Sec.&
Curator Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity & Ors.
[2010] INSC 179 (9 March 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2225 OF
2010 (Arising out of SLP (C) No. 2708 of 2010) The Secretary & Curator,
Victoria Memorial Hall ...Appellant Versus Howrah Ganatantrik Nagrik Samity And
Ors. ...Respondents
Dr. B.S.
CHAUHAN, J.
1.
Leave granted.
2.
The appellant has preferred this appeal against the judgment and
order of the High Court of Calcutta dated 21.8.2009 by which the application
filed by the appellant for modification of order dated 28.9.2007 passed in Writ
Petition No.7987(W) of 2002, stood rejected.
3.
The facts and circumstances giving rise to this appeal are as
under:
A
foundation stone of Victoria Memorial Hall (hereinafter called `VMH') was laid
by the king George the Vth (the then Prince of Wales) on January 4, 1906.
Between years 1908 and 1921 various objects of arts, manuscripts, medals, arms
and armours were collected and preserved for being transferred and displayed at
VMH upon construction and on December 28, 1921 its construction was mostly
completed. It was inaugurated by the Edward, the VIIIth (the then Prince of
Wales) and was opened for public viewing. Afterwards, the Museum attained the
status of National Museum of modern Indian history starting from 18th century.
In the year 1925, illustrated catalogue of exhibits in VMH was published.
Between years 1934 and 1935 cupolas were added to the main monument. The
memorial is the repository of a largest number of Daniells' paintings in the
world. It possesses the third largest painting in the world-Vassili
Verestchagin's "The State Procession of the Prince of Wales into Jaipur in
1876". The memorial's philatelic collection on Indian postal history is
equally large. Among other important collections, one may refer to Mughal emperor
Aurangzeb's hand-written Quran or Dara Sikoh's translation of the Upanishads.
Equally important and fascinating are the works of Johann Zoffany, Tilly
Kettle, Hodges, Samuel Davis, Robert Home, Reynolds, Charles D'oyly, Emily
Eden, George Stubbs' painting of Hastings, and Qazar, painting of Fatah Ali
Shah, Tipu Sultan's personal war-diary, and the Cannon-balls of the battle of
Plassey.
2 Other
than the Curzonian scheme of collection and arrangement of the exhibits, the
post-independence collections include National Leaders' Gallery as well as
collections of other artifacts-Bankim Chandra's writing desk, Mahatma Gandhi's
ashes, paintings of Abanindranath, Atul Bose and Jamini Roy, etc. A total of
about 27,000 artifacts (e.g. painting, watercolours, stamps, coins, arms and
armour) exists in the VMH.
VMH
monument has a covered area of 1.7632 acres and is situated in a portion of a
large campus having an area of about 57 acres. There have all along been within
the Campus annexe buildings having total covered area of around 5000 Sq.
meters. These annexe buildings were built for being used as non family duty
quarters, garage for tractors and cars, stores of garden equipment, dormitory,
staff canteen, recreation room, union room and a block of toilets. The old
annexe buildings have become dilapidated through passage of time.
In
December, 2000, the Government of India advised VMH to take steps for
modernisation of VMH with the help of National Institute of Design.
VMH is
administered and managed by an autonomous Board of Trustees constituted under Victoria Memorial
Act, 1903 (hereinafter called `Act'). The Chairman of
the Board of 3 Trustees is the Governor of the State of West Bengal. Other
members include the Chief Justice, Kolkata High Court, Mayor, Kolkata Municipal
Corporation, Principal Secretaries of the Departments of Culture, Finance,
Tourism, Higher Education, Accountant General of West Bengal and various other
prominent citizens. For better preservation and maintenance of VMH, National
Environmental Engineering Research Institute (hereinafter called as `NEERI')
had given various suggestions in April 1992 but the same remained unattended.
In February, 2002 West Bengal Pollution Control Board submitted a report on air
quality around the VMH in which it was suggested to make a further study into
the matter by Expert Organization like NEERI.
4.
Alleging mismanagement, misuse and various types of abuses of the
historic museum and contending that the very existence of VMH was at stake,
Writ Petition No.7987(W) of 2002 was filed as a Public Interest Litigation by
the Howrah Ganatantrik Nagrik Samity, Respondent No. 1, which sought large
number of reliefs, particularly, directing the respondents therein to preserve,
protect and maintain the historical monument, to review present status and
applicability of recommendations made by NEERI in April, 1992 for protection of
the museum and to start action thereon forthwith, to stop leaking of rain water
through 4 the rooftop, to repair the structure of the museum, to prepare a
complete inventory/catalogue of all the objects of the museum based on record,
to remove all sorts of office accommodations and other occupancies not related
to preservation and maintenance of the museum from inside the museum, to make
arrangements for more and more display of all objects of the museum to visitors
through rotational process, to make complete census and numbering of trees and
to prevent falling thereof, to arrange for the supply of potable water, to
arrange the vehicular traffic in a manner not creating any kind of pollution
and to take measures to prevent any kind of air pollution etc. etc. The High
Court dealt with all the issues one by one and passed interim orders from time
to time.
5.
At the time of initial hearing of the Writ Petition, the High
Court, vide its order dated 27.11.2003, constituted an Expert Committee for
improving the environment of VMH, the appellant herein. It consisted of 14
Members viz. Member of Heritage, Conservation Committee, Kolkata; Managing
Director, Ghosh Bose & Associates (P) Ltd., Kolkata; Scientist & Head,
National Environmental Engineering Research Institute, Kolkata Zonal
Laboratory;
Suptd.Archeologist,
Archeological Survey of India, Kolkata 5 Zonal Office; Addl. Commissioner of
Police, Kolkata; Chief Environmental Officer, Department of Environment, Govt.
of West Bengal; Secretary and Curator, Victoria Memorial Hall; Exe. Engineer,
Calcutta Central Division, Central Public Works Department (Civil Wing), Govt.
of India; Chief Traffic and Transportation Engineer, Govt. of West Bengal;
Senior
Environmental Engineer & Incharge, Eastern Zonal Office, Central Pollution
Control Board; Exe. Engineer, Presidency Circle 1, Public Works Department, Govt.
of West Bengal; Deputy Chief Municipal Architect and Town Planner, Kolkata
Municipal Corporation; Senior Environmental Engineer, West Bengal Pollution
Control Board; and Member Secretary, West Bengal Pollution Control Board.
6.
The Expert Committee made various recommendations including that
the appellant should enhance its existing facilities so as to make it an
eminent centre for art and culture of international standard and to find out
possibility of erection of a new building within the same campus to provide
facilities for that purpose.
7.
The Board of Trustees explored the means for implementation of the
suggestions of the Expert Committee and held various meetings. After
considering the views of 6 the Expert Committee, the Board of Trustees after
due deliberation accepted the proposal for construction of an annexe building
replacing the existing cluster of annexe buildings which had become
dilapidated. For this purpose, a Memorandum of Understanding with the approval
of Government of India, Ministry of Culture in consultation with Ministry of
Law, was signed with the Calcutta Tercentenary Trust (for short, "CTT'), a
trust registered in London. Under the said Memorandum of Understanding, CTT is
to provide Rs.48 crores and only the cost of the area to be occupied by the
administrative office of VMH is to be borne by the VMH.
8.
However, the matter was decided finally vide judgment and order
dated 28th September, 2007, dealing mainly with the following issues:
A.
Removal of the hawkers from the vicinity of the Hall.
B.
Modernisation of the Gallery.
C.
Environmental Management Plan.
D.
Parking of vehicles, traffic signals and stopping goods vehicle.
E.
Burning of dry leaves in the VMH Area.
F.
Shifting of Administrative Office.
G.
Further construction within the VMH Area.
9.
So far as issue at point (G) is concerned, the Court rejected the
recommendations made by the Expert Committee, refusing the permission to raise
the construction in the VMH Campus.
10.
The appellant moved an application to modify the order dated
28.09.2007 only to the extent that it may be permitted to raise the
construction upto the height of 30 ft. in an area where it already had cluster
of constructions, which is being used as a non-residential staff quarters on
various grounds, inter-alia, that the appellant made a serious attempt to
acquire the land/building for having the museum and recreation centre in the
close vicinity of the monument. The appellant also deposited Rupees one crore
with Kolkata Municipal Corporation (hereinafter called as `Corporation') to
acquire the constructed area, but it could not get any space. The amount was
refunded by the Corporation for the reason that the construction raised by the
Corporation was for residential purpose.
11.
The High Court considered the matter at length, took into account
various issues relating to maintaining ecological balance, environment,
problems relating to vehicular traffic etc., but ultimately rejected the
application for modification, so far as permitting the construction of building
after demolition of non- residential staff quarters was concerned. Hence, this
appeal.
12.
Shri Harish N. Salve, learned senior counsel appearing for the
appellant, submitted that in all big museums throughout the world,
administrative offices including Curators' and Director's offices are situated
in the same campus. The appellant tried its best to get an alternative
accommodation nearby but could not succeed in spite of its best efforts. The
Act does not restrain the appellant to use the campus for the purpose other
than activities connected with the memories of Queen Victoria. More so, the
Expert Committee appointed by the High Court itself had made the recommendation
for having such a building. The High Court rejected the application without
taking into consideration the submissions raised by the appellant. The High
Court did not record any reason for not granting the 9 permission for
construction. Thus, the appeal deserves to be allowed.
13.
On the other hand, Shri Subhas Datta, Respondent No.2 and General
Secretary of Respondent No. 1, appearing in person, has vehemently opposed the
appeal contending that permitting any construction in the said campus would
cause serious prejudice to the monument. New building, if permitted to be
raised, would adversely affect the protection and preservation of the monument.
Hence, the appeal is liable to be dismissed.
14.
We have considered the rival submissions canvassed on behalf of
the parties and perused the record.
15.
The appellant submitted before the High Court that modification of
the order was necessary and the appellant be permitted to raise the
construction upto the height of 30 ft. at the same place where it has cluster
of constructions which is being used as a non-residential staff quarters. The
necessity had arisen for the reason that VMH is basically a museum and the
process of `acquisition of various costly' objects of art or old documents,
manuscript etc. had been initiated even prior to 10 the actual construction of
the VMH. Its recognized activities conform to the definition of a museum as
given in Section 1 of Article 3 of the Statute of International Council of
Museum, according to which, a Museum is a non- profit permanent institution in
the service of society and its development, open to the public which acquires,
conserves, researches, communicates and exhibits the tangible and intangible
heritage of humanity and its environment for the purpose of education, study
and enjoyment. The appellant claimed that it is institutional member of
International Council of Museums and had been paying subscription to the Indian
branch of International Council of Museums; that approx. 29,000 items of
objects of arts are stored within the VMH building and some of those were lying
idle and not displayed to the public due to dearth of space. It was contended
that the height of the monument is 56.0832 meters and, therefore, the
construction, if permitted, to be raised would, by no means, adversely affect
the grand view of the monument and it would not hamper any activity of the
monument.
16.
Thus, the High Court had to determine mainly that if such a
construction is permitted, whether it would, by any 11 means, hamper the
preservation or protection of the monument?
17.
The High Court dealt with all other issues regarding pollution
hazards etc. and took note of the fact that large number of art crafts have
been collected for a long-long time and it included art crafts not connected
with Queen Victoria. The Act governing the VMH did not contain any provision
permitting or restraining the use of any part of VMH compound for the purpose,
other than connected with Queen Victoria. The Act contained the provisions that
the Trustees may with previous approval of the Central Government, by
Notification in the Official Gazette, make Regulations not inconsistent with
the Act and the Rules made thereon, for enabling the body to discharge its
functions under the Act. The Rules must be enacted substantially for erection,
maintenance and management of memorial and care and custody of the objects. The
trustees have a right to acquire a new property for the purpose of better
management of the memorial. The High Court came to the conclusion that the Act
"permits the trustees to acquire new property movable or immovable under
the control and supervision of the Central Government and thus there is no bar
in running its activities from different 12 premises". Therefore, even for
the purpose of carrying out the activities in relation to the monument, the
trustees may acquire movable or immovable property outside the premises of said
monument. The Court observed that the structure was unique in nature and it is
one of the wonderful objects in the world and its beauty and value should not
be marred in any way for the purpose of construction of auditorium, cafi,
sitting area for guests, rest rooms etc. and any new construction within the
campus would be detrimental to the present structure situated thereon. The
Court emphasised that the appellant should acquire property, movable or
immovable outside the monument as has been done in Salar-Jung-Museum, Hyderabad
and other places.
18.
In fact, the High Court arrived at the conclusion, that if
construction is permitted it would not only adversely affect the ambience of
the monument but would be detrimental to the present structure. However, such a
conclusion has been reached without giving any plausible reason whatsoever.
19.
The Expert Committee was appointed by the High Court itself vide
order dated 27.11.2003. It consisted of 13 experts of various subjects,
rendering services in different fields. Therefore, it is unfortunate that the
High Court not only brushed aside its report, so far as the instant issue is
concerned, rather labelled it as a "so- called Expert Committee". The
High Court failed to appreciate that the application was filed by the appellant
as it was not possible for VMH to get appropriate space nearby the monument in
Kolkata. More so, neither the Pollution Control Board, nor Kolkata Municipal Corporation,
nor the Suptd. Archeologist of Archeological Survey of India of Kolkata Circle,
raised any objection in respect of the construction of a new building. The
building was proposed to be constructed by replacing the old existing
constructions at a distance of at least 160 mtrs. from the monument. The Court
failed to consider that museum activities were to be expanded by the appellant
therein, which would not adversely affect the monument at all, particularly
when there is no prohibition under the Act to carry out such activities.
20.
The High Court failed to appreciate that the proposed building
would be designed with great care, ensuring that the new construction would
not, by any means, disturb the existing landscape and would be in consonance
with the 14 existing ambience and compatible with the architecture and fagade
of the existing monument. The height of the proposed building would not be more
than 10 mtrs. while the height of the monument is more than 50 mtrs. Thus, it
would not prevent the view of the monument by any means.
The High
Court was not justified to impose a total prohibition of construction of the
Annexe in place of the existing cluster of buildings, which are in a
dilapidated condition. The High Court ought to have given reasons for not
accepting the report of the Expert Committee.
21.
The High Court vide order dated 28.9.2007 directed to shift the
administrative office outside the monument on wrong premises. The material on
record suggests that all museums have this kind of accommodation within its
campus.
The
entire administrative office including Curators', Director's office of
Salarjung Museum are located within the Main Museum building. Similar is the
position with the Indian Museum at Kolkata, National Museum, National Gallery
of Modern Art at New Delhi, Chhatrapati Shivaji Maharaj Vastu Sangrahalaya
Museum (formerly the Prince of Wales Museum) at Mumbai, Nehru Memorial Museum
& Library and National Museum in New Delhi. Same is the position within
internationally renowned museums, namely, British Museum, 15 Victoria &
Albert Museum, U.K., Louvre, Paris and Museums in Vienna.
22.
The Expert Committee had examined the issues at length and
submitted its report before the High Court, making various recommendations
including :- "That setting up structure and/or facility within the VMH
compound for commercial amusement and recreational activities will adversely
impact the environment, will not be in consonance with the existing local
ambience, and increase the visual pollution.
The
Committee recommends that no structure and/or facility should be built within
the VMH compound for the purpose of amusement and recreational activities.
However,
the Committee found that the VMH being an eminent centre of art and culture
focusing on the heritage of 17th-2Oth century India and Bengal, lacks several
modern facilities like space/facility up to international standard for visiting
exhibitions, space/facility for education, research, lecture, library,
meeting/reception, and space/facility to serve the public visiting the VMH.
The
Committee suggests that the VMH should enhance its existing facility to take a
shape of an eminent centre of art and culture of international standard. The
feasibility of building visitors' centre and exhibition area in a separate
building within the VMH compound to provide the above mentioned facilities
should be explored. In any case, this should not disturb the existing
landscape, and should also be in consonance with the existing ambience and
compatible with the existing architecture of the monument." (emphasis
added) 16
23.
The Court dealt with the aforesaid recommendations on the issue
observing:
"We,
however, do not approve the suggestion of the experts appointed by this Court
to find out the feasibility of building any visitor's centre and exhibition
area in a separate building to be constructed within the VMH compound. Such an
idea is contrary to the concept of protection of historical monuments. For
better utilisation of the space for modernization of gallery, the existing
Administrative Office may be removed to some other place and that space can be
utilised for the extension of the Gallery but in no circumstances can we
approve the idea of making any new construction within the VMH compound for the
above purpose." (Emphasis added).
24.
While deciding the application for modification, vide impugned
judgment, the High Court held as under:- "It appears that the prayer for
review has been filed without appreciating the import of the said order
regarding preservation of greenery. We find from the affidavit that the sole
object of the VMH Authority is to make the said campus a place of brisk
activities and entertainment without caring for the protection of the monument
itself which was constructed pursuant to the object of the Act. Moreover, for
the purpose of the preservation of and display of the additional articles which
have been subsequently acquired and which have no connection with the memory of
Queen Victoria, we are of the view that there is no just reason for giving
permission to construct a new building within the VMH campus. The VMH Authority
is free to extend its activity in accordance with law after 17 acquiring new
property which is consistent with the object of the Act, Rules and the
Regulation, but there is no ground for restricting its extended activity within
the original VMH complex itself which would be perilous to the existing
structure.
We have
already pointed out that the Act itself approves requisition of further
property, either moveable or immovable, and thus the order passed by this Court
in the past has in no way created any impediment in the activities of the VMH
in accordance with law; on the other hand, if the prayer of further
construction is allowed for the purpose of the activities mentioned
hereinabove, the constant efforts of this Court in preserving the existing
memorial for the last seven years by passing various prohibitive orders would
be totally frustrated." (Emphasis added).
25.
In fact, the Expert Committee recommended that no part of VMH
compound should be permitted to be used for any commercial amusement and
recreational activities as it would increase the visual pollution. But the
Committee recommended for having a centre and exhibition area in a separate
building within the VMH compound. The High Court while disposing of the Writ
Petition dis-approved the recommendation for having a centre and exhibition
area within the VMH compound merely observing that such an area would be
contrary to the concept of protection of historical monument. The application
for modification has 18 been rejected by the High Court on the grounds that it
would be contrary to preserving greenery; such a campus should not have the
buildings for brisk activities and entertainment and if permission is granted,
it would frustrate the effort of the High Court to preserve the existing
memorial for last seven years by passing prohibitory orders.
The High
Court failed to appreciate that in case a historical monument contains such a
centre, it cannot be a danger for its protection. More so, as explained
hereinabove, most of such museums have such activities throughout the world.
The ground of preserving the greenery is totally misplaced and mis-conceived
for the reason that building is to be constructed by demolishing the servant
quarters etc. which are in a dilapidated condition. As the greenery does not
exist at this place the reason given by the High Court is untenable. The other
ground that campus should not be used for brisk activities is unsustainable because
having the activities in such centre and exhibition area cannot be termed as
`brisk activities'. More so, the High Court had never passed any interim order
during the pendency of the Writ Petition for removal of the cluster of
buildings which in fact is in dilapidated condition.
19
Therefore, the question of frustrating the entire effort of the High Court to
protect the monument could not arise.
Indisputably,
the writ petitioners/respondents have not been able even to allege that factual
averments made in the application for modification were not correct. The
impugned order rendered the Memorandum of Understanding of the appellant with
CTT for providing a sum of Rs.48 crores, frustrated.
26.
Thus, it is evident that the High Court did not give any
specific/good or relevant reason for not accepting the recommendation made by
Expert Committee at initial stage or while rejecting the application for modification
vide impugned order.
27.
The Constitution Bench of this Court in The University held that
"normally the Court should be slow to interfere with the opinions
expressed by the experts." It would normally be wise and safe for the
Courts to leave the decision to experts who are more familiar with the problems
they face than the Courts generally can be.
28.
This view has consistently been reiterated by this Court as is
evident from the Judgments in The State of etc.etc. AIR 1990 SC 434; Central Areca
Nut & Cocoa Karnataka & Ors. (1997) 8 SCC 31; and Dental Council of SCC
486.
29.
However, if the provision of law is to be read or understood or
interpreted, the Court has to play an University Grants Commission & Anr.
AIR 2004 SC 3478 and Sirsa & Anr. (2008) 9 SCC 284.
30.
In the instant case, the Expert Committee was appointed by the
High Court itself. No allegation of malafide or disqualification against any
Member of that Committee had ever been made/raised. Thus, we fail to understand
as on what basis, its recommendation on the issue involved herein, has been
brushed aside by the High Court without giving any reason whatsoever,
particularly, 21 when the Act governing VMH does not prohibit the use of the
part of the compound for the purpose other than connected with Queen Victoria.
31.
It is a settled legal proposition that not only administrative but
also judicial order must be supported by reasons, recorded in it. Thus, while
deciding an issue, the Court is bound to give reasons for its conclusion. It is
the duty and obligation on the part of the Court to record reasons while
disposing of the case. The hallmark of an order and exercise of judicial power
by a judicial forum is to disclose its reasons by itself and giving of reasons
has always been insisted upon as one of the fundamentals of sound
administration justice - delivery system, to make known that there had been
proper and due application of mind to the issue before the Court and also as an
essential requisite of principles of natural justice.
"The
giving of reasons for a decision is an essential attribute of judicial and
judicious disposal of a matter before Courts, and which is the only indication
to know about the manner and quality of exercise undertaken, as also the fact
that the Court concerned had really applied 22 (2004) 5 SCC 573].
32.
Reason is the heartbeat of every conclusion. It introduces clarity
in an order and without the same, it becomes lifeless. Reasons substitute
subjectivity by objectivity. Absence of reasons renders the order
indefensible/unsustainable particularly when the order is subject to further
challenge before a higher forum. [Vide Officer, Rourkela I Circle & Ors.
(2008) 9 SCC 407; State (2009) 4 SCC 422].
33.
Thus, it is evident that the recording of reasons is principle of
natural justice and every judicial order must be supported by reasons recorded
in writing. It ensures transparency and fairness in decision making. The person
23 who is adversely affected may know, as why his application has been rejected.
34.
Indisputably, the High Court did not assign valid and good reasons
for rejecting the recommendation made by the Expert Committee for allowing the
construction in question in its judgment and order dated 28.09.2007 nor the
reasons have been recorded in the impugned judgment dated 21.08.2009 rejecting
the application for modification of the earlier order. Thus, in view of the
above, the orders, so far as this particular issue is concerned, remain
unsustainable.
35.
Thus, in view of the above, special facts and circumstances of the
case warrant review of the impugned order. The appeal stands allowed. The
impugned judgment and order dated 21.8.2009 is set aside. Application filed by
the appellant for modification of the order dated 28.9.2007 stands allowed.
However,
it is clarified that in case the proposed construction is raised it would be in
consonance with the existing ambience and compatible with the architecture of
24 the monument. The appellant shall ensure that landscape of the monument
would also not be disturbed by any means.
The
parties are left to bear their own costs.
.......................................CJI.
..........................................J. (DEEPAK VERMA)
.........................................J.
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