Municipal Corporation of Greater Mumbai & Ors. vs Pankaj Babulal Kotecha & Ors.

2025 INSC 792 REPORTABLE

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 approximately 100 years.

Reason: Page 1 of 16

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).

A. FACTS

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

Page 2 of 16 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

Page 3 of 16 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.

Page 4 of 16 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. CONTENTIONS ON BEHALF OF THE APPELLANTS

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.

Page 5 of 16

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.

C. CONTENTIONS ON BEHALF OF RESPONDENT NO.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

Page 6 of 16 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.

Page 7 of 16 D. ANALYSIS

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

Page 8 of 16 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

Page 9 of 16 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

Page 10 of 16 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.

Page 11 of 16

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

Page 12 of 16 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

Page 13 of 16 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

Page 14 of 16 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.

Page 15 of 16

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

Page 16 of 16