including the decision in
Animal and Environment Legal Defence Fund Versus Union of India
and others [(1997) 3 SCC 549]. In M.C. Mehta (supra), it has been
observed that the Public Trust Doctrine primarily rests on the principle
that certain resources like air, sea, waters and the forests have a great
importance to the people as a whole that it would be wholly
unjustified to make them a subject of private ownership. The said
resources being a gift of nature, they should be made freely available
to everyone irrespective of one's status in life. The said doctrine
enjoins upon the Government to protect the resources for the
enjoyment of the general public rather than to permit their use for
private ownership or commercial purposes.
12 PIL-4-2023.odt
The Precautionary Principle has also been recognized by the
Hon'ble Supreme Court in its various decisions including the decision
in A.P. Pollution Control Board Versus M.V. Nayudu
[(1999) 2 SCC 718]. According to the said principle, it is better to err
on the side of caution and prevent environmental harm that could be
irreversible in future. It would be better to anticipate environmental
harm and take measures to avoid it or to choose the least
environmentally harmful activity. The said principle has been
thereafter consistently applied by the Courts in larger public interest.
A Co-ordinate Bench in Navi Mumbai Environment Preservation
Society (supra) has applied both the aforesaid principles while
considering measures to be taken to safeguard lakes and water bodies
in Navi Mumbai. We are of the view that an approach based on a
fusion of the Public Trust Doctrine as well as the Precautionary
Principle would be required to be adopted in the present case so as to
preserve Futala Lake which is a man-made water body.
11. We may state that the efforts taken by the petitioner in
highlighting the present issue deserve to be recognized as the present
proceedings have been initiated in public interest and they are not
adversarial in nature. Preservation of Futala Late is of paramount
importance and the respondents are duty bound to act responsibly in a
manner consistent with Articles 48-A and 51-A(g) of the Constitution
of India. It is for this reason that the aspect of unexplained delay and
laches on the part of the petitioner, as urged by the respondents, is not
13 PIL-4-2023.odt
considered a formidable reason for not entertaining the present
proceedings in public interest.
12. It is not in dispute that the activities of construction of the
viewer's gallery and parking plaza are preceded by various requisite
permissions and sanctions granted by the concerned authorities. The
documents on record indicating the same supported by affidavits of
the concerned authorities have not been specifically challenged by the
petitioner. In effect, therefore, the sanctions granted including the
sanctions dated 18-10-2019 and 1-9-2022 continue to operate.
Similarly, the permissions granted by the Heritage Committee on
30-6-2022 as well as 6-2-2023 granted by the Urban Development
Department permitting change of user continue to operate. In absence
of any challenge to the same, a total prohibition on such activities as
sought by the petitioner cannot be imposed. At the same time, it
would be necessary to ensure that in accordance with the spirit of the
Rules of 2017, no permanent construction would be undertaken at the
man-made water body- Futala Lake.
13. Thus, by applying the Public Trust Doctrine as well as the
Precautionary Principle, it is directed that the respondents shall ensure
that the spirit behind the Rules of 2017 and especially Rule 4(2)(vi)
thereof is not violated by undertaking any construction of a permanent
nature within Futala Lake. The respondent No.4-MMRCL alongwith
the respondent No.3- Nagpur Municipal Corporation are directed to
ensure that the activities undertaken by them do not result in causing
14 PIL-4-2023.odt
any damage to the Lake. They shall also ensure that the water body
where the floating banquet hall, floating restaurant as well as the
artificial banyan tree are proposed is kept clean and is properly
maintained by taking all necessary precautions/steps in that regard. In
addition, the statements made in the affidavit dated 25-8-2023 filed
on behalf of MMRCL that have been reproduced hereinabove would
also be binding on the said respondent.
It is expected that the respondents would also be alive to the
need for preserving the man-made water body- Futala Lake to enable
the future generations also to be able to witness the Lake in its present
form. It would therefore be necessary for the respective respondents
to ensure that their activities do not result in causing any ecological
damage to the water body and that the quality of aqua life is not
adversely affected. Though the present proceedings are being disposed
of with a hope that the respondents would abide by the expectations
referred to hereinabove, it is made clear that it would be open for any
public-spirited citizen to bring to the notice of the Court any acts that
could result in causing damage to the water body in future.
14. The Public Interest Litigation is disposed of in aforesaid terms
leaving the parties to bear their own costs.
(MRS. VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.)
LANJEWAR
