Calcutta High Court
Niru Nag & Ors vs The Kolkata Municipal Corporation & Ors on 27 November, 2013
Author: Soumen Sen
Bench: Soumen Sen
WP No. 1042 of 2013
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
NIRU NAG & ORS.
Versus
THE KOLKATA MUNICIPAL CORPORATION & ORS.
B E F O R E:
The Hon'ble Justice Soumen Sen
Dated, the 27th November, 2013.
Appearance:
Mr. P.S. Deb Barman, Adv.
Mr. Amit Gupta, Adv.
Mr. M. Nazar Chowdhury, Adv.
For the petitioner.
Mr. Fajlul Hoque, Adv.
Mr. Sujoy Mondal, Adv.
Ms. Anita Deb Jana, Adv.
For K.M.C.
The Court:- In this application the petitioner has challenged
the recommendation of the Heritage Conservation Committee in
declaring the concerned premises as `heritage building'. The cryptic
communication forming part of the resolution at page 95 of the writ
petition states that -
"the members inspected the premise explained that the
captioned premise physically is the continuation of 66A and
66B Akshoy Kumar Dutta Sarani, which are recorded as
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Grade-IIA heritage building. Therefore the proposal submitted
by the applicant for construction of a G+IV storied building
after demolition of the existing structure is rejected by the
committee. The committee recommends that KMC should
incorporate 65, Akshoy Kumar Dutta Sarani in the list of
heritage building under same grade and category fixed for 66A
& 66B Akshoy Kumar Dutta Sarani. The list should be updated
accordingly".
Section 42A of the Kolkata Municipal Corporation Act, 1980
defines "heritage building" as any building of one or more premises,
or any part thereof, which requires preservation and conservation for
historical, architectural, enviornmental or ecological purpose, and
includes such portion of the land adjoining such building or any part
thereof 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 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. It does not appear from the said order, that the Heritage
Conservation Committee while rejecting a proposal for construction
of G+IV storied building after demolishing the existing structure
has adverted its mind to the criterion indication in Section 42A.
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The Heritage Conservation Committee also seems to have rejected
the opinion given by the Legal Advisor, Kolkata Municipal
Corporation dated 13th April, 2013 without assigning any reason.
The relevant portion of the said opinion is reproduced below:
"Note from your department pre-page clearly state that when at
the time of considering the sanction of the building plan, the
Building Department approached the PMU Department for
enquiring whether the particular premises is included in the
Heritage list, then at that time the premises was not in the list.
On the other hand, the premises being in the non-heritage
category was sold legally and in equity and law as well as by
way of natural justice the purchaser having invested good
money in good volume cannot be held to be subject of a legal
jeopardy. More so, when KMC itself has mutated the premises
much before it being sought to be listed as heritage, it is not
clear from the short note how a differently numbered and
presumaly separated premises as being numbered 65 can be
physically part and parcel or continuation of two other
separate premises numbered 66A & 66B. More so, the physical
inspection only cannot be basis of such declaration without
going through other process of declaring heritage. So, further
inspection of documents and/or inviting such documentation in
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a hearing by giving notice the owner of no. 65 premises can be
processed through by your department before rampant
declaration of enlistment to avoid any legal complication in a
Court of law".
In view of the aforesaid, the Heritage Conservation Committee
is directed to reconsider the matter afresh after giving reasonable
opportunity of hearing to the petitioners and after taking into
consideration the opinion given by the Legal Advisor, K.M.C. dated
13th April, 2013.
It is true that the opinion of the law officer is not binding on
the Heritage Conservation Committee but the Committee cannot
disregard it without any valid reason.
It is also made clear that this order shall not be construed to
mean that this Court has expressed any opinion with regard to
status of the said building. The order is set aside in view of the lack
of reason and as it appears to this Court that the said order was
passed mechanically.
Since the Heritage Conservation Committee is constituted by
eminent persons who are expert in the field, it is expected that they
should decide the matter with prudence in accordance with law
and being uninfluenced by the earlier order. The Heritage
Committee is also directed to decide the matter within a period of
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eight weeks from the date of communication of this order and shall
communicate the decision within a week thereafter.
Copy of the resolution of the meeting of the Heritage
Conservation Committee held on 29th July, 2013 filed in Court
today be kept with the records.
Since no affidavit in opposition has been called for, the
allegations made in the petition are not deemed to have been
admitted by the respondents.
The writ petition is, thus, disposed of.
All parties are to act on a signed photocopy of this order on the usual undertakings.
(SOUMEN SEN, J.) snn.
A.R.(CR).