Institute of Legal and Management Studies

The Supreme Court today set aside Bombay High Court's direction given in 2018 to the Municipal Corporation of Greater Mumbai (BMC) to restore the 100-year-old Khajuria Lake - a natural lake that was filled by the corporation and a municipal garden built over it.

A bench of Justices Surya Kant and N Kotiswar Singh delivered the judgment, directing that the park shall be maintained and preserved through perpetuity as a green space exclusively for public use without any predominant commercial activity.

Further, the Court ordered the constitution of an expert committee within 3 months to explore the feasibility of developing an alternative water body in nearby areas as compensation. Comprehensive ecological restoration of deteriorating water bodies was also directed to be undertaken in the municipal area within 12 months.

In arriving at the decision, the Court examined the transformation of the site through 3 critical factors - the prior condition of the water body, the current ecological value of the park and the feasibility of remedial measures.

With regard to the first aspect, the Court acknowledged that there was material to show that a water body existed at the site. However, it was not conclusively established that the water body remained functional at the relevant time, with significant water content, a natural catchment area or viability to perform meaningful ecological functions.

"...[it was categorically averred that] when work for the project commenced in 2009, the subject property existed in an abandoned and dilapidated state, having deteriorated into a garbage dumping ground that had completely lost its original character as a water body...", the Court noted.

As regards the second aspect, the Court noted that the photographs placed on record revealed the park to be a well-maintained urban oasis replete with numerous, mature trees and recreational facilities actively utilized by the community. "We are adjudicating this appeal in 2025, nearly 15 years after the park became functioal. During this extended temporal span, an entire generation of children has grown up with this green space as integral component of their existence, where the trees planted during the initial beautification have themselves matured into substantial specimens that now significantly contribute to the local ecosystem".

It was further opined that the park was providing an essential green space in an increasingly concretized urban environment, with the trees providing for oxygen generation, air purification and climate regulation.

On the third aspect, the Court noted that restoration of the lake would entail further infusion of public funds and undo the benefits which resulted from the creation of the park. "Such an outcome would create a paradox wherein environmental restoration results in greater ecological harm than the original transformation. A classic case of counter-productive remedial intervention."

In the absence of a natural catchment area, the Court said that even if a pond were to be re-created, its sustainability and maintenance would remain "highly questionable", with possibility of stagnant water becoming a health-hazard for the local population, particularly during monsoon.

Insofar as the petitioner approached the High Court nearly 5 years after the subject project (to transform the lake into a park) commenced, the Court said,

"It is well-settled that environmental grievances must be raised promptly when alleged violations commence and not after transformative changes have materialized and become entrenched. This considerable delay has created an irreversible fait accompli, wherein substantial public resources have been expended and a thriving recreational facility has become integral to community life."

Background

As per the petitioner, Khajuria Lake originally belonged to Vithaldas Mathurdas and other heirs of Khimji Vallabdas Trust Estate and was given to them by the state government in return for their land near old Kandivali Station. The said lake now belongs to the Collector.

Apparently, when the petitioner visited Khajuria Lake, he saw it was completely filled and a garden had been constructed on the subject plot. According to him, illegal construction on the subject plot was done without taking permission of the Collector. Bhoomi Pujan of the garden was done in 2010 and thereafter, a musical water fountain was constructed. The municipal garden was opened in December 2011.

Khajuria Lake was used for immersing Ganesh idols during Ganesh Festivals. The said lake also contained various types of rare fish, tortoise and different types of birds used to come to the mangroves which existed there earlier, the petitioner claimed.

Case Title: MUNICIPAL CORPORATION OF GREATER MUMBAI AND ORS. Versus PANKAJ BABULAL KOTECHA AND ANR., SLP(C) No. 29048/2018