The Doctrine Extended: The Beach, the Tank and the Park

In one line

From a river to a beach path, an ancient irrigation tank and a municipal park, and the doctrine gets stronger as the resource gets smaller.

The beach, and the right of access

Fomento Resorts and Hotels Ltd v. Minguel Martins, AIRONLINE 2009 SC 694; (2009) 3 SCC 571, decided 20 January 2009 by B.N. Agrawal and G.S. Singhvi JJ.

Facts. Land at Vainguinim beach in Goa was acquired for a hotel company on the footing that the work would be useful to the public, and an agreement required that access to the beach be provided. The company obstructed the traditional access used by villagers and fishermen and sought to shift it.

Held. The public trust doctrine extends to the sea-shore and to the access which the public has traditionally enjoyed to it; the State and its instrumentalities hold such resources as trustees and cannot allow them to be appropriated by a private party; acquisition under section 40(1)(b) of the Land Acquisition Act, 1894, requires the work itself to be directly useful to the public and not merely its product; and the Court directed that the access be kept open and maintained, with a specified minimum distance from the hotel's gas tank.

Why it matters. It carries the doctrine from a river to the sea-shore and to a right of access, which is the widest reach it has in Indian law. Notice what is protected: not the beach's ownership but the path to it. The Institutes' rule that no one is forbidden access to the seashore arrives in Indian law here.

The tank, and the ground water

Intellectuals Forum, Tirupathi v. State of Andhra Pradesh, AIR 2006 SC 1350; (2006) 3 SCC 549, decided 23 February 2006 by Ruma Pal and Ar. Lakshmanan JJ.

Facts. Two ancient tanks at Tirupathi were alienated by the State for housing: the bed of the Avilala tank to the Tirupathi Urban Development Authority and the Andhra Pradesh Housing Board under G.O. Ms. No. 84 of 28 January 1994, and 150 acres of the bed of the Peruru tank to the Tirumala Tirupathi Devasthanam under G.O. Ms. No. 181 of 15 March 1991. A citizens' forum challenged the alienation; the High Court dismissed the writ petitions and the matter came up on appeal.

Held. The doctrine is part of Indian law and the State as trustee is under an affirmative duty to protect the resources of the people; the tanks were part of the water regime of the area and their alienation had to be scrutinised at a high standard. Relying on the findings of the expert committee it had appointed, the Court declined the prayer for the complete restoration and revival of the two tanks but gave directions for each. At the Peruru tank: no further construction; the supply channel to be cleared; a percolation tank with recharge shafts on an area increased to at least 50 acres; rooftop rainwater harvesting for every house already built by the Devasthanam; a complete ban on abstraction of ground water, with no borewell or tubewell for any purpose; and piezometers. At the Avilala tank: no further construction; rooftop rainwater harvesting for every house already built by the Housing Board and the Development Authority; recharge of all storm water in the colonies already built; no borewell or tubewell; the forty acres reserved for the Government not to be developed in any way leading to concretisation of the ground surface; and piezometers to monitor the effect on the ground water regime.