SWACCH ASSOCIATION Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By the present proceedings filed in public interest, the petitioner- Swacch Association, a Society registered under the Societies Registration Act, 1860 as well as under the Maharashtra Public Trusts Act, 1950, seeks to raise a challenge to the installation of musical fountain and associated machinery in the body of Futala Tank by urging that the said Tank is a 'wetland' and the activities sought to be undertaken by the respondent No.4- Maharashtra Metro Rail Corporation Limited ('the MMRCL') therein as well as in the adjoining area is illegal. Since the work of construction of a parking plaza and erection of an artificial banyan tree in the said Tank coupled with the activity of starting floating banquet as well as floating restaurant is going on, the petitioner has prayed for interim relief seeking to restrain the MMRCL from going ahead with such activities.

(2.) According to the petitioner, Futala Tank, which is also known as 'Telangkhedi Tank', is a water-body constructed in 1799 by Shri Gyanoji Bhosale. The said Tank has catchment area of about 200 hectares. It has all essential requisites and characteristics of a wetland and thus it has vital aquatic importance. Under the garb of beautification of the said Tank, the MMRCL is undertaking construction in the body of lake. The machinery for operating a musical fountain has been installed therein. A viewing gallery has been constructed on the bank of the said Tank. All these activities at the said Tank, which is identified as a Grade-I heritage property were being undertaken in breach of the statutory provisions and in a manner contrary to the orders passed by the Hon'ble Supreme Court.

(3.) Shri S.A. Rajeshirke, learned counsel for the petitioner, by referring to the wetland map prepared by the Space Application Centre (ISRO) as well as the State Remote Sensing Application Centre, Nagpur submitted that the Tank finds mention in the National Wetland Inventory and Assessment (NWIA), which is project funded by the Ministry of Environment, Forest and Climate Change. The said inventory is of the year 2006-07 and Futala Lake is shown to comprise of a wetland area of 55 hectares and 98 ares. Referring to the order dtd. 8/2/2017 passed in Writ Petition (Civil) No.230 of 2001 by the Hon'ble Supreme Court in the case of M.K. Balakrishnan and others Versus Union of India and others, it was submitted that the principles of Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 ('the Rules of 2010') that had been identified and mapped by the Union of India had been applied to 2,01,503 wetlands. Various directions came to be issued with a view to preserve the said wetlands. In the subsequent order dtd. 4/10/2017 passed in the said proceedings, the Hon'ble Supreme Court noted that the Wetlands (Conservation and Management) Rules, 2017 ('the Rules of 2017') had been published in the Official Gazette on 26/9/2017. The 2,01,503 wetlands that had been mapped by the Union of Indian were to remain protected on the same principles as were formulated in Rule 4 of the Rules of 2010. Based on the aforesaid order, the Ministry of Environment, Forest and Climate Change had issued an Office Memorandum on 8/3/2022 stating therein that in the light of the order passed by the Hon'ble Supreme Court on 4/10/2017, the 2,01,503 wetlands as per the NWIA, 2011 would stand protected as per Rule 4 of the Rules of 2017 irrespective of the applicability of/notification as per the said Rules. The learned counsel then referred to the orders dtd. 14/10/2013 and 25/7/2016 in Public Interest Litigation No.87 of 2013 ( Vanshakti and others Versus Union of India and others) as passed at the Principal Seat to urge that such protection continued even today. By the said orders, no construction of whatsoever nature was permissible without the leave of the Court. On the basis of the aforesaid orders, it was submitted that Futala Lake, which was identified as a wetland, was also protected. On this premise, it was urged that the activity of construction in the form of floating banquet, performing stage and floating restaurant was not permissible. The floating banquet and performing stage were on the area admeasuring 10,000 square feet while the floating restaurant was on the area admeasuring 5,000 square feet. It was then pointed out that the parking plaza comprising of 26,668.88 square meters was being constructed on the agricultural land shown as 'green zone'. This land was in the control of the respondent No.6- Dr. Panjabrao Deshmukh Krishi Vidyapeeth. Since the said land was shown in the green zone, the construction undertaken was not permissible. Similarly, as per the Regulations for Conservation of Heritage Buildings/Precincts/Natural Features, the Tank was shown to be heritage Grade-I feature and therefore there was no scope of development therein. The Telangkhedi Tank has been mentioned at Serial No.132 of the Schedule and therefore being a heritage feature, no such activities that were being undertaken by the MMRCL could be permitted. The project undertaken was in the nature of a commercial entertaining project and without considering the aspect that the Tank was identified as a wetland and that it was also a heritage feature, such activities were being undertaken. In support of his submissions, the learned counsel referred to the decisions in M.C. Mehta Versus Kamal Nath and others [(1997) 1 SCC 388], Navi Mumbai Environment Preservation Society and another Versus Ministry of Environment, through its Secretary, Department of Environment and others [(2019) 1 Bom CR 39], Hinch Lal Tiwari Versus Kamala Devi and others [(2001) 6 SCC 496], and Jitendra Singh Versus Ministry of Environment and others [(2020) 20 SCC 581]. It was thus prayed that till the present proceedings were finally heard, the MMRCL be restrained from undertaking any further activities in the matter of construction of parking plaza, floating banquet as well as floating restaurant and laying of the artificial banyan tree. It was in larger public interest to prevent such activities at the Tank.