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2017 DIGILAW 52 (CAL)

Niru Nag v. Kolkata Municipal Corporation

2017-01-10

I.P.MUKERJI

body2017
JUDGMENT : I.P. Mukerji, J. The writ petitioners describe themselves as permanent residents of premises No. 65, Akshoy Kumar Dutta Sarani, Kolkata-700006, although in the cause title only the petitioner Nos. 1 and 2 are shown as residing there and the others shown to be residing in other places. 2. The writ petitioners challenge a resolution dated 27th July, 2015 of the Heritage Conservation Committee of the Kolkata Municipal Corporation declaring this premises as heritage in grade-IIA category. The reasons attributed for making this declaration is the architectural style of this building. 3. Some photographs of the building are produced before the court. It is submitted on behalf of the petitioner that the subject premises is a very ordinary building. There is no novelty or beauty in its architectural style. It is an ordinary old residential building of North Kolkata. 4. Moreover, no reasons have been attributed by the Heritage Conservation Committee to declare the building as heritage. Valuable property rights of the owner are affected, under Section 425A of the Kolkata Municipal Corporation Act, 1980 when a building is declared as heritage. It puts a fetter on the right of the owner to freely transfer the property. The owner is enjoined with a duty to maintain the property preserving its heritage status. If the property is transferred to a purchaser he will also have to maintain the building similarly. Therefore, it was imperative on the part of the respondent Corporation to hear the owner and to assign reasons for declaring a building as heritage. Above all it could not be declared as heritage because of its ordinary style of architecture. 5. What I found most important were the averments made by the respondent corporation in paragraph-6 page-10 of the supplementary affidavit. It appeared that since premises No. 66A and 66B Akshay Kumar Dutta Sarani had already been declared as heritage, it was essential that premises No. 65, Akshoy Kumar Dutta Sarani, Kolkata-700006 which is adjacent to this building was also so declared so to save the declared heritage building from the effect of demolition of premises No. 65, Akshoy Kumar Dutta Sarani, Kolkata-700006. 6. In my opinion a very extraneous consideration was taken into account in declaring premises No. 65, Akshoy Kumar Dutta Sarani, Kolkata-700006 as a heritage building. 6. In my opinion a very extraneous consideration was taken into account in declaring premises No. 65, Akshoy Kumar Dutta Sarani, Kolkata-700006 as a heritage building. When the building is being considered to be declared as heritage for its architectural style, only the style of architecture is the consideration and nothing else. Just because a neighbouring building has been declared heritage does not mean that the other building is also to be so declared when otherwise not deserving to be so declared. 7. Moreover, from the pictures produced in this proceeding I find prima facie that the building is quite ordinary and that it depicts no original architectural style or any architectural beauty to declare it as heritage. 8. However, this court bears in mind the fact that it is not an expert and should not adjudge the eligibility of the building to be declared heritage. This case does not fall within the exception to the said principle that when on the face of the records the building could not be classified as heritage, the court could make that declaration as was the case in Purti West Enclave Pvt. Ltd. & Ors. v. Kolkata Municipal Corporation & Ors. reported in (2016) 120 (1) CWN (Cal) 412. 9. In that view of the matter the declaration of premises No. 65, Akshoy Kumar Dutta Sarani, Kolkata-700006 is set aside. The respondent corporation will be at liberty to revisit the issue applying the proper principles, by giving an opportunity to the owner to represent his case and by a reasoned decision, if at all the Corporation is interested to do so. This interest must be evinced by the respondent Corporation within one month from date. Otherwise the building plan submitted by the owners should be considered for sanction by them in accordance with law. 10. This application is allowed to the above extent. 11. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.