JUDGMENT :

AMRITA SINHA, J.

1. The matter relates to the premises no. 2, Camac Street presently known as Abanindranath Thakur Sarani, PS – Shakespeare Sarani, Kolkata-700 016, under Borough-VII of the Kolkata Municipal Corporation (‘KMC’ for short). The petitioners, claiming to be owners of the property, submits that the said premises comprises of land measuring about two bighas two kathas eight chittaks and 28 sq. ft. along with two old buildings standing thereon, one being the main building and the other the annexe thereof. The main building and the annexe building both are three storied structures, more than ninety years old.

2. Sometimes in May, 2006 the petitioners, for the first time, discovered from newspaper reports, that the said property has been included in the list of heritage properties prepared by KMC under Grade-IIA. The petitioners objected to the recording of the structure as heritage. They were made to understand that the properties categorised in Grade-IIA may be permitted to make new construction in the open land within the premises in compatible manner with the heritage building, but no external change will be permissible and in no case new construction should obstruct the view of the heritage building.

3. The petitioners sought permission to repair the premises in 2013 followed by reminders in 2014 but the municipal authorities did not grant permission and also prevented the petitioners from carrying on the repairing work. The petitioners allege that the main building is in a dilapidated condition and requires very urgent repairing work for maintenance of the same.

4. The petitioners approached the Project Management Unit of KMC with a redevelopment plan in 2019 but the said plan was not approved by KMC. No reasons have been put forward for disapproval of the re-development plan. Inaction on the part of KMC caused a portion of the main building to collapse in the year 2020.

5. After the pandemic subsided in the end of December, 2021 the petitioners engaged an expert of the Construction Engineering Department of Jadavpur University to make a health audit of the main building. The expert opined that the main building is required to be dismantled and demolished forthwith. The building is uninhabitable at present and there is no scope to restore the condition of the building by repairs. Demolition is the only option left at this stage. Armed with the aforesaid Health Assessment Report, the petitioners applied before KMC with request to pass immediate order of demolition. KMC is neither permitting the petitioners to repair the structure nor allowing the petitioners to demolish the same in aid of re-development.

6. It has been contended that the petitioners being owners of the subject structure is entitled to enjoy the same in accordance with their free will and desire but incorporation of the structure in the heritage list is standing in their way to utilise their property as per their requirement. Sanction for construction of new building on removal of the existing ruinous building cannot be refused as the same is an unreasonable restriction on the right of the petitioners as enshrined under Article 300A of the Constitution of India. The same is also contrary to the statutory obligation of KMC to take steps in accordance with the provision of Section 411 of the KMC Act, 1980 read with Section 29(k) of the Act.

7. It has been contended that the declaration of heritage building by the resolution of KMC has been set at naught by various orders passed by this Court, and accordingly, the subject building ought not to be treated as heritage and the petitioners ought to be permitted to demolish and reconstruct the same in accordance with the plan sanctioned by KMC.

8. In support of the submission that the property be delisted from the list of heritage properties maintained by KMC, the petitioners rely upon the judgment delivered by this Court in the matter of Kamal Dey vs. Archaeological Survey of India, 2015 SCC Online Cal