PETITIONER: <NAME> Vs. RESPONDENT: STATE OF WEST BENGAL & ORS. DATE OF JUDGMENT11/02/1987 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) KHALID, V. (J) CITATION: 1987 AIR 1109 1987 SCR (2) 223 1987 SCC (2) 295 JT 1987 (1) 425 1987 SCALE (1)311 CITATOR INFO : R 1988 SC 157 (8,12) F 1989 SC 549 (15) R 1989 SC 860 (20) RF 1991 SC 983 (2) ACT: Environmental law-Interference by <ORG> with the policy decision of government, whenever a problem of ecology is brought before it, extent of-Constitution of India, 1950, Articles 32, 48A, 51A(g)--Whether the Govern- ment of West Bengal was not alive to the ecological consid- erations, particularly the question of the migratory birds and whether has shown such lack of awareness in making an allotment of land to boost tourism by construction of <ORG> to the detriment of <ORG>logical garden. <ORG> Memoranda dated January 7, 1981 and Sep. 9, 1981 allotting land for the construction of <ORG> to <ORG>--Whether should contain every item considered and whether non-mention lead to adverse presump- tion that a particular point was not considered. Natural justice, principle-Whether the principle of natural justice is said to be violated on the ground that those who are most interested in the <ORG>logical garden were not heard before the decision was taken. New plea in <ORG> for the first time--Public document, evidentiary value of--Documents received admitted and relied on both by <ORG> of <ORG>--Plea of authenticity of the document and objec- tion to its reception, cannot be allowed in an appeal under Article 136 of the Constitution. The Bengal Public Parks Act, 1904, Preamble Sections 3 and 4 scope and applicability. West Bengal Land Management Manual, 1977, Paragraphs 165, 166, 167, applicability of-Whether the procedure pre- scribed therein not being followed, the transfer of the land to <ORG> is bad. Disposal by Public auction or by inviting tenders- Whether bound to be followed by the <ORG>, in pursuing the socio-economic objectives enshrined in the Constitution. 224 Public Interest Litigation, parameters delineation need for stressed. HEADNOTE: There is in Calcutta, a <ORG>logical garden located in Alipore, now almost the heart of Calcutta, on either side of Belvedere Road, one of Calcutta's main arterial roads, fortynine acres of land on one side and eight acres on the other. The main zoo is in the fortynine acres block of land. The said eight acres of land was outside the <ORG>logical garden and separated from it by a 80-100 feet road and is also known as the <NAME> land. The <NAME> land was given to the <ORG>logical garden in '1880. According to a letter written on July 7, 1880 by the Assistant Secretary to <ORG> in <ORG> to Mr. <NAME>, Honorary Secretary <ORG>logical garden conveying the sanction of the Lt. Governor for the transfer of the <NAME> land to the charge of <ORG>, on the terms agreed to by the <ORG> in their letter dated April 23, 1880, the conditions of the transfer were: "(i) that the land is to be used for the purpose of acclimatization only; (ii) that Carnivors are not to be kept on any part of it, on any account; (iii) that the grounds are to be kept clear and neat; (iv) that the land must be restored to the government if hereafter required, the <ORG>logical Garden <ORG> being reimbursed for any expenditure they may have incurred in building there." In this eight acres of land there are some old buildings and the vacant land was used for fodder cultivation,for raising flower nursery, as a sumping ground for huge garbages and as burial ground for dead animals. In January, 1979, the Director General of <ORG> Gov- ernment of India addressed a letter to the Chief Secretary Government of West Bengal conveying the Resolution of the <ORG> conference which was presided over by the Union Minister of <ORG> and attended by several <ORG> Ministers and requesting that land in good location may be made avail- able for construction of hotels in a drive to encourage tourism. In May, 1980, the <ORG> came forward with a suggestion that they would be able to construct a <ORG>. On September 29, 1980 and November 29, 1980, there were two notes by the Secretary of <ORG> to the effect that the <ORG> was interested in a property known as the Hastings House Properly and that the <ORG> who considered the Hastings House properly unsuitable may be offered four acres out of the eight acres of <NAME> land. On the same day the <ORG> wrote to <ORG> stating that the proposed land could be seriously considered for construction of a hotel. Thereafter, 225 the Chief Minister along with the Minister of <ORG> and the Minister for Metropolitan Development visited the site accompanied by the Director of the <ORG> to apparently knew about the proposal right from the start. A note was then prepared by the Secretary, <ORG> and put up to the Chief Minister for his approval. The Chief Minister approved the proposal and required it to be placed before the <ORG>. On January 7, 1981 a memorandum was prepared for the consideration of the <ORG> explaining the need for the more <ORG>s in Calcutta and the benefits flowing out of the construction and establishment of such <ORG>s and suggesting the lease of <ORG> Property to the <ORG> Group and the <NAME> property to the <ORG>. In regard to the <NAME> bari property, it was stated: "From the property of the <ORG>logical Gardens on the Belvedere Road it is possible to carve out about four acres of land currently used for dump- ing garbage and also for growing grass for the elephants. It will be necessary and in any case advisable to shift the dumping ground. While adequate space can be made available for growing grass elsewhere in the same area." It was stated that the <ORG> and <ORG> Departments had agreed to the proposal to lease the properties to the <ORG> and <ORG> respectively. It was stated that though <ORG> had suggested that Salt Lake was a better place for establishing a <ORG>, there was no demand for a <ORG> in that area and the request for a hotel in Salt Lake was confined to <ORG>. <ORG> approval was sought for the offers to be made to the <ORG> and to <ORG> and for the constitution of a suitable <ORG> to undertake negotiations with the two groups. On February 12, 1981, the <ORG> took a decision ap- proving the proposal contained in the last paragraph of the <ORG> Memorandum, thus clearing the way for negotiations with <ORG>. Meanwhile the Public Undertakings <ORG> appointed by <ORG> submitted a report on 14.2. 1981 about the <ORG>. While suggesting that the govern- ment may consider abandoning the proposal to set up a hotel on the eastern side of the zoo, the <ORG> also referred to a proposal to establish a "Subsidiary <ORG>" some slight distance from Calcutta and the request said to have been made for the allotment of 200 acres of land for that pur- pose. The Chief Town Planner who visited the site at the request of the Secretary, <ORG> and in the presence of the Director of the <ORG>, sug- gested that 2 to 2-1/2 acres of land might be 226 made available for the <ORG>. On March 19, 1981 <ORG> submitted a proposal to the government containing fairly detailed information about the tourism industry and its needs, the situation in Calcut- ta, the realities of <ORG> construction the facts relating to what had been done in other cities, the benefits i]owing out of the construction of hotels and their own proposals for constructing a hotel in the four acres of land in Belve- dere Road. Two alternative financial arrangements were suggested. The first alternative was the payment of annual rent on the basis of the valuation of the land, the second alternative was based on the concept of nett sales, nett sales being defined as sales after deducting all taxes and levies and service charges. <ORG> expressed a preference for the second alternative and suggested the constitution of a <ORG>. The <ORG> Department also approved. <ORG> was invited to send the financial projection on the basis of the second alterna- tive. Correspondence went on. On June 5, 1981 a <ORG> of Secretaries was formally constituted. In the meanwhile <ORG>, a West Bengal Government Consultancy Undertaking, was asked to examine the proposals and to advise the Govern- ment. On June 11, 1981, the Managing <ORG> of the <ORG> passed a resolution expressing itself against the proposal to construct a hotel on land belonging to the <ORG>. Accepting the note put up by <ORG> on the said resolution the Chief Minister minuted that "if further facilities are necessary for the zoo, the government will provide for them." On June 25, 1981, the Managing <ORG> met again and passed another resolution by which they withdrew their earlier objections dated 11.6.1981. On June 29, 1981, the Director of the <ORG>, who was a party to all the proceedings etc. right from the beginning wrote to the Secretary of <ORG> stating his objections to the proposal to lease the land for construction of a hotel. On July 14, 1981, the <ORG> submitted its report and on the request of the <ORG> of Secretaries a further report was submitted on July 22, 1981. The report of <ORG> is a comprehensive report on various topics connected with the establishment of a <ORG> in Calcutta. Among other things the report also suggested various financial alterna- tives and recommended the second alternative based on nett sales as the best. 227 Meanwhile negotiations with <ORG> proceeded apace. The <ORG> submitted further reports. <ORG> suggested further modifications. On September 9, 1981 a detailed memorandum was prepared for cabinet discussion. Two alterna- tive financial proposals were set out. A reference was made to the <ORG> of Secretaries who negotiated with the <ORG>. Note was taken of the suggestion of the Negotiation <ORG> that the overall development plan for the environmental beautification, widening of approach roads, landscaping of Tolley's Nullah were responsibilities of the <ORG> Government and estimated to cost Rs.2 crores but that it was expected to be of considerable public bene- fit. Stress was laid on the direct and indirect economic activities which would be generated by the establishment of a five Star <ORG>. Reference was also made to the report of <ORG> and it was noted that the projected profitability of the venture to the government was expected to be high. It was also mentioned that the Ministers, incharge of <ORG>, <ORG>, <ORG> and <ORG> had seen the note and had agreed to it. On September 10, 1981 the <ORG> took the final decision to grant a ninety-nine years lease of the four acres of <NAME> land to the <ORG>. On September 29, 1981 <ORG> officially conveyed its acceptance of the proposal of the <ORG> for the construction of a <ORG>. The terms and conditions of the lease were set out. On January 7. 1982, there was a joint meeting of the <ORG> and <ORG> sub-<ORG>s of the <ORG> and it was decided to recommend to the <ORG> of management that the demarcated area of four acres may be relinquished in favour of <ORG> subject to the requirement that the zoo will continue to get the services and the facilities in the existing structures until they were reconstructed on the adjacent land. On January 11, 1982 the Managing <ORG> endorsed the view of the sub-commit- tees and this was communicated to the government. On January 15, 1982, <ORG> wrote to <ORG>, with copies to the <ORG> directing <ORG> to give possession of the land to the <ORG> subject to their later executing a proper long term lease. It was mentioned in the letter that the construction of the <ORG> should not be started till the lease deed was executed and registered. Several other stipulations were also made. Though the stipu- lation was that the cost of the new construction was to be initially met by <ORG> and later to be adjust- ed against the rent payable by <ORG>, <ORG> later agreed to waive such reimbursement (in fact a total sum of Rs.30 lakhs has been spent by <ORG> in connections with the reconstruction. Not only this. land in the extent of 288 square 228 meters out of the plot given to them was carved out and given hack for accommodating part of the reconstructed structures. Pursuant to the letter dated January 15, 1982 possession was given to <ORG> on January 16, 1982. Thereafter an expert committee was constituted to supervise the construc- tion of alternative facilities. Five petitioners--a Trade Unionist, two life members of the <ORG>, two other bonafide residents of Greater Calcutta, all lovers of wild life--filed a petition in public interest on 26.2.1982. Initially the relief sought was primarily to restrain the <ORG> authorities from giving effect to the two Resolutions dated January 7, 1982 and January 17, 1982 to hand over the four acres to the <ORG> Department of the Government. Subsequent to the filing of the writ petition a lease deed was executed by the <ORG> in favour of the government. The Writ Petition was therefore amended and a prayer for cancellation was added. While the writ petition was pending in <ORG>, Late Smt. <NAME> wrote a letter to Sri <NAME>, the Chief Minister of West Bengal expressing the hope that he would not allow the Calcutta <ORG> to suffer in any manner and would leave it intact. The Chief Minister in his reply letter dated 21.8.82 pointed out that:(i) the four acres of land were agreed to be relinquished by the <ORG> of management of the <ORG>logical Garden on condition that alter- native arrangement were made for shifting the existing structures which were necessary for the <ORG> from the plot in question to the adjacent plot; (ii) the plot in question was not a part of the <ORG> Garden; (iii) till the existing struc- tures are relocated on the adjacent land, the zoo would continue to get their services and facilities from the existing structures. (iv) the hotel was not the only tall building since there existed many such residential buildings to which none raised an objection and that <ORG> are also constructing one such tall building; and (v) the lessee and their experts on wild life had assured them that in any case adequate precaution would be taken in regard to illumination of the hotel and the layout of the surrounding so that no disturbance would be caused to the flight path of the birds or animals. To similar effect was .the letter dated 30.8.1982 from Shri <NAME> to the Prime Minister on September 1, 1982. Smt. <NAME> wrote to Mr. <NAME> expressing her happiness that the hotel was not going to upset the <ORG> animals and welcoming his offer to help the <ORG> Government to improve the <ORG>'s facilities. 229 A learned Single Judge of <ORG> dismissed the writ petition holding that <ORG> did not show any lack of awareness of the problem of environment ecology in granting the lease of land. On appeal, <ORG> confirmed the said judgment. Hence the appeal by Special leave of the <ORG>. Dismissing the appeal, the <ORG>, HELD: (Per <NAME>) 1.1 Whenever a problem of ecology is brought before the <ORG>, the <ORG> is bound to bear in mind Art. 48 A of the Constitution the Directive Principle which enjoins that "The <ORG> shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country, "and Art. 51A(g) Which proclaims it to be the fundamental duty of every citizen of India "to protect and improve the natural environment in- cluding forest, lakes, rivers and wild life, and to have compassion for living creatures." When the <ORG> is called upon to give effect to the Directive Principle and the fundamental duty, the <ORG> is not to shrug its shoulders and say that priorities are a matter of policy and so it is matter for the policy making authority. The least that the court may do is to examine whether appropriate considera- tions are borne in mind irrelevancies excluded. In appropri- ate cases, the <ORG> may go further, but how much further must depend on the circumstances of the case. The court may always give necessary directions. However the <ORG> will not attempt to nicely balance relevant considerations- When the question involves the nice balancing of relevant considera- tions, the court may feel justified in resigning itself to acceptance of the decision of the concerned authority. If the Government is alive to the various considerations re- quiring thought and deliberation and has arrived at a con- scious decision after taking them into account, it may not be for the court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the deci- sion, the <ORG> may interfere in order to prevent a likeli- hood of prejudice to the public. [242B-F] 1.2 Applying the above guidelines to be followed when questions of ecology and environment are raised, it is clear that the facts and circumstances brought out by the appel- lants do not justify an inference that the construction of the proposed hotel in the <NAME> land would interfere in any manner with the animals in the <ORG> and the birds arriv- ing at the zoo or otherwise disturb the ecology. The pro- posed hotel is a Garden-hotel and there is perhaps every chance of the ecology and environment improving as a result of planting numerous trees all 230 around the proposed hotel and the removal of the burial ground and dumping ground for rubbish. [263A-B] 1.3 That the question of obstruction which may be caused to migratory birds did not go unnoticed by the government before the decision to lease the land was taken, is clear from the following: (i) the question of the migratory bird was first raised in the resolution of the Managing <ORG> 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 <ORG>'s resolution at the instance of the Chief Minister and on his assurance; (ii) that the govern- ment was aware of the dissension based on the alleged ob- struction likely to be caused by a multi-storeyed building to the flight of the migratory birds appears from the letter of the Chief Minister to the Prime Minister. In this letter, the Chief Minister pointed out that there were already in existence a number of multistoreyed buildings all around the <ORG>logical Garden, but there was no report that they had any adverse effect on the migratory birds or the animals. He also pointed out that all precautions would be taken in the matter of illumination of the hotel and lay out of the surroundings so that no disturbance would be caused to the flight path of the birds or animals; (iii) Shri <NAME>, on behalf of the <ORG> also wrote to the Prime Minister assuring her that the hotel management had dis- cussed the matter at length with a representative of <ORG> 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 in to the project with the special reference to the possible impact on the birds and the environment and had satisfied himself that project would not cause any disturbance to the birds or their free movement. He pointed out that the four acre plot was not within the main <ORG>logical Garden, but was separated from it by the Belvedere Road which was an impor- tant thoroughfare in the city. It was about 700 feet from the main part of the lake. The hotel was proposed to be built away from the frontage of the plot in Belvedere Road and was to be a low-rise structure, the highest point of which would not exceed 75 feet, far below the trajectory of the birds. He mentioned that Dr. <NAME> a renowned ornithol- ogist had also been consulted by <ORG> and he had also confirmed that a 75 feet building would not inter- fere with the landing or climbing out of the birds from the lake. He further mentioned that the grounds of the <ORG> between the lake and the Belvedere Road were covered with tail trees and that the birds negotiating the trees would have to fly at a steeper angle than it would be necessary to negotiate the proposed hotel. The vehicu- 231 lar traffic on Belvedere Road which was also heavy did not bother the birds and the slight increase of the vehicular traffic consequent on the construction of the hotel was also not likely to bother them either. It was also pointed out that particular care would be taken in the matter of illumi- nation of the hotel so that bright lights or neon signs emanating from the hotel would not disturb the birds and animals. In the circumstances, the government was alive to the ecological considerations particularly the question of the migratory birds. [260E-H; 261A-E] 2.1 It is wrong to think that every thing not mentioned in the <ORG> Memoranda did not receive consideration by the government. In the instant case the process of choosing and allotting the land to the <ORG> nearly took two years during the course of which objections of various kinds were raised from time to time. It was not necessary that everyone of these objections should have been mentioned and considered in each of the <ORG> Memoranda. [260C-E] 2.2 The proposition that a decision must be arrived at after taking into account all relevant considerations, eschewing all irrelevant considerations cannot for a moment be doubted. In the instant case, relevant considerations were not ignored and indeed were taken into consideration by <ORG>. It is not one of those cases where the evidence is first gathered and a decision is later arrived at one flue morning and the decision is incorporated in a reasoned order. This is a case where discussion had necessarily to stretch over a long period of time. Several factors have to be independently and separately weighed and considered. This is a case where the decision and the rea- sons for the decision could only be gathered by looking at the entire course of events and circumstances stretching over the period from the initiation of the proposal to the taking of the final decision. The argument that what was not said in either of the <ORG> Memoranda could not later be supplemented by considerations which were never present in the mind of the decision making authority is not correct. [263E- <CITATION> ,  3 SCR 108 and <CITATION> ,  2 SCR 752, re- <CITATION> ,  2 SCR 273, distinguished. 3. There was no failure to observe the principles of Natural Justice. Such as those as were really interested in the matter like the Managing <ORG> of the <ORG>logical Garden and the Director of the 232 <ORG> did have their say in the matter. The Public Undertak- ings <ORG> in its report discussed the matter and invit- ed the Government's attention to various factors. The matter was further discussed on the floor of the Legislative Assem- bly. [264B-D] 4.1 The two letters dated 23.4. 1880 and 7.7. 1880, pertaining to the grant relating to the transfer of land to the east of Belvedere Road, known as <NAME> land in 1880, produced from old official records, are public documents within the meaning of the Evidence Act . No objection either to the authenticity or to the admissibility of the documents was taken either before the Single Judge or before <ORG>. The Managing <ORG> of the <ORG>logical Garden never doubted the authenticity of the documents, nor was any question even raised to suggest that the terms of the grant were other than those mentioned in the letters. [265C-E] 4.2 The new plea relating to authenticity or admissibil- ity of evidence cannot be accepted in an appeal under Art. 136 of the Constitution. The land which was undoubtedly government land was given to the <ORG>logical Garden upon the terms set out in the two letters. One of the terms was that the land should be restored to the government whenever required. Another terms was that the <ORG>logical Garden <ORG> would be suitably compensated for any expenditure incurred by it on the construction of any building on the land. [265E] 5.1 It is true that the Act of the legislature cannot be undone by a mere act of the <ORG>. This is not a case where the statute vests land in the <ORG> and the Execu- tive takes it away by its fiat. The <NAME> land was government land transferred to the charge of the <ORG>logical Garden <ORG> in 1880 in accordance with the conditions and terms agreed to by the <ORG> in their letter dated 23.4.1880; namely; "(i) that the land is to be used for the purpose of acclimatization only; (ii) that Carnivors are not to be kept on any part of it, on any account; (iii) that the grounds are to be kept clear and neat; (iv) that the land must be restored to the government if hereafter required. The <ORG>logical Garden <ORG> being reimbursed for any expenditure they may have incurred in building there." Therefore, this is a case of resumption of Government land under the terms of Agreement. [264E-H; 265A-B] 5.2 From the Preamble and the provisions of the Bengal Public Parks Act, 1904, it is clear that the Act is intended to protect the inmates and the property of the park from injury by persons resorting 233 to the park from molestations or annoyance by others. The Act is aimed at protecting the part and its visitors from injury and annoyance by despoilers and marauders. The Act has nothing whatever to do with the vesting of any property in the parks. There is in fact no provision which deal with the vesting of property in a park, Section 3 enables the <ORG> Government to extend by a notification, the boundaries of a park but that can only be for the purposes of the Act and not for the purpose of vesting or creating any title in a property. If a piece of adjacent land, for example, is taken on lease for a specified number of years by the park and included in the park by a notification under s.3 it does not mean that the various things, the doing of which is regulated or prohibited by the Act and the rule will not be done or will be regulated on the adjacent land also. The provisions of the Bengal Public Parks Act have no relevance to the question of the power of the government to transfer the <NAME> land to the <ORG>. [266C-F] 6.1 Statutes and statutory orders have no doubt to be obeyed. It does not mean that other orders, instructions, etc. may be departed from in an individual case, if applica- ble to the facts. They are not to be ignored until amended. The government or the <ORG> may have the power to amend these orders and instructions, but nonetheless they must be obeyed so long as they are in force and are applicable. But, from the perusal of the provisions of paragraphs 165 to 167 of the West Bengal Land Management Manual, it is clear that these provisions of the Land Management Manual do not appear to have anything to do with the transfer and use of the land in the manner proposed, in which the <ORG> also have a vital stake apart from the mere raising of revenue for the <ORG>. Paragraphs 165, 166 and 167 deal with simple cases of crea- tion of non-agricultural tenancies by way of long term leases. They generally deal with land which is at the dis- posal of the government as waste or surplus land and are intended to secure the best revenue for the <ORG>. They do not deal with cases of transfer of land for a specific socio-economic object, where, the securing of immediate revenue. is not the principal object but other social and economic benefits are sought. [267E-H] 6.2 The following propositions may be taken as well established on a considerations of the earlier decisions of <ORG>. <ORG> owned or public-owned property is not to be dealt with at the absolute discretion of he execu- tive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is consid- ered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule. it is not an invariable 234 rule. There may be situations where there are compelling reasons necessitating departure from the rule, but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. [273D-F] 6.3 Applying the above tests, it cannot be held that the government of West Bengal did not act with probity in not inviting tenders or in not holding a public auction but negotiating straight away at arm's length with the <ORG>, in its pursuit or socio-economic objective of encouraging tourism and earning more foreign exchange. In the present case no one has come forward alleging that he has been discriminated against and his fundamental right to carry on business had been affected. The very nature of the construction and establishment of a <ORG> is indicative of a requirement of expertise and sound financial position on the part of those who might offer to construct and establish them. The decision taken by the All-India <ORG> Council was an open decision well-known to everyone in the hotel business. Yet no one except the <ORG> and the <ORG> had come forward with any proposal. The Oberoi Group of <ORG>s already had a <ORG> in Calcutta while the Welcome Group of <ORG>s were making their own Private negotiations and arrangements for establishing a <ORG>. In the circumstances, particularly in the absence of any leading hotliers coming forward, the govern- ment of West Bengal was perfectly justified in entering into negotiation with the <ORG> and the <ORG> instead of inviting tenders. Negotiations with those who had come forward with proposals to construct <ORG>s was without doubt the most reasonable and rational way of proceeding in the matter rather than inviting tenders or holding public auction. There was nothing discriminatory in the procedure adopted since no other leading hotlier had shown any inclination to come forward. Tenders and auction were most impractical in the circumstances. The choice of the <ORG> must therefore be held to be beyond suspicion and above reproach. [273F; 268D-F] <NAME> v. <ORG> of Orissa,  SCR 374; R.B. Shetry v. <ORG>,  3 SCR 10 14; <CITATION> ,  3 SCR 1338; <CITATION> ,  4 SCC 56; <CITATION> ,  3 SCC 267 and <CITATION> ,  3 SCC 391, discussed. 7.1 On a consideration of all the facts and circumstances of the 235 case, it is clear, that the government of West Bengal acted perfectly bonafide in granting the lease of <NAME> land to the <ORG> for the construction of a <ORG> in Calcutta. The government of West Bengal did not fail to take into account any relevant consideration. Its action was not against the interest of the <ORG>logical 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 <ORG> were in no way sacrificed either by not inviting tenders or holding a public auction or by adopting the ''nett sales" method. [274C-E] 7.2 The "nett sales" method appears to be fairly well known method adopted in similar situations. This what was recommended by <ORG>, the consulting agency of <ORG> which submitted a detailed report on the subject. This was also the recommendation of the <ORG> of Secretaries who went into the matter in death, even to lay persons who are no financial experts, it appears that the "nett sales" method does and the rent-based-on-market- value method does not take into account the appreciating value of land, the inflationary tendency of the prices and the profit orientation. Even on a prima a facie view, there appears to be nothing wrong. or objectionable in the "nett sales" method. It is profit oriented and appears to be in the best interests of <ORG>. [274A- C] Per <NAME> (concurring) 1. Today public spirited litigants rush to courts to file cases in profusion under attractive name Public Inter- est Litigation. They must inspire confidence in courts and amongst the public. They must be above suspicions. Public Interest Litigation has now come to stay. Bue one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guide-lines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of Public Interest Litigations, the tradi- tional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions. This does not mean that traditional litigation should stay put. They have to be tackled by other effective methods, like decentralising the judicial system and entrusting majority of traditional litigation to village courts and <ORG> without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases. It is only when courts are apprised of gross viola- tion of fundamental rights by a group or a class action or when 236 basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this <ORG>, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the under-dog and the neglected. Extending help when help is required does not mean that the doors of <ORG> are always open to anyone to walk in. It is necessary to have some self imposed restrained on public interest litigants, so that this salutary type of litigation does not lose its credibility. [275C; 279A-F] 2. The approach of <ORG> <ORG>s in this case has been creditably fair. They have given all the assurances necessary to preserve the <ORG> and its inmates. They were willing to afford all the requisite safeguards. In the place of a dilapidated hospital, operation theater and the like, they constructed buildings, a new at a cost of Rs. 30 lakhs which amount they were entitled to be reimbursed under cl. 25 of the lease, which they voluntarily gave up. In addition to this, they surrendered an area of 288 sq. metrs. from the land allotted to them to the <ORG>. They agreed to build not the usual sky scrapper hotel, but a garden hotel, the height of which would not go beyond 75 feet, despite the fact that there existed in the surroundings area buildings which were very high. This was done to keep free the route of the flight of the birds. They agreed to have subdued light in the hotel, again in the ineterest of the birds. They also agreed to keep the surroundings of the hotel and the flora well maintained and already 30,000 plants were getting ready to adjourn the area to be occupied by them. [277H; 278A-C] 3.1 Regarding the commercial and financial aspects of the lease also, there is nothing secretive. The method adopted is the nett sales method of calculating the compen- sation paid, which is a well known method adopted in such situations like the one, here namely lease of land by the Government. [278C-E] 3.2 A deal like the one is given cannot be concluded by public auction as it is not a case of sale of a government property. Being not a sale but a lease of land by the gov- ernment public auction has necessarily to be ruled out. Only <ORG> came forward with an offer to start the hotel. The lease was the culmination after a long, elaborate and open procedure with nothing to hide which therefore cannot justifiably be subject to adverse criticism. [278G-H] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 378 of 1987.

From the Judgment and Order dated 4.8.1986 of <ORG> in F.M.A.T. No. 1500 of 1984. <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Appellants. <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and Ms. <NAME> for the Respondent.

The following Judgments of the Court were delivered:

CHINNAPPA REDDY, J. We grant special leave and proceed to dispose of the appeal.

A hundred and thirty-two years ago, in 1854, 'the wise Indian Chief of Seattle' replied to the offer of 'the great White Chief in Washington' to buy their land. The reply is profound- It is beautiful. It is timeless. It contains the wisdom of the ages. It is the first ever and the most under- standing statement on environment. It is worth quoting. To abridge it or to quote extracts from it is to destroy its beauty. You cannot scratch a painting and not diminish its beauty. We will quote the whole of it:

* "How can you buy or sell the sky, the warmth of the land? The idea is strange to us. "If we do not own the freshness of the air and the sparkle of the water, how can you buy them?

"Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The Sap which courses through the trees carries the memories of the red man.

"The white man's dead forget the country of their birth when they go to walk among the stars. Our dead never forget this beautiful earth, for it is the mother of the *Reproduced verbatim from Pariyavaran Vol. I No. 1, June 1984.

red man. We are part of the earth and it is part of us. The perfumed flowers are our sisters; the horse, the great eagle, these are our brothers. The rockly crests, the juices in the meadows, the body heat of the pony, and man--all belong to the same family. "So, when the Great Chief in Washing- ton sends word that he wishes to buy our land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves. He will be our father and we will be his children. So we will consider your offer to buy our land. But it will not be easy. For this land is sacred to us.

"This shining water moves in the streams and rivers is not just water but the blood of our ancestors. If we sell you land, you must remember that it is sacred, and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of events and memo- ries in the life of my people. The water's murmur is the voice of my father's father. "The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and food our children. If we sell you our land, you must remember, and teach your children, that the rivers are our brothers, and yours and you must henceforth give the kindness you would give any brother. "We know that the white man does not understand our ways. One portion of, land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother but his enemy, and when he has conquered it, he moves on. He leaves his fathers' graves behind, and he does not care. "He kidnaps the earth from his chil- dren. His father's grave and his children's birth-right are forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads. His appetite will devour the earth and leave behind only a desert.

"I do not know. Our ways are different from your ways. The sight of your cities pains the eyes of the red man. But perhaps it is because the red man is a savage and does not understand.

"There is no quite place in the white man's cities. No place to hear the unfurling of leaves in spring or the rustle of an in- sect's wings. But perhaps it is because I am a savage and do not understand. The clatter only seems to insult the ears. And what is there to life if a man cannot hear the lonely cry of the whippoorwill or the arguments of the frogs around a pond at night? I am a red man and do not understand. The Indian prefers the soft sound of the wind darting over the face of a pond, and the small of the wind itself, cleansed by a mid-day rain, or scented with the pinon pine.

The air is precious to the red man, for all things share the same breath--the beast, the tree, the man, they all share the same breath. The white man does not seem to notice the air he breathes. Like a man dying for many days, he is numb to the stench. But if we sell you our land, you must remember that the air is precious to us, that the air shares its spirit with all the life it supports. The wind that gave our grandfather his first breath also receives the last sigh. And if we sell you our land, you must keep it apart and sacred as a place where even the white man can go to taste the wind that is sweetened by the meadows flowers.

"So we will consider your offer to buy our land. If we decide to accept, I will make one condition. The White man must treat the beasts of this land as his brothers. "I am a savage and I do not understand any other way. I have seen a thousand rotting buffaloes on the prairie, left by the white man who shot them from a passing train. I am a savage and I do not understand how the smoking iron horse can be more important than the buffalo that we kill only to stay alive. "What is man without the beasts? If all the beasts were gone, man would die from a great loneliness of spirit.

For whatever happens to the beasts soon hap- pens to man. All things are connected. "You must teach your children that the ground beneath their feet is the ashes of our grandfathers. So that they will respect the land. Tell your children that the earth is rich with the lives of our kin. Teach your children what we have taught our children, that the earth if sun mother. Whatever befalls the earth befalls the sons of the earth. If men spit upon the ground, they spit upon themselves.

"This we know: The earth does not belong to man; man belongs to the earth. This we know: All things are connected-like the blood which unites one family. All things are con- nected.

"Whatever befalls the earth befalls the sons of the earth. Man did not weave to web of life: he is merely a strand in it. Whatever he does to the web he does to himself. "Even the white man, whose God walks and talks with him as friend to friend, cannot be exempt from the common destiny. We may be brothers after all. We shall see. One thing we know, which the white man may one day discov- er--our God is the same God. You may think now that you own Him as you wish to own our land; but you cannot. He is the God of man, and His compassion is equal for the red man and the white. This earth is precious to Him, and to harm the earth is to heap contempt on its Creater. The white too shall pass; perhaps sooner than all other tribes. Contaminate your bed and you will one night suffocate in your own waste.

"But in your perishing you will shine brightly, fired by the strength of the God who brought you to this land and for some special purpose gave you dominion over this land and over the red man. That destiny is a mystery to us, for we do not understand when the wild buffalo are all slaughtered, the wild horses are tamed, the secret corners of the forest heavy with scent of many man and the view of the ripe hills blotted by talking wires. Where is the thicket?

Gone. Where is the eagle? Gone. The end of living and the beginning of survival."

Today society's interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity. Industrialisation, urbanisation, explosion of population, overexploitation of resources, depletion of traditional sources of energy and raw materials and the search for new sources of energy and raw materials, the disruption of natural ecological balances, the destruc- tion of a multitude of animal and plant species for economic reasons and sometimes for no good reason at all are factors which have contributed to environmental deterioration. While the scientific and technological progress of man has invest- ed him with immense power over nature, it has also resulted in the unthinking use of the power, encroaching endlessly on nature. If man is able to transform deserts into cases, he is also leaving behind deserts in the place of cases. In the last century, a great German materialist philosopher warned mankind: "Let us not, however, flatter ourselves overmuch on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the results we expect- ed, but in the second and third places it has quite differ- ent, unforeseen effects which only too often cancel the first." Ecologists are of the opinion that the most impor- tant ecological and social problem is the wide-spread disap- pearance all over the world of certain species of living organisms. Biologists forecast the extinction of animal and plant species on a scale that is incomparably greater than their extinction over the course of millions of years. It is said that over half the species which became extinct over the last 2,000 years did so after 1900. <ORG> calculates that now, on an average, one species or sub-species is lost every year. It is said that approximate- ly 1,000 bird and animal species are facing extinction at present. So it is that the environmental question has became urgent and it has to be properly understood and squarely met by man. Nature and history, it has been said, are two compo- nent parts of the environment is which we live, move and prove ourselves.

In India, as elsewhere in the world, uncontrolled growth and the consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem. The once Imperial City of Calcutta is.no exception. The question raised in the present case is whether <ORG> 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 <ORG>? 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 <ORG> to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrele- vant considerations influence the decision, the <ORG> may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the <ORG>, the <ORG> is bound to bear in mind Art. 48A of the Constitution, the Directive Principle which enjoins that "The <ORG> shall endeavour to protect and improve the envi- ronment and to safeguard the forests and wild life of the country," and Art. 51A(g) which proclaims it to be the fundamental duty of every citizen of India "to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures." When the <ORG> is called upon to give effect to the Directive Principle and the fundamental duty, the <ORG> 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 <ORG> may do is to examine whether appropriate consideration are borne in mind and irrelevancies excluded. In appropriate cases, the <ORG> may go further, but how much further must depend on the circum- stances of the case. The <ORG> may always give necessary directions. However the <ORG> will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the <ORG> 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.

There is in Calcutta a zoological garden located in Allipore, now almost the heart of Calcutta, on either side of Belvedere Road, one of Calcutta's main arterial roads, fortynine acres on one side and eight acres on the other. The main zoo is in the fortynine acres block of land. There are some old buildings and vacant land in the eight acre plot of land. This eight acre plot of land is known as the Begumbari land. It is out of these eight acres that the land of the extent of four acres has been carved out and given to <ORG> for the construction of <ORG>. It is this giving away of land, that was challenged before <ORG> and is now challenged in this Court in this appeal by two citizens of Calcutta, one of them the Secretary of <ORG> the zoological garden and the other a life member of the zoo, both of whom claiming to be lovers of wild life and well-wishers of the zoo.

In January 1979, the Director General of Tourism, Gov- ernment of India, addressed a letter to the Chief Secretary, <ORG> conveying the resolution of the Tourism Conference which was presided over by the Union Minister of Tourism and attended by several State Ministers and requesting that land in good locations may be made available for construction of hotels in a drive to encourage tourism. In May, 1980 <ORG> came forward with a suggestion that they would be able to construct a <ORG> Hotel if any of three properties on Chowringhee, specified by them, was made available to them. The Govern- ment found that there was some litigation connected with the Chowringhee properties and, therefore, it would not be possible to convey the Chowringhee properties to <ORG>. On September 29, 1980 and November 29, 1980, there were two notes by the Secretary of <ORG> to the effect that the <ORG> was interested in a property known as the Hastings House Property and that <ORG> who considered the Hastings House property unsuitable may be offered four acres out of the eight acres of <NAME> land. On the same day <ORG> wrote to the <ORG> stating that the proposed land could be seriously considerd for construction of a Hotel. Thereafter the Chief Minsiter along with the Minister of Tourism and the Minister for Metropolitan Development visited the site accompanied by the Director of the Zoo who apparently knew about the pro- posal right from the start. A note was then prepared by the secretary, <ORG> and put up to the Chief Minister for his approval. The note suggested that the Hastings House property may be offered to the <ORG> and the <NAME> property may be offered to <ORG> and that at a later stage a suitable <ORG> might be appointed to negotiate with the two groups of hotels. The Chief Minister approved the proposal and re- quired it to be placed before the <ORG>. On January 7, 1981 a memorandum was prepared for the consideration of the <ORG> explaining the need for more <ORG> in Calcutta and the benefits flowing out of the construction and establishment of such <ORG> hotels. It was suggested that the Hastings House Property may be leased to the <ORG> Group and the <NAME> property to <ORG>. In regard to the <NAME> 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 ade- quate space can be made available for growing grass else- where in the same area." It was stated that <ORG> had agreed to the proposal to lease the properties to the <ORG> and <ORG> respectively. It was stated that though <ORG> had suggest- ed that Salt Lake was a better place for establishing a <ORG> Hotel, there was no demand for a <ORG> Hotel in that area and the request for a hotel in Salt Lake was confined to <ORG>. <ORG> approval was sought for the offers to be made to the <ORG> and to <ORG> and for the constitution of a suitable <ORG> to undertake negotiations with the two groups. On February 12, 1981, the <ORG> took a decision ap- proving the proposal contained in the last paragraph of the <ORG> Memorandum, thus clearing the way for negotiations with <ORG>.

Meanwhile, it appeared that <ORG> appointed by <ORG> submitted a port on February 14, 1981 about the zoo in which they stated.

"* * * * * * Originally this zoo was on the outskirts of the City but the City has grown in such a fashion that the zoo has vertually become the City Centre and there is hardly any scope for its expansion. The zoo is situated on the left bank of the Tolly's Nallla divided with two parts on either said of the Alipore Road. The zoo proper is about 40 acres on the Western side, while the eastern part comprises <ORG>, audiovisual centre acquari- um, Zoo store and Staff quarters. <ORG> was informed that now-adays migratory birds were coming less in number though previ- ously more foreign birds used to come here and in the opinion of the Managing Committee, the main reason for this was due to air and sound pollution. Breeding potentialities of animals and birds have been retarded due to constant stress and strain on the animals and also due to atmospheric reasons. * * * * * *<ORG> came to learn that a big hotel was pro- posed to be constructed on the plot of land where fodder for elephant are being grown to meet at least a portion of the elephants food. Moreover, the staff quarters, hospitals for animals and the morgue are also situated near the said plot of land. If the proposed hotel is set up, all the existing buildings, viz. hospital, morgue etc. would have to be shifted to the main Gardens resulting in unhealthy atmosphere for the zoo animals and also hampering the beauty of the zoo Gardens. This would also create problems to the staff quarters and acquarium."

The Committee also referred to a proposal to establish a 'Subsidiary Zoo' some slight distance from Calcutta City and the request said to have been made for the allotment of 200 acres of land for that purpose. It was suggested that the Government may consider abandoning the proposal to set up a hotel on the Eastern side of the Zoo.

The Chief Town Planner also visited the site at the request of the Secretary, <ORG>. The inspection was made in the presence of the Direc- tor of the zoo. The Chief Town Planner thought that two to 21/2 acres of land only might be made available for the hotel. He expressed the apprehension that if four acres of land were to be given for construction of a hotel, then the entire hospital and the dumping ground would have to be removed and the southern boundary of the hotel would come very close to the residential block.

On March 19, <ORG> submitted a proposal to the Government containing fairly detailed information about the tourism industry and its needs, the situation in Calcutta, the realities of hotel construction, the facts relating to what had been done in other cities, the benefits flowing out of the construction of hotels and their own proposals for constructing a hotel in the four acres of land in Belyedere Road. Two alternative financial arrangements were suggested. The first alternative was the payment of annual rent on the basis of the valuation of the land, the second alternative was based on the concept of nett sales, nett sales being defined as sales after deducting all taxes and levies and service charges. <ORG> expressed a preference for the second alternative and sug- gested the constitution of a Committee. <ORG> also approved. <ORG> was invited to send the financial projection on the basis of the second alternative. Correspondence went on. On June 5, 1981, <ORG> was formally constituted.

In the meanwhile, <ORG>, a West Bengal Government Consultancy Undertaking, was asked to examine the proposals and to advise the Government. The <ORG> submitted its report on July 14, 1981 and on the request of <ORG> a further report was submitted on July 22, 1981. The report of <ORG> is a comprehensive report on various topics connected with the establishment of <ORG> in Calcutta. Among other things the report also suggested various financial alterna- tives and recommended the second alternative based on nett sales as the best. It is to be mentioned here that even by February 21, 1981 the proposal to lease out the Begumbari land to <ORG> had become public knowledge and newspapers carried reports on the same. On June 9, 1981, the Secretary of <ORG> complained to the Secre- tary of <ORG> that they were not aware of the decision to lease the Begambari land. The Secretary, <ORG> made an endorsement on the letter to the effect that the Minister for <ORG> had himself visited the site. In fact, as we have seen, the matter had been considered and approved by the <ORG> itself and all Departments must necessarily have been appraised of the proposal.

While so, <ORG> of the <ORG>, on June 11, 1981, passed a resolution expressing itself against the proposal to construct a hotel on land belonging to the <ORG>. 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 <ORG> resolved that construction of a multistories buildings in the near vicinity of the zoo will be highly detrimental to the animals of the <ORG>, its ecological balance and adversely affect the bird migration which is one of the greatest attractions of the zoo. The area proposed to be taken for Hotel construction is already used by the zoo for fodder cultivation, burial ground for dead animals, animal hospital, operation theater, quarantine area, segrega- tion wards, postmortem room and nursery both for zoo animals and horticultural section. These essential services cannot be accommodat- ed within the campus of the main zoo for risk of spreading of infection to other animals of the zoo. Procurement of green fodder for the large number of harvivorous animals of the zoo is already a serious problem for the zoo and any disturbance to fodder cultivation will aggravate the situation. The Calcutta <ORG> has the smallest area in comparison to other reputed <ORG>. The <ORG> is of a opinion that no portion of <ORG> 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 <NAME>, M.L.A., <NAME> and <NAME> abstained from-participation in the proceedings." The Minister for Metropolitan Development submitted a note to the Chief Minister on the resolution of <ORG> of the <ORG>. He pointed out that even if four acres out of the eight acres of Begumbari land was given to <ORG>, there would still remain sufficient land for accommodation of the facilities. He added that <ORG>'s resolution was not binding on the Government and suggested that the Director of the <ORG> might be asked to allow <ORG> 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 <ORG>, the Government will provide them."

In June 25, 1981, <ORG> met again and passed another Resolution by which they withdrew their earlier objections. The Resolution stated.

"In view of the letter issued to the Zoologi- cal Gardens, Alipore and the <ORG> decision regarding the land of Begumbari Compound and in consideration of the assurance conveyed through <NAME>, Chief Whip and Member that <ORG> will give to the Garden adjacent lands and matching grants for the purposes of shifting of the Depart- ments of the Zoo within the said compound, the members do not press their objections as contained in the resolution of the Managing Committee held on 11.6.81.

This was passed by the majority of the members present, the President Justice <NAME> dissenting."

On June 29, 1981, the Director of the Zoo wrote to the Secretary of <ORG> stating his objections to the Proposal to lease the land for construction of a hotel. He stated, "It appears that a total of four acres of Begumbari land is proposed to be taken for hotel construction. It may be mentioned that this four acres of land proposed to be taken is the only area available there and it is presently covered by structures of hospital buildings, <ORG>, Operation Theatre, Segregation Wards, Quarantine areas, post-mortem room, burial ground for dead animals. In addition there are flower nursery, dumping ground and fodder cultivation area. It is not at all possible to carve out from this four acres of land without disturbing these structures and services nor it is true that adequate space can be made available in this site for these essential services.

It may also be stated in this connection that the <ORG> cannot be run for a single day without these essential services, i.e. (i) burial ground for dead animals, a number of which die of infectious and commu- nicable diseases, (2) quarantine area for keeping animals coming to the <ORG>, at least for 15 days before being shifted to the <ORG> proper, (3) isolation wards away from <ORG> Hospital and quarantine area for treatment of animals suffering from infectious and conta- gious diseases. (4) post-mortem room for carrying out p.m. findings, (5) dumping ground for dumping huge garbages coming out of the <ORG> daily, (6) fodder cultivation area for growing fodder for the harbivorous animals and (7) pathological laboratory for carrying pathological tests of animals and birds.

"As per clause 11 of the Alipore Zoological Garden (Management) Rules, 1957, the disposal of properties and funds are vested in the Managing Committee of he Garden. The relevant clause of the rule reads as below:

"The Managing Committee shall have custody and disposal of the property and funds of the Gardens and shall be responsible for proper maintenance."

Presumably as a consequence of the letter from the Director of the <ORG> there was a note by the Secretary, <ORG> suggest- ing the postponement of the implementation of the <ORG> 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 <ORG>logical Garden, as these facilities were originally linked with the <ORG>. He pointed out that <ORG> had not consulted <ORG> before the <ORG> note was prepared and circulated. So the practical problems of the <ORG> 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 <ORG>.

Meanwhile negotiations with <ORG> proceeded apace. The <ORG> submitted further reports. <ORG> suggested further modifications. On September 9, 1981 a detailed memorandum was prepared for cabinet discussion. Two alterna- tive financial proposals were set out. A reference was made to <ORG> who negotiated with the <ORG> of Hotels. Note was taken of the suggestion of <ORG> that the overall development plan for the environmental beautification, widening of approach roads, landscaping of Tolley's Nullah were responsibilities of <ORG> and estimated to cost Rs. 2 crores but that it was expected to be of considerable public bene- fit. Stress was laid on the direct and indirect economic activities which would be generated by the establishment of <ORG>. Reference was also made to the report of <ORG> and it was noted that the projected profitability of the ventur to the <ORG> was expected to be high. It was also mentioned that the Ministers, Incharge of Tourism, Animal Husbandry, <ORG> and <ORG> had seen the note and agreed to it. On September 10, 1981 the <ORG> took the final decision to grant a ninety-nine years lease of the Four acres of Begumbari land to the <ORG> of Hotels. On September 28, 1981 the <ORG> of West Bengal officially conveyed its acceptance of the proposal of the <ORG> of Hotels for the construction of <ORG>. The terms and conditions of the lease were set out. On January 7, 1982, there was a joint meeting of the <ORG> and <ORG> sub-committees of the <ORG> and it was decided to recommend to <ORG> of management that the demarcated area of four acres may be relinquished in favour of <ORG> subject to the requirement that the <ORG> will continue to get the services and facilities in the existing structures until they were reconstructed on the adjacent land. On January 11, 1982 <ORG> endorsed the view of the sub-committees and this was communicated to the <ORG>. On January 15, 1982, the <ORG> of West Bengal wrote to <ORG>, with copies to the <ORG> of Hotels, directing <ORG> to give possession of the land to the <ORG> of Hotels subject to their later executing a proper long term lease. It was mentioned in the letter that the construction of the hotel should not be started till the lease deed was executed and registered. It was further expressly stipulated as follows:-

"The Alipur Zoological Garden will continue to get the services and facilities from the existing essential structures which fall within the demarcated in the annexed sketch map till such time when these essential struc- tures i.e. hospital and operation theatre are reconstructed on the adjacent land occupied by the Zoological Garden. A copy of the sketch map is enclosed for ready reference. <ORG> will find out in consultation with and with the concurrence of <ORG> of this Government and the authorities of <ORG> 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 <ORG> of this Government and <ORG> 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 <ORG> in this <ORG> 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 <ORG> or the Zoo Garden authorities as the case may be, for reconstruction of the aforesaid essential structures or reconstruction the aforesaid essential structures under its own supervision to the satisfaction of the the Zoo Garden authorities or <ORG> 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 <ORG> in accordance with the terms and condi- tions of the lease."

It is to be noted here that though the stipulation was that the cost of new construction was to be initially met by <ORG> and later to be adjusted against the rent payable by <ORG>, the <ORG> later agreed to waive such reimbursement. We are told that a total sum of Rs. 30 lakhs has now been spent by <ORG> in connection with the reconstruction. We are also told that an extent of 288 square meters out of the plot given to the <ORG> 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 <ORG> on January 16, 1982. Thereafter an expert Committee was consti- tuted to supervise the construction Of alternative facili- ties. At that stage the writ petition out of which the present appeal arises was filed on February 26, 1982. Ini- tially the relief sought was primarily to restrain the <ORG> authorities from giving effect to the two resolutions dated January 7, 1982 and January 11, 1982 to hand over the four acres to <ORG> of the Government. Subsequent to the filing of the Writ Petition, a lease deed was executed by the <ORG> 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, <ORG> of <ORG> confirmed the judgment of the learned Single Judge. The original petitioners are now before us having obtained special leave under Art. 136 of the Constitution.

Before adverting to the submission of the learned coun- sel, it is necessary, at this juncture, to refer to certain correspondence. On April 23, 1982, Late Smt. <NAME>, Prime Minister of India wrote to <NAME>, Chief Minister of West Bengal expressing the hope that he would not allow <ORG> to suffer in any manner and would leave in intact. She drew the Chief Minister's attention to the fact that 'apart from' reduction in the already inadecu- ate space for the <ORG>logical Garden construction of a Five Star Multystoreyed Building would disturb the inmates and adversely affect birds migration which was a great attrac- tion.' She also mentioned that the expert Committee of <ORG> also unanimously disapprove the idea. She queried whether the Hotel could not be located elsewhere. For one reason or the other the Prime Minister's letter did not reach the Chief Minister for a considerable time. On August 21, 1982 the Chief Minister sent his reply pointing out that the four acres of land were agreed to be relinquished by <ORG> the <ORG>logical Garden on condi- tion that alternate arrangements were made for shifting the existing structures which were necessary for the <ORG> from the plot in question to the adjacent plot. The Chief Minis- ter also mentioned that there appeared to be some misconcep- tion that the plot in question was a part of the <ORG> Garden. It was not so. It was outside the <ORG>logical 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 <ORG> would continue to get their services and facil- ities from the existing structures. The Chief Minister further drew the attention of the Prime Minister to the fact that the hotel was likely to be a six storeyed one and would not be the only tail building near the <ORG>. There were already a large number of high-rise residential buildings around the <ORG>. No one had raised any objection when those building were constituted. Another multistoreyed building which was going to be the largest in the locality was under construction near the <ORG> for <ORG>. There was no report that the existing multistoreyed buildings had any adverse affect on the migratory birds or the animals. The Chief Minister also pointed out that the lessee and their experts on wild life has assured them that in any case adequate precaution would be taken in regard to illumination of the hotel and the layout of the surrendings so that no disturbance would be caused to the flight path of the birds or animals. On August 30, 1982, <NAME> wrote to the Prime Minister pointing out that their Hotel management had discussed the matter at length with represen- tatives of <ORG> 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 <ORG> by <ORG> is not within the boundaries of the area belonging to the <ORG>logical 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 <ORG> which the <ORG> authorities have upto now been allowed to use to look after sick animals of the <ORG> and as labour quarters. It contains five small structures including a cage and a small veterinary labo- ratory or dispensary. The whole area is in sheckingly unkept condition, most of it cov- ered by a single or spear grass and other wild growth.

"The hotel is planned to be built away from the frontage of that plot of Belva- dere Road and to be low rise structure, the Highest point of which will not exceed 75 feet.

"Dr. <NAME>, a renowned ormitholo- gist, who recently retired as Professor Emeri- tus of <ORG>, whom <ORG> consulted, confirmed that a 75-feet high building on the location would not worry birds landing on the lake or climb- ing out of it. In fact, as the grounds of the zoo between the lake and Belvedre Road are covered with high trees, the climbing or descent angle which the birds have to negoti- ate to get over the trees is already steeper that it will be between the lake and the proposed hotel.

"As regards the objection that arise from the hotel itself from vehicular traffic to and from the hotel would disturb the birds, the hotel will be totally airconditioned so that no noise will emanate from it, while noise from the heavy traffic on Belvedere Road does not seem to have bothered the birds upto now. The occasional additional cars plying into and out of the hotel could therefore hardly trouble birds resting on the lake some 250 yards away.

"Regarding the fear that lights emanating from the hotel or illuminate of signs of the hotel would disorient the birds and possibly cause them to hit the building the Management of the Hotel Company has taken a firm decision that there will be no bright lights or noon signs emanating from the hotel."

<NAME> further suggested that if necessary the Prime Minister could appoint a small advisory Committee consisting of <NAME>, Director of <ORG> consid- ered to be the finest zoo in India and one of the best in Asia, Dr. <NAME>, Mrs. <NAME> and the Chairman of <ORG> to advise on the subject. On September 1, 1982, Smt. <NAME> wrote to Mr. <NAME> expressing her happiness that the <ORG> was not going to upset the <ORG> animals and welcoming his offer to help <ORG> to improve the <ORG>'s facilities.

Dr. <NAME>, learned counsel for the appellants made the following submission before us; The <NAME> land was statutorily vested in <ORG> and that the Committee could not be di- vested by an executive decision without proper procedure being followed. The land could not be leased to <ORG> without inviting tenders from willing per- sons and without complying with the requirements of para- graphs 166 and 167 of the Land Manual. In taking a decision to take away the land from the <ORG> and to lease the same to <ORG>, relevant considerations had been ignored and irrelevant considerations had been taken into account. The decision was taken without considering the impact on the <ORG> and without consulting various interested authorities and institutions. Several authorities and insti- tutions like the Director of the <ORG>, the Managing Committee of the <ORG>, <ORG>, <ORG>, leading ornithologists of the country, etc. had disapproved the taking away of the land from the <ORG> and leasing it to <ORG>. These persons and institutions had made several points, none of which had been taken into account by the <ORG> before it took the decision to lease the land. The attention of the government was not focussed on these questions as evident from the fact that the Cabinet Memorandum hardly refers to any of the objections. The decision of the Govern- ment was also wrong as it was apparently based on some assumptions which had been made without inquiry and verifi- cation. The Chief Minister appeared to be under the impres- sion that Dr. <NAME> and others were not opposed to the proposal. That was not correct. The construction of <ORG> was too heavy a cost to pay for the environmental detriment caused by it. The terms on which the lease had been granted were detrimental to the public revenue. <NAME>, learned counsel for <ORG> and <NAME> learned counsel for the State of West Bengal argued that the former facilities available in the four-arce plot of land were not displaced but were replaced and preserved by better facilities in the adjacent plot of land. This was not to the disadvantage, but to the advantage of the <ORG> and its inmates. If the dumping ground and the burial ground had to be moved elsewhere, it was certainly more hygienic and a matter for gratification rather than for disgruntlement. Nor was there any obstruc- tion to the flight of the visiting birds as the hotel was to be constructed at a distance of 700 feet from the lake and was to rise to a maximum height of 75 feet, being a medium rise and not a high rise building. On the other hand there was going to be an environmental improve- ment of the area as the dumping ground, burial ground and the semi-dilapidated buildings were to be replaced by a hotel surrounded by broad roads and a very large number of trees proposed to be planted by the hotel management. The landscaping was also designed to improve the ecology and not to diminish it. There was no occassion for the <ORG> to invite tenders since the establishment of a <ORG> hotel was not something which could practicably be undertaken by anyone in that fashion. It could only be done by negotiation between the persons coming forward with proposals to estab- lish <ORG>. The terms of the lease were not to the financial disadvantage of the <ORG>. The matter had been considered at great length by the <ORG> appointed by the <ORG> as well as by <ORG> and they had recommended the acceptance the nett sales arrange- ment in preference to the arrangement of rent based on land-cost.

We are unable to agree with the submission of Dr. <NAME>, learned counsel for the appellants, that <ORG> of West Bengal decided to grant the lease of the <NAME> land to <ORG> 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 <NAME> land to <ORG> was taken on February 12, 1981. The decision taken by the <ORG> on February 12, 1981 was merely to enter into negotiations with the <ORG> and <ORG> in regard to leasing the Hastings House property and the <NAME> land. Negotiations with the <ORG> did not fructify while negotiations with <ORG> fruitioned. It was on September 10, 1981 that the <ORG> finally took the decision to lease the <NAME> land to <ORG>. If there was any decision on February 12, 1981 in regard to leasing the <NAME> land it could at best to characterised as purely tentative and it could not by any stretch of imagination be called an irrevocable or irrevers- ible decision in the sense that the <ORG> 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, <ORG> appeared to have been on the search for two suitable plots of land which could be offered, one to the <ORG> and the other to <ORG> for the construction of <ORG>. The record shows that these two chain-hoteliers wer the only hoteliers--and, they certainly were leading hoteliers of the country--who had come forward to negotiate with <ORG> regarding the construction of <ORG>. The city of Calcutta was noticeably lacking in the '<ORG> Hotel amenity' to attract tourist, local and foreign, and <ORG> was anxious to do its best to promote the tourist industry which it was hoped, would provided direct and indirect employment, earn foreign exchange and confer other economic benefits to the people of the State. It is immaterial whether the move come first from the <ORG> or from <ORG>. The <ORG> was anxious that more <ORG> should be established at Calcutta and <ORG> was willing to establish one. They wanted a suitable plot for its construction. It was the suggestion for the All India Tourism Conference presided over by the Union Minister for Tourism that State <ORG> should make plots in good locations available at concession- al rates for construction of hotels in order to promote the Tourist Industry. It was in pursuance of this general all- India policy and, in particular, to fulfill the feltneeds of Calcutta that <ORG> was looking out for a suitable plot in a good location. They were clearly not doing so at the behest of <ORG>. It does not require much imagination to say that location is among the most important factors to be considered when constructing <ORG>, 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 <ORG> felt that two properties, the Hastings House property and the <NAME> property could be thought of as meeting the requirements. Since the Hastings House property, was not found acceptable by <ORG>, it was decided to negotiate with them in regard to construc- tion of <ORG> on the <NAME> land. We find it difficult to treat this decision to negotiate with <ORG> in regard to construction of <ORG> on the <NAME> land as a final decision to part with the land. The prominent use to which the land was evidently put at the time was as a dumping ground for refuse and rubbish and for growing fodder for elephants. This was noticed and mentioned in the note prepared for the consideration of the <ORG> 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 <ORG>, separate provision would have to be made for whatever use the land was being put to them. The <ORG> was not unmindful of the interests and requirements of the <ORG>logi- cal Garden though at that stage no detailed investigations had apparently been made. The decision of the <ORG> 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 <ORG> in less then two days. They expressly refer to it in their report dated February 14, 1981 made two days after the <ORG> decision. By Twen- ty-first February it was public knowledge and news of the proposal was published in the daily newspapers. We have no evidence or any immediate or subsequent public protest but there were certain objections from some circles. Earlier we have extracted the report of <ORG>. The substance of the objection of <ORG> was that the facilities available in the <NAME> 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 <ORG> Garden. The assumption of <ORG> 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 <NAME> land replacing the old hospital which was housed in a semi- dilapidated building. Surely, there should be no complaint about it. It has also been proposed to shift the burial ground elsewhere. That would be most desirable from any point of view. Fodder for elephants should not again be considered to be problem. It would be stretching credibility to suggest that it is necessary to grow fodder in the Begum- bari land to feed the elephants in the zoo. Fodder may be bought and brought from elsewhere. The Chief Town Planner who was deputed to visit the site at the request of the Secretary, <ORG> and who visited the <ORG> accompanied by the Director of the <ORG> reported that 2 to 21/2 acres of land might be made avail- able for the hotel. If four acres of land were given, he expressed the apprehension that the hospital and the dumping ground would have to be moved elsewhere. The hospital as we have already mentioned has since been conveniently and comfortably accommodated in a new building and the proposal is to move the dumping ground elsewhere. <ORG> of the <ORG> also initially expressed its opposition to the proposal to construction hotel on land belonging to the <ORG>. The Committee's objections were two-fold: (1) A muliti-storied building in the vicinity of the <ORG> will disturb the animals and the ecological balance and will affect the bird migration (2) the land was already used for various pur- poses, that is, fodder cultivation, burial ground for ani- mals, hospital, operation theatre, quarantine area, post- martom room and nursery. It would be impossible, according to the Committee to accommodate these essential services within the campus of the main <ORG>. The objections of <ORG> were first brought to the notice of the Minister for Metropolitan Development who submitted a note to the Chief Minister pointing out that even if four acres of land out of the eight acres of <NAME> land was given to <ORG>, there would still remain sufficient land for accommodating the existing facilities. The Chief Minis- ter considered the objections and noted that if further facilities were necessary for the <ORG>, <ORG> would provide them. Thereafter <ORG> reversed its earlier stand. and agreed to the proposal on the assurance that adjacent land and matching grants would be given to the <ORG>. We have earlier referred to the letter of the Director of the <ORG> dated June 29, 1981 addressed to the Secretary, <ORG> where he expressed his opposi- tion to the proposal on the ground that the <ORG> 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 <ORG> was followed by a note by the Secretary of <ORG> suggesting that the practical problems of the <ORG> should receive de- tailed consideration and that the immediate transfer of the land to the hotel would mean discontinuance of the existing facilities. In the face of all this material, we do not see how it can be seriously contended that the interests and the requirements of the <ORG> were totally ignored and not kept in mind when the decision was taken to lease the land to <ORG>. The Chief Minister's attention was expressly drawn to <ORG>'s first Resolution expressing its opposition to the proposal to give the land for the construction of a hotel and detailing the objections and the Chief Minister had expressly noted that all facili- ties necessary for the <ORG> would be provided by the Govern- ment. The assurance was also conveyed to the Managing Com- mittee through the amissaries of the Chief Minister. There were inter-departmental notings which we presume must also have been brought to the notice of the Chief Minister. We find it impossible to agree with the stricture that the Chief Minister turned a blind eye and a dent ear to the interests and the requirements of the <ORG> and went about the question of allotment of land to <ORG> determined to give the land to them and with a mind closed to every- thing else. We cannot do so in the face of the assurance of the Chief Minister that facilities would be provided for the <ORG> 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 <ORG> in favour of <ORG>. In Clause 25 of the lease dead, it is expressly stipulated that the lessee shall reconstruct the structures now existing on the demised land (as found in the sketch accompanying the deed) on the adjacent plot of land and that the plan, design, lay out, estimates, etc. of the proposed new structures should be supplied by the Alipur <ORG>logical Garden to the lessee. The reconstructed structures were required to be equal be the existing ones in floor area, but it was open to them to increase the floor area by agreement. The amount expended by the lessee towards the reconstruction of the structures was to be adjusted without interest against the dues of the lessee to the <ORG>. The Alipore <ORG>logical 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 <ORG> have spent a sum of Rs. 30 lakhs towards the cost of the new constructions, but that they have waived their fight to claim reimbursement from the <ORG>. An affidavit to that effect was also filed before the trial court. Thus we see that the contention of the appellants that <ORG> had no thought to spare for the facilities which were till then being provided in the <NAME> land is unsustainable. The learned counsel for the appellants urged that the second <ORG> Memorandum dated September 9, 1981 on which date the <ORG> took the final decision to grant the lease made no mention of the needs and interests of the <ORG> or the facilities provided in the <NAME> land for the <ORG>. It is true that there is no reference to these matters in the second <ORG> Memorandum. But that is for the obvious reason that the matter had already been the subject matter of inter-department discussion and communication. <ORG> of the <ORG> 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 <ORG> which were already well known and had also received consideration. It was suggested that the <ORG> itself required to be expended and there was, therefore, no land which could be spared. The land allotted to the hotel was, as we have seen, not used for the main purpose of the zoo and was not in fact part of the main <ORG>logical Garden. The <ORG> had already in mind a proposal to start a subsidiary <ORG> 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 <ORG> was quite alive to the need for expan- sion of the zoo when they decided to grant four acres of <NAME> land which was not used for the main purpose of the zoo for the construction of a <ORG> hotel. The next question is whether the <ORG> was alive to the ecological considerations, particularly to the question of the migratory birds when they took the decision of lease the land to <ORG>. 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 <ORG> 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 <ORG> Memo- randa did not receive consideration by the <ORG>. We must remember that the process of choosing and allotting the land to <ORG> took merely two years, during the course of which objections of various kinds were raised from time to time. It was not necessary that every one of these objections should have been mentioned and considered in each of the <ORG> Memoranda. The question of the migratory birds was first raised in the resolution of <ORG> dated June 11, 1981. This resolution was forwarded to the Chief Minister and considered by his as evident from the note of the Chief Minister and the suse- quent reversal of <ORG>'s resolution at the instance of the Chief Minster and on his assurances. The Chief Minister was certainly aware of the question of the migratory birds before it was finally decided to allot the <NAME> land to <ORG>. That the Govern- ment was aware of the dissension based on the alleged ob- struction likely to be caused by a mulit-storeyed building to the flight of the migratory birds appears from the letter of the Chief Minister to the Prime Minister. In this letter, the Chief Minister pointed out that there were already in existence a number of multistoreyed buildings all around the <ORG>logical Garden, but there was no report that they had any adverse effect on the migratory birds or the animals. He also pointed out that all precautions would be taken in the matter of illumination of the hotel and lay out of the surroundings so that no disturbance would be caused to the flight path of the birds or animals. <NAME>, on behalf of <ORG>, also wrote to the Prime Minister assuring her that the hotel management had dis- cussed the matter at length with a representatives of <ORG> who, after discussion, had been satisfied that the proposed hotel would cause no disturbance to the birds. He further assured her that he had himself gone thoroughly into the project with special reference to the possible impace on the birds and the environment and had satisfied himself that project would not caused any disturbance to the birds or their free movement. The reasons given by him have already been extracted earlier by us from his letter. He pointed out that the four-acre plot was not within the main <ORG>logical Garden, but was separated from it by the Belvedere Road which was an important thoroughfare in the city. It was about 700 feet from the main part of the lake. The hotel was porposed to be built away from the frontage of the plot in Belvedere Road and was to be a low-rise structure, the highest point of which would not exceed 75 feet. This was mentioned apparently to indicate that the building would not come within the trajectory of the birds. He mentioned that Dr. <NAME>, a renowned ornithologist had also been consulted by <ORG> and he had also confirmed that a 75 feet building would not interfere with the landing or climb- ing out of the birds from the lake. He further mentioned that the grounds of the <ORG> between the lake and the Belve- dere Road were covered with tall trees and that the birds negotiating the trees would have to fly at the steeper angle than it would be necessary to negotiate the proposed hotel. The vehicular traffic on Belvedere Road which was also heavy did not bother the birds and the slight increase of the vehicular traffic consequent on the construction of the hotel was also not likely to bother them either. It was also pointed out that particular care would be taken in the matter of illumination of the hotel so that bright lights or neor signs emanating from the hotel would not disturb the birds and animals.

The learned counsel for the appellants drew our atten- tion to a letter written by Dr. <NAME> to the <ORG> dated August 3, 1982 in which he disowned having made any statement to a press correspondent by name, <NAME> that the hotel posed no threat at all to the migratory flight path. He explained that what he meant to say was that migratory birds visiting the Zoo lake choose places to the east and south-east of the lake for nocturnal feeding and that their flight to the nocturnal feeding grounds in the marshes would be affected, if the proposed hotel was a high-rise building. Apart from the fact that he did not mention what he had in mind when he spoke of a high-rise building, the point made by <NAME> in his letter to the Prime Minister that birds flying in or flying out had to fly at a very steep angle while negotiating the tall trees between the lake and Belvedere Road, an angle much steeper than the angle at which they would have to fly to negotiate a 75 feet tall building, such as, the proposed hotel, remains unanswered. Be it noted that Belvedere Road is to the east of the lake. We may also note here a point made by Dr. <NAME> in his letter to the <ORG> that there were possible health hazards in the re-location of the Zoo hospital, quarantine area and post-mortem room in the area adjacent to the staff quarters. He is no expert on the subject of public health and no one has complained that there would be any hazard to the health of those living in the staff quarters by the re-location Of the hospital, etc. We are satisfied that the question of obstruction which may be caused to migratory birds did not go unnoticed by the <ORG> before the deciSion to lease the land was taken and we are also satisfied that the building of the proposed hotel is not likely to cause any obstruction to the flight path of the migratory birds.

We may refer here to the resolution of <ORG> to which a reference was made by the Prime Minister in her letter to the Chief Minister. Our attention was drawn by the learned counsel for appellants to the presence of two renowned experts at the meeting of <ORG> on September 25, 1981. They were <NAME>, Director of <ORG> and Mrs. <NAME>. The subject which was discussed by <ORG> on September 25, 1981 was "Construction of a Five-Star Hotel within the premises of <ORG> in Calcutta." The proceedings of <ORG> were recorded as follows:

"Director, <ORG> ex- plained the whole matter and pointed out the utter impropriety of the decision of <ORG> to construct <ORG> within the premises of Alipore Zoo in Calcutta. The Committee agreed fully with this view and desired that this matter should be taken up immediately by <ORG> with the State Government."

This record of the proceedings shows that <ORG> of <ORG> was proceeding on the fundamen- tal wrong assumption that the hotel was proposed to be constructed "within the premises of Alipore Zoo". The reso- lution was justified on the assumed premises but unfortu- nately it was rounded on a wrong premises. Later Mrs. <NAME> appeared to be satisfied with what was finally done as evident from her letter dated November 19, 1983 to Mr. <NAME>, a copy of which has been placed before us. 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 pro- posed hotel in the Begumbari land would interfere in any manner with the animals in the Zoo and the birds arriving at the Zoo or otherwise disturb the ecology: The proposed hotel is a Garden-hotel and there is perhaps every chance of the ecology and environment improving as a result of planting numerous trees all around the proposed hotel and the removal of the burial ground and dumping ground for rubbish. Dr. <NAME> cited before us the well known decisions of this Court in <CITATION> ,  SCR 108; <CITATION> ,  2 SCR 752 and <CITATION> ,  2 SCR 273 to urge that even an administrative decision must be arrived at after taking into account all relevant considera- tions and eschewing irrelevant considerations and that the reasons for an order must find a place in the order itself and those reasons cannot be supplemented later by fresh reasons in the shape of an affidavit or otherwise. The submission was that neither the <ORG> memorandum of Janu- ary 7, 1981 nor the <ORG> Memorandum of September 9, 1981 revealed that relevant considerations had been taken into account. What was not said in either of the <ORG> Memoran- da, it was said, could not later be supplemented by consid- erations which were never present to the mind of the deci- sion making authority. We do not agree with the submission of Dr. <NAME>. The proposition that a decision must be arrived at after taking into account all relevant considera- tions. eschewing all irrelevant considerations cannot for a moment be doubted. We have already pointed out that relevant considerations were not ignored and, indeed, were taken into account by <ORG>. It is not one of those cases where the evidence is first gathered and a decision is later arrived at one fine morning and the deci- sion is incorporated in a reasoned order. This is a case where discussions have necessarily to stretch over a long period of time. Several factors have to be independently and separately weighed and considered. This is a case where the decision and the reasons for the decisions can only be gathered by looking at the entire course of events and circumstances stretching over the period from the initiation of the proposal to the taking of the final decision. It is important to note that unlike <NAME> case where that Court was dealing with a Statutory Order made by a statutory functionary who could not therefore, be allowed to supplement the grounds of this order by later explana- tions, the present is a case where neither a statutory functions nor a statutory functionary is involved but the transaction bears a commer- cial though public character which can only be settled after protracted discussion, clarification and consultation with all interested persons. The principle of <NAME> case has no application to the factual situation here.

It was said that the principles of Natural Justice had not been observed and that those who are most interested in the Zoological Garden were not heard in the matter before the decision was taken. We do not think that anyone can have a justifiable grievance on this score. The proposal to lease the Begumbari land was public knowledge as we have seen. Such as those as were really interested in the matter like <ORG> and the Director of the Zoo did have their say in the matter. <ORG> in its report discussed the matter and invited the <ORG>'s attention to various factors. The matter was further discussed on the floor of <ORG>. It is impossible to agree with the submission that there was any failure to observe principles of Natural Justice.

One of the submissions of Dr. <NAME>, learned counsel for the appellants, was that the Bengal Public Parks Act, 1904 vested the Begumbari land in <ORG> of the <ORG> and that what had become statutorily vested in the <ORG> could not be divested by an execu- tive fiat. We agree that an Act of the <ORG> cannot be undone by a mere act of the executive. But what is the position here? Did the Act deal with the land at all? The Begumbari land was given to the <ORG> by the <ORG> in 1880. We do not have the original grant before us. The entire file of the <ORG> relating to the Begum- bari land was produced before <ORG> without any attempt at withholding any document. The records were before <ORG> and there are now before us two copies of a letter written on July 7, 1880 by the Assistant Secretary to the <ORG> of Bengal in <ORG> to Mr. <NAME>, Honorary Secretary, <ORG> conveying to him the sanction of the Lt. Governor for the transfer of the land to the east of Belvedere Road, known as Begumbari land to the charge of <ORG> on the terms agreed to by the <ORG> in their letter dated April 23rd. The conditions were mentioned as:

"1st. That the land is to be used for the purpose of acclimatization only.

2nd. That Oarnivors are not to be kept on any part of it, on any account.

3rd. That the grounds are to be kept clear and neat.

4th. That the land must be restored to the Government if hereafter required. <ORG> being reimbursed for any expenditure they may have incurred in building there."

Dr. <NAME> questioned the authenticity of the documents and also objected to their reception in evidence on the ground that no foundation had been laid for the reception of sec- ondary evidence. We must straightaway say that no objection was taken either before the single judge or before <ORG> either to the authenticity or to the admissi- bility of the documents. We do not for a moment doubt the genuineness of the two documents which have been produced from old official records. What is important is that <ORG> of <ORG> never doubted the authenticity of the documents nor was any question ever raised to suggest that the terms of the grant were other than those mentioned in the letters. We are satisfied that for the purposes of the present case, we will be justified in proceeding on the basis that the land which was undoubt- edly <ORG> land, to start with, was given to <ORG> upon the terms set out in the two letters. One of the terms was that the land should be restored to the <ORG> whenever required. Another term was that <ORG> Committee would be suitably compensated for any expenditure incurred by it on the construction of any building on the land.

The further submission of Dr. <NAME> was that whatever might have been the terms of the grant in favour of the Zoological Garden, the Bengal Parks Act, 1904, vested the land in favour of the Zoological Garden and there was no way by which the <ORG> could divest the Zoological Garden of the land except by a procedure known to the law such as acquisition or requisition. We are unable to find any sub- stance in the argument. The Bengal Parks Act, 1904 was enacted "to protect public parks and gardens in Bengal from injury and to secure the public from molestation annoyance while resorting to such parks and gardens." The Act was made applicable to the public parks and gardens mentioned in the schedule. The Zoological Garden, Alipore was one such park. Section 3 unables <ORG>, by notification in the official Gazette "to declare that any specified land, bridge or pontoon shall, for the purposes of this Act, be deemed to be included in any park." Section 4 enables the <ORG> to make rules for the management, and preservation of any park, and for regulating the use thereof by the public. In particular, the rules may regulate the admission into the park of persons, animals and vehicles, prohibit the causing of any manner of injury to the trees, plants, monuments, furniture etc. in the park, prohibit shooting, bird-testing etc. prohibit or regulate fishing or boating, prohibit bathing, or the pollu- tion of water by any other means, prohibit the grazing of horses or ponies, prohibit the teasing or annoying of ani- mals or birds kept in the park, prohibit the commission of any nuisance, or the molestation or annoyance of any person resorting to the park etc. etc. From the Preamble and the provisions of the Act, it is clear that the Act is intended to protect the inmates and the property of the park from injury by persons resorting to the park and to protect persons resorting to the park from molestation or annoyance by others. The Act is aimed at protecting the park and its visitiors from injury and annoyance by despoilers and ma- rauders. The Act has nothing whatever to do with the vesting of any property in the parks. There is infact no provision which deals with the vesting of property in a park. Section 3 enables <ORG> to extend by a notification, the boundaries of a park but that can only be for the pur- poses of the Act and not for the purpose of vesting or creating any title in a property. If a piece of adjacent land, for example, is taken on lease for a specified number of years by the park and included in the park by a notifica- tion under sec. 3, it does not mean that the land has become the property of the park; it only means that the various things, the doing of which is regulated or prohibited by the Act and the rules will not be done or will be regulated on the adjacent land also. We do not think that the provisions of the Bengal Public Parks Act have any relevance to the question of the power of the <ORG> to transfer the <NAME> land to <ORG>.

One of the arguments strenuously pressed by Dr. <NAME> was that, even if it was assumed that the <ORG> had the power to transfer the land, the <ORG> did not have the power to deal with the land in any manner that they liked. Certain norms and procedures had to be observed and nothing could be done which would result in loss to the public exchequer. The Bengal Land Manual prescribed the procedure to be followed in the matter of transferring land belonging to the <ORG>. That procedure had to be observed. In any case, it was necessary either to held a public auction or to invite tenders atleast from the limited class of persons interested in utilising the land for the purpose for which the land was proposed to be transferred. The learned counsel invited our attention to several decisions of the court: <NAME> v. State of Orissa, [1969] 3 SCR 374; <CITATION> ,  3 SCR 1014; <CITATION> ,  3 SCR 1338; <CITATION> ,  4 SCC 56; <CITATION> ,  3 SCC 26 and <CITATION> ,  3 SCC 391.

The West Bengal Land Management Manual, 1977 is pub- lished under the authority of <ORG>, West Bengal. Like similar volumes going by whatever name, pub- lished by the <ORG>s of <ORG> of other States, the West Bengal Land Management Manual also is compendium of (1) statutes and rules framed either by the <ORG> or by <ORG> pursuant to a statutory power conferred on them; (2) Orders issued by the <ORG> from time to time; and (3) Orders, circulars, instructions and memoranda issued by <ORG> from time to time. All these are arranged in such a manner that reference to them by the officials of the <ORG> hierarchy is easy. Statutes and statutory orders have, no doubt, to be obeyed. It does not mean that other orders, instructions, etc. may be departed from in an individual case, if applicable to the facts. They are not to be ignored until amended. The <ORG> or the <ORG> may have the power the amend these orders and instruc- tions, but nonetheless they must be obeyed so long as they are in force and are applicable.

The appellants invited our attention to paragraphs 165, 166 and 167 of the Land Management Manual and urged that the rules laid down by the provisions have been ignored by <ORG>. These provisions of the Land Management Manual do not appear to have anything to do with the transfer and use of the land in the manner proposed, in which the <ORG> also has a vital stake apart from the mere raising of revenue for the <ORG>. Paragraphs 165, 166 and 167 deal with simple cases of creation of non-agricultural tenancies by way of long term leases. They generally deal with land which is at the disposal of the <ORG> as waste or surplus land and are intended to secure the best revenue for the <ORG>. They do not deal with cases of trans- fer of land for a specific socio-economic object, where, the securing of immediate revenue is not the principal object but other special and economic benefits are sought. In pursuing the socio-economic objective is the <ORG> bound to invite tenders or held a public auction? To answer this question, we may refer to the cases cited at the <ORG>. In <NAME> v. <ORG> of Orissa (supra) the <ORG> offered the option to purchase kendu leaves to certain old contractors on the same terms as in the previous year. Realising that the scheme of offering to renew con- tracts with the old licences on the same terms was open to objection, the <ORG> changed its policy and formulated a new scheme by which offers were invited from intending purchasers of Kendu leaves but the invitation was restricted to these individuals who had carried out the contracts in the previous year without default and to the satisfaction of the <ORG>. The Court held that the right to make offers being open to a limited class of persons, it effectively shut out all other persons carrying on trade in Kendu leaves and also new entrants into that business. It was, therefore, ex-facie discriminatory and imposed unreasonable restric- tions upon the right of persons other than existing contrac- tors to carry on business. It is to be seen that in the present case no one has come forward alleging that he has been discriminated against and his fundamental right to carry on business had been affected. The very nature of the construction and establishment of <ORG> is indicative of a requirement of expertise and sound financial position on the part of those who might offer to construct and establish them. The decision taken by <ORG> was an open decision well-known to everyone in the hotel business. Yet no one except the <ORG> and <ORG> had come forward with any proposal. We have it in the record that the Oberoi Group of Hotels already had <ORG> in Calcutta while <ORG> were making their own Private negotiations and arrangements for establishing <ORG>. In the circumstances, particularly in the absence of any leading hoteliers coming forward, <ORG> was perfectly justified in entering into negotiations with the <ORG> and <ORG> instead of inviting tenders.

<CITATION> (supra). <NAME>, J. speaking for the Court observed that the activities of the <ORG> had a public element and if it entered into any contract, it must do so fairly without discrimination and without unfair procedure. Whenever the <ORG> dealt with the public, whether by way of giving jobs or entering into contracts or issuing quotas or li- cences or granting other forms of larges, the <ORG> could not act arbitrarily at its sweet-will but must act in conformity with standards or norms without being arbitrary, irrational or irrelevant. If the <ORG> departed from such standard or norm in any particular case or cases its action was liable to be struck down unless it could be shown that the departure was not arbitrary but was based on some valid principle which was not irrational, unreasonable or dicriminatory. In the present case as earlier explained by us direct negotiation with these who had come forward with proposals to construct <ORG> was without doubt the most reasonable and rational way of proceeding in the matter rather than invit- ing tenders or holding public auction. There was nothing discrminatory in the procedure adopted since no other lead- ing hotlier had shown any inclination to come forward. Tenders and Auction were most impractical in the circum- stances.

In <NAME> v. State of Jammu and Kash- mir (supra), <NAME>, J. again, speaking for the <ORG> reiterated what had said earlier in <NAME> v. <ORG> (supra). He proceeded to say, "The <ORG>, therefore, cannot, for exam- ple, give a contract or sell or lease out its property for a considerations less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. Such considerations may be that some Directive Principle is sought to be advanced on implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it or that the person who has offered a higher consideration is not otherwise fit to be given the contract or the property. We have referred to those considerations only illustratively, for there may be an infinite variety of con- siderations which may have to be taken into account by the <ORG> in formulating its policies and it is on a total evaluation of various considerations which have weighed with the <ORG> in taking a particular action, that the <ORG> would have to decide whether the action of the <ORG> is reasonable and in public interest. But one basic principle which must guide the <ORG> in arriving at its determination on this question is that there is always a presumption that the <ORG>al action is reasonable and in public interest and it is for the party challenging its valid- ity to show that is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the <ORG> by proper and ade- quate material. The <ORG> cannot lightly assume that the action taken by the <ORG> is unreasonable or without public interest because, as we said above, there are a large number of policy considerations which must necessarily weigh with the <ORG> in taking action and therefore the <ORG> would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied, it would be the plainest duty of the <ORG> under the Constitution to invalidate the governmental action."

With reference to the particular facts of the case, it was stated, "The argument of the petitioners was that at the auctions held in December, 1978, January 1979 and April 1979, the price of resin rea- lised was as much as Rs. 484, Rs. 520 and Rs.

700 per quintal respectively and when the market price was so high, it was improper and contrary to public interest on the part of the state to sell resin to the second respondents at the rate of Rs. 320 per quintal under the impugned order. This argument, plausible though it may seem is fallacious because it does not take into account the policy of the state not to allow export of resin outside its territories but to allot in only for use in factories set up within the <ORG>. It is obvious that, in view of this policy, no resin would be auctioned by the <ORG> and there would be no question of sale of resin in the open market and in this situation, it would be totally irrelevant to import the concept of market price with reference to which the adequacy of the price charged by the <ORG> to the second respondents could be judged. If the <ORG> were simply selling resin, there can be no doubt that the <ORG> must endeavour to obtain the highest price subject, of course, to any other over-riding considerations of public interest and in that event, its action in giving resin to a private individual at a lesser price would be arbitrary and contrary to public interest. But, where the <ORG> has, as a matter of policy, stopped selling resin to outsiders and decided to allot it only to industries set up within the <ORG> for the purpose of encouraging industrialisation, there can be no scope for complaint that the <ORG> is giving resin at a lesser price than that which could be obtained in the open market. The yardstick of price in the open market would be wholly inept, because in view of the <ORG> Policy, there would be no question of any resin being sold in the open market. the object of the <ORG> in such a case is not to earn revenue from sale of resin, but to promote the setting up of industries within the <ORG>."

And again, "If the <ORG> were giving tapping contract simpliciter there can be no doubt that the <ORG> would have to auction or invite tenders for securing the highest price, subject, of course, to any other relevant overriding considerations of public weal or interest. but in a case like this where the <ORG> is allo-

cating resources such as water, power raw materials etc. for the purpose of encouraging setting up of industries within the <ORG>, we do not think the <ORG> is bound to advertise and tell the people that it wants a particular industry to be set up within the <ORG> and invite those interested to come up with pro- posals for the purpose. The <ORG> may choose to do so, if it thinks fit and in a given situation, it may even turn to be advantageous for the <ORG> to do so, but if any private party comes before the <ORG> and offers to set up an industry, the <ORG> would not be commit- ting breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry."

The observations of the <ORG> in the light of the facts therein appear to fully justify the action of <ORG> in the present case not inviting tenders or not holding public auction.

<CITATION> (supra), it was held that it was not open to <ORG> to pick and choose a few persons only as the recipients of the notice of reauc- tion. There was no explanation as to how they came to be chosen and what their status and standing in the trade were to justify the choice. The conduct of the authorities was thought not above suspicion. We have already explained why the choice of <ORG> must be held to be beyond suspicion and above reproach.

<CITATION> (supra) dealing with the question of disposal of <ORG> property <NAME>, J. speaking for the court said, "Let us put into focus the clearly demarcated approach that distinguishes the use and dis- posal of private property and socialist property. Owner of private property may deal with it in any manner he likes without causing injury to any one else. But the socialist or if that word is jarring to some, the community or further the public property has to be dealt with for public purpose and in public inter- est. The marked difference lies in this that while the owner of private property may have a number of considerations which may permit him to dispose of his property for a song. On the other hand, disposal of public property par- takes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the <ORG> administration would serve public purpose viz. the welfare <ORG> may be able to expand its beneficial activities by the avail- ability of larger funds. This is subject to one important limitation that socialist property may be disposed at the price lower than the market price or even for a token price to achieve some defined constitutionally recongnised public purpose, one such being to achieve the goals set out in Part IV of the Constitution. But where disposal is for aug- mentation of revenue and nothing else, the <ORG> is under an obligation to secure the best market price available in a market econo- my. An owner of private property need not auction it nor is he bound to dispose it of at a current market price. Factors such as per- sonal attachment, or affinity, kinship, empa- thy, religious sentiment or limiting the choice to whom he may be willing to sell, may permit him to sell the property at a song and without demure. A welfare <ORG> as the owner of the public property has no such freedom while disposing of the public property. A welfare <ORG> exists for the largest good of the largest number more so when it proclaims to be a socialist <ORG> dedicated to eradica- tion of poverty. All its attempt must be to obtain the best available price while dispos- ing of its property because the greater the revenue, the welfare activities will get a fillip and shot in the arm. Financial con-

straint may weaken the tempo of activities. Such an approach serves the larger public purpose of expanding welfare activities primarily for which Constitution envisages the setting up of a welfare State."

<CITATION> (supra) it was observed that public officials entrusted with the care of 'public property' were required to show exem- plary vigilance. The Court indicated that the best method of disposal of such property was by public auction and not by private negotiation. That was a case where land belonging to a <ORG> was sold by private trenty for Rs. 20 lakhs when there were people ready to purchase the land for Rs. 80 lakhs. The difference between sale of land and other readily saleable commodities and the allotment of land for estab- lishing a modern <ORG> of International standard is so obvious as to need no more explanation. On a consideration of the relevant cases cited at the bar the following propositions may be taken as well estab- lished. State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the depar- ture must be rational and should not be suggestive of dis- crimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appear- ance of bias. jobbery or nepotism.

Applying these tests, we find it impossible to hold that <ORG>, did not act with probity in not inviting tenders or in not holding a public auction but negotiating straightaway at arm's length with <ORG>. , The last and final submission of the learned counsel for the appellants relates to the commercial and financial aspects of the lease. According to the learned counsel, the 'nett sales' method of calculating the compensation payable to the <ORG> for the lease of the land had totally sacrificed the <ORG>'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 <ORG> would have been much higher. We do not think that there is any basis for any genuine criticism. The 'nett sales' method appears to be a fairly well known method adopted in similar situations. This was what was recommended by <ORG>, the consulting agency of the West Bengal <ORG> which sub- mitted a detailed report on the subject. This was also the recommendation of <ORG> who went into the matter in depth. Even to lay persons like us who are no financial experts, it appears that the 'nett sales' method does and the rent-based-on-market-value method does not take into account the appreciating value of land, the inflation- ary tendency of prices and the profit orientation. Even on a prima facie, there appears to be nothing wrong or objection- able in the 'nett sales' method. It is profit oriented and appears to be in the best interests of <ORG>.

On a consideration of all the facts and circumstances of the case, we are satisfied that <ORG> acted perfectly bona fide in granting the lease of Begumbari land to <ORG> for the construc- tion of a Five-Star hotel in Calcutta. <ORG> 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 <ORG> were in no way sacri- ficed either by not inviting tenders or holding a public auction or by adopting the 'nett sales' method. In the result, the judgments of the learned single judge and <ORG> of <ORG> are affirmed and the appeal is dismissed. In the circumstances of the case, we do not desire to award any costs.

<NAME>, <NAME>: The tenacity with which this expensive public interest litigation was pursued by the petitioners, before the learned Single <NAME>udge and a Division Bench of <ORG> and before this <ORG> is commendable. But, after hearing the lengthy arguments advanced, I ask myself the question whether this exercise could not have been avoided.

Originally the writ petition was filed by five persons. The supporting affidavit to the writ petition was sworn to by the first petitioner who described himself as a trade unionist. Petitioner No. 2 & 3 are the life members of the <ORG> and the remaining two, bona fide residents of Greater Calcutta and lovers of wild life. The same five persons figured as appellants before <ORG>. However, before this <ORG> there are only two petitioners, the 1st and the 2nd in the writ petition.

3rd and 4th petitioners figure here as respondents 6th and 7th. The 5th petitioner does not figure in the array of parties.

My learned brother has considered the facts in detail and the questions of law relevant for the purpose of this appeal. I fully agree with his conclusions. This short tail piece is with a purpose. This case goes by the name "Public Interest Litigation." I wish to delineate the parameters of public interest litigation concisely, against the background of the facts of this case, so that this salutory type of litigation does not lose its credibility. Today public spirited litigants rush to Course to file cases in profusion under this attractive name. They must inspire confidence in <ORG> and among the public. They must be above suspicious. See the facts of this case and end result.

The concern of the appellants has been to preserve the <ORG>, to protect and encourage the migratory birds, to keep their trajectory clear, to preserve their diurnal feed and nocturnal habitat and to protect the <ORG>. To serve this purpose they want to prevent <ORG> coming up in its vicinity in_four acres land belonging to the <ORG> and thus to see that this land is not lost to the <ORG>. The litigation has been pending from 1982 and in the bargin what has hap- pened is described by the learned Trial Judge as follows, in paragraph 130 of his Judgment:

"130. Prayer for stay of the operation of this order is rejected. Because of the pendency of this matter, valuable time has been lost and may not have any further interest in the matter. They have suffered sufficient loss and the <ORG>. will also suffer loss. The public has also suffered. Accordingly, I am not inclined to stay this matter any further. I ought to point out further that as the peti- tioners obtained the interim order, obviously they were not interested in an early hearing of this matter and until a few months back no step was taken to have this matter heard. If a stay is granted, similar situation will fol- low."

This public interest:litigation takes its birth, perhaps from the righteous indignation of the petitioners, against <ORG> at their bartering away of four acres of land belonging to the Zoo to <ORG>. The writ petition is mainly based on the ground that the deci- sion of the <ORG> is arbitrary. The question to be answered is whether this accusation can be justified. On a perusal of the records I find that <ORG> had made available to the <ORG> all the relevant documents so as to satisfy the <ORG> about the propriety of its action. This is how the trial Judge deals about this aspect of the case:

"4. Before I deal with the contention of the parties before me I ought to point out one thing. In this case, ultimately the hearing was not confined only in respect of the mate- rials specified .in the petition and affida- vits or annexure to the same, but the submis- sions were based on the further documents and files produced before me mainly by the <ORG> and also some documents by the private re- spondent being respondent No. 5.1 ought to point out that this is one of the exceptional cases where the <ORG> has made available to this Court all documents in connection with the proposal for lending over a piece of the <ORG> Government land to respondent No. 5 to enable them to construct a 5-star hotel in Calcutta. The <ORG> Government has produced before me the original files, including those containing the notes and <ORG> Memorandum for my inspection, the facts which I shall set out herein are gathered from these records and files produced before me, though most of them do not find place in the affidavits ............. "

The two portions of Judgment extracted above show that things: one, the petitioners did not take any steps to get the matter heard expeditiously, after they obtained an interim order to get all the work stopped; two, that the State Government made available to the <ORG> all the materi- als to prove that its decision was taken after mature con- sideration at all levels.

The appellants failed before the learned Trial Judge on all the points raised by them. After an exhaustive discus- sion of the various aspects of the case, the learned Trial Judge dismissed the petition. The only ground on which the appellants succeeded before the Trial Judge was on locus standi. This preliminary objection of <ORG> was rejected.

The matter was taken in appeal. <ORG> in an equally reasoned Judgment, adverting to all the factual aspects of the case, upheld the Judgment of the learned Trial Judge and dismissed the appeal.

One redeeming factor in this case is the total absence of any allegation of malafides against the <ORG> by the petitioners. This is how <ORG> deals with aspect of the case in its Judgment:

"The appellants before us have impunged <ORG> decision to grant aforesaid four acres of land out of Begumbari Compound to <ORG>, mainly on the ground that the same was unreasonable and arbitrary. <ORG> did not apply its mind to relevant facts before disposing of the said valuable lands in discharge of the public interest. In their writ petition or in course of their submissions before us the appellants did not try to make out a case of personal malice against <ORG> or its Ministers and Civil Servants ......... "

<ORG> held that the decision taken was neither unreasonable nor arbitrary and that taking away of four acres of land from the Zoo was not detrimental to public interest.

One would have thought that the concurrent decisions of the learned Single Judge and <ORG>, on the facts of the case, would have persuaded the appellants, to rest content with the litigation by accepting the verdicts so given. They could have moved the <ORG> or taken other steps to expedite the starting of an additional Zoo with a larger extent which the <ORG> promised. But the appellants felt that public interest would be served better by moving this <ORG> for reconsideration of the factual details. When the matter came up before this <ORG>, this <ORG> gave priority to this case despite the huge pendency of cases before it, to see whether public interest was really in peril or not.

During the course of the arguments, we soared high along with the migratory birds into the realms of ecology, envi- ronmental protection, public interest, natural justice, arbitrariness, eminent domain and the like and ultimately, from those ethereal regions descended on the terraferma faced with the reality that this case is devoid of any merits and has only to be dismissed. That is why I prefaced this Judgment with the observation that this was an avoid- able exercise.

The approach of <ORG> in this case has been creditably fair. They have given all the assurances necessary to preserve the <ORG> and its inmates. They were willing to afford all the requisite safeguards. In the place of a dilapidated hospi- tal, operation theater and the like, they constructed build- ings anew at a cost of Rs.30 lakhs which amount they were entitled to be reimbursed under clause 25 of the lease, which they voluntarily gave up. In addition to this, they surrendered an area of 288 sq. mtrs. from the land allotted to them to the <ORG>. They agreed to build not the usual skyscrapper hotel, but a garden hotel, the height of which would not go beyond 75 feet, despite the fact that there existed in the surrounding area buildings which were very high. This was done to keep free the route of the flight of the birds. They also agreed to have subdued light in' the hotel, again in the interest of the birds. They agreed to keep the surroundings of the hotel and the flora well main- tained. We were told that already 30000 plants were getting ready to adorn the area to be occupied by them. Regarding the commercial and financial aspects of the lease also there is nothing secretive though they came in for sharp criticism at the hands of the appellants before us. This criticism again, according to me, is unfounded. The learned counsel for <ORG> made available to us, the method adopted. The method adopted is the nett sales method of calculating the compensation paid. This is a fairly well known method adopted in such situations. This method was also subject to criticism by the appellants' counsel and he in support of his submission handed over to us a calcula- tion, which according to me, betrays unawareness with the method of calculation to be adopted in similar cases. The calculation given to us so far as its arithmetic is con- cerned is correct. That is this. An amount of 4 crores, if deposited in bank, at a particular rate of compound inter- est, for 99 years, would swell to an astronomical figure. This calculation is relevant only when you think of selling the land and investing the sale proceeds in a bank. This calculation conveniently forgets that what is involved here is not the sale of the land but a lease by the <ORG>, as a policy decision to the hotel group to start <ORG>, which according to the <ORG> was a prime need to the city of Calcutta. The calculation handed over has no bearing to the facts of this case at all.

A deal like this cannot be concluded by public auction. Here, we do not have a case, again, sale of a <ORG> property. Therefore, public auction has necessarily to be ruled out. Only <ORG> came forward with an offer to start the hotel. The lease was the culmination after a long, elaborate and open procedure with nothing to hide which therefore cannot justifiably be subject to ad- verse criticism.

My purpose in adding these few lines of my own is to highlight the need for restraint on the part of the public interest litigants when they move <ORG>. Public interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guide-lines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of Public Interest Litigations, the tradi- tional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions. I should not be understood to say that traditional litigation should stay put. They have to be tackled by other effective methods, like. decentralising the judicial system and entrusting majority of traditional litigation to village courts and <ORG> without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this <ORG>, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the under-dog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this <ORG> are always open for anyone to walk in. It is necessary to have some self imposed restrain of public interest liti- gants.

Ultimately, by the dismissal of this appeal, the hotel will be completed and will be commissioned. Six long years have passed by. I do not think that the appellants have achieved anything. The first appellant who is a trade union- ist has not espoused any grievance of the <ORG> before us. It was faintly suggested by the <ORG>'s counsel that the first petitioner does not represent all the maz- doors. This was refuted by the appellants. For the purpose of this case, we will accept the assertion of the first appellant. Still, we did not have before us any of their grievances ventilated, which, if there were any, we would have willingly considered.

I conclude this short Judgment, with a lurking doubt in my mind, and with a question "Is there something more than what meets the eye in this case?"

S.R. Appeal dis- missed.