Supreme Court of India
M.C. MEHTAversusKAMAL NATH AND ORS.
- Citation
- 1996 INSC 1482
- Decided
- 13 December 1996
- Disposal
- Disposed off
- Bench
- KULDIP SINGH
Holding
The State’s lease of ecologically fragile forest land to a private motel breached the public‑trust doctrine, rendering the lease void and making the lessee liable to restore the environment and pay compensation.
Summary
The Supreme Court entertained a public‑interest writ filed by environmental activist M.C. Mehta challenging the lease of forest land on the banks of the River Beas to Span Motels Private Limited, a company linked to former Environment Minister Kamal Nath. The petition alleged that the motel had encroached on protected forest land, diverted the river’s natural flow using bulldozers and embankments, and caused ecological degradation. The Court examined the public‑trust doctrine, the Forest (Conservation) Act, 1980 and principles of sustainable development, concluding that the State, as trustee of natural resources, cannot convert such resources into private commercial use. It held that the lease granted in 1994 was a patent breach of the public trust and was therefore quashed, directing the motel to restore the riverine ecology, pay compensation, and comply with pollution‑control directives. The petition was disposed of with specific remedial orders.
Issues considered
- The legality of leasing protected forest land on a river bank to a private commercial entity.
- Whether the State’s action violated the public‑trust doctrine under Indian law.
- Applicability of the Forest (Conservation) Act, 1980 and Article 32 of the Constitution.
- Whether the polluter‑pays and precautionary principles apply to the motel’s activities.
Legislation cited
- Constitution of Indias. Article 32
- Forest (Conservation) Act, 1980s. Section 2
Subjects
public trust doctrineenvironmental lawriver pollutionforest leasepolluter pays principleprecautionary principlesustainable developmentRiver Beasforest conservationenvironmental jurisprudence
Judgment
A M.C. MEHTA
v.
KAMAL NATH AND ORS.
DECEMBER 13, 1996
B. [KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]
Environmental Law :
(
Constitution of Indi'a, 1950 : Article 32.
c Public Interest Litigation-Ecology-Environmental Pollution-River
Beas-Public Trust Doctrine-Grant of lease-Of reparian forest land for
commercial purpose to private company which operated a Motel located at
bank of River, by State Government-Motel management interfered with
natural flow of rive1~Held, Public Trust Doctrine was part of Indian Law-It
D extended to natural resources such as livers, forests, seashores, air etc. for
purposes of protecting ecosystem-State Government committed breach of
public trust-Prior sanction granted by Ministry of Environment and Forest
and lease granted in favour of Motel quashed-Polluter Pays Principle ap-
plicable-Hence polluter company liable to pay compensation in te1ms of cost
E for restitution of ttnvironment and ecology of the area-Other directions issued.
A news item appeared in the "Indian Express" which stated that a
private Motel in which the respondent's family had direct link, had floated
a club at the bank of River Beas by encroaching land including substantial
forest land which was later regularised and leased out to the company
F when the respondent was a Minister in the Central Government. It was
stated that the Motel used bulldozers and earth-movers to turn the course
of the river. The bulldozers created a new channel by diverting the flow of
the river. According to the news item three private companies were engaged
to reclaim vast tracts of land around the Motel. The course of the river
G was being diverted to save the Motel from future floods.
This Court took notice of the news item because the facts disclosed
therein, if true, would be a serious act of environmental degradation on
the part of the Motel.
H Disposing of the petition, this Court
12
· M.C.MEHfA v. KAMALNA1H 13
HELD : 1.1. The notion that the public has a right to expect certain A
--. lands and natural areas to retain their natural characteristic is finding its
way into the law of the land. The ancient Roman Empire developed legal
Theory known as the "Doctrine of the Public Trust". The Public Trust
Doctrine primarily rests on the principle that certain resources like air,
seas, waters and the forests have such a great importance to the people as B
a whole that it would be wholly unjustified to make them a subject of
private ownership. The said resources being a gift of nature, they should
be made freely available to everyone irrespective of the status in life. The
doctrine enjoins upon the government to protect the resources for the
'I enjoyment of the general public rather than to permit their use for private
purposes. It is no doubt correct that the public trust doctrine under the C
English Common Law extended only to certain traditional uses such as
navigation, commerce and fishing. But the American Courts in recent
. cases have expanded the concept of the public trust doctrine. The obser-
vations of the Supreme Court of California in Mono Lake case clearly show
the judicial concern in protecting all ecologically important lands, for D
example fresh water, wetlands or riparian forests. The observations of the
Court in Mono Lake case to the effect that the protection of ecological
values is among the purposes of public trust, may give rise to an argument
that the ecology and the environmental protection is a relevant factor to
determine which lands, waters or airs are protected by the public trust
doctrine, the Courts in United States are finally beginning to adopt this E
reasoning and are expanding the public trust to encompass new types of
lands and waters. There is no reason why the public trust doctrine should
not be expanded to include all eco-systems operating in our natural
resources. [35-H; 37-F; 38-E-F; 44-D-H]
F
1.2. 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. Public at large is the beneficiary of the sea-shore, running
waters, airs, forests and ecologically fragile lands. The State as a trustee G
is under a legal duty to protect the natural resources. These resources
meant for public use cannot be converted into private ownership. Thus
Public Trust Doctrine is a part of the law of the land. [45-A-B]
Illinois Ce11tral R.R. Company v: Illi11ois, 146 US 387; Gould v.
Greylock Reservatio11 Commission, 350 Mass 410 (1966); Sacco v. Develop- H
14 SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A ment of Public Works, 532 Mass 670; Robins v. Department of Public Works,
255 NE 2d 577; National Audubon Society v. Superior Court of Alpina ~-
County, 33 CAL. 3d 419; Priewevs, Wisconsin State Land and Improvement
Company 93 Wis 534 (1896); Crawford County Lever and Drainage Distt.
No. 1, 182 Wis 404 and City of Milwaukee v. State, 193 Wis 423 and State v.
B Public Se1vices Commission, 215 Wis 112, referred to.
Prof. Sax : Public Tmst Doctrine in Natural Resources Law : Effective
Judicial Intervention", Michigan Law Review, Vol. 68, part 1, p 473 and
David B. Hunter : ''An Ecologi.cal Perspective on Property : A call for Judicial
Protection of the Public's interest in Environmentally Critical Resources",
C Harvard Environmental Law Review, Vol. 12 1988 p 311, referred to.
Marks v. Whitney, 6 Cal 3d 251 and United Plainsmen v. N.D. State
Water Cons. Comm'n, 247 NW 2d 457 (N.D. 1976), cited.
2.1. The issues presented in this case illustrate the classic struggle
D 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 chang-
. ing needs of an increasing complex society, find it necessary to encroach
to some extent open lands heretofore considered in-violate to change. The
E 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 Legislatures
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
F private ownership or for commercial use. The esthetic 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. [45-C-E]
G 2.2. In the present case, large area of the banks of river Beas which
is part of protected forest has been given on a lease purely for commercial
purposes to the Motels. 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. The State Government committed
H patent breach of public trust by leasing the ecologically fragile land to the
M.C.MEHTAv. KAMALNA1H 15
Motel management. The lease transactions are in patent breach of the A
trust held by the State Government. [45-F-G]
""'
2.3. The admissions by the Motel-management in various letters
written to the Government officers and the report placed on record by the
Central Pollution Control Board clearly show that the Motel-management
has by their illegal constructions and callous interference with the natural B
flow ofriver Beas has degraded the environment. The Motel interfered with
the natural flow of the river by trying to block the natural relief/spill
channel of the river. It is settled by this Court that one who pollutes the
environment must pay to reverse the damage caused by his acts. [35-C-D]
Ve/lore Citizens Welfare Forum v. Union of India & Ors., JT (1996) 7
c
SC 375, relied on.
Indian Council for Enviro-Legal Action v. Union of India, JT (1996) 2
SC 196, cited.
D
3. The Motel shall pay compensation by way of cost for the restitu·
,. tion 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
of the river Beas has to be removed a.nd reversed. NEERI is directed
through its Director to inspect the area, if necessary, and give an assess-
ment of the cost which is likely to be incurred for reversing the damage E
caused by the Motel to the environment and ecology of the area. NEERI
may take into consideration the report by the Board in this respect. The
Motel through its management shall show cause why pollution fine in
addition be not imposed on the Motel. The Motel shall construct a
- boundary wall at a distance of not more than 4 meters from the cluster of F
rooms (main building of the Motel) towards the river basin. The boundary
wall shall be on the area of the Motel which is covered by the lease. The
Motel shall not encroach/cover/utilise any part of the river basin. The
boundary wall shall separate the Motel building from the river basin. The
river bank and the river basin shall be left open for the public use. The
Motel shall not discharge untreated effiuents into the river. The State G
... Pollution Control Board is directed to inspect the pollution control
. devices/treatment plants set up by the Motel. If the effiuent/waste dis·
charged by the Motel is not conforming to the prescribed standards, action
in accordance with law be taken against the Motel. The State Pollution
Control Board shall not permit the discharge of untreated effiuelit into H
16 SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A river Beas. The Board shall inspect all the hotels/institutions/factories in
Kullu-Manali area and in case any of them are discharging untreated
emuent/waste into the river, the Board shall take action in accordance with
law. The Motel shall show cause why Pollution-fine and damages be not
imposed as directed by this Court. [47-F-H; 48-A-E]
B CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 182 of
1996.
(Under Article 32 of the Constitution of India.)
In-person for Petitioner.
c
H.N. Salve, Sr. Adv., M.S. Vashisht, Rajiv Dutta, Shiv Pujan Singh,
J.S. Atri and L.R. Rath, Advs. for the Respondents.
The Judgment of the Court was delivered by
D KULDIPrSINGH, J. This Court took notice of the News item ap-
pearing in the "Indian Express" dated February 25, 1996 under the caption
- "Kamal Nath dares the mighty Beas to keep his dreams afloat". The
relevant part or the news item is as under :
E "Kamal Nath's family has direct links with a private company, Span
Motels Private Limited, which owns a resort - Span Resorts - for
tourists in the Kullu-Manali valley. The problem is with another
ambitious venture floated by the same company - Span Club.
The club represents Kamal Nath's dream of having a house on
F the bank of the Beas in the shadow of the snow-capped Zanskar
ranges. The club was built after encroaching upon 27.12 bighas of
land, including substantial forest land, in 1990. The land was later
regularised and leased out to the company on April 11, 1994. The
regularisation was done when Mr. Kamal Nath was Minister of
Environment and Forests. ........The swollen Beas changed its
G
course and engulled the Span Club and the adjoining lawns,
washing it away.
For almost five months now, the Span Resorts management has
been moving bulldozers and earth movers to turn the course of the
H Beas for a second time.
M.C.MEIITA v. KAMALNATH[KULDIPSINGH,J.) 17
>Ji.
The heavy earth mover has been used to block the flow of the A
river just 500 metres upstream. The bulldozers are creating a new
~
channel to divert the river to at least one kilometer downstream.
The tractor trolleys move -~aiih and boulders to shore up the
embankment surrounding Span Resort for laying a lawn. Accord-
ing to the Span Resorts management, the entire reclaiming opera-
B
tion should be over by March 31, and is likely to cost over a crore
of rupees.
Three private companies - one each from Chandigarh, Mandi
and Kullu - have moved in one heavy earth mover (hired at the
rate of Rs. 2000 per hour), four earth movers and four bulldozers c
(rates varying from Rs. 650 to Rs. 850 each per hour) and 35 tractor
trolleys. A security ring has been thrown all around ........... Another
worrying thought is that of the river eating into the mountains,
leading to landslides which are an occasional occurrence in this
area. Last September, these caused floods in the Beas and property
estimated to be worth Rs. 105 crore was destroyed ........ Once they
D
succeed in diverting the river, the Span management plans to go
in for landscaping the reclaimed land. But as of today, they are.
not so sure. Even they confess the river may just return.
' ,_
"Mr Kamal Nath was here for a short while two-three months E
ago. He came, saw what was going on and left. I suppose he knows
what he is doing'', says another executive.
""'· The district administration pleads helplessness. Rivers and
forest land, officials point out, are not under their jurisdiction. Only
F
- the Kullu conservation of forests or the district forest officer can
intervene in this case.
But who is going to be!, the country's former Environment and
Forests Minister.
G
Interestingly, a query faxed to Kamal Nath for his views on
these developments fetched a reply from Mr. S. Mukerji, President
of the Span Motels Private Limited.
Admitting that the Nath family had "business interests" in the
company since 1981, he said, "the company is managed by a team H
18 SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A of professional managers and Mr. Kamal Nath is not involved in
the management of activity of the company."
"The Board comprises professionals, some of whom are friends
and relatives of the Nath family", Mr. Mukerji said, he expressed
surprise that a reference had been made to Rangri and Chakki
B villagers "since these villagers are at least 2/3 kilometers away and
not even on the river side."
He said the Span Club was "not for the exclusive use of any
one individual." "We would like to emphasize that we are only ,,
'restoring the river' to its original and natural course and are
c "restoring our land and or those or neighbouring villagers similarly
affected by the flood."
He maintained that "Mr Kamal Nath has definitely not been to
Span Resorts in the last two months and in fact, to the best of my
D knowledge, has not travelled to the Kullu Valley for quite some
time now.... .In any case, we had never 'blocked' any channel in
the vicinity of Span."
Mr. Kamal Nath filed one-page counter affid<:ivit dated June 8, 1996. Paras
1 and 3 of the counter are as under :-
E
"I say that I have been wrongly arrayed as a respondent in the
above petition in-as-much as I have no right, title or interest in the
property known as 'Span Resorts' owned by 'Span Motels Private
Limited'.
F I further say that the allegations made in the press reports
based on which this Hon'ble Court was pleased to issue notice are
highly exaggerated, erroneous, mala fide, mischievous and have
been published only to harm and walign the reputation of this
respondent."
G
On behalf of Span Motel Private Limited (the Motel), Mr. Banwari Lal
Mathur, its Executive Director filed counter affidavit. Paras 2 and 3 of the
Counter are as under :-
"I say that Mr. Kamal Nath who has been arrayed as respondent
H No. 1 in the above writ petition has no right, title or interest in the
M.C.MEHTA v. KAMALNATH[KULDIPSINGH,J.) 19
property known as SPAN RESORTS owned by Span Motels Pvt. A
Ltd. or in the lands leased out to the said company by the State
of Himachal Pradesh.
I say that the shareholding of SPAN MOTELS PVT. LTD. is as
under:
B
No. of Shares Held % Share holding
Mrs. Leela Nath 32,560 42
EMC Projects Pvt.
14,700 19
Ltd.
SHAKA Properties
c
15,000 19
Pvt. Ltd.
SHAKA Estate &
15,000 19
Finance Pvt. Ltd.
Capt. Alok Chandola 250 01 D
77,510 100
.
It was not disputed before us by Mr. Harish Salve, learned counsel'
appearing for Mr. Kamal Nath that almost all the shares in the Motel are
owned by the family of Mr. Kamal Nath. We do not wish to comment on .iE1
the averment made on oath by Mr. Kamal Nath that he has "no right, title ! · ·.
or interest in the property known as Span Resorts owned by Span Motels
Private Limited".
Mr. B.L. Mathur filed an additional counter affidavit dated July 30,
1996 on behalf of the Motel. The counter affidavit mentioned above states F
that Government land measuring 40 bighas 3 biswas situated along side
Kullu-Manali Road on the bank of river Beas was granted on lease to the
Motel for a period of 99 years with effect from October 1, 1972 to October
1, 2071. 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 G
course as may be subsequently approved by the lessor. We may refer to
paras 6 and 7 of the lease deed dated September 29, 1972 which are as
under:
"The Lessee shall not dig deep pits of trenches in the said land,
which may lead to the danger or erosion and shall make good the H
20 SUPREME COURT REPORTS(1996J SUPP.10 S.C.R.
A Lessor Idefects caused by their acts or defaults within one month
of notice by the Lessor.
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
B and the lessee shall not be entitled to any compensation whatsoever
on account of such termination."
The current management (Shri Kamal Nath's family) took over the
Motel in the year 1961. Fresh lease was signed on September 29, 1981. The
C new lease was for the same period from 1972 to 2071. Paras 4 and 5 of the
additional affidavit are as under :-
" I say that the Motel commenced operations in 1975. There are
over 800 trees in this area of 40 bighas. the motel has two clusters
with 8 dwelling units of 3 rooms each. The rooms are nowhere
D near the river - the distance between the cluster of rooms and the
beginning of the river basin is about 10 meters-actually the river is
another 30 meters therefrom. Thus, the effective distance between
the edge of the river and the cluster of rooms is 40 meters.
I say that in the peak of the flood, the river did not come closer
E than 10 meters to the rooms and did not, therefore, pose any
danger to the rooms, particularly there is no problems qua rooms
as the rooms are on a higher level - at least 5-7 meters at their
closest point."
Along with the additional affidavit the correspondence between the Motel
F and Government has been annexed. In a letter dated October 19, 1988
addressed to the Chief Minister Himachal Pradesh. The Motel gave details
of the flood-damage during the year 1988 and finally requested the Govern-
ment for the following steps :-
"Further it is imperative that the Government take immediate steps
G
to stop erosion of the land under lease to us. It would appear that
strong concrete blackened retaining walls will be necessary to be
placed at appropriate points to protect the land mass around us."
The Motel addressed letter dated August 30, 1989 to the Divisional Forest
H Officer, Kullu. The relevant part of the letter is as under :-
M.C.MEIITA v. KAMALNATH[KULDIPSINGH,J.] 21
When we acquired our land on lease, there were no clear demar- A
"I_ cations of the surrounding areas and boundaries. There has existed
a stretch of waste and 'banjar' (Class III) forest land in a Ion-
gitudinal strip along the River bank admeasuring about 22.2 bighas,
'-·
contiguous and adjacent to our leased land. Over the years, and
especially aa:r the severe flood erosion last year, we have built
B
extensive stone, cemented and wire-mesh crated embankments all
along the river banks at considerable expense and cost. We have
also gradually and painstakingly developed this entire waste a
'banjar' area, beautified and landscaped it, planted ornamental,
fruiting and varied forest trees extensively such that it blends with
our estate and with the surrounding flora and environment in a c
harmonious manner. A Revenue map along with all revenue
department records covering this entire area, is forwarded
enclosed here~th for your reference and perusal.
We are aware that in accordance with the forest Conservation D
Act of 1980, the use of Forest land by Private Agency even for
natural development and afforestation scheme, requires alternative
matching compensatory afforestation land areas to be surrendered
by the concerned party, after due approval of the Government. In
view of this statutory pre-condition, we wish to submit that we can
immediately surrender to the Government nearly 28 bighas & 13 E
biswas of private agricultural cultivated land located at Village
MAJHACH, (Burua), MANALI, in exchange for the above men-
tioned 22.2. bighas of Class III banjar forest land adjoining our
land in Village Baragran Bihal, which we request for transfer to
our company in lieu of the land we are willing to surrender. The F
specific Revenue maps and records concerning this area of land
at Village Majhach, are also enclosed herewith for your kind
perusal."
It is obvious from the contents of the letter quoted above that the motel
had encroached upon an additional area of 22.2 bighas adjoining to the G
lease-hold area. Apart from that the Motel had built extensive stone,
cemented and wire mesh created embankments all along the river banks.
... The Motel was keen to have the encroached land by way of exchange/lease.
A request to that effect was repeated in the letter dated September 12,
1989 addressed to the Divisional Forest Officer, Kullu. The Motel again H
M.C. MEIITA v. KAMAL NATI-I [KULDIP SINGH, J.) 23
,.
stony piece of land and used to get flooded every year during A
-f.
"'I monsoons and often got washed away and reduced in size by river
-
erosion year by year. This land was reclaimed by us and protected
by an embankment and filling from the river side.
The said letter further states as under :-
B
"Similarly on the river side part of our leased land there used to
be floods and erosion every year. If we would have let this continue,
the leased land would have also got reduced every year. In order
., to protect our leased land and to save damage to our hotel
property, we at our own considerable expense and cost built stone
and wire mesh crated embankment all along the river bank. This
c
not only protected our hotel land but also the forest land....
'
In 1988 there were severe floods when every a portion of leased
land got washed away. It became imperative for us at considerable
expense to build an embankment on the river f!ont along the leased D
property. In order to build an embankment on the river front along
the leased property the washed away area and part of the river
bank had to be filled at huge cost. Once the river bed and the
washed away area was filled, the choice before us was either to
put soil on it and grow grass and trees to secure it or let it remain
E
unsecured and aesthetically displeasing. We chose the former. As
a result of land filling and embankment our leased area when
"°!-- measured will obviously show an increase. This increase is not an
encroachment but reclamation with the objective of protecting the
leased property."
F
_,. In the letter dated August 7, 1993 addressed to. the Divisional Forest
'
Officer, the Motel again asked to lease of adjoining area. The relevant part
of the letter is as under :-
"We had explained in our previous letters dated 21.6.93 and 23.7.93
(copies of which have been sent to you with our letter dated 5.8.93) G
the circumstances under which we had to spend enormous sum of
,~,
money in protecting and reclaiming the forest land adjoining our
... Resort. It had become necessary for us to undertake this reclama-
tion and protection work by filling the land from the river bed,
constructing embankments, retaining walls and crating etc. in order H
24 SUPREME COURTREPORTS(1996] SUPP.10 S.C.R.
...
A to protect the land leased by the Government to our Span Resort
and property thereon but we were unable to complete the entire
work as we were restrained from carrying on with the work under
undue allegations of encroachment on the forest land.....
In order to ezjJedite the process of commencing protection
B work on an urgent basis on the forest land, we propose that the
forest land be gi~en to us on long lease co-terminu_s__.with the lease
of the land granted by the government for our Span Resorts. This-
could be. done by a supplementary lease as it is imperative to save
the land under the original lease. "'
c All we have done is to reclaim and protect the land from
erosion by constructing crates, retaining walls and embankments
along the river Beas by investing huge amounts which unfortunately
have all been washed away due to floods and now requires
reconstruction to save the forest land and our adjoining property
D from total destruction."
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
E 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.
The additional affidavit filed by the Motel refers to the prior approval
granted by the Government of India as under :
F
"In the Ministry of Environment and Forests, the proposal was
cleared by the Secretary and Forwarded to the Forest Advisory
Committee by passing the Ministf•,r concerned. The Forest Ad-
visory Committee cleared the proposal subject to severe restric-
tions - and also certain restrictions which are not normally imposed
G
in such cases. The proposal was then cleared at the level of the
Prime Minister and a letter of 24th November, 1993, approval was ,,
'
communkated to the State Government and SMPL."
It may be mentioned that Mr. Kamal Nath was the Minister in charge,
H Department of Environment and forests at the relevant time. What is
M.C.MEHTA v. KAMALNATII[KULDIPSINGH,J.] 25
sought to be conveyed by the above quoted paragraph is that Mr. Kamal A
Nath did not deal with the file. The correspondence between the Motel
--;_ and the Himachal Government referred to and quoted by us shows that
from 1988 the Motel had been writing to the Government for the ex-
change/lease of the additional Forest land. It is only in November 1993
when Mr. Kamal Nath was the Minister, incharge of the Department that B
the clearance was given by the Government of India and the lease was
granted . Surely it cannot be coincidence.
This Court took notice of the news item - quoted above - because
the facts disclosed therein, if true, would be a serious act of environment-
degradation on the part of the motel. It is not disputed that in September C
1995 the swollen beas engulfed some part of the land in possession of the
motel. The news item stated that the motel used earth-movers and
bulldozers 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. According
to th~ news item three private companies were engaged to re-claim huge D
tracts of land around the motel. The main allegations in the news item was
that the course of the river was being diverted to save the motel from future
floods. In the counter affidavit filed by the motel, the allegations in the
news item have been dealt with in the following manner : "
"(1) If the works were not conducted by the Company, it would in E
future eventually cause damage to both banks of the river, under
natural flow conditions.
(m) By dredging the river, depth has been provided to the river
channel thus enhancing its capacity to cope with large volume of
water. i:;'
(n) The wire crates have been put on both banks of the river. This
has been done to strengthen and protect the banks from erosion
and NOT as any form of river diversion. It is not necessary to divert
the river because simply providing greater depth and removing G
debris deposits enhances the capacity of the river to accommodate
greater water flow.
(o) I further state that the nearly 200 metres of wire crates which
have been put on the left bank of the river (the river bank on the
opposite side of SPAN) is in the interest of the community and H
26 SUPREME COURT REPORTS(l996] SUPP.10 S.C.R.
A nearby residents/villages. This left Bank crating protects the
hillside where RANGRI, CHAKKI and NAGGAR are located.
(s) After the floods, it was observed, that the boulders and rubble
deposits were obstructing and hindering the flow of the river and
thus, it was the common concern of the Company as well as of the
B Panchayat of the Village BARAGRAN BIHAL to carry out dredg-
ing measures to provide free flow of the river water.
(t) Accordingly alleviation measures conducted by the company
and the villagers of BARAGRAN BIHAL were as under :
c (i) Dredging of Debris deposit : Debris deposits in river basin which
had collected due to the floods were removed by dredging. This
deepens the channel and thus allows larger flow of water.
(ii) Strengthening of both banks with wire crates : Wire crates are
the common method of protection of bank erosion. Accordingly
D wire crates were put along the opposite side (left bank) to protect
the landslide of the hillside wire on which village RANGRI is
perched. Wire crating was also put on the Resort side of the River
(Right Bank) to strengthen & pr~tect the bank against erosion. All
the wire crating runs along the river flow and not as an obstruction
E or for, any diversion.
(w) It is further submitted that whereas the report mischievously
refers to villagers of Rangri, Chakki and Naggar nowhere does it
take in to account the very real problems of villagers of Baragran
Bihal which is located immediately on the Right Bank near the
F SPAN Resort who were seriously affected by the floods. Chakki,
Rangri and Naggar Villages have not at all been affected by the
floods and there is no remote possibility. of these villages being
affected due to the flood protection works conducted by the
Company."
G
In the additional affidavit filed by the motel the facts pleaded are as
under:
"(ii) It had become necessary for them to undertake this reclama-
tion and protection work by filling the land from river bed, con-
H structing embankment, retaining walls and crates, etc. in order to
M.C.MEHTA v. KAM.\\1,NA1H[KULDIPSINGH,J.] 27
protect the land leased by the Government to the Resort and the A
property thereon.
(vii) The forest land which is suspectible to heavy river erosion by
floods involves high cost for its protection from getting washed
away every year would.be protected by construction of embank-
ments and filling from the river side by the Company... .local B
community or Kullu Manali and surrounding villages will benefit."
Mr. G.D. Khachi, Under Secretary (Revenue) Government of Himachal
Pradesh in the counter affidavit filed in this Court stated as under :
"(iii) That subsequently, a piece of land measuring 21- 09 bighas
c
was encroached by M/s. Span Motels. On coming to the notice of
the Government of such encroachment, the Govt. of Himachal
Pradesh in Revenue Department took action and reportedly got
the encroached land vacated, and the possession of which has been
taken over by the Forest Department, D
· that on 21-22 July, 1992, the then Chief Secretary to the Govern-
ment of Himachal Pradesh visited the site who drew the inference
that M/s. Span Motel Ltd. were still using the encroached land.
The copy of note on inspection of the then Chief Secretary is E
annexed as R-1,
that immediately on receipt of the recommendations of the then
Chief Secretary (Annexure R-I), the Department of Forest started
working at the site bu~ in the mean time, it was decided to lease
out a piece of land ~easuring 27-12 bighas which includes the said F
encroached land measuring 21-09 bighas. the lease granted by the
Government of Himachal Pradesh in Revenue Department vide
letter No. Rev.O(G)6-53/93, dated 6.4.1994 is annexed as Annexure
R-II after obtaining the _approval of Government of India, Ministry
of Environment & Forest, New Delhi vide letter No. 9-115/93- G
ROC, dated 24.11.93 (copy annexed as Annexure R-III) for the
purpose of protecting earlier leased land,
that the developmental activities which was being undertaken by
Mis. Span Motels Ltd. came to the knowledge of the Government
from the News Item which appeared in the Press and field officers H
28 SUPREME COURT REPORTS(1996) SUPP.10 S.C.R.
A of all the concerned departments took an exercise to carry out the
inspection and reported the matter to the Government".
C.P. Sujaya, Financial Commissioner-cum-Secretary (Irrigation and Public
r
Health) Government of Himachal Pradesh in her counter affidavit filed in
this Court, inter alia, stated as under :
B
"Admitted to the extent that the Span Resorts management had
deployed heavy earth moving machinery to reclaim their land and
to divert/channelise the course of river to its course which it was
following prior to 1995 floods: by dredging and raising of earthen
c and wire crated embankments. ..,
The flow of river has been changed/diverted by dredging/raised of
wire crated embankments and creating channel from a point u/s
of Span Resorts to D/s of Span Resorts. The approximate length
of channel is about 1000 mtrs.
D Admitted to the Extent that village Ranghri and Chakki are located
on left bank of river Beas. However, channelization of river has
been done slightly away from the toe or foot hills except for the
last about 500 ~etres where it is running along the foot hills.
E The hill on which village Rangri and Chakki are situated consists
of small boulders embedded in Sandy Strata and is quite fragile/un-
stable in nature. Therefore, this reach of river is prone to land
slides in the normal course also. However, it is feared that flow of
river along the foot hills may hasten/aggravate the process of land
slides. The Span management has provided wire crated embank-
F ment in a reach of about 30 metres on left bank and about 270
metres on right bank to channelise the flow and also to reclaim
part of land on right bank of river Beas.
Admitted to the extent that the diversion/channelization of river
has been done to restore it to its course of pre-1995 floods and in
G
doing so, by raising the earthen and wire crated embankments,
some land of villagers situated on right bank of river Beas has also
been reclaimed along with land of Span Resort."
This Court by the order dated May 6, 1996 directed the Central Pollution
H Control Board (the Board) through its Member Secretary to inspect the
M.C.MEHTA v. KAMALNATif[KULDIPSINGH,J.) 29
environments around the area in possession of the motel and file a report. A
This Court further ordered as under :
"Meanwhile we direct that no construction of any type or no
interference in any manner with the flow of the river or with the
embankment of the river shall be made by the Span Management."
B
Pursuant to this Court's order dated May 6, 1996 the Board filed its report
along with the affidavit of Dr. S.P. Chakrabarti, Member-Secretary of the
,. Board. It is stated in the affidavit that a team compromise Dr. Bharat
Singh, Former Vice Chancellor and Professor Emeritus, University of
Roorkee, Dr. S.K Ghosh, Senior Scientist and former Head, DiVision of C
Plant Pathology (NF), Kerala Forest Research Institute, Peechi, Trichur
and Dr. S.P. Chakrabarti, Member-Secretary, Board was constituted. The
team inspected the area and prepared the report. Para 4.2 of the report
gives details of the construction done by the motel prior to 1995 floods.
The relevant part of the paragraph is as under :
D
"To protect the newly acquired land, SMPL took a number of
measures which include construction of the following as shown in
Fig. 2:
(a) S nos. studs of concrete blocks Sm Jong and 20m apart on the
eastern face of the club island on the upstream side, E
(b) 150m long stepped wall also on the eastern face of club island
on the downsti'eam side,
(c) A 2m high bar of concrete blocks at the entry at the spill
channei and F
(d) Additional S nos. studs also Sm long and 20m apart on the
right bank of the river Beas in front of the restaurant of the SMPL.
While (a) & (b) were aimed at protecting the club island from the G
main current, (c) was to discourage larger inflow into the spill
channel. Item {d) was meant to protect the main resort land or
SMPL if heavy flow comes into the spill channel.
The works executed in 1993 were bank protection, works, and were
not of a nature so as to change the regime or the course of river. H
30 SUPREME COURT REPORTS[l996] SUPP. 10 S.C.R.
A A medium flood again occurred in 1994. Partly due to the protec-
tion works, no appreciable damage occurred during this flood. The
main current still continues on the left bank."
The happening of events in the vicinity of motel during the 1995 flood and
the steps .taken by the motel have been stated in the report as under :
B
"A big slip occurred on the hill side on the left bank, at a distance
about 200m upstream from the point where division into main and
spill channels was occurring on the afternoon of September 4, 1995.
This partially blocked the main left side channel which was rela-
. '
c tively narrow at this location. 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
I
plantation as well as the protection works build in 1993 were
washed away. Heavy debris was deposited on this land. Damage
D occurred on the right bank also but the buildings of the main SMPL
resort remained more or less unaffected. A large hotel and many
buildings on the right bank, almost adjacent to SMPL in the
downstream were also washed away. The bar of blocks at the
· upstream end of the spill channel as well as most of the studs on
E this channel were also washed away. Some remnants of five
downstream studs could be seen at the time of the visit. After the
passage of 1995 flood, .SMPL have taken further steps to protect
their property as shown in Fig. 3. These are as follows :
1. The left side channel (the main channel), which had become
F less active, has been dredged to increase its capacity. Wire crate
revetments (A, B & C) on both banks of this channel have been
made to direct the flow through this channel. These revetments
and restoration earth work done would curtail the entry of water
into the right side relief/spill channel which had developed into
the main channel during the flood. A relatively S!llall channel (the
G
relief/spill channel).still exists and carries very little flow. Bulk of
the flow is now going into the left bank channel.
On the left bank, there are steep unstable slopes at higher eleva-
tions left after the slides during the flood. These are likely to slip
H in any case, and if so happens, may block the left channel again.
M.C.MEIITA v. KAMALNATII(KULDIPSINGH,J.] 31
This land belongs to some villagers from Rangri. The left bank ,A
channel is again sub-dividing into two streams (D) and the small
stream is flowing close to the toe of the hills for a distance of about
500 to 600 m before it turns towards midstream. Some of the
dredged material is piled on the right bank and some on the divide
between the main channel and the subsidiary channel on the left. B
Strips can be seen in this reach of 500-600 m even now, and erosion
at toe may aggravate sliding tendency. SMPL has also put 190m
wire crates (C) as protection against erosion of this bank, which
may be helpful upto moderate flood conditions.
The dredging and channelisation of the left bank channel, though C
aimed at protecting SMPL land, should normally keep high inten-
sity of flow away from both banks in moderate floods. This should
thus not be a cause of concern. In high floods, the water would
spill or spread beyond this channel. Due to restriction of entry in
the right relief/spill channel, though the works may not withstand D
a high flood, there may be a tendency for more flow towards the
left bank. However, the river is presently in a highly unstable
regime after the 1995 extra-ordinary floods, and it is difficult to
predict its behaviour if another high flood occurs in the near future.
The conclusions given by the inspecting team.in the report are as under: E
"6.4. M/s. Span Motels Private Limited had taken some flood
control measures at the imm~diate upstream by construction of
wire crates (Fig. 3) on both sides (A, B & C) and also dredged
the main channel of the river by blasting the big boulders and
removing the debris, the flood control measures, taken by them on F
the right bank of the main channel and at the mouth of relief
· channel after the 1993 flood, were also washed off. There is no
sign of any boundary of the premises of the newly acquired land.
6.5. The mouth of the natural relief/spill channel has been blocked G
by construction of wire crate and dumping of boulders (A & B).
The area has almost been levelled. Although a little discharge was
observed due to seepage through boulders and flowing through the
remnants of the relief channel to the downstream, the channel is
blocked by a stonewall across the channel (F) at the downstream
of M/s SMPL by a private property owner who has even con- H
32 SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R.
A structed two wells (E) on the bed of the channel. This indicates
the intention of the occupiers of the right bank properties in the
concerned stretch in favour of filling up of the natural spill/relief
channel.
6.6. Mis. Span Motels has not consulted any Flood Control Export
B as it appeared from the way of construction of the wire ctate. In
proper revetment was done white crating. As such, these cratings
may not last long.
6.i In the process of channelising the main course, the main stream
has been divided into two, one of which goes very near to the left
c bank (G) because of which fresh land slip in future is not ruled
out.
6.8 .. The relief channel is supposed to be the government land.
Construction of any sort to block the natural flow of water is illegal
D and no permission has been taken from the concerned department.
6.9. The lease agreement of 1994 had the clause for protection of •
the land but it should have been done not by blocking the flood
spill/relief channel.
E 6.10. Relief channel is the shortest path between the two bends.
Any future slip on left bank due to training of discharge at its foot
may cause flood on the right bank where the leasehold land (1994)
exists.
6.11. No new construction should be allowed in this flood prone
F area except flood protection measures. No economic activity
should be undertaken in the aforementioned stretch.
6.12. Since newly acquired land of M/s SMPL is located on the
flood plain, sandwitched between the main channel and the
relief/spill channel, the land may be deleased and the Forest
G Department take care of plantation in the area after adequate
flood control measures are taken by the Irrigation Department.
This is necessitated in view of the fact that the left bank opposite
SMPL is very steep (almost vertical) and is subjected to potential
threat of land slip to block the channel and cause change of course
H of the river flow again.
M.C.MEHfA v. KAMALNATII[KULDIPSINGH,J.] 33
6.13. Even if land slips occur, the impact will be local limited only A
to the stretch of the Beas river near SMPL.
6.14. The river is presently in a highly unstable regime after 1995
extra-ordinary floods, and it is difficult to predict its behaviour if
another high flood occur in the near future. A long-term planning
for flood control in the Kullu Valley needs to be taken up imme- B
diately with the advice of an organisation having expertise in the
field, and permanent measures shall be taken to protect the area
so that recurrence of such a heavy flood is mitigated permanently".
On a careful examination of the counter-affidavits filed by .the par- C
ties, the report placed on record by the Board and other material placed
on record, the following facts are established :
1. The lease hold area in possession of the motel is a part of the
protected forest land owned by the State Government.
D
2. The forest land measuring 27 bighas and 12 biswas leased to the
motel by the lease-deed dated April 11, 1994 is situated on the right back
of the river and is separated from the motel by a natural relief/spill channel
of the river.
3. A wooden bridge on the spill channel connects the main motel E
land and the land acquired under the 1994 lease-deed.
4. 22.2 bighas out of the land leased to the motel on. 1994 was
encroached upon by the motel in the year 19SS/S9.
5. Prior to the 1995 floods the motel constructed S studs of concrete F
blocks Sm long and 20m apart on the upstream bank of the river, 150m
long stepped wall on the downstream side of the river and 2m high bar of
concrete bl.ocks at the entry at the spill channel and additional S studs Sm
long and 20m apart on the right bank of the river Beas in front of the
restaurant of the Motel.
G
6. After the 1995 floods the motel has dragged the left side channel
(the main channel) of the river to increase its capacity. Wire crate revet-
ments on both banks of the main channel of river have been made to direct
the flow through the said channel. This has been done with a view to curtail
the entry of water into the right side relief/spill channel. H
34 SUPREME COURT REPORTS[1996J SUPP.10 S.C.R.
A 7. The motel has constructed 190m wire crates on the bank of the
river (upstream). The dredged material is piled up on the banks of the
river. The dredging and channelising of the left bank has been done on a
large scale with a view to keep high intensity of flow away from the motel.
B 8. The dredging of the main channel of river was done by blasting
the big boulders and removing the debris.
9. The mouth of the natural relief/spill channel has been blocked by
wire crates and dumping of boulders.
C 10. The construction work was not done under expert advice.
11. The construction work undertaken by the motel for channelising
the main course has divided the main stream into two, one of which goes
very near to the left bank because of which, according to the report, fresh
land slip in future cannot be ruled out.
D
The report further indicates that the relief channel being part of the
natural flow of the river no construction of any sort could be made to block
the said flow. According to the report no permission whatsoever was
sought for the construction done by the motel. The Board in its report has
further opined that the clause in the lease agreement for protection of land
E did not permit the motel to block the flood spill/relief channel of the rive.r.
The report categorically states that no new construction should be allowed
in this flood prone area and no economic activities should be permitted in
the said stretch. It has been finally recommended by the inspection team
that the land acquired by the motel under the 1994 lease-deed is located
F on the flood plain, sandwitched between the main channel and the
relief/spill channel and as such it should be released so that the Forest
Department may take care of the plantation in the area and .also preserve
the ecologically fragile area of river Beas.
Mr. Harish Salve vehemently contended that whatever construction
G - activity was done by the motel on the land under its possession and on
the area around, if any, was done with a view to protect the lease-hold land
from floods. According to him the Divisional Forest Officer by the letter
dated January 12, 1993 - quoted above - permitted the motel to carry out
the necessary works subject to the conditions that the department would
H not be liable to pay any amount incurred for the said purpose by the motel.
M.C. MEHTA v. KAMAL NATH [KULDIP SINGH, J.] 35
') We do not agree. It is obvious from the correspondence between the Motel A
and the Government, referred to by us, that much before the letter of the
Divisional Forest Officer dated January 12, 1993, the Motel had made
various constructions on the surrounding area and on the banks of the
river. In the letter dated August 30, 1989 addressed to the Divisional Forest
Officer Kutlu - quoted above - the Motel management admitted that "over
B
the years, and especially after the sever flood erosion last year, we have
_built extensive stones cemented and wire-mesh crated embankments all
along with the river banks at considerable expense and cost. We have also
gradually and painstakingly developed this entire waste and banjar area".
The "banjar area" referred to in the letter was the adjoining area admeasur-
ing 22.2 bighas which was not on lease with the Motel at that time. The c
admissions by the Motel-management in various letters written to the
Government the counter affidavits filed by the various Government officers
and the report placed on record by the board clearly show that the
Motel-management has by their illegal constructions and callous inter-
ference with the natural flow of river Beas has degraded the ~nvironment.
D
We have no hesitation in holding that the motel interfered with the natural
flow of the river by laying to block the natural relief/spill channel of the
nver.
The forest lands which have been given on lease to the Motel by the
State Governments are situated at the bank of the river Beas. Beas is a E
-..> young and dynamic river. It runs through Kutlu valley between the moun-
tain ranges of the Dhauladhar in the right bank and the Chandrakheni in
the left. The river 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 F
circumstances the river stream changes its course, remaining within the
valley but swinging from one bank to the other. The right bank of the river
Beas where motel is located mostly comes under forest, the left bank
, ~
consists of plateaus, having steep - bank facing the river, where fruit
orchards and cereal cultivation are predominant. The area being ecologi-
cally fragile and full of scenic-beauty should not have been permitted to be G
: converted into private ownership and for commercial gains. · /
_,...
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. The need to protect the environment and ecology H
36 SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A has been summed up by David B. Hunter (University of Michigan) in an
article titled an ecological perspective on property : A call for judicial
protection of the pul:~Uc's interest in environmentally critical resources pub-
lished in Harvard Environmental Law Review Vol. 12, 1988 page 311 in
the following words :
B "Another 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
c example of the complex, unpredictable·and potentially catastrophic
effects posed by our disregard of the environmental limits to
economic growth. The absolute finiteness of the environme:qt,
when coupled with human dependency on the environment, leads
to the unquestionable result that human activities will at some point
be constrained. "[H]uman activity finds in the natural world its
D external limits. In short, the environment imposes constraints on
our freedom; these constraints are not the product of value choices
but of the scientific imperative of the environment's limitations.
Reliance on improving technology can delay temporarily, but not
forever, the inevitable constraints. "There is a limit to the capacity
E of the environment to service ...growth, both in providing raw
materials and in assimilating by-product wastes due to consump-
tion. The largesse of technology can only postpone or disguise the
inevitable."
Professor Barbara Ward has, written of this ecological impera-
F tive in particularly vivid language :
We can forget moral imperatives. But today the morals of
respect and care and modesty come to us in a form we cannot
evade. We cannot cheat on DNA. We cannot get round
photosynthesis. We cannot say I am not going to give a damn
G about phytoplankton. All these tiny mechanisms provide the
preconditions of our planetary life. To say we do not care is =
to say in the most literal sense that "we choose death."
There is a co=only-;ecognized link between laws and social
H values, but to ecologists a balance between laws and values is not
M.C.MEIITA v. KAMALNATH[KULDIPSINGH,J.) 37
alone sufficient to ensure a stable relationship between humans A
and their environment. Laws and values must also contend with
the constraints imposed by the outside environment. Unfortunate-
ly, current legal doctrine rarely accounts for such constraints, and
thus environmental stability is threatened.
Historically, we have changed the environment to fit our con-
B
ceptions of property. We have fep.ced, plowed and paved. 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 C
environmental and therefore social stability. To ecologists, the
need for preserving sensitive resources does not reflect value
choices but rather is the necessary result of objective observations
of the laws of nature.
D
In sum, ecologists view the environmental sciences as providing
us with certain laws of nature. These laws, just like our own laws,
restrict our freedom of conduct and choice. Unlike our laws; the
laws of nature cannot be changed by legislative flat; they are
imposed on us by the natural world. An understanding of the laws
of nature must therefore inform all of our social institutions." E
The ancient Roman Empire developed a legal theory known as the
"Doctrine of the Public Trust". It was 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 F
general public. Our contemporary concern about "the environment" bear a
very close conceptual relationship to this legal doctrine. Under the Roman
Law these resources were either owned by no one (Res Nullious) or by
every one 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 G
owners if the effect was to interfere with the public interests in navigation
of fishing. Resources that were suitable for these uses were deemed to be
held in trust by the Crown for the benefit of the public, Joseph L. Sax,
Professor of Law, University of Michigan proponent of the Modern Public
Trust Doctrine in an erndite article "Public Trnst Doctrine in natural resource H
38 SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A law : effective judicial inte1Vention". Michigan Law Review Vol. 68 Part-I
page 473 has given the histofical background of the Public Trust Doctrine
as under:
"The source of modern public trust law is found in a concept that
received much attention in Roman and English law - the nature
B of property rights in rivers, the sea, and the seashore. That history
has been given considerable attention in the legal literature, need
not be repeated in detail here. But two points should be em-
phasized. First, certain interests, such as navigation and fishing,
were sought to be preserved for the benefit of the public, accord-
c ingly, property used for the those purposes was distinguished from
general public property which the sovereign could routinely grant
to private owners. Second, while it was understood that in certain
common properties - such as the seashore, highways, and running
water - "perpetual use was dedicated to the public," it has never
been clear whether the public had an enforceable right to prevent
D infringement of those interests. Although the state apparently did
protect public uses, no evidence is available that public rights could
be legally asserted against a recalcitrant government."
The Public Trust Doctrine primarily rests on the principle that
E 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. The said resources being a gift
of nature. They should be made freely available to everyone irrespective of
the status in life. The doctrine enjoins upon the Government to protect the
resources for the enjoyment of the general public rather than to permit
F their use for private ownership or commercial purposes. According to
Professor Sax the Public Trust Doctrine imposes the following restrictions
on governmental authority.
"Three types of restrictions on governmental authority are often
thought to be imposed by the public trust : first, the property
G
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; second,
the property may not be sold, even for a fair cash equivalent; and
third, the property must be maintained for particular types of uses".
H The American law on the subject is primarily based on the decision
M.C. MEHTA v. KAMAL NAIB [KULDIP SINGH, J.] 39
of the United States Supreme Court in Illinois Central R.R. Company v. A
Illinois, 146 US 537 (1892). In the year 1869 the Illinois legislature made a
-, substantial grant of submerged lands - a mile strip along the shores of Lake
Michigan extending one mile out from the shoreline - to the Illinois Central
Railroad. In 1873, the legislature changed its mind and repealed the 1869
grant. The State of Illinois sued to suit title. The court while accepting the
B
stand of the State of Illinois' held that the title of the State in the land in
dispute was a title different in character, from that which the State held in ~
lands intended for sale. It was different from the title which the United
States held in public lands which were open to preemption and sale. It was
a title held in trust - for the people of the State that they may enjoy the
' · navigation of the water, carry on commerce over them, and have liberty of c
fishing therein free from obstruction or interference of private parties. 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. According to
the Professor Sax the court in Illinois' Central "articulated a principle that
D
has become the central substantive thought in public trust litigation. When
a State holds a resource which is available for the free use of the general
public, a court will look with cortsiderable skepticism upon any governmen-
tal conduct which is calculated either to relocate that resource to more
restricted uses or to subject public uses to the self-interest of private
parties". E
In Gould v. Greylock Reservation Commission, 350 Mass 410 (1966),
ll:j' the Supreme Judicial Court of Massachusetts took the first major step in
developing the doctrine applicable to changes in the use of lands dedicated
to the public interest. In 1888 a group of citizens interested in preserving F
Mount Greylock as a unspoiled natural forest, promoted the creation of a
'-;_...,,•
association for the purpose of laying out a public park on it. The State
ultimately acquired about 9000 acres, and the legislature enacted a statute
creating the Greylock Reservation Commission. In the year 1953, the
legislature enacted a statute creating an Authority to construct and operate
on Mount Greylock an Aerial Tramway and certain other facilities and it G
authorised the commission to lease to the Authority any portion of the
Mount Greylock Reservation. Before the project commenced, five citizens
"'.:!'
brought an action against both the Greylock Reservation Commission and
I·
the tramway Authority. The plaintiffs brought the suit as beneficiaries of
the public trust. The court held both the ·lease and the management H
40 SUPREME COURT REPORTS[1996) SUPP. 10 S.C.R.
A agreement invalid on the ground that they were in excess of the statutory
grant of the authority. The crucial passage in the judgment of the Court is
as under:-
"The profit sharing feature and some aspects of the project itself
strongly suggest a commercial enterprise. In addition to the ab-
B sence of any clear or express statutory authorization of as broad a
delegation of responsibility by the Authority as is given by the
management agreement, we find no express grant to the Authority
of power to permit use of public lands and of the Authority's
borrowed funds for what seems, in part at least, a commercial
c venture for private profit."
Professor Sax's comments on the above quoted paragraph from Gould
decision are as under :-
"It hardly seems surprising, then that the court questioned why a
D state should subordinate a public park, serving a useful purpose
as relatively undeveloped land, to the demands of private investors
for building such a commercial facility. The court, faced with such
a situation, could hardly have been expected to have treated the
case as if it involved nothing but formal legal issues concerning the
state's authority to change the use of a certain tract of land .....
E
Gould, like Illinois Central, was concerned with the most overt sort
of imposition on the public interest : commercial interests had
obtained advantages which infringed directly on public uses and
promoted private profits. But the· Massachusetts court has also
confronted a more per\.asive, if more subtle, problem - that con-
F cerning projects which clearly have some public justification. Such
cases arise when, for example, a highway department seeks to take
a piece of parkland or to fill a wetland."
In Sacco v. Development of Public Works, 532 MASS 670, The
G Massachusetts Court restrained the Department of Public. Works from
filling a great pond as part of its plan to realocate part of State Highway.
The Department purported to act under the legislative authority. The court
found the statutory power inadequate and held as under :-
"the improvement of public lands contemplated by this section does
H not include the widening of a State highway. It seems rather that
M.~.MEHTA v. KAMALNATII[KULDIPSINGH,J.] 41
the improvement of public lands which the legislature provided for A
is to preserve such lands so that they may be enjoyed by the people
for recreational purposes."
In Robbins v. Department of Public Works, 255 N.E. 2d 577, the
Supreme Judicial Court of Massachusetts restrained the Public Works
Department from acquiring Fowl Meadows, "Wet lands of considerable B
natural beauty ... often used for nature study and recreation" for highway
use.
Professor Sax in the article (Michigan Law Review) refers to Priewe
v. Wisconsin State Land and Improvement Company, 93 Wis 534 (1896), c
Crawford Country Lever 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 and opines that the Supreme Court of WisconSin has probab-
ly made a more conscientious effort to rise above rhetoric and to work out
a reasonable meaning for the public trust doctrine than have the courts of
any other state". D
Professor Sax state the scope of the public trust doctrine in the
following words :-
"If any of the analysis in this Article makes sense, it is clear that E
the judicial techniques developed in public trust cases 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 dffuse public interests
need protection against tightly organized groups with clear and F
immediate goals. Thus, it seems that the delicate mixture or pro-
cedural and substantive protections which the courts have applied
in conventional public trust cases would be equally applicable and
equally appropriate in controversies involving air pollution, the
dissemination of pesticides; the location of rights of way for G
utilities, and strip mining or wetland filling on private lands in a
state where governmental permits are required."
We may at this stage refer to the judgment of the Supreme Court of
California in National Audubon Society v. Superior Court of Alpine County,
33 CAL. 3d 419, the case is popularly known as "the Mono v
lake case'', H
42 SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A 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. Islands in the lake protect a
large breeding colony of California gails, and the lake itself serves as a
haven on the migration route for thousands of birds. Tow~rs and spires of
B tura on the north and south shores are matters of geological interest and
a tourist attraction. 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 adbondoning the lake and the
C scenic beauty and the ecological values of the Mono Lake were imperiled.
The plaintiffs environmentalist - using the public trust doctrine - filed a law
suit against Los Angeles Water Diversions. The case eventually came to
the California Supreme Court, on a Federal Trial Judge's request for
clarification on the States public trust doctrine. The Court explained the
J..J 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."
(Institutes of Justinian 2.1.1.) From this origin in Roman law, the
English common law evolved the concept of the public trust, under
E which the sovereign own "all of its navigable waterways and the
lands lying beneath them 'as tru~tee of a public trust for the benefit
of the people.""
The Court explained the purpose of the public t~ust as under :-
F
"The objective of the ·public trust has evolved in tandem with the
changing public perception of the values and uses of waterways.
As we observed in Marks v. Whitney, supra, 6 Cal. 3d 251, "[public
trust easements [were] traditionally defined in terms of navigations
commerce and fisheries. They have been held to include the right
G to fish, hunt, bathe, swim, to use for boating and general recreation
purposes the navigable waters of the State, and to use the bottom
of the navigable waters for anchoring, standing, or other purposes.
We went on, however, to hold that the traditional triad of uses-
navigation, commerce and fishing-did not limit the public interest
H in the trust res. In language of special importance to the present
M.C. MEHTA v. KAMAL NATH [KULDIP SINGH,J.] 43
setting, we stated that "[T]he public uses to which tidelands are A
subject are sufficiently flexible to encompass changing public
needs. In administering the trust the state is not burdened with an
outmoded classification favoring one mode of utilization over
another. There is a growing public recognition that one of the most
important public uses of the tidelands-a use ecompassed within
B
the tidelands trust-is the preservation of those lands in their natural
state, so that they may serve as ecological units for scientific study,
as open space, and as environments which provide food and habitat
for birds and marine life, and which favorably affect the scenery
and climate of the area."
c
Mono Lake is a navigable waterway. It supports a small local
industry which harvest brine shrimp for sale as fish food, which
endeavor 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 D
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,
supra, 6 Cal. 3d 251, it is clear that protection of these values is
among the purposes of the public trust."
The court summed up the powers of the state as trustee in the following E
words:
"Thus, the public trust is more than an affirmation of state power
to use public property for public purposes. It is an affirmation of
the duty of the state to protect the people's common heritage of
streams, lakes, marshlands and tidelands, surrendering that right
/
F
of protection only in rare cases when the abandonment of that
right is consistent with the purposes of the trust..."
The Supreme Court of California, illter alia, reached the following con-
clusion:-
G
"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 use~ whenever feasible. Just as the history of
this state shows that appropriation may be necessary for efficient
use of water despite unavoidable harm to public trust values, it H
44 SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R.
A demonstrates that an appropriative water rights system ad-
ministered without consideration of the public trust may cause
unnecessary and unjustified harm to trust interests. (See Johnson,
1~ U.C. Davis L. Rev. 233. 258-257; Robie, some Reflections on
Environmental Considerations in Water Rights Administration, 2
Ecology L.Q. 695, 710-711 (19/2); Comment, 33 Hastillgs L.J. 653,
B 654.) 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 (see
United Plainsmen v. N.D. State Water Cons. Comm'n, 247 N.W 2d
c 457, 462-463 (N.D.1976), and to preserve, so far as consistent with
the public interest, the uses protected by the trust."
The Court finally came to the conclmion that the plaintiffs could rely
on the public trust doctrine in seeking reconsideration of the allocation of
D the waters of the Mono basin.
It is no doubt correct that the public trust doctrine under the English
Common Law extended only to certain traditional uses such as navigation,
commerce and fishing. But the American Courts in recent cases have
expanded the concept of the public trust doctrine. The observations of the
E Supreme Court of California in Mono Lake case clearly show the judicial
concern in protecting all ecologically important lands, for example fresh
water, wetlands or riparian forests. The observations of the Court in Mono
Lake case to the effect that the protection of ecological values is among·
the purposes of public trust, may give rise to an argument that the ecology
F and the environment protection is a relevant factor to determine which
lands, waters or airs are protected by the public trust doctrine. The Courts
in United States are finally beginning to adopt this reasoning and are
expanding the public trust to encompass new types of lands and waters. In
Phillips Petroleum co. v. Mississipp~ 108 S.C.C. 791 [1988], the United
States Supreme Court upheld Mississippi's extension of public trust
G doctrine to lands underlying nonnavigable tidal areas. The majority judg-
ment adopted ecological concepts to determine which land can be con-
sidered tide lands. Phillips Petroleum case assumes importance because the
Supreme Court expanded the public trust doctrine to identify the tide lands
not on commercial considerations but on ecological concepts. We see no
H reason why the public trust doctrine should not be expanded to include all
M.C. MEHTA v. KAMAL NATI! [KULDIP SINGH, J.] 45
eco-systems operating in our natural resources. A
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. Public at large is beneficiary of the sea-shore, running waters,
airs, forests and ecologically fragile lands. The State as a trustee is under B
a legal duty to protect the natural resources. These resources meant for
public use cannot be converted into private ownership.
We are fully aware that the issues presented in this case illustrate the
classic struggle between those members of the public who would preserve C
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. 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 D '
- 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. The csthetic use and E
the prestime 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.
F
Coming to the facts of the present case, 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 the Motels. We 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 G
the lease - transactions are in patent breach of the trust held by the State
Government. The second lease granted in the year 1994 was virtually of the
land which is a part of river-bed. Even the board in its report has recom-
mended deleasing of the said area.
This Court in Ve/lore Citizens Welfare Fornm v. Union of India & Ors., H
46 SUPREME COURT REPORTS[1996) SUPP. 10 S.C.R.
A JT (1996) 7 S.C. 375, explained the "Precautionary Principle" and "Polluters
Pays principle" as under :
Some of the salient principles of "Sustainable Development", as
culled out from Brundtland Report and other international docu-
ments, are inter-Generational Equity, Use and Conservation of
B Natural Resources, Environmental Protection, the Precautionary
Principle, Polluter pays principle, Obligation to assist and
cooperate, Eradication of Poverty and Financial Assistance to the
developing countries. We are, however, of the view that "the
Precautionary Principle" and "the Polluter Pays" principle are
c essential features of "Sustainable Development". The "precaution-
ary Principle" - in the context of the municipal law - means :
(i) Environment measures - by the State Government and
the statutory authorities - must anticipate, prevent and attack
the causes of environmental degradation.
D
(ii) Where there are threats of serious and irreversible
damage, lack of scientific certainty should not be used as a
reason for postponing measures to prevent environmental
degradation.
E (iii) The "Onus of proof" is on the actor or the
developer/industrialist to show that his action is environem-
tally benign.
"The Polluter Pays" principle has been held to be a sound
F principle by this Court in Indian Council for Enviro-Legal Action
y. Union of India, JT (1996) 2 196. The Court observed, "We are ,..
of the opinion that any principle evolved in this behalf should be
simple, practical and suited to the conditions obtaining in this
country". The Court ruled that "Once the activity carried on is
hazardous or inherently dangerous, the persons carrying on such
G activity is liable to make good the loss caused to any other person
by his activity irrespective of the fact whether he took reasonable
care while carrying on his activity. The rule is premised upon the
,(
very nature of the activity carried on". Consequently the polluting
industries are "absolutely liable to compensate for the harm caused
H by them to villagers in the affected area, to the soil and to the
MC.MEHTA v. KAMALNATII[KULDIPSINGH,J.] 47
- underground water and hence, they are bound to take all necessary A
measures to remove sludge and other pollutants lying in the af-
fected areas". The "Polluter Pays" principle as interpreted by this
Court 1_11eans that the absolute liability for harm to the environment
extends not only the compensate the victims of pollution but a.I.so
the cost of restoring the environmental degradation. Remediation B
of the damaged environment is part.of the process of "Sustainable
Development" and as such polluter is liable to pay the cost to the
individual sufferers as well as the cost of reversing the damaged
ecology.
The precautionary principle and the polluter pays principle C
have been accepted as part of the law of the land.
It is thus settled by this Court that one who pollutes the environment
must pay to reverse the damage caused by his acts.
We, therefore, order and direct as under : D
1. The public trust doctrine, as discussed by us 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 November 24, 1993 and the E
lease-deed dated April 11, 1994 in favour of the Motel are quashed. 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. The Hirnachal Pradesh
Government shall take over the area and restore it to its original-natural
conditions.
F
...
3. 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 constitutions made by the Motel in the river bed and the banks on
the river Bt<as has to be removed and reversed. We direct NEERI through
its Director to inspect the area if necessary, and give. an assessment of the G
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 Board in this respect.
4. The Motel through its management shall show cause why pollution
fine in addition be not in\posed on the Motel. H
48 SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A 5. The Motel shall construct a boundary wall at a distance of not
more than 4 meters from the closter of rooms (main building of the Motel)
towards the river basin. The boundary wall shall be on the area of the
-
Motel which is covered by the lease dated September 29, 1981. The Motel
. shall not encroach/cover/utilise any part of the river basin. The boundary
B wall shall separate the Motel building from the river basin. The river bank
and the river basin shall be left open for the public use.
6. The Motel shall not discharge untreated effluent into the river. We
direct the Himachal Pradesh Pollution Control Board to inspect the pol-
lution control devices/treatment plants set up by the Motel. If the ef-
C fluent/waste discharged by the Motel is not conforming to the prescribed
standards, action in accordance with law be taken against the motel.
7. The Himachal Pradesh Pollution Control Board shall not permit
the discharge of untreated effluent into river Beas. The Board shall inspect
all the hotels/institutions/factories in Kullu- Manali area and in case any of
D them are discharging untreated effluent/waste into the river, the Board
shall take action in accordance with law.
8. The Motel shall show cause on December 18, 1996 why Pollution-
fine and damages be not imposed as directed by ~· NEERI shall send its
report by December 17, 1996. To be listed on December 18, 1996.
E
The writ petition is disposed of except for limited purpose indicated
above.
v.s.s. Petition disposed of.
,.
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