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Purti West Enclave Pvt. Limited & Another v/s Kolkata Municipal Corporation & Others

    W.P. No. 146 of 2010

    Decided On, 16 July 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBANGSU BASAK

    For the Petitioners: Mainak Bose, R. Karnani, Sachchida Nanda Pandey, Advocates. For the Respondents: Alok Kumar Ghosh, Biswajit Mukherjee, Gopal Chandra Das, Advocates.



Judgment Text

The petitioners have challenged the classification of premises No. 22, Park Street, Kolkata- 700016 as heritage building under Grade (I) for architectural type.

Learned Advocate appearing for the petitioners has submitted that, the writ petition has to be heard in terms of the order of remand of the Division Bench dated August 30, 2017. The first petitioner had participated in a proceeding for grant of lease of the concerned premises, conducted by the official receiver. The petitioners became the highest bidder in such proceeding. The first petitioner was confirmed to be the highest bidder by an Order dated April 9, 2008. He has drawn the attention of the Court to the terms and conditions governing the proceeding for grant of the lease as well as the order confirming the grant of lease in favour of the first petitioner. He has drawn the attention of the Court to the various clauses of the deed of lease executed between the official receiver and the first petitioner. He has submitted that, the first petitioner has a right to construct in terms of the order dated April 9, 2008 and the lease deed dated October 3, 2008.

Learned Advocate for the petitioners has relied upon 2016 Volume 1 Calcutta High Court Notes (Cal) page 329 (Kamal Dey v. Archeological Survey of India, New Delhi) and has submitted that, the building concerned, cannot be considered as a heritage building. He has referred to Kamal Dey (supra) and submitted that, the Kolkata Municipal Corporation did not adhere to the provisions of Sections 425A and 425B of the Kolkata Municipal Corporation Act, 1980, in declaring the building as a heritage building. The documents referred to in Kamal Dey (supra) have been referred to and relied upon by the Corporation in the present proceeding. On the strength of such documents, it cannot be said that, the concerned premises has been declared as a heritage building in terms of the provisions of Section 425B of the Act of 1980. He has compared the documents relied upon by the Corporation authorities with those available before the Division Bench considering Kamal Dey

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(supra) and has submitted that, the same documents were there in Kamal Dey (supra). He has referred to the various paragraphs of the affidavit-in-opposition and the pleadings in the writ petition, and submitted that, the concerned premises cannot be considered as a heritage building.

Learned Advocate appearing for the Corporation has drawn the attention of the Court to the pleadings made in the writ petition. He has submitted that, there is a difference between the declaration of a building as a heritage building and the classification thereof. A building is declared to be a heritage building under Section 425B of the Act of 1980. Subsequent to a building being declared as a heritage building, the same is graded and classified under various grades in terms of Section 425C of the Act of 1980. In the present case, as the prayers stand in the writ petition, the declaration of the building as a heritage building is not under challenge. What is being challenged by the petitioners is the classification of a heritage building. Since the petitioners have not challenged the declaration of the building as a heritage building, no relief should be granted to the petitioners.

Learned Advocate appearing Corporation has drawn the attention of the Court to the Order dated July 15, 2009 passed in G.A. No. 1819 of 2009 Old Equity Suit No. 1 of 1842 (Sukumar Basak & Ors. v. The Official Receiver & Ors.) and has submitted that, the petitioners are protected, in the event the reliefs in the present writ petition are not granted. Moreover, the petitioners have a right to apply for declassification of a building as a heritage building under the provisions of the Act of 1980. The petitioners have not availed of such opportunity. Referring to the order of remand dated August 30, 2017 learned Advocate for the Corporation has submitted that, the petitioners have no locus to maintain the writ petition. He has submitted that, the official receiver was intimated as to the declaration of the heritage building by a letter dated August 30, 2001. The official receiver did not protest thereto. The petitioners do not have a better or a higher right than that of the official receiver. The first petitioner is bound by the actions taken by the official receiver. Moreover, the authorities had published public notices regarding the notification inviting objections. The official receiver did not object thereto. Referring to Kamal Dey (supra) learned Advocate for the Corporation has submitted that, Kamal Dey (supra) cannot be read to mean that, every building which was considered and declared as a heritage building by the Corporation stand declassified by virtue of such judgment. He has drawn the attention of the Court to various passages of the judgment. In a fact scenario it would be open to the Court to decide as to whether a valid declaration of the building being a heritage building was made or not. He has relied upon various documents in support of his contentions that, the subject building is a heritage building and has been so declared, in accordance with the provisions of Section 425B of the Act of 1980.

Learned Advocate for the Corporation has relied upon Judgment and Order dated July 11, 2016 passed in W.P. No. 53 of 2014 (Ansar Ahmed & Ors. v. The Kolkata Municipal Corporation & Ors.), Judgment and Order dated January 10, 2017 passed in W.P. No. 506 of 2015 (Pinaki Roy & Ors. v. State of West Bengal & Ors.) and Judgment and Order dated January 10, 2017 passed in W.P. No. 278 of 2016 (Niru Nag & Ors. v. The Kolkata Municipal Corporation & Ors.) in support of his contentions that, the petitioners are not remediless even if a building has been declared to be a heritage building. The petitioners can nonetheless apply for declassification of such building.

The present writ petition has been heard pursuant to the order of remand dated August 30, 2017. Such order requires the issue of locus of the petitioners to challenge the declaration of heritage status to be decided. Reading the order of remand dated August 30, 2017 and considering the pleadings of the parties, the following issues have arisen for consideration in the present writ petition:-

(i) Whether the first petitioner, as the transferee having an interest in an immovable property, has the locus to challenge the declaration of heritage status of a building, when the transferor, being the official receiver, did not challenge the same, despite notice?

(ii) If the answer to the first issue is in the affirmative and in favour of the petitioners then, has the building been duly declared as a heritage building under provisions of the Kolkata Municipal Corporation Act, 1980 ?

(iii) To what relief or reliefs, if any are the parties entitled to ?

The first petitioner is the lessee of premises No. 22, Park Street, Kolkata- 700016. The premises was advertised by the official receiver for grant of lease of 99 years with the option for renewal of further 99 years. The offer of the petitioner was considered by the High Court and, by an Order dated April 9, 2008, the High Court confirmed grant of lease in favour of the first petitioner. A deed of lease dated October 3, 2008 was executed between the official receiver and the first petitioner. The conditions of the advertisement inviting offers for lease allow a prospective bidder the right of construction. The first petitioner, as the lessee, has been granted the right to construct at premises concerned by deed of lease.

The premises concerned has been declared as a heritage building. The first petitioner has a right to construct at the premises concerned. The second petitioner is a Director of the first petitioner. Section 425B of the Kolkata Municipal Corporation Act, 1980 empowers the Corporation to declare any building as a heritage building. The Municipal Commissioner, Kolkata Municipal Corporation had issued advertisements in a vernacular newspaper as well as in an English newspaper on August 2, 1999 inviting objections with regard to declaration of various buildings as heritage buildings, including the subject building, from the public in general. The official receiver who was in possession of the building concerned at the material point of time was also informed by the Corporation authorities by a writing dated August 30, 2001. The official receiver did not object to such building being declared as a heritage building. As noted above, the premises was subsequently put up for the purpose of grant of lease and a lease has since been granted in favour of the first petitioner. The first petitioner, therefore, has an interest in the property. It has leasehold rights as enumerated in the deed of lease October 15, 2008. It is also bound by the conduct of the Official Receiver in relation to the property prior to the grant of the lease. It cannot claim a better or higher right, in respect of the premises than those enjoyed by the Official Receiver. It has the right to construct. The right to construct at the premises concerned, if the declaration of heritage building continues, will be subject to various terms and conditions enumerated under the Act of 1980. If the building is not considered as a heritage building, then the first petitioner would still have a right to construct but on different terms and conditions. A person claiming an interest in a property declared to be a heritage property building has a right to challenge such declaration at an appropriate forum. A declaration that a building is heritage affects the rights of the persons having interest in the property concerned. Such rights are justiciable. Such a person can approach the Court under Article 226 of the Constitution of India complaining of violation of his rights. The right to challenge the declaration that, a building is a heritage building, does not extinguish itself with no objection being filed to the notice inviting objections for the declarations or the building being so declared. Non filing of objections, before the declaration is made, does not cure the declaration process, if it otherwise suffers from any infractions. A person affected by the declaration, notwithstanding not filing any objection to the building being declared as a heritage building, can approach a Writ Court and substantiate that, the declaration was not in accordance with law. The right to approach the Writ Court cannot be denied to such litigant. Such a right does not stand extinguished by his conduct of not filing any objection before the building being declared as a heritage building. A person can approach the Writ Court complaining that, a statutory authority has not acted in accordance with law. A tax payer of a Municipality or a Corporation can approach a Writ Court complaining that, duties entrusted upon the Municipality or the Corporation, as the case may be, have not been discharged by them. In the present case, the first petitioner is a lease holder would be liable to pay property tax, as an occupier of the property. The first petitioner, therefore, can complain that the Corporation is guilty of infractions of the Act of 1980. It can complain that, the declaration of heritage building has not been made in accordance with provisions of Section 425B of the Act of 1980.

In such circumstances, the petitioners have the locus standi to challenge the declaration of heritage status of the building. Whether or not they succeed therein is a different issue. The first issue is, therefore, answered accordingly.

Two Sections of the Act of 1980 are relevant in the context. They are Sections 425B and 425D, which are as follows:-

"425B. Power of Corporation to declare a building as a heritage building-

Where the Corporation, on the recommendation of the Heritage Conservation Committee and also of the Mayor- in-Council, is of the opinion that any building in Kolkata should be preserved and conserved for historical, architectural, environmental or ecological purpose, it may declare such building as a heritage building :

Provided that during the period when any proposal for declaring building as a heritage building is under consideration of the Heritage Conservation Committee or the Mayor-in-Council, no owner of such building, or no lessee or sub-lessee to whom such building has been leased out, shall transfer such building by way of sale, lease or mortgage without the prior approval of the Municipal Commissioner."

"425D. Heritage Conversion Committee -

(1) The Mayor-in-Council shall constitute a Committee to be called the Heritage Conversion Committee with the Municipal Commissioner as its Chairman and an officer of the corporation as the Convenor.

(2) The Committee shall, have, in addition to the Chairman and the Convenor, seven other members of whom-

(a) one shall be nominee of the Calcutta Metropolitan Development Authority,

(b) one shall be the Director of the Development of Archeology, Government of West Bengal, or his nominee,

(c) one shall be an eminent architect,

(d) one shall be an artist,

(e) one shall be an environmentalist,

(f) one shall be a historian, and

(g) one shall be the Chief Valuer and Surveyor of the Corporation.

(3) The Committee may co-opt one person to be nominated by the concerned department of the State governed while dealing with any land or building under the management of the said.

(4) The Committee shall, in accordance with the provisions of this Act and the rules and the regulations made thereunder, scrutinize every application or proposal for declaration of a building as a heritage building and recommend to, and also advice, the Mayor-in-Council in respect of the preservation and conservation of such building as a heritage building.

(5) The Committee shall meet at such periodical interval as may be determined by the Mayor-in-Council.

(6) The Municipal Commissioner shall, in the case of emergency, take such measures as may be necessary for the preservation and conservation of a heritage building, provided that such measures shall be required to be approved by the Heritage Conversion Committee at its meeting."

Section 425B empowers the Corporation to declare a building as a heritage building. For the Corporation to do so, it must have a recommendation of the Heritage Conservation Committee for such purpose and a recommendation of the Mayor-in-Council. The Corporation on the basis of the two recommendations will have to form an opinion that, any building in Kolkata is required to be preserved and conserved for historical, architectural, environmental or ecological purpose. It may then proceed to declare such building as a heritage building. Therefore, for the Corporation to form an opinion that, a building is required to be declared as a heritage building, it must have before it a recommendation of the Heritage Conservation Committee, and a recommendation of the Mayor-in-Council to such effect.

Section 425D of the Act of 1980 deals with Heritage Conservation Committee. Sub-section (1) of Section 425D requires the Mayor-in-Council to constitute a Committee called the Heritage Conservation Committee with the Municipal Commissioner or its Chairman and an officer of the Corporation as its Convenor. The manner of constitution of the Committee is laid down in Sub- Section (2) of Section 425D. Sub-section (3) of Section 425D allows the Committee to co-opt one person to be nominated by the concerned department of the State Government. Sub-section (4) of Section 425D requires the Committee to scrutinize every application or proposal for declaration of a building as a heritage building. It empowers the Committee to recommend and advice the Mayor-in-Council in respect of preservation and conservation of a building which is declared to be a heritage building.

Reliance has been placed on 12 documents on behalf of the Corporation authorities to substantiate that, the premises concerned was duly declared to be a heritage building by the Heritage Conservation Committee. It appears that, the State Government had constituted an Expert Committee to prepare a list of buildings with the recommendation for declaring such buildings as heritage buildings in September 1998. Such Expert Committee had prepared a report dated December 14, 1998 and had forwarded the same to the Municipal Commissioner for taking action in accordance with the Act of 1980. The Corporation authorities had published two notices, one in Ananda Bazar Patrika and other in the Telegraph on August 2, 1999 inviting objections from the public with regard to the proposed declaration of buildings in the city of Kolkata as heritage buildings. The premises concerned was included in the report dated December 14, 1998. The Heritage Conservation Committee in its meeting dated April 17, 2000 recommended 828 numbers of buildings in the city of Kolkata to be listed as heritage buildings. The concerned premises was included in such list. The Heritage Conservation Committee in its meeting on April 17, 2000 concurred with the suggestion of the Expert Committee formed by the Government with regard to the buildings proposed to be declared as heritage buildings by such Expert Committee. The Mayor-in-Council accepted the recommendation of the Heritage Conservation Committee as contained in the minutes of the Heritage Conservation Committee meeting dated April 17, 2000. The recommendation of Mayor-in-Council dated May 5, 2000 was accepted by the Municipal Corporation in its meeting on September 21, 2000. Therefore, the premises concerned stood declared as a heritage building in accordance with the provisions of Section 425B of the Act of 1980.

Kamal Dey (supra) has considered a construction at the High Court premises. It has considered the documents with regard to declaration of heritage building of the High Court premises placed before it. On perusal of such documents, it has held that, the Corporation did not form any independent opinion that, the High Court building should be preserved and conserved for historical, architectural, environmental or ecological purpose on the basis of the report of the Heritage Conservation Committee or the Mayor-in- Council. It has also held that, in the event, it is found by the municipal authority and the State Government that, the High Court building was declared as heritage building following the provisions of the Act of 1980, then, the Heritage Conservation Committee should also be involved. It has noted that, in a given case, a building can be duly declared to be a heritage building under the provisions of the Act of 1980. Noting is placed on record to suggest that, all the twelve documents relied upon by the Corporation in the present writ petition were placed or considered in Kamal Dey (supra).

Niru Nag & Ors. (supra) has set aside the declaration of premises No. 65, Akshay Datta Sarani, Kolkata-700006 as a heritage building. It has granted liberty to the Corporation to revisit the issue by applying the proper principles and after giving an opportunity to the owner of the premises to represent its case. In Pinaki Roy & Ors. (supra) it has been held that, declaration of a building as heritage has very serious consequences for the owner of the building. A owner of the building is entitled to be heard in the decision making process. Considering the facts of the matter, the decision of the Corporation was set aside with liberty being granted to the Corporation to revisit the issue, in accordance with law. Ansar Ahmed & Ors. (supra) has held that, the declaration of a building as heritage building has civil consequences. The rights of the owners are affected. Proper notices should be issued to the owners. The owners should be given a hearing. After such hearing is granted, can a declaration be made.

In the facts of the present case, the premises concerned has been declared as a heritage under the provisions of the Act of 1980. The Official receiver exercising the rights as owner of the building was given a notice of hearing. The Official receiver did not raise any objection with regard to the declaration of the building as a heritage. The Act of 1980 contemplates a situation where a building once declared as a heritage building can be taken out of its purview. It is, therefore, open to the petitioners to approach the appropriate authorities, for cancellation of such declaration.

In such circumstances, the second issue is answered in the negative, against the petitioner, by holding that the building has been duly declared as a heritage building under the provisions of the Act of 1980. In view of the finding returned with regard to the second issue, no relief can be granted to the petitioners. The third issue is answered accordingly.

W.P. No. 146 of 2010 is dismissed. No order as to costs.
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