ivil Appeal No 378 of 1987
237 From the Judgment and Order dated 481986 of the Cal cutta High Court in FMAT No 1500 of 1984
LM Singhvi SK Jain I Makwana AM Singhvi Sud hanshu Atreya and S D
Sharma for the Appellants
NN Gooptu Dipanker Gupta P Mondal DK Sinha JR Das T Ray
R Pal BR Agarwala and Ms section Manchanda for the Respondent
The following Judgments of the Court were delivered CHINNAPPA REDDY J We grant special leave and proceed to dispose of the appeal
A hundred and thirty two years ago in 1854 the wise Indian Chief of Seattle  replied to the offer of the great White Chief in Washington  to buy their land
The reply is profound It is beautiful
It is timeless
It contains the wisdom of the ages
It is the first ever and the most under standing statement on environment
It is worth quoting
To abridge it or to quote extracts from it is to destroy its beauty
You cannot scratch a painting and not diminish its beauty
We will quote the whole of it  How can you buy or sell the sky the warmth of the land The idea is strange to us
If we do not own the freshness of the air and the sparkle of the water how can you buy them Every part of the earth is sacred to my people
Every shining pine needle every sandy shore every mist in the dark woods every clearing and humming insect is holy in the memory and experience of my people
The Sap which courses through the trees carries the memories of the red man
The white man s dead forget the country of their birth when they go to walk among the stars
Our dead never forget this beautiful earth for it is the mother of the Reproduced verbatim from Pariyavaran Vol
I No 1 June 1984
238 red man
We are part of the earth and it is part of us
The perfumed flowers are our sisters the horse the great eagle these are our brothers
The rockly crests the juices in the meadows the body heat of the pony and man all belong to the same family So when the Great Chief in Washing ton 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 memo ries 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 chil dren
His father s grave and his children s birth right are forgotten
He treats his mother the earth and his brother the sky as things to be bought plundered sold like sheep or bright beads
His appetite will devour the earth and leave behind only a desert
239 I do not know
Our ways are different from your ways
The sight of your cities pains the eyes of the red man
But perhaps it is because the red man is a savage and does not understand
There is no quite place in the white man s cities
No place to hear the unfurling of leaves in spring or the rustle of an in sect s wings
But perhaps it is because I am a savage and do not understand
The clatter only seems to insult the ears
And what is there to life if a man cannot hear the lonely cry of the whippoorwill or the arguments of the frogs around a pond at night I am a red man and do not understand
The Indian prefers the soft sound of the wind darting over the face of a pond and the small of the wind itself cleansed by a mid day rain or scented with the pinon pine
The air is precious to the red man for all things share the same breath the beast the tree the man they all share the same breath
The white man does not seem to notice the air he breathes
Like a man dying for many days he is numb to the stench
But if we sell you our land you must remember that the air is precious to us that the air shares its spirit with all the life it supports
The wind that gave our grandfather his first breath also receives the last sigh
And if we sell you our land you must keep it apart and sacred as a place where even the white man can go to taste the wind that is sweetened by the meadows flowers
So we will consider your offer to buy our land
If we decide to accept I will make one condition
The White man must treat the beasts of this land as his brothers
I am a savage and I do not understand any other way
I have seen a thousand rotting buffaloes on the prairie left by the white man who shot them from a passing train
I am a savage and I do not understand how the smoking iron horse can be more important than the buffalo that we kill only to stay alive
What is man without the beasts If all the beasts were gone man would die from a great loneliness of spirit
240 For whatever happens to the beasts soon hap pens to man
All things are connected
You must teach your children that the ground beneath their feet is the ashes of our grandfathers
So that they will respect the land
Tell your children that the earth is rich with the lives of our kin
Teach your children what we have taught our children that the earth if sun mother
Whatever befalls the earth befalls the sons of the earth
If men spit upon the ground they spit upon themselves This we know The earth does not belong to man man belongs to the earth
This we know All things are connected like the blood which unites one family
All things are con nected
Whatever befalls the earth befalls the sons of the earth
Man did not weave to web of life he is merely a strand in it
Whatever he does to the web he does to himself
Even the white man whose God walks and talks with him as friend to friend cannot be exempt from the common destiny
We may be brothers after all
We shall see
One thing we know which the white man may one day discov er our God is the same God
You may think now that you own Him as you wish to own our land but you cannot
He is the God of man and His compassion is equal for the red man and the white
This earth is precious to Him and to harm the earth is to heap contempt on its Creater
The white too shall pass perhaps sooner than all other tribes
Contaminate your bed and you will one night suffocate in your own waste
But in your perishing you will shine brightly fired by the strength of the God who brought you to this land and for some special purpose gave you dominion over this land and over the red man
That destiny is a mystery to us for we do not understand when the wild buffalo are all slaughtered the wild horses are tamed the secret corners of the forest heavy with scent of many man and the view of the ripe hills blotted by talking wires
Where is the thicket 241 Gone
Where is the eagle Gone
The end of living and the beginning of survival Today society s interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity
Industrialisation urbanisation explosion of population overexploitation of resources depletion of traditional sources of energy and raw materials and the search for new sources of energy and raw materials the disruption of natural ecological balances the 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 contributed to environmental deterioration
While the scientific and technological progress of man has invest ed him with immense power over nature it has also resulted in the unthinking use of the power encroaching endlessly on nature
If man is able to transform deserts into cases he is also leaving behind deserts in the place of cases
In the last century a great German materialist philosopher warned mankind Let us not however flatter ourselves overmuch on account of our human victories over nature
For each such victory nature takes its revenge on us
Each victory it is true in the first place brings about the results we expect ed but in the second and third places it has quite differ ent unforeseen effects which only too often cancel the first
 Ecologists are of the opinion that the most impor tant ecological and social problem is the wide spread disap pearance all over the world of certain species of living organisms
Biologists forecast the extinction of animal and plant species on a scale that is incomparably greater than their extinction over the course of millions of years
It is said that over half the species which became extinct over the last 2000 years did so after 1900
The International Association for the Protection of Nature and Natural Re sources calculates that now on an average one species or sub species is lost every year
It is said that approximate ly 1000 bird and animal species are facing extinction at present
So it is that the environmental question has became urgent and it has to be properly understood and squarely met by man
Nature and history it has been said are two compo nent 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 isno exception
The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an 242 allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court Obviously if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account it may not be for this Court to interfere in the absence of mala fides
On the other hand if relevant considerations are not borne in mind and irrele vant 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 article 48A of the Constitution the Directive Principle which enjoins that The State shall endeavour to protect and improve the envi ronment and to safeguard the forests and wild life of the country and article 51Ag which proclaims it to be the fundamental duty of every citizen of India to protect and improve the natural environment including forests lakes rivers and wild life and to have compassion for living creatures
 When the Court is called upon to give effect to the Directive Principle and the fundamental duty the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy making authority
The least that the Court may do is to examine whether appropriate consideration are borne in mind and irrelevancies excluded
In appropriate cases the Court may go further but how much further must depend on the circum stances of the case
The Court may always give necessary directions
However the Court will not attempt to nicely balance relevant considerations
When the question involves the nice balancing of relevant considerations the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority
We may now proceed to examine the facts of the present case
There is in Calcutta a zoological garden located in Allipore now almost the heart of Calcutta on either side of Belvedere Road one of Calcutta s main arterial roads 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 land
This eight acre plot of land is known as the Begumbari land
It is out of these eight acres that the land of the extent of four acres has been carved out and given to the Taj Group of Hotels for the construction of a Five Star Hotel
It is this giving away of land that was challenged before the High Court and is now challenged in this Court in this appeal by two citizens of Calcutta one of them the Secretary of the Union of workmen of the zoological garden and the other a life 243 member of the zoo both of whom claiming to be lovers of wild life and well wishers of the zoo
In January 1979 the Director General of Tourism Gov ernment of India addressed a letter to the Chief Secretary Government of West Bengal conveying the resolution of the Tourism Conference which was presided over by the Union Minister of Tourism and attended by several State Ministers and requesting that land in good locations may be made available for construction of hotels in a drive to encourage tourism
In May 1980 the Taj Group of Hotels came forward with a suggestion that they would be able to construct a Five Star Hotel if any of three properties on Chowringhee specified by them was made available to them
The Govern ment found that there was some litigation connected with the Chowringhee properties and therefore it would not be possible to convey the Chowringhee properties to the Taj Group of Hotels
On September 29 1980 and November 29 1980 there were two notes by the Secretary of the Metropol itan Development Department to the effect that the ITDC was interested in a property known as the Hastings House Property and that the Taj Group of Hotels who considered the Hastings House property unsuitable may be offered four acres out of the eight acres of Begumbari land
On the same day the Taj Group of Hotels wrote to the Government of West Bengal stating that the proposed land could be seriously considerd for construction of a Hotel
Thereafter the Chief Minsiter along with the Minister of Tourism and the Minister for Metropolitan Development visited the site accompanied by the Director of the Zoo who apparently knew about the pro posal 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 ITDC and the Begumbari property may be offered to the Taj Group and that at a later stage a suitable Committee might be appointed to negotiate with the two groups of hotels
The Chief Minister approved the proposal and re quired it to be placed before the Cabinet
On January 7 1981 a memorandum was prepared for the consideration of the Cabinet explaining the need for more Five Star Hotels in Calcutta and the benefits flowing out of the construction and establishment of such Five Star hotels
It was suggested that the Hastings House Property may be leased to the ITDC Group and the Begumbari property to the Taj Group of Hotels
In regard to the Begumbari property it was stated From the property of the Zoological Gardens on the Belvedere Road it is possible to carve out about four acres of land currently used for dumping garbage and also for 244 growing grass for the elephants
It will be necessary and in any case advisable to shift the dumping ground while ade quate space can be made available for growing grass else where in the same area
 It was stated that the Finance and Tourism Department had agreed to the proposal to lease the properties to the ITDC and the Taj Group respectively
It was stated that though the Forest Department had suggest ed that Salt Lake was a better place for establishing a Five Star Hotel there was no demand for a Five Star Hotel in that area and the request for a hotel in Salt Lake was confined to a Three Star Hotel
Cabinet approval was sought for the offers to be made to the ITDC 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 ap proving the proposal contained in the last paragraph of the Cabinet Memorandum thus clearing the way for negotiations with the Taj Group
Meanwhile it appeared that the Public Undertakings Committee appointed by the West Bengal Legislative Assembly submitted a port on February 14 1981 about the zoo in which they stated
      Originally this zoo was on the outskirts of the City but the City has grown in such a fashion that the zoo has vertually become the City Centre and there is hardly any scope for its expansion
The zoo is situated on the left bank of the Tolly s Nallla divided with two parts on either said of the Alipore Road
The zoo proper is about 40 acres on the Western side while the eastern part comprises the Zoo Hospital audiovisual centre acquari um Zoo store and Staff quarters
The Commit tee was informed that now adays migratory birds were coming less in number though previ ously more foreign birds used to come here and in the opinion of the Managing Committee the main reason for this was due to air and sound pollution
Breeding potentialities of animals and birds have been retarded due to constant stress and strain on the animals and also due to atmospheric reasons
     The Commit tee came to learn that a big hotel was pro posed to be constructed on the plot of land where fodder for elephant are being grown to meet at least a portion of the elephants food
Moreover the staff quarters hospitals for animals and the morgue are also situated near the said plot of land
If the proposed hotel is set up all the existing buildings viz hospital morgue etc
245 would have to be shifted to the main Gardens resulting in unhealthy atmosphere for the zoo animals and also hampering the beauty of the zoo Gardens
This would also create problems to the staff quarters and acquarium
 The Committee also referred to a proposal to establish a Subsidiary Zoo  some slight distance from Calcutta City and the request said to have been made for the allotment of 200 acres of land for that purpose
It was suggested that the Government may consider abandoning the proposal to set up a hotel on the Eastern side of the Zoo
The Chief Town Planner also visited the site at the request of the Secretary Metropolitan Development Depart ment
The inspection was made in the presence of the Direc tor of the zoo
The Chief Town Planner thought that two to 212 acres of land only might be made available for the hotel
He expressed the apprehension that if four acres of land were to be given for construction of a hotel then the entire hospital and the dumping ground would have to be removed and the southern boundary of the hotel would come very close to the residential block
On March 19 the Taj Group submitted a proposal to the Government containing fairly detailed information about the tourism industry and its needs the situation in Calcutta the realities of hotel construction the facts relating to what had been done in other cities the benefits flowing out of the construction of hotels and their own proposals for constructing a hotel in the four acres of land in Belyedere Road
Two alternative financial arrangements were suggested
The first alternative was the payment of annual rent on the basis of the valuation of the land the second alternative was based on the concept of nett sales nett sales being defined as sales after deducting all taxes and levies and service charges
The Metropolitan Development Department expressed a preference for the second alternative and sug gested the constitution of a Committee
The Finance Depart ment also approved
The Taj Group was invited to send the financial projection on the basis of the second alternative
Correspondence went on
On June 5 1981 a Committee of Secretaries was formally constituted
In the meanwhile WEBCON a West Bengal Government Consultancy Undertaking was asked to examine the proposals and to advise the Government
The WEBCON submitted its report on July 14 1981 and on the request of the Committee of Secretaries a further report was submitted on July 22 1981
The report of WEBCON is a 246 comprehensive report on various topics connected with the establishment of a Five Star Hotel in Calcutta
Among other things the report also suggested various financial alterna tives and recommended the second alternative based on nett sales as the best
It is to be mentioned here that even by February 21 1981 the proposal to lease out the Begumbari land to the Taj Group of Hotels had become public knowledge and newspapers carried reports on the same
On June 9 1981 the Secretary of the Animal Husbandary and Veterinary Services Department complained to the Secre tary of the Metropolitan Development Department that they were not aware of the decision to lease the Begambari land
The Secretary Metropolitan Development Department made an endorsement on the letter to the effect that the Minister for Animal Husbandry and Veterinary services had himself visited the site
In fact as we have seen the matter had been considered and approved by the Cabinet itself and all Departments must necessarily have been appraised of the proposal
While so the Managing Committee of the Zoo on June 11 1981 passed a resolution expressing itself against the proposal to construct a hotel on land belonging to the Zoo
The Resolution said The proposal for soil testing of zoo land in the Begumbari Compound for the purpose of construction of Five Star Hotel was discussed in the meeting
The Committee resolved that construction of a multistories buildings in the near vicinity of the zoo will be highly detrimental to the animals of the Zoo its ecological balance and adversely affect the bird migration which is one of the greatest attractions of the zoo
The area proposed to be taken for Hotel construction is already used by the zoo for fodder cultivation burial ground for dead animals animal hospital operation theater quarantine area segrega tion wards postmortem room and nursery both for zoo animals and horticultural section
These essential services cannot be accommodat ed within the campus of the main zoo for risk of spreading of infection to other animals of the zoo
Procurement of green fodder for the large number of harvivorous animals of the zoo is already a serious problem for the zoo and any disturbance to fodder cultivation will aggravate the situation
The Calcutta Zoo has the smallest area in comparison to other reputed Zoo
The Committee is of a opinion that no portion of Zoo land can be parted with for any other 247 purpose
This being the position soil testing will hardly be of any avail as the zoo cannot spare the land
Shri Ashoka Basu MLA Shri KP Banerjee and Shri AK Das abstained from participation in the proceedings
 The Minister for Metropolitan Development submitted a note to the Chief Minister on the resolution of the Managing Committee of the Zoo
He pointed out that even if four acres out of the eight acres of Begumbari land was given to the Taj Group there would still remain sufficient land for accommodation of the facilities
He added that the Managing Committee s resolution was not binding on the Government and suggested that the Director of the Zoo might be asked to allow the Taj Group to undertake soil testing etc
so that work may proceed according to the time schedule
The Chief Minister endorsed the following
I agree
It is unfortunate that we have not been able to accept the contentions of the Managing Committee
If further facilities are necessary for the Zoo the Government will provide them In June 25 1981 the Managing Committee of the Zoo met again and passed another Resolution by which they withdrew their earlier objections
The Resolution stated
In view of the letter issued to the Zoologi cal Gardens Alipore and the Cabinet decision regarding the land of Begumbari Compound and in consideration of the assurance conveyed through Shri Ashoka Bose Chief Whip and Member that the State Government will give to the Garden adjacent lands and matching grants for the purposes of shifting of the Depart ments of the Zoo within the said compound the members do not press their objections as contained in the resolution of the Managing Committee held on 11681
This was passed by the majority of the members present the President Justice Shri RK 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 248 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 essential services
It may also be stated in this connection that the Zoo cannot be run for a single day without these essential services ie i burial ground for dead animals a number of which die of infectious and commu nicable 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 conta gious diseases
4 post mortem room for carrying out pm findings 5 dumping ground for dumping huge garbages coming out of the Zoo daily 6 fodder cultivation area for growing fodder for the harbivorous animals and 7 pathological laboratory for carrying pathological tests of animals and birds
As per clause 11 of the Alipore Zoological Garden Management Rules 1957 the disposal of properties and funds are vested in the Managing Committee of he Garden
The relevant 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
 Presumably 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 suggest ing 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 extent within a reasonable distance from the Zoological Garden as 249 these facilities were originally linked with the Zoo
He pointed out 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 discontinuance of existing hospital facilities research laboratory operation 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 prepared for cabinet discussion
Two alterna tive 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 bene fit
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 mentioned that the Ministers Incharge of Tourism Animal Husbandry 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 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 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 Acqui sition Officer with 250 copies to the Taj Group of Hotels directing the Land Acqui sition 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
It was further 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 struc tures ie hospital and operation theatre are reconstructed on the adjacent 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 authorities 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 consultation with and with the concurrence of the Animal Hus bandry and Veterinary Services Department of this Government and the Alipore Zoological Garden a plan and estimate 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 various meetings its representatives had with various departments 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 authorities as the case may be for reconstruction of the aforesaid essential structures or reconstruction the aforesaid essential structures under its own supervision to the satisfaction of the the Zoo Garden authorities or Animal Husbandry and 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 251 be adjusted against dues of the State Govern ment in accordance with the terms and condi tions 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 total sum of Rs 30 lakhs has now been spent by Taj Group of Hotels in 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 Committee was consti tuted to supervise the construction Of alternative facili ties
At that stage the writ petition out of which the present appeal arises was filed on February 26 1982
Ini tially 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 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 original petitioners are now before us having obtained special leave under article 136 of the Constitution
Before adverting to the submission of the learned coun sel it is necessary at this juncture to refer to certain correspondence
On April 23 1982 Late Smt
Indira Gandhi Prime Minister of India 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 attention to the fact that apart from  reduction in the already inadecu ate space for the Zoological Garden construction of a Five Star Multystoreyed Building would disturb the inmates and adversely affect birds migration which was a great attrac tion  She also mentioned that the expert Committee of the Indian Board for Wild Life also unanimously 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 252 four acres of land were agreed to be relinquished by the Committee of management of the Zoological Garden on condi tion 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 Minis ter also mentioned that there appeared to be some misconcep tion 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 facil ities from the existing structures
The Chief Minister further drew the attention of the Prime Minister to the fact that the hotel was likely to be a six storeyed one and would not be the only tail 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 multistoreyed 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 JRD Tata wrote to the Prime Minister pointing out that their Hotel management had discussed the matter at length with represen tatives of the Wild Life fund who were satisfied that the proposed hotel would cause no disturbance to the birds
He had again gone thoroughly into the project with special reference to its possible impact on the birds or environment 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 253 including a cage and a small veterinary labo ratory or dispensary
The whole area is in sheckingly unkept condition most of it cov ered by a single or spear grass and other wild growth
The hotel is planned to be built away from the frontage of that plot of Belva dere Road and to be low rise structure the Highest point of which will not exceed 75 feet
Dr B Biswas a renowned ormitholo gist who recently retired as Professor Emeri tus of the Zoological Survey of India whom the Taj Management consulted confirmed that a 75 feet high building on the location would not worry birds landing on the lake or climb ing out of it
In fact as the grounds of the zoo between the lake and Belvedre Road are covered with high trees the climbing or descent angle which the birds have to negoti ate to get over the trees is already steeper that it will be between 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 airconditioned so that no noise will emanate from it while noise from the 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 hotel or illuminate of signs of the hotel would disorient the birds and possibly cause them to hit the building the Management of the Hotel Company has taken a firm decision that there will be no bright lights or noon signs emanating from the hotel 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 consid ered 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 Committee of the Zoological Garden to advise on the subject
On September 1 1982 Smt
Indira Gandhi 254 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
Dr LM Singhvi learned counsel for the appellants made the following submission before us The Begumbari land was statutorily vested in the Managing Committee of the Zoological Garden and that the Committee could not be di vested 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 per sons and without complying with the requirements of para graphs 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 considerations 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 authorities and institutions
Several authorities and insti tutions like the Director of the Zoo the Managing Committee of the Zoo the Public Undertakings Committee of West Ben gal 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 was not focussed on these questions as evident from the fact that the Cabinet Memorandum hardly refers to any of the objections
The decision of the Govern ment was also wrong as it was apparently based on some assumptions which had been made without inquiry and verifi cation
The Chief Minister appeared to be under the impres sion that Dr Biswas and others were not opposed to the proposal
That was not 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 detrimental 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 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
Nor was there any obstruc tion to the flight of the visiting birds as the 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 improve ment of the area as the dumping ground burial ground and the semi dilapidated buildings were to be replaced by a hotel surrounded 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 no occassion for the Government to invite tenders since the establishment of a Five Star hotel was not something which could practicably be undertaken by anyone in that fashion
It could only be done by negotiation between the persons coming forward with proposals to estab lish Five Star Hotels
The terms of the lease were not to the financial disadvantage of the Government
The matter had been considered at great length by the Committees of Secre taries appointed by the Government as well as by WEBCON and they had recommended the acceptance the nett sales arrange ment in preference to the arrangement of rent based on land cost
We are unable to agree with the submission of Dr Singhvi learned counsel for the appellants that the Gov ernment of West Bengal decided to grant the lease of the Begumbari land to the Taj Group of Hotels without applying their mind to very important relevant considerations
Much of the argument on this question was based on the assumption that the decision to lease the Begumbari land to the 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 ITDC and the Taj Group of Hotels in regard to leasing the Hastings House property and the Begumbari land
Negotiations with the ITDC did not fructify while negotiations with the Taj Group of Hotels fruitioned
It was on September 10 1981 that 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 irrevers ible decision in the sense that the Government was powerless to revoke it or that it had created any rights in anyone so as to entitle that person to question any reversal of the 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 ITDC and the other to the Taj Group of Hotels for the construction of Five Star Hotels
The record 256 shows that these two chain hoteliers wer the only hoteliers and they certainly were leading hoteliers of the country who had come forward to negotiate with the West Bengal Government regarding the construction of Five Star Hotels
The city of Calcutta was noticeably lacking in the Five Star Hotel amenity  to attract tourist local and foreign and the Government of West Bengal was anxious to do its best to promote the tourist industry which it was hoped would provided direct and indirect employment earn foreign exchange and confer 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 concession al 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 feltneeds 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 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 construc tion 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 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 Government was not unmindful of the interests and requirements of the Zoologi cal Garden though at that stage no detailed investigations had 257 apparently been made
The decision of the Government was not one of those mysterious decisions taken in the shrouded secrecy of Ministerial Chambers
It appears to have been taken openly with no attempt at secrecy
The decision perhaps proposal would be a more appropriate 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 Twen ty first February it was public knowledge and news of the proposal was published in the daily newspapers
We have no evidence or any immediate or subsequent public protest but there were certain objections 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 Begumbari land would be left unprovided for if the land was given to 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 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 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 problem
It would be stretching credibility to suggest that it is necessary to grow fodder in the Begum bari land to feed the elephants in the zoo
Fodder may be bought and brought from elsewhere
The Chief Town Planner who was deputed to visit the site at the request of the Secretary Metropolitan Development Department and who visited the Zoo accompanied by the Director of the Zoo reported that 2 to 212 acres of land might be made avail able for the hotel
If four acres of land were given he expressed the apprehension that the hospital and the dumping ground would have to be moved elsewhere
The hospital as we have already mentioned has since been conveniently and comfortably accommodated in a new building and the proposal is to move the dumping ground elsewhere
The Managing Com mittee of the Zoo also initially expressed its opposition to the proposal to construction hotel on land belonging to the Zoo
The Committee s objections were two fold 1 A muliti storied building in the vicinity of the Zoo will disturb the 258 animals and the ecological balance and will affect the bird migration 2 the land was already used for various pur poses that is fodder cultivation burial ground for ani mals hospital operation theatre quarantine area post martom room and nursery
It would be impossible according to the Committee to accommodate these essential services within the campus of the main Zoo
The objections of the Managing Committee 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 Minis ter considered the objections and noted that if further 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 Secretary Animal Husbandary Department where he expressed his opposi tion 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
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 de tailed 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 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 detailing the objections and the Chief Minister had expressly noted that all facili ties necessary for the Zoo would be provided by the Govern ment
The assurance was also conveyed to the Managing Com mittee 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 dent ear to the interests and the requirements of the Zoo and went about the question 259 of allotment of land to the Taj Group of Hotels determined to give the land to them and with a mind closed to every thing 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 expressly stipulated that the lessee shall reconstruct the structures now existing on the demised land as found in the sketch accompanying 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 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 existing structure within a period of six months which was also the period stipulated for raising the new constructions
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 fight to claim reimbursement from the Government
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 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 Government 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 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 Manag ing 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 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 260 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 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 expan sion of the zoo when they decided to grant four acres of 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 ecological considerations particularly to the question of the migratory birds when they took the decision of lease the land to the Taj Group of 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 everything that is not mentioned in the Cabinet Memo randa did not receive consideration by the Government
We must remember that the process of choosing and allotting 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 June 11 1981
This resolution was forwarded to the Chief Minister and considered by his as evident from the note of the Chief Minister and the suse quent reversal of the Managing Committee s resolution at the instance of the Chief Minster and on his assurances
The Chief Minister 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 Hotels
That the Govern ment was aware of the dissension based on the alleged ob struction 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 multistoreyed buildings all around the Zoological Garden but there was no report that they had any adverse effect on the migratory birds or the animals
He also pointed out that all precautions would be taken in the matter of illumination of the hotel and lay out of the surroundings so that no disturbance would be caused to the flight path of the birds or animals
Shri JRD Tata on behalf of the Taj Group of Hotels also wrote to the Prime Minister assuring her that the hotel management had dis cussed the matter at length with a representatives of the Wild 261 Life Fund who after discussion had been satisfied that the proposed hotel would cause no disturbance to the birds
He further assured her that he had himself gone thoroughly into the project with special reference 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 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 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 apparently to indicate that the building would not come within the trajectory of the birds
He mentioned that Dr Biswas a renowned ornithologist had also been consulted by the Taj Management and he had also confirmed that a 75 feet building would not interfere with the landing or climb ing out of the birds from the lake
He further mentioned that the grounds of the Zoo between the lake and the Belve dere 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 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 neor signs emanating from the hotel would not disturb the birds and animals
The learned counsel for the appellants drew our atten tion to a letter written by Dr Biswas to the Statesman dated August 3 1982 in which he disowned having made any statement to a press correspondent 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 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 JRD 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 262 to negotiate 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 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 Government before the deciSion to lease the land was taken and we are also satisfied that the building of the proposed hotel is not likely to cause 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 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 Alipore Zoo in Calcutta The proceedings of the Commit tee were recorded as follows Director Geological Survey of India ex plained the whole matter and pointed out the utter impropriety of the decision of the Government of West Bengal to construct a FiveStar 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 Com mittee of the Wild Life Fund was proceeding on the fundamen tal wrong assumption that the hotel was proposed to be constructed within the premises of Alipore Zoo
The reso lution was justified on the assumed premises but unfortu nately it was rounded on a wrong premises
Later Mrs Anne Wright appeared to be satisfied with what was finally done as evident from her letter dated November 19 1983 to Mr JRD Tata a copy of which has been placed before us
Bearing in mind the proper approach that we have to make when 263 questions of ecology and environment are raised an approach which we have mentioned at the outset we are satisfied that the facts and circumstances brought out by the appellants do not justify an inference that the construction of the pro posed 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 around the proposed hotel and the removal of the burial ground and dumping ground for rubbish
Dr Singhvi cited before us the well known decisions of this Court in Rohtas Industries Ltd vs SD Agarwal   Barium Chemicals vs AG Rana  and Mohinder Singh Gill vs Central Election Commission to urge that even an administrative decision must be arrived at after taking into account all relevant considera tions and eschewing irrelevant considerations and that the reasons for an order must find a place in the order itself and those reasons cannot be supplemented later by fresh reasons in the shape of an affidavit or otherwise
The submission was that neither the Cabinet memorandum of Janu ary 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 Memoran da it was said could not later be supplemented by consid erations which were never present to the mind of the deci sion making authority
We do not agree with the submission of Dr Singhvi
The proposition that a decision must be arrived at after taking into account all relevant considera tions
eschewing all irrelevant 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 one of those cases where the evidence is first gathered and a decision is later arrived at one fine morning and the deci sion 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 independently and separately weighed and considered
This is a case where the decision and the reasons for the decisions can 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
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 supplement the grounds of this order by later explana tions the present is a 264 case where neither a statutory functions nor a statutory functionary is involved but the transaction bears a commer cial though public character which can only be settled after protracted discussion clarification and consultation with all interested persons
The principle of Mohinder 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 principles 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 not be divested by an execu tive 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 Government in 1880
We do not have the original grant before us
The entire file of the Government relating to the Begum bari land was produced before the Trial Court without any attempt at withholding any document
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 Department to Mr L Schwandler Honorary Secretary Zoological Garden conveying to him the sanction of the Lt Governor for the transfer of the land to the east of Belvedere Road known as Begumbari land to the charge of the Committee of the Zoolog ical Garden on the terms agreed to by the Committee in their letter dated April 23rd
The conditions were mentioned as 1st
That the land is to be used for the purpose of acclimatization only
265 2nd
That Oarnivors are not to be kept on any part of it on any account
That the grounds are to be kept clear and neat
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 Dr Singhvi questioned the authenticity of the documents and also objected to their reception in evidence on the ground that no foundation had been laid for the reception of sec ondary evidence
We must straightaway say that no objection was taken either before the single judge or before the Division Bench either to the authenticity or to the admissi bility 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 Committee of the Zoological Garden never doubted the authenticity of the documents nor was any question ever raised to suggest that the terms 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 undoubt edly Government land to start with was given to the Zoo logical 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 term was that the Zoological Garden Committee would be suitably compensated for any expenditure incurred by it on the construction of any building on the land
The further submission of Dr Singhvi was that whatever might have been the terms of the grant in favour of the Zoological Garden the Bengal 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 the public from molestation annoyance 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 notification 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 266 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 admission into the park of persons animals and vehicles prohibit the causing of any manner of injury to the trees plants monuments furniture etc
in the park prohibit shooting bird testing etc
prohibit or regulate fishing or boating prohibit bathing or the pollu tion of water by any other means prohibit the grazing of horses or ponies prohibit the teasing or annoying of ani mals 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
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 molestation or annoyance by others
The Act is aimed at protecting the park and its visitiors from injury and annoyance by despoilers and ma rauders
The Act has nothing whatever to do with the vesting of any property 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 pur poses of the Act and not for the purpose of vesting or creating any title in a property
If a piece of adjacent land for example is taken on lease for a specified number of years by the park and included in the park by a notifica tion 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 that 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 transferred
The learned 267 counsel invited our attention to several decisions of the court Rash Bihari Panda vs State of Orissa   RD Shetty vs International Airport Authority   Kasturi Lal Laxmi Reddy vs State of Jammu  Kashmir   State of Haryana vs Jage Ram  Ram  Shyam Co vs State of Haryana and Chenchu Rami Reddy vs Government of Andhra Pradesh 1986 3 SCC 391
The West Bengal Land Management Manual 1977 is pub lished under the authority of the Board of Revenue West Bengal
Like similar volumes going by whatever name pub lished 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 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 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 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 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 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 intended to secure the best revenue for the State
They do not deal with cases of trans fer 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 268 invite tenders or held a public auction To answer this question we may refer to the cases cited at the Bar
In Rash Bihari Panda vs 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 con tracts 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 purchasers 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 restric tions upon the right of persons other than existing contrac tors to carry on business
It is to be seen that in the present case no one has come forward alleging that he has been discriminated against and his fundamental right to carry on business had been affected
The very nature of the construction and establishment of a Five Star Hotel is indicative of a requirement of expertise and sound financial position on the part of those who might offer to construct and establish them
The decision taken by the All India Tourism Council was an open decision well known to everyone in the hotel business
Yet no one except the ITDC 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 arrangements for establishing a Five Star Hotel
In the circumstances particularly in the absence of any leading hoteliers coming forward the Government of West Bengal was perfectly justified in entering into negotiations with the ITDC and the Taj Group of Hotels instead of inviting tenders
In RD Shetty vs International Airport Authority supra
Bhagwatti J speaking for the Court observed that the activities of the Government 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 li cences or granting other forms of larges the Government could not act arbitrarily at its sweet will but must act in conformity with standards or norms without being arbitrary irrational or irrelevant
If 269 the Government departed from such standard or norm in any particular 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 dicriminatory
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 proceeding in the matter rather than invit ing tenders or holding public auction
There was nothing discrminatory in the procedure adopted since no other lead ing hotlier had shown any inclination to come forward
Tenders and Auction were most impractical in the circum stances
In Kasturilal Lakshmi Reddy vs State of Jammu and Kash mir supra Bhagwati J again speaking for the Court reiterated what had said earlier in RD Shetty vs Interna tional Airport Authority supra
He proceeded to say The Government therefore cannot for exam ple give a 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 reasonable 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 property 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 there may be an infinite variety of con siderations 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 Government 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 valid ity to show that is wanting in reasonableness or is not 270 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 ade quate material
The Court cannot lightly assume that the action taken by the Government is unreasonable 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 taking 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 invalidate 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 rea lised 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 respondents at the rate of Rs 320 per quintal under the impugned order
This argument plausible though it may seem is fallacious 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 concept 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 interest
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 there can be no scope for 271 complaint that the State is giving resin at a lesser price than that which could be obtained in the open market
The yardstick 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 industries within the State And again 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 allo cating 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 industry to be set up within the State and invite those interested to come up with pro posals 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
 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 vs Jage Ram supra it was held that it was not open to the Excise Authorities to pick and choose a few persons only as the recipients of the notice of reauc tion
There was no explanation as to how they 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 explained why the choice of the Taj Group of Hotels must be held to be beyond suspicion and above reproach
272 In Ram  Shyam Company vs State of Haryana supra dealing with the question of disposal of State property Desai J speaking for the court said Let us put into focus the clearly demarcated approach that distinguishes the use and dis posal 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 word is jarring to some the community or further the public property has to be dealt with for public purpose and in public inter est
The marked difference lies in this that while the owner of private property 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 par takes 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 activities by the avail ability of larger funds
This is subject to one important limitation that socialist property may be disposed at the price lower than the market price or even for a token price to achieve some defined constitutionally recongnised public purpose one such being to achieve the goals set out in Part IV of the Constitution
But where disposal is for aug mentation of revenue and nothing else the State is under an obligation to secure the best market price available in a market econo my
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 per sonal attachment or affinity kinship empa thy religious sentiment or limiting 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 property 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 eradica tion of poverty
All its attempt must be to obtain the best available price while dispos ing of its property because the greater the revenue the welfare activities will get a fillip and shot in the arm
Financial con straint may weaken the tempo of activities
Such an 273 approach serves the larger public purpose of expanding welfare activities primarily for which Constitution envisages the setting up of a welfare State In Chenchu Rami Reddy vs Government of Andhra Pradesh supra it was observed that public officials entrusted with the care of public property  were required to show exem plary vigilance
The Court indicated that the best method of disposal of such property was by public 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 difference between sale of land and other readily saleable commodities and the allotment of land for estab lishing a modern Five Star Hotel of International standard is so obvious as to need no more explanation
On a consideration of the relevant cases cited at the bar the following propositions may be taken as well estab lished
State owned or public owned property is not to be dealt with at the absolute discretion of the executive
Certain precepts and principles have to be observed
Public interest is the paramount consideration
One of the methods of securing the public interest when it is considered necessary to dispose of a property is to sell the property by public auction or by inviting tenders
Though that is the ordinary rule it is not an invariable rule
There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the depar ture 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 appear ance of bias
jobbery or nepotism
Applying these tests we find it impossible to hold that the 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
According to the learned counsel the nett sales  method of calculating 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 Government would have been much higher
We do not think that there is any 274 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 WEBCON the consulting agency of the West Bengal Government which sub mitted a detailed report on the subject
This was also the recommendation of the Committee of Secretaries who 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 rent based on market value method does not take into account the appreciating value of land the inflation ary tendency of prices and the profit orientation
Even on a prima facie there appears to be nothing wrong or objection able 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 construc tion of a Five Star hotel in Calcutta
The Government of West Bengal did not fail to take into account any relevant consideration
Its action was not against the 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 sacri ficed either by not inviting tenders or holding a public auction or by adopting the nett sales  method
In the result the judgments of the learned single judge and the Division Bench of the Calcutta High Court are affirmed and the appeal is dismissed
In the circumstances of the case we do not desire to award any costs
KHALID J The tenacity with which this expensive public interest litigation was pursued by the petitioners before the learned Single Judge and a Division Bench of the Calcut ta High Court and before this Court is commendable
But after hearing the lengthy arguments advanced I ask myself the question whether this exercise could not have been avoided
Originally the writ petition was filed by five persons
The supporting affidavit to the writ petition was sworn to by the first petitioner 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 there are only two petitioners the 1st and the 2nd in the writ petition
275 3rd and 4th petitioners figure here as respondents 6th and 7th
The 5th 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 background 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
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 protect 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 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 hap pened 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 rejected
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
Accordingly I am not inclined to stay this matter any further
I ought to point out further that as the peti tioners obtained 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 situation will fol low
 This public interestlitigation 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 deci sion of the Government is arbitrary
The question to be answered is whether this accusation can be justified
On a 276 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 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 affida vits or annexure to the same but the submis sions were based on the further documents and files produced before me mainly by the State and also some documents by the private re spondent being respondent No 51 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 before me the original 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 materi als to prove that its decision was taken after mature con sideration at all levels
The appellants failed before the learned Trial Judge on all the points raised by them
After an exhaustive discus sion 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 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 the appeal
277 One redeeming factor in this case is the total absence of any 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 Government s decision to grant aforesaid four acres of land out of 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 discharge of the public interest
In their writ petition or in course of their submissions before us the appellants did not try to 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
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 litigation by accepting the verdicts so given
They could have moved the Government or taken other steps to expedite the starting of an additional 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 envi ronmental protection 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 Judgment with the observation that this was an avoid able exercise
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 278 requisite safeguards
In the place of a dilapidated hospi tal operation theater and the like they constructed build ings anew at a cost of Rs30 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 main tained
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 available 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 subject to criticism by the appellants  counsel and he in support of his submission handed over to us a calcula tion 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 con cerned is correct
That is this
An amount of 4 crores if deposited in bank at a particular rate of compound inter est 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
A deal like this cannot be concluded by public auction
Here we do not have a case again sale of a Government property
Therefore 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 ad verse criticism
279 My purpose in adding these few lines of my own is to highlight 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 necessary to lay down clear guide lines and to outline the correct parameters for entertainment of such petitions
If courts do not restrict the free flow of such cases in the name of Public Interest Litigations the tradi tional litigation will suffer and the courts of law instead of dispensing justice will have to take upon themselves administrative and executive functions
I should not be understood to say that traditional litigation should stay put
They have to be tackled by other effective methods like
decentralising the judicial system and entrusting majority of traditional litigation to village courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases
It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts especially this Court should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy the under dog and the neglected
I will be second to none in extending help when such help is required
But this 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 liti gants
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 appellant who is a trade union ist has not espoused any grievance of the mazdoors before us
It was faintly suggested by the Government s counsel that the first petitioner does not represent all the maz doors
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
280 I conclude this short Judgment with a lurking doubt in my mind and with a question Is there something more than what meets the eye in this case SR Appeal dis missed


Summary:
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 on any part of it on any account iii that the grounds are to be kept clear and neat iv that the land must be restored to the government if hereafter required the Zoological Garden Committee being reimbursed for any expenditure they may have incurred in building there In this eight acres of land there are some old buildings and the vacant land was used for fodder cultivationfor raising flower nursery as a sumping ground for huge garbages and as burial ground for dead animals
In January 1979 the Director General of Tourism Gov ernment of India addressed a letter to the Chief Secretary Government of West Bengal conveying the Resolution of the Tourism conference which was presided over by the Union Minister of Tourism and attended by several State Ministers and requesting that land in good location may be made avail able 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 Metropol itan Development Department to the effect that the ITDC was interested in a property known as the Hastings House Properly and that the Taj Group of Hotels who considered the Hastings House properly unsuitable may be offered four acres out of the eight acres of Begumbari land
On the same day the Taj Group of Hotels wrote to the Government of West Bengal stating that the proposed land could be seriously considered for construction of a hotel
Thereafter 225 the Chief Minister along with the Minister of Tourism and the Minister for Metropolitan Development visited the site accompanied by the Director of the Zoo to apparently knew about the proposal right from the start
A note was then prepared by the Secretary Metropolitan Development Depart ment 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 Hast ings House Property to the ITDC Group and the Begumbari property to the Taj Group of Hotels
In regard to the Begum bari property it was stated From the property of the Zoological Gardens on the Belvedere Road it is possible to carve out about four acres of land currently used for dump ing 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 ITDC and the Taj Group respectively
It was stated that though the Forest Department had suggested that Salt Lake was a better place for establishing a Five Star Hotel there was no demand for a Five Star Hotel in that area and the request for a hotel in Salt Lake was confined to a Three Star Hotel
Cabinet approval was sought for the offers to be made to the ITDC 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 ap proving 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 142
1981 about the Zoo
While suggesting that the govern ment 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 pur pose
The Chief Town Planner who visited the site at the request of the Secretary Metropolitan Development Depart ment and in the presence of the Director of the Zoo sug gested that 2 to 2 12 acres of land might be 226 made available for the Hotel
On March 19 1981 the Taj Group submitted a proposal to the government containing fairly detailed information about the tourism industry and its needs the situation in Calcut ta the realities of Hotel construction the facts relating to what had been done in other cities the benefits iowing 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
The first alternative was the payment of annual rent on the basis of the valuation of the land the second alternative was based on the concept of nett sales nett sales being defined as sales after deducting all taxes and levies and service charges
The Metropolitan Development Department expressed a preference for the second alternative and suggested the constitution of a Committee
The Finance Department also approved
The Taj Group was invited to send the financial projection on the basis of the second alterna tive
Correspondence went on
On June 5 1981 a Committee of Secretaries was formally constituted
In the meanwhile WEBCON a West Bengal Government Consultancy Undertaking was asked to examine the proposals and to advise the Govern ment
On June 11 1981 the Managing Committee of the Zoo passed a resolution expressing itself against the proposal to construct a hotel on land belonging to the Zoo
Accepting the note put up by the Secretary Metropolitan Development Department on the said resolution the Chief Minister minuted that if further facilities are necessary for the zoo the government will provide for them On June 25 1981 the Managing Committee met again and passed another resolution by which they withdrew their earlier objections dated 1161981
On June 29 1981 the Director of the Zoo who was a party to all the proceedings etc
right from the beginning wrote to the Secretary of Animal Husbandry and Veterinary Services Department stating his objections to the proposal to lease the land for construction of a hotel
On July 14 1981 the WEBCON submitted its report and on the request of the Committee of Secretaries a further report was submitted on July 22 1981
The report of WEBCON is a comprehensive report on various topics connected with the establishment of a Five Star Hotel in Calcutta
Among other things the report also suggested various financial alterna tives and recommended the second alternative based on nett sales as the best
227 Meanwhile negotiations with Taj Group proceeded apace
The WEBCON submitted further reports
Taj Group suggested further modifications
On September 9 1981 a detailed memorandum was prepared for cabinet discussion
Two alterna tive 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 Rs2 crores but that it was expected to be of considerable public bene fit
Stress was laid on the direct and indirect economic activities which would be generated by the establishment of a five Star Hotel
Reference was also made to the report of WEBCON and it was noted that the projected profitability of the venture to the government was expected to be high
It was also mentioned that the Ministers incharge of Tourism Animal Husbandry Land Revenue and Finance had seen the note and had agreed to it
On September 10 1981 the Cabinet took the final decision to grant a ninety nine years lease of the four acres of Begumbari land to the Taj Group of Hotels
On September 29 1981 the Government of West Bengal officially conveyed its acceptance of the proposal of the Taj Group of Hotels for the construction of a Five Star Hotel
The terms and conditions of the lease were set out
On January 7
1982 there was a joint meeting of the Establishment and Finance sub Committees of the Zoo and it was decided to recommend to the Committee of management that the demarcated area of four acres may be relinquished in favour of Animal Husbandry and Veterinary Services Department subject to the requirement that the zoo will continue to get the services and the facilities in the existing structures until they were reconstructed on the adjacent land
On January 11 1982 the Managing Committee endorsed the view of the sub commit tees 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 stipu lation was that the cost of the new construction was to be initially met by Taj Group of Hotels and later to be adjust ed against the rent payable by Taj Group the Taj Group later agreed to waive such reimbursement in fact a total sum of Rs30 lakhs has been spent by Taj Group of Hotels in connections with the reconstruction
Not only this
land in the extent of 288 square 228 meters out of the plot given to them was carved out and given hack for accommodating part of the reconstructed structures
Pursuant to the letter dated January 15 1982 possession was given to Taj Group on January 16 1982
Thereafter an expert committee was constituted to supervise the construc tion 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 2621982
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 21882 pointed out thati the four acres of land were agreed to be relinquished by the Committee of management of the Zoological Garden on condition that alter native 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 struc tures are relocated on the adjacent land the zoo would continue to get their services and facilities from the existing structures
iv the hotel was not the only tall building since there existed many such residential buildings to which none raised an objection and that PT 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 3081982 from Shri JRD Tata to the Prime Minister on September 1 1982
Indira Gandhi wrote to Mr Tata expressing her happiness that the hotel was not going to upset the Zoo animals and welcoming his offer to help the State Government to improve the Zoo s facilities
229 A learned Single Judge of the High Court dismissed the writ petition holding that the West Bengal Government did not show any lack of awareness of the problem of environment ecology in granting the lease of land
On appeal a Division Bench confirmed the said judgment
Hence the appeal by Special leave of the Court
Dismissing the appeal the Court HELD Per Chinnappa Reddy J 11 Whenever a problem of ecology is brought before the Court the Court is bound to bear in mind article 48 A of the Constitution the Directive Principle which enjoins that The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country and article 51Ag 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 Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is matter for the policy making authority
The least that the court may do is to examine whether appropriate considera tions are borne in mind irrelevancies excluded
In appropri ate 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 considera tions the court may feel justified in resigning itself to acceptance of the decision of the concerned authority
If the Government is alive to the various considerations re quiring thought and deliberation and has arrived at a con scious decision after taking them into account it may not be for the court to interfere in the absence of mala fides
On the other hand if relevant considerations are not borne in mind and irrelevant considerations influence the deci sion the Court may interfere in order to prevent a likeli hood of prejudice to the public
242B F 12 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 appel lants 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 arriv ing at the zoo or otherwise disturb the ecology
The pro posed hotel is a Garden hotel and there is perhaps every chance of the ecology and environment improving as a result of planting numerous trees all 230 around the proposed hotel and the removal of the burial ground and dumping ground for rubbish
263A B 13 That the question of obstruction which may be caused to migratory birds did not go unnoticed by the government before the decision to lease the land was taken is clear from the following i the question of the migratory bird was first raised in the resolution of the Managing Committee dated June 11 1981
This resolution was forwarded to the Chief Minister and considered by him as evident from the note of the Chief Minister and the subsequent reversal of the Managing Committee s resolution at the instance of the Chief Minister and on his assurance ii that the govern ment was aware of the dissension based on the alleged ob struction likely to be caused by a multi storeyed building to the flight of the migratory birds appears from the letter of the Chief Minister to the Prime Minister
In this letter the Chief Minister pointed out that there were already in existence a number of multistoreyed buildings all around the Zoological Garden but there was no report that they had any adverse effect on the migratory birds or the animals
He also pointed out that all precautions would be taken in the matter of illumination of the hotel and lay out of the surroundings so that no disturbance would be caused to the flight path of the birds or animals iii Shri JRD Tata on behalf of the Taj Group of Hotels also wrote to the Prime Minister assuring her that the hotel management had dis cussed the matter at length with a representative of the Wild Life Fund who after discussion had been satisfied that the proposed hotel would cause no disturbance to the birds
He further assured her that he had himself gone thoroughly in to the project with the special reference to the possible impact on the birds and the environment and had satisfied himself that project would not cause any disturbance to the birds or their free movement
He pointed out that the four acre plot was not within the main Zoological Garden but was separated from it by the Belvedere Road which was an impor tant thoroughfare in the city
It was about 700 feet from the main part of the lake
The hotel was proposed to be built away from the frontage of the plot in Belvedere Road and was to be a low rise structure the highest point of which would not exceed 75 feet far below the trajectory of the birds
He mentioned that Dr Biswas a renowned ornithol ogist had also been consulted by the Taj Management and he had also confirmed that a 75 feet building would not inter fere with the landing or climbing out of the birds from the lake
He further mentioned that the grounds of the Zoo between the lake and the Belvedere Road were covered with tail trees and that the birds negotiating the trees would have to fly at a steeper angle than it would be necessary to negotiate the proposed hotel
The vehicu 231 lar traffic on Belvedere Road which was also heavy did not bother the birds and the slight increase of the vehicular traffic consequent on the construction of the hotel was also not likely to bother them either
It was also pointed out that particular care would be taken in the matter of illumi nation of the hotel so that bright lights or neon signs emanating from the hotel would not disturb the birds and animals
In the circumstances the government was alive to the ecological considerations particularly the question of the migratory birds
260E H 261A E 21 It is wrong to think that every thing not mentioned in the Cabinet Memoranda did not receive consideration by the government
In the instant case the process of choosing and allotting the land to the Taj Group of Hotels nearly took two years during the course of which objections of various kinds were raised from time to time
It was not necessary that everyone of these objections should have been mentioned and considered in each of the Cabinet Memoranda
260C E 22 The proposition that a decision must be arrived at after taking into account all relevant considerations eschewing all irrelevant considerations cannot for a moment be doubted
In the instant case relevant considerations were not ignored and indeed were taken into consideration by the Government of West Bengal
It is not one of those cases where the evidence is first gathered and a decision is later arrived at one flue morning and the decision is incorporated in a reasoned order
This is a case where discussion had necessarily to stretch over a long period of time
Several factors have to be independently and separately weighed and considered
This is a case where the decision and the rea sons for the decision could only be gathered by looking at the entire course of events and circumstances stretching over the period from the initiation of the proposal to the taking of the final decision
The argument that what was not said in either of the Cabinet Memoranda could not later be supplemented by considerations which were never present in the mind of the decision making authority is not correct
263E G Rohtas Industries Ltd vs SD Agarwal  and Barium Chemicals vs AG Rana   re ferred to
Mohinder Singh Gill vs Central Election Commission  distinguished
There was no failure to observe the principles of Natural Justice
Such as those as were really interested in the matter like the Managing Committee of the Zoological Garden and the Director of the 232 Zoo did have their say in the matter
The Public Undertak ings Committee in its report discussed the matter and invit ed the Government s attention to various factors
The matter was further discussed on the floor of the Legislative Assem bly
264B D 41 The two letters dated 234 1880 and 77 1880 pertaining to the grant relating to the transfer of land to the east of Belvedere Road known as Begumbari land in 1880 produced from old official records are public documents within the meaning of the Evidence Act
No objection either to the authenticity or to the admissibility of the documents was taken either before the Single Judge or before the Division Bench
The Managing Committee of the Zoological Garden never doubted the authenticity of the documents nor was any question even raised to suggest that the terms of the grant were other than those mentioned in the letters
265C E 42 The new plea relating to authenticity or admissibil ity of evidence cannot be accepted in an appeal under article 136 of the Constitution
The land which was undoubtedly government land was given to the Zoological Garden upon the terms set out in the two letters
One of the terms was that the land should be restored to the government whenever required
Another terms was that the Zoological Garden Committee would be suitably compensated for any expenditure incurred by it on the construction of any building on the land
265E 51 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 Execu tive takes it away by its fiat
The Begumbari land was government land transferred to the charge of the Zoological Garden Committee in 1880 in accordance with the conditions and terms agreed to by the Committee in their letter dated 2341880 namely i that the land is to be used for the purpose of acclimatization only ii that Carnivors are not to be kept on any part of it on any account iii that the grounds are to be kept clear and neat iv that the land must be restored to the government if hereafter required
The Zoological Garden Committee being reimbursed for any expenditure they may have incurred in building there
 Therefore this is a case of resumption of Government land under the terms of Agreement
264E H 265A B 52 From the Preamble and the provisions of the Bengal Public Parks Act 1904 it is clear that the Act is intended to protect the inmates and the property of the park from injury by persons resorting 233 to the park from molestations or annoyance by others
The Act is aimed at protecting the part and its visitors from injury and annoyance by despoilers and marauders
The Act has nothing whatever to do with the vesting of any property in the parks
There is in fact no provision which deal with the vesting of property in a park Section 3 enables the State Government to extend by a notification the boundaries of a park but that can only be for the purposes of the Act and not for the purpose of vesting or creating any title in a property
If a piece of adjacent land for example is taken on lease for a specified number of years by the park and included in the park by a notification under s3 it does not mean that the various things the doing of which is regulated or prohibited by the Act and the rule will not be done or will be regulated on the adjacent land also
The provisions of the Bengal Public Parks Act have no relevance to the question of the power of the government to transfer the Begumbari land to the Taj Group of Hotels
266C F 61 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 applica ble to the facts
They are not to be ignored until amended
The government or the Borad may have the power to amend these orders and instructions but nonetheless they must be obeyed so long as they are in force and are applicable
But from the perusal of the provisions of paragraphs 165 to 167 of the West Bengal Land Management Manual it is clear that these provisions of the Land Management Manual do not appear to have anything to do with the transfer and use of the land in the manner proposed in which the State also have a vital stake apart from the mere raising of revenue for the State
Paragraphs 165 166 and 167 deal with simple cases of crea tion of non agricultural tenancies by way of long term leases
They generally deal with land which is at the dis posal of the government as waste or surplus land and are intended to secure the best revenue for the State
They do not deal with cases of transfer of land for a specific socio economic object where the securing of immediate revenue
is not the principal object but other social and economic benefits are sought
267E H 62 The following propositions may be taken as well established on a considerations of the earlier decisions of the Supreme Court
State owned or public owned property is not to be dealt with at the absolute discretion of he execu tive
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 consid ered necessary to dispose of a property is to sell the property by public auction or by inviting tenders
Though that is the ordinary rule
it is not an invariable 234 rule
There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination
Appearance of public justice is as important as doing justice
Nothing should be done which gives an appearance of bias jobbery or nepotism
273D F 63 Applying the above tests it cannot be held that the government of West Bengal did not act with probity in not inviting tenders or in not holding a public auction but negotiating straight away at arm s length with the Taj Group of Hotels in its pursuit or socio economic objective of encouraging tourism and earning more foreign exchange
In the present case no one has come forward alleging that he has been discriminated against and his fundamental right to carry on business had been affected
The very nature of the construction and establishment of a Five Star Hotel is indicative of a requirement of expertise and sound financial position on the part of those who might offer to construct and establish them
The decision taken by the All India Tourism Council was an open decision well known to everyone in the hotel business
Yet no one except the ITDC and the Taj Group of Hotels had come forward with any proposal
The Oberoi Group of Hotels already had a Five Star Hotel in Calcutta while the Welcome Group of Hotels were making their own Private negotiations and arrangements for establishing a Five Star Hotel
In the circumstances particularly in the absence of any leading hotliers coming forward the govern ment of West Bengal was perfectly justified in entering into negotiation with the ITDC and the Taj Group of Hotels instead of inviting tenders
Negotiations with those who had come forward with proposals to construct Five Star Hotels was without doubt the most reasonable and rational way of proceeding in the matter rather than inviting tenders or holding public auction
There was nothing discriminatory in the procedure adopted since no other leading hotlier had shown any inclination to come forward
Tenders and auction were most impractical in the circumstances
The choice of the Taj Group of Hotels must therefore be held to be beyond suspicion and above reproach
273F 268D F Rash Bihari Panda vs State of Orissa  RB Shetry vs International Airport Authority 14 Kasturi Lal Laxmi Reddy vs State of Jammu  Kashmir   State of Haryana vs Jaga Ram  Ram and Shvam Co vs State of Haryana  and Chenchu Rami Redav vs Govt
of Andhra Pradesh 1986 3 SCC 391 discussed
71 On a consideration of all the facts and circumstances of the 235 case it is clear that the government of West Bengal acted perfectly bonafide in granting the lease of Begumbari land to the Taj Group of Hotels for the construction of a Five Star Hotel in Calcutta
The government of West Bengal did not fail to take into account any relevant consideration
Its action was not against the interest of the Zoological Garden or not in the best interests of the animal inmates of the zoo or migrant birds visiting the zoo
The financial interests of the State were in no way sacrificed either by not inviting tenders or holding a public auction or by adopting the  nett sales method
274C E 72 The nett sales method appears to be fairly well known method adopted in similar situations
This what was recommended by WEBCON the consulting agency of the West Bengal Government which submitted a detailed report on the subject
This was also the recommendation of the Committee of Secretaries who went into the matter in death even to lay persons who are no financial experts it appears that the nett sales method does and the rent based on market value method does not take into account the appreciating value of land the inflationary tendency of the prices and the profit orientation
Even on a prima a facie view there appears to be nothing wrong
or objectionable in the nett sales method
It is profit oriented and appears to be in the best interests of the Government of West Bengal
274A C Per Kahlid J concurring 1
Today public spirited litigants rush to courts to file cases in profusion under attractive name Public Inter est Litigation
They must inspire confidence in courts and amongst the public
They must be above suspicions
Public Interest Litigation has now come to stay
Bue one is led to think that it poses a threat to courts and public alike
Such cases are now filed without any rhyme or reason
It is therefore necessary to lay down clear guide lines and to outline the correct parameters for entertainment of such petitions
If courts do not restrict the free flow of such cases in the name of Public Interest Litigations the tradi tional litigation will suffer and the courts of law instead of dispensing justice will have to take upon themselves administrative and executive functions
This does not mean that traditional litigation should stay put
They have to be tackled by other effective methods like decentralising the judicial system and entrusting majority of traditional litigation to village courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases
It is only when courts are apprised of gross viola tion of fundamental rights by a group or a class action or when 236 basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts especially this Court should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy the under dog and the neglected
Extending help when help is required does not mean that the doors of the Supreme Court are always open to anyone to walk in
It is necessary to have some self imposed restrained on public interest litigants so that this salutary type of litigation does not lose its credibility
275C 279A F 2
The approach of the Taj Group Hotels in this case has been creditably fair
They have given all the assurances necessary to preserve the Zoo and its inmates
They were willing to afford all the requisite safeguards
In the place of a dilapidated hospital operation theater and the like they constructed buildings a new at a cost of Rs 30 lakhs which amount they were entitled to be reimbursed under cl 25 of the lease which they voluntarily gave up
In addition to this they surrendered an area of 288 sq metrs
from the land allotted to them to the Zoo
They agreed to build not the usual sky scrapper hotel but a garden hotel the height of which would not go beyond 75 feet despite the fact that there existed in the surroundings area buildings which were very high
This was done to keep free the route of the flight of the birds
They agreed to have subdued light in the hotel again in the ineterest of the birds
They also agreed to keep the surroundings of the hotel and the flora well maintained and already 30000 plants were getting ready to adjourn the area to be occupied by them
277H 278A C 31 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 compen sation paid which is a well known method adopted in such situations like the one here namely lease of land by the Government
278C E 32 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 gov ernment public auction has necessarily to be ruled out
Only Taj Group of Hotels came forward with an offer to start the hotel
The lease was the culmination after a long elaborate and open procedure with nothing to hide which therefore cannot justifiably be subject to adverse criticism
278G H