Sachidananda Pandey Vs. State of West Bengal & Ors [1987] INSC 43 (11 February 1987)
Reddy, O. Chinnappa (J) Reddy, O. Chinnappa (J) Khalid, V. (J)
CITATION: 1987 AIR 1109 1987 SCR (2) 223 1987 SCC (2) 295 JT 1987 (1) 425 1987 SCALE (1)311
CITATOR INFO : R 1988 SC 157 (8,12) F 1989 SC 549 (15) R 1989 SC 860 (20) RF 1991 SC 983 (2)
ACT:
Environmental law-Interference by the Supreme Court with the policy decision of government, whenever a problem of ecology is brought before it, extent of-Constitution of India, 1950, Articles 32, 48A, 51A(g)--Whether the Government of West Bengal was not alive to the ecological considerations, particularly the question of the migratory birds and whether has shown such lack of awareness in making an allotment of land to boost tourism by construction of Five Star Hotel to the detriment of Zoological garden.
Cabinet Memoranda dated January 7, 1981 and Sep. 9, 1981 allotting land for the construction of Five Star Hotel to Taj Group of Hotels--Whether should contain every item considered and whether non-mention lead to adverse presumption that a particular point was not considered.
Natural justice, principle-Whether the principle of natural justice is said to be violated on the ground that those who are most interested in the Zoological garden were not heard before the decision was taken.
New plea in the Supreme Court for the first time--Public document, evidentiary value of--Documents received admitted and relied on both by the Single and Division Bench of the High Court--Plea of authenticity of the document and objection to its reception, cannot be allowed in an appeal under Article 136 of the Constitution.
The Bengal Public Parks Act, 1904, Preamble Sections 3 and 4 scope and applicability.
West Bengal Land Management Manual, 1977, Paragraphs 165, 166, 167, applicability of-Whether the procedure prescribed therein not being followed, the transfer of the land to Taj Group of Hotels is bad.
Disposal by Public auction or by inviting tenders Whether bound to be followed by the State, in pursuing the socio-economic objectives enshrined in the Constitution.
224 Public Interest Litigation, parameters delineation need for stressed.
HEAD NOTE:
There is in Calcutta, a Zoological garden located in Alipore, now almost the heart of Calcutta, on either side of Belvedere Road, one of Calcutta's main arterial roads, forty nine acres of land on one side and eight acres on the other. The main zoo is in the forty nine acres block of land.
The said eight acres of land was outside the Zoological garden and separated from it by a 80-100 feet road and is also known as the Begumbari land. The Begumbari land was given to the Zoological garden in '1880. According to a letter written on July 7, 1880 by the Assistant Secretary to the Government of Bengal in the Public works Department to Mr. L. Schwandler, Honorary Secretary Zoological garden conveying the sanction of the Lt. Governor for the transfer of the Begumbari land to the charge of the Committee of the Zoological Garden, on the terms agreed to by the Committee in their letter dated April 23, 1880, the conditions of the transfer were:
"(i) that the land is to be used for the purpose of acclimatization only;
(ii) that Carnivors are not to be kept on any part of it, on any account;
(iii) that the grounds are to be kept clear and neat;
(iv) that the land must be restored to the government if hereafter required, the Zoological Garden Committee being reimbursed for any expenditure they may have incurred in building there."
In this eight acres of land there are some old buildings and the vacant land was used for fodder cultivation, or raising flower nursery, as a sumping ground for huge garbages and as burial ground for dead animals.
In January, 1979, the Director General of Tourism Government of India addressed a letter to the Chief Secretary Government of West Bengal conveying the Resolution of the Tourism conference which was presided over by the Union Minister of Tourism and attended by several State Ministers and requesting that land in good location may be made available for construction of hotels in a drive to encourage tourism. In May, 1980, the Taj Group of Hotels came forward with a suggestion that they would be able to construct a Five Star Hotel. On September 29, 1980 and November 29, 1980, there were two notes by the Secretary of the Metropolitan Development Department to the effect that the I.T.D.C. was interested in a property known as the Hastings House Properly and that the Taj Group of Hotels who considered the Hastings House properly unsuitable may be offered four acres out of the eight acres of Begumbari land. On the same day the Taj Group of Hotels wrote to the Government of West Bengal stating that the proposed land could be seriously considered for construction of a hotel. Thereafter, 225 the Chief Minister along with the Minister of Tourism and the Minister for Metropolitan Development visited the site accompanied by the Director of the Zoo to apparently knew about the proposal right from the start. A note was then prepared by the Secretary, Metropolitan Development Department and put up to the Chief Minister for his approval. The Chief Minister approved the proposal and required it to be placed before the Cabinet. On January 7, 1981 a memorandum was prepared for the consideration of the Cabinet explaining the need for the more Five Star Hotels in Calcutta and the benefits flowing out of the construction and establishment of such Five Star Hotels and suggesting the lease of Hastings House Property to the I.T.D.C. Group and the Begumbari property to the Taj Group of Hotels. In regard to the Begumbari property, it was stated: "From the property of the Zoological Gardens on the Belvedere Road it is possible to carve out about four acres of land currently used for dumping garbage and also for growing grass for the elephants. It will be necessary and in any case advisable to shift the dumping ground. While adequate space can be made available for growing grass elsewhere in the same area." It was stated that the Finance and Tourism Departments had agreed to the proposal to lease the properties to the I.T.D.C. and the Taj Group respectively. It was stated that though the Forest Department had suggested that Salt Lake was a better place for establishing a Five Star Hotel, there was no demand for a Five Star Hotel in that area and the request for a hotel in Salt Lake was confined to a Three Star Hotel. Cabinet approval was sought for the offers to be made to the I.T.D.C. and to the Taj Group and for the constitution of a suitable Committee to undertake negotiations with the two groups.
On February 12, 1981, the Cabinet took a decision approving the proposal contained in the last paragraph of the Cabinet Memorandum, thus clearing the way for negotiations with the Taj Group.
Meanwhile the Public Undertakings Committee appointed by the West Bengal Legislative Assembly submitted a report on 14.2. 1981 about the Zoo. While suggesting that the government may consider abandoning the proposal to set up a hotel on the eastern side of the zoo, the Committee also referred to a proposal to establish a "Subsidiary Zoo" some slight distance from Calcutta and the request said to have been made for the allotment of 200 acres of land for that purpose.
The Chief Town Planner who visited the site at the request of the Secretary, Metropolitan Development Department and in the presence of the Director of the Zoo, suggested that 2 to 2-1/2 acres of land might be 226 made available for the Hotel.
On March 19, 1981 the Taj Group submitted a proposal to the government containing fairly detailed information about the tourism industry and its needs, the situation in Calcutta, the realities of Hotel construction the facts relating to what had been done in other cities, the benefits i]owing out of the construction of hotels and their own proposals for constructing a hotel in the four acres of land in Belvedere Road. Two alternative financial arrangements were suggested. The first alternative was the payment of annual rent on the basis of the valuation of the land, the second alternative was based on the concept of nett sales, nett sales being defined as sales after deducting all taxes and levies and service charges. The Metropolitan Development Department expressed a preference for the second alternative and suggested the constitution of a Committee. The Finance Department also approved. The Taj Group was invited to send the financial projection on the basis of the second alternative. Correspondence went on. On June 5, 1981 a Committee of Secretaries was formally constituted. In the meanwhile WEBCON, a West Bengal Government Consultancy Undertaking, was asked to examine the proposals and to advise the Government.
On June 11, 1981, the Managing Committee of the Zoo passed a resolution expressing itself against the proposal to construct a hotel on land belonging to the Zoo. Accepting the note put up by the Secretary Metropolitan Development Department on the said resolution the Chief Minister minuted that "if further facilities are necessary for the zoo, the government will provide for them." On June 25, 1981, the Managing Committee met again and passed another resolution by which they withdrew their earlier objections dated 11.6.1981.
On June 29, 1981, the Director of the Zoo, who was a party to all the proceedings etc. right from the beginning wrote to the Secretary of Animal Husbandry and Veterinary Services Department stating his objections to the proposal to lease the land for construction of a hotel.
On July 14, 1981, the WEBCON submitted its report and on the request of the Committee of Secretaries a further report was submitted on July 22, 1981. The report of WEBCON is a comprehensive report on various topics connected with the establishment of a Five Star Hotel in Calcutta. Among other things the report also suggested various financial alternatives and recommended the second alternative based on nett sales as the best.
227 Meanwhile negotiations with Taj Group proceeded apace.
The WEBCON submitted further reports. Taj Group suggested further modifications. On September 9, 1981 a detailed memorandum was prepared for cabinet discussion. Two alternative financial proposals were set out. A reference was made to the Committee of Secretaries who negotiated with the Taj Group of Hotels. Note was taken of the suggestion of the Negotiation Committee that the overall development plan for the environmental beautification, widening of approach roads, landscaping of Tolley's Nullah were responsibilities of the State Government and estimated to cost Rs.2 crores but that it was expected to be of considerable public benefit. Stress was laid on the direct and indirect economic activities which would be generated by the establishment of a five Star Hotel. Reference was also made to the report of WEBCON and it was noted that the projected profitability of the venture to the government was expected to be high. It was also mentioned that the Ministers, incharge of Tourism, Animal Husbandry, Land Revenue and Finance had seen the note and had agreed to it. On September 10, 1981 the Cabinet took the final decision to grant a ninety-nine years lease of the four acres of Begumbari land to the Taj Group of Hotels. On September 29, 1981 the Government of West Bengal officially conveyed its acceptance of the proposal of the Taj Group of Hotels for the construction of a Five Star Hotel. The terms and conditions of the lease were set out.
On January 7. 1982, there was a joint meeting of the Establishment and Finance sub-Committees of the Zoo and it was decided to recommend to the Committee of management that the demarcated area of four acres may be relinquished in favour of Animal Husbandry and Veterinary Services Department subject to the requirement that the zoo will continue to get the services and the facilities in the existing structures until they were reconstructed on the adjacent land. On January 11, 1982 the Managing Committee endorsed the view of the sub-committees and this was communicated to the government. On January 15, 1982, the Government of West Bengal wrote to the Land Acquisition Officer, with copies to the Taj Group of Hotels directing the Land Acquisition Officer to give possession of the land to the Taj Group of Hotels subject to their later executing a proper long term lease. It was mentioned in the letter that the construction of the Hotel should not be started till the lease deed was executed and registered.
Several other stipulations were also made. Though the stipulation was that the cost of the new construction was to be initially met by Taj Group of Hotels and later to be adjusted against the rent payable by Taj Group, the Taj Group later agreed to waive such reimbursement (in fact a total sum of Rs.30 lakhs has been spent by Taj Group of Hotels in connections with the reconstruction. Not only this. land in the extent of 288 square 228 meters out of the plot given to them was carved out and given hack for accommodating part of the reconstructed structures.
Pursuant to the letter dated January 15, 1982 possession was given to Taj Group on January 16, 1982. Thereafter an expert committee was constituted to supervise the construction of alternative facilities.
Five petitioners--a Trade Unionist, two life members of the Zoo, two other bonafide residents of Greater Calcutta, all lovers of wild life--filed a petition in public interest on 26.2.1982. Initially the relief sought was primarily to restrain the Zoo authorities from giving effect to the two Resolutions dated January 7, 1982 and January 17, 1982 to hand over the four acres to the Animal Husbandry Department of the Government. Subsequent to the filing of the writ petition a lease deed was executed by the Taj Group of Hotels in favour of the government. The Writ Petition was therefore amended and a prayer for cancellation was added.
While the writ petition was pending in the High Court, Late Smt. Indira Gandhi wrote a letter to Sri Jyothi Basu, the Chief Minister of West Bengal expressing the hope that he would not allow the Calcutta Zoo to suffer in any manner and would leave it intact. The Chief Minister in his reply letter dated 21.8.82 pointed out that:
(i) the four acres of land were agreed to be relinquished by the Committee of management of the Zoological Garden on condition that alternative arrangement were made for shifting the existing structures which were necessary for the Zoo from the plot in question to the adjacent plot;
(ii) the plot in question was not a part of the Zoo Garden;
(iii) till the existing structures are relocated on the adjacent land, the zoo would continue to get their services and facilities from the existing structures.
(iv) the hotel was not the only tall building since there existed many such residential buildings to which none raised an objection and that P&T Department are also constructing one such tall building; and
(v) the lessee and their experts on wild life had assured them that in any case adequate precaution would be taken in regard to illumination of the hotel and the layout of the surrounding so that no disturbance would be caused to the flight path of the birds or animals.
To similar effect was .the letter dated 30.8.1982 from Shri J.R.D. TATA to the Prime Minister on September 1, 1982. Smt. Indira Gandhi wrote to Mr. TATA expressing her happiness that the hotel was not going to upset the Zoo animals and welcoming his offer to help the State Government to improve the Zoo's facilities.
229 A learned Single Judge of the High Court dismissed the writ petition holding that the West Bengal Government did not show any lack of awareness of the problem of environment ecology in granting the lease of land. On appeal, a Division Bench confirmed the said judgment. Hence the appeal by Special leave of the Court.
Dismissing the appeal, the Court,
HELD: (Per Chinnappa Reddy J.) 1.1 Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Art. 48 A of the Constitution the Directive Principle which enjoins that "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country, "and Art. 51A(g) Which proclaims it to be the fundamental duty of every citizen of India "to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures." When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is matter for the policy making authority. The least that the court may do is to examine whether appropriate considerations are borne in mind 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. However the Court will not attempt to nicely balance relevant considerations When the question involves the nice balancing of relevant considerations, the court may feel justified in resigning itself to acceptance of the decision of the concerned authority. If the Government is alive to the various considerations requiring thought 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 and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. [242B-F]
1.2 Applying the above guidelines to be followed when questions of ecology and environment are raised, it is clear that the facts and circumstances brought out by the appellants do not justify an inference that the construction of the proposed hotel in the Begumbari land would interfere in any manner with the animals in the Zoo and the birds arriving at the zoo or otherwise disturb the ecology. The proposed hotel is a Garden-hotel and there is perhaps every chance of the ecology and environment improving as a result of planting numerous trees all 230 around the proposed hotel and the removal of the burial ground and dumping ground for rubbish. [263A-B]
1.3 That the question of obstruction which may be caused to migratory birds did not go unnoticed by the government before the decision to lease the land was taken, is clear from the following:
(i) the question of the migratory bird was first raised in the resolution of the Managing Committee dated June 11, 1981. This resolution was forwarded to the Chief Minister and considered by him as evident from the note of the Chief Minister and the subsequent reversal of the Managing Committee's resolution at the instance of the Chief Minister and on his assurance;
(ii) that the government was aware of the dissension based on the alleged obstruction likely to be caused by a multi-storeyed building to the flight of the migratory birds appears from the letter of the Chief Minister to the Prime Minister. In this letter, the Chief Minister pointed out that there were already in existence a number of multistoreyed buildings all around the Zoological Garden, but there was no report that they had any adverse effect on the migratory birds or the animals. He also pointed out that all precautions would be taken in the matter of illumination of the hotel and lay out of the surroundings so that no disturbance would be caused to the flight path of the birds or animals;
(iii) Shri J.R.D. TATA, on behalf of the Taj Group of Hotels also wrote to the Prime Minister assuring her that the hotel management had discussed the matter at length with a representative of the Wild Life Fund who, after discussion had been satisfied that the proposed hotel would cause no disturbance to the birds.
He further assured her that he had himself gone thoroughly in to the project with the special reference to the possible impact on the birds and the environment and had satisfied himself that project would not cause any disturbance to the birds or their free movement. He pointed out that the four acre plot was not within the main Zoological Garden, but was separated from it by the Belvedere Road which was an important thoroughfare in the city. It was about 700 feet from the main part of the lake. The hotel was proposed to be built away from the frontage of the plot in Belvedere Road and was to be a low-rise structure, the highest point of which would not exceed 75 feet, far below the trajectory of the birds. He mentioned that Dr. Biswas a renowned ornithologist had also been consulted by the Taj Management and he had also confirmed that a 75 feet building would not interfere with the landing or climbing out of the birds from the lake. He further mentioned that the grounds of the Zoo between the lake and the Belvedere Road were covered with tail trees and that the birds negotiating the trees would have to fly at a steeper angle than it would be necessary to negotiate the proposed hotel. The vehicu231 lar traffic on Belvedere Road which was also heavy did not bother the birds and the slight increase of the vehicular traffic consequent on the construction of the hotel was also not likely to bother them either. It was also pointed out that particular care would be taken in the matter of illumination of the hotel so that bright lights or neon signs emanating from the hotel would not disturb the birds and animals. In the circumstances, the government was alive to the ecological considerations particularly the question of the migratory birds. [260E-H; 261A-E]
2.1 It is wrong to think that every thing not mentioned in the Cabinet Memoranda did not receive consideration by the government. In the instant case the process of choosing and allotting the land to the Taj Group of Hotels nearly took two years during the course of which objections of various kinds were raised from time to time. It was not necessary that everyone of these objections should have been mentioned and considered in each of the Cabinet Memoranda. [260C-E]
2.2 The proposition that a decision must be arrived at after taking into account all relevant considerations, eschewing all irrelevant considerations cannot for a moment be doubted. In the instant case, relevant considerations were not ignored and indeed were taken into consideration by the Government of West Bengal. It is not one of those cases where the evidence is first gathered and a decision is later arrived at one flue morning and the decision is incorporated in a reasoned order. This is a case where discussion had necessarily to stretch over a long period of time. Several factors have to be independently and separately weighed and considered. This is a case where the decision and the reasons for the decision could only be gathered by looking at the entire course of events and circumstances stretching over the period from the initiation of the proposal to the taking of the final decision. The argument that what was not said in either of the Cabinet Memoranda could not later be supplemented by considerations which were never present in the mind of the decision making authority is not correct.
[263E-G] Rohtas Industries Ltd. v. S.D. Agarwal, [1969] 3 SCR 108 and Barium Chemicals v. A.G. Rana, [1972] 2 SCR 752, referred to.
Mohinder Singh Gill v. Central Election Commission, [1978] 2 SCR 273, distinguished.
3. There was no failure to observe the principles of Natural Justice. Such as those as were really interested in the matter like the Managing Committee of the Zoological Garden and the Director of the 232 Zoo did have their say in the matter. The Public Undertakings Committee in its report discussed the matter and invited the Government's attention to various factors. The matter was further discussed on the floor of the Legislative Assembly. [264B-D]
4.1 The two letters dated 23.4. 1880 and 7.7. 1880, pertaining to the grant relating to the transfer of land to the east of Belvedere Road, known as Begumbari land in 1880, produced from old official records, are public documents within the meaning of the Evidence Act. No objection either to the authenticity or to the admissibility of the documents was taken either before the Single Judge or before the Division Bench. The Managing Committee of the Zoological Garden never doubted the authenticity of the documents, nor was any question even raised to suggest that the terms of the grant were other than those mentioned in the letters. [265C-E]
4.2 The new plea relating to authenticity or admissibility of evidence cannot be accepted in an appeal under Art. 136 of the Constitution. The land which was undoubtedly government land was given to the Zoological Garden upon the terms set out in the two letters. One of the terms was that the land should be restored to the government whenever required. Another terms was that the Zoological Garden Committee would be suitably compensated for any expenditure incurred by it on the construction of any building on the land. [265E]
5.1 It is true that the Act of the legislature cannot be undone by a mere act of the Executive. This is not a case where the statute vests land in the Committee and the Executive takes it away by its fiat. The Begumbari land was government land transferred to the charge of the Zoological Garden Committee in 1880 in accordance with the conditions and terms agreed to by the Committee in their letter dated 23.4.1880; namely;
"(i) that the land is to be used for the purpose of acclimatization only;
(ii) that Carnivors are not to be kept on any part of it, on any account;
(iii) that the grounds are to be kept clear and neat;
(iv) that the land must be restored to the government if hereafter required.
The Zoological Garden Committee being reimbursed for any expenditure they may have incurred in building there." Therefore, this is a case of resumption of Government land under the terms of Agreement. [264E-H; 265A-B]
5.2 From the Preamble and the provisions of the Bengal Public Parks Act, 1904, it is clear that the Act is intended to protect the inmates and the property of the park from injury by persons resorting 233 to the park from molestations or annoyance by others. The Act is aimed at protecting the part and its visitors from injury and annoyance by despoilers and marauders. The Act has nothing whatever to do with the vesting of any property in the parks. There is in fact no provision which deal with the vesting of property in a park, Section 3 enables the State Government to extend by a notification, the boundaries of a park but that can only be for the purposes of the Act and not for the purpose of vesting or creating any title in a property. If a piece of adjacent land, for example, is taken on lease for a specified number of years by the park and included in the park by a notification under s.3 it does not mean that the various things, the doing of which is regulated or prohibited by the Act and the rule will not be done or will be regulated on the adjacent land also. The provisions of the Bengal Public Parks Act have no relevance to the question of the power of the government to transfer the Begumbari land to the Taj Group of Hotels. [266C-F]
6.1 Statutes and statutory orders have no doubt to be obeyed. It does not mean that other orders, instructions, etc. may be departed from in an individual case, if applicable to the facts. They are not to be ignored until amended.
The government or the Borad may have the power to amend these orders and instructions, but nonetheless they must be obeyed so long as they are in force and are applicable. But, from the perusal of the provisions of paragraphs 165 to 167 of the West Bengal Land Management Manual, it is clear that these provisions of the Land Management Manual do not appear to have anything to do with the transfer and use of the land in the manner proposed, in which the State also have a vital stake apart from the mere raising of revenue for the State.
Paragraphs 165, 166 and 167 deal with simple cases of creation of non-agricultural tenancies by way of long term leases. They generally deal with land which is at the disposal of the government as waste or surplus land and are intended to secure the best revenue for the State. They do not deal with cases of transfer of land for a specific socio-economic object, where, the securing of immediate revenue. is not the principal object but other social and economic benefits are sought. [267E-H]
6.2 The following propositions may be taken as well established on a considerations of the earlier decisions of the Supreme Court. State owned or public-owned property is not to be dealt with at the absolute discretion of he executive. Certain precepts and principles have to be observed.
Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule. it is not an invariable 234 rule. There may be situations where there are compelling reasons necessitating departure from the rule, but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. [273D-F]
6.3 Applying the above tests, it cannot be held that the government of West Bengal did not act with probity in not inviting tenders or in not holding a public auction but negotiating straight away at arm's length with the Taj Group of Hotels, in its pursuit or socio-economic objective of encouraging tourism and earning more foreign exchange. In the present case no one has come forward alleging that he has been discriminated against and his fundamental right to carry on business had been affected. The very nature of the construction and establishment of a Five Star Hotel is indicative of a requirement of expertise and sound financial position on the part of those who might offer to construct and establish them. The decision taken by the All-India Tourism Council was an open decision well-known to everyone in the hotel business. Yet no one except the I.T.D.C. and the Taj Group of Hotels had come forward with any proposal.
The Oberoi Group of Hotels already had a Five Star Hotel in Calcutta while the Welcome Group of Hotels were making their own Private negotiations and arrangements for establishing a Five Star Hotel. In the circumstances, particularly in the absence of any leading hotliers coming forward, the government of West Bengal was perfectly justified in entering into negotiation with the I.T.D.C. and the Taj Group of Hotels instead of inviting tenders. Negotiations with those who had come forward with proposals to construct Five Star Hotels was without doubt the most reasonable and rational way of proceeding in the matter rather than inviting tenders or holding public auction. There was nothing discriminatory in the procedure adopted since no other leading hotlier had shown any inclination to come forward. Tenders and auction were most impractical in the circumstances. The choice of the Taj Group of Hotels must therefore be held to be beyond suspicion and above reproach. [273F; 268D-F] Rash Bihari Panda v. State of Orissa, [1969] SCR 374;
R.B. Shetry v. International Airport Authority, [1979] 3 SCR 10 14; Kasturi Lal Laxmi Reddy v. State of Jammu & Kashmir, [1980] 3 SCR 1338; State of Haryana v. Jaga Ram, [1983] 4 SCC 56; Ram and Shvam Co. v. State of Haryana, [1985] 3 SCC 267 and Chenchu Rami Redav v. Go/vt. of Andhra Pradesh, [1986] 3 SCC 391, discussed.
7.1 On a consideration of all the facts and circumstances of the 235 case, it is clear, that the government of West Bengal acted perfectly bonafide in granting the lease of Begumbari land to the Taj Group of Hotels for the construction of a Five Star Hotel in Calcutta. The government of West Bengal did not fail to take into account any relevant consideration.
Its action was not against the interest of the Zoological Garden or not in the best interests of the animal inmates of the zoo or migrant birds visiting the zoo. The financial interests of the State were in no way sacrificed either by not inviting tenders or holding a public auction or by adopting the ''nett sales" method. [274C-E]
7.2 The "nett sales" method appears to be fairly well known method adopted in similar situations. This what was recommended by WEBCON, the consulting agency of the West Bengal Government which submitted a detailed report on the subject. This was also the recommendation of the Committee of Secretaries who went into the matter in death, even to lay persons who are no financial experts, it appears that the "nett sales" method does and the rent-based-on-market value method does not take into account the appreciating value of land, the inflationary tendency of the prices and the profit orientation. Even on a prima a facie view, there appears to be nothing wrong. or objectionable in the "nett sales" method. It is profit oriented and appears to be in the best interests of the Government of West Bengal. [274AC] Per Kahlid J. (concurring)
1. Today public spirited litigants rush to courts to file cases in profusion under attractive name Public Interest Litigation. They must inspire confidence in courts and amongst the public. They must be above suspicions. Public Interest Litigation has now come to stay. Bue one is led to think that it poses a threat to courts and public alike.
Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guide-lines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of Public Interest Litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions. This does not mean that traditional litigation should stay put. They have to be tackled by other effective methods, like decentralising the judicial system and entrusting majority of traditional litigation to village courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when 236 basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the under-dog and the neglected.
Extending help when help is required does not mean that the doors of the Supreme Court are always open to anyone to walk in. It is necessary to have some self imposed restrained on public interest litigants, so that this salutary type of litigation does not lose its credibility. [275C; 279A-F]
2. The approach of the Taj Group Hotels in this case has been creditably fair. They have given all the assurances necessary to preserve the Zoo and its inmates. They were willing to afford all the requisite safeguards. In the place of a dilapidated hospital, operation theater and the like, they constructed buildings, a new at a cost of Rs. 30 lakhs which amount they were entitled to be reimbursed under cl. 25 of the lease, which they voluntarily gave up. In addition to this, they surrendered an area of 288 sq. metrs. from the land allotted to them to the Zoo. They agreed to build not the usual sky scrapper hotel, but a garden hotel, the height of which would not go beyond 75 feet, despite the fact that there existed in the surroundings area buildings which were very high. This was done to keep free the route of the flight of the birds. They agreed to have subdued light in the hotel, again in the ineterest of the birds. They also agreed to keep the surroundings of the hotel and the flora well maintained and already 30,000 plants were getting ready to adjourn the area to be occupied by them. [277H; 278A-C]
3.1 Regarding the commercial and financial aspects of the lease also, there is nothing secretive. The method adopted is the nett sales method of calculating the compensation paid, which is a well known method adopted in such situations like the one, here namely lease of land by the Government. [278C-E]
3.2 A deal like the one is given cannot be concluded by public auction as it is not a case of sale of a government property. Being not a sale but a lease of land by the government public auction has necessarily to be ruled out. Only Taj Group of Hotels came forward with an offer to start the hotel. The lease was the culmination after a long, elaborate and open procedure with nothing to hide which therefore cannot justifiably be subject to adverse criticism. [278G-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 378 of 1987.
237 From the Judgment and Order dated 4.8.1986 of the Calcutta High Court in F.M.A.T. No. 1500 of 1984.
L.M. Singhvi S.K. Jain, I. Makwana, A.M. Singhvi, Sudhanshu Atreya and S .D. Sharma for the Appellants.
N.N. Gooptu, Dipanker Gupta P. Mondal, D.K. Sinha, J.R. Das, T. Ray. R. Pal, B.R. Agarwala and Ms. S. Manchanda for the Respondent.
The following Judgments of the Court were delivered:
CHINNAPPA REDDY, J. We grant special leave and proceed to dispose of the appeal.
A hundred and thirty-two years ago, in 1854, 'the wise Indian Chief of Seattle' replied to the offer of 'the great White Chief in Washington' to buy their land. The reply is profoundIt is beautiful. It is timeless. It contains the wisdom of the ages. It is the first ever and the most understanding statement on environment. It is worth quoting. To abridge it or to quote extracts from it is to destroy its beauty. You cannot scratch a painting and not diminish its beauty. We will quote the whole of it:
* "How can you buy or sell the sky, the warmth of the land? The idea is strange to us.
"If we do not own the freshness of the air and the sparkle of the water, how can you buy them? "Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The Sap which courses through the trees carries the memories of the red man.
"The white man's dead forget the country of their birth when they go to walk among the stars. Our dead never forget this beautiful earth, for it is the mother of the *Reproduced verbatim from Pariyavaran Vol. I No. 1, June 1984.
238 red man. We are part of the earth and it is part of us. The perfumed flowers are our sisters; the horse, the great eagle, these are our brothers. The rockly crests, the juices in the meadows, the body heat of the pony, and man--all belong to the same family.
"So, when the Great Chief in Washington sends word that he wishes to buy our land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves. He will be our father and we will be his children. So we will consider your offer to buy our land. But it will not be easy. For this land is sacred to us.
"This shining water moves in the streams and rivers is not just water but the blood of our ancestors. If we sell you land, you must remember that it is sacred, and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of events and memories in the life of my people. The water's murmur is the voice of my father's father.
"The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and food our children. If we sell you our land, you must remember, and teach your children, that the rivers are our brothers, and yours and you must henceforth give the kindness you would give any brother.
"We know that the white man does not understand our ways. One portion of, land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother but his enemy, and when he has conquered it, he moves on. He leaves his fathers' graves behind, and he does not care.
"He kidnaps the earth from his children. His father's grave and his children's birth-right are forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads. His appetite will devour the earth and leave behind only a desert.
239 "I do not know. Our ways are different from your ways. The sight of your cities pains the eyes of the red man. But perhaps it is because the red man is a savage and does not understand.
"There is no quite place in the white man's cities. No place to hear the unfurling of leaves in spring or the rustle of an insect's wings. But perhaps it is because I am a savage and do not understand. The clatter only seems to insult the ears. And what is there to life if a man cannot hear the lonely cry of the whippoorwill or the arguments of the frogs around a pond at night? I am a red man and do not understand. The Indian prefers the soft sound of the wind darting over the face of a pond, and the small of the wind itself, cleansed by a mid-day rain, or scented with the pinon pine.
The air is precious to the red man, for all things share the same breath--the beast, the tree, the man, they all share the same breath. The white man does not seem to notice the air he breathes. Like a man dying for many days, he is numb to the stench. But if we sell you our land, you must remember that the air is precious to us, that the air shares its spirit with all the life it supports. The wind that gave our grandfather his first breath also receives the last sigh. And if we sell you our land, you must keep it apart and sacred as a place where even the white man can go to taste the wind that is sweetened by the meadows flowers.
"So we will consider your offer to buy our land. If we decide to accept, I will make one condition. The White man must treat the beasts of this land as his brothers.
"I am a savage and I do not understand any other way. I have seen a thousand rotting buffaloes on the prairie, left by the white man who shot them from a passing train. I am a savage and I do not understand how the smoking iron horse can be more important than the buffalo that we kill only to stay alive.
"What is man without the beasts? If all the beasts were gone, man would die from a great loneliness of spirit.
240 For whatever happens to the beasts soon happens to man. All things are connected.
"You must teach your children that the ground beneath their feet is the ashes of our grandfathers. So that they will respect the land. Tell your children that the earth is rich with the lives of our kin. Teach your children what we have taught our children, that the earth if sun mother. Whatever befalls the earth befalls the sons of the earth. If men spit upon the ground, they spit upon themselves.
"This we know: The earth does not belong to man; man belongs to the earth. This we know: All things are connected-like the blood which unites one family. All things are connected.
"Whatever befalls the earth befalls the sons of the earth. Man did not weave to web of life: he is merely a strand in it. Whatever he does to the web he does to himself.
"Even the white man, whose God walks and talks with him as friend to friend, cannot be exempt from the common destiny. We may be brothers after all. We shall see. One thing we know, which the white man may one day discover--our God is the same God. You may think now that you own Him as you wish to own our land;
but you cannot. He is the God of man, and His compassion is equal for the red man and the white. This earth is precious to Him, and to harm the earth is to heap contempt on its Creater. The white too shall pass; perhaps sooner than all other tribes. Contaminate your bed and you will one night suffocate in your own waste.
"But in your perishing you will shine brightly, fired by the strength of the God who brought you to this land and for some special purpose gave you dominion over this land and over the red man. That destiny is a mystery to us, for we do not understand when the wild buffalo are all slaughtered, the wild horses are tamed, the secret corners of the forest heavy with scent of many man and the view of the ripe hills blotted by talking wires. Where is the thicket? 241 Gone. Where is the eagle? Gone. The end of living and the beginning of survival." Today society's interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity. Industrialisation, urbanisation, explosion of population, overexploitation of resources, depletion of traditional sources of energy and raw materials and the search for new sources of energy and raw materials, the disruption of natural ecological balances, the destruction of a multitude of animal and plant species for economic 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. If man is able to transform deserts into cases, he is also leaving behind deserts in the place of cases. In the last century, a great German materialist philosopher warned mankind: "Let us not, however, flatter ourselves overmuch on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the results 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. Biologists forecast the extinction of animal and plant species on a scale that is incomparably greater than their extinction over the course of millions of years. 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 an average, one species or sub-species 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 became 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 is which we live, move and prove ourselves.
In India, as elsewhere in the world, uncontrolled growth and the consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem. The once Imperial City of Calcutta is.no exception. The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an 242 allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court? Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Art. 48A of the Constitution, the Directive Principle which enjoins that "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country," and Art. 51A(g) which proclaims it to be the fundamental duty of every citizen of India "to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures." When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say 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 consideration 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. However the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority. We may now proceed to examine the facts of the present case.
There is in Calcutta a zoological garden located in Allipore, now almost the heart of Calcutta, on either side of Belvedere Road, one of Calcutta's main arterial roads, forty nine acres on one side and eight acres on the other.
The main zoo is in the forty nine acres block of land. There are some old buildings and vacant land in the eight acre plot of land. This eight acre plot of land is known as the Begumbari land. It is out of these eight acres that the land of the extent of four acres has been carved out and given to the Taj Group of Hotels for the construction of a Five Star Hotel. It is this giving away of land, that was challenged before the High Court and is now challenged in this Court in this appeal by two citizens of Calcutta, one of them the Secretary of the Union of workmen of the zoological garden and the other a life 243 member of the zoo, both of whom claiming to be lovers of wild life and well-wishers of the zoo.
In January 1979, the Director General of Tourism, Government of India, addressed a letter to the Chief Secretary, Government of West Bengal conveying the resolution of the Tourism Conference which was presided over by the Union Minister of Tourism and attended by several State Ministers and requesting that land in good locations may be made available for construction of hotels in a drive to encourage tourism. In May, 1980 the Taj Group of Hotels came forward with a suggestion that they would be able to construct a Five Star Hotel if any of three properties on Chowringhee, specified by them, was made available to them. The Government found that there was some litigation connected with the Chowringhee properties and, therefore, it would not be possible to convey the Chowringhee properties to the Taj Group of Hotels. On September 29, 1980 and November 29, 1980, there were two notes by the Secretary of the Metropolitan Development Department to the effect that the I.T.D.C.
was interested in a property known as the Hastings House Property and that the Taj Group of Hotels who considered the Hastings House property unsuitable may be offered four acres out of the eight acres of Begumbari land. On the same day the Taj Group of Hotels wrote to the Government of West Bengal stating that the proposed land could be seriously considerd for construction of a Hotel. Thereafter the Chief Minsiter along with the Minister of Tourism and the Minister for Metropolitan Development visited the site accompanied by the Director of the Zoo who apparently knew about the proposal right from the start. A note was then prepared by the secretary, Metropoli tan Development Department and put up to the Chief Minister for his approval. The note suggested that the Hastings House property may be offered to the I.T.D.C. and the Begumbari property may be offered to the Taj Group and that at a later stage a suitable Committee might be appointed to negotiate with the two groups of hotels. The Chief Minister approved the proposal and required it to be placed before the Cabinet. On January 7, 1981 a memorandum was prepared for the consideration of the Cabinet explaining the need for more Five Star Hotels in Calcutta and the benefits flowing out of the construction and establishment of such Five Star hotels. It was suggested that the Hastings House Property may be leased to the I.T.D.C. Group and the Begumbari property to the Taj Group of Hotels. In regard to the Begumbari property, it was stated: "From the property of the Zoological Gardens on the Belvedere Road it is possible to carve out about four acres of land currently used for dumping garbage and also for 244 growing grass for the elephants. It will be necessary and in any case advisable to shift the dumping ground, while adequate space can be made available for growing grass elsewhere in the same area." It was stated that the Finance and Tourism Department had agreed to the proposal to lease the properties to the I.T.D.C. and the Taj Group respectively.
It was stated that though the Forest Department had suggested that Salt Lake was a better place for establishing a Five Star Hotel, there was no demand for a Five Star Hotel in that area and the request for a hotel in Salt Lake was confined to a Three Star Hotel. Cabinet approval was sought for the offers to be made to the I.T.D.C. and to the Taj Group and for the constitution of a suitable Committee to undertake negotiations with the two groups.
On February 12, 1981, the Cabinet took a decision approving the proposal contained in the last paragraph of the Cabinet Memorandum, thus clearing the way for negotiations with the Taj Group.
Meanwhile, it appeared that the Public Undertakings Committee appointed by the West Bengal Legislative Assembly submitted a port on February 14, 1981 about the zoo in which they stated.
"* * * * * * Originally this zoo was on the outskirts of the City but the City has grown in such a fashion that the zoo has vertually become the City Centre and there is hardly any scope for its expansion. The zoo is situated on the left bank of the Tolly's Nallla divided with two parts on either said of the Alipore Road. The zoo proper is about 40 acres on the Western side, while the eastern part comprises the Zoo Hospital, audiovisual centre acquarium, Zoo store and Staff quarters. The Committee was informed that nowadays migratory birds were coming less in number though previously more foreign birds used to come here and in the opinion of the Managing Committee, the main reason for this was due to air and sound pollution. Breeding potentialities of animals and birds have been retarded due to constant stress and strain on the animals and also due to atmospheric reasons. * * * * * *The Committee came to learn that a big hotel was proposed to be constructed on the plot of land where fodder for elephant are being grown to meet at least a portion of the elephants food.
Moreover, the staff quarters, hospitals for animals and the morgue are also situated near the said plot of land. If the proposed hotel is set up, all the existing buildings, viz.
hospital, morgue etc.
245 would have to be shifted to the main Gardens resulting in unhealthy atmosphere for the zoo animals and also hampering the beauty of the zoo Gardens. This would also create problems to the staff quarters and acquarium." The Committee also referred to a proposal to establish a 'Subsidiary Zoo' some slight distance from Calcutta City and the request said to have been made for the allotment of 200 acres of land for that purpose. It was suggested that the Government may consider abandoning the proposal to set up a hotel on the Eastern side of the Zoo.
The Chief Town Planner also visited the site at the request of the Secretary, Metropolitan Development Department. The inspection was made in the presence of the Director of the zoo. The Chief Town Planner thought that two to 21/2 acres of land only might be made available for the hotel. He expressed the apprehension that if four acres of land were to be given for construction of a hotel, then the entire hospital and the dumping ground would have to be removed and the southern boundary of the hotel would come very close to the residential block.
On March 19, the Taj Group submitted a proposal to the Government containing fairly detailed information about the tourism industry and its needs, the situation in Calcutta, the realities of hotel construction, the facts relating to what had been done in other cities, the benefits flowing out of the construction of hotels and their own proposals for constructing a hotel in the four acres of land in Belyedere Road. Two alternative financial arrangements were suggested.
The first alternative was the payment of annual rent on the basis of the valuation of the land, the second alternative was based on the concept of nett sales, nett sales being defined as sales after deducting all taxes and levies and service charges. The Metropolitan Development Department expressed a preference for the second alternative and suggested the constitution of a Committee. The Finance Department also approved. The Taj Group was invited to send the financial projection on the basis of the second alternative.
Correspondence went on. On June 5, 1981, a Committee of Secretaries was formally constituted.
In the meanwhile, WEBCON, a West Bengal Government Consultancy Undertaking, was asked to examine the proposals and to advise the Government. The WEBCON submitted its report on July 14, 1981 and on the request of the Committee of Secretaries a further report was submitted on July 22, 1981. The report of WEBCON is a 246 comprehensive report on various topics connected with the establishment of a Five Star Hotel in Calcutta. Among other things the report also suggested various financial alternatives and recommended the second alternative based on nett sales as the best. It is to be mentioned here that even by February 21, 1981 the proposal to lease out the Begumbari land to the Taj Group of Hotels had become public knowledge and newspapers carried reports on the same.
On June 9, 1981, the Secretary of the Animal Husbandary and Veterinary Services Department complained to the Secretary of the Metropolitan Development Department that they were not aware of the decision to lease the Begambari land.
The Secretary, Metropolitan Development Department made an endorsement on the letter to the effect that the Minister for Animal Husbandry and Veterinary services had himself visited the site. In fact, as we have seen, the matter had been considered and approved by the Cabinet itself and all Departments must necessarily have been appraised of the proposal.
While so, the Managing Committee of the Zoo, on June 11, 1981, passed a resolution expressing itself against the proposal to construct a hotel on land belonging to the Zoo.
The Resolution said, "The proposal for soil testing of zoo land in the Begumbari Compound for the purpose of construction of Five Star Hotel was discussed in the meeting. The Committee resolved that construction of a multistories buildings in the near vicinity of the zoo will be highly detrimental to the animals of the Zoo, its ecological balance and adversely affect the bird migration which is one of the greatest attractions of the zoo. The area proposed to be taken for Hotel construction is already used by the zoo for fodder cultivation, burial ground for dead animals, animal hospital, operation theater, quarantine area, segregation wards, postmortem room and nursery both for zoo animals and horticultural section.
These essential services cannot be accommodated within the campus of the main zoo for risk of spreading of infection to other animals of the zoo. Procurement of green fodder for the large number of harvivorous animals of the zoo is already a serious problem for the zoo and any disturbance to fodder cultivation will aggravate the situation. The Calcutta Zoo has the smallest area in comparison to other reputed Zoo. The Committee is of a opinion that no portion of Zoo land can be parted with for any other 247 purpose. This being the position soil testing will hardly be of any avail as the zoo cannot spare the land. Shri Ashoka Basu, M.L.A., Shri K.P. Banerjee and Shri A.K. Das abstained from-participation in the proceedings." The Minister for Metropolitan Development submitted a note to the Chief Minister on the resolution of the Managing Committee of the Zoo. He pointed out that even if four acres out of the eight acres of Begumbari land was given to the Taj Group, there would still remain sufficient land for accommodation of the facilities. He added that the Managing Committee's resolution was not binding on the Government and suggested that the Director of the Zoo might be asked to allow the Taj Group to undertake soil testing etc. so that work may proceed according to the time-schedule. The Chief Minister endorsed the following.
"I agree. It is unfortunate that we have not been able to accept the contentions of the Managing Committee. If further facilities are necessary for the Zoo, the Government will provide them." In June 25, 1981, the Managing Committee of the Zoo met again and passed another Resolution by which they withdrew their earlier objections. The Resolution stated.
"In view of the letter issued to the Zoological Gardens, Alipore and the Cabinet decision regarding the land of Begumbari Compound and in consideration of the assurance conveyed through Shri Ashoka Bose, Chief Whip and Member that the State Government will give to the Garden adjacent lands and matching grants for the purposes of shifting of the Departments of the Zoo within the said compound, the members do not press their objections as contained in the resolution of the Managing Committee held on 11.6.81.
This was passed by the majority of the members present, the President Justice Shri R.K. Banerjee dissenting." On June 29, 1981, the Director
