Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Cal) 584

IN THE HIGH COURT OF CALCUTTA
Jyotirmay Bhattacharya, Debi Prosad Dey, JJ.
Sri Kamal Dey, Editor & Publisher of Barta Nyay & Ors. - Petitioners
Versus
Director General, Archeological Survey of India, New Delhi & Ors. - Respondents
W.P. Nos. 27784 (W) of 2014; 6773(W), 7502(W) & 213 of 2015
Decided On : 03-07-2015

Advocates Appeared:
For the Petitioner: Kamal Dey in Person, Amal Baran Chatterjee, Chittaranjan Panda
For the High Court Administration : Kishore Datta, Ananya Das
For the State : Tapan Kumar Mukherjee, Hasanuz Zaman

Service of notice upon the municipality before commencement of work as contemplated under Section 3 of the Government Building Act, 1899 is mandatory in nature and that failure to give such notice cannot be held to be a mere irregularity.

Headnote:
[KEYWORD] - HERITAGE BUILDING - EXEMPTION FROM BUILDING RULES - GOVERNMENT BUILDING ACT - APPLICABILITY - NOTICE UNDER SECTION 3 - MANDATORY - DEMOLITION OF CONSTRUCTION - NOT JUSTIFIED - MUNICIPAL AUTHORITY TO DECLARE BUILDING AS HERITAGE - IN ACCORDANCE WITH MUNICIPAL LAW.
Fact of the Case:

Writ petitions challenging the legality of the construction of an air-conditioning plant within the High Court compound. Petitioners contended that the construction violated various provisions of the Kolkata Municipal Corporation Act and should be demolished to restore the internal structural view of the heritage building. The High Court Administration and the State Government disputed this contention, arguing that the High Court building had not been declared as a heritage building in accordance with the provisions of the Kolkata Municipal Corporation Act and that the Government Building Act, 1899 exempted the Government from complying with the Building Rules contained in Chapter XXII of the Kolkata Municipal Corporation Act.
Finding of the Court:

The Court held that the declaration of the High Court building as a heritage building by the Kolkata Municipal Corporation was not valid as it was not made on the basis of the recommendation of the Heritage Conservation Committee and the Mayor-in-Council as required by the Kolkata Municipal Corporation Act. The Court further held that the Government Building Act, 1899 was still in operation and that the exemption from applying the Building Rules which is granted to the Government for raising construction on the land of the Government or on the land in occupation of the Government was applicable in the present case. However, the Court held that service of notice upon the municipality before commencement of work as contemplated under Section 3 of the Government Building Act, 1899 was mandatory in nature and that failure to give such notice could not be held to be a mere irregularity.
Issues: 1. Whether the declaration of the High Court building as a heritage building by the Kolkata Municipal Corporation was valid. 2. Whether the Government Building Act, 1899 was still in operation and whether the exemption from applying the Building Rules which is granted to the Government for raising construction on the land of the Government or on the land in occupation of the Government was applicable in the present case. 3. Whether service of notice upon the municipality before commencement of work as contemplated under Section 3 of the Government Building Act, 1899 was mandatory in nature.
Ratio Decidendi: 1. The declaration of the High Court building as a heritage building by the Kolkata Municipal Corporation was not valid as it was not made on the basis of the recommendation of the Heritage Conservation Committee and the Mayor-in-Council as required by the Kolkata Municipal Corporation Act. 2. The Government Building Act, 1899 was still in operation and the exemption from applying the Building Rules which is granted to the Government for raising construction on the land of the Government or on the land in occupation of the Government was applicable in the present case. 3. Service of notice upon the municipality before commencement of work as contemplated under Section 3 of the Government Building Act, 1899 was mandatory in nature and that failure to give such notice could not be held to be a mere irregularity.
Final Decision: The Court disposed of all the writ petitions by directing the Public Works Department of the State of West Bengal to sit with the municipal authority across the table to discuss the issue regarding the retainability of the construction. The Court also directed the Municipal authority to take steps for declaring the High Court Building as Heritage Building in furtherance of the provision contained in Section 425B of the Kolkata Municipal Corporation Act, 1980, forthwith.

JUDGMENT :

Jyotirmay Bhattacharya, J.

A. Facts leading to the filing of these four Public Interest Litigations;

The High Court Employees' Welfare Association demanded for immediate installation of air-conditioning system in all the Sections/Departments of both the Appellate Side and Original Side establishment of the Calcutta High Court. Similarly, members of the three wings of the Bar, namely, Bar Association, Bar Library Club and Incorporated Law Society of Calcutta High Court also demanded for introduction of air-conditioning facilities in all the three wings of the Bars in the High Court at Calcutta. The High Court Administration considered their demand and found that their demand was justified in view of long lasting heat wave during the summer months and the hot season which now-a-days extends from February to October every year coupled with effect of global warming. The High Court administration felt that for increasing the work efficiency of the employees of the High Court and also of the lawyers, all the Departments and Sections of the High Court as well as three wings of the Bar Rooms should be provided with the air-conditioning facilities. Accordingly, the said issue was taken up with the Government. Since implementation of the said project not only involved huge amount of financial expenditure but also up gradation of the electricity supply sub-station and felling of trees within the High Court compound were necessary, long deliberation was made on those issues with the participation of the high officials and/or representatives of different departments of the Government, CESC authorities and Kolkata Municipal Corporation etc. and ultimately the State Government agreed to implement the said project. For implementation of the said project some additional construction was necessary for installation of the AC plant therein. Accordingly, a vacant place within the High Court compound was selected for raising such construction for installation of the AC plant and also for relocating the offices of the PWD Department in a portion thereof inasmuch as relocation of all the offices of the PWD in one place was found to be necessary for effective maintenance of the High Court building. Ultimately, with permission of the competent authority of Forest Utilization Division certain trees were felled down from the proposed construction site. The building plan was prepared by the Chief Architect of the PWD Department of the State of West Bengal and after the High Court administration approves the said building plan, the Government estimated the cost of such construction and also released fund for implementation of the said project. Thereafter constructional work commenced by the PWD Department of the State of West Bengal. By this time the construction has almost been completed.

2. Be that as it may four Public Interest Writ Petitions were filed challenging the legality of the said construction before this High Court. One of such writ petitions being W.P No. 27748(W) of 2014 was filed by Sri Kamal Dey, immediately after the preliminary work for such construction was commenced. However, the petitioner therein could not move the said writ petition seeking interim injunction immediately after its filing as the said writ petition was released by different Benches of this Court on diverse grounds. In fact, apart from the said petition three other writ petitions were filed challenging the legality of the said construction. One of such writ petitions was filed in the Original Side and the remaining three writ petitions were filed in the Appellate Side of this Court. All those four writ petitions were assigned to this Bench for disposal. Since the issues involved in all those writ petitions were identical with each other we consolidated all those four writ petitions and considered those writ petitions simultaneously. Despite, all those four writ petitions were heard on a number of days on day-to-day basis but still then those writ petitions could

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2015 Supreme(Cal) 584

Service of notice upon the municipality before commencement of work as contemplated under Section 3 of the Government Building Act, 1899 is mandatory in nature and that failure to give such notice cannot be held to be a mere irregularity.

Cases Referred (1)