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PETITIONER: SACHIDANANDA PANDEY

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT11/02/1987

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) KHALID, V. (J)

CITATION:  1987 AIR 1109            1987 SCR  (2) 223  1987 SCC  (2) 295        JT 1987 (1)   425  1987 SCALE  (1)311  CITATOR INFO :  R          1988 SC 157  (8,12)  F          1989 SC 549  (15)  R          1989 SC 860  (20)  RF         1991 SC 983  (2)

ACT:     Environmental law-Interference by the Supreme Court with the  policy  decision of government, whenever a  problem  of ecology  is  brought before it,  extent  of-Constitution  of India,  1950, Articles 32, 48A, 51A(g)--Whether the  Govern- ment of West Bengal was not alive to the ecological  consid- erations,  particularly the question of the migratory  birds and  whether has shown such lack of awareness in  making  an allotment  of land to boost tourism by construction of  Five Star Hotel to the detriment of Zoological garden.     Cabinet Memoranda dated January 7, 1981 and Sep. 9, 1981 allotting  land for the construction of Five Star  Hotel  to Taj  Group  of  Hotels--Whether should  contain  every  item considered and whether non-mention lead to adverse  presump- tion that a particular point was not considered.     Natural  justice,  principle-Whether  the  principle  of natural  justice is said to be violated on the  ground  that those who are most interested in the Zoological garden  were not heard before the decision was taken.     New plea in the Supreme Court for the first time--Public document, evidentiary value of--Documents received  admitted and  relied on both by the Single and Division Bench of  the High Court--Plea of authenticity of the document and  objec- tion to its reception, cannot be allowed in an appeal  under Article 136 of the Constitution.      The Bengal Public Parks Act, 1904, Preamble Sections  3 and 4 scope and applicability.      West  Bengal Land Management Manual,  1977,  Paragraphs 165,  166, 167, applicability of-Whether the procedure  pre- scribed therein not being followed, the transfer of the land to Taj Group of Hotels is bad.      Disposal  by  Public auction or  by  inviting  tenders- Whether  bound to be followed by the State, in pursuing  the socio-economic objectives enshrined in the Constitution. 224 Public Interest Litigation, parameters delineation need  for stressed.

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HEADNOTE:     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 cultivation,for  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  I.T.D.C. was  interested  in a property known as the  Hastings  House Properly and that the Taj Group of Hotels who considered the Hastings House properly unsuitable may be offered four acres out  of the eight acres of Begumbari land. On the  same  day the  Taj  Group of Hotels wrote to the  Government  of  West Bengal  stating  that the proposed land could  be  seriously considered for construction of a hotel. Thereafter, 225 the  Chief Minister along with the Minister of  Tourism  and the  Minister for Metropolitan Development visited the  site accompanied  by the Director of the Zoo to  apparently  knew about  the  proposal right from the start. A note  was  then prepared by the Secretary, Metropolitan Development  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 I.T.D.C. 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

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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 I.T.D.C. and the Taj Group  respectively.  It was stated that though  the  Forest Department  had suggested that Salt Lake was a better  place for establishing a Five Star Hotel, there was no demand  for a  Five Star Hotel in that area and the request for a  hotel in  Salt  Lake was confined to a Three Star  Hotel.  Cabinet approval  was  sought  for  the offers to  be  made  to  the I.T.D.C. and to the Taj Group and for the constitution of  a suitable  Committee to undertake negotiations with  the  two groups.     On  February 12, 1981, the Cabinet took a  decision  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 14.2. 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 2-1/2 acres of land might be 226 made available for the Hotel.     On March 19, 1981 the Taj Group submitted a proposal  to the government containing fairly detailed information  about the tourism industry and its needs, the situation in Calcut- ta,  the realities of Hotel construction the facts  relating to what had been done in other cities, the benefits  i]owing out  of the construction of hotels and their  own  proposals for constructing a hotel in the four acres of land in 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

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Managing  Committee met again and passed another  resolution by  which  they  withdrew  their  earlier  objections  dated 11.6.1981.     On  June  29, 1981, the Director of the Zoo, who  was  a party  to all the proceedings etc. right from the  beginning wrote  to the Secretary of Animal Husbandry  and  Veterinary Services  Department stating his objections to the  proposal to lease the land for construction of a hotel.     On July 14, 1981, the WEBCON submitted its report and on the request of the Committee of Secretaries a further report was  submitted on July 22, 1981. The report of WEBCON  is  a comprehensive  report on various topics connected  with  the establishment of a Five Star Hotel in Calcutta. Among  other things the report also suggested various financial  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  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  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

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sum of Rs.30 lakhs has been spent by Taj Group of Hotels  in connections with the reconstruction. Not only this. land  in the extent of 288 square 228 meters  out  of the plot given to them was  carved  out  and given  hack  for  accommodating part  of  the  reconstructed structures.     Pursuant to the letter dated January 15, 1982 possession was  given to Taj Group on January 16, 1982.  Thereafter  an expert committee was constituted to supervise the  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  26.2.1982. Initially the relief sought was primarily  to restrain  the Zoo authorities from giving effect to the  two Resolutions  dated January 7, 1982 and January 17,  1982  to hand over the four acres to the Animal Husbandry  Department of  the  Government. Subsequent to the filing  of  the  writ petition  a  lease  deed was executed by the  Taj  Group  of Hotels  in favour of the government. The Writ  Petition  was therefore amended and a prayer for cancellation was added.     While  the writ petition was pending in the High  Court, Late  Smt. Indira Gandhi wrote a letter to Sri Jyothi  Basu, the  Chief Minister of West Bengal expressing the hope  that he would not allow the Calcutta Zoo to suffer in any  manner and  would leave it intact. The Chief Minister in his  reply letter dated 21.8.82 pointed out that:(i) the four acres  of land  were  agreed to be relinquished by  the  Committee  of management of the Zoological Garden on condition that 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  P&T  Department are  also constructing one such tall building; and  (v)  the lessee and their experts on wild life had assured them  that in any case adequate precaution would be taken in regard  to illumination of the hotel and the layout of the  surrounding so that no disturbance would be caused to the flight path of the  birds  or animals. To similar effect  was  .the  letter dated 30.8.1982 from Shri J.R.D. Tata to the Prime  Minister on  September 1, 1982. Smt. Indira Gandhi wrote to Mr.  Tata expressing  her  happiness that the hotel was not  going  to upset  the Zoo animals and welcoming his offer to  help  the State Government to improve the Zoo’s facilities. 229     A  learned Single Judge of the High Court dismissed  the writ  petition holding that the West Bengal  Government  did not show any lack of awareness of the problem of environment ecology in granting the lease of land. On appeal, a Division Bench  confirmed  the  said judgment. Hence  the  appeal  by Special leave of the Court. Dismissing the appeal, the Court,     HELD: (Per Chinnappa Reddy J.) 1.1 Whenever a problem of ecology  is brought before the Court, the Court is bound  to bear  in  mind Art. 48 A of the Constitution  the  Directive Principle  which enjoins that "The State shall endeavour  to protect  and  improve the environment and to  safeguard  the forests and wild life of the country, "and Art. 51A(g) Which proclaims it to be the fundamental duty of every citizen  of

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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]     1.2  Applying the above guidelines to be  followed  when questions of ecology and environment are raised, it is clear that  the facts and circumstances brought out by the  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]     1.3 That the question of obstruction which may be caused to  migratory birds did not go unnoticed by  the  government before  the decision to lease the land was taken,  is  clear from  the following: (i) the question of the migratory  bird was first raised in the resolution of the Managing Committee dated  June 11, 1981. This resolution was forwarded  to  the Chief  Minister  and considered by him as evident  from  the note  of the Chief Minister and the subsequent  reversal  of the  Managing Committee’s resolution at the instance of  the Chief  Minister and on his assurance; (ii) that the  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 J.R.D. Tata, on behalf of the Taj Group of Hotels also wrote to the Prime Minister  assuring  her that the hotel management  had  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

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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]     2.1 It is wrong to think that every thing not  mentioned in  the Cabinet Memoranda did not receive  consideration  by the government. In the instant case the process of  choosing and  allotting  the land to the Taj Group of  Hotels  nearly took  two  years during the course of  which  objections  of various  kinds  were raised from time to time.  It  was  not necessary that everyone of these objections should have been mentioned  and considered in each of the Cabinet  Memoranda. [260C-E]     2.2  The proposition that a decision must be arrived  at after  taking  into  account  all  relevant  considerations, eschewing all irrelevant considerations cannot for a  moment be  doubted.  In the instant case,  relevant  considerations were not ignored and indeed were taken into consideration by the Government of West Bengal. It is not one of those  cases where the evidence is first gathered and a decision is later arrived at one flue morning and the decision is incorporated in  a  reasoned order. This is a case where  discussion  had necessarily  to stretch over a long period of time.  Several factors have to be independently and separately weighed  and considered.  This is a case where the decision and the  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. v. S.D. Agarwal, [1969] 3 SCR 108 and  Barium  Chemicals v. A.G. Rana, [1972] 2 SCR  752,  re- ferred to.     Mohinder  Singh  Gill v.  Central  Election  Commission, [1978] 2 SCR 273, distinguished.

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   3.  There  was no failure to observe the  principles  of Natural Justice. Such as those as were really interested  in the  matter  like the Managing Committee of  the  Zoological Garden and the Director of the 232 Zoo  did have their say in the matter. The Public  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]     4.1  The  two letters dated 23.4. 1880  and  7.7.  1880, pertaining to the grant relating to the transfer of land  to the east of Belvedere Road, known as Begumbari land in 1880, produced  from  old official records, are  public  documents within the meaning of the Evidence Act. No objection  either to the authenticity or to the admissibility of the documents was  taken  either  before the Single Judge  or  before  the Division  Bench.  The Managing Committee of  the  Zoological Garden never doubted the authenticity of the documents,  nor was  any question even raised to suggest that the  terms  of the  grant were other than those mentioned in  the  letters. [265C-E]     4.2 The new plea relating to authenticity or admissibil- ity  of evidence cannot be accepted in an appeal under  Art. 136  of  the Constitution. The land  which  was  undoubtedly government land was given to the Zoological Garden upon  the terms set out in the two letters. One of the terms was  that the  land  should  be restored to  the  government  whenever required.  Another  terms  was that  the  Zoological  Garden Committee would be suitably compensated for any  expenditure incurred  by it on the construction of any building  on  the land. [265E]     5.1 It is true that the Act of the legislature cannot be undone  by a mere act of the Executive. This is not  a  case where the statute vests land in the Committee and the 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 23.4.1880; namely; "(i) that the land is to be used for  the purpose of acclimatization only; (ii) that Carnivors are not to be kept on any part of it, on any account; (iii) that the grounds  are to be kept clear and neat; (iv) that  the  land must  be restored to the government if  hereafter  required. The  Zoological  Garden Committee being reimbursed  for  any expenditure  they  may  have incurred  in  building  there." Therefore,  this is a case of resumption of Government  land under the terms of Agreement. [264E-H; 265A-B]     5.2  From the Preamble and the provisions of the  Bengal Public Parks Act, 1904, it is clear that the Act is intended to  protect  the inmates and the property of the  park  from injury by persons resorting 233 to  the park from molestations or annoyance by  others.  The Act  is aimed at protecting the part and its  visitors  from injury  and annoyance by despoilers and marauders.  The  Act has nothing whatever to do with the vesting of any  property in the parks. There is in fact no provision which deal  with the  vesting  of property in a park, Section 3  enables  the State Government to extend by a notification, the boundaries of  a park but that can only be for the purposes of the  Act and not for the purpose of vesting or creating any title  in a  property.  If a piece of adjacent land, for  example,  is taken  on lease for a specified number of years by the  park and included in the park by a notification under s.3 it does

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not  mean  that the various things, the doing  of  which  is regulated or prohibited by the Act and the rule will not  be done  or  will be regulated on the adjacent land  also.  The provisions of the Bengal Public Parks Act have no  relevance to  the question of the power of the government to  transfer the Begumbari land to the Taj Group of Hotels. [266C-F]     6.1  Statutes and statutory orders have no doubt  to  be obeyed.  It does not mean that other  orders,  instructions, etc. may be departed from in an individual case, if 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]      6.2  The  following propositions may be taken  as  well established on a considerations of the earlier decisions  of the  Supreme Court. State owned or public-owned property  is not to be dealt with at the absolute discretion of he 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]     6.3 Applying the above tests, it cannot be held that the government  of West Bengal did not act with probity  in  not inviting  tenders  or in not holding a  public  auction  but negotiating straight away at arm’s length with the Taj Group of  Hotels,  in its pursuit or socio-economic  objective  of encouraging  tourism and earning more foreign  exchange.  In the  present case no one has come forward alleging  that  he has been discriminated against and his fundamental right  to carry on business had been affected. The very nature of  the construction  and  establishment  of a Five  Star  Hotel  is indicative of a requirement of expertise and sound financial position  on the part of those who might offer to  construct and  establish  them. The decision taken  by  the  All-India Tourism Council was an open decision well-known to  everyone in  the hotel business. Yet no one except the  I.T.D.C.  and the Taj Group of Hotels had come forward with any  proposal. The Oberoi Group of Hotels already had a Five Star Hotel  in Calcutta while the Welcome Group of Hotels were making their own Private negotiations and arrangements for establishing a

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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 I.T.D.C. and the Taj Group  of  Hotels instead of inviting tenders. Negotiations with those who had come  forward with proposals to construct Five  Star  Hotels was  without doubt the most reasonable and rational  way  of proceeding  in  the matter rather than inviting  tenders  or holding public auction. There was nothing discriminatory  in the  procedure  adopted since no other leading  hotlier  had shown  any inclination to come forward. Tenders and  auction were  most impractical in the circumstances. The  choice  of the Taj Group of Hotels must therefore be held to be  beyond suspicion and above reproach. [273F; 268D-F]     Rash  Bihari Panda v. State of Orissa, [1969]  SCR  374; R.B. Shetry v. International Airport Authority, [1979] 3 SCR 10 14; Kasturi Lal Laxmi Reddy v. State of Jammu &  Kashmir, [1980]  3 SCR 1338; State of Haryana v. Jaga Ram,  [1983]  4 SCC 56; Ram and Shvam Co. v. State of Haryana, [1985] 3  SCC 267  and  Chenchu Rami Redav v. Go/vt.  of  Andhra  Pradesh, [1986] 3 SCC 391, discussed. 7.1 On a consideration of all the facts and circumstances of the 235 case, it is clear, that the government of West Bengal  acted perfectly  bonafide in granting the lease of Begumbari  land to  the Taj Group of Hotels for the construction of  a  Five Star  Hotel in Calcutta. The government of West  Bengal  did not  fail to take into account any  relevant  consideration. Its  action was not against the interest of  the  Zoological Garden or not in the best interests of the animal inmates of the  zoo  or migrant birds visiting the zoo.  The  financial interests  of the State were in no way sacrificed either  by not  inviting  tenders  or holding a public  auction  or  by adopting the ’’nett sales" method. [274C-E]     7.2  The "nett sales" method appears to be  fairly  well known  method adopted in similar situations. This  what  was recommended  by  WEBCON, the consulting agency of  the  West Bengal  Government which submitted a detailed report on  the subject.  This was also the recommendation of the  Committee of  Secretaries who went into the matter in death,  even  to lay  persons who are no financial experts, it  appears  that the  "nett sales" method does and the  rent-based-on-market- value  method  does not take into account  the  appreciating value  of land, the inflationary tendency of the prices  and the profit orientation. Even on a prima a facie view,  there appears  to be nothing wrong. or objectionable in the  "nett sales"  method. It is profit oriented and appears to  be  in the best interests of the Government of West Bengal.  [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

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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 30,000 plants were getting ready to adjourn the area to be occupied by them. [277H; 278A-C]     3.1  Regarding the commercial and financial  aspects  of the  lease  also,  there is nothing  secretive.  The  method adopted is the nett sales method of calculating the  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]     3.2 A deal like the one is given cannot be concluded  by public  auction as it is not a case of sale of a  government property.  Being not a sale but a lease of land by the  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]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  378  of 1987. 237     From  the Judgment and Order dated 4.8.1986 of the  Cal- cutta High Court in F.M.A.T. No. 1500 of 1984.     L.M.  Singhvi S.K. Jain, I. Makwana, A.M. Singhvi,  Sud- hanshu Atreya and S .D. Sharma for the Appellants.

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   N.N. Gooptu, Dipanker Gupta P. Mondal, D.K. Sinha,  J.R. Das, T. Ray. R. Pal, B.R. Agarwala and Ms. S. Manchanda  for the Respondent. The following Judgments of the Court were delivered:     CHINNAPPA  REDDY, J. We grant special leave and  proceed to dispose of the appeal.     A  hundred and thirty-two years ago, in 1854, ’the  wise Indian Chief of Seattle’ replied to the offer of ’the  great White  Chief in Washington’ to buy their land. The reply  is 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.

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                      "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.

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             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

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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 2,000 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  1,000 bird and animal species are facing  extinction  at present. So it is that the environmental question has became urgent and it has to be properly understood and squarely met by man. Nature and history, it has been said, are two 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 is.no exception. The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an 242 allotment of land for the construction of a Five Star  Hotel at  the  expense of the zoological garden that  it  warrants interference by this Court? Obviously, if the Government  is alive  to the various considerations requiring  thought  and deliberation  and has arrived at a conscious decision  after taking  them into account, it may not be for this  Court  to interfere  in the absence of mala fides. On the other  hand, if relevant considerations are not borne in mind and 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 Art.  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  Art.  51A(g) which proclaims it  to  be  the fundamental  duty of every citizen of India "to protect  and improve  the natural environment including  forests,  lakes, rivers  and  wild life, and to have  compassion  for  living creatures." When the Court is called upon to give effect  to the Directive Principle and the fundamental duty, the  Court is not to shrug its shoulders and say that priorities are  a matter of policy and so it is a matter for the policy-making authority.  The  least that the Court may do is  to  examine whether  appropriate  consideration are borne  in  mind  and irrelevancies excluded. In appropriate cases, the Court  may go further, but how much further must depend on the  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

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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  I.T.D.C. was  interested  in a property known as the  Hastings  House Property and that the Taj Group of Hotels who considered the Hastings House property unsuitable may be offered four acres out  of the eight acres of Begumbari land. On the  same  day the  Taj  Group of Hotels wrote to the  Government  of  West Bengal  stating  that the proposed land could  be  seriously considerd for construction of a Hotel. Thereafter the  Chief Minsiter along with the Minister of Tourism and the Minister for Metropolitan Development visited the site accompanied by the  Director of the Zoo who apparently knew about the  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 I.T.D.C.  and the Begumbari property may be offered  to  the Taj  Group  and that at a later stage a  suitable  Committee might  be  appointed  to negotiate with the  two  groups  of hotels.  The  Chief Minister approved the proposal  and  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 I.T.D.C.  Group and the Begumbari property to the Taj  Group of  Hotels.  In  regard to the Begumbari  property,  it  was stated: "From the property of the Zoological Gardens on  the Belvedere Road it is possible to carve out about four  acres

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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 I.T.D.C. 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 I.T.D.C. and to  the  Taj Group  and for the constitution of a suitable  Committee  to undertake negotiations with the two groups.     On  February 12, 1981, the Cabinet took a  decision  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.

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   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 21/2  acres  of land only might be made  available  for  the hotel.  He expressed the apprehension that if four acres  of land were to be given for construction of a hotel, then  the entire  hospital  and the dumping ground would  have  to  be removed  and the southern boundary of the hotel  would  come very close to the residential block.     On  March 19, the Taj Group submitted a proposal to  the Government containing fairly detailed information about  the tourism  industry and its needs, the situation in  Calcutta, the  realities of hotel construction, the facts relating  to what had been done in other cities, the benefits flowing out of  the construction of hotels and their own  proposals  for constructing a hotel in the four acres of land in  Belyedere Road. Two alternative financial arrangements were suggested. The first alternative was the payment of annual rent on  the basis  of the valuation of the land, the second  alternative was  based  on the concept of nett sales, nett  sales  being defined  as sales after deducting all taxes and  levies  and service  charges.  The Metropolitan  Development  Department expressed  a preference for the second alternative and  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

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             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, M.L.A., Shri               K.P.  Banerjee  and Shri  A.K.  Das  abstained               from-participation in the proceedings." The  Minister for Metropolitan Development submitted a  note to  the  Chief Minister on the resolution  of  the  Managing Committee of the Zoo. He pointed out that even if four acres out  of the eight acres of Begumbari land was given  to  the Taj  Group,  there would still remain  sufficient  land  for accommodation of the facilities. He added that the  Managing Committee’s resolution was not binding on the Government and suggested  that  the Director of the Zoo might be  asked  to allow  the Taj Group to undertake soil testing etc. so  that work  may proceed according to the time-schedule. The  Chief Minister endorsed the following. "I  agree. It is unfortunate that we have not been  able  to accept the contentions of the Managing Committee. If further facilities  are necessary for the Zoo, the  Government  will provide them." In  June  25, 1981, the Managing Committee of  the  Zoo  met again  and passed another Resolution by which they  withdrew their earlier objections. The Resolution stated.               "In view of the letter issued to the  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 11.6.81.                         This  was passed by the majority  of               the  members  present, the  President  Justice               Shri R.K. Banerjee dissenting."     On  June 29, 1981, the Director 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,

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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,               i.e.  (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 p.m. 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.

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   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 i.e. 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-

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             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 Art.  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

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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 J.R.D.  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-

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             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.  L.M.  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

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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 I.T.D.C. and the Taj  Group

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of  Hotels in regard to leasing the Hastings House  property and  the Begumbari land. Negotiations with the I.T.D.C.  did not fructify while negotiations with the Taj Group of Hotels fruitioned.  It was on September 10, 1981 that  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 I.T.D.C.  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

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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 21/2 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

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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

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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-

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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 J.R.D.  Tata,  on behalf  of the Taj Group of Hotels, also wrote to the  Prime Minister  assuring  her that the hotel management  had  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 J.R.D. Tata in his  letter to the Prime Minister that birds flying in or flying out had to  fly  at a very steep angle while  negotiating  the  tall trees  between  the lake and Belvedere Road, an  angle  much

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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. J.R.D. 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. v. S.D. Agarwal, [1969] SCR 108; Barium Chemicals v. A.G. Rana, [1972] 2 SCR 752 and Mohinder Singh Gill v. Central Election Commission, [1978] 2

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SCR 273 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

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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. 3rd. That the grounds are to be kept clear and neat.       4th. That the land must be restored to the  Government if hereafter required. The Zoological Garden 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

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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. 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 v. State of Orissa, [1969]  3  SCR 374; R.D. Shetty v. International Airport Authority,  [1979] 3  SCR  1014; Kasturi Lal Laxmi Reddy v. State  of  Jammu  & Kashmir,  [1980] 3 SCR 1338; State of Haryana v.  Jage  Ram, [1983] 4 SCC 56; Ram & Shyam Co. v. State of Haryana, [1985] 3  SCC  26 and Chenchu Rami Reddy v.  Government  of  Andhra Pradesh, [1986] 3 SCC 391.     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;

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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 v. State of  Orissa  (supra)  the Government  offered the option to purchase kendu  leaves  to certain old contractors on the same terms as in the previous year.  Realising that the scheme of offering to  renew  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  I.T.D.C.  and the Taj Group of Hotels had come forward with any  proposal. We  have  it in the record that the Oberoi Group  of  Hotels already had a Five Star Hotel in Calcutta while the  Welcome Group  of Hotels were making their own Private  negotiations and 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

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perfectly  justified in entering into negotiations with  the I.T.D.C.  and  the Taj Group of Hotels instead  of  inviting tenders.     In  R.D.  Shetty  v.  International  Airport   Authority (supra). Bhagwatti, J. speaking for the Court observed  that the activities of 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 v. State of Jammu and  Kash- mir  (supra),  Bhagwati, J. again, speaking  for  the  Court reiterated what had said earlier in R.D. Shetty v.  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

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             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

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             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 v. 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 v. 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-

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             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 v.  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

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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

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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 interest:litigation takes its birth, perhaps from  the righteous indignation of the petitioners,  against the  State Government at their bartering away of four  acres of land belonging to the Zoo to the Taj Group of Hotels. The writ  petition is mainly based on the ground that the  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

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             files  produced before me mainly by the  State               and  also  some documents by the  private  re-               spondent  being  respondent No. 5.1  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

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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 Rs.30 lakhs which amount  they  were entitled  to  be reimbursed under clause 25  of  the  lease, which  they voluntarily gave up. In addition to  this,  they surrendered an area of 288 sq. mtrs. from the land  allotted to  them  to  the Zoo. They agreed to build  not  the  usual skyscrapper  hotel, but a garden hotel, the height of  which would  not  go beyond 75 feet, despite the fact  that  there existed  in the surrounding area buildings which  were  very high. This was done to keep free the route of the flight  of the  birds. They also agreed to have subdued light  in’  the hotel,  again in the interest of the birds. They  agreed  to keep the surroundings of the hotel and the flora well  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

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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?" S.R.                                            Appeal  dis- missed. 281