Supreme Court Orders Status Quo On Constructions Near Nagpur's Futala Lake

Senior Advocate Gopal Sankaranarayanan referring to past orders of the Supreme Court in 2017 which gave protection to more than 2 lac wetlands having an area of more than 2.25 hectares explains “It's shocking…the wetland authority goes before the High Court and says it's not a Wetland and the High Court proceeds that if it is man-made (made 300 years ago) it cannot be a Wetland…the Ramsar Wetlands, this country has notified 75 Wetlands of which 33 are man-made and are artificial.”

Highlighting that the purpose of declaring man-made lakes like Futala as wetlands was to protect the aquatic life and biodiversity of the region, the senior counsel highlighted that authorities instead are dumping 7000 tonnes of concrete into the lake for the purposes of making 'temporary floating structures'.

The bench comprising CJI DY Chandrachud and Justices PB Pardiwala and Manoj Misra was apprised of the fact that several concrete structures are being planned to be constructed on the lake, including a floating restaurant, 15000 sq ft of banquet hall, a large fountain, a viewing gallery on all sides of the lake and an artificial banyan tree all as temporary measures

The senior advocate added , “They have absolutely no intention of removing this because of course they have spent crores on it”

Taking note of the same, Justice Pardiwala asked the respondent's counsel, “Why do you say that this viewer's gallery is a temporary structure, viewers will come every day?”

Justice Pardiwala further inquired whether the Futala Tank attracted any migratory birds, to which Mr Gopal S. replied, “It must be but I haven't examined that aspect, all wetlands do especially these large wetlands which are more than 2.25 hectares”

While the petitioners pressed for a status quo on the construction around the lake, the counsel appearing for the State of Maharashtra requested 2-3 weeks to file their affidavit as to when these temporary structures would be removed.

Yeilding to the same the CJI ordered for status quo on construction sites, observing as follows:

“ Why are you doing this there are only 2 remaining wetland bodies in this country ....till the next listing the 4th respondent shall maintain the status quo and there shall be no further construction”

Background

The Nagpur Bench of Bombay High Court in November 2023 in a PIL, declined to consider the Futala Lake in Nagpur as a 'Wetland' within the definition of Rule 2(1)(g) of the Wetlands (Conservation and Management) Rules, 2017 and allowed the construction of a certain temporary structure such a floating restaurant, banquet hall, fountain and viewer gallery in and around the lake by the State Authorities.

The Court observed-

“ On the basis of the material on record, a finding has been 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”

Furthermore, while recognising that the PIL filed has been a bonafide attempt to protect and preserve the lake, the Court in applying Public Trust Doctrine along with the Precautionary Principle directed the authorities to not undertake any 'permanent' constructions.

“ 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 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”

Case Details : Swacch Association, Nagpur v The State Of Maharashtra And Ors SLP(C) No. 1420/2024