# M.C. MEHTA v. KAMAL NATH AND ORS

- **Citation:** [1996] Supp. 10 S.C.R. 12
- **Court:** Supreme Court of India
- **Decided:** 1996-12-13
- **Bench:** Kuldip Singh, S. Saghir Ahmad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-c-mehta-v-kamal-nath-and-ors-14184
- **Pages:** 37

## Headnote

Environmental Law :
Constitution of Indi'a, 1950 : Article 32.
Public Interest Litigation-Ecology-Environmental Pollution-River
Beas-Public Trust Doctrine-Grant of lease-Of reparian for est land for
commercial purpose to private company which operated a Motel located at
bank of River, by State Government-Motel management interfered with
natural flow of rive1~Held, Public Trust Doctrine was part of Indian Law-It
extended to natural resources such as livers, forests, seashores, air etc. for
purposes of protecting ecosystem-State Government committed breach of
public trust-Prior sanction granted by Ministry of Environment and Forest
and lease granted in favour of Motel quashed-Polluter Pays Principle applicable-Hence polluter company liable to pay compensation in te1ms of cost
E for restitution of ttnvironment and ecology of the area-Other directions issued.
A news item appeared in the "Indian Express" which stated that a
private Motel in which the respondent's family had direct link, had floated
a club at the bank of River Beas by encroaching land including substantial
forest land which was later regularised and leased out to the company
F when the respondent was a Minister in the Central Government. It was
stated that the Motel used bulldozers and earth-movers to turn the course
of the river. The bulldozers created a new channel by diverting the flow of
the river. According to the news item three private companies were engaged
to reclaim vast tracts of land around the Motel. The course of the river
G was being diverted to save the Motel from future floods.
This Court took notice of the news item because the facts disclosed
therein, if true, would be a serious act of environmental degradation on
the part of the Motel.
H
Disposing of the petition, this Court
12
(
· M.C.MEHfA v. KAMALNA1H
13
HELD : 1.1. The notion that the public has a right to expect certain A
--.
lands and natural areas to retain their natural characteristic is finding its
way into the law of the land. The ancient Roman Empire developed legal
Theory known as the "Doctrine of the Public Trust". The Public Trust
Doctrine primarily rests on the principle that certain resources like air,
seas, waters and the forests have such a great importance to the people as B
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
'I
enjoyment of the general public rather than to permit their use for private
purposes. It is no doubt correct that the public trust doctrine under the C
English Common Law extended only to certain traditional uses such as
navigation, commerce and fishing. But 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 D
example fresh water, wetlands or riparian forests. The observations of the
Court in Mono Lake case 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 environmental 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 E
reasoning and are expanding the public trust to encompass new types of
lands and waters. There is no reason why the public trust doctrine should
not be expanded to include all eco-systems operating in our natural
resources. [35-H; 37-F; 38-E-F; 44-D-H]
1.2. Our legal system - based on English Common Law - includes the
public trust doctrine as part of its jurisprudence. The State is the trustee
F
of all natural resources which are by nature meant for public use and
enjoyment. Public

## Text

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M.C. MEHTA
v.
KAMAL NATH AND ORS.
DECEMBER 13, 1996
[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]
Environmental Law :
Constitution of Indi'a, 1950 : Article 32.
Public Interest Litigation-Ecology-Environmental Pollution-River
Beas-Public Trust Doctrine-Grant of lease-Of reparian for est land for
commercial purpose to private company which operated a Motel located at
bank of River, by State Government-Motel management interfered with
natural flow of rive1~Held, Public Trust Doctrine was part of Indian Law-It
extended to natural resources such as livers, forests, seashores, air etc. for
purposes of protecting ecosystem-State Government committed breach of
public trust-Prior sanction granted by Ministry of Environment and Forest
and lease granted in favour of Motel quashed-Polluter Pays Principle applicable-Hence polluter company liable to pay compensation in te1ms of cost
E for restitution of ttnvironment and ecology of the area-Other directions issued.
A news item appeared in the "Indian Express" which stated that a
private Motel in which the respondent's family had direct link, had floated
a club at the bank of River Beas by encroaching land including substantial
forest land which was later regularised and leased out to the company
F when the respondent was a Minister in the Central Government. It was
stated that the Motel used bulldozers and earth-movers to turn the course
of the river. The bulldozers created a new channel by diverting the flow of
the river. According to the news item three private companies were engaged
to reclaim vast tracts of land around the Motel. The course of the river
G was being diverted to save the Motel from future floods.
This Court took notice of the news item because the facts disclosed
therein, if true, would be a serious act of environmental degradation on
the part of the Motel.
H
Disposing of the petition, this Court
12
(
· M.C.MEHfA v. KAMALNA1H
13
HELD : 1.1. The notion that the public has a right to expect certain A
--.
lands and natural areas to retain their natural characteristic is finding its
way into the law of the land. The ancient Roman Empire developed legal
Theory known as the "Doctrine of the Public Trust". The Public Trust
Doctrine primarily rests on the principle that certain resources like air,
seas, waters and the forests have such a great importance to the people as B
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
'I
enjoyment of the general public rather than to permit their use for private
purposes. It is no doubt correct that the public trust doctrine under the C
English Common Law extended only to certain traditional uses such as
navigation, commerce and fishing. But 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 D
example fresh water, wetlands or riparian forests. The observations of the
Court in Mono Lake case 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 environmental 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 E
reasoning and are expanding the public trust to encompass new types of
lands and waters. There is no reason why the public trust doctrine should
not be expanded to include all eco-systems operating in our natural
resources. [35-H; 37-F; 38-E-F; 44-D-H]
1.2. Our legal system - based on English Common Law - includes the
public trust doctrine as part of its jurisprudence. The State is the trustee
F
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 G
is under a legal duty to protect the natural resources. These resources
meant for public use cannot be converted into private ownership. Thus
Public Trust Doctrine is a part of the law of the land. [45-A-B]
Illinois Ce11tral R.R. Company v: Illi11ois, 146 US 387; Gould v.
Greylock Reservatio11 Commission, 350 Mass 410 (1966); Sacco v. DevelopH
14
SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A ment of Public Works, 532 Mass 670; Robins v. Department of Public Works,
255 NE 2d 577; National Audubon Society v. Superior Court of Alpina
~-
County, 33 CAL. 3d 419; Priewevs, Wisconsin State Land and Improvement
Company 93 Wis 534 (1896); Crawford County Lever and Drainage Distt.
No. 1, 182 Wis 404 and City of Milwaukee v. State, 193 Wis 423 and State v.
B Public Se1vices Commission, 215 Wis 112, referred to.
Prof. Sax : Public Tmst Doctrine in Natural Resources Law : Effective
Judicial Intervention", Michigan Law Review, Vol. 68, part 1, p 473 and
David B. Hunter : ''An Ecologi.cal Perspective on Property : A call for Judicial
Protection of the Public's interest in Environmentally Critical Resources",
C Harvard Environmental Law Review, Vol. 12 1988 p 311, referred to.
Marks v. Whitney, 6 Cal 3d 251 and United Plainsmen v. N.D. State
Water Cons. Comm'n, 247 NW 2d 457 (N.D. 1976), cited.
2.1. The issues presented in this case illustrate the classic struggle
D 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 chang-
. ing needs of an increasing complex society, find it necessary to encroach
to some extent open lands heretofore considered in-violate to change. The
E resolution of this conflict in any given case is for the legislature and not
the courts. 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. 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
F private ownership or for commercial use. The esthetic use and the prestine
glory of the natural resources, the environment and the eco-systems 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. [45-C-E]
G
2.2. In the present case, large area of the banks of river Beas which
is part of protected forest has been given on a lease purely for commercial
purposes to the Motels. The area being ecologically fragile and full of
scenic beauty should not have been permitted to be converted into private
ownership and for commercial gains. The State Government committed
H patent breach of public trust by leasing the ecologically fragile land to the
M.C.MEHTAv. KAMALNA1H
15
Motel management. The lease transactions are in patent breach of the A
""'
trust held by the State Government. [45-F-G]
2.3. The admissions by the Motel-management in various letters
written to the Government officers and the report placed on record by the
Central Pollution Control Board clearly show that the Motel-management B
has by their illegal constructions and callous interference with the natural
flow ofriver Beas has degraded the environment. The Motel interfered with
the natural flow of the river by trying to block the natural relief/spill
channel of the river. It is settled by this Court that one who pollutes the
environment must pay to reverse the damage caused by his acts. [35-C-D]
c
Ve/lore Citizens Welfare Forum v. Union of India & Ors., JT (1996) 7
SC 375, relied on.
Indian Council for Enviro-Legal Action v. Union of India, JT (1996) 2
SC 196, cited.
D
3. The Motel shall pay compensation by way of cost for the restitu·
,.
tion of the environment and ecology of the area. The pollution caused by
various constructions made by the Motel in the river bed and the banks
of the river Beas has to be removed a.nd reversed. NEERI is directed
through its Director to inspect the area, if necessary, and give an assessE
ment 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. NEERI
may take into consideration the report by the Board in this respect. The
Motel through its management shall show cause why pollution fine in
addition be not imposed on the Motel. The Motel shall construct a
boundary wall at a distance of not more than 4 meters from the cluster of F
-
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. The
Motel shall not encroach/cover/utilise any part of the river basin. 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 G
Motel shall not discharge untreated effiuents into the river. The State
Pollution Control Board is directed to inspect the pollution control
..
devices/treatment plants set up by the Motel. If the effiuent/waste dis·
..
charged by the Motel is not conforming to the prescribed standards, action
in accordance with law be taken against the Motel. The State Pollution
Control Board shall not permit the discharge of untreated effiuelit into H
16
SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A river Beas. The Board shall inspect all the hotels/institutions/factories in
Kullu-Manali area and in case any of them are discharging untreated
emuent/waste into the river, the Board shall take action in accordance with
law. The Motel shall show cause why Pollution-fine and damages be not
imposed as directed by this Court. [47-F-H; 48-A-E]
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CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 182 of
1996.
(Under Article 32 of the Constitution of India.)
In-person for Petitioner.
H.N. Salve, Sr. Adv., M.S. Vashisht, Rajiv Dutta, Shiv Pujan Singh,
J.S. Atri and L.R. Rath, Advs. for the Respondents.
The Judgment of the Court was delivered by
KULDIPrSINGH, J. This Court took notice of the News item appearing in the "Indian Express" dated February 25, 1996 under the caption
- "Kamal Nath dares the mighty Beas to keep his dreams afloat". The
relevant part or the news item is as under :
"Kamal Nath's family has direct links with a private company, Span
Motels Private Limited, which owns a resort - Span Resorts - for
tourists in the Kullu-Manali valley. The problem is with another
ambitious venture floated by the same company - Span Club.
The club represents Kamal Nath's dream of having a house on
the bank of the Beas in the shadow of the snow-capped Zanskar
ranges. 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 April 11, 1994. The
regularisation was done when Mr. Kamal Nath was Minister of
Environment and Forests. . ....... The swollen Beas changed its
course and engulled the Span Club and the adjoining lawns,
washing it away.
For almost five months now, the Span Resorts management has
been moving bulldozers and earth movers to turn the course of the
Beas for a second time.
M.C.MEIITA v. KAMALNATH[KULDIPSINGH,J.)
17
>Ji.
The heavy earth mover has been used to block the flow of the A
~
river just 500 metres upstream. The bulldozers are creating a new
channel to divert the river to at least one kilometer downstream.
The tractor trolleys move -~aiih and boulders to shore up the
embankment surrounding Span Resort for laying a lawn. According to the Span Resorts management, the entire reclaiming operaB
tion should be over by March 31, and is likely to cost over a crore
of rupees.
Three private companies - one each from Chandigarh, Mandi
and Kullu - have moved in one heavy earth mover (hired at the
rate of Rs. 2000 per hour), four earth movers and four bulldozers c
(rates varying from Rs. 650 to Rs. 850 each per hour) and 35 tractor
trolleys. A security ring has been thrown all around ........... Another
worrying thought is that of the river eating into the mountains,
leading to landslides which are an occasional occurrence in this
area. Last September, these caused floods in the Beas and property D
estimated to be worth Rs. 105 crore was destroyed ........ Once they
succeed in diverting the river, the Span management plans to go
in for landscaping the reclaimed land. But as of today, they are.
not so sure. Even they confess the river may just return.
' ,_
"Mr Kamal Nath was here for a short while two-three months E
ago. He came, saw what was going on and left. I suppose he knows
what he is doing'', says another executive.
""'·
The district administration pleads helplessness. Rivers and
forest land, officials point out, are not under their jurisdiction. Only F
the Kullu conservation of forests or the district forest officer can
-
intervene in this case.
But who is going to be!, the country's former Environment and
Forests Minister.
Interestingly, a query faxed to Kamal Nath for his views on G
these developments fetched a reply from Mr. S. Mukerji, President
of the Span Motels Private Limited.
Admitting that the Nath family had "business interests" in the
company since 1981, he said, "the company is managed by a team H
18
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SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
of professional managers and Mr. Kamal Nath is not involved in
the management of activity of the company."
"The Board comprises professionals, some of whom are friends
and relatives of the Nath family", Mr. Mukerji said, he expressed
surprise that a reference had been made to Rangri and Chakki
villagers "since these villagers are at least 2/3 kilometers away and
not even on the river side."
He said the Span Club was "not for the exclusive use of any
one individual." "We would like to emphasize that we are only
'restoring the river' to its original and natural course and are
"restoring our land and or those or neighbouring villagers similarly
affected by the flood."
He maintained that "Mr Kamal Nath has definitely not been to
Span Resorts in the last two months and in fact, to the best of my
D
knowledge, has not travelled to the Kullu Valley for quite some
time now .... .In any case, we had never 'blocked' any channel in
the vicinity of Span."
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Mr. Kamal Nath filed one-page counter affid<:ivit dated June 8, 1996. Paras
1 and 3 of the counter are as under :-
"I say that I have been wrongly arrayed as a respondent in the
above petition in-as-much as I have no right, title or interest in the
property known as 'Span Resorts' owned by 'Span Motels Private
Limited'.
I further say that the allegations made in the press reports
based on which this Hon'ble Court was pleased to issue notice are
highly exaggerated, erroneous, mala fide, mischievous and have
been published only to harm and walign the reputation of this
respondent."
On behalf of Span Motel Private Limited (the Motel), Mr. Banwari Lal
Mathur, its Executive Director filed counter affidavit. Paras 2 and 3 of the
Counter are as under :-
"I say that Mr. Kamal Nath who has been arrayed as respondent
H
No. 1 in the above writ petition has no right, title or interest in the
,,
M.C.MEHTA v. KAMALNATH[KULDIPSINGH,J.)
19
property known as SPAN RESORTS owned by Span Motels Pvt. A
Ltd. or in the lands leased out to the said company by the State
of Himachal Pradesh.
I say that the shareholding of SPAN MOTELS PVT. LTD. is as
under:
No. of Shares Held
% Share holding
Mrs. Leela Nath
32,560
42
EMC Projects Pvt.
14,700
19
Ltd.
SHAKA Properties
15,000
19
Pvt. Ltd.
SHAKA Estate &
15,000
19
Finance Pvt. Ltd.
Capt. Alok Chandola
250
01
77,510
100
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.
It was not disputed before us by Mr. Harish Salve, learned counsel'
appearing for Mr. Kamal Nath that almost all the shares in the Motel are
owned by the family of Mr. Kamal Nath. We do not wish to comment on .iE1
the averment made on oath by Mr. Kamal Nath that he has "no right, title ! · ·.
or interest in the property known as Span Resorts owned by Span Motels
Private Limited".
Mr. B.L. Mathur filed an additional counter affidavit dated July 30,
1996 on behalf of the Motel. The counter affidavit mentioned above states F
that Government land measuring 40 bighas 3 biswas situated along side
Kullu-Manali Road on the bank of river Beas was granted on lease to the
Motel for a period of 99 years with effect from October 1, 1972 to October
1, 2071. The lessee was granted permission to enter and occupy the said
area for purpose of putting up a motel and for installing ancillaries in due G
course as may be subsequently approved by the lessor. We may refer to
paras 6 and 7 of the lease deed dated September 29, 1972 which are as
under:
"The Lessee shall not dig deep pits of trenches in the said land,
which may lead to the danger or erosion and shall make good the H
20
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SUPREME COURT REPORTS(1996J SUPP.10 S.C.R.
Lessor I defects caused by their acts or defaults within one month
of notice by the Lessor.
In the event of said land being required by Lessor for any other
purpose, whatsoever the Lessor will be entitled to terminate this
lease at any time by giving six months notice in writing to the lessee
and the lessee shall not be entitled to any compensation whatsoever
on account of such termination."
The current management (Shri Kamal Nath's family) took over the
Motel in the year 1961. Fresh lease was signed on September 29, 1981. The
C new lease was for the same period from 1972 to 2071. Paras 4 and 5 of the
additional affidavit are as under :-
" I say that the Motel commenced operations in 1975. There are
over 800 trees in this area of 40 bighas. the motel has two clusters
with 8 dwelling units of 3 rooms each. The rooms are nowhere
D
near the river - the distance between the cluster of rooms and the
beginning of the river basin is about 10 meters-actually the river is
another 30 meters therefrom. Thus, the effective distance between
the edge of the river and the cluster of rooms is 40 meters.
I say that in the peak of the flood, the river did not come closer
E
than 10 meters to the rooms and did not, therefore, pose any
danger to the rooms, particularly there is no problems qua rooms
as the rooms are on a higher level - at least 5-7 meters at their
closest point."
Along with the additional affidavit the correspondence between the Motel
F
and Government has been annexed. In a letter dated October 19, 1988
addressed to the Chief Minister Himachal Pradesh. The Motel gave details
of the flood-damage during the year 1988 and finally requested the Government for the following steps :-
G
"Further it is imperative that the Government take immediate steps
to stop erosion of the land under lease to us. It would appear that
strong concrete blackened retaining walls will be necessary to be
placed at appropriate points to protect the land mass around us."
The Motel addressed letter dated August 30, 1989 to the Divisional Forest
H Officer, Kullu. The relevant part of the letter is as under :-
M.C.MEIITA v. KAMALNATH[KULDIPSINGH,J.]
21
When we acquired our land on lease, there were no clear demarA
"I_
cations of the surrounding areas and boundaries. There has existed
a stretch of waste and 'banjar' (Class III) forest land in a Ion-
'-·
gitudinal strip along the River bank admeasuring about 22.2 bighas,
contiguous and adjacent to our leased land. Over the years, and
especially aa:r the severe flood erosion last year, we have built B
extensive stone, cemented and wire-mesh crated embankments all
along the river banks at considerable expense and cost. We have
also gradually and painstakingly developed this entire waste a
'banjar' area, beautified and landscaped it, planted ornamental,
fruiting and varied forest trees extensively such that it blends with
our estate and with the surrounding flora and environment in a c
harmonious manner. A Revenue map along with all revenue
department records covering this entire area, is forwarded
enclosed here~th for your reference and perusal.
We are aware that in accordance with the forest Conservation D
Act of 1980, the use of Forest land by Private Agency even for
natural development and afforestation scheme, requires alternative
matching compensatory afforestation land areas to be surrendered
by the concerned party, after due approval of the Government. In
view of this statutory pre-condition, we wish to submit that we can E
immediately surrender to the Government nearly 28 bighas & 13
biswas of private agricultural cultivated land located at Village
MAJHACH, (Burua), MANALI, in exchange for the above mentioned 22.2. bighas of Class III banjar forest land adjoining our
land in Village Baragran Bihal, which we request for transfer to
our company in lieu of the land we are willing to surrender. The F
specific Revenue maps and records concerning this area of land
at Village Majhach, are also enclosed herewith for your kind
perusal."
It is obvious from the contents of the letter quoted above that the motel G
had encroached upon an additional area of 22.2 bighas adjoining to the
lease-hold area. Apart from that the Motel had built extensive stone,
cemented and wire mesh created embankments all along the river banks .
...
The Motel was keen to have the encroached land by way of exchange/lease.
A request to that effect was repeated in the letter dated September 12,
1989 addressed to the Divisional Forest Officer, Kullu. The Motel again H

M.C. MEIITA v. KAMAL NATI-I [KULDIP SINGH, J.)
23
,.
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stony piece of land and used to get flooded every year during
"'I
monsoons and often got washed away and reduced in size by river
erosion year by year. This land was reclaimed by us and protected
by an embankment and filling from the river side.
-
The said letter further states as under :-
B
"Similarly on the river side part of our leased land there used to
be floods and erosion every year. If we would have let this continue,
the leased land would have also got reduced every year. In order
.,
to protect our leased land and to save damage to our hotel
property, we at our own considerable expense and cost built stone c
and wire mesh crated embankment all along the river bank. This
not only protected our hotel land but also the forest land ....
'
In 1988 there were severe floods when every a portion of leased
land got washed away. It became imperative for us at considerable
expense to build an embankment on the river f!ont along the leased D
property. In order to build an embankment on the river front along
the leased property the washed away area and part of the river
bank had to be filled at huge cost. Once the river bed and the
washed away area was filled, the choice before us was either to
put soil on it and grow grass and trees to secure it or let it remain E
unsecured and aesthetically displeasing. We chose the former. As
a result of land filling and embankment our leased area when
"°!--
measured will obviously show an increase. This increase is not an
encroachment but reclamation with the objective of protecting the
leased property."
F
'
_,.
In the letter dated August 7, 1993 addressed to. the Divisional Forest
Officer, the Motel again asked to lease of adjoining area. The relevant part
of the letter is as under :-
"We had explained in our previous letters dated 21.6.93 and 23.7.93 G
(copies of which have been sent to you with our letter dated 5.8.93)
the circumstances under which we had to spend enormous sum of
~,
money in protecting and reclaiming the forest land adjoining our
, ...
Resort. It had become necessary for us to undertake this reclamation and protection work by filling the land from the river bed,
constructing embankments, retaining walls and crating etc. in order H
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24
SUPREME COURTREPORTS(1996] SUPP.10 S.C.R.
to protect the land leased by the Government to our Span Resort
and property thereon but we were unable to complete the entire
work as we were restrained from carrying on with the work under
undue allegations of encroachment on the forest land .....
In order to ezjJedite the process of commencing protection
work on an urgent basis on the forest land, we propose that the
forest land be gi~en to us on long lease co-terminu_s__.with the lease
of the land granted by the government for our Span Resorts. Thiscould be. done by a supplementary lease as it is imperative to save
the land under the original lease.
All we have done is to reclaim and protect the land from
erosion by constructing crates, retaining walls and embankments
along the river Beas by investing huge amounts which unfortunately
have all been washed away due to floods and now requires
reconstruction to save the forest land and our adjoining property
from total destruction."
The Government of India, Ministry of Environment and Forests by the
letter dated November 24, 1993, addressed to the Secretary, Forest,
Government of Himachal Pradesh, Shimla conveyed its prior approval in
E 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. A lease deed dated April 11, 1994 regarding the
said land was executed between the Himachal Government and the Motel.
The additional affidavit filed by the Motel refers to the prior approval
granted by the Government of India as under :
F
G
"In the Ministry of Environment and Forests, the proposal was
cleared by the Secretary and Forwarded to the Forest Advisory
Committee by passing the Ministf•,r concerned. The Forest Advisory Committee cleared the proposal subject to severe restrictions - and also certain restrictions which are not normally imposed
in such cases. The proposal was then cleared at the level of the
Prime Minister and a letter of 24th November, 1993, approval was
communkated to the State Government and SMPL."
It may be mentioned that Mr. Kamal Nath was the Minister in charge,
H Department of Environment and forests at the relevant time. What is
"'
...
,,
'
M.C.MEHTA v. KAMALNATII[KULDIPSINGH,J.]
25
sought to be conveyed by the above quoted paragraph is that Mr. Kamal A
Nath did not deal with the file. The correspondence between the Motel
--;_
and the Himachal Government referred to and quoted by us shows that
from 1988 the Motel had been writing to the Government for the exchange/lease of the additional Forest land. It is only in November 1993
when Mr. Kamal Nath was the Minister, incharge of the Department that B
the clearance was given by the Government of India and the lease was
granted . Surely it cannot be coincidence.
This Court took notice of the news item - quoted above - because
the facts disclosed therein, if true, would be a serious act of environmentdegradation on the part of the motel. It is not disputed that in September C
1995 the swollen beas engulfed some part of the land in possession of the
motel. The news item stated that the motel used earth-movers and
bulldozers to turn the course of the river. The effort on the part of the
motel was to create a new channel by diverting the river-flow. According
to th~ news item three private companies were engaged to re-claim huge D
tracts of land around the motel. The main allegations in the news item was
that the course of the river was being diverted to save the motel from future
floods. In the counter affidavit filed by the motel, the allegations in the
news item have been dealt with in the following manner :
"
"(1) If the works were not conducted by the Company, it would in E
future eventually cause damage to both banks of the river, under
natural flow conditions.
(m) By dredging the river, depth has been provided to the river
channel thus enhancing its capacity to cope with large volume of
water.
i:;'
(n) The wire crates have been put on both banks of the river. This
has been done to strengthen and protect the banks from erosion
and NOT as any form of river diversion. It is not necessary to divert
the river because simply providing greater depth and removing G
debris deposits enhances the capacity of the river to accommodate
greater water flow.
( o) I further state that the nearly 200 metres of wire crates which
have been put on the left bank of the river (the river bank on the
opposite side of SP AN) is in the interest of the community and H
A
B
c
D
E
F
G
26
SUPREME COURT REPORTS(l996] SUPP.10 S.C.R.
nearby residents/villages. This left Bank crating protects the
hillside where RANGRI, CHAKKI and NAGGAR are located.
(s) After the floods, it was observed, that the boulders and rubble
deposits were obstructing and hindering the flow of the river and
thus, it was the common concern of the Company as well as of the
Panchayat of the Village BARAGRAN BIHAL to carry out dredging measures to provide free flow of the river water.
(t) Accordingly alleviation measures conducted by the company
and the villagers of BARAGRAN BIHAL were as under :
(i) Dredging of Debris deposit : Debris deposits in river basin which
had collected due to the floods were removed by dredging. This
deepens the channel and thus allows larger flow of water.
(ii) Strengthening of both banks with wire crates : Wire crates are
the common method of protection of bank erosion. Accordingly
wire crates were put along the opposite side (left bank) to protect
the landslide of the hillside wire on which village RANGRI is
perched. Wire crating was also put on the Resort side of the River
(Right Bank) to strengthen & pr~tect the bank against erosion. All
the wire crating runs along the river flow and not as an obstruction
or for, any diversion.
(w) It is further submitted that whereas the report mischievously
refers to villagers of Rangri, Chakki and Naggar nowhere does it
take in to account the very real problems of villagers of Baragran
Bihal which is located immediately on the Right Bank near the
SP AN Resort who were seriously affected by the floods. Chakki,
Rangri and Naggar Villages have not at all been affected by the
floods and there is no remote possibility. of these villages being
affected due to the flood protection works conducted by the
Company."
In the additional affidavit filed by the motel the facts pleaded are as
under:
"(ii) It had become necessary for them to undertake this reclamation and protection work by filling the land from river bed, conH
structing embankment, retaining walls and crates, etc. in order to
M.C.MEHTA v. KAM.\\1,NA1H[KULDIPSINGH,J.]
27
protect the land leased by the Government to the Resort and the A
property thereon.
(vii) The forest land which is suspectible to heavy river erosion by
floods involves high cost for its protection from getting washed
away every year would.be protected by construction of embankments and filling from the river side by the Company ... .local B
community or Kullu Manali and surrounding villages will benefit."
Mr. G.D. Khachi, Under Secretary (Revenue) Government of Himachal
Pradesh in the counter affidavit filed in this Court stated as under :
"(iii) That subsequently, a piece of land measuring 21- 09 bighas
was encroached by M/s. Span Motels. On coming to the notice of
the Government of such encroachment, the Govt. of Himachal
Pradesh in Revenue Department took action and reportedly got
the encroached land vacated, and the possession of which has been
c
taken over by the Forest Department,
D
· that on 21-22 July, 1992, the then Chief Secretary to the Government of Himachal Pradesh visited the site who drew the inference
that M/s. Span Motel Ltd. were still using the encroached land.
The copy of note on inspection of the then Chief Secretary is E
annexed as R-1,
that immediately on receipt of the recommendations of the then
Chief Secretary (Annexure R-I), the Department of Forest started
working at the site bu~ in the mean time, it was decided to lease
out a piece of land ~easuring 27-12 bighas which includes the said F
encroached land measuring 21-09 bighas. the lease granted by the
Government of Himachal Pradesh in Revenue Department vide
letter No. Rev.O(G)6-53/93, dated 6.4.1994 is annexed as Annexure
R-II after obtaining the _approval of Government of India, Ministry
of Environment & Forest, New Delhi vide letter No. 9-115/93G
ROC, dated 24.11.93 (copy annexed as Annexure R-III) for the
purpose of protecting earlier leased land,
that the developmental activities which was being undertaken by
Mis. Span Motels Ltd. came to the knowledge of the Government
from the News Item which appeared in the Press and field officers H
A
B
c
D
E
F
G
28
SUPREME COURT REPORTS(1996) SUPP.10 S.C.R.
of all the concerned departments took an exercise to carry out the
inspection and reported the matter to the Government".
C.P. Sujaya, Financial Commissioner-cum-Secretary (Irrigation and Public
Health) Government of Himachal Pradesh in her counter affidavit filed in
this Court, inter alia, stated as under :
"Admitted to the extent that the Span Resorts management had
deployed heavy earth moving machinery to reclaim their land and
to divert/channelise the course of river to its course which it was
following prior to 1995 floods: by dredging and raising of earthen
and wire crated embankments.
The flow of river has been changed/diverted by dredging/raised of
wire crated embankments and creating channel from a point u/s
of Span Resorts to D/s of Span Resorts. The approximate length
of channel is about 1000 mtrs.
Admitted to the Extent that village Ranghri and Chakki are located
on left bank of river Beas. However, channelization of river has
been done slightly away from the toe or foot hills except for the
last about 500 ~etres where it is running along the foot hills.
The hill on which village Rangri and Chakki are situated consists
of small boulders embedded in Sandy Strata and is quite fragile/unstable in nature. Therefore, this reach of river is prone to land
slides in the normal course also. However, it is feared that flow of
river along the foot hills may hasten/aggravate the process of land
slides. The Span management has provided wire crated embankment in a reach of about 30 metres on left bank and about 270
metres on right bank to channelise the flow and also to reclaim
part of land on right bank of river Beas.
Admitted to the extent that the diversion/channelization of river
has been done to restore it to its course of pre-1995 floods and in
doing so, by raising the earthen and wire crated embankments,
some land of villagers situated on right bank of river Beas has also
been reclaimed along with land of Span Resort."
This Court by the order dated May 6, 1996 directed the Central Pollution
H Control Board (the Board) through its Member Secretary to inspect the
r
..,
,.
M.C.MEHTA v. KAMALNATif[KULDIPSINGH,J.)
29
environments around the area in possession of the motel and file a report. A
This Court further ordered as under :
"Meanwhile we direct that no construction of any type or no
interference in any manner with the flow of the river or with the
embankment of the river shall be made by the Span Management."
B
Pursuant to this Court's order dated May 6, 1996 the Board filed its report
along with the affidavit of Dr. S.P. Chakrabarti, Member-Secretary of the
Board. It is stated in the affidavit that a team compromise Dr. Bharat
Singh, Former Vice Chancellor and Professor Emeritus, University of
Roorkee, Dr. S.K Ghosh, Senior Scientist and former Head, DiVision of C
Plant Pathology (NF), Kerala Forest Research Institute, Peechi, Trichur
and Dr. S.P. Chakrabarti, Member-Secretary, Board was constituted. The
team inspected the area and prepared the report. Para 4.2 of the report
gives details of the construction done by the motel prior to 1995 floods.
The relevant part of the paragraph is as under :
"To protect the newly acquired land, SMPL took a number of
measures which include construction of the following as shown in
Fig. 2:
D
(a) S nos. studs of concrete blocks Sm Jong and 20m apart on the
eastern face of the club island on the upstream side,
E
(b) 150m long stepped wall also on the eastern face of club island
on the downsti'eam side,
(c) A 2m high bar of concrete blocks at the entry at the spill
channei and
( d) Additional S nos. studs also Sm long and 20m apart on the
right bank of the river Beas in front of the restaurant of the SMPL.
F
While (a) & (b) were aimed at protecting the club island from the G
main current, ( c) was to discourage larger inflow into the spill
channel. Item { d) was meant to protect the main resort land or
SMPL if heavy flow comes into the spill channel.
The works executed in 1993 were bank protection, works, and were
not of a nature so as to change the regime or the course of river. H
A
B
c
D
E
F
G
H
30
SUPREME COURT REPORTS[l996] SUPP. 10 S.C.R.
A medium flood again occurred in 1994. Partly due to the protection works, no appreciable damage occurred during this flood. The
main current still continues on the left bank."
The happening of events in the vicinity of motel during the 1995 flood and
the steps .taken by the motel have been stated in the report as under :
"A big slip occurred on the hill side on the left bank, at a distance
about 200m upstream from the point where division into main and
spill channels was occurring on the afternoon of September 4, 1995.
This partially blocked the main left side channel which was relatively narrow at this location. This presumably triggered the major
change of course in the river diverting the major portion of the
flow into spill channel towards the right and almost over the entire
land area of the club island. The entire club building and the
I
plantation as well as the protection works build in 1993 were
washed away. Heavy debris was deposited on this land. Damage
occurred on the right bank also but the buildings of the main SMPL
resort remained more or less unaffected. A large hotel and many
buildings on the right bank, almost adjacent to SMPL in the
downstream were also washed away. The bar of blocks at the
· upstream end of the spill channel as well as most of the studs on
this channel were also washed away. Some remnants of five
downstream studs could be seen at the time of the visit. After the
passage of 1995 flood, .SMPL have taken further steps to protect
their property as shown in Fig. 3. These are as follows :
1. The left side channel (the main channel), which had become
less active, has been dredged to increase its capacity. Wire crate
revetments (A, B & C) on both banks of this channel have been
made to direct the flow through this channel. These revetments
and restoration earth work done would curtail the entry of water
into the right side relief/spill channel which had developed into
the main channel during the flood. A relatively S!llall channel (the
relief/spill channel). still exists and carries very little flow. Bulk of
the flow is now going into the left bank channel.
On the left bank, there are steep unstable slopes at higher elevations left after the slides during the flood. These are likely to slip
in any case, and if so happens, may block the left channel again.
. '
M.C.MEIITA v. KAMALNATII(KULDIPSINGH,J.]
31
This land belongs to some villagers from Rangri. The left bank , A
channel is again sub-dividing into two streams (D) and the small
stream is flowing close to the toe of the hills for a distance of about
500 to 600 m before it turns towards midstream. Some of the
dredged material is piled on the right bank and some on the divide
between the main channel and the subsidiary channel on the left. B
Strips can be seen in this reach of 500-600 m even now, and erosion
at toe may aggravate sliding tendency.