PETITIONER:
M.C. MEHTA
Vs.
RESPONDENT:
KAMAL NATH & ORS.
DATE OF JUDGMENT: 13/12/1996
BENCH:
KULDIP SINGH, S. SAGHNR AHMAD
ACT
HEADNOTE
JUDGMENT
THE 13TH DAY OF DECEMBER, 1996 Present:
Hon’ble Mr. Justice Kuldip Singh
Hon’ble Mr. Justice S. Saghir Ahmad
In-person for Petitioner
H.N. Salve, Sr. Adv., M.S. Vashisht, Rajiv Dutta, Shiv Pujan Singh, J.S. Atri, L.R. Rath, Advs. With him for the Respondents.
JUDGMENT
The following judgment of the Court was delivered:
Kuldip Singh J.
This Court took notice of the News item appearing 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 of the news item is as under:-
"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 the bank
of the Beas in the shadow 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 course and
engulted 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 Beas for
a second time.
The heavy earth mover has been used
to block the flow of the river
just 500 meters upstream. The
bulldozers are creating a new
channel to divert the river to at
least one kilometer downstream. The
tractor trolleys move earth and
boulders to shore up the embankment
surrounding Span Resort for flaying
a lawn. According to the Span
Resorts management, the entire
reclaiming operation should be over
by March 31 and is likely to cost
over a crore or 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 (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 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 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 the
Kullu conservator of forests or the
district forest officer can
intervene in this case.
But who is going to bell the
country’s former Environment and
Forests Minister?
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 of
professional managers and Mr. Kamal
Nath is not involved in the
management activity of the
company."
"The Board comprises professionals,
some or 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 villagers "since
these villagers are at east 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
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
knowledge, has not traveled 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 affidavit dated June 8, 1996. Paras 1 and 3 of the counter area as under:-
"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".
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 malign the
reputation of this respondent."
On behalf of Span Motels Private Limited (the Mote), 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 No.1 in
the above writ petition has no
right, title or interest in the
property known as SPAN RESORTS
owned by Span Motels Pvt. 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:
No. of % Share
Shares holding
Held
Mrs. Leela Nath 32,560 42
EMC Projects Pvt.
Ltd. 14,700 19
SHAKA Properties
Pvt.Ltd. 15,000 19
SHAKA Estate &
Finance Pvt. Ltd.15,000 19
Capt. Alok Chandola 250 01
-------------
77,510 100
It was not disputed before us by Mr. Harish Balve, 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 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 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 the purpose of putting up a motel and for installing ancillaries in due 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 Lessor
defects 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 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 1981, fresh lease was signed on September 29, 1981. The 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 near
the river - the distance between
the cluster or rooms and the
beginning of the river basin is
about 10 meters-actually the river
is another 50 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 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 and the 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 Government for the following steps:-
"Further it is imperative that the
Government take immediate steps 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 Officer, Kullu. The relevant part of the letter is as under:-
"When we acquired our land on
lease, there were no clear
demarcations of the surrounding
areas and boundaries. There has
existed a stretch of waste and
"banjar" (Class III) forest land in
a longitudinal strip along the
River bank admeasuring about 22.2
bighas, contiguous and adjacent to
our leased land. Over the years,
and especially after the sever
flood erosion last year, we have
built extensive stone, cemented and
wire-mesh created embankments all
along the river banks at
considerable expanse and cost. We
have also gradually and
painstakingly developed this entire
waste & "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 harmonious manner.
A Revenue map along with all
revenue department records covering
this entire area, is forwarded
enclosed herewith for your
reference and perusal.
We are aware that in accordance
with the Forest Conservation 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 biswas of private
agricultural cultivated land
located at Village MAJHACH,
(Burua), MANALI, in exchange for
the above mentioned 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 wiling to
surrender. The specific Revenue
maps and records concerning this
area of land of Village Majhadh,
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 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 and 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 repeated its request for lease of the additional land by the letter dated July 9, 1991. The said letter further stated as under:-
"We would also like to mention that
the Banjar land adjoining our
hotel, referred to in para 1 above,
lies along the bank of river Beas
which erodes it every year. About
ten years ago almost 4 bighas of
this land were lashed away and the
on flowing water had posed a
serious threat to our hotel
buildings and adjoining area. To
protect our property we were
compelled to erect deep protection
embankments along the banjar land
in question at huge cost the
details of which will be sent to
you shortly. If our proposal is
accepted for the exchange of and it
will become possible for us to take
further steps to protect this
land".
The Divisional Forest Officer, Kullu sent reply dated January 12, 1993 which state as under:-
"In this connection it is intimated
that at present we are not having
funds to put crates and spurs along
the river side near your hotel to
check the soil erosion, as
indicated in your letter referred
to above. In order to protect your
property from the damage, you can
carry out such works at your level,
subject to the condition that the
ownership of the land would vest
with Forest Department and the
Department would not be liable to
pay any among incurred for the
purpose by you at a later stage and
you would not claim any right on
government property."
The above quoted letter can be of no consequence because much before the said letter the Motel had built extensive stone, cemented and wire mash crated embankments all along the river banks. This is obvious from the contents of the letter dated August 30, 1989 (quoted above).
The Motel addressed a letter dated June 21, 1993 to the Chief Secretary, Himachal Pradesh wherein it is clearly stated that the adjoining land measuring 122 bighas and 3 bishwas had been reclaimed by the Motel. The relevant part of the letter is as under:-
"Adjoining our Resort and
Contiguous to our leased land is a
stretch of class III - Banjar
forest land in a longitudinal strip
along the river bank admeasuring 22
Bighas and 3 Biswas. This was a
stony piece of land and used to get
flooded every year during 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:-
"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 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 front along the leased
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 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."
In the letter dated August 7, 1993 addressed to the Divisional Forest Officer, the Motel again asked for 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 6.8.93)
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 reclamation and
protection work by filling the land
from the river bed, constructing
embankments, retaining walls and
crating etc. in order 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 expedite the process of
commencing protection work on an
urgent basis on the forest land, we
propose that the forest land be
given to us on long lease co-
terminus with the lease on 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.
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 an our
adjoining property 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 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 tiled by the Motel refers to the prior approval granted by the Government of India as under:-
"In the Ministry of Environment and
Forests, the proposal was cleared
by the Secretary and forwarded to
the Forest Advisory Committee by
passing the Minister concerned. the
Forest Advisory Committee cleared
the proposal subject to severe
restrictions - and also certain
restrictions which are not normally
imposed in such cases. The proposal
was then cleared at the level of
the Prime Minister and by a letter
of 24th November, 1993, approval
was communicated to the State
Government and SMPL."
it may be mentioned that Mr. Kamal Nath was the minister in charge, Department of Environment and Forests at the relevant time. What is sought to be conveyed by the above quoted paragraph is that Mr. Kamal 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 exchange/lease of the additional forest land. It is only in November, 1993 when Mr. Kamal Nath was the Minister, incharge of the Department that the clearance was given by the Government of India and the lease was granted, Surely it cannot be a coincidence.
This Court took notice of the news item - quoted above - because the facts disclosed therein, it true, would be a serious act of environmental-degradation on the part of the motel. It is not disputed that in September 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. Accordingly to the news item three private companies were engaged to re-claim huge tracts of land around the motel. The main allegation 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 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.
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 Nos. as
any form of river diversion. It is
not necessary to divert the river
because simply providing greater
depth and removing 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 felt bank of
the river (the river bank on the
opposite side of SPAN) is in the
interest of the community and
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
Panchayat of the Village BARAGRAN
BIHAL to carry out dredging
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;
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 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 & protect the
bank against erosion. All the wire
crating runs along the river flow
and not as an obstruction of for
any diversion.
w) It is further submitted that
whereas the report mischievously
refers to villagers of Rangris
Chakki and Naggar nowhere does it
take n to account the very real
problems of villagers of baragran
Bihal which is located immediately
on the Right Bank near the 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."
In the additional affidavit filed by the motel the facts pleaded are as under:
"ii) It had become necessary for
them to undertake this reclamation
and protection work by filling the
land from river bed, constructing
embankments, retaining walls and
crates, etc. in order to protect
the land leased by the Government
to the Resort and the 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 embankments and
filling from the river side by the
Company.....local community of
Kullu and 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 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.
that on 21-22 July, 1992, the then
Chief Secretary to the Government
of Himachal pradesh visited the
site who drew the inference that
M/s, Span Hotel Ltd. were still
using the encroached land. The copy
of note on inspection of the then
Chief Secretary is annexed as R-1.
That immediately on receipt of the
recommendations of the then Chief
Secretary (Annexure k-1), the
Department of Forest started
working at the site but in the mean
time, it was decided to least out a
piece of land measuring 27-12
bighas which includes the said
encroached land measuring 21-09
bighas. The lease granted by the
Government on Himachal Pradesh in
Revenue Department vide letter
No.Rev.D(6)(6-53/93, dated 5.4.1994
is annexed as Annexure R-II after
obtaining the approval of
Government of India, Ministry of
Environment a Forest, New Delhi
vide letter No.9-115/93-ROC, dated
24.11.93 (copy annexed as Annexure
R-III) for the purpose of
protecting earlier leased land.
that the development activities
which was being undertaken by M/s.
Span Motels Ltd. came to the
knowledge of the Government from
the News Item which appeared in the
Press and field officers 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 Health) Government of Himachal Pradesh in her counter affidavit filed in this Court, inter alia, stated as under:
"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 and
wire crated embankments.
The flow of river has been
changed/diverted by
dredging/raising of wire crated
embankments and creating channel
from a point u/s or Span resorts to
D/s of Span Resorts. The
approximate length or channel is
about 1000 miters.
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 of
foot hills except for the last
about 500 meters where. It is
running along the foot hills.
The hill on which village Rangri
and Chakki are situated consists of
small boulders embedded in Sandy
Strata and is quite
fragile/unstable 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 root
hills may hasten/aggravate the
process of land slides. The Span
Management has provided wire crated
embankment in a reach of about so
embankment in a reach of about 90
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
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:
"To protect the newly acquired
land, SMPL took a number of
measures which include construction
of the following as shown in Rig.2:
(a) 8 ros. studs of concrete blocks
8m long and 20m apart on the
eastern face or the club island on
the upstream side,
(b) 180m long stepped wall also on
the eastern race of club island on
the certritieam side,
(c) ?? high bar of concrete blocks
?? the entry at the spill.
(d) For Personal 8 nos. studs also
8m long in 20m apart on the right
bank of the-river Beas in front of
the restation of the SMPL.
While (a) or (b) were aimed at
protecting the club island from the
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, A
medium flood again occurred in
1994. Partly due to the protection
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:
"A big slip occurred on the hill
side on the left bank, at a
distance about 200 m 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
relatively 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
lane area of the club island. The
enquire club building and the
plantation as well as the
protection works built in 1993 were
washed away. heavy debris was
deposited on this. and Damage
occurred on the right bank also but
the buildings of the main SMPL
resort remained more or test and
rented, A large hotel and rare
buildings on the right bank,
relevant adjacent to SMPL, in the
downs Station also washed away.
The bar under knocks at the
upstream end of the spill channel
as well as most of studs of this
channel were also washed away. Some
remnants on five down spread studs
could be seen at the time of the
visit.?. After the passage of 1993
flood, SMPL have taken further
steps o protect their property as
shown in Fig. 3. These are as
follows:
1. The left side channels (the main
channel), which had become 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 revetments and
restoration earth work down would
curtail the entry of water into the
right side relief/spill channel
which had developed into the main
channel during the flood. As
relatively small channel (the
relief/spill channel) still exist;
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
elevations left after the slides
during the flood. These are likely
to slip in any case, and if so
happens, may block the left channel
again, This land belongs to some
villagers from Rangri. The left
bank channel is again sub-dividing
into two streams(d) and the small
stream is flowing close tot he 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.
Strips card be seen in this reach
of 500-600 m even now, and erosion
at toe may aggravate sliding
tendency. SMPL has also put 190 m
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 aimed
at protecting SMPL land, should
normally keep high intensity 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 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
behavior if another high flood
occurs in the near future."
The conclusions given by the inspecting team in the report are as under:
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 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.
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 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, sandwiched between the main
channel and the relier/spill
channel, the land may be deleased
and the Forest Department take care
of plantation in the are after
adequate flood control measures are
taken by the innigation Department.
This is necessitated in view of the
fact that the left bank opposite
SMPL is very sleep (almost
vertical) and is subjected to
potential threat of land slip to
block the channel and cause change
of course of the river flow again.
6.13 Even if land slips occur, the
impact will be local limited only
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
immediately 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 parties, 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. 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 land and the land acquired under the 1994 lease-deed. 4. 22.2 bighas out of the land leased to the motel in 1994 was encroached upon by the motel in the year 1988/89. 5. Prior to the 1995 floods the motel constructed 8 studs of concrete blocks 8m 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 blocks at the entry at the spill channel and additional 8 studs 8m long and 20m apart on the right bank of the river Beas in front of the restaurant of the Motel. 6. After the 1995 floods the motel has dredged the left side channel (the main channel) of the river to increase its capacity. Wire crate revetments 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. 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. 8. The dredging of the main channel of river was done by blasting the big boulders and removing the debris. 9. The month of the natural relief/spill channel has been blocked by wire crates and dumping of boulders. 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.
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 did not permit the motel to block the flood spill/relief channel of the river. 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 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 - 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 not be liable to pay any amount incurred for the said purpose by the Motel. We do not agree. It is obvious from the correspondence between the Motel 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 Kullu - quoted above - the Motel management admitted that "over the years, and especially after the sever flood erosion last year, we have built extensive stone, 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" refereed to in the letter was the adjoining area admeasuring 22.2 bighas which was not on lease with the Motel at that time. The 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 interference with t he natural flow of river Beas has degraded the environment. We have no hesitation in holding that the Motel interfered with the natural flow of the river by trying to block the natural relief/spill channel of the river.
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 young and dynamic river. It runs through Kullu valley between the mountain ranges of the Dhaulandhar in the right bank and the Chandrakheni in the left. The river is fast - flowing, carrying large boulders, at the times or 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 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 ecologically fragile and full or scenic beauty should not have been permitted to be 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 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 public’s interest in environmentally critical resources published in Harvard Environmental law Review Vol. 12 1988 Page 311 in the following words:
"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. The lesson was
driven home by the oil crisis of
the 1970’s as well as by the
pesticide scare of the 1960’s. The
current deterioration of the ozone
layer is another vivid 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 environment, 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
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 of the environment to
service...growth, both in providing
raw materials and in assimilating
by-product wastes due to
consumption. The largesse of
technology can only postpone or
disguise the inevitable."
Professor Barbara Ward has written
of this ecological imperative 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 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 commonly-recognized link
between laws and social values, but
to ecologists a balance between
laws and values is not alone
sufficient to ensure a stable
relationship between humans and
their environment. Laws and values
must also contend with the
constraints imposed by the outside
environment. Unfortunately, current
legal doctrine rarely accounts for
such constraints, and thus
environmental stability is
threatened.
Historically, we have changed the
environment to fit our conceptions
of property. We have fenced, 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
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.
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."
The ancient Roman Empire developed a legal theory known as the "Doctrine or the Public Trust. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general pubic. Our contemporary conceded 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 owners if the effect was to interfere with the public interests in navigation or 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 erudite article "Public Trust Doctrine in natural resource law: effective judicial intervention". Michigan Law Review Vol. 68 Part-1 page 4/3 has given the historical 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 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 emphasized, First,
certain interests, such as
navigation and fishing, were sought
to be preserved for the benefit of
the public; accordingly, 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
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 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*** onjustilled 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 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
though to be imposed by the public
trust: first, 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; second, the
property may not be sold, even for
a fair cash equivalent; and third
property must be maintained in
particular types of uses".
The American law on the subject is primarily based on the decision of the United States Supreme Court in Illinois Central R.R. Company vs. Illinois 146 US 687 (1982). 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 quit title. The court while accepting the stand of the State of Illinois’ held that the title or the State in the land in dispute was a little different in character from that which the State held in lands intended for sails. 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 fishing their in free from obstruction or interference of private parties. The addiction 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 Professor ?? court in Illinois’ Central "articulated a principle that 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 considerable skepticism upon any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the selfinterest of private parties".
In Gould vs. Greylock Reservation Commission 350 Mass 410 (1966), 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 Mount Greylock as a unspoiled natural forest, promoted the creation of an 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 crating 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 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 they Greylock Reservation Commission and the licency Authority. The plaintiffs brought the sult us beneficiaries of the pubic trust. The court has been the lease and the management agreement invalid on the ground that they were in excess or 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
absence 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 or
power to permit use of public lands
and of the Authority’s borrowed
funds for what seems, in part at
least, a commercial 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
state should subordinate a pubic
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 the certain tract of land .....
would, like Illinois Central, was
contented 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 as also
confronted a more pervasive, if
more subtle, problem - that
concerning projects which clearly
have some public justification.
Such cases arise when, for example,
a highway department seeks to take
a pace of parkland or to fill a
wetland."
In Sacco vs. Development of Public Works 352 MASS 670, 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. 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
not include the widening of a State
highway. It seems rather that the
improvement of public lands which
the legislature provided for ... is
to preserve such lands so that they
may be enjoyed by the people for
recreational purposes."
In Robbins vs. Department of Public Works 244 N.E. 2d 577, the Supreme Judicial Court of Massachusetts restrained the Public Works Department from acquiring Fowl Meadows, "Wet lands of considerable natural beauty ... often used for nature study and recreation" for highway use.
Professor Sax in the article (Michigan Law Review) refers to Prieweys. WisconSin State Land and Improvement Company 93 Wis 534 (1896), Crawford County Lever and Drainage district Nos.1, 182, Wis 404, city of Milwaukee vs. State 193 Wis 423, State vs. Public Service Commission 275 Wis 112 and opines that the Supreme Court of Wisconsin has probably made a more conscientious effort to rise above rhetoric and la work out a reasonable meaning for the public trust doctrine than have the courts or any other State".
Professor Sax stated 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 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 diffuse public
interests need protection against
tightly organized groups with clear
and immediate goals. Thus, it seems
that the delicate mixture of
procedural 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 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 vs. Superior Court of Alpine County 33 CAL. 3d 419. 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. Islands in the take protect a large breeding colony of California guits, and the lake itself serves as a haven on the migration route for thousands of birds. Towers and spires of 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 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 of the States public trust doctrine. 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." (Institutes of Justinian
2.1.1.) From this origin in Roman
law, the English common law evolved
the concept of the public trust,
under which the sovereign owns "all
of its navigable waterways and the
lands lying beneath them as trustee
of a public trust for the benefit
of the people."
The Court explained the purpose of the public trust as under:-
"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, "[p]ublic
trust easements [were]
traditionally defined in terms of
navigation, commerce and fisheries.
They have been held to include the
right 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 in the trust res. In
language of special importance to
the present setting, we stated that
"[t]he public uses to which
tidelands are 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
encompassed within 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 secondary and
climate or the area."
Mono Lake is a navigable waterway.
It supports a small local industry
which harvests brine shrimp for
sale as fish food, which endeavor
probably qualifies 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, supra, 6
Cal.3d 251, it is clear that
protection or these values is among
the purposes of the public trust."
The court summed up the powers of the state are trustee in the following 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
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, inter alia, reached the following conclusion:-
"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. 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 demonstrates that an
appropriative water rights system
administered without consideration
of the public trust may cause
unnecessary and unjustified harm to
trust interests. (See Johnson, 14
U.C.Davis LL. Rev.233, 230-257;
Robie, Some Reflections on
Environmental Considerations in
Water Rights Administration, 2
Ecology L.Q.695, 710-711 (1972);
Comment, 33 Hastings L.J. 653,
654.) As a matter of practical
necessity the state may have to
approve appropriations despite
foreseeanie 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
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 conclusion that the plaintiffs could rely on the public trust doctrine in seeking reconsideration of the allocation of 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 Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important land,s for example fresh water, wetlands or riparian forests. The observation of the Court in Mono Lake case to the effect that the protection of ecological values is among the purpose of public trust, may give rise to an argument that the ecology 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. vs. Mississippi 108 S.Ct. 791 (1988), the United States Supreme Court upheld Mississippi’s extension of public trust doctrine to lands underlying nonavigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the pubic trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources.
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 seashore, running waters, airs, forests and ecologically fragile lands. 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.
We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open land sin 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 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 private ownership or for commercial use. The esthetic use and 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 goods and in public interest to encroach upon the said resources.
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 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 recommended deleasing of the said area.
This Court in Vellore Citizens Welfare Forum v. Union of India & Ors. 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 documents,
are inter-Generational Equity, Use
and Conservation of 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
essential features of "Sustainable
Development". The "Precautionary
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.
(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.
(iii) The "Onus of proof" is on the
actor or the
developer/industrialist to snow
that this action is environmentally
benign.
"The Polluter Pays" principle has
been held to be a sound principle
by this Court in Indian Council for
Enviro-Legal Action vs. 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 person
carrying on such 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
by them to villagers in the
affected area, to the soil and to
the underground water and hence,
they are bound to take all
necessary measures to remove sludge
and other pollutants lying in the
affected areas". The "Polluter
Pays" principle as interpreted by
this Court means that the absolute
liability for harm to the
environment extends not only to
compensate the victims of pollution
but also the cost of restoring the
environmental 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 the reversing
the damaged ecology
The precautionary principle and the
polluter pays principle have been
accepted as part of the law of the
land.
It is thus settled by this Court that one who pollutes the environmental must pay to reverse the damage caused by his acts.
We, therefore, order and direct as under: 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 lease-deed dated April 11, 1994 in favor of the Mote 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 Himachal Pradesh Government shall take over the area and restore it to its original-natural conditions. 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 constructions made by the Motel in the river bed and the banks of the river Beas has to be removed and reversed. We direct 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 Mote 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 imposed on the Motel. 5. 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 be on the area o 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 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 pollution control devices/treatment plants set up by the Motel. It the effluent/waste discharged by the Mote 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 Kuliu-Manali area and in case any of 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 us., NEERI shall send its report by December 17, 1996. To be listed on December 18, 1996.
The writ petition is disposed of except for limited purpose indicated above.