TaxTMI 
TaxTMI 
2025 (6) TMI 1574
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....imed 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 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 0....
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....t 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....
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....sel 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. 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 a....
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....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 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....
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....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 impos....