Nijjar, CJ. - (1.) 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".
(2.) 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 v. 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. You cannot scratch a painting and not diminish its beauty. We will quote the whole of it: "How can you buy or sell the sky, the warmth of the land? The idea is strange to us. If we do not own the freshness of the air and the sparkle of the water, how can you buy them? Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in 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 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."; 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.l.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 CM. 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."
(3.) 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. (Hi) 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 snackbar, 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 countrywide participation to impart a flavour of national integration as well as to promote talents from far and near.";