M.C.Mehta v. Kamal Nath and Anr.

(1997)1SCC388
 ENVIRONMENTAL LITIGATION IN INDIA
• The Evolution of Indian environmental torts has taken place over the
last three decades. As to executive interest, there is very little which is
why court intervention is most urgent and necessary.

• The laxity of the executive has been pointed out in Rural Litigation and
Entitlement Kendra case where the Supreme Court said that “if
enactment of law results in a clean environment India would be the least
polluted as there are at least 200 and odd Central and State statutes enacted.”

• Almost 50 percent of all Public Interest Litigations are filed relating to

environmental torts.

• India cannot choose to ignore water pollution. It is costing the nation

almost 5% of its Gross Domestic Product. This comes to Rs. 38893 Crores.
 ENVIRONMENTAL LITIGATION IN INDIA

The larger the victims, the greater the compensation even if they do not suffer
equally. This graph portrays the cost of litigation as the number of victims
increase. For example, in the dispute zone there are only a few victims or just one.
 FACTS
•Beas is a young and dynamic river running through the Kullu valley between
the mountain ranges of the Dhauladhar in the right bank and the Chandrakheni
in the left.

•The river is fast - flowing, carrying large boulders, at the time of flood. When
water velocity is not sufficient to carry the boulders, those are deposited in the
channel often blocking the flow of water. Under such circumstances the river
stream changes its course, remaining within the valley but changes its course
from one bank to the other.

•The Indian Express Published an Article on 25 February 1996 titled - "Kamal

Nath dares the mighty Beas to keep his dreams afloat“.
–It stated that a private company "Span Motels Pvt. Ltd.", to which the
family of Kamal Nath, a former Minister of Environment and Forests, had
a direct link, had built a motel on the bank of the River Beas on land
leased by the Indian Government in 1981.
 FACTS
- The Motel claimed that they were restoring the river to its original
course.
- Span Motels had also encroached upon an additional area of land
adjoining this leasehold area, and this area was later regularised and leased
out to the company on April 11, 1994 when Mr. Kamal Nath was Minister
of Environment and Forests.
- The motel used earthmovers and bulldozers to turn the course of the
River Beas, create a new channel and divert the river's flow. The course of
the river was diverted to save the motel from future floods.

•Ms. Nath owned 42% of the Motel’s shares.

•The clearance was given on November 24, 1993 when Mr. Kamal Nath was
the Minister in charge, Department of Environment and forests.
 FACTS
• Various letters were written by the Motel Management to various
authorities:
– October 19, 1988: A letter was written to the Chief Minister of
Himachal Pradesh requesting him to protect the motel whose land mass
was being harmed due to soil erosion by building concrete walls at
appropriate points.
– August 30th, 1989: A letter was written to the divisional Forest Officer
of Kullu informing him that the Motel had encroached upon 22.2
bighas of the river bank by building extensive stone, cemented and
wire-mesh crated embankments and beautifying it so that it blended
with the Hotel. However, they were willing to comply with the forest
Conservation Act of 1980 by surrending 28 bighas of agricultural land.
The letter was sent again on July 9, 1991
– January 12, 1993: The Divisional Forest Officer finally replied that
the Motel could put crates and spurs along the river side near the motel
at its own cost, however, it would give it no right over the land.
 FACTS
– June 21, 1993: The Motel management wrote a letter to the Chief
Secretary of Himachal Pradesh informing him that adjoining land
measuring 22 bighas had been reclaimed by the Motel to protect the
leased land and the forest land. However, in order to do so they had to
fill the river bed. All this, according to them, was not an encroachment
but a “reclamation” to protect the leased land.
– August 7, 1993: Again the management wrote a letter to the DFO to
lease them the land which they had “reclaimed”. They were not able to
proceed with the work due to allegations of encroachment.
– November 24, 1993: The Government of India, Ministry of
Environment and Forests conveyed to the Secretary of Forest,
Government of Himachal Pradesh, its 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.
– April 11, 1994: A lease was executed between the Himachal
Government and the Motel.
 ISSUES BEFORE THE COURT

• WHETHER THE COURSE OF THE RIVER WAS BEING DIVERTED

TO SAVE THE MOTEL FROM FUTURE FLOODS?

• WHETHER THE CONSTRUCTION WAS ILLEGAL?

 PROCEEDINGS
• Even though Ms. Nath owned 42% of the Motel’s shares, the Court chose
to ignore Mr.Nath’s statement on oath that he had “no right, title or interest
in the property known as Span Resorts owned by Span Motels Private
Limited.”
• Arguments of the Respondents:
– Without the construction, even the natural course of the river would
have caused damage to both the banks of the river.
– The course was not diverted as only greater depth was provided to the
river. This has resulted in greater free flow of the river.
– The construction protects many other villages and residents along the
bank.
– It was done by the motel on the land under its possession and on the
area around with the permission of the Divisional Forest Officer.
 JURISPRUDENCE
• 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 doctrine enjoins upon the Government to protect the resources for
the enjoyment of the general public rather than to permit then- use for
private ownership or commercial purposes.
– 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.
– This was derived from the Mono Lake Case (National Audubon
Society v. Superior Court of Alpine County 33 CAL. 419). Mono lake
supported the brine shrimp which brought migratory birds to it. This
made it a tourist attraction. However, in 1940 the Government decided
to reduce the water level leading to the death of the shrimp due to
which the birds stopped migrating to the lake. Using this doctrine, the
Court held that the water level should be reconsidered.
 JURISPRUDENCE
• Precautionary Principle [Vellore Citizens Welfare Forum v. UOI , SC
1996 ]
– 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 environmental degradation.
– The "Onus of proof" is on the actor or the developer/industrialist to
show that his action is environmentally benign.
• The “Polluter Pays" principle [Council for Environ-Legal Action v. UOI, SC
1996]
– Once the activity carried on is hazardous or inherently dangerous, the
persons 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
 JUDGEMENT
GENERAL
• The public trust doctrine, precautionary principle and polluter pays
principle are a part of the law of the land.
• The prior approval granted by the Government of India, Ministry of
Environment and Forest by the letter dated November 24, 1993 and the
lease-deed dated April 11, 1994 in favour of the Motel are quashed.
• The Himachal Pradesh Government committed patent breach of public
trust by leasing the ecologically fragile land to the Motel management.
• The Himachal Pradesh Government shall take over the area and restore it
to its original-natural conditions.
• NEERI shall give an assessment of the cost which is likely to be incurred
for reversing the damage caused by the Motel to the environment and
ecology of the area.
• The Himachal Pradesh Pollution Control Board shall not permit the
discharge of untreated effluent into river Beas.
 JUDGEMENT
REGARDING THE MOTEL
• All contructions made by motel on the river bank are illegal.
• 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 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 of the Motel which is
covered by the lease dated September 29, 1981. The boundary wall shall
separate the Motel building from the river basin. The river bank and the
river basin shall be left open for the public use.
• The Motel shall not discharge untreated effluent into the river.
• The Motel shall pay compensation by way of cost for the restitution of the
environment and ecology of the area.
• The Motel through its management shall show cause why pollution fine in
addition be not imposed on the Motel.