Fusion Of Public Trust Doctrine & Precautionary Principle Be Adopted: Bombay HC Issues Directions To Preserve Futala Lake
The Bombay High Court, Nagpur Bench has issued some directions to preserve Futala Lake (man-made water body) by adopting an approach based on fusion of the Public Trust Doctrine and Precautionary Principle.
The Court was dealing with a Public Interest Litigation (PIL) filed by Swacch Association, Nagpur raising issue regarding impermissibility of the installation of musical fountain and associated machinery inside the body of Futala Tank.
A Division Bench of Justice A.S. Chandurkar and Justice Vrushali V. Joshi said, “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. … 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.”
The Bench noted that the preservation of Futala Lake is of paramount importance and the authorities are duty bound to act responsibly in a manner consistent with Articles 48-A and 51-A(g) of the Constitution of India.
Advocate S.A. Rajeshirke appeared for the petitioner while Senior Advocate S.K. Mishra, Advocates Anand Parchure, S.M. Puranik, and A.R. Patil appeared for the respondents.
Brief Facts -
Swacch Association was a Society registered under the Societies Registration Act, 1860 as well as under the Maharashtra Public Trusts Act, 1950. It objected to the construction of the viewer’s gallery on the bank of Futala Tank and prayed that the Tank be restored to its original state after demolishing the viewer’s gallery. The prayer for interim relief was made by the Association during the pendency of the proceedings and by the order, the interim relief as prayed for was not granted. However, directions were issued to the respondent- authorities to ensure that the spirit behind imposing restrictions under Rule 4 of the Wetlands (Conservation and Management) Rules, 2017 (‘the Rules of 2017’) be strictly observed and no construction of a permanent nature within Futala Lake shall be undertaken.
In the aforesaid backdrop, according to the respondents, the said order takes into consideration all the apprehensions expressed by the petitioner. They submitted that as Futala Lake is not a ‘wetland’ as defined under Rule 2(1)(g) of the Rules of 2017, the interim order be made absolute and the parties be directed to act in accordance with the directions issued therein. The petitioner, however, contended 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 was concerned.
The High Court in the above regard observed, “… 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.”
The Court said that even if Futala Lake is not a declared wetland, the duties and responsibilities imposed would have to be adhered to in true letter and spirit. It further said that the counsel for the petitioner is justified in invoking the Public Trust Doctrine that has been recognized by the Supreme Court in its various decisions including the decision in Animal and Environment Legal Defence Fund v. 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”, also observed the Court.
The Court further noted that a total prohibition on activities as sought by the petitioner cannot be imposed but 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.
“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”, ordered the Court.
The Court also directed that the respondents shall 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.
“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”, concluded the Court.
Accordingly, the High Court disposed of the PIL.
Cause Title- Swacch Association, Nagpur v. The State of Maharashtra and Others (Neutral Citation: 2023:BHC-NAG:16604-DB)
