These two contempt applications are disposed of by this common judgement. They arise out of a judgment and order dated 11th July, 2016 made in the writ applications [WP. No. 53 of 2014 (Ansar Ahmed & Ors. Vs. The Kolkata Municipal Corporation & Ors. and W.P. No.142 of 2014 (Sk. Jahir & Ors. Vs. The Kolkata Municipal Corporation & Ors.)]. In that writ, the writ petitioners had challenged the declaration of premises No.20B, Karl Marx Sarani, Kolkata - 700023 as a heritage building by the Kolkata Municipal Corporation. They were the present owners of the building, having acquired it on 4th January, 1990. The reason why the said premises was declared as a heritage building was that according to the Corporation, Michael Madhusudan Dutta was born there. Disposing of the writ application this Court passed the following order:
"I think, in the circumstances, I should refer the declaration of the subject building as Heritage to the Commission, to review and reassess the view taken by the said Expert Committee and the Heritage Conservation Committee endorsed by the Corporation. This review or reconsideration should be done following the guidelines given in this judgement and upon notice to the petitioners upon hearing them or upon giving them an opportunity of hearing and by a reasoned decision within three months of communication of this order. I order, accordingly. If the decision of the Heritage Commission is that the recommendation of the Heritage Conservation Committee was correct, then that is the end of the matter. If the decision is that it was incorrect, then the decision of the Commission will be send to the Mayor-in-Council under Section 425B of the Kolkata Municipal Corporation Act, 1980 and, thereafter, to the Corporation for final approval of the same. The Corporation should be able to take the decision, if so required within a further period of eight weeks from the date of communication of the decision of the Heritage Commission. The Corporation will not ordinarily interfere with the decision of the Commission. If it does, it has to be supported by detailed reasons. These two writ applications are, accordingly, disposed of."
It appears from the records that the West Bengal Heritage Commission acted promptly on the basis of the said judgment and order. Notices were issued by them to the parties to appear before it on 4th November, 2016. A joint inspection was held on 8th December, 2016.
The letter of the Heritage Commission to the Corporation dated 5th September, 2017 said that no documentary proof was available to substantiate the assertion that Michael Madhusudan Dutta spent aconsiderable part of his pre-adulthood life in the building. In the absence of any documentary proof notifications/advertisements were published in newspapers on 28th July, 2016 seeking information in this regard from any person. The Commission reported that no such information was available. On 5th September, 2017 the Commission disposed of the reference before it by citing absence of evidence. In other words, the Commission was of the opinion that there was no evidence to suggest that the poet spent some part of his life in that building.
Since the decision of the Heritage Conservation Committee was at variance with that of the Corporation, it was under the judgment and order dated 11th July, 2016, to be sent to the Mayor-in-Council under Section 425B of the Kolkata Municipal Corporation Act, 1980 and thereafter to the Corporation for final approval of the same. The Corporation was granted eight weeks' time to signify its decision. It appears that the decision of the Heritage Commission was communicated to the Corporation on 5th September, 2017.
In or about the end of June to the first week of July, 2018 the present applications alleging contempt (CC 37 of 2018 & 39 of 2018) were taken out by the writ petitioners alleging deliberate inaction on their part to take a decision to delete the subject premises from the gradation list of heritage buildings and that they were just sitting tight over the matter. The alleged contemnors filed a compliance report through the DG (PMU), Subrata Kumar Seal which is undated and inter alia to the following effect: "It is submitted that having due regard to the solemn direction of the Hon'ble Justice I. P. Mukerji as contained in the order dated 11.07.2016 the Heritage Conservation Committee held a meeting on 11.08.2018 when the historian member of the HCC placed his report in respect of the building at 20B, Karl Marx Sarani. In the said report the historian made a reference of a memoir written by Sibnath Shastri wherein it is mentioned that Madhusudan Dutta resided in this house for a substantial period of his student life and had his school and college education from this house. The WIKEPIDIA and other biographies also confirm the authenticity of above report. Moreover, the area is known as "KABITIRTHA" named after the three great poet of Bengal of this locality i.e. Madhusudan Dutta, Ranglal and Hem Chandra Banerjee and so, demolishing the building related to Madhusudan Dutta will not be a dignified step.
The Heritage Conservation Committee could not agree with the decision of the Heritage Commission upon accepting the report of the historian committee and was of the opinion that the Grade of the building as Grade IIB was to be retained.
The resolution of the Heritage Conservation Committee 11.08.2018 was thereafter placed before the Mayor-in-Council in its meeting held on 31.08.2018 under Item No. MOA-67.9 and the Mayor-in-Council duly approved the resolution of the Heritage Conservation Committee dated 11.08.2018 under Sections 425B and 425D of the KMC Act, 1980. It may be stated that the note of the historian member on authentication of Michal Madhusudan Dutta's residence at 20B, Karl Marx Sarani with supporting information as contained therein is a part of the resolution of the Heritage Conservation Committee dated 11.08.2018 because of acceptance of the same for disagreeing with the decision of the West Bengal Heritage Commission.
It is submitted that the direction as contained in the order dated 11.07.2016 has been acted upon by taking the decision with supporting reasons as above and the Hon'ble Court may be pleased to accept the same. A copy of the Hon'ble Court dated 24.08.2018, a copy of the resolution of the HCC dated 11.08.2018 along with the note of the Historian Member and a copy of the resolution of the Mayor-in-Council dated 31.08.2018 are enclosed hereto for consideration and appreciation.
Submitted for consideration."
It appears from this report that only after the contempt proceedings were initiated, the Corporation proceeded to consider the decision of the West Bengal Heritage Commission according to the order of this Court dated 11th July, 2016. It is amazing to see the evidence that the historian member of the Heritage Conservation Committee of the Corporation relied upon and which was apparently accepted by it;
(i) memoir written by Sibnath Shastri
(ii) wikipidea and other biographies;
(iii) the subject area being known as KABITIRTHA.
First of all, Sibnath Shastri was born in 1847 and died in 1919. He was 23 years younger than the poet, was only twenty six years old when the poet died and most probably wrote several decades after the poet's death. So, he could not have had any firsthand knowledge of his residence in his early days. What Shastri wrote was his opinion and of very little evidentiary value. What "other biographies were relied upon" are not even mentioned. WIKEPIDIA is a website which contains information. What was the source of this information, what was the content of the WIKEPIDIA posting have not been disclosed.
Being thoroughly dissatisfied, this Court called for a further compliance report. The second compliance report says that the recommendation of the Mayor-in-Council dated 31st August, 2018 was placed as Item No. 13 under Agenda No.43 before the Corporation in its meeting held on 4th October, 2018. The recommendation of the Heritage Conservation Committee dated 11th August, 2018 was approved. The recommendation was:
".......Hence, this Committee would like to interfere with the decision of the State Heritage Commission of demolishing the building by accepting the report of the Historian member of the Committee and opined to retain the Grade of the building as "Grade-IIB as it was."
At this point, I would like to emphasize a part of the order dated 11th July, 2016 reproduced above: "The Corporation will not ordinarily interfere with the decision of the Commission. If it does, it is to be supported by detailed reasons."
The alleged contemnors were bound to follow this order strictly. They had no scope of going the way they desired. Even, if the decision of the State Heritage Commission was unacceptable to the Corporation, ordinarily they had to accept that decision. That is why it was provided in the said order that they would not "ordinarily interfere with the decision of the Commission."
There was non-compliance of the said order of this Court to the extent that there was refusal on the part of the respondent Corporation to accept the decision of the Heritage Commission without the support of intelligible reasons.
Therefore, it is to be taken that they had no reasons to give to depart from the decision of the Commission.
In ordinary course this lack of any grounds to depart from the opinion of the Heritage Commission would have provided sufficient grounds to reverse the declaration that the subject building was heritage. Regrettably the Corporation ought to have taken this decision but has not taken it. Certainly there is non-compliance with the said order of this Court dated 11th July, 2016.
Could it be said that there was willful disobedience of the said order? They have tried to comply with the statutory procedure for declaration of a building as heritage by circulating the decision of the Heritage Commission amongst the Mayor-in-Council and the Corporation. But the Corporation could not advance the required r
Please Login To View The Full Judgment!
easons, to depart from it. The reasons sought to be advanced by the historian member only strengthens the case of the petitioner and does not strengthen case of the Corporation. Nevertheless, it would be difficult to hold that this disobedience was willful and that the alleged contemnors are in contempt of the said order of this Court and that they should be punished for it. This Court in the exercise of this jurisdiction does not have the power to declare that since the Corporation did not have any grounds to contradict the decision of the Heritage Commission, it could be assumed that they have accepted it and that on that basis they should reclassify the building as non-heritage. Perhaps on the basis of these findings the petitioners will be able to seek redress in a proper Court having the jurisdiction to pass the necessary order. With those observations, these two identical contempt applications i.e. CC 37 of 2018 and CC 39 of 2018 are disposed of, without issuance of any Rule. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.