SACHIDANANDA PANDEY

v.

STATE OF WEST BENGAL & ORS.

FEBRUARY 11, 1987

A

[O. CHINNAPPA REDDY AND V. KHALID, JJ.] B

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 C

birds and whether has shown such lack of awareness in making an

allotment of land to boost tourism by construction of Five

Star Hore/ to

the detriment

of Zoological garden.

Cabinet Memoranda dated January 7, 1981 and Sep. 9, · 1981 allot-

ing land for the construction

of Five

Star Hotel to Taj Group of D

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. E

New plea in the

Supreme Court for the first time-Public docu-

- ment, 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. F

The Bengal Public Parks Act, 1<)()4, 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 G

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.

H

223

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224 SUPREME COURT REPORTS [1987] 2 S.C.R.

Public Interest Litigation, parameters. delineation need for stres-

sed.

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, fortynine acres of land on one side and

B eight acres on the other. The main

zoo is in the fortynine 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

C Department to

Mr. L.

S10hwandler, 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

D

are not to be kept ou any part of it, on any account; (iii) that the

grounds

are to be kept clear and neat; (iv) that the land must be re­

stored

to the government if hereafter required, the Zoological Garden

Committee being reimbursed for any expenditure they may have

ineur­

red in building there." In this eight acres of land there are some old

buildings

and the vacant land was used for fodder cultivation,for

rais-

E ing Dower 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

F 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 constrnct a Five Star Hotel. On September

29. 1980 and November 29, 1980, there were two notes by the Secretary

G of the Metropolitan Development Department to the effect that the

I.T.D.C. was interested in a property known as the Hastings Honse

Properly

and that the Taj Group of Hotels who considered the Hastings

House properly unsuitable may

b1! 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

H could be seriously considered for construction of a hotel. Thereafter.

\.-

SACHIDANANDA PANDEY v. STATE OF W. BENGAL 225

the Chief Minister along with the Minister of Tourism and the Minister

A

r

for Metropolitan Development visited the site accompanied by the Di-

rector of the Zoo to apparently knew about the proposal right from the

start. A note was then prepared by the Secretary, Metropolitan

r

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 B

I

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 Zoologi-

c

cal Gardens on the Belvedere Road it is possible to carve out about four

·y

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 D

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

j 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 E

and for the constitution of a suitable Committee to undertake negotia-

lions 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.

F

,,

Meanwhile the Public Undertakings Committee appointed hy 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 Committe also referred to a proposal to establish a "Subsidiary G

·~

Zoo" some slight distance from Calcutta and the request said to have

been made for the allotment

of

200 acres ofland for that purpose.

The Chief Town Planner who visited the site

at the request of the

Secretary, Metropolitan Development Department and in the presence

H

of the

Director of the Zoo, suggested that 2 to 2'h acres of land might be

226 SUPREME COURT REPORTS [1987] 2 S.C.R.

A 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

B benefits flowing out of the construction of hotels and their

own

pro­

posals for constructing a hotel in the four acres of land in Belvedere

Road.

Two alternative fmancial 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

C 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

D 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

E 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 Manag­

ing Committee met again and passed another resolution by which they

withdrew their earlier objections dated 11.6.1981.

F 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.

G On July 14, 1981, the WEBCON submitted its report and on the

l

--t•··

' '

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 fman-

cial alternatives and recommended the second alternative based on nett

H sales as the best.

SACHIDANANDA PANDEY v. STATE OF W. BENGAL 227

Meanwhile negotiations with Taj Group proceeded apace. The A

WEBCON submitted further reports. Taj Group suggested further

modifications. On September 9, 1981 a detailed memorandum \l\llS pre­

pared 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

sugges­

tion of the Negotiation Committee that the overall development plan for

the environmental beautification, widening

of approach roads,

land­

scaping of Tolley's Nullah were responsibilities of the State Govern­

ment 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 govern­

ment 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, 198 I the

, Cabinet took the final decision to grant a ninety-nine years lease of the

l

' four acres of Begumbari land to the Taj Group of Hotels. On Septem­

ber 29, 1981 the Government of West Bengal officially conveyed its

acceptance

of the proposal of the Taj Group of Hotels for the

construc­

tion of a Five Star Hotel. The terms and conditions of the lease were set

IJ;.·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

recom­

mend 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 facilites 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

B

c

D

E

F

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 G

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 H

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228 SUPREME COURT REPORTS [1987] 2 S.C.R.

meters out of the plot given to them was carved out and given back 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 commit·

tee was constitued 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. Subsec111ent 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

wais therefore amended and a prayer for cancellation

was added.

D 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 Minis·

ter in his reply letter dated 21.8.82 pointed out that:(i) the four acres o '.

land were agreed to be relinquished by the Committee of management fJ

E 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

:iii

get their services and facilities from the existing structures. (iv) the · ·

F hotel was not the only !all building since there existed many such resi·

dential buildings to which none raised an object.ion 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 sorrounding so that no disturbance would be

;,

G 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

H

on September 1, 1982. Smt. Indira Gandhi wrote to Mr. Tata expres·

sing 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.

SACHIDANANDA PANDEY v. STATE OF W. BENGAL 229

A learned Single Jndge 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 judg­

ment. Hence the appeal by Special leave of the Court.

Dismissing the appeal, the Court,

HELD:

(Per Chinnappa Reddy J.) 1.

I 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

Uirective 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. 5 lA(g) Which proclaims it to be the fundamental duty of every

citizen

of India

"to protect and improve the natural environment in­

cluding 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 l:ourt 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,

l 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

A

B

c

D

E

of the concerned authority. If the Government is alive to the various

considerations requiring thought and

~eliberation 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 F

relevant considerations

are not borne in mind and irrelevant

considera­

tions 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

G

H

230 SUPREME COURT REPORTS [1987] 2 S.C.R.

A around the proposed hotel and the removal of the burial ground and

. dumping ground for rubbiish. [263A-B]

1.3 That the questiion of ~bstruction 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

B question

of the migratory bird was first raised in the resolution of the

Managing Committee dated June

11, 198 l. This resolution was

for­

warded 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 al the instance of the Chief Minister and on his

assurance;

(ii) that the government was aware of the dissension based

c

on the alleged obstruction likely to be caused by a multi-storeyed

build­

ing 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 multi­

storeyed buildings all around the Zoological Garden, but there was no

report that they had any adverse effect on the migratory birds or the

D 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

woulld 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 manage-

E

F

ment had discussed the matter at length with a representative of the

Wild Life Fund who, after discussion had been satisfied that the

pro­

posed 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

G 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 tall trees

and that the birds negotiating the

trees would have to Dy at a steeper angle

H

than it would be necessary to negotiate the proposed hotel. The vehicu-

(

-f

SACHIDANANDA PANDEY v. STATE OF W. BENGAL 231

tar traffic on Belvedere Road which ·.fas 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 circum·

stances, 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.

A

B

In the instant case the process of choosing and alloting the

land to the Taj

Group

of Hotels nearly took two years during the course of which C

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 irrlevant D

considerations cannot for a moment be doubted. In the ~nstant 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 fine morning and the decision is incorporated in a reasoned

order. This is a case where discussion had necessarily to stretch over a E

long period of time. Several factors have to be independently and sepa·

rately 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

argu­

ment that what was not said in either of the Cabinet Memoranda could F

not later be supplemented by considerations which were never present

in the mind of the decision making authority is not correct. l263E-G I

Rohtas Industries Ltd. v. S.D. Agarwal, [ 1969] 3 SCR 108 and

Barium Chemicalsv. 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

G

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232 SUPREME

COURT REPORTS [1987] 2 S.C.R.

Zoo did have their say in the matter. The Public Undertakings Commit­

tee 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 A!isembly. l264B· DI

4. 1 The two letters dated 23.4. 1880 and 7. 7. 1880, pertaining to

the

grant relating to the

lransfer of land to the east of Belvedere Road,

known as Begnmbari land in 1880, produced from old official records,

are public documents within the meaning of the Evidence Act. No objec-

tion 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-EJ

4.2 The new plea relating to authenticity

or admissiblity of

evidence cannot be accepted in an appeal under

Art. 136 of the Con-

stitntion. 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 tbe Zoological Garden

Committee would be suifably compensated for any expenditure incur-

red by it on the construction of any building on the land. [26SE]

S. 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

Begnmbari land was gove.-nment land transferred to the charge of the

Zoological Garden Committee in 1880 in accordance with the condi-

lions

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 re-

quired. 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;

26SA-BJ

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

j

~

)

~

I

I

)

SACHIDANANDA PANDEY v. STATE OF Vv. BENGAL 233

to the park from molestations or annoyance by others. The Act is aimed A

at protecting the part and its visitiors from injnry and annoyance by

despoilers and merauders. The Act bas 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 notifiootion, the boundaries of a

park

but that can only be for the purposes of the Act and not

for the purpose B

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 inclnded in the park by a notification nnder s .3 it does not

mean

that the varions things, the doing of which is regnlated or

pF«>­

bibited 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 C

have no relevance

to the qnestion 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

ar• 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

crea­

tion 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 soci&-economic object, where, the securing of immediate revenue is not the

principal object but other social and economic benefits are sought. l267E-Hl

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 be

~xecutive. 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

D

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234

SUPREME COURT REPORTS [1987) 2 S.C.R.

rule. There may be situations where there are compelling reasons neces­

sitating departure from the rule, bnt then the reasons for the departure

must be rational and should not be suggestive

of discrimination.

Appear­

ance of public justice is as important as doing justice. Nothing should be

done which gives an appearance of bias, jobbery or nepotism. [2730-F)

6.3 Applying .the above tests, it cannot be held that the govern­

ment 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

lenght 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

natm·e of the construction and estllhlish-

ment

of a Five

Star Hotel is indicative of a requirement of expertise and

sound financial position on the

part of those who might ofl'er to

con­

struct and establish them. The decision taken by the All-India Tourism

Council was

an open

dedsion well-known to everyone in the hotel busi­

ness. Yet no one except the I.T.O.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 ow1n 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 Gronp

of Hotels insted of inviting tenders.

Nego­

tations with those who lllad 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 to 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; 2680-F]

Rash Bihari Panda v. State of Orissa, [ 1969] SCR 374; R.B.

Shetty v. International Airport Authority, [1979] 3 SCR 1014; Kasturi

Lal Laxmi Reddy v. State of Jammu & Kashmir, [ 1980] 3 SCR 1338;

State of Haryana v.JagaRam, [l983] 4SCC 56; Ram and Shyam Co. v.

State of Haryana, [ 1985] 3 SCC 267 and Chenchu Rami Reddy v. Govt.

of Andhra Pradesh, [ 1986) 3 SCC 391, discussed.

7.

1

On a consideration of all the facts and circumstances of the

SACHIDANANDA PANDEY v. STATE OF W. BENGAL 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 govern­

ment 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-EJ

A

B

c

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 recommen­

dation 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 inflatio­

nary tendency of the prices and the profit orientation. Even on a prima D

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 Goverument of West Bengal. [27 4A-C]

Per Kah/id J. (concurring)

I. 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

ha' now come to stay. Bue one is

led to think

that it poses a threat to courts and public alike.

Such cases

E

are now filed without any rhyme or reason. It is, therefore, necessary to F

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

func­

tions. This does not mean that traditional litigation should stay put. G

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 H

236 SUPREME COURT REPORTS [1987] 2 S.C.R.

A basic human rights are invaded

or when there are complaints of such

acts as shock the judicial conscience that the courts, especially

Ibis

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

neglec­

ted. Extending help when help is required does not mean that the doors

B

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 salutorytype oflitigatiolll does notlose its credibility.

[275C; 279A-F]

c

D

E

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 theati-e and

the like, they constructed buildings, a new

at a cost of Rs.

30 laklts

which amount they were entitled to be reimbursed under

cl. 25 of the

lease, which they voluntarily gave up. In addition to this, they

sur­

rendered 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 sorroundings of the

hotel

and the flora well maintained and already

30,000 plants were

getting ready

to adjorn the area to be occupied by them. l277H; 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

i.; a well known

F method adopted in snch 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

G to be ruled out. Only Taj Group of Hotels came forward with an offer to )

start the hotel. The lease was lhe culmination after a long, elaborate /

and open procedure with nothing to hide which therefore cannot justifi-

ably be subject to adverse criticism. [278G-H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 378

H

of 1987.

SACHIDANANDA PANDEYv. STATE OFW. BENGAL [REDDY,J.] 237

Ir From the Judgment and Order dated 4.8.1986 of the Calcutta A

II' High Court in F.M.A.T. No. 1500of1984.

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. Monda!, D.K. Sinha, J.R. B

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 C

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 profound.

It is beautiful.

It is timeless. It contains the wisdom of the ages. It is the first ever and D

the most understanding statement on environment.

It is worth quot­

ing. 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? E

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. F

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.

G

H

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SUPREME COURT REPORTS [1987] 2 S.C.R.

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.

J;

\-

~

_..Jrr

I

1

)'---

SACHIDANANDA PANDEY v. STATE OFW. BENGAL [REDDY, J.) 239

"I do not know. Our ways are different from your A

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 B

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 C

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

0

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 E

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 F

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 smok-G

ing 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.

H

240

A

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SUPREME

COURT REPORTS [1987] 2 S.C.R.

For whatever happens to the beasts soon happens to man.

All things are connected.

"You must teach your children that the ground be­

neath 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 befallls 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 befails 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

r

I ,

)'.

with him as friend to friend, cannot be exempt from the ,A._.

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 1

other tribes. Contaminate your bed and you will one night I

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?

SACHIDANANDA PANDEY v. STATE OF W. BENGAL [REDDY, J .) 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 huma­

nity. Industrialisation, urbanisation, explosion of population, over­

exploitation

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 destruc­

tion

of a multitude of animal and plant species for economic reasons

and sometimes for no good reason at all are factors which have con­

tributed to environmental deterioration. While the scientific and tech­

nological 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 philospher warned mankind:

"Let us not, however, flatter ourselves orvermuch 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 bringss 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 eoological 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 inoomparably greater than

their extinction over the course

of

milliolls 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 bacame 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

A

B

c

D

E

F

G

H

A

B

c

D

E

F

242 SUPREME COURT REPORTS [1987] 2 S.C.R.

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

considera­

tions 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.

5 !A(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 Direc­

tive 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 conside­

rations, the Court may feel justified

in resigning itself to acceptance of

the decision

of the concerned authority. We may

~ow proceed to

examine the facts of the present case.

There

is in Calcutta a zoological garden located in Alli pore, now

almost the heart of Calcutta, on either side of Belvedere Road, one of

Calcutta's main arterial roads, fortynine acres on one side and eight

acres on the other. The main zoo

is in the fortynine acres block of land.

There are some old buildings and vacant land

in the eight acre plot of

G 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 construc­

tion 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

H the

Union of workmen of the zoological garden and the other a life

SACHIDANANDA PANDEYv. STATE OFW. BENGAL [REDDY,J.] 243

member of the zoo, both of whom claiming to be lovers of wild life and

A

1 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 B

,

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 for-

('°. ward 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

c

some litigation connected with the Chowringhee properties and, there-

°f

fore, 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 l.T.D.C. was interes-

ted in a property known as the Hastings House Property and that the D

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

E

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 F

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 G

""

establishment of such Five Star hotels. It was suggested that the Hast-

ings 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 Zoologi-

cal Gardens on the Belvedere Road it

is possible to carve out about

four acres of land currently used for dumping garbage and also for H

.,

244 SUPREME COURT REPORTS [1987] 2 S.C.R.

A 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

B 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 Hotei.

Cabinet approval was sought for the offers to be made to the I.T.D.C.

and to the Taj Group and for the constituion of a suitable Committee

to undertake negotiations with the

two groups.

c

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

D appointed by the West Bengal Legislative Assembly submitted a

Fe­

port on February 14, 1981 about the zoo in which they stated.

E

"******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

F

Staff quarters. The Committee was informed that now-a-, . ..ir

days 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

mah reason for

G

H

this was due to air and sound pollution. Breeding poten­

tialities 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.

)

SACHIDANANDA PANDEYv. STATEOFW. BENGAL [REDDY,J.] 245

would have to be shifted to the main Gardens resulting in

A

f

unhealthy atmosphere for the zoo animals and also ham-

pering 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 B

'

have been made for the allotment

of200 acres of land for that purpose.

'f

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

c

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 D

residential block.

On March 19, the Taj Group submitted a proposal to the

""

Government containirrg 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, E

the benefits flowing out of the construction of hotels and their own

proposals for constructing a hotel in the four acres of land in Belve-

dere Road. Two alternative financial arrangements were suggested.

•• t

The first alternative was the pa)ment of annual rent on the basis of the

'

valuation of the land, the second alternative was based on the concept

I

of nett sales, nett sales being defined as sales.after deducting all taxes F

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 projec-

tion on the basis of the second alternative. Correspondence went on.

On June 5, 1981, a Committee of Secretaries was formally constituted. G

~

In the meanwhile, WEBCON, a West Bengal Government Con-

sultancy 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 H

246 SUPREME COURT REPORTS [1987] 2 S.C.R.

' comprehensive report on various topics connected with the establish­

ment 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

Begumhari land to the Taj Group

of Hotels had become public know-

B ledge 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 :i,

the decision to lease the iBegambari land. The Secretary, Metropolitan

Development Department made an endorsement on the letter to the

C 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 Depart­

ments must necessarily have been appraised of the proposal.

D While so, the Managing Committee of the Zoo, on June

11,

E

F

G

H

1981, passed a resolution expressing itself against the proposal to con­

struct 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 dis0oussed in the meeting. The Committee resol­

ved 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 construc­

tion

is already used by the zoo for fodder cultivation, burial

ground for dead animals, animal hospital, operation

theatre, 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 dis­

turbance 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

SACHIDANANDA PANDEYv. STATE OFW. BENGAL [REDDY, J.l 247

purpose. This being the position soil testing will hardly be

A

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 ab-

stained 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 B

--J

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

c

according to the time-schedule. The Chief Minister endorsed the

1 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 Govern-D

ment 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 objec-

tions. The Resolution stated.

E

"In view of the letter issued to the Zoological Gardens,

Alipore and the Cabinet decision regarding the land of

~

Begurnbari Compound and in consideration of the assur-

ance 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

F

shifting of the Departments of the Zoo within the said com-

pound, the members do not press their objections

as con-

tained in the resolution of the Managing Committee held

on 11.6.81.

...(_

This was passed by the majority of the members pFe-G

sent, the President Justice Shri R.K. Banerjee dissenting."

On June 29, 1981, the Director of the Zoo wrote to the Secretary

of the Animal Husbandry and Veterinary Services Department stating

his objections to the Proposal to lease the land for construction of a

hotel.

He stated, H

A

B

c

D

E

F

G

248 SUPREME COURT REPORTS- [1987] 2 S.C.R.

"It appears that a total of four acres of Begumbari land is

proposed to be taken for hotel construction. It may be

mentioned that this four acres of land proposed to

be taken

is the only area available there and it is presently covered

by structures of hospital buildings, Research Laboratory,

Operation Theatre, Segregation Wards, Quarantine areas,

post-mortem room, burial ground for dead animals. In

addition there are flower nursery, dumping ground and

fodder cultivation area.

It is not at all possible to carve out

from this four acres of land without disturbing these

structures and services nor it

is true that adequate space

can be made available

in this site for these esential services.

It may also be stated in this connection that the Zoo

cannot be run for a single day without these essential

services, i.e.

(i) burial ground for dead animals, a number

of which die

of infectious and communicable diseases, (2)

quarantine area for keeping animals coming to the Zoo, at

least for

15 days before being shifted to the Zoo proper, (3)

isolation wards away from Zoo Hospital and quarantine

area for treatment of animals suffering from infectious and

contagious dis,eases. (4) post-mortem room for carrying out

p.m. findings, (5) dumping ground for dumping huge

garbages coming out of the Zoo daily,

(6) fodder cultiva­

tion area for growing fodder for the harbivorous animals

and (7)

pathefogical laboratory for carrying pathological

tests of animals and birds.

"As per clause II of the Alipore Zoological Garden

(Management) Rules,

1957, the disposal of properties and

funds are vested

in the Managing Committee of he Garden.

The relevent clause of the rule reads

as below:

"The Managing Committee shall have custody and

disposal of the property and funds of the Gardens and shall

be responsible for proper maintenance."

Presnmably as a consequence of the letter from the Director of

the

Zoo there was a note by the Secretary, Animal Husbandry and

Veterinary Services Department suggesting the postponement of the

implementation of the Cabinet decision till the necessary facilities then

available at Begumbari land were shifted to other land of the same

H extent within a reasonable distance from the Zoological Garden,

as

.i

_....

I

'

).

SACHIDANANDA PANDEYv. STATE OFW. BENGAL (REDDY, J.] 249

these facilities were originally linked with the Zoo. He pointed out A

that the Metropolitan Development Department had not consulted the

Animal Husbandry Department before the Cabinet note

was prepared

and circulated. So the practical problems of the Zoo did not receive

detailed. consideration earlier. The note also pointed out that

immediate transfer of the four acre plot of land would mean discon­

tinuance of existing hospital facilities, research laboratory, operation B

theatre, segregation wards, quarantine facilities etc. A reference

was

also made to the report of Public Undertakings Committee.

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 C

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. Ncte

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 D

Government and estimated to cost Rs. 2 crores but that it was

ex­

pected 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 ventur to the Government was expected to be high. It was also E

mentioned

that the Ministers, Incharge of Tourism, Animal Husban-

dry,

Land Revenue and Finance had seen the note and 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 28, 1981 the Government of West

Bengal officially conveyed its acceptance of the proposal of the Taj F

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 relin­

quished in favour of Animal Husbandry and Veterinary Services G

Department subject to the requirement that the Zoo will continue to

get the services and 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 Govem­

ment of West Bengal wrote to the Land Acquisition Officer, with H

250 SUPREME COURT REPORTS [1987] 2 S.C.R.

A 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 & 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. It was further

B

c

D

E

F

G

H

expressly stipulated as follows:-

''The Alipur Zoological Garden will continue to get the

services and facilities from the existing essential structures

which fall within the demarcated

in the annexed sketch

map till such time when these essential structures i.e. hospi­

tal and operation theratre are reconstructed on the adja­

cent land occupied

by the Zoological Garden. A copy of

the sketch map

is enclosed for ready.reference. The India

Hotels Co. Ltd.

will find out in consultation with and with

the concurrence of the Animal Husbandry and Veterinary

Services

Department of this Government and the authori­

ties of the Alipore Zoological Garden the period of time

required for reconstruction of the essential structures

standing on the land proposed .to be leased out to the said

company.

It will also let this department have in consulta­

tion with and with the concurrence of the Animal Husban­

dry and Veterinary Services Department of this

Govern­

ment and the Alipore Zoological Garden a plan and e&ti­

mate for reconstruction of the aforesaid essential structures

on the land adjacent to the land proposed to be leased out,

so that all these points are incorporated in the deed of lease

between the said company and the State Government in

this Department for the said land measuring four acres.

"As agreed by the said company during the vari­

ous meetings its representatives had with various depart­

ments

of this Government, the company will either place

the necessary fund

in the hands of Animal Husbandry and

Veterinary

Services Department or the Zoo Garden autho­

rities as the case may be, for reconstruction of the aforesaid

essential structures or reconstruction the aforesaid

essential structures under its own supervision to the satis­

faction of the the Zoo Garden authorities or Animal

Husbandry annd Veterinary Services Department as the

case may be, such funds

will in either case be advanced or

deemed to be advanced by the Company without interest to

SACHIDANANDA PANDEY v. STATE OF W. BENGAL [REDDY, J .J 251

"'t'

be adjusted against dues of the State Government in ac-

A

cordance with the terms and conditions of the lease."

It is to be noted here that though the stipulation was that the cost

of 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. We are told that a B

I

total sum of Rs.

30 lakhs has now been spent by Taj Group of Hotels in

'1

connection with the reconstruction. We are also told that an extent of

'#

288 square meters out of the plot given to the Taj Group was carved

--

out and given back 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

c

Committee was constituted to supervise the construction of alternative 1 facilities. At that stage the writ petition out of which the present

appeal arises was filed on February 26,

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 11, 1982 to hand

over the four acres to the Animal Husbandry Department of the D

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 of the lease deed

was added. First a learned

Single

Judge dismissed the Writ Petition. On appeal, a Division Bench of the

High Court confirmed the judgment of the learned Single Judge. The E

- original petitioners are now before us having obtained special leave

under Art. 136 of the Constitution.

--)_.

I

Before adverting to the submission of the learned counsel, it is

necessary, at this juncture, to refer to certain correspondence. On

April 23, 1982, Late Smt. Indira Gandhi, Prime Minister of India F

wrote to Shri Jyothi Basu, Chief Minister of West Bengal expressing

the

hope that he would not allow the Calcutta Zoo to suffer in any

manner and would leave in intact.

She drew the Chief Minister's atten-

tion to the fact that 'apart from' reduct10n in the already inadecuate

space for the Zoological Garden construction of a Five Star Multys-

toreyed Building would disturb the inmates and adversely affect birds G

migration which was a great attraction.' She also mentioned that the

expert Committeee

of the Indian Board for Wild Life also unanim-

ously disapprove the idea.

She queried whether the Hotel could not be

located elsewhere.

For one reason or the other the

Prime Minister's

letter did not reach the Chief Minister for a considerable time. On

August 21, 1982 the Chief Minister sent his reply pointing out that the H

252 SUPREME COURT REPORTS [1987] 2 S.C.R.

A four acres of land were agreed to be relinquished by the Committee of

management of the Zoological Garden on condition that alternate

arrangements were . made for shifting the existing structures which

were necessary for the Zoo from the plot

in question to the adjacent

plot.

The Chief Minister also mentioned that there appeared to be

B

c

D

E

F

G

H

some misconception that the plot in question was a part of the Zoo

Garden. It was not so.

It was outside the Zoological Garden and

separated from it

by a

80-100 feet road. The Chief Minister assured the

Prime Minister that the existing structures would be relocated on the

adjacent land and until that

was done the Zoo would continue to get

their services and facilities from the existing structures. The Chief

Minister further drew the attention of the

P{ime Minister to the fact

that the hotel was likely to be a six storeyed one and would not be the

only tall building near the Zoo. There were already a large number of

high-rise residential buildings around the Zoo. No one had raised any

objection when those building were constituted. Another multis­

toreyed building which was going to be the largest

in the locality was

under construction near the Zoo for the Post and Telegraph Depart­

ment. There was no report that the existing multistoreyed buildings

had any adverse affect on the migratory birds or the animals. The

Chief Minister also pointed out that the lessee and their experts on

wild life has assured them that

in any case adequate precaution would

be taken in regard to illumination of the hotel and the layout of the

surrendings

so that no disturbance would be caused to the flight path of

the birds or animals.

On August 30, 1982, Shri J.R.D. Tata wrote to

the Prime Minister pointing out that their Hotel management had

discussed the matter at length with representatives of the Wild Life

fund who were satisfied that the proposed hotel would cause no

dis­

turbance to the birds. He had again gone thoroughly into the project

with special reference to its possible impact on the

hds or environ­

ment and had also visited Calcutta in that connection. He

was satisfied

that the project could not possibly disturb birds using the lake or

interfere with their free movement. He gave his reasons as follows:

"The four-acre plot assigned to the Hotel Company by the

State Government is not within the boundaries of the area

belonging to the Zoological Gardens but on the other side

of Belvedere Road, an important thoroughfare parallel to

the main boundary of the zoo and some 700 feet from the

main part

of the lake. It forms part of an area belonging to

the

State Government which the Zoo authorities have upto

now been allowed to use to look after sick animals of the

Zoo and as labour quarters. It contains five small structures

\-

-

SACHIDANANDA PANDEYv. STATEOFW. BENGAL [REDDY, J.] 253

including a cage and a small veterinary laboratory or dis-A

pensary. The whole area

is in sheckingly unkept condition,

most

of it covered by a single or spear grass and other wild

growth. "The hotel is planned to be built away from the front·

age of that plot of Belvadere Road and to be low rise B

structure, the Highest point of which will not exceed

75

feet.

"Dr. B. Biswas, a renowned ormithologist, who re­

cently retired as Professor Emeritus of the Zoological

Survey

of India, whom the Taj Management consulted,

confirmed that a 75-feet high building on the location C

would not worry birds landing on the lake

or climbing out

of it. In fact, as the grounds of the zoo between the lake

and Belvedre Road are covered with high trees, the climb-

ing

or descent angle which the birds have to negotiate to

get over the trees is already steeper that it will be between D

the lake and the proposed hotel.

"As regards the objection that arise from the hotel

itself from vehicular traffic

to and from the hotel would

disturb the birds, the hotel will be totally aircooditioned so

that no noise will emanate frrom it, while noise from the E

heavy traffic on Belvedere Road does not seem to have

bothered the birds upto now. The occasional additional

cars plying into and out of the hotel could therefore hardly

trouble birds resting on the lake some

250 yards away.

"Regarding the fear that lights emanating from the F

hotel

or illuminate of signs of the hotel would disorient the

birds and possibly cause them

to hit the building the

Mana­

gement of the Hotel Company has taken a firm decision

that there will be no bright lights

or noon signs emanating

from the

hotel."

G

Shri Tata further suggested that if necessary the Prime Minister could

appoint a small advisory Committee consisting

of

Shri Pushpa Kumar,

Director

of the Hyderabad Zoo considered to be the finest zoo in India

and

one of the best in

Asia, Dr. Biswas. Mrs. Anne Wright and the

Chairman

of the Managing Commitee of the Zoological Garden to

advise

on the snbject.

On September 1, 1982, Smt. Indira Gandhi H

254 SUPREME COURT REPORTS [1987] 2 S.C.R.

A wrote to Mr. Tata expres:;ing 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.

Dr. L.M. Singhvi, learned counsel for the appellants·.made the

following submission before us; The Begumbari land

was statutorily

B vested in the Managing Committee of the Zoological Garden and that

the Committee could not be divested by an executive decision without

proper procedure being followed. The land could not be leased to the

Taj

Group of Hotels without inviting tenders from willing persons and

without complying with the requirements of paragraphs

166 and 167 of

the

Land Manual. In taking a decision to take away the land from the

Zoo and to lease the same to the Taj Group of Hotels, relevant consi-

C derations had been ignored and irrelevant considerations had been

taken into account. The decision was taken without considering the

impact on the Zoo and without consulting various interested autho­

rities and institutions.

Several authorities and institutions like the

Director

of the Zoo, the Managing Committee of the Zoo, the

Public

D Undertakings Committee of West Bengal, the Indian Wild Life Board,

leading ornithologists of the country, etc. had disapproved the taking

away

of the land from the

Zoo and leasing it to the Taj Group of

Hotels. These persons and institutions had made several points, none

of which had been taken into account by the Government before it

took the decision to lease the land. The attention of the government

E was not focussed on these questions

as evident from the fact that the Cabi­

net Memorandum hardly

refers to any of the objections. The decision of

the Government was also wrong

as it was apparently based on some

assumptions which had been made without inquiry and verification.

The Chief Minister appeared to be under the impression that Dr.

Biswas and others were not opposed to the proposal. That

was not

F correct. The construction of a

Five-Star Hotel was too heavy a cost to

pay for the environmental detriment caused by it. The terms on which

the lease had been granted were deterimental to the public revenue.

Shri Dipankar Gupta, learned counsel for the Taj Group of

Hotels and Shri Gooptu learned counsel for the State of West Bengal

G argued that the former facilities available

in the four-arce plot of land

were not displaced but were replaced and preserved

by better facilities

in the adjacent plot of land. This

was not to the disadvantage, but to

the advantage

of the Zoo and its inmates. If the dumping ground and

the burial ground

had to be moved elsewhere, it was certainly more

hygienic and a matter for gratification rather than for disgruntlement.

H Nor was there any obstruction to the flight of the visiting birds

as the

-I

f

SACHIDANANDA PANDEY v. STA TE OF W. BENGAL [REDDY, J .) 255

hotel was to be constructed at a distance of 700 feet from the lake and

was to rise to a maximum height of

75 feet, being a medium rise and

not a high rise building.

On the other hand there was going to be an

environmental improvement of the area

as the dumping ground, burial

ground and the semi-dilapidated buildings were to be replaced

by a

hotel ssurrounded by broad roads and a very large number

of trees

proposed to be planted by the hotel management. The landscaping

was

also designed to improve the ecology and not to diminish it. There was

A

B

no occassion for the Government to invite tenders since the establish­

ment of a Five-Star hotel

was not something which could practicably be

undertaken by anyone in that fashion.

It could only be done by nego­

tiation between the persons coming forward with proposals to

establish Five

Star Hotels. The terms of the lease were not to the C

financial disadvantage of the Government. The matter had been con­

sidered at great length by the Committees of Secretaries appointed by

the Government

as well as by WEBCON and they had recommended

the acceptance the nett sales arrangement in preference to the arrange­

ment of rent based on land-cost.

We are unable to agree with the submission of Dr. Singhvi,

learned counsel for the appellants, that the Government of West

Bengal decided to grant the lease of the Begumhari land to the Taj

Group of Hotels without applying their mind to very important rele­

vant considerations. Much of the argument on this question was based

D

on the assumption that the decision to lease the Begumbari land to the E

Taj

Group of Hotels was taken on February 12, 1981. The decision

taken by the Cabinet on February

12, 1981 was merely to enter into

negotiations with the

I.T.D.C. and the Taj Group of Hotels in regard

to leasing the Hastings House property and the Begumbari land.

Negotiations with the I.T.D.C. did not fructify while negotiations with

the Taj

Group of Hotels fruitioned. It was on September

10, 1981 that F

the Cabinet finally took the decision to lease the Begumbari land to

the Taj Group.

If there was any decision on February 12, 1981 in

regard to leasing the Begumbari land it could at best to characterised

as purely tentative and it could not

by any stretch of imagination be

called an irrevocable or irreversible decision in the sense that the

Government was powerless to revoke it or that it had created any rights G

in anyone

so as to entitle that person to question any reversal of tbe

tentative decision. It was not a decision, if it was one, on which any

right could be hung. At that stage, the Government of West Bengal

appeared to have been on the search for two suitable plots of land

which could be offered, one to the

I.T.D.C. and the other to the Taj

Group of Hotels for the construction of Five-Star Hotels. The record H

256 SUPREME COURT REPORTS [1987] 2 S.C.R.

A shows that these two chain-hoteliers wer the only hoteliers-and, they

certainly were leading botchers

of the country-who had come for­

ward to negotiate with

the West Bengal Government regarding the

constuction

of Five-Star Hotels. The city of Calcutta was noticeably

lacking in the 'Five-Star Hotel amenity' to attract tourist, local and

B

c

foreign, and the Government of West Bengal was anxious to do its

best to promote the tourist industry which it was hoped'

would pr-0-

vided direct and indirect employment, earn foreign exchange and con-

fer other economic benefits to the people of the State. It is immaterial

whether the move come first from the Government or from the Taj

Group. The Government was anxious that more Five-Star Hotels

should be established

at Calcutta and the Taj Group was willing to

establish one. They wanted a suitable plot for its construction.

It was

the suggestion for the All India Tourism Conference presided over by

the

Union Minister for Tourism that State Government should make

plots in good locations available at concessional rates for construction

of hotels in order to

promote the Tourist Industry. It was in pursuance

of this general all-India policy and, in particular, to fulfill the felt-

D needs

of Calcutta that the Government of West Bengal was looking

out for a suitable plot in a

good location. They were clearly not doing

so

at the behest of the Taj Group of Hotels. It does not require much

imagination to say

that location is among the most important factors to

be considered when constructing a Five-Star Hotel, particularly if it is

to promote tourism. Obviously, one place is not as good as another

E

and the place has to be carefully chosen. After excluding Salt Lake and

after considering some properties in Chowringhee, the Government

felt

that two properties, the Hastings House property and the

Begumbari property could be thought

of as meeting the requirements.

Since the Hastings House

property, was not found acceptable by the

Taj Group, it was decided to negotiate with them in regard to

F construction of a Five-Star Hotel on the Begumbari land. We find it

difficult to treat this decision to negotiate with the Taj Group in regard

to construction

of a Five-Star Hotel on the Begumbari land as a final

decision to

part with the land. The prominent use to which the land

was evidently

put at the time was as a dumping ground for refuse and

rubbish and for growing fodder for elephants. This was noticed and

G

mentioned in the note prepared for the consideration of the Cabinet

and it was suggested that separate provision would have to be made for

them. Therefore, it is clear that it was not forgotten that if the land was

to be allotted to the Taj Group, separate provision would have to be

made for whatever use the land was being put to them. The Govem­

ment was not unmindful of the interests and requirements of the

H Zoological

Garden though at that stage no detailed

investig.ations had

-"( --

-¥

j

SACHIDANANDA PANDEY v. STA TE OF W. BENGAL (REDDY, J .1 257

~

apparently been made. The decision of the Government was not one

A

of those mysterious decisions taken in the shrouded secrecy of Ministe-

4 rial Chambers. It appears to have been taken openly with no attempt

at secrecy. The decision, perhaps proposal would be a more apprn-

priate word, was known to the Public Undertakings Committee in less

then two days. They expressly refer to it in their report dated February

14, 1981 made two days after the Cabinet decision. By Twenty-first B

February it was public knowledge and news of the proposal was

·~ published in the daily newspapers. We have no evidence or any irn-

mediate or subsequent public protest but there were certain objections

1·

from some circles. Earlier we have extracted the report of Public

-

Undertakings Committee. The substance of the objection of the Public

Undertakings Committee was that the facilities available in the

c

Begumbari land would be left unprovided for if the land was given to

f

the proposed hotel. The available facilities were mentioned as Staff

quarters, hospital for animals, burial ground for animals, fodder for

elephants etc.

It was also said that if the hospital and the burial ground

were

to be shifted to the main garden it would result in an unhealthy

atmosphere for the animals and the zoo and would detract from the D

beauty of the Zoo Garden. The assumption of the

Public Undertakings

Committee that the hospital and the burial ground were to be shifted

to the main garden was baseless, since, there was never any such

.,..

proposal. A modern zoo hospital for animals has been constructed in

the remaining extent

of Begumbari land replacing the old hospital

which was housed in a semi-dilapidated building. Surely, there should E

-

be no complaint about it. It has also been proposed to shift the burial

ground elsewhere.

That would be most desirable from any point of

view. Fodder for elephants should not again be considered to be prob-

--.\-·

!em. It would be stretching credibility to suggest that it is necessary to

grow fodder in the Begumbari land to feed the elephants

in the zoo. Fodder may be bought and brought from elsewhere. The Chief Town F

I

Planner who was deputed to visit the site at the request of the SecFe-

tary, Metropolitan Development Department and who visited the Zoo

accompanied by the Director

of the Zoo reported that 2 to

2

1

;, acres of

land might be made available for the hotel. If four acres of land were

given,

he expressed the apprehension that the hospital and the dump-

ing ground would have to be moved elsewhere. The hospital

as we G ~

have already mentioned has since been conveniently and comfortably

accommdated

in a new building and the proposal is to move the dump-

ing ground elsewhere. The Managing Committee of the Zoo also ini-

tially expressed its opposition to the proposal to construction hotel on

land belonging to the Zoo. The Committee's objections were two-fold:

H

(1) A

muliti-storied building in the vicinity of the Zoo will disturb the

258 SUPREME COURT REPORTS [1987] 2 S.C.R.

A animals and the ecological balance and will affect the bird migration

(2) the land was already used for various purposes, that is, fodder

cultivation, burial ground for animals, hospital, operation theatre,

quarantine area, post-martom room and nursery.

It would be impossi­

ble, according to the Committee to accommodate these essential

services within the campus

of the main Zoo

.. The objections of the

B Managing Com!llittee were first brought to the notice of the Minister

for Metropolitan Development who submitted a note to the Chief

Minister pointing out that even if four acres of land out of the eight

acres of Begumbari land

was given to the Taj Group, there would still

remain sufficient land for accommodating the existing facilities. The

Chief Minister considered the objections and noted that if further

c

facilities were necessary for the Zoo, Government would provide

them. Thereafter the Managing Committee reversed its earlier stand

and agreed to the proposal on the assurance that adjacent land and

matching grants would be given to the Zoo. We have earlier referred

to the letter of the Director

of the Zoo dated June 29, 1981 addressed

to the s·ecretary, Animal Husbandary Department where he expressed

D his opposition to the proposal on the ground that the Zoo could not be

run for a single day without the essential services which were being

provided in the four acres of land proposed to be given for the hotel.

This again, we notice,

is based on the assumption that there was going

to be no provision for those facilities once the hotel

was constructed.

We have already pointed out that this assumption

is wholly incorrect.

E

The letter of the Director of the Zoo was followed by a note by the

Secretary of the Animal Husbandry Department suggesting that the

practical problems of the Zoo should receive detailed consideration

and that the immediate transfer of the land to the hotel would mean

discontinuance of the existing facilities. In the face of all this material,

F

we do not see how it can be seriously contended that the interests and

the

requirements of the Zoo were totally ignored and not kept in mind

when

the decision was taken to lease the land to the Taj Group of

Hotels. The Chief Minister's attention

was expressly drawn to the

Managing Committee's first Resolution expressing its opposition to

the proposal to give the land for the construction of a hotel and detail­

ing the objections and the Chief Minister had expressly noted that all

G facilities necessary for the Zoo would be provided

by the Government.

The assurance was also conveyed to theManaging Committee through

the amissaries of the Chief Minister. There were inter-departmental

notings which

we presume must also have been brought to the notice

of the Chief Minister. We find it impossible to agree with the stricture

that the Chief Minister turned a blind eye and a deat ear to the

H interests and the requirements of the Zoo and went about the question

-+"

I

I

-

~·

SACHIDANANDAPANDEYv. STATEOFW. BENGAL [REDDY,J.] 259

of allotment of land to the Taj Group of Hotels determined to give the A

land to them and with a mind closed to everything else.

We cannot do

so in the face of the assurance of the Chief Minister that facilities

would be provided for the

Zoo and if, as the saying goes, the proof of

the pudding is in the eating, the Chief Minister's assurances are found

reflected in the lease executed by the Taj Group of Hotels

in favour of

the Government of West Bengal. In Clause

25 of the lease dead, it is B

expresssly stipulated that the lessee shall reconstruct the structures

now existing on the demised land (as found

in the sketch accompany·

ing the deed) on the adjacent plot of land and that the plan, design,

lay

out, estimates, etc. of the proposed new structures should be supplied

by the Alipur Zoological Garden to the lessee. The reconstructed

structures were required to be equal be the existing ones in floor area, C

but it was open to them to increase the floor area by agreement. The

amount expended by the lessee towards the reconstruction of the

structures was to be adjusted without interest against the dues of the

lessee to the Government. The Alipore Zoological Garden authorities

were required to vacate the existir.g structure within a period of

six

months which was also the period stipulated for raising the new con-D

structions.

We may add here that the Taj Group of Hotels have spent a

sum

of Rs.

30 lakhs towards the cost of the new constructions, but that

they have waived their right to claim reimbursement from the Govern­

ment.

An affidavit to that effect was also filed before the trial court.

Thus we see that the contention of the appellants that the Government

of West Bengal had no thought to spare for the facilities which were till E

then being provided

in the Begumbari land is unsustainable. The

learned counsel for the appellants urged that the second

Cabinet

Memorandum dated September 9, 1981 on which date the Govern­

ment took the final decision to grant the lease made no mention of the

needs and interests

of the Zoo or the facilities provided in the

Begumbari land for the Zoo.

It is true that there is no reference to F

these matters in the second Cabinet Memorandum. But that

is for the

obvious reason that the matter had already been the subject matter of

inter-department discussion and communication. The Managing

Committee

of the Zoo which had initially opposed the proposal had

also come round and had agreed to the proposal.

It was, therefore,

thought that there was no need to mention the needs and interests of G

the

Zoo which were already well known and had also received

consideration.

It was suggested that the Zoo itself required to be expended and

there was, therefore, no land which could be spared. The land allotted

to the hotel was, as we have seen, not used for the main purpose of the H

260 SUPREME COURT REPORTS [1987] 2 S.C.R.

A

zoo and was not in fact part of the main Zoological Garden. The

Government had already in mind a proposal to start a subsidiary Zoo y·

in an extent of about 200 acres of land in the outskirts of Calcutta. This '

has been mentioned in the various notings made from time to time. We

have

no doubt that the Government was quite alive to the need for

expansion of the zoo when they decided to grant four acres of

B Begumbari land which was not used for the main purpose of the zoo

for the construction of a

Five-Star hotel.

The next question

is whether the Government was alive to the

'r

ecological considerations, particularly to the question of the migratory

x

birds when they took the decision of lease the land to the Taj Group of -

c

Hotels. Again sustenance to the argument of the learned counsel for

the appellants

is sought to be drawn from the circumstance that neither

of the two Cabinet Memoranda dated January 7, 1981 and

September

9, 1981 referred to the migratory birds. It is wrong to think that every-

thing that

is not mentioned in the Cabinet Memoranda did not receive

consideration

by the Government. We must remember that the

pr-o-

D cess of choosing and alloting the land to the Taj Group of Hotels took

merely two years, during the course of which objections of various

kinds were raised from time to time.

It was not necessary that every

one

of these objections should have been mentioned and considered in

each of the Cabinet Memoranda. The question of the migratory birds

>-.

was first raised in the resolution of the. Managing Committee dated

E June 11, 1981. This resolution was forwarded to the Chief Minister and

conside~ed by his as evident from the note of the Chief Minister and

-the suiequent reversal of the Managing Committee's resolution at the

instance

of the Chief Minster and on his assurances. The Chief Minis-

ter was certainly .aware of the question of the migratory birds before it

__.......

was finally decided to allot the Begumbari land to the Taj Group of

'

F Hotels. That the Government was aware of the dissension based on i

the alleged obstruction likely to be caused by a mulit-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 muki-

storeyed buildings all around the Zoological Garden, but there

was no

G 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 1he surroundings so -

that no disturbance would be caused to the flight path of the birds or

aniamls. Shri J.R.D. Tata, on behalf of the Taj Group of Hotels, also

H

wrote to the Prime Minister assuring her that the hotel management

had discussed the matter at length with a representatives of the Wild

SACHIDANANDA PANDEY v. STATE OF W. BENGAL (REDDY, J.] 261

Life Fund who, after discussion, had been satisfied that the proposed

A

'(

hotel would cause no disturbance to the birds. He further assured her

that he had himself gone thoroughly into the project with special refer-

ence to the possible impace on the birds and the environment and had

satisfied himself that project would not caused any disturbance to the

birds

or their free movement. The reasons given by him have already

been extracted earlier by us from his letter. He pointed out that the B

four-acre plot was not within the main Zoological Garden,

but was

--1

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

-i

the lake. The hotel was porposed 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. This was mentioned

c

apparently to indicate that the building would not come within the -t

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 D

Belvedere Road were covered with tall trees and that the birds

negotiating the trees would have to

fly at the steeper angle than it

would

be necessary to negotiate the proposed hotel. The vehicular

-~

traffic on Belvedere Road which was also heavy did not bother the

birds and the slight increase of the vc;h_icular traffic consequent on the

construction of the hotel was also not likely to bother them either.

It E

-

was also pointed out that particular care would be taken in the matter

of illumination of the hotel so that bright lights or neor signs emanat-

ing from the hotel would not disturb the birds and animals.

~-

The learned counsel for the appellants drew our attention to a

I

I

letter written by Dr. Biswas to the Statesman dated August 3, 1982 in F

'

which he disowned having made any statement to a press correspon-

dent by name, Bachi J Karkaria that the hotel posed no threat at all to

the migratory flight path. He explained that what he meant to

say was

that migratory birds visiting the Zoo lake choose places to the east and

south-east of the lake for nocturnal feeding and that their flight to the

nocturnal feeding grounds

in the marshes would be affected, if the G

~

proposed hotel was a high-rise building. Apart from the fact that he

did not mention what he had in mind when he spoke of a high-rise

building, the point made by Shri J.R.D. Tata in his letter to the Prime

Minister that birds flying in or flying out had to fly at a very steep angle

while negotiating the tall trees between the lake and Belvedere Road,

an angle much steeper than the angle at which they would have to fly H

262 SUPREME COURT REPORTS [1987] 2 S.C.R.

A to negotate a 75 feet tall building, such as, the proposed hotel, remains

unanswered. Be it noted that Belvedere Road

is to the east of the lake.

We may also note here a point made by Dr. Biswas

in his letter to the

Statesman that there were possible health hazards in the re-location of

the

Zoo hospital, quarantine area and post-mortem room in the area

adjacent to the staff quarters. He

is no expert on the subject of public

B health and no one has complained that there would

be any hazard to

the health of those living

in the staff quarters by the re-location of the

hospital, etc. We are satisfied that the question of obstruction which

may

be caused to migratory birds did not go unnoticed by the

Govern­

ment before the decil;ion to lease the land was taken and we are also

satisfied that the building of the proposed hotel

is not likely to cause

c

any obstruction to the flight path of the migratory birds.

We may refer here to the resolution of the Wild Life Board to

which a reference was made by the

Prime Minister in her letter to the

Chief Minister. Our attention was drawn by the learned counsel for

appellants to the presence of two renowned experts at the meeting of

D

the Wild Life Fund on September 25, 1981. They were

Shri Pushp

Kumar, Director of the Hyderabad Zoo and Mrs. Anne Wright. The

subject which was discussed by the Expert Committee on September

25,

1981 was

"Construction of a Five-Star Hotel within the premises of

Ali pore Zoo in Calcutta." The proceedings of the Committee were

recorded

as follows:

E

F

"Director, Geological Survey of India explained the whole

matter and pointed out the utter impropriety of the deci­

sion of the Government of West Bengal to construct a Five­

Star Hotel within the premises of Alipore Zoo in Calcutta.

The Committee agreed fully with this view and desired that

this matter should be taken up immediately

by the Central

Government with the

State Government."

This record of the proceedings shows that the Experts Committee of

the Wild Life Fund was proceeding on the fundamental wrong assump­

tion that the hotel was proposed to be constructed "within the premises

G of Alipore Zoo". The resolution was justified on the assumed pre­

mises but unfortunately it was founded on a wrong premises. Later

Mrs. Anne Wright appeared to lie satisfied with what was finally done

as evident from her letter dated November

19, 1983 to Mr. J.R.D.

Tata, a copy of which has been placed before us.

H Bearing in mind the proper approach that we have to make when

-

SACHIDANANDA PANDEY v. STA TE OF W. BENGAL [REDDY, J .] 263

~'(

.

questions of ecology and environment are raised, an approach which

we have mentioned at the outset, we are satisfied that the facts and

A

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

pm-

posed hotel is a Garden-hotel and there is perhaps every chance of the B

'4

ecology and environment improving as a result of planting numerous trees

all around the proposed hotel and the removal of the burial ground

f

and dumping ground for rubbish.

-'

Dr. Singhvi cited before us the well known decisions of this

Court in Rohtas Industries Ltd. v. S.D. Agarwal, (1969] SCR 108;

c

Barium Chemicals v. A.G. Rana, (1972] 2 SCR 752 and Mohinder

't

Singh Gill v. Central Election Commission, [ 1978] 2 SCR 273 to urge

that even an administrative decision must

be arrived at after taking into

account all relevant considerations and eschewing irrelevant consi-

derations and that the reasons for an order must find a place in the

order itself and those reasons cannot be supplemented later by fresh D

reasons in the shape of

an affidavit or otherwise. The submission was

that neither the Cabinet memorandum of January 7, 1981 nor the

.

.-{

Cabinet Memorandum of September 9, 1981 revealed that relevant

considerations had been taken into account. What

was not said in

either of the Cabinet Memoranda, it

was said, could not later be sup-

plemented by considerations which were never present to the mind of

E

the decision making authority. We do not agree with the submission of

Dr. Singhvi. The proposition that a decision must be arrived at after

'l-

taking into account all relevant c.onsiderations, eschewing all irrelev-

ant considerations cannot for a moment be doubted.

We have already

pointed

out that relevant considerations were not ignored and, indeed,

were taken into account

by the Government of West Bengal. It is not F

one of those cases where the evidence is first gathered and a decision is

later arrived at one fine morning and the decision is incorporated in a

reasoned order. This is a case where discussions have necessarily to

stretch over a long period of time.

Several factors have to be indepen-

dently and separately weighed and considered. This

is a case where the

-1

decision and the reasons for the decisions can only be gathered by G

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.

It is important to note that unlike Mohinder

Singh Gill's

case where that Court was dealing with a Statutory Order made

by a

statutory functionary who could not therefore, be allowed to supple-

ment the grounds of this order by later explanations, the present

is a H

A

B

c

264 SUPREME COURT REPORTS [1987] 2 S.C.R.

case where neither a statutory functions nor a statutory functionary is

involved but the transaction bears a commercial though public charac­

ter which can only be settled after protracted discussion, clarification

and consultation with all interested persons. The principle of Mohin­

der

Singh Gill's case has no application to the factual situation here.

It was said that the principles of Natural Justice had not been

observed and that those who are most interested in the Zoological

Garden were not heard in the matter before the decision

was taken.

We do not think that anyone can have a justifiable grievance on this

score. The proposal to lease the Begumbari land

was public knowledge

as we have seen.

Such as those as were really interested in the matter

like the Managing· Committee of the Zoological Garden and the

Director of the 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.

It is impossible to

agree with the submission that there was any failure to observe princi-

D pies

of Natural Justice.

One of the submissions of Dr. Singhvi, learned counsel for the

appellants, was that the Bengal Public Parks Act, 1904 vested the

Begumbari land in the Managing Committee of the Zoological Garden

and that what had become statutorily vested

in the Committee could

E not

be divested by an executive fiat.

We agree that an Act of the

Legislature cannot be undone

by a mere act of the executive. But what

is the position here? Did the Act deal with the land at all? The

Begumbari land was given to the Zoological Garden

by the Govern­

ment

in

1880. We do not have the original grant before us. The entire

file

of the Government relating to the Begumbari land was produced

F before the Trial Court without any attempt at withholding any docu­

ment. The records were before the High Court and there are now

before

us two copies of a letter written on July 7,

1880 by the Assistant

Secretary to the Government

of Bengal in the

Public Works Depart­

ment to Mr.

L. Schwandler, Honorary Secretary, Zoological Garden

conveying to him the sanction

of the Lt. Governor for the transfer of

G the land to the east of Belvedere Road, known

as 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 23rd. The

conditions were mentioned

as:

H

"1st. That the land is to be used for the purpose of

acclimatization only.

SACHIDANANDA PANDEY v. STA TE OF W. BENGAL [REDDY, J .J 265

2nd. That Oamivors are not to be kept on any part of it, A

on any account.

3rd. That the grounds are to be kept clear and neat.

4th. That the land must be restored to the Government if

hereafter required. The Zoological Garden Commit-

tee being reimbursed for any expenditure they

may B

have incurred in building

there."

Dr. Singhvi questioned the authenticity of the documents and also

objected to their reception in evidence on the ground that no founda­

tion had been laid for the reception of secondary evidence. We must

straightaway say that no objection was taken either before the single C

judge

Or before the Division Bench either to the authenticity or to the

admissibility of the documents.

We do not for a moment doubt the

genuineness

of the two documents which have been produced from

old official records. What

is important is that the Managing Commit-

tee of the Zoological Garden never doubted the authenticity of the

documents nor was any question ever raised to suggest that the terms D

of the grant were other than those mentioned in the letters. We are

satisfied that for the purposes of the present case, we will be justified

in proceeding on the basis that the land which

was undoubtedly

Government land, to start with, 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. E

Another term was that the Zoological Garden Committee would be

suitably compensated for any expenditure incurred

by it on the con­

struction of any building on the land.

The further submisison

of Dr. Singhvi was that whatever might

have been the terms of the grant in favour of the Zoological Garden, F

the

Beng<tl Parks Act, 1904, vested the land in favour of the Zoological

Garden and there was no way

by which the Government could divest

the Zoological Garden

of the land except by a procedure known to the

law such

as acquisition or requisition. We are unable to find any sub­

stance in the argument. The Bengal

Parks Act, 1904 was enacted "to

protect public parks and gardens in Bengal from injury and to secure G

the public from molestation annoyence while resorting to such parks

and gardens." The Act was made applicable to the public parks and

gardens mentioned in the schedule. The Zoological Garden, Alipore

was one such park. Section 3 unables the State Government, by notifi­

cation

in the official Gazette

"to declare that any specified land, bridge or

pontoon shall, for the purposes of this Act, be deemed to be included H

A

B

c

D

E

F

G

H

266 SUPREME COURT REPORTS [1987] 2 S.C.R.

in any park." Section 4 enables the Government to make rules for the

management, and preservation of any park, and for regulating the use

thereof by the public.

In particular, the rules may regulate the admis­

sion into the park

of persons, animals and vehicles, prohibit the caus­

ing

of any manner of injury to the trees, plants, monuments, furniture

etc. in the park, prohibit shooting,

bir-0-testing etc. prohibit or regu­

late fishing

or boating, prohibit bathing, or the pollution of water by

any other means, prohobit the grazing of horses or ponies, prohibit the

teasing or annoying of animals or birds kept

in the park, prohibit the

commission of any nuisance,

or the molestation or annoyance of any

person resorting to the park etc. etc. From the Preamble and the

provisions

of the Act, it is clear that the Act is intended to protect the

inmates and the property of the park from injury

by persons resorting

to the park and to protect persons resorting to the park from molesta­

tion

or annoyance by others. The Act is aimed at protecting the park

and its visitiors from injury and annoyance

by despoilers and maraud­

ers. The Act has nothing whatever to do with the vesting of

any prop­

erty in the parks. There

is infact no provision which deals 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 exam­

ple,

is taken on lease for a specified number of years by the park and

included in the park

by a notification under sec. 3, it does not mean

that the land has become the property of the park; it only means that

the various things, the doing of which

is regulated or prohibited by the

Act and the rules will not be

done or will be regulated on the adjacent

land also. We do not think that the provisions of the Bengal Public

Parks Act have any relevance to the question of the power of the

Government to transfer the Begumbari land to the Taj Group of

Hotels.

,.

One of the arguments strenuously pressed by Dr. Singhvi was

that, even if it was assumed thal the Government had the power to

transfer the land, the Government did not have the power to deal with

the land in any manner that they liked. Certain norms and procedures

had to

be observed and nothing could be done which would result in

loss to the public exchequer. The Bengal Land Manual prescribed the

procedure to be followed

in the matter of transferring land belonging

to the Government. That procedure had to be observed. In

any case, it

was necessary either to held a public auction

or to invite tenders atleast

from the limited class of persons interested

in utilising the land for the

purpose for which the land was proposed to be transfered. The learned

SACHIDANANDA PANDEY v. STA TE OF W. _BENGAL (REDDY, J .] 267

"'i

counsel invited our attention to several decisions of the court: Rash

A

Bihari Panda v. State

of Orissa, (1969] 3 SCR 374; R.D. Shetty v.

International Airport Authority, (1979] 3 SCR

1014; Kasturi Lal Laxmi

Reddy v. State

of Jammu & Kashmir,

(1980] 3 SCR 1338; State of

Haryana v. Jage Ram, [1983] 4 SCC 56; Ram & Shyam Co. v. State of

Haryana, [ 1985] 3 SCC 26 and Chenchu Rami Reddy v. Government of

Andhra Pradesh, (1986] 3 SCC 391. B

--i

The West Bengal Land Management Manual, 1977 is published

'{

under the authority of the Board of Revenue, West Bengal. Like

-

similar volumes going by whatever name, published by the Boards of

Revenue of other States, the West Bengal Land Management Manual

also is compendium of (1) statutes and rules framed either

by the c

-.;.

Government or by the Board of Revenue pursuant to a statutory

power conferred on them; (2) Orders issued by the Government from

time to time; and (3) Orders, circulars, instructions and memoranda

issued by the Board

of Revenue from time to time. All these are

arranged in such a manner that reference to them by the officials of the

D

Revenue hierarchy is easy. 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

,,.i

facts. They are not to be ignored until amended. The Government or

the Board may have the power the amend these orders and instruc-

tions,

but nonetheless they must be obeyed so long as they are in force

E

~ and are applicable.

The appellants invited our attention to paragraphs

165, 166 and

'}--

167 of the Land Management Manual and urged that the rules laid

down by the provisions have been ignored by the Government of West

Bengal. These provisions

of the Land Management Manual do not

F

appear to have anything to do with the transfer and use of the land in

the manner proposed, in which the State also has 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 in-

G

~

tended 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

special and economic benefits are sought.

In pursuing the socio-economic objective is the State bound to

H

268 SUPREME COURT REPORTS [1987] 2 S.C.R.

A invite

tenders or held a public auction? To answer this question, we

may refer to the cases cited at the Bar.

B

c

In Rash Bihari

Panda v. State of Orissa (supra) the Government

offered the option to purchase kendu leaves to certain old contractors

on the same terms as in the previous year. Realising that the scheme of

offering to renew contracts with the old licences on the same terms was

open to objection, the Government changed its policy and formulated

a new scheme by which offers were invited from intending puchasers

of

Kendu leaves but the invitation was restricted to these individuals who

had carried out the contracts in the previous year without default and

to the satisfaction of the Government. The Court held that the right to

make offers being open to

a limited class of persons, it effectively shut

out all other persons carrying on trade in Kendu leaves and also new

entrants into that business. It was, therefore, ex-facie discriminatory

and imposed unreasonable restrictions upon the right of persons other

than existing contractors to carry on business. It is to be seen that in

the present case no one has come forward alleging that he has been

D discriminated against

and his fundamental right to carry on business

had been affected. The very nature of the construction and

establish­

ment 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

E

F

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. We have it in the record

that 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

a1rnngements for establishing a Five Star

Hotel. In the circumstances, particularly in the absenc.: of any leading

hoteliers coming forward,

the Government of West Bengal was

perfectly justified in entering into negotiations with.the

I.t.D.C. and

the Taj Group of Hotels instead of inviting tenders.

In R.D. Shetty v.

International Airport Authority (supra).

Bhagwatti,

J., speaking for the Court observed that the activities of

G the

Goyernment had a public element and if it entered into any

contract, it must do so fairly without discrimination and without unfair

procedure. Whenever the Government dealt with the public, whether

by way

of giving jobs or entering into contracts or issuing quotas or

licences or granting other forms of larges, the Government could not

act arbitrarily at its sweet-will but must act in conformity with

H

standards or norms without being arbitrary, irrational or irralevant. If

-~ -

i

I

l

SACHIDANANDAPANDEYv. STATEOFW. BENGAL[REDDY,J.] 269

the Government departed from such standard or norm in any particu-A

Jar case

or cases its action was liable to be struck down unless it could be

shown that the departure was not arbitrary but

was based on some

valid principle which was not irrational, unreasonable or dicrimi­

natory.

In the present case as earlier explained by us direct negotiation

with these who had come

forward with proposals to construct Five Star

Hotels was without doubt the most reasonable and rational

way of B

proceeding in the matter rather than inviting tenders or holding public

auction. There was nothing discrrninatory

in the procedure adopted

since

no other leading hotlier had shown any inclination to come

forward. Tenders and Auction were most impractical

in the circum­

stances.

In Kasturilal Lakshmi Reddy v. State of J ammu and Kashmir

(supra), Bhagwati, J. again, speaking for the

Court reiterated what

had said earlier in R.D. Shetty v. International Airport Authority

(supra). He proceeded to say,

c

"The Goveinment, therefore, cannot, for example, give a D

contract or sell or lease out its property for a considerations

less than the highest that can be obtained for it, unless of

course there are other considerations which render it reaso­

nable and in public interest to do so. Such considerations

may be that some Directive Principle is sought to be

advanced on implemented

or that the contract or the

pr-0-E

perty is given not with a view to earning revenue but for the

purpose of carrying out a welfare scheme for the benefit of

a particular group or section of people deserving it or that

the person who has offered a higher consideration

is not

otherwise fit to be given the contract

or the property. We

have referred to those considerations only illustratively, for F

there may be

an infinite variety of considerations which

may have to be taken into account by the Government

in

formulating its policies and it is on a total evaluation of

various considerations which have weighed with the

Government

in taking a particular action, that the

Court

would have to decide whether the action of the Govern-G

ment

is reasonable and in public interest. But one basic

principle which must guide the

Court in arriving at its

determination on this question is that there

is always a

presumption that the Governmental action

is reasonable

and

in public interest and it is for the party challenging its

validity to show that

is wanting in reasonableness or is not H

A

B

c

D

E

F

G

H

270 SUPREME COURT REPORTS [1987] 2 S.C.R.

informed with public interest. This burden is a heavy one

and it has to be discharged to the satisfaction of the Court

by proper and adequate material. The Court cannot lightly

assume

that the action taken by the Government is un­

reasonable or without public interest because,

as we said

above, there are a large number of policy considerations

which must necessarily weigh with the Government

in tak­

ing action and therefore the Court would not strike down

governmental action as invalid on this ground, unless it is

clearly satisfied that the action

is unreasonable or not in

public interest. But where it is so satisfied, it would be the

plainest duty of the Court under the Constitution to

invali­

date the governmental action."

With reference to the particular facts of the case, it was stated,

"The argument of the petitioners was that at the auctions

held in December,

1978, January 1979 and April 1979, the

price of resin realised

was as much as Rs. 484, Rs.

520 and

Rs. 700 per quintal respectively and when the market price

was so high, it

was improper and contrary to public interest

on the part

of the state to sell resin to the second

respon­

dents at the rate of Rs. 320 per quintal under the impugned

order. This argument, plausible though it may seem is fal­

lacious because it does not take into account the policy of

the state not to allow export of resin outside its territories

but to allot in only for use in factories set up within the

State. It is obvious that, in view of this policy, no resin

would

be auctioned by the

State and there would be no

question of sale

of resin in the open market and in this

situation, it would be totally irrelevant to import the con­

cept of market price with reference to which the adequacy

of the price charged by the

State to the second respondents

could be judged.

If the

State were simply selling resin,

there can be no doubt that the State must endeavour to

obtain the highest price subject, of course, to any other

over-riding considerations of public interest and

in that

event, its action

in giving resin to a private individual at a

lesser price would be arbitrary and contrary to public

in­

terest. But, where the State has, as a matter of policy,

stopped selling resin to outsiders and decided to allot it

only to industries set up within the State for the purpose of

encouraging industrialisation, ther can be no scope for

~

--

(

~-/

,

t

SACHIDANANDAPANDEYv. STATEOFW. BENGAL [REDDY,J.] 271

And again,

complaint that the State is giving resin at a lesser price than A

that which could be obtained

in the open market. The

yar<l­

stick of price in the open market would be wholly inept,

because in view of the State Policy, there would be no

question of any resin being sold in the open market. the

object of the State in such a case is not to earn revenue

from sale of resin, but to promote the setting up of in-B

dustries within the State."

"If the State were giving tapping contract simpliciter there

can be no doubt that the State would have to auction or

invite tenders for securing the highest price, subject, of

course, to any other relevant overriding considerations of

public weal

or interest, but in a case like this where the

State

is allocating resources such as water, power raw materials

etc. for the purpose of encouraging setting up of industries

within the State, we do not think the State is bound to

advertise and tell the people that it wants a particular in­

dustry to be set up within the State and invite those in­

terested to come up with proposals for the purpose. The

State may choose to do so, if it thinks fit and in a given

situation, it may even turn to be advantageous for the State

to do so, but.if any private party comes before the State and

offers to set up an industry, the State would not be commit­

ting breach of any constitutional

or legal obligation if it

negotiates with such party and agrees to provide resources

and other facilities for the purpose of setting up the industry."

c

D

E

F

The observations of the Court in the light of the facts therein appear to

fully justify the action of the West Bengal Government

in the present

case not inviting tenders or not holding public auction.

In State of Haryana v. !age Ram (supra), it was held that it was

not open to the Excise Authorities to pick and choose a few persons G

only as the recepients of the notice of reauction. There

was no expla­

nation as to how thay came to be chosen and what their status and

standing

in the trade were to justify the choice. The conduct of the

authorities was thought not above suspicion. We have already ex­

plained

why the choice of the Taj Group of Hotels must be held to be

beyond suspicion and above reproach. H

272 SUPREME COURT REPORTS [1987] 2 S.C.R.

In Ram & Shyam Company v. State of Haryana (supra) dealing

A with the question of disposal of State property Desai, J. speaking for

the court said,

B

c

D

E

F

G

H

"Let us put into focus the clearly demarcated approach that

distinguishes the use and disposal of private property and

socialist property. Owner of private property may deal with

it in any manner he likes without causing injury to any one

else. But the socialist or if that

w.ord is jarring to some, the

community or further the public property has to be dealt

with for public purpose and

in public interest. The marked

difference lies

in this that while the owner of private

pm­

perty may have a number of considerations which may

permit him to dispose of his property for a song. On the

other hand, disposal of public property pertakes the

character of a trust

in that in its disposal there should be

nothing hanky panky and that it must be done

at.the best

price

so that larger revenue coming into the coffers of the State administration would serve public purpose viz. the

welfare State may be able to expand its beneficial acti­

vities by the availability of larger funds. This

is subject to

one important limitation that socialist property may be dis­

posed at the price lower than the market price or even for a

token price to achieve some defined constitutionally recon­

gnised public purpose, one such being to achieve the goals

set out in Part

IV of the Constitution. But where disposal is

for augmentation of revenue and nothing else, the State is

under an obligation to secure the best market price avail­

able in a market economy.

An owner of private property

need not auction it nor

is he bound to dispose it of at a

current market price. Factors such as personal attachment,

or affinity, kinship, empathy, religious sentiment or limit­

ing the choice to whom he may be willing to sell, may

permit him to sell the property at a song and without

demure. A welfare

State as the owner of the public pro­

perty has no such freedom while disposing of the public

property. A welfare State exists for the largest good of the

largest number more

so when it proclaims to be a socialist State dedicated to eradication of poverty. All its attempt

must be to obtain the best available price while disposing of

its property because the greater the revenue, the welfare

activities will g"t a fillip and shot in the arm. Financial

constraint may weaken the tempo of activities. Such an

SACHIDANANDA PANDEY v. STATE OF W. BENGAL [REDDY, J.] 273

approach serves the larger public purpose of expanding

A

')

welfare activities primarily for which Constitution envis·

ages the setting up of a welfare State."

In Chenchu Rami Reddy v. Government of Andhra Pradesh (supra) it

was observed that public officials entrusted with the care of 'public

property' were required to show exemplary vigilance. The Court indi-B

cated

that the best method of disposal of such property was by public

--4 auction and not by private negotiation. That was a case where land

belonging to a Math was sold by private trenty for Rs. 20 lakhs when

--~

. there were people ready to purchase the land for Rs. 80 lakhs. The dif-

ference between sale of land and other readily saleable commodities

and the allotment of land for establishing a modem Five-Star Hotel of

c

International standard is so obvious as to need no more explanation.

1 On a consideration of the relevant cases cited at the bar the

following propositions may

be taken as well established. State-owned

or public-owned property is not to be dealt with at the absolute discre-

tion

of the executive. Certain precepts and principles have to be D

observed.

Public interest is the paramount consideration. One of the

methods

of securing the public interest, when it is considered neces-

sary 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 rule. There may be situations where there are compelling

reasons necessitating departure from the rule but then the reasons for

E

.:

the departure must be rational and should not be suggestive of dis-

crimination. Appearance of public justice

is as important as doing

justice. Nothing should be done which gives an appearance of bias.

''j--

jobbery or nepotism.

Applying these tests, we find it impossible to hold that the F

Government

of West Bengal did not act with probity in not inviting

tenders

or in not holding a public auction but negotiating straightaway

at arm's length with the Taj Group of Hotels.

The last and final submission of the learned counsel for the

appellants relates to the commercial and financial aspects of the lease. G

--1

According to the learned counsel, the 'nett sales' method of calculat-

ing the compensation payable to the Government for the lease of the

land

had totally sacrificed the State's interests. He submits that if the

market value of the land had been fairly determined and the rent had

been stipulated at a percentage of that value,

the return to the Govern-

ment would have been much higher. We do not think that there is any H

274 SUPREME COURT REPORTS [1987] 2 S.C.R.

A basis for any genuine criticism. The 'nett sales' method appears to be a

fairly

well known method adopted in similar situations. This was what

was recommended

by WEB

CON, the consulting agency of the West

Bengal Government which submitted a detailed report

on the subject.

This was also the rcommendation of the Committee of Secretaries who

B

c

went into the matter in depth. Even to lay persons like us who are no

financial experts, it appears that the 'nett sales' method does and the

real-based-on-market-value method does not take into account the

appreciating value of land, the inflationary tendency of prices and the

profit orientation. Even on a

prima facie, 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.

On a consideration of all the facts and circumstances of the case,

we are satisfied that the Government of West Bengal acted perfectly

bona fide in granting the lease of Begumbari land to the Taj Group of

Hotels for the construction of a Five-Star hotel in Calcutta. The

D Government of West Bengal did not fail to take into account any

relevant consideration. Its action was not against the interests 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 hold-

}...

ing a public auction or by adopting the 'nett sales' method. In the

E result, the judgments of the learned single judge and the Division

F

Bench of the Calcutta High Court are affirmed and the appeal is dis-

..

missed. In the circumstances of the case, we do not desire to award any

costs.

KHALID, J: The tenacity with which this expensive public in­

terest litigation was pursued

by the petitioners, before the learned

Single Judge and a Division Bench of the Calcutta High Court and

before this Court

is commendable. But, after hearing the lengthy argu­

ments advanced, I ask myself the question whether this exercise could

not have been avoided.

G

Originally the writ petition was filed by five persons. The sup-

porting affidavit to the writ petition

was sworn to by the first petitioner

i,...-

who described himself as a trade unionist. Petitioner No. 2 & 3 are the

life members ·of the Zoo and the remaining two, bona fide residents of

Greater Calcutta and lovers of wild life. The same five persons figured

as appellants before the Division Bench. However, before this Court

H there are only

two petitioners, the 1st and the 2nd in the writ petition.

i

SACHIDANANDA PANDEYv. STATE OFW. BENGAL [KHALID, J.] 275

3rd and 4th petitioners figure here as respondents 6th and 7th. The 5th A

petitioner does not figure

in the array of parties.

My learned brother has considered the facts in detail and the

questions of law relevant for the purpose of this appeal.

I fully agree

with his conclusions. This short tail piece

is with a purpose. This case

goes by the name

"Public Interest Litigation." I wish to delineate the

parameters of public interest litigation concisely, against the back­

ground

of the facts of this case, so that this salutory type of litigation

does not lose its credibility. Today public spirited litigants rush to

Course to file cases

in profusion under this attractive name. They must

inspire confidence

in Courts and among the public. They must be

above suspicious.

See the facts of this case and end result.

B

c

The concern of the appellants has been to preserve the Zoo, to

protect and encourage the migratory birds, to keep their trajectory

clear, to preserve their diurnal feed and nocturnal habitat and to prn­

tect the Zoo. To serve this purpose they want to prevent a·5-Star Hotel

coming up in its vicinity

in four acres land belonging to the Zoo and D

thus to see that this land

is not lost to the Zoo. The litigation has been

pending from

1982 and in the bargin what has happened is described

by the learned Trial Judge

as follows, in paragraph

130 of his

Judgment:

"130. Prayer for stay of the operation of this order is re-E

jected. Because of the pendency of this matter, valuable

time has been lost and if further time is lost, the respondent

No. 5 may not have any further interest

in the matter. They

have suffered sufficient loss and the Govt.

will also suffer

loss. The public has also suffered. Accordingy,

I am not

inclined to stay this matter any further. I ought to point out F

further that as the petitioners Cibtained the interim order,

obviously they were not interested

in an early hearing of

this matter and until a

few months back no step was taken

to have this matter heard.

If a stay is granted, similar situa­

tion will follow."

G

This public interest litigation takes its birth, perhaps from the

righteous indignation of the petitioners, against the State Government

at their bartering away of four acres of land belonging to the Zoo to

the Taj

Group of Hotels. The writ petition is mainly based on the

ground that the decision of the Government is arbitrary. The question

to be answered is whether this accusation can be justified.

On a H

276 SUPREME COURT REPORTS 11987] 2 S.C.R.

A perusal of the records I find that the State Government had made

available to the Court all the relevant documents

so as to satisfy the

Court about the propriety of its action. This

is how the trial Judge deals

about this aspect of the case:

B

c

D

E

F

"4. Before I deal with the contention of the parties before

me.I ought to point out one thing. In this case, ultimately

the hearing

was not confined only in respect of the mate­

rials specified

in the petition and affidavits or annexure to

the same, but the submissions were based on the further

documents and files produced before me mainly

by the

State and also some documents by the private respondent

being respondent No.

5. I ought to point out that this is one

of the exceptional cases where the

State has made available

to this Court all documents

in connection with the proposal

for lending over a piece of the

State Government land to

respondent No. 5 to enable them to construct a 5-star

hotel

in Calcutta. The

State Government has produced be­

fore me the ori~~nal files, including those containing the

notes and Cabinet Memorandum for

my inspection, the

facts which I shall set out herein are gathered from these

records and files produced before me, though most of them

do not find place

in the affidavits .............

"

The two portions of Judgment extracted above show that things:

-one, the petitioners did not take any steps to get the matter heard

expeditiously, after they obtained an interim order to get all the work

stopped; two, that the State Government made available to the Court

all the materials to prove that its decision

was taken after mature

consideration at

all levels.

The appellants failed before the learned Trial Judge on

all the

points raised

by them. After an exhaustive discussion of the various

aspects of the case, the learned Trial Judge dismissed the petition. The

only ground on which the appellants succeeded before the Trial Judge

G was on locus standi. This preliminary objection of the Hotel Group

was rejected.

The matter was taken in appeal. The Division Bench in an

equally reasoned Judgment, adverting to all the factual aspects of the

case, upheld the Judgment of the learned Trial Judge and dismissed

H the appeal.

_,.....

1

•

y

'

-f--

'

t

SACHJDANANDAPANDEYv. STAlEOFW. BENGAL [KHALJD,J.] 277

One redeeming factor in this case is the total absence of any A

allegation

of malafides against the Government by the petitioners.

This

is how the Division Bench deals with aspect of the case in its

Judgment: "The appellants before us have impunged the State Gover­

nent's decision to grant aforesaid four acres of land out of B

Begumbari Compound to India Hotel Co. Ltd., mainly on

the ground that the same

was unreasonable and arbitrary.

The

State Government did not apply its mind to relevant

facts before disposing of the said valuable lands in dischrge

of the public interest. In their writ petition or

in course of

their submissions before

us the appellants did not try to C

make

out a case of personal malice against the

State

Government or its Ministers and Civil Servants ......... "

The Division Bench held that the decision taken was neither

unreasonable nor arbitrary and that taking away of four acres of land

from the

Zoo was not detrimental to public interest. D One would have thought that the concurrent decisions of the

learned Single Judge and the Division Bench, on the facts of the case,

would have persuaded the appellants, to rest content with the litiga­

tion by accepting the verdicts so given. They could have moved the

Government or taken other steps to expedite the starting of an addi­

tional

Zoo with a larger extent which the Government promised. But

the appellants felt that public interest would be served better by

moving this Court for reconsideration of the factual details. When the

matter came up before this Court, this Court gave priority to this case

despite the huge pendency of cases before it, to see whether public

interest was really in peril

or not.

During the course

of the arguments, we soared high along with

the migratory birds into the realms of ecology, environmental protec­

tion, public interest, natural justice, arbitrariness, eminent domain

and the like and ultimately, from those ethereal regions descended on

the terraferma faced with the reality that this case

is devoid of any

merits and has only to be dismissed. That

is why I prefaced this Judg­

ment with the observation that this was an avoidable exercise.

The approach of the Taj Group Hotels in this case has been

E

F

G

creditably fair. They have given all the assurances necessary to pFe­

serve the Zoo and its inmates. They were willing to afford all the H

A

B

c

D

E

F

278 SUPREME

COURT REPORTS [1987] 2 S.C.R.

requisite safeguards. In the place of a dilapidated hospital, operation

theatre and the like, they constructed buildings anew at a cost of Rs.30

lakhs which amount they were entitled to be reimbursed under clause

25 of the lease, which they voluntarily gave up. In addition to this, they

surrendered an area

of 288 sq. mtrs. from the land allotted to them to

the Zoo. They agreed to build not the usual skyscrapper hotel, but a

garden hotel, the height of which would not

go beyond 75 feet, despite

the fact that there existed in the surrounding area buildings which were

very high. This was done to keep free the route of the flight of the

birds. They also agreed to have subdued light

in the hotel, again in the

interest of the birds. They agreed to keep the surroundings of the hotel

and the flora well maintained.

We were told that already

30000 plants

were getting ready to adorn the area to be occupied

by them.

Regarding the commercial and financial aspects of the lease also

there

is nothing secretive though they came in for sharp criticism at the

hands of the appellants before us. This criticism again, according to

me,

is unfounded. The learned. counsel for the Taj Group made avail­

able to us, the method adopted. The method adopted

is the nett sales

method of calculating the compensation paid. This

is a fairly well

known method adopted

in such situations. This method was also sub­

ject to criticism

by the appellants' counsel and he in support of his

submission handed over to

us a calculation, which according to me,

betrays unawareness with the method of calculation to be adopted

in

similar cases. The calculation given to us so far as its arithmetic is

concerned is correct. That is this. An amount of 4 crores, if deposited

in bank, at a particular rate of compound interest, for

99 years, would

swell to an astronomical figure. This calculation

is relevant only when

you think

of selling the land and investing the sale proceeds in a bank.

This calculation conveniently forgets that what

is involved here is not

the sale of the land but a lease

by the Government, as a policy decision

to the hotel group to start a Five

Star Hotel, which according to the

Government was a prime need to the city of Calcutta. The calculation

handed over has no bearing to the facts of this case at all.

G A deal like this cannot be concluded

by public auction. Here, we

do not have a case, again, sale of a Government property. Therefore,

t

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

H criticism.

SACHIDANANDAPANDEYv. STATEOFW.BENGAL[KHALID,J.] 279

't

My purpose in adding these few lines of my own is to highlight

A

the need for restraint on the part of the public interest litigants when

they move Courts. Public interest litigation has now come to stay. But

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,

necesary to lay down clear guide-lines and to outline the correct

parameters for enterainment of such petitions.

If courts do not restrict B

'-1 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

-< y

dispensing justice, will have to take upon themselves administrative

and executive functions.

I should not be understood to say that traditional litigation

c

i

should stay put. They have to be tackled by other effective methods,

like decentralising the judicial system and entrusting majority of tradi-

tional litigation to village courts and Lok Adiilats without the usual

populist stance and by a complete restructuring of the procedural

law

which is the villain in delaying disposal of cases.

D

It is only when courts are apprised of gross violation of funda-

~

mental rights 'by a group or a class action or when 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 juris-E

diction under all available provisions for remedying the hardships and

miseries of the needy, the under-dog and the neglected. I

will be

~ .. __ second to none in extending help when such help is required. But this

t

does not mean that the doors of this Court are always open for anyone

to walk in.

It is necessary to have some self imposed restrain of public

interest litigants.

F

Ultimately, by the dismissal of this appeal, the hotel will be

completed and

will be commissioned. Six long years have passed by. I

do not think that the appellants have achieved anything. The first

-I

appellant who is a trade unionist has not espoused any grievance of the

G

mazdoors before us.

It was faintly suggested by the Government's

counsel

that the first petitioner does not represent all the mazdoors.

This was refuted by the appellants. For the purpose of this case,

we

will accept the assertion of the first appellant. Still, we did not have

before us any of their grievances ventilated, which, if there were any,

we would have willingly considered.

H

280 SUPREME COURT REPORTS [1987] 2 S.C.R.

A I conclude this short Judgment, with a lurking doubt

in my mind,

y

and with a question "Is there something more than what meets the eye

in this case?"

S.R. Appeal dismissed.

..

_.-·

t