M.C. Mehta v. Kamal Nath

A newspaper report said a motel run by a Union Minister's family was diverting the Beas river in Himachal Pradesh to save its resort. The Supreme Court took notice of the report. It held that the State holds natural resources in trust for the public and cannot lease ecologically fragile land for commercial use. It cancelled the lease and ordered the motel to pay for restoring the environment.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

M.C. Mehta — petitioner; appeared in person. The Court took notice of the news item.

Kamal Nath — respondent No. 1; the Minister in charge of the Department of Environment and Forests when the second lease was cleared. He said he had no right, title or interest in Span Resorts.

Span Motels Private Limited (the Motel) — respondent; owns the Span Resorts motel and the Span Club on the bank of the Beas.

State of Himachal Pradesh and other respondents — the State leased the forest land to the Motel, and its officers filed counter affidavits. Mr. H.N. Salve, Senior Advocate, appeared for the respondents.

Procedural History

1. The Court took notice of an Indian Express news item dated 25 February 1996 headed Kamal Nath dares the mighty Beas to keep his dreams afloat (Kuldip Singh, J.).
2. Notice issued to the respondents. Mr. Kamal Nath filed a one-page counter affidavit dated 8 June 1996. The Motel filed a counter affidavit by Mr. Banwari Lal Mathur, its Executive Director, and an additional affidavit dated 30 July 1996 (Kuldip Singh, J.).
3. Officers of the Himachal Pradesh Government filed counter affidavits (Mr. G.D. Khachi, Under Secretary (Revenue), and C.P. Sujaya, Financial Commissioner-cum-Secretary (Irrigation and Public Health)). A report by a Board (not named in the judgment) was placed on record (Kuldip Singh, J.).
4. The Court delivered judgment on 13 December 1996. It disposed of the writ petition except for a limited purpose, and listed the matter on 18 December 1996 (Kuldip Singh, J.).

Facts

1. The news item said Mr. Kamal Nath's family had direct links with Span Motels Private Limited, which owns Span Resorts in the Kullu-Manali valley. It said the Span Club was built after encroaching upon 27.12 bighas of land, including substantial forest land, in 1990. The Court's own finding is that 22.2 bighas was encroached in 1988-89 (Kuldip Singh, J.).
2. The news item said the land was later regularised and leased to the company on 11 April 1994, when Mr. Kamal Nath was Minister of Environment and Forests (Kuldip Singh, J.).
3. The news item said the swollen Beas changed course and engulfed the Span Club. It said that for almost five months the management had been moving bulldozers and earth-movers to turn the river's course, to create a new channel about one kilometre downstream, at a cost of over a crore of rupees (Kuldip Singh, J.).
4. The news item said three private companies had moved in earth movers, bulldozers and 35 tractor trolleys, with a security ring around the area. It also feared landslides from the river eating into the mountains (Kuldip Singh, J.).
5. The Motel's President said the company was managed by professionals, and the Motel was only restoring the river to its original course. Mr. Kamal Nath's counter affidavit said the press reports were exaggerated, erroneous and mala fide (Kuldip Singh, J.).
6. Shareholding of the Motel: Mrs. Leela Nath 32,560 shares (42%); EMC Projects Pvt. Ltd. 14,700 (19%); SHAKA Properties Pvt. Ltd. 15,000 (19%); SHAKA Estate & Finance Pvt. Ltd. 15,000 (19%); Capt. Alok Chandola 250 (1%); total 77,510 (Kuldip Singh, J.).
7. Government land of 40 bighas 3 biswas on the bank of the Beas was leased to the Motel for 99 years from 1 October 1972 to 1 October 2071, by lease deed dated 29 September 1972 (Kuldip Singh, J.).
8. The current management took over in 1981, and a fresh lease was signed on 29 September 1981 for the same period. The Motel began operating in 1975 (Kuldip Singh, J.).
9. From 1988 the Motel wrote to the Government asking for exchange or lease of adjoining forest land. In 1989 it admitted it had built extensive stone, cemented and wire-mesh embankments along the bank, and had developed an adjoining 22.2 bighas of banjar forest land (Kuldip Singh, J.).
10. On 24 November 1993 the Ministry of Environment and Forests gave prior approval under Section 2 of the Forest (Conservation) Act, 1980 to lease the Motel 27 bighas and 12 biswas of adjoining forest land. A lease deed dated 11 April 1994 followed (Kuldip Singh, J.).
11. On 4 September 1995 a slip on the left bank hill partly blocked the main channel. The river changed course into the spill channel and washed away the club building and the 1993 protection works (Kuldip Singh, J.).
12. After the 1995 floods the Motel dredged and channelised the river with wire crate revetments, and blocked the mouth of the natural relief channel (Kuldip Singh, J.).

Issues Raised

The judgment does not frame issues in numbered form. It addresses the following questions.

1. Did the Motel interfere with the natural flow of the river Beas and degrade the environment by its constructions?
2. Does the public trust doctrine apply in India, and did the State breach it by leasing riverbank forest land for commercial use?
3. Who must bear the cost of restoring the environment, under the principles of precautionary action and polluter pays?

Arguments Contended

For the respondent Motel and Mr. Kamal Nath:

• Mr. Kamal Nath: he has no right, title or interest in Span Resorts, and the press allegations were highly exaggerated, erroneous, mala fide and mischievous (Kuldip Singh, J.).
• The Motel: the works were flood protection and reclamation, not an encroachment. It said the river was only being restored to its original course and that dredging and wire crates on both banks protect the banks and hillside villages (Kuldip Singh, J.).
• The Motel said the affected Rangri, Chakki and Naggar villages were not in danger, and that the Baragran Bihal villagers were the ones affected by floods (Kuldip Singh, J.).
• Mr. Harish Salve, for the respondents, contended that the works were done to protect the leasehold land from floods. He said the Divisional Forest Officer's letter of 12 January 1993 permitted the works, on condition that the department paid nothing (Kuldip Singh, J.).
• The Motel's additional affidavit said the Minister did not deal with the file. It said the proposal was cleared by the Secretary and the Forest Advisory Committee and at the Prime Minister's level (Kuldip Singh, J.).

For the State of Himachal Pradesh (as recorded in the counter affidavits):

• A piece of 21-09 bighas was encroached by the Motel. On coming to notice, the Government got it vacated and the Forest Department took possession, but the Chief Secretary later found the Motel still using it (Kuldip Singh, J.).
• The State then decided to lease 27-12 bighas including the encroached land, for the purpose of protecting the earlier leased land, after approval of the Government of India (Kuldip Singh, J.).
• The Financial Commissioner admitted that the Motel deployed heavy machinery to divert and channelise the river to its pre-1995 course, over a channel of about 1000 metres (Kuldip Singh, J.).

Court's Reasoning

The judgment is by Kuldip Singh, J. for the Bench of Kuldip Singh and S. Saghir Ahmad, JJ. It has no numbered paragraphs, so steps cite the opinion.

Kuldip Singh, J. (for the Bench)

The news item and the affidavits

1. Noted: The Court took notice of the Indian Express item of 25 February 1996. Its relevant part is reproduced. (Kuldip Singh, J.)
2. Noted: Mr. Kamal Nath's counter affidavit says he is wrongly arrayed and has no right, title or interest in the property owned by Span Motels. It calls the press allegations exaggerated, erroneous, mala fide and mischievous. (Kuldip Singh, J.)
3. Noted: Mr. Banwari Lal Mathur's counter affidavit for the Motel says Mr. Kamal Nath has no interest in Span Resorts or the leased lands. It sets out the shareholding. (Kuldip Singh, J.)
4. Noted: Mr. Harish Balve (the source spells the counsel's name Balve here and Salve elsewhere), for Mr. Kamal Nath, did not dispute that almost all the shares are owned by Mr. Kamal Nath's family. The Court does not comment on his averment that he has no right, title or interest. (Kuldip Singh, J.)
5. Noted: The additional affidavit of 30 July 1996 says 40 bighas 3 biswas was leased for 99 years. Clauses 6 and 7 of the lease deed bar deep pits or trenches that lead to erosion. They let the lessor end the lease on six months' notice with no compensation. (Kuldip Singh, J.)
6. Noted: The Motel says it began in 1975, with over 800 trees and two clusters of rooms about 40 metres from the river's edge. In peak floods the river did not come closer than 10 metres to the rooms. (Kuldip Singh, J.)
7. Noted: The correspondence starts with a letter of 19 October 1988 to the Chief Minister on flood damage. The Motel asked the Government for retaining walls to stop erosion. (Kuldip Singh, J.)
8. Noted: The Motel's letter of 30 August 1989 to the Divisional Forest Officer, Kullu says it has built extensive stone, cemented and wire-mesh embankments and developed the waste and banjar (Class III) forest land of about 22.2 bighas. It offered 28 bighas 13 biswas of private land at Majhach, Manali in exchange. (Kuldip Singh, J.)
9. Noted: In that letter the Motel recognised that the Forest Conservation Act, 1980 requires matching compensatory land for use of forest land by a private agency. (Kuldip Singh, J.)
10. Held: It is obvious from the letter that the Motel had encroached upon an additional 22.2 bighas adjoining its lease-hold, and had built embankments all along the river banks. It wanted the land by exchange or lease. (Kuldip Singh, J.)
11. Noted: Letters of 12 September 1989 and 9 July 1991 repeated the request. The Motel said the banjar land eroded every year, and it had built deep protection embankments at huge cost. (Kuldip Singh, J.)
12. Noted: The Divisional Forest Officer replied on 12 January 1993 that the department had no funds. The Motel could carry out works at its own level, but the land would vest in the Forest Department and the Motel could claim no right. (Kuldip Singh, J.)
13. Held: That letter can be of no consequence, since the Motel had built extensive embankments much before it, as the letter of 30 August 1989 shows. (Kuldip Singh, J.)
14. Noted: The Motel's letter of 21 June 1993 to the Chief Secretary says the adjoining stretch of Class III banjar forest land had been reclaimed and protected by an embankment. It said the increase in area was reclamation, not encroachment. (Kuldip Singh, J.)
15. Noted: On 7 August 1993 the Motel again asked for a long lease of forest land coterminous with the original lease, saying it was restrained from completing the work on allegations of encroachment. (Kuldip Singh, J.)
16. Noted: By letter of 24 November 1993 the Ministry of Environment and Forests gave prior approval under Section 2 of the Forest (Conservation) Act, 1980 to lease the Motel 27 bighas 12 biswas. The lease deed of 11 April 1994 followed. (Kuldip Singh, J.)
17. Noted: The additional affidavit says the proposal was cleared by the Secretary, forwarded to the Forest Advisory Committee bypassing the Minister, cleared with severe restrictions, then cleared at the Prime Minister's level. (Kuldip Singh, J.)
18. Noted: Mr. Kamal Nath was the Minister in charge at that time. The paragraph is meant to convey that he did not deal with the file. (Kuldip Singh, J.)
19. Noted: The correspondence shows the Motel wrote for the exchange or lease of the additional forest land from 1988. Clearance was given by the Government of India and the lease granted only in November 1993, when Mr. Kamal Nath was the Minister in charge. "Surely it cannot be a coincidence". (Kuldip Singh, J.)
20. Noted: The Court took notice of the news item because the facts, if true, would be a serious act of environmental degradation by the Motel. In September 1995 the swollen Beas engulfed part of the Motel's land. (Kuldip Singh, J.)
21. Noted: The news item said earth-movers and bulldozers were used to divert the river to create a new channel, and three private companies were engaged. The main allegation was that the river was being diverted to save the Motel. (Kuldip Singh, J.)
22. Noted: The Motel's counter affidavit says works were dredging to give depth to the river. It says wire crates on both banks strengthen the banks against erosion. It says about 200 metres of crates on the left bank protect the hillside villages of Rangri, Chakki and Naggar. (Kuldip Singh, J.)
23. Noted: The Motel says boulders and rubble obstructed the flow after floods and dredging was a concern shared with the Baragran Bihal Panchayat. It says Baragran Bihal villagers, on the right bank, were affected by floods. (Kuldip Singh, J.)
24. Noted: The Motel's additional affidavit says reclamation was needed to protect its leased land, and protection of the forest land would benefit the local community. (Kuldip Singh, J.)
25. Noted: Mr. G.D. Khachi, Under Secretary (Revenue), says 21-09 bighas was encroached, and the Government got it vacated. The Chief Secretary visited on 21-22 July 1992 and inferred that the Motel still used it. (Kuldip Singh, J.)
26. Noted: The State then leased 27-12 bighas including the encroached land, under a letter dated 5 April 1994, with the Government of India's approval of 24 November 1993, to protect the earlier leased land. The Government learned of the development from the press. (Kuldip Singh, J.)
27. Noted: C.P. Sujaya's counter affidavit admits that the Motel used heavy machinery to reclaim land and divert or channelise the river to its pre-1995 course. It says the flow was changed by dredging and wire-crated embankments over about 1000 metres. (Kuldip Singh, J.)
28. Noted: The affidavit says the hill at Rangri and Chakki is fragile. It fears that river flow along the foot of the hills may hasten landslides. It says the Motel put wire-crated embankments of about 90 metres on the left bank and 270 metres on the right bank. (Kuldip Singh, J.)
29. Noted: The report at item 4.2 lists the Motel's works before the 1995 floods. These are 8 studs of concrete blocks, a stepped wall (180 metres in the report, 150 metres in the Court's findings), a high bar at the spill channel entry and 8 studs in front of the resort. (Kuldip Singh, J.)
30. Noted: The report says the works of 1993 were bank protection works not meant to change the river's course. A medium flood in 1994 caused no appreciable damage. (Kuldip Singh, J.)
31. Noted: The report describes the events near the Motel during the 1995 flood and the steps taken after. A big slip on the left bank about 200 metres upstream on 4 September 1995 partly blocked the main channel. It probably triggered the major change of course into the spill channel, and washed away the club building, plantation and 1993 works. (Kuldip Singh, J.)
32. Noted: Damage occurred on the right bank too, but the buildings of the main resort remained more or less intact. A large hotel and other buildings on the right bank, adjacent to the Motel, were also washed away. Heavy debris was deposited, and the studs and bar at the upstream end of the spill channel were washed away. (Kuldip Singh, J.)
33. Noted: After the flood the Motel dredged the left side channel, and made wire crate revetments to direct the flow through it. It also put 190 metres of wire crates as bank protection. (Kuldip Singh, J.)
34. Noted: The report says the left bank has steep unstable slopes that may slip and block the channel again. Dredging aimed at protecting the Motel should keep high flow away from both banks in moderate floods. (Kuldip Singh, J.)
35. Noted: The report says the river is in a highly unstable regime, and its behaviour in another high flood is difficult to predict. (Kuldip Singh, J.)
36. Noted: The inspecting team's conclusions are these (items 6.8 to 6.14 of the report). (Kuldip Singh, J.)
    • The relief channel is government land. Construction to block the natural flow is illegal, and no permission was taken.
    • The 1994 lease clause for protection of land should not have been used by blocking the spill channel.
    • The relief channel is the shortest path between two bends. A future slip on the left bank may cause floods on the right bank, where the 1994 leasehold land lies.
    • No new construction or economic activity should be allowed in this flood-prone stretch, except flood protection.
    • The 1994 land lies on the flood plain between the main and relief channels, and may be deleased. The Forest Department should take care of the plantation after flood control measures.
    • Even if land slips occur, the impact is local. Long-term flood control planning for the Kullu Valley is needed with expert advice.

Findings on the facts

1. Held: On the counter affidavits, the Board's report and other material, these facts are established. (Kuldip Singh, J.)
   • The Motel's lease-hold area is part of protected forest land owned by the State Government.
   • The 27 bighas 12 biswas leased on 11 April 1994 is on the right bank and is separated from the Motel by a natural relief or spill channel.
   • A wooden bridge over the spill channel connects the two areas.
   • 22.2 bighas of the 1994 land was encroached by the Motel in 1988-89.
   • Before the 1995 floods, the Motel had built 8 studs of concrete blocks, a 150 metre stepped wall, a 2 metre high bar at the spill channel entry, and 8 more studs on the right bank.
   • After the 1995 floods, the Motel dredged the left channel, made wire crate revetments, and built 190 metres of wire crates upstream, to curtail water entering the spill channel.
   • Dredging was done by blasting big boulders, and the dredged material was piled on the banks.
   • The mouth of the natural relief channel has been blocked by wire crates and boulders.
   • The work was not done under expert advice.
   • The work divided the main stream into two, one going very near the left bank, so a fresh land slip cannot be ruled out.
2. Noted: The report says the relief channel is part of the river's natural flow, so no construction could block it. No permission was sought. The lease clause on protection did not let the Motel block the spill channel. (Kuldip Singh, J.)
3. Noted: The report recommends that the 1994 land, on the flood plain, be released so the Forest Department can preserve the ecologically fragile area. (Kuldip Singh, J.)
4. Noted: Mr. Harish Salve contended that the works protected the leasehold land and that the Divisional Forest Officer's letter of 12 January 1993 permitted them. (Kuldip Singh, J.)
5. Held: The Court does not agree. Much before that letter the Motel had made constructions on the surrounding area and river banks. Its own letter of 30 August 1989 admits it. The banjar area was the adjoining 22.2 bighas, which was not on lease then. (Kuldip Singh, J.)
6. Held: The Motel's admissions, the officers' affidavits and the report show that by illegal constructions and callous interference with the natural flow of the river Beas it degraded the environment. It interfered with the natural flow by trying to block the natural relief or spill channel. (Kuldip Singh, J.)

The river and its surroundings

1. Noted: The leased forest lands are on the bank of the Beas, a young and dynamic river. It is fast flowing and carries large boulders in floods. Boulders deposited in the channel block the flow and the river changes course, swinging from one bank to the other. (Kuldip Singh, J.)
2. Noted: The right bank, where the Motel stands, is mostly forest. The left bank has plateaus with steep banks, and fruit orchards and cereals. (Kuldip Singh, J.)
3. Held: The area is ecologically fragile and full of scenic beauty. It should not have been permitted to be converted into private ownership and for commercial gains. (Kuldip Singh, J.)
4. Noted: The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the law of the land. (Kuldip Singh, J.)
5. Noted: David B. Hunter, in the Harvard Environmental Law Review, Vol. 12, 1988, page 311, says the world is finite. Human activity finds in the natural world its external limits. Technology can only postpone or disguise those constraints. (Kuldip Singh, J.)
6. Noted: Professor Barbara Ward wrote that we cannot cheat on DNA or photosynthesis, and to say we do not care is to say we choose death. (Kuldip Singh, J.)
7. Noted: Hunter adds that ecologists see laws of nature as restricting our freedom in the same way our laws do, but laws of nature cannot be changed by legislative fiat. Resources such as wetlands and riparian forests can no longer be destroyed without enormous long-term effects. (Kuldip Singh, J.)

The public trust doctrine

1. Noted: The ancient Roman Empire developed the Doctrine of the Public Trust. It rested on the idea that common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the public. (Kuldip Singh, J.)
2. Noted: Today's concerns about the environment bear a close conceptual relationship to this doctrine. Under Roman law these resources were owned by no one (res nullius) or by everyone in common (res communis). (Kuldip Singh, J.)
3. Noted: Under English common law the Sovereign could own these resources, but the ownership was limited. The Crown could not grant them to private owners if that interfered with public interests in navigation or fishing. Such resources were held in trust for the public. (Kuldip Singh, J.)
4. Noted: Joseph L. Sax, in the Michigan Law Review (Vol. 68, Part 1), gives the history. Certain interests were preserved for the public, and it was never clear whether the public could enforce them against a recalcitrant government. (Kuldip Singh, J.)
5. Held: The doctrine rests on the principle that resources such as air, sea, waters and forests are of such great importance to the people as a whole that it is wholly unjustified to make them subject to private ownership. (Kuldip Singh, J.)
6. Held: These resources are a gift of nature and should be freely available to everyone, whatever their status. The doctrine requires the Government to protect them for the general public, and not to permit their use for private ownership or commercial purposes. (Kuldip Singh, J.)
7. Noted: Professor Sax says the doctrine imposes three restrictions on governmental authority. The property must be held available for use by the general public. It may not be sold, even for a fair cash equivalent. It must be maintained in particular types of uses. (Kuldip Singh, J.)
8. Noted: The American law rests on Illinois Central R.R. Company v. Illinois (146 US 687). In 1869 Illinois granted a mile strip of submerged land along Lake Michigan to the railroad, and in 1873 repealed the grant. The State sued to quiet title. (Kuldip Singh, J.)
9. Noted: The US Supreme Court held that the State's title was held in trust for the people, to enjoy navigation, commerce and fishing free from private interference. The State could not abdicate that trust. The source prints the year as 1982. (Kuldip Singh, J.)
10. Noted: Professor Sax says the case states the central thought of public trust litigation. When a State holds a resource for free use of the public, a court looks with skepticism on conduct that moves it to restricted uses or subjects public uses to private interests. (Kuldip Singh, J.)
11. Noted: In Gould v. Greylock Reservation Commission (350 Mass 410, 1966), citizens had promoted Mount Greylock as a public park in 1888. The State acquired about 9000 acres. In 1953 a statute created an Authority to build an aerial tramway and lease part of the Reservation. (Kuldip Singh, J.)
12. Noted: Five citizens sued as beneficiaries of the public trust. The Massachusetts court held the lease and management agreement invalid as beyond the statutory grant, given the profit sharing and commercial nature of the project. (Kuldip Singh, J.)
13. Noted: Sax comments that commercial interests had obtained advantages that infringed directly on public uses. The court also faced projects with some public justification, such as a highway taking parkland or filling a wetland. (Kuldip Singh, J.)
14. Noted: Sacco v. Department of Public Works (352 Mass 670) restrained the Department from filling a great pond to relocate a State highway, as the statutory power was inadequate. It said improvement of public lands means preserving them for recreation. (Kuldip Singh, J.)
15. Noted: Robbins v. Department of Public Works (244 N.E. 2d 577) restrained the Department from acquiring Fowl Meadows, wetlands of natural beauty, for highway use. (Kuldip Singh, J.)
16. Noted: Professor Sax refers to Wisconsin cases: Priewe v. Wisconsin State Land and Improvement Company (93 Wis 534, 1896), Crawford County Levee and Drainage District No. 1 (182 Wis 404), City of Milwaukee v. State (193 Wis 423) and State v. Public Service Commission (275 Wis 112). He says Wisconsin has made a conscientious effort to work out a reasonable meaning. (Kuldip Singh, J.)
17. Noted: Sax says public trust techniques are not limited to conventional interests or to disposal of public property. They apply wherever governmental regulation is in question, and to controversies on air pollution, pesticides, utility rights of way, and strip mining or wetland filling on private lands under permits. (Kuldip Singh, J.)
18. Noted: In National Audubon Society v. Superior Court of Alpine County (33 Cal 3d 419), the Mono Lake case, Mono Lake is a saline lake with brine shrimp, nesting birds and a gull colony. In 1940 the Division of Water Resources let the city of Los Angeles appropriate the flow of 4 of the 5 streams flowing into it. (Kuldip Singh, J.)
19. Noted: The lake level dropped, the gulls were abandoning it and its scenic beauty and ecological values were imperilled. Environmentalists sued on the public trust doctrine, and the case reached the California Supreme Court on a Federal trial Judge's request. (Kuldip Singh, J.)
20. Noted: The California Court cited the Institutes of Justinian (2.1.1): by the law of nature the air, running water, the sea and the shores are common to mankind. From Roman law the English common law evolved the public trust. (Kuldip Singh, J.)
21. Noted: It said the objective of the trust has evolved with changing public values. Marks v. Whitney (6 Cal 3d 251) held that the traditional uses of navigation, commerce and fishing did not limit the public interest. Preserving tidelands in their natural state as ecological units is among the public uses. (Kuldip Singh, J.)
22. Noted: Mono Lake is a navigable waterway, and it supports a brine shrimp industry. The main values the plaintiffs sought to protect were recreational and ecological. Protection of these values is among the purposes of the public trust. (Kuldip Singh, J.)
23. Noted: The public trust is more than an affirmation of state power to use property for public purposes. It is an affirmation of the State's duty to protect the people's common heritage of streams, lakes, marshlands and tidelands. (Kuldip Singh, J.)
24. Noted: The California Court concluded that the State has an affirmative duty to take the public trust into account in planning and allocating water resources, and to protect trust uses whenever feasible. It cited United Plainsmen v. N.D. State Water Cons. Comm'n (247 N.W. 2d 457). (Kuldip Singh, J.)
25. Noted: The State may have to approve appropriations despite foreseeable harm. But as trustee it must consider the effect on the public trust and preserve the uses the trust protects, so far as consistent with the public interest. (Kuldip Singh, J.)
26. Noted: The California Court held that the plaintiffs could rely on the public trust doctrine in seeking reconsideration of the allocation of the Mono basin waters. (Kuldip Singh, J.)
27. Noted: The Court said the Mono Lake observation, that protecting ecological values is among the purposes of the public trust, may support an argument that ecology and environment protection is a relevant factor in deciding which lands, waters or airs the doctrine protects. American courts are finally beginning to adopt this reasoning and to extend the trust to new types of lands and waters. (Kuldip Singh, J.)
28. Held: Under English common law the doctrine extended only to traditional uses such as navigation, commerce and fishing. But American courts have expanded it in recent cases. Mono Lake shows the concern to protect ecologically important lands, such as fresh water, wetlands and riparian forests. (Kuldip Singh, J.)
29. Noted: Phillips Petroleum Co. v. Mississippi (108 S.Ct. 791, 1988) upheld Mississippi's extension of the doctrine to lands under non-navigable tidal areas. The majority used ecological concepts, not commercial ones, to identify such lands. The Court says Phillips Petroleum expanded the doctrine to identify tide lands on ecological concepts and not on commercial considerations. (Kuldip Singh, J.)
30. Held: "We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources". (Kuldip Singh, J.)
31. Held: Our legal system, based on English common law, includes the public trust doctrine as part of its jurisprudence. "The State is the trustee of all natural resources which are by nature meant for public use and enjoyment". (Kuldip Singh, J.)
32. Held: The public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as trustee has a legal duty to protect the natural resources. Resources meant for public use cannot be converted into private ownership. (Kuldip Singh, J.)
33. Noted: The case illustrates the classic struggle between those who would preserve rivers, forests, parks and open land in their pristine purity and administrators who must encroach on open land under changing needs. (Kuldip Singh, J.)
34. Held: The resolution of that conflict in any given case is for the legislature and not the courts. Where Parliament or a State Legislature has made a law, the courts can determine legislative intent in their powers of judicial review. (Kuldip Singh, J.)
35. Held: But in the absence of legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or commercial use. Their aesthetic use and pristine glory cannot be eroded for private or commercial use. The exception is where courts find it necessary, in good faith, for the public good to encroach on them. (Kuldip Singh, J.)
36. Held: A large area of the bank of the Beas, part of protected forest, was leased purely for commercial purposes to the Motel. The Himachal Pradesh Government committed a "patent breach of public trust" by leasing the ecologically fragile land. (Kuldip Singh, J.)
37. Held: Both lease transactions are in patent breach of the trust. The 1994 lease was virtually of land forming part of the river-bed, and the Board itself recommended deleasing it. (Kuldip Singh, J.)

Precautionary principle and polluter pays

1. Noted: In Vellore Citizens Welfare Forum v. Union of India (JT 1996 (7) SC 375), this Court explained the precautionary principle and the polluter pays principle. It drew salient principles of sustainable development from the Brundtland Report and other documents. (Kuldip Singh, J.)
2. Noted: Vellore said that the precautionary principle and the polluter pays principle are, in its view, essential features of sustainable development. (Kuldip Singh, J.)
3. Noted: Those principles include inter-generational equity, use and conservation of natural resources, environmental protection, the precautionary principle, polluter pays, the obligation to assist and cooperate, eradication of poverty and financial assistance to developing countries. (Kuldip Singh, J.)
4. Noted: Vellore said the precautionary principle means three things. State measures must anticipate, prevent and attack the causes of environmental degradation. Lack of scientific certainty is no reason to postpone measures where serious and irreversible damage threatens. The onus of proof is on the actor or developer to show that the action is environmentally benign. (Kuldip Singh, J.)
5. Noted: Vellore says the polluter pays principle was held sound in Indian Council for Enviro-Legal Action v. Union of India (JT 1996 (2) 196). The principle should be simple, practical and suited to conditions in this country. (Kuldip Singh, J.)
6. Noted: There the Court ruled that a person carrying on a hazardous or inherently dangerous activity is liable to make good the loss, whether or not he took reasonable care. Polluting industries are absolutely liable to compensate villagers, the soil and underground water, and must remove sludge and other pollutants. (Kuldip Singh, J.)
7. Noted: As interpreted, polluter pays means that absolute liability for harm to the environment extends to compensating victims and to the cost of restoring the damaged environment, as part of sustainable development. The precautionary principle and polluter pays have been accepted as part of the law of the land. (Kuldip Singh, J.)
8. Held: "It is thus settled by this Court that one who pollutes the environmental must pay to reverse the damage caused by his acts". (Kuldip Singh, J.)

Authorities

• Names as spelt in the source text: Sacco v. Development of Public Works (for Sacco v. Department of Public Works); Prieweys. WisconSin State Land and Improvement Company (for Priewe v. Wisconsin State Land and Improvement Company); and Crawford County Lever and Drainage district (for Crawford County Levee and Drainage District).
• Illinois Central R.R. Company v. Illinois (146 US 687): the State holds title to submerged lands in trust for the people and cannot abdicate it; relied on (Kuldip Singh, J.).
• Gould v. Greylock Reservation Commission (350 Mass 410 (1966)), Sacco v. Department of Public Works (352 Mass 670) and Robbins v. Department of Public Works (244 N.E. 2d 577): Massachusetts cases restraining commercial or highway use of public land; relied on (Kuldip Singh, J.).
• Priewe v. Wisconsin State Land and Improvement Company (93 Wis 534 (1896)), Crawford County Levee and Drainage District No. 1 (182 Wis 404), City of Milwaukee v. State (193 Wis 423) and State v. Public Service Commission (275 Wis 112): Wisconsin cases cited by Professor Sax (Kuldip Singh, J.).
• National Audubon Society v. Superior Court of Alpine County (33 Cal 3d 419): the Mono Lake case; the public trust includes ecological values; relied on (Kuldip Singh, J.). It cites Marks v. Whitney (6 Cal 3d 251) and United Plainsmen v. N.D. State Water Cons. Comm'n (247 N.W. 2d 457).
• Phillips Petroleum Co. v. Mississippi (108 S.Ct. 791 (1988)): extension of the doctrine on ecological concepts (Kuldip Singh, J.).
• Vellore Citizens Welfare Forum v. Union of India (JT 1996 (7) SC 375): precautionary principle and polluter pays; followed (Kuldip Singh, J.).
• Indian Council for Enviro-Legal Action v. Union of India (JT 1996 (2) 196): polluter pays; absolute liability for hazardous activity; followed (Kuldip Singh, J.).
• Secondary sources referred to: David B. Hunter, An ecological perspective on property (Harvard Environmental Law Review, Vol. 12, 1988, p. 311); Professor Barbara Ward; Joseph L. Sax, Public Trust Doctrine in natural resource law: effective judicial intervention (Michigan Law Review, Vol. 68, Part 1); the Institutes of Justinian (2.1.1); the Brundtland Report (Kuldip Singh, J.).

Provisions mentioned

• Section 2, Forest (Conservation) Act, 1980: the Central Government's prior approval is needed to use forest land for non-forest purposes; the Ministry gave it on 24 November 1993. The Motel's letter says use of forest land by a private agency needs matching compensatory land.
• Lease deed dated 29 September 1972 (clauses 6 and 7), lease deed of 29 September 1981 and lease deed of 11 April 1994: the leases of the Motel's land and of the 27 bighas 12 biswas forest land.
• Public trust doctrine: the State holds natural resources in trust for the public, and this is part of the law of the land under direction 1.
• Precautionary principle and polluter pays principle: part of the law of the land, as stated in Vellore Citizens Welfare Forum.

Judgement

1. "The public trust doctrine, as discussed by us in this judgment is a part of the law of the land" (Kuldip Singh, J.).
2. The prior approval of the Government of India, Ministry of Environment and Forests, dated 24 November 1993, and the lease deed dated 11 April 1994 in favour of the Motel are quashed. The lease of 27 bighas 12 biswas is cancelled and set aside. The Himachal Pradesh Government shall take over the area and restore it to its original natural condition (Kuldip Singh, J.).
3. The Motel shall pay compensation by way of cost for restitution of the environment and ecology. The pollution caused by its constructions in the river bed and banks has to be removed and reversed (Kuldip Singh, J.).
4. NEERI, through its Director, is directed to inspect the area if necessary and assess the cost of reversing the damage. It may take the Board's report into consideration (Kuldip Singh, J.).
5. The Motel, through its management, shall show cause why pollution fine in addition should not be imposed (Kuldip Singh, J.).
6. The Motel shall construct a boundary wall at a distance of not more than 4 metres from the cluster of rooms towards the river basin. The wall shall be on the area covered by the lease dated 29 September 1981. The Motel shall not encroach, cover or utilise any part of the river basin. The river bank and basin shall be left open for public use (Kuldip Singh, J.).
7. The Motel shall not discharge untreated effluent into the river. The Himachal Pradesh Pollution Control Board shall inspect the Motel's pollution control devices and take action in accordance with law if the effluent does not meet the prescribed standards (Kuldip Singh, J.).
8. The Himachal Pradesh Pollution Control Board shall not permit discharge of untreated effluent into the Beas. It shall inspect all hotels, institutions and factories in the Kullu-Manali area and act in accordance with law where they discharge untreated effluent or waste into the river (Kuldip Singh, J.).
9. The Motel shall show cause on 18 December 1996 why pollution fine and damages should not be imposed. NEERI shall send its report by 17 December 1996. The matter is to be listed on 18 December 1996 (Kuldip Singh, J.).
10. The writ petition is disposed of except for the limited purpose indicated above (Kuldip Singh, J.).

Legal Principle / Ratio

The public trust doctrine is part of Indian law. The State holds natural resources meant for public use, such as running waters, forests and ecologically fragile lands, as trustee for the public. It cannot convert them into private ownership or commercial use. The Court saw no reason why the doctrine should not include all ecosystems operating in natural resources. The exception is where courts find it necessary, in good faith, in the public interest to allow encroachment. One who pollutes must pay to reverse the damage.

Critical Analysis

Analysis based on the judgment text.

The Court leaves the Minister's role as an inference. It notes that clearance came in November 1993 when Mr. Kamal Nath was the Minister in charge, and says it cannot be a coincidence. It also records the affidavit that he did not deal with the file, and it does not decide any personal responsibility.

The Court says conflicts over land use are for the legislature. It also says the executive cannot abdicate trust resources absent legislation. It leaves a narrow exception where courts find it necessary, in good faith, in the public interest to allow encroachment. The judgment does not describe how that exception would apply.

The final relief is partly left for a later hearing. The Court fixes some directions but leaves the amount of compensation and any pollution fine to NEERI's assessment and a show cause hearing on 18 December 1996.

Significance

• The Court adopted the public trust doctrine as part of the law of the land.
• It extended the doctrine beyond navigation, commerce and fishing to all ecosystems operating in natural resources.
• It cancelled a lease of ecologically fragile riverbank forest land given for commercial use.
• It applied the polluter pays and precautionary principles to require the Motel to pay for restoring the environment.
• It recorded that the State, and not only the private party, can be in breach of the trust.

Exam-Important Points

• Facts in one line: Span Motels diverted and blocked the Beas to protect its resort, after a Minister's family-owned company got a second forest lease. The Court took notice of a news item.
• Rule: the State is trustee of natural resources meant for public use, and cannot convert them to private ownership or commercial use.
• Trap: the doctrine began in Roman and English law for navigation and fishing. The Court extended it to all ecosystems.
• Trap: the State, not just the Motel, was held to have committed a patent breach of public trust by granting the leases.
• Polluter pays: one who pollutes must pay to reverse the damage. NEERI was to assess the cost.
• Directions: lease quashed and cancelled; area restored; compensation; boundary wall within 4 metres of the rooms; no untreated effluent; show cause on 18 December 1996.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.