http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 28

Vs.

RESPONDENT:
KAMAL NATH & ORS.

DATE OF JUDGMENT: 13/12/1996

BENCH:
KULDIP SINGH, S. SAGHNR AHMAD

ACT:

HEADNOTE:

JUDGMENT:
THE 13TH DAY OF DECEMBER, 1996
Present:
Hon’ble Mr. Justice Kuldip Singh
Hon’ble Mr. Justice S. Saghir Ahmad
In-person for Petitioner
H.N. Salve, Sr. Adv., M.S. Vashisht, Rajiv Dutta, Shiv
Pujan Singh, J.S. Atri, L.R. Rath, Advs. With him for the
Respondents.
J U D G M E N T
The following judgment of the Court was delivered:
Kuldip Singh 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 of 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 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
engulted the Span club and the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 28
We are fully aware that the issues presented in this
case illustrate the classic struggle between those members
of the public who would preserve our rivers, forests, parks
and open land sin their pristine purity and those charged
with administrative responsibilities who, under the
pressures of the changing needs of an increasing complex
society, find it necessary to encroach to some extent open
lands heretofore considered in-violate to change. The
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 private
ownership or for commercial use. The esthetic use and the
prestime 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
goods and in public interest to encroach upon the said
resources.
Coming to the facts of the present case, large area of
the bank of river Beas which is part of protected forest has
been given on a lease purely for commercial purposes to the
Motels. We have no hesitation in holding that the Himachal
Pradesh Government committed patent breach of public trust
by leasing the ecologically fragile land to the Motel
management. Both the lease - transactions are in patent
breach of the trust held by the State Government. The second
lease granted in the year 1994 was virtually of the land
which is a part of river-bed. Even the board in its report
has recommended deleasing of the said area.
This Court in Vellore Citizens Welfare Forum v. Union
of India & Ors. JT 1996(7) S.C.375 explained the
"Precautionary Principle" and "Polluters Pays principle" as
under:-
Some of the salient principles of
"Sustainable Development", as
culled out from Brundtland Report
and other international documents,
are inter-Generational Equity, Use
and Conservation of Natural
Resources, Environmental
Protection, the Precautionary
Principle, Polluter Pays principle,
Obligation to assist and cooperate,
Eradication of Poverty and
Financial Assistance to the
developing countries. We are,
however, of the view that "The
Precautionary Principle" and "The
Polluter Pays" principle are
essential features of "Sustainable
Development". The "Precautionary
Principle" - in the context of the
municipal law - means:
(i) Environment measures - by the
State Government and the statutory
authorities - must anticipate,
prevent and attack the causes of
environmental degradation.
(ii) Where there are threats of
serious and irreversible damage,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 28
lack of scientific certainty should
not be used as a reason for
postponing measures to prevent
environmental degradation.
(iii) The "Onus of proof" is on the
actor or the
developer/industrialist to snow
that this action is environmentally
benign.
"The Polluter Pays" principle has
been held to be a sound principle
by this Court in Indian Council for
Enviro-Legal Action vs. Union of
India JT 1996 (2) 196. The Court
observed, "We are of the opinion
that any principle evolved in this
behalf should be simple, practical
and suited to the conditions
obtaining in this country". The
Court ruled that "Once the activity
carried on is hazardous or
inherently dangerous, the person
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
premised upon the very nature of
the activity carried on".
Consequently the polluting
industries are "absolutely liable
to compensate for the harm caused
by them to villagers in the
affected area, to the soil and to
the underground water and hence,
they are bound to take all
necessary measures to remove sludge
and other pollutants lying in the
affected areas". The "Polluter
Pays" principle as interpreted by
this Court means that the absolute
liability for harm to the
environment extends not only to
compensate the victims of pollution
but also the cost of restoring the
environmental of the damaged
environment is part of the process
of "Sustainable Development" and as
such polluter is liable to pay the
cost to the individual sufferers as
well as the cost of the reversing
the damaged ecology
The precautionary principle and the
polluter pays principle have been
accepted as part of the law of the
land.
It is thus settled by this Court that one who pollutes
the environmental must pay to reverse the damage caused by
his acts.
We, therefore, order and direct as under:
1. The public trust doctrine, as discussed by us in this
judgment is a part of the law of the land.
2. The prior approval granted by the Government of India,
Ministry of Environment and Forest by the letter dated
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 28
November 24, 1993 and the lease-deed dated April 11, 1994 in
favor of the Mote are quashed. 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 Himachal
Pradesh Government shall take over the area and restore it
to its original-natural conditions.
3. The Motel shall pay compensation by way of cost for the
restitution 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 and reversed. We direct NEERI through its Director
to inspect the area, if necessary, and give an assessment of
the cost which is likely to be incurred for reversing the
damage caused by the Mote to the environment and ecology of
the area, NEERI may take into consideration the report by
the Board in this respect.
4. The Motel through its management shall show cause why
pollution fine in addition be not imposed on the Motel.
5. 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 o the Motel which is covered by
the lease dated September 29, 1981. 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.
6. The Motel shall not discharge untreated effluent into
the river. We direct the Himachal Pradesh Pollution Control
Board to inspect the pollution control devices/treatment
plants set up by the Motel. It the effluent/waste discharged
by the Mote is not conforming to the prescribed standards,
action in accordance with law be taken against the motel.
7. The Himachal Pradesh Pollution Control Board shall not
permit the discharge of untreated effluent into river Beas.
The Board shall inspect all the
hotels/institutions/factories in Kuliu-Manali area and in
case any of them are discharging untreated effluent/waste
into the river, the Board shall take action in accordance
with law.
8. The Motel shall show cause on December 18, 1996 why
Pollution-fine and damages be not imposed as directed by
us., NEERI shall send its report by December 17, 1996. To be
listed on December 18, 1996.
The writ petition is disposed of except for limited
purpose indicated above.