W.Ps. 27784 (W) of 2014 and 6773 and 7502(W) of 2015 and W.P. 213 of 2015 Decided On: 03.07.2015 Appellants: Kamal Dey and Ors. Vs. Respondent: Director General, Archeological Survey of India and Ors. Hon'ble Judges/Coram: Jyotirmay Bhattacharya and Debi Prosad Dey, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Party-in-Person Case Note: Public Interest Litigation - Demolition of construction - Section 3 of Government Building Act, 1899 - Present petition filed complaining about wrong selection of place of construction of air conditioning plant, on ground that said construction was defacing internal structural view of heritage building - Whether construction in question was liable to be demolished - Held, Act does not provide that if such construction is raised without serving any notice upon municipal authority as contemplated under Section 3 of Act, entire construction should be demolished - Having regard to fact that Government had spent several crores of rupees for raising such construction, Court did not feel that public interest would be better served if direction for demolition of building was issued - Since construction was already completed for noble public cause and for better administration of justice, justice would be subserved if Public Works Department was directed to sit with municipal authorities and discuss issue regarding retainability of such construction - Petition disposed off.[60] and[61] JUDGMENT Jyotirmay Bhattacharya, J. A. Facts leading to the filing of these four Public Interest Litigations; 1 . 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
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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. 2 . 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. B. Submission made by the parties on the Heritage status of the High Court Building. 3 . 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
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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)". 4. 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
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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 the said Act which runs as follows:- Section 425A owner to maintain, preserve and conserve heritage building - Every owner or occupier of any heritage building declared as such by the Corporation shall maintain, preserve and conserve it and shall not change its use in contravention of the provisions of this Act or the Rules or the Regulations made thereunder for its maintenance, preservation or conservation. Explanation-I - The word "maintain", with its grammatical variations and cognate expression, shall include fencing, covering, repairing, restoring or cleansing, or doing of any Act which may be necessary for the purpose of preserving or conserving, of or securing convenient access to a heritage building. Explanation-II - "Owner" shall, notwithstanding anything contained elsewhere in this Act, include, for this purpose of this Chapter- a. A joint owner of a heritage building vested with the power of management thereof on behalf of himself or any other joint owner, or successor-in-title of any such joint owner, or b. A Manager, or trustee, vested with power of management of heritage building, or successor-in-office of such manager or trustee. 5. The modalities for declaring a building as heritage building by the Corporation are prescribed under Section 425B of the said Act. It is provided therein that the Corporation may declare a building as heritage building on the recommendation of the Heritage Conservation Committee and also of the Mayor in Council. 6. How the Heritage Conservation Committee will be constituted and who will be the members of the said Committee are provided under Section 425D of the said Act. Sub-Section (3) of Section 425D of the said Act is relevant for our present purpose as the said provision gives a clear indication that even a building and/or land which are under the management of the State Government can be declared as heritage building. Section 425D(3) runs as follows: "The Committee may co-opt one person to be nominated by the concerned department of the State Government while dealing with any land or building under the management of the said department". 7 . Powers and functions of Heritage Conservation Committee are mentioned in Section 425E which is set out hereunder. Section 425E: Powers and functions of Heritage Conservation Committee - the heritage Conservation Committee shall have the power to function independent of the Municipal Building Committee for purpose of preservation, conservation and maintenance of the heritage building in so far as such power does not offend any other provisions of this Act or the rules made thereunder relating to construction or use of the building: Provided that for erection or re-erection in a heritage building or part thereof or for restoration of any heritage building to its old shape, design or beauty in the case of unlawful demolition, or for making any change of internal or external wall, structural portion, floor, roof, interior or exterior architectural floor,
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faced or skyline, or for any other change, of a heritage building, the provisions of Chapter XXII and XXIII of this Act and the Rules made therein shall apply mutatis mutandis. 8 . Referring to the aforesaid provisions of the said Act, it was contended by the learned Counsel appearing for the petitioners that once a building is declared as a heritage building belonging to any person and/or the Government and/or any Department of the Government, the Heritage Conservation Committee may exercise its power granted to it under Section 425E of the said Act independent of the Municipal Building Committee for the purpose of preservation, conservation and maintenance of the heritage building. The proviso added to the said Section clearly indicates that Chapter XXII and XXIII of the said Act and the Rules made therein apply mutatis mutandis in case any construction by way of erection or re-erection is made in a heritage building or part thereof. Chapter XXII and XXIII deal with the Building Rules and the Regulation of building usage. Sections 392 and 393 of the said Act are included in Chapter XXII of the said Act. Section392 of the said Act prescribes prohibition of building construction without sanction. The said Section says that no person shall erect or commence to erect any building or execute any of the works specified under Section 390 except with the previous sanction of the Municipal Commissioner and in accordance with the provisions of this Chapter and of the Rules and Regulations made under this Act in relation to such erection of building or execution of work. Similarly, Section 393 of the said Act provides that every person who intends to erect a building shall apply for sanction by giving notice of his intention to Municipal Commissioner in such form together with such fees including drainage development fees and containing such information as may be prescribed: 9. It is thus, contended by the petitioners that when the High Court was declared as a Grade-I heritage building by the Kolkata Municipal Corporation, no such construction within the High Court building and/or the land appurtenant thereto within its compound is possible without obtaining a plan duly sanctioned by the Municipal Authority in terms of the provision contained in Section 425E of the said Act read with the provisions contained in Section 392 and 393 of the said Act. 1 0 . In fact, the Kolkata Municipal Corporation also in its affidavit contended that since the High Court building was declared as a heritage building by the Kolkata Municipal Corporation, no construction within the High Court premises is possible without obtaining any sanctioned plan. It was also contended by the Kolkata Municipal Corporation that the Municipal authority was never approached for sanction of any building plan for the proposed construction. It was further contended therein that even no building plan was submitted before the Municipal authority for its sanction for the disputed construction made in the High Court premises. The Municipal authority, thus, in effect supports the contention of the writ petition with regard to the illegality of the construction raised within the High Court premises. 11. The respondents, namely, High Court Administration and the State Government dispute such contention of the writ petitioner as well as of the Municipal authority. Learned Counsel appearing for the High Court Administration submits that chapter XXIII of the Kolkata Municipal Corporation will not apply to the impugned construction as the High Court building has not yet been declared as a heritage building by the Municipal authority in accordance with the provision as laid down in Chapter XXIIIA of the said Act. By referring to the Grade List of heritage building as on 25.02.2009 published by the Kolkata Municipal Corporation which was submitted by Mr. Ghosh, learned Advocate appearing for the Kolkata Municipal Corporation in course of hearing of this writ petition, learned Counsel appearing for the High Court Administration submitted that the declaration of the heritage building having not
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been made by the Municipal authority in accordance with the provisions contained in Section 425B of the said Act, such declaration of the heritage status of the building cannot be construed as a declaration made by the Municipal authority under the provision of Section 425B of the said Act. He points out that Section 425B of the said Act provides that such declaration can be made by the Corporation only on recommendation of the heritage Conservation Committee and also of the Mayor-in- Council only when the Corporation on the basis of such recommendation forms an opinion that any building in Kolkata should be preserved and conserved for historical, architectural, environmental, ecological purpose. By referring to the foreword contained in the volume 9 of capacity building programme published by Kolkata Municipal Corporation which was produced by Mr. Ghosh in course of hearing of this writ petition, Mr. Kar, learned Advocate, appearing for the High Court Administration pointed out that the High Court building was declared as a heritage building by the Municipal authority not on the basis of recommendation of the Heritage Conservation Committee and the Mayor-in -Council but on the recommendation of the expert committee which submitted a report to the State Government on 2nd February, 1998 which in turn was forwarded to the Kolkata Municipal Corporation for its acceptance and/or taking suitable action towards the preservation and conservation of those heritage place and sites, mentioned in the said report in terms of the KMC Act, 1980. Be it mentioned here that the Expert Committee report was accepted by the State Government vide its resolution adopted on 6th October, 1997. The Kolkata Municipal Corporation ultimately accepted and adopted the report in principle and declared the High Court building as heritage building. 12. Mr. Kar, thus, submitted that since the High Court building was not declared as a heritage building by the Kolkata Municipal Corporation on the basis of the recommendation of the Heritage Conservation Committee and also of the Mayor-in- Council in terms of the provision in Section 425B of the said Act, such declaration, which was made by the Municipal authority on the basis of the recommendation of the State Government, according to Mr. Kar, cannot be construed as a declaration of heritage status of the High Court building as per the provision of Section 425B of the said Act. 13. He thus, contended that since such declaration of heritage status of this High Court building has not been made in accordance with the provisions of Section 425B of the said Act, Chapter XXII of the said Act dealing with the Building Rules, cannot be made applicable to the impugned construction. 1 4 . Learned Advocates appearing for the writ petitioners, however, uniformly contended that legality of such declaration of heritage status of the High Court Building by the Kolkata Municipal Corporation, having not been challenged by the High Court Administration in its affidavit filed in connection with the writ petition, the said respondent cannot challenge the legality of the said declaration of the heritage status of the High Court building by the Kolkata Municipal Corporation. They, thus, maintained their stand that declaration of the status of the High Court building as heritage building by the Corporation should be regarded as legal and valid and thus, applicability of Chapter XXII of the said Act to the impugned construction cannot be avoided. C. Findings of the court on the legality of the declaration of Heritage status of the High Court Building by the Kolkata Municipal Corporation and the consequence of such declaration. 15. Let us now consider this part of the submissions of the learned Advocates of the respective parties to ascertain as to whether Chapter XXII of the said Act is applicable
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to the impugned construction or not. Though it is true that the High Court Administration has not raised any disputes specifically with regard to the legality of the declaration of the heritage status of the High Court building by the Kolkata Municipal Corporation but, when the Court finds from the document submitted by the Kolkata Municipal Corporation that such declaration was not made by following the provisions of the Act, then can the Court proceed on the basis that such declaration having not been challenged specifically by the respondent, such declaration is legal and binding upon the parties? Our specific answer to this question is 'No'. The materials which have so far been produced before us by Mr. Ghosh, the Learned Advocate have already been discussed hereinabove. The foreword which was mentioned in volume 9 of the capacity building programme published by Kolkata Municipal Corporation which was submitted by Mr. Ghosh in course of hearing of this writ petitions clearly indicates that the Government of West Bengal by its resolution adopted on 6th October, 1997 constituted a Committee to identify the heritage buildings and sites in Kolkata Municipal Corporation(KMC) area and the said Expert Committee submitted its report to the State Government on 2nd November, 1998 and after the said report having been accepted by the State Government the same was forwarded to the Kolkata Municipal Corporation for its acceptance and for taking suitable action towards preservation and conservation of those heritage buildings in terms of the Kolkata Municipal Corporation Act and the Municipal authority simply accepted and adopted the said report in principle and published a declaration declaring heritage status of several buildings including the High Court building. The relevant part of the said foreword is set out hereunder: (i) "The Government of West Bengal, by a resolution No. 5584- UD/O/M/SB/S-22/96 dated 6th October, 1997, constituted a Committee known as "Expert Committee on Heritage Buildings" to identify the heritage buildings and sites in Kolkata Municipal Corporation (KMC) area. 16. The said Expert Committee submitted its final report to the State Government on 2nd November, 1998. The report was discussed in a meeting on 1st December, 1998, which was presided over by the Hon'ble MIC, Home (Police) and I and CA Departments and attended by, inter alia, the Hon'ble MIC Urban Development Department, and the Hon'ble Mayor of Kolkata, the Principal Secretary, Urban Development Department, the Secretary, Municipal Affairs Department, the Chief Executive Officer KMDA etc. It was decided in the said meeting that the list recommended by the Committee would be sent to KMC for the acceptance and for taking suitable actions towards the preservation and conservation of those heritage buildings/sites in terms of the KMC Act, 1980 (Amendment). The KMC accepted and adopted report in principle. 17. On perusal of the said foreword we find 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 Heritage Conservation Committee and also of the Mayor-in- Council. As a matter of fact, excepting the list of heritage building as on 25th February, 2009 published by the Kolkata Municipal Corporation no further material has been produced before us to show that such declaration was made by the Municipal authority on the basis of any recommendation of the Heritage Conservation Committee 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 provision contained in Section 425B of the said Act. 18. Thus, though after taking note of the provision contained in sub-Section 3 of
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Section 245D of the said Act we have no hesitation to hold that even a Government building can also be declared as heritage building provided it satisfies the test laid down under Section 425B of the said Act but still then declaration of the heritage status of the building by the Kolkata Municipal Corporation cannot be held to be a lawful declaration made in conformity with the provision contained in Section 425B of the said Act. As such, we cannot conclude that the Building Rules contained in Chapter XXII of the Kolkata Municipal Corporation Act has any application to the impugned construction. D. Meaning of the expression "person" used in Section 392 & 393 of Kolkata Municipal Act, 1980. 19. Let us now consider the other part of the contentions of the petitioners regarding applicability of the Building Rules contained in Chapter XXII of the said Act. We have already mentioned above that Section 392 of the said Act prescribes prohibition on raising any construction by any person without any sanctioned plan. Similarly Section 392 of the said Act provides that every person who intends to erect a building can do so only with a plan sanctioned by the Municipal authority. Both the aforesaid provisions refer to the applicability of the said provision with reference to persons without, however, defining the person either in the said Act or in the said Chapter. In this context a controversy arose as to whether the person includes Government or not. 2 0 . According to Mr. Tapan Mukherjee, learned Senior Counsel appearing for the State Government, the Government is not bound by the said provision. In other words he contended that the expression "person" used in both the aforesaid provisions of the said Act includes everybody excepting Government. He argued that since person has not been defined in the said Act, the expression "person" as defined in the General Clauses Act, 1897 should be taken note of for defining the expression "person" mentioned in various sections of Chapter XXII of the Kolkata Municipal Corporation Act. Section 3(42) of the General Clauses Act defines person in the following manner:- ""person" shall include any company or organization or body of individuals, whether incorporated or not" 21. By referring to the said definition of person given in the General Clauses Act Mr. Mukherjee contended that the Government is not included within the definition of person under Section 3(42) of the General Clauses Act. Mr. Mukherjee, has also drawn our attention to Section 3 (23) of the General Causes Act which defines "Government" or "the Government" in the following manner: ""Government" or "the Government" shall include both the Central Government and any State Government". 22. He thus, contended that when the Government has been separately defined under the General Causes Act in Section 3(23) of the said Act and while defining person in Section 3(42) of the said Act, the expression Government has not been included therein, there cannot be any iota of doubt that the person does not include Government. He also relied upon a judgment of the Hon'ble Supreme Court in the case of Director of Rationing and Distribution Vs. the Corporation of Calcutta reported in MANU/SC/0061/1960 : AIR 1960 SCC 1355 wherein it was held that State is not bound by statute unless it is so provided in express terms or by necessary implication. That was a judgment delivered by the Constitutional Bench of the Hon'ble Supreme Court headed by the then Chief Justice of India. Relying upon the said decision of the Hon'ble Supreme Court Mr. Mukherjee contended that the State Government is not bound by the Kolkata Municipal Corporation Act and as such while constructing any building in its own land, the State Government is not required to take any sanction from the Municipal authority as the Building Rules contained in
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Chapter XXII of the Kolkata Municipal Corporation is not applicable to the State Government. 23. Mr. Amal Baran Chatterjee, Learned Senior Counsel appearing for one of the writ petitioners has drawn our attention to a subsequent Larger Bench decision of the Hon'ble Supreme Court in the case of Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Corporation of Kolkata reported in MANU/SC/0020/1966 : AIR 1967 SCC 997 whereby the earlier decision of the Hon'ble Supreme Court in the case of Director of Rationing and Distribution of Kolkata reported in MANU/SC/0061/1960 : AIR 1960 SCC 1355 was overruled. It was held by the Hon'ble Supreme Court in the said Larger Bench decision that the Rule of construction that the king is not bound by statute unless he expressly named or by any necessary implication, which was accepted by the Privy Council in interpreting statues vis-a-vis the crown are incongruous in the present set up as we have no crown and the archie Rule based on prerogative and perfection of crown has no relevance in a democratic republic. The Hon'ble Supreme Court, thus, held that principle that king is not bound by the statute is inconsistent with the Rule of Law based on the doctrine of equality. It was further held therein that normal construction that the General Act applies to citizens as well as States unless it expressly or by necessary implication excepts the States from its operation. It was further held therein that if the State chooses, the State can make an Act providing for its exemption from its operation. It was further held therein that though the State is not expressly exempted from the operation of an act but in certain circumstances such an exemption might necessarily be implied. 2 4 . Mr. Chatterjee has also referred to another decision of the Hon'ble Supreme Court in the case of Samatha Vs. State of Andhra Pradesh reported in MANU/SC/1325/1997 : AIR 1997 SCC 3297 wherein the Hon'ble Supreme Court while interpreting the expression "persons" mentioned in Section 3 of Andhra Pradesh scheduled area land transfer Regulation "I" of 1959 held that there is no reason to consider the word "persons" used under Section of the said Act in a narrow sense. It was held therein that it must be construed in a broader perceptivity. 2 5 . Relying upon the aforesaid decisions of the Hon'ble Supreme Court, Mr. Chatterjee contended that the expression "person" used in Section 392 and 393 of the Kolkata Municipal Act cannot be given a restrictive meaning in a narrow sense. He contended that since the Kolkata Municipal Corporation does not expressly exempts the State from operation of the said Act, the expression "persons" used in the said Section would also include the State Government and as such the State Government cannot raise any construction even in its own land without complying with the provisions contained in Chapter XXII of the Kolkata Municipal Corporation. 26. According to Mr. Chatterjee since such construction is admittedly being raised without any sanctioned plan, such construction should be declared as illegal and the Court should not hesitate to demolish the illegal construction to preserve and conserve the heritage building of national importance which is 150 years old having unique design and look and its architectural beauty. 27. Mr. Kar, learned Senior Counsel, however, tried to distinguish the decision cited by Mr. Chatterjee by drawing our attention to the circumstances under which the expression "person" was interpreted by the Hon'ble Supreme Court in such manner. By reading the judgment of the Hon'ble Supreme Court reported in MANU/SC/1325/1997 : AIR 1997 SCC 3297, he pointed out that it was a case where the State Government was trying to sell some landed property within the declared Tribal Zone to the non-tribals by interpreting the expression "person" contained in Section 3 of the Andhra Pradesh Schedule area land Transfer Regulation in a narrow
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sense by giving a restricted meaning thereto. According to the State Government person does not include Government as Act does not expressly provide that the provision contained in the said Act will uniformly apply to the natural persons and the State. This interpretation which was sought to be given to the expression "persons" used in the said Section by the State Government was not accepted by the Hon'ble Supreme Court as the Hon'ble Supreme Court held that if a person is interpreted in the manner as it was sought to be interpreted by the State Government then the object for which the said Regulation was made for preserving the privacy of the tribes through the State Government could not be achieved. As such the Hon'ble Supreme Court interpreted the word "person" used in Section 3 of the said Act by following the maxim "Reddendo Singula Singulis". 2 8 . Mr. Kar, thus, submitted that in the present set of facts it cannot be held conclusively that the expression "person" used in different provisions of Chapter XXII of the Kolkata Municipal Corporation Act includes the Government also without ascertaining as to whether by implication a narrow meaning of the person can be given in the present case. In this regard, he has referred to the Government Act 1899 which provides for grant of exemption to the State Government from application of the Municipal Laws regarding erection, re-erection construction alteration or maintenance of the building within the Municipality when the Government erects and/or re-erects and/or constructs on the property held by the State Government or is in occupation of the Government. He thus, argued that when the said Act provides for grant of such an exemption to the State Government for raising construction on its own land or in the land in occupation of the Government, then by necessary implication it follows that the expression "persons" used in various provisions and Chapter XXII of the Kolkata Municipal Corporation Act does not include the Government and thus, the Government is not bound to comply with those provisions of Chapter XXII of the Kolkata Municipal Corporation while the Government constructs on its own land. E: Applicability of the Government Building Act, 1899: (i) Submission of the parties: 29. When the Government building Act was sought to be relied upon by Mr. Kar, some confusion was raised as to whether the said Act is still in operation or not as according to Sardar Amjad Ali, Learned Senior Counsel appearing for the petitioner in one of these writ petitions, the Government Building Act 1899 was repealed by the Parliament on 19th February, 1992. However, the said controversy was ultimately resolved when an index to the Central Enactment in alphabetical words published as on 17th October, 2014 was produced before us wherefrom it appears that the Government building Act 1899 has not been repealed by the Central Government. Even, the list of laws which were repealed on 19th February, 1992 has also been produced before us wherefrom we find that altogether 137 Acts were repealed on 19th February, 1992 but in the list of repealed laws the Government Building Act, 1899 i.e. Act number 4 of 1899 was not included in the said list. Mr. Chandra, Learned Additional Solicitor General also informs us after taking instruction from his client that the Government building Act 1899 has not yet been repealed and the said Act is still in operation. 30. Before taking the ultimate conclusion on the applicability of the said Act in the present context we feel it necessary to consider the submission of Mr. Amal Baran Chaterjee, learned Senior Counsel who argued that the Government Building Act 1899 is not applicable in the facts of the instant case. He however, advanced a different line of argument with regard to applicability of the said Act in the facts of
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the instant case. He contended that the Government building Act of 1899, which was an Imperial Act impliedly stood repealed even though the said Act was not subsequently repealed by the Act of Parliament expressly. He elaborated his submission with reference to various provisions of the Constitution of India. Firstly, he referred to Article 13 of the Constitution which provides that all laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of part III of the constitution, shall, to the extent of such inconsistency, will be void. He then referred to the provisions of Article 246(3) of the Constitution of India which provides that the legislature of any State has the power to make laws for such state or any of the matters enumerated in list 2 in the 7th schedule which is referred to as the State List. This power of the State legislature to legislate on this state list exclusively is however subject to the power of the Parliament to legislate on any matter relating to Union List or concurrent list. He then referred to the definition of Municipality as defined in Article 243P(e) of the Constitution which provides that self government is constituted under Article 243Q. Article 243Q deals with constitution of the Municipality. He then referred to the provisions contained in 243W which deals with the powers, authorities and responsibilities of Municipalities. One of such powers which is relevant for our present purpose is that the Municipalities being an institution of self Government, is entrusted with the performance of functions and implementation of the schemes as may be entrusted to them including those in relation to the maters listed in the 12th Schedule. Such power however, can be exercised by the Municipality subject to the provision of the Constitution by virtue of its authority which the State Legislature may, by law, endow upon the Municipality. Then he referred to the entry No-2 of the 12th Schedule wherefrom we find that regulation of land use and construction of building is one of such entries in the 12th schedule whereby the Municipalities are entrusted to exercise its function by virtue of the State Legislation. Ultimately he referred to the provision contain in Article 243ZF of the Constitution of India which runs as follows: ZF. Continuance of existing laws and Municipalities. - Notwithstanding anything in this part, any provision of any law relating to Municipalities in force in a state immediately before the commencement of the Constitution (Seventy-fourth amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State. 31. Relying upon the aforesaid provisions of the constitution of India Mr. Chatterjee submitted that when the State Legislature was entrusted to legislate on the subject of regulation of land use and construction of buildings by the Constitution and when the State legislature, within its competence legislated on the subject by enacting the Kolkata Municipal Corporation Act, 1980 and thereby vested authority with the Corporation exclusively to implement the laws relating to regulation of land use and construction of Buildings, any provisions contained in the imperial Act, namely, the Government Buildings Act, 1899 which is inconsistent with the provision of the Kolkata Municipal Corporation Act particularly the building Rules, will cease to operate with the expiration of one year from the commencement of Constitution even if the Imperial law is not amended or repealed by Parliament, in view of the provision
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contained in Article 243ZF of the Constitution of India. 32. Mr. Mukherjee, learned Senior Counsel refuted such submission of Mr. Chatterjee by contending that the Government Building Act 1899 is an existing law within the meaning of Article 366(10) as it has not been repealed as yet. He contended that the said Act of 1899 has been saved by Article 372A of the Constitution as the same is not contrary to Article 13(1) of the constitution. He further contended that the field of legislation so far as the Municipality is concerned, comes under Article 246 List-II Entry-5 of the Constitution since it relates to other states and defence. He thus, contended that since the field of legislation relating to the Act of 1899 comes under Article 246(4) which is different from the filed of legislation under which Municipal law was enacted, it cannot be said that the said Act of 1899 has been impliedly repealed. 33. Mr. Kar, Learned Senior Counsel, gave us further light to interpret the provision contained in Article 243ZF of the Constitution of India. He contended that Article 243ZF is included in Part-IXA of the Constitution. Part-IXA of the Constitution contains various articles starting from Article 243P to 243ZG. Article 243P is the definition Clause defining various expressions relating to the said part. Article 243Q deals with constitution of Municipalities. Article 243R deals with composition of Municipalities. Article 243S deals with constitution and composition of wards, Committees etc. Article 243T deals with reservation of seats. Article 243U deals with duration of Municipalities. Article 243V deals with disqualification of members. Article 243Z deals with powers, authorities and responsibilities of the Municipalities. Article 243Y deals with finance commission. Article 243Z deals with audit of accounts of the Municipalities. Article 243ZA deals with election of the Municipalities. Articles 243ZB deals with application to Union Territories. Article 243ZC mentions certain areas where these provisions will not apply. Article 243ZD deals with committees for district planning. Article 243ZE deals with Committee for metropolitan Planning. Article 243ZF deals with continuance of existing laws and Municipalities. Article 243ZG deals with bar to interference by courts in electoral matters. Mr. Kar read the provisions contained in Article 243ZF by drawing our attention to the opening words of the said provisions which starts with a non-obstante clause. It provides that notwithstanding anything contained in this part, Municipalities in force in a State immediately before the commencement of the Constitution (Seventy Fourth Amendment) Act, 1992 which is inconsistent with the provision of this part shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until expiration of one year from such commencement whichever is earlier. According to him the expression notwithstanding anything in this part and the expression which is inconsistent with provisions of this part, used in the said provision are very much significant as by using those expressions in the said provision it is made clear that if any Act which was enacted prior to the commencement of the Constitution (Seventy Fourth Amendment) Act, 1992 is inconsistent with Part-IXA of the Constitution then the provisions of law contained in the earlier Act which are inconsistent with Part-IXA of the Constitution will become ineffective when the earlier Act is amended or repealed or until expiration of one year from the commencement of constitution seventy fourth amendment, whichever is earlier. 34. He thus contended that since none of the provisions of the Government Building Act, 1899 has been amended and/or repealed and/or is inconsistent with any of the provisions contained in any of the articles under chapter IXA of the constitution, the provisions of Government Building Act, 1899 cannot be held to be inoperative after expiration of one year from the commencement.
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(ii) Findings of the Court 3 5 . We have considered the submission of the learned Counsel of the respective parties in this regard and we find much substance in the submission of Mr. Mukherjee and Mr. Kar as we find that the Government Building Act, 1899 still remains unrepealed and the subject of its legislation relates to subject under 246(4) of the Constitution of India and the provision contained in such legislation is not contrary to Article 13(1) of the Constitution of India. We further find substance in the submission of Mr. Kar, that since the provision contained in Government Building Act are not inconsistent with any of the provisions contained in Chapter IXA of the constitution, the provisions contained in the Government Building Act cannot be held to be inoperative after expiration of one year from the date of commencement of constitutional seventy fourth amendment. That apart, legislative competence to legislate on state laws is subject to the central act. Besides, the exemption which was given to the state government under the Government Building Act cannot be held to be inoperative as despite knowing such exemption given to the State Government by the unrepealed central act, state government, while legislating on the Municipal laws did not make any contrary provision in the Municipal laws by making the provisions of the Government Act inoperative, as it was done by Andhra Pradesh State Legislature, even though the State Legislature was competent to do so under Article 246(3) of the Constitution. 36. Thus, we have no hesitation to hold that the Government Building Act is still in operation and as such we cannot properly interpret the meaning of the expression "person" mentioned in various provisions of Chapter XXII of the Kolkata Municipal Corporation Act by ignoring the provision contained in the said Act. F. Discussion: Effect of Section 3 of the Government Building Act on Chapter XXII of the Kolkata Municipal Corporation Act, 1980. 37. Let us now consider the provision of the said Act in the present context. 3 8 . Section 3 of the Government Building Act 1899 gives exemption of certain Government building from Municipal Laws to raise the erection etc. of building within Municipalities. Section 3 runs as follows:- "nothing contained in any law or enactment for the time being in force to regulate the erection, re-erection, construction, alteration or maintenance of buildings within the limits of any Municipality shall apply to any building used or required for the public service or for any public purpose, which is the property, or in the occupation of the Government, or which is to be erected on land which is the property, or in the occupation, of the Government: provided that, where the erection, re-erection, construction or material structural alteration of any such building as aforesaid (not being a building connected with {the world "Imperial" rep.by the A.O. 1948.} defence or a building the plan or construction of which ought, in the opinion of {subs.by the A.O. 1937 for "the Govt.} [the Government concerned]' to be treated as confidential or secret) is contemplated, reasonable notice of the proposed work shall be given to the municipal authority before it is commenced.
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39. If the provision contained in Section 3 of the Government Building Act 1899 is read conjointly with the provision contained in Chapter XXII of the Kolkata Municipal Corporation Act then we have no hesitation to hold that by implication the State Government was exempted from complying with the provisions contained in the Building Rules under Chapter XXII of the Kolkata Municipal Corporation Act when the State Government constructs building on its own land or in the land occupied by the State Government. Thus, we hold that the expression "persons" used in Section 392 and 393 of the Kolkata Municipal Corporation Act does not include "the Government" when the Government constructs on its own land or in the land in occupation of the Government. G. Discussion on ownership: 40. Even by holding as such, we cannot conclude as to whether the construction, which is raised within the High Court compound is legal or not, without resolving the other dispute which was raised by the petitioner relating to the ownership of the land on which the High Court building stands. By referring to the rates and tax bill issued by the Municipal authority appearing at page 60 of the affidavit-in-opposition used by the High Court Administration Mr. Ali. Learned Senior Counsel submitted that the Registrar, Calcutta High Court, was recorded as the owner of the said premises. He thus, contended that if the Registrar of the High Court, Calcutta is the owner of the said premises then the Government Building Act, 1899 has no application in the facts of the instant case as this is not a construction made by the Government on its own land or in the land which is in the occupation of the Government. 41. Let us now consider this part of the submission of Mr. Ali, in the contest of the pleadings of the parties. Though we find that no reference was made by the writ petitioner in the writ petitions about the ownership of the land on which the impugned construction is being raised but the State Government in its affidavit particularly in paragraph 6(10) and paragraph 12 thereof categorically stated that such construction of AC plant is raised over a Government land and the State Government is the owner of the said land. Such an assertion regarding title of the land on which such construction is being raised by the State Government is made before us in its affidavit on oath, remains uncontroverted by the petitioners as none of them dealt with this claim for title of this Government in respect of the said land by filing any reply. 4 2 . Mr. Tapan Mukherjee, learned Senior Counsel appearing for the State Government has referred to the provision contained in Article 294 of the Constitution of India to show that the title in the said land which were vested in its Majesty before commencement of this Constitution, vested with the provisional Government, after the commencement of the Constitution. Article 294 runs as follows: "(a) all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of the Dominion of India and all property and assets which immediately before such commencement were vested and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of each Governor's Province shall vest respectively in the Union and the corresponding State, and (b) all rights, liabilities and obligations of the Government of the Dominion of India and of the Government of each Governor's
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Province, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of the Government of Indian and the Government of each corresponding State, Subject to any adjustment made or to be made by reason of the creation before the commencement of this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab and East Punjab". 4 3 . By referring to the said provision of the Constitution Mr. Mukherjee, thus, submits that the High Court building and the land appurtenant thereto which vested in his Majesty, immediately before commencement of the Constitution vested with the State Government after the commencement of the Constitution and as such it cannot be denied that the State Government is not the owner of the High Court Building and the land appurtenant thereto. Our attention was also drawn by Mr. Saptansu Basu, learned Senior Advocate, appearing for the High Court Administration in one of these writ petition, to the Municipal Assessment record to show that the Municipal authority has recorded the PWD Department of the State Government as the owner of the said property in its municipal record. The extract from the municipal record wherein the PWD of the State Government was recorded as the owner of the said premises which was produced before us was kept with the record. 44. Before coming to the conclusion that the State Government is the owner of the High Court building, we feel it necessary to give the brief history of title of His Majesty in the high building for better understanding of the manner in which the ownership of the High Court Building vested with the State after the commencement of the Constitution. 45. Under the provisions of Article 294 of the Constitution of India all properties and assets which immediately before such commencement were vested in His Majesty from the date of commencement of Constitution for the purpose of Government of the Dominion of India and all the properties and assets which immediately before the commencement of the Constitution were vested in His Majesty for the purpose of each Governor Province shall vest in the State. Thus after 1950 the land and ownership of High Court building vested in the State Government. 46. Under Article 214 of the Constitution of India each State shall have a High court. 47. High Court was constructed by the British Government on 02.08.1858 in terms of an Act namely Government of India Act 1858 which was promulgated for better governance by the British Parliament and by virtue of the said Act of 1858, all the properties and rights held by the East India Company vested in Her Majesty. 48. This Hon'ble Court was established under the Indian High Courts Act, 1861 by the then British Parliament and in 1865 Letters Patent was issued on 28th December 1865 and the Letters patent of 1862 was revoked. This Hon'ble High Court was called as the High Court of judicature of Fort William in Bengal. Under Government of India Act, 1919, the Indian High Courts Act 1861 was repealed and separate provisions were made in the said Act of 1919. 49. The Indian High Courts Act 1861 was repealed by Section 130 of Government of India Act of 1915 (See Schedule 4) but by Section 130(a), (b) & (c) of the said Act of 1919 the validity of law charter, Letters Patent and appropriation and property made under the earlier enactment, were saved. Under chapter X of the Government of India Act 1915 particularly under Section 101(5) of the Judicature at Fort William in Bengal named as High Court at Calcutta.
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5 0 . Under Section 321 of the Government of India Act 1935, the Government of India Act 1919 was repealed. Under Section 228 of the Government of India Act 1935 all expenses of High court was directed to be charged from the revenue of the province and any fee or money taken by the High court was directed to form part of the revenue. 51. Under Section 172 of the Government of India Act, 1935 all lands and buildings which were in province vested in His Majesty. Thus after commencement of the constitution all lands and buildings vested in the State Government and all expenses for the High Court were directed to be paid by the State Government as it is the property of the State Government but the High Court is the occupier of the building. The State of West Bengal was formed under Section 3 of the Indian Independence Act, 1947. 52. Considering the facts and circumstances as stated above we have no hesitation to hold that the State Government is the owner of the High Court building and the land appurtenant thereto and the High court Building is not only maintained by the State Government but the construction which is now being raised therein is also made by the State Government under its direct supervision through its Public Works Department and the entire project is funded by the State Government after the same was approved in the budgetary allocation of the State Government. Considering the facts and circumstances as stated above we hold that the land on which the construction is being raised by the Government is its own land and as such the Government can raise such construction over the said land without complying with the provisions contained in Chapter XXII of the Kolkata Municipal Corporation Act in view of the exemption granted to it under Section 3 of the Government Building Act, 1899. H. Discussion on the requirement of service of Notice under Section 3 of the Government Building Act, 1899. 5 3 . Even holding as such we cannot conclude the issues without addressing the dispute regarding legality of such construction in the light of the provisions contained in the Government Building Act, 1899. Though Section 3 of the Government Building Act, 1899 gives exemption of certain Government buildings from municipal laws to regulate the erection etc. of the buildings within municipalities but still then we find that unfettered right of construction without notice of the proposed work to the Municipal authority was not granted to the Government under Section 3 of the said Act. Section 3 of the said Act provides that reasonable notice of the proposed work shall be given to the Municipal authority before it is commenced. 54. In this context a controversy was raised as to whether such a provision regarding service of notice of the proposed work upon the Municipal authority before commencement of the work of construction is a mandatory one or not. Learned Counsel appearing for the High Court Administration as well as the State Government uniformly submitted that giving of notice of the proposed work to the Municipal authority before commencement of the work is not a mandatory one. It is contended by them that though expression "shall" is used in the said provision relating to service of notice upon the Municipal authority before commencement of work but this requirement of service of notice, according to them should be construed as obligatory as the consequence of not giving such notice has not been provided in the said Act. It is thus contended that had the consequence of not giving such notice before commencement of the work been provided in the Act, then giving of such notice upon the Municipal authority before commencement of such work could have been construed as a mandatory one. Since no such provision prescribing the consequence
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for not giving such notice is provided in the said Act, giving of such notice contemplated under Section 3 of the said Act, upon the Municipal authority, according to Mr. Saptansu Basu, learned Senior Advocate is a merely directory one. He further contended that if the provision relating to service of such notice upon the Municipality as contemplated under Section 3 of the said Act is read conjointly with the provision contained in Section 4 of the said Act then it will be made abundantly clear that the State Government was given the ultimate authority either to accept or reject any objection or suggestion which might be given by the Municipal authority in respect of the proposed construction. He thus, contended that since the State Government was given the ultimate authority either to accept or reject the objection and/or suggestion if any raised and/or given by the Municipal authority, then service of such notice upon the Municipal authority before commencement of the work as contemplated under Section 3 of the said Act is a mere formality. Mr. Basu thus contended that failure to give such notice before commencement of the work cannot be held to be fatal in the facts of the instant case inasmuch as such an irregularity which is not an illegality can now be rectified by giving a notice to the municipal authorities inviting them to give their suggestion in respect of such construction so that if any rectification is felt needed by the State Government, the state government may do so in its own wisdom. 5 5 . Mr. Kishore Dutta, learned senior counsel appearing for the High Court administration, in one of these writ petitions practically adopted the submission made by Mr. Kar and Mr. Basu as recorded hereinabove. In addition thereto he submitted that since the Government Building Act, 1899 is a statute to provide some exemption to the government regarding construction on its own land, the provision of the said Act according to him should be interpreted strictly by reading the said Act in its entirety and not by reading a part of it. In support of such submission, he has relied upon the following three decisions of the Hon'ble Supreme Court: (1) in the case of Grasim Industries Ltd. & Anr. v. State of Madhya Pradesh & Anr. reported in MANU/SC/0721/1999 : 1999 (8) SC 547 (2) in the case of Sharif-ud-din Sarf v. Abdul Gani Lone reported in MANU/SC/0352/1979 : 1980 (1) SC 403 (3) in the case of Union of India & ors v. wood Papers Ltd. & Anr. reported in MANU/SC/0454/1991 : 1990 (4) SC 256 Court's finding 56. Let us now consider the contention of the counsel of the respective parties to ascertain as to whether service of notice of the proposed construction upon the municipal authority before commencement of the work is a mandatory one or not. 5 7 . To resolve the said dispute we are required to consider both the provisions contained in section (3) and Section (4) of the said act simultaneously. For proper understanding of the present problem we feel that the provisions of both the aforesaid acts should be set out hereunder: "3. Exemption of certain Government buildings from municipal laws to regulate the erection, etc., of buildings within municipalities. "nothing contained in any law or enactment for the time being in force to regulate the erection, re-erection, construction, alteration or maintenance of buildings within the limits of any Municipality shall apply to any building used or required for the public service or for
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any public purpose, which is the property, or in the occupation of the Government, or which is to be erected on land which is the property, or in the occupation, of the Government: provided that, where the erection, re-erection, construction or material structural alteration of any such building as aforesaid (not being a building connected with {the world "Imperial" rep. by the A.O. 1948.} defence or a building the plan or construction of which ought, in the opinion of {subs.by the A.O. 1937 for "the Govt.} [the Government concerned]' to be treated as confidential or secret) is contemplated, reasonable notice of the proposed work shall be given to the municipal authority before it is commenced". "4. Objections or Suggestions as to erection etc., of certain Government buildings within Municipalities have to be made and dealt with (1) in the case of any such building as is mentioned in the last preceding section (not being a building connected with {The word "Imperial" rep.by the A.O. 1948} defence or a building the plan or construction of which ought, in the opinion of {subs. By the A.O. 1937 for "the Govt."} [the Government concerned], to be treated as confidential or secret), the municipal authority, or any person authorized by it in this behalf, may, with the permission of the State Government previously obtained, but not otherwise, and subject to any restrictions or conditions which may, by general or special order, be imposed by the State Government, inspect the land and building and all plans connected with its erection, re-erection, construction or material structural alteration, as the case may be, and may submit to the State Government a statement in writing of any objections or suggestions which such Municipal authority deem fit to make with reference to such erection, re-erection, construction or material structure alteration. (2) every objection or suggestion submitted as aforesaid shall be considered by the State Government, which shall, after such investigation (if any) as it shall think advisable, pass orders thereon, and the building referred to therein shall be erected, re-erected, constructed or altered, as the case may be, in accordance with such orders: Provided that, if the State Government overrules or disregards any such objection or suggestion as aforesaid, it shall give its reasons for so doing in writing". 5 8 . On reading of the aforesaid provisions conjointly we find that though some exemptions were granted to the government from the municipal laws for raising construction in its own land and/or on the land in occupation of the government but unfettered right of such construction was not granted to the government. Right to raise such construction by the government on its own land is regulated by the restrictions imposed in Section 3 itself when service of reasonable notice of the proposed work upon the municipal authority before commencement of the work is contemplated. Section 4 of the said act provides that upon receipt of such notice the municipal authority, subject to any restriction or condition which made by general or special order be imposed by the state government, inspect land and the building and
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the plans connected with its erection, re-erection, construction or material structural alteration as the case may be and upon such inspection being taken the Municipal authority may also submit to the State Government any objection or suggestion in writing which such Municipal authority may deem fit to make with reference to such erection, re-erection, construction or material structural alteration. Thus, if this part of the modalities framed in those two provisions are taken into consideration then it goes without saying that unless such a notice is served upon the Municipal authority before commencement of the work the municipal authority cannot inspect the site and the building plan and raise and/or give objection and/or suggestion which the Municipal authority may deem fit to make relating to such erection, re-erection, construction or material structural alteration. If such a notice is given after completion of such construction, taking of inspection of such building site and/or giving suggestion and/or objection to the proposed construction will prove to be nothing but a mere idle formality. Of course sub-section 2 of Section 4 of the said Act gives the jurisdiction to the State Government either to accept any suggestion or to reject it, in its own wisdom by passing an order thereon, but still then we hold that service of notice upon the municipality as contemplated under Section 3 of the said act is not idle formality as objection and/or suggestion to the proposed construction which may be raised by the municipal authority may ultimately be found by the Government as justified and the state government before raising such construction may rectify its design and/or plan and/or abandoned the project in the light of such objection which may be raised by the municipal authority in this regard. 59. We thus, hold that service of such notice upon the municipal authority before commencement of work as contemplated under section 3 of the said act cannot be held to be a directory. In our view, service of such notice upon the municipality before commencing of the work is mandatory in nature and in case we hold it otherwise, the modalities framed under section 4 of the said act will become unworkable. I. Conclusion 60. Be that as it may, it is rightly pointed out by Mr. Basu that consequence of not giving such notice upon the municipality before commencement of the work has not been provided in the said Act itself. The act does not provide that if such construction is raised without serving any notice upon the municipal authority as contemplated under section 3 of the said Act, the entire construction should be demolished. Having regard to the fact that the construction has almost been completed and the State Government has spent several crores of rupees for raising such construction, we do not feel that the public interest will be better served if we direct for demolition of the said building instantly for non service of notice upon the municipality in terms of section 3 of the said Act inasmuch as the money which has been spent by the government for raising such construction will ultimately go to the drain if such construction is demolished merely on the ground of non service of the notice upon the municipal authorities. 6 1 . Since the three storied construction has already been completed for a noble public cause and for better administration of justice and for improvement of the efficiency of the staff and for creating a pleasant atmosphere for the lawyers for conducting their cases efficiently and in a congenial atmosphere we feel that justice will be subserved if we direct the Public Works Department which is in-charge of such construction to sit with the municipal authorities across the table and discuss the issue regarding the retainability of such construction as it is, after giving an opportunity to the Municipal authority to inspect the design and take the physical verification of the construction at the building site so that the Municipal authority
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may point out as to whether any modification and/or rectification in the construction is needed or not so that both of them may resolve the point of difference, if there be any, between them by taking the ultimate decision on the suggestion and/or objection, if any, which may be raised by the municipal authority, in the light of the provision contained in section 4 of the Government Building Act 1899. 62. Even by holding that the Government Building Act, 1899 is still in operation and the exemption from applying the Building Rules which is granted to the Government for raising construction on the land of the Government or on the land in occupation of the Government, we cannot hold that the Municipal authority cannot exercise its power under Section 425E of the Kolkata Municipal Corporation Act for preservation and maintenance of the heritage building which is independent of its powers and/or functions relating to implementation of the building rules under Chapter XXII of the Kolkata Municipal Corporation Act, provided however, it is found that the building concerned is declared as a heritage building by the Corporation by following the provisions contained in Chapter XXIIIA of the Kolkata Municipal Corporation Act. 63. We have already held above that on the basis of the materials placed before us regarding the declaration of the High Court Building as heritage building, such declaration made by the Corporation is not valid and effective as such declaration was not made on the basis of the recommendation made by the Heritage Conservation Committee and the Mayor-in-Council in terms of the provision of Kolkata Municipal Corporation Act. 6 4 . However, if the Municipal authority and the State Government ultimately find from their records that the declaration of the High Court Building was made by the Municipal authority in terms of the provision contained in Chapter XXIIIA of the Kolkata Municipal Corporation Act on the basis of the recommendation of the Heritage Conservation Committee and of the Mayor-in-Council, and not merely on the basis of the State Government's recommendation then legality of such construction no doubt will depend upon the decision of the Heritage Conservation Committee in terms of the provision contained in Section 425E of the Kolkata Municipal Corporation Act. As such we make it clear that in the event it is found by the Municipal authority and the State Government that the High Court building was declared as heritage building by the Municipal authority by following the provision of the Municipal Laws then the Heritage Conservation Committee should also be involved for ascertaining as to whether any part of such construction which is made, destroys the heritage status of the said building and in the event it is found that heritage status of the building is destroyed by such construction, then the heritage building should be preserved and/or restored in the manner as it is required by rectification of such construction as per the recommendation of the said Heritage Conservation Committee. Needless to mention here that if it is found that declaration of the heritage status of the said building was not made in accordance with the Municipal law, then Heritage Conservation Committee need not be involved for ascertaining as to whether the impugned construction destroys the heritage status of the said building or not. J. Directions given by the Court 65. However, having regard to the fact that the High Court building is more than 100 years old and it has its unique structural beauty being a species of its own and rear in the world, we, by following the principles as laid down by the Hon'ble Supreme Court in the case of Rajeev Mankotia vs. the Secretary to the Hon'ble President of India reported in MANU/SC/0743/1997 : (1997) 10 SCC 441, direct the Municipal authority to take steps for declaring the High Court Building as Heritage Building in furtherance of the provision contained in Section 425B of the Kolkata Municipal
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