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IN THE HIGH COURT OF CALCUTTA
Amrita Sinha, J.
Shiromoni Flat Owners Association And Others - Appellant
Versus
Kolkata Municipal Corporation And Others - Respondent
W.P.O. No. 45 of 2018 & IA No. GA/3/2021 & GA/4/2021 & GA/5/2022
Decided On : 19-05-2022
KOLKATA MUNICIPAL CORPORATION ACT, 1980 - Ss. 394, 396 - WEST BENGAL HERITAGE COMMISSION ACT, 2001 - Ss. 4, 7, 11 - WEST BENGAL HERITAGE COMMISSION REGULATIONS, 2004 - Reg. 5 - BUILDING RULES, 2009 - Rule 62 - CONSTRUCTION OF BUILDING OVER GRADE I HERITAGE STRUCTURE - SANCTION OF PLAN - RELAXATION OF BUILDING RULES - VALIDITY - JURISDICTION OF HERITAGE COMMISSION - ADVICE OF HERITAGE COMMISSION - BINDING NATURE - QUORUM OF HERITAGE COMMISSION - DECISION TAKEN BY ONLY TWO MEMBERS - VALIDITY - JUDICIAL REVIEW - SCOPE - MALA FIDE INTENTION - ORDER FOR DEMOLITION OF CONSTRUCTION - COMPENSATION FOR WRONG COMMITTED - DEPOSIT OF MONEY FOR AFFORESTATION AND INCREASING GREEN COVERAGE - INVESTIGATION INTO MONEY TRAIL - DIRECTION.
Fact of the Case:
Petitioners, flat owners' association and owners and occupiers of flats of a high-rise building situated in the premises of a heritage structure, filed a writ petition alleging that a multi-storied building is proposed to be constructed on the driveway of the heritage structure in violation of the Building Rules of the Kolkata Municipal Corporation and various laws relating to heritage building and other environmental norms. Petitioners contended that the sanction of the plan for any new construction at the premises of the heritage structure is in violation of the Building Rules as well as the various laws relating to heritage building and other environmental norms. Petitioners also alleged that fire safety measures were not taken into consideration at the time of sanction of the building plan in respect of the proposed structure.
Finding of the Court:
1. The action of the West Bengal Heritage Commission in granting approval to the building plan is without jurisdiction and beyond the powers conferred by the Act of 2001 and the Rules framed thereunder. 2. The Chairman of the Heritage Commission alone does not have the jurisdiction, authority or power to take any steps under the Act of 2001 or the Rules framed thereunder. 3. There was no quorum on the day decision was taken to approve the plan proposal for construction. 4. The Heritage Commission does not have any jurisdiction to sanction or approve any building plan. 5. The plan for construction has been obtained upon misrepresentation and suppression of facts. 6. The action of the West Bengal Heritage Commission in granting approval to the building plan is without jurisdiction and beyond the powers conferred by the Act of 2001 and the Rules framed thereunder.
Issues: 1. Whether the sanction of the plan for any new construction at the premises of the heritage structure is in violation of the Building Rules as well as the various laws relating to heritage building and other environmental norms? 2. Whether the action of the West Bengal Heritage Commission in granting approval to the building plan is without jurisdiction and beyond the powers conferred by the Act of 2001 and the Rules framed thereunder? 3. Whether the Chairman of the Heritage Commission alone has the jurisdiction, authority or power to take any steps under the Act of 2001 or the Rules framed thereunder? 4. Whether there was a quorum on the day decision was taken to approve the plan proposal for construction? 5. Whether the Heritage Commission has any jurisdiction to sanction or approve any building plan? 6. Whether the plan for construction has been obtained upon misrepresentation and suppression of facts?
Ratio Decidendi: 1. The decision to approve the proposal for construction was based upon extraneous consideration rather than for the purpose of preserving the heritage structure. 2. The decision was taken in hot haste and in the absence of the members of the Commission. 3. The owner of the property was primarily interested in 'earning' and the developer of the new construction was also interested in earning by developing the said property. 4. The importance and the reason for preservation of a Grade-I heritage structure took a back seat and 'earnings' from the same became the deciding factor. 5. Money power was strong enough to blow the rulebook away. 6. The collusion between the owner, developer and the respondent authorities is glaringly apparent from the records.
Final Decision: 1. The newly constructed building has resulted in felling of a good number of trees and greenery of the area. It is the turn of the owner and developer both to compensate the wrong committed by them by parting with a portion of their 'earnings' for maintaining the green coverage. 2. The owner as well as the developer are directed to deposit a sum of rupees one crore each on account of each flat that has been constructed, i.e, the owner is required to pay rupees twenty-two crore and the developer has to put in rupees twenty-two crore, totalling rupees forty-four crore. 3. Fifty percent of the aforesaid amount i.e, rupees twenty-two crore shall be deposited before the Director General, Parks and Squares, KMC within 15th June, 2022 who is directed to deposit the amount in a separate interest bearing nationalized bank account. 4. The balance amount of rupees twenty-two crore shall be deposited before the Principal Secretary, Department of Sundarban Areas within 15th June, 2022 who is directed to deposit the amount in a separate interest bearing nationalized bank account. 5. The said fund will not be utilised for any other purpose apart from afforestation. 6. The Director General, Parks and Squares, KMC and the Principal Secretary, Department of Sundarban Areas are directed to maintain proper book of accounts, duly audited, in support of the expenditure made. 7. The authorities shall strive to plant trees that will develop and maintain the green cover and reduce pollution. 8. The authorities shall maintain proper records of the trees planted and ensure that the percentage of greenery keeps increasing every year. 9. The authorities shall prepare a yearly report of the expenditure and the details of the trees planted and submit the same before the Registrar General of this Court within 30th June every year. 10. On failure to deposit the aforesaid amount, KMC is directed to take steps for stopping any further construction over the said property and the KMC is restrained from issuing the Completion Certificate in respect of the newly constructed structure notwithstanding the fact that all formalities for issuance of the Completion Certificate is complied. 11. The owner and developer will also not be permitted to transfer the newly constructed flats to the prospective buyers. 12. It is made abundantly clear that payment of the aforesaid amount will not give a stamp of sanction to the construction that has been made. 13. The same shall also not be construed as a means or mode to regularise the construction so made. 14. The Court feels it expedient to direct investigation in the matter to unearth the money trail involved in obtaining the approval of the plan proposal for making construction over a Grade I heritage property. 15. The investigation shall be carried out under strict supervision of the Regional Head, Central Bureau of Investigation.
JUDGMENT
Amrita Sinha, J. - The petitioner no. 1 is the flat owners' association and the petitioner nos. 2- 12 are the owners and occupiers of flats of B+G+17 storied building 'Shiromani' situated in the premises no. 60/1, Ballygunj Circular Road, Kolkata - 700 019. Premises no. 59, Ballygunj Circular Road, Kolkata - 700 019 under the name and style of 'Tripura House', which has been declared as a heritage structure, is situated in the eastern side of the high rise of the petitioners.
2. The petitioners filed the instant writ application in January, 2018 with the allegation that a multi-storied building is proposed to be constructed on the driveway of the heritage structure.
3. It is the contention of the petitioners that sanction of the plan for any new construction at the premises of Tripura House is in violation of the Building Rules of the Kolkata Municipal Corporation as well as the various laws relating to heritage building and other environmental norms.
4. It is the specific contention of the petitioners that the minimum side, front and rear open spaces, that are required to be maintained for construction of building according to the Kolkata Municipal Corporation Building Rules, have not been maintained. Construction was being made by demolishing substantial part of the grand heritage structure of Tripura House. The floor-area ratio of the proposed new building has been determined upon taking into consideration portions of land of the premises no. 60/1, Ballygunj Circular Road.
5. Tripura House originally comprised of 7 bighas 6 kattas 10 chittacks. Out of the aforesaid area, the adjoining building Shiromani at premises no. 60/1, Ballygunj Circular Road was constructed after obtaining sanction from the Kolkata Municipal Corporation with basement, ground and seventeen stories in the year 2003. The land in which Shiromani stands has been separated from the mother premises and renumbered. Presently, Tripura House situated at 59, Ballygunj Circular Road comprises the balance area of 4 bighas 6 kattas and 15 chittacks.
6. The floor-area ratio which was available for the mother premises was entirely utilised for construction and allowed by the Kolkata Municipal Corporation for issuance of the revised sanction plan in respect of the premises no. 60/1, Ballygunj Circular Road where the G+17 storeyed building with basement, Shiromani, has been constructed. The entire ground area available for the mother premises no. 59, Ballygunj Circular Road including driveway was taken into consideration for construction of the building Shiromani at 60/1, Ballygunj Circular Road. The same area cannot now be utilised for sanction of another new building to be constructed at premises no. 59A, Ballygunj Circular Road. The mandatory car parking spaces that are to be sanctioned falls within the area where the proposed building is purported to be sanctioned and/or constructed.
7. The proposed construction will result in cutting of innumerable trees, bushes, shrubs alongside the driveway resulting in violation of environmental laws.
8. Construction of G+13 storey new building will result in blockage of free flow of natural light and air.
9. It is also the case of the petitioners that the Kolkata Municipal Corporation acted de hors the provisions of law in relaxing provisions of the Building Rules with the sole intention of permitting the proposed construction.
10. The petitioners have also alleged that fire safety measures were not taken into consideration at the time of sanction of the building plan in respect of the proposed structure.
11. The petitioners have prayed for issuance of a writ of Mandamus to cancel, quash and rescind the sanction plan for construction at premises no. 59A, Ballygunj Circular Road.
12. The petitioners also made a prayer for interim order restraining the Kolkata Municipal Corporation to permit the private respondents herein to make any construction or to change the nature and character of the premises no. 59, Ballygunj Circular Road
If a matter is required to be done in a particular manner, the same has to be done in that manner or not at all.
The designation of a property as heritage must comply with statutory procedures, and property owners have rights that must be considered in such designations.
The decision to declare a property as a heritage building must be based on authentic and tangible evidence, and the property owner's rights should not be violated without justifiable reasons.
The court established that compliance with statutory procedures is essential for the declaration of heritage properties, and property owners have the right to contest such classifications.
A party must demonstrate a legal right or interest to maintain a writ petition; mere annoyance is insufficient for locus standi.
Special permissions for redevelopment of Grade-III heritage buildings do not require Heritage Conservation Committee approval if the height exceeds 24 meters, reaffirmed by the court's interpretation....
The court's decision underscores the deference to expert opinions in matters concerning the preservation and demolition of heritage buildings, emphasizing the importance of safety considerations and ....
A building plan submitted to a municipal authority is deemed sanctioned only if submitted correctly; failure to provide required particulars negates this status.
An interlocutory order deciding the rights of the parties and having the trappings of finality is a judgment within the meaning of Clause 15 of the Letters Patent and is open to challenge in an intra....
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