THE September of 1995 left its mark on the Kullu-Manali valley in Himachal Pradesh (HP) in more ways than one, While unprecedented rains and an angry Beas river caused widespread havoc in the hills, the aftermath was marked by the exposure of a tale of alleged corruption and nepotism. On February 25, 1996, the Indian Express reported that Span Resorts, owned by Span Motels Pvt Ltd (SMPL), had 'diverted' the Beas - after the floods - by creating a new channel. The report indicated that Kamal Nath, as the Union minister of environment and forests, was instrumental in regularizing forest land encroached upon by SMPL. It also disclosed that Nath's relatives were the promoters of SMPL.

A public interest litigation (PIL) followed. On December 13, 1996, the SC ordered the cancellation of forest land ]eased to the motel, directed Nagpur's National Environmental Engineering Research Institute (NEERI) to assess the damage caused by SMPL and issued a show-cause to SMPL as to why it should not pay for the damages, But SMPL's direct responsibility for the damages remains debatable (Down To Earth, Vol 5, No 18).

The judgment
In delivering its ruling, the SC laid down the principle of 'doctrine of public trust' which implies that all natural resources were common property, held by the government in trusteeship for the free use of people. Declaring that the Himachal government had committed patent breach of public trust by leasing an ecologically fragile land to the hotel management, the SC

• quashed the deed of 27.2 bighas (2.22 ha) of forest land leased to SMPL in December 1993 by the state forest department; the HP government executed the order on February 25, 1997;

• directed NEERI to "inspect the area and if necessary, 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 estimated the cost to be Rs 4.645 crore;

• concluded that the motel was to pay compensation for the restitution of the area's environment;

• directed the motel not to discharge untreated wastewater into the river, and asked the government to inspect other hotels in the area to prevent similar discharges.

... and its impact
ON ENVIRONMENT: The judgment concerned itself with only a one-km stretch of the Beas. The floods and monsoons had ravaged the entire river bed. The river's fury can also be ascertained from the manner it devastated a cluster of pine trees near Manali. Apart from a few municipalities like Patlikhul which made revetment works on the river-banks and undertook repair work of the national highway, little else has been done. Interestingly, the local population carries on its ecologically destructive practices on the river's slopes. Only a few trees remain, and these too are fast disappearing due to local demand for firewood.

ON GOVERNMENT AGENCIES: The state forest department has taken over the 27.2 bigha-plot of land which had been leased to SMPL. The basis of quashing the lease deed to SMFL Was the fact that the land - classified as 'banjar IIIrd class' (a classification of infertile land) - had been encroached upon by the motel. As directed by the SC., the HP pollution control board has conducted a study of Kullu and Manali towns, and has asked all hotels not to discharge untreated sewage into the Beas.

What the law missed
In its judgment, the court held SMPL responsible for having degraded the environment by its "illegal constructions and callous interference with the natural flow of the Beas". While SMPL may have carried out bank protection work and planting of trees before obtaining appropriate clearances, the conclusion that this was responsible for degrading the environment could be a hasty one. Central pollution control board (CPCB) and NEERI teams, entrusted with preparing a report, failed to draw similar conclusions. "The works executed (by SMPL) in 1993 were bank protection works, not so as to change the regime or the course of the river. A medium flood occurred in 1994. Partly due to the protection works, no appreciable damage occurred during this flood. The main current still continues on the left bank," noted the CPCB report. The bank protection work had commenced after the 1988 floods. SMPL insists that it had obtained verbal permission from the state government at the time. The court dismissed SMPL's efforts to protect its work (especially the bank protection work) as the company had commenced this work well before it had procured clearance from the divisional forest officer, Kullu.

The work SMPL had undertaken while 'encroaching' on forest land - planting trees - also needed to be seen more pragmatically. There is difference between felling trees and planting them; SMPL deserved to be castigated and penalised if it felled trees, but perhaps not for tree-planting. SMPL could have been asked to go ahead with the planting of trees, without being granted a lease deed.

In fact, the then minister of environment and forests, Kamal Nath, can be held guilty of treating the regularisation of SMPL's tree-planting exercise as an isolated incicdent - one in which he had a personal interest. Instead, he should have treated this as a policy issue and changed forest regulations in such a way that not just SMPL but anybody could plant trees on government forest lands without facing prosecution. Today, the laws are such that a rural community or villager can be prosecuted if he or she dares to plant trees on deforested government land. The laws of the land should prevent tree-felling, not tree-planting. Here, the SC failed to take into account this ludicrous dimension of the current governance of India's forest estate.

Thus, the PIL failed to ascertain the following things:
• Whether the river had indeed been diverted;

• Whether this alleged diversion had indeed damaged local environment;

• Whether the penalty imposed by the state forest department was inadequate or in contravention to the Forest (Conservation) Act, 1980; and

• Whether there was cause for concern over the manner in which the forest lands had been regulansed.

There were some other issues which both the PIL and the judgment failed to notice. For instance, who was to be blamed for the extensive damages the Beas and the monsoons of 1995 had caused on the remaining course of the river? Also, neither the SC nor the CPCB or NEERI took into account the fact that the slopes along the river had been systematically denuded by the locals, a practise that could well have been a cause for the river banks to be easily washed away.