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2018 DIGILAW 550 (CAL)

Kiran Pandit v. State of West Bengal

2018-08-08

MIR DARA SHEKO, SOUMITRA PAL

body2018
JUDGMENT : 1. This appeal has been preferred against the judgment and order dated 15th July, 2016 passed in W.P. 23439(W) of 2015 (Smt. Kiran Pandit & Ors. vs. State of West Bengal & Ors.) whereby the learned Single Judge had dismissed the writ petition by holding, inter alia, as under:- "In the light of the facts and the law discussed above, this Court finds that the decision making process adopted by the IIPC under the aegis of the orders of the Hon'ble Supreme Court and the Hon'ble Division Bench passed from time to time followed a nuanced procedure and, can not-be faulted. The resolution impugned of the IIPC dated 11.08.2015 is, in the opinion of this Court, an appropriate step in the nuanced decision making process calling for a phase wise shifting of the bus terminus to KCBT, Santragachi. It is pertinent to mention that the HPC has not hurried its decision and, the successive reports filed by HPC have been capped by the Notification of the District Magistrate, Howrah dated 29.09.2015 Before parting with this case this Court is required to notice the fact that the issues raised in this writ petition lie in the realm of expert bodies. It is trite law that this Court sitting in its Writ jurisdiction must refrain itself from interfering in the detailed exercise conducted by such expert bodies. In the backdrop of the above discussion the resolution impugned dated 11.08.2015 deserves no interference." 2. Mr. Hirak Kumar Mitra, learned Senior Advocate appearing on behalf of the appellants relying on the grounds contained in the memorandum of appeal has submitted that the order passed on 12th September, 2011 in Civil Appeal No. 7785 of 2011 (State of West Bengal vs. Howrah Ganatantrik Nagarik Samity & Ors.), wherein the Supreme Court was seized with the problem of the bus stand at Esplanade, dealt with the shifting of the said bus stand which was within two kilometres from Victoria Memorial in order to protect it from pollution. The impugned administrative older dated 11th August, 2015 is without jurisdiction as there is no link with the Public Interest Litigation, being W.P. 7987(W) of 2002 (for short "PIL") which relates to Victoria Memorial. The impugned administrative older dated 11th August, 2015 is without jurisdiction as there is no link with the Public Interest Litigation, being W.P. 7987(W) of 2002 (for short "PIL") which relates to Victoria Memorial. Submission is the State, by the said order dated 11th August, 2015, is using pollution as a cloak to get rid of the appellant/bus operators without considering the NEERI report on the basis of which order was passed by the Supreme Court. Moreover fresh inter-state permits are being granted having Babughat/Band Stand as terminus. Despite orders, inter-state buses are still plying from Esplanade Bus Stand which is yet to be shifted. Thus it is a colourable exercise of power. Moreover the order dated 5th March, 2013 passed in PIL does not mention about bus stand at Babughat/Band Stand. The four reports prepared by the High Power Committee pursuant to the directions in the PIL deal with shifting of Esplanade bus terminus. Though the said reports are yet to be accepted by the Court, yet administrative decision has been taken on 11th August, 2015 without taking long distance bus operators into confidence. Since shifting of the bus terminus from Babughat/Band Stand to the bus terminus at Santragachi is carried out by the State to prevent pollution, as the Air (Prevention and Control of Pollution) Act, 1981 occupies the field, the views of the Central Pollution Control Board and the State Pollution Control Board should have been taken, which was not done. Since Inter-state bus operators have been directed to shift to Santragachi Bus Stand, records do not show that concurrence has been taken from the respective State Governments. In this regard relying on the statutory provisions in the Motor Vehicles Act, 1988 and the Rules framed thereunder, submission is as statutory provisions have been ignored, the judgment requires to be interfered with. Referring to the judgment of the Supreme Court, submission is the geographical area of Esplanade cannot be extended up to the Babughat/Band Stand. The shifting of the bus stand to Santragachi was not under consideration of the Supreme Court. The order of the Supreme Court has to be read in the context of shifting of the bus stand at Esplanade which is separate from the bus stand at Babughat/Band Stand. Mr. Mitra has relied on the following judgments:- Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors. The order of the Supreme Court has to be read in the context of shifting of the bus stand at Esplanade which is separate from the bus stand at Babughat/Band Stand. Mr. Mitra has relied on the following judgments:- Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors. : AIR 1978 SC 851 ; A.R. Antulay vs. U.S. Nayak & Anr. : AIR 1988 SC 1531 ; State of Sikkim vs. Dorjee Tshering Bhutia and Ors. : 1991 (4) SCC 243 ; Stale of Haryana and Ors. vs. M.P. Mohla : (2007) 1 SCC 457 ; Padfield and Ors. vs. Minister of Agriculture, Fisheries And Food & Ors. : 1968 AC 997 and Anisminic vs. Foreign Compensation Commission : (1969) 2 W.L.R. 163 . 3. Mr. Amal Kumar Sen, learned senior counsel appearing for the State has submitted that the issue in PIL, filed in 2002, was regarding the protection of Victoria Memorial from pollution emanating from vehicles. Since by order dated 28th September, 2007 State was directed to shift the Esplanade bus stand within six months, State preferred appeal before the Supreme Court. The Supreme Court in its order dated 12th September, 2011 never restricted that only the bus stand within two kilometres from Victoria Memorial to be shifted. By the order of the Supreme Court the scope of the PIL was not affected. The time frame to remove the bus stand at Esplanade was left to the wisdom of the Government as evident from the order dated 5th March, 2013 passed in PIL. Subsequently pursuant to the order dated 13th September, 2013, which refers to the future plan and the policy of the Government, a High Power Committee was directed to be formed. Certain directions were issued. Accordingly the Committee submitted four reports before the Division Bench taking up the PIL. It is evident from those reports that State has already decided not to issue Inter-state bus permits with Esplanade or Babughat as terminal points. The State Transport Undertakings are using the Esplanade Bus Terminus as a pick up and bus booking point and not as a terminus. From the third report it is clear that the shifting of the bus terminus to Santragachi was all along in the policy. The State Transport Undertakings are using the Esplanade Bus Terminus as a pick up and bus booking point and not as a terminus. From the third report it is clear that the shifting of the bus terminus to Santragachi was all along in the policy. In continuation thereof meetings were held with the bus operators and decision was taken to shift the bus terminus from Babughat and Esplanade to the nearly constructed Kolkata Central Bus terminus (for short 'KCBT') at Santragachi, Howrah in a phased manner. Decision was taken to issue notification for shifting of the bus terminus from Babughat and Esplanade and for operationalisation of the KCBT at Santragachi. By notification dated 27th May, 2015 issued, under section 117of the Act read with Rule 182 of the West Bengal Motor Vehicles Rules, 1989 issued by the District Magistrate, Howrah, it has been made operational. Referring to the Inter-state permits issued in favour of the operators pursuant to the inter-state agreements, submission is permits are issued to the operators for plying their vehicles from city to a city. The decision with regard to the terminating point in a city is left to the local administration. With regard to the submission that the Babughat/Band Stand does not fall within the two kilometres radius of the Victoria Memorial, submission is the High Court by order dated 13"' September, 2013 passed in PIL had given a direction for removal of pollution hazards within three kilometres radius of the Victoria Memorial. Since it is evident from Google Map that Babughat/Band Stand bus terminus is within three kilometres, it is covered by the said order. Assuming Babughat/Band Stand bus terminus is not within three kilometres radius, submission is as the entire area including Babughat/Band Stand is within the Central Business District of Kolkata which is within Esplanade, the stand of the appellant cannot be accepted. Mr. Sen has relied on the following judgments :- T.B. Ibrahim, Proprietor, Bus Stand, Tanjore vs. The Regional Transport Authority, Tanjore : AIR 1953 SC 79 ; State of Orissa & Anr. vs. Radheyshyam Meher & Ors. : (1995) 1 SCC 652 ; Confederation of Ex-Servicemen Associations & Ors. vs. Union of India & Ors. : (2006) 8 SCC 399 ; Avlshek Goenka vs. Union of India & Anr. : AIR 2012 SC 3230 and South Bengal State Transport Corporation vs. Manlk Lal Manjhi & Ors. vs. Radheyshyam Meher & Ors. : (1995) 1 SCC 652 ; Confederation of Ex-Servicemen Associations & Ors. vs. Union of India & Ors. : (2006) 8 SCC 399 ; Avlshek Goenka vs. Union of India & Anr. : AIR 2012 SC 3230 and South Bengal State Transport Corporation vs. Manlk Lal Manjhi & Ors. 2016 (1) CLJ (Cal) 357, in support of his contention. Reference has also been made to the Google Map and Wikipedia Encyclopaedia in support of his submission. 4. Mr. Subrata Banerjee, learned advocate appearing on behalf of the Hooghly River Bridge Commission, a respondent supporting the stand of the State, has submitted that copies of the inter-state permits annexed to the stay application do not show that except in the case of one operator, terminus is Kolkata and not Babughat/Band Stand, Since interstate permit mentions Kolkata as terminus, it is for the authorities to decide the location of terminus. Though it is evident from the time-table annexed to the stay application that barring a few, all buses arrive and depart early in the morning or late in the evening, as buses are parked all along the road in the Babughat/Band Stand area throughout the day it causes traffic jam which is causing pollution. Since the Supreme Court had directed not only to take measures to prevent pollution, but also to decongest the Esplanade area and as Esplanade includes Babughat/Band Stand, the stand of the State is just and proper. 5. Mr. Vinod Kumar Gupta, learned advocate for the respondent Nos. 8 to 11 has adopted the submission of Mr. Sen and Mr. Banerjee. 6. The question which requires to be considered is whether the State respondents were justified in adopting the resolution on 11th August, 2015 and in taking steps for implementing the decisions arrived therein. 7. Evidently, in 2002 the PIL was filed to protect and preserve the Victoria Memorial and its green surroundings. By order dated 27th September, 2007 the High Court had directed that the bus terminus at Esplanade be shifted to a distant place within six months. Aggrieved, the State had preferred appeal before the Supreme Court. The 8. Supreme Court, by order dated 12th September, 2011 allowed the appeal by holding, inter alia, as under:-- "9. By order dated 27th September, 2007 the High Court had directed that the bus terminus at Esplanade be shifted to a distant place within six months. Aggrieved, the State had preferred appeal before the Supreme Court. The 8. Supreme Court, by order dated 12th September, 2011 allowed the appeal by holding, inter alia, as under:-- "9. The recommendation of the NEERI, quoted above, however, is emphatic that auto exhaust is the most important causative factor polluting the atmosphere environment around Victoria Memorial Hall. For this reason, NEERI has recommended that the traffic on road around the Victoria Memorial Hall should be minimum and the bus terminus at Explanade area should be shifted from the existing location. Hence, even though the bus terminus is located 2 kms. away from Victoria Memorial Hall the auto-exhaust from a large number of buses at the bus terminus would pollute the atmospheric environment around the Victorial Memorial Hall. In M.C. Mehta vs. Union of India & Ors. [ (1997) 2 SCC 353 ], this Court has directed relocation industries from Taj Trapezium Zone (TTZ) for protection and preservation of the Taj Mahal in agra. The recommendation by NEERI that the bus terminus should be shifted from Esplanade area as a long-term measure to protect and preserve the Victoria Memorial Hall, deserves serious consideration, not only to preserve the monument but to de-congest the city. 10. We accordingly modify the impugned order of the High Court and direct the State Government to consider and take appropriate action on the NEERI report recommending relocation of the bus terminus away from the Esplanade. The appeal is allowed to the extent indicated above. No order as to costs." Subsequently on 13"' September, 2013 the matter came up for hearing when the Division Bench taking up the PIL passed the following order which is set out hereunder:- "By an order dated July 29, 2013 we requested all concerned at the appropriate level to assist this Court to find out a complete modality not only to preserve the Victoria Memorial but also to have a clean heart of the city free from pollution. We are glad and we record our appreciation, as requested by us by the said order all the Officers are present except the representative of Kolkata Port Trust. The Officers have offered their views. We are glad and we record our appreciation, as requested by us by the said order all the Officers are present except the representative of Kolkata Port Trust. The Officers have offered their views. Everyone would be ad idem and everyone would pray before this Court to have a 'High Power Monitoring Committee' to address the problem and have a ready solution. The Transport Secretary has already apprised us about the government's future plan with regard to bus terminus. Those are time consuming. Since the problem is knocking at our door, we have to address it at the earliest. We, thus, appoint a committee to have deliberations with all concerned and prepare a comprehensive report suggesting the modalities to be adopted for the purpose of removal of the pollution hazards in the heart of the city within three kilometres radius of the Victorial Memorial. The 'High Power Committee' would also suggest the measures to be adopted by any particular department. The High Power Committee would be as follows:- (i) Mr. Sanjay Mitra, Chief Secretary, Government of West Bengal,- Chairman; (ii) Mr. Alapan Bandyopadhyay, Transport Secretary, State of West Bengal, -Convenor; (iii) Lt. General A.K. Chowdhury, GOC Bengal area, - Member; (iv) Mr. R.P.S. Kahlon, Chairman, Kolkata Port Trust, Member; (v) Mr. Surajit Kar Purakayastha, Commissioner of Police, Calcutta, - Member; (vi) Mr. Indibar Pandey, Secretary, Public Works Department, State of West Bengal, - Member and (vii) Mr. Khalil Ahmed, commissioner, Kolkata Municipal Corporation, - Member. The High Power Committee would be entitled to hold meeting with all concerned and would also be at liberty to invite suggestions from the experts of their choice. They would also be at liberty to hear Mr. Subhash Dutta, petitioner in this Public Interest Litigation. The matter is fixed for further hearing on November 22, 2013 when we would expect a comprehensive report from the High Power Committee for the task they would undertake in the meantime. Till then we leave it to the High Power Committee to see that the area is free from hazards that are complained of. The Officers present here would also assure this Court, they would try their level best with the available infrastructure to make the area free from pollution. Mr. Arindam Banerjee, learned Counsel appearing for the transporters prays for personal hearing by the High Power Committee. The Officers present here would also assure this Court, they would try their level best with the available infrastructure to make the area free from pollution. Mr. Arindam Banerjee, learned Counsel appearing for the transporters prays for personal hearing by the High Power Committee. It is for the transporters to seek hearing from the High Power Committee and we leave it to them." 9. As seen it is explicit from this order that State has framed a policy for shifting the bus stand. In order to solve the problem Court had appointed a High Power Committee. Committee was directed to prepare comprehensive report suggesting modalities to be adopted for the purpose of removal of pollution hazards in the heart of the city within throe kilometres radius of Victoria Memorial and to suggest measures for solving the problem. Accordingly the Committee had filed four reports which are annexed to the stay petition. It appears from the first report that the operators and the petitioner in PIL were heard by the Committee and findings were arrived at and decisions were taken, as evident from paragraphs 'c' thereof. Implementation of the policy has begun. It appears from paragraph 3 of the first report that "/As gradually many activities and terminal facilities for many buses will shift away to the other points in the city, the heart of the city will get clearer : police authorities will ensure vigil to prevent encroachments and polluting/hazardous activities in the area, while PWD/KMC will ensure upgradation and cleanliness of the Esplanade-Babughat spaces." 10. It is evident from the 2nd report that on 30th January, 2014 the High Court had perused the first report and had directed the Committee to keep the Court posted with the developments. It appears that NBSTC was using Esplanade Bus terminus as a pick up place and booking point for passengers. It is seen from the third report that decision was taken to construct a bus terminus at Santragachi so that the terminus is shifted from Esplanade/Babughat as early as possible. It appears from the 4"' report that the Committee has arrived at a decision which is, inter alia, as under:- "2(d) A meeting was held on 26.09.2014 in HRBC wherein it was decided that buses would be shifted in a phased manner from Babughat and Esplanade to the said terminus to be named as "Kolkata Central Bus Terminus (KCBT) at Santragachi". In the first phase, all long distance west-bound buses, either Inter-Regional or Inter-State, presently using the bus terminus at Babughat or Esplanade, would be shifted for operation from KCBT at Santragachi. Transport Department would issue notification for such shifting of bus terminus. Matching notifications would be issued by C.P., Kolkata (for partial prohibition of use of Babughat and Esplanade area) and D.M., Howrah for operationalization of KCBT at Santragachi." 11. As seen from records on 30th January, 2014 the PIL came up for hearing when it was held, inter alia, as under:- "Perused the report of the High Powered Committee appointed by the Division Bench vide order dated November 22, 2013. Heard learned Counsel appearing for the respective parties. We have given a copy of the report to Mr. Dutta, who assures this Court, he would make copies and circulate to all other parties. From the report it appears that High Powered Committee would require three years to implement the entire programme. However, we are glad to know, the Committee felt the need and agreed to shift entire road transport system from the area in phases. In the first phase, they have suggested mode for relocating the bus terminus used by the State Buses. They are yet to take a final decision in respect of the private buses. Mr. Arindam Banerjee, learned Counsel appearing for the private bus operators would submit, the High Powered Committee heard them through a sub-committee where they were asked to give suggestions. Accordingly, the Confederation of Bus Operator Associations, submitted written representation on January 21, 2014, copy of which is produced in Court that is kept on record. Mr. Dutta points out, the Maidan area is still being used as dumping ground where garbage are mounting. Sometime those are burnt out causing further pollution. He would also submit that there should not be any garbage storage in and around the area including the Curzon Park area. Mr. Dutta also points out, traditional ovens are still being used that are prohibited since 2007. He would submit, High Power Committee should look into these problems. As asked for, we grant three years time to the High Power Committee hoping and expecting we would see a complete make over of the entire area in an around the Victoria Memorial Hall that would be free from pollution. He would submit, High Power Committee should look into these problems. As asked for, we grant three years time to the High Power Committee hoping and expecting we would see a complete make over of the entire area in an around the Victoria Memorial Hall that would be free from pollution. We would request the High Power Committee to keep up posted with the development submitting quarterly reports addressed to the Registrar General of this Court, who would place the same before the Bench. The High Power Committee should also take note of the irregularities pointed out by Mr. Dutta as recorded above. We also direct the private bus operators to toe line of the Stale Buses or accept any other mode that would be suggested by the High Power Committee and assist the Government in implementing the decision that the High Power Committee have taken in respect of the State Buses. The matter is kept pending for the purpose of monitoring upon perusal of the periodical reports. The Registrar General of this Court would place the report after it is received quarterly when the matter would be listed. With regard to the structural ability of the Victoria Memorial Hall, Mr. Dutta submits, the Victoria Memorial Authority is yet to react to the report of the expert submitted by him. We would consider the same at the next date of hearing. The application, being CAN 12399 of 2013, is disposed of." 12. As noted, it is explicit from the tenor of the order that the PIL was directed to be kept pending. Court is monitoring the problem upon perusal of the reports. The private bus operators were directed to follow the line of the State buses and to accept any other mode that would be suggested by the Committee and would assist the Government in implementing the decision. Looking at the language of the order dated 30th January, 2014 it is clear that it binds all private bus operators. Thus it is a judgment in rem as correctly contended by Mr. Sen. Accordingly the notification dated 27th May, 2015 was issued under section 117 of the Act by the District Magistrate, Howrah to operationalise the bus terminus at Santragachi which was in tune with the decision as recorded in paragraph 2(d) of the fourth report. Thus it is a judgment in rem as correctly contended by Mr. Sen. Accordingly the notification dated 27th May, 2015 was issued under section 117 of the Act by the District Magistrate, Howrah to operationalise the bus terminus at Santragachi which was in tune with the decision as recorded in paragraph 2(d) of the fourth report. Thereafter the Committee had called a meeting on 11th August, 2015 with regard to shifting of bus terminus from Babughat to Santragachi. The appellants had filed a representation dated 5th August, 2015. Subsequently the meeting was held on 11th August, 2015 in which the appellants had participated. Therein decision was taken to implement the shifting of the bus stand from Babughat to the bus terminus at Santragachi in a phased manner. The issue is whether the decision taken on 11th August, 2015 was in violation of the principles of natural justice. 13. In our view since, as seen from the records, as all along the interstate bus operators were kept informed of the developments with regard to shifting of the bus stand and the operators had participated in the deliberations and were also informed in advance about the meeting held on 11th August, 2015 and was present in the meeting, as the operators were taken into confidence before arriving at a decision, the appellants now cannot complain about the decision taken on 11th August, 2015. It is evident from the provisions of Motor Vehicles Act that an inter-state permit is granted for plying a vehicle from one city to another. The decision with regard to the location of a bus terminus is left to the local administration. Therefore, the contention of the appellant on this score fails. The allegation of singling out the appellants and discrimination cannot be accepted as a reasonable classification has been made between inter-state buses and intra State buses. Evidently NBSTC and CSTC are using Esplanade as a pick up point and not as a terminus. The argument that some operators, including the State transport undertakings using the Esplanade bus stand as terminis does not further the case of the appellants as it does not confer any right on the appellants to have Band Stand as terminus. With regard to the shifting of bus stand it is to be kept in mind that somewhere a beginning has to be made. With regard to the shifting of bus stand it is to be kept in mind that somewhere a beginning has to be made. The decision arrived at on 11th August, 2015 marks that beginning. It is to be noted that there is no dispute that at present the inter-state buses after having arrived at Babughat/Band Stand are parked for hours on the Strand Road till they depart. This leads to traffic congestion which gives rise to pollution. The present notification dated 11th August, 2015 is a step to prevent pollution and to decongest the Babughat/Band Stand area which the Supreme Court had directed. 14. Keeping the order dated 13th September, 2015 in mind a question has arisen whether Babughat/Band Stand falls within the three kilometres radius of Victoria Memorial. This issue has been set at rest as it is evident from the 'Goggle' map that Babughat/Band Stand is 2.24 kilometres from Victoria Memorial. 15. That apart there is another controversy whether Babughat/Band Stand falls within the 'Esplanade' or 'Esplanade area'. Referring to the time-tables issued by the transport department Mr. Mitra tried to submit that the Band Stand and Esplanade are two different places. In this regard reliance has been place on the dictionary meaning of the word 'Esplanade'. We find that the geographical limit of 'Esplanade' or 'Esplanade area' in Kolkata has not been spelt out in any statute or in any regulation or rules. Learned advocates for the parties have not also been able to point out from any authority about the geographical limits of 'Esplanade'. 'Esplanade' means "a level area of open ground in a town for people to walk along, often by the sea or river" (Oxford Advanced Learner's Dictionary). In the city of Kolkata, the eastern side of river Ganges has level area of open ground for people to walk along. This open ground is maidan or the greenery extending up to Victoria Memorial and Chowrainghee. In Wikipedia it has been stated that "the Central Business District in Kolkata is famously known as Esplanade". Be it noted that the address of the High Court is 3, Esplanade Row-West, Kolkata. Babughat/Band Stand is adjacent to High Court. Besides Band Stand is an integral part of a fort where the army band is played and 'Esplanade' means an open space in front of a fort, in this case Fort William. Be it noted that the address of the High Court is 3, Esplanade Row-West, Kolkata. Babughat/Band Stand is adjacent to High Court. Besides Band Stand is an integral part of a fort where the army band is played and 'Esplanade' means an open space in front of a fort, in this case Fort William. Therefore, the Fort William, the Band Stand adjacent to it and the Esplanade are one entity. Hence, Babughat/Band Stand and Esplanade bus stands fall within the geographical limits of "Esplanade" or "Esplanade area". 16. Before we part with the judgment there is one further aspect in this matter. We find that the resolution under challenge in the writ petition was issued pursuant to the orders passed from time to time in the PIL, being W.P. 7987(W) of 2002 and the reports furnished therein. As the PIL is still pending the appellant cannot challenge the said resolution by filing another writ petition. 17. The judgments cited on behalf of the appellants are distinguishable on facts as in the case in hand the Committee, pursuant to the directions in PIL, has been furnishing reports taking the ground realities into consideration. Moreover while implementing the policy the operators have been heard. 18. Hence for the reasons as aforesaid, the appeal is without merit and is dismissed. The application is also dismissed. 19. No order as to costs. 20. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.