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High Court of Judicature at Calcutta
TAPEN SEN
Selvel Advertising Pvt. Ltd. & Another
Versus
Kolkata Municipal Corporation & Others
W.P. No. 868 of 2006
Decided On : 13-08-2010
KOLKATA MUNICIPAL CORPORATION - ADVERTISEMENT - HERITAGE CONSERVATION - [SECTIONS 202, 203, 204, 425B, 2(42A) OF THE KOLKATA MUNICIPAL CORPORATION ACT, 1980] - [SECTIONS 31(4)(II) OF THE WEST BENGAL TOWN AND COUNTRY (PLANNING AND DEVELOPMENT) ACT, 1979] - [SECTIONS 2(F), 2(I), 4, 11, 16 OF THE WEST BENGAL HERITAGE COMMISSION ACT, 2001] - The Calcutta High Court held that the Kolkata Municipal Corporation had the authority to preserve heritage buildings and sites under Chapter XXIII-A of the Kolkata Municipal Corporation Act, 1980, and that the provisions of this Chapter had not been impliedly repealed by the West Bengal Heritage Commission Act, 2001. The Court also held that the Corporation could rely on the recommendations of the Heritage Conservation Committee constituted under Section 425D(1) of the Kolkata Municipal Corporation Act, 1980, when making decisions about the preservation of heritage buildings and sites.
Fact of the Case:
The Petitioners, who were engaged in the business of setting up hoardings in and around Kolkata, challenged a letter issued by the Kolkata Municipal Corporation (KMC) directing them to remove their hoardings from certain areas of the city on the ground that these areas had been declared as heritage precincts. The Petitioners contended that the KMC did not have the authority to declare these areas as heritage precincts and that the impugned letter was issued without following the due process of law.
Finding of the Court:
The Court held that the KMC had the authority to declare certain areas as heritage precincts under Chapter XXIII-A of the Kolkata Municipal Corporation Act, 1980, and that the provisions of this Chapter had not been impliedly repealed by the West Bengal Heritage Commission Act, 2001. The Court also held that the KMC could rely on the recommendations of the Heritage Conservation Committee constituted under Section 425D(1) of the Kolkata Municipal Corporation Act, 1980, when making decisions about the preservation of heritage buildings and sites. The Court further held that the impugned letter was issued after following the due process of law and that the Petitioners had not been denied a reasonable opportunity to be heard.
Issues: 1. Whether the KMC had the authority to declare certain areas as heritage precincts? 2. Whether the provisions of Chapter XXIII-A of the Kolkata Municipal Corporation Act, 1980, had been impliedly repealed by the West Bengal Heritage Commission Act, 2001? 3. Whether the KMC could rely on the recommendations of the Heritage Conservation Committee constituted under Section 425D(1) of the Kolkata Municipal Corporation Act, 1980, when making decisions about the preservation of heritage buildings and sites? 4. Whether the impugned letter was issued after following the due process of law? 5. Whether the Petitioners had been denied a reasonable opportunity to be heard?
Ratio Decidendi: 1. The KMC had the authority to declare certain areas as heritage precincts under Chapter XXIII-A of the Kolkata Municipal Corporation Act, 1980. 2. The provisions of Chapter XXIII-A of the Kolkata Municipal Corporation Act, 1980, had not been impliedly repealed by the West Bengal Heritage Commission Act, 2001. 3. The KMC could rely on the recommendations of the Heritage Conservation Committee constituted under Section 425D(1) of the Kolkata Municipal Corporation Act, 1980, when making decisions about the preservation of heritage buildings and sites. 4. The impugned letter was issued after following the due process of law. 5. The Petitioners had not been denied a reasonable opportunity to be heard.
Final Decision: The Writ Petition was dismissed. However, the Court directed the KMC to refund the license fees taken from the Petitioners to the extent of the period of the license that was still remaining in force after proportionately calculating the same.
Tapen Sen, J.
The Petitioners carry on business of setting up hoardings in an around Kolkata by letting out the same to different clients for display of their Advertisements therein. They have entered into various agreements with Private individuals as also different authorities like the Railways, P.W.D., KMDA etc. for putting up hoardings at different places within the municipal limits of Kolkata. The Petitioner No. 1 (M/s. Selvel Advertising Private Ltd.), has, in an around Kolkata and specially the B.B.D. Bag area, various sites for display of Advertisement and approved sites of the Kolkata Municipal Corporation for which taxes and fees are realised by the said Corporation under Sections 202, 203 and 204 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the said Act).
Sections 202, 203 and 204 of the said Act read as follows:- “202. Prohibition of advertisements without written permission of the Municipal Commissioner.- (1) No person shall erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post, kiosk or structure any advertisement, or display any advertisement to public view in any manner whatsoever, visible from a public street or public place (including any advertisement exhibited by means of cinematograph), in any place within Kolkata without the written permission of the Municipal Commissioner.
(2) The Municipal Commissioner shall not grant such permission if a) a licence for the use of the particular site for purpose of advertisement has not been taken out, or
b) the advertisement contravenes any provisions of this Act or the rules or the regulations made thereunder, or
c) the tax, if any, due in respect of the advertisement [ has not been paid, or]
d) the Mayor-in-Council, on the basis of the recommendation of the Heritage Conservation Committee, is of the view that such advertisement will obstruct the view of, or destabilise the structure of, or will not be in harmony with, any heritage building.]
3. No person shall broadcast any advertisement, except on radio or television, without the written permission of the Municipal Commissioner.
203. Licence for use of site for purpose of advertisement.- (1) Except under and inconformity with the terms and conditions of a licence, no person being the owner, lessee, sub-lessee, occupier or an advertising agent shall use or allow to be used any site in any land, building, wall or erect or allow to be erected on any site, any hoarding, frame, post, kiosk, structure, neon-sign or sky-sign for the purpose of display of any advertisement.
(2) For the purpose of advertisement, every person-
(a) using any site before the commencement of this Act, within ninety days from the date of such commencement, or
(b) intending to use any site, or
(c) whose licence for use of any site is about to expire, shall apply for a licence or renewal of a licence, as the case may be, to the Municipal Commissioner in such form as may be specified by the Corporation.
(3) The Municipal Commissioner shall, after making such inspection as may be necessary and within thirty days of the receipt of the application, grant, refuse, renew or cancel a licence, as the cast may be, on payment of such fees as may be determined by the Corporation by regulations [or as the budget estimate shall state under subsection (3) of section 131].
(4) The Municipal Commissioner may, if in his opinion the proposed site for any advertisement is unsuitable from the considerations of public safety, traffic hazards [aesthetic design, or obstruction of the view of , or harmony with, any heritage building,] refuse a licence or refuse to renew any existing licence.
(5) Every licence shall be for a period of one year except in case of sites used for temporary fairs, exhibitions, sports, events or cultural or social programmes.
(7) The Municipal Commissioner shall cause to be maintained a register wherein the licences issued under this section shall be separate
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