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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Subrata Talukdar
W. P. 23439(W) of 2015
Smt. Kiran Pandit & Ors.
-vs.-
State of West Bengal & Ors.
For the petitioners : Mr. Hirak Mitra
Mr. Rameswar Bhattacharyya
Mr. Arun Kanti Bera
Mrs. Gitashree Mistry
Ms. Soumi Pal
For the respondent
Nos. 1 to 5 : Mr. L. K. Gupta,
Ld. Addl. Adv. General
Mr. Amal Kumar Sen
Mr. Aniruddha Sen
For the respondent Nos. 6 & 7 : Mr. Pantu Deb Roy
Mr. Subrata Guha Biswas
For the respondent
Nos. 8 to 11 : Mr. Binod Kumar Gupta
Ms. Aishwarya Rajyashree
For the respondent No. 15 : Mr. Subrata Banerjee
Ms. Sharmistha Pal
Heard on : 17/12/2015; 18/01/2016;
25/02/2016; 10/03/2016;
17/03/2016 & 31/03/2016
Judgment on : 15/07/2016
Subrata Talukdar, J.: The central issue in this writ petition is the proposed shifting of the bus stand commonly known as Band Stand, also Babughat, to a new Inter-state Bus Terminus (for short ISBT) at Santragachi, Howrah.
The writ petitioners are all Inter-state Bus Operators whose services both commence from and terminate at Band Stand. In the writ petition under challenge is the resolution of the High Power Committee (for short HPC) dated 11th August, 2015 by which it was, inter alia, decided to proceed with the phase-wise shifting of ISBT to Santragachi.
The principal arguments advanced by Sri Hirak Mitra, Ld. Senior Counsel appearing for the petitioners are as follows:-
a) That under the provisions of the Motor Vehicles Act, 1988 (for short the 1988 Act) the operations of inter-state buses take place on the basis of reciprocal agreements entered into between States. Such reciprocal agreements become final after the period invited for receiving objections closes and, in terms of such agreements the routes as well as the termini of the said routes cannot be subsequently superseded by any other methodology such as adopted by the HPC at its meeting dated 11th August, 2015.
b) That the Hon'ble Division Bench of this Court had the occasion to deal with the policy decision of the State Government connected to grant of new permits in respect of stage carriages on both notified and non-notified routes. Pursuant to the judgment of the Hon'ble Division Bench In Re: Sujata Ganguly vs. The State of West Bengal & Ors. (FMA 604 of 2004) vide judgment and order dated 27th September, 2005, the policy and procedure for granting new permits, including the exclusion of the Central Business District (for short CBD) from the purview of the grant of new permits was notified by the State Government and pursuant to such notification the bus operators, including the present petitioners being inter-state operators are using Band Stand/Babughat as a terminus.
c) Sri Mitra submits that the primary reason for shifting the bus terminus to Santragachi is the purported pollution being caused to the Victoria Memorial (for short VM). Pointing out that the aspect of pollution falls within the purview of a Central Legislation under The Air (Prevention and Control of Pollution) Act, 1981, Sri Mitra argues that therefore the State Government has no role to play. Relying the recognized legal principle of Occupied Field, Sri Mitra submits that since the matter of pollution lies within the eminent domain of the Central Government, on the ground of pollution no shifting of the bus stand can be ordered by the HPC functioning under the State Government.
d) Sri Mitra takes the next point that in the event there is a threat of pollution caused to VM by the inter-state buses, there ought to have been a representative of a body dealing with pollution in the HPC. However, while discussing the issue of the pollution hazard to VM the Hon'ble Apex Court makes specific mention of a body such as the National Environmental Engineering Research Institute (for short NEERI), no representative of NEERI is found in the HPC.
e) Sri Mitra submits the additional point that the order impugned of the HPC dated 11th August, 2015 is without reasons. Also referring to the orders passed by the Hon'ble Apex Court and the Hon'ble Division Bench of this Court from time to time, Sri Mitra points out that reference has been made to Esplanade Bus Stand only and, there is no reference to Band Stand. Therefore, the judicial intention was clear which is to reduce the pollution caused to VM because of the functioning of the Esplanade Bus Terminus. In this connection Sri Mitra argues that a large number of local buses ply daily on routes bordering VM and, are major emitters of pollutants.
However, in the case of the present writ petitioners the buses merely park for some time at Band Stand. Such parking at Band Stand does not at all affect the pollution level at VM and, the HPC instead of tackling the plying of local buses around VM is diverting the issue by ordering the inter-state buses out of Band Stand.
f) Further arguing that the petitioners are operating their inter- state buses from Band Stand for a long time and such operations touch the issue of their livelihood, Sri Mitra submits that there is no conflict of jurisdiction in moving this writ petition before this Hon'ble Court although a Public Interest Litigation (for short PIL) on the issue is already pending before the Hon'ble Division Bench of this Court. In support of his argument Sri Mitra relies upon the judgement of an Hon'ble Single Bench of this Court in WP 22586(W) of 2014 dated 25th August, 2014 which, inter alia, granted leave to the writ petitioners to approach the competent Court at the appropriate stage. Sri Mitra points out that by the said order dated 25th August, 2014, the Hon'ble Single Bench found the writ petition to be pre-mature and therefore observed, inter alia, as follows:-
"In the event in future the petitioners have grievance on this point, they shall be at liberty to apply afresh before this Court or such other forum as they may be advised. As no affidavit has been filed on behalf of the respondents, allegations made in the writ petition against them shall be deemed to have not been admitted.
The writ petition shall stand disposed of in the above terms."
Having regard to the above noted direction of the Hon'ble Single Bench Sri Mitra argues that the present writ petition is maintainable.
g) The next point taken by Sri Mitra is that the findings of the HPC dated 11th August, 2015 are de hors the principles of natural justice. Although the writ petitioners are vitally affected because of the shifting directed to take place to Santragachi none of the grievances raised by the writ petitioners as canvassed through their representations dated 5th of August, 2015 and 19th of August, 2015 were addressed by the HPC. Therefore, on the point of violation of the principles of natural justice, Sri Mitra submits that the decision proposed vide the impugned resolution of the HPC dated 11th August, 2015 requires to be set aside.
h) In support of the principles of law elucidated in his arguments, Sri Mitra relies upon the following judicial authorities:- • On the doctrine of occupied field: 1991 (4) SCC 243;
• On the point that the order impugned dated 11th August, 2015 does not contain any reasons: 1968 AC 997;
• On the point that the State-respondents cannot improve their case through affidavit: AIR 1978 SC 851;
• On the principle of natural justice: 1981 (1) SCC 664.
Sri Mitra reiterates the point that an authority visited with powers to do certain functions is required to exercise such powers on its own without delegating such powers to some other authority. Therefore, when the power is conferred for doing a particular act in a particular manner, such power must be exercised in the manner conferred and, not in any other manner.
Appearing on behalf of the State-respondents, Sri Amal Kumar Sen, Ld. Senior Government Advocate raises the following points:-
i) That adequate reasons are evident from the order of the HPC.
Therefore the argument of lack of sufficiency of reasons cannot be raised on behalf of the writ petitioners.
ii) Relying on the affidavit-in-opposition filed on behalf of the State-respondents, Sri Sen points out that the HPC filed several reports before the Hon'ble Division Bench of this Court hearing the PIL in connection with the pollution caused to VM. At the time of filing of the First Report a Sub-committee constituted under the HPC took a hearing of the inter-state as well as private stage carriage operators. From the First Report of the Sub-committee, Sri Sen points out that the removal of pollution within a 3 km area of VM was taken notice of. The HPC, under the direction of the Hon'ble Division Bench, was required to submit quarterly reports addressed to the Registrar General of the High Court. The Registrar General would then place the report before the Hon'ble Division Bench.
iii) From the Second Report of the HPC, Sri Sen points out that the North Bengal State Transport Corporation (NBSTC) had confirmed that the Esplanade Bus Terminus was being utilized as a pick up point as well as a ticket booking point. Similarly, the Calcutta State Transport Corporation (CSTC) had submitted before the HPC that the long distance services of CSTC which were originating earlier from Esplanade are now touching Esplanade for a maximum of 10 minutes for boarding of commuters and, in no circumstances more than one vehicle is standing there at a time ordinarily. Even the city services of CSTC are not being operated from Esplanade.
iv) Sri Sen further argues that the Third Report of the HPC submitted before the Hon'ble Division Bench detailed the steps taken for relocation of the bus termini both from Esplanade and from Band Stand. The Fourth Report of the HPC mentions the shifting of the terminus from Band Stand to Santragachi also called as the Kolkata Central Bus Terminus (for short KCBT). Sri Sen submits that from time to time the Hon'ble Division Bench in the PIL being WP 7987(W) of 2002 had directed the HPC to periodically keep the Hon'ble Division Bench informed by way of placing the above noted quarterly reports on the steps taken to minimize pollution qua VM. The said PIL is still pending before the Hon'ble Division Bench.
The specific point is therefore taken by Sri Sen, both in his arguments and in the affidavit-in-opposition filed on behalf of the State-respondents, that there is no infraction of the principles of natural justice. The bus operators were given adequate opportunity to present their case before the HPC and, upon taking into consideration all aspects, the HPC recommended shifting of the inter-state bus terminus from Band Stand to KCBT in the first phase.
v) On the ground that the matter of pollution to VM and the consequent shifting of the bus termini both from Esplanade and from Band Stand is in seisin of the Hon'ble Division Bench, Sri Sen argues that the present standalone writ petition is not maintainable. The writ petitioners cannot be allowed to air the same grievances by way of this parallel proceeding when, the entire issue is pending before the Hon'ble Division Bench in a PIL filed prior in time. Sri Sen submits that the issue of relocating the bus terminus arising out of the pollution hazard to VM has its genesis in the PIL. Therefore, Sri Sen argues that if the present writ petition is entertained then the same would amount to an example of judicial overreach.
vi) The next point taken by Sri Sen is that the regulation of traffic is a State subject covered under the State List of Schedule VII of the Constitution of India. On the point taken by Sri Mitra qua the Occupied Field Theory, Sri Sen submits that the number of permits which could be issued as well as the future regulation of such permits falls under the control of the State Government. The issue of pollution qua VM is amenable to the regulation of the State Government and received its stamp of approval from the Hon'ble Division Bench. Sri Sen points out that originally the area of discussion connected to pollution to VM was restricted to Esplanade. On remand of the matter from the Hon'ble Apex Court it was, inter alia, directed that the State is required to explore the feasibility of clearing VM of any pollution hazard in respect of a 3 km radius around VM.
Sri Sen therefore clarifies that since the radius of 3 kms was brought into the focus of the State' examination by the Hon'ble Apex Court, such 3 km area includes Band Stand. Therefore, the argument advanced by Sri Mitra that the zone of consideration to keep VM free of pollution centred only on Esplanade is not sustainable since, it is obvious on facts and, in this connection Sri Sen relies upon a Google map, to make the point that Band Stand also falls within the area required to be sanitised to keep VM pollution free.
vii) The next point argued by Sri Sen is that the principle of natural justice or, in other words, affording an opportunity of hearing to the respective classes of bus operators has been complied with in the facts of the present case. Sri Sen points out that it is an admitted position that pursuant to the orders of the Hon'ble Division Bench in the PIL, opportunity of hearing was extended to members of the Bus Associations and, steps were taken as directed by the Hon'ble Apex Court from time to time. No objection was taken by the petitioners or any of the members of the Bus Associations with regard to the fixing of the 3 kms radius for protecting VM from pollution.
viii) Placing each of the four reports submitted by the HPC, Sri Sen submits that the absence of certain members from the HPC, including the members responsible for overseeing aspects of pollution, does not vitiate State action inasmuch as the HPC is solely entrusted with the task of relocating the bus terminus under orders of Court which have already examined the issue of pollution.
Taking this Court to the orders of the Hon'ble Apex Court and the Hon'ble Division Bench passed from time to time, Sri Sen submits that it is only upon examination of the issue of pollution that the Hon'ble Courts have directed further management of route traffic including the relocation of the bus stand. In the light of their above noted observations, the Hon'ble Courts have set up the HPC with the mandate to submit quarterly reports from time to time. While issuing such mandate upon the HPC the Hon'ble Courts have taken notice of the threat of pollution to VM and, on the touchstone of such threats, directed that steps be taken to relocate the bus stand.
Accordingly, Sri Sen submits that to now raise the issue of pollution de novo on behalf of the writ petitioners is no more res integra.
ix) Referring to the attendance at the hearing held by HPC, Sri Sen argues that several of the writ petitioners have appended their signatures in the record of attendance. The decision of the HPC dated 11th August, 2015 impugned in the present writ petition is in favour of phase-wise shifting of the bus stand. Such phase-wise shifting of the bus stand does not mean that the other aspects required to be considered such as shifting of the bus stand from Esplanade have been ignored. The phase-wise shifting of the bus stand means that other phases connected to the shifting and directed to be considered by the HPC under orders of Court shall be taken up in due course and quarterly reports submitted before the Hon'ble Division Bench. The exercise of powers by the HPC is not suo moto but within the framework created by the Hon'ble Courts.
x) Sri Sen highlights the point that the outer time limit conferred on the HPC for executing its action to keep VM pollution free is three years. Therefore, as the first step the HPC has directed shifting of the inter-state bus terminus to KCBT from Band Stand.
Sri Sen also points out that the decision impugned dated 11th August, 2015 is not drastic and provides the petitioners as well as other inter-state operators having their terminus at Band Stand with the necessary window for briefly halting to load/unload passengers. The modalities of shifting the bus stand lie entirely within the executive domain and under Rule 182 of the West Bengal Motors Vehicle Rules, 1989 (for short the 1989 Rules) the District Magistrate (DM) is empowered to issue a notification qua setting up of the new bus stand. Sri Sen argues that such notification having the force of law as issued by the DM, Howrah dated 21st May, 2015 is not under challenge in this writ petition. Sri Sen therefore points out that due process stands satisfied.
Sri Sen submits that the HPC was set up in obeisance to the judgement of the Hon'ble Apex Court in 1997 (8) SCC 770 In Re: M. C. Mehta vs. Union of India. Sri Sen argues that there is no conflict in laws between the State action and the Central Legislation on the issue of pollution which has been monitored by the Constitutional Courts.
Ld. State Counsel further argues that the rights of the private operators such as the present petitioners cannot override the larger public interest. Following the letter and spirit of the decision reported in 1997 (8) SCC 770 (supra), the Hon'ble Division Bench has issued orders from time to time in the PIL. Sri Sen therefore questions the maintainability of this writ petition.
Appearing for the Respondent No. 15 being, the Hooghly River Bridge Commission (for short HRBC), Sri Subrata Banerjee, Ld. Counsel makes the preliminary submission that the role of HRBC is limited to the point raised by HPC to the effect that HRBC ought not charge toll fees in respect of the buses of the petitioners operating out of Band Stand and relocated at KCBT, Santragachi.
Sri Banerjee further argues that at the first stage of the litigation the aspect of pollution to VM was settled right up to the Hon'ble Apex Court. At the second stage of litigation which is now under consideration by the Hon'ble Division Bench in the PIL, the relocation of the bus stand consequent to the pollution aspect being settled is being examined. The composition of the HPC must therefore be understood qua such aspect.
Sri Banerjee argues and, in the opinion of this Court correctly so, that at the second stage of litigation the Hon'ble Division Bench is considering to ease the threat of pollution to VM by directing HPC to take steps to relocate the bus stand. In the above aspect of the matter there is no further requirement of experts on pollution in the composition of the HPC.
The final point made by Sri Banerjee is that both the inter-state bus operators and the local operators are being treated at par by the HPC since none of the two classes of operators will be allowed to park within a 3 km radius of VM.
Upon hearing the parties and considering the materials relied upon, this Court at the very outset is required to notice the several orders passed by the Hon'ble Apex Court and the Hon'ble Division Bench of this Court on the issue of the pollution threat to VM:- A) By order dated 12th September, 2011 in Civil Appeal No. 7785 of 2011 arising out SLP (C) No. 9154 of 2008 in the matter of State of West Bengal vs. Howrah Ganatantrik Nagarik Samity & Ors., the Hon'ble Apex Court arrived at the following conclusions:-
"7. We have considered the submissions made on behalf of the appellant and the respondents and we find that NEERI has suggested some long term measures for preservation of the Victoria Memorial Hall in Para 5.2 of its report. The relevant portion of Para 5.2 of the report of NEERI is quoted hereinbelow:
"5.2 LONG-TERM MEASURES
Diversion of Heavy Road Traffic on the Road
Encircling the VM Monument.
The pollution from auto exhaust is the most important causative factor when the Victoria Memorial protection from atmospheric environment is considered. Therefore, the traffic on roads around the VM should be minimum particularly complete banning of heavy traffic. Bus terminus at Esplanade Area (Commercial) should also be shifted from the existing location.""
B) Next, this Court is required to notice the order dated 5th March, 2013 passed by the Hon'ble Division Bench of this Court in the pending PIL being WP 7987(W) of 2002. The relevant portion of the said order dated 5th March, 2013 reads as follows:-
"The substantial part of the controversy stood resolved by the order of the Division Bench passed on April 19, 2012. Yet, there are some areas that would need further care. The Apex Court already observed, the Esplanade Bus Terminus being cause of pollution and threat to the greeneries within the heart of the city, must be removed away from the place where it is now situate. The Apex Court, however, did not make a time-frame and left it open to the State to do the needful. Mr. Pal would contend, the State, on principle, agreed with the direction and are eager to comply with the same. However, the place is yet to be identified. We feel, the Hon'ble Supreme Court in their wisdom left it to the Government without making a time frame, that would not give licence to the State to keep it pending for eternity. The State must find out ways and means to comply with such direction."
C) Thereafter, this Court is required to notice the order dated 13th September, 2013 of the Hon'ble Division Bench in the pending PIL being WP 7987(W) of 2002 with CAN 5591 of 2013. The Hon'ble Division Bench was pleased to, inter alia, hold as follows:-
"By an order dated July 29, 2013 we requested all concerned at the appropriate level to assist this Court to find out a complete modality not only to preserve the Victoria Memorial but also to have a clean heart of the city free from pollution.
We are glad and we record our appreciation, as requested by us by the said order all the Officers are present except the representative of Kolkata Port Trust. The Officers have offered their views. Everyone would be ad idem and everyone would pray before this Court to have a 'High Power Monitoring Committee' to address the problem and have a ready solution.
The Transport Secretary has already apprised us about the Government's future plan with regard to bus terminus. Those are time consuming. Since the problem is knocking at our door, we have to address it at the earliest. We, thus, appoint a committee to have deliberations with all concerned and prepare a comprehensive report suggesting the modalities to be adopted for the purpose of removal of the pollution hazards in the heart of the city within three kilometers radius of the Victoria Memorial. The 'High Power Committee' would also suggest the measures to be adopted by any particular department.
The High Power Committee would be as follows :-
i) Mr. Sanjay Mitra, Chief Secretary, Government of West Bengal, - Chairman;
ii) Mr. Alapan Bandopadhyay, Transport Secretary, State of West Bengal, - Convenor;
iii) Lt. General A.K. Chowdhury, GOC Bengal Area, - Member;
iv) Mr. R.P.S. Kahlon, Chairman, Kolkata Port Trust, Member;
v) Mr. Surajit Kar Purakayastha, Commissioner of Police, Calcutta, - Member;
vi) Mr. Indibar Pandey, Secretary, Public Works Department, State of West Bengal, - Member and
vii) Mr. Khalil Ahmed, Commissioner, Kolkata Municipal Corporation, - Member.
The High Power Committee would be entitled to hold meeting with all concerned and would also be at liberty to invite suggestions from the experts of their choice. They would also be at liberty to hear Mr. Subhash Dutta, petitioner in this Public Interest Litigation.
The matter is fixed for further hearing on November 22, 2013 when we would expect a comprehensive report from the High Power Committee for the task they would undertake in the meantime. Till then we leave it to the High Power Committee to see that the area is free from hazards that are complained of.
The Officers present here would also assure this Court, they would try their level best with the available infrastructure to make the area free from pollution.
Mr. Arindam Banerjee, learned Counsel appearing for the transporters prays for personal hearing by the High Power Committee.
It is for the transporters to seek hearing from the High Power Committee and we leave it to them."
D) Pursuant to the order dated 13th September, 2013 (supra) constituting the HPC, periodically the HPC submitted its reports as directed by the Hon'ble Division Bench. The HPC, inter alia, specifies that the State Transport Authority (STA), West Bengal has already decided not to issue any inter-state bus permit with Band Stand/Babughat as the terminal point. The Second Report specifies at point No.5 that the Transport Department, Government of West Bengal requested the Kolkata Port Trust (for short KPT) vide memo No. 1287-WT/85-50/2007 PT(ii) dated 21st March, 2014 to take steps for handing over a land so that the Band Stand/Babughat bus terminus may be relocated without further delay.
In its Third Report the HPC underscored the point that the Transport Department vide its letter No. 2353-WT/85- 50/2007 PT(ii) dated 10th June, 2014 informed the Chief Executive Officer of the Kolkata Metropolitan Development Authority (for short KMDA) that for shifting of the bus termini both from Esplanade and Band Stand/Babughat a joint inspection was held on 30th March, 2014 for selection of an alternative side at Santragachi, Howrah. The KMDA was requested to initiate the process of handing over possession of the said land at Santragachi in favour of the Transport Department.
E) Noticing further the reports of the HPC this Court finds that the Third Report mentions the fact that the Transport Department vide memo No. 2763-WT/85-50/2007 PT(ii) dated 4th July, 2014 informed the KMDA that HRBC has been asked to develop the land at Santragachi expediously for use as a bus terminus by shifting buses from the existing termini at Esplanade and Band Stand respectively. On 3rd July, 2014 KMDA handed over the possession of the said land measuring approximately 11.02 acres at Santragachi to the Transport Department for taking further steps to develop the same as a bus terminus.
It will also be useful to mention that the First Report of the HPC clearly mentions the fact that on 9th December, 2013 the Sub-Committee constituted under HPC took a hearing of the following entities:-
a) Kolkata Bus Operators Welfare Association, West Bengal;
b) Inter-Regional Bus Owners' Association; and
c) All Private Stage Carriage Long Route Bus Workers' Union.
The hearing was held in the chamber of the Principal Secretary, Transport Department. The author of the said pending PIL, Sri Subhas Dutta was also heard on the same date, i.e. on 9th of December, 2013.
F) This Court significantly notices that after the hearing on 9th of December, 2013 the Sub-committee of the HPC arrived at the following findings:-
"i) The aforesaid operators of Long Distance Buses have undertaken to ensure that their buses would use Esplanade Bus Terminus as a halting place only and not as a terminus and no maintenance works would be undertaken there. Accordingly, the halting time mentioned in the permits issued by the State Transport Authority, West Bengal may be curtailed to half of the existing time.
ii) The aforesaid operators of Long Distance Buses have also assured that they would use other places of the city as parking place for their buses. When the State Government would develop other terminuses in place of Esplanade Bus Terminus, they would shift their buses to such new terminuses.
iii) Necessary steps would be taken so that the area around Esplanade Bus Terminus would be declared as "Zero Tolerance Pollution free Zone".
iv) The time-keepers of the Inter-City buses would be shifted to other places."
G) In the Fourth Report of the HPC it was, inter alia, observed at the meeting dated 6th August, 2014 for shifting the bus terminus from Santragachi, that KMDA will hand over additional land to the Transport Department on the northern side of Kona Expressway for accommodating long distance buses. It was further decided at the meeting of the HPC dated 6th August, 2014 that the buses will be shifted in a phased manner from Band Stand/Babughat and Esplanade to KCBT at Santragachi. Notifications shall be issued by the competent State Authorites for operationalising the KCBT at Santragachi.
Accordingly, in furtherance of all the decisions as above taken by the HPC vide Notification of the DM, Howrah dated 29th September, 2015 under Rule 182 of the 1989 Rules (supra) the KCBT at Santragachi was notified to be fully functional w.e.f. 28th May, 2015. It is factually relevant to note that the present writ petition was thereafter filed in September, 2015. H) Having regard to the above noted conspectus of facts this Court does not find any infirmity in the decision making process. On the contrary this Court finds adequate substance in the arguments of Ld. State Counsel that the reports of the HPC followed the mandate of the Hon'ble Apex Court as well as the Hon'ble Division Bench. This Court is of the further clear opinion that in its order dated 12.09.2011 the Hon'ble Apex Court took deep notice of the suggestions made by the expert pollution control body, NEERI, on the steps suggested for the preservation of VM. Quoting para 5.2 of NEERI's suggestion, the Hon'ble Apex Court held that it would be necessary to ban heavy traffic from the Esplanade area. The diversion of heavy traffic would necessarily involve shifting of the bus terminus. The Hon'ble Apex Court took specific notice of the fact that even though the bus terminus at Esplanade is located two kilometers away from VM, the automobile exhausts will cause pollution to the atmosphere around VM. Therefore, the Hon'ble Supreme Court modified the order impugned of the Hon'ble Division Bench and directed the State Government to take appropriate action on the NEERI report.
I) This Court is further required to notice that the solemn order of the Hon'ble Supreme Court dated 12.09.2011(supra) found its evolution in the subsequent orders of the Hon'ble Division Bench in the pending PIL, i.e. WP 7987(W) of 2002. As already recorded hereinabove in this judgement the Hon'ble Division Bench by its order dated 13.09.2013 set up the HPC to carry forward the recommendations of the Hon'ble Supreme Court. The HPC was directed to take steps on removal of pollution hazards within a radius of three kilometres of VM.
Therefore, this Court finds adequate substance in the submissions of both the Ld. Counsel for the State Respondents and HRBC to the effect that the Band Stand bus terminus which is located within the three kilometres radius as directed by the Hon'ble Division Bench is in sync with the order of the Hon'ble Apex Court (supra) to be relocated in the first phase for preserving VM from pollution hazard.
J) This court cannot be also oblivious of the fact that the orders of the Hon'ble Apex Court and the orders of the Hon'ble Division Bench (supra) have attained finality. This Court is conscious of the fact that the petitioners, although aware of the orders passed from time to time qua the shifting of the bus stands within a three kilometres radius of VM, have not questioned the same before the appropriate fora. On the contrary, this Court finds that the representatives of the bus operators, including the present petitioners, participated in the hearing before the HPC, a fact which is recorded in its First Report.
Therefore, this Court finds no reason to intervene in this collateral challenge mounted by the writ petitioners by way of the present writ petition on the self-same issue which is long sub judice before the Hon'ble Division Bench in the pending PIL. K) This Court is also of the considered view that the argument of Occupied Field is no longer available to the writ petitioners post the orders of the Hon'ble Apex Court and the Hon'ble Division Bench (supra). The order of the Hon'ble Apex Court dated 12.09.2011 settles the law under Article 141 of the Constitution of India linking the preservation of VM from pollution to the shifting of the bus termini. The directions of the Hon'ble Apex Court were cemented further by the Hon'ble Division Bench through its successive orders regulating the steps to be taken by the State Government within a 3 kms radius of VM, which includes within its ambit the Band Stand bus terminus.
To the mind of this Court the theory of Occupied Field read in the light of the distinctive legislative powers of the Centre and the State as sought to be argued by Sri Mitra stand on a different footing while applying the Doctrine of Merger qua the orders of the Hon'ble Apex Court and the Hon'ble Division Bench (supra) to the facts in issue. This Court is therefore persuaded to hold that the Occupied Field argument is no more res integra which can be taken by the writ petitioners de novo by way of this writ petition.
L) In the light of the facts and the law discussed above, this Court finds that the decision making process adopted by the HPC under the aegis of the orders of the Hon'ble Supreme Court and the Hon'ble Division Bench passed from time to time followed a nuanced procedure and, cannot be faulted. The resolution impugned of the HPC dated 11.08.2015 is, in the opinion of this Court, an appropriate step in the nuanced decision making process calling for a phase wise shifting of the bus terminus to KCBT, Santragachi. It is pertinent to mention that the HPC has not hurried its decision and, the successive reports filed by HPC have been capped by the Notification of the District Magistrate, Howrah dated 29.09.2015.
In support of its above noted reasoning this Court finds it useful to rely upon the Judgment of the Hon'ble Apex Court in 1992 Supp (2) SCC 312 in the matter of H.B. Gandhi, Excise and Taxation Officer Cum Assessing Authority, Karnal & Ors. vs. M/s. Gopi Nath & Sons & Ors. wherein at Paragraph 8, it was held as follows:-
"8. But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
Before parting with this case this Court is required to notice the fact that the issues raised in this writ petition lie in the realm of expert bodies. It is trite law that this Court sitting in its Writ jurisdiction must refrain itself from interfering in the detailed exercise conducted by such expert bodies.
In the backdrop of the above discussion the resolution impugned dated 11.08.2015 deserves no interference.
WP 23439(W) of 2015 fails and stands accordingly dismissed. Interim order, if any, stands discharged.
There will be, however, no order as to costs.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.) Later Sri Rameswar Bhattacharyya, Ld. Counsel for the petitioners prays for stay of operation of this judgment and order. Prayer for stay is considered and rejected.
(Subrata Talukdar, J.)