Subhas Datta vs Visva Bharati University And Ors

This M.A. has been preferred by the newly added Respondent No. 9 in OA No. 16/2016/EZ, on their being impleaded as an intervener in MA 1256/2016/EZ filed for the purpose.

In the present MA, the respondent No. 9/intervener has inter alia prayed for recalling and/or modification of the orders dated 14.10.2016 and 15.11.2016 passed in OA 16/2016/EZ. It is stated that if the aforesaid orders are not recalled or modified, the applicant shall be deprived of their opportunity to put up stalls during the Santiniketan Poush Mela in the Visva Bharati University thereby adversely affecting their business interest. It is alleged that the impugned orders were obtained by the original applicant by highlighting only a few aspects of environmental pollution caused during the Poush Mela due to various factors and, instead of waiting for a decision of the Vice-Chancellor of the University on the representation submitted by him expressing his grievances, he has hastened to file the OA seeking untenable reliefs. It is highlighted in the application that the Poush Mela commenced in the year 1888 corresponding to 1303 Bengali Sal (BS) as per the Deed of Trust created by late Maharshi Debendranath Tagore, father of late Rabindra Nath Tagore, founder of the Visva Bharati University. The beginning of the Poush Mela, as per the applicant, corresponds to the 7th day of the month of Poush (BS) which falls on the 23rd December this year. It is further alleged that restricting the Poush Mela to three days and the direction prohibiting bursting of fire crackers by the impugned orders, are contrary to the spirit and tradition of the Poush Mela. The applicant contends that such directions are in excess of the jurisdiction of this Tribunal which, in any case, has to be exercised in the spirit of the provision contained in Sec 20 of the NGT Act, 2010. It is urged that apart from the local traders, people from different regions of the country like Jammu & Kashmir, Madhya Pradesh, Rajasthan, Varanasi, etc.. converge in the Mela for sale of their wares. The impugned orders, as per the applicant, have adversely affected the commercial interest of the stall owners to earn extra buck during the Mela and, therefore, their rights under Articles 21 and 19(1) (g) of the Constitution of India have been infringed. It is asserted that the jurisdiction to impose restrictions or conditions on the duration of the Poush Mela at Santiniketan vests in the Santiniketan Trust which has been usurped by the Tribunal when it passed the impugned orders inter alia restricting the Mela for three days.

In view of the fact that affidavits had been filed by the various parties including the Visva Bharati University, Santiniketan Trust and the Santiniketan Sriniketan Development Authority, i.e. the respondents No. 1, 6 and 8 respectively, whereby they have substantially dealt with all the aspects raised in this MA, it was listed on 13.12.2016 for hearing.

Mr. Birendra Kr. Singh, Ld. Advocate for the applicant in the MA, re-emphasising the various contentions raised in the application, submitted that the established tradition and the deed of trust executed by late Maharshi Devendranath Tagore, did not prescribe any period for the Mela and, therefore, the Tribunal restricting it for three days was in conflict with such tradition. Such curtailment, as per Mr. Singh, was in violation of the rights of the applicant and other traders hailing from other states under Articles 21 and 19 (1) (g) of the Constitution of India. That the impugned orders were beyond the scope of the subject matter of the OA which is limited to the question regarding degradation of environment caused by pollution generated during the Poush Mela in the Visva Bharati University. It is asserted that even the allegation of pollution being caused during the Poush Mela was unfounded as none had ever raised any such objection. Prohibition on bursting of fire crackers amounted to interference in the tradition followed from time immemorial during the Poush Mela as it was an integral part of the fair. The Ld. Advocate for the applicant would further assert that the members of the applicant-Samity in the MA/newly added Respondent No. 9, could put up stalls at the fair on payment of requisite fees and on the basis of licences and permits granted for the purpose. Various documents were referred to in support of such contentions.

Relying upon the decision of the Hon'ble Supreme Court in Vellore Citizens Welfare Forum -vs- Union of India and Others : AIR 1996 SC 2715, he would urge that the Tribunal should exercise its powers within the confines of Sec. 20 of the NGT Act, 2010 which emanates from Article 21 of the Constitution of India. Reference was also made to AIR 1999 (Patna) 1.

It was further contended that the matter pertaining to bursting of fire crackers was beyond the scope of the pleadings and that the impugned order prohibiting it was obtained merely on the oral submissions of the applicant in the OA. It was also argued that the allegation of pollution arising during the Poush Mela was not substantiated by any material evidence.

On the other hand, the respondent No. 1, Visva Bharati University and the respondent No. 6, the Santiniketan Trust while admitting that the Poush Mela was an annual affair held in the month of Poush and, that the traditions was initially established by late Maharshi Devendranath Tagore in the year 1888, it was stated that the Trust was created after Maharshi's purchase of 20 bighas of barren land from the Zamindar of Raipur with the intention to establish his spiritual retreat. A house was constructed by him which named as Santiniketan and in course of time the entire area came to be known by that name. The Trust was settled for establishment of a spiritual centre for spiritual personalities of different religions to discuss and meditate. After obtaining permission from the Visva Bharati University, the Santiniketan Trust organises the Poush Mela for 3 days beginning from the 7th and ending on the 9th day of the month of Poush as per Bengali Sal (BS). The Mela is held in a vacant space within the University complex in collaboration with the district administration, police, fire brigade for effective management of the Mela and for maintaining law and order.

In the affidavit filed on 14.9.2016, the respondent No. 1 has reiterated that it was agreeable to permit the Santiniketan Trust to hold Poush Mela from 7th to 9th Poush i.e. for three days and, that such Mela should be guided by the Trust Deed executed by late Maharshi Devendra Nath Tagore in its letter and spirit. It was stated that on the 4th day i.e. 10th Poush the ground of Visva Bharati University used for the Mela by the Santiniketan Trust should be vacated completely. It is asserted that after the 4th day the local administration, Bolpur Municipality and Santiniktan Sriniketan Development Authority (SSDA) and the District administration will take steps in consultation with the Santiniketan Trust for disposal of garbage and for taking anti-pollution measures in the University campus.

It was further stated that during the Poush Utsab (Poush Mela), permission is accorded for cultural and traditional functions along with exhibition of traditional rural handicrafts (woodwork/textile/terracotta/earthen pots etc) in a controlled manner keeping adequate road/circulation space ensuring proper fire protection, maintenance of hygiene and disposal of wastes and most importantly adhering to the pollution norms of the West Bengal Pollution Control Board. Apart from these, a few food stalls would be allowed for the benefit of the visitors. In so far as stalls which are completely commercial dealing with garment stalls, merry-go-round, fairy wheels, restaurants, company stalls, stalls for stationery/consumer goods are concerned, they may be organised outside the University campus and Asrama area under the supervision of the Municipality/District administration and Government.

During the arguments, Mrs. Duba Banerjee, Ld. Advocate for the Santiniketan Trust, the Respondent No. 6, submitted on instructions that the Santiniketan Trust would abide by any condition that would be prescribed for the Mela.

Mr. Subhas Datta, applicant, strongly urged that the original deed of trust executed by Maharshi Devendranath Tagore specifically laid down the philosophy and the purpose for which the trust had been created and the manner in which the Poush Mela should be held. Referring to and relying upon several documents, he would urge that the Poush Mela was traditionally to be held for 3 days and was to be organised in a regulated manner in the spirit of the Deed of Trust. Admitting that display of fireworks was a part of the Mela, it was submitted that bursting of fire crackers certainly never was. It was submitted that it was hijacking of the event after the 3rd day by strangers since the recent past that has been the root cause of severe environmental pollution including indiscriminate disposal of solid and municipal waste. Use of DG sets, black generators, burning of fossil fuel, unregulated and indiscriminate playing of DJ sets and the indiscriminate use of thermocol and plastic materials by such elements during the Mela cause severe air and sound pollution. Inadequate provision of public toilets was also highlighted as another cause of the pollution.

We have heard Learned Counsel for the parties and have perused the records and documents filed by them.

We have dealt with the various averments contained in the pleadings of the parties and their oral submissions in respect of the MA at some length with the object to set out the premises under which the prayers have been sought for by the Applicant-Samity for alteration/modification of the impugned orders.

However, before we embark upon dealing with the MA, it would be of relevance to set out in brief, the facts and circumstances under which the original application was preferred. The foundational cause for brining the OA was the immense pollution caused during the Poush Mela held annually in the Visva Bharati University. It has been stated in the OA that lakhs of foot fall that descended on the University during the Mela held in the year 2015 caused tremendous air pollution. The SPM level had shot up ten times above the safe limit. Hundreds of vendors were seen doing business sitting on the ground exposing themselves and their wares to pollution caused by dust. Children and the elderly faced the same situation as the water sprinkling system was found to be inadequate. Although it is claimed that the University area and its vicinity is a plastic free zone, there was no check and control in the use of plastic/thermocol products during the event. Solid and plastic wastes were found dumped and strewn all over. Solid waste, its management and disposal were found to be in complete neglect. Hundreds of open ovens were being used burning fossil fuel causing severe environmental degradation and making the area vulnerable to fire accidents. Black generators were being used openly in violation of the prohibition under notification issued by the Environment department, Govt. of West Bengal. Heavy noise pollution was being caused by the use of individual public address system by the stall owners for making announcements of their wares resulting in a cacophony of noise. Disposal of waste, both plastic and solid, after the event concluded was not carried out properly but were found left scattered for several days. In many of the sites, wastes had been found burnt polluting the atmosphere in the area. The extant Municipal Solid Waste (Management and Handling) Rules, 2000 and the Plastic Manufacture, Sale and Usages Rules 1999 were brazenly flouted. The guidelines issued by the Environment Department for holding fairs were not followed.

In the aforesaid premises, directions had been sought for against the respondents inter alia not to hold and/or allow Poush Mela, 2016 without complying with the guidelines framed by the Environment Department and to direct the respondents to undertake all necessary measures for arresting air/sound pollution during the Mela as well as for direction not to use any items made of plastic which were not as per the specification prescribed in that regard.

Since the primary object of the OA was directed at Management of municipal solid and plastic wastes generated in the Visva Bharati University, we were of the view that the Bolpur Municipality should take initiative to deal with the menace in collaboration with the University authorities. However, when it was stated that the Visva Bharati University did not fall within jurisdiction of the Bolpur Municipality, the Respondent No. 7, direction was issued upon the State respondents to consider as to whether that could be done in order to enable Municipality to undertake collection and disposal of municipal waste from the university and also to enforce other municipal regulations for ensuring clean environment in the University.

The response of the State Respondents to our suggestion was prompt and, it is a matter of appreciation that the process of bringing the university within the municipal jurisdiction was initiated and is said to be in progress.

We were also quite surprised to note from the affidavit filed on behalf of the WBPCB, that neither the Visva Bharati University nor any other authority had obtained authorisation from the Board for setting up waste treatment process and disposal facility in compliance with the extant Municipal Solid Waste (Management & Handling) Rules, 2000 and the Plastic Wastes (Management & Handling) rules, 2011. It was specifically averred that disposal of plastic waste was the responsibility of the local municipal authority as per provisions of Rule 4(b), 6(c) and 6(d) of the Plastic waste (Management & Handling) Rules, 2011. However, we have already observed that it is the case of the Bolpur Municipality that the Visva Bharati University does not fall within their jurisdiction.

In the backdrop of the above facts and circumstances, vide order dated 10.5.2016 we had directed the District Magistrate, Birbhum, to take necessary steps in conjunction with the Bolpur Municipality to ensure effective implementation of the rules within the university premises in consultation with the University authorities and to file a status report.

The District Magistrate, Birbhum, in his report stated that a meeting was conducted by him on 1.6.2016 and 28. 6.2016 in the presence of the Registrar (Acting), Visva Bharati University, Respondent No.1 and other University officials, the Chairman and Executive Officer of the Bolpur Municipality, Respondent No.7, the Executive officer, SSDA, the respondent No. 8 and the SDO, Bolpur. In The meeting, decisions were taken on the holding of the Poush Mela and on the disposal of waste, bio-medical waste, use of loud speakers, etc.

Without going further into the details, it was noted by us that there was convergence of views amongst the parties and no dispute existed on the following :-

i) There was no effective mechanism for management of solid and plastic waste in the University.

ii) That the Poush Mela was traditionally being held for three days i.e. on 7th, 8th and 9th of the month of Poush as per BS.

iii) The University, respondent No. 1, grants permission to the Santiniketan Trust, Respondent No. 6, to organise the Mela.

iv) The Mela is required to be held and guided by the terms of the Trust Deed executed on March 20,1888 by Maharshi Devendranath Tagore in its letter and spirit.

v) Although the Mela, as per the tradition, is required to be wound up after the third day, in reality it continues since the recent past for 10 to 12 days coerced by strangers which contributes immensely to accumulation of plastic and solid waste making it impossible for the teachers, staff and students to perform their normal educational activities in the class rooms, laboratories, offices, etc.

vi) The Santiniketan Trust after being authorised to organise the Mela, obtains permission from the police authorities, fire brigade, district administration, BL & LRO, Bolpur Municipality to run the Mela for three days, but after that which extends to 10 to 12 days it is held without electricity, with no fire or police protection and without any volunteers to oversee discipline.

vii) In the absence of electricity, stall owners runs black generators and use loudspeakers till late in the night.

The above, amongst others, are the undeniable facts stated categorically also by the respondent No. 1, Visva Bharati University in their affidavit-in-opposition filed on 8. 7.2016.

During the course of arguments, it had been placed by all, particularly, the applicant, the Visva Bharati University, respondent No. 1 and the Santiniketan Trust, Respondent No. 6, that after the official three days, unscrupulous elements take over the event by force which continues without any control and regulations sometimes beyond 12 days in the manner stated above.

It is in these circumstances vide order dated 9.8.2016, we had observed as under :

" In these circumstances, we are of the considered view that the University should seriously consider as to whether they would permit running of the Poush Mela within its campus in the manner in which it is being run today or would it confine itself to the activities for which it was originally envisaged."

We may also refer to the impugned order dated 4. 10.2016, relevant portions of which are reproduced below:

" On 9th August, 2016, we had taken note of the affidavit filed on behalf of the Respondent No. 8, the District Magistrate, Birbhum district dated 5.7.2016 and the decisions taken in the meeting held on 1.6.2016 and 28.6.2016 with regard to the conduct of "Poush Mela" in the Visva Bharati University.

We had expressed in that order that the responsibility for removal of garbage collected during the Mela being charged upon the University and the Shantiniketan Trust was not to our satisfaction and had accordingly directed that Bolepur Municipality should also be involved in taking responsibility of collection and disposal of garbage that also contained Plastic and Solid Municipal Wastes on payment of requisite fees as per rules. Accordingly, we had directed the State Govt. to consider as to whether the University could be brought under the Municipal Jurisdiction and to that effect an affidavit was called for. This part of the order had been felt necessary for the long term waste management of the University, its collection and disposal."

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" The other was the short term aspect connected with the "Poush Mela" with which we are seriously concerned. For the sake of brevity we need not repeat what we have already discussed on this except to observe that the "Poush Mela" ought to be held as per the object for which the Mela had been introduced by the Shantinetan Trust following the noble tradition which Visva Bharati University exemplifies. We make it very clear that the Mela should be held only for three days as envisaged originally in the Deed of Trust.

This would mean that the Mela shall be run by the Mela Committee and shall be restricted only to the sale and exhibition of arts, crafts, traditional rural handicrafts, literature, etc., and hold intellectual, academic and literary discourses. In the process, it may be permissible to play classical and traditional music, songs and ballads. It certainly would not be permissible for the Mela Committee to dilute the object of the Mela as it has been done in the recent past. The Mela should be wound up without fail on the 4th day. Rest of the aspects shall be dealt with in accordance with the decisions taken in the joint meeting held under the chairmanship of the district Magistrate, Birbhum on 1st and 28th June, 2016.

The District Magistrate, Birbhum, shall act as observer for conduct of the Mela for all the 3 days and shall ensure that no other element enter the campus after the third day. To ensure this, he shall take assistance from the Superintendent of Police, Birbhum district for deployment of adequate number of police force to ensure smooth winding up of the Mela on the fourth day. The Superintendent of Police, Birbhum shall on his part, render all assistance to the District Magistrate."

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"In so far as outsiders carrying on with the Mela after the 3rd day is concerned, we would direct that the activity of such persons shall be permitted only outside the University area under the strict supervision and control of the Superintendent of Police and District Magistrate, Birbhum and the overall management and disposal of garbage generated thereby under the Bolepur Municipality. Under no circumstances shall they be permitted to undertake any activity within the University during the "Pous Mela".

That apart, vide our order dt. 15.11.2016, which is the other order impugned in the MA, reiterating our order dated 4.10.2016, we had issued further directions prohibiting bursting of fire crackers at the beginning of Poush Mela which we reproduce below: -

" The third aspect which has been brought to our notice is the bursting of crackers at the beginning of the Poush Mela by the organisers. The applicant submits that this aggravates the adverse pollution condition already prevailing in the University to alarming levels. He submits that an appropriate order would be necessary to restrict such activity.

Upon hearing the Ld. counsel for the parties, it is revealed that bursting of crackers is not an essential practice connected with Poush Mela. It obviously appears to be a recently added embellishment which is avoidable considering the immense pollution potential of the fire crackers.

In views of this, we also direct that that there shall be no bursting of fire crackers at the beginning, during or at the end of the Poush Mela festival."

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"We direct the Visva Bharati University, the Respondent No. 1, Shantiniketan Trust, the Respondent No. 6 and the Bolepur Municipality, the Respondent No. 7, to work in coordination with the District Magistrate and Superintendent of Police, Birbhum district, to ensure compliance of our directions and thereby achieve the object of having issued such directions. "

Thus from the above facts and circumstances, it is indisputable that our orders including those impugned in this MA emanated from the issues pertaining to indiscriminate dumping and disposal of plastic and solid waste, generation of air and noise pollution and improper collection and disposal of the waste materials and the lack of regulation on the use of plastic materials during the Poush Mela. The issue pertaining to Poush Mela was the prime factor that had spurred the applicant to file the OA for preventing further degradation of the environment of the entire area including the University.

In the backdrop of the above facts and circumstances and the reliefs sought for in this MA, it was felt essential for us to examine the genesis of the Poush Mela and its objects. The parties were accordingly heard at length on this and all i.e., Mr. Subhas Datta, the applicant in the OA, Mr. Birendra Kr. Singh, Ld. Advocate for the applicant in this MA, the Visva Bharati University, respondent No.1 and the Santiniketan Trust, the respondent No. 6, referred to and relied upon the Deed of Trust executed by Mahasrshi Devendranath Tagore, founder of the Santiniketan, in support of their respective contentions. We may refer to the relevant portion of the Deed of Trust translated in English pertaining to the Poush Mela by Mr. Subhas Datta and Mr. Bikram Singh, Learned Counsel for the applicants in the MA which are found to be common. To ensure fairness, we may reproduce below the translation filed by Mr. Singh :

"No puja or home aryati relating to any daity or bird, person or statue or photo or any symbol sans only prayer for formless Brahma will be allowed at Santiniketan.

No killing of animals on religious function or bringing meat or non-vegetarian meals pr drinking of wine or alcohol to be allowed in that place. No flaying or denigration or criticism of any deity of any individual in any manner to be permitted at that place. Only a such advice as to creator universe towards utility of meditation of end be conducive to by which principle, Dharma and Universal brotherhood is strengthened. No tainted entertainment be permitted. For growth of religious protectively every year trustee will arrange for a Mela. In that Mela, saints, recluse irrespective of religion will congregate at the Mela and hold deliberation over religious matters. In that Mela there will be no puja and prayer of any deity and there will be no obscene entertainments. Sans wine and meat, there will be sale and purchase of goods, and articles. In the event of earning or profit from Mela is derived the same to be spent for the development of Mela or the Ashrama" (This English translation from Bengali Trust deed of Debendranath Thakur is similar to Translation in English from Hindi) published by Visva-Bharati Patrika as January-March issue 1968.

(2) Part English translation from the chapter "Pous Mela" authorised by Late Saiyed Mustak Ali in Bengali, a direct student of Rabindranath Tagore in 1929 in his famous book under caption "Gurudev and Santiniketan" published by Mitra & Ghosh Publishers Pvt. Limited at 10, Shyama Charan Dey Street, Kolkata-700012 highlighting some aspects of burning of fire crackers at Pous Mela for the first time and the tradition of burning of fire crackers at Pous Mela has been continuing uninterruptedly till now.

"On 7th Pous 1298 B.S. (about 123 years) age the Upasana Mandir or prayer hall of Santiniketan was inaugurated by Dwijendranath Thakur after recfiting the foundation related hyms. At the third annual festival poor were fed, at the fourth annual festival for the first time there was burning of fire-crackers at Santiniketan and at the fifth annual festival or on 7th Pous 1303 B.S. Pous Mela commenced at Santiniketan for the first time."

It will appear from the translations that no period for the fair has been prescribed. However, from the specific pleadings of the respondent No. 1,Visva Bharati University and the Santiniketan Trust, respondent No. 6, who are admittedly the appropriate authorities competent to deal with the University and its activities including the poush Mela, it is quite clear that the fair is traditionally run for only three days. After that, it is wound up and that considering the magnitude of the work involved in the winding up process, the stall owners are granted some time for the purpose. In view of this, we have no hesitation to hold that the fair is held for three days and not a day more.

We may now deal with the issue pertaining to the use of fire crackers. Although in the translation submitted on behalf of the applicant, the term "fire crackers" has been used, the case of the respondent No. 6 is that traditionally it is actually "fire works" display that is held as one of the events during the fair.

We are, therefore, convinced that it is not "fire crackers" but "fire works" that do not emit sound that is permitted as per the traditions of the Mela.

For all the above reasons, we hold that the Poush Mela is traditionally held only for 3 days during which other than wine and meat, sale and purchase of other goods and articles are permitted. Secondly, as a matter of tradition, as would appear from the averments contained in MA.1270/2016/EZ filed on behalf of the respondent No. 1, Visva Bharati, "fire works" display that does not emit any sound is held on the 2nd day of the Mela. We, therefore, observe that holding of fire works display of such nature is an essential traditional practice of the Mela.

The MA filed on behalf of the Samity, appears to be misconceived in as much as by the impugned orders we have not directed that no stall should at all be permitted to be put up. The orders only address our concern with the severe environmental degradation caused by the indiscriminate and uncontrolled activities during the Mela and its impermissible prolongation beyond the traditionally fixed period illegally by those alien to the organisation in total disregard to the authority of the University which we noticed as being the cause of the environmental degradation being seriously aggravated. Decision as to whether or not stalls should be permitted to be put up at the Mela falls within the domain of the Santiniketan Trust, the Visva Bharati University and the Mela Committee which, of course, shall be exercised within the confines of the guidelines, rules and directions issued in that behalf and, also in accordance with the environmental statutes.

On another aspect also we also find the relief sought for in the MA for recall and/or modification of the impugned orders, to be grossly misconceived. This pertains to the plea of violation of the rights of the members of the Applicant Samity and others, under Articles 21 and 19(1)(g) of the Constitution of India. As noted earlier, the applicant has primarily expressed the perceived curtailment of the rights of its members to earn additional income from the Mela. Therefore, even if the contention of the applicant is accepted, it certainly would not amount to infringement of the rights of its members from continuing with their normal means of livelihood. The contention, therefore, stands rejected as being misconceived.

The decision cited at the bar by the Learned counsel for the applicant being clearly distinguishable on facts is of no assistance to them.

We, therefore, do not find reason as to why we should exercise our powers of review in this case.

Consequential to the above findings, we direct the Applicant Samity to approach the Santiniketan Trust and the Mela Committee for permission to set up stalls. The Santiniketan Trust and the Mela Committee on their part shall consider the applications and take decisions keeping in view the guidelines, rules, directions and the statutory provisions applicable in such matter.

With the above observations and directions the MA 1265/2016/EZ stands disposed off. No order as to costs.