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HIGH COURT OF CALCUTTA
Altamas Kabir, J.
Concern For Calcutta & Ors.
vs.
State of West Bengal & Ors.
Matter No. 3004 of 1994
Decided On: December 21, 1995
INDIAN MUSEUM - CONSTRUCTION OF NEW BUILDING - ECOLOGICAL AND ENVIRONMENTAL CONCERNS - APPLICABILITY OF WEST BENGAL INLAND FISHERIES ACT, 1984 - APPLICABILITY OF WEST BENGAL TOWN AND COUNTRY (PLANNING AND DEVELOPMENT) ACT, 1979 - APPLICABILITY OF ENVIRONMENT PROTECTION ACT, 1986 - APPLICABILITY OF WILDLIFE PROTECTION ACT, 1972 - APPLICABILITY OF ARTICLE 48A AND 51A(G) OF THE CONSTITUTION OF INDIA - APPLICABILITY OF PUBLIC INTEREST LITIGATION - APPLICABILITY OF LOCUS STANDI - APPLICABILITY OF RAMSAR CONVENTION - APPLICABILITY OF GOVERNMENT BUILDINGS ACT, 1899 - APPLICABILITY OF CALCUTTA MUNICIPAL ACT, 1980 - APPLICABILITY OF CALCUTTA MUNICIPAL CORPORATION BUILDING RULES, 1990 - APPLICABILITY OF CENTENARY VOLUME, INDIAN MUSEUM 1814-1914 - APPLICABILITY OF DEVELOPMENT PLAN - APPLICABILITY OF OUTLINE DEVELOPMENT PLAN.
Fact of the Case:
The writ petitioners are certain well-known social organisations who have joined together in filing the writ application which is in the nature of public interest litigation. The cause of action for the writ petition is the decision taken by the authorities of the Indian Museum situated at 27, Jawaharlal Nehru Road, Calcutta-16 to erect a multi-storeyed complex in the aforesaid premises by encroaching upon and filling up the major portion of a two hundred year old historical water body or tank situated in the campus of the said Museum.
Finding of the Court:
1. The Court held that the ecological balance of the Museum pond will not be disturbed if a portion of the pond is allowed to be filled up for erection of the proposed building, particularly when the volume of the water in the tank will not be diminished but will, on the other hand, be increased by the excavation of the pond on the remaining three sides to the South, East and West. 2. The Court held that the provisions of the West Bengal Inland Fisheries Act, 1984, would not have application to the Museum tank which does not appear to be used for pisciculture. 3. The Court held that till such time as the ODP became operative in accordance with the provisions contained in Chapter VI of the 1979 Act, no permission was required to be taken for the purpose of development on any land in accordance with the provisions of sub-so (3) of s. 46 of the said Act. 4. The Court held that the flora and fauna in the Museum tank, some of which are of a rare variety, are likely to be destroyed in the event the new building is allowed to be erected as planned, by filling up a portion of the tank to its North. 5. The Court held that the sanction to the proposed Building Plan has been granted subject to the conditions imposed by the Calcutta Municipal Corporation, one of such conditions being that the volume of the water body would not be disturbed, the submission made on behalf of the writ petitioners regarding disturbance of the bio-diversity in the Museum tank and/or the likelihood of ecological imbalance and environmental pollution on account of the raising of the new building, loses much of its force. 6. The Court held that the grounds on which sanction was granted to the Building Plan submitted by the Municipal authorities may be challenged has been incorporated in s. 396(2) of the 1980 Act. None of the said grounds are, however, started to the facts of this case.
Issues: 1. Whether the steps taken by the authorities of the Indian Museum for construction of its proposed building, violate any existing law? 2. In the event such action was not contrary to any law, could the same be challenged on moral, ethical, ecological and historical considerations? 3. In the event there were two conflicting interests of a public nature and an attempt was made by the concerned public authority to strike a balance between such conflicting interests, would it be open to the Court to interfere with such action of the public authority? 4. Could a writ application be made belatedly when the purported cause of action arose long before the filing of such application.
Ratio Decidendi: 1. The Court held that the ecological balance of the Museum pond will not be disturbed if a portion of the pond is allowed to be filled up for erection of the proposed building, particularly when the volume of the water in the tank will not be diminished but will, on the other hand, be increased by the excavation of the pond on the remaining three sides to the South, East and West. 2. The Court held that the provisions of the West Bengal Inland Fisheries Act, 1984, would not have application to the Museum tank which does not appear to be used for pisciculture. 3. The Court held that till such time as the ODP became operative in accordance with the provisions contained in Chapter VI of the 1979 Act, no permission was required to be taken for the purpose of development on any land in accordance with the provisions of sub-so (3) of s. 46 of the said Act. 4. The Court held that the flora and fauna in the Museum tank, some of which are of a rare variety, are likely to be destroyed in the event the new building is allowed to be erected as planned, by filling up a portion of the tank to its North. 5. The Court held that the sanction to the proposed Building Plan has been granted subject to the conditions imposed by the Calcutta Municipal Corporation, one of such conditions being that the volume of the water body would not be disturbed, the submission made on behalf of the writ petitioners regarding disturbance of the bio-diversity in the Museum tank and/or the likelihood of ecological imbalance and environmental pollution on account of the raising of the new building, loses much of its force. 6. The Court held that the grounds on which sanction was granted to the Building Plan submitted by the Municipal authorities may be challenged has been incorporated in s. 396(2) of the 1980 Act. None of the said grounds are, however, started to the facts of this case.
Final Decision: The writ application is disposed of with the above observations. There will be no order as to costs.
The Court: The writ petitioners are certain well-known social organisations who have joined together in filing the writ application which is in the nature of public interest litigation.
2. The cause of action for the writ petition is the decision taken by the authorities of the Indian Museum situated at 27, Jawaharlal Nehru Road, Calcutta-16 to erect a multi-storeyed complex in the aforesaid premises by encroaching upon and filling up the major portion of a two hundred year old historical water body or tank situated in the campus of the said Museum.
3. Appearing in support of the writ petition, Mr. Ahin Chudhuri at the very outset submitted that the writ application was being moved in the public interest with the sole object of protecting the environmental condition of the city of Calcutta and the said water body or pond, which is both of ecological as well as historical importance.
4. Mr. Chaudhuri submitted further that the tank in question, historically known as "the Zin-zira Talao", was one of twelve fresh water tanks exavated in the city of Calcutta in the early part of the 18th century for the purpose of supplying water to the central sector of the city and also for the purpose of pisciculture. The said pond is situated at what is now nubered as 1, Sudder Street, which is approachable both from Kyd Street, as also from Jawaharlal Nehru Road.
5. Mr. Chudhuri urged that frequent references have been made to the said pond in historical documents relating to the city of Calcutta and the Indian Museum and was, inter alia, referred to as a hunting ground for zoologists since it supports the most species of fresh water sponge than any body of water of similar area that has ever been investigated. Mr. Chaudhuri submitted that the said reference to the pond in question has been made in a book published by the trustees of the Indian Museum in 1914 known as "Centenary Volume, Indian Museum 1814-1914".
6. Mr. Chaudhuri submitted that by a notice No. 123/93-94 dated 17th August, 1993, the Calcutta Municipal Corporation published a list of tanks/water bodies, wet lands and canals which were referred to as protected water bodies. The museum pond was included at Serial No. 65 in the said list. Mr. Chaudhuri submitted that in the said notice it was mentioned that no mutation or separation or sanction for a Building Plan involving unauthorised filing up of the said water bodies would be granted. It was also mentioned that no application for filing up or for sub-division of any water body measuring more than 1,500 Square Meters, would even be considered by the Calcutta Municipal Corporation. It was categorically indicated in the said notice that none of the water bodies included in the said list could be filled up without the permission of the Calcutta Municipal Corporation.
7. Mr. Chaudhuri urged that the pond in question, hereinafter referred to as the "Museum Water Body", would be much more than 1,500 Square Meters and, accordingly, no private or public body would be entitled to apply to the Calcutta Municipal Corporation for filling up the said water body and for grant of sanction to raise buildings thereupon.
6. Mr. Chaudhuri then urged that under the provisions of the West Bengal Inland Fisheries Act enacted in 1984, as amended by the West Bengal Inland Fisheries (Amendment) Act, 1994, no person is authorised to fill up any water area measuring five cottahs or more, which is capable of being used as fishery, or any depressed land measuring five cottahs or more, which retained water for a minimum period of six months in a year, with a view to' converting it into a solid land for the purpose of construction of any building thereon, or to divide such water area.
9. Mr. Chaudhuri submitted that the said Act also provides that no such water area can be filled up with a view to converting it into solid land for the purpose of implementation of any development scheme by any public undertaking under the administrative control of the Central
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