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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4941  OF 2013 (Arising out of SLP(C) No. 18837 of 2006)

Association for Environment Protection ....Appellant

versus

State of Kerala and others ....Respondents

J U D G M E N T

G.S. SINGHVI, J.

1. Leave granted.

2. Since time immemorial, people across the world have always made efforts  

to  preserve  and protect  the  natural  resources  like  air,  water,  plants,  flora  and  

fauna.  Ancient scriptures of different countries are full of stories of man’s zeal to  

protect the environment and ecology.   Our sages and saints always preached and  

also taught the people to worship earth, sky, rivers, sea, plants, trees and every  

form of life. Majority of people still consider it as their sacred duty to protect the  

plants, trees, rivers, wells, etc., because it is believed that they belong to all living  

creatures.  

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3. The ancient Roman Empire developed a legal theory known as the “Doc-

trine of the Public Trust”. It was founded on the premise that certain common  

properties such as air, sea, water and forests are of immense importance to the  

people in general and they must be held by the Government as a trustee for the  

free and unimpeded use by the general public and it would be wholly unjustified  

to make them a subject of private ownership. The doctrine enjoins upon the Gov-

ernment to protect the resources for the enjoyment of the general public rather  

than to permit their use for private ownership or commercial exploitation to sat-

isfy the greed of few.  

4. Although, the Constitution of India, which was enforced on 26.1.1950 did  

not contain any express provision for protection of environment and ecology, the  

people continued to treat it as their social duty to respect the nature, natural re-

sources and protect environment and ecology. After 26 years, Article 48-A was  

inserted in Part IV of the Constitution and the State was burdened with the re-

sponsibility of making an endeavour to protect and improve the environment and  

to safeguard the forest and wildlife of the country.   By the same amendment,  

Fundamental Duties of the citizens were enumerated in the form of Article 51-A  

(Part-IV A).  These include the duty to protect and improve the natural environ-

ment including forests, lakes, rivers and wildlife and to have compassion for liv-

ing creatures [Article 51-A(g)].

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5. The Courts in different jurisdictions have, time and again, invoked the pub-

lic trust doctrine for giving judicial protection to environment, ecology and natu-

ral resources.  This Court also recognized the importance of the public trust doc-

trine and applied the same in several cases for protecting natural resources which  

have been treated as public properties and are held by the Government as trustee  

of the people.  The judgment in M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 is  

an important milestone in the development of new jurisprudence by the Courts in  

this country for protection of environment.  In that judgment, the Court   consid-

ered the question whether a private company running tourists resort in  Kullu-

Manali valley could block the flow of Beas river and create a new channel to di-

vert the river to at least one kilometer down stream.  After adverting to the theo-

retical and philosophical basis of the public trust doctrine and judgments in Illi-

nois Central Railroad Co. v. People of the State of Illinois, 146 US 387; Gould v.  

Greylock Reservation Commission 350 Mass 410 (1966); Sacco v. Development  

of Public Works, 532 Mass 670; Robbins v. Deptt. of Public Works 244 NE 2d  

577 and National Audubon Society v. Superior Court of Alpine County 33 Cal 3d  

419, this Court observed:

“Our legal  system — based on English  common law — in- cludes the public trust doctrine as part of its jurisprudence. The  State is the trustee of all natural resources which are by nature  meant for public use and enjoyment. Public at large is the bene- ficiary of the sea-shore, running waters, airs, forests and ecolo- gically fragile lands. The State as a trustee is under a legal duty  to protect the natural resources. These resources meant for pub- lic use cannot be converted into private ownership.

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We are fully aware that the issues presented in this case illus- trate 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 re- sponsibilities who, under the pressures of the changing needs of  an increasingly complex society, find it necessary to encroach  to some extent upon open lands heretofore considered inviolate  to change. The resolution of this conflict in any given case is  for the legislature and not the courts. If there is a law made by  Parliament or the State Legislatures the courts can serve as an  instrument of determining legislative intent in the exercise of its  powers of judicial review under the Constitution. But in the ab- sence of any legislation, the executive acting under the doctrine  of public trust cannot abdicate the natural resources and convert  them into private ownership, or for commercial use. The aes- thetic use and the pristine glory of the natural resources, the en- vironment and the ecosystems of our country cannot be permit- ted 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.”

6. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464, the  

Court applied public trust  doctrine for upholding the order of Allahabad High  

Court which had quashed the decision of Lucknow Nagar Mahapalika permitting  

appellant – M.I. Builders Pvt. Ltd. to construct an underground shopping complex  

in Jhandewala Park, Aminabad Market, Lucknow, and directed demolition of the  

construction made on the park land.  The High Court had noted that Lucknow Na-

gar Mahapalika had entered into an agreement with the appellant for construction  

of shopping complex and given it full freedom to lease out the shops and also to  

sign agreement on its behalf and held that this was impermissible.  On appeal by  

the builders, this Court held that the terms of agreement were unreasonable, unfair  

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and atrocious.  The Court then invoked the public trust doctrine and held that be-

ing a trustee of the park on behalf of the public, the Nagar Mahapalika could not  

have transferred the same to the private builder and thereby deprived the residents  

of the area of the quality of life to which they were entitled under the Constitution  

and Municipal Laws.   

7. In Intellectuals Forum, Tirupathi v. State of A.P. (2006) 3 SCC 549, this  

Court again invoked the public trust doctrine in a matter involving the challenge  

to the systematic destruction of percolation, irrigation and drinking water tanks in  

Tirupati town, referred to some judicial precedents including M.C. Mehta v. Ka-

mal  Nath  (supra),  M.I.  Builders  Pvt.  Ltd.  (supra),  National  Audubon  Society  

(supra), and observed:

“This is an articulation of the doctrine from the angle of the affirma- tive duties of the State with regard to public trust. Formulated from a  negatory angle, the doctrine does not exactly prohibit the alienation of  the property held as a public trust. However, when the State holds a  resource that is freely available for the use of the public, it provides  for a high degree of judicial scrutiny on any action of the Govern- ment, no matter how consistent with the existing legislations, that at- tempts to restrict such free use. To properly scrutinise such actions of  the Government, the courts must make a distinction between the Gov- ernment’s general obligation to act for the public benefit, and the spe- cial, more demanding obligation which it may have as a trustee of cer- tain public resources.....”

8. In Fomento Resorts and Hotels Ltd. v. Minguel Martins (2009) 3 SCC 571,  

this Court was called upon to consider whether the appellant was entitled to block  

passage to the beach by erecting fence in the garb of protecting its property. After  

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noticing the judgments to which reference has been made hereinabove, the Court  

held:   

“The public trust 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. This doctrine  puts an implicit embargo on the right of the State to transfer public  properties to private party if such transfer affects public interest, man- dates affirmative State action for effective management of natural re- sources and empowers the citizens  to question ineffective manage- ment thereof.

The heart of the public trust doctrine is that it imposes limits and ob- ligations upon government agencies and their administrators on behalf  of all the people and especially future generations. For example, re- newable and non-renewable resources, associated uses, ecological val- ues or objects in which the public has a special interest (i.e. public  lands, waters, etc.) are held subject to the duty of the State not to im- pair such resources, uses or values, even if  private interests are in- volved.  The same obligations  apply to  managers of  forests,  monu- ments,  parks,  the  public  domain and other  public  assets.  Professor  Joseph L. Sax in his classic article, “The Public Trust Doctrine in Nat- ural Resources Law: Effective Judicial Intervention” (1970), indicates  that the public trust doctrine, of all concepts known to law, constitutes  the best practical and philosophical premise and legal tool for protect- ing public rights and for protecting and managing resources, ecolo- gical values or objects held in trust.

The public trust doctrine is a tool for exerting long-established public  rights over short-term public rights and private gain. Today every per- son exercising his or her right to use the air, water, or land and associ- ated natural ecosystems has the obligation to secure for the rest of us  the right to live or otherwise use that 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 people's  rights and the people's long-term interest in that property or resource,  including down slope lands, waters and resources.

xxxx xxxx xxxx

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We reiterate  that  natural  resources  including forests,  water  bodies,  rivers, seashores, etc. are held by the State as a trustee on behalf of the  people and especially the future generations.  These constitute com- mon properties and people are entitled to uninterrupted use thereof.  The State cannot transfer public trust properties to a private party, if  such a transfer interferes with the right of the public and the court can  invoke the public trust doctrine and take affirmative action for protect- ing the right of people to have access to light, air and water and also  for protecting rivers, sea, tanks, trees, forests and associated natural  ecosystems.”

9. We have prefaced disposal  of  this  appeal  by discussing the public  trust  

doctrine and its applicability in different situations because the Division Bench of  

the Kerala High Court, which dealt with the writ petition filed by the appellant for  

restraining the respondents from constructing a building (hotel/restaurant) on the  

banks of river Periyar within the area of Aluva Municipality skirted the real issue  

and  casually  dismissed  the  writ  petition  only  on  the  ground  that  while  the  

appellant had questioned the construction of a hotel, the respondents were actually  

constructing a restaurant as part of the project for renovation and beautification of  

Manalpuram Park.

10. The people of the State of Kerala, which is also known world over as the  

‘God’s Own Country’ are very much conscious of the imperative of protecting  

environment and ecology in general and the water bodies, i.e., the rivers and the  

lakes  in  particular,  which  are  integral  part  of  their  culture,  heritage  and  an  

important  source  of  livelihood.   This  appeal  is  illustrative  of  the  continuing  

endeavour of the people of the State to ensure that their rivers are protected from  

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all kinds of man made pollutions and/or other devastations.

11. The appellant is a registered body engaged in the protection of environment  

in the State of Kerala. It  has undertaken scientific studies of environment and  

ecology, planted trees in public places and published magazines on the subjects of  

environment  and  ecology.   In  2005,  Aluva  Municipality  reclaimed  a  part  of  

Periyar river within its jurisdiction and the District Tourism Promotion Council,  

Ernakulam  decided  to  construct  a  restaurant  on  the  reclaimed  land  by  citing  

convenience  of  the  public  coming  on  Sivarathri  festival  as  the  cause.   The  

proposal submitted by the District Tourism Promotion Council was forwarded to  

the State Government by the Director, Department of Tourism by including the  

same in the project for renovation and beautification of Manalpuram Park.  Vide  

order dated 20.5.2005, the State Government accorded administrative sanction for  

implementation of the project at an estimated cost of Rs.55,72,432/-.

12.  When the District Promotion Council started construction of the building  

on the  reclaimed land,  the  appellant  filed  Writ  Petition  (C)  No.436/2006 and  

prayed that the respondents be restrained from continuing with the construction of  

building on the banks of river  Periyar  and to remove the construction already  

made.  These prayers were founded on the following assertions:

a) Periyar river is a holy river called “Dakshin Ganga”, on the banks of  

which famous Sivarathri festival is conducted.    

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b) The  river  provides  water  to  lakhs  of  people  residing  within  the  

jurisdiction of 44 local bodies on its either side.

c) In 1989, a study was conducted by an expert body and Periyar Action  

Plan was submitted to the Government for protecting the river but the latter  

has not taken any action.

d) In December,  2005, Aluva Municipality reclaimed the land which  

formed part of the river and in the guise of promotion of tourism, efforts are  

being made to construct a hotel.

e) The construction of hotel will adversely affect the flow of water as  

well as the river bed.

f) The  construction  of  the  building  will  adversely  affect  Marthanda  

Varma Bridge.   

g) The respondents  have  undertaken construction without  conducting  

any environmental impact assessment and in violation of the provisions of  

Kerala Protection of River Banks and Regulation of Removal of Sand Act,  

2001.

h)  The construction of hotel building is  ultra vires the provisions of  

notification  dated   13.1.1978  issued  by  the  State  Government,  which  

mandates assessment of environmental impact as a condition precedent for  

execution of any project costing more than Rs.10,00,000/-.  

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13. In the written statement filed on behalf of the respondents, the following  

averments were made:

(i) District Tourism Promotion Council has undertaken construction of a  

restaurant  and  not  a  hotel  as  part  of  the  project  involving  

redevelopment and beautification of Manalpuram Park.

(ii) The  State  Government  has  accorded  sanction  vide  G.O.  dated  

20.5.2005 for construction of a restaurant.

(iii) The restaurant is meant to serve large number of people who come  

during Sivarathri celebrations.

(iv) The construction of restaurant will neither obstruct free flow of water  

in the river nor cause damage to the ecology of the area.

(v) There will be no diversion of water and the strength of the pillars of  

Marthanda Varma Bridge will not be affected.

14. The Division Bench of  the High Court  took cognizance of  the sanction  

accorded by the State Government vide order dated 20.5.2005 for renovation and  

beautification  of  Manalpuram Park  and  dismissed  the  writ  petition  by  simply  

observing that only a restaurant is being constructed and not a hotel, as claimed  

by the appellant.  The cryptic reasons recorded by the High Court for dismissing  

the writ petition are extracted below:

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“From the facts as gathered above, it transpires that no hotel at all is  being constructed in the river belt. The petitioner does not appear to  have ascertained the correct  facts before filing the present  petition.  Main allegation by the petitioner that a hotel is being constructed on  the banks of Periyar river is found to be incorrect.  There is no merit  in this writ petition.  It is hereby dismissed.”  

15. Shri Deepak Prakash, learned senior counsel for the appellant invited the  

Court’s attention to order dated 13.1.1978 issued by the State Government and  

argued that  the  sanction  accorded  by  the  State  Government  on  20.5.2005 for  

renovation  and  beautification  of  Manalpuram Park  did  not  have  the  effect  of  

modifying G.O. dated 13.1.1978 which mandates that all development schemes  

costing Rs.10 lakhs or more should be referred to the Environmental Planning and  

Coordination Committee for review and assessment.  Learned counsel submitted  

that  unless  the  project  was  reserved  for  consideration  by  the  Committee  

constituted by the State Government, the respondents could not have undertaken  

construction of the restaurant.  

16. Learned counsel for the respondents could not draw our attention to any  

document to show that  the construction of  restaurant  building was undertaken  

after  obtaining  clearance  from  the  Environmental  Planning  and  Coordination  

Committee  as  per  the  requirement  of  G.O.  dated  13.1.1978.   She,  however,  

submitted  that  the  construction  of  restaurant  which  is  an  integral  part  of  the  

project relating to renovation and beautification of Manalpuram Park is not going  

to adversely impact the flow of Periyar river or otherwise affect the environment  

and ecology of the area.

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17. We have considered the respective arguments and scrutinized the record.  

On 13.1.1978, the Government of Kerala accepted the recommendations made by  

the State Committee on Environmental Planning and Coordination and issued an  

order,  which was published in Official  Gazette dated 7.2.1978 for  review and  

assessment  of  environmental  implications  of  various  projects.   The  relevant  

portions of that order are reproduced below:

“In the light of the recommendation of the State Commit- tee on Environmental  Planning and Co-operation  in  their  second  meeting  held  on  23.7.1977,  Government  are  pleased to order as follows:

1. All development schemes costing Rs.10 lakhs and above will  be referred to the Committee on Environmental Planning and  Co-ordination    for    review    and    assessment of envi- ronmental implications in order to integrate environmental  concerns and the clearance of the committee will  be ob- tained before the scheme share sanctioned and taken up  for execution.

2. In the case of projects costing Rs.25 lakhs and above the De- partment concerned will while referring the projects for review  and clearance by the committee furnish detailed and compre- hensive  environmental  impact  statement  for  the  project  prepared with the help of experts.

3. In the case of schemes costing less than Rs.10 lakhs, the En- vironmental implication will be assessed by the concerned de- partment in the light of guidelines formulated by the committee  and the concerned department will be responsible to ensure that  suitable remedial measures for protecting the environment are  incorporated in the scheme itself before the schemes are sanc- tioned and taken up for implementation. If the department con- cerned feels  certain  that  with  the  safeguards  provided in  the  scheme, the ecological stability and purity of environment will  be maintained they can go ahead with the scheme without refer- ence to the committee. Doubtful cases will however be referred  to the committee for clearance.

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By order of the Government.       SD/-

            P.K.Rajasekharan Nair                  Under Secretary.”

18. By G.O. dated 20.5.2005, the State Government accorded administrative  

sanction for renovation and beautification of Manalpuram Park and construction  

of a restaurant at Aluva at an estimated cost of Rs.55,72,432/-. That order reads as  

under:

“GOVERNMENT OF KERALA

Abstract

Department  of  Tourism -Working Group on Plan  Schemes -  Renovation  of  Manalppuram  Park  and  construction  of  Restaurant  at  Aluva  -  Administrative  Sanction  accorded  –  Orders issued.

TOURISM (A) DEPARTMENT

G.O.(Rt)  No.3974/05/GAD.  Dated,  Thiruvananthapuram  20.05.2005

Read:

Letter  No.C2-22446/04,  dated  11.04.2005  from  the  Director, Department of Tourism, Thiruvananthapuram.

ORDER

The Aluva Manalppuram is a significant pilgrim centre  as well as tourism spot. The Aluva Manalppuram is famous for  Shivarathri  celebrations.  The  pilgrims  visiting  Kalady,  the  birthplace of Shri Shankaracharya include this spot also in the  schedule of visit. The Director, Department of Tourism as per  the letter read above has forwarded a proposal submitted by the  District  Collector  and  Chairman,  DTPC,  Ernakulam  for  the  renovation  of  the  Manalppuram  Park  and  construction  of  Restaurant  at  Aluva  and  has  requested  for  Administrative  

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Sanction for the project at an estimated cost of Rs.55,72,432/-  as detailed below.

1. Beautification of Manalppuram Park Rs.24,10,421/-

2. Construction of Restaurant Rs.3l,62,011/-

TOTAL Rs.55,72,432/-

The Working Group that met on 29.04.2005 considered  the  proposal  of  the  Director,  Department  of  Tourism  and  approved it. Sanction is therefore accorded for the Project for  the  renovation  of  Manalppuram  Park  and  construction  of  Restaurant  at  Aluva  at  an  estimated  cost  of  Rs.55,72,432  /- (Rupees  Fifty  Five  Lakhs  Seventy  Two  Thousand  Four  Hundred and Thirty two only) .  

The  expenditure  on this  account  will  be  met  from the  head of account “3452-80-800-90(29)-Upgradation and creation  of infrastructure facilities at Tourist Centres (Plan)”. The work  will  be  executed  through  DTPC,  Ernakulam  and  will  be  completed within a period of six months.

By Order of the Governor

D. Saraswathy Amma,  Deputy Secretary.”

19. There is nothing in the language of G.O. dated 20.5.2005 from which it can  

be  inferred  that  while  approving  the  proposal  forwarded  by  the  Director,  

Department of Tourism for renovation and beautification of Manalpuram Park at  

an estimated cost  of  Rs.55,72,432/-,  the State Government had amended G.O.  

dated  13.1.1978  or  otherwise  relaxed  the  conditions  embodied  therein.   The  

record  also  does  not  show  that  the  Department  of  Tourism  had  furnished  a  

detailed comprehensive environmental impact statement for the project so as to  

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enable the Committee to make appropriate review and assessment.  Therefore, it  

must be held that the execution of the project including construction of restaurant  

is ex facie contrary to the mandate of G.O. dated 13.1.1978, which was issued by  

the  State  in  discharge  of  its  Constitutional  obligation  under  Article  48-A.  

Unfortunately, the Division Bench of the High Court ignored this crucial issue  

and  casually  dismissed  the  writ  petition  without  examining  the  serious  

implications of the construction of a restaurant on the land reclaimed by Aluva  

Municipality from the river.

20. G.O. dated 13.1.1978 is illustrative of the State Government’s commitment  

to protect and improve the environment as envisaged under Article 48A.  The  

object of this G.O. is to ensure that no project  costing more than Rs.10 lakhs  

should be executed and implemented without a comprehensive evaluation by an  

expert body which can assess possible impact of the project on the environment  

and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project  

had been referred to the Environmental Planning and Co-ordination Committee  

for  review and  assessment  of  environmental  implications  then  it  would  have  

certainly examined the issue relating to desirability and feasibility of constructing  

a restaurant, the possible impact of such construction on the river bed and the  

nearby bridge as also its impact on the people of the area.   By omitting to refer  

the project  to the Committee, the District Tourism Promotion Council and the  

Department of Tourism conveniently avoided scrutiny of the project in the light of  

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the parameters required to be kept in view for protection of environment of the  

area and the river.  The subterfuge employed by the District Promotion Council  

and  the  Department  of  Tourism  has  certainly  resulted  in  violation  of  the  

fundamental right to life guaranteed to the people of the area under Article 21 of  

the Constitution and we do not find any justification to condone violation of the  

mandate of order dated 13.1.1978.    

21. In the result, the appeal is allowed and the impugned order is set aside.  As  

a  sequel  to  this,  the  writ  petition  filed  by  the  appellant  is  allowed  and  the  

respondents  are  directed  to  demolish  the  structure  raised  for  establishing  a  

restaurant as part of renovation and beautification of Manalpuram Park at Aluva.  

The needful be done within a period of three months from today.

     ......………………………..….J.        [G.S. SINGHVI]

New Delhi,                 ...….……..…..………………..J. July 2, 2013.                  [SHARAD ARVIND BOBDE]

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