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2019 DIGILAW 831 (CAL)

Yusuf Khan v. State of West Bengal

2019-08-30

AMRITA SINHA

body2019
JUDGMENT : The resolution dated 27th July, 2015 adopted in the meeting of the Heritage Conservation Committee in respect of the premises no. 31/1A and 31/1B, Nayan Chand Dutta Street, Kolkata - 700 006 popularly known as 'Krishna Palace' is impugned in the instant writ petition. The aforesaid two premises are adjoining each other and they have since been amalgamated and renumbered as 31/1, Nayan Chand Dutta Street, Kolkata - 700 006. 2. The premises in question originally belonged to a Company known as M/s. Orchid Builders Pvt. Ltd. By a registered deed of conveyance the said property was conveyed and transferred in favour of the petitioner on 24th February, 2012. The premises were subsequently mutated in his favour and the Kolkata Municipal Corporation (KMC) raised tax bills thereof. 3. The building in question was initially a three-storied building. For want of proper maintenance portions of the building became damaged and were in such a condition that the same could not be repaired. The KMC, Health Department is a tenant in the ground floor of the said building. 4. By a notice dated 10th January, 2013 issued by the Assistant Engineer (Civil) Building and Executive Engineer (Civil) Building of the KMC under Section 411(1) of the KMC Act, 1980 the dangerous portion of the said premises which was non- repairable was directed to be demolished with a further direction to secure the reparable portion. The notice mentioned that failing compliance of the aforesaid direction steps will be taken by the Municipal Commissioner to execute the works required. 5. In compliance of the direction issued in the notice under Section 411(1) of the KMC Act the petitioner demolished the dangerous non-repairable portions. Presently, the building is left with only six rooms in the ground floor. It has been submitted that those six rooms are also in a very dangerous and dilapidated condition but the same could not be demolished/repaired as they are under the occupation of the KMC (Health Department). 6. The petitioner applied for sanction of a building plan in the said premises. An agreement was entered in between the petitioner and the KMC with regard to allotment of space in the proposed construction. The sanction as prayed for was not granted in favour of the petitioner, on the ground, that the building in question has been classified as a heritage building under the West Bengal Heritage Commission Act, 2001. An agreement was entered in between the petitioner and the KMC with regard to allotment of space in the proposed construction. The sanction as prayed for was not granted in favour of the petitioner, on the ground, that the building in question has been classified as a heritage building under the West Bengal Heritage Commission Act, 2001. 7. The petitioner being aggrieved by the declaration of the building as heritage filed a writ application before this court praying for release of the premises from the list of heritage buildings and also to sanction the building plan. The writ petition being WP 857 of 2014 was heard and disposed of by an order dated 24th September, 2014 by directing the Corporation to exercise its power under Section 425B KMC Act by 31st October, 2014 and to pass a reasoned decision. It was made clear that if no decision was taken by 31st October, 2014 the petitioner can go ahead with the proposed development of the premises. 8. By a communication dated 21st January, 2015 the power of attorney holder of the petitioner was informed that the Heritage Conservation Committee has recommended that legal action should be taken by the building department against the applicant regarding demolition of the portion of the heritage structure prior to obtaining necessary permission from the Heritage Conservation Committee. It was further informed that no plan proposal shall be considered at present. 9. As the Corporation did not act in accordance with the order passed by the court on 24th September, 2014 an application for contempt was filed. The court by an order dated 26th June, 2015 granted further opportunity to the Corporation to comply with the direction passed by the court. 10. In compliance of the order of the court the Heritage Conservation Committee held a meeting on 27th July, 2015 and passed the resolution that the premises in question is included in the list of the expert committee on heritage building. Since KMC accepted and adopted the report as prepared by the expert committee the premises in question had been included in the heritage list, though its gradation was pending. By the said resolution the committee recommended the premises in question to be graded as Grade IIB for its architectural style as per the provisions of Section 425B of the KMC Act. 11. By the said resolution the committee recommended the premises in question to be graded as Grade IIB for its architectural style as per the provisions of Section 425B of the KMC Act. 11. The learned advocate appearing for the petitioner contends that the resolution of the Heritage Conservation Committee to accept the report prepared by the expert committee and place the building in the heritage list is bad in law. It has been submitted that after introduction of Chapter XXIIIA in the KMC Act, 1980 with effect from 22nd December, 1997 the Heritage Conservation Committee has to take a decision whether to include the premises in the heritage list or not. Acceptance of the report of the expert committee will not be compliance of the provision of Section 425B. According to Section 425B KMC Act, 1980 the Corporation has to declare the building as heritage building on the recommendation of the Heritage Conservation Committee and also of the Mayor in Council. Before declaration and incorporation of the premises in the heritage list an opportunity of hearing is required to be given to the owner. 12. The petitioner relies upon an unreported order passed by the Hon'ble Single Judge of this court on 15th September, 2017 in WP 1151 of 2016 in the matter of Bimal Chandra Saha vs. KMC & Ors. wherein the court held that if the statutory authority have acted in contravention of the provision of the Act in declaring the property as heritage one, such declaration is invalid, bad and illegal. The base for including the property into Heritage List, Grade Pending is the declaration of the property to be heritage and because of its special character it to be graded as the restrictions under the aforesaid provision varies from one grade to another. If the initial action of declaring the property to be heritage is found to be illegal, it cannot take birth into a grade list. The court directed the Corporation to release the property from the Heritage List, Grade Pending and directed that the said property shall not be treated as heritage until it is so declared by following the provisions contained under chapter XXIIIA of the KMC Act, 1980. The steps for including the property in the heritage list shall be taken after affording an opportunity of hearing to the petitioner. 13. The steps for including the property in the heritage list shall be taken after affording an opportunity of hearing to the petitioner. 13. The petitioner also relied upon the judgment delivered by the Hon'ble Division Bench of this court in the matter of Kamal Kumar Dey vs. Director General, Archaeological Survey of India, New Delhi & Ors. reported in (2016) 1 CHN (Cal) 329 wherein the court held that the High Court building was not declared as a heritage building under the provisions of West Bengal Heritage Commission Act, 2001. 14. The petitioner prays for a direction upon KMC to delete the premises from the list of heritage buildings and to revoke/cancel the impugned resolution dated 27th July 2015 whereby the premises has been graded as Grade IIB for its architectural style. 15. The learned advocate appearing on behalf of the Corporation submits that the building in question was included in the list of the expert committee of the heritage buildings set up by the Government of West Bengal. All the buildings as recommended had been notified in the newspapers for ultimate consideration and inclusion thereof in the heritage list. The same was done for giving an opportunity to the public to raise their objection/views in respect of the identified heritage buildings. 16. The Heritage Conservation Committee in its meeting held on 17th April, 2000 recommended 828 buildings including the building of the petitioner to be listed as heritage building under the provision of Section 425B of KMC Act, 1980. The Heritage Conservation Committee in the said meeting concurred with the suggestion of the expert committee formed by the Government of West Bengal with regard to the buildings proposed to be declared as heritage. The Corporation in its meeting held on 21st September, 2000 accepted and approved the list of 828 buildings as recommended by the Heritage Conservation Committee and the Mayor in Council. 17. It has been submitted that objection was not made by the then owner of the said premises against inclusion of the said building in the heritage list. It has further been submitted that according to provision of Section 425B during the period when the proposal for declaring the building as heritage remains under consideration of the Heritage Conservation Committee or the Mayor in Council no owner of the building can transfer the same by way of sale. It has further been submitted that according to provision of Section 425B during the period when the proposal for declaring the building as heritage remains under consideration of the Heritage Conservation Committee or the Mayor in Council no owner of the building can transfer the same by way of sale. In the instant case, the premises in question were transferred in favour of the petitioner, by sale, during the pendency of the proposal for consideration of the said premises as heritage. The transfer is illegal as the same has been made without obtaining prior permission from KMC. 18. It has been submitted that action of KMC in adopting the report of the expert committee is valid and proper irrespective of the fact whether the expert committee was constituted under any statute or under the heritage rules. The recommendation of the Heritage Conservation Committee stood merged with the resolution or decision of the Corporation held on 22nd September, 2015. It has been argued that as the petitioner has not challenged the initial action of the Corporation to declare the property as heritage, accordingly, the subsequent resolution of the Heritage Conservation Committee, even if is set aside, the original declaration of KMC will remain valid. 19. It has been submitted that the prayer of the petitioner was taken up for consideration in compliance of the order passed by the court on 24th September, 2014 and the petitioner cannot allege anything or take any point, beyond the scope and direction, as contained in the said order. It has been argued that there is no scope to raise the point of alleged violation of the principle of natural justice. 20. The respondents rely upon an unreported judgment delivered by a learned Single Judge of this court in WP 146 of 2010 on 16th July, 2018 in the matter of Purti West Enclave Pvt. Ltd. & Anr. Vs. KMC & Ors. wherein the court held that the building in question had been duly declared as heritage under the provision of the Act of 1980. It has been submitted that the premises involved in the case of Purti (supra) was included in the list of buildings, consisting of 828 buildings, which were declared as heritage. The premises in question is one of the buildings of the same list. 21. It has been submitted that the premises involved in the case of Purti (supra) was included in the list of buildings, consisting of 828 buildings, which were declared as heritage. The premises in question is one of the buildings of the same list. 21. The learned advocate also relied upon the judgment in the matter of Kamal Dey (supra) wherein the court upheld the power of the KMC to declare the premises in question as heritage in accordance with the provisions contained in Section 425B of the KMC Act. 22. The respondents pray for dismissal of the writ petition. 23. I have heard the submissions made on behalf of both the parties. According to Section 425B of the Act of 1980 KMC is the competent authority to declare a building as heritage. The said provision mentions that where the Corporation on the recommendation of the Heritage Conservation Committee and also of the Mayor in Council, is of the opinion that any building in Kolkata should be preserved and conserved for historical, environmental or ecological purposes, it may declare such building as heritage building. 24. Section 425C of the KMC Act, 1980 deals with gradation of heritage buildings. Section 425D (4) of the Act mentions that the Heritage Conservation Committee shall 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 the building as a heritage building. 25. A conjoint reading of the aforesaid provisions suggests that it is the statutory duty of the Committee to scrutinize every application or proposal for declaration of the building as heritage. There is nothing on record to show that either the Heritage Conservation Committee or the Mayor in Council scrutinized the application or proposal for declaration of the building in question as heritage. Records do not indicate that the KMC came to an independent finding that the structure of the premises in question is such that the same is worth incorporating in the list of heritage buildings. Moreover, when the resolution to grade the premises of the petitioner was adopted the first and the second floors of the building in the said premises no longer existed. Moreover, when the resolution to grade the premises of the petitioner was adopted the first and the second floors of the building in the said premises no longer existed. Only a portion of the dilapidated ground floor construction remains as the original building had long been demolished pursuant to the notice issued under Section 411(1) of the KMC Act, 1980. The fact of issuance of notice under section 411(1) is enough indication that the condition of the building is extremely dilapidated. The structure is dangerous and in a ruinous state. The Municipal Commissioner did not act in accordance with the statutory provision laid down in the proviso to section 411(1) of the Act. Prior to issuance of the notice under section 411(1) the matter was not referred to the Heritage Conservation Committee for its consideration and decision as required under law. 26. It has been admitted by KMC that the Heritage Conservation Committee has accepted and adopted the list prepared by the expert committee of heritage buildings set up by the Government of West Bengal, accordingly the premises in question has rightly been declared as heritage in terms of the provisions of Section 425B of KMC Act, 1980. The Corporation has tried to impress the court by submitting that the moment the Heritage Conservation Committee and the Mayor in Council accept the recommendations of the expert committee set up by the State of West Bengal, the list of the heritage buildings gets ratified and the same amounts to compliance of the provision of Section 425B KMC Act, 1980. 27. The same submission was advanced by the learned advocate appearing for the Corporation in the case of Bimal Chandra Saha (supra) wherein the court relying upon the judgment delivered in the matter of Kamal Dey (supra) held that the manner in which the property has been declared as heritage is not proper, rather bad, illegal and invalid and directed the Corporation to release the said property from the list of heritage buildings. 28. The judgment referred to by the respondents in the matter of Purti (supra) was passed relying upon twelve documents which had been produced by the Corporation to declare the premises in question as heritage. On perusal of the said documents the court was of the opinion that the declaration of the building as heritage was valid. 28. The judgment referred to by the respondents in the matter of Purti (supra) was passed relying upon twelve documents which had been produced by the Corporation to declare the premises in question as heritage. On perusal of the said documents the court was of the opinion that the declaration of the building as heritage was valid. The court further held that nothing is on record to suggest that all the twelve documents relied upon by the Corporation in the said case was placed under consideration at the time of taking a decision in the matter of Kamal Dey (supra). 29. The said twelve documents relied upon by KMC in the matter of Purti (supra) have not been placed before this court. Moreover the decision of Purti (supra) did not take into consideration the decision delivered by this court in the matter of Bimal Chandra Saha (supra). 30. Had the structure been of such architectural value KMC ought not to have issued the notice u/s 411(1) KMC Act directing demolition of the dangerous portions which are non-repairable. There was an indication in the said notice that failing compliance of the direction steps will be taken by the Municipal Commissioner to execute the works. There was no indication in the said notice that the building was heritage. There was also no direction for obtaining permission from the HCC prior to acting in terms of the said notice. According to the proviso to Section 411(1) the Municipal Commissioner was statutorily bound to refer the condition of a heritage building to the Heritage Conservation Committee or to the State. The Municipal Commissioner did not do so. 31. After the Court by an order dated 24th September 2014 directed KMC to exercise power under section 425B KMC Act, the Convenor of the Heritage Conservation Committee issued a letter intimating the petitioner that legal action will be taken against him for demolition of the heritage structure prior to obtaining permission from the Heritage Conservation Committee. In the said notice also there is mention of inclusion of the building in the heritage list prepared by the expert committee. Acceptance and adoption of the entire list en masse does not amount to compliance of the provision of Section 425B KMC Act. 32. In the said notice also there is mention of inclusion of the building in the heritage list prepared by the expert committee. Acceptance and adoption of the entire list en masse does not amount to compliance of the provision of Section 425B KMC Act. 32. The court being aware of the fact that the building was included in the list of heritage properties, by an order dated 24th September, 2014 categorically directed the Corporation to exercise its power under Section 425B of the KMC Act, 1980, meaning thereby, that KMC had to take an independent decision regarding identification and thereafter declaration of the building as heritage. The impugned resolution proceeds on the basis that the property in question is already included in the list of heritage properties. The same was not the intention of the court. The court specifically directed the Corporation to take a decision with regard to the declaration of the building as a heritage building. The Corporation instead of formal declaration of the building as heritage has merely graded the same but no decision regarding declaration of the heritage status of the building has been adopted in the resolution of the meeting of the Heritage Conservation Committee. Moreover grading of heritage building is done as per section 425C and not section 425B. The court directed KMC to act as per section 425B for declaration of the heritage status of the building and not grading the same under section 425C. 33. The resolution adopted in the meeting held by the Heritage Conservation Committee on 27th July, 2015 is a glaring example of total non-application of mind and an absolute mechanical decision without proper verification of the records. The impugned resolution adopted by the Heritage Conservation Committee is liable to be set aside. 34. The resolution of the meeting of the Heritage Conservation Committee held on 27th July, 2015 is hereby set aside. 35. The submission of the respondent that even if the impugned resolution is set aside the building of the petitioner will still remain included in the list of heritage buildings is fallacious. The inclusion of the building of the petitioner in the list of heritage buildings not being made in accordance with the provisions of Section 425B of the KMC Act the same is absolutely illegal and not tenable in law. 36. The inclusion of the building of the petitioner in the list of heritage buildings not being made in accordance with the provisions of Section 425B of the KMC Act the same is absolutely illegal and not tenable in law. 36. Though the petitioner has not specifically prayed for removal of the building from the heritage list but as consequential relief to the quashing of the impugned resolution, KMC is directed to remove the building in question from the heritage list. 37. If, in future, the Heritage Conservation Committee comes to an independent finding that the building deserves a position in the heritage list then it will take steps strictly in accordance with the Act and the Rules framed thereunder. 38. WP 479 of 2017 disposed of. 39. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.