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ACKNOWLEDGEMENT
I would like to express my gratitude to all those who gave me the possibility to complete this
project. I want to thanks Dr P Sri Devi for giving me such an opportunity to do this project.
This project has helped me to understand the subject with better clarity and by sourcing data;
my researching abilities have grown by leaps and bounds.
I would also like to express my gratitude to my friends, who were instrumental in bringing
the project to its final stage without any hurdles and to my family, for their constant
motivation and support.
CONTENTS
Page no.
List of Cases
Abbreviations
Research Methodology
Introduction
6-7
Scope
7-8
Purposes
Public Standing
8-9
Remedies
9-16
16-17
18-19
20-21
Bibliography
22
List of Cases
Illinois Central R.R. Co. v. Illinois, 146 US 387 (1892)
Fomento Resorts & Hotels v. Minguel Martins, (2009) 3 SCC 571
Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1
M.C. Mehta v. Kamal Nath and others, (1997) 1 SCC 388
Th. Majra Singh v. Indian Oil Corporation, AIR 1999 J&K 81
M.I. Builders v. Radhey Shyam Sahu, AIR 1999 SC 2468
Intellectual Forum Tirupathi v. State of AP & Others, AIR 2006 SC 1350
Karnataka Industrial Arias Development Board v. C. Kenchappa and Others, AIR
2006 SC 2050
Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715
Perumatty Grama Panchayat v. State of Kerala, 2005 (2) KLT 554
Essar Oil v. Halar Utkarsh Samiti, 2004 (2) SCC 392
Enviro-Legal Action v. Union of India, 1996 (5) SCC 281
M.C. Mehta v. Union of India (Taj Trapezium Case), (1997) 2 SCC 653
State of Himachal Pradesh v. Ganesh Wood Products, (1995) 3 SCC 363
Narmada Bachao Andolan v. Union of India, (2002) 10 SCC 664
A.P. Pollution Control Board v. Prof. M.V. Nayudu & Ors, (1999) 2 SCC 718
Centre for Public Interest Litigation & Ors. v. Union of India & Ors, (2012) 3 SCC 1
Abbreviations
v- Versus
USA- United States of America
Ltd- Limited
SCC- Supreme Court Cases
AIR- All India Report
SC- Supreme Court
J&K- Jammu & Kashmir
AP- Andhra Pradesh
PTD- Public Trust Doctrine
Govt- Government
Art- Article
Co- Company
Ors- Others
KLT- Karnataka Law Times
UOI- Union of India
Research Methodology
I have used doctrinaire method for my research work.
Sources of Data:
The following secondary sources of data have been used in the project1. Books
2. Websites.
Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical
and the researcher has, for her convenience divided the write up into various parts.
Mode of Citation:
The researcher has followed a uniform mode of citation throughout the course of this research
paper.
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.1
consequently the sea shore was 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 privatum, which could be alienated, and the jus publicum rights of
navigation and fishing, which were held by the King in inalienable trust for the public.3
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 affected could interfere with the interest of the
public at large.4
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.5
Scope
The scope of the Indian public trust doctrine is vast: it covers all natural resources. In the
foundational case of Kamal Nath which first recognized the doctrine, the Indian Supreme
Court declared that the state government is trustee of all natural resources, and the public is
the beneficiary of the sea-shore, running waters, air, forests, and ecologically fragile lands.
The court then applied the doctrine to parklands in the M.I. Builders case, and a state court
recognized the doctrines application to groundwater. Clearly, the Indian doctrine is not
cabined by the navigable waters limits recognized in some American states. Recent decisions
confirm the extensive scope of the Indian public trust. In 2009, in Fomento Resorts & Hotels
3
v. Minguel Martins,6 the Indian Supreme Court ruled that the resort violated the public trust
by constructing recreational facilities on a traditional footpath and obstructing public beach
access. As the facilities were located some two hundred meters from high tide, the scope of
the trusts application to shore lands is considerable. One year later, in Reliance Natural
Resources Ltd. v. Reliance Industries Ltd.,7 the same court struck down an offshore natural
gas contract between companies because the gas in Indias territorial waters was publicly
owned and subject to public trust balancing to ensure fairness to future generations.8
Purposes
The purposes of the Indian public trust doctrine are as encompassing as its scope. The Kamal
Nath decision expressly ruled that the purposes were not limited to the traditional purposes of
navigation, commerce, and fishing, but also included ecological purposes. The court declared
the public to be the beneficiary of ecologically sensitive lands. In Fomento Resorts, the
Indian Supreme Court upheld the publics continued use of a footpath for beach access
against a resort development because it was a time immemorial public use of common
properties, at least in part for recreation. Public trust purposes also extend to ensuring a fair
distribution of the revenues produced from publicly owned resources, such as natural gas
leases. This fair distribution includes concerns for intergenerational equity. According to a
state court, the purposes also include regulating resources according to the precautionary
principle.9
Public Standing
Indian case law indicates widespread recognition of the right of citizens to enforce the public
trust doctrine, regardless of personal injury, so long as the individual or group is not
economically self-interested. Citizens may sue any level of government, as well as private
entities, since the Indian public trust doctrine appears to burden private parties and the
government. However, in 2002, the Indian Supreme Court curtailed standing somewhat by
requiring citizens to seek out a non-profit or other organization as a proxy, although they can
still file a public trust doctrine suit if there is no willing organization.
Remedies
Indian courts have awarded injunctive relief, ordered restitution and money damages, and
rescinded private contracts for violations of the public trust doctrine. These remedies may be
enforced against both government agencies and private parties.10
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.14
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.15
The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others16 where the Indian
Supreme Court applied public trust with regard to the protection and preservation of natural
resources. 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.17
The Judge touched up the history of the doctrine of public trust. He pointed out that 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.18
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
14
10
protect the natural resources. These resources meant for public use cannot be converted into
private ownership.19
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.20
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.21
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.22
Chronologically, the second case on this subject is Th. Majra Singh v. Indian Oil
Corporation,23where the petitioner objected to the location of a plant for filling cylinders with
liquefied 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 a part 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.24
In the third case, M.I. Builders v Radhey Shyam Sahu25, 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
19
11
freedom was given to the builder to 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.26
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 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.27
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.28
26
Supra note 17
Supra Note 26
28
www.academia.edu/2025649/Public_Trust_Doctrine_in_India (last visited 07.03.2016)
27
12
In Intellectual Forum Tirupathi v. State of AP & Others29 and Karnataka Industrial Arias
Development Board v. C. Kenchappa and Others.30 It would be argued that the Indian SC has
sought to further develop its Jurisprudence with regards to PTD. The Intellectual Forum case
involved the alienation of the tank bed lands of two tanks mainly for housing purposes. The
petitioners challenged the alienation as violating PTD and as a violation of the States
obligation to protect the environment including water resources. In making its determination
the court expounded the jurisprudential basis of PTD in India and its implications and
identified the right to equality, right to life and the other fundamentals rights recognised in
the constitution, as providing the framework for PTD. However, in the opinion of the court
PTD is located most firmly in the constitutional value of protection of the environment.
Citing the duty of the State and the duty of the citizen to protect the environment court
comments as followsArt 48A of the constitution of India mandates that the State shall endeavour to protect and
improve the environment safeguards the forests and wild life of the country. Art 51A of the
constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to
protect and improve national environment including forests, lakes, rivers, wild life and to
have compassion for living creatures. These two Articles are not only fundamental in the
governance of the country but also it shall be the duty of the State to apply these principles in
making laws and further these two Articles are to be kept in mind in understanding the scope
and purport of the fundamental rights guaranteed by the constitution.31
The court makes reference to the Roman and English law origins of the doctrine, its
development in the USA and reaffirms the dicta of the Mehta case. In this case however the
court goes a step further and holds that the strict scrutiny test should be applied in matters
that involve the PTD- when the State holds a resource that is freely available for the use of
the public, it provides for a high degree of judicial scrutiny upon any action of the Govt, no
matter how consistent with the existing legislations, that attempts to restrict such free use. To
properly scrutinize such actions of the Govt, the courts must make a distinction between the
govts general obligation to act for the public benefit and the special more demanding
obligation which it may have as a trustee of certain public resources.32
29
13
14
public trust doctrine, which although previously applied in environmental cases has its
broader application.37
In Essar Oil v. Halar Utkarsh Samiti,38The court held that the sole aim to balance economic
and social needs on the one hand with environmental considerations on the other. But in a
sense all development is an environmental threat. Indeed, the very existence of humanity and
the rapid increase in population together with the consequential demands to sustain the
population has resulted in the concreting of open lands, cutting down of forests, filling up of
lakes and the pollution of water resources and the very air that we breathe. However there
need not necessarily be a deadlock between developments on the one hand and the
environment on the other. The objective of all laws on environment should be to create
harmony between the two since neither one can be sacrificed at the altar of the other.
In Enviro-Legal Action v. Union of India,39 The court held that economic development
should not be allowed to take place at the cost of ecology or by causing widespread
environmental destruction and violation; at the same time the necessity to preserve ecology
and environment should not hamper economic and other developments. Both development
and environment should go hand in hand, in other words, there should not be development at
the cost of environment and vice versa, but there should be development while taking due
care and ensuring the protection of the environment.
The concept of sustainable development also finds support in the decisions of the court in the
cases M.C. Mehta v. Union of India (Taj Trapezium Case),40 State of Himachal Pradesh v.
Ganesh Wood Products,41 and Narmada Bachao Andolan v. Union of India,42 Centre for
Public Interest Litigation & Ors. v. Union of India & Ors,43 The court held that for
development will not be enough to sanction the destruction of local ecological resources.
What this Court should follow is a principle of sustainable development and finds a balance
between the developmental needs which the respondents assert, and the environmental
degradation, that the appellants allege.
37
15
The principle of "Inter-Generational Equity" has been adopted while determining cases
involving environmental issues as in the case of A.P. Pollution Control Board v. Prof. M.V.
Nayudu & Ors.44
45
16
private party of a seashore for some definite purpose, but afterwards the actions of the private
party resulted in the denial of access to the public to the seashore, then in such a case the
Doctrine of Public Trust can be applied to invalidate those actions or the lease itself.46
46
Supra Note 36
Ibid
48
Supra Note 47
49
www.ielrc.org/content/a0804.pdf (last visited 08.03.2016)
47
17
All uses, including those specifically authorized by the Legislature, must take into account
the overarching principle of the public trust doctrine that trust lands belong to the public and
are to be used to promote public rather than exclusively private purposes.
In the broad ambit of the Doctrine of Public Trust, the following duties would be imposed
upon the state (while dealing with the public properties):
1) Duty to Act for the Benefit of Public: The state is required to act for the benefit of the
public at large in the best possible way. This duty is part of a wider obligation that the trustee
is required to loyal towards the people on behalf of whom he manages the trust. The state
should not act in self-interest, even if when the interests of government are in conflict with
those of beneficiaries (the people at large). Moreover while managing the public resources
the governments are required to take care of the rights of not only the present generation, but
also of the future generation.50
2) Duty Not to Sell the Public Resources: The trustee has no right to sell the property of
trusteeship, hence the state must not sell the properties which come under the purview of the
Doctrine of Public Trust (as like sea shores, lakes, rivers, forest, etc).51
3) Duty not to Grant Lease, Unless in Public Interest: The state must not grant the licenses
or leases to private actors to use the public resources unless the same would serve greater
public interest, and the limitation which were applicable to the state would also persist to
apply even on these private actors.52
4) Duty to Preserve and Protect the Natural Resources: The state is under a duty to
preserve and protect the resources, held by it in public trust. The state can neither itself act,
nor can it allow the others private actors to act in such a way so as to degrade, pollute, or
spoil the natural resources. For the purposes of preservation, the state is also required to
balance the use of resources by current beneficiaries, and the aim of conservation of these
resources for continued use by the future generations.
The Doctrine of Public trust is forerunner of protecting the rights relating to environment
which are part of the fundamental human rights. The Doctrine of Public Trust has been used
50
18
widely to prevent the government from transferring or conveying the public resources to the
private actors as like in the case of Illinois Central Railway Co. v. Illinois.53 It was
recognized by the Supreme Court of United States that title to the land held in public trust can
only be granted, when the grant does not impair the public interest or where the grant
improved the public trust. One other very important implication of the Doctrine is to
guarantee the continuous public access to different types of natural resources would be
maintained, and if the state manages the properties in such a manner so as to hinder the
access of public to these resources then the action would be invalid as per the Doctrine of
Public Trust.
53
19
Prohibition on the Grant of Title to Private Parties: Under the Doctrine of Public
Trust the government cannot grant the title or sell the natural resources to the private
player, even on highly lucrative or sufficient amount. Although the government can
provide licenses to private actor for some specified use, but that must be done only
when insubstantial public interest.
Enforceable Legal Right is Pre-Condition: For the application of the doctrine of
Public Trust, there must be an enforceable legal right existent (enforceable against the
government), and moreover that right must also be consistent with the contemporary
environmental concerns.
General Duties of a Trustee would be Applicable to the Government: The general
duties of trustee as like to act in the best interests of public, to protect and preserve the
trust property (i.e. the natural resources), to act with loyalty would be applicable on
the government, while dealing with natural resources.
Doctrine has been accepted as Part of Indian Constitutional Law: The Doctrine of
Public Trust has been accepted as a part of art. 21 of the Indian Constitution in the
cases of M C Mehta v. Kamal Nath54 and M.I Builders v. Radhey Shyam Sahu,55
because the doctrine fosters a pollution free environment, which is a part of right to
life.
54
55
20
Bibliography
Internet
www.commonlawreview.cz/searching-for-intergenerational-green-soluti...
www.legalserviceindia.com/articles/ptdoc.htm
www.lawteacher.net Public Law Essays
lawlibrary.unm.edu/nrj/32/3/05_ingram_public.pdf
perc.org/sites/default/files/ps39new.pdf
digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2439...tlr
www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act
www.academia.edu/2025649/Public_Trust_Doctrine_in_India
www.ecojustice.ca/media.../public-trust-and-a-modern-bc-water-act
www.ielrc.org/content/a0804.pdf
www.c-win.org/public-trust-doctrine.html
csc.noaa.gov/digitalcoast/training/public-trust
www.lead-journal.org/content/07195.pdf
indiankanoon.org/search/?formInput=doctrine%20of%20public%20trust
object.cato.org/cato-journal/fall-1987/public-trust-doctrine
Books
Dr. J.N. Pandey; The Constitutional Law of India; 47th ed; Central Law Agency;
Allahabad; 2010
AV Dicey; The Law of the Constitution; 10th ed; central law agency; Allahabad; 1959
Dr. K.C. Joshi; The Constitutional Law of India; 1st ed; Central Law Publication;
Allahabad; 2011
C.K. Takwani; Lectures on Administrative Law; 5th Edition, Eastern Book Company;
Lucknow.
21