Calcutta High Court
Purti West Enclave Private Limited & Anr vs Kolkata Municipal Corporation & Ors on 31 March, 2016
Author: I.P. Mukerji
Bench: I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
W.P. No. 146 OF 2010
Purti West Enclave Private Limited & Anr.
Vs.
Kolkata Municipal Corporation & Ors.
For the petitioners:- Mr. Mainak Bose
Mr. Prantik Gorai, Advocates
For the KMC :- Mr. Aloke Kr. Ghosh
Mr. Biswajit Mukherjee
Mr. Gopal Chandra Das, Advocates
Judgement On: - 31st March, 2016
I.P. MUKERJI, J.
On 6th October, 1997, the Government of West Bengal constituted an Expert Committee to identify heritage buildings in the Kolkata Municipal Corporation area. With effect, from 22nd December, 1997, the Kolkata Municipal Corporation Act was amended by adding various sub-Sections to Section 425.
Now, certain provisions, newly introduced by amendment are of great significance. The Heritage Committee was to have a specific constitution. This committee would make a recommendation, identifying heritage buildings to the Mayor-in-Council, under Section 425B. The Mayor-in- Council was required to examine the recommendation. If it agreed with the recommendation made by the Heritage Committee it would refer the matter to the Corporation for final approval.
Declaration of a building as heritage has a great impact on its owner. Under Section 425A he cannot change the use of the building. He has to "maintain, preserve and conserve it". This obligation is attached to each and every subsequent owner of the building. Therefore it is just not possible to sell or otherwise transfer the heritage building, easily. In September, 1998 this Expert Committee submitted its final report to the government. In the report, premises No. 22 Park Street was included in a list of Heritage Buildings, appended to it. Incidentally, our High Court was also included in that list. The reason why 22 Park Street was recommended to be declared as a heritage building is very shortly stated against serial no. 130 of the appendix to the report dealing with buildings according to their architecture. It is this: "part of the building extends over portico, arcuated, two floors". The recommendations that were made by the Expert Committee were to be sent to the Kolkata Municipal Corporation for consideration, in view of the 1997 amendment. This was decided in a high level meeting held on 1st December, 1998. On 17th April, 2000 the Heritage Committee constituted under the amended provisions recommended 828 building 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 in the Municipal Corporation 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 in the Municipal Corporation meeting.
All these buildings were included in the report of the Expert Committee. On 30th August, 2001 the Municipal Commissioner informed the Official Receiver , in whose charge was 22 Park Street that the building had been declared a Heritage Building and that before undertaking any addition, alteration, modification or development thereof the same may be intimated to the Chief Municipal Architect and Town Planner for getting the clearance of the Heritage Conservation Committee. From the records one finds a letter dated 8th April, 2008 of the Municipal Corporation with a copy to the Official Receiver stating that the said premises had been declared as a Heritage Building.
It seems that a Heritage Conservation Committee was in existence before amendment of the said Act in 1997 and it took a resolution on 23rd June, 2006, approved by the Mayor-in-Council on 30th June, 2006, making a gradation of Heritage Buildings in to Grade-I Grade-IIA Grade-IIB. On 12th January, 2009 the Heritage Conservation Committee constituted under the amended Act accepted this resolution. On 22nd January, 2009 the Mayor-in-Council accepted it. On 25th February, 2009 the recommendation of the Mayor-in-Council dated 22nd January, 2009 was approved at the Municipal Corporation meeting.
Now, the said premises no. 22 Park Street, Kolkata -16 belongs to the estate of Sm. Goulup Dassi. It is a debutter property and was under the Official Receiver, High court. He published the terms and conditions for leasing out this property. It was described to be of about 18 cottahs, fully tenanted and/or occupied. The lease would be on "as is where is basis". The lessee was given the right to construct a new building within 18 months of receiving possession and handover the ground floor or first floor of an area of 500 sq.ft. to the managing shebaits to be used for office purpose, for assembly of the shebaits and devotees and for prayer speech.
On 9th April, 2008 this Court passed an order concluding the grant of a 99 years' lease in favour of the petitioners on payment of Rs. 10.5 crores as premium, Rs. 50 lacs as cost of construction of a temple and payment to Rs. 51,000/- per month as rent.
According to the petitioners it was only in 2009 that they came to know through a communication of the Kolkata Municipal Corporation that the premises had been declared as heritage. They made an application in this Court G.A. 1819 of 2009 connected with old Equity Suit No. 1 of 1842 for setting aside the sale. On 15th July, 2009 this court passed an order restraining the Official Receiver from disbursing the lease premium or the rent.
According to the petitioners they are innocent purchasers. Mr. Bose, learned Advocate for the petitioners submits that the building was declared as a heritage building by the Expert Committee which was constituted before coming into force of the amended Kolkata Municipal Corporation Act on 22nd December, 1997. The constitution of the committee on 6th October, 1997 was an administrative decision. It did not have the force of law. This committee submitted its final report in September, 1998 when the amended Act had come into force. Although the amended Act had come into force, this recommendation was not made under the amended act but further to the administrative decision dated 6th October, 1997 taken prior to the amendment. It had no binding effect. He also said that although the Kolkata Municipal Corporation had referred the recommendation of this Expert Committee to the Heritage Committee constituted under the amended Act, the said committee was not properly constituted, as required by the Act. Under Section 425D, the committee had to have the following constitution:
425D. Heritage Conservation Committee:- (1) The Mayor- in-Council shall constitute a Committee to be called the Heritage Conservation Committee with the Municipal Commissioner as its Chairman and an officer of the Corporation as its Convenor.
(2) The Committee shall have, in addition to the Chairman and the Convenor, seven other members of whom--
(a) one shall be a nominee of the Calcutta Metropolitan Development Authority.
(b) one shall be the Director of the Development of Archaeology, 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 Government while dealing with any land or building under the management of the said department.
(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 Conservation Committee at its meeting.
Therefore, any recommendation made by this committee endorsing the recommendation of the Expert Committee was invalid in the eye of law. Furthermore, this committee and also the Mayor-in-Council had merely put their rubber stamp on the recommendation of the said Expert Committee. They had not applied their mind. For this reason, the recommendation was invalid. Hence, the declaration of the subject building as a heritage building was also invalid.
On the other hand, Mr. Ghosh, learned advocate for the Kolkata Municipal Corporation submitted that the recommendation of the Expert Committee had been validly endorsed by the Heritage Committee and by the Mayor-in-Council under the amended Act. They had duly applied their mind and adopted the recommendation of the Expert Committee. The Official Receiver was duly informed by the Municipal Commissioner about the declaration of the subject building as a heritage structure. With full knowledge of this, he advertised the property for sale. The purchaser was also aware of this. Now they cannot say that the building was illegally declared as heritage.
During the course of hearing of this matter, Mr. Ghosh handed up to this Court some papers showing inter alia a chronological sequence of events relating to the recommendation of building, contained in a list prepared by the Expert Committee, as heritage building, its acceptance by the Mayor-in-Council, the Municipal Corporation at its meeting, after the amendment. It also had information about the gradation of these buildings.
Furthermore, according to Mr. Ghosh there was a machinery provided in the Act under Section 425-O for delisting or declassifying a building. The petitioners, instead of invoking the writ jurisdiction of this Court would be better advised to invoke the above provisions of the Kolkata Municipal Corporation Act, 1980 to revoke the declaration of this building as heritage.
Now, I come to the report of the Expert Committee on heritage buildings constituted on 6th October, 1997. This report was published in September, 1998. Against serial no. 55 of annexure D-2, our High Court was declared as a heritage building. Very interestingly this Court was classified as a political establishment along with Writers' Buildings, Presidency Jail, Hastings Police Station, Town Hall and so on. In the appendix to the report there was a description of buildings noted for their architectural style. Against serial no. 130, 22 Park Street was declared as heritage building. The reason why the building was being declared as heritage was contained in the remarks column in the following manner:
"part of the building extends over portico, arcuated two floors. The Oxford dictionary defines "arcuated" as "curved". The word is identified as a technical expression.
The issue whether the High Court at Calcutta had been properly declared as a heritage building was considered by a Division Bench of our High Court comprising of Mr. Justice Jyotirmay Bhattacharya and Mr. Justice Debi Prosad Dey in Partha Ghosh v. Hon'ble High Court at Calcutta (W.P. No. 213 of 2015) reported in 2016 (1) CHN 329. To provide air conditioning in the office rooms of the High Court and also in the rooms used by the bar, the High Court administration in consultation with and with the approval of the State Government had decided to install an A.C plant within the High Court. One of the points raised in the series of public interest litigations before the said Division Bench was that the High Court had been declared as a heritage building.
This new construction work was undermining this status and was also in violation of the provisions of the Kolkata Municipal Corporation Act, 1980 amended in 1997 for preservation and conservation of the heritage building. This court came to inter alia the following findings:
16. The said Expert Committee submitted its final report to the State Government on 2nd November, 1998. The report was discussed in a meeting on 1st December, 1998, which was presided over by the Hon'ble MIC, Home (Police) and I and CA Departments and attended by , inter alia, the Hon'ble MIC Urban Development Department, and the Hon'ble Mayor of Kolkata, the Principal Secretary, Urban Development Department, the Secretary, Municipal Affairs Department, the Chief Executive Officer KMDA etc. It was decided in the said meeting that the list recommended by the committee would be sent to KMC for the acceptance and for taking suitable actions towards the preservation and conservation of those heritage buildings/ sites in terms of the KMC Act, 1980 (Amendment). The KMC accepted and adopted report in principle.
17.On perusal of the said foreword we find 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 recommendation of the Heritage conservation Committee and also of the Mayor-in-Council. As a matter of fact, excepting the list of heritage building as on 25th February, 2009 published by the Kolkata Municipal Corporation no further material has been produced before us to show that such declaration was made by the Municipal authority on the basis of any recommendation of the Heritage Conservation Committee and also of the Mayor-in-
Council. In the absence of those materials we have no hesitation to hold that declaration of the heritage status of the High Court building by the Kolkata Municipal Corporation was not made by the Kolkata Municipal Corporation in adherence to the provision contained in section 425B of the said Act.
Therefore, this High Court held that the Expert Committee had declared High Court as a heritage building but that declaration had not been endorsed by the Heritage Committee constituted by the said amended Act. Hence, High Court was not properly declared as a heritage building and could not be called so, according to the judgement of the Division Bench.
As I have narrated hereinbefore, the very list of the Expert Committee in which the High Court was included also contained 22 Park Street. Apparently, if the Heritage Committee constituted under the amended Act did not declare High Court as a Heritage Building, then for the self- same reasons the declaration of 22 Park Street as a heritage building should also be declared invalid.
But the Division Bench has been very careful in saying that only the list of heritage buildings as on 25th February, 2009 was presented before the Court and that all the documents which were considered, if at all, by the Heritage Conservation Committee and Mayor-in-Council were not placed before it. The Court came to the conclusion that the High Court had not been properly declared as heritage building more as an adverse inference.
The findings of this Division Bench are certainly not res judicata. The parties are not the same. The petitioners here are different. The building is different But, in this case also apart from a statement in a list of dates that the recommendation of the Expert Committee had been accepted by the Heritage Committee and thereafter by the Mayor-in-Council and the Corporation, no documents were produced to substantiate this assertion. The Division Bench has also said that any declaration of a heritage status should satisfy the tests laid down in Section 425B. Therefore, following the reasoning in the said case decided by the Division Bench that in the absence of materials an adverse inference is to be drawn, I do tend to form the opinion that 22 Park Street was also not properly declared as a heritage building.
There is also one more issue.
In the list appended to the declaration of heritage buildings by the said Expert Committee, the reason why premises no. 22 Park Street, Kolkata- 16 had been declared as heritage was that " part of the building extends over portico, arcuated". As I have observed before, "arcuated" is a technical expression of the word "curve". "Portico" is defined as follows by the Oxford English Dictionary: " structure consisting of a roof supported by columns at regular intervals, typically attached as a porch to a building". Porch is defined by the same dictionary in the following manner: "a covered shelter projecting in front of the entrance of a building".
The subject building is declared as heritage for its architectural style, as mentioned in the heading to the appendix.
Now, the question which arises is whether this Court can sit in judgement over the opinion of the Expert Committee, declaring a building as heritage?
Let us assume for the time being that this recommendation of the Expert Committee had been duly accepted by the Heritage Committee, the Mayor-in-Council constituted under the amended Kolkata Municipal Corporation Act, 1997 and the Corporation at a meeting. Mr. Ghosh argued that if the building had been wrongly classified or it had ceased to be of public interest then the decision to declare the building as such lay with the Kolkata Municipal Corporation with the approval of the State Government under Section 425-O of the said Act. Section 425-O is in the following terms:
"425-O.When heritage building ceases to be heritage building----If the Corporation decides that any heritage building has ceased to be of public interest or has lost its importance for any reason whatsoever, it may, with the approval of the State Government, declare that such heritage building has ceased to be a heritage building for the purposes of this Act."
The wording of Section 425-O has to be carefully examined. It suggests that if in future, according to the Corporation a heritage building is shorn of public interest in it or loses its importance, it might declassify the building with the approval of the State Government. In my opinion, this Section does not deal with a case where a building has been declared as a heritage building on insufficient evidence or grounds. Chapter XIIIA which was inserted by the amending Act of 1997 seems to have granted finality to the decision of the Corporation declaring a building as a heritage property. Only when there is a change of circumstances in the future as mentioned in Section 425-O, the Corporation with the approval of the State Government can declassify the building. The two grounds are loss of public interest and loss of importance of the building. The statute has no provision for correction of an error in declaring a building as heritage, by the Corporation. Hence once a declaration is made by the Corporation, it is final and irreversible. Although the statute gives finality to the decision of the Corporation in declaring a building as heritage, it cannot, by application of the ordinary principles, escape the scrutiny of the Court in the exercise of its writ jurisdiction.
The Court is entitled to examine whether on the face of the records the building does or does not show any characteristics so as to classify it as a heritage building. It cannot go any deeper than that because it would then have to embark upon a technical exercise which has been entrusted with the committee constituted by Section 425D. The Court should not ordinarily question the wisdom of this committee. But if the error in classifying the building is palpable, the Court, in my opinion can make such a declaration.
In this particular case, the building has been declared as heritage because of its architecture.
In my opinion, the title introducing the chapter as well as Section 425B should be looked into. First of all a building should be fit enough to be declared as a heritage building. If it is fit enough it is to be preserved and conserved. A building may be architecturally imposing and beautiful. But there may be numerous other buildings of the same architecture and equally beautiful. The same kind of building may have been built over several decades. In that case there would be nothing to preserve or conserve in the building because it is very common and likely to be built again. But if the construction of a building reflects an architectural technique, which is to some extent unique and confined to a particular era, then a historian has to think whether the building is to be preserved and conserved. It is not just the architectural beauty and uniqueness that should be taken into account. Whether the building is part of our heritage should be considered. When considering the heritage of a building, its historical importance is also relevant. Therefore, the Heritage Committee in my opinion has to make a very serious deliberation before declaring a building as a heritage building. More so because when a building is declared as heritage, the owner is deprived of many of his ordinary rights of dealing with the property. Now, if one examines the reason advanced by the committee for declaring the said building as heritage, one is bound to feel very disappointed. No details are given. The owner of the building and the public are entitled to know why the building is declared as heritage. It is very common for part of the building to "extend over portico". It is also very common for a building or a portico to be arcuated or curved. Why was 22, Park Street declared as a heritage building? What is the historical importance of this building? What is the architectural significance and originality of this building? All these reasons had to be given but had not been given. It appears as if the committee went on an inspection spree of buildings of the city and tabulated hundreds of them, often without any cogent reason at all.
For these reasons also any declaration of heritage status of 22 Park Street is set aside.
In those circumstances, both the declaration of 22 Park Street as a heritage building and its classification or gradation as Grade-I is set aside.
This writ application is accordingly allowed.
Urgent 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.)