Should a Man-Made Waterbody for Drinking and Irrigation Qualify as a “Wetland” under the 2017 Rules and Attract Rule 4(2)(vi) Prohibitions?

Summary

Practical Impact

What’s New / What Lawyers Should Note

• Clarifies that human-made waterbodies specifically constructed for drinking water or irrigation purposes are excluded from the definition of “wetland” under Rule 2(1)(g) of the Wetlands (Conservation & Management) Rules, 2017.
• Confirms that prohibitions on permanent constructions in Rule 4(2)(vi) apply strictly to statutory wetlands; non-statutory waterbodies may still attract precautionary directions via NWIA-based Supreme Court orders.
• Holds that removable, design-vetted structures (e.g., artificial Banyan Tree screen) do not constitute prohibited permanent constructions.
• Reaffirms application of the public trust doctrine and precautionary principle to protect even non-statutory waterbodies where ecological balance may be at risk.
• Emphasises the importance of obtaining all requisite NOCs, heritage sanctions and environmental clearances for development works around waterbodies.

Summary of Legal Reasoning

1. Identification of Futala Tank as a man-made reservoir built in 1799 by Shri Gyanoji Bhosale for drinking and irrigation, spanning approximately 200 hectares.
2. Examination of Rule 2(1)(g) of the 2017 Rules: the definition of “wetland” expressly excludes human-made waterbodies/tanks constructed for drinking, irrigation, recreation, aquaculture or salt production.
3. Conclusion that Futala Tank does not qualify as a “wetland” under Rule 2(1)(g), so statutory prohibitions in Rule 4(2)(vi) on permanent constructions do not strictly apply.
4. Recognition of the Office Memorandum dated 08.03.2022 and Supreme Court orders in M.K. Balakrishnan directing precautionary application of Rule 4 to NWIA-identified waterbodies; High Court’s precautionary directives upheld as valid extensions under the public trust doctrine.
5. Reinforcement of the public trust doctrine (Articles 48-A, 51-A(g)) and the precautionary principle to ensure ecological integrity and sustainable public use, extending protections to both natural and man-made waterbodies.

Arguments by the Parties

Petitioner (Swacch Association)

• Futala Tank is identified as a “wetland” in the National Wetland Atlas and NWIA inventory.
• Installations (Musical Fountain, artificial Banyan Tree, Viewer’s Gallery, Parking Plaza) violate Rule 4(2)(vi) prohibitions and public trust doctrine.
• Reliance on Articles 21, 48-A and 51-A(g) for the right to a healthy environment.
• Alleged breach of municipal buffer norms (15 metre distance from waterbody).

Respondents (State, Municipal & Development Authorities)

• Futala Tank is a man-made water reservoir built for drinking and irrigation, excluded from “wetland” definition by Rule 2(1)(g).
• All recreational and beautification projects were sanctioned by competent authorities and secured multiple NOCs (PWD, heritage, fisheries, police, etc.).
• Artificial Banyan Tree is a removable, non-permanent structure vetted by national institutes.
• Compensatory afforestation was undertaken; floating fountain improved water quality and aquatic life.
• High Court’s intermediate and final orders appropriately balanced development and conservation under the precautionary principle.

Factual Background

Futala Lake (Tank) in Nagpur, constructed in 1799, was developed into a recreational site featuring a Viewer’s Gallery, Parking Plaza, Floating Restaurant with Musical Fountain, and an artificial Banyan Tree screen for multimedia shows. Swacch Association filed a PIL contending these permanent installations violated the Wetlands (Conservation & Management) Rules, 2017 and the public trust doctrine. The Bombay High Court denied demolition relief but issued precautionary directions against permanent structures. The Supreme Court dismissed the appeal, affirming that Futala Tank is excluded from the statutory “wetland” definition and upholding the High Court’s precautionary measures under the public trust doctrine.

Statutory Analysis

• Rules framed under Sections 3 and 25 of the Environment (Protection) Act, 1986.
• Rule 2(1)(g) defines “wetland” but excludes human-made waterbodies constructed for drinking, irrigation, aquaculture, salt production, recreation.
• Rule 4(2)(vi) prohibits permanent constructions within 50 metres of mean high flood level in statutory wetlands.
• Office Memorandum (08.03.2022) and Supreme Court’s M.K. Balakrishnan orders extend precautionary application of Rule 4 to NWIA-identified wetlands.
• Invocation of public trust doctrine under Articles 48-A and 51-A(g) and Article 21’s right to a clean environment to support protective directives.

Alert Indicators

• ✔ Precedent Followed