Asl West Enclave Private Limited & Anr vs Kolkata Municipal Corporation & Ors on 29 August, 2024

[Cites 11, Cited by 0]

Calcutta High Court

Asl West Enclave Private Limited & Anr vs Kolkata Municipal Corporation & Ors on 29 August, 2024

(i) Quash, rescind, recall, set aside, cancel and/or revoke the impugned classification of premises No. 22, Park Street, Kolkata - 3 700 016 as Heritage Building under Grade - I for the architectural style;

(ii) Refrain from giving any effect and/or further effect and/or taking any step and /or further step pursuant to classification of premises No. 22, Park Street, Kolkata - 700 016 as Heritage Building under Grade - I for architectural style;

(iii) Direct the Chairman, Heritage Conservation Committee to furnish the petitioner with a copy of the purported recommendation, if any, for classification of premises no. 22, Park Street, Kolkata - 700 016 as Heritage Building under Grade - I for architectural style;

(b) Writ of and/or writs in the nature of Certiorari commanding the respondents, their men, agents, servants and/or assigns to transmit to this Hon'ble Court all records relating to the classification of premises no. 22, Park Street, Kolkata - 700 016 as Heritage Building under Grade - I for architectural style and serve the same to this Hon'ble Court so that conscionable justice be rendered by quashing the same;"

4. Despite direction for exchange of affidavits having been given by the learned Single Judge, no affidavit was filed by KMC.

5. By an order dated March 31, 2016, the writ petition was allowed. The declaration of the subject property as a heritage building was set aside. 4

6. KMC preferred an intra court appeal. By a judgment and order dated August 30, 2017, the appeal was allowed by a Coordinate Bench and the matter was remanded to the learned Single Judge for consideration afresh. The operative portion of the order reads as follows:-

"It is the admitted position that in the facts and circumstances of the instant case, the writ petitioners/respondents had obtained leasehold right of the subject property by way of transfer from the Official Receiver in a Court proceeding at a point of time when the property was already declared as a heritage property/building. The learned Single Judge, without taking this aspect into consideration, has allowed the writ petition upon coming to a finding that the declaration of heritage status of 22, Park Street was liable to be set aside along with its classification or gradation as Grade-I. We are of the view that in the facts and circumstances of the instant case, the learned Single Judge ought to have at first decided on the aspect of whether the writ petitioners/respondents could at all have any locus standi to challenge the declaration of the heritage status of the building when, admittedly, such status was declared before acquiring of the property by the writ petitioner from the Official Receiver in a Court proceeding. On this ground alone, the impugned judgement and order is liable to be set aside and is accordingly set aside. The matter is remanded before the First Court for consideration afresh in accordance with law based on the pleadings which are already on record."

7. After remand, KMC filed its affidavit-in-opposition to the writ petition. 5

8. By the judgment and order impugned in this appeal, the writ petition was dismissed.

9. Alleging that such judgment and order was contrary to a judgment of a Coordinate Bench rendered in W.P no. 1151 of 2016 (Sri Bimal Chandra Saha v. The Kolkata Municipal Corporation & Ors.), ASL filed a review application. Such application was dismissed by an order dated February 28, 2019.

10. Thereafter, the present appeal was filed against the parent order dismissing the writ petition. ASL contends that since the review application was dismissed without altering the parent order in any manner, no appeal would lie therefrom. In this connection, reliance was placed on the decision of the Hon'ble Supreme Court in the case of DSR Steel (Private) Limited v. State of Rajasthan & Ors., reported at (2012) 6 SCC 782.

11. Before recording the arguments of the parties advanced before us, we may note that the learned Single Judge framed three issues for decision:-

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

(ii) If the answer to the first issue is in the affirmative and in favour of the petitioners then, has the building been duly declared as a 6 heritage building under provisions of the Kolkata Municipal Corporation Act, 1980 ?

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

12. The learned Judge decided the first issue in favour of the writ petitioners holding that ASL has the locus standi to challenge the declaration of the concerned building as heritage property. No independent appeal or cross objection in this appeal has been filed at the instance of KMC against such finding. Hence, we need not dilate on that issue.

13. On the second issue, the learned Judge held that the concerned premises was declared as Heritage property following due process of law. The writ petition was dismissed with the following observations:-

"In the facts of the present case, the premises concerned has been declared as a heritage under the provisions of the Act of 1980. The Official Receiver exercising the rights as owner of the building was given a notice of hearing. The Official Receiver did not raise any objection with regard to the declaration of the building as a heritage. The Act of 1980 contemplates a situation where a building once declared as a heritage building can be taken out of its purview. It is, therefore, open to the petitioners to approach the appropriate authorities, for cancellation of such declaration. In such circumstances, the second issue is answered in the negative, against the petitioner, by holding that the building has been duly declared as a heritage building under the provisions of 7 the Act of 1980. In view of the finding returned with regard to the second issue, no relief can be granted to the petitioners. The third issue is answered accordingly."

Argument of the appellants

14. Learned Counsel for the appellants submitted that the declaration of the subject property as heritage is not in accordance with the provisions of Chapter XXIIIA of the KMC Act of 1980 and in particular Sections 425 (B), (C) and (D) of the Act. There has neither been a Heritage Conservation Committee (In short 'HCC') within the meaning of the Act nor has the procedure prescribed under the Act been followed for classifying the subject property as a heritage building. As such, declaration of the subject property as heritage is contrary to law, unconstitutional and deserves to be set aside.

15. Learned Counsel referred to a Division Bench decision of this Court in the case of Kamal Kumar Dey v. Director General, Archaeological Survey of India, New Delhi & Ors., Reported at (2016) 1 CHN 329 wherein it was held that the declaration of the Calcutta High Court building as heritage was not in accordance with the provisions of Chapter XXIIIA of the KMC Act. It was submitted that the documents which were taken into consideration by the Division Bench in Kamal Dey's case, showed that the only exercise undertaken to classify buildings as heritage, was by an "Expert Committee" constituted by the State Government, in September, 1998. Neither the HCC nor the Mayor-in-Council ever took any step to classify the High Court building as a heritage property in accordance with the provisions of the KMC Act. It was held that HCC had merely followed what was decided 8 by the 'Expert Committee". There never was any independent application of mind either by HCC or by the Mayor-in-Council or by KMC as is required under Chapter XXIIIA of the 1980 Act.

16. Learned Counsel submitted that the 12 additional documents filed and relied upon by KMC before the learned Single Judge, reiterates the same position as was there before the Division Bench in Kamal Dey's case. Each of the documents including the minutes of the meetings of HCC, Mayor-in-Council and the Corporation, refers to the decisions taken by HCC and its sub-committee on the recommendation made by the "Expert Committee". The list prepared by the Expert Committee relates to 828 properties included the subject property. Such list was mechanically adopted and approved first by HCC, then by the Mayor-in-Council and ultimately by the Corporation.

17. It was then submitted that this Court had directed KMC to file documents to show that the HCC was constituted in accordance with the provisions of the 1980 Act. An affidavit dated September 6, 2023, was filed by KMC. That affidavit fails to disclose how the HCC was constituted or who the first members of HCC were. What is being alleged to be the HCC is not a Committee constituted in accordance with the provisions of the 1980 Act.

18. Learned Counsel then referred to the decision dated September 15, 2017, of a learned Judge of this Court, rendered in W.P. No. 1151 of 2016. In that case, the learned Judge, following the Division Bench decision in Kamal Dey's case, held that the decision of KMC declaring the concerned 9 premises as heritage was not in accordance with the provisions of the 1980 Act. Accordingly, such decision was set aside.

19. Finally, learned Counsel submitted that when a statute provides a thing to be done in a particular manner, the same must be done in that manner or not at all. The State and other statutory authorities are bound by the provisions of the concerned statute. The authorities must act within the four corners of the statute. In this connection, reliance was placed on the Privy Council decision in the case of Nazir Ahmed v. King Emperor reported at AIR 1936 Privy Council 253(1) and on the decision of the Hon'ble Supreme Court in the case of Municipal Corporation of Grater Mumbai v. Mr. Abhilash Lal & Ors., reported at (2020) 13 SCC 234. KMC's Submission

20. Referring to the documents disclosed by way of affidavits affirmed on behalf of KMC, learned Counsel for KMC made the following submission:

"(a) On or about October 6, 1997, the Government of West Bengal constituted an Expert Committee to identify and recommend buildings in Kolkata as heritage. That Committee prepared a list of buildings with the recommendation to declare the buildings as heritage.

(b) That report was forwarded to the Municipal Commissioner for taking action in accordance with the provisions of the KMC Act, 1980.

(c) In August, 1999, notices were published in "Ananda Bazar Patrika" and "The Telegraph" newspapers informing the public at large that the list of heritage buildings will be kept at different KMC offices for public inspection and objection, if any.

(d) In April, 2000, the HCC recommended 828 numbers of buildings for being listed as heritage. One of such buildings is the subject premises.

(e) In May, 2000, the Mayor-in-Council primarily accepted the recommendation of HCC. In September, 2000, the recommendation of the Mayor-in-Council was approved at a meeting of KMC.

(f) In October, 2000, HCC reviewed the earlier list and recommended 520 more buildings to be listed as heritage. The same was accepted by the Mayor-in-Council in January, 2001.

Subsequently, KMC approved the same at its meeting.

(g) It appears from the minutes of the meeting of HCC held on January 12, 2009, that by a resolution of HCC dated June 23, 2006 and approved by the Mayor-in-Council on June 30, 2006, a sub-committee was constituted. That sub-committee determined the Grades of the heritage buildings based on historic importance, social significance and architectural significance of the buildings. The sub-committee placed its final list of heritage buildings for Grade - I, Grade -IIA and Grade- IIB before the HCC. At its meeting held on January 12, 2009, HCC accepted that final list of heritage buildings. That list was subsequently placed before the 11 Mayor-in-Council on January 22, 2009, which recommended acceptance of the aforesaid final list of heritage buildings. At its meetings dated February 25, 2001, the Corporation accepted the final list."

21. Learned Advocate submitted that KMC declared the concerned buildings including the subject premises as heritage strictly adhering to the provisions of Chapter XXIIIA of the KMC Act. He said that the "Expert Committee's" report was duly scrutinised and considered by the HCC before the same was adopted and approved. Thereafter, HCC's recommendation was placed before the Mayor-in-Council which considered and approved the same. Finally, the KMC at its meeting accepted the recommendation of the HCC as approved by the Mayor-in-Council. There was no procedural lacunae in so far as declaration of the concerned properties as heritage is concerned.

22. Learned Counsel then argued that before the Division Bench in Kamal Dey's case, the 12 crucial documents which have been disclosed by KMC by way by its affidavit dated September 6, 2023, were not there. The Division Bench did not have the opportunity of considering the said documents. In that background, the Division Bench held that the Corporation did not form any independent opinion that the High Court building should be preserved and conserved for historical, architectural, environmental or ecological purpose on the basis of the recommendation of the HCC and also of the Mayor-in-Council. The Division Bench went on to hold that no material had been produced before it to show that declaration of the High Court building 12 as heritage property "was made by the Municipal Authority on the basis of any recommendation of HCC 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 provisions contained in Section 425 B of the said Act." Learned Advocate submitted that the decision in Kamal Dey's case would not apply to the facts of the present case.

Court's view

23. Before considering the arguments made on behalf of the parties, let us note the relevant provisions of the KMC Act, 1980:-

"S.2(42A). 'heritage building' means any building of one or more premises, or any part thereof, which requires preservation and conservation for historical, architectural, environmental or ecological purpose, and includes such portion of the land adjoining such building or any part thereof as may be required for fencing or converting or otherwise preserving such building, and also includes the areas and buildings requiring preservation and conservation for the purpose as aforesaid under sub-clause (ii) of Clause (a) of sub- section (4) of Section 31 of the West Bengal Town and Country (planning and Development) Act, 1979 (West Ben. Act XIII of 1979); S.425B. Power of Corporation to declare a building as a heritage building.__ Where the Corporation, on the recommendation of the Heritage Conservation Committee and also of the Mayorin-Council, is 13 of the opinion that any building in Kolkata should be preserved and conserved for historical, architectural, environmental or ecological purpose, it may declare such building as a heritage building :

Provided that during the period when any proposal for declaring building as a heritage building is under consideration of the Heritage Conservation Committee or the Mayor-in-Council, no owner of such building, or no lessee or sub-lessee to whom such building has been leased out, shall transfer such building by way of sale, lease or mortgage without the prior approval of the Municipal Commissioner. S.425C. Gradation of heritage building.__ The gradation of a heritage building according to its historical, architectural, environmental or ecological purpose shall be such as may be prescribed.

S.425D. Heritage Conversion Committee - (1) The Mayor-in-Council shall constitute a Committee to be called the Heritage Conversion Committee with the Municipal Commissioner as its Chairman and an officer of the corporation as the Convenor.

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

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

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

(c) one shall be an eminent architect,

(d) one shall be an artist, 14

(e) one shall be an environmentalist,

(f) one shall be a historian, and

(g) one shall be the Chief Valuer and Surveyor of the Corporation. (3) The Committee may co-opt one person to be nominated by the concerned department of the State governed while dealing with any land or building under the management of the said. (4) The Committee shall, in accordance with the provisions of this Act and the rules and the regulations made thereunder, scrutinize every application or proposal for declaration of a building as a heritage building and recommend to, and also advice, the Mayor-in-Council in respect of the preservation and conservation of such building as a heritage building.

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

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

S.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."

24. The main argument on behalf of the appellants has been that the decision of KMC to declare the subject premises as heritage property, was not taken following the procedure prescribed by Chapter XXIIIA of the KMC Act, 1980 and in particular Sections 425B, 425C and 425D of the Act. There was no independent application of mind, by HCC before it accepted the list of heritage properties in Kolkata prepared by the Expert Committee constituted by the Government. It was further argued that HCC was not constituted in terms of Section 425D of the KMC Act. It was submitted that Section 425(D)(4) of the Act required HCC to apply its mind to each individual property before putting a heritage tag on it. This was not done.

25. Be it noted here that exactly the same argument as recorded above was advanced on behalf of the appellants/writ petitioners in APO No. 86 of 2023 (CHANDRA UDYOG AND ANOTHER. V. KOLKATA MUNICIPAL CORPORATION & OTHERS.). That matter and the present appeal were heard before us analogously. Today itself, we have delivered a judgment dismissing the appeal of CHANDRA UDYOG after rejecting the arguments advanced on its behalf. That judgment, on the above mentioned aspects of the matter will also govern this case.

26. The appellants' contention that KMC did not follow the statutory provisions in the matter of declaring the concerned property as heritage, does not appear to have any substance. As noted above, an affidavit was filed before us on behalf of KMC affirmed on September 6, 2023. Copies of various internal documents including minutes of meetings of HCC, Mayor- 16 in-Council and the Corporation have been annexed to such affidavit. It would appear from the said documents that to facilitate the process of identifying properties which should be preserved and conserved for historical, architectural, environmental or ecological purpose, the State Government, in the year 1997, constituted an Expert Committee. The members were eminent persons from various walks of life including a noted historian, a well-known artist and an architect. The Expert Committee submitted its report in the year 1998, recommending 828 numbers of buildings for being listed as heritage. One of such buildings is the premises in question in the present proceeding.

27. In April 2000, HCC accepted and approved the recommendation made by the Expert Committee. From the documents disclosed by KMC, it would appear that HCC approved the Expert Committees' recommendation only after considering and discussing the same. Specific properties were discussed. There were deliberations concerning various properties. A sub- committee was constituted by HCC for "scrutinising and revisiting" each of the listed heritage buildings. The same was done. It does not appear that HCC mechanically and without any independent application of mind blindly adopted the recommendation of the Expert Committee constituted by the Government for identification of heritage properties in Kolkata. HCC forwarded its recommendation to the Mayor-in-Council.

28. In May, 2000, the Mayor-in-Council, primarily accepted HCC's recommendation. In September, 2000, the Corporation accepted the recommendation of the Mayor-in-Council.

29. In October 2000, HCC reviewed the earlier list and recommended 520 more buildings to be listed as heritage. The same was accepted by the Mayor-in-Council in January, 2001. Subsequently KMC approved the same. Hence, it appears that the list of heritage properties was prepared in accordance with the provisions of Chapter XXIIIA of the KMC Act, 1980.

30. In so far as the constitution of HCC is concerned, from the documents disclosed with the aforesaid affidavit of KMC, it appears that the HCC was constituted in accordance with the provisions of Section 425D of the KMC Act. From Item no: M1183 dated January 24, 1998, extracted from the relevant Official Book/ Registrar of KMC, it appears that the Heritage Conservation Committee was constituted with the following members:-

CHAIRMAN : Municipal Commissioner (as prescribed by the KMC Act) CONVENOR : Municipal Architect & Town Planner (as a C.M.C Officer) MEMBERS:

1) Representative of the CMDA (in terms of the Act)

2)Director, Department of Archaeology, Govt. of West Bengal or his nominee.

3) Eminent Architect: Prof. Samir Rakshit.

4) An Eminent Artist: Sri Chintamoni Kar.

5) An Environmentalist: A representative from the Environment Department, Govt. of West Bengal, Dr. Deb Kumar Bose.

6) A Historian: Prof. Barun Dey.

7) Chief Valuer & Surveyor of the Corporation The aforesaid Item was placed before the Mayor-in-Council which approved the same.

31. Hence, we do not see any illegality or lacunae in the constitution of HCC.

32. Another reason for not allowing the prayers in the writ petition is as follows. A public interest litigation has been filed by a body called India National Trust for Art and Cultural Heritage (in short 'INTACH'), being W.P. No. 12676 (W) of 2019. The main contention of the petitioners in that writ petition is that KMC is down-grading heritage properties classified under a particular grade arbitrarily and without following due process of law. In that writ application an interim order was passed on July 26, 2019, by a Coordinate Bench, in terms of Prayers (j) and (k) of the writ petition. Those prayers are set out below:-

"(j) An order of injunction restraining the respondents above named and/or each one of them from giving any effect to any decision of downgrading/delisting any other buildings during the pendency of this instant writ petition,

(k) An order of injunction restraining the respondents above named and/or each one of them from causing any demolition of any building that has been downgraded/delisted or any demolition whatsoever of any building that was once declared as heritage 19 building and has now presently been downgraded/delisted during the pendency of this instant writ petition."

33. We are told that the aforesaid writ petition is still pending and the said interim order is still in operation. In other words, KMC continues to suffer an interim order restraining it from giving effect to any decision it might have taken to down grade or de-list any building which was declared to be a heritage property. If we allow the prayers may be in the instant writ petition which have been set out hereinabove, such order would be in direct conflict with the interim order that is in force in W.P.A. NO. 12676 of 2019. Such a situation cannot be countenanced as the same would be contrary to judicial decorum and would amount to judicial anarchy.

34. As regards the decision in the case of Kamal Dey, we agree with the learned Advocate for KMC that the decision cannot be taken to be an authority for the proposition that the composite decision of KMC to declare certain properties in Kolkata as heritage, is bad in law in its entirety. The Division Bench clearly recorded that sufficient material was not placed before it to show that there was independent application of mind by HCC and the Mayor-in-Council as also the Corporation on the issue of classifying properties as heritage. Hence, the said decision or the decisions rendered by learned Single Judges of this Court following that decision, do not advance the case of the appellants to any extent. As noted above, we have been shown documents which demonstrate application of mind by HCC and the Mayor-in-Council.

35. Having said all of the above, we are not oblivious of the importance of a citizens' right to property. Such a right may not be a fundamental right any more. However, it is still a valuable Constitutional right enshrined in Article 300A of the Constitution of India and has come to be recognised as a human right. Once the heritage tag is put on a property, the right of the owner of the property to deal with it becomes severely restricted. For example, a Grade - I Heritage property cannot be touched at all. The owner cannot reconstruct the property or do anything which will alter the external appearance of the property. I am of the view that before a property is declared as heritage, the owner thereof should be afforded an opportunity of showing cause as to why such course of action should not be adopted. Preferably, an opportunity of hearing should be granted to the owner. Since, marking a property as heritage has adverse civil consequences for its owner by curtailment of his right and / or freedom to deal with the property in the manner he wishes, the salutary principles of natural justice require that the owner be granted an opportunity to raise his objection to KMC's proposal to declare his property as heritage.

36. Section 425-O of the KMC Act permits a property owner to approach KMC for excluding his property from the heritage list. The appellants will be at liberty to make appropriate application/representation before the competent authority in KMC within one month from date for removing the heritage tag from the concerned property or for appropriate down-gradation. If such a representation is made, the same shall be decided by the competent authority, by passing a reasoned order in accordance with the 21 applicable law, within three months from the date of receipt of the representation/ application, after granting an opportunity of hearing to the appellants or their legal representative.

37. A question may arise as to whether even the course of action indicated above will not be contrary to or in conflict with the interim order dated July 26, 2019 passed in INTACH's writ petition being W.P. No. 12676 (W) of 2019. In my opinion, there will be no such problem. By an order dated March 30, 2022, passed in INTACH's writ petition and two interlocutory applications filed therein by two property owners challenging the heritage tag, a Coordinate Bench in effect clarified that there would be "no impediment to individual writ applications or any other proceeding by the said parties proceeding in their own way". The effect of such order appears to be that a property owner may approach the competent authority in KMC requesting for removal of the heritage tag from the property or appropriate down-gradation. The interim order which is in operation in INTACH's writ petition would not stand in the way of the KMC authorities considering such a request / representation and taking a decision thereon. However, such decision cannot be given effect to without the leave of the Coordinate Bench which is in seisin of W.P.A 12676 of 2019 in which the interim order of restraint, as indicated above, continues to operate.

38. With the aforesaid clarifications, the appeal and the connected application stand disposed of. There will be no orders as to costs. 22

39. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all the requisite formalities.

(ARIJIT BANERJEE, J.) I agree.

(APURBA SINHA RAY, J.)

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