PUBLIC TRUST

DOCTRINE
NAME: MOHD OVES AHMAD
SUBJECT: ENVIRONMENTAL LAW
BATCH: BA LLB (H) / VI SEM
ROLL NO: 32
SUBMITTED TO: PROF GHULAM YAZDANI

19
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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 in the United
States, its application in the Indian legal system is a modern development.

Basically, the ancient Roman Empire developed this legal theory i.e. Doctrine of the Public
Trust. The Public Trust Doctrine primarily rests on the principle that certain resources like air,
sea, waters and the forests have such a great importance to the people as a whole that it would be
wholly unjustified to make them a subject of private ownership. The said resources being a gift
of nature, they should be made freely available to everyone irrespective of the status in life. The
doctrine enjoins upon the Government to protect the resources for the enjoyment of the general
public rather than to permit their use for private ownership or commercial purposes.

Public trust doctrine serves two purposes: it mandates affirmative state action for effective
management of resources and empowers citizens to question ineffective management of natural
resources. It is a common law concept, defined and addressed by academics in the United States
and the United Kingdom. Various common properties; including rivers, the seashore, and the air,
are held by the government in trusteeship for the uninterrupted use of the public. The sovereign
could not, therefore, transfer public trust properties to a private party if the grant would interfere
with the public interest. The public trust has been widely used and scrutinized in the United
States, but its scope is still uncertain. Various have been made to apply this doctrine to protect
navigable and non-navigable waters, public land sand parks, and to apply it to both public and
private lands and ecological resources. The Supreme Court of California has broadened the
definition of public trust by including ecological and aesthetic considerations. Although the
public trusts doctrine is not without its fair share of criticism it is being increasingly related to
sustainable development, the precautionary principle and bio-diversity protection. The doctrine
combines the guarantee of public access to public trust resources with a requirement of public
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accountability in respect of decision-making regarding such resources. Moreover, not only can it
be used to protect the public from poor application of planning law or environmental impact
assessment, it also has an intergenerational dimension.

The Stockholm Declaration of United Nations on Human Environment evidences this

seminal 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... "

The Public Trust Doctrine can also be used as leverage during policy deliberations and public
scoping sessions and hearings. This forces agencies to prove that their actions are not
environmentally harmful to the extent that they will destroy a public resource. If the agencies fail
to provide a more environmentally benign alternative, then you can bring up a Public Trust
lawsuit.

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.[2] “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
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privatum, which could be alienated, and thejus publicumrights of navigation and fishing, which
were held by the King in inalienable trust for the public”.

Various Public properties; including rivers, the seashore, and the air, are held by the government
in trusteeship for the uninterrupted use of the public. The Sovereign could not make clandestine
transfer of public trust properties which the public had a right to enjoy to any private parties if
such transfer when effected could interfere with the interest of the public at large.

Concerted efforts have been adopted to incorporate this doctrine to protect an array of public
properties like non traversable waters, public land, and sand parks and to relate it to both public
and private lands. The Supreme Court of California in its celebrated decision in Illinois Central
R.R. Co. v Illinois has broadened the definition of public trust by including ecological and
aesthetic considerations. It would be incorrect to say that public trusts doctrine is not without its
fair share of disapproval. However despite the staunch criticism it is being increasingly related to
sustainable development, the precautionary principle and bio-diversity protection and a host of
other new environmental law principles. The doctrine links the right of public access to public
trusts with a precondition of accountability while making decisive decisions on such resources.
Additionally, not only can the doctrine be put to use for the protection of public from improper
application of planning law but also faulty environmental impact assessment.

DOCTRINE OF PUBLIC TRUST AND UNITED NATIONS

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… “

The Doctrine can also be used to influence policy debates and public scoping sessions and
hearings. Through this influence, agencies can be forced to prove that their actions are not
harmful to the environment to that extent that they will result in the destruction of a public
resource. If the agencies fall short of providing a more environmentally benign alternative, then a
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Public Trust law suit can be brought up. Such actions often lead to long and arduous law suits
but fortunately many important precedents in this regard have been established.

THE DOCTRINE OF PUBLIC TRUST IN INDIA

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.
At its widest, it could be used by the courts as a tool to protect the environment from many kinds
of degradation. In some countries, the doctrine has formed the basis of environmental policy
legislation, allowing private rights of action by citizens for violations by the state (directly or
indirectly) of the public trust.

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 human rights become a simulacrum. In
other words, this right to life under article 21 has been extended to 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.

Accepting public trust doctrine as a part of common law, the Indian courts have applied this
explicitly in three recent cases, the first one in 1997 and two cases in 1999 , including the case
under consideration. Articles 48A and 51A of the Constitution also furnish the principles of
jurisprudence, which are fundamental to our governance under the Rule of Law.

The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others where the Indian
Supreme Court applied public trust with regard to the protection and preservation of natural
resources. In this case, the State Government granted lease of riparian forestland to a private
company for commercial purpose. The purpose of the lease was to build a motel at the bank of
the River Beas. A report published in a national newspaper alleged that the motel management
interfered with the natural flow of the river in order to divert its course and to save the motel
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from future floods. The Supreme Court initiated suo motu action based on the newspaper item
because the facts disclosed, if true, would be a serious act of environmental degradation.

The Supreme court in M.C. Mehta 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: Our Indian legal system, which is 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 seashore, 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. As rivers, forests, minerals and such other
resources constitute a nation's natural wealth. These resources are not to be frittered away and
exhausted by any one generation. Every generation owes a duty to all succeeding generations to
develop and conserve the natural resources of the nation in the best possible way. It is in the
interest of mankind. It is in the interest of the nation. Thus, the Public Trust doctrine is a part of
the law of the land. The court also ruled that there is no any justifiable reason to rule out the
application of the public trust doctrine in all ecosystems in India.

In this case, the Supreme Court was faced with the classic struggle between those members of
the public who would preserve our rivers, lakes and open lands in their pristine purity and those
charged with administrative responsibilities who find it necessary to encroach to some extent
upon open land. It stated that the public bodies should apply public trust doctrine when there is
no legislation to protect the natural resources.

In their view, applying the polluter pays principle, the Court directed the developer to pay
compensation by way of cost for the restitution of the environment and ecology of the area. It
had no difficulty in holding that the Himachal Pradesh government committed a patent breach of
public trust by leasing out the ecologically fragile land to be developed.

Chronologically, the second case on this subject is Th. Majra Singh v Indian Oil Corporation,
where the petitioner objected to the location of a plant for filling cylinders with liquefied
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petroleum gas. It was held that the High Court can only examine whether authorities have taken
all precautions with a view to see that laws dealing with environment and pollution have been
given due care and attention. Though the 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 the third case, M.I. Builders v Radhey Shyam Sahu, the Supreme Court has applied the
public trust doctrine. Here, the Lucknow Nagar Mahapalika (i.e. Lucknow City Corporation)
granted permission to a private builder to construct an underground shopping complex was
against the municipal Act and Master plan of the city of Lucknow. The builder was supposed to
develop the site at its own cost and then to realize the cost with profit not exceeding more than
10% of the investment in respect of each shop. Under the terms of the agreement, full freedom
was given to the builder to0 lease out the shops as per its own terms and conditions to persons of
its choice on behalf of the Mahapalika. The builder was also given the right to sign the
agreement on behalf of the Mahapalika and was only required to a copy to the Mahapalika after
its execution. Both the builder and the Mahapalika were to be bound by the terms of that
agreement.
When the matter was challenged, the High Court set aside and quashed the agreement between
Mahapalika and the builder, and the relevant order of the Mahapalika permitting such
construction. The Court ordered Mahapalika to restore the park to its original position within a
period of three months from the date of the judgment and until that was done, to take adequate
measures and to provide necessary safeguards and protections to the users of the park. The High
Court took the accounts of the fact that Mahapalika never denied the historical importance of the
park and the preservation or maintenance of the park was necessary from environmental angle.
However, the only reason advanced by Mahapalika for the construction of the underground
commercial complex was to ease the congestion in the area. The High Court took judicial notice
of the conditions prevailing at the site and found that the construction of an underground market
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would further congest the area. It added that the public purpose, which is alleged to be served by
construction of the underground commercial complex, seemed total illusory.

On appeal by the builders, the Supreme Court held that the terms of agreement showed that the
clauses of the agreement are unreasonable, unfair and atrocious. The Mahapalika, as a trustee for
the proper management of the park, has to be more cautious in dealing with its properties. The
Court added that the land of immense value had been handed over to it to construct an
underground shopping complex in violation of the public trust doctrine. The maintenance of the
park, because of its historical importance and environmental necessity, was in itself a public
purpose. Therefore, the construction of an underground market in the grab of decongesting the
area was wholly contrary and prejudicial to the public purpose. By allowing the construction,
Mahapalika has deprived its residents, and also others, of the quality of life to which they were
entitled to under the Constitution and under the Municipal Act.

The agreement was opposed to public policy and not in the public interest. Mahapalika allowed
the commercial shopping complex to be build upon a public park in clear defiance of the Uttar
Pradesh Municipal Corporation Adhiniyam 1959. In addition, the Mahapalika violated the public
trust doctrine and the Court ordered the demolition of the unauthorized shopping complex.

The Supreme Court, in M.I. Builders reconfirmed that the public trust doctrine is established in
the Indian legal system and asserted that the public authorities should act as trustees of natural
resources. However, it is clear from all these cases that the court did not confer any property
right on the public under the trust. While applying the public trust doctrine, the Court in all these
cases, took account of either the polluter pays the principle or the precautionary principle or
both.
In the Kamal Nath case, the Supreme Court and in the Th. Majra Singh case, the High court
applied the public trust doctrine along with other principles such as the precautionary principle
and polluter pays principle. Moreover, in Kamal Nath case, the Supreme Court directed, inter
alia, that the lease be quashed and the full cost of restoration of the land to its original natural
condition be paid by the Motel.
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The Court also ordered the Motel to remove all the construction on the riverbed and the banks of
the River Beas. However, in Th. Majra Singh, the High court found that the Indian Oil
Corporation (IOC) had taken all the precautions and followed all the safeguards required by the
law. Giving to the go ahead to the installation of the LRG plant located in the vicinity of a
polluted village, the Court ordered the IOC to take due precautions, so that pollution is not
caused to the environment and to plant fast growing trees like poplar eucalyptus. In the M.I.
Builders case, the Supreme Court ordered Mahapalika to demolish the unauthorized shopping
complex and to restore the park to its original beauty. It is clear that in these cases, the Court
adopted a balanced development approach.

It is interesting to note that in the Kamal Nath case the Supreme Court held that even if there is
a separate and a specific law to deal with the issue before the Court, it may still apply public trust
doctrine. If there is no suitable legislation to preserve the natural resources, the public authorities
should take advantage of this doctrine in addition to the fact that there was a branch of municipal
law. Secondly the Supreme Court in M.I.builders, however, stated that public trust doctrine has
?grown? from Article 21 of the constitution. By attaching this doctrine to the fundamental right
to life, the Supreme Court appears to be willing to diversify the application of this doctrine. It
seems likely that the court would give precedence to right to life when the public trust doctrine,
as a part of right to a safe and healthy environment, is challenged by any other fundamental
rights. Thirdly by ordering the Mahapalika to restore the park to its original beauty, the Supreme
Court redefined the duties of a trustee to its beneficiaries the users of the park. In effect, it
aligned the local authorities duty as a trustee with the concept of intra-generational and inter-
generational equity. Fourthly, the case came before the court as a judicial review and not as
challenge against the decision of the government from a beneficiary. As this doctrine acts as a
check upon administrative action by providing a mechanism for judicial or resource allocation
decisions. Therefore, public trust doctrine could serve as an additional tool for environmental
protection particularly where administrative discretion has been abused.
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M.C Mehta v. Kamal Nath

Justice Kuldip Singh while delivering the judgment relied extensively on the doctrine of public
trust. The case dealt with certain forest land which was given on lease to the Motel by the state
government situated at the bank of River Beas. The area which was ecologically fragile and full
of scenic beauty should not have been permitted to be converted into private ownership and for
commercial gains.1

The Judge touched up the history of the doctrine of public trust. He pointed out that the this
ancient Roman Empire legal theory came about on the idea that certain common properties such
as rivers, seashore, forests and air were held by the government in trusteeship for the free and
unimpeded use of the general public. The contemporary concern about the environment bears a
very close conceptual relationship to this legal doctrine. Under the Roman law these resources
were either owned by no one (Res Nullius) or by everyone in common. Under the English law
however the sovereign could own these resources but the ownership was limited in nature and
the crown could not grant these properties to private owners if the effect was to interfere with the
public interest in navigation or fishing.

The Supreme Court pointed out that our legal system is based on the English common law which
in turn includes the doctrine of public trust intrinsic to its jurisprudence. The State is the trustee
of all natural resources which are by nature meant for the use and enjoyment of the general
public. Public at large is the beneficiary of the seashore, running waters, airs forests and
ecologically fragile lands they have the right to access and enjoyment of such resources. The
state is the trustee to such public resources and consequently it is under a legal duty to protect the
natural resources. These resources meant for pubic use cannot be converted into private
ownership.

1
The notion that the public has right to expect certain lands and natural areas to retain their natural characteristic is
finding its way into the law of the land
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The court also pointed out that if there is a law made by the Parliament or the State legislature
the courts can serve as an instrument of determining the legislative intent in the exercise of its
powers of judicial review under the Constitution.

The court directed and ordered that the public trust doctrine is a part of the law of the land and
that the prior approval granted to the government to lease the forest land for the creation of the
motel is quashed and that the government of Himachal Pradesh shall take over the areas and
restore it to its original natural conditions.

Significantly the court also ordered that the motel shall pay compensation by way of cost for the
restitution of the environment and ecology of the area. The court also asked the motel to show
cause as to why pollution fine in addition be not imposed on the motel.

The second case to deal with on this subject is Th. Majra Singh v Indian Oil Corporation2 where
the petitioner objected to the setting of a plant for filling LPG cylinders. The court reconfirmed
that the public trust doctrine ‘has grown from article 21 of the constitution and has become part
of the Indian legal thought process for quite a long time.’

M.I Builders v. Radhey Shyam Sahu

The third case and perhaps one of the decisive case to deal with in this regard is,M.I. Builders v
Radhey Shyam Sahu,3 where the Supreme Court has applied the public trust doctrine.

The appeal was directed against the judgment of a Division Bench of the High Court of
Judicature at Allahabad. By a common judgment in three writ petitions, High Court speaking
through Shobha Dixit, J. held that the decision of the Lucknow Nagar Mahapalika (‘Mahapalika’
for short), also now called Nagar Nigam or Corporation, permitting M.I. Builders Pvt. Ltd. (the
appellant herein) to construct underground shopping complex in the Jhandewala Park situated,
Lucknow, was illegal, arbitrary and unconstitutional. Writ of mandamus was issued to the
Mahapalika to restore back the park in its original position within a period of three months from

2
AIR 1999 J&K 81
3
(1999) 6 SCC 464
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the date of the judgment and till that was done, to take adequate safety measures and to provide
necessary safeguard and protection to the public, users of the park. High Court had noticed that
the fact that the park was of historical importance was not denied by the Mahapalika and also the
fact that perseverance or maintenance of the park was necessary from the environmental angle
and that the only reason advanced by the Mahapalika for construction of the underground
commercial complex was to ease the congestion in area. On taking notice of the ground
situations the court said that the public purpose, which is alleged to be served by construction of
the underground commercial complex, seemed totally illusory.

On Appeal the court held that the facts and circumstances when examined point to only one
conclusion that the purpose of constructing the underground shopping complex was a mere
pretext and the dominant purpose was to favour the M.I. Builders to earn huge profits. In
depriving the citizens of Lucknow of their amenity of an old historical park in the congested area
on the spacious plea of decongesting the area Mahapalika and its officers forgot their duty
towards the citizens and acted in a most brazen manner. By allowing the construction
Mahapalika had deprived its residents as also others of the quality of life to which they were
entitled to under the Constitution and the Act. The agreement smacks of arbitrariness, unfairness
and favourtism. The agreement was opposed to public policy. It was not in public interest. Whole
process of law was subverted to benefit the builder.

DOCTRINE OF PUBLIC TRUST IN VARIOUS STATES IN INDIA

Kerala
In Kerala Plachimada Panchayat has issued orders refusing permission to extract ground water
due to environmental problems in the nearby areas. Following the principles of Public Trust
Doctrine court has upheld the steps taken by the Panchayat. The State and its instrumentalities
should act as trustees of this great wealth. State has got a duty to protect ground water against
excessive exploitation and the inaction of the State in this regard will tantamount to infringement
of the right to life of the people guaranteed under Art 21 of the Constitution. Coca Cola
Company has no right to extract much of national wealth and the extraction of ground water is
illegal, the Court held. Kerala State Government has framed legislation for protecting the fragile
forest land following the said principle of public trust doctrine. Kerala Forest (Vesting and
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Management of Ecologically Fragile Lands) Act, 2002 was framed following the above
principles.4

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 by the
State/Board of Revenue. Andhra Pradesh HC5 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.6

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.7

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.

APPLICATION OF THE PUBLIC TRUST DOCTRINE OVER NATURAL RESOURCES

Natural resources have traditionally been found either under the sovereignty of a particular state
or in the so-called global commons. Where the resources are held by a state, the essence of the

4
Perumatty Grama Panchayat v. State of Kerala W.P.(C) No. 34292 of 2003 also see Public Trust Doctrine
available at: http://elaw.in/environ/pub_trust/index.htm
5
P.R Subhas Chandran v. Government of A.P. (2001 (5) ALD 771 (DB)
6
Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.htm
7
Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.htm
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PTD is that the state or governmental authority, as trustee, has a fiduciary duty of stewardship of
the public’s ‘environmental capital’. These resources must be held in trust by the state for the
benefit and use of the general public. This public includes current and future generations.8 The
State must not alienate trust property unless the public benefit that would accrue outweighs the
loss of the public use or ‘social wealth’ derived from it. So neither can the King intrude upon the
common property, thus understood, and appropriate it to himself or the fiscal purposes of the
nation, the enjoyment of it is a natural right which cannot be infringed or taken away, unless by
arbitrary power, and that, in theory at least, could not exist in a free government.9 The trust
imposes three kinds of restrictions on the state:

• the property subject to the trust must not only be used for a public purpose, it must be held
available for use by the general public;

• the property must not be sold, even for fair cash equivalent; and

• the property must be maintained for particular kind of uses, such as navigation, recreation, or
fishery.

The most fundamental duty that a trustee has is the duty of loyalty and an obligation to act solely
in the interest of the beneficiaries. The trustee also has a duty to use care and skill to preserve the
trust property (including the duty to protect against ‘invasion of the trust’). In addition, the
trustee has a duty to furnish information to the beneficiaries, a duty to make the trust productive,
and a duty to deal impartially with beneficiaries. In meeting its duties, the trustee must act
prudently, diligently, and in good faith.10

The public trust doctrine has been used to prevent governments from conveying public resources
to private enterprises (prohibition on conveyance) as well as to guarantee the public access to
natural resources after the resources have been conveyed to private interests for purposes such as
fishing and navigation (prohibition with impression). In many African countries, the imperatives
of prohibition on conveyance are assured through vesting critical natural resources such as water

8
Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and
Intergenerational Equity 219 (Tokyo: UN University, 1989).
9
Arnold v Mundy, Supreme Court of Judicature of New Jersey, 6 N.J.L. 1, 10 Am.Dec. 356 (1821)
10
James T. Paul, ‘The Public Trust Doctrine: Who Has the Burden of Proof’, 9 (July 1996), available at: http://
www.rachel.org/library/getfile.cfm?ID=190
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in the state implying a trust on behalf of the citizenry to ensure sustainable management of the
resources.11 One implication of the trust is securing the right of the citizenry to access these
resources.

The PTD’s prohibition on conveyance can be used to defeat private ownership of natural
resources. In the case of Illinois Central Railroad v. Illinois,12 the state legislature had transferred
ownership of the nearly the entire waterfront of Chicago (about 1,000 acres) to the railroad. Four
years later, a new legislature sought to revoke the transfer but the railroad challenged the
revocation. The United States Supreme Court upheld the revocation, returned the land to the state
and stated as follows distinguishing this land as different in character from that which the state
holds in lands intended for sale:

It is a title held in trust for the people of the state that they may enjoy the navigation of the
waters, carry on commerce over them, and have the liberty of fishing therein freed from the
obstruction or interference of private parties.

This land was therefore different in character from other lands because of the presence of water
on it. Any conveyance of that land had to be in furtherance of the public trust and

The control of the state for the purposes of the trust can never be lost, except as to such parcels
as are used in promoting the interests of the public therein, or can be disposed of without any
substantial impairment of the public interest in the lands and waters remaining.

The public’s interest in the waterfront had to be weighed against the public gain from
conveyance of the land to private parties.

PTD’s conveyance with impression applies where rights are reserved for the public even after the
state has made private conveyances of certain properties. It recognises the fact that superior
public interests can supersede private-property interests. In many African countries, states have
two residual powers that facilitate the regulation of property rights namely, police power
(development control) and eminent domain (compulsory acquisition). Police power refers to the
power of the state to regulate land use in the public interest. Its earliest manifestations included

11
See e.g. Section 3 of the Kenya Water Act, 2002, available at: http://www.ielrc.org/content/e0206.pdf.
12
Illinois Cent. R. Co. v State of Illinois, Supreme Court of the United States, 146 US 387 (1892).
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the right of the state to tax its citizens, ‘taking’ of property for necessities of war and the
regulation of the use of or destruction of land in the event of pestilence, thus interfering with
private property.13 Police power may be invoked to secure proper environmental management.
For the purposes of securing the public trust even after conveyance though, eminent domain
seems to be more apt. Also referred to as compulsory acquisition, it derives from the Roman
dominium eminens (sovereignty over territory). It entitles the state by dint of sovereignty to take
private property for public purposes and flows from the fact that the state has radical title over all
land in the territory and can therefore compulsorily acquire any part of it. The uses for which
land has been traditionally acquired include defence, highways, hospitals and education.

In many countries, the power to compulsorily acquire land is provide for in the Constitution. It
must be shown that the land will promote the public benefit, such benefit being weighed against
the hardship that the acquisition will cause for the owner and prompt compensation must be paid
for the acquisition. While the traditionally established bases for compulsory acquisition do not
include access to water, one can argue that there is a public interest in availing water to all
especially where denial of that had been justified by a discriminatory legal regime. In Kenya, the
High Court in the case of Peter Waweru v. The Republic held that

In the case of land resources, forests, wetlands and waterways … the Government and its
agencies are under a public trust to manage them in a way that maintains a proper balance
between the economic benefits of development with the needs of a clean environment’.14

The Trust Defined and Why it Matters Simply defined, a trust is a collection of assets committed
or entrusted to one to be managed or cared for in the interest of another. The party to whom the
trust assets are committed is commonly referred to as the trustee, whereas the party for whom the
assets are being managed is referred to as the beneficiary of the trust. Accordingly, the PTD
holds that publicly owned wildlife resources are entrusted to the government (as trustee of these
resources) to be managed on behalf of the public, the beneficiaries. Consequently, governmental
institutions do not own trust resources; rather, they are owned by the public and are entrusted in
the care of government to be safeguarded for the public’s long-term benefit. The PTD has been

13
Bondi Ogolla with John Mugabe, ‘Land Tenure Systems and Natural Resources Management’, in C. Juma & J.B.
Ojwang eds, In Land We Trust: Environment, Private Property and Constitutional Development (Nairobi and
London: Initiative Publishers and Zed Books, 1996) 85.
14
High Court of Kenya at Nairobi, Miscellaneous Civil Application No. 118 of 2004.
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described by some as the cornerstone of the Model (Geist et al. 2001, Geist and Organ 2004, and
Prukop and Regan 2005). This viewpoint holds that the PTD establishes the core principles
central to the Model—the notion that wildlife is a public resource, managed for the common
good, and held in custodianship by a cadre of trained professionals who serve as trustees (Brulle
2000) and are held accountable by the beneficiaries, the public. Alternative models have
developed in other countries and are frequently based on privately owned fish, wildlife, and
habitat managed for personal or corporate gain. In such cases, the general public may receive
little or no apparent benefit from wildlife resources. A number of undesirable outcomes may
result from a system of wildlife management not anchored on a PTD foundation including:

(a) a diminished connection or indifference toward wildlife resources stemming from a

disassociation with nature, which means wildlife may become irrelevant to the general public
thereby reducing public support for conservation.

(b) wildlife resources that are viewed as an artifact of the past, separated from modern life, to be
seen and appreciated yet with a lack of understanding and acceptance of sustainable use, and

(c) wildlife resources viewed as a liability or threat to be minimized to the extent possible rather
than an asset to be conserved and managed for the benefit of current and future generations.
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CONCLUSION

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. 48A to protect and improve the environment and safeguard the forests and wildlife of
the country. While applying art. 21 (right to life), the state is obliged to take account of art. 48A,
a Directive Principle of State Policy. The state's trusteeship duties has been expanded to include
a right to a healthy environment.

The United States Supreme Court issued its landmark opinion in Illinois P.R Co case on the
nature of a state’s title to its tide and submerged lands nearly 110 years ago, and although courts
have reviewed tidelands trust issues many times since then, the basic premise of the trust remains
fundamentally unchanged. The Court said then that a state’s title to its tide and submerged lands
is different from that to the lands it holds for sale. “It is a title held in trust for the people of the
State that they may enjoy the navigation of the waters, carry on commerce over them, and have
liberty of fishing” free from obstruction or interference from private parties.

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
 P a g e | 19

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.

Various High Courts have evidently adopted the judgment as it is evidenced by the decisions
from across the country which has already been discussed in the last chapter. The decision of the
Kerala High Court in the Plachimada case also is significant as the same has gained world wide
attention.
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BIBLIOGRAPHY

Diwan Shyam, Rosencraz Armin, ‘Environment Law and Policy in India’, Oxford University
Publication, 2nd Ed, 2004

Bell, Mc Gellivray, ‘Environment Law’, Online Resource Centre, 6th Ed.

Leelakrishnan P, ‘Environment Law in India’, Butterworths, 2000

Razzaque Jona, ‘Public Interest Environment Litigation in India Pakistan and Bangaldesh’,
Kluwer Law International , 2004

Journal Articles

Nanda Ved P., et al ‘Public Trust Doctrine’, 5 Ecology L.Q. 291 (1975-1976)

Thor Matthew Krisch 46 Duke L. J. 1169

Online Sources

Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.htm (last visited 25th

March 2010)

Doctrine of Public Trust available at : http://www.nlsenlaw.org/environmental-

protection/articles/the-doctrine-of-public-trust-and-environmental-protection-in-india/ (last
visited 21st March 2010)

The Public Trust Doctrine’ available at:

http://www.slc.ca.gov/policy_statements/public_trust/public_trust_doctrine.pdf (Last visited 21st
March 2010)