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Environmental Protection And Public Trust Doctrine

Since time immemorial, people across the world have always made efforts to preserve and protect the natural resources like air, water, plants, flora and fauna. Ancient scriptures of different countries are full of stories of man's zeal to protect the environment and ecology. Our sages and saints always preached and also taught the people to worship earth, sky, rivers, sea, plants, trees and every form of life. Majority of people still consider it as their sacred duty to protect the plants, trees, rivers, wells, etc., because it is believed that they belong to all living creatures.

The ancient Roman Empire developed a legal theory known as the Doctrine of the Public Trust. It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general. Hence, they must be held by the government as a trustee for the free and unimpeded use by the general public and 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 their use for private ownership or commercial exploitation to satisfy the greed of few.

Supreme Court on public trust doctrine

The Supreme Court has recognized the importance of the public trust doctrine and applied the same in several cases for protecting natural resources, which have been treated as public properties and are held by the government as trustee of the people.

The judgment in MC Mehta vs Kamal Nath1), is an important milestone in the development of new jurisprudence by the courts in this country for protection of environment. In that judgment, the court considered the question whether a private company running tourists resort in Kullu Manali valley could block the flow of Beas River and create a new channel to divert the river to at least one kilometre downstream.

After adverting to the theoretical and philosophical basis of the public trust doctrine and judgments in Illinois Central Railroad Co. vs People of the State of Illinois2); Gould vs Greylock Reservation Commission3); Sacco vs Development of Public Works4); Robbins vs Department of Public Works5) and National Audubon Society vs Superior Court of Alpine County6), Hon’ble Supreme Court observed as under—

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.”

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. However, 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 the pristine glory of the natural resources, the environment and the ecosystems 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 good and in public interest to encroach upon the said resources.

MI Builders Pvt. Ltd. vs Radhey Shyam Sahu

In this case7), the Supreme Court applied public trust doctrine for upholding the order of Allahabad High Court which had quashed the decision of Lucknow Nagar Mahapalika permitting appellant MI Builders Pvt. Ltd. to construct an underground shopping complex in Jhandewala Park, Aminabad Market, Lucknow, and directed demolition of the construction made on the park land. The High Court had noted that Lucknow Nagar Mahapalika had entered into an agreement with the appellant for construction of shopping complex and given it full freedom to lease out the shops and also to sign agreement on its behalf and held that this was impermissible. On appeal by the builders, Hon’ble Supreme Court held that the terms of agreement were unreasonable, unfair and atrocious. The Supreme Court then invoked the public trust doctrine and held that being a trustee of the park on behalf of the public; the Nagar Mahapalika could not have transferred the same to the private builder and thereby deprived the residents of the area of the quality of life to which they were entitled under the Constitution and Municipal Laws.

Restrictions on the State to transfer public properties to private party

The Supreme Court in Fomento Resorts & Hotels Ltd. vs Minguel Martins, (2009) 3 SCC 571, indicated the relevance of Public Trust Doctrine. It reads thus—

The public trust 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. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party, if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.”

Obligations upon government agencies and administrators

The public trust doctrine imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets.

Long-established public rights over short-term public rights

The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today, every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it in another way, a landowner or lessee and a water right holder have an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.

In our country, public trust doctrine has been accepted as flowing from Article 21 of the Constitution. It is in furtherance of this public trust doctrine considering environmental and ecological aspects that the Parliament enacted several legislations to protect environment and ecology. Thus, the courts, as protector of the Constitution, have enforced the public trust doctrine, which is a part of the principle of sustainable development, which is also a part of the right to life.

Ecological resources not to be destroyed

In Intellectuals Forum, Tirupathi vs State of AP8), the Apex Court has laid down that the government is bound to protect historical tanks qua concept of “sustainable development” and “public trust doctrine”. Destruction of local ecological resources is not permissible. Property subject to trust must not only be used for a public purpose, but it must be held available for use by general public. The Apex Court has held that the tank is a communal property and the State authorities are trustees to hold and manage such properties for benefits of community. The State cannot be allowed to commit any act or omission, which will infringe right of community and alienate property to any other person or body. Fact that the party has spent money on developing land is immaterial. Thus, there is a responsibility bestowed upon the government to protect and preserve the tanks, which are an important part of the environment of the area.

Badhkhal and Surajkund Lakes Matter

In MC Mehta vs Union of India9), the Apex Court has laid down that, it is the duty of the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen to protect and improve natural environment including forests, lakes, rivers and wildlife.

Hinch Lal Tiwari vs Kamala Devi

In this case10), the Apex Court has held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The court ordered the respondents to vacate the land, which they had occupied illegally after taking away the material of the house. The Apex Court had also noted that over the last few decades, most of these ponds in our country had been filled with earth and built upon by greedy people thus destroying their original character. This has contributed to the water shortages in the country. Many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/gram panchayat officials and even such money collected from these so called auctions are not used for the common benefit of the villagers, but misappropriated by certain individuals.

Intellectual Forum vs State of AP

Merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What the court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellant alleges11).

Friends Colony Development Committee vs State of Orissa

In this case12), the Apex Court has held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. This principle applies with greater force in cases of encroachment of village common land. The Apex Court noted that in many States, the government orders have been issued permitting allotment of gram sabha land to private persons and commercial enterprises on payment of some money and such government orders are held to be illegal and should be ignored.

Restrictions on governmental authority

According to Professor Joseph L. Sax, the public trust doctrine imposes the following restrictions on governmental authority—

  1. 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;
  2. the property may not be sold, even for a fair cash equivalent; and
  3. the property must be maintained for particular types of uses.

Professor Joseph L. Sax holds that “the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.”

Application of the Public Trust Doctrine in the USA

In America, public trust doctrine has been applied to public properties, such as shore lands and parks. There, the idea of a public trusteeship rests upon three related principles—

  1. First, that certain interests like the air and the sea have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership.
  2. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status.
  3. Finally, that it is the principal purpose of the government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit.

It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. However, 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 lands, for example fresh water, wetlands or riparian forests.

The observations of the Court in Mono Lake Case13), to the effect that the protection of ecological values is among the purposes 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.14)

Phillips Petroleum Co. vs Mississippi

In this case15), the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying no navigable tidal areas. The majority judgment adopted ecological concepts to determine which land can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands, not on commercial considerations, but on ecological concepts16).

About the Author

Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.

1997 1 SCC 388
146 US 387
350 Mass 410 1966
532 Mass 670
244 NE 2d 577
6) , 13)
33 Cal 3d 419
1999 6 SCC 464
AIR 2006 SC 1352
1997 3 SCC 715
AIR 2001 SC 3215
2006 (3) SCC 549
2004 (8) SCC 733
See: Dharohar Bachao Samiti vs. State of Rajasthan, Rajasthan High Court on 17 May, 2012
108 SCC 791
See: Dharohar Bachao Samiti vs State of Rajasthan, Rajasthan High Court on 17 May, 2012

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