Selvel Advertising Pvt. Ltd. & Anr vs Kolkata Municipal Corporation & Ors on 13 August, 2010
Author: Tapen Sen
Bench: Tapen Sen
1 W.P. 868 of 2006
IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
ORIGINAL SIDE
W.P. No. 868 of 2006
Selvel Advertising Pvt. Ltd. & Anr.
Vs.
Kolkata Municipal Corporation & Ors.
CORAM : The Hon'ble Mr. Justice Tapen Sen
For the Petitioner : Mr. A.C. Kar, Sr. Advocate
For the K.M.C. : Mr. Alok Kumar Ghosh Advocate
Mr. Achinto Banerjee, Advocate
Heard on : 20.1.09, 8.6.09, 29.6.09, 14.7.09, 23.7.09,
28.7.09, 24.8.09, 26.8.09, 28.8.09,
22.10.09, 23.12.09, 23.2.10, 2.3.10,
16.3.10, 23.3.10, 17.5.10, 7.6.10, 9.6.10
11.6.2010
C.A.V. on : 11.6.2010
Judgment Delivered on : 13th August, 2010
Tapen Sen, J.: The Petitioners carry on business of setting up hoardings
in an around Kolkata by letting out the same to different clients for display of
their Advertisements therein. They have entered into various agreements with
Private individuals as also different authorities like the Railways, P.W.D., KMDA
etc. for putting up hoardings at different places within the municipal limits of
Kolkata. The Petitioner No. 1 (M/s. Selvel Advertising Private Ltd.), has, in an
2 W.P. 868 of 2006
around Kolkata and specially the B.B.D. Bag area, various sites for display of
Advertisement and approved sites of the Kolkata Municipal Corporation for which
taxes and fees are realised by the said Corporation under Sections 202, 203 and
204 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as
the said Act).
Sections 202, 203 and 204 of the said Act read as
follows:-
"202. Prohibition of advertisements without written permission of the
Municipal Commissioner.- (1) No person shall erect, exhibit, fix or retain
upon or over any land, building, wall, hoarding, frame, post, kiosk or
structure any advertisement, or display any advertisement to public view in
any manner whatsoever, visible from a public street or public place (including
any advertisement exhibited by means of cinematograph), in any place within
Kolkata without the written permission of the Municipal Commissioner.
(2) The Municipal Commissioner shall not grant such permission if-
a) a licence for the use of the particular site for purpose of advertisement
has not been taken out, or
b) the advertisement contravenes any provisions of this Act or the rules or
the regulations made thereunder, or
c) the tax, if any, due in respect of the advertisement [ has not been paid, or]
d) the Mayor-in-Council, on the basis of the recommendation of the Heritage
Conservation Committee, is of the view that such advertisement will
obstruct the view of, or destabilise the structure of, or will not be in
harmony with, any heritage building.]
3. No person shall broadcast any advertisement, except on radio or television,
without the written permission of the Municipal Commissioner.
203. Licence for use of site for purpose of advertisement.- (1) Except
under and inconformity with the terms and conditions of a licence, no person
being the owner, lessee, sub-lessee, occupier or an advertising agent shall
use or allow to be used any site in any land, building, wall or erect or allow to
be erected on any site, any hoarding, frame, post, kiosk, structure, neon-sign
or sky-sign for the purpose of display of any advertisement.
(2) For the purpose of advertisement, every person-
(a) using any site before the commencement of this Act, within ninety days
from the date of such commencement, or
(b) intending to use any site, or
(c) whose licence for use of any site is about to expire, shall apply for a
licence or renewal of a licence, as the case may be, to the Municipal
Commissioner in such form as may be specified by the Corporation.
(3) The Municipal Commissioner shall, after making such inspection as may
be necessary and within thirty days of the receipt of the application, grant,
refuse, renew or cancel a licence, as the cast may be, on payment of such
3 W.P. 868 of 2006
fees as may be determined by the Corporation by regulations [ or as the
budget estimate shall state under sub-section (3) of section 131].
(4) The Municipal Commissioner may, if in his opinion the proposed site for
any advertisement is unsuitable from the considerations of public safety,
traffic hazards [ aesthetic design, or obstruction of the view of , or harmony
with, any heritage building,] refuse a licence or refuse to renew any existing
licence.
(5) Every licence shall be for a period of one year except in case of sites used
for temporary fairs, exhibitions, sports, events or cultural or social
programmes.
(7) The Municipal Commissioner shall cause to be maintained a register
wherein the licences issued under this section shall be separately recorded in
respect of advertisement sites-
(a) on telephone, telegraph, tram, electric or other posts or poles erected on
or along public or private streets or public places.
(b) In lands or buildings.
(c) In cinema halls, theatres or other places or public resort.
204. Tax on advertisements.-(1) Every person, who erects, exhibits, fixes or
retains upon or over any land, building, wall, hoarding, frame, post, kiosk or
structure any advertisement or, displays any advertisement to public view in
any manner whatsoever, visible from a public street or public place (including
any advertisement exhibited by means of cinematograph) shall pay for every
advertisement which is so erected, exhibited, fixed or retained or so displayed
to public view, a tax calculated at such rate as the Corporation may
determine by regulations [or as the budget estimate shall state under sub-
section (3) of section 131]:
[Provided that] a surcharge not exceeding fifty per cent, of the applicable rate
may be imposed on any advertisement on display in temporary fairs,
exhibitions, sports events or cultural or social programmes.
(2) Notwithstanding the provisions of sub-section (1), no tax shall be levied
under this section on any advertisement which-
(a) relates to a public meeting or to an election to Parliament or the State
Legislature or the Corporation or to candidature in respect of such
election; or
(b) is exhibited within the window of any building if the advertisement
relates to the trade, profession or business carried on in that building; or
(c) relates to the trade, profession or business carried on within the land or
building upon or over which such advertisement in exhibited or to any
sale or letting of such land or building or any effects therein or to any
sale, entertainment or meeting to be held on or upon in the same; or
(d) relates to the name of the land or building upon or over which the
advertisement is exhibited or to the name of the owner or occupier of
such land or building; or
(e) relates to the business of a railway administration and is exhibited
within any railway station or upon any wall or other property of a railway
administration; or
(f) relates to any activity of the Government or the Corporation.
(3) The tax on any advertisement leviable under this section shall be payable
in advance in such number of instalments and in such manner as the
Corporation may be regulations determine [ or as the budget estimate shall
state under sub-section (3) of section 131]:
4 W.P. 868 of 2006
Provided that the Corporation may under the terms and conditions of the
licence under section 203 require the licensee to collect and pay to the
Corporation, subject to a deduction of five per cent to be kept by him as
collection charges, the amount of tax in respect of such advertisements as
are displayed on any site for which he is the licensee.
(Quoted)
2. According to the Petitioners, they had earlier filed a Writ
Petition being W.P. No. 2003 of 2003 (Selvel Advertising Pvt. Ltd. and Anr. vs.
Kolkata Municipal Corporation and Anr.) wherein they had inter alia prayed:
a) for a direction upon the Respondents to dispose oftheir pending applications for grant of licence
b) for a Writ of mandamus striking down the provision of Section 203 of the said Act regarding the provision for payment of Advertisement tax before the issuance of the permission to erect any hoarding or structure,
c) an interim Order restraining the Respondents from refusing to renew their existing licence or from removing any of the existing 394 hoardings,
d) a Writ of Mandamus Commanding upon the Respondents to produce all records relating to the tender of the sites of Pump House and 17 Passenger Shelters,
e) for an injunction restraining the Respondents from allotting any such sites to any person either by re-tender or by private treaty without intimation of the results of the tender to the Petitioners, 5 W.P. 868 of 2006
f) Injunction restraining the Respondents from giving effect to the Notice and directing them to disclose the basis of the demand of Rs. 75,99,882/- with details as to the rate and number of hoardings.
3. The Petitioners have stated that by an Order dated 29.9.2003, the Hon'ble Mr. Justice Kalyan Jyoti Sengupta, passed an Order Directing the Municipal Authorities to furnish details of the amounts received as against each advertising site. Thereafter, although the Corporation gave details of adjustments showing that the Corporation had sanctioned 394 hoardings on payment of taxes and fees, no licence was given in favour of the Petitioners although the same was required to be issued under the Statute. According to the Petitioners, the Municipal authorities were directed to issue the licence. However, since there was non-compliance of the Order, a Contempt Petition was moved by the Petitioners.
4. According to the further case of the Petitioners, apart from the advertisements for which payments had been made but licences not issued, there are sites which had been allowed to be erected by the Municipal Authorities in an around the BBD Bag area for a period of 5 years w.e.f. September 2005 and accordingly, on 3.9.2005, the Corporation issued a letter of allotment of those sites vide Annexure-P/2. According to the said letter the Petitioners were required to pay Rs.1 lakh per Unit for the first three years with a 5% escalation of Costs after completion of three years and for the remaining two years. According to the Petitioners, they paid a sum of Rs. 9 lakhs for one year 6 W.P. 868 of 2006 from 09/05 to 08/06 vide Cheque No. 852946 dated 30.9. 2005. The Cheque was handed over to the authorities by a forwarding letter dated 30.9.2005.
5. Thereafter, an intimation was given to the Petitioners under the signature of the Chief Manager (Advertisement) dated 24.5.2006 (Annexure- P/3), informing them about the restriction on the display of advertisements in some selected areas of Kolkata from the heritage point of view. By reason of the said letter, it was informed that the Mayor-in-Council of the Kolkata Municipal Corporation, in its meeting dated 5.5.2006, while considering the recommendations of the Heritage Conservation Committee, had decided to ban and remove advertisements/hoardings in the heritage precincts, heritage areas of the Esplanade, BBD Bag and particularly, on the following streets/places:-
"1) Jawharlal Nehru Road from Statesman House on the north to the Park Street Flyover beginning point on the south.
2) The entire Maidan area including the Citizens Park, the Elliott Park, the Monohardas Tarag, the Curzon Park, the expanse of the Maidan as such, the areas in front of Eden Gardens, Netaji Indoor Stadium and Akashbani Bhavan.
3) The Council House Street and the two sides of the said street (including the premises like St. John's Church, G.P.O Kolkata Collectorate etc.)
4) The Laldighi and its four sides.
5) The areas in front of Writers' Buildings, St. Andrew's Chruch, the Old Court House Street etc."
(Quoted)
6. It was further mentioned in the said letter that on the areas mentioned above, no advertisements/hoardings would be allowed in front of major historical institutions like the High Court, Victoria Memorial Hall, Town 7 W.P. 868 of 2006 Hall etc. and accordingly, the Petitioners were requested to remove, within 7 days, their hoarding(s)/ glow signs, banners etc. as per the list attached therein mentioning the location, nature and size of the said hoardings/glow signs etc. The Petitioners were further informed that no advertisements/hoardings in the City was lawful or valid without licence/permission of the Corporation and since the Corporation would not give any licence or permission on the areas mentioned therein, all advertisements/hoardings on those areas would become illegal and removable. The list of the sites mentioned and attached in the said letter contained the following details:-
Sl. Location Size
No.
1. Maidan Metro 20' x 10'
2. 9C, Esplanade (East) 20' x 10'
3. 9C, Esplanade (East) 50' x 10'
4. 19A, J.L. Nehru Road 35' x 5'
5. 9C, Esplanade (East) 50' x 10'
6. 11, Esplanade (East) 45' x 10'
7. 11, Esplanade (East) 45' x 10'
8. 9C, Esplanade (East) 50' x 10'
9. 11, Esplanade (East) 20' x 15'
10. 19A, J.L. Nehru Road 35' x 10'
11. 19A, J.L. Nehru Road 35' x 10'
12. 19A, J.L. Nehru Road 35' x 10'
13. 25, J.L. Nehru Road 24' x 16'
14. 2, Chowringhee Road 24' x 20'
15. 11, Esplanade (East) 40' x 10'
8 W.P. 868 of 2006
16. 11, Esplanade (East) 40' x 10'
17. 11, Esplanade (East) 40' x 10'
18. 11, Esplanade (East) 20' x 15'
19. 11, Esplanade (East) 20' x 15'
20. 11, Esplanade (East) 20' x 15'
21. 30, J.L. Nehru Road 40' x 10'
22. 30, J.L. Nehru Road 64' x 8'
23. 30, J.L. Nehru Road 30' x 10'
24. 30, J.L. Nehru Road 200 sq.ft.
25. 30, J.L. Nehru Road 30' x 20'
26. 30, J.L. Nehru Road 200 sq.ft.
27. 30, J. L. Nehru Road 30' x 20'
28. 30, J. L. Nehru Road 192 sq.ft.
29. 30, J. L. Nehru Road 600 sq.ft.
30. 30, J. L. Nehru Road 600 sq. ft.
31. 30, J. L. Nehru Road 375 sq. ft.
32. 30, J. L. Nehru Road 25' x 15'
33. 30, J. L. Nehru Road 20' x 15'
34. 30, J. L. Nehru Road 20' x 10'
35. 30, J. L. Nehru Road 20' x 10'
36. 30, J. L. Nehru Road 256 sq.ft.
37. 30, J. L. Nehru Road 400 sq.ft.
38. 30, J. L. Nehru Road 300 sq.ft.
39. 30, J. L. Nehru Road 600 sq.ft.
40. 30, J. L. Nehru Road 256 sq.ft.
41. 30, J. L. Nehru Road 200 sq.ft
42. 30, J. L. Nehru Road 800 sq.ft.
9 W.P. 868 of 2006
43. 30, J. L. Nehru Road 20' x 20'
44. 9B, J. L. Nehru Road 200 sq.ft.
45. 30, J. L. Nehru Road 20' x 15'
46. 1, Esplanade East 17' x 15'
47. 9C, Esplanade Row(East) 250 sq.ft.
48. 2, J. L. Nehru Road 240 sq.ft.
49. 9B, J. L. Nehru Road 500 sq.ft.
50. 9B, J. L. Nehru Road 500 sq.ft.
51. 9B, J. L. Nehru Road 500 sq.ft.
52. 9B, Esplanade East 500 sq.ft
53. 30, J. L. Nehru Road 15' x 10'
54. 9B, Esplanade Row(East) 50' x 10'
55. 9B, Esplanade Row(East) 50' x 10'
56. 9B, Esplanade Row(East) 50' x 10'
(Quoted)
7. This letter is the subject matter of challenge before this Court in this Writ Petition wherein the Petitioners have prayed for quashing thereof and for issuance of a Writ of Mandamus Commanding upon the Respondents not to enforce the said letter and also, for a Direction upon them to delete the provisions of Section 202 [Sub-section 2(d)] being contrary to the provisions of The West Bengal Heritage Commission Act, 2001.
8. According to the Petitioners however, none of their hoardings are located/installed on any Heritage building or in front of any heritage building which obstructs its view and therefore, by their letter dated 10 W.P. 868 of 2006 31.5.2006 (Annexure-P/4), they replied to the same protesting to the issuance thereof by pointing out as follows:-
a) The Mayor-in-Council of the Kolkata Municipal Corporation could not have acted on the basis of any alleged recommendation of the Heritage Conservation Committee constituted by the Mayor-in-Council in terms of Section 425-D of the said Act.
b) The Heritage Conservation Committee had no authority to make any recommendations to the Kolkata Municipal Corporation in view of a subsequent State Act by which the Heritage Commission had been established with powers to make recommendations to the State Government and not to the Corporation.
c) As such, any advice or recommendation of such a Heritage Conservation Committee was not binding on the Petitioners, especially more so, in view of the fact that the said recommendation was not made by the Heritage Commission set up under The West Bengal Heritage Commission Act, 2001.
d) At no point of time, the Esplanade, BBD Bag area or any of the roads or the Maidan area, mentioned in the letter, had ever been declared to be a heritage area either by the Corporation or by the Heritage Conservation Commission or by the Heritage Commission set up by the said subsequent Statute and therefore, a mere communication that an area had been declared to be a heritage area did not make it a heritage area and as such, the recommendation, if at all made, was not binding either on the Mayor-in-
Council or the Petitioners.
11 W.P. 868 of 2006
e) "A Heritage Building" has been defined under The West Bengal Heritage Commission Act, 2001 as "any building of one or more premises or any part thereof which requires preservation and conservation for historical, architectural, environmental or cultural importance, 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 the areas and buildings required for the preservation and conservation for the purpose as aforesaid........."
f) There was therefore, no scope for declaring a total area to be heritage even under The West Bengal Heritage Commission Act, 2001.
g) The list enclosed in the letter contained 56 items which, according to the Corporation, had to be removed but, all those sites had been approved by the Corporation and taxes under Sections 202,203 and 204 had been paid except for item No. 1. Even licence Code numbers had been issued in respect of these sites although in spite of an Order of the Court (W.P. 2003 of 2003), specific formal licences in respect thereof had not been issued but payments accepted under Court Orders.
9. The Petitioners further stated that they would consider the proposal made by the Corporation but such consideration would be restricted to the KMC sites at the BBD Bag area only provided existing licences were transferred to new sites as may be proposed by them as had been done in many cases where such shifting of hoarding sites were obtained with their permission and therefore, they requested that the matter be taken up with the Public Works 12 W.P. 868 of 2006 Department, Government of West Bengal. They further stated that the Petitioners had invested huge amounts of money in the said hoardings and in case of premature termination, they would have to pay a huge amount of compensation to their Clients and therefore, prior to removal of the said hoardings, the Petitioners requested for an assurance that the Corporation would compensate the loss suffered by them and also reimburse all amounts that would be paid by them as compensation to their own Clients.
10. In the Affidavit-in-opposition filed by the KMC through their Chief Manager (Advertisement), it has been stated that Chapter XXIII A of the said Act of 1980, deals with the provisions of preservation and conservation of heritage buildings. They have further stated that the said Chapter contains, inter alia, Sections 425 A to 425P which were inserted by Section 34 of the KMC (Amendment) Act, 1997 w.e.f. 22.12.1997. According to them, Section 425B confers a power upon the Corporation to declare a building as "heritage" and a "Heritage Building" is defined under Section 2(42A) of the said Act. According to them, and as per this definition, "Heritage Building", includes the areas and buildings that require preservation for the purposes mentioned under Section 31(4) (ii) of The West Bengal Town and Country (Planning and Development) Act, 1979 which provides that the Land Usage and Development Control Plan may also include the areas or buildings that require preservation and conservation for historical, architectural, environmental, ecological and religious purposes. For the sake of convenience, the aforesaid Sections 425B and 2(42A) of the Kolkata Municipal Corporation Act, 1980 are reproduced below:-
13 W.P. 868 of 2006 425B. Power of Corporation to declare a building as a heritage building.-
Where the Corporation, on the recommendation of the Heritage Conservation Committee and also of the Mayor-in-Council, is of the opinion that any building in Kolkata should be preserved and conserved for historical, architectural, environmental or ecological purpose, it may declare such building as a heritage building:
Provided that during the period when any proposal for declaring building as a heritage building is under consideration of the Heritage Conservation Committee or the Mayor-in-Council, no owner of such building, or no lessee or sub-lessee to whom such building has been leased out, shall transfer such building by way of sale, lease or mortgage without the prior approval of the Municipal Commissioner.
2(42A) "Heritage Building" means any building of one or more premises, or any part thereof, which requires preservation and conservation for historical, architectural, environmental or ecological purpose, and includes such portion of the land adjoining such building or any part thereof as may be required for fencing or covering or otherwise preserving building, and also includes the areas and buildings requiring preservation and conservation for the purpose of aforesaid under sub-clause (ii) of clause (a) of sub-section (4) of section 31 of the West Bengal Town and Country (Planning and Development) Act, 1979 (West Ben. Act XIII of 1979)"
(Quoted) The relevant provisions of Section 31 including Section 31(4) (ii) of The West Bengal Town and Country (Planning and Development) Act, 1979 reads as follows:-
31. Land Use and Development Control Plan- (1) A Planning Authority or Development Authority shall, within two years of the declaration of a Planning Area, prepare a plan (hereinafter called the [Land Use and Development Control Plan]) for the Planning Area and forward a copy thereof to the State Government:
Provided that the concerned authority may prepare the plan in respect of any portion of the Planning Area, but the plan in respect of the entire Planning Area shall be completed within a period of three years or within such time as the State Government may from time to time extend.
(2) The [ Land Use and Development Control Plan] in any area shall be a written statement.-
(a) formulating the policy and the general proposals including maps of the Planning Authority or the Development Authority in respect of the development and general use of land in that area including measures for the improvement of the physical environment;
(b) stating relationship between these proposals and general proposals for the development and general use of land in neighbouring areas which may be expected to affect the area; and
(c) containing such other matters as may be prescribed or directed by the State Government.
14 W.P. 868 of 2006 (3) A [Land Use and Development Control Plan] in any area shall contain or be accompanied by such maps, diagrams, illustrations and descriptive matters as the Planning Authority or the Development Authority thinks appropriate for the purpose of explaining or illustrating the proposals in the plan and such diagrams, illustrations and descriptive matters shall be treated as parts of the plan.
(4) The [Land Use and Development Control Plan] may also-
(a) (i) indicate broadly the manner in which Planning Authority or the Development Authority proposes that land in such area should be used;
(b) indicate areas or buildings requiring preservation and conservation for historical, architectural, environmental and ecological and religious purposes;"
(Quoted)
11. According to these Respondents, the Land Usage and Development Control Plan for different Wards of the KMC area, being portions of the Kolkata Metropolitan Planning Area, as prepared, had already long been approved by the Government of West Bengal under Section 37(2) of the said West Bengal Town and Country (Planning and Development) Act, 1979 and the same was duly published vide Letter issued under Memo No. 3528-UD/O/M/SB/S- 1/95 dated 13.6.1997.
12. In Schedule-VII of the said Land Usage & Development Control Plan, all areas mentioned in the Resolution of the Mayor-in-Council were already indicated as areas or buildings that require preservation and conservation for historical, architectural, environmental and ecological point of view and therefore, those areas, having been mentioned in the impugned communication, is already covered under Schedule -VII referred to above and therefore, the Corporation, while implementing the same, cannot be said to have committed any illegality. The relevant portions of the photocopy of the said Land
15 W.P. 868 of 2006 Usage and Development Plan was produced in Court by Mr. Alak Ghosh and this Court notices that Schedule VII appended thereto reads as follows:-
"SCHEDULE-VII LIST OF AREAS AND/OR BUILDINGS REQUIRING PRESERVATION AND CONSERVATION FOR HISTORICAL, ARCHITECTURAL, ENVIRONMENTAL OR ECOLOGICAL POINT OF VIEW Sl. No. Name and Location
1. Raj Bhavan
2. High Court with South Annex
3. Town Hall
4. A.G. Bengal's office on Council House Street
5. Commercial Library Building on Council House Street
6. Metcafe Hall
7. Central Telegraph Office
8. All the buildings abutting B.B.D. Bag North, South and West."
(Quoted)
13. The Respondents have further stated that in the meantime, The West Bengal Heritage Commission Act, 2001 came into operation and the said Act was enacted for providing the establishment of a Heritage Commission in the State of West Bengal for purposes of identifying Buildings, Monuments, Precincts and Sites for taking measures for their restoration and preservation. The said Act came into force in the whole of the State of West Bengal on and from 1.8.2001 vide Gazette Notification as contained in Annexure- R/2.
14. Section 2(f) of the said Act defines a "Heritage Building"
and, it is noticed, that it is virtually the same as defined under Section 2(42A) of KMC Act, 1980 save and except that it has included monuments of Heritage importance as defined under Clause 2(i) as well as precincts or such other sites 16 W.P. 868 of 2006 commonly considered for Heritage importance. Sections 2(f) and 2(i) of The West Bengal Heritage commission Act, 2001 (a photocopy whereof was produced by Mr. Ghosh in Court) read as follows:-
2(f) "Heritage Building" means any building of on or more premises or any part thereof which requires preservation and conservation for historical, architectural, environmental or cultural importance, 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 the areas and buildings requiring preservation and conservation for the purpose as aforesaid under sub-clause (ii) of clause (a) of sub-section (4) of section 31 of the West Bengal Town and Country (Planning and Development) Act, 1979 (West Ben. Act 13 of 1979), monuments of heritage importance as defined in clause (i) of this section, precincts or such other sites commonly considered for heritage importance.
(i)"Monuments of Heritage importance" means any building, structure, erection, monolith, monument, mound, tumulus, tomb, place of interment, cave, sculpture, inscription on an immovable object or any part or remains thereof, or any site, which the State Government by reason of its heritage association, considers it necessary to protect against destruction, injury, alteration, mutilation, defacement, removal, dispersion or falling into decay"
(Quoted)
15. Apart from the aforesaid, this Court further notices that under the provisions of Section 11 read with Section 16 as well as Section 4(e) of the said Act, a lively interaction between the Corporation and the Commission has been provided and both are required to act in harmony with each other with the sole and avowed object of preserving heritage buildings and heritage sites as well as heritage areas. Section 4, Section 11 and Section 16 of The West Bengal Heritage Commission Act, 2001 ( photocopy whereof was produced by Mr. A. Ghosh in Court) read as follows:-
4. Composition of Commission.- The Commission shall be chaired by an eminent person with concern and commitment for Heritage Conservation and shall consist of not more than twenty-one members, interested in all matters relating to the national and regional heritage. The Commission shall consist of a Chairperson and the following members:-
a) Director of Archaeology and Museum, Department of Information and Cultural Affairs, Government of West Bengal;
17 W.P. 868 of 2006
b) A representative of the Department of Environment, Government of West Bengal (preferably an Environmentalist);
c) A representative of the Department of Urban Development, Government of West Bengal (preferably a Structural Engineer or an Architect);
d) A representative of the Municipal Affairs Department or the Department of Panchayat and Rural Development, Government of West Bengal;
e) Six members of the Municipal Corporations and the Municipalities in West Bengal, of whom not less than two shall be the Mayor, Calcutta Municipal Corporation, and the Mayor, Howrah Municipal Corporation, or their nominees, one shall be the representative of the Municipalities of Darjeeling, Kalimpong and Kurseong in the District of Darjeeling and the other three from amongst other Municipal Corporations, Municipalities and Zilla Parishads in West Bengal, to be nominated by the State Government;
f) Eleven members from the areas of specialisation, namely, History, Art- History, Fine Arts, Architecture, Conservation, Law (with Special reference to property matters). Structural Engineering, Town and Country Planning, Industry and Commerce, of whom two shall be from Industry and Commerce.
11. Powers and functions of Commission- (1) Notwithstanding anything contained in any other law for the time being in force, all local authorities shall refer anything related to identification, restoration and preservation of any heritage building or any other development or any engineering operation which is likely to affect preservation of any heritage building, for advice.
2) subject to the provisions of sub-section (1), the functions of the Commission shall be-
i) to advise the State Government on preparing a classification of buildings in certain grades of heritage buildings after scrutinising applications and proposals received, including supplementing the existing list of buildings as well as other matters relating to heritage conservation;
ii) to advise the State Government or any alteration, modification or relaxation of any law for the time being in force in development, control and conservatio of any heritage building;
iii) to advise the local authorities, where necessary, on the policy of the grant of any certificate of right of development of any heritage building;
iv) to advise whether to allow commercial or other use of heritage buildings and, if so, when to prohibit such use;
v) to advise the State Government on framing of special regulations for such heritage buildings as may be listed by the State Government;
vi) to advise the local authorities to regulate the installation of advertisement and display structure in respect of heritage buildings;
vii) to advise the State Government on guidelines to be adopted by private parties who sponsor beautification schemes in West Bengal;
viii) to advise the local authorities on the cost of repair of heritage buildings and the policy to be adopted for raising repair-funds from private sources;
ix) to advise the local authorities to prepare special designs and guidelines for heritage buildings controlling the height and essential characteristics and to suggest other aspects of conservation and restoration;
x) to advise the local authorities on the provision of incentive by exemption from payment of rates or taxes or fees for supply of water or any other charge in respect of heritage buildings;
18 W.P. 868 of 2006
xi) to advise the State Government on the penal measures for defacing or destroying a heritage building;
xii) to advise the State Government and the local authorities on the making of provision for restoration of heritage buildings;
xiii) to advise the State Government and the local authorities on documentation or records of heritage buildings.
xiv) to advise the State Government on the steps to involve public opinion in mobilisation of efforts for creating awareness, preserving or maintaining heritage, and the consciousness of its visible architectural and natural evidences, so as to foster the creation of a popular mandate for heritage preservation.
xv) to advise the State Government on any other matter relating to restoration or preservation of buildings of heritage importance as may be entrusted by the State Government to the Commission.
3) Notwithstanding anything contained in any other law for the time being in force, no local authority shall take any step for identification, preservation, conservation or restoration of any heritage building, not consistent with the determination or advice of the Commission.
16. State government and local authority to accept, and to take action in accordance with, the advice of the commission- (1) Subject to the other provisions of this Act, the State Government and very local authority shall accept every advice of the Commission to the Government or the local authority, as the case may be, and shall take action for prompt and effective implementation of such advice.
2) The State Government may, for the purposes of sub-section (1) ..........such directions to a local authority as it may deem fit and thereon, such local authority shall act according to the directions as aforesaid." (Quoted)
16. Upon a perusal of the aforementioned facts, it would thus be evident that under Chapter XXIII (A) of the KMC Act as well as under the provisions of The West Bengal Heritage Commission Act, 2001, the object is to preserve heritage. So far as the State is concerned, under The West Bengal Town and Country (Planning and Development) Act, 1979, the functions as laid down under Section 31(4) was already undertaken by Notification dated 13.6.1997 as stated above and as recorded in Para-5 of the Affidavit-in-opposition. Therefore, if a Local Body like the Corporation, has proceeded to give effect to the decision of the State by issuance of the impugned communication, it cannot be said that they have acted in isolation of the State or illegally or that they had no authority 19 W.P. 868 of 2006 to take such a decision after coming into force of The Heritage Commission Act, 2001.
17. Apart from the aforesaid, the provisions of The West Bengal Heritage Commission Act, 2001, taken into consideration above, goes to show that the Kolkata Municipal Corporation has not been denuded of their powers for taking steps for the preservation and conservation of "heritage" as provided under Chapter XXIII-A. Moreover, Section 2(42B) lays down and provides for the constitution of a "Heritage Conservation Committee" constituted under the provisions of Section 425D(1). Section 425 (D) is included under Chapter XXIII-A and therefore, if such a Committee makes a recommendation which is in line with what the State had already decided and if it wants to give effect to such a decision and if it decides to preserve heritage, their action can only be lauded but not criticised.
18. This Court therefore and at the risk of repetition, reiterates that the coming into force of The West Bengal Heritage Commission Act, 2001 does not mean that the Corporation has been denuded of its powers conferred under Chapter XXIII-A nor does it mean that the provisions of such a Chapter has been impliedly repealed.
19. Apart from the aforesaid, this Court also notices that under the provisions of Section 202, there is a provision for prohibition of advertisements and it has been provided that no person shall advertise without the written permission of the Kolkata Municipal Corporation and under the provisions of Section 202(2), the Municipal Commissioner of the Kolkata 20 W.P. 868 of 2006 Municipal Corporation has been given the power not to grant such permission if, the Mayor-in-Council, on the basis of the recommendation of the Heritage Commission Committee is of the view that such Advertisement will obstruct or destabilize the structure of or will not be in harmony with any heritage building. Section 202 reads as follows:-
202. Prohibition of advertisements without written permission of the Municipal Commissioner.- (1) No person shall erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post, kiosk or structure any advertisement, or display any advertisement to public view in any manner whatsoever, visible from a public street or public place (including any advertisement exhibited by means of cinematograph), in any place within Kolkata without the written permission of the Municipal Commissioner.
(2) The Municipal Commissioner shall not grant such permission if-
e) a licence for the use of the particular site for purpose of advertisement has not been taken out, or
f) the advertisement contravenes any provisions of this Act or the rules or the regulations made thereunder, or
g) the tax, if any, due in respect of the advertisement [ has not been paid, or]
h) the Mayor-in-Council, on the basis of the recommendation of the Heritage Conservation Committee, is of the view that such advertisement will obstruct the view of, or destabilise the structure of, or will not be in harmony with, any heritage building.]
3. No person shall broadcast any advertisement, except on radio or television, without the written permission of the Municipal Commissioner. (Quoted)
20. Under such circumstances, this Court is of the view that by issuing the aforementioned letter/communication, it cannot be said that the Municipal Corporation has acted illegally. Accordingly, the Writ Petition must fail. However, since the Petitioners had categorically stated in their reply dated 31.5.2006 (being the Reply to the impugned Notice dated 24.5.2006), that the hoardings etc. allotted by the Corporation had been licensed to them during September 2004 and 2005 for a period of 5 years with option for renewal and in several cases, the licence fees had been paid in advance up to the end of the 21 W.P. 868 of 2006 relevant years and, on the basis of the tenure of such Agreements, they had entered into contracts with various clients for the entire tenure of the licence and had invested huge amounts of money and in case of premature termination and having to remove the hoardings on the basis of the impugned Notice, they would have to pay huge compensation to their clients, this Court directs that the Corporation shall refund the licence fees taken from the Petitioners to the extent of the period of the licence that is still remaining in force after proportionately calculating the same. However so far as the claim for compensation is concerned, this Court refuses to pass any Orders thereon as has been sought to be conveyed by the Petitioners in their letter dated 31.5.2006 (Annexure- P/4).
The Writ Petition is Dismissed. However, in the facts and circumstances of this case, there shall be no Order as to costs.
Upon appropriate Application(s) being made, urgent Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.
(Tapen Sen, J.) ............August, 2010 S.B. A.F.R./N.A.F.R.
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