SWACCH ASSOCIATION Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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 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 dtd. 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 dtd. 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 dtd. 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 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 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 Sec. 63 of the Maharashtra Municipal Corporations Act, 1949 to indicate the nature of duties and responsibilities of the Municipal Corporation in that regard.