Back
2014 Supreme(Megh) 262
IN THE HIGH COURT OF MEGHALAYA
T. Nandakumar Singh, J.
The Principal, St. Anthony's College - Appellant
Versus
The State Of Meghalaya And Others - Respondent
W.P. (C) No. 294 of 2012
Decided on : 17-04-2014
Advocate Appeared:
For the Appellant : S. Sen and E. Nongbri
For the Respondent: N.D. Chullai, Sr. G.A. and S. Sen Gupta, G.A
The "Public Trust Doctrine" and the "Doctrine of Public Trust" enjoin upon the Government to protect public resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.
Headnote:
PUBLIC TRUST DOCTRINE - MUNICIPAL PROPERTY - STREAM - ENCROACHMENT - OBSTRUCTION - REMOVAL - MUNICIPAL ACT - PUBLIC TRUST - ENVIRONMENT PROTECTION ACT - DIRECTIVE PRINCIPLES OF STATE POLICY - FUNDAMENTAL DUTIES - IMPHAL MUNICIPAL COUNCIL - POLLUTION CONTROL BOARD - EVICTION - DAMAGES.
Fact of the Case:
Petitioner, Principal of St. Anthony's College, Shillong, filed a writ petition alleging pollution of a natural stream running towards Wahumkhrah River due to illegal construction by respondents 6 & 7, encroaching upon the stream and connecting their encroachment with college property. The stream is a public property under the Meghalaya Municipal Act, 1973, and the Municipal Board is responsible for its management and control.
Finding of the Court:
The court held that the stream is a public property and any person shall not encroach/cover/utilize any of its parts. The river bank, river basin, and stream shall be left open for public use. No individual shall be allowed to discharge untreated effluents into the river. The court also discussed the "Public Trust Doctrine in National Resource Law" and the "Doctrine of Public Trust", which 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.
Issues: 1. Whether the construction by respondents 6 & 7 encroaching upon the stream is illegal and unauthorized? 2. Whether the Municipal Board is responsible for the management and control of the stream? 3. Whether the "Public Trust Doctrine" and the "Doctrine of Public Trust" are applicable in this case?
Ratio Decidendi: 1. The court held that the construction by respondents 6 & 7 encroaching upon the stream is illegal and unauthorized, as it is a public property and any person shall not encroach/cover/utilize any of its parts. 2. The court held that the Municipal Board is responsible for the management and control of the stream, as it is a public property under the Meghalaya Municipal Act, 1973. 3. The court held that the "Public Trust Doctrine" and the "Doctrine of Public Trust" are applicable in this case, as the stream is a public property and the Government has a duty to protect it for the enjoyment of the general public.
Final Decision: The court directed the respondents 4 & 5 (Municipal Board) to remove the cement slab over the stream and the boundary wall encroaching the stream constructed by the respondents 6 & 7 within four weeks from the date of receipt of a certified copy of the judgment and order. The court also directed the respondents 6 & 7 to bear all the expenses for removing the unauthorized construction/encroachment made by them by the respondents 4 & 5. In case of failure on the part of any party, a cost of several lakhs of Rupees shall be imposed, taking cue of the decision of the Supreme Court in M.C. Mehta's case (Supra) i.e. M.C. Mehta Vs. Kamal Nath and Others, (1997) 1 SCC 388, to the defaulting party.
JUDGMENT :
T. Nandakumar Singh, J.
1. This writ petition shows the heavily polluted water of a natural stream, west end of the St. Anthony's College butted to that stream, running towards Wahumkhrah River. That natural stream is a tributary of Wahumkharah River. The "Doctrine of Public Trust" is required to be considered in the present writ petition.
2. Heard Mr. S. Sen, learned counsel for the petitioner and Mr. ND Chullai, learned Sr. GA assisted by Mr. S. Sen Gupta, learned GA appearing for the respondents No. 1-3, Mr. K Baruah, learned counsel for the respondents No. 4 & 5 and Mr. G.S. Massar, learned senior counsel assisted by Mr. J.M. Thangkhiew, learned counsel appearing for the respondents No. 6 & 7.
3. The petitioner is the Principal of St. Anthony's College, Bomfyle Road, Shillong and the College is butted on the west end by a natural stream which aids in mobilizing rainwater during monsoons towards the Wahumkhrah River. That stream is tributary of the said River. That natural stream carries effluent and wastewater discharged and other rubbish emitted into it, which is the major cause for its pollution. It is stated that there are regular cleaning drives conducted by the locals in which the college plays an integral part. Respondents No. 6 & 7, who are the occupants of a plot of land on the west end of the St. Anthony's college and across the stream had made certain construction over the stream in a manner to cover the entire stream and extended their construction to the college's retaining wall. The respondents No. 6 & 7 had enlarged the area of their property by encroaching upon the stream and connecting their encroachment with college property. Because of the encroachment made by the respondents No. 6 & 7 by covering the stream, a portion of the stream can no longer be cleaned. It is admitted case of all the parties that the portion of the said stream or stream passing through between St. Anthony's college at the back side and the said plot of the respondent No. 6 & 7 is a public stream situated within the Municipality. Under Section 62 of the "Meghalaya Municipal Act, 1973" (for short the "Municipal Act, 1973"), the Municipal property includes all the public streams, channels, water courses, springs tanks, reservoirs cisterns, wells etc. situated within the Municipality; and those properties are under the management and control of the Shillong Municipal Board. For easy reference, Section 62 of the Municipal Act, 1973 is quoted hereunder:--
"MUNICIPAL PROPERTY
62. Municipal property - (1) Subject to any reservation made by the State Government all property of the nature hereinafter in this section specified and situated within the municipality shall vest in and belong to the Board and shall with all property of whatever nature or kind which may become vested in the Board, be under its direction, management and control, that is to say.
(a) all public roads including the soil, the pavements, stones and other materials thereof, and all drains, bridges, trees, erection, materials, implements and other things provided for such roads;
(b) all public streams, channels, water courses, springs tanks, reservoirs cisterns, wells, aqueducts, conduits, tunnels, pipes, pumps and other water-works whether made laid are created at the cost of the Board or otherwise and bridges, buildings, engines, works, materials and things connected therewith or appertaining thereto and also any adjacent land, not being private property, appertaining to any public tanks;
Provided that water pipes and any water works connected therewith or appertaining thereto which with the consent of the Board are laid or set up in any street by the owner of any mill, factory, workshop or the like primarily for the use of their employees shall not be deemed to be public water-works by reason of their use by the public;
(c) all public sewers and drains, all works materials and things appertaining thereto and other conservancy works;
(d) all sewage, rubbish and offensive m
