JUDGMENT 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 Chudhuri urged that frequent references have been made to the said pond in historical documents relating to the city of Calcutta and the Indian Museum and was, inter alia, referred to as a hunting ground for zoologists since it supports the most species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. 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 Government or the State Government or any statutory Body or Local Authority or any organisation in the public sector or any individual, except with the prior approval of the Department of Fisheries, Government of West Bengal. 10. 10. Referring to s.17A, which was included in the parent Act by the Amending Act of 1993, Mr. Chaudhuri urged that under clause (b) of sub-s. (1) of s. 17A a complete bar had been imposed to the filling up of any water area, including embankment or natural or artificial depressed landholding as aforesaid, with a view to converting it into solid land for the purpose of construction thereupon or for any other purpose. 11. Mr. Chaudhuri submitted that despite the above, on 19th September, 1993, the Museum authorities caused the foundation stone of a new Building to be laid by the President of India, and the petitioners, thereafter, came to learn of the proposal of the Museum authorities to construct the new seven-storyed Building by filling up the major portion of the Museum pond. Mr. Chaudhuri urged that despite representations, since the concerned authorities did not take any steps in the matter, the petitioners were compelled to move the present writ application. 12. Mr. Chaudhuri submitted that in addition to the restrictions of filling up of large water bodies imposed by the West Bengal Inland Fisheries Act, 1984 certain restrictions are also included in the West Bengal Town and Country (Planning & Development) Act, 1979, hereinafter referred to as the "1979 Act", whereby any person or body, except for a department of the Central and State Governments or any Local Authority intending to carry out development work in respect of any land, which included land covered by water, was required to obtain the permission of the Planning or Development Authority which had the discretion to either grant or refuse such permission. 13. Mr. Chaudhuri urged that it was incumbent for the Board or Trustees of the Indian Museum to obtain such permission from the Competent Authorities under s. 46 of the 1979 Act for the proposed construction and in dealing with such prayer, the planning Authority or Development Authority was obliged to take into account in the proper perspective the historical, ecological and environmental importance of the water-body, its usefulness as a draining spill, its utility for fire-fighting purposes and for pisciculture. According to Mr. Chaudhuri, no such permission was sought for by the Museum authorities before proceeding with the plans for construction of the new building and the proposed construction was, therefore, violative of the provisions of s, 46 of the 1979 Act. 14. Mr. According to Mr. Chaudhuri, no such permission was sought for by the Museum authorities before proceeding with the plans for construction of the new building and the proposed construction was, therefore, violative of the provisions of s, 46 of the 1979 Act. 14. Mr. Chaudhuri then submitted that under the Government Buildings Act, 1899, no sanction is required to be obtained from the municipal authorities for the construction of certain types of Government buildings, mainly in relation to defence, but in the instant case the said provisions could not be invoked in view of the bar imposed under the other enactments, referred to hereinbefore, in filling up water-bodies for raising constructions thereupon. Mr. Chudhuri also urged that the building proposed to be constructed by the Museum authorities, could not strictly be said to be a Government building within the meaning of the aforesaid Act. 15. Mr. Chadhuri urged that the Development Authority should have either refused permission 01 should have ensured that permission was not given by any of the authorities to the proposal for construction of the building by encroaching upon and filling up the major portion of the museum-pond, since its preservation was of great environmental and ecological importance. The water-body was considered by the Zoologicql Survey of India to be a "Type locality", which has yielded new-species of flora and fauna over the last 100 years or so. Mr. Chaudhuri urged that as a signatory to the Ramsar Convention, India was under a compulsion to protect and conserve wet-land habitats as major area of bio-diversity. 16. Mr. Chaudhuri urged that the rare aquatic life in the museum pond would be endangered if any portion of the said pond was allowed to be filled up and convered by a building and its bio-ecological character, which the Calcutta Municipal Corporation had considered necessary to be preserved, would be destroyed. 17. Mr. Chaudhury then submitted that the learned Judge before whom the writ petition was moved, appointed Dr. A. K. Ghosh, Director of Zoological Survey of India, as Special Officer on consent of the parties and asked him to submit a report on the averments in the writ petition. Mr. Chaudhuri submitted that such report was filed on 8th August, 1994. 18. Referring to the said report, Mr. Chaudhuri pointed out that it was Dr. A. K. Ghosh, Director of Zoological Survey of India, as Special Officer on consent of the parties and asked him to submit a report on the averments in the writ petition. Mr. Chaudhuri submitted that such report was filed on 8th August, 1994. 18. Referring to the said report, Mr. Chaudhuri pointed out that it was Dr. Ghosh's view that the Museum pond offers a significant array of biodiversity in the urban scenario and can be considered to be of multi-functional use with high index value for bio-diversity, including a significant number of rare and endemic "taxa" of high value. Mr. Chaudhuri urged that it was Dr. Ghosh's considered opinion that the selection of site may be reviewed by the concerned authorities for preservation of the ecological heritage. 19. Mr. Chaudhuri submitted that having consented to Dr. Ghosh's appointment as Special Officer for the purpose of holding an inspection and submitting a report, it was not really open to the Museum authorities to make an application for setting aside the report submitted by him upon contending that Dr. Ghosh, in his personal capacity, has all along been opposed to the project of the Indian Museum for construction of a new building and that he had ventilated his aversion to, the said project in different seminars symposiums, and meetings. 20. Mr. Chaudhuri next referred to the affidavit affirmed on behalf of the Calcutta Metropolitan Development Authority. In particular, he referred to the averments made in sub-paragraphs (f) and (g) of paragraph 3 of the said affidavit wherein it has been affirmed that the pond in question has not only historical importance, being one of the twelve fresh water tanks excavated in the earlier part of the 18th century, but also has tremendous importance from the ecological, educational environmental points of view. It has also been categorically pointed out that the Museum pond is 'one of the ponds included in the notice dated 17th August, 1993, issued by the Calcutta Municipal Corporation under delegated powers conferred upon it by the Calcutta Metropolitan Development Authority hereinafter referred to as "the CMDA" as one of such tanks which under no circumstances could ever be filled up. 21. Mr. 21. Mr. Chaudhuri then referred to the affidavit affirmed on behalf of the Calcutta Municipal Corporation and pointed out that in paragraph 11 of the said affidavit it had been stated on behalf of the Corporation also that the Museum pond had been included in the above-mentioned notice as one of the water bodies which could not be filled without the permission of the Calcutta Municipal Corporation. 22. Mr. Chaudhuri submitted that no special circumstances had been made out in which the embargo imposed by the said notice could be lifted. 23. Mr. Chaudhuri submitted that from Annexure “X-I” to the said Affidavit it would also be evident that, although, a recommendation had made accepting the proposal of the Museum authorities to construct its new building after partial filling of the Museum tank, such recommendation was made subject to amalgamation of the two premises on which the Museum was situated. 24. Mr. Chaudhuri urged that in the above-mentioned circumstances and having particular regard to the report submitted by Dr. A. K. Ghosh and the stand taken by the Calcutta Metropolitan Development Authority, the respondents should be directed to constitute an independent Expert Committee to consider and assess the environmental and ecological impact of the proposed construction and to submit a report to this Court to that effect and not to allow any construction at the site in question except in accordance with the recommendation of such Expert Committee. 25. Appearing for the Indian Museum, Mr. Pradip Kumar Ghosh, learned advocate, firstly urged that the points at issue in the present writ application could be summarised into four broad issues, namely, (i) Whether the steps taken by the authorities of the Indian Museum for construction of its proposed building, violate any existing law; (ii) In the event such action was not contrary to any law, could the same be challenged on moral, ethical, ecological and historical considerations; (iii) 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; and (iv) Could a writ application be made belatedly when the purported cause of action arose long before the filing of such application. 26. In support of the first of the said four issues, Mr. 26. In support of the first of the said four issues, Mr. Ghosh submitted that as far back as on 5th October, 1988, the Board of Trustees of the Indian Museum resolved that the proposal for construction of a new multi-storeyed wing to replace the rear gallery or erecting a multi-storeyed building on the Museum tank, could be taken up for consideration On 24th February, 1990, the Building Committee constituted by the said Board felt that the tank-site was a suitable location where a new building could be erected on stilts. The Consulting Architect of the Central Public Works Department, hereinafter referred to as “CPWD", agreed to make a sketch of two proposed buildings for consideration of the Board. 27. Mr. Ghosh submitted further that one of the proposed models prepared by the Consulting Architect of the CPWD was accepted by the Trustees of the Museum at a meeting of the Board held on 19th July, 1990, and the Building plan prepared on the basis of the said model was submitted to the Calcutta Municipal Corporation on 1st April, 1991, for sanction, Mr. Ghosh submitted that on 10th May, 1993, the Government of West Bengal informed the Municipal Commissioners that it had no objection if the Museum authorities filled up a portion of the Museum pond for the proposed construction. 28. Mr. Ghosh then submitted that on 16th August, 1993, the Municipal Building Committee gave its approval to the Building plan submitted by the Museum authorities, Subsequently, on 1st September, 1993, the Mayor-in-Council also approved the said plan and the Calcutta Municipal Corporation granted working permission to the Museum authorities on 13th September, 1993, Mr. Ghosh submitted that on payment of sanction fee the Calcutta Municipal Corporation granted formal sanction to the Building plan on 27th September, 1994. 29. Referring to the various provisions of the Calcutta Municipal Act, 1980, relating to construction of buildings and the Building Rules framed in respect thereof in 1990, which came into force on and from 17th December, 1990, Mr. Ghosh urged that once the Building Plan had been formally sanctioned by the Calcutta Municipal Corporation, the Museum authorities could not be prevented from proceeding with the construction work either under the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979, or any other legal prevision. 30. Mr. Ghosh urged that once the Building Plan had been formally sanctioned by the Calcutta Municipal Corporation, the Museum authorities could not be prevented from proceeding with the construction work either under the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979, or any other legal prevision. 30. Mr. Ghosh submitted that s. 31 of the 1979 Act provides for the preparation of an Outline Development Plan, hereinafter referred to as “ODP", by a planning Authority or Development Authority for the Planing Area. Mr. Ghosh pointed out the once that ODP had been prepared, the same required the approval of the State Government, and after such approval was given, a public notice of such approval was required to be published by the planning Authority or Development Authority in the Official Gazette and in a local newspaper and the ODP would come into operation from the date of such publication in the Official Gazette. 31. Mr. Ghosh submitted that even, thereafter, under s. 39 of the aforesaid Act, the approved plan could be challenged in this Court within one month of the coming into operation of the Development Plan. 32. Referring then to s. 46 of the Town and Country Planning Act, Mr. Ghosh submitted that, although, provision had been made therein for any person or body (excluding a department of the Central or the State Government or any local authority) intending to carry out any development on any land, to make an application for permission to the Planning Authority or Development Authority, the same was of no effect, since the ODP had not yet been approved by the State Government. 33. In this connection, Mr. Ghosh referred to a Bench decision of this Court in the case of Calcutta Metropolitan Development Authority vs. East Indian Hotels Lid. & Ors., reported in 1992 (1) CLJ at page 419, wherein while considering the various provisions of the Town and Country Planning Act the Division Bench held that Ss. 45 and 46 of the said Act would have no application to an area where no ODP had been prepared. Furthermore, it was also held that s. 46 did not contemplate a general freeze, but each prayer for permission to develop would have to be judged on its own merits. 34. Mr. 45 and 46 of the said Act would have no application to an area where no ODP had been prepared. Furthermore, it was also held that s. 46 did not contemplate a general freeze, but each prayer for permission to develop would have to be judged on its own merits. 34. Mr. Ghosh then urged that in s. 2(12) of the aforesaid Act "land" had been defined to have the same meaning as in the land Acquisition Act, 1894, and is to include land covered by waters. 35. Reference was then made by Mr. Ghosh to an order passed by a learned single Judge of this Court on 8th January, 1991, on the writ application filed by licensed Building Surveyors' Association, wherein the submission made by the learned Advocate General that the ODP for the Calcutta Municipal Corporation area was still in a draft stage and had not been given effect to by virtue of the coming into operation of the Calcutta Municipal Corporation Building Rules, 1990, was duly recorded along with his further submission that pending finalisation of the ODP, the CMDA or the Calcutta Municipal Corporation, as its delegated authority, could lawfully exercise the functions and powers under s. 56 of the 1979 Act. Mr. Ghosh indicated that the learned Judge went on further to, inter alia, direct the Calcutta Municipal Corporation authorities to adhere to the Calcutta Municipal Corporation Building Rules 1990, in preference to the guidelines indicated in the draft ODP, keeping in abeyance the ODP for the Calcutta Municipal Corporation. 36. Mr. Ghosh submitted that pursuant to the aforesaid order, the Chief Secretary wrote to the Municipal Commissioner on 2nd March, 1991, informing him that the Corporation should accept Building Plans as and when submitted and dispose of the same in accordance with the provisions of the Building Rules of 1990, without any reference to the CMDA for clearance under the ODP a further direction was given to the effect that the plans which were submitted on or before 11th December, 1990 were to be considered under the Building Rules in force on that date. 37. Mr. 37. Mr. Ghosh also referred to an unreported Bench decision of this Court in F.M.A.T. No. 981 of 1991 (Binani Metals Ltd. vs. The Calcutta Municipal Corporation & Ors.) wherein the Division Bench had occasion to consider the provisions of s. 46 and other provisions of the aforesaid Act and the effect of the ODP not having become operative, as also the aforesaid letter of the Chief Secretary dated 2nd March, 1951. Their lordships reiterated the earlier views and held that until the ODP became operative in accordance with the provisions contained in Chapter VI of the said Act, no permission was required to be taken under s. 46(3) thereof. Their lordships also held that the concerned authorities could not take into account any Outline Development Plan under preparation while granting sanction to the Building plan. 38. Mr. Ghosh next referred to another Bench decision of this court in the case of Executive Officer, Digha Planing Authority vs. M/s Hotel Sea Gull & Ors., reported in AIR 1994 Cal at page 95, where a different view was taken, and it was held that the provisions of s. 46 of the aforesaid Act would apply even in the absence of a development plan or while the same is under preparation. 39. Mr. Ghosh then urged that the CMDA had delegated its powers under the 1979 Act to the Calcutta Municipal Corporation by a Notification dated 20th November, 1990. 40. Regarding the list of protected tanks and water-bodies included in the notice dated 6th August, 1993, being Annexure "C" to the writ petition, Mr. Ghosh urged that the said notice also indicates that the Calcutta Municipal Corporation could relax the bar imposed in filling up any of the said tanks and water-bodies. 41. Referring to Annexure "X" to the affidavit affirmed by the City Architect, Calcutta Municipal Corporation, Mr. Ghosh urged that the said notice also indicates that the Calcutta Municipal Corporation could relax the bar imposed in filling up any of the said tanks and water-bodies. 41. Referring to Annexure "X" to the affidavit affirmed by the City Architect, Calcutta Municipal Corporation, Mr. Ghosh urged that the State Government had by its letter of 10th May, 1993, informed the Municipal Commissioner, Calcutta Municipal Corporation, that it had no objection to the proposed construction of the new Annexe Building of the Indian Museum at 27, Jawaharlal Nehru Road/1, Sudder Street, Calcutta-7000 16, covering a portion of the existing tank, subject to the condition that the Corporation should ensure that an equivalent amount of the water surface to be covered by the proposed construction would be excavated on three sides of the tank, so that there was no reduction of the existing water surface. 42. Mr. Ghosh urged that the aforesaid condition would be strictly followed by the authorities of the Indian Museum. 43. Mr. Ghosh next referred to the provisions of The West Bengal Inland fisheries Act, 1984, and urged that the same had been enacted to provide for the conservation, development, propagation, protection, exploitation and disposal of inland fish and fisheries in West Bengal and for matters connected therewith or incidental thereto. 44. Mr. Ghosh urged that Chapter IIIA was added to the parent Act by The West Bengal Inland Fisheries (Amendment) Act, 1984, and by s. 17A thereof a bar was imposed to the filling up of any water area, including embankment or naturally or artificially depressed land holdings, measuring 5 cottahs or more which retains water for a minimum period of six months in a year, with a view to converting it into solid land for the purposes of construction of any building thereon or for any other purpose. 45. Mr. Ghosh contended that, although, the existing area of the pond was much more than five cottahs, as mentioned in the notice dated 6th August, 1993, and measured about 4464, square meters, the same was not being used for the purpose of pisciculture, Mr. 45. Mr. Ghosh contended that, although, the existing area of the pond was much more than five cottahs, as mentioned in the notice dated 6th August, 1993, and measured about 4464, square meters, the same was not being used for the purpose of pisciculture, Mr. Ghosh added that while 1366 square meters of the pond were to be converted into solid land for the purpose of construction of the proposed building, the extended areas on the remaining three sides of the pond would measure about 1934 square meters, which meant that even after construction, the surface area of the pond, as well as the volume of water, would increase considerably. Mr. Ghosh urged that, in fact, the volume of water would go up from 1,41,778 gallons to 27,68,375 gallons. 46. Mr. Ghosh submitted that, as has been indicated hereinbefore, the State Government under the amended provisions of s. 17A(9) of the aforesaid Act, had given its approval to the filling up of a portion of the tank in question for the proposed Annexe Building of the Indian Museum. 47. Mr. Ghosh then referred to the provisions of the Indian Museum Act, whereby a Board of Trustees was incorporated for the management of the Indian Museum, and urged that such Board would be under the direct control of the Central Government, and the Trustees would be comprised of the Highest dignitaries and officers of the Government, the Calcutta Municipal Corporation, the University of Calcutta, the Asiatic Society and the Ministry of Commerce and Industry, Government of India. 48. On the question of the jurisdiction of the Court in dealing with litigation of a public nature, Mr. Ghosh submitted that public interest litigation does not substantially extend the jurisdiction of the Court. It merely unfetters the question of locus standi and/or the right of an individual or an organisation to represent an individual or a group of individuals. 49. As to the report submitted by the Special Officer, Mr. Ghosh submitted that the said Special Officer, Dr. A.K. Ghosh, Director, Zoological Survey of India, was himself a member of the Management Committee of the Museum which met on 1st March, 1993, to discuss matters relating to the various developmental projects of the galleries and the Museum campus. Mr. 49. As to the report submitted by the Special Officer, Mr. Ghosh submitted that the said Special Officer, Dr. A.K. Ghosh, Director, Zoological Survey of India, was himself a member of the Management Committee of the Museum which met on 1st March, 1993, to discuss matters relating to the various developmental projects of the galleries and the Museum campus. Mr. Ghosh submitted that as part of the said deliberations the question of constructing an annexe building over a portion of the Museum pond had also been discussed and it had been unanimously resolved that the new building should be constructed at the earliest in order the facilitate display of exhibited befitting to a standard of an institute of national importance. 50. Mr. Ghosh then referred to the various annexures to the application filed on behalf of the Indian Museum for setting aside the report submitted by Dr. A.K. Ghosh. 51. Referring to Annexure "G" to the said application, Mr. Ghosh pointed out that the report submitted by Dr. A.K. Ghosh had been considered by professor N.C. Datta of the Department of Zoology, University of Calcutta, and he was of the view that the Museum tank is not the only habitat for the endemic species and that most of the eleven rare and two very rare species of fauna found in the Museum tank had also been found in other parts of the country. 52. Mr. Ghosh urged that Professor Datta was of the view that of proper care was taken, the prevailing bio-diversity in the Museum tank would not be affected and would not cease to exist. 53. In support of the aforesaid submissions, Mr. Ghosh referred to the decision of the Supreme Court in the case of Shri Sachidanand Pandey and Anr. vs. The State of West Bengal and Ors., reported in AIR 1987 SC at page 1609, wherein the provisions of Article 48A and 51 A(g) of the Constitution were considered by the Supreme Court in the light of the decision of the State Government to allot some lands belonging to the Zoological Gardens, Calcutta to the Taj Group of Hotels for construction of a Five-Star hotel. In the background of the objection taken that the construction of Five-star hotel next to the Zoological Gardens, Calcutta, would disturb the animals in the zoo and destroy the ecological balance and would also affect bird migration, the Hon'ble Supreme Court observed that while allotting the land in question to the Taj Group of Hotels, if the Government was alive to the various considerations requiring thought and deliberation and had arrived at a conscious decision after taking the same into account, it may not be for the Courts to interfere with such a decision in the absence of mala fides. In the reverse if it was found that such relevant considerations had not been kept in mind and irrelevant considerations had influenced the decision of the Government, the Court might interfere in order to prevent a likelihood of prejudice to the public. 54. The Hon'ble Supreme Court also observed that whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind the provisions of Article 48A of the Constitution which by way of a Directive Principle enjoins that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country as also Article 51 A(g) which provides that it is 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. 55. The Hon'ble Supreme Court was of the view that when the Court is called upon to give effect to the said Directive Principle and Fundamental Duty, the Court should not avoid the problem on the ground that the same was a matter of policy for the consideration of the policy-making authority. The Supreme Court felt that the least that the Court may do, is to examine whether proper considerations were borne in mind and irrelevant considerations were excluded. In appropriate cases, it was felt that the Court might go further according to the circumstances of the case, since the Court was always competent to give necessary directions. The Supreme Court, however, introduced a note of caution and observed that despite the above, the Court will not attempt to nicely balance relevant considerations. In appropriate cases, it was felt that the Court might go further according to the circumstances of the case, since the Court was always competent to give necessary directions. The Supreme Court, however, introduced a note of caution and observed that despite the above, the Court will not attempt to nicely balance relevant considerations. When the question involves the balance of relevant considerations, the Court might feel justified in resigning itself to acceptance of the decision of the concerned authority. 56. Mr. Ghosh lastly referred to the affidavit affirmed on behalf of the CMDA and submitted that the Calcutta Municipal Corporation had in exercise of the delegated powers conferred upon it by the CMDA under s. 134 of the West Bengal Town and Country (Planning and Development) Act, 1979, issued the notice dated 17th August, 1993, being Annexure “C” to the Writ Petition, wherein the Museum tank had been included as Item No. 65 and could not under any circumstances be filled up. Mr. Ghosh submitted that having vested the Corporation with its powers under the aforesaid Act, it was no longer open to the CMDA to raise an objection to the sanction granted by the Calcutta Municipal Corporation for construction of the proposed Annexe Building of the Museum, particularly when the ODP for the Calcutta Metropolitan Area has not yet been finally approved. 57. Mr. Ghosh concluded his submission by urging that more of the grounds taken by the petitioner in the writ petition warranted any interference by this Court with the formal sanction which had been granted to the Indian Museum on 27th September, 1994, by the Calcutta Municipal Corporation for raising the Annexe Building, which entailed filling up of a portion of the Museum pond. 58. Appearing for the Calcutta Municipal Corporation and its authorities, Mr. Arun Prokash Sircar, learned senior counsel, while generally adopting the submissions of Mr. Ghosh, pointed out that the case as made out by the writ petitioners was that under the provisions of the West Bengal Town and Country (Planning and Development Act, 1979, an Outline Development Plan was required to be prepared by the Planning or Development Authority which was to broadly indicate the manner in which the Development or Planning Authority intended the land in the Planning Area was to be used. The ODP was to take into account the question of preservation and conservation of edifices and areas for historical, architectural, environmental and religious purposes. However, while accepting the inevitable fact that the city of Calcutta has to be re-developed, such re-development should not be by way of construction of congested high-rise buildings, putting additional pressure on an already over-burdened system and infrustructure. 59. Mr. Sircar submitted that it was also the petitioners case that the ultimate object of the ODP is to prevent further deterioration of the physical environment and dispersal of pollution and that in promoting metropolitan activities special attention should be paid to ensure that environmental damages are prevented to the maximum extent. 60. Mr. Sircar submitted that the Calcutta Municipal Corporation Act, 1980, hereinafter referred to as the 1980, Act, itself provides the grounds on which a Building plan submitted for sanction may be rejected. 61. Mr. Sircar urged that s. 393 of the aforesaid Act provides that every person who intends to erect a building is required to apply for and obtain sanction to erect such building in accordance with the provisions of s. 396 of the said Act. Mr. Sircar urged that sub-so (2) of s. 396 contained the grounds on which sanction of a building or work could be refused, and such grounds were exhaustive and not inclusive in nature, which meant that sanction of a Building plan could be refused on such grounds only and on no other grounds. 62. Mr. Sircar urged that since none of the said grounds were applicable to the Building plan submitted by the Museum authorities, there was no reason why sanction thereto should have been refused, it all the necessary requirements had been complied with by the Museum authorities. Mr. Sircar urged that the said Building Plan could not be refused on any ground other than those indicated in sub-so (2) of s. 396. 63. Mr. Sircar then submitted that there are several stages involved in granting sanction to a Building Plan. Mr. Sircar submitted that s. 391 of the 1980 Act provides for the Constitution of a Municipal Building Committee which under sub-so (5) is to scrutinise every application for erection or re-erection of a building, except for a residential building to be erected or re-erected on a plot of land measuring 500 square meters or less, and forward its recommendations to the Mayor-in-Council. 64. Mr. 64. Mr. Sircar specifically referred to the first proviso to sub-so (5) of S. 391 of the 1980 Act, which provides as follows:- "Provided that during such scrutiny the Committee shall consider matters related to preserving, developing and maintaining the aesthetic quality of urban and environmental design, within Calcutta and shall, in respect of any building or any execution of work, if it affects or is likely to affect the skyline or the aesthetic quality of urban or environmental design, or any public amenity therein, recommend on such matters also........." 65. In this regard Mr. Sircar also referred to Rules 14 and 16(1)(h) of the Calcutta Municipal Corporation Building Rules, 1990, where similar checks and balances have been provided for. 66. Mr. Sircar then submitted that after the approval of the Mayor-in-Council, the final authority for granting sanction or provisional sanction was the Municipal Commissioner, as provided in s. 396(1) of the 1980 Act. 67. Mr. Sircar urged that once the Mayor-in-Council had approved the grant of sanction to a Building Plan, it could be presumed that sanction would also be granted by the Municipal Commissioner. 68. In this connection, Mr. Sircar drew the Court's attention to Rule 35 of the 1980 Building Rules where the function of the Municipal Building Committee have been indicated in relation to the provisions of s. 391 (5) of the 1980 Act. 69. Mr. Sircar urged that, in any event, since formal sanction to the Building Plan submitted by the Museum authorities had already been given, the petitioners could take recourse to the provisions of s. 397 of the 1980 Act for cancellation of the sanction granted, if they were in any manner affected by such sanction. 70. Mr. Sircar then questioned the locus standi of the petitioners to challenge the sanction granted to the Museum authorities and referred to the Bench decision of this Court in the case of Kumuda Sundari Properties (Private) Ltd. vs. Namdang Tea Co. Ltd., reported in AIR 1980 Cal page 206, in this regard. Mr. 70. Mr. Sircar then questioned the locus standi of the petitioners to challenge the sanction granted to the Museum authorities and referred to the Bench decision of this Court in the case of Kumuda Sundari Properties (Private) Ltd. vs. Namdang Tea Co. Ltd., reported in AIR 1980 Cal page 206, in this regard. Mr. Sircar urged that while considering the question of a person's locus standi to challenge the grant of sanction to a building plan by the Municipal authorities, the Division Bench observed that the locus standi of the petitioner in a writ petition to challenge the validity of a Municipal Sanction obtained by another person may not be decided only by referring to the provisions of the Specific Relief Act, but such a person must also establish that the sanction granted by the Municipal authorities in favour of another infringes some legal right claimed by him. 71. Regarding the report submitted by Dr. A.K. Ghosh, Special Officer, Mr. Sircar contended that while providing a historical background of the fauna and flora in the Museum pond, the Special Officer had not indicated the present state and condition of such fauna and flora. 72. Mr. Sircar lastly referred to Shri Sachidanand Pandey's case (supra) and reiterated Mr. Ghosh's submissions that when the Government makes a conscious decision involving environmental problems, the Courts should be slow to interfere, unless mala fides or likelihood of prejudice to the public is established. 73. Mr. Sircar also made a passing reference to the provisions of The Environment Protection Act, 1986, enacted in keeping with the provisions of Article 48A of the Constitution, and The Wildlife Protection Act, 1972. 74. Mr. Sircar urged that since the volume of water in the Museum pond would, in fact, be ii1creased by excavation of three sides thereof, and its usefulness would remain undisturbed and unimpaired for all purposes, including preservation of the flora and fauna therein, there could be no valid objection to the sanction already granted by the Municipal authorities and no interference was, therefore, called for in the writ petition. 75. Appearing for the CMDA, Mr. 75. Appearing for the CMDA, Mr. Ashesh Chatterjee, learned advocate, submitted that by a Notification dated 16th April, 19S5, the CMDA had, in exercise of the powers conferred by s.134 of 1979 Act, delegated its powers under s. 46 of the said Act to the Calcutta Municipal Corporation in relation to the area within its jurisdiction, on the conditions set out in the said Notification. 76. Mr. Chatterjee submitted that by a subsequent Notification No. 1465/C.M.D.A/Sectt/VIII-64/89 dated 20th November, 1990, certain conditions were relaxed with regard to certain areas within the. local limits of the Calcutta Municipal Corporation, and it was also stipulated that in exercising such delegated powers, the said Corporation shall, under s. 56 of the 1979 Act, have regard to the provisions of the ODP for the Calcutta Municipal Corporation area, in respect of which public notice under s. 36(1) of the 1979 Act had been published in the Calcutta Gazette dated 19th August, 1990 as the same were required to be followed for securing the proper planning of the said areas. 77. Mr. Chatterjee also urged that s. 46 of the 1979 Act had been amended by the West Bengal Town and Country (Planning and Development) (Amendment) Act, 1988, and the scope of the expression "development plan" used in sub-so (3)(i)(a) of the 1979 Act was widened by substitution of the said expression by the expression "Land Use and Development Control Plan". Mr. Chatterjee submitted that the said expression was also introduced in s. 56 of the said Act in substitution of the expression "development plan." 78. Mr. Chatterjee urged that the Museum pond was one of those water-bodies included in the notice dated 17th August, 1993, published by the Calcutta Municipal Corporation and was categorised as one of these water bodies which should never be filled up. 79. Briefly commenting on the submissions made on behalf of the CMDA, Mr. Pradip Ghosh contended that the said submissions were of no relevance since the State Government, which was the Appellate Authority, had approved the plan of the Museum to construct a multi-storeyed building, a portion whereof would encroach upon the Museum pond. 80. Replying to the submissions of Mr. Ghosh, Mr. Sircar and Mr. Ashesh Chatterjee, Mr. Pradip Ghosh contended that the said submissions were of no relevance since the State Government, which was the Appellate Authority, had approved the plan of the Museum to construct a multi-storeyed building, a portion whereof would encroach upon the Museum pond. 80. Replying to the submissions of Mr. Ghosh, Mr. Sircar and Mr. Ashesh Chatterjee, Mr. Ahin Chaudhuri urged that in Sachidanand Pandey's case (supra) the State Government had taken into consideration the relevant ecological and environmental factors for preservation of the bio-diversity in the area in question, having particular regard to the location of the Zoological Gardens, whereas, in the instant case, no such consideration is apparent from the materials on record. 81. Mr, Chaudhuri submitted that there were two views regarding the applicability of s.46 of the 1979 Act to an area in respect of which the ODP had not yet been prepared. Referring to the Hotel See Gull case (supra) Mr. Chaudhuri urged that in the said case it had been held in no uncertain terms that the provisions of s. 46 would have to be complied with, even if the ODP had not been prepared or was at the draft stage. 82. On the question of locus standi, Mr. Chaudhuri referred to the decision of the Supreme Court in the case of the Janata Oal vs. H.S. Chowdhury and Others, reported in AIR 1993 SC at page 893, wherein it was, inter alia, observed that in Public Interest Litigation the strict rule of locus standi is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of Public Interest Litigation is to ensure observance of the provisions of the Constitution or the law. 83. Mr. Chaudhuri urged that the Municipal Commissioner, Calcutta Municipal Corporation, had granted sanction to the Building Plan alter the amendment of the West Bengal Inland Fisheries Act, 1984, by the amending Act of 1994, whereby s. 17A had been introduced in the parent Act, imposing a bar to the filling up of any water area with a view to converting it into solid land for the purpose of construction thereupon or for any other purpose. 84. Mr. 84. Mr. Chaudhuri urged that sanction having been given in violation of the said statutory provision, such sanction, must be deemed to be void and illegal and liable to be cancelled. 85. Mr. Chaudhuri concluded by urging that the Calcutta Municipal Corporation, acting as the delegatee of the CMDA acted in a manner contrary to the guidelines laid down by it. 86. The submissions made on behalf of the respective parties and the materials on record indicate that, while having no personal axes to grind, the writ petitioners are concerned about ensuring that the ecological balance in the area around the Indian Museum, which has already been disturbed to a large extent, is not disturbed any further and that the bio-diversity in the Museum pond is not destroyed. Certain other considerations have also crept in incidentally within the totality of the submissions advanced on behalf of the petitioners. 87. As far as maintenance of the ecological balance of the Museum pond is concerned, logically it is difficult to accept that such balance will 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. The flora and fauna in the pond will continue to remain in the pond and will not, therefore, be disturbed, as apprehended by the writ petitioners. Of course, there will have to strict vigilance and constant monitoring to ensure that the water in the tank is not unduly disturbed during the period of construction of the new building. 88. The various apprehensions in the minds of the writ petitioners will be set at rest if the water body itself is not unduly disturbed when the construction work is in progress. 89. This brings us to the notice dated 17th August, 1993, issued by the Calcutta Municipal Corporation, wherein was included a list of tanks/water bodies, wet lands and canals, which were referred to as protected water bodies. 89. This brings us to the notice dated 17th August, 1993, issued by the Calcutta Municipal Corporation, wherein was included a list of tanks/water bodies, wet lands and canals, which were referred to as protected water bodies. As indicated earlier, the Museum tank was included in the said notice at Serial No. 65, although, it has been submitted, that by the said notice a complete bar was imposed on the filling up of all water bodies above 1500 square meters, such bar, in fact, does not appear to be absolute, but conditional. It was indicated in the said notice that no such tank, as included in the notice, could be filled up, except with the approval of the Calcutta Municipal Corporation, which was acting under delegated powers which were vested in the CMDA by the 1979 Act. 90. In the instant case, the petitioners have duly applied to the Municipal Authorities for grant of sanction to the building proposed to be constructed within the compound of the Museum and on account of which a portion of the Northern part of the tank would have to be filled up. Moreover, the State Government, which is the Appellate Authority under the 1979 Act in respect of matters relating to grant of permission or refusal of permission under s. 46 of the said Act, has also given its approval to the proposal for construction of the new building of the Museum pond. 91. Regarding the provisions of the West Bengal Inland Fisheries Act, 1984, and the provisions of s. 17A thereof, it must be borne in mind that the said Act was enacted to provide for the conservation, development, propagation, protection, exploitation and disposal of Inland fish and fisheries in West Bengal. It is nobody's case that the Museum tank is being used for the purposes of pisciculture so as to bring it within the ambit of the aforesaid Act. It is nobody's case that the Museum tank is being used for the purposes of pisciculture so as to bring it within the ambit of the aforesaid Act. Even s. 17A, which imposed a bar to filling up of any water area with a view to converting it into solid land for the purpose of construction of a building thereon or for any other purpose, makes it clear that the water bodies intended to be included within its ambit are such water bodies which were being used as fisheries Clause (e) of sub-so (1) of S. 17A indicates the nature of the water area and provides that the same should not be put to any use which may result in abolition of the fishery, which again clearly indicates that the water area was being used as fishery. The provisions of clauses (b) and (c) of sub-so (1) of S. 17A of the said Act refers to holdings of the nature indicated in clause (a), namely, water areas used for purposes of pisciculture. 92. In my view, the provisions of the aforesaid Act would not have application to the Museum tank which does not appear to be used for pisciculture. 93. Lengthy submissions have been advanced on behalf of the parties regarding the applicability of S. 46 of the 1979 Act when the ODP had not been prepared for the area in question. 94. The said question has been answered by two Division Benches of this Court in the case of the East India Hotels and Another and in the case of Binani Metals Limited, wherein it was 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. 95. Although, reliance has been placed on behalf of the petitioners on the Hotel Sea Gull case, (supra) where a view contrary to that of the other Division Bench was taken, the same is of little aid to the petitioners, in view of the majority view on the same point. 96. As to the report submitted by the Special Officer, Dr. Although, reliance has been placed on behalf of the petitioners on the Hotel Sea Gull case, (supra) where a view contrary to that of the other Division Bench was taken, the same is of little aid to the petitioners, in view of the majority view on the same point. 96. As to the report submitted by the Special Officer, Dr. A. K. Ghosh, Director of Zoological Survey of India, the same seems to indicate 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. 97. As indicated hereinbefore, in the event the volume of water in the Museum tank is not disturbed and, on the other hand, it is enhanced, logically there can be no reason as to why the flora and fauna in the tank should be adversely affected. A certain amount of disturbance cannot possibly be avoided as a result of the construction work, but with due care, such disturbance can be reduced so as not to completely destroy the existing biodiversity in the pond. 98. Apart from the above, when the concerned authorities of the Government and the Calcutta Municipal Corporation have decided to allow the Museum authorities to construct the building over a portion of the pond, then, unless, it can be shown that such sanction would create serious ecological and environmental problems, the Court, as a normal rule, should not interfere with such decision; In fact, this was precisely the view taken by the Supreme Court in Shri Sachidanand Pandey's case wherein it was held that it was not for the Court to attempt to balance the relevant considerations, and the Court may resign itself to acceptance of the decision of the concerned authority. 99. In fact, in the instant case, since 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. However, the Court must ensure that such condition is strictly followed and implemented by the Museum authorities and before any construction work is allowed to commence, such aspect of the matter is taken care of, and is taken care of throughout the period of construction. 100. The other purposes for which the tank may be in use, may continue undisturbed even after the construction of the proposed Annexe building of the Museum. 101. As far as the affidavit of the CMDA is concerned, it is apparent that its view is that the Museum tank should be preserved for its ecological, environmental and historical value. Such stand of the CMDA is understandable and, in fact, appears to have been kept in mind by the authorities of the Calcutta Municipal Corporation, since one of the conditions for grant of sanction of the proposed building is that the volume of water in the tank must be maintained by excavating the eastern, western and southern banks of the tank. In passing it may be mentioned that from the records of the Corporation it appears that the Corporation was initially unwilling to consider the Building Plan submitted by the Museum authorities, but at a later stage, it appears to have changed its stance and sanctioned the plan, subject to certain conditions. 102. As indicated by Mr. Sircar, 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. Apart from the above grounds, neither has any allegation of mala fides been made or any similar ground been taken by the writ petitioners. 103. For the reasons aforesaid, I see no reason to interfere with the decision of the Municipal authorities in granting sanction to the Building Plan of the Museum authorities. But while executing the construction work, the Museum authorities must strictly adhere to and comply with the conditions imposed by the Municipal authorities while granting such sanction. 104. Before actually commencing the work of construction, the Museum authorities shall first of all excavate the three sides of the tank in the manner and to the extent indicated in sub-paragraph (d) of paragraph 9 of the Affidavit-in-Opposition affirmed by Dr. Sachindra Sekhar Biswas on 25th August, 1994. 104. Before actually commencing the work of construction, the Museum authorities shall first of all excavate the three sides of the tank in the manner and to the extent indicated in sub-paragraph (d) of paragraph 9 of the Affidavit-in-Opposition affirmed by Dr. Sachindra Sekhar Biswas on 25th August, 1994. Simultaneously with such excavation work, the Museum authorities may proceed with the filling up of the northern bank of the tank, as provided for in the Building Plan, but actual construction work on the building is to commence after completion of such excavation work. During the construction work, the Museum authorities shall also exercise maximum diligence and caution in ensuring that the tank is not cluttered up with debris, and the portion of the water area, which is to remain undisturbed, remains so. 105. The writ application is disposed of with the above observations. 106. There will be no order as to costs. 107. All parties are to act on a signed copy of the minutes of the operative portion of the judgment on the usual undertaking. Application disposed of.