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Case law analysis: Application of public trust

doctrine in Indian environmental cases

Article · January 2001

DOI: 10.1093/jel/13.2.221

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 CASE LAW ANALYSIS

Application of Public Trust Doctrine in Indian

Environmental Cases

M.I. Builders Pvt Ltd v Radhey Shyam Sahu (AIR 1999 SC 2468)

(Majumder and Wadhwa JJ, 26 July 1999)

Civil Appeal Nos 9323–9325, 1994

Public park—Construction of underground shopping complex in park—Permission

granted by city corporation—Entrusting construction to a private builder—Tenders
not invited—Construction of complex against Municipal Act and against development
plan—Judicial review under Article 226 of the Constitution of India—Violation of
obligatory duty of the city corporation to maintain parks—Violation of public trust
doctrine—Demolition of development.

Extracts from the Judgment

WADHA J:
These appeals are directed against the judgment dated 23 August 1994 of a Division Bench
of the High Court of Judicature at Allahabad (Lucknow Bench). By a common judgment in
three writ petitions, the High Court speaking through Shobha Dixit J held that the decision of
the Lucknow Nagar Mahapalika (‘Mahapalika’) also now called Nagar Nigam or Corporation,
permitting M.I. Builders Pvt Ltd (the appellant herein) to develop Jhandewala Park (also
known as Aminuddaula Park) situated at Aminabad Market, Lucknow, was illegal, arbitrary
and unconstitutional. The High Court set aside and quashed the relevant resolutions as of the
Mahapalika permitting such construction and also the agreement dated 4 November 1993
entered into between the Mahapalika and the appellant for the purpose. Writ of mandamus
was issued to the Mahapalika to restore the park back to its original position within a period
of three months from the date of the judgment. Until that happened, to take adequate safety
measures and to provide the necessary safeguard and protection to the public, users of the
park. The High Court noted that the park was of historical importance, not denied by the
Mahapalika, and also that perseverance or maintenance of the park was necessary from the
environmental angle, and that the only reason advanced by the Mahapalika for construction
of the underground commercial complex was to ease congestion in the area. The High Court,
however, took judicial notice of the conditions prevailing at Aminabad Market. It said that it
Journal of Environmental Law Vol 13 No 2  Oxford University Press 2001
222 CASE LAW ANALYSIS

was so crowded that it was ‘bursting from all its seams’. Construction of the underground
shopping complex in question would only complicate the situation and that the present scheme
would further congest the area. It said that the public purpose, which is alleged to be served
by construction of the underground commercial complex, seemed totally illusory.
After discussing the reasons for Mahapalika to withdraw its appeal and cancel the building
plans in the park (paras 2–8) the Supreme Court dealt, in brief, with the contentions of the
parties submitted before the High Court:
9 Petitioners (now the respondents), in the writ petitions, submitted that the park was
not only of great historical significance but its maintenance was necessary from the
environmental point of view as mandated by law. Admittedly, the park is the only open
space in the Aminabad Market, which is an overcrowded commercial and residential
area of the city. Possession of the park was handed over to the appellant (M.I. Builders),
in violation of the provisions of law, to construct an underground shopping complex and
underground parking with the ostensible purpose of decongesting the area. It is not that
the encroachers would be removed from the area as the underground shops were not
allotted to any one of them. They would nevertheless remain at the places occupied by
them. Challenge to the action of Mahapalika in allowing construction was on these
grounds:
1 It was against the public purpose to construct an underground market in the garb
of decongesting the area of the encroachers thus destroying a park of historical
importance and environmental necessity. It would be in breach of Articles 21, 49
and 51-A(g) of the Constitution as the existing park, which is the only open space
in the busiest commercial area in the heart of the city of Lucknow would be destroyed
and the citizens, particularly the residents of the area, would be deprived of the
quality of life to which they are entitled under the law and the maintenance of the
ecology of the area.
2 It is in violation of the statutory provisions as contained in the UP Nagar Mahapalika
Adhiniyam 1959 (now called Uttar Pradesh Municipal Corporation Adhiniyam
1959—by Amending Act 12 of 1994) (‘the Act’), UP Regulation of Buildings Opera-
tions Act 1958 (‘the Building Act’), Uttar Pradesh Urban Planning and Development
Act 1973 (‘the Development Act’) and also Uttar Pradesh Parks, Playgrounds and
Open Spaces (Preservation and Regulation) Act 1975 (‘the Parks Act’).
3 No tenders were invited by the Mahapalika before entering into the agreement with
the builder. This was against established procedure and thus it acted arbitrarily in
the matter of disposing and dealing with its immovable property which was of
immense value. The agreement is wholly one-sided and gives undue advantage to
the builder at the cost of the Mahapalika.
4 The agreement between Mahapalika and the builder smacks of arbitrariness, is
unfair, and gives undue favour to the builder and this was done with malafide motives
or personal gain by the authorities of the Mahapalika particularly the Mukya Nagar
Adhikari (the Chief Executive Officer) and the Adhyaksh (the Mayor).
5 The resolution of the Mahapalika by which it agreed to enter into the agreement
with the builder was against the provisions of the Act which were mandatory.
6 The whole action of the Mahapalika was against the public interest. Lucknow Devel-
opment Authority (‘LDA’) which was constituted under the Development Act and
was responsible for development in the area which would mean construction of the
underground shopping complex and underground parking lot was side-lined and no
sanction was obtained from the Vice-Chairman in accordance with the Provisions of
the Development Act.
The Supreme Court then detailed the grounds of the appeal:
11 The impugned judgment has been challenged by the builder on the following grounds:
 PU B L I C T R U S T I N I N D I A N E N V I R O N ME N T A L C A S ES 223
(a) There was no disposal of the property by Mahapalika in favour of the builder and
therefore provisions of section 128 of the [Municipal] Act were inapplicable. Even
assuming it was so, provisions of sections 129 and 132 of the [Municipal] Act were
complied with.
(b) There was no arbitrariness or unreasonableness vitiating the agreement between
Mahapalika and the builder particularly in view of the express finding of the High
Court that there was no lack of bona fides and that it was not disputed that the
builder was competent to execute the job. This was having regard to special fea-
tures of the construction, and further, on account of the fact that no party came
forward at any time to execute the project. In such a situation, the omission to
invite tenders would not vitiate the agreement particularly when the proposal for
construction of the project by the builder was widely known.
(c) In view of its stand before the High Court and in the Special Leave Petition of the
builder and its own appeals filed in this Court it is not open to Mahapalika
to advance any contention or take a stand contrary to what had been taken
earlier.
(d) The High Court exceeded its jurisdiction as it did not apply correct parameters of
its power of judicial review as laid down by this Court in Tata Celluler v Union of
India (1994 6 SCC 651) and other cases and the High Court was wrong in going
into the question of expediency and wisdom of the proposed project . . .
The Supreme Court then discussed, at length, the provisions of applicable laws and regulations
(paras 12–25), the agreement of 4 November 1993 between the Mahapalika and the builder
(paras 26–32), and dealt with the arguments presented by the builder (paras 33–44). The
Supreme Court then moved on to discuss the arguments presented by the respondents in this
case [only relevant subparagraphs are cited].

45 Mr N.M. Ghatate appeared for the Corporators who filed writ petition in the High
Court and were present themselves at the meetings of the Mahapalika on 12 July
1993 and 21 October 1993; Mr G.L. Sanghi appeared for the Mahapalika; Mr Adarsh
Goel for the State of UP; Mr Arun Jaitley for the LDA; and Mr Dushyant Dave for
Amrit Puri, who had separately filed the writ petition. Their submissions can be
summarised as under:
4 Mahapalika had disposed of the land in favour of the builder in contravention of the
provisions relating to disposal of property under sections 128 and 129 of the [Muni-
cipal] Act. If the substance of the impugned agreement is looked into it is a transfer
in land by the Mahapalika to the builder.
5 Even section 128 of the [Municipal] Act was not applicable as the land was a
park which could not be disposed of by the Mahapalika. As a matter of fact
Mahapalika was the trustee of the park and the doctrine of public trust, which
was applicable in India as held by this Court in M.C. Mehta v Kamal Nath (known
as the Span case) (1997 1 SCC 388), was applicable to the park in question and,
therefore, could only manage the park and could not alienate it or convert it
into something different from the park. The park was held by the Mahapalika
on trust for the citizens of Lucknow.
In M.C. Mehta v Kamal Nath this court observed that public trust doctrine, as
discussed in the judgment, is a part of the law of the land. The Court gave
various directions, even cancelling the lease granted in favour of the Motel and
directing the Motel to pay compensation by way of cost for restitution of the
environment and ecology of the area. The judgment was cited to reaffirm the
argument for preservation of ecology, which is an important factor in preserving
the Jhandewala Park.
224 CASE LAW ANALYSIS

6 Section 114 of the [Municipal] Act provides for obligatory duties of Mahapalika
and one such obligatory function is to maintain public places, parks, and to plant
trees. This cannot now be done as the park has been dug and construction made
underground. Though the Park Act came into operation on 1 February 1995 and
the construction of the underground shopping complex had started in January
1995 after the interim order of this Court but since the construction was made
subject to the final order of this Court the provisions of the Park Act will have
to be considered while deciding the matter . . .
After dealing with various arguments presented by the respondents (paras 46–58), the
Supreme Court came to the conclusion that:
59 Jhandewala Park, the park in question, has been in existence for a great number of
years. It is situated in the heart of Aminabad, a bustling commercial-cum-residential
locality in the city of Lucknow. The park is of historical importance. Because of the
construction of an underground shopping complex and parking it may still have the
appearance of a park with grass grown and path laid but it has lost the ingredients
of a park in as much as no plantation can now can be grown. Trees cannot be planted
and while making the underground construction many trees had been cut down. Now
it is more like a terrace park. Qualitatively it may still be a park but it is certainly
a park of different nature. By construction of the underground shopping complex
irreversible changes have been made. It was submitted that the park was acquired
by the State Government in the year 1913 and was given to the Mahapalika for its
management. This has not been controverted. Under section 114 of the [Municipal]
Act it is the obligatory duty of the Mahapalika to maintain public places, parks, and
plant trees. By allowing underground construction Mahapalika has deprived itself of
its obligatory duties to maintain the park which cannot be permitted. But then one
of the obligatory functions of the Mahapalika under section 114 is also to construct
and maintain parking lots. To that extent, some area of the park could be used for
the purpose of constructing underground parking but that can only be done after a
proper study has been made of the locality, including density of the population living
in the area, the floating population, and other certain relevant considerations. This
study was never done. Mahapalika is the trustee for the proper management of the
park. When the true nature of the park, as it existed, is destroyed it would be
violative of the doctrine of public trust as expounded by this Court in the Span Resort
case (1997 1 SCC 388). Public trust doctrine is part of Indian Law. In Span Resort
the respondent constructed a motel located on the bank of [the] River Beas which
interfered with the natural flow of the river. This Court said that the issue presented
in that case illustrated the classic struggle between those members of the public who
would preserve our rivers, forests, parks and open lands in their pristine purity and
those charged with administrative responsibilities who, under the pressures of the
changing needs of an increasingly complex society, find it necessary to encroach to
some extent upon open lands hereto considered inviolate to change.
60 In the treatise Environmental Law and Policy: Nature, Law, and Society by Plater Abrams
Goldfarb (American Casebook series, 1992) under the chapter ‘Fundamental Environ-
mental Rights’ (Section I, ‘Modern Rediscovery of the Public Trust Doctrine’) it has been
noticed that ‘long ago there developed in the law of the Roman Empire a legal theory
known as the Doctrine of the public trust’. In America, public trust doctrine was applied
to public properties, such as shorelands and parks. As to how the doctrine works it was
stated: ‘The scattered evidence, taken together, suggests that the idea of a public trustee-
ship rests upon three related principles. First, that certain interests—like the air and the
sea—have such importance to the citizenry as a whole that it would be unwise to make
them the subject of private ownership. Second, that they partake so much of the bounty
 PU B L I C T R U S T I N I N D I A N E N V I R O N ME N T A L C A S ES 225
of nature, rather than of individual enterprise, that they should be made freely available
to the entire citizenry without regard to economic status. And, finally, that it is a principal
purpose of government to promote the interests of the general public rather than to
redistribute public goods from broad public uses to restricted private benefit . . . ’ With
reference to a decision in Illinois Central Railroad Company v Illinois [1892] 146 US 387, it
was stated that the Court articulated in that case the 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
scepticism upon any governmental conduct which is calculated either to reallocate the
resource to more restricted uses or to subject public uses to the self-interest of private
parties. This public trust doctrine, in our court, would appear as grown from Article 21
of the Constitution.
61 Thus by allowing construction of underground shopping complex in the park Mahapalika
has violated not only section 114 of the Act but also the public trust doctrine.
After deciding that the contract between Mahapalika and the builder was invalid and not
binding on Mahapalika (paras 62–5), the Supreme Court discussed the grounds of judicial
review (paras 66–81) [only relevant parts are cited]:
66 We may now examine some of the terms of the agreement dated 4 November 1993.
There are six recitals to the agreements which cannot be correlated to any discussion in
any of the meetings of the Mahapalika, the Executive Committee, or the High Power
Committee. Under Clause (2) of the agreement it is for the builder to make construction
at its own cost and then to realise the cost with profit not exceeding more than 10% of
the investment in respect of each shop. Nobody knows how much cost the builder is likely
to incur and how long it will continue to be in possession of the shopping complex. Full
freedom has been 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 and Mahapalika shall be
bound by these terms and conditions. The builder has also been given the right to sign
the agreement on behalf of the Mahapalika on the terms and conditions which the builder
may deem fit and proper. The builder is only required to give a copy of the agreement to
the Mahapalika after its execution and both the Mahapalika and the builder shall remain
bound by the terms of that agreement. Since there is no project report nobody knows
how many shops the builder would construct and of what sizes. Mahapalika is allowed to
charge Rs5,000 per shop for every second and subsequent transfer of shops by the builder
but what amount is to be charged for the first transfer or subsequent transfers is left to
the sole discretion of the builder. A bare glance at the terms of agreement shows not
only that the clauses of the agreement are unreasonable for the Mahapalika but they are
atrocious. No person of ordinary prudence shall even enter into such an agreement. A
trustee, which the Mahapalika is, has to be more cautious in dealing with its properties.
Valuable land in the heart of a commercial area has been handed on a platter to the
builder for it to exploit and to make profits. As a matter of fact, on examining the
terms of the agreement we find that Mahapalika has been completely ousted from the
underground shopping complex for an indefinite period. It has completely abdicated its
functions.
67 To repeat, the agreement is completely one-sided favouring the builder. The land which
is of immense value has been handed over to construct an underground shopping complex
in violation of the public trust doctrine and the master plan for the city of Lucknow.
Mahapalika has no right to step in even if there is any violation by the builder of the
terms of the agreement or otherwise. Mahapalika, though considered to be the owner of
the land, is completely ousted and divested of the land for a period which is not definite
and which depends wholly on the discretion of the builder . . .
226 CASE LAW ANALYSIS

73 The reason given for the construction of the underground shopping complex was that it
would remove the congestion in the area. A Report by the Local Commissioner says that
it would rather lead to more congestion. We think Mr Dave is right in his submission
that a decision to construct the underground shopping complex by M.I. Builders had
already been taken and that the whole process was gone into to confer undue benefit to
M.I. Builders and the issue of congestion was introduced to justify the action of the
Mahapalika. It is wholly illegal and smacks of arbitrariness, unreasonableness and
irrationality.
77 We find force in the submissions of the respondents that granting a licence to the
builder to construct the underground shopping complex and to lease out the shops
on behalf of the Mahapalika, was a dubious method adopted to subvert the provision
of section 128 which also applies in the case of lease and thus the transaction will
also be covered by the expression ‘otherwise dispose of any interest in the property’
. . . In such a situation, for the builder to contend that the transaction is not covered
by Section 128 and, therefore, section 129 will not apply, is certainly incredulous.
The provision of section 129 of the Act has, therefore, been flouted. The impugned
agreement dated 4 November 1993 is bad having been executed also in contravention
of the requirement of section 129 of the Act.
78 The facts and circumstances when examined point to only one conclusion that the pur-
pose of constructing the underground shopping complex was a mere pretext and the
dominant purpose was to favour M.I. Builders to earn huge profits. In depriving the
citizens of Lucknow of their amenity of an old historical park in a congested area on the
specious plea of decongesting the area, Mahapalika’s officers forgot their duty towards
citizens and acted in a most brazen manner.
80 Thus there are two distinct areas of challenge in the present case: (1) the agreement
is fraudulous since prime land has been given for a song by the Mahapalika. The
fact that the scheme is so lucrative could be seen from the fact that all shops less
5% were booked within six days of the advertisement appearing in December 1993.
Public interest and public exchequer have been sacrificed. Mahapalika is divested of
its control over the project though notionally not forever but the builder, on the other
hand, has control over the project for all times to come; and (2) construction is in
contravention of the provisions of law as contained in the Development Act. The
project has been entrusted to the builder in violation of the provisions of the Act.
The decision taken by the Mahapalika was not on proper consideration and was not
an informed objective decision. Judicial review is permissible if the impugned action
is against law or in violation of the prescribed procedure or is unreasonable, irrational
or malafide . . . The High Court held that the maintenance of the park, because of
its historical importance and environmental need, was in itself a public purpose and,
therefore, the construction of an underground market in the garb of decongesting the
area was wholly contrary and prejudicial to the public purpose. By allowing the
construction Mahapalika had deprived its residents and others of the quality of life
to which they were entitled under the Constitution and the Act. The agreement
smacks of arbitrariness, unfairness and favouritism. The agreement was opposed to
public policy. It was not in the public interest. The whole process of law was subverted
to benefit the builder. We agree with the findings and conclusions of the High Court.
The Supreme Court went on saying that:
83 [the] construction of shops will bring more congestion and with that the area will become
more polluted. Any commercial activity now in this unauthorised construction will put
additional burden on the locality. The primary concern of the Court is to eliminate the
negative impact that the underground shopping complex will have on environmental
 PU B L I C T R U S T I N I N D I A N E N V I R O N ME N T A L C A S ES 227
conditions in the area and the congestion that will aggravate on account of increased
traffic and people visiting the complex. There is no alternative to this except to dismantle
the whole structure and restore the park to its original condition as many trees have
been chopped down and it will take years for the trees now to be planted to grow. But a
beginning has to be made.
91 We direct as under:
1 Blocks 1, 2 and 4 of the underground shopping complex shall be dismantled and
demolished and restored to their original shape.
2 In Block 3, partition walls, and if necessary columns in the upper basement, shall be
removed and this upper basement be converted into a parking lot. Flooring to be
laid at the lower basement-level parking lot. A ramp shall be constructed adjacent
to Block 3 for access to upper and lower basement levels for the purpose of parking
vehicles. Further, to make Block 3 functional as a separate unit, walls shall be con-
structed between Blocks 2 and 3, and also Blocks 3 and 4.
3 Dismantling and demolishing of these structures in Blocks 1, 2 and 4 and putting
Block 3 into operation for parking shall be undertaken by the Mahapalika at its own
cost. Necessary services such as sanitation, electricity etc. in Block 3 shall be provided
by Mahapalika.
4 Mahapalika shall be responsible for maintaining the park and Block 3, for parking
purposes, in a proper and efficient manner.
5 M.I. Builders Pvt Ltd, the appellant, is divested of any right, title or interest in the
structure built by it under or over the park. It shall have no claim whatsoever against
Mahapalika or against any other person or authority.
6 Block 3 shall vest in Mahapalika free from all encumbrances. The licence of M.I.
Builders to enter into the park and the structure built therein is cancelled and
possession is restored to the Mahapalika with immediate effect. No obstruction or
hindrance shall be caused to the Mahapalika by anyone in discharge of its functions
as directed by this order.
7 Restoration of the park and operation of Block 3 for parking purposes shall be com-
pleted by Mahapalika within a period of 12 months from today and report filed in
the registry of this Court.
92 With the directions aforesaid, the appeals are dismissed with costs.

Analysis by Jona Razzaque, Department of Law, Queen Mary College, University

of London
Introduction
This case analysis discusses the development of public trust doctrine in India and
the recent application of the doctrine in a judicial review case. Public trust doctrine
serves two purposes: it mandates affirmative state action for effective management
of resources and empowers citizens to question ineffective management of natural
resources.1 It is a common law concept,2 defined and addressed by academics in the
1
Rose, ‘Joseph Sax and the Idea of the Public Trust’ (1998) 25 Ecology LQ 351.
2
This doctrine first appeared in Roman law and then developed in English and American law. For a short
history, see Rose, ‘The Comedy of the Commons: Custom, Commerce, and Inherently Public Property’ (1986)
53 U Chicago LR 711.
228 CASE LAW ANALYSIS

United States3 and the United Kingdom.4 According to Professor Joseph Sax,5 vari-
ous common 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, therefore, transfer public trust properties to a private party if the grant
would interfere with the public interest.6 The public trust concept has been widely
used and scrutinised in the United States,7 but its scope is still uncertain. Various
attempts have been made to apply this doctrine to protect navigable and non-
navigable waters,8 public lands9 and parks,10 and to apply it to both private and
public lands and ecological resources.11 The Supreme Court of California has
broadened the definition of public trust by including ecological and aesthetic consid-
erations.12 Although the public trust doctrine is not without its fair share of criti-
cism13 it is being increasingly related to sustainable development, the precautionary

3
For general discussion, see Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention’ (1970) 68 Mich LR 471; Dunning, ‘The Public Trust: A Fundamental Doctrine of American Prop-
erty Law’(1989) 19 Environmental Law 515; Gionfriddo, ‘Sealing Pandora’s Box: Judicial Doctrines Restricting
Public Trust Citizen Environmental Suits’ (1986) 13 BC Environmental Affairs LR 439; Scanlan, ‘The Evolution
of the Public Trust Doctrine and the Degradation of Trust Resources: Courts, Trustees and Political Power in
Wisconsin’ (2000) 27 Ecology LQ 135.
4
For the application in English Common law, see Stevens, ‘The Public Trust: A Sovereign’s Ancient Prerog-
ative Becomes the People’s Environmental Right’ (1980) 14 U California Davis LR 195; Wilkinson, ‘The Headwa-
ters of the Public Trust: Some Thoughts on the Source and Scope of the Traditional Doctrine’ (1989) 19
Environmental Law 425.
5
Sax, Defending the Environment: A Strategy For Citizen Action (1970). According to Sax, because certain natural
resources such as air and water are important to the citizens as a whole, private ownership of such resources
are unwise. Moreover, citizens should be able to enjoy the beauty of it regardless of their economic means. In
his opinion, the government should advance the general public interest instead of redistributing public resources
for private gain. He has applied the public trust doctrine to environmental problems: air, water, noise, conserva-
tion of natural areas, pesticides, radioactivity and environmental problems generally.
6
Rieser, ‘Ecological Preservation as a Public Property Right: An Emerging Doctrine in Search of a Theory’
(1991) 15 Harvard Environmental LR 393. See also Stevens, ‘The Public Trust: A Sovereign’s Ancient Prerogative
Become the People’s Environmental Right’ (1980) 14 U California Davis LR 195.
7
Examples of the cases can be found in Zwaag: ‘The Concept and Principles of Sustainable Development:
Rio Formulating’ Common Law Doctrines and Environmental Laws’ (1993) 13 Windsor Yearbook of Access to Justice
39 at 62–4.
8
Reed, ‘The Public Trust Doctrine: Is It Amphibious?’ (1986) 1 J Environmental Law and Litigation 107. For
non-navigable waters see Austin, ‘The Public Trust Misapplied: Phillips Petroleum v Mississippi and the need to
Rethink an Ancient Doctrine’ (1989) 16 Ecology LQ 967.
9
Wilkinson, ‘The Public Trust Doctrine in Public Land Law’ (1980) 14 U California Davis LR 269.
10
Egan, ‘Applying Public Trust Tests to Congressional Attempts to Close National Park Areas’ (1998) 25
Environmental Affairs 717.
11
Bader, ‘Antaeus and the Public Trust Doctrine: A New Approach to Substantive Environmental Protection
in the Common Law’ (1992) 19 BC Environmental Affairs LR 749. Sax, ‘The Constitution, Property Rights and
the Future of Water Law’ (1990) 61 U Colorado LR 257. Sax, ‘The Search for Environmental Rights’ (1990) 6
J Land Use and Environmental Law 93.
12
In National Audubon Society v Superior Court of Alpine County 658 P 2d 709 (Cal 1983): ‘The principal values
plaintiffs seek to protect, however, are recreational and ecological—the scenic views of the lake and its shore,
the purity of the air, and the use of the lake for nesting and feeding by birds . . . it is clear that protection of
these values is among the purpose of public trust.’ See also: Zwaag, op cit at 62–3.
13
It is argued that public trust doctrine is not useful with respect to public lands, does not give specific
guidance to courts, and that specific statutes are preferable. Jawetz, ‘The Public Trust Totem in Public Land
Law: Ineffective and Undesirable Judicial Intervention’ (1982) 10 Ecology LQ 455. Huffman argues that public
trust doctrine affects private property rights and is used as an effort to evade just compensation. Huffman, ‘A
Fish out of Water: The Public Trust Doctrine in a Constitutional Democracy’ (1989) 19 Environmental Law 527.
 PU B L I C T R U S T I N I N D I A N E N V I R O N ME N T A L C A S ES 229
principle and bio-diversity protection.14 According to Redgwell,15 the doctrine ‘com-
bines the guarantee of public access to public trust resources with a requirement of
public accountability in respect of decision-making regarding such resources’.
Moreover, not only can it be used to protect the public from poor application of plan-
ning law or environmental impact assessment,16 it also has an intergenerational
dimension.17

Application of the Doctrine in India

The right to life under Article 21 of the Indian Constitution has been extended
to include the right to a healthy environment and the right to livelihood.18 The
third aspect of the right to life 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.19 Accepting public
trust doctrine as part of common law, the Indian Courts have applied this expli-
citly in three recent cases, the first one in 199720 and two cases in 1999,21 includ-
ing the case under consideration.
The doctrine is first mentioned in M.C. Mehta v Kamal Nath and Others22 where
14
See Rieser, op cit, n 6. See also: Hunter, ‘An Ecological Perspective on Property: A Call for Judicial Protec-
tion of the Public’s Interest in Environmentally Critical Resources’ (1988) 12 Harvard Environmental LR 311. To
some, however, these concepts and principles of international law if properly established, might mean that the
public trust doctrine would be marginalised. For discussion on this issue: see Zwaag, op cit, n 8.
15
Redgwell, Intergenerational Trusts and Environmental Protection (Oxford: Oxford UP, 1999) at 68.
16
This doctrine, according to Redgwell, can certainly be used where there is a lack of effective planning law
or other necessary environmental controls. She added that planning law may sometime favour development and
‘subsequent alterations of land use may give rise to the requirement to pay compensation’. Both these problems
could be solved by using public trust doctrine. Redgwell, ibid at 60–1. In addition, Meyers stated that the public
trust doctrine may ‘provide the means for increasing the effectiveness of environmental impact assessment
laws’. Meyers, ‘Dividing Common Law Standards for Environmental Protection: Application of the Public Trust
Doctrine in the Context of Reforming NEPA and the Commonwealth Environment Protection Act’ (1994) 11
Environmental and Planning LJ 289 at 290.
17
The intergenerational dimension deters the present generation to decrease the environmental quality of
the natural resources and prevents the future generation ‘from altering that use no matter how pressing the
public need’. Redgwell, ibid at 63.
18
The State has a duty as a trustee, under Article 48-A, to protect and improve the environment and safe-
guard the forests and wildlife of the country. While applying Article 21 (right to life), the state is obliged to
take account of Article 48-A, a Directive Principle of State Policy. The State’s trusteeship duties has been
expanded to include a right to a healthy environment: R.L. Kendra v State of Uttar Pradesh (AIR 1985 SC 652);
T. Damodar Rao v Municipal Corp of Hyderabad (AIR 1987 AP 171); Koolwal v Rajastan (AIR 1988 Raj 2); Kinkri
Devi v State of Himachal Pradesh (AIR 1988 HP) Charan Lal Sahu v Union of India (AIR 1990 SC 1480); Subash
Kumar v Bihar (AIR 1991 SC 420). Right to life also includes right to livelihood: Olga Tellis v Bombay Municipal
Corporation AIR 1986 SC 180; Delhi Development Horticulture Employees’ Union v Delhi Administration, Delhi and Others
(1993) 4 Law Reports of the Commonwealth 182.
19
The Indian Courts adopted similar innovative approach when they established the polluter pays principle
as a part of their national legal system. In Indian Council for Enviro-Legal Action v Union of India (1996 3 SCC) at
247, the Supreme Court applied the polluter pays principle referring to the Treaty of Rome Article 130-r(2).
It appears from the judgment, that the Court applied the principle not on the basis of its customary status, but
directly applying the treaty provision into their national legal system. Anderson, ‘International Environmental
Law in Indian Courts’ (1998) 7 RECIEL 1:21 at 21 and 27.
20
M.C. Mehta v Kamal Nath and Others (1997 1 SCC 388).
21
Th. Majra Singh v Indian Oil Corporation (AIR 1999 J&K 81).
22
(1997 1 SCC 388). There does not appear to be any mention of the doctrine before this case, and the
doctrine has been discussed at length in this decision. This present article will put much emphasis on Kamal
Nath case as the submission of the respondent in M.I Builders case argued strongly in favour of the application
230 CASE LAW ANALYSIS

the Indian Supreme Court applied public trust with regard to the protection and
preservation of natural resources. In this case, the State Government granted
lease of riparian forestland to a private company for commercial purpose. The
purpose of the lease was to build a motel at the bank of the River Beas. A report
published in a national newspaper alleged that the motel management interfered
with the natural flow of the river in order to divert its course and to save the
motel from future floods. The Supreme Court initiated suo motu action23 based on
the newspaper item24 because the facts disclosed, if true, would be a serious act
of environmental degradation.
The Supreme Court in M.C. Mehta stated that the ‘Public Trust Doctrine’ prim-
arily rests on the principle that certain resources like air, sea, waters and forests
have such great importance to the people as a whole that it would be unjustified
to make them a subject of private ownership.25 The Court opined:
Our legal system—based on English Common Law—includes the public trust doctrine as part
of its jurisprudence. The state is the trustee of all natural resources which are in nature meant
for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters,
airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for public use cannot be converted into
private ownership (para 34) (emphasis added).
Therefore, the Supreme Court recognised the doctrine as an integral part of the
Indian legal system and accepted the scope of the public trust domain suggested
by Professor Sax:26
. . . it seems that the delicate mixture of procedural and substantive protections which the
court have applied in conventional public trust cases would be equally appropriate in contro-
versies involving air pollution, the dissemination of pesticides, the location of rights of ways
for utilities, and strip mining of wetland filling on private lands in a state where governmental
permits are required (para 31).
The Supreme Court was faced with the ‘classic struggle between those members

of M.C. Mehta case (para 45). Moreover, the decision of M.I. Builders case largely followed this decision to apply
the public trust doctrine (para 59).
23
The Constitution of India allows the Supreme Court and the High Court to initiate action on its own
without any formal petition. These are commonly known as suo motu action. In order to provide ‘complete justice’
under Article 142 of the Indian Constitution, the Supreme Court can take account of letter, petition or newspa-
per items and move the matter as a public interest litigation. The High Court has similar power under Article
226 of the Constitution.
24
The Indian court initiated suo motu action in several occasions based on letters from concerned public [V.
Subramanian v Union of India 1990 (Supp SCC 77); State of Himachal Pradesh v Umed Ram Sharma (AIR 1986 SC
847); Prof. Sergio Carvalho v The Staff of Goa (1989 1 GLT 276); Social Work and Research Centre, Banswara v State
of Rajasthan AIR 1987 Raj 26; Banawasi Sewa Ashram v State of Uttar Pradesh (AIR 1987 SC 374); Sudip Mazumdar
v State of Madhya Pradesh 1994 (2) SCALE 25; Chhetriya Pardhusan Mukti Sangarsh Samiti v State of UP (AIR 1990
SC 2060); R.L. and E. Kendra v State of Uttar Pradesh (AIR 1985 SC 652)]; memorandum [Molly Madhavan v State
of Kerala (OP 6721 of 1992, Kerala)] and newspaper article [Bibhab Kumar Talukdar v State of Assam (CR 648 of
1993); Consumer Action Group v Union of India (WP 22598 1993, Madras); Rajiv Singh v State of Bihar (AIR 1992
Pat 86)] to move a petition with environmental cause.
25
In order to come to this decision, the Supreme Court relied on several US cases: Illinois Central Railroad Co
v People of the State of Illinois 146 US 387: 36 L Ed 1018 (1892); Gould v Greylock Reservation Commission, 350 Mass
410 (1966); Sacco v Development of Public Works 244 NE 2d 577; National Audubon Society v Superior Court of Alpine
County (Mono Lake case), 33 Cal 3d 419; Philip Petroleum Co v Mississippi 108 SCt 791 (1988). The approach
adopted in these cases was to hold the elected officials accountable for policies affecting public trust land.
26
The Court quoted Sax, op cit, n 3.
 PU B L I C T R U S T I N I N D I A N E N V I R O N ME N T A L C A S ES 231
of the public who would preserve our rivers, forests, lakes and open lands in their
pristine purity and those charged with administrative responsibilities, who . . .
find it necessary to encroach to some extent upon open land . . . ’ It stated that
the public bodies should apply public trust doctrine when there is no legislation
to protect the natural resources. In their view:
. . . the executive acting under the doctrine of public trust cannot abdicate the natural
resources and convert them into private ownership, or for commercial use. The aesthetic use
and the pristine glory of the natural resources, the environment and the ecosystems of our
country cannot be permitted to be eroded for private, commercial or any other use unless the
courts find it necessary, in good faith, for the public good and in public interest to encroach
upon the said resources.
Applying the ‘polluter pays principle’,27 the Court directed the developer to pay
compensation by way of cost for the restitution of the environment and ecology of
the area.28 It had no difficulty in holding that the Himachal Pradesh government
committed a patent breach of public trust by leasing out the ecologically fragile
land to be developed.
Chronologically the second case on this subject is Th. Majra Singh v Indian Oil
Corporation29 where the petitioner objected to the location of a plant for filling
cylinders with liquified 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 atten-
tion. Though the case was decided on the basis of the precautionary principle, it
confirmed that the public trust doctrine has become part of Indian legal thought
processes. In the High Court’s opinion, the doctrine 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’.30 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’.

M.I. Builders v Radhey Shyam Sahu

The main case in this case analysis, M.I. Builders, is the third case in which the

27
According to the Indian Supreme Court in Vellore Citizens’ Welfare Forum v Union of India (1996 5 SCC 647),
the Polluter Pays Principle is part of customary international law. The Supreme Court added that under the
principle, ‘ . . . 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 degradation (paras 11–13) See: Shanmuganathan
and Warren, ‘Status of Sustainable Development as a Principle of National and International Law: The Indian
Approach’ (1997) 9 JEL 2 at 387–402. Recent cases such as M.C. Mehta (Tanneries) v Union of India (1997 2
SCC 411) also applied the polluter pays principle as part of national legal system. For a discussion of interna-
tionally recognised environmental principles in Indian courts, see: Anderson, ‘International Environmental Law
in Indian Courts’ (1998) 7 RECIEL 1:21 at 27.
28
M.C. Mehta v Kamal Nath (AIR 2000 SC 1997): the Supreme Court stated that the person guilty of causing
pollution has to pay damages (compensation) for restoration of the environment and ecology. He has also to
pay damages to those who have suffered on account of the act of the offender. Moreover, that guilty person can
also be held liable to pay exemplary damages so that it may act a deterrent for others not to cause pollution
in any manner.
29
(AIR 1999 J&K 81).
30
Para 6 of the judgment.
232 CASE LAW ANALYSIS

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 in a park of historical
importance. The construction of the 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 realise the cost with profit not exceeding more than
10% of the investment in respect of each shop. Under the terms of the agreement,
full 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 give a copy to the Mahapalika after its execution. Both the
builder and the Mahapalika were to be bound by the terms of that agreement.
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 the 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 protection to the users of the park. The High
Court took account of the facts that Mahapalika never denied the historical
importance of the park and that the preservation or maintenance of the park was
necessary from an 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 condi-
tions 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.
On appeal by the builders,31 the Supreme Court held that the terms of agree-
ment 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 garb of decongesting the area was wholly contrary and prejudicial to the
public purpose. By allowing the construction, Mahapalika had deprived its resid-
ents, and also others, of the quality of life to which they were entitled to under
the Constitution and under the Municipal Act. The agreement was opposed to
public policy and not in the public interest. The commercial shopping complex
was allowed by Mahapalika to be built upon a public park in clear defiance of the
Uttar Pradesh Municipal Corporation Adhinyam 1959.32 In addition, the Mahapa-
31
The Mahapalika also appealed, but this was subsequently withdrawn by an order dated 6 February 1997.
This action of the Mahapalika was subject of much criticism by the appellant as to how a duly sanctioned plan
could be revoked without a notice to the appellant (paras 2 and 3 of the judgment).
32
Under section 114 of the UP Municipal Corporation Adhinyam 1959, it is an obligatory duty of the Mah-
apalika to maintain public places, parks and plant trees. Therefore, by allowing underground construction, ‘ . . .
 PU B L I C T R U S T I N I N D I A N E N V I R O N ME N T A L C A S ES 233
lika violated the public trust doctrine and the Court ordered the demolition of
the unauthorised shopping complex.

The Significance of the M.I. Builders Decision

The Supreme Court, in M.I Builders, reconfirmed that the public trust doctrine is
established in the Indian legal system33 and asserted that public authorities
should act as trustees of natural resources. However, it is clear from all these
cases that the Court did not confer any property right on the public under the
trust. While applying the public trust doctrine, the Court in all these cases, took
account of either the polluter pays principle or the precautionary principle or
both. In the Kamal Nath case, the Supreme Court and in the Th. Majra Singh case,
the High Court applied the public trust doctrine along with other principles such
as the precautionary principle and polluter pays principle.34 Moreover, in Kamal
Nath, the Supreme Court directed, inter alia, that the lease be quashed and the
full cost of restoration of the land to its original natural condition be paid by the
Motel. The Court also ordered the Motel to remove all construction on the
riverbed and the banks of the River Beas. However, in the Th. Majra Singh, the
High Court found that the Indian Oil Corporation (IOC) had taken all the pre-
cautions and followed all the safeguards required by law. Giving the ‘go ahead’
to the installation of the LRG plant located in the vicinity of a populated village,
the Court ordered the IOC to take ‘due precautions, so that pollution is not
caused to the environment’ and to plant ‘fast growing trees like poplar euca-
lyptus’. In the M.I. Builders case, the Supreme Court ordered Mahapalika to
demolish the unauthorised shopping complex and to restore the park to its ori-
ginal beauty. It is clear that in these three cases, the Court adopted a ‘balanced
development’ approach.
It is interesting to note that in the Kamal Nath case the Supreme Court held
that even if there is a separate and specific law to deal with the issue before the
Court, it may still apply public trust doctrine. If there is no suitable legislation
to preserve the natural resources, the public authorities should take advantage
of this doctrine to protect the public status of the land. In M.I. Builders, however,
the Supreme Court applied public trust doctrine in addition to the fact that there
was a breach of municipal law. Secondly, the Supreme Court in M.I. Builders
stated that public trust doctrine has ‘grown’ from Article 21 of the Constitution.
By attaching this doctrine to the fundamental right to life, the Supreme Court
appears to be willing to diversify the application of this doctrine. It seems likely

Mahapalika has deprived itself of its obligatory duties to maintain the park which cannot be permitted’ (para
59).
33
Like the Kamal Nath case, the Supreme Court cited Illinois Central Railroad Co v People of the State of Illinois
146 US 387. In Illinois the Court stated that ‘ . . . When a state holds a resource which is available for the free
use of general public, a Court will look with considerable skepticism upon any governmental conduct which is
calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest
of private parties.’ The Supreme Court in M.I Builders case also discussed, at length, as to how the public trust
doctrine works and mentioned Goldfarb, Environmental Law and Policy: Nature, Law and Society (American Case-
book Series, 1992).
34
Both the Courts applied the Vellore Citizens’ Welfare Forum v Union of India (1996 5 SCC 647) and followed
the exact words of that judgment (paras 11–13).
 234 CASE LAW ANALYSIS

that the Court would give precedence to right to life when the public trust doc-
trine, as a part of right to a safe and healthy environment, is challenged by any
other fundamental rights.35 Thirdly, by ordering the Mahapalika to restore the
park to its original beauty, the Supreme Court redefined the duties of a trustee
to its beneficiaries, the users of the park. In effect, it aligned the local authorities’
duty as a trustee with the concept of intra-generational and inter-generational
equity. Fourthly, the case came before the Court as a judicial review case36 and
not as a challenge against the decision of the government from a beneficiary. As
Redgwell suggests, this doctrine can act ‘ . . . as a check upon administrative
action by providing a mechanism for judicial review or resource allocation
decisions’.37 Therefore, public trust doctrine could serve as ‘an additional tool for
environmental protection particularly where administrative discretion has been
abused’.38

35
For example, in a recent case [Burrabazar Fire Works Dealers Association v The Commissioner of Police (AIR 1998
Calcutta 121)], the Calcutta High Court has given priority to the right to a healthy and safe environment.
While balancing two competing fundamental rights, i.e. right to carry on trade and business [Article 19(1)(g)]
and right to life [Article 21], the Court held that there is no inherent right in a citizen to manufacture the fire
works which creates sound beyond permissible limits. Article 19(1)(g) does not guarantee the fundamental
right to carry on trade or business which creates pollution or which takes away the communities safety, health
and peace.
36
The Supreme Court brought a suo motu action in Kamal Nath under Article 32. The M.I. Builders and Th.
Majra Singh cases were brought under 226 as judicial review, and Kamal Nath was referred to in both cases.
37
Redgwell, op cit, n 15 at 178.
38
Ibid at 179.

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