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In the High Court at Calcutta
Constitutional Writ Jurisdiction
Original Side
Present:
The Hon'ble Justice Surinder Singh Nijjar, Chief Justice
And
The Hon'ble Justice Biswanath Somadder
W.P. No. 1614 of 2008
Forum for Human, Legal and Ecological
Rights, Bansdroni & Anr.
Versus
State of West Bengal & Ors.
For the Petitioners : Mr. S. P. Mukherjee,
Mr. Debojyoti Basu,
Mr. Partha Ganguly
Mrs. Promita Chakraborty
For the Respondent No. 3 : Mr. Jayanta Mitra, Sr. Adv.
(K.MC.) For respondent no. 8 : Mr. Kallol Basu (P.C.B.) For respondent no. 9 : Mr. Anindya Mitra, Sr. Adv.
Mr. Abhrajit Mitra,
Mr. Sarbapriya Mukherjee,
Mr. Debanjan Mondal
Heard on : 24.4.09, 12.6.09, 24.7.09 & 29.07.09
Judgment on : 07/09/2009
SURINDER SINGH NIJJAR, C.J. : This petition has been filed by the forum for Human, Legal and Ecological Rights, Bansdroni through its General Secretary, in public interest, seeking to protect the first heritage plaza of Kolkata known as "Swabhumi".
Before we consider the entire issue, we deem it appropriate to reproduce the observations of O. Chinnappa Reddy, J. in the case of Shri Sachidanand Pandey vs. State of West Bengal [AIR 1987 Supreme Court 1109]. In the aforesaid judgment, the Supreme Court emphasizes the importance of environment as understood by the native Indians of North America. A reply sent by an Indian Chief to the President of the United States of America was reproduced by the Supreme Court verbatim. In our opinion, the facts in the present case warrant that the reply of the Indian Chief be made a preface to this judgment. It reads as follows: -
"( 2 ) 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 understanding statement on environment. It is worth quoting. To abridge it or to quote extracts from it is to destroy its beauty. Yon 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 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 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 rocky crests, the juices in the meadows, the body heat of the pony, and man - all belong to the same family.
So, when the Great Chief in Washington sends word and he wishes to buy our land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves. He will be our father and we will be his children. So we will consider your offer to buy our land. . But it will not be easy. For this land is sacred to us.
This shining water moves in the streams and rivers is not just water but the blood of our ancestors. If we sell you land, you must remember that it is sacred and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of events and memories in the life of my people. The water's murmur is the voice of my father's father.
The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and feed our children. If we sell you our land, you must remember, and teach your children, that the rivers are our brothers, and yours and you must henceforth give the kindness you would give any brother.
We know that the white man does not understand our ways. One portion of land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother but his enemy, and when he has conquered it, he moves on. He leaves his father's graves behind, and he does not care.
He kidnaps the earth from his children. His father's grave and his children's birthright 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.
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 quiet place in the white man's cities. No place to hear the unfurling of leaves in spring, or the rustle of an insect's wings. But perhaps it is because I am a savage and do not understand. The clatter only seems to insult the ears. And what is there in 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 smell of the wind itself, cleansed by a midday 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 lying for many days, he is numb to the strench. 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 meadow's 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. For whatever happens to the beasts soon happens 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 is our 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 connected.
Whatever befalls the earth befalls the sons of the earth. Man did not weave the 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 discover- our God is the same God. You may think now that you own Him as you wish to own our land ; but you cannot. He is the God of man, and His compassion is equal for the red man and the white. This earth is precious to Him, and to harm the earth is to heap contempt on its Creator. 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 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 men and the view of the ripe hills blotted by talking wires. Where is the thicket? Gone. Where is the eagle ? Gone. The end of living and the beginning of survival." ( 4 ) 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 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 irrelevant considerations influence the decision, the court may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the court, the court is bound to bear in mind Article 48-A of the Constitution, the Directive Principle which enjoins that "the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country," and Article 5l-A (g) which proclaims it to be the fundamental duty of every citizen of India "to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures". When the court is called upon to give effect to the 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 considerations are borne in mind and irrelevancies excluded. In appropriate cases, the court may go further, but how much further must depend on the circumstances of the case. The court may always give necessary directions. However the court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the court may feel justified in resigning itself to acceptance of the decision of the concerned authority. We may now proceed to examine the facts of the present case."
Keeping in view the aforesaid observations, we have examined the entire issue raised in this writ petition on merits.
In the writ petition, it is stated that "Swabhumi" is situated near the Eastern Metropolitan Bypass opposite Salt Lake City. It is situated on top of a hillock known as Kadapara Hillock ('Hillock' for short). It is spread over 13 acres of land. In the year 1994, Calcutta Municipal Corporation, now Kolkata Municipal Corporation (hereinafter referred to as KMC) earmarked this area for beautification and development. The concept was to develop a heritage centre which would showcase art, agriculture, heritage and culture consisting of various regions of the country. It has come to be known as a very prominent and important part of the city. Now the entire concept is liable to undergo change only for the purpose of commercialization. The petitioner states that KMC in its meeting (Agenda No. 39 at Item No. 13 of the Municipal Corporation Meeting), held on 25th February, 1994, took up the issue of beautification and development of the 'Hillock'. It was noted that in a meeting held in the chamber of CM, West Bengal on 5.5.1992, it was decided that land-body (owned by KMC) and water body owned by [Calcutta Improvement Trust (C.I.T.)] should be developed for providing environment compatible recreational and cultural facility. Such a project should be self-financing in its operation and upkeep. Tourism Department was to be the nodal agency for pioneering the project. It was also decided that steps should be taken towards formation of a joint sector company in which 26% equity participation required from the State Government agencies should be in the form of land- body and water-body. KMC had indicated that it had some idea for developing the recreation facility. It was suggested that the scheme showing evolution of mankind may be represented by models. It was provided that "The emphasis should be more on educational/recreational aspects. There may be a proposal to introduce a rope-way service between the hillock, Lake Island connecting bank etc." KMC proposed to re-develop the area in the manner to be decided subsequently. It appears that Shri G.P. Goenka had proposed to put up a super-speciality hospital in the area. In the interest of the hospital they were prepared to associate themselves in the 'Hillock' project. Thereafter, Shri Goenka along with his partner H.V. Neotia had proposed to State Government to undertake beautification of the 'Hillock' and develop the same into Heritage Conservation Park with tourism facility. The suggestion was accepted by the Government of West Bengal. The following directions/guidelines were to be followed by the CMC :-
"(1) The concept for development of the Kadapara and its adjoining areas has been accepted and we should go ahead with the same.
(2) As the development of the area is relevant to the Duncan Apollo Hospital, it is proposed to formalize the arrangements through a joint sector project in which Sri G. P. Goenka and Sri Harsh Neotia will be participating.
(3) A detailed project report will be forwarded by the proposed joint sector partners to the Government and the C.M.C.
(4)An area of 13 acres of land approximately will be given on lease to the proposed joint sector company. The Calcutta Corporation will participate in the joint sector company on the following terms and conditions subject to approval of the C.M.C. :-
(a) The financial terms and lease that has been suggested by the joint sector partners will be in terms of details given above.
(b) The joint sector partner will advance an appropriate sum to the Calcutta Municipal Corporation to enable the latter to purchase shares of the joint sector company to the extent of 25%. This amount will be adjusted by the lease rent payable to the C.M.C.
(c) The C.M.C. will, in addition, receive dividends on their equity as and when it is declared.
(d) An appropriate lease agreement will have to be worked out between the parties which inter alia should provide for compliance with the concept, providing for resumption of land and/or penalty in the event of non-compliance with the terms and conditions of the agreement etc., and a provision for option at the end of the lease period of 33 years."
These directions of the State Government were ratified by the Mayor-in-Council (MIC in short) in its meeting held on 24th of December, 1993 and 7th of January, 1994. In this meeting the financial terms of the lease suggested by the joint sector partner were also accepted. The relevant part of the final decision of the MIC was as follows :-
"(i) The joint sector partners have informed that the project cost at the first phase will be around Rs. 4 crore. On a debt equity of 1:1, the total paid up equity share capital will be Rs. 2 crore and the balance Rs. 2 crore will be funded by loan by bank/financial institutions. Out of the total share capital of Rs. 2 crore, CMC will be entitled to hold an equity of 25% i.e. for Rs. 50 lakhs and the said amount will be given by the joint sector company as interest-free advance against such payment, which will be adjusted against subsequent instalment payments.
(ii) It is made clear that the project will be a commercial one.
(iii) A representative of C.M.C. in the Board of Directors/ Governing Body/ Management Committee shall be there. Another State Govt. representative to be nominated by Chief Secretary shall also be there in the Board of Directors/ Governing Body/ Management Committee in order to ensure that the purpose of the constitution of the joint sector company is being followed."
Pursuant to the aforesaid resolution of MIC and Memorandum of Understand (MOU, in short) an agreement was entered into between CMC and M/s. Ganpati Greenfields Ltd., for development and beautification of 'Hillock'. In this also it is mentioned that the 'Hillock' will be developed into a Heritage Conservation Park with tourism facility providing for environment compatible recreation and cultural facility and to maintain ecology. The petitioner emphasizes that the land was transferred to the joint sector company at a very economical rate. Furthermore, even the stamp duty and the registration charges levyable for executing the formal lease deed were waived. The lease deed however emphasizes that there should be no deviation from the objective of granting the lease which was to develop the 'Hillock' as a Heritage centre. The petitioner makes a reference to different clauses which will ensure that there could be no deviation. The intention was to develop the project as defined in the 3rd Schedule of the lease which was as under :-
"On the Kadapara Hillock situated at the crossing of Eastern Metropolitan Bye Pass and Narkeldanga Main Road, Calcutta it is proposed to build a Heritage Conservation Park and Tourism facility.
To define the project further, the Heritage conservation park is to identify and preserve various aspects of the rich heritage of our country with special emphasis on Bengal because the project is situated in Calcutta. The aspects to be covered would include art and crafts, music, folk forms of dance and arts, cuisine, life style, handicrafts, literature, cinema and varied expositions that bring out the unique oneness in our country against the background of diversity in lifestyle and customs in the different regions.
The Tourism facility will include items to enable tourists visiting Calcutta and Bengal to stay, to get a glimpse of this cultural heritage as well as to savour an extremely pleasant entertainment in the form of drama, dance, music, ethnic food and shopping for various types of locally made and other products. Such facilities will also include, especially for the foreign tourists, air-conditioned/ non-air conditioned snack bar, eating places, restaurants, bars, rest houses, recreational facilities etc. The park will offer facilities for educative entertainment for children there will be areas earmarked for use in connection with family and social celebrations like weddings, birthday parties etc. We have plans to celebrate different holidays, festivals etc. herein this Park in the form of cultural functions with country-wide participation to impart a flavour of national integration as well as to promote talents from far and near."
From a perusal of the initial proposal dated 30th May, 1994 it becomes evident that the joint sector partners have been permitted to develop the 'Hillock' into a 'Heritage Conservation Park' to provide environment compatible recreational and cultural facilities to the public and the visiting tourists leaving 50% (fifty percent) of the total area on the said land open to sky but at least 40% (forty percent) of the total area is to be kept green. The petitioners apprehend that KMC, under the influence of respondent no. 9, i.e., M/s. Ganapati Parks Ltd., is in the process of converting a vital segment of the "Swabhumi" into a luxury hotel of international standards.
It is stated that elaborate plans have been made to utilize 5 acres of land behind "Swabhumi" that still remain under-developed. It has been earmarked for development of an Academic School with conference room, a state-of-the-art Exhibition Hall of international standard and an auditorium with 300 sitting capacity. This 'Hillock' was intended to be developed in a fashion similar to the, India International Centre and Habitat Centre in Delhi, instead, the Heritage Park is in danger of being converted to a business centre. This is evident from the construction of Meena Bazar, which can never be the idea of keeping up "Swabhumi". In paragraph 14 of the writ petition it is stated as follows :-
"14. Your petitioners would otherwise also submit that even if certain changes do come up in "Swabhumi" and there is a facelift, it would actually be a redevelopment and renewal of the Heritage Park. It is stated that the Kolkata Municipal Corporation is thinking of the same. However, the situation as it is reported and such intimation seems to be otherwise in the fitness of things and for all intents and purposes correct state of affairs that there is going to be a construction, from where this Heritage Park will be lost forever. So far as information goes, it is verily believed to be true that a Hotel, which may be of more than 20 storied is expected to come up in place of Swabhumi. Your petitioners are not against growing up of good hotels in this particular city which lacks such facilities, but that does not mean that a place earmarked to be a Heritage Park would be lost forever. If for any reason such Hotel do come up, same would not only "eat up" Swabhumi but would also change the environment in so far as the entire area is concerned. Your petitioners are informed that a Shopping Mall has been otherwise constructed nearby the said place which in itself is creating a situation and in the days to come it would definitely create an environmental problem."
The petitioners further submitted that the City of Kolkata is already facing tremendous environmental problems. It is difficult to find a place within KMC, including the added areas, which would be free of pollution. Greenery of the city has been particularly lost sight off within last few years. The high degree of pollution is taking its harmful toll insofar as the people of this city are concerned. Very few people would be found in the city, who are not suffering from difficulty in respiration or difficulty in their eyes. According to the petitioners, pollution in Kolkata has become a menace. Without caring for the environmental problems KMC is permitting the building of hotels indiscriminately. It is also stated that building of hotel in the "Swabhumi" may be of benefit to some individuals, but heritage of the city would be destroyed for ever.
The petitioners elaborate their grievances in the grounds of the petition which we can briefly sum up. It is stated that the building of the hotel is likely to eat into the ratio of greenery which has been reserved under the lease deed. It is likely to increase air, water and sound pollution. The sanction for building a hotel is sought for financial benefits at a place earmarked for 'Heritage Plaza'. Heritage-wise, Kolkata has always been defined as an "A-1" city by the Government of India. It should be treated as such by the KMC. The city is comparable to the ancient cities of Europe, Australia or America. KMC is duty-bound to ensure that all development takes place in accordance with the obligations under the lease deed. In view of the aforesaid, the petitioners have prayed for a writ in the nature of mandamus against the respondents directing them not to cause any act which would be detrimental to the development of the area vis-à-vis the City of Kolkata in its true and proper perspective. Further, directions be issued to KMC to ensure that "Swabhumi" retains its character as defined in the lease deed. The respondents be restrained from changing the nature and character of "Heritage Plaze" viz., "Swabhumi".
KMC has taken two preliminary objections. Firstly, it is submitted that the petitioners have no locus standi to move the instant writ petition as Public Interest Litigation. The petitioners are mere busybodies who have no genuine grievance for redressal. Secondly, it is submitted that the writ petition is premature. The petitioners have rushed to Court at a stage when the entire project is at a formative stage. Before any sanction can be given for any construction in any part of Kolkata, it is necessary for the KMC and other competent authorities such as the West Bengal Pollution Control Board, the Police Department and the West Bengal Fire Services to scrutinize and approve the proposal. Very elaborate and specialized procedures are prescribed in different legislations which the statutory authorities are bound to follow. So far as the KMC is concerned, the matter would be placed before the Mayor-in-Council (MIC for short) for final approval. In the event, the MIC is of a view that the sanction of a proposal can be granted, the entire matter will have to be placed before the Members of the KMC House for their consideration, opinions and views. The petition is, therefore, merely based on apprehension and deserves to be dismissed at this stage.
On merits, it is submitted by the KMC that the proposal has been made by respondent no. 9 for construction of a multi-storied institutional building on the land abutting on the "Swabhumi" complex having the frontage of 76.2 meters on Eastern Metropolitan Bypass. The Municipal Building Committee considered, in-depth and in detail, the feasibility of such proposal. The Plan that has been submitted to the Municipal Building Committee for construction of such building consists of two basements plus ground floor and a 17-storied building. The proposed building will be so situated as not to encroach upon the Heritage Park or in any way infringe the cultural complex located at "Swabhumi". The proposed building, if permitted, would be located on the area in the north-eastern corner of the "Swabhumi" Complex, overlooking the existing Heritage Park. The Municipal Building Committee, upon consideration, was of the opinion that in view of the open space all around, the proposed building, when constructed would not affect the skyline or the aesthetic quality of urban and environmental designs. It would also not adversely affect any public community including the Heritage Park. It is further stated by the KMC that the proposed building, if at all constructed, will house a school for Architectural studies and a Guest House meant for visiting professors and outstation students. There is also a plan for development of the existing part, by constructing one more storey over the existing two storied building. There would be a multi-level car parking block, which would solve the parking problem in or around the area and prevent haphazard and indisciplined parking at the place. Therefore, intention of the KMC is to enhance the beauty of the place as also to make the complex of commercial value so that the income generated from the proposed building can be utilized for sustenance of the complex. The KMC has, thereafter, explained that there has been a tremendous decline in the number of visitors to the Heritage Park. This was due to opening of shopping malls in the adjoining localities. Therefore, it was necessary to increase the visitor interest by improving the facilities in the Park for the benefit of the general public. This could only be done by increasing the commercial viability of the project. At the same time, there would be establishment of an academic school, conference room, state of the art exhibition hall of international standards, auditorium with 300 sitting capacity. Without any evidence to the contrary, the writ petitioners have assumed that the aforesaid facilities will not be completed. In the end it is submitted that the writ petition has been filed for oblique motives clearly to hamper the construction of re-development and refurbishment of the Heritage Park. The submissions of the petitioners that the Heritage Park is to be changed into a mere hotel, is a distortion of facts. The opinion expressed by the petitioners with regard to the non-fulfillment or non-performance of the covenants in the lease is stated to be without any basis. According to the KMC, the writ petition deserves to be dismissed with costs.
The West Bengal Pollution Control Board has submitted a report in the form of an affidavit. It is stated that on 18th January, 1999, respondent no. 9 obtained consent to establish (NOC) from environmental point of view for construction of Heritage Park (Traditional Craft, Modern Handicraft Products and Heritage Food) known as "Swabhumi". This Heritage Park is an old Municipal waste dumping ground. It has been identified for developing a green field of this particular area. Since the area has been developed on municipal garbage, it was directed that all care should be taken for construction of permanent structures. NOC has been granted to respondent no. 9 on different occasions for establishment of various activities. On 22nd March, 2001, NOC was issued for establishment of four restaurants in this "Swabhumi" complex. For the present proposed expansion, necessary application has been submitted for NOC but the same is still under the consideration of the West Bengal Pollution Control Board. Respondent no. 9 has also taken a preliminary objection to the maintainability of the writ petition on the ground that it has been filed mala fide, with an oblique motive. The locus standi of the petitioner has also been challenged. It is stated that the petitioners have not disclosed their credentials and best achievements as a non-governmental organization. It appears that the petitioners are filing the petition at the instance of third party and/or with the object of advancement of private cause. On merits, this respondent has denied that "Swabhumi" is a Heritage Park. In fact, it was a bare plot of land taken on long-term lease by respondent no. 9. It has been developed in terms of the object of the lease deed. It is only referred to as the Heritage Park as heritage of different parts of the country are being displayed in the form of art, architecture, food, handicrafts etc. The object of the facilities is also to promote tourism and to make provision for recreational facilities. This respondent accepts it as a fact that the advent of mall culture is affecting the "Swabhumi" complex. Such decrease in number of visitors was not within contemplation of respondent no. 9 at the time of setting up of "Swabhumi" complex. It was, therefore, expedient to infuse new ideas and ways of attracting more visitors at "Swabhumi". It is emphatically submitted that this is the main reason behind the present development proposal. The area was never designated as a heritage site at any point of time. In any event, existence of hotels is not an unknown phenomenon in tourist facilities in other countries. The proposed development would be on the undeveloped part of the leasehold land. The proposal is to build one low height structure namely, 'Taxashilla' Complex with an adjoining tall building (17-storied) for a Guest House of international standard comprising of rooms and back up service section, club, gymnasium, restaurant, library etc. The low height structure would comprise of a State Emporium, Art College, music archive, exhibition hall and a auditorium with a sitting capacity of 300 persons and a multi-purpose hall for different functions to be held from time to time. A separate complex was to be set up for school of architecture along with school for public policy and for setting up a journalism foundation. The entire project has been modeled after the India International Centre at New Delhi.
The necessary building plan of the institutional complex has been submitted to the statutory authorities, which is under consideration. Contrary to what is stated by the petitioners, the extension of the "Swabhumi" complex, as proposed by respondent no. 1, if implemented, will be of substantial benefit to the society. Hopefully, it would be a positive contribution to art and culture. The complex would also provide the first exclusive school of architecture in the State of West Bengal, like the School of Planning and Architecture in Delhi, Sir J. J. College of Architecture in Mumbai and Center for Environmental Planning & Engineering in Ahmedabad. In fact, even after the proposed construction, there would be unutilized and excess FAR as against the maximum possible FAR in respect of the complex. This would not have been so had commercial motive being the guiding factor. It is denied that the proposed construction is a hotel, as proposed to be constructed at "Swabhumi".
Without prejudice to the aforesaid submission, it is stated by respondent no. 9 that the petitioners cannot have any objection to setting up of a hotel at "Swabhumi". It would not change the environmental atmosphere of the entire area. The said respondent emphatically denied that "Swabhumi" is being changed from Heritage Park into a hotel as alleged or at all. Even after the proposed construction is completed, there would be 67% open space which is more than the mandatory requirement. With regard to the control of pollution, it is stated that the latest pollution control devices will be installed at the "Swabhumi" complex as per specifications of the West Bengal Pollution Control Board. There will be the latest sewerage treatment and water treatment plan. Adequate number of plantation of trees will be undertaken in order to ensure that there is improvement of the environment. It is denied that the land has been given to the respondent no. 9 for a meager amount as alleged by the petitioner. Apart from Rs. 51 lacs advanced, the said respondent is paying a further sum in terms of lease deed as well as municipal rates and taxes, which is in the range of Rs. 70 to 80 lacs per annum. The 'Hillock' is not a natural hill. It has been created by accumulation of various types of municipal waste which was dumped at the site till the late 1960s. To improve the soil, it would be necessary to remove the top layer of the municipal waste and replace the same with good earth which would be beneficial to the environment. Over 700 trees will be planted in the area. This respondent also states that the writ petition ought to be dismissed with costs.
We have heard the learned counsel for the parties.
Mr. S.P. Mukherjee, learned counsel for the petitioners, submitted that a concerted effort has been made by all the respondents to convert a beautiful open space into a commercial centre. This is being done at the instance of the management of respondent no. 9. Mr. Harsh Neotia who is in control of respondent no. 9 is an extremely influential business personality of Kolkata. Therefore, in the guise of beautification and development of the 'Hillock', an extremely profitable commercial venture is sought to be established.
According to the learned counsel, the Municipal Authority is encouraging private profiteering at the expense of the public. Clause 6 forbids change of user of the demise land without the previous permission in writing of the lessor. Therefore, the entire exercise is illegal. Learned counsel further submitted that there is substantial income being generated by the Heritage Park. He makes a reference to the gate ticket sales details which shows tickets sold upto 31.3.2007 in the amount of Rs. 36,32,130/-. Total turnover is Rs. 62038683/-. By taking the amount of ticket sales, the learned counsel has calculated net turnover as Rs. 58406553/-. The learned counsel further emphasises that the total lease rental payable for 2006-2007 was Rs. 2,000,000/-. On the basis of the above, it is stated that under no circumstances, can the Municipal Authority argue that the facelift of the Heritage Park is required to compensate for the competition of the shopping malls in the vicinity. Learned counsel further pointed out that neither KMC nor respondent no. 9 has taken a consistent stand. Their plea seems to vary from time to time. Learned counsel has made the reference to the plea filed by different parties. It is also submitted that respondent no. 9 is wrongly claiming 67% area is to be left for greenery. In fact, the build up area would be 52%. In support of the submission, the learned counsel has relied on a complaint made by the Range Officer, Kolkata South Range, Forest Utilisation Division. The learned counsel laid considerable emphasis on the importance of pollution free environment being the necessity of life. According to the learned counsel, the respondents are acting in violation of the law settled by the Supreme Court in a number of judgments. Learned counsel relied on three judgments of the Supreme Court viz. (i) Chhetriya Pardushan Mukti Sangharsh Samity vs. State of U.P. [AIR 1990 Supreme Court 2060], (ii) A.P. Pollution Control Board vs. Prof. M.V.Nayudu (Retd.) [(1999) 2 SCC 718] and (iii) A.P. Pollution Control Board II vs. Prof. M.V.Nayudu (Retd.) [(2001) 2 SCC 62].
Mr. Jayanta Kumar Mitra, learned senior counsel appearing for the KMC submits that the lease deed itself depicts the Hillock Project as "environment compatible heritage conservation park with tourism facilities". The third Schedule of the lease clearly shows that many establishments, commercial as well as non-commercial, constitute the entire Project. Undoubtedly, the main purpose is for development of the demised land and beautification. The term, "heritage conservation park", is justified as the name for the recreation facilities. This is obvious from the fact that it was build upon the land earlier covered by garbage dump. Learned counsel further emphasizes that the Heritage part of the Project has already been developed as a village. However, tourist facilities have not been developed. Apart from the example given in the affidavit-in-opposition of the India International Centre and the Habitat Centre in Delhi, the Project was meant to be something like the Ramakrishna Mission Institute of Culture in Kolkata. The lease deed, according to the learned counsel, sets out the details of the tourism facilities in the third Schedule. It also includes many facilities such as cinemas, places for short stay of the tourists. Particular reference has been made to foreign tourists. Therefore, by no stretch of imagination, can it be said that there is any deviation from the lease. Learned counsel further submits that in order to ensure strict compliance of the Government's policy, KMC is the 26% shareholder of the promoter company. Therefore, there is full control over the activities of the promoters. In all the meetings that have been held so far, special care has been taken to ensure compliance of the lease. The Joint Sector Enterprise will be necessary as the parties were not to lease out the land to a commercial enterprise. The Joint Sector Enterprise was created specially to ensure development of the area. The learned counsel further submits that out of the total build-up area of 60,000 sq. ft., 10,000 sq. ft. would be utilized for a Guest House. An institutional building will be constructed. Merely because a 17-storied building is being constructed, should not be a cause for alarm to anybody. Making tall buildings is the development trend now-a-days. By building upwards, more greenery can be preserved. Learned counsel further submits that there is no contradiction in the affidavit. Making reference to the affidavit-in-opposition filed by the respondent, KMC, it is submitted that the writ petition is clearly premature. No final decisions have been taken with regard to the sanction of the plans submitted by respondent no. 9. Last, but not the least, the learned counsel challenges the locus standi of the writ petitioners to file the writ petition and submits that the writ petition does not give any indication with regard to the identity of the petitioner no. 1, the NGO. Petitioner no. 2 claims to be the Joint Secretary of the NGO. The Registration Certificate does not indicate the purposes for which the NGO has been registered. According to the learned counsel, the writ petition deserves to be dismissed in limine. However, the respondents have given full explanation to avoid any further unnecessary litigation.
Mr. Anindya Mitra, learned counsel appearing for the private respondent no. 9 submits, at the outset, that this is not a genuine Public Interest Litigation. Credentials of the petitioner no. 1 are totally missing. Registration Certificate does not relate to petitioner no. 1. On merits, the learned counsel submits that the KMC is the owner of the land. It has the power to lease the land. The lease deed has been duly executed. It has not been challenged. Grounds taken in the writ petition are that the KMC might sanction the building plan in violation of the lease. It is submitted that even if there are violations, it will not be a Public Interest Litigation, unless it violates public interest. Main objection raised in the writ petition is with regard to the height of the 17-storied building. According to the learned counsel, such height does not violate any Building Rules. Learned counsel makes reference to Kolkata Municipal Corporation Building Rules, 1990 (Rule no. 64). The building would be abutting a 15-feet by-road. There would be no restrictions on such a road. The term "Heritage Park" is just a description for the Project. Such a Project would not be included in the definition of "heritage" as contained in Section 2(42-A) of the Kolkata Municipal Corporation Act, 1980. A 'heritage building' is defined as a building which requires protection for historical or architectural reasons. Similarly, in the Town and Country Planning Act, 1979, Section 3 sub-section 4 again talks of preservation of a heritage building for historical and architectural views. Learned counsel further submits that the writ petitioners have made a bald assertion that there will be adverse environment impact. The writ petition is wholly silent over the details of any adverse impact on the environment. According to the learned counsel, the writ petition is an abuse of the Public Interest Litigation principles. According to the learned counsel, such petitions should not be encouraged. In support of the submission, learned counsel relies on two judgments viz. Shri Sachidanand Pandey (supra) and Dr. B. Singh vs. Union of India [(2004) 3 SCC 363].
We have considered the submissions made by the learned counsel for the parties. The parameters within which Public Interest Litigation can be entertained by the Supreme Court and the High Court, have been laid down and reiterated by the Supreme Court in a series of cases. By now it ought to be plain and obvious that the Supreme Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals i.e. busybodies; having little or no interest in the proceedings. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at the threshold. We may now examine a few of the cases cited by the learned counsel for the parties.
In the case of Chhetriya Pardushan Mukti Sangharsh Samity (supra), the Supreme Court observed that a Public Interest Litigation would be maintainable for protection of the environment. It is, however, observed that the Public Interest Litigation can only be espoused by a person who is genuinely interested in the protection of the society on behalf of the society or community. It is observed as follows:-
"(8) Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens. Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Art. 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Art. 32 of the Constitution. But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community. This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution. Where it appears that this is only a cloak to "feed fact ancient grudge" and enmity, this should not only be refused but strongly discouraged. While it is the duty of this Court to enforce fundamental rights, It is also the duty of this Court to ensure that this weapon under Art. 32 should not be misused or permitted to be misused creating a bottle neck in the superior court preventing other genuine violation of fundamental rights being considered by the Court. That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights."
These observations made by the Supreme Court in relation to Article 32 of the Constitution of India, in our opinion, would also be applicable to exercise of extraordinary jurisdiction by the High Court under Article 226 of the Constitution of India. In the aforesaid case, the Supreme Court discovered that the writ petition had been filed due to the ugly rivalry between the contestants. It was found that there was no violation of any fundamental right. The petitioners were rebuked with the following observations:-
"(9) Having regard to the ugly rivalry here, we have no doubt that between the contestants, the Court was misled and we must, therefore, proceed with caution. There was no fundamental right violation or could be violative if the allegations of the so- called, champions on behalf of the society are scrutinised. We must protect the society from the so-called 'protectors'. This application is legally devoid of any merit or principles of public interest and public protection. This application certainly creates bottlenecks in courts, which is an abuse of process of this Court. We have, therefore, no hesitation in dismissing this application with the observations made herein."
In the case of A.P. Pollution Control Board (supra), Supreme Court reiterated the new concept of burden of proof and the precautionary principle which was referred to in the case of Vellore Citizens' Welfare Forum v. Union of India [(1996) 5 SCC 647]. It was observed as follows :-
"31. The "uncertainty" of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum v. Union of India2 a three-Judge Bench of this Court referred to these changes, to the "precautionary principle" and the new concept of "burden of proof" in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various international conferences and to the concept of "sustainable development", stated that the precautionary principle, the polluter-pays principle and the special concept of onus of proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in the Vellore case in this behalf read as follows: (SCC p. 660, para 14) "14. In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter-pays principle are part of the environmental law of the country."(emphasis supplied) The Court observed that even otherwise, the abovesaid principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law. In fact, on the facts of the case before this Court, it was directed that the authority to be appointed under Section 3(3) of the Environment (Protection) Act, 1986 "shall implement the 'precautionary principle' and the 'polluter-pays principle' ". The learned Judges also observed that the new concept which places the burden of proof on the developer or industrialist who is proposing to alter the status quo, has also become part of our environmental law.
32. The Vellore judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them." Thereafter, the development of the precautionary principle is discussed as follows :-
"33. A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier, the concept was based on the "assimilative capacity" rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the "precautionary principle", and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:
"Principle 15.--In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing cost-effective measures to prevent environmental degradation."
34. In regard to the cause for the emergence of this principle, Charmian Barton, in the article earlier referred to in Vol. 22, Harv. Envtt. L. Rev. (1998), p. 509 at p. 547 says:
"There is nothing to prevent decision-makers from assessing the record and concluding that there is inadequate information on which to reach a determination. If it is not possible to make a decision with 'some' confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through judicial and legislative means is necessary."
In other words, the inadequacies of science is the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
35. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case". (See First Report of Dr Sreenivasa Rao Pemmaraju(Joint Secretary and Legal Adviser, Ministry of External Affairs, New Delhi) -- Special Rapporteur, International Law Commission dated 3-4-1998, paras 61 to 72.)" Then, the Supreme Court goes on to elaborate on the new concept of burden of proof as follows :-
"36. We shall next elaborate the new concept of burden of proof referred to in the Vellore case at p.658. In that case, Kuldip Singh, J. stated as follows: (SCC p.658, para 11) "(iii) The 'onus of proof' is on the actor or the developer/ industrialist to show that his action is environmentally benign."
37. It is to be noticed that while the inadequacies of science have led to the "precautionary principle", the said "precautionary principle" in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, -- is placed on those who want to change the status quo [Wynne, Uncertainty and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p. 123]. This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. [See James M. Olson: "Shifting the Burden of Proof", 20 Envtl. Law, p. 891 at p.898 (1990).] [Quoted in Vol. 22 (1998), Harv. Env. Law Review, p. 509 at pp.519, 550.]
38. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3-4-1998, para 61.)
39. It is also explained that if the environmental risks being run by regulatory inaction are in some way "uncertain but non-negligible", then regulatory action is justified. This will lead to the question as to what is the "non-negligible risk". In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a "reasonable ecological or medical concern". That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Farmers of New Zealand3. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable persons" test. [See Charmian Barton: Precautionary Principle in Australia (Vol. 22) (1998) Harv. Env. L. Rev., p. 509 at p. 549.]"
In this case, in a rare example of a State Pollution Control Board remaining unfazed by the efforts made by an industry through a variety of means to derail its efforts to control pollution and protect the environment, the Andhra Pradesh Pollution Control Board (hereinafter referred to as appellant board) was the appellant before the Supreme Court. Examples such as these need to be emulated by other statutory authorities concerned with protection of environment and control of pollution. The steadfastness of the Appellant Board would be apparent from a bare perusal of the facts, as noticed by the Supreme Court. We may at this stage recapitulate the same.
Four appeals were filed against the judgment of Andhra Pradesh High Court dated 1-5-1998 in four writ petitions. All the appeals were filed by the appellant Board. Three of the writ petitions were filed as public interest cases by certain persons and the fourth writ petition was filed by the Gram Panchayat, Peddaspur. The fifth appeal was filed against the judgment in WP No. 16969 of 1997 by the Society for preservation of environment and quality of life. The High Court had dismissed all the writ petitions. The sixth appeal was filed by the appellant Board against the order dated 1-5-1998 in Writ Petition No. 11803 of 1998. The writ petition was filed by M/s Surana Oils and Derivatives (India) Ltd. (hereinafter called "the respondent-Company") for implementation of the directions given by the appellate authority under the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter called "the Water Act, 1974") in favour of the respondent-Company. In other words, the appellant Board was the appellant in five appeals and the SPEQL was the appellant in one of the appeals. It was the case of the appellant Board that the industry of the type proposed to be established by the respondent-Company would fall within "RED" hazardous category of industries as defined under Notification No. J.20011/15/88-1A, Ministry of Environment and Forests, Government of India dated 27-9-1988. By notification dated 1.2.1989 Ministry of Environment (for short, MOE), prohibits the location of the industry of the type proposed to be established by the respondent-Company, which will fall under categorisation at No. 11 (sic) same category of industry in Doon Valley.
Thereafter by GOMs No. 192 dated 31-3-1994, Andhra Pradesh Government prohibited various types of development within a 10 km radius of the two lakes, Himayat Sagar and Osman Sagar, in order to monitor the quality of water in these reservoirs which supply water to the twin cities of Hyderabad and Secunderabad. The respondent-Company was incorporated in January 1995 as a public limited company with the object of setting up an industry for production of BSS castor oil derivatives such as hydrogenated castor oil, 12-hydroxystearic acid, dehydrated castor oil, methylated 12-HSA, D.Co., fatty acids with by-products like glycerine, spent bleaching earth and carbon and spent nickel catalyst. The industry, therefore, applied to the Ministry of Industries, Government of India for letter of intent under the Industries (Development and Regulation) Act, 1951. It purchased 12 acres of land on 26th September, 1995 in Peddaspur Village, Shamshabad Mandal. It also applied for consent for establishment of industry through the Single-Window Clearance Committee of the Commissionerate of Industries, Government of Andhra Pradesh, in November 1995. On 28th November, 1995, the Government of Andhra Pradesh wrote to the Ministry of Industry, Government of India as follows:-
The State Government recommends the application of the unit for grant of letter of intent for the manufacture of BSS grade castor oil and relaxation of locational restriction subject to NOC from the A.P. Pollution Control Board, prior to taking implementation steps."
On 9-1-1996, the Government of India issued letter of intent for manufacture of BSS grade castor oil (15,000 tons per annum) and glycerine (600 tons per annum). The issuance of licence was subject to various conditions, inter alia, as follows:-
"(a) you shall obtain a confirmation from the State Director of Industries that the site of the project has been approved from the environmental angle by the competent State authority.
(b) you shall obtain a certificate from the concerned State Pollution Control Board to the effect that the measures envisaged for pollution control and the equipment proposed to be installed meet their requirements."
Therefore, the respondent-Company had to obtain NOC from the A.P. Pollution Control Board. The further case of the appellant-Board was that the respondent-Company could not have commenced civil works and construction of its factory, without obtaining the clearance of the appellant-Board as the relaxation by the Government from locational restriction as stated in their letter dated 28-11-1995, was subject to such clearance. By a further notification dated 8-3-1996, the Andhra Pradesh Government reiterated the 10 km prohibition as contained in GO No. 192 dated 31-3-1994 but made some concessions in favour of residential development. In the pre-scrutiny stage on 24.5.1996, by the Single Window Clearance Committee, which the company's representative attended, the application of the respondent company was rejected by the appellant Board. The reason for rejection of the application was that the proposed site fell within 10 km and such a location was not permissible as per GOMs No. 111 dated 8-3- 1996. On 31-3-1996, the Commissionerate of Industries rejected the location and directed an alternative site to be selected. However, on 7-9-1996, the District Collector granted permission for conversion of the site (i.e., within 10 km) to be used for non-agricultural purposes. The Company applied to the appellant Board seeking clearance to set up the unit under Section 25 of the Water Act. In the aforesaid application, the Company listed the following as by-products of its processes:-
"Glycerine, spent bleaching earth and carbon and spent nickel catalysts." According to the A.P. Pollution Control Board, the products manufactured by this industry would lead to the following sources of pollution:
"(a) Nickel (solid waste) which is a heavy metal and also a hazardous waste under the Hazardous Waste (Management and Handling) Rules, 1989.
(b) There is a potential of discharge or run-off from the factory combined joining oil and other waste products.
(c) Emission of sulphur dioxide and oxide of nitrogen."
It was at that juncture that the Company secured from the Government of Andhra Pradesh by GOMs No. 153 dated 3-7-1997 exemption from the operation of GOMs No. 111 of 8-3-1996, which prescribed the 10 km rule from the Osman Sagar and Himayat Sagar Lakes.
Even then, the appellant Board by letter dated 30-7-1997, rejected the application dated 7-4-1997 for consent, stating as under :-
"(1) The unit is a polluting industry and falls under the red category of polluting industry under Section 11 of the classification of industries adopted by MOEF, GOI and opined that it would not be desirable to locate such industry in the catchment area of Himayat Sagar in view of GOMs No. 111 dated 8-3-1996.
(2) The proposal to set up this unit was rejected at the pre-scrutiny level during the meeting of CDCC/DIPC held on 24-5-1996 in view of the State Government Order No. 111 dated 8-3-1996."
Aggrieved by the above letter of rejection, the respondent-Company appealed under Section 28 of the Water Act. This appeal was allowed by the appellate authority by order dated 5.1.1998. The respondent-Company had relied on an affidavit of a retired Scientist and Technologist in support of its plea that the respondent-Company had adopted the latest eco-friendly technology using all the safeguards regarding pollution. The entire material that was placed before the appellate authority was summed up by the Supreme Court in paragraph 16 of the judgment which is as follows :-
"16. The appellate authority under Section 28 of the Water Act, 1974 [Justice M. Ranga Reddy, (Retd.)] by order dated 5-1-1998 allowed the appeal of the Company. Before the appellate authority, as already stated, an affidavit was filed by Prof. M. Shantappa, a retired scientist and technologist (at that time, Scientific Advisor for the T.N. Pollution Control Board) stating that the respondent had adopted the latest eco-friendly technology using all the safeguards regarding pollution. The appellate authority stated that Dr Siddhu, formerly Scientific Advisor to the Government of India and who acted as Director General, Council of Scientific and Industrial Research (CSIR) and who was the Chairman of the Board of Directors of this Company also filed an affidavit. The Managing Director of the respondent- Company filed an affidavit explaining the details of the technology employed in the erection of the plant. Prof. M. Shantappa in his report stated that the Company has used the technology obtained from the Indian Institute of Chemical Technology of (IICT), Hyderabad which is a premier institute and that he could not think of a better institute in the country for transfer of technology. The said Institute has issued a certificate that this industry will not discharge any acidic effluents and the solid wastes which are the by-products are saleable and they will be collected in MS drums by mechanical process and sold. The report of Dr Shantappa also showed that none of the by-products would fall on the ground of the factory premises. He also stated that all the conditions which were proposed to be imposed by the Technical Committee on the Company at its meeting held on 16-7-1997 have been complied with. On the basis of these reports, the appellate authority stated that this industry "is not a polluting industry". It further held that the notification dated 1-2-1989 of the Ministry of Environment and Forests, Government of India, whereby industries manufacturing hydrogenated vegetable oils were categorised as "red category" industries, did not apply to the catchment areas of Himayat Sagar and Osman Sagar Lakes and that notification was applicable only to the Doon Valley of U.P. and Dahanu in Maharashtra. The appellate authority accordingly directed the A.P. Pollution Control Board to give its consent for establishment of the factory on such conditions the Board may deem fit as per GOMs No. 153 dated 3-7-1997 (as amended by GO No. 181 dated 7-8-1997)."
The Supreme Court, thereafter, notices that before the above order dated 5-1-1998 was passed by the appellate authority, some of these public interest cases had already been filed. After the 5-1-1998 order of the appellate authority, a direction was sought in the public interest case, WP No. 2215 of 1996 that the order dated 5-1-1998 passed by the appellate authority was arbitrary and contrary to interim orders passed by the High Court in W.P Nos. 17832, 16969 and 16881 of 1997. The respondent-Company, in its turn filed WP No. 11803 of 1998 for a direction upon the appellant Board to give its consent, as a consequence to the order of the appellate authority dated 5-1-1998. The Division Bench held that the writ petitioners who filed the public interest cases could not be said to be having no locus standi to file the writ petitions. It was also observed that the Technical Committee of the appellant Board had, some time before its refusal, suggested certain safeguards to be followed by the respondent-Company. The Board could not have suddenly refused the consent and that this showed double standards. The observations of the Division Bench are narrated in paragraph 20 of the judgment are as under :-
"20. The Division Bench of the High Court in its judgment dated 1-5-1998, held that the writ petitioners who filed the public interest cases could not be said to be having no locus standi to file the writ petitions. The High Court observed that while the Technical Committee of the A.P. Pollution Control Board had, some time before its refusal, suggested certain safeguards to be followed by the Company, the Board could not have suddenly refused the consent and that this showed double standards. The High Court referred to the order of the appellate authority under Section 28 of the Water Act dated 5-1-1998 and the report of Dr Siddhu to the effect that even if hazardous waste was a by-product, the same could be controlled if the safeguards mentioned in the Hazardous Wastes (Management and Handling) Rules, 1989 were followed and, in particular, those in Rules 5, 6 and 11 were taken. The Rules made under the Manufacture, Storage and Import of Hazardous Chemical (MSIHC) Rules, 1989 also permit industrial activity provided the safeguards mentioned therein are taken. The Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1991 supplement the MSIHC Rules, 1989 on accident preparedness and envisage a 4-tier crisis management system in the country. Therefore, merely because an industry produced hazardous substances, the consent could not be refused. It was stated that as the matter was highly technical, interference was not called for, as "rightly" contended by the learned counsel for the respondent-Company. The High Court could not sit in appeal over the order of the appellate authority. For the above reasons, the High Court dismissed the three public interest cases, and the writ petitions filed by the Gram Panchayat. The High Court allowed the writ petition filed by the respondent-industry and directed grant of consent by the A.P. Pollution Control Board subject to such conditions as might be imposed by the Board. It is against the said judgment that the A.P. Pollution Control Board has filed the five appeals. One appeal is filed by SPEQL."
Challenging these observations it was further contended by the appellant-Board that the categorisation of industries into red, green and orange had already been made prior to the notification of 1-2-1989, by the office memorandum of MOE dated 27-9-1988. In that notification 'Vegetable oils including solvent extracted oils' (Item 7) and 'Vanaspati hydrogenated vegetable oils for industrial purposes' (Item 37)" were also included in the red category. It also submitted that the Company could not have started civil works unless NOC was given by the Appellant-Board.
It was in these circumstances that the Supreme Court reiterated the new concept of burden of proof and pre-cautionary principle.
These principles were reiterated by the Supreme Court in the case of A.P. Pollution Control Board II (supra) as follows:-
"47. In our earlier judgment in A.P. Control Board vs. Prof. M.V.Nayudu this Court had occasion to refer to the basis of the precautionary principle and to explain the basis and content of the very principle. This Court also explained the new principle of burden of proof.
48. Therefore, it was for the 7th respondent Industry to establish that there would be no danger of pollution to the two reservoirs even if the industry was established within 10 km radius of the said reservoirs. In the present proceedings, the 7th respondent has failed to discharge the said onus."
In our opinion, these observations would be applicable to the facts and circumstances of this case.
It would, therefore, not be possible to accept the submissions of the learned counsel for the respondents that the writ petition ought to be dismissed as premature.
This brings us to the next preliminary objection with regard to the locus standi of the writ petition. Mr. Anindya Mitra, learned senior counsel, has relied upon the judgment of the Supreme Court in the case of Dr. B. Singh (supra). It is undoubtedly correct that the writ petitioners have miserably failed to plead any particulars as to how petitioner no. 1 can represent the general population of Kolkata or even the population of the locality surrounding the Hillock. Therefore, we would have been justified in dismissing the writ petition on the ground of the writ petitioners' lack of locus standi. The Supreme Court has reiterated the settled law with regard to locus standi and the parameters within which Public Interest Petitions ought to be entertained in the case of Dr. B. Singh (supra) as follows:-
"4. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes or vendetta to bring to terms a person, not of one's liking, or gain publicity or a facade for blackmail, the said petition has to be thrown out. Before we grapple with the issues involved in the present case, we feel it necessary to consider the issue regarding the "public interest" aspect. Public interest litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation" or the latest trend "paise income litigation". If not properly and strictly regulated at least in certain vital areas or spheres and abuse averted, it becomes also a tool in unscrupulous hands to release vendetta and wreak vengeance, as well as to malign not only an incumbent-to-be in office but demoralise and deter reasonable or sensible and prudent people even agreeing to accept highly sensitive and responsible offices for fear of being brought into disrepute with baseless allegations. There must be real and genuine public interest involved in the litigation and concrete or credible basis for maintaining a cause before court and not merely an adventure of a knight errant borne out of wishful thinking. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. The credibility of such claims or litigations should be adjudged on the creditworthiness of the materials averred and not even on the credentials claimed of the person moving the courts in such cases. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in Janata Dal v. H.S.
Chowdhary [(1992) 4 SCC 305] and Kazi Lhendup Dorji v. Central Bureau of Investigation [1994 Supp (2) SCC 116]. A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. (See Ramjas Foundation v. Union of India [1993 Supp (2) SCC 20] and K.R. Srinivas v. R.M. Premchand[(1994) 6 SCC 620].) .... .... .... .... ... .... ..... ......
11. It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and substantial rights and criminal cases in which persons sentenced to death facing the gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters -- government or private, persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenus expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no real public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, break the queue muffling their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions of luxury litigants who have nothing to lose but trying to gain for nothing and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of the genuine litigants.
12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, courts must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs."
Mr. Anindya Mitra, in our opinion, has very aptly relied on the judgment of the Supreme Court in the case of Shri Sachidanand Pandey (supra). The opening paragraphs of the aforesaid judgment have already been noticed by us at the beginning of this judgment. We may at this stage notice only the further observations of the Supreme Court, after considering the merits of that case. The Supreme Court was considering an appeal from a judgment of this court. Serious objections had been taken by the appellant for allotment of land to the Taj Group of Hotels for the construction of a Five Star Hotel. It was submitted on behalf of the appellant that the land could not be leased to the Taj Group of Hotels without inviting tenders from willing persons and without complying with certain provisions of the Land Manual. It was further submitted that in taking a decision to take away the land from the Zoo and to lease the same to the Taj Group of Hotels, relevant considerations had been ignored and irrelevant considerations had been taken into account. It was further submitted that the terms on which the lease had been granted were detrimental to the public revenue. On behalf of the Taj Group of Hotels it was submitted that the former facilities available in the 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. Furthermore, if the dumping ground and the burial ground had to be moved elsewhere, it was certainly more hygienic and a matter of gratification rather than for disgruntlement. There was also no obstruction to the flight of the visiting birds as the 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 medium rise and not a high rise building. Details were also furnished as to how the environment and landscape would be improved by the construction of the hotel. After examination of the entire matter on merits, the Supreme Court rejected the challenge to the allotment of land. It was noticed that the government was alive to the ecological consideration, particularly to the question of the migratory birds when they took the decision to lease the land to the Taj Group of Hotels. In paragraph 25, it is specifically observed as follows:-
"25. Bearing in mind the proper approach that we have to make when 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 proposed hotel in the Begumbari land would interfere in any manner with the animals in the Zoo and the birds arriving at the Zoo or otherwise disturb the ecology : The proposed hotel is a Garden Hotel and there is perhaps every chance of the ecology and environment improving as a result of planting numerous trees all around the proposed hotel and the removal of the burial ground and dumping ground for rubbish."
Similarly, with regard to commercialization of the land, upon consideration, the Supreme Court did not find any substance in the objection. We are of the considered opinion, that the situation herein is squarely covered by the law laid down in the aforesaid judgment.
In order to satisfy ourselves we have examined the entire issue on merits. We do not find any cause for unnecessary apprehensions as expressed by the writ petitioners. A bare perusal of the facts narrated above would clearly demonstrate that all the respondents are at pains to preserve the ecology and the environment. The respondents have assured the court that all necessary precautions will be taken to ensure that the promoters act in accordance with the positive and the negative covenants contained in the lease.
A bare perusal of the lease deed would itself demonstrate that the project was conceived as a commercial venture from its very inception. We have made a detailed reference to the various meetings held at the Chief Minister's level, as well as other authorities, which laid out a very detailed plan for development of the area. In our opinion, if the development of the project is stopped, it would be a disservice to the city of Kolkata. An effort has been made by the authorities to develop a world-class facility. Such an effort needs to be encouraged rather than discouraged.
Having said this, we would however add a note of caution to KMC as well as the promoters, i.e. respondent no. 9, to ensure that the development of the area matches the high aesthetic beauty of India International Centre and the Habitat Centre of Delhi. These assurances have been repeatedly held out to this court in the affidavits filed by the respondents. They have been reiterated before us by the learned counsel appearing for KMC. It is, therefore, on this clear understanding that we are not inclined to interfere in the matter.
With aforesaid observations, the writ petition is dismissed. There shall, however, be no order as to costs.
( Surinder Singh Nijjar, C.J.) I agree.
( Biswanath Somadder, J.)