Kamal Dey and Ors Vs Director General ArcheologicWB2015060815214610104COM646745

MANU/WB/0596/2015
Equivalent Citation: 2016(1) C HN (C AL) 329
IN THE HIGH COURT OF CALCUTTA

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

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

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,

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

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

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

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

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

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

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

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.

(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.

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

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.

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

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

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

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

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

Corporation Act, 1980, forthwith.
66. Accordingly we dispose of all these four writ petitions by directing the Public
Works Department of the State of West Bengal which is in charge of such
construction to sit with the municipal authority across the table after giving an
opportunity to the municipal authority to inspect the design and/or plan pursuant to
which such construction was raised so that the municipal authority take inspection of
the impugned construction at the building site jointly with the PWD officials and after
taking such inspection if the municipal authority feels that any suggestion and/or
objection is needed to be given and/or raised then such objection and/or suggestion
may be raised and/or given by the municipal authority and in case such objection
and/or suggestion is raised and/or given by the municipal authority, the State
Government will take the ultimate decision by passing a reasoned order in terms of
the provision contained in section 4 of the Government Buildings Act within a
reasonable time.
6 7 . The entire exercise in this regard should be completed by those authorities
within two months from date in the light of the observation made hereinabove and
also by taking note of our direction regarding involvement of the Heritage
Conservation Committee in the process. Needless to mention here that if any
objection is raised by the municipal authorities and if the State Government finds that
such objection is justified and any rectification and/or modification in the impugned
construction is needed, the State Government will do so before allowing the said
construction to be used for the purpose for which it was constructed.
K. Reasons for not discussing the other part of the submission of the parties.
68. Before parting with we like to mention here that since nothing could be produced
before us to show that any notification under Section 3 and Section 4 of ancient
Monuments and Archeological Sites and remains Act 1958 has been issued by the
Central Government identifying the High court Building as historical monument of
national importance, we feel no necessity to discuss the submission of the learned
Counsel of the petitioner relating to the applicability of the various provisions of the
said Act to the High Court Building.
69. Similarly, since this High Court Building was not declared as a heritage building
under the provision of the West Bengal Heritage Commission Act, 2001 we decline to
consider the submissions of the learned advocates of the respective parties with
regard to applicability of the provisions of the said act to the impugned construction.
70. All the writ petitions are thus disposed of.
7 1 . Urgent photostat certified copy of this order, if applied, for be given to the
parties as expeditiously as possible.
Debi Prosad Dey, J.
I agree.
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MANU/WB/0596/2015

Equivalent Citation: 2016(1) C HN (C AL) 329

IN THE HIGH COURT OF CALCUTTA

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