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. 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 matter collected by the Board from roads, latrines, sewers, cess-pools and other places; (e) all public lamps, lamps-posts and apparatus connected therewith or appertaining thereto and all public gates, markets, slaughter houses and public buildings of every description which have been constructed or are maintained out of the municipal fund; (f) all land or other property transferred to the Board by the Government or acquired (by the Board) by gift, purchase or otherwise for local public purposes. (2) The State Government may by notification in the official gazette, direct that any property which has vested under Sub-section (1) in the Board shall cease to be so vested, and thereupon the property specified in the notification shall cease to be so vested and the State Government may pass such orders as it thinks fit regarding the disposal and management of such property." 4. On 17.07.2009, the petitioner wrote a letter to the Deputy Commissioner (Revenue) i.e. respondent No. 3, intimating the illegal and unauthorized construction made by the respondents 6 & 7 over the said natural stream and a copy thereof was also forwarded to the Secretary (Revenue), Meghalaya Secretariat, Shillong i.e. respondent No. 1. Pursuant to the said complaint, a survey was conducted by Smti. R.R. Marak, MCS on 21.07.2009 in the presence of the petitioner, respondents No. 6 & 7 and other college authorities. Pursuant to the said complaint, a survey was conducted by Smti. R.R. Marak, MCS on 21.07.2009 in the presence of the petitioner, respondents No. 6 & 7 and other college authorities. It is also stated that on 24.07.2009, the respondents No. 6 & 7 met the college authorities and in that meeting, the college authorities had clearly communicated to the respondents No. 6 & 7 that the illegal encroachment and construction over the said natural stream is an environmental hazard and would adversely affect the boundary wall of the college premises. Respondent No. 7 under his letter dated 05.08.2009, informed the petitioner that he had obtained prior permission from the concerned authority for construction. In that letter, the particular of the authority, from whom the respondent No. 7 obtained prior permission for construction on the said stream, is not mentioned. The petitioner again under his letter dated 06.08.2009, requested the Deputy Commissioner (Revenue) East Khasi Hills District, Shillong to take necessary action to demolish the unauthorized construction over the said stream by the respondents No. 6 & 7. 5. On 15.02.2010, the respondent No. 7 under his letter dated 15.02.2010, informed the petitioner that he had obtained necessary permission from the Deputy Commissioner's Office and as such, there was no illegality in the construction. From the said letter dated 15.02.2010, it appears that the respondents No. 6 & 7 had made the construction over the said natural stream after obtaining prior permission from the Deputy Commissioner Office. It will be more profitable to quote the said letter of the petitioner dated 06.08.2009 (Annexure-III to the writ petition) and the said letter of the respondent No. 7 dated 15.02.2010 (Annexure-V to the writ petition) hereunder:-- ST. ANTHONY'S COLLEGE SHILLONG- 793001 MEGHALAYA - INDIA Grade "A" (3.60/4) NACC Re-accredited College With potential for Excellence (awarded by UGC) Principal Ref. No. SAC/IW/41/09-02 dated 6th August, 2009. To, The Deputy Commissioner (Revenue), East Khasi Hills District, Shillong - 793001. Subject: Illegal and unauthorized construction over a natural stream. Ref: Our letter No. SA C/IW/41/09-01 dated 17th July, 2009. Dear Sir, While inviting reference to the above, I would like to inform you that in pursuance to my complaint, your good office had appointed Smti. R.R. Marak, MCS to conduct a survey with regard to the alleged construction over the stream running between St. Ref: Our letter No. SA C/IW/41/09-01 dated 17th July, 2009. Dear Sir, While inviting reference to the above, I would like to inform you that in pursuance to my complaint, your good office had appointed Smti. R.R. Marak, MCS to conduct a survey with regard to the alleged construction over the stream running between St. Anthony's College, Shillong and the property of the Wahlang family under the name M/s. V.W. Bonded Warehouse. The said survey was conducted on 21st July 2009, in our presence and a representative of the "Wahlang" family but thereafter no further development has taken place so as to demolish the unauthorized construction. I would like to reiterate that the "Wahlang" family who owns the property adjoining the natural stream are apparently attempting to illegal usurp. The covering of the stream poses an environmental hazard as the stream which requires intermittent cleaning and has been deprived of the same for a substantial period of time and resulting in an adverse impact on the foundation of the structure of the Auditorium, the Media - IT buildings and the boundary walls. I, therefore, request you to kindly take necessary action to demolish the unauthorized construction which is presently posing as a threat. This is for your information and necessary action. Thanking you, Sd/- Fr. I. Warpakma SDB, Principal. Date: 15.02.2010 To, The Principal, St. Anthony's College, Shillong - 793001. Ref: Your letter No. SCA/TW/41/10-05 dated 10th February, 2010. Dear Father I. Warpakma SDB. In your referred letter you have expressed apprehensions that the construction of the cover on the stream between St. Anthony's college compound and ours boundary wall. However, the above apprehensions need to be substantiated with a detailed calculation by a qualified engineer to ascertain the extent of damage that has been caused by the subject construction. The cover of the drain has been constructed after permission from the Deputy Commissioner's Office and as such there is no illegality in the construction. Furthermore, I shall be obliged to have a meeting with you along with my technical advisor and your technical consultant so that the matter may be amicably settled. Looking forward to a positive response from your end. Thanking you, Yours faithfully, Sd/- Shri. Nicholas Wahlang. Furthermore, I shall be obliged to have a meeting with you along with my technical advisor and your technical consultant so that the matter may be amicably settled. Looking forward to a positive response from your end. Thanking you, Yours faithfully, Sd/- Shri. Nicholas Wahlang. Lachumiere, Shillong-793001." What the respondent No. 7 stated in his letter dated 15.02.2010 is that the permission obtained from the Deputy Commissioner's Office for covering of the natural stream is the letter/No Objection Certificate dated 18.04.2008 (i.e. Annexure-IX to the writ petition) which reads as follows:-- "GOVERNMENT OF MEGHALAYA OFFICE OF THE DEPUTY COMMISSIONER: EAST KHASI HILLS DISTRICT, SHLLONG. No. L.14/10(18)2006/50 Dt. Shillong, the 18th April, 2008. To, Smt. Merita Wahlang, Plot No. 4 & 5. Lower Lachumiere, Shillong. Subject: No Objection Certificate. Reference: MW/HOTEL/5/2008-09/3 dt.16.4.2008. Madam, With reference to the above I am to say that this office has no objection for construction for developing of an Eco-friendly Green Patch along with the existing Stream flowing on the sides of the Boundary on your own expenditure. However, you are to ensure that the drains are not blocked at any point of time. Yours faithfully, Sd/- Deputy Commissioner, East Khasi Hills District, Shillong." 6. The Shillong Municipal Board to whom the said stream is vested is the only competent authority to regulate the said stream; and also the encroachment and obstruction of the natural stream without necessary permission or order from the Municipal Board shall have to be removed by the Board by issuing a Notice under Section 159 of the Municipal Act, 1973. The Magistrate may, on the application of the Municipal Board, shall remove such obstruction within 48 hours of receipt of the application of the Board. The Magistrate may, on the application of the Municipal Board, shall remove such obstruction within 48 hours of receipt of the application of the Board. Sections 159, 162, 163, 164, 165, 167 and 171 of the Municipal Act, 1973 are quoted hereunder:-- "159: Removal of obstruction or encroachment in or public road - The Board may issued a notice requiring any person to removed any building which he may have built or any fence, rail, post or other obstruction or encroachment which he may have erected, on any public road house gully, public drain, sewer, aqueduct, water-course ghat or any land vested in the board; and, if such person fails to comply with such requisition within forty eight hours of the receipt of the same, the Magistrate may, on the application of the Board, other that such obstruction or encroachment be removed; and there upon the board may removed any such obstruction or encroachment and the expenses there by incurred shall be paid by the person who erected the same. 162. Power of District and Sub-divisional Magistrate to remove encroachments - Notwithstanding anything contained in Section 159 and 161, a District Magistrate or a Sub-divisional Magistrate may within his jurisdiction, on being so empowered by the State Government, order any person responsible for any obstruction or encroachment or projection as specified in Section 159 and 161 to remove or alter such obstruction or encroachment or projection within a period not less than forty eight hours and on non-compliance with such order may take all necessary steps to remove or alter such obstruction or encroachment or projection and realize the expenses thereby incurred from the person concerned as fine in a Criminal Court: Provided that in case the person or person responsible for such obstruction, encroachment or projection is/are not known or cannot be found the procedure laid down in Section 160 shall be followed. 163. Effect of order made under Sections 159, 160, 161 or 162 - Every order made by a Magistrate under Sections 159, 160, 161 or 162 shall be deemed to be an order made by him in the discharge of his judicial duty and the Board shall be deemed to be persons bound to exercise such order within the meaning of the Judicial Officers? Protection Act, 1850 (Act XVIII of 1850). 164. Protection Act, 1850 (Act XVIII of 1850). 164. Power to regulate line of buildings on public roads and drains (1) Whenever a Board considers it expedient to define the general alignment of buildings on each either side of any existing or proposed public road or drain, it shall give public notice of its intention to do so. (2) Every such notice shall specify a period within which objections will be received, and a copy of such notice shall be sent to every owner of premises abutting on such road or drain who is registered in respect of such premises on the books of the Municipality; provided that accidental failure or omission to serve such notice on any owner shall not invalidate proceedings under this section. (3) The Board shall consider all objections received within the specified period and may then pass a resolution defining the said alignment and the alignment so defined shall be called "the regular line" of the road or drain. (4) Every order made under sub-section (3) shall be widely published by beat of drum in the locality and a copy thereof affixed to the notice board in the office of the municipality. (5) Thereafter, it shall not be lawful for any person to erect, re-erect or alter a building or part of a building so as to project beyond the regular line of the road or drain unless he is authorized to do so by a sanction given under Section 174 or by a permission in writing under this section and the Board is hereby empowered to grant such permission. (6) Any owner of land who is prevented by the provision of this section from erecting re-erecting or altering any building on nay land may require the Board to make compensation for any damage which he may sustain by reason of such prevention and upon the payment of compensation in respect of any land situated within the regular line of the road or drain such land shall vest in the Board. (7) The board may by notice, require within a reasonable time the alteration or demolition of any building or part of a building erected, re-erected or altered in contravention of sub-section (5). 165. Erection of Platforms - (1) No platform shall be erected, re-erected or extended upon or over any public road or drain without the previous sanction of the Board. 165. Erection of Platforms - (1) No platform shall be erected, re-erected or extended upon or over any public road or drain without the previous sanction of the Board. (2) The owner of every platform, except platforms which used for giving such access to the houses as the Board may consider necessary, shall if the Board in a meeting so direct take out a license for keeping the platform. For every such license there shall be paid annually a fee to be fixed by the Board at a meeting. (3) Every such license shall remain in force for one year and shall be renewable annually. (4) Any platform erected, re-erected extended or maintained in contravention of the provisions of sub-section (1), (2) and (3) shall be deemed to be an "obstruction" for the purposes of Sections 159, 160 and 161. 167. Cutting of public road, passage of water, etc. - if any person, in order to provide for the passage of water, or for any other purpose, shall, without the consent of the Board, dig or cut any public road, he shall be liable for a fine not exceeding twenty five rupees, and in addition be bound to pay these expenses incurred in filling up any excavation made by him or on his behalf in any public road. BUILDINGS 171. Prohibition of building without sanction - (1) No person shall erect, materially alter, or re-erect or commence to erect, materially alter or re-erect any building without sanction of the Board. Provided that in an area in respect of which an authority has been constituted under the Assam Town and Country Planning Act, 1959, the power of giving sanction to erect, materially alter or re-erect or commence to erect, materially alter or re-erect any building shall vest in that authority and the sanction given by that authority shall be deemed to be a sanction of the Board. (2) Every person who intends to erect, materially alter or re-erect any building shall give notice in writing to the Board of such intention. While byelaws have been framed under section 302, no notice under sub-section (2) shall be considered to be valid until notice is served under clause (iii) with such information as is necessary under Clause (iv) of that section. While byelaws have been framed under section 302, no notice under sub-section (2) shall be considered to be valid until notice is served under clause (iii) with such information as is necessary under Clause (iv) of that section. Explanation - an alteration in a building for the purposes of this section and of byelaws be deemed to be material if it - (a) affects or is likely to affect prejudicially the stability or safety of the building or the condition of the building in respect of drainage, ventilation, sanitation or hygiene; or (b) increase or diminishes the height or area covered by or the cubical capacity of the building, or of any room in the building. (4) in the municipalities where water works are maintained it shall be compulsory for persons erecting or re-erecting building costing Rs. 5,000 or more (excluding cost of land and of improvement of land) to install sanitary latrines. The Board shall without sanctioned if the plan and specification of the building submitted with the notice do not contain provision for installation of sanitary latrines. NOTES ASSAM (AMENDMENTS) Section 171 - the proviso to the Sub-section (1) was inserted vide Assam Act. No. II of 1956, published in the Assam Gazette, dated 10-1-1966, and in Sub-section (4) the figure and word "Rs. 5000" was also substituted by the same Amendment Act." 7. The Chief Executive Officer, Shillong Municipal Board had already issued Notice under Section 159 of the Municipal Act, 1973 dated 09.07.2009 to the respondents No. 6 to remove the cement slab over the stream and the boundary wall erected by her within 7(seven) days and also further directed to stop the construction work with immediate effect (Annexure-XI to the writ petition) and it reads as follows:-- "Office of the SHILLONG MUNICIPAL BOARD 10-Jail Road, Shillong-79301, Meghalaya. http.//smb.gov.in Regd. No. SMB/PW/188/2009-10/8 Dated: Shillong, the 9th July, 2009. NOTICE Under Section 159 of Act XV of 1973 (Meghalaya Municipal Act). To, Smti. Merita Wahlang, Owner and occupiers of premises at Lower Lachumiere. Whereas on inspection it has been found that you have encroached on the public stream by the side of your compound by constructing slab cover over the stream and providing a boundary wall thereon. NOTICE Under Section 159 of Act XV of 1973 (Meghalaya Municipal Act). To, Smti. Merita Wahlang, Owner and occupiers of premises at Lower Lachumiere. Whereas on inspection it has been found that you have encroached on the public stream by the side of your compound by constructing slab cover over the stream and providing a boundary wall thereon. You are hereby required under the provisions of Section 159 of the Meghalaya Municipal Act 1973 to remove the cement slab over the stream and the boundary wall erected by you within 7(seven) days. If you have any objection to urge against the requisition you may prefer the same in writing within five days of the service of his notice. Meanwhile, you are directed to stop the construction work with immediate effect. If you fail to comply with this requisition or to prefer the objection as aforesaid, appropriate action as per provisions of the Meghalaya Municipal Act, 1973 will be taken against you. Sd/- Chief Executive Officer, Shillong Municipal Board." Inspite of the said Notice dated 09.07.2009, the respondents No. 6 & 7 have not removed the cement slab over the said stream and the boundary wall erected by them. 8. Respondent No. 4, Shillong Municipal Board filed affidavit-in-opposition wherein, it is stated that the respondent No. 6 without obtaining No Objection Certificate or permission form the Board covered the stream with slab which may restrict the smooth flow of the stream and the Board had issued a Notice dated 09.07.2009 to the respondent No. 6 to remove the slab and to explain as to why construction was made without the prior permission of the Board. Para 5 of the Affidavit-in-opposition of the respondent No. 4 read as follows:-- "5. That in reply to the statements made in paragraph 3 of the writ petition, the deponent say that, as per the record, the respondent No. 6 without obtaining no objection certificate from the Board covered the stream with slab which may restrict the smooth flow of the stream, thereby necessitating the Board to issue vide Notice dated 9th July 2009 (Annexure-XI to the writ petition) her (respondent No. 6) to remove the slab and to explain as to why the construction was made without the prior permission of the Board." 9. The respondent No. 7 filed affidavit-in-opposition and in that affidavit, the respondent No. 7 did not mention clearly from whom the necessary permission had been obtained for covering the stream with cement slab and also for constructing the boundary wall encroaching on the said natural stream. The respondent rather admitted in the affidavit-in-opposition that they had covered the natural stream with cement slab and also constructed the boundary wall on the said natural stream for retaining the boundary wall of the stream for eco-friendly green patch. It is also stated in the affidavit-in-opposition that the petitioner-college has slab protruding and abutting from the building adjacent to the PWD Roads. Further, it is also alleged that irresponsible dumping of garbage and continuous pollution created by the callous dumping of sewage and garbage by the petitioner's college into the drain has led to the drain becoming a hotbed of health hazard not to mention of the unbearable stench that emanates from the drain. Para 9 of the affidavit-in-opposition of the respondent No. 7 read as follows:-- "9. That in reply to the averments made at paragraphs - 15 -19 of the petition the Answering Respondent would say that the Answering Respondent attempt to re-enforce via construction of a retaining wall on the boundary of their plot butted by a stream was not with an intention to enlarge their property by rather to protect their land from being eroded upon. The notion of enlargement of the property by the petitioner is amusing and nonsensical as the Answering Respondent is already in possession of a huge plot of land. Further the irresponsible dumping of garbage and continuous pollution created by the callous dumping of sewage and garbage by the petitioner's college into the drain has led to the drain becoming a hotbed of health hazard not to mention of the unbearable stench that emanates from the drain. It is pertinent to mention herein that the petitioner's building as stated earlier butted by the PWD Road protrudes precariously over the PWD Road. It is pertinent to mention herein that the petitioner's building as stated earlier butted by the PWD Road protrudes precariously over the PWD Road. This contradictory stand taken by the petitioner wherein violation of rules are made out against the Answering Respondent and whereby the total violation of it by the petitioner themselves is not brought to the notice of this Hon'ble Court seems to show that the petitioner may have an ulterior motive behind the objection towards the strengthening of the wall traversed by the stream and ironically this Hon'ble Court may appreciate the dubious manner in which the petitioner has conniving tried to manipulate the authority of this Hon'ble Court by coming before it with unclean hands." 10. The river bank, river basin and natural stream are the public property and any person shall not encroach/cover/utilize any of its parts. The river bank, river basin and stream shall be left open for public use. No individual shall be allowed to discharge untreated effluents into the river. Before proceeding further, apart from the fundamental right guaranteed under Article 21 of the Constitution of India, it would be apposite to see the relevant articles of the Supreme law of the land, i.e. Constitution of India. In Part IV of the Constitution of India constitutional obligations of the State Government are mentioned in the Directive Principles of State Policy, i.e. Articles 47, 48-A and fundamental duties of the citizens are mentioned in Article 51-A of Part IV-A of the Constitution of India. For easy reference Articles 47, 48-A and 51-A of the Constitution of India are reproduced hereunder:-- "Article 47. Duty of the State to raise the level of nutrition and the standard of living and to improve health - The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medical purposes of intoxicating drinks and of drugs which are injurious to health. Article 48-A. Protection and improvement of environment and safeguarding of forests and wildlife - The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 48-A. Protection and improvement of environment and safeguarding of forests and wildlife - The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A. A Fundamental duties - it shall be the duty of every citizen of India:-- (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to uphold the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; (k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years." 11. The "Public Trust Doctrine in National Resource Law" had been discussed by the Apex Court in M.C. Mehta Vs. Kamal Nath and Others, and in that case, the Hotel management interfered with the flow of river. The Apex Court in M.C. Mehta's case (Supra) held that the polluter company is liable to compensate by way of cost for restitution of environment and ecology of the area. Paras 24, 25, 26, 27, 38 & 39 of the SCC in M.C. Mehta's case (Supra) read as follows:-- "24. The ancient Roman Empire developed a legal theory known as the "Doctrine or the Public Trust". It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general pubic. The ancient Roman Empire developed a legal theory known as the "Doctrine or the Public Trust". It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general pubic. Our contemporary conceded about 'the environment' bear a very close conceptual relationship to this legal doctrine. Under the Roman Law these resources were either owned by no one (res Nullious) or by every one in common (Res Communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan - proponent of the Modern Public Trust Doctrine - in an erudite article "Public Trust Doctrine in natural resource law: effective judicial intervention". Michigan Law Review Vol. 68 Part 1 page 473 has given the historical background of the Public Trust Doctrine as under: "The source of modern public trust law is found in a concept that received much attention in Roman and English law - the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized, First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties - such as the seashore, highways, and running water - "perpetual use was dedicated to the public." It has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government. 25. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government. 25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority. "Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third property must be maintained for particular types of uses". 26. The American law on the subject is primarily based on the decision of the United States Supreme Court in Illinois Central Rail Road Company v. People of the State of Illinois: 146 US 687 (1982). In the year 1869 the Illinois legislature made a substantial grant of submerged lands - a mile strip along the shores of Lake Michigan extending one mile out from the shoreline - to the Illinois Central Railroad. In 1873, the legislature changed its mind and repealed the 1869 grant. The State of Illinois sued to quit title. The court while accepting the stand of the State of Illinois' held that the title or the State in the land in dispute was a title different in character from that which the State held in lands intended for sails. It was different from the title which the United States held in public lands which were open to preemption and sale. It was a title held in trust - for the people of the State that they may enjoy the navigation of the water, carry on commerce over them, and have liberty of fishing their in free from obstruction or interference of private parties. It was a title held in trust - for the people of the State that they may enjoy the navigation of the water, carry on commerce over them, and have liberty of fishing their in free from obstruction or interference of private parties. The addiction of the general control of the State over lands in dispute was not consistent with the exercise of the trust which required the Government of the State to preserve such waters for the use of the public. According to Professor Sax the Court in Illinois' Central: 146 US 387: 36 L Ed 1018 (1892) "articulated a principle that has become the central substantive thought in public trust litigation. When a State holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the self-interest of private parties". 27. In Gould v. Greylock Reservation Commission 350 Mass 410 (1966), the Supreme Judicial Court of Massachusetts took the first major step in developing the doctrine applicable to changes in the use of lands dedicated to the public interest. In 1886 a group of citizens interested in preserving Mount Greylock as a unspoiled natural forest, promoted the creation of an association for the purpose of laying out a public park on it. The State Ultimately acquired about 9000 acres, and the legislature enacted a statute creating the Greylock Reservation Commission. In the year 1953, the legislature enacted a statute creating an Authority to construct and operate on Mount Greylock an Aerial Tramway and certain other facilities and it authorized the commission to lease to the Authority any portion of the Mount Greylock Reservation. Before the project commenced, five citizens brought an action against both the Greylock Reservation Commission and the Tramway Authority. The plaintiffs brought the suit as beneficiaries of the pubic trust. The court held both the lease and the management agreement invalid on the ground that they were in excess or the statutory grant of the authority. The crucial passage in the judgment of the Court is as under:-- "The profit sharing feature and some aspects of the project itself strongly suggest a commercial enterprise. The court held both the lease and the management agreement invalid on the ground that they were in excess or the statutory grant of the authority. The crucial passage in the judgment of the Court is as under:-- "The profit sharing feature and some aspects of the project itself strongly suggest a commercial enterprise. In addition to the absence of any clear or express statutory authorization of as broad a delegation of responsibility by the Authority as is given by the management agreement, we find no express grant to the Authority or power to permit use of public lands and of the Authority's borrowed funds for what seems, in part at least, a commercial venture for private profit." Professor Sax's comments on the above quoted paragraph from Gould decision are as under:-- "It hardly seems surprising, then that the court questioned why a state should subordinate a pubic park, serving a useful purpose as relatively undeveloped land, to the demands of private investors for building such a commercial facility. The court, faced with such a situation, could hardly have been expected to have treated the case as if it involved nothing but formal legal issues concerning the state's authority to change the use of the certain tract of land..... Could, like Illinois Central, was concerned with the most overt sort of imposition on the public interest; commercial interests had obtained advantages which infringed directly on public uses and promoted private profits. But the Massachusetts court has also confronted a more pervasive, if more subtle, problem - that concerning projects which clearly have some public justification. Such cases arise when, for example, a highway department seeks to take a pace of parkland or to fill a wetland." 38. It is thus settled by this Court that one who pollutes the environmental must pay to reverse the damage caused by his acts. 39. We, therefore, order and direct as under: 1. The public trust doctrine, as discussed by us in this judgment is a part of the law of the land. 2. The prior approval granted by the Government of India, Ministry of Environment and Forest by the letter dated 24.11.1993 and the lease-deed dated 11.04.1994 in favor of the Motel are quashed. The lease granted to the Motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. 2. The prior approval granted by the Government of India, Ministry of Environment and Forest by the letter dated 24.11.1993 and the lease-deed dated 11.04.1994 in favor of the Motel are quashed. The lease granted to the Motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. The Himachal Pradesh Government shall take over the area and restore it to its original-natural conditions. 3. The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by various constructions made by the Motel in the river bed and the banks of the river Beas has to be removed and reversed. We direct NEERI through its Director to inspect the area, if necessary, and give an assessment of the cost which is likely to be incurred for reversing the damage caused by the Motel to the environment and ecology of the area, NEERI may take into consideration the report by the Board in this respect. 4. The Motel through its management shall show cause why pollution fine in addition be not imposed on the Motel. 5. The Motel shall construct a boundary wall at a distance of not more than 4 meters from the cluster of rooms (main building of the Motel) towards the river basin. The boundary wall shall be on the area of the Motel which is covered by the lease dated 29.09.1981. The Motel shall not encroach/cover/utilize any part of the river basin. The boundary wall shall separate the Motel building from the river basin. The river bank and the river basin shall be left open for the public use. 6. The Motel shall not discharge untreated effluent into the river. We direct the Himachal Pradesh Pollution Control Board to inspect the pollution control devices/treatment plants set up by the Motel. If the effluent/waste discharged by the Motel is not conforming to the prescribed standards, action in accordance with law be taken against the Motel. 7. The Himachal Pradesh Pollution Control Board shall not permit the discharge of untreated effluent into river Beas. The Board shall inspect all the hotels/institutions/factories in Kullu-Manali area and in case any of them are discharging untreated effluent/waste into the river, the Board shall take action in accordance with law. 8. 7. The Himachal Pradesh Pollution Control Board shall not permit the discharge of untreated effluent into river Beas. The Board shall inspect all the hotels/institutions/factories in Kullu-Manali area and in case any of them are discharging untreated effluent/waste into the river, the Board shall take action in accordance with law. 8. The Motel shall show cause on 18.12.1996 why Pollution-fine and damages be not imposed as directed by us. NEERI shall send its report by 17.12.1996. To be listed on 18.12.1996." 12. The Division Bench of the erstwhile Gauhati High Court (consisting of Justice T. Nandakumar Singh and Justice Ketulhou Meruno) had discussed the heavily polluted water of Nambul river and the environmental hazard vis--vis fundamental duties of the citizen under Article 51-A of the Constitution of India and the duties of the Imphal Municipal Council; and the Directive Principles of the State policy under Articles 47 & 48-A of the Constitution of India and the Doctrine of Public Trust and other environmental laws in Environment Protection Committee Vs. Union of India (UOI) and Others, (2011) 1 EFLT 326 and through Mr. Justice T. Nandakumar Singh (as then he was) delivered the judgment with certain directions to the authorities. Paras 22, 23, 24, 25, 26, 27, 28, 29, 32 & 33 of the EFLT in Environment Protection Committee's case (Supra) read as follows:-- "22. The legislature feels that although there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation of pollution and accordingly enacted "The Environment (Protection) Act, 1986". The statement of object and reasons for enacting the Environment (Protection) Act, 1986 are that - (1) concern over the state of environment has grown, the world since the sixties. The decline in environment quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity excessive concentration of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threat to life support systems. The World Community's resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June, 1972. The Government of India participated in the Conference and strongly voiced the environmental concerns. The World Community's resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June, 1972. The Government of India participated in the Conference and strongly voiced the environmental concerns. While several measures have been taken for environmental protection both before and after the Conference, the need for a general legislation further to implement the decisions of the Conference has become increasingly evident. (2) Although there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are inadequate linkages in handling matters of industrial and environmental safety. Control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals, in the environment are weak. Because of a multiplicity of regulatory agencies there is need for an authority which can assume the lead role for studying, planning and implementing long term requirements of environmental safety and to give direction to, and co-ordinate a system of speedy and adequate response to emergency situations threatening the environment. (3) In view of what has been stated above, there is urgent need for the enactment of activities of the various regulatory agencies, creation of an authority or authorities with adequate powers for environmental protection, Regulation of discharge of environmental pollutions and handling of hazardous substances, speedy response in the event of accidents threatening environment and deterrent punishment to those who endanger human environment, safety and health. 23. Today society's interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity. Industrialization, urbanization, explosion of pollution, over exploitation of resources, depletion of traditional sources of energy and raw materials, the disruption of natural ecological balances, the destruction of a multitude of animal and plant species for economics reasons and sometimes for no good reason at all are factors which have contributed to environmental deterioration. While the scientific and technological progress of man has invested him with immense power over nature, it has also resulted in the unthinking use of the power, encroaching endlessly on nature. While the scientific and technological progress of man has invested him with immense power over nature, it has also resulted in the unthinking use of the power, encroaching endlessly on nature. If man is able to transform desert into oasis, he is also leaving behind desert in the place of oasis. In the last century, a great German materialist philosopher warned mankind. "Let us not, however, flatter ourselves over much on account of our human victories over nature. For each such victory, it is true, in the first place brings about the result we expected, but in the second and third places it has quite different. Unforeseen effects which only too often cancel the first", Ecologists are of the opinion that the most important ecological and social problem is the wide spread disappearance all over the world of certain species of living organisms. Biologist forecast the extinction of animal and plant species on a scale that is incomparably greater than their extinction over the course of millions of year. It is said that over half the species which became extinct over the last 2,000 years did so after 1900. The International Association for the Protection of Nature and Natural Resources calculates that now, on average, one species or one subspecies is lost every year. It is said that approximately 1,000 bird and animal species are facing extinction at present. So, it is that the environmental question has become urgent and it has to be properly understood and squarely met by man. Nature and history, it has been said, are two component parts of the environment in which we live, move and prove ourselves. (Ref. Environment Protection Committee Vs. Union of India (UOI) and Others,. 24. The protection and improvement of the human environment is a major issue which affects the well being of peoples and economic development throughout the world, it is the urgent desire of the peoples of the whole world and the duty of all Governments. To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by the enterprises and institution at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and sum of their actions, will shape the world environment of the future. To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by the enterprises and institution at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and sum of their actions, will shape the world environment of the future. Local and National Governments will bear the grandest burden for large scale environment policy and action within their jurisdictions. International cooperation is also needed in order to raise resources to support the developing countries carrying out their responsibilities in this field. A growing class of environmental problems, because they are regional or FLT (1) -22 global in extent or because they affect the common international realm, will require extensive co-operation among nations and action by international organization in the common interest. 25. Legal Theory known as the "Doctrine of the Public Trust" rests on the principle that certain resources like air, sea, waters and forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The Doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The Apex Court in Environment Protection Committee Vs. Union of India (UOI) and Others, held at para 24, 25 and 33 and in M.C Mehta v. Kamal Nath (supra) the fact is that Government of Himachal Pradesh had allowed private individual to construct a Motel building on the part of the River basin and while constructing the boundary wall for the Motel building attempt has been made to divert the course of the river by encroaching the major part of the river basin. 26. As stated above, under the doctrine of "public trust", duties are cast on the State Government to make the gift of the nature freely available to everyone irrespective of the status and life and also the doctrine enjoins upon the Government to protect the resources for enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. In that context the Supreme Court vide para 39 of the SCC in Kamal Nath's case (supra) directed the state as thus: .... 27. Today's society interaction with the nature is also extensive that environmental question has assumed proportions affecting all humanity. Where an administrative action or order of the Government is alive to the various considerations requiring throughout and deliberation and has arrived at a conscious decision after taking them into account, it may not be for the court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind irrelevant considerations influence the decision, the court may interfere in order to prevent a likelihood of prejudice to the public. When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulder and says that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases the court may go further, but how much further must depend on the circumstances of the case, the Court, may always give necessary directions. (Ref. decision of the apex court in: Environment Protection Committee Vs. Union of India (UOI) and Others, 28. From the ratio laid down by the Apex Court in Sachidanand Pandey's case (supra), it is clear that when the Court is called upon to give effect to the directive principles and fundamental duties, the court should not leave the matter to the executive authorities, which is the policy making authority and the Court is bound to examine appropriate considerations which are borne in mind and irrelevancy excluded in taking decision of the executive authorities for giving effect to the directive principle and fundamental duties. The Court may always give necessary directions. 29. In the present case, the excuse for the Respondent No. 5, Imphal Municipal Council for their failure to discharge their obligatory functions as provided under Section 37 of the Manipur Municipal Act, 1984 was paucity of funds. The Apex Court in Dr. B.L. Wadehra Vs. The Court may always give necessary directions. 29. In the present case, the excuse for the Respondent No. 5, Imphal Municipal Council for their failure to discharge their obligatory functions as provided under Section 37 of the Manipur Municipal Act, 1984 was paucity of funds. The Apex Court in Dr. B.L. Wadehra Vs. Union of India and others, (1996) 2 AD 478 held that it is mandatory for the Delhi Municipal Corporation (MCD) and New Delhi Municipal Council (NDMC) to perform their duties to collect and dispose of garbage/wastes generated from various sources in the city. The Delhi Municipal Corporation Act (16 of 1957) and New Delhi Municipal Council Act, 1994 further provided that apart from the right guaranteed under the Constitution of India, residents of Delhi have a statutory right to live in the clean society. Non-availability of funds, inadequacy or inefficiency of the staff, insufficiency of the machinery etc. cannot be pleaded as ground for non-performance of their statutory obligations. The Supreme Court in Dr. B.L. Wadehra's case (supra) had directed the Delhi Municipal Corporation (MCD) and the New Delhi Municipal Council (NDMC) to discharge their mandatory duties under the said Act.... 32. For the foregoing discussions and also under the "doctrine of Public Trust" the state respondent have the bounden duty to protect the Nambul River evicting the encroachers on its eastern banks of/basin of the river from Maharani bridge to Keishamthong Bridge and the respondent No. 5 Imphal Municipal Council shall discharge its obligatory functions and duties as provided under Section 37 of the Manipur Municipalities Act, 1994 for which sufficient funds, more particularly the fund for carrying out the bounden duties of the Respondent No. 5 mentioned in above para 4, 13, 14, 15 and 18 should be made available by the State Government. The State Government shall also make available dumping sites of the garbage/waste materials collected by the respondent No. 5 from the Dustbins, the market area and Municipal areas. The amount of funds required shall be decided after due deliberation of the Imphal Municipal Council and the State Government expeditiously. 33. Under the fundamental duties, as defined under Article 51-A of the Constitution of India, every citizen has to protect and improve the environment including the forest, lakes, river, wild life and to have compassion for the living creatures. The amount of funds required shall be decided after due deliberation of the Imphal Municipal Council and the State Government expeditiously. 33. Under the fundamental duties, as defined under Article 51-A of the Constitution of India, every citizen has to protect and improve the environment including the forest, lakes, river, wild life and to have compassion for the living creatures. The encroacher on the river bank and river basin of the Nambul river on its eastern bank from Maharani bridge to Keishamthong bridge, who utterly fail to discharge the fundamental duties under the Constitution of India, are required to be punished severely under the relevant provisions of law and they all be evicted. Since the steps are to be taken up by authorities are for betterment of the society, there should be no sympathy in evicting them from the river banks and River basin of Nambul river. Anybody found discharging effluents from the private latrines or/effluents and dumping/disposing solid wastes to the Nambul river are to be punished severely under the law and shall also be stopped immediately. The State Government and the Imphal Municipal Council are ordered accordingly. The whole exercise of eviction of the said encroachers shall be completed within a period of four months from the date of receipt of certified copy of this judgment and order. The registry is directed to send the copies of this judgment and order by a Special Messenger to: (1) The learned Advocate General, Manipur, (2) The Chairperson, Imphal Municipal Council, (3) Chairperson, Manipur Pollution Control Board, Lamphelpat, Imphal. (4) Chairman, PDA, Manipur Imphal (5) The Chief Secretary, Government of Manipur. (6) The Director General of Police, Manipur, Imphal (7) The Secretary (MAHUD), Government of Manipur for necessary action." 13. It has been brought to the notice of this Court that the directions in Environment Protection Committee's case (Supra), had been complied with by the State Govt. i.e. State of Manipur, represented by Secretary, Environment & Forest, Imphal, Secretary, Municipal Administration, Housing & Urban Development (MAHUD), Imphal, Imphal Municipal Council and the Manipur Pollution Control Board. 14. The Apex Court in M.C. Mehta Vs. Kamal Nath and Others, AIR 2002 SC 1515 imposed a costs of Rs. 10 lakhs to the Motel i.e. Span Motel Pvt. Ltd. to whom directions had been made in M.C. Mehta's case (Supra) reported in M.C. Mehta Vs. Kamal Nath and Others, as an exemplary damages. 14. The Apex Court in M.C. Mehta Vs. Kamal Nath and Others, AIR 2002 SC 1515 imposed a costs of Rs. 10 lakhs to the Motel i.e. Span Motel Pvt. Ltd. to whom directions had been made in M.C. Mehta's case (Supra) reported in M.C. Mehta Vs. Kamal Nath and Others, as an exemplary damages. Para 9 of the M.C. Mehta Vs. Kamal Nath and Others, read as follows:-- "9. The question remaining for further consideration relating to the award of exemplary damages is only as to the quantum. The various laws in force to prevent, control pollution and protect the environment and ecology provide for different categories of punishment in the nature of imposition of fine as well as or imprisonment or either of them, depending upon the nature and extent of violation. The fine that may be imposed alone may extend even to one lakh of rupees. Keeping in view all these and the very object underlying the imposition of imprisonment and fine under the relevant laws to be not only to punish the individual concerned but also to serve as a deterrent to others to desist from indulging in such wrongs which we consider to be almost similar to the purpose and aim of awarding exemplary damages, it would be both in public interest as well as in the interests of justice to fix the quantum of exemplary damages payable by Span Motels Pvt. Ltd. at Rupees Ten lakhs only. This amount we are fixing keeping in view the undertaking given by them to bear a fair share of the project cost of ecological restoration which would be quite separate and apart from their liability for the exemplary damages. The question relating to the said quantum of liability for damages on the principle of "polluter pays", as held by this Court against the Span Motels Pvt. Ltd. and undertaken by them, will be determined separately and is left open for the time being. The amount, of special damages of Ten lakhs of rupees, shall be remitted to the State Government in the Department of Irrigation and Public Health to the Commissioner/Secretary for being utilized only for the flood protection works in the area of Beas river affected by the action of Span Motels Pvt. Ltd. 15. The amount, of special damages of Ten lakhs of rupees, shall be remitted to the State Government in the Department of Irrigation and Public Health to the Commissioner/Secretary for being utilized only for the flood protection works in the area of Beas river affected by the action of Span Motels Pvt. Ltd. 15. For the foregoing reasons and discussions, this Court directs: (i) The respondents No. 4 & 5 are to remove the cement slab over the said natural stream and the boundary wall encroaching the stream constructed by the respondents No. 6 & 7 within four weeks from the date of receipt of a certified copy of this judgment and order; (ii) The respondent No. 3 (Deputy Commissioner (Revenue) East Khasi Hills District, Shillong shall extend all necessary assistance to the respondents No. 4 & 5 in taking up steps in pursuance with the above direction No. (i) and; (iii) The petitioner shall not dump garbage into the said natural stream and an undertaking in this regard shall also be obtained from the petitioner by the respondents No. 4 & 5. The petitioner is further directed to put up necessary arrangement or structure so as to prevent the staff or students of the college from dumping garbage into the said natural stream within four weeks' from the date of receipt of a certified copy of this judgment and order." 16. The respondents No. 4 & 5 shall complete the whole exercise in pursuance to the above directions within a period of four weeks from the date of receipt of a certified copy of this judgment and order. The respondents No. 6 & 7 are also directed to bear all the expenses for removing the unauthorized construction/encroachment made by them by the respondents No. 4 & 5. In case of failure on the part of any party, a cost of several lakhs of Rupees shall be imposed, taking cue of the decision of the Supreme Court in M.C. Mehta's case (Supra) i.e. M.C. Mehta Vs. Kamal Nath and Others, (1997) 1 SCC 388 , to the defaulting party. 17. With the above directions, this writ petition is disposed of.