M.C. Mehta v Kamal Nath (1997, 2000 and 2002) — the Span Motels litigation

This is the case that brought the public trust doctrine into Indian law, and it is the compulsory case for that head of Module 2.

But the litigation is really three cases, and each answers a different examinable question:

| Stage | Question | Answer | |---|---|---| | 1997 | Can the State lease ecologically fragile public land for a commercial resort? | No. Public trust is part of the law of the land; the leases were a patent breach of trust and were quashed. | | 2000 | Can the Court impose a pollution fine in a writ petition? | No — a fine follows a trial and a finding of guilt under the statute, and Art. 142 cannot supply what the statute withholds. | | 2002 | Then what? | Exemplary damages — a civil remedy — fixed at Rs. 10 lakhs, separate from the polluter pays liability. |

The Court took suo motu notice of a news item in the Indian Express of 25 February 1996. The report described Span Motels Private Limited, which owned Span Resorts in the Kullu-Manali valley, and a further venture, Span Club, built on the bank of the Beas:

"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."

The report then described the response: "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." Three private companies had moved in machinery, and the reclaiming operation was "likely to cost over a crore of rupees".

It added a warning: "Another worrying thought is that of the river eating into the mountains, leading to landslides which are an occasional occurrence in this area."

The Court took notice because the facts, if true, "would be a serious act of environmental degradation on the part of 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."

The Motel's answer was that the works were protective, not diversionary: "By dredging the river, depth has been provided to the river channel thus enhancing its capacity to cope with large volume of water"; wire crates on both banks were "to strengthen and protect the banks from erosion and not any form of river diversion"; the crating on the left bank was "in the interest of the community and nearby residents/villages"; and the dredging was "the common concern of the Company as well as of the Panchayat".

The Court rejected that account and recorded a finding — later made unassailable — that "the Motel by constructing walls and bunds on the river Banks and in the river Bed, as detailed in the judgment, has interfered with the flow of the river".

The comparative material

Kuldip Singh J. built the doctrine from American authority, and an answer that reproduces the chain scores well.

Origin. From the Supreme Court of California in the Mono Lake case, National Audubon Society v Superior Court of Alpine County: "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 that Roman origin "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 facts of Mono Lake. Mono Lake is the second largest lake in California; saline, with no fish but a large population of brine shrimp feeding "vast numbers of nesting and migrating birds". 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". The lake level dropped, the surface area diminished, "the gulls were abandoning the lake", and the scenic and ecological values were imperilled.

The expansion of the trust beyond the traditional triad. Citing Marks v Whitney, the California court said that "the traditional triad of uses - navigation, commerce and fishing - did not limit the public interest in the trust res", because the public uses "are sufficiently flexible to encompass changing public needs", and one of the important public uses "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".

The affirmative duty — the passage most worth memorising. The California court summed up the powers of the State as trustee:

"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".

And: "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."

Other American authority relied on: Illinois Central Railroad Co. v People of the State of Illinois; Gould v Greylock Reservation Commission; Sacco v Development of Public Works, where the Massachusetts court restrained the filling of a great pond for a highway relocation because "The improvement of public lands contemplated by this section does not include the widening of a State highway"; Robbins v Deptt. of Public Works, restraining the acquisition of Fowl Meadows, "wetlands of considerable natural beauty"; and Phillips Petroleum Co. v Mississippi, where the trust was extended "to lands underlying non-navigable tidal areas" on ecological rather than commercial grounds.

Professor Sax's formulation, quoted by the Court, is the widest statement of the doctrine's reach: the judicial techniques "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."

The Indian holding

The Court's own statement — the sentences to reproduce in any public trust answer:

"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."

It also declined to confine the doctrine to the traditional English uses: "We see no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources."

The limit of the doctrine, and the role of the legislature. The Court was careful:

The case illustrates "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."

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 pristine glory of natural resources "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".

Applied. A large area of the bank of the Beas "which is part of protected forest has been given on a lease purely for commercial purposes to the Motels". The Court held that "the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management", and that "Both the lease transactions are in patent breach of the trust held by the State Government." The second lease of 1994 "was virtually of the land which is a part of the riverbed".

On polluter pays it added the shortest formulation in the reports: "It is thus settled by this Court that one who pollutes the environment must pay to reverse the damage caused by his acts."

The directions of 1996

1. "The public trust doctrine, as discussed by us in this judgment is a part of the law of the land."
2. The prior approval of the MoEF dated 24 November 1993 and the lease deed dated 11 April 1994 were quashed; the lease of 27 bighas and 12 biswas cancelled; the State to take over the area "and restore it to its original-natural conditions".
3. The Motel to pay compensation by way of cost for the restitution of the environment and ecology; NEERI through its Director to inspect and assess the likely cost of reversing the damage.
4. The Motel to show cause why a pollution fine should not also be imposed.
5. A boundary wall at a distance of not more than 4 metres from the cluster of rooms towards the river basin, on the area covered by the earlier lease of 29 September 1981; the Motel not to encroach on any part of the river basin; "The river bank and the river basin shall be left open for the public use."
6. No discharge of untreated effluents into the river; the Himachal Pradesh Pollution Control Board to inspect the treatment plants and act if standards are not met.
7. The Board to inspect all hotels, institutions and factories in the Kullu-Manali area and act against any discharging untreated waste into the river.
8. Show cause returnable 18 December 1996, NEERI to report by 17 December 1996.

The Motel's argument, by Mr G.L. Sanghi: the Court may in an Art. 32 proceeding award compensation to victims of a violation of fundamental rights, "it cannot impose any fine on those who are guilty of the action", because "the fine is a component of Criminal Jurisprudence and cannot be utilised in civil proceedings"; a fine may be imposed only where a statute provides for it and only "after giving a fair trial to that person".

Mr M.C. Mehta's answer: a person who disturbs the ecological balance and tinkers with the natural conditions of rivers, forests, air and water violates not only Art. 21 but also the fundamental duty in Art. 51-A(g); and "Any disturbance of the basic environment elements, namely air, water and soil which are necessary for" life "would be hazardous to" life within the meaning of Art. 21.

The Court accepted the Motel's argument on the fine. In the public law domain the Court under Art. 32 has awarded damages against those responsible for disturbing the ecological balance, and in doing so "enforces the" polluter pays principle — "the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment." But a fine is different:

"it is difficult for us to hold that the pollution fine can be imposed upon M/s. Span Motel without there being any trial and without there being any finding that M/s. Span Motel was guilty of the offence under the Act and are, therefore, liable to be punished with imprisonment or with" fine. "This notice has been issued without reference to any provision of the Act."

And Art. 142 cannot cure it. The argument that the notice was issued under Art. 142 "cannot be accepted as this Article cannot be pressed into aid in a situation where action under that Article would amount to contravention of the specific provisions of the Act itself". Relying on Supreme Court Bar Association v Union of India, the Court said its plenary powers under Art. 142 are inherent and "COMPLEMENTARY" to statutory powers, that they "cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant", and that Art. 142 "cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly".

The pivot to a civil remedy. Having withdrawn the fine notice, the Court did not stop:

"Pollution is a civil wrong. By its very nature, it is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender."

"In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner." The Court noted that no notice for exemplary damages had been issued "although it ought to have been issued", and directed a fresh notice, returnable within six weeks.

The distinction to state in an exam: "The considerations for which" fine "can be imposed upon a person guilty of committing an offence are different from those on the basis of which exemplary damages can be awarded." A fine is criminal, needs a statute and a trial; exemplary damages are civil, and available in the Court's Art. 32 jurisdiction.

The polluter pays history given in this judgment

Useful and short, and it differs slightly from the Bichhri account, so learn one of the two:

• Recognition of the vice of pollution came "during the early part of 1970"; the UN Economic Commission for Europe discussed it in a panel in 1971.
• In 1972 the OECD adopted the polluter pays principle "as a recommendable method for pollution cost allocation"; it was also discussed at the 1972 Paris Summit.
• In 1974 the European Community recommended its application by member States.
• In 1989 the OECD reaffirmed it and "extended its application to include costs of accidental pollution".
• In 1987 it was "acknowledged as a binding principle of law" through the Single European Act 1987; and Art. 130 R.2 of the 1992 Maastricht Treaty provides that Community environment policy "shall be based on the principle that the polluter should pay".

The Court treated the 1996 findings as closed: they were "final and no argument can be permitted to be addressed in that respect", the only remaining questions being "determination of quantum of compensation and further whether the fine in addition be imposed, if so, the quantum of fine". The NEERI report "does not appear to either give a clean chit or completely exonerate the Span Motel Pvt. Ltd.", and it recorded that in 1993 the company "constructed concrete studs stepped wall and concrete bars" and had "blocked the mouth of the natural relief/spill channel by dumping of boulders".

On quantum the Court reasoned by analogy to the statutes: the pollution laws provide for imprisonment and fine depending on the violation, and "The fine that may be imposed alone may extend even to one lakh of rupees". Since the object of those punishments is "not only to punish the individual concerned but also to serve as a deterrent to others" — which the Court considered "almost similar to the purpose and aim of awarding exemplary damages" — it fixed the quantum "at Rupees Ten lakhs only".

Two qualifications matter:

• The figure was fixed keeping in view the Motel's undertaking to bear a fair share of the project cost of ecological restoration, which is "quite separate and apart from their liability for the exemplary damages"; the polluter pays quantum was left open.
• The money was not to go to general revenue. "The amount, of special damages of Ten lakhs of rupees, shall be remitted to the State Government in the Department of Irrigation and Public Health to the Commissioner/Secretary for being utilized only for the flood protection works in the area of Beas river affected by the action of Span Motels Pvt. Ltd."

1. The public trust doctrine is part of Indian law. The State is trustee of natural resources meant for public use — the sea-shore, running waters, air, forests and ecologically fragile lands — and is under a legal duty to protect them; they cannot be converted into private ownership.
2. A lease of ecologically fragile public land for a commercial resort is a patent breach of public trust and may be quashed, with restoration ordered.
3. A court exercising writ jurisdiction cannot impose a pollution fine without a statutory provision, a trial and a finding of guilt, and Art. 142 cannot be used to bypass the statute.
4. Pollution is a civil wrong, a tort against the community; damages for restoration, damages to those who suffered loss, and exemplary damages as a deterrent are all available under Art. 32.