ASSIGNMENT ON:-

ENVIRONMENTAL LAW

Submitted By,
ANILA UMESH
ROLL NO: 8
SEMESTER VII
B. B. A. LL.B. (Hons.)
SLS, CUSAT

Case Laws:-

1. M. C. MEHTA v. KAMAL NATH (1997)1 SCC 744

2. M.I. BUILDERS v. RADHEY SHYAM SAHU AIR

1999 SC 2468
3. FOMENTO

RESORTS

AND

HOTELS

MINGUEL MARTINS (2009) 3 SCC 571

LTD.

v.

CONTENTS
Particulars

Page No.

1. M.C. MEHTA V. KAMAL NATH............... 4

1.1. Facts of the case............................................................................ 4
1.2.

Arguments for the defendants............................................. 5

1.3.

Judgement of the Court........................................................... 5

1.4.

Orders of the Court................................................................... 7

2. M.I.

BUILDERS

v.

RADHEY

SHYAM

SAHU............................................................ 8
2.1.

Facts of the Case.......................................................... 8

2.2.

Judgement of the Court............................................... 9

2.3.

Orders of the Court..................................................... 10

3. FOMENTO RESORTS AND HOTELS LTD. v.

MINGUEL MARTINS................................. 11
3.1.

Facts of the Case......................................................... 11

3.2.

Judgement by the Court............................................ 14

3.3.

Orders of the Court.................................................... 15

4. CONCLUSION.............................................. 16
5. BIBLIOGRAPH............................................ 17

1. M. C. MEHTA v. KAMAL
NATH1
M. C. Mehta v. Kamal Nath was a landmark case in Indian environmental. In the case, the
Supreme Court of India held that the public trust doctrine applied in India.

Facts of the case

The Indian Express published an article reporting that Span Motels Private Limited, which
owns Span Resorts, had floated another ambitious venture, Span Club. The family of Indian
politician Kamal Nath has direct links with this company.2The club was built after
encroaching upon 27.12 bighas of land, including substantial forestland, in 1990. The land
was later regularised and leased out to the company on April 11, 1994.
The regularisation was done when Nath was Minister of Environment and Forests. This
encroachment led to the swelling of the Beas River, and the swollen river changed its course
and engulfed 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.
A worrying thought was that of the river eating into the mountains, leading to landslides
which were an occasional occurrence in that area. In September, these caused floods in the
Beas and property estimated to be worth Rs. 105 crore was destroyed. The Government of
India, Ministry of Environment and Forests by the letter dated 24.11.1993, 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. An expert
committee formed to assess the situation of the area arrived at the following conclusion,

(1997)1 SCC 744

"PM declares his FDs, Kamal Nath&Deora business interests". Indian Express. 9 June 2011. Retrieved 14 May
2013.
2

The river is presently in a highly unstable regime after the extraordinary floods of 1995, and
it is difficult to predict its behaviour if another high flood occur in the near future. A longterm 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.

Arguments for the defendants

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.

Divisional Forest Officer 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.

However, it could be easily ascertained from the facts that the Motel had made various
constructions on the surrounding area and on the banks of the river.

Judgement of the Court

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. The river is fastflowing, carrying large boulders, at the time of flood. When water velocity is not sufficient to
carry the boulders, those are deposited in the channel often blocking the flow of water. Under
such circumstances the river stream changes its course, remaining within the valley but
swinging from one bank to the other. The right bank of the river Beas where the 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 of scenic beauty should not have been permitted to be converted
into private ownership and for commercial gains.

Doctrine of Public trust under Roman Law

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 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 general public. Under the
Roman law these resources were either owned by no one (Res Nullious) or by everyone in
common (Res Communious).
Doctrine of Public trust under English common Law
Under the English common law, however, the Sovereign could own these resources but the
ownership was limited in nature, the Crown could not grant these properties to private owners
if the effect was to interfere with the public interests in navigation of fishing. Resources that
were suitable for these uses were deemed to be held in trust by the Crown for the benefit of
the public. The Public Trust Doctrine primarily rests on the principle that certain resources
like air, sea, waters and the forests have such a great importance to the people as a whole that
it would be wholly unjustified to make them a subject of private ownership. 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. Three types of restrictions on governmental authority are
often thought 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, the property
must be maintained for particular types of uses.
Lake Mono Case3
Supreme Court of California said in the Mono Lake case, .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
3

National Audubon Society vs. Superior Court of Alpine County 33 CAL. 3d 419

of that right is consistent with the purposes of the trust...." 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. 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. The esthetic use and the pristine
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.
The Court said that they had 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 riverbed. Even the board in its report has recommended deleasing of the said area.

Orders of the Court

The public trust doctrine, as discussed by the Court in this judgment was a part of the law of
the land. The prior approval granted by the Government of India, Ministry of Environment
and Forest and the lease-deed dated 11.04.1994 in favour of the Motel were 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. The Motel shall pay compensation by way of
cost for the restitution of the environment and ecology of the area. The Court delivered a land
mark judgment and established principle of exemplary damages for the first time in India.
The Court said that polluter must pay to reverse the damage caused by his act and imposed a
fine of Rs Ten Lakhs (Rs 10,00,000) on the Span motel as exemplary damages. The Supreme
Court of India recognized Polluter Pays Principle and Public Trust Doctrine. It is interesting
to note that the Supreme Court held that even if there is a separate and a specific law to deal
with the issue before the Court, it may still apply public trust doctrine. If there is no suitable
legislation to preserve the natural resources, the public authorities should take advantage of
this doctrine in addition to the fact that there was a branch of municipal law.

2. M.I.

BUILDERS

v.

RADHEY

SHYAM SAHU4

Facts of the Case

Here, the Lucknow Nagar Mahapalika (i.e. Lucknow City Corporation) granted permission to
a private builder to construct an underground shopping complex was against the municipal
Act and Master plan of the city of Lucknow. The builder was supposed to develop the site at
its own cost and then to realize the cost with profit not exceeding more than 10% of the
investment in respect of each shop. Under the terms of the agreement, full freedom was given
to the builder to0 lease out the shops as per its own terms and conditions to persons of its
choice on behalf of the Mahapalika. The builder was also given the right to sign the
agreement on behalf of the Mahapalika and was only required to a copy to the Mahapalika
after its execution. Both the builder and the Mahapalika were to be bound by the terms of that
agreement.

In the High Court:

When the matter was challenged, the High Court set aside and quashed the agreement
between Mahapalika and the builder, and the relevant order of the Mahapalika permitting
such construction. The Court ordered Mahapalika to restore the park to its original position
within a period of three months from the date of the judgment and until that was done, to take
adequate measures and to provide necessary safeguards and protections to the users of the
park. The High Court took the accounts of the fact that Mahapalika never denied the
historical importance of the park and the preservation or maintenance of the park was
necessary from environmental angle. However, the only reason advanced by Mahapalika for
4

AIR 1999 SC2468

the construction of the underground commercial complex was to ease the congestion in the
area. The High Court took judicial notice of the conditions prevailing at the site and found
that the construction of an underground market would further congest the area. It added that
the public purpose, which is alleged to be served by construction of the underground
commercial complex, seemed total illusory.

Judgement of the Supreme Court

On appeal by the builders, the Supreme Court held that the terms of agreement showed that
the clauses of the agreement are unreasonable, unfair and atrocious. The Mahapalika, as a
trustee for the proper management of the park, has to be more cautious in dealing with its
properties. The Court added that the land of immense value had been handed over to it to
construct an underground shopping complex in violation of the public trust doctrine. The
maintenance of the park, because of its historical importance and environmental necessity,
was in itself a public purpose. Therefore, the construction of an underground market in the
grab of decongesting the area was wholly contrary and prejudicial to the public purpose. By
allowing the construction, Mahapalika has deprived its residents, and also others, of the
quality of life to which they were entitled to under the Constitution and under the Municipal
Act.
The agreement was opposed to public policy and not in the public interest. Mahapalika
allowed the commercial shopping complex to be build upon a public park in clear defiance of
the Uttar Pradesh Municipal Corporation Adhiniyam 1959. In addition, the Mahapalika
violated the public trust doctrine and the Court ordered the demolition of the unauthorized
shopping complex.
The Supreme Court, in M.I. Builders reconfirmed that the public trust doctrine is established
in the Indian legal system and asserted that the public authorities should act as trustees of
natural resources. However, it is clear from all these cases that the court did not confer any
property right on the public under the trust. While applying the public trust doctrine, the
Court in all these cases, took account of either the polluter pays the principle or the
precautionary principle or both.

The Supreme Court in M.I.builders case, however, stated that public trust doctrine has grown
from Article 21 of the constitution. By attaching this doctrine to the fundamental right to life,
the Supreme Court appears to be willing to diversify the application of this doctrine. It seems
likely that the court would give precedence to right to life when the public trust doctrine, as a
part of right to a safe and healthy environment, is challenged by any other fundamental rights.

Orders by the Court

The Court ordered Mahapalika to dismantle the whole structure and restore the park to its
original condition leaving a portion for construction for parking. By ordering the Mahapalika
to restore the park to its original beauty, the Supreme Court redefined the duties of a trustee
to its beneficiaries the users of the park. In effect, it aligned the local authoritys duty as a
trustee with the concept of intra-generational and inter-generational equity.

10

3. FOMENTO

RESORTS

HOTELS

v.

LTD.

MARTINS

AND

MINGUEL

Facts of the Case

Dr. Alvaro RemiojoBinto owned several parcels of land in VillageTaleigao, District Tiswadi
Goa. He sold plotsto Gustavo Renato da Cruz Pinto and to M/s.Sociedade e Fomento
Industries Pvt. Ltd., who after purchasing the land, leased out the same to appellant
No.1,Fomento Resorts and Hotels Limited. The latter submitted an application to Gram
Panchayat for grant of permission to construct hotel complex nearVainguinim beach. On a
reference made by the Gram Panchayat, Chief Town Planner, Government of Goa, Daman
and Diu vide his letter dated 1.8.1978 informedthat the plans submitted by appellant No.1 are
in conformity with the regulations inforce in the area but observed that right of the public to
access the beach must be maintained by providing necessary footpath. Thereafter, the Gram
Panchayat issued letter dated 22.8.1978, whereby appellant No.1 was permitted to lay access
road linking Dona-Paola-Bambolim Roadto the construction site and construct the hotel
subject to the conditions specified inthe letter including the one relating to public access to
the beach. This was reiteratedby the Sarpanch of the Gram Panchayat in his letter dated
1.12.1978.
In furtherance of the permission granted by the Gram Panchayat,appellant No.1 commenced
construction of the hotel, which is now known as HotelCidade de Goa and completed the
same by May, 1983.During construction of the hotel building, appellant No.1 made
anapplication dated 29.9.1979 to the Sarpanch of the Gram Panchayat, for permission to
change the location of the footpath and parking area by stating that in view ofinstallation of
10,000 Kg. gas tank (poisonous gas at high pressure), pressurizedwater tank and high voltage
electric transformer near the hotel building, it will notbe in public interest to locate the
5

(2009) 3 SCC 571

11

footpath and parking area at the sanctioned site. The Sarpanch of the Gram Panchayat on his
own, wrote letterdated 29.9.1979 to appellant No.1 giving an impression that the Gram
Panchayath does not have any objection to the change of location of the footpath and
parkingarea. Thereafter, appellant No.1 is said to have shifted access to the beach from
thelocation originally sanctioned. However, the maps produced before the Courtduring the
course of hearing show that the footpath is still near the gas tank.
Appellant No.1 made an application dated 15.11.1978 to Shri Shankar Laad, Minister of
Revenue, Government of Goa for acquisition of land comprised in survey Nos.246/3, 246/4,
246/2, 245/2, etc. for construction of Beach Resort Hotel Complex by highlighting its benefit
to the State. Acting on the application made by the developer, the Government of Goa issued
notification No.HD/LQN/315/78 dated 29.10.1980 under Section 4(1) of LandAcquisition
Act, 1894 (for short `the 1894 Act') for acquisition of the plots comprisedin survey No.246/2
and survey No.245/2. After holding enquiry under Section 5A of the 1894 Act, the State
Government issued declaration under Section 6, which was published in Gazette dated
27.10.1983.
In the meanwhile, appellant No.1 entered into an agreement with thegovernment as per the
requirement of Section 41 of the 1894 Act. The agreement was signed on 26.10.1983. After
delivery of possession of the acquired land, Smt. AnjuTimblo,Director of appellant No.1,
made an application to Panjim Planning and Development Authorityunder Sections 44(1)
read with Section 49(1) of the Goa, Daman & Diu Townand Country Planning Act, 1974 for
grant of permission for extension of the existing hotel building.
The aforementioned application was considered by the EEC in its 23rdmeeting held on
11.6.1987 and was favourably recommended subject to the conditionthat pedestrian path
along the beach may be made available by constructing anaccess from the jetty so that public
can reach the beach during the high tide period.Thereafter, the matter was considered in the
meeting of the EDC held on 11.9.1987and it was decided to accept the recommendations of
the EEC, subject to thecondition regarding pedestrian path. The decision of the EDC was
communicated toSmt. AnjuTimblo by the Chief Town Planner vide his letter dated
14.10.1987.In furtherance of the decision taken by the EDC, the DevelopmentAuthority
issued an order under Section 44(3)(c) read with Section 49(2) of the Townand Country
Planning Act whereby permission was granted to appellant No.1 for extension of the existing
hotel building.

12

After some time another application was made on behalf of appellant No.1 under Section 46
read with Section 44 of the Town and Country Planning Act for renewal of the permission
granted vide order dated 15.4.1988 with a deviation inrespect of plots bearing survey
Nos.246/1, 2, 3 and 4. Thus, for the first time, a request was made for raising construction in
the said plot in the garb of making deviation from the permission already granted. This
application was was straightaway considered by theGoa Town and Country Planning Board
in its meeting held on 20.6.1991 as an additional item and the decision of the Board was
forwarded by the State Government to the Development Authority. However, without even
waiting for consideration by the competent body, appellant No.1 appears to have started
construction by deviating from the approved plan. This compelled the Chairman ofthe
Development Authority to send letter dated 12.7.1991 to appellant No.1 requiringit to refrain
from going ahead with further construction.
When appellant No.1 started extension of the hotel building in violation ofthe permission
accorded by the EDC, Shri Minguel Martins, who claims to havepurchased plots carved out
of survey No. 242/1, popularly known as`Machado's Cove', filed Writ Petition for issue of a
direction to the State Government, Village Panchayat Taleigao and other official respondents
to remove the illegal construction made by appellant No.1, to refrain from granting
anypermission for construction or regularizing the construction already made byappellant
No.1 and also revoke the permission granted vide order dated 15.4.1988. He further prayed
for issue of a direction to keep the traditional access to the beach open.The Goa Foundation,
which is the registered society and is engaged in theprotection of ecology and environment in
the State of Goa and Dr.ClaudoAlvares, Secretary of the Goa Foundation filed another Writ
Petition with similar prayers. They also invoked Article 51(g) of theConstitution of India and
pleaded that the Vainguinim beach, which is a public asset, is sought to be privatized by the
respondents (appellants herein) and they have advertised the hotel in foreign country as
having a private beach. Shri Gustavo Renato da Cruz Pinto, who had earlier filed Special
Civil Suit for pre-emption, also joined the fray by filing a similar Writ Petition.
This Court was called upon to consider whether the appellant was entitled to block
passage to the beach by erecting fence in the garb of protecting its property.
The Court has reiterated the Doctrine and observed that the natural resources including
forests, water bodies, rivers, etc are held by the State as a trustee on behalf of public and
especially for future generations.

13

Judgement of the Supreme Court

.
The court observed:The public trust 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. This doctrine puts an implicit embargo on the right of the State to
transfer public properties to private party if such transfer affects public interest, mandates
affirmative State action for effective management of natural resources and empowers the
citizens to question ineffective management thereof. The heart of the public trust doctrine is
that it imposes limits and obligations upon government agencies and their administrators on
behalf of all the people and especially future generations. For example, renewable and nonrenewable resources, associated uses, ecological values or objects in which the public has a
special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to
impair such resources, uses or values, even if private interests are involved. The same
obligations apply to managers of forests, monuments, parks, the public domain and other
public assets. Professor Joseph L. Sax in his classic article, The Public Trust Doctrine in
Natural Resources Law: Effective Judicial Intervention (1970), indicates that the public trust
doctrine, of all concepts known to law, constitutes the best practical and philosophical
premise and legal tool for protecting public rights and for protecting and managing resources,
ecological values or objects held in trust. The public trust doctrine is a tool for exerting longestablished public rights over short-term public rights and private gain. Today every person
exercising his or her right to use the air, water, or land and associated natural ecosystems has
the obligation to secure for the rest of us the right to live or otherwise use that same resource
or property for the long-term and enjoyment by future generations. To say it another way,
a landowner or lessee and a water right holder has an obligation to use such resources in a
manner as not to impair or diminish the peoples rights and the peoples long-term interest in
that property or resource, including down slope lands, waters and resources.
We reiterate that natural resources including forests, water bodies, rivers, seashores,
etc. are held by the State as a trustee on behalf of the people and especially the future
generations. These constitute common properties and people are entitled to uninterrupted use
14

thereof. The State cannot transfer public trust properties to a private party, if such a transfer
interferes with the right of the public and the court can invoke the public trust doctrine and
take affirmative action for protecting the right of people to have access to light, air and water
and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems.

Orders by Court
Supreme Court dismissed the appeal. Since execution of most of the directions given by the
High Court remained stayed during the pendency of these appeals, the following directions
were issued:-

(i)

The appellants are allowed three months' time to demolish the extended portion of

the hotel building which was constructed on 1000 sq. mts. of survey No.803 (new No.246/2)
and, thereafter report the matter to the Development Authority which shall, in turn, submit a
report to that effect to Goa Bench of the Bombay High Court.

(ii)

If the appellants fail to demolish the building and report the matter to the

Development Authority within the time specified in direction no. (i) above, the concerned
authority shall take action in accordance with paragraphs (a) and (b) of the operative part of
the High Court's order.

(iii)

The access shown in plan Exhibit-A attached to Writ Petition filed by Minguel

Martins shall be kept open without any obstruction of any kind from point `A' to `B' in order
to come from Machado's Cove and then go to the beach beyond point `B'. If during pendency
of the litigation, appellant No.1 has put up any obstruction or made construction to block or
hinder access to the beach through survey No.803 (new No.246/2), then the same shall be
removed within one month from today.

15

CONCLUSION
From the above three case laws, it is evident that the state is not the owner of the natural
resources in the country but a trustee who holds fiduciary relationship with the people. By
accepting this task the government is expected to be loyal to the interests of its citizens and to
discharge its duty with the interest of the citizens at heart and involve them in decisionmaking process concerning the management of natural resources in the country. The Public
Trust Doctrine may provide the means for increasing the effectiveness of environmental
impact assessment laws. Thus, under this doctrine, the state has a duty as a trustee under Art.
48A to protect and improve the environment and safeguard the forests and wildlife of the
country. While applying Art. 21 (right to life), the state is obliged to take account of Art.
48A, a Directive Principle of State Policy. The state's trusteeship duties has been expanded to
include a right to a healthy environment
In giving effect to the wider constitutional principles of economic justice and prudent natural
resource management that respects public interest, the public trust doctrine is a significant
addition to the armoury of the Indian Judiciary.

The public trust doctrine has become a relevant factor in the decisional discourse of the
Indian Judiciary in the last decade on issues surrounding the protection/distributive allocation
of natural resources.

16

BIBLIOGRAPHY

1.

P Leelakrishnan, Environmental Law Case Book, Lexis Nexis Butterworths, 2nd

Edn. 2006

2.

Shyam Divan, Armin Rozencranz, Environmental law and policy in India, Oxford
University Press 2nd Edn, 2001

3.

Ken

oghill, Professor

harles Sampford, Tim Smith, Fiduciary Duty and the

Atmospheric Trust, Ashgate Publishing Ltd., 2013

17