Meghalaya High Court
The Principal St Anthonys College vs The State Of Meghalaya And Ors on 17 April, 2014
Equivalent citations: AIR 2015 (NOC) 138 (MEG.)
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No.294/2012
The Principal,
St. Anthony‟s College,
Bomfyle Road,
Shillong-793001,
East Khasi Hills District,
Meghalaya. :::: Petitioner
-Vs-
1. The State of Meghalaya represented by the
Secretary (Revenue) State of Meghalaya.
2. The Under Secretary to the (Revenue),
State of Meghalaya.
3. The Deputy Commissioner (Revenue),
East Khasi Hills, Shillong, Meghalaya.
4. The Shillong Municipal Board,
Shillong, East Khasi Hills District,
Meghalaya.
5. The Chief Executive Officer,
Shillong Municipal Board, Shillong,
East Khasi Hills District, Meghalaya.
6. Smti. Merita Wahlang,
Bomfyle Road,
Shillong-793001,
East Khasi Hills District, Meghalaya.
7. Mr. Nicholas Wahlang,
Bomfyle Road,
Shillong-793001,
East Khasi Hills District, Meghalaya. :::: Respondents.
BEFORE
THE HON‟BLE MR JUSTICE T NANDAKUMAR SINGH
For the Petitioner : Mr. S Sen,
Mr. E Nongbri, Advs.
For the Respondents : Mr. ND Chullai, Sr. GA,
Mr.S Sen Gupta, GA for respdt.1-3
Mr. K Baruah, for respdt.No.4&5
Mr. GS Massar, Sr. Adv.
Mr. JM Thangkhiew, for respdt.No.6&7
Page 1 of 26
Date of hearing : 10.04.2014
Date of Judgment & Order : 17.04.2014
JUDGMENT AND ORDER
This writ petition shows the heavily polluted water of a natural
stream, west end of the St. Anthony‟s College butted to that stream, running
towards Wahumkhrah River. That natural stream is a tributary of
Wahumkharah River. The "Doctrine of Public Trust" is required to be
considered in the present writ petition.
2. Heard Mr. S Sen, learned counsel for the petitioner and Mr. ND
Chullai, learned Sr. GA assisted by Mr. S Sen Gupta, learned GA appearing
for the respondents No.1-3, Mr. K Baruah, learned counsel for the
respondents No.4 & 5 and Mr. GS Massar, learned senior counsel assisted
by Mr. JM Thangkhiew, learned counsel appearing for the respondents No.6
& 7.
3. The petitioner is the Principal of St. Anthony‟s College, Bomfyle
Road, Shillong and the College is butted on the west end by a natural stream
which aids in mobilizing rainwater during monsoons towards the
Wahumkhrah River. That stream is tributary of the said River. That natural
stream carries effluent and wastewater discharged and other rubbish emitted
into it, which is the major cause for its pollution. It is stated that there are
regular cleaning drives conducted by the locals in which the college plays an
integral part. Respondents No.6 & 7, who are the occupants of a plot of land
on the west end of the St. Anthony‟s college and across the stream had
made certain construction over the stream in a manner to cover the entire
stream and extended their construction to the college‟s retaining wall. The
Page 2 of 26
respondents No.6 & 7 had enlarged the area of their property by encroaching
upon the stream and connecting their encroachment with college property.
Because of the encroachment made by the respondents No.6 & 7 by
covering the stream, a portion of the stream can no longer be cleaned. It is
admitted case of all the parties that the portion of the said stream or stream
passing through between St. Anthony‟s college at the back side and the said
plot of the respondent No.6 & 7 is a public stream situated within the
Municipality. Under Section 62 of the "Meghalaya Municipal Act, 1973" (for
short the „Municipal Act, 1973‟), the Municipal property includes all the public
streams, channels, water courses, springs tanks, reservoirs cisterns, wells
etc. situated within the Municipality; and those properties are under the
management and control of the Shillong Municipal Board. For easy
reference, Section 62 of the Municipal Act, 1973 is quoted hereunder:-
"MUNICIPAL PROPERTY
62. Municipal property - (1) Subject to any reservation made by
the State Government all property of the nature hereinafter in
this section specified and situated within the municipality shall
vest in and belong to the Board and shall with all property of
whatever nature or kind which may become vested in the
Board, be under its direction, management and control, that is
to say.
(a) all public roads including the soil, the pavements, stones
and other materials thereof, and all drains, bridges, trees,
erection, materials, implements and other things provided for
such roads;
(b) all public streams, channels, water courses, springs tanks,
reservoirs cisterns, wells, aqueducts, conduits, tunnels, pipes,
pumps and other water-works whether made laid are created at
the cost of the Board or otherwise and bridges, buildings,
engines, works, materials and things connected therewith or
appertaining thereto and also any adjacent land, not being
private property, appertaining to any public tanks;
Provided that water pipes and any water works connected
therewith or appertaining thereto which with the consent of the
Board are laid or set up in any street by the owner of any mill,
factory, workshop or the like primarily for the use of their
employees shall not be deemed to be public water-works by
reason of their use by the public;
Page 3 of 26
(c) all public sewers and drains, all works materials and things
appertaining thereto and other conservancy works;
(d) all sewage, rubbish and offensive matter collected by the
Board from roads, latrines, sewers, cess-pools and other
places;
(e) all public lamps, lamps-posts and apparatus connected
therewith or appertaining thereto and all public gates, markets,
slaughter houses and public buildings of every description
which have been constructed or are maintained out of the
municipal fund;
(f) all land or other property transferred to the Board by the
Government or acquired (by the Board) by gift, purchase or
otherwise for local public purposes.
(2) The State Government may by notification in the official
gazette, direct that any property which has vested under sub-
section (1) in the Board shall cease to be so vested, and
thereupon the property specified in the notification shall cease
to be so vested and the State Government may pass such
orders as it thinks fit regarding the disposal and management of
such property."
4. On 17.07.2009, the petitioner wrote a letter to the Deputy
Commissioner (Revenue) i.e. respondent No.3, intimating the illegal and
unauthorized construction made by the respondents 6 & 7 over the said
natural stream and a copy thereof was also forwarded to the Secretary
(Revenue), Meghalaya Secretariat, Shillong i.e. respondent No.1. Pursuant
to the said complaint, a survey was conducted by Smti. R.R. Marak, MCS on
21.07.2009 in the presence of the petitioner, respondents No.6 & 7 and other
college authorities. It is also stated that on 24.07.2009, the respondents No.6
& 7 met the college authorities and in that meeting, the college authorities
had clearly communicated to the respondents No.6 & 7 that the illegal
encroachment and construction over the said natural stream is an
environmental hazard and would adversely affect the boundary wall of the
college premises. Respondent No.7 under his letter dated 05.08.2009,
informed the petitioner that he had obtained prior permission from the
concerned authority for construction. In that letter, the particular of the
Page 4 of 26
authority, from whom the respondent No.7 obtained prior permission for
construction on the said stream, is not mentioned. The petitioner again under
his letter dated 06.08.2009, requested the Deputy Commissioner (Revenue)
East Khasi Hills District, Shillong to take necessary action to demolish the
unauthorized construction over the said stream by the respondents No.6 & 7.
5. On 15.02.2010, the respondent No.7 under his letter dated
15.02.2010, informed the petitioner that he had obtained necessary
permission from the Deputy Commissioner‟s Office and as such, there was
no illegality in the construction. From the said letter dated 15.02.2010, it
appears that the respondents No.6 & 7 had made the construction over the
said natural stream after obtaining prior permission from the Deputy
Commissioner Office. It will be more profitable to quote the said letter of the
petitioner dated 06.08.2009 (Annexure-III to the writ petition) and the said
letter of the respondent No.7 dated 15.02.2010 (Annexure-V to the writ
petition) hereunder:-
"ST. ANTHONY'S COLLEGE
Grade "A" (3.60/4) NACC SHILLONG- 793001
Re-accredited College MEGHALAYA - INDIA
With potential for Excellence
(awarded by UGC)
Principal
Ref.No.SAC/IW/41/09-02 dated 6th August, 2009.
To,
The Deputy Commissioner (Revenue),
East Khasi Hills District, Shillong - 793001.
Subject: Illegal and unauthorized construction over
a natural stream.
Ref: Our letter No.SAC/IW/41/09-01 dated 17th
July, 2009.
Dear Sir,
While inviting reference to the above, I would like to
inform you that in pursuance to my complaint, your good office
Page 5 of 26
had appointed Smti. R.R. Marak, MCS to conduct a survey with
regard to the alleged construction over the stream running
between St. Anthony‟s College, Shillong and the property of
the Wahlang family under the name M/s V.W. Bonded
Warehouse.
The said survey was conducted on 21st July 2009, in our
presence and a representative of the "Wahlang" family but
thereafter no further development has taken place so as to
demolish the unauthorized construction. I would like to reiterate
that the "Wahlang" family who owns the property adjoining the
natural stream are apparently attempting to illegal usurp.
The covering of the stream poses an environmental
hazard as the stream which requires intermittent cleaning and
has been deprived of the same for a substantial period of
time and resulting in an adverse impact on the foundation of the
structure of the Auditorium, the Media - IT buildings and the
boundary walls.
I, therefore, request you to kindly take necessary action
to demolish the unauthorized construction which is presently
posing as a threat.
This is for your information and necessary action.
Thanking you,
Sd/-
Fr. I. Warpakma SDB,
Principal.
Date: 15.02.2010
To,
The Principal,
St. Anthony‟s College,
Shillong - 793001.
Ref: Your letter No.SCA/TW/41/10-05 dated 10th
February, 2010.
Dear Father I. Warpakma SDB.
In your referred letter you have expressed
apprehensions that the construction of the cover on the stream
between St. Anthony‟s college compound and ours boundary
wall. However, the above apprehensions need to be
substantiated with a detailed calculation by a qualified engineer
to ascertain the extent of damage that has been caused by the
subject construction.
The cover of the drain has been constructed after
permission from the Deputy Commissioner‟s Office and as such
there is no illegality in the construction. Furthermore, I shall be
Page 6 of 26
obliged to have a meeting with you along with my technical
advisor and your technical consultant so that the matter may be
amicably settled.
Looking forward to a positive response from your end.
Thanking you,
Yours faithfully,
Sd/-
Shri. Nicholas Wahlang.
Lachumiere,
Shillong-793001."
What the respondent No.7 stated in his letter dated 15.02.2010
is that the permission obtained from the Deputy Commissioner‟s Office for
covering of the natural stream is the letter/No Objection Certificate dated
18.04.2008 (i.e. Annexure-IX to the writ petition) which reads as follows:-
"GOVERNMENT OF MEGHALAYA
OFFICE OF THE DEPUTY COMMISSIONER: EAST KHASI
HILLS DISTRICT, SHLLONG.
No. L.14/10(18)2006/50 Dt.Shillong, the 18th April, 2008.
To,
Smt. Merita Wahlang,
Plot No.4 & 5.
Lower Lachumiere, Shillong.
Subject: No Objection Certificate.
Reference: MW/HOTEL/5/2008-09/3 dt.16.4.2008.
Madam,
With reference to the above I am to say that this office
has no objection for construction for developing of an Eco-
friendly Green Patch along with the existing Stream flowing on
the sides of the Boundary on your own expenditure. However,
you are to ensure that the drains are not blocked at any point of
time.
Yours faithfully,
Sd/-
Deputy Commissioner,
East Khasi Hills District,
Shillong."
Page 7 of 26
6. The Shillong Municipal Board to whom the said stream is
vested is the only competent authority to regulate the said stream; and also
the encroachment and obstruction of the natural stream without necessary
permission or order from the Municipal Board shall have to be removed by
the Board by issuing a Notice under Section 159 of the Municipal Act, 1973.
The Magistrate may, on the application of the Municipal Board, shall remove
such obstruction within 48 hours of receipt of the application of the Board.
Sections 159, 162, 163, 164, 165, 167 and 171 of the Municipal Act, 1973
are quoted hereunder:-
"159: Removal of obstruction or encroachment in or public road
- The Board may issued a notice requiring any person to
removed any building which he may have built or any fence,
rail, post or other obstruction or encroachment which he may
have erected, on any public road house gully, public drain,
sewer, aqueduct, water-course ghat or any land vested in the
board; and, if such person fails to comply with such requisition
within forty eight hours of the receipt of the same, the
Magistrate may, on the application of the Board, other that such
obstruction or encroachment be removed; and there upon the
board may removed any such obstruction or encroachment and
the expenses there by incurred shall be paid by the person who
erected the same.
162. Power of District and Subdivisional Magistrate to remove
encroachments - Notwithstanding anything contained in
Section 159 and 161, a District Magistrate or a Subdivisional
Magistrate may within his jurisdiction, on being so empowered
by the State Government, order any person responsible for any
obstruction or encroachment or projection as specified in
Section 159 and 161 to remove or alter such obstruction or
encroachment or projection within a period not less than forty
eight hours and on non-compliance with such order may take
all necessary steps to remove or alter such obstruction or
encroachment or projection and realize the expenses thereby
incurred from the person concerned as fine in a Criminal Court:
Provided that in case the person or person responsible for such
obstruction, encroachment or projection is/are not known or
cannot be found the procedure laid down in Section 160 shall
be followed.
Page 8 of 26
163. Effect of order made under Sections 159, 160, 161 or 162
- Every order made by a Magistrate under Sections 159, 160,
161 or 162 shall be deemed to be an order made by him in the
discharge of his judicial duty and the Board shall be deemed to
be persons bound to exercise such order within the meaning of
the Judicial Officers‟ Protection Act, 1850 (Act XVIII of 1850).
164. Power to regulate line of buildings on public roads and
drains (1) Whenever a Board considers it expedient to define
the general alignment of buildings on each either side of any
existing or proposed public road or drain, it shall give public
notice of its intention to do so.
(2) Every such notice shall specify a period within which
objections will be received, and a copy of such notice shall be
sent to every owner of premises abutting on such road or drain
who is registered in respect of such premises on the books of
the Municipality; provided that accidental failure or omission to
serve such notice on any owner shall not invalidate
proceedings under this section.
(3) The Board shall consider all objections received within the
specified period and may then pass a resolution defining the
said alignment and the alignment so defined shall be called "the
regular line" of the road or drain.
(4) Every order made under sub-section (3) shall be widely
published by beat of drum in the locality and a copy thereof
affixed to the notice board in the office of the municipality.
(5) Thereafter, it shall not be lawful for any person to erect, re-
erect or alter a building or part of a building so as to project
beyond the regular line of the road or drain unless he is
authorized to do so by a sanction given under Section 174 or
by a permission in writing under this section and the Board is
hereby empowered to grant such permission.
(6) Any owner of land who is prevented by the provision of this
section from erecting re-erecting or altering any building on nay
land may require the Board to make compensation for any
damage which he may sustain by reason of such prevention
and upon the payment of compensation in respect of any land
situated within the regular line of the road or drain such land
shall vest in the Board.
(7) The board may by notice, require within a reasonable time
the alteration or demolition of any building or part of a building
erected, re-erected or altered in contravention of sub-section
(5).
165. Erection of Platforms - (1) No platform shall be erected,
re-erected or extended upon or over any public road or drain
without the previous sanction of the Board.
Page 9 of 26
(2) The owner of every platform, except platforms which used
for giving such access to the houses as the Board may
consider necessary, shall if the Board in a meeting so direct
take out a license for keeping the platform. For every such
license there shall be paid annually a fee to be fixed by the
Board at a meeting.
(3) Every such license shall remain in force for one year and
shall be renewable annually.
(4) Any platform erected, re-erected extended or maintained in
contravention of the provisions of sub-section (1), (2) and (3)
shall be deemed to be an "obstruction" for the purposes of
Sections 159, 160 and 161.
167. Cutting of public road, passage of water, etc. - if any
person, in order to provide for the passage of water, or for any
other purpose, shall, without the consent of the Board, dig or
cut any public road, he shall be liable for a fine not exceeding
twenty five rupees, and in addition be bound to pay these
expenses incurred in filling up any excavation made by him or
on his behalf in any public road.
BUILDINGS
171. Prohibition of building without sanction - (1) No person
shall erect, materially alter, or re-erect or commence to erect,
materially alter or re-erect any building without sanction of the
Board.
Provided that in an area in respect of which an authority has
been constituted under the Assam Town and Country Planning
Act, 1959, the power of giving sanction to erect, materially alter
or re-erect or commence to erect, materially alter or re-erect
any building shall vest in that authority and the sanction given
by that authority shall be deemed to be a sanction of the Board.
(2) Every person who intends to erect, materially alter or re-
erect any building shall give notice in writing to the Board of
such intention.
While byelaws have been framed under section 302, no notice
under sub-section (2) shall be considered to be valid until
notice is served under clause (iii) with such information as is
necessary under Clause (iv) of that section.
Explanation - an alteration in a building for the purposes of this
section and of byelaws be deemed to be material if it - (a)
affects or is likely to affect prejudicially the stability or safety of
the building or the condition of the building in respect of
drainage, ventilation, sanitation or hygiene; or (b) increase or
diminishes the height or area covered by or the cubical capacity
of the building, or of any room in the building.
(4) in the municipalities where water works are maintained it
shall be compulsory for persons erecting or re-erecting building
Page 10 of 26
costing Rs. 5,000 or more (excluding cost of land and of
improvement of land) to install sanitary latrines. The Board shall
without sanctioned if the plan and specification of the building
submitted with the notice do not contain provision for
installation of sanitary latrines.
NOTES
ASSAM (AMENDMENTS)
Section 171 - the proviso to the sub section (1) was inserted
vide Assam Act. No.II of 1956, published in the Assam Gazette,
dated 10-1-1966, and in sub section (4) the figure and word
"Rs.5000" was also substituted by the same Amendment Act."
7. The Chief Executive Officer, Shillong Municipal Board had
already issued Notice under Section 159 of the Municipal Act, 1973 dated
09.07.2009 to the respondents No.6 to remove the cement slab over the
stream and the boundary wall erected by her within 7(seven) days and also
further directed to stop the construction work with immediate effect
(Annexure-XI to the writ petition) and it reads as follows:-
"Office of the
SHILLONG MUNICIPAL BOARD
10-Jail Road, Shillong-79301, Meghalaya.
http./ / smb.gov.in
______________________________________________________
Regd.No.SMB/PW/188/2009-10/8 Dated:Shillong, the 9th July, 2009.
NOTICE
Under Section 159 of Act XV of 1973 (Meghalaya Municipal Act).
To,
Smti. Merita Wahlang,
Owner and occupiers of premises at Lower Lachumiere .
__________________________________________________
Whereas on inspection it has been found that you have
encroached on the public stream by the side of your compound
by constructing slab cover over the stream and providing a
boundary wall thereon.
Page 11 of 26
You are hereby required under the provisions of Section
159 of the Meghalaya Municipal Act 1973 to remove the
cement slab over the stream and the boundary wall erected by
you within 7(seven) days. If you have any objection to urge
against the requisition you may prefer the same in writing within
five days of the service of his notice. Meanwhile, you are
directed to stop the construction work with immediate effect.
If you fail to comply with this requisition or to prefer the
objection as aforesaid, appropriate action as per provisions of
the Meghalaya Municipal Act, 1973 will be taken against you.
Sd/-
Chief Executive Officer,
Shillong Municipal Board."
Inspite of the said Notice dated 09.07.2009, the
respondents No.6 & 7 have not removed the cement slab over the said
stream and the boundary wall erected by them.
8. Respondent No.4, Shillong Municipal Board filed affidavit-in-
opposition wherein, it is stated that the respondent No.6 without obtaining No
Objection Certificate or permission form the Board covered the stream with
slab which may restrict the smooth flow of the stream and the Board had
issued a Notice dated 09.07.2009 to the respondent No.6 to remove the slab
and to explain as to why construction was made without the prior permission
of the Board. Para 5 of the Affidavit-in-opposition of the respondent No.4
read as follows:-
"5. That in reply to the statements made in paragraph 3 of the
writ petition, the deponent say that, as per the record, the
respondent No.6 without obtaining no objection certificate from
the Board covered the stream with slab which may restrict the
smooth flow of the stream, thereby necessitating the Board to
issue vide Notice dated 9th July 2009 (Annexure-XI to the writ
petition) her (respondent No.6) to remove the slab and to
explain as to why the construction was made without the prior
permission of the Board."
Page 12 of 26
9. The respondent No.7 filed affidavit-in-opposition and in that
affidavit, the respondent No.7 did not mention clearly from whom the
necessary permission had been obtained for covering the stream with
cement slab and also for constructing the boundary wall encroaching on the
said natural stream. The respondent rather admitted in the affidavit-in-
opposition that they had covered the natural stream with cement slab and
also constructed the boundary wall on the said natural stream for retaining
the boundary wall of the stream for eco-friendly green patch. It is also stated
in the affidavit-in-opposition that the petitioner-college has slab protruding
and abutting from the building adjacent to the PWD Roads. Further, it is also
alleged that irresponsible dumping of garbage and continuous pollution
created by the callous dumping of sewage and garbage by the petitioner‟s
college into the drain has led to the drain becoming a hotbed of health
hazard not to mention of the unbearable stench that emanates from the
drain. Para 9 of the affidavit-in-opposition of the respondent No.7 read as
follows:-
"9. That in reply to the averments made at paragraphs - 15 -
19 of the petition the Answering Respondent would say that,
the Answering Respondent attempt to re-enforce via
construction of a retaining wall on the boundary of their plot
butted by a stream was not with an intention to enlarge their
property by rather to protect their land from being eroded upon.
The notion of enlargement of the property by the petitioner is
amusing and nonsensical as the Answering Respondent is
already in possession of a huge plot of land. Further, the
irresponsible dumping of garbage and continuous pollution
created by the callous dumping of sewage and garbage by the
petitioner‟s college into the drain has led to the drain becoming
a hotbed of health hazard not to mention of the unbearable
stench that emanates from the drain. It is pertinent to mention
herein that the petitioner‟s building as stated earlier butted by
the PWD Road protrudes precariously over the PWD Road.
This contradictory stand taken by the petitioner wherein
violation of rules are made out against the Answering
Respondent and whereby the total violation of it by the
petitioner themselves is not brought to the notice of this Hon‟ble
Court seems to show that the petitioner may have an ulterior
motive behind the objection towards the strengthening of the
wall traversed by the stream and ironically this Hon‟ble Court
Page 13 of 26
may appreciate the dubious manner in which the petitioner has
conniving tried to manipulate the authority of this Hon‟ble Court
by coming before it with unclean hands."
10. The river bank, river basin and natural stream are the public
property and any person shall not encroach/cover/utilize any of its parts. The
river bank, river basin and stream shall be left open for public use. No
individual shall be allowed to discharge untreated effluents into the river.
Before proceeding further, apart from the fundamental right guaranteed
under Article 21 of the Constitution of India, it would be apposite to see the
relevant articles of the Supreme law of the land, i.e. Constitution of India. In
Part IV of the Constitution of India constitutional obligations of the State
Government are mentioned in the Directive Principles of State Policy, i.e.
Articles 47, 48-A and fundamental duties of the citizens are mentioned in
Article 51-A of Part IV-A of the Constitution of India. For easy reference
Articles 47, 48-A and 51-A of the Constitution of India are reproduced
hereunder:-
"Article 47. Duty of the State to raise the level of nutrition and
the standard of living and to improve health - The State shall
regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as
among its primary duties and, in particular, the State shall
endeavour to bring about prohibition of the consumption except
for medical purposes of intoxicating drinks and of drugs which
are injurious to health.
Article 48-A. Protection and improvement of environment and
safeguarding of forests and wildlife - The State shall endeavour
to protect and improve the environment and to safeguard the
forests and wildlife of the country.
Article 51-A. A Fundamental duties - it shall be the duty of
every citizen of India:-
(a) to abide by the Constitution and respect its ideals and
institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our
national struggle for freedom;
Page 14 of 26
(c) to uphold and protect the sovereignty, unity and integrity of
India;
(d) to uphold the country and render national service when
called upon to do so;
(e) to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic
and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite
culture;
(g) to protect and improve the natural environment including
forests, lakes, rivers and wildlife, and to have compassion for
living creatures;
(h) to develop the scientific temper, humanism and the spirit of
inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher
levels of endeavour and achievement;
(k) who is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between the
age of six and fourteen years."
11. The "Public Trust Doctrine in National Resource Law" had been
discussed by the Apex Court in M.C. Mehta vs. Kamal Nath & Ors: (1997) 1
SCC 388 and in that case, the Hotel management interfered with the flow of
river. The Apex Court in M.C. Mehta‟s case (Supra) held that the polluter
company is liable to compensate by way of cost for restitution of environment
and ecology of the area. Paras 24, 25, 26, 27, 38 & 39 of the SCC in M.C.
Mehta‟s case (Supra) read as follows:-
"24. The ancient Roman Empire developed a legal theory
known as the "Doctrine or the Public Trust". It was founded on
the ideas that certain common properties such as rivers, sea-
shore, forests and the air were held by Government in
trusteeship for the free and unimpeded use of the general
pubic. Our contemporary conceded about `the environment'
bear a very close conceptual relationship to this legal doctrine.
Under the Roman Law these resources were either owned by
Page 15 of 26
no one (res Nullious) or by every one in common (Res
Communious). Under the English common law, however, the
Sovereign could own these resources but the ownership was
limited in nature, the Crown could not grant these properties to
private owners if the effect was to interfere with the public
interests in navigation or fishing. Resources that were suitable
for these uses were deemed to be held in trust by the Crown for
the benefit of the public. Joseph L. Sax, Professor of Law,
University of Michigan - proponent of the Modern Public Trust
Doctrine - in an erudite article "Public Trust Doctrine in natural
resource law: effective judicial intervention". Michigan Law
Review Vol. 68 Part 1 page 473 has given the historical
background of the Public Trust Doctrine as under:
"The source of modern public trust law is found in a
concept that received much attention in Roman and
English law - the nature of property rights in rivers, the
sea, and the seashore. That history has been given
considerable attention in the legal literature, need not be
repeated in detail here. But two points should be
emphasized, First, certain interests, such as navigation
and fishing, were sought to be preserved for the benefit
of the public; accordingly, property used for those
purposes was distinguished from general public property
which the sovereign could routinely grant to private
owners. Second, while it was understood that in certain
common properties - such as the seashore, highways,
and running water - "perpetual use was dedicated to the
public." It has never been clear whether the public had
an enforceable right to prevent infringement of those
interests. Although the state apparently did protect public
uses, no evidence is available that public rights could be
legally asserted against a recalcitrant government.
25. The Public Trust Doctrine primarily rests on the principle
that certain resources like air, sea, waters and the forests have
such a great importance to the people as a whole that it would
be wholly unjustified to make them a subject of private
ownership. The 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 enjoyment of the general public
rather than to permit their use for private ownership or
commercial purposes. According to Professor Sax the Public
Trust Doctrine imposes the following restrictions on
governmental authority.
"Three types of restrictions on governmental authority
are often thought to be imposed by the public trust: first,
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; second, the property may not be
sold, even for a fair cash equivalent; and third property
must be maintained for particular types of uses".
Page 16 of 26
26. The American law on the subject is primarily based on the
decision of the United States Supreme Court in Illinois Central
Rail Road Company vs. People of the State of Illinois: 146
US 687 (1982). In the year 1869 the Illinois legislature made a
substantial grant of submerged lands - a mile strip along the
shores of Lake Michigan extending one mile out from the
shoreline - to the Illinois Central Railroad. In 1873, the
legislature changed its mind and repealed the 1869 grant. The
State of Illinois sued to quit title. The court while accepting the
stand of the State of Illinois' held that the title or the State in the
land in dispute was a title different in character from that which
the State held in lands intended for sails. It was different from
the title which the United States held in public lands which were
open to preemption and sale. It was a title held in trust - for the
people of the State that they may enjoy the navigation of the
water, carry on commerce over them, and have liberty of fishing
their in free from obstruction or interference of private parties.
The addiction of the general control of the State over lands in
dispute was not consistent with the exercise of the trust which
required the Government of the State to preserve such waters
for the use of the public. According to Professor Sax the Court
in Illinois' Central: 146 US 387: 36 L Ed 1018 (1892)
"articulated a principle that has become the central substantive
thought in public trust litigation. When a State holds a resource
which is available for the free use of the general public, a court
will look with considerable skepticism upon any governmental
conduct which is calculated either to relocate that resource to
more restricted uses or to subject public uses to the self-
interest of private parties".
27. In Gould vs. Greylock Reservation Commission 350
Mass 410 (1966), the Supreme Judicial Court of
Massachusetts took the first major step in developing the
doctrine applicable to changes in the use of lands dedicated to
the public interest. In 1886 a group of citizens interested in
preserving Mount Greylock as a unspoiled natural forest,
promoted the creation of an association for the purpose of
laying out a public park on it. The State Ultimately acquired
about 9000 acres, and the legislature enacted a statute
creating the Greylock Reservation Commission. In the year
1953, the legislature enacted a statute creating an Authority to
construct and operate on Mount Greylock an Aerial Tramway
and certain other facilities and it authorized the commission to
lease to the Authority any portion of the Mount Greylock
Reservation. Before the project commenced, five citizens
brought an action against both the Greylock Reservation
Commission and the Tramway Authority. The plaintiffs brought
the suit as beneficiaries of the pubic trust. The court held both
the lease and the management agreement invalid on the
ground that they were in excess or the statutory grant of the
authority. The crucial passage in the judgment of the Court is
as under:-
Page 17 of 26
"The profit sharing feature and some aspects of the
project itself strongly suggest a commercial enterprise.
In addition to the absence of any clear or express
statutory authorization of as broad a delegation of
responsibility by the Authority as is given by the
management agreement, we find no express grant to the
Authority or power to permit use of public lands and of
the Authority's borrowed funds for what seems, in part at
least, a commercial venture for private profit."
Professor Sax's comments on the above quoted paragraph
from Gould decision are as under:-
"It hardly seems surprising, then that the court
questioned why a state should subordinate a pubic park,
serving a useful purpose as relatively undeveloped land,
to the demands of private investors for building such a
commercial facility. The court, faced with such a
situation, could hardly have been expected to have
treated the case as if it involved nothing but formal legal
issues concerning the state's authority to change the use
of the certain tract of land..... Gould, like Illinois Central,
was concerned with the most overt sort of imposition on
the public interest; commercial interests had obtained
advantages which infringed directly on public uses and
promoted private profits. But the Massachusetts court
has also confronted a more pervasive, if more subtle,
problem - that concerning projects which clearly have
some public justification. Such cases arise when, for
example, a highway department seeks to take a pace of
parkland or to fill a wetland."
38. It is thus settled by this Court that one who pollutes the
environmental must pay to reverse the damage caused by his
acts.
39. 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 24.11.1993 and the lease-deed dated 11.04.1994
in favor of the Motel 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
Page 18 of 26
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 Motel 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 of the
Motel which is covered by the lease dated 29.09.1981.
The Motel shall not encroach/cover/utilize 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. If the
effluent/waste discharged by the Motel 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 Kullu-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 18.12.1996 why
Pollution-fine and damages be not imposed as directed
by us. NEERI shall send its report by 17.12.1996. To be
listed on 18.12.1996."
12. The Division Bench of the erstwhile Gauhati High Court
(consisting of Justice T. Nandakumar Singh and Justice Ketulhou Meruno)
had discussed the heavily polluted water of Nambul river and the
environmental hazard vis-à-vis fundamental duties of the citizen under Article
51-A of the Constitution of India and the duties of the Imphal Municipal
Council; and the Directive Principles of the State policy under Articles 47 &
Page 19 of 26
48-A of the Constitution of India and the Doctrine of Public Trust and other
environmental laws in Environment Protection Committee vs. Union of
India & Ors reported in 2011 (1) EFLT 326 and through Mr. Justice
T.Nandakumar Singh (as then he was) delivered the judgment with certain
directions to the authorities. Paras 22, 23, 24, 25, 26, 27, 28, 29, 32 & 33 of
the EFLT in Environment Protection Committee‟s case (Supra) read as
follows:-
"22. The legislature feels that although there are existing laws
dealing directly or indirectly with several environmental matters,
it is necessary to have a general legislation of pollution and
accordingly enacted "The Environment (Protection) Act,
1986". The statement of object and reasons for enacting the
Environment (Protection) Act, 1986 are that - (1) concern over
the state of environment has grown, the world since the sixties.
The decline in environment quality has been evidenced by
increasing pollution, loss of vegetal cover and biological
diversity excessive concentration of harmful chemicals in the
ambient atmosphere and in food chains, growing risks of
environmental accidents and threat to life support systems. The
World Community‟s resolve to protect and enhance the
environmental quality found expression in the decisions taken
at the United Nations Conference on the Human Environment
held in Stockholm in June, 1972. The Government of India
participated in the Conference and strongly voiced the
environmental concerns. While several measures have been
taken for environmental protection both before and after the
Conference, the need for a general legislation further to
implement the decisions of the Conference has become
increasingly evident. (2) Although there are existing laws
dealing directly or indirectly with several environmental matters,
it is necessary to have a general legislation of pollution or on
specific categories of hazardous substances. Some major
areas of environmental hazards are not covered. There also
exist uncovered gaps in areas of major environmental hazards.
There are inadequate linkages in handling matters of industrial
and environmental safety. Control mechanisms to guard
against slow, insidious build up of hazardous substances,
especially new chemicals, in the environment are weak.
Because of a multiplicity of regulatory agencies there is need
for an authority which can assume the lead role for studying,
planning and implementing long term requirements of
environmental safety and to give direction to, and co-ordinate a
system of speedy and adequate response to emergency
situations threatening the environment. (3) In view of what has
been stated above, there is urgent need for the enactment of
activities of the various regulatory agencies, creation of an
authority or authorities with adequate powers for environmental
protection, Regulation of discharge of environmental pollutions
Page 20 of 26
and handling of hazardous substances, speedy response in the
event of accidents threatening environment and deterrent
punishment to those who endanger human environment, safety
and health.
23. Today society‟s interaction with nature is so extensive that
the environmental question has assumed proportions affecting
all humanity. Industrialization, urbanization, explosion of
pollution, over exploitation of resources, depletion of traditional
sources of energy and raw materials, the disruption of natural
ecological balances, the destruction of a multitude of animal
and plant species for economics reasons and sometimes for no
good reason at all are factors which have contributed to
environmental deterioration. While the scientific and
technological progress of man has invested him with immense
power over nature, it has also resulted in the unthinking use of
the power, encroaching endlessly on nature. If man is able to
transform desert into oasis, he is also leaving behind desert in
the place of oasis. In the last century, a great German
materialist philosopher warned mankind. "Let us not, however,
flatter ourselves over much on account of our human victories
over nature. For each such victory, it is true, in the first place
brings about the result we expected, but in the second and third
places it has quite different. Unforeseen effects which only too
often cancel the first", Ecologists are of the opinion that the
most important ecological and social problem is the wide
spread disappearance all over the world of certain species of
living organisms. Biologist forecast the extinction of animal and
plant species on a scale that is incomparably greater than their
extinction over the course of millions of year. It is said that over
half the species which became extinct over the last 2,000 years
did so after 1900. The International Association for the
Protection of Nature and Natural Resources calculates that
now, on average, one species or one subspecies is lost every
year. It is said that approximately 1,000 bird and animal species
are facing extinction at present. So, it is that the environmental
question has become urgent and it has to be properly
understood and squarely met by man. Nature and history, it has
been said, are two component parts of the environment in
which we live, move and prove ourselves. (Ref. Shri
Sachidanand Pandey and Anr. v. State of West Bengal and
Anr.) MANU/SC/0106/1991: AIR 1991 SC 420: AIR 1987 SC
1109 (1997) 1 SCC 388: AIR 1987 SC 1109: AIR 2000 SC
1256.
24. The protection and improvement of the human environment
is a major issue which affects the well being of peoples and
economic development throughout the world, it is the urgent
desire of the peoples of the whole world and the duty of all
Governments. To achieve this environmental goal will demand
the acceptance of responsibility by citizens and communities
and by the enterprises and institution at every level, all sharing
equitably in common efforts. Individuals in all walks of life as
well as organizations in many fields, by their values and sum of
their actions, will shape the world environment of the future.
Local and National Governments will bear the grandest burden
for large scale environment policy and action within their
Page 21 of 26
jurisdictions. International cooperation is also needed in order
to raise resources to support the developing countries carrying
out their responsibilities in this field. A growing class of
environmental problems, because they are regional or FLT (1) -
22 global in extent or because they affect the common
international realm, will require extensive co-operation among
nations and action by international organization in the common
interest.
25. Legal Theory known as the „Doctrine of the Public Trust‟
rests on the principle that certain resources like air , sea,
waters and forests have such a great importance to the people
as a whole that it would be wholly unjustified to make them a
subject of private ownership. The 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 enjoyment of the
general public rather than to permit their use for private
ownership or commercial purposes. The Apex Court in M.C
Mehta v. Kamal Nath and Ors. MANU/SC/0106/1991 : AIR
1991 SC 420 : AIR 1987 SC 1109 : (1997) 1 SCC 388 : AIR
1987 SC 1109 :AIR 2000 SV 1256 held at para 24, 25 and 33
and in M.C Mehta v. Kamal Nath (supra) the fact is that
Government of Himachal Pradesh had allowed private
individual to construct a Motel building on the part of the River
basin and while constructing the boundary wall for the Motel
building attempt has been made to divert the course of the river
by encroaching the major part of the river basin.
26. As stated above, under the doctrine of "public trust", duties
are cast on the State Government to make the gift of the nature
freely available to everyone irrespective of the status and life
and also the doctrine enjoins upon the Government to protect
the resources for enjoyment of the general public rather than to
permit their use for private ownership or commercial purposes.
In that context the Supreme Court vide para 39 of the SCC in
Kamal Nath‟s case (supra) directed the state as thus:
.....................
27. Today‟s society interaction with the nature is also extensive that environmental question has assumed proportions affecting all humanity. Where an administrative action or order of the Government is alive to the various considerations requiring throughout and deliberation and has arrived at a conscious decision after taking them into account, it may not be for the court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind irrelevant considerations influence the decision, the court may interfere in order to prevent a likelihood of prejudice to the public. When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulder and says that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases the court may go further, but how much further must depend on Page 22 of 26 the circumstances of the case, the Court, may always give necessary directions. (Ref. decision of the apex court in: Shri Sachidanand Pandey and Ors. v. State of West Bengal and Anr.) MANU/SC/0106/1991: AIR 1991 SC 420: AIR 1987 SC 1109 (1997) 1 SCC 388: AIR 1987 SC 1109: AIR 2000 SC 1256.
28. From the ratio laid down by the Apex Court in Sachidanand Pandey‟s case (supra), it is clear that when the Court is called upon to give effect to the directive principles and fundamental duties, the court should not leave the matter to the executive authorities, which is the policy making authority and the Court is bound to examine appropriate considerations which are borne in mind and irrelevancy excluded in taking decision of the executive authorities for giving effect to the directive principle and fundamental duties. The Court may always give necessary directions.
29. In the present case, the excuse for the Respondent No. 5, Imphal Municipal Council for their failure to discharge their obligatory functions as provided under Section 37 of the Manipur Municipal Act, 1984 was paucity of funds. The Apex Court in Dr. B.L Wadehra v. Union of India and Ors. MANU/SC/0773/1996: AIR 1996 SC 2969 held that it is mandatory for the Delhi Municipal Corporation (MCD) and New Delhi Municipal Council (NDMC) to perform their duties to collect and dispose of garbage/ wastes generated from various sources in the city. The Delhi Municipal Corporation Act (16 of 1957) and New Delhi Municipal Council Act, 1994 further provided that apart from the right guaranteed under the Constitution of India, residents of Delhi have a statutory right to live in the clean society. Non-availability of funds, inadequacy or inefficiency of the staff, insufficiency of the machinery etc. cannot be pleaded as ground for non-performance of their statutory obligations. The Supreme Court in Dr. B. L Wadehra‟s case (supra) had directed the Delhi Municipal Corporation (MCD) and the New Delhi Municipal Council (NDMC) to discharge their mandatory duties under the said Act. .........
32. For the foregoing discussions and also under the „doctrine of Public Trust‟ the state respondent have the bounden duty to protect the Nambul River evicting the encroachers on its eastern banks of / basin of the river from Maharani bridge to Keishamthong Bridge and the respondent No. 5 Imphal Municipal Council shall discharge its obligatory functions and duties as provided under Section 37 of the Manipur Municipalities Act, 1994 for which sufficient funds, more particularly the fund for carrying out the bounden duties of the Respondent No. 5 mentioned in above para 4,13,14,15 and 18 should be made available by the State Government. The State Government shall also make available dumping sites of the garbage/waste materials collected by the respondent No. 5 from the Dustbins, the market area and Municipal areas. The amount of funds required shall be decided after due deliberation of the Imphal Municipal Council and the State Government expeditiously.
Page 23 of 2633. Under the fundamental duties, as defined under Article 51- A of the Constitution of India, every citizen has to protect and improve the environment including the forest, lakes, river, wild life and to have compassion for the living creatures. The encroacher on the river bank and river basin of the Nambul river on its eastern bank from Maharani bridge to Keishamthong bridge, who utterly fail to discharge the fundamental duties under the Constitution of India, are required to be punished severely under the relevant provisions of law and they all be evicted. Since the steps are to be taken up by authorities are for betterment of the society, there should be no sympathy in evicting them from the river banks and River basin of Nambul river. Anybody found discharging effluents from the private latrines or/ effluents and dumping/disposing solid wastes to the Nambul river are to be punished severely under the law and shall also be stopped immediately. The State Government and the Imphal Municipal Council are ordered accordingly. The whole exercise of eviction of the said encroachers shall be completed within a period of four months from the date of receipt of certified copy of this judgment and order.
The registry is directed to send the copies of this judgment and order by a Special Messenger to:
(1) The learned Advocate General, Manipur, (2) The Chairperson, Imphal Municipal Council, (3) Chairperson, Manipur Pollution Control Board, Lamphelpat, Imphal.
(4) Chairman, PDA, Manipur Imphal (5) The Chief Secretary, Government of Manipur. (6) The Director General of Police, Manipur, Imphal (7) The Secretary (MAHUD), Government of Manipur for necessary action."
13. It has been brought to the notice of this Court that the directions in Environment Protection Committee‟s case (Supra), had been complied with by the State Govt. i.e. State of Manipur, represented by Secretary, Environment & Forest, Imphal, Secretary, Municipal Administration, Housing & Urban Development (MAHUD), Imphal, Imphal Municipal Council and the Manipur Pollution Control Board.
14. The Apex Court in M.C. Mehta vs. Kamal Nath & Ors: (2002) 3 SCC 653 imposed a costs of Rs.10 lakhs to the Motel i.e. Span Motel Pvt.
Page 24 of 26Ltd. to whom directions had been made in M.C. Mehta‟s case (Supra) reported in (1997) 1 SCC 388 as an exemplary damages. Para 9 of the M.C. Mehta‟s case (Supra) i.e. (2002) 3 SCC 653 read as follows:-
"9. The question remaining for further consideration relating to the award of exemplary damages is only as to the quantum. The various laws in force to prevent, control pollution and protect the environment and ecology provide for different categories of punishment in the nature of imposition of fine as well as or imprisonment or either of them, depending upon the nature and extent of violation. The fine that may be imposed alone may extend even to one lakh of rupees. Keeping in view all these and the very object underlying the imposition of imprisonment and fine under the relevant laws to be not only to punish the individual concerned but also to serve as a deterrent to others to desist from indulging in such wrongs which we consider to be almost similar to the purpose and aim of awarding exemplary damages, it would be both in public interest as well as in the interests of justice to fix the quantum of exemplary damages payable by Span Motels Pvt. Ltd. at Rupees Ten lakhs only. This amount we are fixing keeping in view the undertaking given by them to bear a fair share of the project cost of ecological restoration which would be quite separate and apart from their liability for the exemplary damages. The question relating to the said quantum of liability for damages on the principle of "polluter pays", as held by this Court against the Span Motels Pvt. Ltd. and undertaken by them, will be determined separately and is left open for the time being. The amount, of special damages of Ten lakhs of rupees, shall be remitted to the State Government in the Department of Irrigation and Public Health to the Commissioner/Secretary for being utilized only for the flood protection works in the area of Beas river affected by the action of Span Motels Pvt. Ltd.
15. For the foregoing reasons and discussions, this Court directs:
(i) The respondents No.4 & 5 are to remove the cement slab over the said natural stream and the boundary wall encroaching the stream constructed by the respondents No.6 & 7 within four weeks from the date of receipt of a certified copy of this judgment and order;
(ii) The respondent No.3 (Deputy Commissioner (Revenue) East Khasi Hills District, Shillong shall extend all necessary Page 25 of 26 assistance to the respondents No.4 & 5 in taking up steps in pursuance with the above direction No.(i) and;
(iii) The petitioner shall not dump garbage into the said natural stream and an undertaking in this regard shall also be obtained from the petitioner by the respondents No.4 & 5. The petitioner is further directed to put up necessary arrangement or structure so as to prevent the staff or students of the college from dumping garbage into the said natural stream within four weeks‟ from the date of receipt of a certified copy of this judgment and order.
16. The respondents No.4 & 5 shall complete the whole exercise in pursuance to the above directions within a period of four weeks from the date of receipt of a certified copy of this judgment and order. The respondents No.6 & 7 are also directed to bear all the expenses for removing the unauthorized construction/encroachment made by them by the respondents No.4 & 5. In case of failure on the part of any party, a cost of several lakhs of Rupees shall be imposed, taking cue of the decision of the Supreme Court in M.C. Mehta‟s case (Supra) i.e. (2002) 3 SCC 653, to the defaulting party.
17. With the above directions, this writ petition is disposed of.
JUDGE Lam Page 26 of 26