Tagore & Ors Vs. UOI & Ors  Insc 149 (3 March 2005)
Hegde & S.B. Sinha
S.L.P. (Civil) Nos. 23803 of 2004] S.B. SINHA, J:
Appellants herein are residents of Santiniketan in the District of Birbhum of
the State of West
Bengal. Visva Bharati University (University) was conceived and
established by Rabindranath Tagore, the great poet, story writer, song
composer, playwright, essayist, painter, educationist and Nobel Laureate, on 23rd December, 1921.
environment ambiance had all along been maintained in consonance with the
ideals of Tagore and for which the same was established.
Parliament with a view to preserve and protect the uniqueness, tradition and
special features of the said University, in exercise of its legislative power
conferred on it under Entry 63, List I of the Seventh Schedule of the
Constitution of India enacted The Visva-Bharati Act, 1951 (the Act) declaring
it to be an institution of national importance. The University was constituted
as an unitary, teaching and residential University with a view to preserve the
tradition and special features of the institution, as would appear from its
Statements of Objects and Reasons which are as under:
Visva-Bharati founded by Dr. Rabindranath Tagore at Santiniketan in 1921 is a
unique institution, and has since its inception served as a centre for the
study of, and research in, the different cultures of the East on the basis of
their underlying unity, and has sought to approach the West from the
stand-point of such a unity of the life and thought of Asia. The Institution
has acquired a world-wide recognition and has attracted scholars and pupils
from many countries all over the world.
University Education Commission commended the special and very valuable work
done by this institution, particularly its "effort to discover, preserve
and transmit the vast elements of old Indian culture, and the work with the
surrounding villages" and recommended that the Visva-Bharati should be
given a provisional Charter as a University with suitable capital and recurring
grants. The recommendations of the University Education commission were
approved by the Central Adversory Board of Education at its meeting in April,
1950, and the Government of West Bengal agree to the establishment of a
unitary, teaching and residential University at Santiniketan by an Act of
There is no provision in the Constitution of India for the grant of a Charter
(as distinct from an Act) as recommended by the University Education
Commission, but the Constitution makes the Union Government responsible for
institutions declared by law to be of national importance (vide item 63 of List
I of the Seventh Schedule to the Constitution).
is, therefore, proposed to make such a declaration and have the Visva-Bharati
constituted as a Central University. The constitution that is proposed to be given to Visva-Bharati
is in conformity with the recommendations made by the University Education
Commission with such modifications as are considered necessary to preserve the
tradition and special features of the institution." Section 4 of the Act
provides for incorporation of the University. The object of the University in
terms of Section 5A thereof was to disseminate and advance knowledge and
understanding by providing instructional, extension and research facilities and
by the example and influence of its corporate life, and in organizing its
activities, have due regard to the objects specified therein for which the Visva-Bharati
at Santiniketan was founded by Rabindranath Tagore, as expressed in his own
words including "to see to realize in a common fellowship of study the
meeting of the East and the West, and thus ultimately to strengthen the fundamental
conditions of world peace through the establishment of free communication of
ideas between the two hemispheres".
5B provides for the principles to be followed in organizing the activities of
the University, in respect whereof as also for implementation of its academic programmes
shall have due regard to the pattern of education envisaged by Rabindranath Tagore
in his writings.
6 provides for the power of the University some of which are:
to establish and maintain such Bhavanas, Schools of Studies and Research, Chatravasas,
Gymnasia and such other institutions as are deemed necessary, from time to
time, for the development of healthy corporate life in the University and to
abolish any such Bhavana School, Chatravasa, Gymnasium or other institution;
establish; at any place in India, campuses, special centres, specialized
laboratories or other units for research and instruction as are, in the opinion
of the University, necessary for the furtherance of its objects;
undertake the promotion of adult education, rural reconstruction, co-operative
organizations, social welfare, development of cottage industries and all other
nation-building activities and works for the benefit of the public;
to establish campuses within the territorial limits of the University specified
in the Second Schedule;" By reason of Section 7 of the Act, the powers of
the University conferred by or under this Act shall be restricted to the area
specified in the Second Schedule.
Second Schedule appended to the Act provides for an area known as Santiniketan
admeasuring 3000 hectares bounded on the North by the Kopai River, on the west
by a line running from Ballavpur and Bonuri villages to Bandgora, on the south
by a line running from Bandgora via Bolpur Dak Bungalow to the bridge over the Eastrn
Railway cutting, and, on the east by the Eastern Railway line.
Appellants herein who are residents of Santiniketan filed a public interest
litigation before the Calcutta High Court aggrieved by the continuing process
of defacement of the ambiance and environment which was destroying the very
ideals and purpose for which Visva Bharati was conceived and founded by Tagore.
Such encroachment upon the ambiance is said to have been committed by reason of
indiscriminate constructions and in particular construction of residential cum
commercial complexes by developers and promoters in utter disregard of, inter alia,
environmental and pollution control laws and requirements which had endangered
the very purpose, tradition and objective with which Visva Bharati was
established and which was thereafter sought to be preserved by the Act. The
Appellants herein who are in particular aggrieved by proposed constructions
which are likely to come up in the area known as Khoai being land created in
the natural process through running rain water for millennia which is a rare
natural phenomenon and which, if destroyed, cannot be restored even with the
help of science and, thus, requires preservation, approached the High Court in
the said proceedings.
and Country (Planning and Development) Act, 1979 to provide for the planned
development of rural and urban areas in West Bengal and for matters connected therewith or incidental thereto.
State of West Bengal claims to be owner of the lands
situated at Santiniketan being vested in it under Section 4 of the West Bengal
Estate Acquisition Act, 1953. It is, however, not disputed that 1761 acres of
land, according to Sriniketan Santiniketan Development Authority (SSDA) (1127
acres, according to the University), were acquired for the University within
the aforementioned 3000 acres of land.
Respondents contend that the Universities which are either declared to be of
National Importance or have been set up by the State only contain a territorial
jurisdiction for the sole purpose of academic activities and Section 7 of the
Act must be interpreted accordingly. Academic territorial jurisdiction,
according to Respondents, would not confer any title thereupon in the
University. The area which was in contemplation of Rabindranath Tagore is said
to be known as the "Deer Park Area" as in 1870, i.e., around the time
when the said composition was made there was only one barrage or bandh, in Santiniketan,
which is still in existence and is known as "Lal Bandh". A decision
to develop the said area was taken whereupon a Land Use Map was published and
objections thereto were invited. Upon consideration of such objections, some
modifications in Land Use Development and Control Plan were made out and the
same received the approval of the State of West Bengal in terms of Section 37 of the 1979 Act. The Government of
West Bengal allegedly sanctioned long term settlement of the government land as
mentioned in the Government Order dated 25th April, 2003 in favour of SSDA. Pursuant thereto
or in furtherance thereof SSDA has entered into an agreement with Bengal Ambuja
Cement Housing Development Ltd. which is a joint sector company of West Bengal
Housing Board, a body corporate formed under the West Bengal Housing Board Act,
1972 and Gujarat Ambuja Cements Ltd. having equal participation of 49.99%. It
is contended that the proposed constructions are being made at a minimum
distance of 250 meters of Visva Bharati area and in terms of the land use and
development plan no development is permitted within 50 metres outside the
boundary of Visva Bharati University. In its counter affidavit, SSDA contended
The proposed development of the said plot will be advantageous in all respects.
Had the project not being undertaken the said plot would be occupied by
encroachers and unautorised buildings constructed by them. Areas nearby have
been encroached upon by private persons and buildings have been constructed.
Under the planned development much, lesser area than permissible under SSDA
will be covered and accordingly there will be considerable open space in
addition to 3 acres of land for greenery. No building will exceed permissible
height as mentioned hereinbefore. There will be primary school, which in very
much needed in the area. Unauthorised structures on the plot have been mostly
removed but still some of them exist. Revenue to be received by SSDA out of
this project is to be utilized for carrying out various other projects for
public purpose. SSDA has undertaken various works of public benefit. Several
roads have been developed project for supply of potable water has been
undertaken and has been substantially implemented. Further implementation in
other area is also under process. Genuine residents of Santiniketan will be
benefited out of the said works undertaken by SSDA." HIGH COURT:
Division Bench of the High Court dismissed the said public interest litigation
holding that the University being not the owner of the entire 3000 acres of
land no relief can be granted. While arriving at the said finding, it was
"If it is not Vishwabharati's special dominion land for setting up
campuses as and when it so will, then the State has authority to deal with the
same in accordance with law, because there are no other objectors. It is not
illegal to set-up reasonably peaceful activities or abodes of citizens, near or
even very near, Universities."
"That the continued increase of population in Santiniketan and the
continued increase of building activity there, will slowly change the place
almost beyond the recognition of the poet, if he were to be alive even today,
cannot be disputed."
"The Act contains no indication that by reason of any spirit of the Act,
or the spirit of the poet, Santiniketan is to be made into such an exclusive
"Moreover, assuming that the building activity is to take place only in
accordance with the spirit and ideas of the poet, Rabindra Nath Tagore, how, we
ask ourselves, is such activity to be monitored in the practical World? Will
every builder make an application first to the Vishwabharati University, seeking permission? Will every
such case of permission ultimately travel to the Public Interest Litigation Court, for us to decide ultimately
whether the building activity would be in keeping with the old ideas of the old
Santiniketan? In our opinion, this is an unreasonable and, therefore, an
illegal and an impractical way of thought. The building activity can be
mentioned and controlled only if some law says that it is to be so monitored
and controlled, and also lays down specific ways in which such restrictions are
to be imposed by specified or named authorities. None of the laws shown to us
prevents the Bengal Ambuja Project."
"We are of the opinion that the Bengal Ambuja Housing Complex will, to
that extent, change the topography of Santiniketan in the canal front but that
there is no public interest which calls for restraint of such a change. In our
opinion, the University activities can go on with substantially the same amount
of vigour and benefit to mankind whether we are aware that we are going a long
way in saying this, but still we do state this to do so, the Santiniketan
outside the University becomes a residential town or even an Industrial town,
provided the growth is planned, systematic and in accordance with the laws
relating to freedom from population."
J. Sorabjee, learned senior counsel appearing on behalf of the Appellants, in
assailing the judgment of the High Court, would submit that the issues raised
in the writ petition must be considered having regard to the purposes for which
the Act was enacted and having regard to its Preamble and the Statement of its Objects
and Reasons. Activities going against the tenor the said Act, Mr. Sorabjee
would contend, should not be permitted.
learned counsel submitted that the findings of the High Court to the effect
changes necessary to be brought about in the topography and the same would
slowly change the place almost beyond the recognition of the poet, if he were
to be alive even today as fallacious inasmuch postulate such activities which
the Act intends to prevent. Comparison of the said University with other universities,
Mr. Sorabjee argued, is wholly misconceived. Mandate of the Act, according to
Mr. Sorabjee, provides for guidelines to maintain the ambiance of entire Santiniketan
which will itself be in public interest. If by reason of the activities, the
character of the place sought to be preserved by the Act is changed beyond
recognition and topography of Santiniketan itself is affected thereby, the
Court should invoke the doctrine of 'implied prohibition' for giving a true
meaning of the Act. Our attention in this connection has been drawn to a report
of the West Bengal Pollution Control Board. It was urged that although the said
report was in relation to the construction activities carried out by M/s.
Bengal Peerless Housing Development Company but it would appear therefrom that
the site of development of housing of M/s. Bengal Ambuja Ltd. was also visited.
learned counsel submitted that the Division Bench of the Calcutta High Court
neither took into consideration the report of the West Bengal Pollution Control
Board in its proper perspective nor applied its mind with regard to
preservation and protection of Khoai which was the basis for maintaining the
G.L. Sanghi, learned senior counsel appearing on behalf of the Respondent No.
10, took us through the counter-affidavit filed by SSDA and submitted that
having regard to the fact that the State has the exclusive legislative
competence as regard town planning, the Parliamentary Act cannot interdict in
the areas covered by the State Act.
learned counsel would contend that by reason of such constructional activities
neither the academic programme of the University as contemplated under Section
5B of the Act nor the academic territory of the University has contemplated
under Section 7 thereof are affected. The University itself having not claimed
any ownership in respect of the land beyond what had been acquired for its
purpose, and, thus, the writ petition filed by the Appellant herein had rightly
been dismissed. It was pointed out that there exist many houses within the area
of 3000 acres of land and in fact the most of the Appellants are residents
thereof and, thus, it does not lie in their mouth to contend that no
constructional activities should be carried out within the area contained in
the Second Schedule of the Act.
learned counsel appearing on behalf of the State of West Bengal and SSDA adopted the submissions of
Banerjee, learned counsel appearing on behalf of the University, however, left
the matter at the hands of the court stating that the activities of Respondent
No. 10 are outside the area of the University.
T.S. Doabia, learned senior counsel, appearing on behalf of the Union of India,
however, would support the Appellants herein contending that in the larger
interests the provisions of the Act should be implemented in letter and spirit
and nothing should be done so as to destroy the purport and object for which
the University was founded.
Mohan, learned ASG, appearing on behalf of the West Bengal Pollution Control
Board submitted that his client stands by its report.
OF THE POLLUTION CONTROL BOARD:
the report sent by the W.B. Pollution Control Board, it would appear that it
had issued a direction restricting the municipal corporations, etc. from
sanctioning any building plan of big housing complexes without obtaining its
environmental clearance. Having regard to the peculiar features and the fact
that SSDA's working area includes maintenance and preservation of cultural heritage
and natural environment of Sriniketan- Santiniketan and further in view of the
increase in the price of the land of Khoai and as people visiting Santiniketan
enjoy Khoai by seeing in different climatic and scenic conditions, it was
constructional activity in Sriniketan- Santiniketan area may cause serious
disruption in natural drainage system. It is therefore necessary to examine the
drainage pattern (both dry weather flow and storm water flow) in the area and
document it as per field condition. It is suggested that SSDA could take up the
job examining the drainage pattern and system and document them in a map
(marked with contour). The coming rainy season (July-September) could be ideal
for the field study.
is getting developed as tourist place, therefore, it is essential to preserve
the natural beauty and heritage which people like to enjoy. It is true that
planned housing is one of the component of urbanization. There is a great
demand of housing not only from the local residents but also from people
outside. Many want to keep a 2nd home for use during weekends, holidays and
festivals. Housing needs supporting infrastructures, also required to be
it will require adequate water supply, sanitation and drainage, solid waste
will have impact on ambient air quality unless problem mitigation measures are
taken properly. The rapid EIA report submitted by BPHDCL though indicated that
suspended particulate matters in ambient air at Sonar Taree area are below
maximum permissible limit, but the same near Pearson memorial Hospital was more
than the permissible limit in December. Even on some days of December the SPM
was more than the permissible limit at Sonar Taree area.
other parameters of ambient air are well below the permissible limit." It
should follow land use and development control plan already prepared by Urban
Development (T&CP) Department. In addition, SSDA must see to conservation of
the natural heritage of the place as far as practicable. It is also true that
when development of Santiniketan- Sriniketan area is a necessity due to
promotion of tourism and urban pull, there must be certain changes in the land
use pattern resulting in disappearance of khoyai landscape from certain places.
Hence SSDA must look into this aspect while planning for development of area
keeping changes of Khoyai land formation minimal." Among other things, the
Report recommended that:
more housing projects be undertaken until SSDA's perspective plan 2025
including Visva Bharati's special requirements was approved,
minimal damage to the remaining Khoai so as to preserve its natural beauty,
heritage and natural drainage system,
Satellite Township be built at a suitable distance from the Visva Bharati
OF THE PROVISIONS OF THE ACT:
is an institution of national importance. The purport and object for which the
Act was enacted is neither in doubt nor in dispute.
preamble of the Act as well as the Statement of Objects and Reasons are clear
A.C. Guha put it during the Parliamentary Debate on the Bill, Visva Bharati is
a "symbol of our culture". During the Parliamentary Debate, Maulana
Abdul Kalam Azad had said, "Nature has provided it with the canopy of the
sky and the open places and they do not want to make any additions to them in
the form of brick and stone". Pandit Jawaharlal Nehru said, "And I
entirely agree with Dr. Mookerjee when he laid stress on certain factors that
may be called external if you like, but, nevertheless, which must have a very
powerful influence in moulding the student there and creating a new
environment, whether it is teaching in the mango grove or doing anything like
that. I entirely agree with him that we should not spend our money on a large
number of brick structures as we unfortunately still do in making our
buildings, whether educational buildings or other buildings, and have little
left to carry on the work in those buildings".
Act was enacted with the consent of the State of West Bengal.
State, having regard to the purport and object of the Act, has, thus, a duty to
see that the environmental ambiance which would not be in consonance with the
ideals of Visva Bharati should not be undertaken.
is sui generis. It is an institution of national importance. It is a unitary
teaching and residential University. The jurisdiction of the University is not
only confined to the area specified in the Second Schedule appended to the Act,
as regard its academic activities but in view of Section 6(32) of the Act it
may establish campuses within the territorial limits of the University as
provisions of the Act and in particular Sections 5A, 6, 7 and the Second
Schedule thereof must be conjointly read with the preamble and the Statement of
Objects and Reasons thereof.
The Division Bench of the High Court, as noticed hereinbefore, arrived at a
finding that the continued increase of building activities will slowly change
the place almost beyond recognition of the poet and the activities of Bengal Ambuja
Housing Complex Ltd. will to some extent change the topography of Santiniketan
in the canal front. Despite holding so, the High Court observed that such
changes are necessary having regard to the continued increase in population of Santiniketan
and, as the Act does not contain any provision Santiniketan was required to be
made an exclusive spot forever and, furthermore, as allowing the Santiniketan
in its original form would be impractical, it can be permitted to become
residential town or even industrial town provided the growth is planned,
systematic and in accordance with the laws relating to freedom from population.
reason of any activity, the tradition and special features of Visva Bharati are
not preserved, the very purpose of the enactment would be defeated. It has not
been denied or disputed that even now the Visva Bharati organizes classes in
open air and also on Khoai lands, particularly, drawing and painting classes.
changes are taking place everywhere in India but Santiniketan should maintain the tradition and special features of
the Visva Bharati in terms of the statutory scheme.
Appellants had brought on records that frequent and unscheduled excursions and
picnics in the area by the students of Kala Bhavana and Patha Bhavana were the
hall-marks of Tagore's unique educational innovation.
Division Bench of the High Court, in our opinion, was not correct in holding
that in the event the building activity in the territorial area comprising Santiniketan
as specified in the Act was to take place in accordance with the spirit and
ideas of Rabindranath Tagore, such activity cannot be monitored in the
practical world and, therefore, would constitute illegal and impractical way of
thought and furthermore although the House Complex project of the Respondent
No. 10 would change the topography of Santiniketan in the canal front, there was
no public interest calling for restraint of such a change.
West Bengal Pollution Control Board is a statutory body. The environmental
impact assessment in terms of the provisions of the laws governing ecology of
the area is imperative. The Pollution Control Board which has statutory duties
to perform had issued certain directions for preservation and conservation for
cultural, historical, archaeological, environmental and ecological purposes.
Such directions are binding on the State as well as SSDA. If any construction
is carried on the Khoai, the same indisputably will destroy its unique natural
and cultural heritage, as opined by the Board, and, thus, all constructional
activities must abide by the same.
imperative that the ecological balance be maintained keeping in view the
provisions of both directive principles of State Policy read with Article 21 of
the Constitution. Furthermore, a State within the meaning of Article 12 of the
Constitution of India must give effect to the provisions of Article 51A(g) of
the Constitution which reads as under :
Fundamental duties It shall be the duty of every citizen of India *** *** ***
(g) to protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creatures;" It may
be true that the Appellants herein have their own houses within 3000 acres of
land but they have been residing there for a long time. What is being objected
to by them is constructions of huge residential and commercial complexes which
even according to the High Court would not only change the topography but also
would change the place almost beyond the recognition of the poet.
be true that the development of a town is the job of the town planning
authority but the same should conform to the requirements of law.
must be sustainable in nature. A land use plan should be prepared not only
having regard to the provisions contained in the 1979 Act and the rules and
regulations framed thereunder but also the provisions of other statues enacted therefor
and in particular those for protection and preservation of ecology and
Bharati has the unique distinction of being not only a University of national
importance but also a unitary one, the SSDA should be well-advised to keep in
mind the provisions of the Act, the object and purpose for which it has been
enacted as also the report of the West Bengal Pollution Control Board. It is sui
idle to compare Shantiniketan with any other university. Truism is that Shantiniketan
has unique features. Its environmental ambiance, thus, must be maintained.
There is no other university which having regard to the purport and object of
the Act, as would appear from the objects and reasons thereof, can be compared
with Visva Bharati. Our attention has not been drawn to any other statute
establishing any university which has such unique features as Visva Bharati.
because some advantages would ensue to the people in general by reason of the
proposed development, the same would not mean that the ecology of the place
would be sacrificed. Only because some encroachments have been made and
unauthorized buildings have been constructed, the same by itself cannot be a
good ground for allowing other constructional activities to come up which would
be in violation of the provisions of the Act. Illegal encroachments, if any,
may be removed in accordance with law. It is trite law that thee is no equality
Parliamentary Debates, some of which we have noticed hereinbefore, clearly go
to show that the Act was enacted with particular objectives in view. Such
statutory objects could not have been given a go by. It is not suggested that
the Santiniketan should remain as it was in 1921 but it cannot be permitted to
become full of concrete jungles and industrial hub. For carrying out further
constructional activities, it may not be necessary for a builder to apply to
the University for seeking its permission but the local-self government which
is responsible therefor must take into consideration the salutary principles
laid down in the pollution control laws as well as the Act. The land use and
future planning of Santiniketan must be done in such a manner so that the
changes be brought about which would not be beyond the recognition of the poet
as also the provisions of the Act.
in that sense must distinguish itself from the other development authorities.
It has an extra-burden to shoulder. It cannot shut its eyes to the provisions
of the Act and the object and purport it seeks to achieve. It cannot ignore the
environmental impact assessment made by the Board. It is one thing to say that
the SSDA may permit small constructions to be made by the owners of the land or
additions or allow alterations to the existing building for residential
purposes but it is another thing to say that it would not consider the effect
of the changes which may be brought about by turning Santiniketan into a
commercial and industrial hub.
with respect to the High Court, are not in a position to agree with the
observations which clearly run counter to its own findings of fact.
question is what do we do in the instant case? SSDA issued notices as regard
adoption of the land use map as far back as in the years 1999 and 2000. The
State Government had granted a long term settlement in favour of SSDA with a
further right to the residential flat owners for the unexpired period of lease
by an order dated 25.4.2003. In 2003 itself, the project had been given a green
signal and it is stated before us that the Respondent No. 10 has already spent
about 1.5 crores of rupees.
attention has further been drawn by Mr. Sanghi that the house project of Bengal
Peerless has already come into being. In that view of the matter, we do not
intend to stop the construction activities which are being carried out by the
Respondent No. 10 but direct that in future SSDA must keep in mind the
statutory provisions referred to hereinbefore as also the observations made by
appeal is disposed of with the aforementioned directions. No costs.