Calcutta High Court
Shiromoni Flat Owners' Association & ... vs Kolkata Municipal Corporation & Ors on 19 May, 2022
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present :- Hon'ble Justice Amrita Sinha
W.P.O. No. 45 of 2018
IA No. GA/3/2021
GA/4/2021
GA/5/2022
Shiromoni Flat Owners' Association & Ors.
Vs.
Kolkata Municipal Corporation & Ors.
For the writ petitioners :- Mr. Shyamal Sarkar, Sr. Adv.
Mr. Sakya Sen, Adv.
Ms. Reshmi Ghosh, Adv.
Mr. Arindam Chandra, Adv.
Mr. Atish Ghosh, Adv.
For KMC :- Mr. Jaydip Kar, Sr. Adv.
Mr. Achintya Kumar Banerjee, Adv.
Mr. Gopal Chandra Das, Adv.
For Respondent No. 8 :- Mr. Sunil Singhania, Adv.
For Respondent No. 9 :- Mr. Ratnanko Banerji, Sr. Adv.
Mr. K. R. Thaker, Adv.
Mr. Aditya Kanodia, Adv.
Mr. Indradeep Basu, Adv.
For Respondent No. 10 :- Mr. Jayanta Kr. Mitra, Sr. Adv.
Mr. Utpal Bose, Sr. Adv.
Mr. Reetobroto Kr. Mitra, Adv.
Ms. Labanyasree Sinha, Adv.
For Respondent Nos. 11 & 12 :- Mr. Probal Kumar Mukherjee, Sr. Adv.
Mr. Subrata Goswami, Adv.
Heard on :- 11.03.2021, 17.03.2021, 24.03.2021,
07.04.2021, 01.07.2021, 23.08.2021,
29.11.2021, 03.12.2021, 09.12.2021,
14.12.2021, 22.12.2021, 04.02.2022
and 18.02.2022
Judgment on :- 19.05.2022
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Amrita Sinha, J.
The petitioner no. 1 is the flat owners' association and the petitioner nos. 2- 12 are the owners and occupiers of flats of B+G+17 storied building 'Shiromani' situated in the premises no. 60/1, Ballygunj Circular Road, Kolkata - 700 019.
Premises no. 59, Ballygunj Circular Road, Kolkata - 700 019 under the name and style of 'Tripura House', which has been declared as a heritage structure, is situated in the eastern side of the high rise of the petitioners.
The petitioners filed the instant writ application in January, 2018 with the allegation that a multi-storied building is proposed to be constructed on the driveway of the heritage structure.
It is the contention of the petitioners that sanction of the plan for any new construction at the premises of Tripura House is in violation of the Building Rules of the Kolkata Municipal Corporation as well as the various laws relating to heritage building and other environmental norms.
It is the specific contention of the petitioners that the minimum side, front and rear open spaces, that are required to be maintained for construction of building according to the Kolkata Municipal Corporation Building Rules, have not been maintained. Construction was being made by demolishing substantial part of the grand heritage structure of Tripura House. The floor-area ratio of the proposed new building has been determined upon taking into consideration portions of land of the premises no. 60/1, Ballygunj Circular Road.
Tripura House originally comprised of 7 bighas 6 kattas 10 chittacks. Out of the aforesaid area, the adjoining building Shiromani at premises no. 60/1, Ballygunj Circular Road was constructed after obtaining sanction from the Kolkata Municipal Corporation with basement, ground and seventeen stories in the year 3 2003. The land in which Shiromani stands has been separated from the mother premises and renumbered. Presently, Tripura House situated at 59, Ballygunj Circular Road comprises the balance area of 4 bighas 6 kattas and 15 chittacks.
The floor-area ratio which was available for the mother premises was entirely utilised for construction and allowed by the Kolkata Municipal Corporation for issuance of the revised sanction plan in respect of the premises no. 60/1, Ballygunj Circular Road where the G+17 storeyed building with basement, Shiromani, has been constructed. The entire ground area available for the mother premises no. 59, Ballygunj Circular Road including driveway was taken into consideration for construction of the building Shiromani at 60/1, Ballygunj Circular Road. The same area cannot now be utilised for sanction of another new building to be constructed at premises no. 59A, Ballygunj Circular Road. The mandatory car parking spaces that are to be sanctioned falls within the area where the proposed building is purported to be sanctioned and/or constructed.
The proposed construction will result in cutting of innumerable trees, bushes, shrubs alongside the driveway resulting in violation of environmental laws.
Construction of G+13 storey new building will result in blockage of free flow of natural light and air.
It is also the case of the petitioners that the Kolkata Municipal Corporation acted de hors the provisions of law in relaxing provisions of the Building Rules with the sole intention of permitting the proposed construction.
The petitioners have also alleged that fire safety measures were not taken into consideration at the time of sanction of the building plan in respect of the proposed structure.
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The petitioners have prayed for issuance of a writ of Mandamus to cancel, quash and rescind the sanction plan for construction at premises no. 59A, Ballygunj Circular Road.
The petitioners also made a prayer for interim order restraining the Kolkata Municipal Corporation to permit the private respondents herein to make any construction or to change the nature and character of the premises no. 59, Ballygunj Circular Road.
Initially when the writ petition was filed, West Bengal Heritage Commission was not impleaded as party respondent. Pleadings were over and hearing of the writ petition commenced. After getting knowledge of the stand of the respondents, the petitioners thought it fit to implead the West Bengal Heritage Commission and its Chairman as party respondents. An application for addition of party was made by the petitioners. By order dated 25th July, 2019, the Court allowed the application for addition of party and also allowed the prayer of the petitioners for amendment of the pleadings.
The primary ground of challenge in the writ petition is that the plan for construction has been obtained upon misrepresentation and suppression of facts. The action of the West Bengal Heritage Commission in granting approval to the building plan is without jurisdiction and beyond the powers conferred by the Act of 2001 and the Rules framed thereunder.
The Chairman of the Heritage Commission alone does not have the jurisdiction, authority or power to take any steps under the Act of 2001 or the Rules framed thereunder. There was no quorum on the day decision was taken to approve the plan proposal for construction. The Heritage Commission does not have any jurisdiction to sanction or approve any building plan.
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In view of the sanction granted for construction at the premises no. 59A, Ballygunj Circular Road, the easementary rights of the petitioners' adjacent premises is being disturbed. Free movement of fire fighting vehicles will be obstructed in the event of a fire accident and the safety and security of the petitioners' adjoining premises will be compromised.
According to the petitioners, as the premises in question is a Grade-I heritage structure, accordingly, construction of any manner thereon is not permissible. The petitioner has relied upon the resolution of the Mayor in Council dated 11th August, 2014 signed by the Mayor of the Kolkata Municipal Corporation that the matter of amendment of the existing gradation of Tripura House from Grade-I to Grade-IIA, as prayed for by the owner of the premises, needs to be placed before the Heritage Conservation Committee to review/reconsider its earlier decision.
The owner of the premises approached the Kolkata Municipal Corporation with a prayer to permit development in the premises in question. It was mentioned in the said letter dated 28th March, 2014, that due to huge maintenance cost of the property, heavy municipal tax demands, family tax liabilities and other incidentals, the family needs to raise resources from the subject premises. Proposal was made for approval of building plan by KMC for constructing a new residential building on the western side of Tripura House.
It was mentioned that a new construction on the eastern side of the premises was made in accordance with the plan sanctioned by KMC, prior to the property in question being declared as a heritage property. While obtaining the completion certificate an undertaking was given by the developer that no further development will be made in the said property. However, the said undertaking was given without the knowledge and consent of the owner.
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Prayer was made for amending the gradation of the property from Grade-I to Grade-IIA. The same was absolutely necessary for the family to raise resources to meet the pressing liabilities of the family. On 11th August, 2014 the Mayor in Council placed the matter before the Heritage Conservation Committee, KMC for amendment of the existing gradation and the same was rejected on the self-same day.
The owner thereafter approached the West Bengal Heritage Commission. By a communication dated 19th January, 2015, the Chairman of the West Bengal Heritage Commission intimated the Convenor, Heritage Conservation Committee, Kolkata Municipal Corporation, that the Commission has agreed to clear the proposed multi-storeyed building at Tripura House for sanction from the building department. The department of KMC should check that the design is in conformity with other Rules and Regulations of KMC.
By a further communication dated 4th February, 2015, the Chairman of the Commission intimated the Mayor of the Kolkata Municipal Corporation that the Heritage Commission has cleared the proposal for construction of the building at 59A, Ballygunj Circular Road from heritage point of view and an authenticated copy of the plan was forwarded to the Mayor of the Corporation. The Corporation may approve the plan in accordance with the Building Rules of KMC. The heritage lock may kindly be unlocked. Further communications between the Heritage Commission and the owner of the premises followed.
The Divisional Fire Officer, Fire Prevention Wing, West Bengal Fire and Emergency Services, by a communication dated 27th August, 2017 intimated the owner that the revised plan submitted was scrutinised and found necessary from fire safety point of view. The revised plan drawing was approved subject to the compliance of the fire safety measure and a separate fire pump to be installed for the total sprinkler installation of the building as per earlier recommendation. 7 However, necessary sanction and approval for such construction and occupancy must be obtained from the competent authorities.
The Mayor in Council of the Kolkata Municipal Corporation on 29th November, 2017, resolved that the proposal to allow sanction of one additional block of B+G+XIII storeyed residential building of height 56.80 metres, keeping the existing Grade-I heritage building under Section 394 of the KMC Act, 1980 in relaxation of Rule 65A of the KMC Building Rules, 2009, is approved. Approval of the Chairman of the West Bengal Heritage Commission for sanction of one additional block for construction of B+G+XIII storeyed residential building keeping the existing Grade-I heritage building subject to renovation and restoration of the garden area of the premises on completion of the building, is also approved.
The matter of relaxation of Rule 62 of the Building Rules (open space) as recommended by the Municipal Building Committee is approved as the West Bengal Fire and Emergency Services has given its observation. Necessary action to be taken upon payment of fees and charges as per KMC schedule of rates. The building plan was ultimately approved by the Kolkata Municipal Corporation in January, 2018.
The petitioners objected to the sanction of the plan before the Kolkata Municipal Corporation but no step was taken to redress the grievance of the petitioners.
According to the petitioners the building Rules have been relaxed with the sole intention to permit construction. It was not proper for the KMC to relax the building Rules and allow construction over a heritage property. No reason whatsoever has been assigned by the Kolkata Municipal Corporation for relaxing the building Rules and permitting the owner to make construction thereon.
Learned senior Advocate representing the petitioners have relied upon the various provisions of the Kolkata Municipal Corporation Act, 1980 and the Rules 8 framed thereunder, the West Bengal Heritage Commission Act, 2001 and the Rules framed thereunder and the Constitution of India. The book titled 'KMC Graded List of Heritage Buildings' and the entries made thereunder were also placed.
The petitioners rely upon the following judgments in support of their case:
1) 2013 (3) CLJ 561 Selvel Advertising Pvt. Ltd. & Anr. -vs- Kolkata Municipal Corporation & Ors.
2) (1988) 4 SCC 534 paragraph 13 Bharat Singh & Ors. -vs- State of Haryana & Ors.
3) 2018 SCC Online Cal 7548 paragraphs 2, 6 and 7 Partha Pratim Ishor @ Partha Pratim Isore -vs- Cooch Behar Municipality & Ors.
4) 2010 SCC Online Cal 500 paragraphs 4-7 Smt. Kanak Lata Saxena -
vs- Uttarpara-Kotrung Municipality & Ors.
5) (79) CWN 883 paragraphs 9, 12 and 13 Scotts (P) Ltd. & Ors. -vs- Corporation of Calcutta & Ors.
6) (40) CWN 17 Manibuddin Bepari -vs- The Chairman of the Municipal Commissioners, Dacca.
7) (2010) 9 SCC 496 paragraph 47 Kranti Associates Pvt. Ltd. & Anr. -vs- Masood Ahmed Khan & Ors.
8) (2012) 4 SCC 407 paragraphs 21, 22, 38, 39, 41, 42 and 46 Ravi Yashwant Bhoir -vs- District Collector, Raigad & Ors.
9) 2013 SCC Online Cal 22945 paragraphs 3, 7, 17, 18 and 22 Selvel Advertising Pvt. Ltd. & Anr. -vs- Kolkata Municipal Corporation & Ors.
The petitioners, inter alia pray, for cancellation of the building plan. 9 The prayers of the petitioners have been vehemently opposed by the respondents.
Learned senior advocate representing the Kolkata Municipal Corporation submits that the Kolkata Municipal Corporation sanctioned the plan in accordance with the KMC Act, 1980 and the Rules framed thereunder upon taking into consideration the recommendation of the Municipal Building Committee and the advice of the Heritage Commission. It has been contended that according to Section 16 of the Act of 2001, an advice given by the Heritage Commission is not only binding on every local authority but is also liable to be implemented. The Kolkata Municipal Corporation thought it fit not to prefer any appeal against the advice given by the Commission as contemplated under Section 12 of the Act of 2001, but proceeded to implement the said advice.
In view of the overriding effect of the Act of 2001, the second proviso to Section 396 KMC Act stood complied with, as the Mayor in Council considered the recommendation of the Municipal Building Committee as well as the advice of the Heritage Commission. It has been submitted that there was no requirement to place the proposal of the plan before the Heritage Conservation Committee as the Heritage Commission already dealt with the matter and the Heritage Conservation Committee did not have any jurisdiction to sit over the advice or to give any further recommendation or advice contrary to the advice given by the Heritage Commission.
It has been admitted that Rule 62 of the KMC Building Rules, 2009 was indeed relaxed with regard to the front open space and side open space in terms of Rule 65A of the said Rules. According to the KMC, relaxation is usually made to offset the hardship of the owners of the heritage buildings who intend to utilise their open spaces.
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In the present case, the owner of the heritage building expressed intention to utilise the open space for making construction and to sell off the constructed area to earn revenue required for the purpose of proper maintenance of the heritage building. It has been argued that sufficient space has been left open for free movement of fire and emergency vehicles upto the satisfaction of West Bengal Fire and Emergency Services. The West Bengal Fire and Emergency Services have cleared the project with conditions to be complied by the owner. The vires of Rules 65A permitting relaxation is not under challenge in the present proceeding.
It has been argued that the Corporation has strictly maintained the car parking spaces as required under law. The provision for three car parks for each flat, in terms of Rule 78(2)(B), has been duly followed. All total sixty-six car parking spaces has been provided for twenty-two flats, each measuring 300 sq. ft. As regards the floor area ratio, Rule 69 has been followed. It has been denied outright that the open space of the adjoining building has been taken into consideration for the purpose of calculating the floor area ratio of the new structure. It has been contended that the premises in question is a demarcated property and there is no scope of adding the area of an adjoining building for the purpose of sanctioning plan of the new construction.
It has been submitted that the Kolkata Municipal Corporation has acted in strict accordance with law for sanctioning the plan for the new structure and the scope of judicial review is extremely restricted. The Corporation exercised power in accordance with the relevant laws, and the action of the Corporation does not call for any interference in judicial review.
Leaned senior advocate representing the KMC relies upon the following judgments on the scope and extent of power of judicial review of the High Court under Article 226 of the Constitution of India in their support: 11
1) State of UP & Anr. -vs- Johri Mal reported in (2004) 4 SCC 71 paragraphs 28-30.
2) Nirmala J. Jhala -vs- State of Gujarat reported in (2013) 4 SCC 301 paragraphs 22-24.
Learned senior advocate representing the West Bengal Heritage Commission and the Chairman, West Bengal Heritage Commission submits that the Heritage Commission was reconstituted with effect from 1st July, 2014 with the Chairman, Mayor of the Kolkata Municipal Corporation and the Mayor of Howrah Municipal Corporation in exercise of the power conferred under Section 4 of the Act of 2001 upon cancellation of all other previous notification. The notification dated 11th September, 2014 bearing no. 3222-ICA(N)/IC/O/17A(XIII)-15/2004 has been placed in Court.
As the property is a declared heritage property, the owner made a representation before the Heritage Commission. The Chairman of the Commission suggested modification to be made in the building plan. After the owner acted in accordance with the suggested modification, the Commission in its meeting held on 16th January, 2015 approved the plan proposal. It has been submitted that as per Section 4 of the Act of 2001, the Commission consists of not more than twenty-one members. There is no requirement of maintaining a minimum number of members. Decision was taken in the meeting dated 16th January, 2015 by the majority of the members present i.e, two out of three.
Section 7 of the Act of 2001 has been relied upon which mentions that no act or proceeding of the Commission shall be deemed to be invalid by reason merely of any vacancy in, or any defect in the constitution of, the Commission.
The Commission, in usual course of business, acted in accordance with the powers and functions vested under the Act of 2001.
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In response to the submission made by the petitioner with regard to the quorum as prescribed in Regulation 5 of the West Bengal Heritage Commission Regulations, 2004 that seven members shall form a quorum, it has been submitted that the said quorum is in respect of the maximum number of members that is 21 i.e. one-third of the maximum number. In view of the notification dated 11th September, 2014, on the date of the meeting on 16th January, 2015, the Commission consisted of only three members and accordingly the decision taken by the Chairman and one available member of the Commission, cannot be faulted.
It has been argued that none of the provisions of the Act of 2001 or the Regulations framed thereunder has been challenged by the petitioners in the instant proceeding.
Prayer has been made for dismissal of the writ petition.
Learned senior advocate representing the respondent no. 9 being the owner of the property has strongly opposed the prayer of the petitioners. It has been submitted that the petitioners are neighbours of the respondent no. 9 and no part of the property owned by the petitioners is affected by any act of the respondent no.
9. It has been submitted that both the properties are distinctly demarcated and the new construction does not interfere with any right of the petitioners.
It has been submitted that a portion of the original property of the respondent no. 9 was sold and thereafter developed by one Gopal Bajoria/Mayawati Trading Pvt. Ltd. The remaining property measuring about 93 kathas was separated. Out of the said area, 28 kathas have been allowed for development by the respondent no.
10. The owner of the property has the right to deal with the property in accordance with the prevailing laws and a neighbour cannot restrict or stand in the 13 way of enjoyment of his right, especially when the same does not cause any injury or infringe any right of a third party.
The respondent no. 9 has challenged the locus standi of the petitioners to maintain the writ petition. It has been contended that the petitioners being neighbours do not have any fundamental or legal right to stop any development work made on their private property on the basis of the plan sanctioned by the KMC.
It has been argued that the High Court sitting in the writ jurisdiction will not undermine the decision taken by the specialised bodies like the KMC, Heritage Commission, Heritage Conservation Committee, Fire and Emergency Services etc. All the aforesaid authorities have approved the construction.
It has been highlighted that the plea of the petitioners that their right to air and light will be impinged by the proposed development has been abandoned in the course of argument.
It has been submitted that the petitioners are meddlesome interlopers, not entitled to invoke writ jurisdiction. Had there been any violation of the prevailing laws, the petitioners being public spirited persons, ought to have instituted public interest litigation.
It has been contended that, as the apprehension of the petitioners that the laws relating to sanction of the plan have been violated has been answered in details by the KMC and as no personal right of the petitioners have been infringed in any manner, no cause of action to continue the writ petition survives and accordingly, the writ petition is liable to be dismissed.
It has been submitted that the present proceeding is malicious in nature. As the respondent no. 9 backed out from the agreement with Gopal Bajoria/Mayawati 14 Trading Pvt. Ltd., accordingly, the petitioners have been set up by the said persons to put a spanner in the construction.
The writ petition filed by Gopal Bajoria/Mayawati Trading Pvt. Ltd. challenging the construction in question was tagged with the instant writ petition and the said writ petition was dismissed by the Court after a contested hearing on 14th January, 2021 passed in WP No. 388 of 2018. The ratio of the decision of the coordinate Bench in WP No. 388 of 2018 is binding on this Bench.
The allegation of the petitioners that the floor area of the heritage structure has been added up for the purpose of calculating floor area ratio of the new structure, has been categorically denied by the respondent no. 9. It has been submitted that floor area ratio is still available for the plot but not utilised since the height of the building has been reduced by KMC. The plan has been sanctioned after approval of all the expert bodies and the High Court ought not to interfere with the same. The heritage structure has been duly preserved and conserved.
The following judgments have been relied upon by the respondent no. 9 in support of his case:
1) (1976) 1 SCC 671 paragraphs 37-49 Jasbhai Motibhaj Desai -vs-
Roshan Kumar, Haji Bashir Ahmed & Ors.
2) (2013) 4 SCC 465 paragraphs 9, 10, 14 and 17 Ayaaubkhan Noorkhan Pathan -vs- State of Maharashtra & Ors.
3) (2003) 2 Cal LT 588 Smt. Rinkoo Mitra -vs- State of West Bengal and Ors.
4) (2014) 8 SCC 804 paragraphs 137 and 140 Jal Mahal Resorts Pvt. Ltd.
-vs- K. P. Sharma & Ors.
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5) (2004) 7 SCC 68 paragraphs 40-42 and 77 Godawat Pan Masala Products I. P. Ltd. -vs- Union of India & Ors.
Learned Senior advocate representing the developer of the new construction, being the respondent no. 10 herein, vociferously opposes the prayer of the petitioners.
It has been submitted that there has been no suppression of fact and there has been no violation in any of the statutory Rules at the time of obtaining the sanction of the plan. It has been submitted that floor area ratio has been obtained in respect of only 4 bighas 12 kathas and 15 chittaks. The permissible floor area ratio for construction of residential building, taking into consideration its heritage status, is three but the floor area ratio that has been utilised for making construction is only 1.77.
Regarding the non-compliance of the side, front and back open spaces, it has been submitted that there is mandatory 10 mts. open space in the rear of the building, 6.52 mts. open space on the western side and 7.5 mts. in the eastern side. In some portions there is 8 mts. open space. The said relaxation has been permitted by the expert bodies with the approval of the West Bengal Fire and Emergency Services authority.
As regards the allegation of demolition of portions of the heritage structure including portico, fountain area etc., it has been submitted that undertaking has been given by the respondent no. 10 to restore the same to its original condition.
The locus standi of the petitioners to file the present writ application has been challenged. It has been submitted that there is a difference of more than 50 mts. between the building of the petitioners and the new construction. None of the personal rights of the writ petitioners have been affected for which any remedy can be granted by the writ court. The petitioners are busy bodies acting at the behest of 16 the competing developers that is Gopal Bajoria, Director, Mayawati Trading Pvt. Ltd. In the absence of infringement of legal right, the very foundation for invoking jurisdiction under Article 226 of the Constitution of India, vanishes.
The Court, not being an expert, ought to exercise judicial restraint especially when there is an expert body dealing in the matter. The documents disclosed in the present proceeding relates to official acts and there is a presumption of correctness of facts enumerated in the documents.
The respondent no. 10 relies upon the following judgments in its support:
1) (2002) 1 SCC 33 paragraph 38 Ghulam Qadir -vs- Special Tribunal & Ors.
2) (2004) 3 SCC 349 paragraph 31 Ashok Kumar Pandey -vs- State of West Bengal.
3) AIR 1952 SC 12 paragraph 5 The State of Orissa -vs- Madan Gopal Rungta.
4) (1981) 1 SCC 405 paragraphs 11 and 12 P. Kasilingam -vs- P. S. G. College of Technology.
5) (1993) 1 SCC 446 paragraph 17 United India Periodicals Pvt. Ltd. -vs-
M/s. M & N Publications Ltd. & Ors.
6) (1992) 2 SCC 343 paragraph 31 Peerless General Finance and Investment C. Limited & Anr. -vs- Reserve Bank of India.
7) (2005) 7 SCC 338 paragraph 11 V. Ramana -vs- A. P. SRTC & Ors.
8) (2009) 7 SCC 561 paragraph 170 Villianur Iyarkkai Padukappu Maiyam -vs- Union of India & Ors.
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9) (2007) 7 SCC 309 paragraphs 17 and 18 Municipal Corporation of Delhi -vs- Qimat Rai Gupta & Ors.
10) (2010) 4 SCC 653 paragraph 208 Mohd. Shahbuddin -vs- State of Bihar & Ors.
Prayer has been made for dismissal of the writ petition.
I have heard the elaborate, rival submissions made on behalf of both the parties and have considered the materials on record. For the sake of brevity and convenience, the decisions referred to by the parties are not dealt with individually, but are dealt with in line with the ratio laid down therein.
A preliminary issue has been raised by the respondents as regards the locus standi of the petitioners in filing the present writ petition.
It has been submitted that none of the legal or fundamental rights of the petitioners have been infringed by any act of the respondents. The private respondents have contended that construction has been made strictly on the basis of the plan sanctioned by KMC.
The Court is of the opinion that as the matter relates to allegation of illegal and arbitrary sanction of building plan in respect of a Grade I heritage property as such the Court thinks it fit to exercise discretion in the matter. It is settled law that there is a presumption of correctness in all official acts, but to come to a decision as to whether the act of the respondent authorities was indeed correct or not, the Court, at times, is required to lift the alleged official veil. In such circumstances, it is held, that even a stranger to the newly constructed/ proposed to be constructed property does have the right to challenge the construction work if the same is being made de hors the provisions of law. However, no personal or private dispute between the parties can be entertained.
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A three-judge Bench of the Hon'ble Supreme Court in the matter of Dipak Kumar Mukherjee vs Kolkata Municipal Corporation reported in AIR 2013 SC 927 upheld the appeal filed by an enlightened resident of Kolkata alleging illegal and unauthorized construction and passed necessary orders therein. Accordingly, the objection raised by the respondents challenging the locus of the petitioners in invoking the high prerogative writ jurisdiction of this Court stands overruled. It is held that the petitioners do have the locus standi to file the present writ petition.
The allegation of the petitioners primarily is that, KMC ought not to have relaxed the Building Rules for allowing the private respondents to make construction.
What is to be decided is whether the approval of sanction to make construction over a Grade I heritage property by relaxation of the Building Rules was permissible in law or not.
The premises in question was declared a heritage Grade-I property under Section 425B of the Kolkata Municipal Corporation Act, 1980 on 25th February, 2009. Under the aforesaid provision, the Corporation on the recommendation of the Heritage Conservation Committee and also of the Mayor in Council declare a building as heritage building. The Heritage Conservation Committee consists of the Municipal Commissioner as its Chairman and an officer of the Corporation as its Convenor. In addition to its Chairman and Convenor, the Heritage Conservation Committee has seven other members.
The owner, on 28th March, 2014, applied before the Heritage Conservation Committee of KMC seeking permission to develop a vacant portion of the heritage building. On 11th August, 2014 the Mayor in Council placed the matter of amendment of the existing gradation from Grade I to Grade IIA. Heritage Conservation Committee refused to amend the gradation of the premises. 19
The owner thereafter requested the Heritage Commission to permit construction. The Commission in January, 2015 agreed to clear the revised design of the proposed building and left the decision to sanction the building plan upon the KMC. As the Heritage Commission cleared the revised design of the proposed structure, KMC did not raise any issue with regard to the same. Initially the building plan was submitted for construction of B+G+17 storied building but later on the plan stood revised and the same was sanctioned for construction of B+G+13 stories of height 56.80 mts. The West Bengal Fire and Emergency Services gave clearance to the proposed construction subject to the compliance of the fire safety measures and installation of separate fire pump for total sprinkler installation of the building.
Heritage Commission was established in the State by notification in the Official Gazette on 21st March, 2001 for the purpose of identifying heritage buildings, monument, precincts and sites and for measures for their restoration and preservation. The Commission is a body corporate having perpetual succession. The Commission is chaired by eminent persons with concern and commitment for heritage conservation. The Commission consists of twenty-one members interested in all matters relating to the national and regional Heritage. All orders and decisions and other instruments of the Commission is authenticated by the signature of the Secretary or any other officer of the Commission duly authorized by it in this behalf.
According to the Act of 2001 no local authority shall take any step for identification, preservation, conservation or restoration of any heritage building not consistent with the determination or advice of the Commission subject to the other provisions of the Act of 2001. Every local authority shall accept every advice of the Commission and shall take action for prompt and effective implementation of such advice.
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It has been claimed and submitted that the Heritage Commission was reconstituted with effect from 1st July, 2014 by way of a notification dated 11th September, 2014 with Shri Shuvaprasanna as Chairman and the Mayor of the Kolkata Municipal Corporation and the Mayor of the Howrah Municipal Corporation as its members. Though the Commission is a statutory body of not more than twenty-one members, but on the date the Commission approved the new plan proposal for construction of the proposed new building, the reconstituted Commission consisted of only three members.
According to Section 2(j) of the Act of 2001 notification means a notification published in the Official Gazette. The copy of the notification dated 11th September, 2014 placed in Court does not bear the date or the details of the publication in the Official Gazette. The Court has not been made aware of the fact whether the said notification was at all published in the Official Gazette or not.
As per Section 7 of the Act of 2001 no act or proceeding of the Commission shall be deemed to be invalid by reason merely of any vacancy in, or any defect in the constitution of the Commission.
Regulation 4 of the West Bengal Heritage Commission Regulations, 2004 lays down the periodicity of meetings of the Commission. It mentions that the Commission shall meet every three months. However, the Chairperson by himself or at the instance of one or more members may direct a special meeting of the Commission to be convened to consider any specific matter of urgency.
Regulation 5 of the aforesaid Regulations lays down the quorum of the meeting. It lays down that seven members shall form a quorum. If a meeting could not be held for want of quorum, the meeting shall stand adjourned for a week.
As an issue has been raised by the petitioners with regard to the non- fulfilment of the quorum of the Commission on the day the proposal for the new 21 construction was cleared, the Commission relies upon Section 7 of the Act of 2001 and submits that the action of the Chairman of the Commission cannot be faulted notwithstanding any defect in the constitution of the Commission. It has been submitted that two out of three members were present when the Commission resolved to grant approval of the plan proposal submitted by the owner of the heritage premises.
On a perusal of the minutes of the meeting of the West Bengal Heritage Commission held on 16th January, 2015 it appears that only the Chairman Shri, Shuvaprasanna and the Mayor, KMC Shri, Shovan Chattopadhyay were present. The fact of absence of the third member of the Commission that is the Mayor, HMC was recorded in the minutes. Even thereafter the meeting of the Commission proceeded, allegedly for discussion of an 'urgent matter' relating to making provision for maintenance of the heritage property. The minutes further records that the owner of the building sought permission from the Commission for construction of a multi-storied building in the vacant space of Tripura House premises as out of the earning from the same, the heritage property could be saved.
The urgency in taking a decision on the said date in the absence of the third member cannot be countenanced at all. It appears from records that the condition of the heritage property was not such that an immediate action was required to be taken to preserve the same. It seems that the urgency was mainly to approve the proposal for construction. The earlier proposal for amending the gradation status of the said premises stood disapproved on 11th August, 2014 by the Heritage Conservation Committee of KMC. There was hardly any pressing need to approve the plan proposal in such lightning speed within a span of only five months, that too, in the absence of the members of the Commission.
When the legislation in its wisdom framed the Act by clearly mentioning the members of the Commission, then the same has been incorporated with a specific 22 purpose. The members of the Commission are eminent and interested persons relating to national and regional heritage.
According to Section 24 of the Act of 2001, the members and officers of the Commission shall, when acting or purporting to act in pursuance of any of the provisions of the Act be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.
The members of the reconstituted committee being public servants ought to have acted responsibly and should have waited for constitution of a regular body for taking a decision in the matter. Moreover, neither of the aforesaid two members of the Commission were domain experts, as such, they ought to have slowed down and postponed the agenda till formation of the regular committee.
The manner in which the resolution was adopted by the Commission and communicated to the Corporation makes it crystal clear that it was just a one mans' show. Is there a requirement of a body of twenty-one members if only two members could take a decision in matters relating to heritage structures? It is sheer farce for only two members to come to a conclusion and adopt resolution whether or not to permit construction over a Grade I heritage structure being specifically aware of the fact that construction thereon by downgrading the status of the building had been outright rejected by nine members of the Heritage Conservation Committee of KMC just a couple of months back.
The timing of the alleged notification dated 11th September, 2014 purporting to reconstitute the committee of the Commission is also very significant. On 11th August, 2014 the Heritage Conservation Committee of KMC rejected the proposal for downgrading the heritage status of the premises and within a month i.e on 11th September, 2014 the alleged notification has been claimed to be published, though the Gazette Notification was never produced in Court. Soon thereafter the proposal 23 to construct is approved by the Commission. The aforesaid timeline is enough to come to a conclusion that the public servants were highly interested to allow the construction by tweaking the statutory provisions, of course, for extraneous reasons.
What is noteworthy is that the said alleged notification dated 11th September, 2014 was neither annexed nor relied upon by the Commission in the affidavit in opposition filed by them. Existence of the Gazette notification is also very doubtful. Assuming that the Gazette notification exists, the same was never given any publicity. Had the same been readily available the same would have been certainly annexed to the opposition filed by the Commission.
Reliance upon Section 7 of the Act of 2001 appears to be the last resort adopted by the Commission to save its action from the vice of arbitrariness. It is more than evident that the members of the Commission took into consideration only the financial implication for approving the plan as has been recorded in the minutes dated 16th January, 2015. The members were more concerned about the 'earnings' from the construction of the multi-storied building rather than the heritage aspect of the premises.
The members of the Commission were aware that as the premises was included in the list of Grade-I property, no construction could have been made thereon and accordingly the Commission requested the KMC to unlock the heritage lock to allow construction being made on the Grade-I heritage property.
What is more surprising is that the Heritage Conservation Commission of the KMC did not raise any issue after proposal to construct over the heritage premises was approved by the Heritage Commission. The KMC authority merrily proceeded to sanction the plan for construction, subject to certain modifications being made. Had the premises in question not been a heritage property, then there would have 24 been no issue with regard to the sanction of the building plan. Since the property in question was declared as Grade I heritage way back in the year 2009, accordingly, the Heritage Conservation Committee of the KMC ought to have taken the matter more seriously especially because the proposal of the owner to make construction over the said property stood refused by the Heritage Conservation Committee in the year 2014.
KMC also went to the extent of relaxing Rule 62 of the Building Rules, 2009 wherein the minimum open spaces with respect to buildings for residential use has been mentioned. As the minimum open spaces required to be kept open in the front and the two sides in respect of a building with height upto 60 metres was not available, accordingly, relaxation had to be made to ensure construction. Provision of Rule 65A of the Building Rules, 2009 was invoked by KMC and the Municipal Building Committee permitted relaxation in the front and the side spaces.
It has been submitted that sufficient open space is available for free movement of fire and emergency vehicles. It has been contended that the heritage building occupies at least 25% of the land area. The required car parking spaces have also been maintained and there is sufficient rear space in the new construction. In spite of the sanction and the relaxation, KMC refused to downgrade the status of the heritage structure from Grade I. The same implies the importance of the heritage structure and the necessity to preserve and conserve the same.
The Kolkata Municipal Corporation adopted a very calculated stand and tried to play the second fiddle. According to the Corporation, in view of the non-obstante clause contained in Section 11 of the Act of 2001, the Heritage Conservation Committee of the Corporation lost its power as regards identification, restoration, preservation of heritage building vis-à-vis the Heritage Commission. Every advice of the Commission is binding upon the Heritage Conservation Committee, unless appealed.
25
As per the Corporation, the entire chapter XXIIIA of the KMC Act, 1980 relating to preservation and conservation of heritage buildings stands overridden by reason of Section 11 of the Act of 2001.
Section 11 of the Act of 2001 stipulates the powers and functions of the Heritage Commission. Section 11 (1) lays down that notwithstanding anything contained in any other law for the time being in force, all local authorities shall refer anything related to identification, restoration and preservation of any heritage building or any other development or any engineering operation which is likely to affect preservation of any heritage building, for advice.
Section 11(2) mentions that subject to the provision of sub section (1), the function of the Commission shall be (i) to draw out programme on preparing a classification of buildings in certain grades of heritage buildings after scrutinizing applications and proposals received, including supplementing the existing list of buildings as well as all other matters relating to heritage conservation.
The powers of the Commission are primarily to give advice to the State Government or the local authorities.
Section 11(3) mentions that notwithstanding anything contained in any other law for the time being in force, no local authority shall take any step for identification, preservation, conservation or restoration of any heritage building, not consistent with the determination or advice of commission.
As the building in question was already declared as a heritage structure by the expert body of the Corporation long ago, accordingly, there was no question for further identification by the Commission. According to the said provision the Corporation being the local authority could not have taken steps for preservation, conservation or restoration of the heritage building inconsistent with the determination or advice of the Commission.
26
The Court fails to fathom as to wherefrom the two members of the Commission got the power to sit in appeal and reverse a decision taken by a validly constituted Heritage Conservation Committee of the Corporation. Two members of the Commission simply usurped the power of twenty-one members. The same appears to be hyper activism on the part of the Commission.
The Corporation is desperately trying to safeguard its action under the shadow of the Commission. The provisions of Chapter XXIIIA of KMC Act, 1980 have neither been suspended or superseded by any other law, till date. In fact, on perusal of the aforesaid two sets of laws it is crystal clear that they go hand in hand and operate in two different fields. Their powers and functions are absolutely separate and distinct. There is no conflict between the two laws.
The private respondents have alleged mala fide on the part of the petitioners in presenting the writ petition. It has been submitted that one of the petitioners happens to be a close relative of a director of a construction Company who developed a portion of the original property by constructing the adjacent building Tripura Enclave. The said construction Company entered into an agreement to develop the remaining portions of the property but as the said agreement stood terminated and the work of construction did not materialise, the said construction Company has set up the petitioners to put a spanner in the work of construction. Reliance has been placed upon the order dated 14th January, 2021 passed in WP No. 388 of 2018 when a similar writ petition filed by the competing developer Gopal Bajoria, Director, Mayawati Trading Pvt. Ltd. stood dismissed by a coordinate Bench of this Court.
The writ petition filed by Mayawati has failed for the reasons mentioned in the order passed therein. There may be a commercial angle to the said writ. Applying the same ratio in the present case alleging that one of the petitioners happens to be a relative of the Director of the said Mayawati, would be in my opinion, stretching 27 the locus standi issue a bit too far. The present petitioners in their individual capacity can maintain a writ petition challenging any act of the respondent authority if the same appears to be contrary to law.
It is the time tested proposition of law that a decision is a precedent on its own facts. Factual background of the case is extremely vital for adjudging whether the ratio of a particular case will be applicable in another case or not. Facts of Mayawati (supra), in my opinion, do not fit into the facts of the present case, and accordingly, the order passed therein will not act as precedent to decide the present case.
The scope of judicial review of any decision taken by an expert body is very minimal. Several decisions have been relied upon by the respondents and especially the private respondents to address the issue. It has been contended that the Court ought to exercise judicial restraint especially when the expert body dealing the matter has sanctioned the plan for making construction.
There can be no two opinions about the above proposition. Admittedly, in the present case plan has been sanctioned by the KMC and permission has been given by the Fire and Emergency Services. But the manner in which the plan got to be sanctioned raises genuine doubts in the mind of the Court as regards its sanctity. A decision which is required to be taken collectively by a statutory body of twenty-one members was in fact taken by only two members, in great haste, without waiting for the formation of the Commission, even after an expert body i.e, the Heritage Conservation Committee of the KMC flatly refused to entertain the prayer of the owner to permit construction. In judicial review of a decision taken by a statutory body the Court is concerned more about the decision making process and not the decision per se. The decision making process does not appear to be sacrosanct. It is for this reason that the Court intends to exercise jurisdiction in the matter. 28
It is not only the initial action of the West Bengal Heritage Commission that is disturbing and troubling the Court but also the subsequent action of the KMC to relax the building Rules to permit construction. Had the Commission not approved the proposal for making construction allegedly on the ground of permitting 'earnings' from the heritage property by making construction thereon, the consequent action of KMC for relaxation of the Building Rules would not have arisen. The Mayor of KMC ought not to have been a party to the proposal approving construction as the expert body of KMC with regard to heritage structures rejected the same proposal on an earlier occasion. There being no change in circumstances, the said rejection ought not to have been reversed without a pressing need warranting such reversal.
It is understandable as to why KMC remained a mute spectator to fudging with the heritage structure of the premises even though the same was refused by the Heritage Conservation Committee. As the Mayor of KMC was a signatory to the decision to approve the plan proposal for making construction over the heritage property, accordingly, KMC lost its voice to raise any objection to the same.
The provision of Section 7 of the Act of 2001 is not under challenge in the instant proceeding. But there is no doubt in the mind of the Court that the decision to approve the proposal for construction was based upon extraneous consideration rather than for the purpose of preserving the heritage structure. The decision was taken in hot haste and in the absence of the members of the Commission. The owner of the property was primarily interested in 'earning' and the developer of the new construction was also interested in earning by developing the said property. The importance and the reason for preservation of a Grade-I heritage structure took a back seat and 'earnings' from the same became the deciding factor. Money power was strong enough to blow the rulebook away. The collusion between the owner, developer and the respondent authorities is glaringly apparent from the records. 29
The Hon'ble Supreme Court in Supertech Limited vs. Emerald Court Owner Resident Welfare Association and Ors., reported in (2021) 10 SCC 1 held that illegal construction has to be dealt with strictly to ensure compliance with the rule of law. A breach by planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Hence, the law must step in to protect their legitimate concerns. Construction made on the basis of sanction, contrary to the provisions of law affects the right of enjoyment of the property by persons residing in a residential area. It is the bounden duty of the municipal authority to ensure that the area is not adversely affected by unauthorized construction.
It is the settled proposition of law that if a matter is required to be done in a particular manner, the same has to be done in that manner or not at all. When the Act of 2001 prescribes that the Commission shall consist of not less than twenty- one members and the Regulations of 2004 lays down a quorum of seven members, any decision taken by only two members of the Commission is non est and absolutely bad in law.
The alleged notification dated 11th September, 2014 also cannot come to the aid of the Commission. It is very well settled that the Act always prevails over Rules/Regulations or notifications. Any notification published contrary to the provisions of the Act cannot stand in the eye of law. The composition of the Commission is clearly mentioned in the Act. The same could not have been changed/ modified/ altered by way of a notification.
If the initial decision to approve the plan proposal for construction is arbitrary and bad in law, then the subsequent follow up steps taken in the matter falls flat. The Court is more than convinced that the initial decision of the Heritage 30 Commission to approve the plan proposal for construction was bad ab initio and accordingly any steps taken further thereto do not have any legs to stand upon.
There is a provision in the KMC Act whereby the Municipal Commissioner if satisfied on receipt of information that the owner of the heritage building fails to preserve and conserve the heritage building, may take over the management and control of the said building. Such was not the case made out by the owners. The sole idea was to make money from the heritage property. In reality, parts of the heritage structure i.e, the gate, portico, fountain, driveway, garden etc. had to be demolished for allowing the construction to be made. Firstly, permitting the heritage structure to be demolished and thereafter directing reconstruction is starkly contrary to conservation and preservation of the heritage structure. Instead of protecting the heritage structure, the same was permitted to be brought down to facilitate the new construction.
Accounts were not placed before the Court. The amount required for maintenance, preservation and control of the said property has not been disclosed. The amount of revenue generated from sale of the newly constructed multi-storey building has also not been revealed. But the fact that the property is situated in a very prime location is enough to conclude that a fair amount of money has exchanged hands.
At the time of admission and initial hearing of the writ petition the Court by order dated 23rd April, 2018 directed that the construction made during pendency of the writ petition shall abide by the result of the same. The owner and the developer were certain that they would be able to overcome the legal hurdle and accordingly took the risk of continuing with the construction work and the same is nearing completion by now.
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This is a fit case where order of demolition of the new construction ought to have been passed. In usual course, the Court would have passed order for demolition of the entire construction, but keeping in mind that the matter relates to a heritage building and the work of demolition may cause more harm than good to the heritage structure, the Court exercises judicial restraint. The Court feels that it is the duty and obligation of the citizens to preserve and conserve their heritage and to ensure that the same is preserved strictly in the manner laid down in law.
The newly constructed building has resulted in felling of a good number of trees and greenery of the area. It is the turn of the owner and developer both to compensate the wrong committed by them by parting with a portion of their 'earnings' for maintaining the green coverage. As many as twenty-two flats were constructed over the heritage building. The owner as well as the developer are directed to deposit a sum of rupees one crore each on account of each flat that has been constructed, i.e, the owner is required to pay rupees twenty-two crore and the developer has to put in rupees twenty-two crore, totalling rupees forty-four crore.
Fifty percent of the aforesaid amount i.e, rupees twenty-two crore shall be deposited before the Director General, Parks and Squares, KMC within 15th June, 2022 who is directed to deposit the amount in a separate interest bearing nationalized bank account. Out of the aforesaid sum, the Director General shall spend not more than twenty-five lac rupees every financial year for planting trees in the ward where the heritage structure is located and maintaining the same.
The balance amount of rupees twenty-two crore shall be deposited before the Principal Secretary, Department of Sundarban Areas within 15th June, 2022 who is directed to deposit the amount in a separate interest bearing nationalized bank account. Out of the aforesaid sum, the Principal Secretary shall spend not more than twenty-five lac rupees every financial year for planting trees and maintaining 32 the same. The said amount will be utilised solely for afforestation and increasing the green coverage of the Sundarban area.
The said fund will not be utilised for any other purpose apart from afforestation.
The Director General, Parks and Squares, KMC and the Principal Secretary, Department of Sundarban Areas are directed to maintain proper book of accounts, duly audited, in support of the expenditure made. Both the authorities shall strive to plant trees that will develop and maintain the green cover and reduce pollution. The authorities shall maintain proper records of the trees planted and ensure that the percentage of greenery keeps increasing every year. The authorities shall prepare a yearly report of the expenditure and the details of the trees planted and submit the same before the Registrar General of this Court within 30th June every year. The Registrar General is directed to place the said report before this Bench immediately thereafter.
On failure to deposit the aforesaid amount, KMC is directed to take steps for stopping any further construction over the said property and the KMC is restrained from issuing the Completion Certificate in respect of the newly constructed structure notwithstanding the fact that all formalities for issuance of the Completion Certificate is complied. The owner and developer will also not be permitted to transfer the newly constructed flats to the prospective buyers.
It is made abundantly clear that payment of the aforesaid amount will not give a stamp of sanction to the construction that has been made. The same shall also not be construed as a means or mode to regularise the construction so made. Message should go out loud and clear to all concerned that tweaking Rules for obtaining sanction plan does not pay in the long run. The manner in which the building rules are flouted, with impunity, at the instance of the people in position 33 and power with the aid, assistance and connivance of the builders, promoters and developers is a matter of concern and if the same is not nipped at the bud it will grow up in magnanimous proportions in no time. Law is meant to be complied in its strict sense otherwise there will be no rule of law and the entire system will collapse leading to the breakdown in the State machinery. The judiciary will not fail in its duty to protect the rights of the citizenry and uphold the law.
As the Court has come to a considered opinion that both the members of the Commission acted as public servants at the time of adopting the resolution to permit construction and both acted hand in gloves with the owner and developer and triggered the process of sanction of the building plan by approving the proposal for making construction over a Grade I heritage structure, accordingly, they are liable to be dealt with appropriately in accordance with law. It is evident from records that the proposal was approved for the sake of 'earnings' from the said property. It does not at all appear that the members of the Commission acted in good faith and in the interest of preservation, conservation and restoration of the heritage structure.
In such facts and circumstances the Court feels it expedient to direct investigation in the matter to unearth the money trail involved in obtaining the approval of the plan proposal for making construction over a Grade I heritage property. The investigation shall be carried out under strict supervision of the Regional Head, Central Bureau of Investigation. It will be open for the investigating officer(s) of the Central Bureau of Investigation to peruse the original records and documents pertaining to the sanction of the building plan by the Kolkata Municipal Corporation which are lying in the safe custody of the Registrar, Original Side of this Court and the records and documents lying in the office of the Heritage Commission. The members of the Heritage Conservation Committee, the officers of the Kolkata Municipal Corporation involved with the sanction of the building plan, 34 the concerned members of the Heritage Commission, the owner, developer and the representatives of the petitioners are directed to render all sorts of cooperation and assistance to the investigating officer(s) of the Central Bureau of Investigation for conducting the investigation. The investigation report shall be submitted in a sealed cover before the Registrar General of this Court within 20th June, 2022 and the same shall be forwarded before this Bench immediately thereafter.
The Registrar General in-Charge is directed to immediately transmit a copy of this judgment to the Regional Head, Central Bureau of Investigation for compliance.
Let the writ petition appear in the list on 27th June, 2022 under the heading 'to be mentioned' to review development in the matter and for passing further order.
All the connected applications stand disposed of.
Urgent photostat certified copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Amrita Sinha, J.) Later:-
The respondents pray for stay of the operation of the portion of the judgment where the investigation has been directed to be conducted. Prayer for stay is considered and rejected.
Stay has also been prayed for by the owners and developers regarding deposit of the money as directed by the Court. Such prayer is also considered and rejected.
(Amrita Sinha, J.)