S.S.

JAIN SUBODH LAW COLLEGE

PUBLIC TRUST DOCTRINE

Submission To: Submitted By:

MS. MARIYAM ISRAT BEG ASHISH SHARMA

ASST. PROF. OF LAW Roll no: - 08

VIII Semester

S.S. Jain Subodh Law College

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 CERTIFICATE

To whomsoever it may concern, This is to certify that, the dissertation titled “PUBLIC

TRUST DOCTRINE” submitted by Ashish Sharma in fulfillment for the award of the
degree of B.A.LL.B. at S.S. Jain Subodh Law College is the project of research carried out
under my guidance and supervision.

Ms. Mariyam israt beg

Asst. Prof. of Law
S.S. Jain Subodh Law College

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 AKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Ms. Mariyam
israt beg for inspiring me and guiding me during the course of this project work and also for
her cooperation and guidance from time to time during the course of this project work on the
topic “PUBLIC TRUST DOCTRINE”.

Date:
Place: Jaipur
Ashish Sharma

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 RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic PUBLIC TRUST
DOCTRINE forming a concrete informative capsule of the same with an insight into its
relevance in the Indian market.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the concept of
PUBLIC TRUST DOCTRINE.

Data Collection:
The following secondary sources of data have been used in the project-
 Websites
 Books

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research project is primarily
analytical. The researcher has followed Uniform method of citation throughout the course of
this research project.

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INTRODUCTION

The doctrine of public trust has evolved over the years to emerge as one of the core
principles for the judiciary to substantiate the legitimacy of governmental action that
interferes with the use by the general public of natural resources. The incorporation
of this doctrine into our legal system has resulted in the imposition of a much
required check upon governmental authorities who seek to divest State control over
such natural resources in favour of private parties. Though the origin of the doctrine
can be traced to ancient times and it is of considerable vintage, its application in the
Indian legal system is a modern development. The public trust doctrine is the
principle that certain resources are preserved for public use, and that the
government is required to maintain them for the public's reasonable use. The ancient
laws of the Roman Emperor Justinian held that the seashore (defined as waters
affected by the ebb and flow of the tides) not appropriated for private use was open
to all. This principle became the law in England as well. In the Magna Carta in
England centuries later public rights were further strengthened at the insistence of
the nobles that fishing weirs which obstructed free navigation be removed from
rivers. These rights were further strengthened and subsequently became part of the
common law of the United States. The public trust applies to both waters influenced
by the tides and waters that are navigable in fact. The public trust also applies to the
natural resources (mineral or animal) contained in the soil and water over those
public trust lands.

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Scope and history of doctrine of public trust

The history of the doctrine is traced to the Roman emperor, Justinian. In Book II of
his Institutes, Emperor Justinian proclaims: By the law of nature these things are
common to mankind the air, running water, the sea, and consequently the shores of
the sea. No one, therefore, is forbidden to approach the seashore The public trust
doctrine "is based on the notion that the public holds inviolable rights in certain lands
and resources, and that regardless of title ownership”, and that “the state retains
certain rights in such lands and resources in trust for the public. "This conception of
public rights has two ancient bases. “First, under Roman law the air, running water,
the sea, and consequently the sea shore' were the property of no man but rather
were common to all." “Second, early English common law provided that title to
tidelands had two components”: “the King's right of jus private, which could be
alienated, and the jus publican rights of navigation and fishing, which were held by
the King in inalienable trust for the public”. The Stockholm Declaration of United
Nations on Human Environment clearly indicates this determining proposition: "The
natural resources of the earth, including the air, water, land, flora and fauna and
especially representative samples of natural system, must be safeguarded for the
benefit of present and future generations through careful planning or management,
as appropriate.

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The doctrine of public trust in the Indian legal system

The Public Trust Doctrine has its origins in Roman Law. It has been extended in
recent years, placing a duty on the state to hold environmental resources in trust for
the benefit of the public. The Rule of Law runs close to the rule of life and the Indian
Constitution, in its humanist vision, has made environmental-ecological preservation
a fundamental value. The higher jurisprudence of Article 21 of the Constitution (right
to life) embraces the protection and preservation of nature's gift without which life
ceases to be viable and include the right to a healthy environment and the right to
livelihood. The third aspect of the right to life is the application of public trust doctrine
to protect and preserve the public land. When the Indian courts have applied the
public trust doctrine, they have considered it not only as an international law concept,
but one, which is well established in their national legal system.
The doctrine is first mentioned in M.C. Mehta v Kamal Nathan others where the
Indian
Supreme Court applied public trust with regard to the protection and preservation of
natural resources. The Supreme Court started that the Public Trust Doctrine
primarily rests on the principle that certain resources like air, sea, waters and forests
have such great importance to the people as a whole that it would be unjustified to
make them a subject of private ownership. The court observed that: The Public Trust
doctrine is a part of the law of the land.
Thakur Majra Singh v Indian Oil Corporation case was decided on the basis of the
precautionary principle, it confirmed that the public trust doctrine has become part of
the Indian legal thought processes. In the High Court's opinion, the doctrines is apart
and parcel of Article 21 of the Constitution and that there can be no dispute that the
State is under an obligation to see that forests, lakes and wildlife and environment
are duly protected. According to the Court, the idea that the public has a right to
expect certain lands and natural areas to retain their natural characteristics is finding
its way into the law of the land.
In M.I. Builders v Radhey Shyam Sahu the Supreme Court has applied the public
trust doctrine and held that the terms of agreement showed that the clauses of the
agreement are unreasonable, unfair and atrocious. The Court added that the land of
immense value had been handed over to it to construct an underground shopping

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complex in violation of the public trust doctrine and ordered the demolition of the
unauthorized shopping complex.

Doctrine of public trust in various state of India

kerala

In Kerala Plachimada Panchayat has issued orders refusing permission to extract

ground water due to environmental problems in the nearby areas. Kerala State
Government has framed legislation for protecting the fragile forest land following the
said principle of public trust doctrine. Kerala Forest (Vesting and Management of
Ecologically Fragile Lands) Act, 2002 was framed following the above principles.

.
Andhra Pradesh

Andhra Pradesh State Government has issued notification prohibiting conversion of

agricultural land for another purpose namely for irrigation or for some other purpose
whatsoever the State/Board of Revenue. Andhra Pradesh HC has held that, the
same cannot be said to be bad in law. Deep underground water belongs to the State
in the sense that doctrine of public trust extends thereto. A person who holds land for
agricultural purpose may, subject to reasonable restriction that may be made by the
State may have the right to use water for irrigational purposes and for the said
purpose he may also excavate a tank. But under no circumstances, he can be
permitted to restrict the flow of water to the neighboring lands or discharge the
effluents in such a manner so as to affect the right of his neighbor to use water for
his own purposes.

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Tamil Nadu

Reiterating the principles of "Public Trust" sand mining was stopped. Madras HC
directed to take appropriate action against the officers of the Government who
permitted the illegal removal of the sand and causing damage to the river.

Rajasthan

Steps taken to acquire land which is the bed of a village. The same was challenged
before the Rajasthan HC in a PIL.HC found that there is no necessity to invoke the
urgency provisions and the principles of Public Trust has been highlighted.

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Conclusion

In India M.C Mehta v. Kamal Nath was the landmark judgment as far as the doctrine
of public trust was concerned. In that case Span motel, owned by the family
members of Shri Kamal Nath, Minister for Environment and Forests, Govt. of India
diverted the Course of river Beas to beautify the motel and also encroached upon
some forest land. The apex court ordered the management of the Span motel to
hand over forest land to the Government of Himachal Pradesh. The Court delivered
a land mark judgment and established principle of exemplary damages for the first
time in India. The Court said that polluter must pay to reverse the damage caused by
his act and imposed a fine of Rs Ten Lakhs on the Span motel as exemplary
damages. The Supreme Court of India recognized Polluter Pays Principle and Public
Trust Doctrine. From the above discussions on the doctrine and various case laws, it
is evident that the state is not the owner of the natural resources in the country but a
trustee who holds fiduciary relationship with the people. By accepting this task the
government is expected to be loyal to the interests of its citizens and to discharge its
duty with the interest of the citizens at heart and involve them in decision-making
process concerning the management of natural resources in the country. The Public
Trust Doctrine may provide the means for increasing the effectiveness of
environmental impact assessment laws. Thus, under this doctrine, the state has a
duty as a trustee under Art. 48 A to protect and improve the environment and
safeguard the forests and wildlife of the country.

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Bibliography

Books referred:
 Dr. G.K. Kapoor,ENVIRONMENT, Taxmann Publications, New Dehi
 Dr. N.V. Paranjape,ENVIRONMENT Law, Central law Agency, Allahabad.
 Avtar Singh, ENVIRONMENT ACT,Eastern Book Company.
 K.S. Anantharaman, Lectures on ENVIRONMENT law, Lexis Nexis .

Websites Referred:
 http://www.ajms.co.in/sites/ajms/index.php/ajms/article/view/384.
 http://www.legalserviceindia.com/ENVIRONMENT.html

Acts Referred:
 The ENVIRONMENT ACT

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