W.Ps. 27784 (W) of 2014 and 6773 and 7502(W) of 2015 and W.P. 213 of 2015. Case: Kamal Dey and Ors. Vs Director General, Archeological Survey of India and Ors.. High Court of Calcutta (India)
| Case Number | W.Ps. 27784 (W) of 2014 and 6773 and 7502(W) of 2015 and W.P. 213 of 2015 |
| Counsel | For Appellant: Party-in-Person |
| Judges | Jyotirmay Bhattacharya and Debi Prosad Dey, JJ. |
| Issue | Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Sections 3, 4; Constitution of India - Articles 13, 13(1), 214, 243P, 243ZG, 243P(e), 243Q, 243R, 243S, 243T, 243U, 243V, 243Y, 243Z, 243ZA, 243ZB, 243ZC, 243ZD, 243ZE, 243ZF, 243ZG, 246, 246(3), 246(4), 294, 366(10), 372A; General Clauses Act, 1897 - Sections 3(23), 3(42); ... |
| Judgement Date | July 03, 2015 |
| Court | High Court of Calcutta (India) |
Judgment:
Jyotirmay Bhattacharya, J.
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Facts leading to the filing of these four Public Interest Litigations;
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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 upgradation 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.
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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 not be finally decided before summer vacation as the lawyers appearing for the parties could not conclude their submission before summer vacation. Under such circumstances the writ petitioner's prayer for interim relief was considered on the last day before summer vacation i.e. 15th May, 2015 when this Court after taking note of the fact that the construction proceeded with substantially and has reached the stage of nearing completion, refused to pass interim injunction restraining further construction but at the same time it was made clear in the said order that such construction may be continued by the concerned authority keeping their eyes open about the pending litigation and with the clear understanding that the fate of such construction will ultimately abide by the result of the writ petition; meaning thereby that in the event they fail to establish their defence that this construction is immuned from demolition because of the exemption granted by the Government Building Act, 1899, the impugned construction may ultimately be demolished. Hearing of the writ petition was again resumed after reopening of the Court and ultimately hearing was concluded on 24th June, 2015.
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Submission made by the parties on the Heritage status of the High Court Building.
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Let us now consider the merit of all these four writ petitions in the light of the submission made by the learned Advocates of the respective parties. Bar Association of High Court, Calcutta is represented by Mr. Bikash Ranjan Bhattacharya, Senior Advocate. This is a unique case where we find that to meet the demand of the members of the three wings of the Bar Association and the High Court Employees Association decision was taken by the High Court Administration for installation of the air-conditioning plant to provide airconditioning facilities to all the Sections and Departments of the High Court as well as the Bar Rooms of all the three wings of the Bar Association, but still then a section of lawyers including some member of the public filed these writ petitions opposing implementation of the project in the manner in which it is now being implemented. It is worth mentioning here that the writ petitioners made it candidly clear that they are not opposing the demand of the members of High Court Employees and/or the members of the three wings of the Bar for providing air-conditioning facilities to all the Sections and the Department of the High Court and also to the Bar Rooms of the three wings of the Bar Association of the High Court as they also felt that extension of such air-conditioning facilities to the Departments and Bar Association will not only create a congenial working condition but also will ultimately increase the work efficiency of the High Court staff and the lawyers. They made it very clear that they are opposing the manner in which such project was sought to be implemented. In short they complained about wrong selection of the place of such construction and for raising construction therein in such manner which ultimately defaced the internal structural view of the heritage building. According to them such construction was raised in violation of various provisions of the Kolkata Municipal Corporation Act and as such construction so raised within the High Court compound should be demolished so that the internal structural view and/or look of the heritage building is restored to its original position. They pointed out that the High Court building including statute of Sir Edward Hyde East and all other busts and statutes in the High Court has already been declared as Grade-I heritage building by the civic body Heritage Conservation Committees on 25th February, 2009. Learned lawyers appearing for the petitioners including Mr. Dey, appearing in person have drawn our attention to Section 34 of the Kolkata Municipal Corporation (Amendment) Act, 1997 whereby a new chapter being Chapter XXIII A was included in the Kolkata Municipal Corporation Act, 1980 w.e.f. 22nd December, 1997. Various provisions were introduced in the said Chapter for preservation and conservation of the heritage building within the Municipal limits of the Kolkata Municipal Corporation. Section 2(42)A was also incorporated in the definition Clause of the said Act to define the heritage building in the following manner:-
"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 covering or otherwise preserving such building and also includes area and place 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 Bengal Act XXIII of 1979)".
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The definition of heritage building as mentioned in Section 2(42)A of the said Act makes it abundantly clear that heritage building does not only mean building of one or more premises or any part thereof but it also includes such portion of the land adjoining such building or any part thereof as may be required for fencing or covering or otherwise preserving such building and also includes area and place requiring preservation and conservation for the purpose as aforesaid under the relevant provision of Section 31 of the West Bengal Town and Country (Planning and Development) Act 1979. In Chapter XXIII A of the said Act various provisions starting from 425A to 425P were introduced for preservation and conservation of heritage building. Some of the relevant provisions which are necessary for our present consideration are mentioned hereunder. How the owner and/or occupier is required to maintain any building declared by the Corporation as Heritage building is mentioned in Section 425A of...
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