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Full Case Details
This Court took notice of the news item appearing in the Indian
Express dated 25.2.1996 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 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 of the snow-capped Zanskar Range. 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 11.4.1994. The
regularisation was done when Mr. Kamal Nath was Minister of Environment and
Forests… The swollen Beas 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.
The heavy earth-mover has been used to block the flow of the river just 500
metres upstream. The bulldozers are creating a new channel to divert the river to at
least one kilometre downstream. The tractor-trolleys move earth and boulders to
shore up the embankment surrounding Span Resorts for laying 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 of rupees.
Three private companies – one each from Chandigarh, Mandi and Kullu – have
moved in one heavy earth-mover (hired at the rate of Rs. 2000 per hour), four earthmovers 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 crores 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.
- This Court took notice of the news item – quoted above – because the facts disclosed
therein, if 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. According to the news item three private companies
were engaged to reclaim huge tracts of land around the Motel. The main allegation in the
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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:
“(l) 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 not 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 left 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 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 and protect the
bank against erosion. All the wire crating runs along the river flow and not
as an obstruction or for any diversion. - This Court by the order dated 6.5.1996 directed the Central Pollution Control Board
(the Board) through its Member Secretary to inspect the environment around the area in
possession of the Motel and file a report. This Court further ordered as under :
“Meanwhile we direct that no construction of any type or no interference in any
manner with the flow of the river or with the embankment of the river shall be made
by the Span Management.” - Pursuant to this Court’s order dated 6.5.1996 the Board filed its report along with the
affidavit of Dr. S.P. Chakrabarti, Member Secretary of the Board. It is stated in the affidavit
that a team comprising Dr. Bharat Singh, Former Vice-Chancellor and Professor Emeritus,
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University of Roorkee, Dr. S.K. Ghosh, Senior Scientist and former Head, Division of Plant
Pathology (NF), Kerala Forest Research Institute, Peechi, Trichur and Dr. S.P. Chakrabarti,
Member Secretary, Board was constituted. The team inspected the area and prepared the
report. Para 4.2 of the report gives details of the construction done by the Motel prior to 1995
floods. The relevant part of the paragraph is as under:
“To protect the newly-acquired land, SMPL took a number of measures which
include construction of the following as shown in Fig. 2 —
(a) 8 nos. studs of concrete blocks 8 m long and 20 m apart on the eastern face
of the club island on the upstream side,
(b) 150 m long stepped wall also on the eastern face of club island on the
downstream side,
(c) A 2 m high bar of concrete blocks at the entry at the spill channel, and
(d) Additional 8 nos. studs also 8 m long and 20m apart on the right bank of
River Beas in front of the restaurant of the SMPL.
While (a) & (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 of 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.” - 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 leasehold land from floods. According to him the Divisional Forest
Officer by the letter dated 12.1.1993 – 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 12.1.1993, the Motel had made various
constructions on the surrounding area and on the banks of the river. In the letter dated
30.8.1989 addressed to the Divisional Forest Officer, Kullu – quoted above – the Motel
management admitted that “over the years, and especially after the severe flood erosion last
year, we have built extensive stone, cemented and wire-mesh-crated embankments all along
the river banks at considerable expense and cost. We have also gradually and painstakingly
developed this entire waste and banjar area.” The “Banjar area” referred 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 the natural flow of River Beas has degraded the environment. We
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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
Government are situated at the bank of River Beas. Beas is a young and dynamic river. It
runs through Kullu Valley between the mountain ranges of the Dhauladhar in the right bank
and the Chandrakheni in the left. The river is fast-flowing, carrying large boulders, at the
times 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 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. - 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 12 Harv. Envtl. L. Rev.
311 (1988) is 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.
This lesson was driven home by the oil crisis of the 1970s as well as by the pesticide
scare of the 1960s. 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.’
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
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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 fiat;
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 of 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 public. Our contemporary concern about “the environment”
bear a very close conceptual relationship to this legal doctrine. Under the Roman law these
resources were either owned by no one (res nullious) or by every one in common (res
communious). Under the English common law, however, the Sovereign could own these
resources but the ownership was limited in nature, the Crown could not grant these properties
to private 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,” 68 Mich. L. Rev. 473, 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 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 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. According to Professor Sax the Public Trust Doctrine imposes the
following restrictions on governmental authority :
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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. - The American law on the subject is primarily based on the decision of the United
States Supreme Court in Illinois Central Railroad Co. v. People of the State of Illinois [146
US 387 (1892)]. In the year 1869 the Illinois Legislature made a substantial grant of
submerged lands – a mile strip along the shores of Lake Michigan extending one mile out
from the shoreline – to the Illinois Central Railroad. In 1873, the Legislature changed its
mind and repealed the 1869 grant. The State of Illinois sued to quite title. The Court while
accepting the stand of the State of Illinois held that the title of the State in the land in dispute
was a title different in character from that which the State held in lands intended for sale. It
was different from the title which the United States held in public lands which were open to
pre-emption 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
therein free from obstruction or interference of private parties. The abdication of the general
control of the State over lands in dispute was not consistent with the exercise of the trust
which required the Government of the State to preserve such waters for the use of the public.
According to Professor Sax the Court in Illinois Central [146 US 387 (1892)] “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 scepticism upon any governmental conduct which is calculated either
to relocate that resource to more restricted uses or to subject public uses to the self-interest of
private parties.” - In Gould v. Greylock Reservation Commission [350 Mass 410 (1966)], the Supreme
Judicial Court of Massachussets took the first major step in developing the doctrine applicable
to changes in the use of lands dedicated to the public interest. In 1886, a group of citizens
interested in preserving Mount Greylock as an 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 creating the Greylock
Reservation Commission. In the year 1953, the legislature enacted a statute creating an
Authority to construct and operate on Mount Greylock an Aerial Tramway and certain other
facilities and it authorised the Commission to lease to the Authority any portion of the Mount
Greylock Reservation. Before the project commenced, five citizens brought an action against
both the Greylock Reservation Commission and the Tramway Authority. The plaintiffs
brought the suit as beneficiaries of the public trust. The Court held both the lease and the
management agreement invalid on the ground that they were in excess of the statutory grant
of the authority. The crucial passage in the judgment of the Court is as under:
The profit-sharing feature and some aspects of the project itself strongly suggest
a commercial enterprise. In addition to the 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
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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 public park, serving a useful purpose as relatively undeveloped land, to
the demands of private investors for building such a commercial facility. The court,
faced with such a situation, could hardly have been expected to have treated the case
as if it involved nothing but formal legal issues concerning the State’s authority to
change the use of a certain tract of land…. Gould, like Illinois Central, was
concerned with the most overt sort of imposition on the public interest : commercial
interests had obtained advantages which infringed directly on public uses and
promoted private profits. But the Massachusetts court has also confronted a more
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 piece of parkland or to fill a wetland. - In Sacco v. Development of Public Works [532 Mass 670], the Massachusetts Court
restrained the Department of Public Works from filing 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 improvements 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 v. Deptt. of Public Works [244 NE 2d 577], the Supreme Judicial Court of
Massachusetts restrained the Public Works Department from acquiring Fowl Meadows,
“wetlands of considerable natural beauty… often used for nature study and recreation” for
highway use. - Professor Sax … opines that “the Supreme Court of Wisconsin has probably made a
more conscientious effort to rise above rhetoric and to work out a reasonable meaning for the
public trust doctrine than have the courts of any other State.” - Professor Sax stated the scope of the public trust doctrine in the following words:
If any of the analysis of 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 diffused 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,
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the location of rights of way for utilities, and strip mining of wetland filling on
private lands in a State where governmental permits are required. - We may at this stage refer to the judgment of the Supreme Court of California in
National Audubon Society v. Superior Court of Alpine Country [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 supports a large population of brine
shrimp which feed vast numbers of nesting and migrating birds. Islands in the lake protect a
large breeding colony of California gulls, and the lake itself serves as a haven on the
migration route for thousands of birds. Towers and spires of tura (sic) 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 abandoning the lake and the scenic beauty and the ecological values of Mono Lake were
imperilled. 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 State’s 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 [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 favouring one mode of utilization over
another. There is a growing public recognition that one of the 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 favourably affect the scenery and climate of the
area.’
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Mono Lake is a navigable waterway. It supports a small local industry which
harvests brine shrimp for sale as fish food, which endeavour probably qualifies the
lake as a ‘fishery’ under the traditional public trust cases. The principal values
plaintiffs seek to protect, however, are the 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 [6 Cal 3d 251], it is clear that
protection of these values is among the purposes of the public trust.
The Court summed up the powers of the State as trustee in the following 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 As a matter of practical necessity the State may have to improve
appropriations despite foreseeable harm to public trust uses. In so doing, however,
the State must bear in mind its duty as trustee to consider the effect of the taking on
the public trust 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 [33 Cal 3d 419] clearly
show the judicial concern in protecting all ecologically important lands, for example fresh
water, wetlands or riparian forests. The observations of the Court in Mono Lake case to the
effect that the protection of ecological values is among the purposes of public trust, may give
rise to an argument that the ecology and the environment protection is a relevant factor to
determine which lands, waters or airs are protected by the public trust doctrine. The Courts in
United States are finally beginning to adopt this reasoning and are expanding the public trust
to encompass new types of lands and waters. In Phillips Petroleum Co. v. Mississippi [108
SCt 791 (1988)], the United States Supreme Court upheld Mississippi’s extension of public
trust doctrine to lands underlying non-navigable 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 public trust
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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 ecosystems 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 sea-shore,
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
lands in their pristine purity and those charged with administrative responsibilities who, under
the pressures of the changing needs of an increasingly complex society, find it necessary to
encroach to some extent upon open lands heretofore considered inviolate 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 aesthetic use and the pristine glory of the natural resources, the
environment and the ecosystems 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. - 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 the
riverbed. Even the Board in its report has recommended de-leasing of the said area. - This Court in Vellore Citizens’ Welfare Forum v. Union of India [(1996) 5 SCC
647] explained the “Precautionary Principle” and “Polluter Pays Principle”. The Polluter Pays
Principle’ has been held to be a sound principle by this Court in Indian Council for EnviroLegal Action v. Union of India [(1996) 3 SCC 212]. - It is thus settled by this Court that one who pollutes the environment must pay to
reverse the damage caused by his acts. - We, therefore, order and direct as under:
- The public trust doctrine, as discussed by us in this judgment is a part of the law of
the land. - The prior approval granted by the Government of India, Ministry of Environment
and Forest by the letter dated 24.11.1993 and the lease deed dated 11.4.1994 in favour of
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the Motel are quashed. The lease granted to the Motel by the said lease deed in respect of
27 bighas and 12 biswas of area, is cancelled and set aside. The 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 pollution caused by various constructions
made by the Motel in the riverbed and the banks of 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 Motel to the environment and ecology of the area. NEERI may take into
consideration the report by the Board in this respect. - The Motel through its management shall show cause why pollution fine in
addition be not imposed on the Motel. - The Motel shall construct a boundary wall at a distance of not more than 4 metres
from the cluster of rooms (main building of the Motel) towards the river basin. The
boundary wall shall be on the area of the Motel which is covered by the lease dated
29.9.1981. 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. - The Motel shall not discharge untreated effluents into the river. We direct the
Himachal Pradesh Pollution Control Board to inspect the pollution control devices/
treatment plants set up by the Motel. If the effluent/waste discharged by the Motel is not
conforming to the prescribed standards, action in accordance with law be taken against
the Motel. - The Himachal Pradesh Pollution Control Board shall not permit the discharge of
untreated effluent into River Beas. The Board shall inspect all the
hotels/institutions/factories in Kullu-Manali area and in case any of them are discharging
untreated effluent/waste into the river, the Board shall take action in accordance with law. - The Motel shall show cause on 18.12.1996 why pollution fine and damages be not
imposed as directed by us. NEERI shall send its report by 17.12.1996. To be listed on
18.12.1996. - The writ petition is disposed of except for limited purpose indicated above
