REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2225 OF 2010

(Arising out of SLP (C) No. 2708 of 2010)

The Secretary & Curator,

Victoria Memorial Hall …Appellant

Versus

Howrah Ganatantrik Nagrik Samity

And Ors. …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. The appellant has preferred this appeal against the

judgment and order of the High Court of Calcutta dated

21.8.2009 by which the application filed by the appellant

for modification of order dated 28.9.2007 passed in Writ

Petition No.7987(W) of 2002, stood rejected.

3. The facts and circumstances giving rise to this appeal

are as under:

A foundation stone of Victoria Memorial Hall

(hereinafter called ‘VMH’) was laid by the king George the

Vth (the then Prince of Wales) on January 4, 1906. Between

years 1908 and 1921 various objects of arts, manuscripts,

medals, arms and armours were collected and preserved for

being transferred and displayed at VMH upon construction

and on December 28, 1921 its construction was mostly

completed. It was inaugurated by the Edward, the VIIIth

(the then Prince of Wales) and was opened for public

viewing. Afterwards, the Museum attained the status of

National Museum of modern Indian history starting from 18

th

century. In the year 1925, illustrated catalogue of

exhibits in VMH was published. Between years 1934 and 1935

cupolas were added to the main monument. The memorial is

the repository of a largest number of Daniells’ paintings

in the world. It possesses the third largest painting in

the world-Vassili Verestchagin’s “The State Procession of

the Prince of Wales into Jaipur in 1876”. The memorial’s

philatelic collection on Indian postal history is equally

large. Among other important collections, one may refer to

Mughal emperor Aurangzeb’s hand-written Quran or Dara

Sikoh’s translation of the Upanishads. Equally important

and fascinating are the works of Johann Zoffany, Tilly

Kettle, Hodges, Samuel Davis, Robert Home, Reynolds,

Charles D’oyly, Emily Eden, George Stubbs’ painting of

Hastings, and Qazar, painting of Fatah Ali Shah, Tipu

Sultan’s personal war-diary, and the Cannon-balls of the

battle of Plassey.

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Other than the Curzonian scheme of collection and

arrangement of the exhibits, the post-independence

collections include National Leaders’ Gallery as well as

collections of other artifacts-Bankim Chandra’s writing

desk, Mahatma Gandhi’s ashes, paintings of Abanindranath,

Atul Bose and Jamini Roy, etc. A total of about 27,000

artifacts (e.g. painting, watercolours, stamps, coins, arms

and armour) exists in the VMH.

VMH monument has a covered area of 1.7632 acres and is

situated in a portion of a large campus having an area of

about 57 acres. There have all along been within the

Campus annexe buildings having total covered area of around

5000 Sq. meters. These annexe buildings were built for

being used as non family duty quarters, garage for tractors

and cars, stores of garden equipment, dormitory, staff

canteen, recreation room, union room and a block of

toilets. The old annexe buildings have become dilapidated

through passage of time.

In December, 2000, the Government of India advised VMH

to take steps for modernisation of VMH with the help of

National Institute of Design.

VMH is administered and managed by an autonomous Board

of Trustees constituted under Victoria Memorial Act, 1903

(hereinafter called ‘Act’). The Chairman of the Board of

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Trustees is the Governor of the State of West Bengal. Other

members include the Chief Justice, Kolkata High Court,

Mayor, Kolkata Municipal Corporation, Principal Secretaries

of the Departments of Culture, Finance, Tourism, Higher

Education, Accountant General of West Bengal and various

other prominent citizens. For better preservation and

maintenance of VMH, National Environmental Engineering

Research Institute (hereinafter called as ‘NEERI’) had

given various suggestions in April 1992 but the same

remained unattended. In February, 2002 West Bengal

Pollution Control Board submitted a report on air quality

around the VMH in which it was suggested to make a further

study into the matter by Expert Organization like NEERI.

4. Alleging mismanagement, misuse and various types of

abuses of the historic museum and contending that the very

existence of VMH was at stake, Writ Petition No.7987(W) of

2002 was filed as a Public Interest Litigation by the

Howrah Ganatantrik Nagrik Samity, Respondent No. 1, which

sought large number of reliefs, particularly, directing the

respondents therein to preserve, protect and maintain the

historical monument, to review present status and

applicability of recommendations made by NEERI in April,

1992 for protection of the museum and to start action

thereon forthwith, to stop leaking of rain water through

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the rooftop, to repair the structure of the museum, to

prepare a complete inventory/catalogue of all the objects

of the museum based on record, to remove all sorts of

office accommodations and other occupancies not related to

preservation and maintenance of the museum from inside the

museum, to make arrangements for more and more display of

all objects of the museum to visitors through rotational

process, to make complete census and numbering of trees and

to prevent falling thereof, to arrange for the supply of

potable water, to arrange the vehicular traffic in a manner

not creating any kind of pollution and to take measures to

prevent any kind of air pollution etc. etc. The High

Court dealt with all the issues one by one and passed

interim orders from time to time.

5. At the time of initial hearing of the Writ Petition,

the High Court, vide its order dated 27.11.2003,

constituted an Expert Committee for improving the

environment of VMH, the appellant herein. It consisted of

14 Members viz. Member of Heritage, Conservation Committee,

Kolkata; Managing Director, Ghosh Bose & Associates (P)

Ltd., Kolkata; Scientist & Head, National Environmental

Engineering Research Institute, Kolkata Zonal Laboratory;

Suptd.Archeologist, Archeological Survey of India, Kolkata

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Zonal Office; Addl. Commissioner of Police, Kolkata; Chief

Environmental Officer, Department of Environment, Govt. of

West Bengal; Secretary and Curator, Victoria Memorial

Hall; Exe. Engineer, Calcutta Central Division, Central

Public Works Department (Civil Wing), Govt. of India; Chief

Traffic and Transportation Engineer, Govt. of West Bengal;

Senior Environmental Engineer & Incharge, Eastern Zonal

Office, Central Pollution Control Board; Exe. Engineer,

Presidency Circle 1, Public Works Department, Govt. of West

Bengal; Deputy Chief Municipal Architect and Town Planner,

Kolkata Municipal Corporation; Senior Environmental

Engineer, West Bengal Pollution Control Board; and Member

Secretary, West Bengal Pollution Control Board.

6. The Expert Committee made various recommendations

including that the appellant should enhance its existing

facilities so as to make it an eminent centre for art and

culture of international standard and to find out

possibility of erection of a new building within the same

campus to provide facilities for that purpose.

7. The Board of Trustees explored the means for

implementation of the suggestions of the Expert Committee

and held various meetings. After considering the views of

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the Expert Committee, the Board of Trustees after due

deliberation accepted the proposal for construction of an

annexe building replacing the existing cluster of annexe

buildings which had become dilapidated. For this purpose, a

Memorandum of Understanding with the approval of Government

of India, Ministry of Culture in consultation with Ministry

of Law, was signed with the Calcutta Tercentenary Trust

(for short, “CTT’), a trust registered in London. Under

the said Memorandum of Understanding, CTT is to provide

Rs.48 crores and only the cost of the area to be occupied

by the administrative office of VMH is to be borne by the

VMH.

8. However, the matter was decided finally vide judgment

and order dated 28

th

September, 2007, dealing mainly with

the following issues:

A. Removal of the hawkers from the vicinity of the

Hall.

B. Modernisation of the Gallery.

C. Environmental Management Plan.

D. Parking of vehicles, traffic signals and stopping

goods vehicle.

E. Burning of dry leaves in the VMH Area.

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F. Shifting of Administrative Office.

G. Further construction within the VMH Area.

9. So far as issue at point (G) is concerned, the Court

rejected the recommendations made by the Expert Committee,

refusing the permission to raise the construction in the

VMH Campus.

10.The appellant moved an application to modify the order

dated 28.09.2007 only to the extent that it may be

permitted to raise the construction upto the height of 30

ft. in an area where it already had cluster of

constructions, which is being used as a non-residential

staff quarters on various grounds, inter-alia, that the

appellant made a serious attempt to acquire the

land/building for having the museum and recreation centre

in the close vicinity of the monument. The appellant also

deposited Rupees one crore with Kolkata Municipal

Corporation (hereinafter called as ‘Corporation’) to

acquire the constructed area, but it could not get any

space. The amount was refunded by the Corporation for the

reason that the construction raised by the Corporation was

for residential purpose.

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11.The High Court considered the matter at length, took

into account various issues relating to maintaining

ecological balance, environment, problems relating to

vehicular traffic etc., but ultimately rejected the

application for modification, so far as permitting the

construction of building after demolition of non-

residential staff quarters was concerned. Hence, this

appeal.

12.Shri Harish N. Salve, learned senior counsel appearing

for the appellant, submitted that in all big museums

throughout the world, administrative offices including

Curators’ and Director’s offices are situated in the same

campus. The appellant tried its best to get an alternative

accommodation nearby but could not succeed in spite of its

best efforts. The Act does not restrain the appellant to

use the campus for the purpose other than activities

connected with the memories of Queen Victoria. More so,

the Expert Committee appointed by the High Court itself had

made the recommendation for having such a building. The

High Court rejected the application without taking into

consideration the submissions raised by the appellant. The

High Court did not record any reason for not granting the

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permission for construction. Thus, the appeal deserves to

be allowed.

13.On the other hand, Shri Subhas Datta, Respondent No.2

and General Secretary of Respondent No. 1, appearing in

person, has vehemently opposed the appeal contending that

permitting any construction in the said campus would cause

serious prejudice to the monument. New building, if

permitted to be raised, would adversely affect the

protection and preservation of the monument. Hence, the

appeal is liable to be dismissed.

14.We have considered the rival submissions canvassed on

behalf of the parties and perused the record.

15.The appellant submitted before the High Court that

modification of the order was necessary and the appellant

be permitted to raise the construction upto the height of

30 ft. at the same place where it has cluster of

constructions which is being used as a non-residential

staff quarters. The necessity had arisen for the reason

that VMH is basically a museum and the process of

‘acquisition of various costly’ objects of art or old

documents, manuscript etc. had been initiated even prior to

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the actual construction of the VMH. Its recognized

activities conform to the definition of a museum as given

in Section 1 of Article 3 of the Statute of International

Council of Museum, according to which, a Museum is a non-

profit permanent institution in the service of society and

its development, open to the public which acquires,

conserves, researches, communicates and exhibits the

tangible and intangible heritage of humanity and its

environment for the purpose of education, study and

enjoyment. The appellant claimed that it is institutional

member of International Council of Museums and had been

paying subscription to the Indian branch of International

Council of Museums; that approx. 29,000 items of objects of

arts are stored within the VMH building and some of those

were lying idle and not displayed to the public due to

dearth of space. It was contended that the height of the

monument is 56.0832 meters and, therefore, the

construction, if permitted, to be raised would, by no

means, adversely affect the grand view of the monument and

it would not hamper any activity of the monument.

16.Thus, the High Court had to determine mainly that if

such a construction is permitted, whether it would, by any

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means, hamper the preservation or protection of the

monument?

17.The High Court dealt with all other issues regarding

pollution hazards etc. and took note of the fact that large

number of art crafts have been collected for a long-long

time and it included art crafts not connected with Queen

Victoria. The Act governing the VMH did not contain any

provision permitting or restraining the use of any part of

VMH compound for the purpose, other than connected with

Queen Victoria. The Act contained the provisions that the

Trustees may with previous approval of the Central

Government, by Notification in the Official Gazette, make

Regulations not inconsistent with the Act and the Rules

made thereon, for enabling the body to discharge its

functions under the Act. The Rules must be enacted

substantially for erection, maintenance and management of

memorial and care and custody of the objects. The trustees

have a right to acquire a new property for the purpose of

better management of the memorial. The High Court came to

the conclusion that the Act “permits the trustees to

acquire new property movable or immovable under the

control and supervision of the Central Government and thus

there is no bar in running its activities from different

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premises”. Therefore, even for the purpose of carrying out

the activities in relation to the monument, the trustees

may acquire movable or immovable property outside the

premises of said monument. The Court observed that the

structure was unique in nature and it is one of the

wonderful objects in the world and its beauty and value

should not be marred in any way for the purpose of

construction of auditorium, café, sitting area for guests,

rest rooms etc. and any new construction within the campus

would be detrimental to the present structure situated

thereon. The Court emphasised that the appellant should

acquire property, movable or immovable outside the monument

as has been done in Salar-Jung-Museum, Hyderabad and other

places.

18.In fact, the High Court arrived at the conclusion,

that if construction is permitted it would not only

adversely affect the ambience of the monument but would be

detrimental to the present structure. However, such a

conclusion has been reached without giving any plausible

reason whatsoever.

19.The Expert Committee was appointed by the High Court

itself vide order dated 27.11.2003. It consisted of

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experts of various subjects, rendering services in

different fields. Therefore, it is unfortunate that the

High Court not only brushed aside its report, so far as the

instant issue is concerned, rather labelled it as a “so-

called Expert Committee”. The High Court failed to

appreciate that the application was filed by the appellant

as it was not possible for VMH to get appropriate space

nearby the monument in Kolkata. More so, neither the

Pollution Control Board, nor Kolkata Municipal Corporation,

nor the Suptd. Archeologist of Archeological Survey of

India of Kolkata Circle, raised any objection in respect of

the construction of a new building. The building was

proposed to be constructed by replacing the old existing

constructions at a distance of at least 160 mtrs. from the

monument. The Court failed to consider that museum

activities were to be expanded by the appellant therein,

which would not adversely affect the monument at all,

particularly when there is no prohibition under the Act to

carry out such activities.

20.The High Court failed to appreciate that the proposed

building would be designed with great care, ensuring that

the new construction would not, by any means, disturb the

existing landscape and would be in consonance with the

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existing ambience and compatible with the architecture and

façade of the existing monument. The height of the

proposed building would not be more than 10 mtrs. while the

height of the monument is more than 50 mtrs. Thus, it

would not prevent the view of the monument by any means.

The High Court was not justified to impose a total

prohibition of construction of the Annexe in place of the

existing cluster of buildings, which are in a dilapidated

condition. The High Court ought to have given reasons for

not accepting the report of the Expert Committee.

21.The High Court vide order dated 28.9.2007 directed to

shift the administrative office outside the monument on

wrong premises. The material on record suggests that all

museums have this kind of accommodation within its campus.

The entire administrative office including Curators’,

Director’s office of Salarjung Museum are located within

the Main Museum building. Similar is the position with the

Indian Museum at Kolkata, National Museum, National Gallery

of Modern Art at New Delhi, Chhatrapati Shivaji Maharaj

Vastu Sangrahalaya Museum (formerly the Prince of Wales

Museum) at Mumbai, Nehru Memorial Museum & Library and

National Museum in New Delhi. Same is the position within

internationally renowned museums, namely, British Museum,

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Victoria & Albert Museum, U.K., Louvre, Paris and Museums

in Vienna.

22.The Expert Committee had examined the issues at length

and submitted its report before the High Court, making

various recommendations including :-

“That setting up structure and/or facility

within the VMH compound for commercial

amusement and recreational activities will

adversely impact the environment, will not

be in consonance with the existing local

ambience, and increase the visual pollution.

The Committee recommends that no structure

and/or facility should be built within the

VMH compound for the purpose of amusement

and recreational activities.

However, the Committee found that the

VMH being an eminent centre of art and

culture focusing on the heritage of 17

th

-2Oth

century India and Bengal, lacks several

modern facilities like space/facility up to

international standard for visiting

exhibitions, space/facility for education,

research, lecture, library,

meeting/reception, and space/facility to

serve the public visiting the VMH.

The Committee suggests that the VMH

should enhance its existing facility to take

a shape of an eminent centre of art and

culture of international standard. The

feasibility of building visitors’ centre and

exhibition area in a separate building

within the VMH compound to provide the above

mentioned facilities should be explored. In

any case, this should not disturb the

existing landscape, and should also be in

consonance with the existing ambience and

compatible with the existing architecture of

the monument.” (emphasis added)

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23.The Court dealt with the aforesaid recommendations on

the issue observing:

“We, however, do not approve the suggestion

of the experts appointed by this Court to

find out the feasibility of building any

visitor’s centre and exhibition area in a

separate building to be constructed within

the VMH compound. Such an idea is contrary

to the concept of protection of historical

monuments. For better utilisation of the

space for modernization of gallery, the

existing Administrative Office may be

removed to some other place and that space

can be utilised for the extension of the

Gallery but in no circumstances can we

approve the idea of making any new

construction within the VMH compound for the

above purpose.” (Emphasis added).

24.While deciding the application for modification, vide

impugned judgment, the High Court held as under:-

“It appears that the prayer for review has

been filed without appreciating the import

of the said order regarding preservation of

greenery. We find from the affidavit that

the sole object of the VMH Authority is to

make the said campus a place of brisk

activities and entertainment without caring

for the protection of the monument itself

which was constructed pursuant to the object

of the Act. Moreover, for the purpose of

the preservation of and display of the

additional articles which have been

subsequently acquired and which have no

connection with the memory of Queen

Victoria, we are of the view that there is

no just reason for giving permission to

construct a new building within the VMH

campus. The VMH Authority is free to extend

its activity in accordance with law after

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acquiring new property which is consistent

with the object of the Act, Rules and the

Regulation, but there is no ground for

restricting its extended activity within the

original VMH complex itself which would be

perilous to the existing structure.

We have already pointed out that the

Act itself approves requisition of further

property, either moveable or immovable, and

thus the order passed by this Court in the

past has in no way created any impediment in

the activities of the VMH in accordance with

law; on the other hand, if the prayer of

further construction is allowed for the

purpose of the activities mentioned

hereinabove, the constant efforts of this

Court in preserving the existing memorial

for the last seven years by passing various

prohibitive orders would be totally

frustrated.” (Emphasis added).

25.In fact, the Expert Committee recommended that no part

of VMH compound should be permitted to be used for any

commercial amusement and recreational activities as it

would increase the visual pollution. But the Committee

recommended for having a centre and exhibition area in a

separate building within the VMH compound. The High Court

while disposing of the Writ Petition dis-approved the

recommendation for having a centre and exhibition area

within the VMH compound merely observing that such an area

would be contrary to the concept of protection of

historical monument. The application for modification has

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been rejected by the High Court on the grounds that it

would be contrary to preserving greenery; such a campus

should not have the buildings for brisk activities and

entertainment and if permission is granted, it would

frustrate the effort of the High Court to preserve the

existing memorial for last seven years by passing

prohibitory orders.

The High Court failed to appreciate that in case a

historical monument contains such a centre, it cannot be a

danger for its protection. More so, as explained

hereinabove, most of such museums have such activities

throughout the world. The ground of preserving the greenery

is totally misplaced and mis-conceived for the reason that

building is to be constructed by demolishing the servant

quarters etc. which are in a dilapidated condition. As the

greenery does not exist at this place the reason given by

the High Court is untenable. The other ground that campus

should not be used for brisk activities is unsustainable

because having the activities in such centre and exhibition

area cannot be termed as ‘brisk activities’. More so, the

High Court had never passed any interim order during the

pendency of the Writ Petition for removal of the cluster of

buildings which in fact is in dilapidated condition.

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Therefore, the question of frustrating the entire effort of

the High Court to protect the monument could not arise.

Indisputably, the writ petitioners/respondents have not

been able even to allege that factual averments made in the

application for modification were not correct. The impugned

order rendered the Memorandum of Understanding of the

appellant with CTT for providing a sum of Rs.48 crores,

frustrated.

26.Thus, it is evident that the High Court did not give

any specific/good or relevant reason for not accepting the

recommendation made by Expert Committee at initial stage or

while rejecting the application for modification vide

impugned order.

27.The Constitution Bench of this Court in The University

of Mysore Vs. C.D. Govinda Rao and Anr. AIR 1965 SC 491

held that “normally the Court should be slow to interfere

with the opinions expressed by the experts.” It would

normally be wise and safe for the Courts to leave the

decision to experts who are more familiar with the problems

they face than the Courts generally can be.

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28.This view has consistently been reiterated by this

Court as is evident from the Judgments in The State of

Bihar & Anr. Vs. A.K. Mukherjee & Ors. AIR 1975 SC 192;

Dalpat Abasaheb Solunke etc.etc. Vs. Dr. B.S. Mahajan

etc.etc. AIR 1990 SC 434; Central Areca Nut & Cocoa

Marketing & Processing Co-operative Ltd. Vs. State of

Karnataka & Ors. (1997) 8 SCC 31; and Dental Council of

India Vs. Subharti K.K.B. Charitable Trust & Anr. (2001) 5

SCC 486.

29.However, if the provision of law is to be read or

understood or interpreted, the Court has to play an

important role. [Read : P.M. Bhargava & Ors. Vs.

University Grants Commission & Anr. AIR 2004 SC 3478 and

Rajbir Singh Dalal (Dr.) Vs. Chaudhari Devi Lal University,

Sirsa & Anr. (2008) 9 SCC 284.

30.In the instant case, the Expert Committee was

appointed by the High Court itself. No allegation of

malafide or disqualification against any Member of that

Committee had ever been made/raised. Thus, we fail to

understand as on what basis, its recommendation on the

issue involved herein, has been brushed aside by the High

Court without giving any reason whatsoever, particularly,

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when the Act governing VMH does not prohibit the use of the

part of the compound for the purpose other than connected

with Queen Victoria.

31.It is a settled legal proposition that not only

administrative but also judicial order must be supported by

reasons, recorded in it. Thus, while deciding an issue,

the Court is bound to give reasons for its conclusion. It

is the duty and obligation on the part of the Court to

record reasons while disposing of the case. The hallmark

of an order and exercise of judicial power by a judicial

forum is to disclose its reasons by itself and giving of

reasons has always been insisted upon as one of the

fundamentals of sound administration justice – delivery

system, to make known that there had been proper and due

application of mind to the issue before the Court and also

as an essential requisite of principles of natural justice.

“The giving of reasons for a decision is an essential

attribute of judicial and judicious disposal of a matter

before Courts, and which is the only indication to know

about the manner and quality of exercise undertaken, as

also the fact that the Court concerned had really applied

its mind.” [Vide State of Orissa Vs. Dhaniram Luhar AIR

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2004 SC 1794; and State of Rajasthan Vs. Sohan Lal & Ors.

(2004) 5 SCC 573].

32.Reason is the heartbeat of every conclusion. It

introduces clarity in an order and without the same, it

becomes lifeless. Reasons substitute subjectivity by

objectivity. Absence of reasons renders the order

indefensible/unsustainable particularly when the order is

subject to further challenge before a higher forum. [Vide

Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664;

Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. (2008)

3 SCC 172; Steel Authority of India Ltd. Vs. Sales Tax

Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State

of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008

SC 2026; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta AIR 2009 SC

2328; Ram Phal Vs. State of Haryana & Ors. (2009) 3 SCC

258; Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC

513; and State of Himachal Pradesh Vs. Sada Ram & Anr.

(2009) 4 SCC 422].

33.Thus, it is evident that the recording of reasons is

principle of natural justice and every judicial order must

be supported by reasons recorded in writing. It ensures

transparency and fairness in decision making. The person

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who is adversely affected may know, as why his application

has been rejected.

34.Indisputably, the High Court did not assign valid and

good reasons for rejecting the recommendation made by the

Expert Committee for allowing the construction in question

in its judgment and order dated 28.09.2007 nor the reasons

have been recorded in the impugned judgment dated

21.08.2009 rejecting the application for modification of

the earlier order. Thus, in view of the above, the orders,

so far as this particular issue is concerned, remain

unsustainable.

35.Thus, in view of the above, special facts and

circumstances of the case warrant review of the

impugned order. The appeal stands allowed. The

impugned judgment and order dated 21.8.2009 is set

aside. Application filed by the appellant for

modification of the order dated 28.9.2007 stands

allowed.

However, it is clarified that in case the proposed

construction is raised it would be in consonance with the

existing ambience and compatible with the architecture of

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the monument. The appellant shall ensure that landscape of

the monument would also not be disturbed by any means.

The parties are left to bear their own costs.

…………………………………CJI.

……………………………………J.

(DEEPAK VERMA)

…………………………………..J.

(Dr. B.S. CHAUHAN)

New Delhi,

March 9, 2010

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