The justiciability of rights affected by the declaration of a building as a heritage property and the right to challenge such declaration in a Writ Court under Article 226 of the Constitution of India.

DEBANGSU BASAK, J.

1. The petitioners have challenged the classification of premises No. 22, Park Street, Kolkata-700016 as heritage building under Grade (I) for architectural type.

2. Learned Advocate appearing for the petitioners has submitted that, the writ petition has to be heard in terms of the order of remand of the Division Bench dated August 30, 2017. The first petitioner had participated in a proceeding for grant of lease of the concerned premises, conducted by the official receiver. The petitioners became the highest bidder in such proceeding. The first petitioner was confirmed to be the highest bidder by an Order dated April 9, 2008. He has drawn the attention of the Court to the terms and conditions governing the proceeding for grant of the lease as well as the order confirming the grant of lease in favour of the first petitioner. He has drawn the attention of the Court to the various clauses of the deed of lease executed between the official receiver and the first petitioner. He has submitted that, the first petitioner has a right to construct in terms of the order dated April 9, 2008 and the lease deed dated October 3, 2008.

3. Learned Advocate for the petitioners has relied upon 2016 Volume 1 Calcutta High Court Notes (Cal) page 329 (Kamal Dey v. Archeological Survey of India, New Delhi) and has submitted that, the building concerned, cannot be considered as a heritage building. He has referred to Kamal Dey (supra) and submitted that, the Kolkata Municipal Corporation did not adhere to the provisions of Sections 425A and 425B of the Kolkata Municipal Corporation Act, 1980, in declaring the building as a heritage building. The documents referred to in Kamal Dey (supra) have been referred to and relied upon by the Corporation in the present proceeding. On the strength of such documents, it cannot be said that, the concerned premises has been declared as a heritage building in terms of the provisions of Section 425B of the Act of 1980. He has compared the documents relied upon by the Corporation authorities with those available before the Division Bench considering Kamal Dey (supra) and has submitted that, the same documents were there in Kamal Dey (supra). He has referred to the various paragraphs of the affidavit-in-opposition and the pleadings in the writ petition, and submitted that, the concerned premises cannot be considered as a heritage building.

4. Learned Advocate appearing for the Corporation has drawn the attention of the Court to the pleadings made in the writ petition. He has submitted that, there is a difference between the declaration of a building as a heritage building and the classification thereof. A building is declared to be a heritage building under Section 425B of the Act of 1980. Subsequent to a building being declared as a heritage building, the same is graded and classified under various grades in terms of Section 425C of the Act of 1980. In the present case, as the prayers stand in the writ petition, the declaration of the building as a heritage building is not under challenge. What is being challenged by the petitioners is the classification of a heritage building. Since the petitioners have not challenged the declaration of the building as a heritage building, no relief should be granted to the petitioners.

5. Learned Advocate appearing Corporation has drawn the attention of the Court to the Order dated July 15, 2009 passed in G.A. No. 1819 of 2009 Old Equity Suit No. 1 of 1842 (Sukumar Basak & Ors. v. The Official Receiver & Ors.) and has submitted that, the petitioners are protected, in the event the relief’s in the present writ petition are not granted. Moreover, the petitioners have a right to apply for declassification of a building as a heritage building under the provisions of the Act of 1980. The petitioners have not availed of such opportunity. Referring to the order of remand dated August 30, 2017 learned Advocate for the Corporation has submitted that, the petitioners