Full Judgment Text
REPORTABLE
2025 INSC 792
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. ________ / 2025
(Arising out of SLP (C) No(s). 29048 / 2018)
Municipal Corporation of Greater Mumbai & Ors. ...Appellants
versus
Pankaj Babulal Kotecha & Ors. …Respondents
JUDGEMENT
SURYA KANT, J.
Leave granted.
2. The fulcrum of the present controversy centres around the
redevelopment of a theme park undertaken by the Municipal
Corporation of Greater Mumbai ( MCGM ) on a plot bearing CTS No.
417, situated at Khajuria Tank Road, Kandivali (West), Mumbai
( Subject Property ). This redevelopment allegedly resulted in the
obliteration of a lake that had existed at the premises for
Signature Not Verified
Digitally signed by
NITIN TALREJA
Date: 2025.05.30
17:00:59 IST
Reason:
approximately 100 years.
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3. This issue was assailed before the High Court of Bombay ( High
Court ) vide a Writ Petition instituted in public interest, wherein by
way of its judgement dated 03.08.2018, the High Court allowed the
same and directed Respondent Nos. 2-8 herein ( State
Government ) to assume possession of the Subject Property,
demolish the construction in question and restore the lake claimed
to have existed prior to the subject development ( Impugned
Judgement ).
ACTS
A. F
4. In order to shed light on the circumstances leading up to the
passing of the Impugned Judgement, we deem it appropriate to
briefly set out the factual narration herewith:
4.1. A water body known as the Khajuria Lake used to be situated in
the same vicinity as the Subject Property. This water body, which
had existed for over 100 years, allegedly also served as a site for
Ganesh idol immersion during festivals. As per the revenue record,
the Subject Property was enlisted as belonging to the State
Government through the Collector, Mumbai Suburban District.
4.2. It appears that in 2008, as part of a directive from the Additional
Municipal Commissioner (City) to develop Theme Gardens in
various wards within the city of Mumbai and other ancillary areas,
MCGM selected the Subject Property for development. MCGM
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claimed that the lake was in an unused and bad condition, so much
so that it was treated as a garbage disposal area, thereby prompting
it to be identified for beautification and conversion into a
recreational space.
4.3. MCGM in furtherance of this objective, floated a tender on
08.02.2008 for the development and maintenance of gardens,
recreation grounds, and other municipal plots. Following the
tender process, M/s. Techno Trade Impex India Pvt. Ltd. was
appointed as the contractor on 10.04.2008. The project thereafter
received formal approval from the Standing Committee of MCGM
vide SCR No. 729, for the execution of beautification work upon the
Subject Property, on 24.08.2009.
4.4. Subsequently, MCGM appointed an architect to prepare detailed
plans and estimates for the proposed beautification of the Subject
Property. Accordingly, a budget of Rs. 5 crores came to be allocated
by MCGM in the fiscal year of 2008-09.
4.5. However, as already observed, given that the Subject Property
belonged to the Collector and not MCGM, the latter submitted an
application for a No Objection Certificate to the Collector on
30.06.2009 seeking permission for the project. Notwithstanding the
pendency of these requests, the beautification work proceeded, and
the transformed recreational space comprising the planned green
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cover, musical water fountain, and recreational amenities was
completed and inaugurated for public use in December 2011. On
23.05.2012, MCGM sent another letter to the Collector for transfer
of the property, which remained unanswered.
4.6. Thereafter, the publication of a news report in the Times of India
daily newspaper on 06.09.2012 concerning the alleged filling up of
Khajuria Lake spurred action in Respondent No. 1, who being a
public-spirited individual, filed a Writ Petition before the High
Court on 29.11.2012. The petition sought demolition of the
construction undertaken by MCGM and restoration of the lake to
its pristine condition, highlighting that this century-old water body
served as a habitat for various types of rare fish and tortoises,
attracted different types of birds, and was surrounded by
mangroves—all of which were decimated during the development of
the project.
4.7. Significantly, during the pendency of the petition, the Collector
issued post facto sanction dated 10.02.2014 approving the project,
viz. the beautification of Khajuria pond, and transferring the
Subject Property to MCGM.
4.8. As already elucidated, the High Court, vide the Impugned
Judgment dated 03.08.2018, allowed the Writ Petition. Being
aggrieved, MCGM has preferred the instant appeal.
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4.9. Notably, during the pendency of the instant appeal, this Court, vide
order dated 16.11.2018, directed status quo , thereby staying the
implementation of the Impugned Judgment. Consequently, the
recreational park continues to exist and function in its present
form.
B. C ONTENTIONS ON BEHALF OF THE A PPELLANTS
5. Mr. Dhruv Mehta, Learned Senior Counsel appearing for MCGM,
vehemently contested the High Court’s characterization of the
Subject Property as a lake requiring restoration. He submitted that
the Impugned Judgment fundamentally misapprehended the
nature of the land by disregarding that the Subject Property was
already reserved as Recreation Ground or ‘R.G.’ in the sanctioned
Development Plan of 1991. It was urged that this reservation was
made following due statutory process, including inviting public
objections and suggestions through the Gazette Notification dated
13.04.1984, and no objections were ever raised by any party,
including the Respondent. It was further emphasized that such
‘R.G.’ designation, read in conjunction with MCGM’s statutory
mandate to develop recreational spaces, provided sufficient legal
foundation for the beautification initiative sought to be undertaken,
which has resulted in the creation of substantial green cover at the
Subject Property.
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6.
Additionally, our attention was drawn to the documented usage
pattern of the Subject Property, highlighting that it had
consistently hosted community events, including Ganesh festival
celebrations with proper administrative permissions—
circumstances incompatible with the existence of a natural lake as
alleged by Respondent No. 1. It was detailed as to how MCGM had
transformed what was formerly a degraded area used as a garbage
dumping ground, into a beneficial public amenity featuring
approximately 200 trees, a musical fountain, and recreational
facilities, presently serving the local community without charge. He
insisted that, far from constituting illegal construction, the project
represents a responsible exercise of MCGM to enhance urban
recreational infrastructure, thereby promoting rather than
diminishing public welfare in accordance with the Subject
Property’s designated purpose.
ONTENTIONS ON BEHALF OF ESPONDENT O
C. C R N .1
7. Per contra , Mr. Kunal Cheema, Learned Counsel for Respondent
No. 1, strenuously opposed the appeal on multiple grounds. He
commenced his submissions by challenging the very premise of the
development, asserting that the documentary evidence
overwhelmingly established the existence of a functional water
body at the Subject Property. Relying on MCGM’s own
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correspondence, particularly its letter dated 30.06.2009 seeking
permission to convert the ‘Khajuria Talao to that of a municipal
garden’, it was contended that such language constituted an
unequivocal admission that negated any subsequent attempt to
deny the lake’s existence. It was further argued that the
beautification project represented nothing short of ecological
destruction, resulting in the obliteration of a century-old lake that
supported various aquatic species and attracted diverse birdlife to
its surrounding mangroves.
8. On the aspect of post facto sanction of 2014, the Learned Counsel
characterized it as a legally impermissible attempt to
retrospectively legitimize an unauthorized act. It was assailed that
this sanction, granted during the pendency of litigation and years
after the construction’s completion, suffered from inherent
contradictions—purporting to approve beautification while
simultaneously prohibiting the very change in land use that had
already been effected. In conclusion, Learned Counsel submitted
that the principles of environmental protection and the public trust
doctrine mandated the restoration of the natural water body, as
rightly held by the High Court.
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ANALYSIS
D.
9. Having heard learned counsels for the parties and after perusal of
the material on record, we are of the considered view that the
primary question in the instant appeal pertains to whether a
recreational park developed on an alleged historical water body
ought to be demolished and the water body restored or
alternatively, whether the development warrants preservation given
its current utility and the inexorable passage of time. More
specifically, the question of achieving a judicious balance between
environmental conservation and development for public welfare
constitutes the primary issue before us. That being said, at the very
outset, we deem it pertinent to delineate the reasoning that
informed the High Court’s determination in the matter.
10. Upon perusal of the Impugned Judgement, it becomes patently
clear that the High Court’s reasoning rested primarily on the public
trust doctrine, whereby it held that the State could not permit the
destruction of natural water bodies under any circumstances.
Furthermore, it found the post facto sanction legally ineffective, as
it attempted to retrospectively validate an unauthorized act while
simultaneously prohibiting the very land use change that had
already occurred. Consequently, invoking Articles 48A and 51A(g)
of the Constitution, the High Court concluded that the preservation
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of water bodies constitutes an absolute constitutional mandate that
invariably supersedes developmental considerations or temporal
factors.
11. In this light, we must acknowledge that albeit the High Court’s
views were well-intentioned and prima facie the correct
interpretation of settled notions such as the public trust doctrine,
they nonetheless warrant reconsideration through the prism of
practical realities and evolved ground conditions. This Court has
consistently propounded that environmental jurisprudence must
evolve contextually, taking into account both ecological imperatives
and developmental exigencies. Indeed, there cannot be a simplistic
binary choice between a park or a pond, as each serves distinct
ecological and social functions contingent upon specific
circumstances, geographical location, and evolving usage patterns.
12. To put it simplistically, the public trust doctrine establishes that
certain environmental resources are held in trust by the State for
the unimpeded enjoyment of the public and for posterity. Although
the doctrine imposes a legal obligation upon governmental
authorities to protect these resources for public benefit and
ecological sustainability, extending to public lands, parks, forests,
water bodies, wetlands, and other areas acquired by the State, its
application must necessarily be calibrated according to the factual
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matrix and contemporary public needs. The doctrine, thus, does
not operate in isolation but must be harmonized with the objectives
of sustainable development and evolving public welfare priorities.
13. When juxtaposed with the facts at hand, the instant case presents
a unique situation where one public amenity has been transformed
into another that continues to serve the community
unconditionally. Unlike scenarios involving the diversion of public
resources for exclusive private benefit, we must examine whether
this particular transformation necessarily violates the trust
obligation, considering three critical factors: ( i ) the prior condition
of the water body; ( ii ) the current ecological value of the park; and
( iii ) the feasibility of remedial measures.
14. With respect to the first factor, while the material on record
acknowledges the historical existence of a water body at the Subject
Property, it does not conclusively establish that this water body
remained a functional pond by the relevant time. The affidavits filed
by officials of MCGM categorically aver 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. Pertinently, nothing has been pleaded
or placed on record to demonstrate that the Subject Property was
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ever a functional pond with significant water content, possessed
any natural catchment area to draw fresh water, or performed
meaningful ecological functions beyond occasional ceremonial
usage, thereby raising fundamental questions about its viability as
a sustainable aquatic ecosystem capable of supporting flora and
fauna.
15. As regards the current ecological value, the photographic evidence
placed before us vividly illustrates the Subject Property as a
verdant, well-maintained urban oasis replete with numerous
mature trees and recreational facilities actively utilized by the
community across all demographic segments. It bears particular
emphasis that we are adjudicating this appeal in 2025, nearly
fifteen years after the park became functional. During this extended
temporal span, an entire generation of children has grown up with
this green space as an integral component of their daily existence,
whilst the trees planted during the initial beautification have
themselves matured into substantial specimens that now
contribute significantly to the local ecosystem. The park serves as
a vital recreational nucleus for children, offering safe spaces for
play and physical activity; for senior citizens, providing dedicated
areas for walking and social interaction; and for families, creating
opportunities for community engagement and leisure.
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16. The recreational park presently delivers substantial public benefits
that cannot be overlooked. It provides an essential green space in
an increasingly concretized urban environment, with trees and
other foliage contributing significantly to oxygen generation, air
purification, and microclimate regulation. The ornamental water
features, such as the fountain, though admittedly not equivalent to
a natural water body, nonetheless contribute to biodiversity.
17. Be that as it may, the implementation of the High Court’s direction
at this juncture would engender consequences that contravene the
very environmental principles it seeks to uphold. The demolition
would necessitate the removal of numerous trees, causing
immediate environmental degradation requiring decades to
remediate. Additionally, the expenditure of approximately Rs. 5
crores of public funds would be rendered nugatory, with further
substantial public expenditure required for the proposed
restoration. Such an outcome would create a paradox wherein
environmental restoration results in greater ecological harm than
the original transformation—a classic case of counterproductive
remedial intervention. Most importantly, given the absence of any
natural catchment area as aforenoted, we are constrained to
observe that even if a pond were to be recreated, its sustainability
and maintenance would remain highly questionable, with the
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distinct possibility of such stagnant water body becoming health
hazards for the local populace, particularly during the monsoon
seasons when such properties are prone to becoming breeding
grounds for disease-carrying vectors.
18. Beyond these substantive aspects, the Collector’s post facto
sanction of 2014 merits separate consideration. The High Court
found this sanction to be procedurally deficient and contradictory—
attempting to validate an unauthorized construction yet
simultaneously prohibiting the very land use change that had
occurred. In this specific context, we observe that the larger
question for adjudication before us transcends the validity of this
belated approval. Even assuming the sanction’s invalidity, the
fundamental issue remains whether restoration is feasible or
desirable, given the passage of considerable time and the
establishment of a functioning public amenity. The legal status of
the 2014 sanction, therefore, though relevant to the question of
initial authorization, cannot be determinative of the appropriate
remedy at this stage. More significantly, even if there existed some
irregularity or perceived illegality in the post facto sanction, such
concerns have been reasonably addressed and balanced by the
specific rider imposed therein restricting any change in land use.
The sanction, as it stands, thus ensures that the Subject Property
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shall remain dedicated exclusively to recreational purposes in
perpetuity. This rider provides the necessary legal safeguard and
permanency to guarantee that the land may not be diverted for any
other purpose, commercial or otherwise.
19. As a final consideration, the delay in seeking judicial intervention
significantly undermines the foundation of the High Court’s
impugned decision. The beautification project commenced in 2008
and reached completion by 2011, with the park becoming fully
operational for public use. However, the petition was instituted
before the High Court towards the tail end of 2012—nearly five
years after the project’s commencement and well after its
completion. It is well-settled that environmental grievances must
be raised promptly when alleged violations commence, 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.
No public purpose, therefore, would be served by undoing what
time and usage have legitimized through community acceptance
and reliance.
20. For the foregoing reasons, we are constrained to hold that the High
Court’s direction to restore the Subject Property to its original
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condition as a pond, though made with laudable intentions, fails to
account for the transformed reality and the substantial public
benefit derived from the current recreational space.
E. CONCLUSION AND DIRECTIONS
21. In view thereof, we allow the instant appeal and set aside the
Impugned Judgment passed by the High Court. Consequently, to
ensure ecological balance within the larger urban ecosystem and
preserve the existing park, we direct MCGM to:
i. Maintain and preserve the existing park in perpetuity as a
green space exclusively for public use without any
predominant commercial activity;
ii. Constitute an Expert Committee within three months to
explore the feasibility of developing an alternative water body
in nearby areas to compensate for the ecological functions of
the original water body;
iii. Undertake comprehensive ecological restoration of
deteriorated water bodies within the municipal jurisdiction
within a period of twelve months; and
iv. File a compliance report before the High Court every six
months for a period of three years. We request the High Court
to see that the directions issued hereinabove are complied with
in true letter and spirit.
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22. The Government, being entrusted with the welfare of public spaces
and environmental resources, bears the inherent responsibility to
pursue sustainable urban development practices that balance
infrastructural needs with ecological preservation. We thus clarify
that this order shall not preclude the State Government from
implementing any other additional measures for the overall
improvement of environmental quality in the Navi Mumbai area in
harmony with the directions issued hereinabove.
23. Ordered accordingly, Pending applications, if any, also stand
disposed of in the above terms.
..........................J.
(SURYA KANT)
………….………………..........................J.
(NONGMEIKAPAM KOTISWAR SINGH)
NEW DELHI;
Dated: May 30, 2025
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