S.S. Nijjar, C.J.
1. These two writ petitions are identical in all respects and shall be disposed of by this common judgment. The petitioners seek the issuance of a writ in the nature of mandamus directing respondents authorities to act in accordance with law and to forthwith recall/rescind/revoke all decisions/directions/orders/notifications relating to the holding of Book Fair at Park Circus Maidan. In the first writ petition the petitioners are residents of the locality and apprehended to be adversely affected in case the Book Fair is permitted to be held at the Park Circus Maidan. The petitioners in the second writ petition claimed to be a Non-Governmental Organization formed for the purpose of various social activities, serving the people, fighting on issues concerning various walks of life, striving for the betterment of the society. Respondent No. 13 is an Association of Publishers & Booksellers of Kolkata, registered under the West Bengal Societies Registration Act, 1961. It is a non -profit making and social service Organization. It has been granted exemption under Section 80(G) of the Income Tax Act of 1961. It is known as the 'Publishers & Booksellers Guild' (hereinafter referred to as Guild). We may now briefly notice the facts as pleaded by the petitioners.
2. The Park Circus Maidan is an area of about 8.14 Square Kilometers. This area is like an oasis, in the heart of the Kolkata city facing numerous problems of air and noise pollution. The Maidan provides the much needed greenery to the city. It is used by young for recreation and by the old to have daily walk. It is said to provide a true respite for the local people residing in the area where seven busy roads of the city meet. The area is also used for sports by schools and as a knowledge development area. Over the years a large portion of the Maidan has been taken over by the water booster plant and by the garage of Kolkata Metropolitan Development Authority. Now, only 4.7 Square Kilometer of the Maidan are left for the use of the public. The Kolkata Book Fair being organized by the Guild was being held for about 2 decades in the Kolkata Maidan at Outram Road at the crossing of Park Street and Jawaharlal Nehru Road. Aggrieved against the degradation to the local environment writ petition was filed in this Court seeking, cancellation of the permission to hold the Book Fair at the Kolkata Maidan from 31st January, 2007 to February 11, 2007.
3. This writ petition was allowed and the Guild was compelled to hold theT36ok Fair in the Salt Lake Stadium in the year 2007. According to the petitioners there is no justifiable reason as to why the Book Fair should be held at the Park Circus Maidan. A permanent 'Mela Prangan' has been created in the Eastern Metropolitan Bypass area. All the Fairs which were being held in the Kolkata Maidan are supposed to shift. This decision was taken to control the ever increasing level of pollution in the city. However, the Guild considering books as salient and, sacred, for which human lives can be sacrificed easily, sought permission to hold Book Fair in the heart of the city at the cost of human hearts and lungs only to serve their own vested interest. The Guild has been permitted to use and occupy the Park Circus Maidan for the purpose of holding the Book Fair from 29th of January, 2008 till 10th February, 2008. The Organizers of the Fair have already turned the Park Circus Maidan into an unhealthy and unsafe place by digging up the Maidan for their installations. Huge branches of the big trees have already been cut off. It is apprehended that the grass will be totally destroyed. This will lead to huge amount of dust particles being thrown into the atmosphere. Park Circus is known to be one of the busiest traffic areas in the city. It is one of the bottleneck areas of the city. The junction where seven roads meet is a permanent traffic jam throughout the day. The Maidan is surrounded by hospitals, nursing homes and schools. Therefore, noise free environment is essential in the area. The petitioners apprehend that stepping up of noise pollution and traffic jams would inevitably cause hardship to the ailing people admitted to the hospitals and nursing homes. Even otherwise traffic jam would prevent free access to the hospital which is essential.
4. Similarly, the Park Circus is also abutted by three major schools/collies. Darga Road on the East of the Maidan is notorious for school specific 'traffic snarls' every morning and afternoon. The holding of the Book Fair is bound to aggravate the intolerable situation. It is apprehended that education of the students would also be affected. The green cover of the Maidan will be degraded as during the Book Fair at least 25 lac visitors would be walking on the grass. The Book Fair will leave a dusty, bare and dirty surface which cannot to be cured till the monsoons arrive. The increase in the number of vehicles will also translate into a much higher suspended particulate matter (SPM) count for the entire area. The petitioners also apprehend that organizations, Shopkeepers and visitors will be looking for refreshments at the Fair. Therefore, food and beverage of every description will vie for space and visibility. This will lead to unhygienic environment during as well as at the conclusion of the Fair. The petitioners had made representations to the respondents expressing their apprehensions. However, the respondents have not taken any notice. The entire action of the respondents is in violation of Article 21 of the Constitution of India.
5. It is the case of the petitioners that the holding of the Book Fair is in violation of the Air (Prevention and Control of Pollution) Act, 1981. The Fair is also being held without the requisite permission of the Municipal Commissioner under Section 353 of the Calcutta Municipal Corporation Act, 1980. Undoubtedly, holding of the Book Fair would lead to the closure of the Park from 29th of January till 10th February, 2008. Such a closure of a public Park can only be permitted on the requisite permission being granted by the Mayor. Before a closure order can be passed previous sanction of the Mayor in Council and approval of the State Government is necessary. In the present case, it is not known whether the Mayor in Council has given the previous sanction. It is also not known as to whether the State Government has given permission or approval for holding the Book Fair. Even if such permission has been granted it would be contrary to the provisions of the Air Pollution Control Act, 1986.
6. A Division Bench of this Court in the case of Sabyasachi Roychowdhury v. Union of India and Ors. (2007) 1 WBLR (Cal) 604 has already held that holding of the Book Fair at the Kolkata Maidan is not permissible. For similar reasons, the Book Fair cannot be permitted to be held at the Park Circus Maidan. In fact, the holding of the Book Fair at the Park Circus Maidan would be even more dangerous as it would be hazardous to human lives. In the case of Kolkata Maidan it was causing damage to the Victoria Memorial. The petitioners further claim that the holding of the Book Fair would lead to the increase in the Respirable Particulate Matter (RPM) level which would be hazardous to the health of the human population. The petitioners further state that Park Circus Maidan is required to be declared as a silence zone since 100 meters of the Maidan, hospitals and schools are situated. The petitioners state that there is 'an infringement of Rule 3 of the Noise Pollution (Regulation and Control) Rules, 2000. Under this Rule it was the duty of the State Government to categorise all the areas into industrial, commercial, residential for the purpose of implementation of noise standards for different areas. Under Rule 5, area comprising not less than 100 meters around hospital, educational institutions and Courts has to be declared as silence zone. Therefore, by not declaring the Park Circus Maidan as silence zone the authorities have failed to perform their statutory duties.
7. On the other hand, respondent No. 13 has stated that the purpose of the Guild is to encourage the spread of literacy and education in India and throughout the world. It is, therefore, necessary to organize Book Fair and to assist members of the Guild in their participation in International Book Fairs and exhibitions. In organizing a Book Fair the Guild is rendering a social service. The Guild has participated in Book Fairs throughout India. It is a member of the International Publishers Association (IPA), Geneva since 1984. The associates of IPA including Guild are regularly organizing Book Fairs in their respective countries. Every year IPA publishes a calendar to inform the book lovers of the worldwide about dates and venues of the Book Fairs. In the calendar for 2008, it has been specifically mentioned that Kolkata Book Fair will be held on and from 30th of January, 2008. The Frankfurt Book Fair Committee has also published in its calendar that the Kolkata Book Fair will commence from 30th of January, 2008. Initially, the Guild had decided to hold the Book Fair at the Maidan but in view of the judgment dated 29th January, 2007 the proposal was abandoned. Subsequently, considering the pros and cons the Guild decided to hold the Book Fair at Park Circus Maidan, subject to availability of required permission or licence from the statutory authorities. Guild therefore, by letter dated 1.11.2007 applied before the authorities of the Kolkata Municipal Corporation (hereinafter referred to KMC) and also West Bengal Pollution Control Board (hereinafter referred to PCB) for necessary approval. PCB by its letter dated 14th November, 2007 has informed the Guild that in view of the law of the land, there is no environmental clearance necessary. The Guild, however, is required to comply with the provisions of Water (Prevention and Control of Pollution) Act 1974, Air (Prevention and Control of Pollution) Act, 1981 and Noise (Regulation and Control) Rules, 2000. The Guild was further informed that the PCB had already directed all the Municipal Authorities and Block Development Officers of the West Bengal that they would incorporate the stipulated guidelines while issuing permission to any fair/mela, vide memo No. 3016-5W-4/2007 dated 7th February, 2007. In response to the letter of PCB, KMC called the Guild to discuss the application for holding the Book Fair at the Park Circus Maidan. Several meetings were held and the Authorities of the KMC principally agreed to accord approval in favour of holding Kolkata Book Fair, 2008 at Park Circus Maidan with certain terms and conditions. On getting the aforesaid assurance the Guild held Press Conference on 21st November, 2007. In this Press Conference it was clearly stated that the Book Fair would be held from 29th January, 2008 till 10th February, 2008 at the Park Circus Maidan. The news was widely published in the News Papers on 22nd November, 2007. Finally, approval was accorded by the KMC on 26th of December, 2007. Necessary permission has also been granted by the West Bengal Fire and Emergency Services.
8. Considering that there is a dearth of parking space in and around Park Circus Maidan, the Guild has earmarked two sites; one at Gorachand Dey Ground and another at 33 Sayed Amir All Avenue for parking of cars of the visitors to the Fair. According'to the Guild, Gorachand Dey Ground would accommodate 400 cars, whereas the site at Sayed Amir Ali Avenue would accommodate 1,000 cars. According to the Guild, there would be more than adequate parking space as the visitors to the Book Fair at Kolkata have a class distinction of their own. The vast majority of the visitors belong to the middle-class of Bengal. A large number of visitors are students. Some of the schools organize visits to the Fair along with their teachers. They travel to the Fair in school buses. Wealthy or better of people do not visit the Book Fair in large numbers. Therefore, the proposed Book Fair would not create any additional traffic problem. In any event, the Fair would commence at 2 P.M. and end at 8 P.M. On working days the traffic problem at Park Square is acute only during office hours, i.e., in between 9 A.M. and 11 A.M. and between 4 P.M. and 7 P.M. This kind of traffic problem is usual in Metropolitan Cities allover the world including London and New York. It is past experience of the Guild that not more than 600 to 700 cars would visit the Book Fair daily and that, too, late in the evening or on holidays. Necessary approval for the use of parking space has been given by the State Government as well as CESC Ltd.
9. The Commissioner of Police has also granted permission for holding the Fair with certain terms and conditions which have been enumerated in the letter dated 16th of January, 2008. Electricity supply to the Fair has also been arranged with the CESC Ltd. The Guild has already incurred huge expenditure for depositing different sums with the CESC Ltd. for grant of necessary electricity connections, in spite of it being a non-profit making Organization. The Fire Services have also granted a no-objection certificate after due inspection and on deposit of the requisite fee. In fact, in order to assess the impact of the Fair on environment, the Guild formed a Committee consisting of eminent scientists or environmentalists. They have already formulated the guidelines to be followed by the Guild in holding the Fair in an eco-friendly atmosphere. The Environment Protection Cell has also made recommendations for control of pollution during the holding of the Fair. The suggestions made by Dr. Kingshuk Sen, an eminent environmentalist, by his letter dated 3rd January, 2008, have also been meticulously followed. All the preparations have been made for holding the Fair. On 18th of January, 2008 a copy of the writ application was served on the Advocate-on-Record of the Guild. The decision to hold the Fair at Park Circus Maidan having been published on 22nd November, 2007, the petitioners cannot now be permitted to move the present writ petitions. Numerous dignitaries from different parts of the Globe have already been invited. Most of the dignitaries have already purchased air-tickets to attend the Fair. The PCB will be regularly monitoring the pollution before, during and after the Fair and preserving the data regularly. In any event, the Guild has arranged for effective measures to combat the possibility of pollution resulting from holding the Fair at the Park Circus Maidan. The Guild is as much interested that there should not be any pollution at the Fair as any other individual of the locality. The PCB by its letter dated 18th January, 2008 had already instructed Guild to construct a platform of 10ft. high from the ground to enable the measurement of the pollution level in and around the locality during the Fair. It is also pointed out by the Guild that the residents of the locality do not object to the holding of Durga Puja, Kali Puja or even holding of massive circus for a prolonged period. According to the Guild it is a matter of common knowledge that in holding such Pujas the entire Park area becomes inaccessible. The petitioners have rushed to the Court without making any in-depth study into the subject matter of the writ petition. The objection with regard to the schools is frivolous as the Fair would not be open for the public till 2 P.M. During that period the schools would be closed. In any event, the Guild is aware that effective measures shall have to be taken for restoring the Park not only to its original conditions as it stands today but also to improve the same. To reduce the pollution level the Guild will keep 3,500 to 4000 leafy potted plants on the ground which will help to lower the level of pollution in the locality. In addition to that, water will be sprinkled in the Fair Ground before the daily commencement of the Fair and, thereafter, at the interval of one hour and after the closure of the Fair for the day. The morning walkers and the joggers will also be allowed in the Park from 5 A.M. to 9 A.M. each day. The KMC is also preparing a temporary sewerage line for discharge of toilet wastes which will be in operation during the holding of the Fair at the Maidan. With regard to sound pollution it is stated that even in normal atmosphere noise level in the locality during day time is more than the permissible level. In order to prevent any aggravation of the noise pollution the Guild has made arrangements of putting up walls of Corrugated Tin Sheets of about 12 feet high as a boundary which will prevent noise as well as air pollution. With regard to the interference with the religious worship of the Muslim population in the area, it is stated that the Mosque which is situated within the Park will remain open for devotees for 24 hours of the day. With regard to the earlier Division Bench judgment of this Court it is stated that it may not be relevant in the case. Finally, it is stated that since all arrangements have been made to hold the Fair from 29th January, 2008 to 10th February, 2008, the present belated writ petition should not be entertained by the Court. The PCB filed an affidavit on 24th January, 2008. In this affidavit it is clearly stated that the PCB has already issued directions to all Municipalities on 7th February, 2007 regarding incorporation of environmental guidelines at the time of giving permission for holding any Fair.
10. It was specifically mentioned in the aforesaid communication That in case of non compliance of any of the environmental guidelines by any of the Organizers of the Fair, any permission granted to the Organizers may be withdrawn. These guidelines were issued by the Board as there is no provision under the Environment Laws for giving permission or consent for organizing any Fair. The guidelines were, however, framed on a specific request made by the Department of Environment of Government of West Bengal in its letter dated 6th February, 2007. A request was received from the Guild for grant of permission for holding the Kolkata Book Fair, 2008 at Park Circus Maidan from 30th January, 2008 to 10th February, 2008. In reply to the aforesaid request, the Guild was informed that there is no need of clearing separate environment clearance/concurrence from the PCB. The Organizers were, however, required to comply with the Environmental Laws. The guidelines which had been issued to the Municipal Authorities were incorporated in the aforesaid letter. The PCB has also filed a supplementary affidavit. It is stated in this affidavit that the Board had installed Automatic Air Quality Monitoring Van within the campus of Lady Braborne College, adjacent to Park Circus Maidan and conducted round the clock air quality monitoring from 21.01.2008 in the surrounding area particularly in respect of Oxides of Sulfur, Oxides of Nitrogen, Respirable Particulate Matter (RPM), Carbon Monoxide, etc. Apart from the 4 hourly averages of the air pollutants from 21.01.2008 to 24.01.2008 at Park Circus Maidan, a corresponding chart with regard to the Victoria Memorial has also been made. Therefore, a clear analysis can be drawn with regard to the measure of pollutant in the heart of Kolkata. The PCB has also relied on the study of air pollutant during the Book Fair held last year at Yuba Bharati Krirangan, Salt Lake. A more clear picture regarding level of pollution in the city is also available from the report of the Board for the entire year of 2007 on some of the busiest and most important points of the city.
11. We may notice here that the State of West Bengal as well as the KMC have chosen not to file any affidavit.
12. Heard the learned Counsel for the parties at length.
13. Learned counsel for the petitioner Mr. Ashok De has submitted that the entire area being surrounded by schools and hospital was required to be declared as silent zone in accordance with the Rule 3(5) of the Noise Pollution (Regulation and Control) Rules, 2000. Learned counsel further submitted that closure of Park Street Maidan would be covered by Section 353 of the Kolkata Municipal Corporation Act (hereinafter referred to as KMCA). The Municipal Commissioner can order the closure of a Park or a public square permanently or temporarily. However, such an order can only be passed with the approval/sanction of the Mayor in Council and subject to the approval of the State Government. The Park can be closed in public interest or for the purpose of carrying out the provisions of the KMCA. The petitioners are not aware whether any such order has been passed or not. The petitioners are also not aware as to whether the mandatory procedure under Section 353 has been followed. According to the learned Counsel on this short ground the alleged permission granted to the Guild for holding the Fair is illegal and the Fair cannot be held. Learned counsel further submitted that the issue raised in this writ petition is squarely covered by the judgment rendered by the earlier Division Bench in the case of Sabyasachi Roychowdhury (supra). Learned counsel has relied on the Division Bench observations contained in paragraphs 29 and 41. It is further submitted by Mr. De that the PCB has totally failed to perform its statutory duty. It is the duty of the Board to enforce the legislation to prevent and control the spread of pollution. Learned counsel submitted that recognizing the importance of pollution free air, the Parliament has added Article 48(A) to the constitution of India. Article 48(A) read with Article 51(A)(g) makes it evident that the State of West Bengal, the KMC and the PCB have failed to perform their statutory duties. It is the duty of the KMC to preserve the greenery at the Park Circus Maidan but the Corporation is unmindful of the damage that would be caused to the residents of the locality by illegally permitting the Guild to hold the Fair. Learned counsel submitted that the Park can be closed only in public interest. When public interest and private interest clashes, the public interest would have to prevail. He relied on the judgment in the case of Rqjinder Singhv. State of Haryana and Ors. (2005) 9 SCC 1. Learned counsel further submitted that onus is on the Guild to satisfy the Court that the Fair will not have an adverse effect on the environment. In support of his submission he has relied upon a judgment in the case of A.P. Pollution Control Board v. Prof M.V. Nayudu (Retd.) and Ors. : [1999]1SCR235 . Mr. Amzad Ali, learned Counsel, submitted that the statutory authorities have singularly failed to perform their duties in a fair manner having ignored the provisions of the Environment Protection Act, 1986 and the provisions of the Noise Pollution (Regulation and Control) Rules, 2000. Learned counsel reiterated that the Mayor in Council has not granted the necessary permission. Even if it is granted, the same is vitiated as relevant considerations have not been taken into consideration. No material is placed on the record to show as to how the traffic would be managed in this already congested area.
14. Mr. S.N. Mukherjee, learned senior counsel appearing for the Guild, has laid a great deal of stress on the fact that Guild is not a profit making Organization. It is exempted under Section 80(G) of the Income Tax Act. Therefore, according to the learned Counsel the Guild cannot be accused of wanting to hold the Fair for their own private interests. Learned counsel submitted that the writ petition deserves to be dismissed on the preliminary objection that the petitioners have come to Court without any research. No importance has been laid to the guidelines made by the experts. No research has been conducted into the scientific explanations that have been given. The precautionary measures taken by the Guild and the Authorities have been totally ignored by the petitioners. In environmental matters precautionary principles have a role to play. In Support of his submissions the learned Counsel has relied upon a decision in the case of Bombay Dyeing and MFG. Co. Ltd., v. Bombay Environmental Action Croup and Ors. reported in : AIR2006SC1489 . Learned counsel further submitted that the petitioners ought not to be encouraged to move frivolous petitions in public interest. He relies on the judgment in the case of R & M Trust v. Koramangala Residents Vigilance Group and Ors. reported in : AIR2005SC894 . Dwelling on the nature and the character of the Guild, Mr. Mukherjee submits that it is a part of the International Body which holds Book Fairs. The Kolkata Book Fair is being held since 1976. It is equal in status to the Frankfurt Book Fair. The object of the Guild is to promote awareness about the benefits that can be derived from reading books. The Book Fair not being a profit making venture cannot be compared to any other normal Fair. Relying on the averments made in the affidavit which have been noticed by us above, the learned Counsel has submitted that necessary precautionary measures have been taken to prevent any aggravation of the pollution.
15. Therefore, the Fair should be permitted to be held, It is an event of International status. Numerous dignitaries would be arriving in Kolkata to take part in the Fair. Learned counsel reiterated that all necessary permissions have been taken from the Authorities. The guideline provided by the PCB on 7th February, 2007 will be fully complied with. The KMC has granted the permission on 26th December, 2007 after a series of discussion with the Guild. Making a reference to the letter issued by the KMC, learned Counsel has submitted that the KMC is supporting the Book Fair. Mr. Mukherjee further submitted that Maidan Circus is occupied throughout the year by different Organizations holding different events. Every year the Maidan is host to Durga Puja, Kali Puja, Sharad Mela, Jhulan Mela, Janaswasthya Mela, flower show, Id, Children's Book Fair, Milan Mela. Therefore, the situation in the Park Circus Maidan cannot be compared to the Kolkata Maidan area. Mr. Bimal Kr. Chatterjee, learned senior counsel appearing for respondent No. 14, submitted that this writ petition has been filed in apprehension of increasing pollution. It is submitted that the situation in the Park Circus Maidan cannot be compared with the circumstances which were prevailing at the Kolkata Maidan when the order was passed by the earlier Division Bench. In any event, Mr. Chatterjee submitted that holding of a Book Fair in Kolkata has assumed the character of a cultural event. It cannot be compared to a normal mela. Therefore, there is no justification for denying the Guild the benefit of the Park Circus Maidan when it is made available for all the other events. In order to allay the fear of the petitioners the Court can always impose further conditions for holding the Book Fair. Mr. Jayanta Mitra, learned Counsel appearing for the KMC, submitted that provisions of Section 353 of the KMCA would not be applicable in the facts and circumstances of this case. Under Section 343 all public streets, squares, parks and gardens in Kolkata vest in the Corporation. Under Section 344 all public streets, squares, parks and gardens vested in the Corporation shall be under the control of the Municipal Commissioner. It is his responsibility to have the same maintained, controlled and regulated in accordance with the provisions of KMCA. As the land vests in the Municipal Corporation, its right of ownership would have to be recognized.
16. Therefore, unless any legal right of someone is infringed, no writ would lie. Parks by the nature, according to the learned Counsel, are reserved for recreation, amusement and entertainment of the general population. Holding of Book Fair would fall within the definition of recreation. Therefore, even if the entry to the Park is restricted, it would not fall within the definition of closure of the Park. Therefore, Section 353 would not be applicable. In any event, the permission granted by the KMC to the Guild would clearly show that the KMC is performing its statutory functions. In support of his submissions learned Counsel has relied upon the decisions which are as under:
1. Sutirit Mitra v. Corporation of Calcutta and Ors. reported in 1962 CWN 186.
2. S.N. Sugar Mills v. C.T. Officer reported in 1965, CWN 1039.
3. Shree Madhusudan Mills Ltd. v. Corporation of Calcutta and Ors. reported in : AIR1976Cal133 .
17. Necessary guidelines have already been issued which would have to be observed by the Organizers of the Book Fair. In reply learned Counsel, Mr. Ashok De has submitted that the entire Park Circus Maidan has been barricaded by the Organizers of the Book Fair. Therefore, it can hardly be said to be left open for the use of the public. Learned counsel further submitted in this case that the Municipal Authorities as well as the PCB have failed to perform their statutory functions. Making a reference of Section 22 of the Air Act, 1981 learned Counsel submitted that the State Boards has failed to carry out its functions and ensure that there is no increase of air pollution within the city of Kolkata. Answering the preliminary objections with regard to delay and laches learned Counsel has submitted that in PIL the role of the individual takes a backseat. In the present case, the petitioners had submitted representations to the authorities but no action has been taken. In support of this submission learned Counsel has relied on:
1. Ashok Lanka and Anr. v. Rishi Dixit and Ors. reported in : AIR2005SC2821 .
2. Eastern India Edible Oil Manufacturers' Association and Anr. v. Union of India and Ors. reported in 2004(4) CHN 121.
18. Mr. De further submitted that petitioners are not saying that the Book Fair should not be held. The anxiety of the petitioners is that the Book Fair should be held in accordance with the Section 353 of the Calcutta Municipal Corporation Act. Learned counsel has reiterated that the permission granted by the Commissioner is without jurisdiction. If the permission granted by the Commissioner is set aside then all consequential actions would also be nullity.
19. Learned counsel, Mr. Amzad Ali has submitted that the actions of the Authorities are in collusion with the Guild. No permission has been granted by any Authority. All the documents attached by the petitioners only show permission is granted subject to the clearance from other statutory authorities.
20. We have considered the submissions made by the learned Counsel for the parties and perused the pleadings. Park Circus Maidan lies at the heart of the Kolkata city. It is one of the busiest traffic areas of the city. It acts as the largest lungs of Kolkata after the Maidan. It is regularly used by not only the local residents but also by the people living in the nearby locality for their recreational activities. Most of these activities such as walking, jogging, light exercise, in the form of sports, such as Tennis, are now recognized as essentials for good health. By providing an open space in an otherwise congested locality Park Circus Maidan provides the necessary space for a breath of fresh air. Earlier the Maidan had occupied an approximate area of 8.14 sq. kms. This area has, however, been gradually reduced to 4.7 sq. kms. as the State has established a water booster plant and a garage of Kolkata Munucipal Development Authority inside the Maidan. It was like an oasis in the heart of the city which is facing numerous problems of air and noise pollution and the ever increasing human as well as vehicular pollution. Therefore, the question that arises for the consideration of the Court is as to whether the Park Circus Maidan can be permitted to be closed even temporarily for holding the Calcutta Book Fair.
21. Mr. De, in our opinion has rightly submitted that instead of adding to the noise Pollution the area within which the Park Circus Maidan is situated deserved to be declared the silent zone. It is accepted by all the parties that Park Circus Maidan is surrounded by hospitals and educational institutions. To the East of the Maidan i.e. on Darga Road, there are two major teaching institutions, viz., Don Bosco School and Mahadevi Birla Girls High School to its South i.e. Orient Row, is Park Circus Girls High School to its West situated on the seven-points Park Circus Crossing is the Islamiya Hospital to the North i.e. on Surawardy Avenue is Lady Brabourne College and Chittaranjan National Medical College and Hospital. Apart from this there is high density residential accommodation. There are many chemist shops and several Nursing Homes. In these circumstances clearly the relevance of the Noise Pollution (Regulation, and Control) Rules 2000 which came into force on 28th of February, 2000 becomes quite significant. These Rules have been promulgated with the objective of maintaining the ambient air quality standards in respect of noise. The Rules have been framed by the Central Government in exercise of its powers under the Environment Protection Act, 1986. Rule 3 of these Rules enjoins on the State Government to take measures for abatement of noise, and to maintain the ambient air quality standards in respect of noise for different areas/zones 'as specified in the schedule to the Rules. Rule 3 of the aforesaid Rules is as under:
3. Ambient air quality standards in respect of noise for different areas/zones -(1) The ambient air quality standards in respect of noise for different areas/zones shall be such as specified in the Schedule annexed to these rules.
(2) The State Government may categorize the areas into industrial, commercial, residential or silence areas/zones for the purpose of implementation of noise standards for different areas.
(3) The State Government shall take measures for abatement of noise including noise emanating from vehicular movements and ensure that the existing noise levels do not exceed the ambient air quality standards specified under these rules.
(4) All development authorities, local bodies and other concerned authorities while planning developmental activity or carrying out functions relating to town and country planning shall take into consideration all aspects of noise pollution as a parameter of quality of life to avoid noise menace and to achieve the objective of maintaining the ambient air quality standards in respect of noise.
(5) An area comprising not less than 100 metres around hospitals, educational institutions and Courts may be declared as silence area/zone for the purpose of these rules.
22. No material has been placed before us to show that either the State Government or the Kolkata Municipal Corporation has specified any particular area or zone of the ambient air quality standards in respect of noise in accorance with Rule 3, Rule 2(c) defines authority as under:
2. Definitions.- In these roles, unless the context otherwise, requires,--
(c) 'authority' means any authority or officer authorised by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioner, or any other officer designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force.
Rule 4 mandates that authority shall be responsible for the enforcements of noise pollution control measures, is as under:
4. Responsibility as to enforcement of noise pollution control measures.--
(1) The noise levels in any area/zone shall not exceed the ambient air quality standards in respect of noise as specified in the Schedule.
(2) The authority shall be responsible for the enforcement of noise pollution control measures and due compliance of the ambient air quality standards in respect of noise.
23. A bare perusal of the above would show that it was incumbent on the State Government to implement the aforesaid Rules to maintain the standards of ambient air quality in respect of noise. In the present case, the Guild in its affidavit has clearly stated that the noise pollutions in the Park Circus Maidan is already above the level permitted and, therefore, holding of the Book Fair would not make any difference to the level of noise pollution. We are unable to accept such a submission. The provisions contained in the aforesaid Rules are mandatory in nature. No discretion has been vested in any authority to relax the standards. The standards of ambient air quality prescribed in the schedule are the bare minimum requirements. There can be no relaxation of the aforesaid standard. No material has been placed before us to show that any part of the Maidan has been declared as a silent zone even though it is abutted on all sides by Hospitals and Nursing Homes. Aprehensions expressed by the petitioners cannot be just brushed aside. The petitioners are entitled to live in an environment having clean air and noise levels within the prescribed limits. They are also entitled to enjoy facilities provided by the Park Circus Maidan. The importance of clean air in the lives of individuals and the community is a fundamental right guaranteed under Article 21 of the Constitution of India. We may notice here the law laid down by the Supreme Court in the case of Subhash Kumar v. State of Bihar and Ors. reported in : [1991]1SCR5 .
7...Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life....
24. Given the aforesaid dicta of the Supreme Court it can no longer, be doubted that the petitioner had the legal right to approach this Court under Article 226 of the Constitution for protection of their fundamental rights. The importance of a Park in the lives of citizens in a crowded city has also been recognized by the Supreme Court in the case of Bangalore Medical Trust v. BS Muddappa reported in : [1991]3SCR102 . In this case the Supreme Court considered the question as to whether the members of the public being residents of the locality, have a right to object to the diversion of the users of the space reserved for a Park meant for the general public and for the protection of the environment. Justice Thommen has clearly held as follows:
24. Protection of the environment, open spaces for recreation and fresh air, play grounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.
25. Reservation of open spaces for parks and play grounds is universally recognized as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanization.
29. The residents of the locality are the persons intimately, vitally and adversely affected by any action of the BDA and the Government which is destructive of the environment and which deprives them of facilities reserved for the enjoyment and protection of the health of the public at large. The residents of the locality, such as the writ petitioners, are naturally aggrieved by the impugned orders and they have, therefore, the necessary locus standi.
25. These observations make it abundantly clear that the -submissions of the residents with regard to the lack of locus standi to present the petition under Article 226 of the Constitution of India are devoid all merit. The same sentiment is echoed by Justice R.M. Sahai in paragraph 36 of the judgment which is as follows:
36. Locus standi to approach by way of writ petition and refusal to grant relief in equity jurisdiction are two different aspects, may be with same result. One relates to maintainability of the petition and other to exercise of discretion. Law on the former has marched much ahead. Many milestones have been covered. The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in wake of public interest litigation. Even in private challenge to executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of a public nature is fast vanishing. Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in proper and effective administrative guidance is forcing citizens to espouse challenges with public interest flavour. It is too late in the day, therefore, to claim that petition filed by inhabitants of a locality whose park was converted into a nursing home had no cause to invoke equity jurisdiction of the High Court. In fact public spirited citizens having faith in rule of law are rendering great social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury. Present day development of this branch of jurisprudence is towards freer movement both in nature of litigation and approach of the Courts. Residents of locality seeking protection and maintenance of environment of their locality cannot be said to be busy bodies or interlopers. Even otherwise physical or personal or economic injury may give rise to civil or criminal action but violation of rule of law either by ignoring or affronting individual or action of the executive in disregard of the provisions of law raises substantial issue of accountability of those entrusted with responsibility of the administration. It furnishes enough cause of action either for individual or community in general to approach by way of writ petition and the authorities cannot be permitted to seek shelter under cover of technicalities of locus standi nor they can be heard to plead for restraint in exercise of discretion as grave issues of public concern outweigh such considerations.
26. We are also unable to accept the submission of the learned Counsel for the respondents that the writ petition deserves to be dismissed on the ground of delay and laches. The judgment relied upon by the respondents in the case of R & M Trust (supra) would not be applicable in the facts and circumstances of this case. In that case the petitioners had challenged the licenses that had been granted to the builder for constructing multistoried buildings and multi apartments. The writ petition was said to have been filed by the Residence Vigilance Group. This writ petition was dismissed on the ground of delay and laches with the following observations:
34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the' third-party interest created on account of delay. Even otherwise also why should the Court come to the rescue of a person who is not vigilant of his rights ?
35. We are of the opinion that delay in this case is equally fatal, the construction already started by the appellant in 1987 and building had come up to three floors. Thereafter it was stopped in 1988 and in March 1991 it resumed after permission was granted. The writ petition was filed in November 1991 meanwhile construction was almost complete. Therefore, delay was fatal in the present case and learned single Judge rightly held it to be so. It was also brought to our notice that 46 multi-storey buildings have come up in this area. Learned counsel has produced photographs to show that buildings more than three and four floors have been constructed in and around this area.
27. These observations would not be applicable in the facts and circumstances of this case. The first announcement for holding the Book Fair at the Park Circus Maidan according to the respondents was given when the Guild held the Press Conference on 21st of November, 2007. This was widely published in the newspapers on 22nd November, 2007. The petitioners naturally took time to organize themselves. Public opinion had to be formulated. Ultimately a Darga Road Citizens Committee was formulated. Thereafter representations were made to the appropriate authority. These representations have all been made on 03.01.2008 by the office bearers of the organization as well as the Principles of Don Bosco School and the Mahadevi Birla Girls High Secondary School. The representations were sent to the Chief Minister of the West Bengal as well as to the Officer-in-Charge of the local Police Station and the Commissioner of Police. The third recipient of the same representation was the Mayor of Kolkata. When no action was taken on these representations, the petitioners had no option but to file the present writ petition. We are unable to accept that the delay in these matters is such as to decline necessary relief to the petitioners. This is not a case where third party rights have intervened as was noticed by the Supreme Court in the case of R.M. Trust (supra). We, therefore, rejected this preliminary objection raised by the petitioner.
28. Mr. De has submitted that holding of the Fair at Park Circus would be a direct infringement of the directive principles as enshrined in Articles 48A and in breach of Article 51A(g). These two articles provide as under:
48A. Protection and improvement of environment and safeguarding of forests and wild life.- The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
51A(g).- to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.
29. A perusal of the aforesaid two articles would clearly show that State has been mandated two endeavours to protect and improve the environment. Article 51A(g) makes it a fundamental duty of every authority including every citizen of India to protect and improve the environment. The proposition that Articles 14, 21 and 51A(g) are to be read together is no longer res integra, in, view of the law laid down by the Supreme Court in the case of Subhash Kumar (supra).
30. Mr. Mitra however submitted that in this case there is no closure of the Park. The KMC had exercised its power under Sections 343, 344 and 353 of the Kolkata Municipal Corporation Act, 1981. Undoubtedly, under Section 343 all public streets, squares, parks and gardens in Kolkata shall vest in the Corporation. But Section 344 places a duty on the Municipal Commissioner to maintain and control and regulate the public streets, squares, parks and gardens in accordance with the provisions of the Act and the Rules and Regulations made thereunder. The petitioners are complaining that the Municipal Commissioner has failed to perform his duty under Section 344 by giving permission to the Guild for holding the Book Fair. Mr. Mitra however submitted that the Municipal Commissioner has the power to permanently or temporary close the area of any public street, square, park or garden. Therefore the Park Circus Maidan can be closed. But in the present case there is in fact no closure, as the purpose for maintaining the Parks is to provide for recreation facilities to the public. The holding of the Book Fair would fall under recreational activities and, therefore, it would not amount to closure of the Park. Therefore, the provision of Section 353 would not be applicable in the facts and circumstances of this case.
31. We may now look at the judgments cited by the Mr. Mitra in support of this proposition. In the case of Suhrit Mitra (supra), a learned single Judge of this Court considered the right of the corporation to use Marcus Square, a public square in the city for a period of three months in consultation with the party or parties paying to the corporation a lump sum of Rs. 25,000/-. Considering the provisions of Section 361C of the Calcutta Municipal Act, 1951 it was held that the Corporation of Calcutta has the right to temporarily close the public square as an incidental and necessary right to the fact that square is vested in and belongs to the Corporation under Section 349 of the Act. It was also held that when a public square or garden is allowed to be used for a circus performance either to a circus company or a circus party it would not amount to closure of the public square or holding of the circus would fall within the right of a citizen to resort to the park for purposes of relaxation, entertainment and recreation would include a right of a section of the public to attend a circus. It was also held that the right of access to the public square or garden can be restricted and limited both by the hours and perhaps by the fee, but this is not 'closing' the public square or garden at all within the meaning of statute. It was, therefore, held that the resolutions passed by the Corporation were not beyond its statutory powers.
32. In the case of Kalyan Kumar Ghoshv. The Commissioner, Corporation of Calcutta and Ors. reported in 65 CWN 1042, the ratio of law laid down in the case of Suhrit Mitra (supra) has been reiterated. In that case Deshyapriya Park was sought to be partly enclosed by putting up tin barriers for holding a Mela to celebrate the centenary of Rabindra Nath Tagore. It was held that a public park may be utilized by the corporation for the amusement and entertainment of the public. If, therefore, a park or garden thereof is allowed to be utilized for public amusement or entertainment, it does not amount to a closure at all. But in that case the resolutions for closure of the park were set out on the ground that the procedure prescribed under the Act had not been followed.
33. In the case of Shree Madhusudan Mills (supra) a Division Bench of this Court has held that the Municipal Corporation is the owner of public streets. Its ownership, however, cannot be equated with the ownership of a private individual over his own property. The Corporation cannot do whatever it likes. It cannot infringe the rights conferred under the Act on the members of the public. The public has the right of way, a right of user as pedestrians or otherwise which they are entitled to exercise without obstruction. Since putting up of hoardings for advertisements would in no way hinder the right of the public. The Corporation would be entitled to permit the putting up the hoardings.
34. In our opinion, the aforesaid judgments would be of no avail to the respondents in view of Article 21 of the Constitution of India. In all the three cases the issue of environmental degradation was not raised or considered. All decisions of the Corporation would now have to take into consideration, the impact on the environment of any action which is proposed to be taken by the Corporation. The importance of Article 48A in juxtaposition with Article 51A(g) has been considered and dilated upon by the Supreme Court in the case of Sri Sachidanand Pandey and Anr. v. The State of West Bengal and Ors. reported in : [1987]2SCR223 .
35. We may notice here only the observations made in paragraph 4 of the judgment which would have a direct bearing on the questions that have been raised in the present writ petitions, which is as follows:
4. In India, as elsewhere in the world, uncontrolled growth and the consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem. The once Imperial City of Calcutta is no exception. The question raised In the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court. Obviously, if the Government Is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to Interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48-A of the Constitution, Directive Principle which enjoins that 'The State', shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country, and Article 51A(g) which proclaims it to be 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. When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy-making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the Court may go further, but how much further must depend on the circumstances of the case. The Court may always give necessary directions. However the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority. We may now proceed to examine the facts of the present case.
36. A perusal of the aforesaid observations would clearly show that environmental questions are of urgent nature as uncontrolled growth and the consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem. It has also been held that when the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account the Court may not interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. It is emphatically laid down that when a problem of ecology is brought before the Court, it is bound to bear in mind Article 48-A of the Constitution, directive Principle and Article 51A(g) of the Constitution.
37. Keeping in view the aforesaid law we may now examine as to whether the action taken by the KMC can be sustained. Mr. Mukherjee had very strenuously submitted about the efficacy of holding the Book Fair at the Maidan. Learned counsel had also submitted that all necessary precautions have been taken to ensure that there is no further deterioration in the environmental pollution. We are, however unable to accept the aforesaid submission. The West Bengal Pollution Control Board has placed on the record the four hourly average of the air pollutants at Park Circus. On the basis of the investigation in the area from 21st January 2008 to 24th January, 2008. It is accepted that requisite standard of RPM is a maximum of 100. The values recorded on the four days are as under:
21.01.2008 - 161.5722.01.2008 - 227.5823.01.2008 - 152.4524.01.2008 - 123.36
In comparison to this the values recorded at the Victoria Memorial Hall are as follows:
21.01.2008 - 128.7522.01.2008 - 186.5323.01.2008 - 160.7224.01.2008 - 131.50
38. A comparison of the two would show that there is hardly any difference in the level of environmental pollution between the two areas. Therefore, in view of the provisions contained in and Control of Pollution) Act, 1981, The Environment Protection Act, 1986 and the Noise Pollution (Regulations and Control) Rules, 2000 no permission could have been granted. Under the Environment Protection Act, 1986, it is the duty of the Central Government as well as the State Government to take such measures which are necessary for protecting and improving the quality of environment. The Pollution Control Board has been constituted under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974. Under The Air (Prevention and Control of Pollution) Act, 1981 the State Board which has been established under the Water (Prevention and Control of Pollution) Act, 1974 would also be the State Board for the purposes of the Air Act, 1981. Powers and functions of the State Board under the Air Act are set out in Section 17 of the Act. It is the duty of the State Board to perform inter alia the following functions:
17. (a) to plan a comprehensive programme for the prevention, control or abatement of air pollution and to secure the execution thereof;
(b) to advise the State Government on any matter concerning the prevention, control or abatement of air pollution ;
(c) to collect and disseminate information relating to air pollution;
(f) to inspect air pollution control areas at such intervals as it may think necessary, assess the quality of air therein and take steps for the prevention, control or abatement of air pollution in such areas.
39. In our opinion, the Board has collected the environmental data in performance of its statutory functions. Section 30 of the Air Act, 1981 provides that any document purporting to be a report signed by a Government analyst or as the case may be, a State Board analyst may be used as evidence of the facts stated therein in any proceeding under this Act.
40. In view of the aforesaid provision we have no reason to doubt the data presented before us by the Pollution Control Board. A perusal of the aforesaid data would show that the level of pollution in the Park Circus Maidan area is already at a level which is dangerous to the health of the inhabitants of the locality. Holding of the Book Fair at the Maidan, in our opinion would not be in public interest. We are unable to accept the submission of Mr. Mukherjee that because the Guild is a non-profit making organization, it can be assumed that it has no vested interest in selecting Park Circus Maidan as a convenient site for holding the Book Fair. A perusal of the objects for which the Guild has been formed would clearly show that its activities are not only for the benefit of book lovers. In fact its aims are to promote professional standards amongst members. The members are to co-operate for mutual benefit with other organizations concerned with creation, production and distribution of books. The Guild also negotiate for special facilities and benefits for exporters. Therefore, we are unable to accept that the Book Fair is held only for the benefit of the reader. We are also unable to accept that there is no profit motive involved. Nor can it be accepted that it is not a commercial venture. The Guild is only the umbrella organization. The real beneficiaries would be the stall holders. There would be sale of books in very large quantities. Some of the stall holders would probably sell more books at the Book Fair than they would manage to sell from their regular outlets which may not be located in a very popular locality.
41. We are unable to accept that there would be no sale of beverage and food stuffs. It is the pleaded case of the parties that the Fair is expected to be visited by at least 25 lac visitors. This would provide a tremendous attraction to the small scale vendors, to come and sell the food stuffs just outside the venue of the Book Fair. The area surrounding Park Circus Maidan is already over congested. It is surrounded by extremely busy roads carrying very heavy traffic. Any further addition to the traffic problem would lead to totally chaotic conditions. All these issues were highlighted by the petitioners in the representations submitted to the respondent authorities. Even if the provisions of Section 353 are not strictly applicable, the respondents were duty-bound to take into consideration the relevant factors especially with regard to increase in the ambient air quality standards in respect of noise. The respondents have totally disregarded the needs of the hospitals and nursing homes which are located in the vicinity. The needs of the patients have been totally disregarded in case of emergencies. We are of the considered opinion that the petitioners have rightly highlighted that accommodating 25 lac human beings in the Maidan over a period of 12 days would cause irreparable damage to the grass and the top soil of the Maidan. Under Section 353 the Municipal Commissioner certainly had the power to close the Maidan if it is in public interest to close the Park for holding a Book Fair. In our opinion, the term 'public interest' under Section 353 is to be understood in relation to the purpose of carrying out the provisions of the Act. The KMC has not placed any material on record to show as to which purpose of the Act is sought to be served by holding of a Book Fair. In fact, a permission granted to the Guild for holding the Book Fair would clearly tend to show that the Municipal Corporation has been persuaded to grant permission for considerations other than the public interest. A perusal of the letter dated 26th of December, 2007 would show that permission has been granted to the Guild for holding a Book Fair subject to obtaining clearances from different statutory and non-statutory regulatory authorities. The holding of the Book Fair has been described as a public/private partnership mode. The Guild has agreed to expressly acknowledge the support and help extended by the KMC and publicize everywhere that the Fair would be organized 'with the support of the Corporation'. Although the Guild is a non-profit making body the KMC would still collect the licence fee from individual stall holders/participants in the Fair. The Guild has also donated Rs. 25 thousand to the heritage funds of KMC. The Mayor himself is a member of the Advisory Committee of the Fair. The Municipal Commissioner as well as MMIC (Parks and Squires) MMIC (SWM) are ex officio members of the Kolkata Book Fair Committee of 2008. Thus, there is already an accepted principle of partnership mode. It is clearly stated in the letter that 'the terms and conditions agreed between us may be seen in this general perspective.'
42. In our opinion, the aforesaid terms and conditions of the permission make it abundantly clear that the permission has been granted for considerations other than public interest. This apart, since the Mayor as well as the other members of the Municipal Corporation are on the Kolkata Book Fair Committee the matter with regard to the grant of permission ought to have been referred to the Mayor in Council. The institution of Mayor in Council consists of the Mayor, the Deputy Mayor and not more than 10 other elected members of the Corporation. The Mayor in Council is collectively responsible to the Corporation. This whole procedure has been bypassed on the ground that there is no closure and Section 353 would not be applicable. We are of the considered opinion that the permission granted by the Corporation is arbitrary. It is contrary to the various provisions of the environmental legislation as well as being violative of Article 21, of the Constitution of India. Similar view has already been expressed by a Division Bench of this Court in the case of Sabyasachi Roychowdhury (supra). In that case it has been observed that in the year 2001 the average RPM recorded during the Book Fair was 611 ug/m3. It was also noticed by the Division Bench that West Bengal Pollution Control Board had not measured the RPM level in any subsequent Book Fair. The Division Bench also noticed that if the RPM level remains within the range of 151 to 350 the atmosphere should be deemed to be unhealthy. The effect of such unhealthy atmosphere make cause mild aggravation of symptoms to susceptible persons with irritation. The Division Bench thereafter observed as follows:
32. After going through the aforesaid report we are of the view that when the Parliament has in its wisdom enacted the laws thereby limiting the prescribed RPM level at 100 microgram per cubic meter (by yearly standard) at any cost, such limit should be maintained and it is the duty of the State Pollution Control Board authorities to earnestly endeavour to reduce the same at any rate at least to that level. The law was enacted in the year 1986 and in the meantime 21 years have passed. Even after the lapse of 21 years, if the Pollution Control Board Authorities decide to ignore the said standard prescribed by the Parliament, we are left with no other alternative but to describe the action of the Pollution Control Board as a reckless one causing health hazard to the public in general. We have indicated that even in the RPM chart given in the year 2002 during the book fair, at no point of time it was below 100 in microgram per cubic metre and the maximum level recorded was 372.4 ug/m3 which is about four times the maximum level sanctioned by law. In spite of such fact, the State Pollution Control Board for the reasons best known to them decided not measure the level of RPM in any future Book Fair although in the year 2001 the level had risen to more than 1300 at one point of time.
33. We have already pointed out that on 19th January, 2007 when we had entertained the present writ-application, it was pointed out by the learned Counsel for the parties that there was no sanction from other local authorities and such order was recorded at about 3.00 p.m. of that day. But it appears from the affidavit-in-opposition that on the selfsame day, all the authorities gave the so-called clearance. In out opinion, such conduct on the part of the respondent authorities speaks for itself that they had not done their duties before giving such certificate when the law requires detailed investigation of various factors prescribed in the Statute and the RPM level is only on of the statutory indigents. We are mostly concerned by the attitude of the State Pollution Control Board in the matter of gaining sanction for holding fair although it is quite conscious of the position that the existing pollution level is far above of the limit prescribed under the statute and in case any fair is held, where more than lakhs of people will congregate, the presence of RPM level will definitely increase. We have already pointed out that we fail to find any reason for not measure the RPM level in the fair-ground during the earlier four years and if those were produced, we could easily assess whether the State Pollution Control Board has really done any duty whatsoever entrusted upon it for reducing RPM level in the air for the sake of health of the citizen of this State.
34. We are also not impressed by the submission of the learned Counsel for the respondents that this fair should be taken to be an exception. The laws made by the Parliament are made not for defiance but for compliance and in those Environmental Protection Statutes there is no special power. Although Mr. Bhattacharya repeatedly submitted before us, that his client being the specialist on the subject, the Court should not interfere with its decision and can pass necessary order for supervising the various restrictions imposed by his client, we are not at all impressed by such submission because of the peculiar way in which the Board has proceeded in this matter. As pointed out, by the Supreme Court in the case of Sugar Cane G and S Sugar Share holders v. T.N. Pollution Control Board reported in : AIR1998SC2614 that grant of consent by Pollution Control Board on condition to be satisfied later was not in accordance with the spirit of the Environmental Protection laws.
43. In Our opinion, the aforesaid reasons would be fully applicable in the facts and circumstances of this case. Mr. Mukherjee has also submitted that it would be discriminatory if the Book Fair is not permitted to be held at the Park Circus Maidan. This Park is used throughout the year for holding different events. Undoubtedly, it is true that the Park Circus Maidan is used to hold the religious festivals. In our opinion, holding of the Book Fair cannot be put on the same pedestal as holding of religious festivals. The festivals of Durga Puja, Kali Puja and the Id Melas are of incomparable status within the State of West Bengal. All these festivals are held for the benefit of the local population. On the other hand, the Kolkata Book Fair would be held for the benefit of the general public, not only limited to Kolkata. According to the pleaded case of the Guild it would be a festival of international status. Therefore, there would be no impediment for the Guild to hold the Book Fair at any other suitable place where it would not add to the urban miseries of the local population. We are not at all impressed by the justification given by Mr. Mukherjee about the unsuitability of the Salt Lake City area for holding of a Book Fair. No material has been placed on the record to indicate that the Salt Lake area is any less safe than any other area of Kolkata city so far as the law and order situation is concerned. For the reasons recorded above we find that the writ petitions have highlighted some very relevant issues. We are of the considered opinion that holding of the Fair at Park Circus Maidan would be violative of Article 21 of the Constitution of India. The permission granted, in our opinion, is violative of Article 14 of the Constitution of India as relevant material has not been taken into consideration. We are of the opinion that the permission granted to the Guild is violative of provisions of the Water (Prevention and Control of Pollution) Act, 1974, The Air (Prevention and Control of Pollution) Act, 1981, Environment Protection Act, 1986, Environment (Protection Rules), 1986 and Noise Pollution (Regulation and Control) Rules, 2000.
44. We, therefore, allow the writ petitions and issue a writ in the nature of certiorari and quash the permission granted by the Kolkata Municipal Council, (annexure R-8 to the affidavit filed by the respondent No. 13) dated 26th of December, 2007. We also direct the issuance of a writ in the nature of mandamus directing the respondent authorities, servants and agents to act in accordance with the law and to forthwith recall, rescind and/or revoke all permissions, directions, orders, notifications etc. relating to the holding of Book Fair at Park Circus Maidan commencing from 29th of January, 2008 till 10th of February, 2008. We also direct the respondent No. 13 to restore the possession of the Park Circus Maidan for use and occupation of the public and bring it back to its original position in which the same was at their own cost. Let the possession be handed back forthwith.
45. There shall be no order as to costs. Urgent xerox certifjed copy of this judgment and order, if applied for, be given to the parties on usual undertakings.
Pinaki Chandra Ghose, J.
46. I agree.