Case Note & Summary
Background: The public interest litigation (PIL) was filed by Edwin Britto and another against the State of Maharashtra and others, challenging the illegal activities concerning two lakes situated at Village Eksar, Taluka Borivali, Mumbai Suburban District. The lakes, bearing CTS No. 1550 (3381.60 sq. meters) and CTS No. 1612 (12,929.50 sq. meters), admittedly vested in the State. Facts: In 2007, respondent No. 6, then a Member of the Maharashtra Legislative Assembly and later a Member of Parliament, wrote to the District Collector proposing beautification of the lakes, initially citing threat from anti-social elements and later suggesting construction of a Welfare Centre by filling the lakes. Based on his proposal, the State Government issued an order on 6th September 2007 granting a one-year licence to respondent No. 6 for beautification, subject to conditions that the land remained government property, the licence would automatically end after one year, and no government funds would be provided. The Collector passed a corresponding order on 5th October 2007. Subsequently, respondent No. 6 requested permission to fill the smaller lake and construct a Social Welfare Centre and temple. The Urban Development Department opined that the land was in a 'No Development Zone' and construction was impermissible, a view initially approved by the Minister but later overruled by the same Minister on 21st July 2008, allowing construction as per available FSI. The Collector then issued a construction permission on 22nd October 2008. Meanwhile, the one-year licence had expired on 4th October 2008. On 24th November 2008, the Collector directed that possession be taken back and handed over to the Mumbai Municipal Corporation; a possession receipt dated 16th December 2008 indicated that the BMC took over possession. The petitioners wrote a complaint on 30th December 2008 alleging illegalities, including filling of the smaller lake and unauthorized construction by respondent No. 6 and respondent No. 7, Poisar Gymkhana. The PIL sought mandamus to restore the lakes, demolish constructions, declare permissions null, and direct possession to the state. Various affidavits were filed; the BMC stated it never received possession and no permission was granted for development. Respondent No. 6 claimed beautification was complete and the area was open for public use, and that maintenance was given to Poisar Gymkhana which charged a nominal entry fee. Legal Issues: The primary questions were whether two lakes vesting in the State should be allowed to be used by individuals, and whether the act of respondent No. 6 in illegally filling one of the two lakes was legal. Arguments: The petitioners argued that the permissions were granted illegally, the smaller lake was filled and construction done without authorization after licence expiry. Respondent No. 6 contended that beautification was done for public benefit and the petition was defamatory. The government respondents indicated that possession was not formally handed to BMC and no construction permissions were granted by BMC. Court's Analysis: The Court examined the chronology of events, noting that the government permission was for a limited one-year licence, which had expired, yet respondent No. 6 continued occupation. The Urban Development Department's clear opinion that the land was in a No Development Zone and no construction should be allowed was overruled without justification. The Court observed that the fundamental issue was the alienation of natural resources for private use, in violation of the public trust doctrine. The Court expressed concern that filling of a water body and construction in a No Development Zone were prima facie illegal. Decision: The provided text does not contain the final operative order.
Headnote
A) Environmental Law - Protection of Water Bodies - Public Trust Doctrine - The State Government's permission to an individual to beautify two lakes, which resulted in the filling up of one lake and construction, raised the issue whether such natural resources could be alienated for private use, violating the public trust and environmental obligations. (Paras 1-4) B) Administrative Law - Government Permissions - Legality and Conditions - The one-year licence granted by the State for beautification with specific conditions was allegedly breached when the licensee filled up the smaller lake and constructed structures after the licence period expired, and the Collector had earlier sought to take back possession, raising questions of illegal continuation. (Paras 2-4, 7) C) Municipal Law - Development Control - No Development Zone - The Urban Development Department opined that the land was in a No Development Zone, making construction impermissible, a position that was reiterated but then overruled by the Minister, leading to the Collector issuing a construction permission, which was challenged as illegal. (Paras 4-5) D) Public Interest Litigation - Interim Relief - Maintenance of Public Amenities - The Court directed that the bigger lake and surrounding garden be maintained, and all members of the public shall have free access from 6:00 a.m. to 10:00 p.m., permitted to be used only as garden and children's park area. (Para 5)
Issue of Consideration
Whether two lakes vesting in the State can be allowed to be used by individuals? Whether the act of respondent No.6 of illegally filling in one of the two lakes is legal?
Law Points
- public trust doctrine
- protection of water bodies
- illegality of government permissions for private beautification
- no construction in No Development Zone
- obligation to restore natural resources
- MLA fund cannot be used to destroy lakes
