Calcutta High Court
Company Ltd. & Ors vs State Of West Bengal & Ors on 5 May, 2010
Author: Dipankar Datta
Bench: Dipankar Datta
1
G.A. No.3301 of 2009
W.P. No.377 of 2009
IN THE HIGH COURT AT KOLKATA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present : The Hon'ble Justice Dipankar Datta
Damodar Ropeways & Construction
Company Ltd. & ors.
...Petitioners
Vs.
State of West Bengal & ors.
...Respondents
For the petitioners : Mr. S.K. Kapoor, Sr. Advocate
Mr. Samit Talukdar, Sr. Advocate
Mr. Jishnu Saha, Advocate
Mr. Ashis Mukherjee, Advocate
Mr. Sandip Agarwal, Advocate
For the respondents 2 and 3 : Mr. Pulak Ranjan Mondal, Advocate
For the respondent no. 4 : Mr. Alok Kumar Ghosh
Mr. Swapan Debnath
Mr. Debangshu Mondal
For the respondents 5 and 6 : Mr. Siddhartha Mitra, Sr. Advocate
Mr. Biswaroop Bhattacharya, Advocate
Mr. Anil Dhar, Advocate
Hearing concluded on : 2.3.2010
Judgment on : 5.5.2010
2
This writ petition is at the instance of 19 petitioners. Of them petitioners 1, 3, 5, 6, 8, 10, 11, 13, 14, 16 and 18 are companies incorporated under the Companies Act, 1956. The rest of the petitioners are directors and principal officers of the aforesaid petitioner companies.
Challenge in this writ petition is to the declaration of premises no.14A, D.L. Khan Road, Kolkata 700025 (hereafter the said property) as a heritage site by the West Bengal Heritage Commission (hereafter the Commission), in its 15th meeting conducted on 30.10.2006.
A preliminary objection in respect of locus standi of the petitioners to challenge the declaration made by the Commission having been raised by Mr. Mondal, learned Advocate appearing on its behalf and by Mr. Ghosh, learned Advocate for the Kolkata Municipal Corporation (hereafter the Corporation), I propose to consider the same first. Obviously, if the preliminary objection is sustained, I may not have to consider the merits of the claim raised in the writ petition.
For deciding the preliminary objection, the genesis of the dispute as revealed from the writ petition and the counter affidavit of the respondents 5 and 6, being the Royal Calcutta Turf Club and the Turf Properties Pvt. Ltd. respectively, may be noticed.
The said property is owned by respondent no.6. It measures 45 cottah 7 chittaks and 34 sq.ft. (approx.). It is situated in ward no.87 of the Corporation and within the jurisdiction of Bhowanipore police station.
The respondent no.5 is an unincorporated members club. respondent no.6 3 is a company promoted by the respondent no.5 for, inter alia, holding and managing its immovable properties. The directors of the respondent no.6 are appointed from amongst the stewards of the respondent no.5.
There is a strip of land measuring about 5 ½ cottahs (approx.) (hereafter the said strip of land) in front of the said property. By a letter dated 29.11.1995 addressed to the Commissioner of the Corporation, the Secretary and Chief Executive Officer of the respondent no.5 offered to acquire the said strip of land. The respondents 5 and 6 undertook to keep the same vacant and free from any construction. An assurance was given to the Commissioner of the Corporation that no construction would be raised on the said strip of land except that floor area ratio available for the said strip of land would be utilized for development of the said property and used as an access thereto. The respondent no.5 had offered to pay Rs.42 lakh for the same.
By letter dated 12.2.1997, the Chief Municipal Engineer of the Corporation informed the respondent no.5 that its offer had been considered by the Corporation. The letter reads as follows:
"Your application dated 29.11.1995 for allotment of a strip of land in front of your premises No.14A, D.L.Khan Road., is considered by the Calcutta Municipal Corporation at its meeting dated 21.1.1997 under following terms and conditions :-
(I) Allotment of 5 ½ cottahs of land will be made by CMC against payment of Rs. 64.0 Lacs (Rupees Sixty Four Lacs) including Rs.4.00 Lacs for rehavilitation of infrastructures within the plot for a lease period of 99 years and payment to be made within 2 months from issue of this letter. (II) Royal Calcutta Turf Club will keep this 5 ½ cottahs of land vacant in front of their premises. However, they are permitted to utilize F.A.R. of this land annexing it to their original plot of land.
(III) Royal Calcutta Turf Club will allow the Calcutta Municipal Corporation to attend all the underground infrastructure within this land as and when it will be required by C.M.C. and this will form a part of the agreement for 4 allotment of the land."
The respondents 5 and 6 wrote back to the Corporation on 3.3.1997 communicating their acceptance of the proposal.
In the meantime, the respondents 5 and 6 had entered into an agreement with the petitioner no.1 on 26.4.1996 for development of the said property taking into account lease of the said strip of land. Such agreement was entered into by and between the parties based on the impression that the Corporation was not averse to transfer of the said strip of land in favour of the respondents 5 and 6 and would in fact agree to do so subject to final settlement of the consideration therefor. The acceptance of the proposal of the Corporation by the respondents 5 and 6 and consequently by the petitioner no.1, who was required to provide funds for acquisition of the said strip of land, was conveyed to the Corporation by the respondents 5 and 6 by their letter dated 3.3.1997.
The petitioner no.1 agreed to provide Rs.64 lakh to the respondents 5 and 6 for adequate payment to the Corporation for obtaining a lease for 99 years of the said strip of land. Such fact was recorded in an order of the Division Bench of this Court dated 28.5.1997 while disposing of APO No.729 of 1994 arising out of W.P. No.2862 of 1994. However, how the matter reached the Division Bench is conspicuous by its absence in the pleadings.
It is not in dispute that the sum of Rs.64 lakh was duly paid to the Corporation. But despite approval of the draft lease in respect of the said strip of land by the Corporation on 18.7.1998, the lease had not been granted in favour of the respondents 5 and 6.
5
On or about 30.8.2007, an agreement was entered into by the petitioner no.1 and the other petitioner companies herein with the respondents 5 and 6, duly registered, for assignment of lease of the said strip of land and for sale of the said property for a total consideration of Rs.12.25 crore. Pursuant to and in terms of the said agreement, it is claimed that the petitioners have paid the entirety of the said sum to the respondents 5 and 6.
These facts in the background, on 29.2.2008, the Corporation enquired from the respondents 5 and 6 as to whether they were agreeable to pay a sum of Rs.60,000/- p.a. towards annual premium/lease rent in respect of the said strip of land. Since such demand of the Corporation was contrary to its promise and corresponding obligation, by letter dated 5.3.2008, the petitioner no.1 through the respondents 5 and 6 communicated their refusal to pay such annual premium or rent to the Corporation.
On 2.9.2008, the Corporation conveyed to the respondents 5 and 6 the order of its Mayor passed on 14.6.2008 to the effect that execution of lease deed for the said strip of land had been dropped for the time being.
Impugning the said communication dated 2.9.2008, the petitioners herein moved a writ petition before this Court being W.P. 15 of 2009 praying for, inter alia, order restraining the Corporation to give effect to the decision taken on 14.6.2008 by the Mayor of the Corporation or to the letter dated 2.9.2008 conveying such decision and to rescind, recall, withdraw and/or cancel the same. A further prayer for grant of lease in respect of the said strip of land in favour of the respondents 5 and 6 herein was also prayed for.
6
The writ petition is pending before this Court for a decision. While countering the said writ petition, the Corporation filed counter affidavit. In such affidavit the Corporation disclosed that the said property had been declared as a heritage site by the Commission and that the Government of India, Ministry of Overseas Indian Affairs had already taken up a project of building a memorial at the site. It was further disclosed therein that the Government was in the process of acquiring the said premises for execution of the project and hence had requested the Corporation to hold the process of leasing of the said strip of land till finalisation of the matter by the Government.
Upon perusal of the contents of the said affidavit, the petitioners made necessary enquiries. It is alleged by them that no notice for declaring the said property as heritage site had been sent either to them or to the respondents 5 and 6. That apart, the entire process of declaring the said property as a heritage site, it is claimed, is bad, illegal, ultra vires and dehors the West Bengal Heritage Commission Act, 2001 (hereafter the Act) and the regulations framed thereunder. The petitioners assert that the Commission in terms of the Act does not enjoy the power or authority to declare any property as a heritage building, premises or site and as such the declaration made by it is void ab initio.
Mr. Ghosh argued that the petitioners' have no proprietary or possessory interest in the said property. Mere execution of a development agreement between the respondents 5 and 6 and the petitioners does not confer title on the petitioners in respect of the said property. For the purpose of impugning an action as infringing one's property right, one must have undisputed title to the 7 property. If his title is in dispute, he cannot apply for writs. Reliance in this connection was placed on the decision reported in AIR 1963 SC 516, Bokaro and Ramgar Ltd. vs State of Bihar. He also relied on the decision reported in AIR 1977 SC 276, Mani Subrat Jain vs. State of Haryana.
His submission was echoed by Mr. Mondal. He contended that the purported agreements do not vest the petitioners with any right to challenge the declaration made by the Commission. The declaration, according to him, could have been challenged by the respondents 5 and 6 but they having chosen to abide by the same, the petitioners not having acquired any right in respect of the said property have no locus standi to maintain this petition. It was further contended that the agreement for assignment of lease and for sale of the said property was executed on 30.8.2007, i.e. long after the impugned declaration was made and, therefore, the petitioners cannot seek to assert any right thereunder.
For correct understanding of the issue, I consider it proper to briefly refer to the authorities on locus standi to maintain a writ petition claiming Certiorari, which I consider relevant for guiding me to hold in favour of one and against the other.
I shall first refer to Prof. de Smith on 'Judicial Review of Administrative Action'. The learned author has observed in relation to an application praying for Certiorari that though it is a discretionary remedy, the Court may extend discretion by permitting an application to be made by any member of the public. A person aggrieved i.e. one whose legal rights had been infringed or who had any other substantial interest in impugning an order, might be awarded a certiorari 8 ex debito justitiae, if he could establish any of the recognized grounds for quashing but the Court would retain discretion to refuse his application if his conduct was such as to disentitle him to relief.
Nearly half a century back, in the decision reported in (1961) 2 All ER 504, Attorney General of Gambia vs. N'Jie, the Privy Council was considering whether the Attorney General who had represented the Crown as a guardian of the public interest could be regarded as a person aggrieved having locus standi to appeal against a decision reversing a finding that a barrister and solicitor was guilty of professional misconduct. Lord Denning observed :
"......the words 'person aggrieved' are of wide import and should not be subject to a restrictive interpretation. They do not include of course a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."
Then came the decision reported in AIR 1966 SC 828, Gadde Venkateswara Rao vs. Govt. of Andhra Pradesh. The Supreme Court was considering whether the appellant had the locus standi to maintain a writ petition challenging the decision of the Government to shift a running primary health centre at Dharmajigudem village to a permanent location in Lingapalem village. The appellant was representing Dharmajigudem village in all its dealings with the block development committee and the panchayat samithi in the matter of location of the primary health centre at Dharmajigudem and was the representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. The writ petition filed by the appellant was dismissed by a learned single Judge of the High Court and the 9 writ appeal filed thereagainst was also dismissed. While considering the question of locus standi of the appellant to file writ petition under Article 226, it was ruled by the Supreme Court as follows :
"8.*****We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Article 226 of the Constitution. This Court held in the decision cited supra that '"ordinarily" the petitioner who seeks to file an application under Article 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest: it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Article 226 of the Constitution at his instance is, therefore, maintainable."
The next decision relevant for deciding the question of locus standi is the one reported in (1976) 1 SCC 671, Jasbhai Motibhai Desai vs. Roshan Kumar. While considering who an aggrieved person is having locus standi to maintain a writ petition, the Supreme Court held as follows :
"13. *****This takes us to the further question: Who is an "aggrieved person"
and what are the qualifications requisite for such a status? The expression "aggrieved person" denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him.*****"
In the same decision, in course of consideration of the legal position that the Supreme Court in a number of previous decisions had declared that in order 10 to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, relaxation or modification in respect of writs like habeas corpus or quo warranto excepted, the Court proceeded to hold what 'ordinarily' indicates by observing that :
"35.*****The expression "ordinarily" indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it."
The Court, thereafter, proceeded to lay down tests for determining locus standi in the following words:
"37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly 11 stand in the category of 'persons aggrieved'. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be 'persons aggrieved'.
39. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person 'against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something?' Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words 'person aggrieved' is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?"
Although the Court did not expressly refer to N'Jie (supra), it noticed the subsequent decision authored by Lord Denning reported in (1972) 2 QB 299, Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators' Association, wherein the view taken in N'Jie (supra) was reiterated.
The aforesaid two decisions were considered by a learned judge of this Court in the decision reported in 1981(2) CLJ 197, Jayanta Kumar Banerjee vs State of West Bengal & ors., cited by Mr. Kapoor, learned senior advocate for the petitioners. The writ petitioner there had entered into an agreement for sale of a property which was subsequently sought to be acquired by the Government for a 12 public purpose in terms of provisions contained in the Land Acquisition Act, 1894. Objection of the respondents that the petitioner had no locus standi to move the Court of Writ because he did not acquire any interest in the property under the said agreement for sale was repelled by the Court by holding as under:
"10. After considering the respective submissions of the learned Counsel appearing for the parties it appears to me that Mr. Mukherjee is amply justified in his contention that the expression 'ordinarily' is not a cast-iron formula and until a party has acquired any title to the property or pecuniary interest therein he cannot present a petition under Article 226 of the Constitution challenging an action concerning such property. In my view, Mr. Mukherjee is justified in his contention that acquisition of interest in a property is not the sole test for determining the locus standi to move the writ petition, but prejudicial affectation of a right concerning the property should be the test to determine the locus standi to move a writ petition. I respectfully agree with the view made in the case of Amon v. Rephael Tuck & Sons Ltd., (1956) 1 All ER. 273) that a person is legally interested in an answer only if he can say that it may lead to the result that would affect him legally, that is, by curtailing his right. In the facts and circumstances of the case, the right of the petitioner to enforce a contract for sale would be curtailed and acquired. In such circumstances, the petitioner must have locus standi to question the corrections (sic correctness) of the acquisition proceeding because acquisition of the property would ultimately frustrate the contract."
I share the view expressed in Jayanta Kumar Banerjee (supra). The challenge in the writ petition is in respect of alleged usurpation of jurisdiction by the Commission. A writ of Certiorari has been asked for to quash the impugned declaration.
The petitioner no. 1 entered into a development agreement with the respondents 5 and 6 way back in April, 1996. A claim has been raised that the amount demanded by the Corporation for granting lease of the said strip of land in favour of the respondents 5 and 6 was paid by the petitioner no. 1. A subsequent agreement for assignment and sale appears to have been executed by all the petitioner companies with the respondents 5 and 6 and it is further 13 claimed that the entire consideration money of Rs.12.25 crore has been paid, which has not been disputed by the respondents 5 and 6. Although these assertions are disputed by the official respondents, I need not decide on this petition on the veracity of such claims. These issues might crop up for a decision in the pending writ petition, referred to above, and the Court may decide it.
It is true that the petitioners as on date the impugned declaration was made by the Commission did not have proprietary interest in the said property. They cannot also claim possessory interest therein. However, lack of proprietary or possessory interest in the said property, for reasons following, does not denude the petitioners of locus standi to maintain the petition.
The orthodox concept of locus standi has undergone radical changes with the development of constitutional law and the constitutional courts are adopting a liberal approach instead of dislodging a litigant's claim merely on hyper- technical grounds. Applying the tests laid down in the aforesaid decisions, I do not consider the petitioners 1 and 2 to be strangers not having 'standing to sue'. In the event the declaration made by the Commission is upheld, that would lead to frustrating the agreements entered into by and between the respondents 5 and 6 and the petitioner companies. The petitioners and the respondents 5 and 6 intend that the parties to the agreements perform their respective obligations thereunder. That can fructify provided declaration of the said property as a heritage site does not stand in the way, impeding such performance. The petitioners are certainly not part of a busy body or strangers and fulfils the character of 'aggrieved persons' since the impugned declaration made by the 14 Commission is adverse to their interest having regard to the terms of the agreements and the present writ petition is intended to safeguard prejudicial affectation of their rights.
The alleged defect in jurisdiction of the Commission in declaring the said property as a heritage site, the assertions made by the petitioners 1 and 2 that it is on their initiative that the respondents 5 and 6 had approached the Corporation for lease of the said strip of land so as to facilitate development of the said property, the interest in the said property claimed by the petitioners by reason of the agreements and the prejudice and injury they are likely to suffer if the tag of heritage site on the said property is not removed are the diverse and variable factors which, in my opinion, confer on the petitioners the locus standi to invoke the Certiorari jurisdiction of this Court.
Mr. Ghosh adopted a queer line of reasoning to distinguish the decision in Jayanta Kumar Banerjee (supra) cited by Mr. Kapoor. According to him, the complaint by the petitioner being directed against acquisition of immovable property without due adherence to the Land Acquisition Act, 1894 the ratio laid down therein would have no application here. The legal principle on which the petition was decided applies here with full force and I have no hesitation in rejecting his contention.
The decision in Bokaro and Ramgar Ltd. (supra), it must be remembered, was one rendered on a writ petition filed under Article 32 of the Constitution at a time when right to property was a fundamental right. Having regard to pendency of proceedings before the competent authority, the Court declined to interfere 15 because the title to the property was in dispute. The Court as a result of such pendency did not have the occasion to consider whether by the impugned action there was prejudicial affectation of right or not. It would be convenient to extract below portions of paragraph 4 of the decision, which reads:
"4. *****The relief sought in this petition is based on two allegations: (1) that the land on which the buildings stand is raiyati land and therefore could not be taken possession of by the State under the Bihar Land Reforms Act, and (2) that the buildings standing thereon were previously used for the residential purpose of the Raja and his family and not as a kutcheri. The enquiry has been proceeding before the Collector in regard to these two points and it may be mentioned that when the petitioner applied to this Court for a stay of proceedings before the Collector, this Court passed an order permitting the enquiry to continue, though it stayed the passing of any order by the State Government. It will thus be seen that if the contention of the State is correct as regards the tenure of the property and as regards the purpose for which the buildings were used, the title of the State to the property would be made out and the petitioner could have no legitimate grievance. If, on the other hand, the petitioner establishes in the enquiry the case that it has put forward in the petition it is bound to succeed. Thus the question whether the petitioner has any right to the property which it claims depends wholly on questions of fact which are plainly within the jurisdiction of the authorities constituted under the Bihar Land Reforms Act. Before a party can complain of an infringement of his fundamental right to hold property he must establish that he has title to that property and if his title itself is in dispute and is the subject of adjudication in proceedings legally constituted, he cannot obviously put forward any claim based on his title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether his rights in or to that property have been improperly or illegally infringed could arise."
The decision, therefore, is distinguishable.
In Mani Subrat Jain (supra), the Court did not declare a law inconsistent with the law declared in the earlier decisions referred to supra. That a writ petition filed by a party failing to establish infringement of a legal right ought not to be entertained was emphasized there since appointments were illegally made. The petitioners have questioned the very jurisdiction of the Commission and in view of the decisions referred to supra, they cannot be non-suited.
I do not find substance in the submissions of Mr. Mondal and Mr. Ghosh. 16 For reasons discussed above, I hold that the petitioners do have the standing to sue and this writ petition at their instance is maintainable; consequently, the preliminary objection stands overruled.
The statutory provisions governing declaration of a site or building as heritage site/building may now be appreciated for ascertaining whether there is merit in the challenge thrown by the petitioners.
The Act was enacted to provide for the establishment of a Heritage Commission in the State of West Bengal for the purpose of identifying the heritage buildings, monuments, precincts and sites and for measures for their restoration and preservation.
Heritage building has been defined in Section 2(f) of the Act as follows :
"2(f) 'heritage building' means any building of one or more premises or any port there of which requires preservation and conservation for historical, architectural, environmental or cultural importance, and includes such portion of the land adjoining such building or any part there of as may be required for fencing or covering or otherwise preserving such building, and also includes the areas and buildings requiring preservation and conservation for the purpose as aforesaid under subclause (ii) of clause (a) of sub-section (4) of section 31 of the West Bengal Town and Country (Planning and Development) Act, 1979, monuments of heritage importance, as defined in clause (I) of this section, precincts or such other sites commonly considered for heritage importance."
Monuments of heritage importance has been defined under Section 2(i) and reads :
"2(i) 'monuments of heritage importance' means any building, structure, erection, monolith, monument, mound, tumulus, tomb, place of interment, cave, sculpture, inscription on an immovable object or any part or remains thereof, or any site, which the State Government, by reason of its heritage association, considers it necessary to protect against destruction, injury, alteration, mutilation, defacement, removal, dispersion or falling into decay."17
Section 11 of the Act, providing for powers and functions of the Commission, enacts :
"11(1) Notwithstanding anything contained in any other law for the time being in force, all local authorities shall refer anything related to identification, restoration, preservation of any heritage building or any other development or any engineering operation which is likely to affect to preservation of any heritage building, for advice.
(2) Subject to the provisions of sub-section (1), the functions of the commission shall be -
(i) to advise the State Government on preparing a classification of buildings in certain grades of heritage buildings after scrutinizing applications and proposal received, including supplementing the existing list of buildings as well as all other matters relating to heritage conservation;
(ii) to advise the State Government on any alteration, modification or relaxation of any law for the time being in force for development control and conservation of any heritage building;
(iii) to advise the local authorities, where necessary, on the policy of the grant of any certificate of right of development of any heritage building:
(iv) to advise whether to allow commercial or other use of heritage buildings and, if so, when to prohibit such use;
(v) to advise the State Government on framing of special regulations for heritage buildings as may be listed by the State Government;
(vi) to advise the local authorities to regulate the installation of advertisement and display structure in respect of heritage buildings;
(vii) to advise the State Government on guidelines to be adopted by private parties who sponsor beautification schemes in West Bengal;
(viii) to advise the local authorities on the cost of repair of heritage buildings and the policy to be adopted for raising repair-funds from private sources :
(ix) to advise the local authorities to prepare special designs and guidelines for heritage buildings controlling the height and essential characteristics and to suggest other aspects of conservation and restoration;
(x) to advise the local authorities on the provision of incentive by exemption from payment of rates or taxes or fees for supply of water or any other charge in respect of heritage buildings;
(xi) to advice the State Government on the penal measures for defacing or destroying a heritage building;
(xii) to advise the State Government and the local authorities on the making of provision for restoration of heritage buildings;
(xiii) to advise the State Government and the local authorities on documentation of records of heritage buildings;18
(xiv) to advice the State Government on the steps to involve public opinion in mobilization of efforts for creating awareness, preserving or maintaining heritage, and the consciousness of its visible architectural and natural evidences, so as to foster the creation of a population mandate for heritage preservation;
(xv) to advise the State Government on any other matter relating to restoration or preservation of buildings of heritage importance as may be entrusted by the State Government to the Commission.
3) 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 the Commission."
Section 12 of the Act while providing a remedy of appeal to the State Government in certain cases enacts:
"12. If any local authority is aggrieved by any advice of the Commission in respect of any building operation, engineering operation or development proposal referred to the Commission under sub-section (1) of section 11, such local authority may, within sixty days from the date of advice by the Commission, prefer an appeal to the State Government, and the State Government may pass such order thereon as it deems fit."
Section 13 of the Act reserves the power of the State Government to revise any decision of the Commission. The same reads:
"13. Nothing contained in this Act shall preclude the State Government from calling for, and examining, on its own motion, if that Government considers it necessary so to do in the public interest, any case of advice by the Commission under sub-section (1) of section 11 and passing such order thereon as it thinks fit:
Provided that no such order shall be made prejudicially affecting any local authority, except after giving it an opportunity of making a representation in the matter."
According to Section 14 of the Act, the decision of the State Government in an appeal under Section 12 or revision under Section 13 shall be final and binding and shall not be questioned in any court of law.
The Commission, by Section 15 of the Act has been given the same powers 19 as are vested in a civil court while trying a civil suit under the Code of Civil Procedure, 1908 in respect of the matters mentioned therein.
Section 16 of the Act provides that subject to other provisions thereof, the State Government and the local authority shall accept every advice of the Commission and shall take action for prompt and effective implementation of such advice.
In terms of power conferred by Section 27 of the Act, the Commission has framed the West Bengal Heritage Commission Regulations, 2004 (hereafter the Regulations). Regulation 9 thereof reads:
"9. Procedure for dealing with the application for declaring a building as heritage building-
(1) All application from the local body, and mass petition or departmental report for declaring a building or precincts as heritage building or buildings shall be received by the Secretary of the Commission. (2) The Secretary shall, notify the list of buildings to be declared as heritage building in the Vernacular and English newspaper by giving notice to the occupants of the intention of the Commission.
(3) On receipt of the notice the owners or occupiers or the leaseholders of the said building may give their views in writing to the Commission within thirty days of the date of the notice.
(4) No such owner or, occupants or the leaseholders of the building so notified shall cause demolition, removal, alteration, defacement, hoarding on the wall or misuse the part or parts of the building or buildings by way of sale, lease or mortgage without prior approval of the Commission.
(5) The Commission or Authorized Officer or Architect or conservation engineer, if any, shall be allowed to conduct a survey of the building or buildings in order to make preliminary documentation of the said building or buildings. The owner or occupier or leaseholder shall co-
operate with the authorised representatives to collect the information regarding architectural and historical significance of the building. (6) The documentation officer or the Architect or the conservation Engineer shall send their report within 90 (ninety) days from the date of the work order to the Secretary.
(7) The report so prepared under sub-clause (6), shall be placed before the Commission within six months from the date of issuance of the notice under sub-clause (2) for evaluation and listing of the building or 20 buildings or precincts. "
The West Bengal Heritage Commission (Amendment) Act, 2007, published in the Official Gazette on 19.7.2007 brought about an amendment of the Act.
Section 1(2) of the Amendment Act provides that it shall come into force on such date the State Government may, by notification in the Official Gazette, appoint.
Section 4 of the Amendment Act reads:
"In Section 11 of the principal Act, in sub-section (2),- (1) in clause (i), for the words "to advise the State Government", the words "to draw out programme" shall be substituted; (2) after clause (i), the following clause shall be inserted :-
"(ia) to declare any heritage building as monuments of heritage importance;";
(3) in clause (iv), for the words "to advise", the words "to advise all concerned and the State Government" shall be substituted:- (4) for clause (v), the following clause shall be substituted:-
"(v) to frame special regulation for such heritage buildings as may be listed by the Commission;";
(5) for clause (xiii), the following clause shall be substituted:-
"(xiii) to perform the work of documentation, inform the State Government and advise the local authorities on documentation of records of heritage buildings or monuments of heritage importance.
Explanation. - For the purpose of this clause, "documentation" means keeping of all documents relating to any heritage building or monuments of heritage importance, which the Commission considers necessary for its identification, preservation, or maintenance;";
(6) in clause (xiv), for the words "to advise the State Government", the words "to draw out programme" shall be substituted."
On a conspectus of the aforesaid statutory provisions, the position seems to be clear that in terms of the Act, as originally enacted, the functions of the Commission were to be discharged in an advisory capacity and no power was conferred on it to declare a site or building as a heritage site/building. The power to declare was conferred on the Commission by the Amendment Act, which has 21 not been shown to me to have become operative. The impugned declaration was made by the Commission on 30.10.2006 when it had no power to make any declaration under the Act. The impugned declaration, therefore, has been made plainly without jurisdiction.
Mr. Mandal referred to the expression "determination" in sub-section (3) of Section 11 to contend that the Commission did have the power to determine whether a property is to be declared as a heritage building or not.
In my view, the expression "determination" cannot be read dehors the context to include "declaration". If "determination" in sub-section (3) of Section 11 was intended to confer power on the Commission to declare any site or building as heritage site/building, the occasion for amending the Act and specifically providing such power would not have arisen. "Determination" in the said provision in keeping with the other sub-sections of Section 11 has to be construed as "opinion" or "decision" of the Commission that a particular site or building may be declared a heritage site/building in accordance therewith. I consider it to be sound principle of interpretation that if the legislature has departed from the language used by it in an earlier enactment, it would be a fair presumption to make that the alteration in the language was deliberate and it was intended to convey a different meaning. The legislative intent of amending the Act and conferring a power of declaration on the Commission, which was non-existent originally, erodes the efficacy of Mr. Mondal's argument that power to determine must be construed to include the power to declare.
The other contention of Mr. Mondal that the agreement dated 30.8.2007 22 was executed after the declaration was made and hence would not enure to the benefit of the petitioners is equally without merit. Decision taken by the Commission in its meeting dated 30.10.2006 to declare the said property as heritage site was never published and, therefore, was not made known to the public. In order to have a binding effect, publication of the decision was a pre- condition. The official respondents have not been able to disprove the assertion of the petitioners that for the first time they learnt of the decision dated 30.10.2006 when the same was annexed to the counter affidavit filed by the Corporation in connection with the earlier writ proceedings. Belated awareness of such decision cannot prove fatal for the petitioners.
There was some debate on the issue as to whether in terms of Regulation 9(2) of the Regulations, publication of notice in two newspapers containing the list of buildings sought to be declared as heritage buildings would amount to compliance or individual notice is required to be served on the occupants. According to Mr. Kapoor, the conjunction 'and' ought to be read between 'newspaper' and 'by' in sub-regulation (2) in view of reference to 'receipt of notice' in sub-regulation (3). However, having regard to the finding that the Commission did not have the jurisdiction to declare the said property as a heritage site/building, I need not decide this issue on this petition. But I cannot resist expressing that sub-regulations (2) and (3) ought to have been worded more clearly and the authority competent to frame/amend the Regulations may take notice of the same to avoid complications that might arise in future because of its ambiguity.
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The impugned declaration, accordingly, stands set aside. However, this order shall not affect the powers of the Commission to proceed in accordance with law for declaration of the said property as a heritage site/building. In the event the Commission intends to proceed in terms of liberty granted by this order, it shall, inter alia, put the petitioners on notice. This direction is issued having regard to the confusion that might arise because of faulty wording of the Regulations referred to supra and to obviate any further complications. The Commission shall be free to initiate and complete the exercise as early as possible. However, if the Commission chooses not to avail of the liberty granted by this order, it shall convey the same to the petitioners.
I make it clear that the reasons for which I have held the petitioners entitled to maintain this petition are only with the view to adjudicate the points arising on this petition and are not intended to influence the decision in the pending petition.
The writ petition stands allowed to the extent mentioned above. The interim application stands disposed of.
Parties shall bear their own costs.
Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.
(DIPANKAR DATTA, J.)