Calcutta High Court (Appellete Side)
And Cultural Heritage) & Anr vs State Of West Bengal & Ors on 9 January, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
W.P.A. 12676 of 2019
With
CAN 4 of 2023
CAN 11 of 2024
CAN 12 of 2024
CAN 13 of 2024
INTACH (India National Trust for Art
And Cultural Heritage) & Anr.
vs.
State of West Bengal & Ors.
For the Writ Petitioner : Mr. S. Mitra, Sr. Adv.,
For the Applicant in
CAN 4 of 2023 : Md. Nurul Haque
Sk. Afrojul Haque
For the Applicant in : Mr. Sudip Deb, Sr. Adv.,
CAN 13 of 2024 : Mr. Debdipto Banerjee
Ms. Ipshita Ghosh
Mr. Soumen Banerjee
For the LIC : Mr. Rishav Banerjee
Ms. Sanjukta Ray
Ms. Madhumita Chatterjee
Mr. Aritro Ray
For the KMC : Mr. Asoke Kumar Banerjee, Sr. Adv.,
Mr. Alok Kumar Ghosh
Mr. Arijit Dey
For the State : Mr. Sirsanya Bandyopadhyay
Heard and Judgment on : January 9, 2025
DEBANGSU BASAK, J.:-
1.The present Public Interest Litigation was assigned to this Bench. 2
2. Writ petitioner essentially seeks a direction upon Kolkata Municipal Corporation (KMC) to assign reasons when KMC undertakes to either downgrade or delist a heritage building. Writ petitioner also seeks a direction upon KMC to follow the provisions of the Kolkata Municipal Corporation Act, 1980 and in particular to Chapter XXIIIA thereof, in the letter and spirit while considering downgrading or delisting of a heritage building. The third relief that the writ petitioner seeks is consideration of declaring certain precincts within the city of Kolkata as heritage.
3. Learned senior advocate appearing for the writ petitioner submits that the writ petitioner is a registered Trust. He submits that, the Heritage Conservation Committee (HCC) established under the provisions of Section 425D of the Act of 1980 is taking unilaterally decisions and is failing to identify, protect, preserve and conserve the heritage of the city of Kolkata.
4. He submits that appropriate mechanism be put in place so that the entire exercise under Chapter XXIIIA of the Act, 1980 is transparent.
5. Kolkata Municipal Corporation and persons who claim that they require their property to be downgraded or delisted from the heritage list are represented.
6. Provisions of the Act of 1980 were amended to introduce Chapter XXIIIA with effect from December 22, 1997. Chapter XXIIIA so introduced by the 3 amendment to the Act of 1980 deals with preservation and conservation of the heritage buildings.
7. It is indisputable that the City of Joy, Kolkata treasures many a heritage building. Protection, preservation and conservation thereof are in public interest.
8. Chapter XXIIIA consists of Section 425A to Section 425B. Section 425A obliges every owner or occupier of any heritage building declared by KMC to maintain, preserve and conserve it and not to change its use in contravention of the provisions of the Act of 1980 or the rules or the regulations made thereunder for its maintenance, preservation and conservation.
9. Section 425B empowers KMC to declare building as a heritage building on the recommendation of the Heritage Conservation Committee and the Mayor-in-Council. Section 425C allows gradation of the heritage building according to its historical, architectural, environmental and ecological purposes. Section 425D deals with the constitution of the Heritage Conservation Committee. Powers and functions of the Heritage Conservation Committee are prescribed under Section 425E. Section 425F of the Act of 1980 empowers the KMC to acquire, purchase or take on lease heritage building. Transfer of right of development for the purpose of acquisition by agreement is dealt with by Section 425G. KMC is vested with the right to access heritage building acquired by it by Section 425H. Sub-lease 4 of heritage building is permitted under Section 425-I. Section 425G-I requires KMC to obtain direction from the concerned department of the State Government before acquiring a heritage building. Section 425K allows exemption of rates and taxes in respect of the heritage building in the circumstances as specified therein. Section 425L allows KMC to enter into agreement with the owner of the heritage building pending its acquisition for the purposes mentioned therein. Section 425M permits KMC to receive voluntary contribution towards the cost of maintaining any heritage building. Section 425N allows taking over the management and control of heritage building by the KMC. Section 425-O allows KMC to declare a heritage building to be ceased as such. Section 425P allows KMC to impose penalty on any person who destroys, removes, alters, defaces or misuse any heritage building.
10. Anxiety of the State Legislature is to protect and preserve the heritage of the city of Kolkata. State Legislature empowered KMC to undertake such exercise and protect and preserve the heritage of the city of Kolkata. Chapter XXIIIA introduced into the Act of 1980 empowers KMC to undertake the protection and preservation of the heritage of the city of Kolkata.
11. Court is informed that there exists a Heritage Conservation Committee as contemplated under Section 425D of the Act of 1980. Such 5 Heritage Conservation Committee decides on the application for enlisting a building as heritage as also downgrading or delisting a building as heritage within the city of Kolkata.
12. One of the grievances of the writ petitioner is that the Heritage Conservation Committee is not considering any precinct of the city of Kolkata to be declared as heritage. Writ petitioner may, therefore, approach the Heritage Conservation Committee with a request for declaration of specific precincts within the city of Kolkata as heritage. No doubt, in the event, the writ petitioner approaches the Heritage Conservation Committee with requisite material facts and evidence with regard thereto, Heritage Conservation Committee will consider the same on merits and take a decision thereon.
13. Heritage Conservation Committee is empowered to decide on the listing, delisting and downgrading of a heritage building as noted above under Chapter XXIIIA. Its decision making process as well as its decision must be transparent. Court is informed that there is a website of KMC. In order to achieve a higher and better degree of transparency in the functioning of the Heritage Conservation Committee, KMC will proceed to host all applications for listing, delisting as also downgrading or upgrading, as the case may be, of any building as heritage in the city of Kolkata in such 6 website. KMC will also host the decision of Heritage Conservation Committee taken on such respective application in its website.
14. Needless to say that Heritage Conservation Committee will decide an application for inclusion or delisting or downgrading or upgrading of any heritage building after affording a reasonable opportunity of hearing to the applicant and the persons that are likely to be affected by such a decision prior to such Committee taking a decision.
15. Provisions of the Act of 1980 and in particular Chapter XXIIIA empower the KMC to frame rules regulating the procedure of the Heritage Conservation Committee. Court is informed that draft rules so prepared by the KMC was forwarded to the State Government for approval and that such approval is pending.
16. State Government will take necessary decision with regard to the request for approval of such rules as made by KMC as expeditiously as possible and preferably within eight weeks from date.
17. Since KMC is directed to upload the decision of the Heritage Conservation Committee with regard to the heritage building, it is appropriate that KMC uploads all decisions of Heritage Conservation Committee commencing from the inception of the Committee, in such website.
18. W.P.A. 12676 of 2019 is disposed of.
7
19. Since this judgment and order disposes of the Public Interest Litigation finally, all pending interim applications are disposed of.
20. Interim orders stand vacated.
(Debangsu Basak, J.)
19. I agree.
(Md. Shabbar Rashidi, J.) S.D.