Calcutta High Court
Asl West Enclave Private Limited & Anr vs Kolkata Municipal Corporation & Ors on 29 August, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
APO/3/2020
WITH
WPO/146/2010
ASL WEST ENCLAVE PRIVATE LIMITED & ANR.
VS
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE: The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE APURBA SINHA RAY
For Appellants : Mr. Mainak Bose, Adv.
Mr. Rishabh Karnani, Adv.
Ms. Sweta Gandhi Murgai, Adv.
For Kolkata Municipal : Mr. Alak Kumar Ghosh, Sr. Adv.
Corporation Mr. Biswajit Mukherjee, Adv.
Mr. Gopal Chandra Das, Adv.
CAV on : 22.05.2024
Judgment on : 29.08.2024
Arijit Banerjee, J. :-
1. A judgment and order dated July 16, 2018, passed by a learned Judge
of this Court dismissing the appellants' writ petition being W.P. No. 146 of
2010, is under challenge in this appeal at the instance of the writ
petitioners.
2
2. The learned Single Judge has negated the writ petitioners' challenge to
declaration of their property as Grade-I Heritage by Kolkata Municipal
Corporation (in short 'KMC'). The material facts of the case are as follows:-
(i) Responding to a public notice issued by the Official Receiver in terms
of orders passed by this Court, the appellants, in short ASL (which was
previously known as 'Purti') participated in an auction process for grant
of 99 years' lease in respect of premises no. 22, Park Street, Kolkata-
700016 (in short 'the subject property'). ASL emerged as the highest
bidder. Upon ASL paying Rs.10.5 crore to the Official Receiver, the
latter executed a lease in favour of ASL in respect of the subject
property.
(ii) KMC refused mutation in favour of ASL in respect of the subject
property on the ground that the same is a heritage property.
(iii) ASL made representations to KMC objecting to classification of the
subject property as heritage and for excluding the property from the
heritage list.
3. Not having received any favourable response from KMC, ASL filed the
instant writ petition praying for the following reliefs:-
"(a) A writ of and / or in the nature of Mandamus do issue
commanding the respondents, their men, agents, servants, and
assigns to forthwith-
(i) Quash, rescind, recall, set aside, cancel and/or revoke the
impugned classification of premises No. 22, Park Street, Kolkata -
700 016 as Heritage Building under Grade - I for the architectural
style;
(ii) Refrain from giving any effect and/or further effect and/or
taking any step and /or further step pursuant to classification of
premises No. 22, Park Street, Kolkata - 700 016 as Heritage
Building under Grade - I for architectural style;
(iii) Direct the Chairman, Heritage Conservation Committee to
furnish the petitioner with a copy of the purported
recommendation, if any, for classification of premises no. 22, Park
Street, Kolkata - 700 016 as Heritage Building under Grade - I for
architectural style;
(b) Writ of and/or writs in the nature of Certiorari commanding the
respondents, their men, agents, servants and/or assigns to
transmit to this Hon'ble Court all records relating to the
classification of premises no. 22, Park Street, Kolkata - 700 016 as
Heritage Building under Grade - I for architectural style and serve
the same to this Hon'ble Court so that conscionable justice be
rendered by quashing the same;"
4. Despite direction for exchange of affidavits having been given by the
learned Single Judge, no affidavit was filed by KMC.
5. By an order dated March 31, 2016, the writ petition was allowed. The
declaration of the subject property as a heritage building was set aside.
6. KMC preferred an intra court appeal. By a judgment and order dated
August 30, 2017, the appeal was allowed by a Coordinate Bench and the
matter was remanded to the learned Single Judge for consideration afresh.
The operative portion of the order reads as follows:-
"It is the admitted position that in the facts and circumstances of the
instant case, the writ petitioners/respondents had obtained leasehold
right of the subject property by way of transfer from the Official
Receiver in a Court proceeding at a point of time when the property
was already declared as a heritage property/building. The learned
Single Judge, without taking this aspect into consideration, has
allowed the writ petition upon coming to a finding that the declaration
of heritage status of 22, Park Street was liable to be set aside along
with its classification or gradation as Grade-I. We are of the view that
in the facts and circumstances of the instant case, the learned Single
Judge ought to have at first decided on the aspect of whether the writ
petitioners/respondents could at all have any locus standi to
challenge the declaration of the heritage status of the building when,
admittedly, such status was declared before acquiring of the property
by the writ petitioner from the Official Receiver in a Court proceeding.
On this ground alone, the impugned judgement and order is liable to
be set aside and is accordingly set aside. The matter is remanded
before the First Court for consideration afresh in accordance with law
based on the pleadings which are already on record."
7. After remand, KMC filed its affidavit-in-opposition to the writ petition.
8. By the judgment and order impugned in this appeal, the writ petition
was dismissed.
9. Alleging that such judgment and order was contrary to a judgment of
a Coordinate Bench rendered in W.P no. 1151 of 2016 (Sri Bimal Chandra
Saha v. The Kolkata Municipal Corporation & Ors.), ASL filed a review
application. Such application was dismissed by an order dated February 28,
2019.
10. Thereafter, the present appeal was filed against the parent order
dismissing the writ petition. ASL contends that since the review application
was dismissed without altering the parent order in any manner, no appeal
would lie therefrom. In this connection, reliance was placed on the decision
of the Hon'ble Supreme Court in the case of DSR Steel (Private) Limited v.
State of Rajasthan & Ors., reported at (2012) 6 SCC 782.
11. Before recording the arguments of the parties advanced before us, we
may note that the learned Single Judge framed three issues for decision:-
"(i) Whether the first petitioner, as the transferee having an
interest in an immovable property, has the locus to challenge the
declaration of heritage status of a building, when the transferor,
being the Official Receiver, did not challenge the same, despite
notice?
(ii) If the answer to the first issue is in the affirmative and in favour
of the petitioners then, has the building been duly declared as a
heritage building under provisions of the Kolkata Municipal
Corporation Act, 1980 ?
(iii) To what relief or reliefs, if any are the parties entitled?"
12. The learned Judge decided the first issue in favour of the writ
petitioners holding that ASL has the locus standi to challenge the
declaration of the concerned building as heritage property. No independent
appeal or cross objection in this appeal has been filed at the instance of
KMC against such finding. Hence, we need not dilate on that issue.
13. On the second issue, the learned Judge held that the concerned
premises was declared as Heritage property following due process of law.
The writ petition was dismissed with the following observations:-
"In the facts of the present case, the premises concerned has been
declared as a heritage under the provisions of the Act of 1980. The
Official Receiver exercising the rights as owner of the building was
given a notice of hearing. The Official Receiver did not raise any
objection with regard to the declaration of the building as a
heritage. The Act of 1980 contemplates a situation where a
building once declared as a heritage building can be taken out of
its purview. It is, therefore, open to the petitioners to approach the
appropriate authorities, for cancellation of such declaration.
In such circumstances, the second issue is answered in the
negative, against the petitioner, by holding that the building has
been duly declared as a heritage building under the provisions of
the Act of 1980. In view of the finding returned with regard to the
second issue, no relief can be granted to the petitioners. The third
issue is answered accordingly."
Argument of the appellants
14. Learned Counsel for the appellants submitted that the declaration of
the subject property as heritage is not in accordance with the provisions of
Chapter XXIIIA of the KMC Act of 1980 and in particular Sections 425 (B),
(C) and (D) of the Act. There has neither been a Heritage Conservation
Committee (In short 'HCC') within the meaning of the Act nor has the
procedure prescribed under the Act been followed for classifying the subject
property as a heritage building. As such, declaration of the subject property
as heritage is contrary to law, unconstitutional and deserves to be set aside.
15. Learned Counsel referred to a Division Bench decision of this Court in
the case of Kamal Kumar Dey v. Director General, Archaeological
Survey of India, New Delhi & Ors., Reported at (2016) 1 CHN 329
wherein it was held that the declaration of the Calcutta High Court building
as heritage was not in accordance with the provisions of Chapter XXIIIA of
the KMC Act. It was submitted that the documents which were taken into
consideration by the Division Bench in Kamal Dey's case, showed that the
only exercise undertaken to classify buildings as heritage, was by an "Expert
Committee" constituted by the State Government, in September, 1998.
Neither the HCC nor the Mayor-in-Council ever took any step to classify the
High Court building as a heritage property in accordance with the provisions
of the KMC Act. It was held that HCC had merely followed what was decided
by the 'Expert Committee". There never was any independent application of
mind either by HCC or by the Mayor-in-Council or by KMC as is required
under Chapter XXIIIA of the 1980 Act.
16. Learned Counsel submitted that the 12 additional documents filed
and relied upon by KMC before the learned Single Judge, reiterates the
same position as was there before the Division Bench in Kamal Dey's case.
Each of the documents including the minutes of the meetings of HCC,
Mayor-in-Council and the Corporation, refers to the decisions taken by HCC
and its sub-committee on the recommendation made by the "Expert
Committee". The list prepared by the Expert Committee relates to 828
properties included the subject property. Such list was mechanically
adopted and approved first by HCC, then by the Mayor-in-Council and
ultimately by the Corporation.
17. It was then submitted that this Court had directed KMC to file
documents to show that the HCC was constituted in accordance with the
provisions of the 1980 Act. An affidavit dated September 6, 2023, was filed
by KMC. That affidavit fails to disclose how the HCC was constituted or who
the first members of HCC were. What is being alleged to be the HCC is not a
Committee constituted in accordance with the provisions of the 1980 Act.
18. Learned Counsel then referred to the decision dated September 15,
2017, of a learned Judge of this Court, rendered in W.P. No. 1151 of 2016.
In that case, the learned Judge, following the Division Bench decision in
Kamal Dey's case, held that the decision of KMC declaring the concerned
premises as heritage was not in accordance with the provisions of the 1980
Act. Accordingly, such decision was set aside.
19. Finally, learned Counsel submitted that when a statute provides a
thing to be done in a particular manner, the same must be done in that
manner or not at all. The State and other statutory authorities are bound by
the provisions of the concerned statute. The authorities must act within the
four corners of the statute. In this connection, reliance was placed on the
Privy Council decision in the case of Nazir Ahmed v. King Emperor
reported at AIR 1936 Privy Council 253(1) and on the decision of the
Hon'ble Supreme Court in the case of Municipal Corporation of Grater
Mumbai v. Mr. Abhilash Lal & Ors., reported at (2020) 13 SCC 234.
KMC's Submission
20. Referring to the documents disclosed by way of affidavits affirmed on
behalf of KMC, learned Counsel for KMC made the following submission:
"(a) On or about October 6, 1997, the Government of West Bengal
constituted an Expert Committee to identify and recommend
buildings in Kolkata as heritage. That Committee prepared a list of
buildings with the recommendation to declare the buildings as
heritage.
(b) That report was forwarded to the Municipal Commissioner for
taking action in accordance with the provisions of the KMC Act,
1980.
(c) In August, 1999, notices were published in "Ananda Bazar
Patrika" and "The Telegraph" newspapers informing the public at
large that the list of heritage buildings will be kept at different
KMC offices for public inspection and objection, if any.
(d) In April, 2000, the HCC recommended 828 numbers of
buildings for being listed as heritage. One of such buildings is the
subject premises.
(e) In May, 2000, the Mayor-in-Council primarily accepted the
recommendation of HCC. In September, 2000, the
recommendation of the Mayor-in-Council was approved at a
meeting of KMC.
(f) In October, 2000, HCC reviewed the earlier list and
recommended 520 more buildings to be listed as heritage. The
same was accepted by the Mayor-in-Council in January, 2001.
Subsequently, KMC approved the same at its meeting.
(g) It appears from the minutes of the meeting of HCC held on
January 12, 2009, that by a resolution of HCC dated June 23,
2006 and approved by the Mayor-in-Council on June 30, 2006, a
sub-committee was constituted. That sub-committee determined
the Grades of the heritage buildings based on historic importance,
social significance and architectural significance of the buildings.
The sub-committee placed its final list of heritage buildings for
Grade - I, Grade -IIA and Grade- IIB before the HCC. At its
meeting held on January 12, 2009, HCC accepted that final list of
heritage buildings. That list was subsequently placed before the
Mayor-in-Council on January 22, 2009, which recommended
acceptance of the aforesaid final list of heritage buildings. At its
meetings dated February 25, 2001, the Corporation accepted the
final list."
21. Learned Advocate submitted that KMC declared the concerned
buildings including the subject premises as heritage strictly adhering to the
provisions of Chapter XXIIIA of the KMC Act. He said that the "Expert
Committee's" report was duly scrutinised and considered by the HCC before
the same was adopted and approved. Thereafter, HCC's recommendation
was placed before the Mayor-in-Council which considered and approved the
same. Finally, the KMC at its meeting accepted the recommendation of the
HCC as approved by the Mayor-in-Council. There was no procedural
lacunae in so far as declaration of the concerned properties as heritage is
concerned.
22. Learned Counsel then argued that before the Division Bench in Kamal
Dey's case, the 12 crucial documents which have been disclosed by KMC by
way by its affidavit dated September 6, 2023, were not there. The Division
Bench did not have the opportunity of considering the said documents. In
that background, the Division Bench held that the Corporation did not form
any independent opinion that the High Court building should be preserved
and conserved for historical, architectural, environmental or ecological
purpose on the basis of the recommendation of the HCC and also of the
Mayor-in-Council. The Division Bench went on to hold that no material had
been produced before it to show that declaration of the High Court building
as heritage property "was made by the Municipal Authority on the basis of
any recommendation of HCC and also of the Mayor-in-Council. In the
absence of those materials we have no hesitation to hold that declaration of
the Heritage status of the High Court building by the Kolkata Municipal
Corporation was not made by the Kolkata Municipal Corporation in
adherence to the provisions contained in Section 425 B of the said Act."
Learned Advocate submitted that the decision in Kamal Dey's case would
not apply to the facts of the present case.
Court's view
23. Before considering the arguments made on behalf of the parties, let us
note the relevant provisions of the KMC Act, 1980:-
"S.2(42A). 'heritage building' means any building of one or more
premises, or any part thereof, which requires preservation and
conservation for historical, architectural, environmental or ecological
purpose, and includes such portion of the land adjoining such
building or any part thereof as may be required for fencing or
converting or otherwise preserving such building, and also includes
the areas and buildings requiring preservation and conservation for
the purpose as aforesaid under sub-clause (ii) of Clause (a) of sub-
section (4) of Section 31 of the West Bengal Town and Country
(planning and Development) Act, 1979 (West Ben. Act XIII of 1979);
S.425B. Power of Corporation to declare a building as a heritage
building.__ Where the Corporation, on the recommendation of the
Heritage Conservation Committee and also of the Mayorin-Council, is
of the opinion that any building in Kolkata should be preserved and
conserved for historical, architectural, environmental or ecological
purpose, it may declare such building as a heritage building :
Provided that during the period when any proposal for declaring
building as a heritage building is under consideration of the Heritage
Conservation Committee or the Mayor-in-Council, no owner of such
building, or no lessee or sub-lessee to whom such building has been
leased out, shall transfer such building by way of sale, lease or
mortgage without the prior approval of the Municipal Commissioner.
S.425C. Gradation of heritage building.__ The gradation of a
heritage building according to its historical, architectural,
environmental or ecological purpose shall be such as may be
prescribed.
S.425D. Heritage Conversion Committee - (1) The Mayor-in-Council
shall constitute a Committee to be called the Heritage Conversion
Committee with the Municipal Commissioner as its Chairman and an
officer of the corporation as the Convenor.
(2) The Committee shall, have, in addition to the Chairman and the
Convenor, seven other members of whom-
(a) one shall be nominee of the Calcutta Metropolitan Development
Authority,
(b) one shall be the Director of the Development of Archeology,
Government of West Bengal, or his nominee,
(c) one shall be an eminent architect,
(d) one shall be an artist,
(e) one shall be an environmentalist,
(f) one shall be a historian, and
(g) one shall be the Chief Valuer and Surveyor of the Corporation. (3)
The Committee may co-opt one person to be nominated by the
concerned department of the State governed while dealing with any
land or building under the management of the said.
(4) The Committee shall, in accordance with the provisions of this Act
and the rules and the regulations made thereunder, scrutinize every
application or proposal for declaration of a building as a heritage
building and recommend to, and also advice, the Mayor-in-Council in
respect of the preservation and conservation of such building as a
heritage building.
(5) The Committee shall meet at such periodical interval as may be
determined by the Mayor-in-Council.
(6) The Municipal Commissioner shall, in the case of emergency, take
such measures as may be necessary for the preservation and
conservation of a heritage building, provided that such measures shall
be required to be approved by the Heritage Conversion Committee at
its meeting.
S.425-O. When heritage building ceases to be heritage building. __
If the Corporation decides that any heritage building has ceased to be
of public interest or has lost its importance for any reason whatsoever,
it may, with the approval of the State Government, declare that such
heritage building has ceased to be a heritage building for the purposes
of this Act."
24. The main argument on behalf of the appellants has been that the
decision of KMC to declare the subject premises as heritage property, was
not taken following the procedure prescribed by Chapter
XXIIIA of the KMC Act, 1980 and in particular Sections 425B, 425C and
425D of the Act. There was no independent application of mind, by HCC
before it accepted the list of heritage properties in Kolkata prepared by the
Expert Committee constituted by the Government. It was further argued
that HCC was not constituted in terms of Section 425D of the KMC Act. It
was submitted that Section 425(D)(4) of the Act required HCC to apply its
mind to each individual property before putting a heritage tag on it. This
was not done.
25. Be it noted here that exactly the same argument as recorded above
was advanced on behalf of the appellants/writ petitioners in APO No. 86 of
2023 (CHANDRA UDYOG AND ANOTHER. V. KOLKATA MUNICIPAL
CORPORATION & OTHERS.). That matter and the present appeal were
heard before us analogously. Today itself, we have delivered a judgment
dismissing the appeal of CHANDRA UDYOG after rejecting the arguments
advanced on its behalf. That judgment, on the above mentioned aspects of
the matter will also govern this case.
26. The appellants' contention that KMC did not follow the statutory
provisions in the matter of declaring the concerned property as heritage,
does not appear to have any substance. As noted above, an affidavit was
filed before us on behalf of KMC affirmed on September 6, 2023. Copies of
various internal documents including minutes of meetings of HCC, Mayor-
in-Council and the Corporation have been annexed to such affidavit. It
would appear from the said documents that to facilitate the process of
identifying properties which should be preserved and conserved for
historical, architectural, environmental or ecological purpose, the State
Government, in the year 1997, constituted an Expert Committee. The
members were eminent persons from various walks of life including a noted
historian, a well-known artist and an architect. The Expert Committee
submitted its report in the year 1998, recommending 828 numbers of
buildings for being listed as heritage. One of such buildings is the premises
in question in the present proceeding.
27. In April 2000, HCC accepted and approved the recommendation made
by the Expert Committee. From the documents disclosed by KMC, it would
appear that HCC approved the Expert Committees' recommendation only
after considering and discussing the same. Specific properties were
discussed. There were deliberations concerning various properties. A sub-
committee was constituted by HCC for "scrutinising and revisiting" each of
the listed heritage buildings. The same was done. It does not appear that
HCC mechanically and without any independent application of mind blindly
adopted the recommendation of the Expert Committee constituted by the
Government for identification of heritage properties in Kolkata. HCC
forwarded its recommendation to the Mayor-in-Council.
28. In May, 2000, the Mayor-in-Council, primarily accepted HCC's
recommendation. In September, 2000, the Corporation accepted the
recommendation of the Mayor-in-Council.
29. In October 2000, HCC reviewed the earlier list and recommended 520
more buildings to be listed as heritage. The same was accepted by the
Mayor-in-Council in January, 2001. Subsequently KMC approved the same.
Hence, it appears that the list of heritage properties was prepared in
accordance with the provisions of Chapter XXIIIA of the KMC Act, 1980.
30. In so far as the constitution of HCC is concerned, from the documents
disclosed with the aforesaid affidavit of KMC, it appears that the HCC was
constituted in accordance with the provisions of Section 425D of the KMC
Act. From Item no: M1183 dated January 24, 1998, extracted from the
relevant Official Book/ Registrar of KMC, it appears that the Heritage
Conservation Committee was constituted with the following members:-
CHAIRMAN : Municipal Commissioner (as prescribed by the KMC Act)
CONVENOR : Municipal Architect & Town Planner (as a C.M.C Officer)
MEMBERS:
1) Representative of the CMDA (in terms of the Act)
2)Director, Department of Archaeology, Govt. of West Bengal or his nominee.
3) Eminent Architect: Prof. Samir Rakshit.
4) An Eminent Artist: Sri Chintamoni Kar.
5) An Environmentalist: A representative from the Environment Department,
Govt. of West Bengal, Dr. Deb Kumar Bose.
6) A Historian: Prof. Barun Dey.
7) Chief Valuer & Surveyor of the Corporation
The aforesaid Item was placed before the Mayor-in-Council which
approved the same.
31. Hence, we do not see any illegality or lacunae in the constitution of
HCC.
32. Another reason for not allowing the prayers in the writ petition is as
follows. A public interest litigation has been filed by a body called India
National Trust for Art and Cultural Heritage (in short 'INTACH'), being W.P.
No. 12676 (W) of 2019. The main contention of the petitioners in that writ
petition is that KMC is down-grading heritage properties classified under a
particular grade arbitrarily and without following due process of law. In that
writ application an interim order was passed on July 26, 2019, by a
Coordinate Bench, in terms of Prayers (j) and (k) of the writ petition. Those
prayers are set out below:-
"(j) An order of injunction restraining the respondents above
named and/or each one of them from giving any effect to any
decision of downgrading/delisting any other buildings during the
pendency of this instant writ petition,
(k) An order of injunction restraining the respondents above
named and/or each one of them from causing any demolition of
any building that has been downgraded/delisted or any demolition
whatsoever of any building that was once declared as heritage
building and has now presently been downgraded/delisted during
the pendency of this instant writ petition."
33. We are told that the aforesaid writ petition is still pending and the said
interim order is still in operation. In other words, KMC continues to suffer
an interim order restraining it from giving effect to any decision it might
have taken to down grade or de-list any building which was declared to be a
heritage property. If we allow the prayers may be in the instant writ petition
which have been set out hereinabove, such order would be in direct conflict
with the interim order that is in force in W.P.A. NO. 12676 of 2019. Such a
situation cannot be countenanced as the same would be contrary to judicial
decorum and would amount to judicial anarchy.
34. As regards the decision in the case of Kamal Dey, we agree with the
learned Advocate for KMC that the decision cannot be taken to be an
authority for the proposition that the composite decision of KMC to declare
certain properties in Kolkata as heritage, is bad in law in its entirety. The
Division Bench clearly recorded that sufficient material was not placed
before it to show that there was independent application of mind by HCC
and the Mayor-in-Council as also the Corporation on the issue of classifying
properties as heritage. Hence, the said decision or the decisions rendered by
learned Single Judges of this Court following that decision, do not advance
the case of the appellants to any extent. As noted above, we have been
shown documents which demonstrate application of mind by HCC and the
Mayor-in-Council.
35. Having said all of the above, we are not oblivious of the importance of a
citizens' right to property. Such a right may not be a fundamental right any
more. However, it is still a valuable Constitutional right enshrined in Article
300A of the Constitution of India and has come to be recognised as a human
right. Once the heritage tag is put on a property, the right of the owner of
the property to deal with it becomes severely restricted. For example, a
Grade - I Heritage property cannot be touched at all. The owner cannot
reconstruct the property or do anything which will alter the external
appearance of the property. I am of the view that before a property is
declared as heritage, the owner thereof should be afforded an opportunity of
showing cause as to why such course of action should not be adopted.
Preferably, an opportunity of hearing should be granted to the owner. Since,
marking a property as heritage has adverse civil consequences for its owner
by curtailment of his right and / or freedom to deal with the property in the
manner he wishes, the salutary principles of natural justice require that the
owner be granted an opportunity to raise his objection to KMC's proposal to
declare his property as heritage.
36. Section 425-O of the KMC Act permits a property owner to approach
KMC for excluding his property from the heritage list. The appellants will be
at liberty to make appropriate application/representation before the
competent authority in KMC within one month from date for removing the
heritage tag from the concerned property or for appropriate down-gradation.
If such a representation is made, the same shall be decided by the
competent authority, by passing a reasoned order in accordance with the
applicable law, within three months from the date of receipt of the
representation/ application, after granting an opportunity of hearing to the
appellants or their legal representative.
37. A question may arise as to whether even the course of action indicated
above will not be contrary to or in conflict with the interim order dated July
26, 2019 passed in INTACH's writ petition being W.P. No. 12676 (W) of
2019. In my opinion, there will be no such problem. By an order dated
March 30, 2022, passed in INTACH's writ petition and two interlocutory
applications filed therein by two property owners challenging the heritage
tag, a Coordinate Bench in effect clarified that there would be "no
impediment to individual writ applications or any other proceeding by the
said parties proceeding in their own way". The effect of such order appears
to be that a property owner may approach the competent authority in KMC
requesting for removal of the heritage tag from the property or appropriate
down-gradation. The interim order which is in operation in INTACH's writ
petition would not stand in the way of the KMC authorities considering such
a request / representation and taking a decision thereon. However, such
decision cannot be given effect to without the leave of the Coordinate Bench
which is in seisin of W.P.A 12676 of 2019 in which the interim order of
restraint, as indicated above, continues to operate.
38. With the aforesaid clarifications, the appeal and the connected
application stand disposed of. There will be no orders as to costs.
39. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
(ARIJIT BANERJEE, J.)
I agree.
(APURBA SINHA RAY, J.)
