| Headnote |
Environmental law-Interference by the Supreme Court with the policy decision of government, whenever a problem of ecology is brought before it, extent of-Constitution of India, 1950, Articles 32, 48A, 51A(g)-Whether the Government of West Bengal was not alive to the ecological considerations, particularly the question of the migratory birds and whether has shown such lack of awareness in making an allotment of land to boost tourism by construction of Five Star Hotel to the detriment of Zoological garden. Cabinet Memoranda dated January 7, 1981 and Sep. 9, · 1981 alloting land for the construction of Five Star Hotel to Taj Group of Hotels-Whether should contain every item considered and whether non-mention lead to adverse presumption that a particular point was not considered. Natural justice, Principle-Whether the principle of natural justice is said to be violated on the ground that those who are most interested in the Zoological garden were not heard before the decision was taken. New plea in the Supreme Court for the first time-Public document, evidentiary value of-Documents received admitted and relied on both by the Single and Division Bench of the High Court-Plea of authenticity of the document and objection to its reception, cannot be allowed in an appeal under Article 136 of the Constitution. The Bengal Public Parks Act, 1904, Preamble Sections 3 and 4 scope and applicability. West Bengal Land Management Manual, 1977, Paragraphs 165, 166, 167, applicability of-Whether the procedure prescribed therein not being followed, the transfer of the land to Taj Group of Hotels is bad. Disposal by Public auction or by inviting tenders-Whether bound to be followed by the State, in pursuing the socio-economic objectives enshrined in the Constitution. Public Interest Litigation, parameters delineation need for stressed. 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 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 Department to Mr. L. Schwandler, Honorary Secretary Zoological garden conveying the sanction of the Lt. Governor for the transfer of the Begumbari land to the charge of the Committee of the Zoological Garden, on the terms agreed to by the Committee in their letter dated April 23, 1880, the conditions of the transfer were: "(i) that the land is to be used for the purpose of acclimatization only; (ii) that Carnivors are not to be kept out any part of it, on any account; (iii) that the grounds are to be kept clear and neat; (iv) that the land must be restored to the government if hereafter required, the Zoological Garden Committee being reimbursed for any expenditure they may have incurred in building there." In this eight acres of land there are some old buildings and the vacant land was used for fodder cultivation,for raising 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 construct a Five Star Hotel. On September 29, 1980 and November 29, 1980, there were two notes by the Secretary of the Metropolitan Development Department to the effect that the I.T.D.C. was interested in a property known as the Hastings House Properly and that the Taj Group of Hotels who considered the Hastings House properly unsuitable may be offered four acres out of the eight acres of Begumbari land. On the same day the Taj Group of Hotels wrote to the Government of West Bengal stating that the proposed land H could be seriously considered for construction of a hotel. Thereafter, the Chief Minister along with the Minister of Tourism and the Minister for Metropolitan Development visited the site accompanied by the Director of the Zoo to apparently knew about the proposal right from the start. A note was then prepared by the Secretary, Metropolitan Development Department and put up to the Chief Minister for his approval. The Chief Minister approved the proposal and required it to be placed before the Cabinet. On January 7, 1981 a memorandum was prepared for the consideration of the Cabinet explaining the need for the more Five Star Hotels in Calcutta and the benefits flowing out of the construction and establishment of such Five Star Hotels and suggesting the lease of Hastings House Property to the I.T.D.C. Group and the ... Begumbari property to the Taj Group of Hotels. In regard to the Begumbari property, it was stated: "From the property of the Zoological Gardens on the Belvedere Road it is possible to carve out about four ·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 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 and for the constitution of a suitable Committee to undertake negotiations with the two groups. On February 12, 1981, the Cabinet took a decision approving the proposal contained in the last paragraph of the Cabinet Memorandum, thus clearing the way for negotiations with the Taj Group, Meanwhile the Public Undertakings Committee appointed by the West Bengal Legislative Assembly submitted a report on 14.2.1981 about the Zoo. While suggesting that the government may consider abandoning the proposal to set up a hotel on the eastern side of the zoo, the Committee also referred to a proposal to establish a "Subsidiary Zoo" some slight distance from Calcutta and the request said to have been made for the allotment of 200 acres of land for that purpose. The Chief Town Planner who visited the site at the request of the Secretary, Metropolitan Development Department and in the presence of the Director of the Zoo, suggested that 2 to 2-1/2 acres of land might be made available for the Hotel. On July 14, 1981, the WEBCON submitted its report and on the request of the Committee of Secretaries a further report was submitted on July 22, 1981. The report of WEBCON is a comprehensive report on various topics connected with the establishment of a Five Star Hotel in Calcutta. Among other things the report also suggested various financial alternatives and recommended the second alternative based on nett sales as the best. 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 was prepared for cabinet discussion. Two alternative financial proposals were set out. A reference was made to the Committee of Secretaries who negotiated with the Taj Group of Hotels. Note was taken of the suggestion of the Negotiation Committee that the overall development plan for the environmental beautification, widening of approach roads, landscaping of Tolley's Nullah were responsibilities of the State Government and estimated to cost Rs.2 crores but that it was expected to be of considerable public benefit. Stress was laid on the direct and indirect economic activities which would be generated by the establishment of a five Star Hotel. Reference was also made to the report of WEBCON and it was noted that the projected profitability of the venture to the government was expected to be high. It was also mentioned that the Ministers, incharge of Tourism, Animal Husbandry, Land Revenue and Finance ~ had seen the note and had agreed to it. On September 10, 198 I the , Cabinet took the final decision to grant a ninety-nine years lease of the four acres of Begumbari land to the Taj Group of Hotels. On September 29, 1981 the Government of West Bengal officially conveyed its acceptance of the proposal of the Taj Group of Hotels for the construction of a Five Star Hotel. The terms and conditions of the lease were set out. On January 7, 1982, there was a joint meeting of the Establishment and Finance sub-Committees of the Zoo and it was decided to recommend to the Committee of management that the demarcated area of four acres may be relinquished in favour of Animal Husbandry and Veterinary Services Department subject to the requirement that the zoo will continue to get the services and the facilities in the existing structures until they were reconstructed on the adjacent land. On January 11, 1982 the Managing Committee endorsed the view of the sub-committees and this was communicated to the government. On January 15, 1982, the Government of West Bengal wrote to the Land Acquisition Officer, with copies to the Taj Group of Hotels directing the Land Acquisition Officer to give possession of the land to the Taj-Group of Hotels subject to their later executing a proper long term lease. It was mentioned in the letter that the construction of the Hotel should not be started till the lease deed was executed and registered. Several other stipulations were also made. Though the stipulation was that the cost of the new construction was to be initially met by Taj Group of Hotels and later to be adjusted against the rent payable by Taj Group, the Taj Group later agreed to waive such reimbursement (in fact a total sum of Rs.30 lakhs has been spent by Taj Group of Hotels in connections with the reconstruction. Not only this, land in the extent of 288 square 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 committee was constituted to supervise the construction of alternative facilities. Five petitioners-a Trade Unionist, two life members of the Zoo, two other bonafide residents of Greater Calcutta, all lovers of wild life-filed a petition in public interest on 26.2.1982. Initially the relief sought was primarily to restrain the Zoo authorities from giving effect to the two Resolutions dated January 7, 1982 and January 17, 1982 to hand over the four acres to the Animal Husbandry Department of the Government. Subsequent to the filing of the writ petition a lease deed was executed by the Taj Group of Hotels in favour of the government. The Writ Petition was therefore amended and a prayer for cancellation was added. While the writ petition was pending in the High Court, Late Smt. Indira Gandhi wrote a letter to Sri Jyothi Basu, the Chief Minister of West Bengal expressing the hope that he would not allow the Calcutta Zoo to suffer in any manner and would leave it intact. The Chief Minister in his reply letter dated 21.8.82 pointed out that:(i) the four acres of land were agreed to be relinquished by the Committee of management of the Zoological Garden on condition that alternative arrangement were made for shifting the existing structures which were necessary for 'the Zoo from the plot in question to the adjacent plot; (ii) the plot in ,question was not a part of the Zoo Garden; (iii) till the existing structures are relocated on the adjacent land, the zoo would continue to get their services and facilities from the existing structures. (iv) the hotel was not the only !all building since there existed many such residential buildings to which none raised an objection and that P&T Department are also constructing one such tall building; and (v) the lessee and their experts on wild life had assured them that in any case adequate precaution would be taken in regard to illumination of the hotel and the layout of the surrounding so that no disturbance would be caused to the flight path of the birds or animals. To similar effect was the letter dated 30.8.1982 from Shri J.R.D. Tata to the Prime Minister H on September 1, 1982. Smt. Indira Gandhi wrote to Mr. Tata expressing her happiness that the hotel was not going to upset the Zoo animals and welcoming his offer to help the State Government to improve the Zoo's facilities. A learned Single Judge of the High Court dismissed the writ petition holding that the West Bengal Government did not show any lack of awareness of the problem of environment ecology in granting the lease of land. On appeal, a Division Bench confirmed the said judgment. Hence the appeal by Special leave of the Court. |
