By Apurva Rathee, Advocate

Statement Of Facts:

  1. Government land measuring 40 bighas 3 biswas situated along side Kullu-Manali Road on the bank of river Beas was granted to the Span Motels Private Ltd. (SMPL) by lease dated 29-09-1972 for a period of 99 years with effect from 1-10-1972 to 1-10-2071.
  2. The lessee was granted permission to enter and occupy the said area for purpose of putting up a motel and for installing ancillaries in due course as may be subsequently approved by the lessor.
  3. The said deed mentioned that the lessee shall not dig deep pits of trenches in the said land, which may lead to the danger of erosion. In the event of said land being required by Lessor for any other purpose, whatsoever the lessor will be entitled to terminate this lease at any time by giving six months notice in writing to the lessee.[1]
  4. The Motel was constructed having 8 dwelling units of 3 rooms each. The actual distance between the rooms and the river being 40 metres. As the rooms were constructed at a higher level and the distance between the rooms and the river was appropriate, no threat was posed due to floods.
  5. In 1981, the management of SMPL was taken over by Mr. Kamal Nath’s family.
  6. On dated 30-08-1989, a letter was written by the Motel to the Divisional Forest Officer, Kullu stating that they have built “extensive stone, cemented and wire-mesh-crated embankments” all along the river bank.
  7. As a result of this the Motel had encroached upon an additional area of 22.2 bighas of ‘banjar’ (Class III) forest land running contiguous and adjacent to the land leased to the Motel.
  8. In exchange of the said land, the Motel offered to submit to the Government 28 bighas and 13 biswas of their private agricultural land located at Village Majhach, Manali.
  9. The Motel wrote another letter on 9-07-1991 that they had taken steps to protect their property by constructing embankments. To this the Divisional Forest Officer, Kullu sent a reply allowing the Motel to take steps necessary to protect their property from floods and soil erosion but on the condition that no funds would be paid to them by the Forest Department and also that the ownership of the property would remain with the Department.[2]
  10. However, much before the said permission of the Divisional Forest Officer, the Motel had built extensive embankments all along the river bank.
  11. The Motel on 21-06-1993 wrote a letter to the Chief Secretary, Himachal Pradesh stating that the adjoining forest land measuring 22 bighas 3 biswas had been reclaimed by the Motel by making an embankment and filing the land from the river bed at its own expense.[3]
  12. The Government of India, Ministry of Environment and Forests by the letter dated November 24, 1993, addressed to the Secretary, Forest, Government of Himachal Pradesh, Shimla conveyed its prior approval in terms of Section 2 of the Forest (Conservation) Act, 1980 for leasing to the Motel 27 bighas and 12 biswas of forest land adjoining to the land already on lease with the Motel. A lease deed dated April 11, 1994 regarding the said land was executed between the Himachal Government and the Motel.[4]
  13. During this time, Mr. Kamal Nath was the Minister-in-charge, Department of Environment and Forests.
  14. In September, 1995 there were massive floods in the river Beas and the swollen Beas engulfed some part of the land in possession of the Motel.
  15. On 25-2-1999 a news item appeared in the “Indian Express” under the caption- “Kamal Nath dares the mighty Beas to keep his dreams afloat. The news item brought to light that Span Motels Pvt. Ltd. in which the family of Kamal Nath had direct link had built a club at the bank of river Beas and had encroached land which was later regularized when Kamal Nath was the Minister. It was further stated that the Motel used earth movers and bull-dozers to turn the course of the river. The effort on the part of the Motel was to create a new channel by diverting the river flow.[5]
  16. The Supreme Court took notice of the above mentioned news item and by an order dated 6-05-1996 directed the Central Pollution Control Board to inspect the area in possession of the Motel and file a report in this regard. Meanwhile, the court ordered that any construction work being carried out by the Motel which might interfere with the flow of the river be stopped.
  17. Report of the Central Pollution Control Board:[6]

  • The forest land measuring 27 bighas and 12 biswas leased to the motel by the lease-deed dated 11-04-1994 is situated on the right bank of the river and is separated from the motel by a natural relief/spill channel of the river.
  • A big slip occurred on the hill side on the left bank on September 4, 1995. This presumably triggered the major change of course in the river diverting the major portion of the flow into spill channel towards the right and almost over the entire land area of the club island. The entire club building and the plantation as well as the protection works build in 1993 were washed away.
  • After the passage of 1995 flood, SMPL took further steps to protect their property. The left side channel (the main channel), which had become less active, has been dredged by blasting big boulders and increasing its capacity. Wire crate revetments on both banks of this channel have been made to direct the flow through this channel.
  • The mouth of the natural relief/spill channel has been blocked by construction of wire crate and dumping of boulders. The area has almost been levelled.
  • SMPL has not consulted any Flood Control Expert as it appeared from the way of construction of the wire crate. No proper revetment was done while crating.
  • In the process of channelizing the main course, the main stream has been divided into two, one of which goes very near to the left bank because of which fresh land slip in future is not ruled out.
  • The relief channel is supposed to be the government land. Construction of any sort to block the natural flow of water is illegal.
  • No new construction and no economic activity should be allowed in this flood prone area except flood protection measures.
  • Since newly acquired land of M/s. SMPL is located on the flood plain, sandwiched between the main channel and the relief/spill channel, the land may be deleased and the Forest Department take care of plantation in the area after adequate flood control measures.
  • The river is presently in a highly unstable regime after 1995 extra-ordinary floods. A long-term planning for flood control in the Kullu Valley needs to be taken up immediately with the advice of an organisation having expertise in the field.

 Identification of Issues:

  1. Whether or not Mr. Kamal Nath has been rightly inducted as the Respondent in the writ petition?
  2. Whether or not the construction activity done by M/s SMPL was done with a view to protect the lease hold land from floods?
  3. Whether or not the Public trust Doctrine is a part of the Indian Legal system?

Arguments Advanced:

On Behalf of the Respondent:

  1. Regarding Issue 1
  • Kamal Nath filed a counter-affidavit on 8-06-1996 stating that he has been wrongly arrayed as a respondent in the above petition in-as-much as he has no right, title or interest in the property known as ‘Span Resorts’ owned by ‘Span Motels Private Limited’.
  • On behalf of Span Motels Private Limited, Mr. Banwari Lal Mathur also made a similar averment that Mr. Kamal Nath had no right, title or interest in the property of SMPL.
  • The facts, however, clearly show that almost all the shares in the Motel were owned by the family of Mr. Kamal Nath.
  • The Court therefore rejected this averment that Mr. Nath had no interest in the property of SMPL.[7]
  • Moreover, the Court also took into account the fact that 27 bighas and 12 biswas of the forest land was leased to the Motel when Mr. Kamal Nath was the Minister of Environment and Forests.
  1. Regarding Issue 2
  • Harish Salve, advocate of the Respondent contended that the construction activity was done with a view to protect the lease hold from floods.
  • The Divisional Forest Officer by letter dated 12-1-1993 permitted the Motel to carry out the necessary works subject to the conditions that the department would not be liable to pay any amount incurred for the said purposes.
  • The Court rejected this contention on the ground that much before the letter of the Divisional Forest Officer, the Motel had made various constructions on the surrounding areas and on the banks of the river.[8]

Judgment of the Supreme Court:

      The Hon’ble Supreme Court of India took notice of a news paper article that appeared in the Indian Express on 25-02-1996. The writ jurisdiction of the Supreme Court was invoked under Article 32 of the Constitution of India.

      The Hon’ble Bench of the Supreme Court that heard the petition comprised of Kuldip Singh and S. Saghir Ahmad, JJ. The ‘iconic’ judgment was delivered by Kuldip Singh, J.

Public Trust Doctrine:

      The Hon’ble Supreme Court in the present case went beyond the conventional concepts of Environmental Law in India and gave the Indian Jurisprudence the Doctrine of Public Trust. The Court referred to a number of cases from legal systems of different countries.

  1. The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land.
  2. A major ecological tenet is that the world is finite. The earth can support only so many people and only so much human activity before limits are reached. This lesson was driven home by the oil crisis of the 1970’s as well as the pesticide scare of the 1960’s. The current deterioration of the ozone layer is another vivid example of the potentially catastrophic effects posed by our disregard of the environmental limits to economic growth.[9]
  3. The environment has proven malleable and to a large extent still is. But there is a limit to this malleability and certain types of ecologically important resources – for example, wetlands and riparian forests can no longer be destroyed without enormous long-term effects on environmental and therefore social stability.
  4. The ancient Roman Empire developed a legal theory known as the “Doctrine of the Public Trust” founded on the ideas that certain common properties such as rivers, sea-shore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Under the Roman Law these resources were either owned by no one (Res Nullious) or by everyone in common (Res Communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation of fishing.
  5. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership.
  6. The said resources being a gift of nature. They should be made freely available to everyone irrespective of the status in life.
  7. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit use for private ownership or commercial purposes.
  8. Three types of restrictions on governmental authority are often thought to be imposed by the public trust:[10]
  • the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
  • the property may not be sold, even for a fair cash equivalent; and
  • the property must be maintained for particular types of uses.[11]
  1. The Apex Court then referred to the American law on the subject as the Public trust doctrine in the modern times has been revived and applied extensively by the American Courts. The United States Supreme Court in Illinois Central R.R. Company v. Illinois[12] held that the submerged lands along the shores of Lake Michigan was a title held in trust by the State – for the people. The abdication of the general control of the State over lands in dispute was not consistent with the exercise of the trust which required the Government of the State to preserve such waters for the use of the public.
  2. In Could v. Greylock Reservation Commission, [13] the law upheld was that State should not subordinate a public park, etc. to the demands of private investors.
  3. In Sacco v. Development of Public Works,[14] The Massachusetts Court restrained the Department of Public Works from filling a great pond as part of its plan to relocate part of State Highway.
  4. Professor Sax states that the scope of the public trust doctrine need not be limited either to these few conventional interests or to questions of disposition of public properties. Public trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals. Thus, it seems that the doctrine would equally appropriate in controversies involving air pollution, the dissemination of pesticides, and strip mining or wetland filling on private lands.
  5. The Supreme Court of California in National Audubon Society v. Superior Court of Alpine County,[15] the case is popularly known as “the Mono lake case”. Mono lake is the second largest lake in California, the lake is saline. It contains no fish but support a large population of brine shrimp which feed vast numbers of nesting and migrating birds. In 1940, the Division of Water Resources granted the Department of Water and Power of the city of Los Angeles a permit to appropriate virtually the entire flow of 4 of the 5 streams flowing into the lake. As a result of these diversions, the level of the lake dropped, the surface area diminished, the gulls were abandoning the lake and the scenic beauty and the ecological values of the Mono Lake were imperiled. The plaintiff environmentalist using the public trust doctrine filed a law suit against Los Angeles Water Diversions. The case eventually came to the California Supreme Court. The Court explained the concept of public trust doctrine in the following words: “By the law of nature these things are common to mankind – the air, running water, the sea and consequently the shores of the sea.”
  6. The Court explained that the Mono Lake is a navigable waterway. It supports a small local industry which harvest brine shrimp for sale as fish food, which endeavour probably qualities the lake as a “fishery” under the traditional public trust cases. The principal values plaintiffs seek to protect, however, are recreational and ecological – the scenic views of the lake and its shore, the purity of the air and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney,[16] it is clear that protection of these values is among the purposes of the public trust.
  7. The Supreme Court of California, inter alia, reached the conclusion that the state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.
  8. As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust.[17]

Public Trust Doctrine read into the Indian Legal System:

  1. The Hon’ble Supreme Court of India on the basis of the various authorities stated that as the Indian legal system is based on English Common Law it includes the public trust doctrine as part of its jurisprudence.
  2. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment.
  3. Public at large is beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands.
  4. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
  5. The scope of the doctrine is now widened and it covers within its ambit the ecological values. It should include all ecosystems operating in our world.
  6. There is a struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate to change.
  7. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislature the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use.
  8. The aesthetic use and the prestine glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary in good faith, for the public good and in public interest to encroach upon the said resources.[18]

Application of the Public Trust Doctrine to the Facts of the Case:

  1. Beas is a young and dynamic river. It is fast-flowing, carrying large boulders, at the time of flood. When water velocity is not sufficient to carry the boulders, those are deposited in the channel often blocking the flow of water. Under such circumstances the river stream changes its course, remaining within the valley but swinging from one bank to the other. The area being ecologically fragile and full of scenic-beauty should not have been permitted to be converted into private ownership and for commercial gains.[19]
  2. Applying the law to the facts, the Supreme Court held that a large area of the bank of river Beas which is part of protected forest has been given on a lease purely for commercial purposes to M/s SMPL.
  3. The Court further held that they have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. Both the lease – transactions are in patent breach of the trust held by the State Government.
  4. The second lease granted in the year 1994 was virtually of the land which is a part of river-bed.[20]
  5. Referring to Vellore Citizens Welfare Forum v. Union of India,[21] and Indian Council for Enviro-Legal Action v. Union of India,[22] The Court observed, that it is settled by this Court that one who pollutes the environment must pay to reverse the damage caused by his acts.[23]

Directions of the Supreme Court:

  1. The public trust doctrine, as discussed in this judgment is a part of the law of the land.
  2. The prior approval granted by the Government of India, Ministry of Environment and Forest by the letter dated 24-11-1993 and the lease-deed dated April 11, 1994 in favour of the Motel are quashed.
  3. The lease granted to the Motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside.
  4. The Himachal Pradesh Government shall take over the area and restore it to its original-natural conditions.
  5. The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by various constructions made by the Motel in the river bed and the banks on the river Beas has to be removed and reversed.
  6. The Supreme Court directed NEERI through its Director to inspect the area if necessary, and give an assessment of the cost which is likely to be incurred for reversing the damage caused by the Motel to the environment and ecology of the area. NEERI may take into consideration the report by the Central Pollution Control Board in this respect.
  7. The Motel through its management shall show cause why pollution fine in addition be not imposed on the Motel.
  8. The Motel shall construct a boundary wall at a distance of not more than 4 meters from the cluster of rooms (main building of the Motel) towards the river basin. The boundary wall shall separate the Motel building from the river basin.
  9. The Motel shall not discharge untreated effluent into the river. The Himachal Pradesh Pollution Control Board was directed to inspect the pollution control devices/treatment plants set up by the Motel. The Himachal Pradesh Pollution Control Board shall not permit the discharge of untreated effluent into river Beas.[24]
  10. The writ petition is disposed of except for limited purpose indicated above.[25]

[1] Para 5 of the Judgment

[2] Para 7-8 of the Judgment

[3] Para 9 of the Judgment

[4] Para 11 of the Judgment

[5] Para 1 of the Judgment

[6] Para 18 of the Judgment

[7] Para 2-4 of the Judgment

[8] Para 21 of the Judgment

[9] Referred to Hunter, David B., An ecological perspective on property: A call for judicial protection of the public’s interest in environmentally critical resources

[10] Referred to Sax, Joseph L., Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan Law Review, Vol. 68

[11] Para 25 of the Judgment

[12] 146 US 537

[13] 350 Mass 410

[14] 532 MASS 670

[15] 33 CAL. 419

[16] 6 Cal. 251

[17] United Plainsmen v. N.D. State Water Cons. Comm’n, 247 NW 2d 457 (ND 1976)

[18] Para 34-35 of the Judgment

[19] Para 22 of the Judgment

[20] Para 36 of the Judgment

[21] AIR 1996 SC 2715

[22] [1996] 3 SCC 212

[23] Para 38 of the Judgment

[24] Para 39 of the Judgment

[25] Para 40 of the Judgment