Calcutta High Court
Pinaki Roy & Ors vs State Of West Bengal & Ors on 10 January, 2017
Equivalent citations: AIR 2017 (NOC) 333 (CAL.)
Author: I.P. Mukerji
Bench: I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
W.P. No. 506 of 2015
Pinaki Roy & Ors.
Vs.
State of West Bengal & Ors.
For the petitioners:- Mr. Arindam Banerjee
Ms. Arpita Saha
Mr. Subham Sinha
.....Advocates
For the State:- Mr. J.K. Mitra..Sr. Adv.
Mr. Debjit Mukherjee
...Advocates
For the KMC: - Mr. Alok Kumar Ghosh
Mr. A. Banerjee
Ms. Tanusree Das Gupta
Mr. S. Panda
...Advocates
Judgement On: - 10th January, 2017
I.P. MUKERJI, J.
This writ claims a direction in the nature of Mandamus asking the respondent Corporation to cancel the declaration of the building standing on premises No.8B, Abhoy Mitra Street, Ward No.-9, Borough-I, Kolkata-700 005 as a heritage building. It also challenges the validity of Section 425B and 425C of the Kolkata Municipal Corporation Act, as being ultra vires Article- 14 of the Constitution of India and void under Article -13 thereof. This building according to the gradation of heritage buildings into Grades-I, IIA and IIB published by the Kolkata Municipal Corporation, (pg.- 48 of the writ petition) was declared as heritage Grade-I because of its architectural style.
Mr. Dutta for the petitioner submitted that the details of the architectural style of the building, its novelty or historical importance were not provided in the list. This kind of arbitrary gradation and declaration of a building as a heritage building was therefore most unfair, unreasonable and lacked transparency.
As regards the Constitutional point, he submitted that the provisions regarding the declaration of building as a heritage building did not provide for any right of hearing to the owner when a building was being declared as heritage. When it was so declared, he and any subsequent purchaser lost the right to deal with the building the way they chose and had to constantly maintain its heritage status under Section 425A of the Kolkata Municipal Corporation Act, 1980. This was to be viewed as a civil consequence. The relevant provisions should have provided for a right of hearing to the owner. In the absence of such a stipulation the entire provisions were ultra vires the Constitution.
About twenty years ago, in one exercise, the subject building as well as scores of other buildings were declared as heritage by the respondent Corporation. On 6th October, 1997 the Government of West Bengal constituted an Expert Committee to identify heritage buildings in the Kolkata Municipal Corporation area. On 22nd December, 1997 the Kolkata Municipal Corporation Act, 1980 was amended by adding various sub- Sections to Section 425. A Heritage Conservation Committee was constituted. It had the power to make recommendations to the Mayor-in- Council, under Section 425B, that a particular building was heritage, in its opinion. The Mayor-in-Council was required to examine the recommendation. If it accepted it, it had to refer the matter to the Corporation for final approval. In September, 1998 this Expert Committee submitted its final report to the government. In this report, amongst numerous other buildings premises No. 8B, Abhoy Mitra Street, Ward No.- 9, Borough-I, Kolkata-700 005 was recommended as a heritage building. By this time the said Act had been amended. The recommendation of the Expert Committee was sent to the respondent Corporation for consideration. This was deliberated upon at a high level meeting of the Corporation held on 1st December, 1998.
On 17th April, 2000 the Heritage Conservation Committee constituted under the amended provisions recommended 828 buildings to be heritage. On 5th May, 2000 the Mayor-in-Council accepted this recommendation. On 21st September, 2000 the recommendation of the Mayor-in-Council was approved by the Municipal Corporation at a meeting. On 3rd October, 2000 the Heritage Conservation Committee recommended a further 520 buildings to be heritage. On 19th January, 2001 the Mayor-in-Council accepted the recommendation. On 20th February, 2001 the recommendation of the Mayor- in-Council was approved at the Municipal Corporation meeting. All these buildings were included in the report of the Expert Committee. In the case of Purti West Enclave Private Limited and Ors. v. Kolkata Municipal Corporation and Ors. reported in (2016) 120 (1) CWN (Cal) 412 premises No. 22 Park Street , Kolkata-16 had been declared as heritage. The reasons advanced for declaring it as heritage was that "part of the building extends over all portico arcuated," or a curved portico. I had held in that case that there was absence of materials to show that the recommendation of the Expert Committee had been accepted by the Heritage Conservation Committee and thereafter by the Mayor-in-Council and the Corporation in accordance with the provisions of the amended Act. I had also held that nothing was shown to suggest that a curved portico in a building was architecturally so important so as to render the entire building as heritage. In fact, this kind of a curved portico was quite common. The error was palpable or on the face of the records. The declaration as 22 Park Street, Kolkata-16 as heritage was set aside on that ground. Mr. Banerjee is correct when he submits that the owner of the building should be given a chance to contradict the prima facie opinion of the Corporation that the building is heritage. This submission on behalf of the owner has to be considered by the Corporation rationally before coming to a decision that the building is heritage, he argues.
Mr. Banerjee submits that the subject building 8B, Abhoy Mitra Street, Ward No.-9, Borough-I, Kolkata-700 005 has been declared as heritage for its architectural style. I think he is right when he says that what is the style of this building, what is unique about its architecture or what is its historical importance has not been spelt out by the respondent Corporation. In fact, he says, no reasons have been given in the decision.
Declaration of a building as heritage has very serious consequences for the owner of the building. Under Section 425A the owner loses his absolute rights over the property. The owner or the purchaser has to maintain the building so as to preserve its heritage status. He cannot demolish the building. He cannot add to it or alter it.
Hence, the other part of the submission of Mr. Banerjee is also correct that the right to be heard before a building is declared as heritage is presumed to be inbuilt. The owner ought to have been heard before declaring the building as heritage.
Mr. Ghosh for the Corporation is also right when he submits that this court should not take upon itself the burden of declaring a building as heritage because it is not an expert body and lacks the expertise of an expert body. This court had held in the Purti West Enclave Private Limited and Ors. v. Kolkata Municipal Corporation and Ors. reported in (2016) 120 (1) CWN (Cal) 412 that if on face of the records a building cannot be declared as heritage the court in its writ jurisdiction had the power to undo the declaration of heritage by the Corporation. There must be a palpable error in the decision of the Corporation. This is more so because the statute gives no remedy to an aggrieved owner. I agree with Mr. Ghosh that only on examination of the picture of the building as handed up to this court it is neither possible for this court to come to a conclusive opinion that the building in question is heritage nor come to the conclusive conclusion that the building in question is not heritage.
A proper enquiry is called for.
In my opinion the building may be heritage but cogent reasons have to be given in support of it after giving an opportunity of hearing to the owner. It is also highly likely that there is nothing unique about the style of the building or any historical importance of the style of architecture employed in the building so as to classify it as heritage.
In that view of the matter I set aside the declaration of 8B, Abhoy Mitra Street, Ward No.-9, Borough-I, Kolkata-700 005 as a heritage building. If the Kolkata Municipal Corporation is so desirous, it may revisit the issue in accordance with law and according to the observations made above. This writ application is allowed to the above extent.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P. MUKERJI, J.)