Doctrine Of Public Trust And Protection Of Natural Resources In India.docx

Topic: Public Trust Doctrine

Submitted to:

Submitted by:

Prof. Samraggi Chakraborty

Jatin Bakshi BALLB 3rd Year URN No:-2016-B-27051998

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TABLE OF CONTENTS

1. Abstract.....................................................................................................................03 2. Introduction...............................................................................................................04 3. Objectives..................................................................................................................05 4. Methodology..............................................................................................................05 5. Scope and history of public trust…………………………………………………..05 6. The doctrine of public trust in American legal system……………………………06 i. Upholding the Doctrine under the State Constitutions…………………………07 7. The doctrine of public trust in Indian legal system………………………………..08 8. Doctrine of public trust in various states of India…………………………………13 9. Conclusion………………………………………………………………………....15 10. References………………………………………………………………………….16

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ABSTRACT The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use. The ancient laws of the Roman Emperor Justinian held that the seashore (defined as waters affected by the ebb and flow of the tides) not appropriated for private use was open to all. This principle became the law in England as well. In the Magna Carta in England centuries later public rights were further strengthened at the insistence of the nobles that fishing weirs which obstructed free navigation be removed from rivers. These rights were further strengthened and subsequently became part of the common law of the United States. The public trust applies to both waters influenced by the tides and waters that are navigable in fact. The public trust also applies to the natural resources (mineral or animal) contained in the soil and water over those public trust lands.

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DOCTRINE OF PUBLIC TRUST AND PROTECTION OF NATURAL RESOURCES IN INDIA “If conservation of natural resources goes wrong, nothing else will go right.” -M.S. Swaminathan

INTRODUCTION Natural resources are commonly referred to the resources that are a gift of nature. They are produced naturally without the intervention of human beings. Sunlight, water, soil and air are some of the examples of natural resources. These are available in abundance in nature. Some of the examples of natural resources include water, air, sunlight, wood, minerals and natural gases. While many of the natural resources are available abundantly in nature others take time to form and are not available as freely. For economic growth of a country, the existence of natural resources in abundance is essential. A country which is deficient in natural resources will not be in a position to develop rapidly. As pointed out by Lewis, “Other things being equal, men can make better use of rich resources than they can of poor,”1 For economic growth the existence of abundant natural resources is not enough. What is essential is their proper usage through improved techniques so that there is little wastage and they could be utilized for a longer time and that’s where the Doctrine of Public Trust comes into play. Basically, the ancient Roman Empire developed this legal theory i.e. Doctrine of the Public Trust. 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. Public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources. It is a common law concept, defined and addressed by academics in the United States and the United Kingdom.2

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http://www.yourarticlelibrary.com/essay/role-of-natural-resources-in-economic-development/39593 (visited on 12th Feb, 2019 at 8:09 A.M.) 2 http://www.legalserviceindia.com/articles/ptdoc.htm

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OBJECTIVES 1. To understand the concept of Doctrine of Public Trust. 2. To analyze the concept of Public Trust in Indian Legal system. 3. To analyze the doctrine of the Public Trust in the American and Indian legal system. 4. A study of doctrine of Public Trust in various states of India.

METHODOLOGY The researcher has adopted the doctrinal method of study. The study has firstly tried to present the background of the subject matter in brief and then the main part of the study has been dealt with. The study concludes with the conclusion.

SCOPE AND HISTORY OF PUBLIC TRUST The history of the doctrine is traced to the Roman emperor, Justinian. In Book II of his Institutes, Emperor Justinian proclaims: By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore.3 The public trust doctrine “is based on the notion that the public holds inviolable rights in certain lands and resources, andthat regardless of title ownership”, and that “the state retains certain rights in such lands and resources in trust for the public.”This conception of public rights has two ancient bases. “First, under Roman law the air, running water, the sea, and consequently the sea shore’ were the property of no man but rather were common to all.” “Second, early English common law provided that title to tidelands had two components”: “the King’s right of jus privatum, which could be alienated, and the Jus publicum rights of navigation and fishing, which were held by the King in inalienable trust for the public”. Various Public properties; including rivers, the seashore, and the air, are held by the government in trusteeship for the uninterrupted use of the public. The Sovereign could not make clandestine transfer of public trust properties which the public had a right to enjoy to any private parties if such transfer when effected could interfere with the interest of the public at large. Concerted efforts have been adopted to incorporate this doctrine to protect an array of public properties like non traversable waters, public land, and sand parks and to relate it to both public and private lands. The

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The Public Trust Doctrine' available at : http://www.slc.ca.gov/policy_statements/public_trust/public_trust_doctrine.pdf (visited on 13th Feb 2019 at 8:43 A.M.)

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Supreme Court of California in its celebrated decision in Illinois Central R.R. Co. v Illinois4 has broadened the definition of public trust by including ecological and aesthetic considerations. It would be incorrect to say that public trusts doctrine is not without its fair share of disapproval. However despite the staunch criticism it is being increasingly related to sustainable development, the precautionary principle and bio-diversity protection and a host of other new environmental law principles.The doctrine links the right of public access to public trusts with a precondition of accountability while making decisive decisions on such resources. Additionally, not only can the doctrine be put to use for the protection of public from improper application of planning law but also faulty environmental impact assessment. 5

THE DOCTRINE OF PULIC TRUST IN AMERICAN LEGAL SYSTEM The classic American conception of the public trust doctrine is found in the celebrated decision in Illinois Central Railroad Co. v. Illinois6 “where the Supreme Court invalidated Illinois grant of title to land under Lake Michigan as a violation of the state’s common law public trust obligations.” In that case, the legislature granted lands underlying Lake Michiganto a private company. A few years later, the legislature had second thoughts about the grant and repealed it. In an action brought by the state to have the original grant declared invalid, the Supreme Court of the United States stated that the title to the lands given in grant were different in character from that which the state holds in lands …state that they may enjoy the navigation of the waters, carry on commerce over them, and have the liberty of fishing therein freed from the obstruction or interferences of private parties. Though the Court did not prohibit the disposition of trust lands to private parties, it stated that the state cannot divest itself of authority to govern the whole of an area in which it has responsibility to exercise its police power; to grant the entire waterfront of a major city (Chicago) to a private company is, in effect, to abdicate legislative authority over navigation. Subsequently, the superior Courts of some State like Massachu settshave modified the doctrine to suit the peculiar status and uses of public resources prevalent in those states.7

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Illinois Central R.R. Co. v Illinois (1892) 146 U.S. 387, 452 https://www.lawteacher.net/free-law-essays/public-law/doctrine-of-public-trust.php (visited on 25th Feb, 2019 at 9:04 P.M.) 6 146 u.s. 38(1892) 7 http://www.nlsenlaw.org/environmental-protection/articles/the-doctrine-of-public-trust-and-environmental-protection-in-india/ (visited on 25th Feb, 2019 at 9:20 P.M.) 5

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In 1970, however, Professor Joseph Sax gave new vigor to the doctrine by suggesting that the doctrine could be expanded and utilized by public spirited citizens to bring out environment litigation. 8 In his view, “the doctrine required courts to review with skepticism any government action that restricted or burdened public access to potentially any natural resource.” Since the publication of his initial work on the public trust, Courts in USA have applied the doctrine to require public access to various resources other than navigable water and the lands beneath, including the dry sand areas of a beach, portage routes near rivers, and wildlife. 9 Many have also joined ‘the public trust cause’, suggesting that the doctrine might be extended to resources such as wildlife and public lands. Others, however, dismayed by the resurgence of the public trust doctrine, criticized it on grounds that it lacks a coherent doctrinal basis, fails to reflect current environmental concerns, requires a judiciary which has what can be called ‘a pro-environment bias’, and hence are undemocratic.10

Upholding the Doctrine under the State Constitutions In the United States after the Illinois decision and the general popularity that has emerged as a result many of their state Constitutions provisions that dealt with protection of the environment was constructed with the doctrine of public trust in mind. With the constitutionalization and expansion of the doctrine the state could go around the argument that there is no doctrinal foundation to the laws of that state as now the constitution will become the doctrine. The argument that the successful implementation of the doctrine requires a pro environment judiciary holds no ground. Lastly, the criticism that the doctrine is undemocratic can be dispelled by constitutionalizing public trust values. On the contrary, incorporating public trust values in a state constitution reflects the state’s democratic choice to make a long-term commitment to those values.11 In at least a few states in America, like we have explained the doctrine has transformed from a guarantee under common law to broader Constitutional requirement for the use and preservation of the environment.12

J o s e p h L . S a x , ‘ P u b l i c T r u s t D o c t r i n e i n N a t u r a l R e s o u r c e La w: E ffe c t i v e J u d ic i a l I n t e r v e n t io n ’, 6 8 Michigan L. Rev. 471 (1970) 8

Divan Shyam, ‘Environment Law and Policy in India’, OUP, 2nd Ed., 2004 Ibid note 9 11 Id 12 Id 9

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THE DOCTRINE OF PUBLIC TRUST IN INDIAN LEGAL SYSTEM The Public Trust Doctrine has its origins in Roman law. It has been extended in recent years, placing a duty on the state to hold environmental resources in trust for the benefit of the public. At its widest, it could be used by the courts as a tool to protect the environment from many kinds of degradation. In some countries, the doctrine has formed the basis of environmental policy legislation, allowing private rights of action by citizens for violations by the state (directly or indirectly) of the public trust. The Rule of Law runs close to the rule of life and the Indian Constitution, in its humanist vision, has made environmental-ecological preservation a fundamental value. The higher jurisprudence of Article 21 of the Constitution (right to life) embraces the protection and preservation of nature's gift without which life ceases to be viable and human rights become a simulacrum. In other words, this right to life under article 21 has been extended to include the right to a healthy environment and the right to livelihood. The third aspect of the right to life is the application of public trust doctrine to protect and preserve the public land. When the Indian courts have applied the public trust doctrine, they have considered it not only as an international law concept, but one, which is well established in their national legal system. Accepting public trust doctrine as a part of common law, the Indian courts have applied this explicitly in three recent cases, the first one in 1997 and two cases in 1999, including the case under consideration. Articles 48A and 51A of the Constitution also furnish the principles of jurisprudence, which are fundamental to our governance under the Rule of Law. The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others13where the Indian Supreme Court applied public trust with regard to the protection and preservation of natural resources. In this case, the State Government granted lease of riparian forestland to a private company for commercial purpose. The purpose of the lease was to build a motel at the bank of the River Beas. A report published in a national newspaper alleged that the motel management interfered with the natural flow of the river

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(1997) 1 SCC 338

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in order to divert its course and to save the motel from future floods. The Supreme Court initiated suo motu action based on the newspaper item because the facts disclosed, if true, would be a serious act of environmental degradation. The Supreme Court in M.C. Mehta v. Kamal Nath stated that the Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and forests have such great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. The court observed that: “Our Indian legal system, which is based on English common law, includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources, which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. As rivers, forests, minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. Thus, the Public Trust doctrine is a part of the law of the land. The court also ruled that there is no any justifiable reason to rule out the application of the public trust doctrine in all ecosystems in India.” In this case, the Supreme Court was faced with the classic struggle between those members of the public who would preserve our rivers, lakes and open lands in their pristine purity and those charged with administrative responsibilities who find it necessary to encroach to some extent upon open land.... It stated that the public bodies should apply public trust doctrine when there is no legislation to protect the naturalresources. In their view, applying the polluter pays principle, the Court directed the developer to pay compensation by way of cost for the restitution of the environment and ecology of the area. It had no difficulty in holding that the Himachal Pradesh government committed a patent breach of public trust by leasing out the ecologically fragile land to be developed. Chronologically, the second case on this subject is Th. Majra Singh v Indian Oil Corporation14, where the petitioner objected to the location of a plant for filling cylinders with liquefied petroleum gas. It was held that the High Court can only examine whether authorities have taken all precautions with a view to

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AIR 1999 J K 81

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see that laws dealing with environment and pollution have been given due care and attention. Though the case was decided on the basis of the precautionary principle, it confirmed that the public trust doctrine has become part of the Indian legal thought processes. In the High Court's opinion, the doctrines is a part and parcel of Article 21 of the Constitution and that there can be no dispute that the State is under an obligation to see that forests, lakes and wildlife and environment are duly protected. According to the Court, the idea that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the law of the land. In the third case, M.I. Builders v Radhey Shyam Sahu15, the Supreme Court has applied the public trust doctrine. Here, the Lucknow Nagar Mahapalika (i.e. Lucknow City Corporation) granted permission to a private builder to construct an underground shopping complex was against the municipal Act and Master plan of the city of Lucknow. The builder was supposed to develop the site at its own cost and then to realize the cost with profit not exceeding more than 10% of the investment in respect of each shop. Under the terms of the agreement, full freedom was given to the builder to lease out the shops as per its own terms and conditions to persons of its choice on behalf of the Mahapalika. The builder was also given the right to sign the agreement on behalf of the Mahapalika and was only required to a copy to the Mahapalika after its execution. Both the builder and the Mahapalika were to be bound by the terms of thatagreement. When the matter was challenged, the High Court set aside and quashed the agreement between Mahapalika and the builder, and the relevant order of the Mahapalika permitting such construction. The Court ordered Mahapalika to restore the park to its original position within a period of three months from the date of the judgment and until that was done, to take adequate measures and to provide necessary safeguards and protections to the users of the park. The High Court took the accounts of the fact that Mahapalika never denied the historical importance of the park and the preservation or maintenance of the park was necessary from environmental angle. However, the only reason advanced by Mahapalika for the construction of the underground commercial complex was to ease the congestion in the area. The High Court took judicial notice of the conditions prevailing at the site and found that the construction of an underground market would further congest the area. It added that the public purpose, which is alleged to be served by construction of the underground commercial complex, seemed total illusory.

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(1999) 6 SCC 464

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On appeal by the builders, the Supreme Court held that the terms of agreement showed that the clauses of the agreement are unreasonable, unfair and atrocious. The Mahapalika, as a trustee for the proper management of the park, has to be more cautious in dealing with its properties. The Court added that “the land of immense value had been handed over to it to construct an underground shopping complex in violation of the public trust doctrine. The maintenance of the park, because of its historical importance and environmental necessity, was in itself a public purpose.” Therefore, the construction of an underground market in the grab of decongesting the area was wholly contrary and prejudicial to the public purpose. By allowing the construction, Mahapalika has deprived its residents, and also others, of the quality of life to which they were entitled to under the Constitution and under the Municipal Act.The agreement was opposed to public policy and not in the public interest. Mahapalika allowed the commercial shopping complex to be build upon a public park in clear defiance of the Uttar Pradesh Municipal Corporation Adhiniyam 1959. In addition, the Mahapalika violated the public trust doctrine and the Court ordered the demolition of the unauthorized shopping complex. The Supreme Court, in M.I. Builders reconfirmed that “the public trust doctrine is established in the Indian legal system and asserted that the public authorities should act as trustees of natural resources.” However, it is clear from all these cases that the court did not confer any property right on the public under the trust. While applying the public trust doctrine, the Court in all these cases, took account of either the polluter pays the principle or the precautionary principle or both. In the Kamal Nath case, the Supreme Court and in the Th. Majra Singh case, the High court applied the public trust doctrine along with other principles such as the precautionary principle and polluter pays principle. Moreover, in Kamal Nath case, the Supreme Court directed, inter alia, that the lease be quashed and the full cost of restoration of the land to its original natural condition be paid by the Motel. The Court also ordered the Motel to remove all the construction on the riverbed and the banks of the River Beas. However, in Th. Majra Singh, the High court found that the Indian Oil Corporation (IOC) had taken all the precautions and followed all the safeguards required by the law. Giving to the go ahead to the installation of the LRG plant located in the vicinity of a polluted village, the Court ordered the IOC to take due precautions, so that pollution is not caused to the environment and to plant fast growing trees like poplar eucalyptus. In the M.I. Builders case, the Supreme Court ordered Mahapalika to demolish the unauthorized shopping complex and to restore the park to its original beauty. It is clear that in these cases, the Court adopted a balanced development approach.

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It is interesting to note that in the Kamal Nath case the Supreme Court held that even “if there is a separate and a specific law to deal with the issue before the Court, it may still apply public trust doctrine.” If there is no suitable legislation to preserve the natural resources, the public authorities should take advantage of this doctrine in addition to the fact that there was a branch of municipal law. Secondly the Supreme Court in M.I.builders, however, stated that public trust doctrine has grown from article 21 of the constitution. By attaching this doctrine to the fundamental right to life, the Supreme Court appears to be willing to diversify the application of this doctrine. It seems likely that the court would give precedence to right to life when the public trust doctrine, as a part of right to a safe and healthy environment, is challenged by any other fundamental rights. Thirdly by ordering the Mahapalika to restore the park to its original beauty, the Supreme Court redefined the duties of a trustee to its beneficiaries the users of the park. In effect, it aligned the local authorities duty as a trustee with the concept of intra-generational and inter-generational equity. Fourthly, the case came before the court as a judicial review and not as challenge against the decision of the government from a beneficiary. As this doctrine acts as a check upon administrative action by providing a mechanism for judicial or resource allocation decisions. Therefore, public trust doctrine could serve as an additional tool for environmental

protection

particularly

where

administrative

discretion

has

been

abused.

In case of K. M. Chinnappa v. Union of India16 a petition challenging the renewal of mining lease granted to Kudremukh Iron Ore Company in the Kudremukh National Park. The Supreme Court held that the pristine glory of the natural resources cannot be allowed to be eroded or encroached unless the Courts find it necessary in good faith for public good and in the public interest. In case of State of West Bengal v. Kesoram Industries Ltd.17 This Doctrine was once again followed wherein it was observed that deep underground water belongs to the State in the sense that the Doctrine of Public Trust extends thereto. Ground water is considered as a part of national wealth and it belongs to the entire society. Water is a nectar sustaining life on earth and thus the State has a duty to protect ground water against excessive exploitation.

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AIR 2003 SC 724 (2004) 10 SCC 201

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In case of Intellectual Forum v. State of A.P 18The Court held that natural resources which include lakes are held by the State as a trustee of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust.

DOCTRINE OF PUBLIC TRUST IN VARIOUS STATES IN INDIA Kerala In Kerala Plachimada Panchayat has issued orders refusing permission to extract ground water due to environmental problems in the nearby areas. Following the principles of Public Trust Doctrine court has upheld the steps taken by the Panchayat. The State and its instrumentalities should act as trustees of this great wealth. State has got a duty to protect ground water against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Art 21 of the Constitution. Coca Cola Company has no right to extract much of national wealth and the extraction of ground water is illegal, the Court held. Kerala State Government has framed legislation for protecting the fragile forest land following the said principle of public trust doctrine. Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2002 was framed following the above principles.19

Andhra Pradesh Andhra Pradesh State Government has issued notification prohibiting conversion of agricultural land for another purpose namely for irrigation or for some other purpose whatsoever by the State/Board of Revenue. Andhra Pradesh HC20 has held that, “the same cannot be said to be bad in law. Deep underground water belongs to the State in the sense that doctrine of public trust extends thereto.” A person who holds land for agricultural purpose may, subject to reasonable restriction that may be made by the State may have the right to use water for irrigational purposes and for the said purpose he may also excavate a tank. But under no circumstances, he can be permitted to restrict the flow of water to the

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(2006) 3 SCC 549 Perumatty Grama Panchayat v. State of Kerala W.P.(C) No. 34292 of 2003 also see Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.html (visited on 28h Feb, 2019 at 10:30 A.M.) 20 P.R Subhas Chandran v. Government of A.P. (2001 (5) ALD 771 (DB) 19

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neighboring lands or discharge the effluents in such a manner so as to affect the right of his neighbor to use water for his own purposes.21

Tamil Nadu Reiterating the principles of “Public Trust” sand mining was stopped. Madras HC directed to take appropriate action against the officers of the Government who permitted the illegal removal of the sand and causing damage to the river.22

Rajasthan Steps taken to acquire land which is the bed of a village. The same was challenged before the Rajasthan HC in a PIL.HC found that there is no necessity to invoke the urgency provisions and the principles of Public Trust has been highlighted.23

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Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.html (visited on 28th Feb, 2019 at 11 A.M.) Public Trust Doctrine available at: http://elaw.in/environ/pub_trust/index.html (visited on 28th Feb, 2019 at 12:17 P.M.) 23 Ibid 22

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CONCLUSION From the above discussions on the doctrine and various case laws, it is evident that the state is not the owner of the natural resources in the country but a trustee who holds fiduciary relationship with the people. By accepting this task the government is expected to be loyal to the interests of its citizens and to discharge its duty with the interest of the citizens at heart and involve them in decision-making process concerning the management of natural resources in the country. The Public Trust Doctrine may provide the means for increasing the effectiveness of environmental impact assessment laws. Thus, under this doctrine, the state has a duty as a trustee under art. 48A to protect and improve the environment and safeguard the forests and wildlife of the country. While applying art. 21 (right to life), the state is obliged to take account of art. 48A, a Directive Principle of State Policy. The state's trusteeship duties have been expanded to include a right to a healthy environment.

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REFRENCES

Cases Referred: 1. Perumatty Grama Panchayat v. State of Kerala W.P.(C) No. 34292 of 2003 2. P.R Subhas Chandran v. Government of A.P. (2001 (5) ALD 771 (DB) 3. State of West Bengal v. Kesoram Industries Ltd (2004) 10 SCC 201 4. Intellectual Forum v. State of A.P (2006) 3 SCC 549 5. K. M. Chinnappa v. Union of India AIR 2003 SC 724 6. M.C. Mehta v Kamal Nath and others (1997) 1 SCC 338

Online Sources: 1. http://elaw.in/environ/pub_trust/index.html 2. http://elaw.in/environ/pub_trust/index.html 3. http://elaw.in/environ/pub_trust/index.html 4. http://www.nlsenlaw.org/environmental-protection/articles/the-doctrine-of-public-trust-and-environmentalprotection-in-india/

5. https://www.lawteacher.net/free-law-essays/public-law/doctrine-of-public-trust.php 6. http://www.slc.ca.gov/policy_statements/public_trust/public_trust_doctrine.pdf 7. http://www.legalserviceindia.com/articles/ptdoc.htm 8. http://www.yourarticlelibrary.com/essay/role-of-natural-resources-in-economic-development/39593

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