environmental law

AMITY LAW SCHOOL NAME- AYUSH SINGLA COURSE- BCOM LLB(H) ENROLLMENT NO- A3221615042 TOPIC-DOCTRINE OF PUBLIC TRUST SUBMITTED TO-MS SHREYA SARKAR ACKNOWLEDGMENT I have taken efforts in this project. However, it would not have been possible without the kind support & help of many individuals. I would like to extend my sincere thanks to all of them. I am highly indebted to Amity law School for their guidance & constant supervision as well as for providing necessary information regarding the project & also for their support in completing the project. I would like to express my gratitude towards my ENVIRONMENTAL LAW teacher for his kind co-operation & encouragement which helped me in completion of this project. My special thanks & appreciations also go to all my colleagues in developing the project & people who have willingly helped me out with their abilities. Their gratitude is highly appreciated. Doctrine Of Public Trust INTRODUCTION The doctrine of public trust has evolved over the years to emerge as one of the core principles for the judiciary to substantiate the legitimacy of governmental action that interferes with the use by the public of natural resources. The incorporation of this doctrine into our legal system has resulted in the imposition of a much required check upon governmental authorities who seek to divest State control over such natural resources in favor of private parties. Though the origin of the doctrine can be traced to ancient times and it is of considerable vintage in the United States, its application in the Indian legal system is a modern development. The public trust doctrine rests on the principle that certain resources like air, water, sea and the forests have such a great importance to the people as a whole they it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature the 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 public rather than to permit their use for private ownership and commercial purposes. The doctrine puts and implicit embargo on ch right of the state to transfer public properties to private party if such transfer affects public interest, mandates affirmative state action for effective management of thereof. The heart of public trust doctrine is that it imposes limits and obligations upon the government agencies and their administrators on behalf of all the people and especially future generations For example- renewable and non renewable resources, associated uses ecological balance or objects in which the public has a special interest are held subject to the duty of the state not to impair such resources uses or values even if pvt interest are involved. The same obligations apply to managers of forest monuments parks the public domain and other public assets. The public trust doctrine is a tool for exerting long established public rights over short term public rights and private gain. Today every person exercising his or her right to use the air water or land and associated natural ecosystems has the obligation to secure for the rest of us the right bot live or otherwise use the same resource or property for the long term and enjoyment by future generations. To say it another way a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the peoples right and the peoples long term inters Is the property or resource including down slope lands water and resources. The doctrine of public trust though in insistence from roman times was enunciated in its modern form by US courts and in present form it was incorporated by SUPREME COURT OF INDIA. Scope and History of Doctrine of Public Trust The history of the doctrine is traced to the Roman emperor, Justinian. In Book II of his Institutes, Emperor Justinian proclaims: By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore. The public trust doctrine “is based on the notion that the public holds inviolable rights in certain lands and resources, and that regardless of title ownership”, and that “the state retains certain rights in such lands and resources in trust for the public.”This conception of public rights has two ancient bases. “First, under Roman law the air, running water, the sea, and consequently the sea shore' were the property of no man but rather were common to all.” “Second, early English common law provided that title to tidelands had two components”: “the King's right Justus privative, which could be alienated, and Theseus publicists of navigation and fishing, which were held by the King in inalienable trust for the public”. Various Public properties; including rivers, the seashore, and the air, are held by the government in trusteeship for the uninterrupted use of the public. The Sovereign could not make clandestine transfer of public trust properties which the public had a right to enjoy to any private parties if such transfer when effected could interfere with the interest of the public at large. Concerted efforts have been adopted to incorporate this doctrine to protect an array of public properties like non traversable waters, public land, and sand parks and to relate it to both public and private lands. The Supreme Court of California in its celebrated decision in Illinois Central R.R. Co. v Illinois has broadened the definition of public trust by including ecological and aesthetic considerations. It would be incorrect to say that public trusts' doctrine is not without its fair share of disapproval. However despite the staunch criticism it is being increasingly related to sustainable development, the precautionary principle and boo-diversity protection and a host of other new environmental law principles[5]. The doctrine links the right of public access to public trusts with a precondition of accountability while making decisive decisions on such resources. Additionally, not only can the doctrine be put to use for the protection of public from improper application of planning law but also faulty environmental impact assessment. The doctrine of Public Trust in the Indian Legal system The watershed as far as the doctrine of public trust in India came about after the decision of the Supreme Court in the M.C Meta v. Kama NatH case. 1.2.1 M.C Meta v. Kama Nat Justice Kurdish Sing while delivering the judgment relied extensively on the doctrine of public trust. The case dealt with certain forest land which was given on lease to the Motel by the state government situated at the bank of River Beach. The area which was ecologically fragile and full of scenic beauty should not have been permitted to be converted into private ownership and for commercial gains. The Judge touched up the history of the doctrine of public trust. He pointed out that the ancient Roman Empire legal theory came about on the idea that certain common properties such as rivers, seashore, forests and air were held by the government in trusteeship for the free and unimpeded use of the general public. The contemporary concern about the environment bears a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (Res Nullify) or by everyone in common. Under the English law however the sovereign could own these resources but the ownership was limited in nature and the crown could not grant these properties to private owners if the effect was to interfere with the public interest in navigation or fishing. The Supreme Court pointed out that our legal system is based on the English common law which in turn includes the doctrine of public trust intrinsic to its jurisprudence. The State is the trustee of all natural resources which are by nature meant for the use and enjoyment of the public. Public at large is the beneficiary of the seashore, running waters, airs forests and ecologically fragile lands they have the right to access and enjoyment of such resources. The state is the trustee to such public resources and consequently it is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. The court also pointed out that if there is a law made by the Parliament or the State legislature the courts can serve as an instrument of determining the legislative intent in the exercise of its powers of judicial review under the Constitution. The court directed and ordered that the public trust doctrine is a part of the law of the land and that the prior approval granted to the government to lease the forest land for the creation of the motel is quashed and that the government of Malachi Pradesh shall take over the areas and restore it to its original natural conditions. Significantly the court also ordered that the motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The court also asked the motel to show cause as to why pollution fine in addition be not imposed on the motel. The second case to deal with on this subject is Th. Marja Sing v Indian Oil Corporation where the petitioner objected to the setting of a plant for filling LPG cylinders. The court reconfirmed that the public trust doctrine 'has grown from article 21 of the constitution and has become part of the Indian legal thought process for quite a long time.' M.I Builders v. Rad hey Sham Shu The third case and perhaps one of the decisive case to deal with in this regard is, M.I. Builders v Rad hey Sham Shu, where the Supreme Court has applied the public trust doctrine. The appeal was directed against the judgment of a Division Bench of the High Court of Judicature at Allahabad. By a common judgment in three writ petitions, High Court speaking through Shoshana Dixie, J. held that the decision of the Lucknow Agar Mahalia ('Mahalia' for short), also now called Agar NigAmiga or Corporation, permitting M.I. Builders Pvt. Ltd. (the appellant herein) to construct underground shopping complex in the Handel Park situated, Lucknow, was illegal, arbitrary and unconstitutional. Writ of mandamus was issued to the Mahalia to restore back the park in its original position within a period of three months from the date of the judgment and till that was done, to take adequate safety measures and to provide necessary safeguard and protection to the public, users of the park. High Court had noticed that the fact that the park was of historical importance was not denied by the Mahalia and also the fact that perseverance or maintenance of the park was necessary from the environmental angle and that the only reason advanced by the Mahalia for construction of the underground commercial complex was to ease the congestion in area. On taking notice of the ground situations the court said that the public purpose, which is alleged to be served by construction of the underground commercial complex, seemed totally illusory. On Appeal the court held that the facts and circumstances when examined point to only one conclusion that the purpose of constructing the underground shopping complex was a mere pretext and the dominant purpose was to favor the M.I. Builders to earn huge profits. In depriving the citizens of Lucknow of their amenity of an old historical park in the congested area on the spacious plea of decongestant the area Mahalia and its officers forgot their duty towards the citizens and acted in a most brazen manner. By allowing the construction Mahalia had deprived its residents as also others of the quality of life to which they were entitled to under the Constitution and the Act. The agreement smacks of arbitrariness, unfairness and favoritism. The agreement was opposed to public policy. It was not in public interest. Whole process of law was subverted to benefit the builder. DOCTRINE OF PUBLIC TRUST IN VARIOUS STATES IN INDIA Kerala In Ker ala Appalachia Panchito has issued orders refusing permission to extract ground water due to environmental problems in the nearby areas. Following the principles of Public Trust Doctrine court has upheld the steps taken by the Panchayat. The State and its instrumentalities should act as trustees of this great wealth. State has got a duty to protect ground water against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Art 21 of the Constitution. Coca Cola Company has no right to extract much of national wealth and the extraction of ground water is illegal, the Court held. Ker ala State Government has framed legislation for protecting the fragile forest land following the said principle of public trust doctrine. Ker ala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2002 was framed following the above principles. BIBLIOGRAPHY