Debangsu Basak, J. - (1.) The respondent nos.8 to 10 has made the present application seeking that portions of the order dated May 18, 2017 be suitably modified by deleting findings/recording therein as enumerated in prayer (a) of the application. Essentially, the respondent nos.8 to 10 seek that the recording in the order that the demised premises no.1/1, Park Street, Kolkata 700 016 is a heritage building and the consequential statement of the learned Senior Advocate for the respondent nos.8 and 9 submitting that the respondent nos.8 and 9 would restore the portion under the occupation of respondent nos.8 to 10 in its former state and the direction given to the Heritage Conservation Committee of the Kolkata Municipal Corporation to make an inquiry and suggest the measures to be taken for restoration be recalled.
(2.) The learned Senior Advocate appearing for the petitioner submits that, the writ petitioner had asserted that the Asiatic Society building was a heritage building. It is on the basis of such assertion that, the respondent nos.8 to 10 had volunteered and made the submissions as recorded in the order. The affidavits filed in the main writ petition thereafter disclose that Asiatic Society building was never declared as a heritage building. He refers to an application for information under the Right to Information Act, 2005 made by the petitioner on June 28, 2017 with regard to the heritage status of the building as also the information received pursuant thereto. He submits that, the premises no.1/1, Park Street is shown to be a grade-1 heritage building in terms of a writing of the Kolkata Municipal Corporation (KMC). He draws the attention of the Court to the fact that, KMC authorities had purported to declare the Asiatic Society building as a heritage building in terms a list of heritage buildings as on February 25, 2009. He submits that, such list was considered by the Division Bench in [Kamal Dey vs. Director General, Archaeological Survey of India, New Delhi, 2016 1 CalHN 329]. He submits that, the Division Bench found that the declaration of list of heritage buildings made on February 25, 2009 was not in accordance with the provisions of Section 425B of the Kolkata Municipal Corporation Act, 1980 and, therefore, the subject building which is included in the list of February 25, 2009 cannot also be considered as a heritage building. Independent of Kamal Dey , he submits that, the High Court in an unreported decision rendered in WP No.53 of 2014 [Ansar Ahmed & Ors. Vs. The Kolkata Municipal Corporation & Ors.] dated July 11, 2016 has also held that, the KMC has not published a list of heritage buildings in accordance with law. Since the parties proceeded on an erroneous assumption of fact on May 18, 2017 and such errors are demonstrably to be so, the recording in such order be corrected in the manner as prayed for in prayer (a) of the application. According to him, a landlord-tenant dispute between the writ petitioner and the respondent nos.8 to 10 have been converted into a writ petition. Asiatic Society building was never declared as a heritage building. Therefore, the question of the respondent nos.8 to 10 agreeing to restore the position of such heritage building to its former state and the authorities acting in terms of a declaration of a building to be heritage does not arise.
(3.) The application is being opposed by the writ petitioner, the State as also the KMC authorities.;