Mehta Vs. Kamal Nath & Ors  INSC 1608 (13 December 1996)
Singh, S. Saghnr Ahmad Kuldip Singh J.
13TH DAY OF DECEMBER, 1996 Present:
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.
following judgment of the Court was delivered:
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.
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.
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.
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.
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.
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.
Kamal Nath was here for a short while two-three months ago.
came, saw what was going on and left. I suppose he knows what he is
doing", says another executive.
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.
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
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".
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.
that the shareholding of SPAN MOTELS PVT. LTD. is as under:
% 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".
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.
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 there from.
the effective distance between the edge of the river and the cluster of rooms
is 40 meters.
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.
Revenue map along with all revenue department records covering this entire area,
is forwarded enclosed herewith for your reference and perusal.
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".
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
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....
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.
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.....
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.
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.
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:
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.
dredging the river, depth has been provided to the river channel thus enhancing
its capacity to cope with large volume of water.
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.
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.
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.
Accordingly alleviation measures conducted by the company and the villagers of
BARAGRAN BIHAL were as under;
Dredging of debris deposit:
deposits in river basin which had collected due to the floods were removed by
deepens the channel and thus allows larger flow of water.
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.
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.
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:
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.
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:
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.
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.
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".
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:
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.
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.
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.
hill on which village Rangri and Chakki are situated consists of small boulders
embedded in Sandy Strata and is quite fragile/unstable in nature.
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.
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.
relevant part of the paragraph is as under:
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,
180m long stepped wall also on the eastern race of club island on the certritieam
high bar of concrete blocks ?? the entry at the spill.
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.
(a) or (b) were aimed at protecting the club island from the main current,
to discourage larger inflow into the spill channel. Item
meant to protect the main resort land or SMPL if heavy flow comes into 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:
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.
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.
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
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.
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.
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 up to moderate
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:
relief channel is supposed to be the government land.
of any sort to block the natural flow of water is illegal and no permission has
been taken from the concerned department.
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.
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.
No new construction should be allowed in this flood prone area except flood
economic activity should be undertaken in the aforementioned stretch.
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.
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.
Even if land slips occur, the impact will be local limited only to the stretch
of the Beas river near SMPL.
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:
lease hold area in possession of the motel is a part of the protected forest
land owned by the State Government.
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.
wooden bridge on the spill channel connects the main motel land and the land
acquired under the 1994 lease-deed.
22.2 bighas out of the land leased to the motel in 1994 was encroached upon by
the motel in the year 1988/89.
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.
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.
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.
dredging of the main channel of river was done by blasting the big boulders and
removing the debris.
month of the natural relief/spill channel has been blocked by wire crates and
dumping of boulders.
The construction work was not done under expert advice.
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.
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.
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.
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.
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
"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.
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.
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
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:
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
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:
forget moral imperatives.
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.
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.
sum, ecologists view the environmental sciences as providing us with certain
laws of nature.
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, sea- shore, 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.
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:
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.
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.
the state apparently did protect public uses, no evidence is available that
public rights could be legally asserted against a recalcitrant government.
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.
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".
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.
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 self- interest of private parties".
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 .....
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.
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.
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".
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.
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
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......
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);
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.
no doubt correct that the public trust doctrine under the English Common Law
extended only to certain traditional uses such as navigation, commerce and
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.
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.
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.
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.
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 -
Environment measures - by the State Government and the statutory authorities -
must anticipate, prevent and attack the causes of environmental degradation.
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
The "Onus of proof" is on the actor or the developer/industrialist to
snow that this action is environmentally benign.
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
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.
thus settled by this Court that one who pollutes the environmental must pay to
reverse the damage caused by his acts.
therefore, order and direct as under:
public trust doctrine, as discussed by us in this judgment is a part of the law
of the land.
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
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.
Motel through its management shall show cause why pollution fine in addition be
not imposed on the Motel.
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.
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.
Himachal Pradesh Pollution Control Board shall not permit the discharge of
untreated effluent into river Beas.
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.
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.
writ petition is disposed of except for limited purpose indicated above.