1. The intra-Court appeal has been preferred by the appellants as against the judgment and order dated 13th August, 2010, passed by the Single Judge.

2. The appellants carry on business of putting up and erection of hoardings in and around Calcutta for which taxes and fees are levied by the Kolkata Municipal Corporation under Sections 202, 203 and 204 of the Kolkata Municipal Corporation Act, 1980 thereinafter referred to as the Act of 1980.

3. Earlier the petitioners had preferred WP No. 868 of 2006 in which prayer was made to dispose of the pending application for grant of licenses. Prayer was also made to. strike down the provisions contained in Section 203 of the Act of 1980. On 29th September, .2003 order was passed directing the Corporation to issue license and furnish details of all the sites and the dues in relation to the sites of the hoardings. The petitioners were not issued the license. Therefore a contempt petition was moved.

4. The petitioners had set up a case in the instant matter that they had made payment for advertisement but.licensee were not issued. There were various sites on which displays had been permitted to be made by the Municipal authorities in and around B.B.D Bag area for a period of five years with effect from September, 2005. Order of allotment of site had been placed on record. The petitioners were intimated vide Annexure P-3 dated 24th May, 2006 about the restriction on putting hordings in some selected area in Calcutta from heritage point of view by the Kolkata Municipal C.o poration authorities based on the recommendation by the Heritage Conservation Committee. By reason of the said letter it was informed that the Mayor in Council of the Kolkata Municipal Corporation in its meeting dated 5th May, 2006 while considering the recommendation of the Heritage Conservation Committee had decided to ban and remove all the advertisements and hoardings in the heritage precincts, heritage area of the Esplanade, B.B.D Bag, particularly Jawaharlal Nehru Road, Maidan area, Council House Street, areas in front of Writers Buildings etc.

5. It was further mentioned in the letter that in the areas mentioned above, no advertisements/hoardings would be allowed in front of major historical institutions like the High Court, Victoria Memorial Hall, Town Hall etc. The petitioners were requested to remove their hoardings/glowsigns, banners etc. within 7 days. The petitioners were further informed that no advertisements/hoardings in the city was lawful or valid without license or permission of the Corporation and since the Corporation would not give any license or permission on the areas mentioned therein, all advertisements/hoardings in those areas would become illegal and removable. Moreover no license was given to the petitioners. The petitioners have prayed for quashing of the communication dated 24th May, 2006 and sought for a direction upon the respondents to declare the provisions contained in Section 202 (2) (d) as ultra vires and contrary to the provisions of The West Bengal Heritage Commission Act, 2001. It was submitted by the petitioners that the hoardings are not located or installed on any heritage building or in front of the same guarding the view of the buildings. There is subsequent enactment, The West Bengal Heritage Commission Act, 2001 (hereinafter referred to as the Act of 2001). As such all the right to deal with the heritage building has been taken away by the West Bengal Heritage Commission constituted under the Act of 2001. As such, the Kolkata Municipal Corporation does not have any right to deal with the property which is said to be heritage or even consider whether such properties are heritage or not. The Heritage Conservation Committee constituted or the Mayor-in-Council have no right to deal with such matters. Section 202(2) (d) of the Act of 1980 has no application in the case. The letter issued on 24th May, 2006 was without any authority. The Kolkata Municipal Corporation has no right to deal with any property or area and to declare the same as heritage.

6. In the affidavit-in-opposition filed by the respondent Nos.1, 2 and 3, it is contended that the Conservation Committee has made certain recommendation in its meeting dated 25th April, 2006 recommending removal of hoardings/advertisements from the heritage precincts. Section 425B empowers the Corporation to declare a building as heritage building. The "Heritage Building" has been defined in Section 2 (42A) of the Act of 1980. It was further contended that Section 31(4)(a) of the West Bengal (5) Town And Country (Planning & Development) Act, 1979 also provides that the Land Use & Development Control Plan may also indicate the areas of buildings requiring preservation and protection for historical, architectural, environmental, ecological and religious purposes. The land shown in the Development Control Plan has, been approved by the Government of West Bengal under the Town & Country Planning Act of 1979 (hereinafter referred to as the Act of 1979) vide its letter dated 12th June, 1997 and the same was duly published. The Land Use & Development Control Plan provides for preservation and conservation of the land indicated in Schedule VII of the said Act. The areas mentioned in the said resolution/decision of the MIC as regards ban on advertisements are also covered by the list of the areas or buildings for such preservation and conservation under Schedule VII of the said Act of 1979. Now the Act of 2001 has come into force on 24th July, 2001. The operation of the provisions of the Act of 1980 has not been adversely affected and decision taken is supported by the provisions of the Act of 2001. The particular spots falls within the prohibited zone for advertisement. There is violation of the other provisions of the Act of 1980. The hoardings were not in accordance with the provisions of the Act of 1980. The petitioners cannot display any advertisement according to their wishes or whims. License is required to be obtained, thereafter permission can be granted to erect hoardings. Without obtaining license the petitioners had no right to put up hoardings at any site and display of the advertisement on such hoardings that too without payment of the advertisement tax are absolutely illegal and unauthorised. The petitioners have erected several numbers of unauthorised hoardings. However, they do not have the required license. Allocation of hoardings, as stated in the list, fall within the heritage precincts. As such the hoardings are required to be removed.

7. The Rejoinder styled as Reply to the Affidavit-in-opposition, has been filed reiterating the facts mentioned in the petition.

8. The Single Bench by the impugned judgment and order has dismissed the writ application. Aggrieved by the same, intra-Court. appeal has been preferred. The. Single Bench has held that the object of the Act of 1980 and the Act of 2001 is to preserve the heritage buildings. The State of West Bengal under the West Bengal Town and Country Planning Act, 1373 has issued a Notification dated 13th June, 1997. Thus the Corporation had the authority to take such a decision. The Kolkata Municipal Corporation has not been denuded of this power of conservation and preservation of the heritage buildings, as noted in Chapter XXIIIA of the Act of 2001. Thus, the action taken by the Corporation is laudable and beyond the purview of the Act. The Single Bench has dismissed the writ application.

9. Learned Senior Counsel appearing on behalf of the appellants has submitted that the Municipal Corporation had no power to declare the area in question as heritage precincts. Alternative submission raised was that even if the Corporation has not declared the same as heritage precincts, the grading lists of the heritage building which was placed on record without any pleadings does not include the name of the properties in question. As such it should be held by this Court that properties in question are not heritage buildings. Thus, the Corporation had no authority to issue the impugned communication dated 24th May, 2006. The same is liable to be quashed, more so, in view of the provisions contained in the Act of 2001.

10. Learned Counsel appearing on behalf of the respondents has supported the impugned judgment and order and has submitted that Government has issued a Notification by virtue of which the area in question is declared to be heritage precincts. No licence has been issued at any point of time in favour of the appellant No. 1 and thus it has no right or authority to question the action of the respondent authorities much less to maintain the writ application. The decision taken by the Corporation is in terms of the provisions contained in the Act of 1980. There is no repugnancy between the Act of 1980 with provisions contained in the Act of 2001, both are complementary to each other.

11. Section 2(42B) provides for the constitution of the Heritage Conservation Committee as per provisions contained in Section 425D. Heritage building has been defined in Section 2(42A) of the Act of 1980 which also includes the area and buildings requiring preservation and conservation as per Section 31(4)(a)(ii) of the Act, 1979. There is a power with the Corporation to control the erection of the hoardings as per the provisions contained in Section 202 of the Act of 1980 and licence is required to be issued as per provisions contained in Section 203 of the Act of 1980. Thus there is no merit in the appeal and the same is liable to be dismissed.

12. We place it on record that the prayer with which the petitioner has come to the Court that the provisions contained in Section 203 of the Act of 1980 be declared ultra vires but the prayer has not been pressed by the learned Counsel for petitioners. Only prayer pressed is with respect to quashing of the communication dated 24th May 2006.

13. When we consider the communication dated 24th May 2006, it is reflected therein that the Mayor-in-Council of Kolkata Municipal Corporation in its meeting dated 5th May, 2006 while considering the recommendation of the Heritage Conservation Committee has decided to impose ban on all the advertisements and hoardings in the heritage precincts, heritage area of the Esplanade, B.B.D Bag, Jawaharlal Nehru Road, entire Maidan area, including Citizens Park etc. The prohibited areas, delineated in the said communication are as follows :

(1) Jawaharlal 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 Camp, 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.Johns Church, G.P.O. Kolkata, Kolkata Collectorate etc.)

(4) The Laldighi and its four sides.

(5) The areas in front of Writers Buildings, St.Andrews Church, the Old Court House Street, etc.

14. Heritage Conservation Committee has taken the decision in its meeting dated 25.4.2006 which had been implemented by the Mayor-in-, Council.

15. We find that by virtue of Notification No. 97 issued under the Act of 1979 the areas mentioned in the resolution of Mayor-in-Council are included in Schedule VII of the Land Usage and Development Control Plan that require preservation and conservation for historical, architectural, environmental and ecological point of view issued by the State Government under Section 37(2) of the Act of 1979 vide its letter dated 13th June, 1997. Schedule VII of the Land Usage and Development Control Plan reads thus:

SCHEDULE VII

LIST OF AREAS AND/OR BUILDINGS REQUIRING PRESERVATION AND CONSERVATION FOR HISTORICAL, ARCHITECTURAL, ENVIRONMENTAL OR ECOLOGICAL POINT OF VIEW

SI.No. Name and Location

1. Raj Bhavan

2. High Court with South Annex

3. Town Hall.

4. A.G.Bengals 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."

16. It is apparent from bare reading of the aforesaid Schedule VII that the area in question is covered in the Notification issued under the Act of 1979. As the area has been preserved under the Act of 1979, the same is to be created as heritage building as defined in Section 2 (42A) of the Act of 1980. The definition of Heritage Building as enumerated under Section 2(42A) of the Act of 1980 is as follows :

"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 such building, and also includes the areas and buildings requiring preservation and conservation for the purpose as aforesaid under sub-clause (ii) of clause (a) of sub-section (4) of Section 31 of the West Bengal Town and Country (Planning and Development) Act, 1979 (West Ben. Act XIII of 1979).

17. It is apparent that the Outline Development Plan was prepared as per provisions contained in Section 31 of the Act of 1979 by the authority. The provisions contained in Section 31(4) (a) (ii) indicate the area that requires preservation and conservation for historical, architectural, environmental and religious purposes. The aforesaid provisions of Section 31(4)(a)(i) and (ii) is quoted below :

"(4) The Outline Development Plan may also

(a) (i) indicate broadly the manner in which the Planning authority or the Development Authority proposes that land in such area should be used ;

(ii) indicate areas or buildings requiring preservation and conservation for historical architectural, environmental and religious purposes;

18. Once plan is prepared of such an Outline Development Plan is dealt with by the State Government ultimately under Section 37 of the Act of 1979. The State Government has approved the Development plan under provisions of Section 37 of the Act of 1979. Thus notification has statutory force and is enforceable. The area in question is clearly reserved for the purpose as specified under Section 31(4)(a)(ii) of the Act of 1979 and is to be treated as heritage building as defined in Section 2(42A) of the Act of 1980. Apart from that, under the Act of 2001, with respect to putting of hoardings, advertisemenst and to grant licence there is no such power with the Heritage Commission. The Municipal Corporation has the power to deal with advertisements and hoardings under the provisions contained in Sections 202 and 203 of the Act of 1980. There is no overlapping fields in operation. Thus we find that the decision which has been taken by the Mayor- in-Council of Corporation with respect to ban on advertisements and hoardings on recommendation of the Heritage Conservation Committee constituted as per the provisions contained in Section 2(428) read with Section 425D, Heritage Conservation Committee has competence to take such decision. and as required of has to be placed ultimately before the Mayor-in-Council and it was so placed.

19. There is power with the Corporation with respect to the display of hoardings and issue of licence under Sections 202 and 203 of the Act of 1980, which is not disputed. Thus, in the instant case, the decision of the Corporation cannot be termed to be ultra vires or unauthorised at all nor it can be said that Corporation has illegally imposed ban on hoardings/advertisements.

20. The communication dated 24th May, 2006 cannot be read or interpreted in the manner in which it was suggested by the learned senior Counsel for the appellants that the Corporation by this communication itself has taken decision based upon recommendation of the Heritage Conservation Committee to declare it as a heritage area. There is separate notification of Act of 1979, dated 13th June, 1997. The declaration of the area as heritage area has not at all been questioned in the petition. What has been questioned is the power of the Corporation to ban display of hoardings and advertisements in the various areas as decided by the Heritage Conservation Committee, which has been approved by the Mayor- in-Council. Such areas are covered in notification of 13th June, 1997 issued under Act of 1979. Thus in the absence of any prayer in the writ application, the submission made by the learned counsel for the appellants is totally devoid of substance and is liable to be thrown at the threshold.

21. We are not at all impressed by the submission made by the learned Counsel appearing on behalf of the appellants that the list which has been placed on record by the appellants showing gradation of various heritage buildings should be taken into consideration without even considering the prayer made in srit petition. The submission is wholly misconceived one and in the absence of pleadings that the building in question has not been declared as heritage and there is no relief. sought that notification of 13th June, 1997 be quashed. Only the decision of the Corporation with respect to the advertisements and hoardings had been question. Apart from that we have found that on merits it is a heritage building as defined in Section 242(A) and there is Notification of 13th June, 1997 issued by the State Government under Section 37 of the Act of 1979 with respect to area in question. Thus, the submission raised on merits that it could not be treated as the heritage building is devoid of substance. There is no challenge to the Notification issued on 13th June, 1997 by the State Government under Section 37 of the Act of 1979.

22. Apart from that we find that the appellant has no legal right to question impugned decision. In the petition the appellant has averred that no license at any point of time was issued to it; merely permission was given to erect such advertisements and hoardings. That could not have been done without issuing a licence as per provisions contained in Section 203 of the Act. Thus act of the Municipal Corporation was wholly unauthorised and in flagrant violation of the provisions contained in Sections 202 and 203 of the Act of 1980.

23. We find there is no confliction the provisions of the Act of 1980 and the Act of 2001. The heritage building has the same meaning as under the Act of 2001 and as defined in the Kolkata Municipal Corporation Act of 1980 and we find the action of the Corporation step-in aid for implementation and fulfilment of the objectives of the Act of 2001.

24. Resultantly, we find no merits in the appeal and the same is hereby dismissed with cost of Rs. 5,000/- to be paid by the appellants to the Corporation.