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- 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 51-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. (Emphasis added)
- There is in Calcutta a zoological garden located in Alipore, now almost the heart of
Calcutta, on either side of Belvedere Road, one of Calcutta’s main arterial roads, forty-nine
acres on one side and eight acres on the other. The main zoo is in the forty-nine acres block of
land. There are some old buildings and vacant land in the eight acre plot of land. This eight
acre plot of land is known as the Begumbari land. It is out of these eight acres that the land of
the extent of four acres has been carved out and given to the Taj Group of Hotels for the
construction of a Five Star Hotel. It is this giving away of land, that was challenged before the
High Court and is now challenged in this Court in this appeal by two citizens of Calcutta, one
of them the Secretary of the union of workmen of the zoological garden and the other a life
member of the zoo, both of whom claim to be lovers of wild life and well-wishers of the zoo. - In January 1979, the Director General of Tourism, Government of India, addressed a
letter to the Chief Secretary, Government of West Bengal conveying the resolution of the
136
Tourism Conference which was presided over by the Union Minister of Tourism and attended
by several State Ministers and requesting that land in good locations may be made available
for construction of hotels in a drive to encourage tourism. In May 1980 the Taj Group of
Hotels came forward with a suggestion that they would be able to construct a Five Star Hotel
if any of three properties on Chowringhee, specified by them, was made available to them.
The Government found that there was some litigation connected with the Chowringhee
properties and, therefore, it would not be possible to convey the Chowringhee properties to
the Taj Group of Hotels. On September 29, 1980 and November 29, 1980, there were two
notes by the Secretary of the Metropolitan Development Department to the effect that the
ITDC was interested in a property known as the Hastings House property and that the Taj
Group of Hotels who considered the Hastings House property unsuitable may be offered four
acres out of the eight acres of Begumbari land. On the same day the Taj Group of Hotels
wrote to the Government of West Bengal stating that the proposed land could be seriously
considered for construction of a hotel. Thereafter the Chief Minister along with the Minister
of Tourism and the Minister for Metropolitan Development visited the site accompanied by
the Director of the zoo who apparently knew about the proposal right from the start. A note
was then prepared by the Secretary, Metropolitan Development Department and put up to the
Chief Minister for his approval. The note suggested that the Hastings House property may be
offered to the ITDC and the Begumbari property may be offered to the Taj Group and that at a
later stage a suitable committee might be appointed to negotiate with the two groups of hotels.
The Chief Minister approved the proposal and required it be to placed before the Cabinet. On
January 7, 1981 a memorandum was prepared for the consideration of the Cabinet explaining
the need for more Five Star Hotels in Calcutta and the benefits flowing out of the construction
and establishment of such five star hotels. It was suggested that the Hastings House property
may be leased to the ITDC Group and the Begumbari property to the Taj Group of Hotels. In
regard to the Begumbari property, it was stated: “From the property of the Zoological
Gardens on the Belvedere Road it is possible to carve out about four acres of land currently
used for dumping garbage and also for growing grass for the elephants. It will be necessary
and in any case advisable to shift the dumping ground, while adequate space can be made
available for growing grass elsewhere in the same area.” It was stated that the Finance and
Tourism Departments had agreed to the proposal to lease the properties to the ITDC and the
Taj Group respectively. It was stated that though the Forest Department had suggested that
Salt Lake was a better place for establishing a Five Star Hotel, there was no demand for a
Five Star Hotel in that area and the request for a hotel in Salt Lake was confined to a Three
Star Hotel. Cabinet approval was sought for the offers to be made to the ITDC and to the Taj
Group and for the constitution of a suitable committee to undertake negotiations with the two
groups - On February 12, 1981, the Cabinet took a decision approving the proposal contained in
the last paragraph of the Cabinet Memorandum, thus clearing the way for negotiations with
the Taj Group. - Meanwhile, it appeared that the Public Undertakings Committee appointed by the West
Bengal Legislative Assembly submitted a report on February 14, 1981 about the zoo in which
they stated:
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Originally this zoo was on the outskirts of the city but the city has grown in such
a fashion that the zoo has virtually become the city centre and there is hardly any
scope for its expansion. The zoo is situated on the left bank of the Tolly’s Nalla
divided with two parts on either side of the Alipore Road. The zoo proper is about 40
acres on the western side, while the eastern part comprises the zoo hospital, audiovisual centre, acquarium, zoo store and staff quarters. The Committee was informed
that nowadays migratory birds were coming less in number though previously more
foreign birds used to come here and in the opinion of the Managing Committee, the
main reason for this was due to air and sound pollution. Breeding potentialities of
animals and birds have been retarded due to constant stress and strain on the animals
and also due to atmospheric reasons …. The Committee came to learn that a big hotel
was proposed to be constructed on the plot of land where fodder for elephant are
being grown to meet at least a portion of the elephants’ food. Moreover, the staff
quarters, hospitals for animals and the morgue are also situated near the said plot of
land. If the proposed hotel is set up, all the existing buildings, viz. hospital, morgue
etc. would have to be shifted to the main gardens resulting in unhealthy atmosphere
for the zoo animals and also hampering the beauty of the Zoo Gardens. This would
also create problems to the staff quarters and aquarium.
The Committee also referred to a proposal to establish a ‘subsidiary zoo’ some slight
distance from Calcutta city and the request said to have been made for the allotment of 200
acres of land for that purpose. It was suggested that the Government may consider
abandoning the proposal to set up a hotel on the eastern side of the zoo. - The Chief Town Planner also visited the site at the request of the Secretary,
Metropolitan Development Department. The inspection was made in the presence of the
Director of the zoo. The Chief Town Planner thought that 2 to 2 1/2 acres of land only might
be made available for the hotel. He expressed the apprehension that if four acres of land were
to be given for construction of a hotel, then the entire hospital and the dumping ground would
have to be removed and the southern boundary of the hotel would come very close to the
residential block. - On March 19, the Taj Group submitted a proposal to the Government containing
fairly detailed information about the tourism industry and its needs, the situation in Calcutta,
the realities of hotel construction, the facts relating to what had been done in other cities, the
benefits flowing out of the construction of hotels and their own proposals for constructing a
hotel in the four acres of land in Belvedere Road. Two alternative financial arrangements
were suggested. The first alternative was the payment of annual rent on the basis of the
valuation of the land, the second alternative was based on the concept of net sales, net sales
being defined as sales after deducting all taxes and levies and service charges. The
Metropolitan Development Department expressed a preference for the second alternative and
suggested the constitution of a committee. The Finance Department also approved. The Taj
Group was invited to send the financial projection on the basis of the second alternative.
Correspondence went on. On June 5, 1981, a Committee of Secretaries was formally
constituted.
138 - In the meanwhile, WEBCON, a West Bengal Government Consultancy Undertaking,
was asked to examine the proposals and to advise the Government. The WEBCON submitted
its report on July 14, 1981 and on the request of the Committee of Secretaries a further report
was submitted on July 22, 1981. The report of WEBCON is a comprehensive report on
various topics connected with the establishment of a Five Star Hotel in Calcutta. Among other
things the report also suggested various financial alternatives and recommended the second
alternative based on net sales as the best. It is to be mentioned here that even by February 21,
1981 the proposal to lease out the Begumbari land to the Taj Group of Hotels had become
public knowledge and newspapers carried reports on the same. - On June 9, 1981, the Secretary of the Animal Husbandry and Veterinary Services
Department complained to the Secretary of the Metropolitan Development Department that
they were not aware of the decision to lease the Begumbari land. The Secretary, Metropolitan
Development Department made an endorsement on the letter to the effect that the Minister for
Animal Husbandry and Veterinary Services had himself visited the site. In fact, as we have
seen, the matter had been considered and approved by the Cabinet itself and all departments
must necessarily have been appraised of the proposal. - While so, the Managing Committee of the Zoo, on June 11, 1981, passed a resolution
expressing itself against the proposal to construct a hotel on land belonging to the zoo. The
resolution said:
The proposal for soil testing of zoo land in the Begumbari Compound for the
purpose of construction of Five Star Hotel was discussed in the meeting. The
Committee resolved that construction of a multi-storied building in the near vicinity
of the zoo will be highly detrimental to the animals of the zoo, its ecological balance
and adversely affect the bird migration which is one of the greatest attractions of the
zoo. The area proposed to be taken for hotel construction is already used by the zoo
for fodder cultivation, burial ground for dead animals, animal hospital, operation
theatre, quarantine area, segregation wards, post-mortem room and nursery both for
zoo animals and horticultural section. These essential services cannot be
accommodated within the campus of the main zoo for risk of spreading of infection
to other animals of the zoo. Procurement of green fodder for the large number of
herbivorous animals of the zoo is already a serious problem for the zoo and any
disturbance to fodder cultivation will aggravate the situation. The Calcutta zoo has
the smallest area in comparison to other reputed zoo. The Committee is of a opinion
that no portion of zoo land can be parted with for any other purpose. This being the
position soil testing will hardly be of any avail as the zoo cannot spare the land. Shri
Ashoka Basu, MLA, Shri K.P. Banerjee and Shri A.K. Das abstained from
participation in the proceedings.
The Minister for Metropolitan Development submitted a note to the Chief Minister on the
resolution of the Managing Committee of the zoo. He pointed out that even if four acres out
of the eight acres of Begumbari land was given to the Taj Group, there would still remain
sufficient land for accommodation of the facilities. He added that the Managing Committee’s
resolution was not binding on the Government and suggested that the Director of the zoo
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might be asked to allow the Taj Group to undertake soil testing etc. so that work may proceed
according to the time schedule. The Chief Minister endorsed the following:
I agree. It is unfortunate that we have not been able to accept the contentions of
the Managing Committee. If further facilities are necessary for the Zoo, the
government will provide them.
On June 25, 1981, the Managing Committee of the zoo met again and passed another
resolution by which they withdrew their earlier objections. The resolution stated:
In view of the letter issued to the Zoological Gardens, Alipore and the Cabinet
decision regarding the land of Begumbari Compound and in consideration of the
assurance conveyed through Shri Ashoka Bose, Chief Whip and Member that the
State Government will give to the Garden adjacent lands and matching grants for the
purposes of shifting of the departments of the zoo within the aid compound, the
Members do not press their objections as contained in the resolution of the Managing
Committee held on June 11, 1981.
This was passed by the majority of the Members present, the President Justice
Shri R.K. Banerjee dissenting. - Presumably as a consequence of the letter from the Director of the zoo there was a
note by the Secretary, Animal Husbandry and Veterinary Services Department suggesting the
postponement of the implementation of the Cabinet decision till the necessary facilities then
available at Begumbari land were shifted to other land of the same extent within a reasonable
distance from the Zoological Garden, as those facilities were originally linked with the zoo.
He pointed out that the Metropolitan Development Department had not consulted the Animal
Husbandry Department before the Cabinet note was prepared and circulated. So the practical
problems of the zoo did not receive detailed consideration earlier. The note also pointed out
that immediate transfer of the four acre plot of land would mean discontinuance of existing
hospital facilities, research laboratory, operation theatre, segregation wards, quarantine
facilities etc. A reference was also made to the report of Public Undertakings Committee. - Meanwhile negotiations with Taj Group proceeded apace. The WEBCON submitted
further reports. Taj Group suggested further modifications. On September 9, 1981 a detailed
memorandum was prepared for Cabinet discussion. Two alternative financial proposals were
set out. A reference was made to the Committee of Secretaries who negotiated with the Taj
Group of Hotels. Note was taken of the suggestion of the Negotiation Committee that the
overall development plan for the environmental beautification, widening of approach roads,
landscaping of Tolly’s Nullah were responsibilities of the State Government and estimated to
cost Rs 2 crores but that it was expected to be of considerable public benefit. Stress was laid
on the direct and indirect economic activities which would be generated by the establishment
of a Five Star Hotel. Reference was also made to the report of WEBCON and it was noted
that the projected profitability of the venture to the Government was expected to be high. It
was also mentioned that the Ministers in charge of Tourism, Animal Husbandry, Land
Revenue and Finance had seen the note and had agreed to it. On September 10, 1981 the
Cabinet took the final decision to grant a ninety-nine years lease of the four acres of
Begumbari land to the Taj Group of Hotels. On September 28, 1981 the Government of West
140
Bengal officially conveyed its acceptance of the proposal of the Taj Group of Hotels for the
construction of a Five Star Hotel. The terms and conditions of the lease were set out. On
January 7, 1982, there was a joint meeting of the Establishment and Finance sub-committees
of the Zoo and it was decided to recommend to the Committee of management that the
demarcated area of four acres may be relinquished in favour of Animal Husbandry and
Veterinary Services Department subject to the requirement that the zoo will continue to get
the services and facilities in the existing structures until they were reconstructed on the
adjacent land. On January 11, 1982 the Managing Committee endorsed the view of the subcommittees and this was communicated to the Government. On January 15, 1982, the
Government of West Bengal wrote to the Land Acquisition Officer, with copies to the Taj
Group of Hotels, directing the Land Acquisition Officer to give possession of the land to the
Taj Group of Hotels subject to their later executing a proper long-term lease. It was
mentioned in the letter that the construction of the hotel should not be started till the lease
deed was executed and registered. It was further expressly stipulated as follows:
The Alipore Zoological Garden will continue to get the services and facilities
from the existing essential structures which fall within the demarcated area in the
annexed sketch map till such time when these essential structures i.e. hospital and
operation theatre are reconstructed on the adjacent land occupied by the Zoological
Garden. A copy of the sketch map is enclosed for ready reference. The Indian Hotels
Co. Ltd. will find out in consultation with and with the concurrence of the Animal
Husbandry and Veterinary Services Department of this Government and the
authorities of the Alipore Zoological Garden the period of time required for
reconstruction of the essential structures standing on the land proposed to be leased
out to the said Company. It will also let this Department have in consultation with
and with the concurrence of the Animal Husbandry and Veterinary Services
Department of this Government and the Alipore Zoological Garden a plan and
estimate for reconstruction of the aforesaid essential structures on the land adjacent to
the land proposed to be leased out, so that all these points are incorporated in the
deed of lease between the said Company and the State Government in this
department for the said land measuring four acres.
As agreed by the said Company during the various meetings its representatives
had with various departments of this government, the company will either place the
necessary fund in the hands of Animal Husbandry and Veterinary Services
Department or the Zoo Garden authorities, as the case may be, for reconstruction of
the aforesaid essential structures or reconstruct the aforesaid essential structures
under its own supervision to the satisfaction of the Zoo Garden authorities or Animal
Husbandry and Veterinary Services Department as the case may be; such funds will
in either case be advanced or deemed to be advanced by the Company without
interest to be adjusted against dues of the State Government in accordance with the
terms and conditions of the lease. - It is to be noted here that though the stipulation was that the cost of new construction
was to be initially met by Taj Group of Hotels and later to be adjusted against the rent payable
by Taj Group, the Taj Group later agreed to waive such reimbursement. We are told that a
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total sum of Rs 30 lakhs has now been spent by Taj Group of Hotels in connection with the
reconstruction. We are also told that an extent of 288 square meters out of the plot given to
the Taj Group was carved out and given back for accommodating part of the reconstructed
structures. Pursuant to the letter dated January 15, 1982 possession was given to Taj Group on
January 16, 1982. Thereafter an Expert Committee was constituted to supervise the
construction of alternative facilities. At that stage the writ petition out of which the present
appeal arises was filed on February 26, 1982. Initially the relief sought was primarily to
restrain the zoo authorities from giving effect to the two resolutions dated January 7, 1982 and
January 11, 1982 to hand over the four acres to the Animal Husbandry Department of the
Government. Subsequent to the filing of the writ petition, a lease deed was executed by the
Taj Group of Hotels in favour of the Government. The writ petition was therefore, amended
and a prayer for cancellation of the lease deed was added. First a learned Single Judge
dismissed the writ petition. On appeal, a Division Bench of the High Court confirmed the
judgment of the learned Single Judge. The original petitioners are now before us having
obtained special leave under Article 136 of the Constitution. - Before adverting to the submission of the learned counsel, it is necessary, at this
juncture, to refer to certain correspondence. On April 23, 1982, Late Smt. Indira Gandhi,
Prime Minister of India wrote to Shri Jyoti Basu, Chief Minister of West Bengal expressing
the hope that he would not allow the Calcutta Zoo to suffer in any manner and would leave it
intact. She drew the Chief Minister’s attention to the fact that “apart from reduction in the
already inadequate space for the Zoological Garden construction of a Five Star multi-storeyed
building would disturb the inmates and adversely affect bird migration which was a great
attraction”. She also mentioned that the Expert Committee of the Indian Board for Wild Life
also unanimously disapproved the idea. She queried whether the hotel could not be located
elsewhere. For one reason or the other the Prime Minister’s letter did not reach the Chief
Minister for a considerable time. On August 21, 1982 the Chief Minister sent his reply
pointing out that the four acres of land were agreed to be relinquished by the Committee of
Management of the Zoological Garden on condition that alternate arrangements were made
for shifting the existing structures which were necessary for the zoo from the plot in question
to the adjacent plot. The Chief Minister also mentioned that there appeared to be some
misconception that the plot in question was a part of the Zoo Garden. It was not so. It was
outside the Zoological Garden and separated from it by a 80-100 feet road. The Chief
Minister assured the Prime Minister that the existing structures would be relocated on the
adjacent land and until that was done the zoo would continue to get their services and
facilities from the existing structures. The Chief Minister further drew the attention of the
Prime Minister to the fact that the hotel was likely to be a six storeyed one and would not be
the only tall building near the zoo. There were already a large number of highrise residential
buildings around the zoo. No one had raised any objection when those buildings were
constituted. Another multi-storeyed building which was going to be the largest in the locality
was under construction near the zoo for the Post and Telegraph Department. There was no
report that the existing multi-storeyed buildings had any adverse effect on the migratory birds
or the animals. The Chief Minister also pointed out that the lessee and their experts on wild
life had assured them that in any case adequate precaution would be taken in regard to
illumination of the hotel and the lay out of the surroundings so that no disturbance would be
142
caused to the flight path of the birds or animals. On August 30, 1982, Shri J.R.D. Tata wrote
to the Prime Minister pointing out that their hotel management had discussed the matter at
length with representatives of the Wild Life Fund who were satisfied that the proposed hotel
would cause no disturbance to the birds. He had again gone thoroughly into the project with
special reference to its possible impact on the birds or environment and had also visited
Calcutta in that connection. He was satisfied that the project could not possibly disturb birds
using the lake or interfere with their free movement. He gave his reasons as follows:
The four acre plot assigned to the Hotel Company by the State Government is not
within the boundaries of the area belonging to the Zoological Gardens but on the
other side of Belvedere Road, an important thoroughfare parallel to the main
boundary of the zoo and some 700 feet from the main part of the lake. It forms part of
an area belonging to the State Government which the zoo authorities have up to now
been allowed to use to look after sick animals of the zoo and as labour quarters. It
contains five small structures including a cage and a small veterinary laboratory or
dispensary. The whole area is in shockingly unkept condition, most of it covered by a
single or spear grass and other wild growth.
The hotel is planned to be built away from the frontage of that plot of Belvedere
Road and to be low rise structure, the highest point of which will not exceed 75 feet.
Dr B. Biswas, a renowned ornithologist, who recently retired as Professor
Emeritus of the Zoological Survey of India, whom the Taj Management consulted,
confirmed that a 75 feet high building on the location would not worry birds landing
on the lake or climbing out of it. In fact, as the grounds of the zoo between the take
and Belvedere Road are covered with high trees, the climbing or descent angle which
the birds have to negotiate to get over the trees is already steeper than it will be
between the lake and the proposed hotel.
As regards the objection that arise from the hotel itself from vehicular traffic to
and from the hotel would disturb the birds, the hotel will be totally airconditioned so
that no noise will emanate from it, while noise from the heavy traffic on Belvedere
Road does not seem it have bothered the birds up to now. The occasional additional
cars plying into and out of the hotel could therefore hardly trouble birds resting on
the lake some 250 yards away.
Regarding the fear that lights emanating from the hotel or illuminated signs of the
hotel would disorient the birds and possibly cause them to hit the building the
management of the Hotel Company has taken a firm decision that there will be no bright
lights or neon signs emanating from the hotel.
Shri Tata further suggested that if necessary the Prime Minister could appoint a small
advisory committee consisting of Shri Pushpa Kumar, Director of the Hyderabad Zoo
considered to be the finest zoo in India and one of the best in Asia, Dr Biswas, Mrs Anne
Wright and the Chairman of the Managing Committee of the Zoological Garden to advise on
the subject. On September 1, 1982, Smt Indira Gandhi wrote to Mr Tata expressing her
happiness that the hotel was not going to upset the zoo animals and welcoming his offer to
help the State Government to improve the zoo’s facilities.
143 - We are unable to agree with the submission of Dr Singhvi, learned counsel for the
appellants, that the Government of West Bengal decided to grant the lease of the Begumbari
land to the Taj Group of Hotels without applying their mind to very important relevant
considerations. Much of the argument on this question was based on the assumption that the
decision to lease the Begumbari land to the Taj Group of Hotels was taken on February 12, - The decision taken by the Cabinet on February 12, 1981 was merely to enter into
negotiations with the ITDC and the Taj Group of Hotels in regard to leasing the Hastings
House property and the Begumbari land. Negotiations with the ITDC did not fructify while
negotiations with the Taj Group of Hotels fruitioned. It was on September 10, 1981 that the
Cabinet finally took the decision to lease the Begumbari land to the Taj Group. If there was
any decision on February 12, 1981 in regard to leasing the Begumbari land it could at best be
characterised as purely tentative and it could not by any stretch of imagination be called an
irrevocable or irreversible decision in the sense that the Government was powerless to revoke
it or that it had created any rights in anyone so as to entitle that person to question any
reversal of the tentative decision. It was not a decision, if it was one, on which any right could
be hung. At that stage, the Government of West Bengal appeared to have been on the search
for two suitable plots of land which could be offered, one to the ITDC and the other to the Taj
Group of Hotels for the construction of Five Star Hotels. The record shows that these two
chain hoteliers were the only hoteliers – and, they certainly were leading hoteliers of the
country – who had come forward to negotiate with the West Bengal Government regarding the
construction of Five Star Hotels. The city of Calcutta was noticeably lacking in the “Five Star
Hotel amenity” to attract tourists, local and foreign, and the Government of West Bengal was
anxious to do its best to promote the tourist industry which it was hoped, would provide direct
and indirect employment, earn foreign exchange and confer other economic benefits to the
people of the State. It is immaterial whether the move came first from the Government or
from the Taj Group. The Government was anxious that more Five Star Hotels should be
established at Calcutta and the Taj Group was willing to establish one. They wanted a suitable
plot for its construction. It was the suggestion of the All India Tourism Conference presided
over by the Union Minister for Tourism that State Governments should make plots in good
locations available at concessional rates for construction of hotels in order to promote the
tourist industry. It was in pursuance of this general all-India policy and, in particular, to fulfil
the felt needs of Calcutta that the Government of West Bengal was looking out for a suitable
plot in a good location. They were clearly not doing so at the behest of the Taj Group of
Hotels. It does not require much imagination to say that location is among the most important
factors to be considered when constructing a Five Star Hotel, particularly if it is to promote
tourism. Obviously, one place is not as good as another and the place has to be carefully
chosen. After excluding Salt Lake and after considering some properties in Chowringhee, the
Government felt that two properties, the Hastings House property and the Begumbari property
could be thought of as meeting the requirements. Since the Hastings House property was not
found acceptable by the Taj Group, it was decided to negotiate with them in regard to
construction of a Five Star Hotel on the Begumbari land. We find it difficult to treat this
decision to negotiate with the Taj Group in regard to construction of a Five Star Hotel on the
Begumbari land as a final decision to part with the land. The prominent use to which the land
was evidently put at that time was as a dumping ground for refuse and rubbish and for
144
growing fodder for elephants. This was noticed and mentioned in the note prepared for the
consideration of the Cabinet and it was suggested that separate provision would have to be
made for them. Therefore, it is clear that it was not forgotten that if the land was to be allotted
to the Taj Group, separate provision would have to be made for whatever use the land was
being put to them. The Government was not unmindful of the interests and requirements of
the Zoological Garden though at that stage no detailed investigations had apparently been
made. The decision of the Government was not one of those mysterious decisions taken in the
shrouded secrecy of Ministerial Chambers. It appears to have been taken openly with no
attempt at secrecy. The decision, perhaps proposal would be a more appropriate word, was
known to the Public Undertakings Committee in less than two days. They expressly refer to it
in their report dated February 14, 1981 made two days after the Cabinet decision. By twentyfirst February it was public knowledge and news of the proposal was published in the daily
newspapers. We have no evidence of any immediate or subsequent public protest but there
were certain objections from some circles. Earlier we have extracted the report of Public
Undertakings Committee. The substance of the objection of the Public Undertakings
Committee was that the facilities available in the Begumbari land would be left unprovided
for if the land was given to the proposed hotel. The available facilities were mentioned as
staff quarters, hospital for animals, burial ground for animals, fodder for elephants etc. It was
also said that if the hospital and the burial ground were to be shifted to the main garden it
would result in an unhealthy atmosphere for the animals and the zoo and would detract from
the beauty of the Zoo Garden. The assumption of the Public Undertakings Committee that the
hospital and the burial ground were to be shifted to the main garden was baseless, since there
was never any such proposal. A modern zoo hospital for animals has been constructed in the
remaining extent of Begumbari land replacing the old hospital which was housed in a semidilapidated building. Surely, there should be no complaint about it. It has also been proposed
to shift the burial ground elsewhere. That would be most desirable from any point of view.
Fodder for elephants should not again be considered to be a problem. It would be stretching
credibility to suggest that it is necessary to grow fodder in the Begumbari land to feed the
elephants in the zoo. Fodder may be bought and brought from elsewhere. The Chief Town
Planner who was deputed to visit the site at the request of the Secretary, Metropolitan
Development Department and who visited the zoo accompanied by the Director of the zoo
reported that 2 to 2 1/2 acres of land might be made available for the hotel. If four acres of
land were given, he expressed the apprehension that the hospital and the dumping ground
would have to be moved elsewhere. The hospital as we have already mentioned has since
been conveniently and comfortably accommodated in a new building and the proposal is to
move the dumping ground elsewhere. The Managing Committee of the zoo also initially
expressed its opposition to the proposal to construe a hotel on land belonging to the zoo. The
Committee’s objections were twofold: (1) A multi-storied building in the vicinity of the zoo
will disturb the animals and the ecological balance and will affect the bird migration (2) the
land was already used for various purposes, that is, fodder cultivation, burial ground for
animals, hospital, operation theatre, quarantine area, post-mortem room and nursery. It would
be impossible, according to the Committee to accommodate these essential services within the
campus of the main zoo. The objections of the Managing Committee were first brought to the
notice of the Minister for Metropolitan Development who submitted a note to the Chief
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Minister pointing out that even if four acres of land out of the eight acres of Begumbari land
was given to the Taj Group, there would still remain sufficient land for accommodating the
existing facilities. The Chief Minister considered the objections and noted that if further
facilities were necessary for the zoo, Government would provide them. Thereafter the
Managing Committee reversed its earlier stand and agreed to the proposal on the assurance
that adjacent land and matching grants would be given to the zoo. We have earlier referred to
the letter of the Director of the Zoo dated June 29, 1981 addressed to the Secretary, Animal
Husbandry Department where he expressed his opposition to the proposal on the ground that
the zoo could not be run for a single day without the essential services which were being
provided in the four acres of land proposed to be given for the hotel. This again, we notice, is
based on the assumption that there was going to be no provision for those facilities once the
hotel was constructed. We have already pointed out that this assumption is wholly incorrect.
The letter of the Director of the zoo was followed by a note by the Secretary of the Animal
Husbandry Department suggesting that the practical problems of the zoo should receive
detailed consideration and that the immediate transfer of the land to the hotel would mean
discontinuance of the existing facilities. In the face of all this material, we do not see how it
can be seriously contended that the interests and the requirements of the zoo were totally
ignored and not kept in mind when the decision was taken to lease the land to the Taj Group
of Hotels. The Chief Minister’s attention was expressly drawn to the Managing Committee’s
first resolution expressing its opposition to the proposal to give the land for the construction
of a hotel and detailing the objections and the Chief Minister had expressly noted that all
facilities necessary for the zoo would be provided by the Government. The assurance was also
conveyed to the Managing Committee through the emissaries of the Chief Minister. There
were inter-departmental notings which we presume must also have been brought to the notice
of the Chief Minister. We find it impossible to agree with the stricture that the Chief Minister
turned a blind eye and a deaf ear to the interests and the requirements of the zoo and went
about the question of allotment of land to the Taj Group of Hotels determined to give the land
to them and with a mind closed to everything else. We cannot do so in the face of the
assurance of the Chief Minister that facilities would be provided for the zoo and if, as the
saying goes, the proof of the pudding is in the eating, the Chief Minister’s assurances are
found reflected in the lease executed by the Taj Group of Hotels in favour of the Government
of West Bengal.
In clause 25 of the lease deed, it is expressly stipulated that the lessee shall reconstruct the
structures now existing on the demised land (as found in the sketch accompanying the deed)
on the adjacent plot of land and that the plan, design, lay out, estimates, etc. of the proposed
new structures should be supplied by the Alipur Zoological Garden to the lessee. The
reconstructed structures were required to be equal to the existing ones in floor area, but it was
open to them to increase the floor area by agreement. The amount expended by the lessee
towards the reconstruction of the structures was to be adjusted without interest against the
dues of the lessee to the Government. The Alipore Zoological Garden authorities were
required to vacate the existing structure within a period of six months which was also the
period stipulated for raising the new constructions. We may add here that the Taj Group of
Hotels have spent a sum of Rs 30 lakhs towards the cost of the new constructions, but that
they have waived their right to claim reimbursement from the government. An affidavit to
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that effect was also filed before the trial court. Thus we see that the contention of the
appellants that the Government of West Bengal had no thought to spare for the facilities
which were till then being provided in the Begumbari land is unsustainable. The learned
counsel for the appellants urged that the second cabinet memorandum dated September 9,
1981 on which date the Government took the final decision to grant the lease made no
mention of the needs and interests of the zoo or the facilities provided in the Begumbari land
for the zoo. It is true that there is no reference to these matters in the second cabinet
memorandum. But that is for the obvious reason that the matter had already been the subjectmatter of inter-departmental discussion and communication. The Managing Committee of the
zoo which had initially opposed the proposal had also come round and had agreed to the
proposal. It was, therefore, thought that there was no need to mention the needs and interests
of the zoo which were already well known and had also received consideration. - It was suggested that the zoo itself required to be expanded and there was, therefore,
no land which could be spared. The land allotted to the hotel was, as we have seen, not used
for the main purpose of the zoo and was not in fact part of the main Zoological Garden. The
Government had already in mind a proposal to start a subsidiary zoo in an extent of about 200
acres of land in the outskirts of Calcutta. This has been mentioned in the various notings made
from time to time. We have no doubt that the Government was quite alive to the need for
expansion of the zoo when they decided to grant four acres of the Begumbari land which was
not used for the main purpose of the zoo for the construction of a Five Star Hotel. - The next question is whether the Government was alive to the ecological
considerations, particularly to the question of the migratory birds when they took the decision
to lease the land to the Taj Group of Hotels. Again sustenance to the argument of the learned
counsel for the appellants is sought to be drawn from the circumstance that neither of the two
Cabinet Memoranda dated January 7, 1981 and September 9, 1981 referred to the migratory
birds. It is wrong to think that everything that is not mentioned in the cabinet memoranda did
not receive consideration by the government. We must remember that the process of choosing
and allotting the land to the Taj Group of Hotels took nearly two years, during the course of
which objections of various kinds were raised from time to time. It was not necessary that
every one of these objections should have been mentioned and considered in each of the
cabinet memoranda. The question of the migratory birds was first raised in the resolution of
the Managing Committee dated June 11, 1981. This resolution was forwarded to the Chief
Minister and considered by him as evident from the note of the Chief Minister and the
subsequent reversal of the Managing Committee’s resolution at the instance of the Chief
Minister and on his assurances. The Chief Minister was certainly aware of the question of the
migratory birds before it was finally decided to allot the Begumbari land to the Taj Group of
Hotels. That the Government was aware of the dissension based on the alleged obstruction
likely to be caused by a multi-storeyed building to the flight of the migratory birds appears
from the letter of the Chief Minister to the Prime Minister. In this letter, the Chief Minister
pointed out that there were already in existence a number of multi-storeyed buildings all
around the Zoological Garden, but there was no report that they had any adverse effect on the
migratory birds or the animals. He also pointed out that all precautions would be taken in the
matter of illumination of the hotel and lay out of the surroundings so that no disturbance
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would be caused to the flight path of the birds or animals. Shri J.R.D. Tata, on behalf of the
Taj Group of Hotels, also wrote to the late Prime Minister assuring her that the hotel
management had discussed the matter at length with a representative of the Wild Life Fund
who, after discussion, had been satisfied that the proposed hotel would cause no disturbance
to the birds. He further assured her that he had himself gone thoroughly into the project with
special reference to the possible impact on the birds and the environment and had satisfied
himself that the project would not cause any disturbance to the birds or their free movement.
The reasons given by him have already been extracted earlier by us from his letter. He pointed
out that the four acre plot was not within the main Zoological Garden, but was separated from
it by the Belvedere Road which was an important thoroughfare in the city. It was about 700
feet from the main part of the lake. The hotel was proposed to be built away from the frontage
of the plot in Belvedere Road and was to be a low rise structure, the highest point of which
would not exceed 75 feet. This was mentioned apparently to indicate that the building would
not come within the trajectory of the birds. He mentioned that Dr Biswas, a renowned
ornithologist had also been consulted by the Taj Management and he had also confirmed that
a 75 feet building would not interfere with the landing or climbing out of the birds from the
lake. He further mentioned that the grounds of the zoo between the lake and the Belvedere
Road were covered with tall trees and that the birds negotiating the trees would have to fly at
a steeper angle than it would be necessary to negotiate the proposed hotel. The vehicular
traffic on Belvedere Road which was also heavy did not bother the birds and the slight
increase of the vehicular traffic consequent on the construction of the hotel was also not likely
to bother them either. It was also pointed out that particular care would be taken in the matter
of illumination of the hotel so that bright lights or neon signs emanating from the hotel would
not disturb the birds and animals. - We are satisfied that the question of obstruction which may be caused to migratory
birds did not go unnoticed by the government before the decision to lease the land was taken
and we are also satisfied that the building of the proposed hotel is not likely to cause any
obstruction to the flight path of the migratory birds. - 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. - On a consideration of the relevant cases cited at the Bar the following propositions
may be taken as well established: State-owned or public-owned property is not to be dealt
with at the absolute discretion of the executive. Certain precepts and principles have to be
observed. Public interest is the paramount consideration. One of the methods of securing the
public interest, when it is considered necessary to dispose of a property, is to sell the property
by public auction or by inviting tenders. Though that is the ordinary rule, it is not an
invariable rule. There may be situations where there are compelling reasons necessitating
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departure from the rule but then the reasons for the departure must be rational and should not
be suggestive of discrimination. Appearance of public justice is as important as doing justice.
Nothing should be done which gives an appearance of bias, jobbery or nepotism. - Applying these tests, we find it is impossible to hold that the Government of West
Bengal did not act with probity in not inviting tenders or in not holding a public auction but
negotiating straightway at arm’s length with the Taj Group of Hotels. - The last and final submission of the learned counsel for the appellants relates to the
commercial and financial aspects of the lease. According to the learned counsel, the “net
sales” method of calculating the compensation payable to the Government for the lease of the
land has totally sacrificed the State’s interests. He submits that if the market value of the land
had been fairly determined and the rent had been stipulated at a percentage of that value, the
return to the Government would have been much higher. We do not think that there is any
basis for any genuine criticism. The “net sales” method appears to be a fairly well known
method adopted in similar situations. This was what was recommended by WEBCON, the
consulting agency of the West Bengal Government who submitted a detailed report on the
subject. This was also the recommendation of the Committee of Secretaries who went into the
matter in depth. Even to lay persons like us who are no financial experts, it appears that the
“net sales” method does and the rent-based-on-market-value method does not take into
account the appreciating value of land, the inflationary tendency of prices and the profit
orientation. Even on a prima facie view, there appears to be nothing wrong or objectionable in
the “net sales” method. It is profit-oriented and appears to be in the best interests of the
Government of West Bengal. - On a consideration of all the facts and circumstances of the case, we are satisfied that
the Government of West Bengal acted perfectly bona fide in granting the lease of Begumbari
land to the Taj Group of Hotels for the construction of a Five Star hotel in Calcutta. The
Government of West Bengal did not fail to take into account any relevant consideration. Its
action was not against the interests of the Zoological Garden or not in the best interests of the
animal inmates of the zoo or migrant birds visiting the zoo. The financial interests of the State
were in no way sacrificed either by not inviting tenders or holding a public auction or by
adopting the “net sales” method. In the result, the judgments of the learned Single Judge and
the Division Bench of the Calcutta High Court are affirmed and the appeal is dismissed.
