Writ Petition filed under Article 226 of the Constitution of India, as a Public Interest Litigation, praying to issue a Writ of Mandamus, directing the respondents to forbear from permitting, authorising or allowing demolition, modification or alteration of the Heritage Structure of the fifth and sixth respondents i.e. P.ORR & Sons Heritage Building situate at New No.22 (Old No.855) Mount Road,Chennai-600002, in a manner violative of Annexure XXV of the Development Control Rules as also the orders of this Court in W.P.No.25306 of 2006, dated 29.4.2010.
ORDER
ELIPE DHARMA RAO, J.
1. The decision of the official respondents to pull down the rear portion of one of the most important happening places in the city 'P.ORR and sons', to pave way for Chennai Metro Rail, is under challenge in this writ petition.
2. According to the petitioner, they are the organisation set up in the year 1984 to protect and conserve India's vast natural and cultural heritage and they are pioneer in the field of heritage conservation in India, striving to spread heritage awareness among the public. According to the petitioner, the decision of the respondents 2 and 3 to permit demolition of part of the fifth respondent's building on Anna Salai is in gross violation of the Development Control Rules and the judgment of a Division Bench of this Court in W.P.No.25306 of 2006.
3. But, the case of the official respondents is that only the rear side of the building is required for the Metro Rail Project, regarding which the land acquisition proceedings were initiated on 27.10.2011 with issuance of a Notification under Section 4(1) of the Land Acquisition Act and declaration under Section 6 was issued on 28.11.2011; the award enquiry was conducted on 14.2.2012 and award was passed on 28.2.2012; that P.ORR and Sons is only a tenant in the building and the original owner of the building M/s.Associate Printers (Madras) Private Limited, a corporate body has participated in the acquisition proceedings and accepted for acquisition. The 6th respondent/the owner of the building has also corroborated the version of the official respondents that already acquisition proceedings were completed and award was also passed, but the award amount is yet to be received by him.
4. It is the specific case of the official respondents that the petitioner is the member of the Heritage Conservation Committee, which has recommended the demolition of the rear portion of the building, being not a heritage building and hence she is estopped from taking a 'U' turn to challenge the minutes of the Heritage Conservation Committee.
5. We heard the learned counsel on either side at length.
6. Madras, Madarasapattinam, Chennai, Chennapattinam- in whatever name you call this beautiful city - boast a number of historical buildings, manifestations of the British Raj's interest in this city, realizing its potential as a capital for the entire South India. The 19th century seems to have hectic constructional and engineering activity in the city and some of the most beautiful buildings date from that era.
7. It is to be pointed out that in a batch of writ petitions filed to stop erecting hoardings screening the heritage buildings, (W.P.No.7143 of 2006 etc.)[Kanagaraj VS. the District Collector, Chennai], the First Bench of this Court, by order dated 10.8.2006, appointed a Committee headed by The Honourable Mr.Justice E.Padmanabhan, a retired Judge of this Court, to survey, identify and enumerate places of historical importance/aesthetic value/popular places of worship in and around the city of Chennai. This Committee also consisted of the following members:
1.Mrs.K.Kalpana, Conservation Architect
2.Mr.S.Muthiah, Historian
3.Mrs.R.Jaya, IAS, the then Collector of Chennai
4.Dr.R.Anandakumar, IAS, the then Deputy Commissioner of Corporation of Chennai and
5. Mr.Sunil Kumar, IPS, the then Additional Commissioner of Police, Chennai.
8. The said Committee, after having ten sittings on various dates and after survey, identification and enumeration undertaken, collection of materials from various sources, has unanimously prepared a comprehensive list of places of historical importance/aesthetic value/popular places of worship in and around the city of Chennai, in two volumes, namely: (i) comprehensive area wise list of places of historical importance/aesthetic value/popular places of worship in and around the city of Chennai and (ii) consisting of appendices (a) List of Parks, (b) List of Stadium and Playgrounds, (c) List of Police Stations, (d) List of Pumping Stations, (e) list of schools (f) list of Churches, Mosques and durghas, temples. In addition to the above appendices, the Committee also unanimously resolved to include all educational institutions in the city of Madras and surrounding areas.
9. This Committee, in toto, identified 467 structures and buildings that were not protected by the Archaeological Survey of India and graded the buildings/places according to their level of importance. The buildings/places falling under Grade-1 are characterised by their excellence in architectural style, design, technology and material usage and/or aesthetics and they may be associated with a great historic event, personality or movement or institution. Similarly, the Committee has graded buildings as Grade-2a and 2b, depending on their importance to the history of the city and submitted its report in the year 2008.
10. In the meantime, when the CMDA and the Corporation have taken a decision to grant permission to the Life Insurance Corporation to demolish Bharat Insurance building on Anna Salai, on the ground that its economic life had come to an end, so that a new building could be put up on the same architectural lines as the existing building and the aesthetics of heritage will not be lost, the same was challenged by the very same petitioner INTACH by filing W.P.No.25306 of 2006, praying to issue a Writ of Mandamus to forbear the respondents from granting permission to demolish the Bharath Insurance Building situated at No.102, Anna Salai, Chennai-2.
11. During pendency of the above writ petition, in Chennai Metropolitan Area, the second Master Plan for Chennai Metropolitan Area was approved and notified in G.O.Ms.No.190 Highways and Urban Development Department, dated 2.9.2008 under the Town and Country Planning Act, 1971, including Special Rules for Conservation of Heritage Buildings. It provides for restriction of developments/re-developments, repairs etc. of the Heritage Buildings/precincts. It also provides for procedure for statutory listing of Heritage Buildings/precincts under the Development Regulations forming part of the Second Master Plan, following the procedure of approval at various stages, notification for public consultation, owner consultation and final approval by Government on its merits and notification in Tamil Nadu Gazette and Newspapers. It also provides for grant of Transfer of Development right in cases of loss of development rights (when the private owners are deprived of such rights), financial assistance to the Heritage Building owners for repair of such Heritage Buildings, grading of Heritage Buildings as Grade-I, II and III for the purpose of conservation and allowing additions/alteration etc. wherever necessary on its merits. It also provides for appointment of Heritage Conservation Committee ('HCC' in short) by the Government as a recommendatory body to advice Member Secretary, CMDA and it also confers powers on the Member Secretary, CMDA to overrule the recommendation of HCC in exceptional cases for reasons to be recorded in writing a mentioned in Development Regulation No.31 and Annexure XXV of Development Rules.
12. Ultimately, the Division Bench of this Court, by the order dated 29.4.2010, has allowed the said writ petition and while issuing directions to save the said building, the following directions were also issued in para No.28 of the order:
"(5) The Heritage conservation Committee shall recommend to the Government to take steps to notify buildings listed by it as heritage buildings and within a period of three months, cause notices to be issued to the concerned, especially the private owners, in respect of the buildings listed in the report filed by the Committee headed by Justice E.Padmanabhan so that there is no threat of demolition or destruction or alteration to such buildings, thereby diminishing their heritage value, without the permission of the Heritage Conservation Committee.
(6) As the next step, the Government may take up the job of listing such of those buildings enumerated under Grade-2a and Grade-2b in the report filed by the Committee headed by Justice E.Padmanabhan, after getting opinion of the Heritage Conservation Committee regarding the desirability of notifying such buildings as Heritage Buildings.
(7) The Heritage Conservation Committee shall also assess and may give directions as to how the buildings mentioned in the report filed by the Committee headed by Justice E.Padmanabhan may be conserved or may even be identified as places of tourist importance, so that both the residents of Chennai, as also other visitors, become aware of the heritage.
(8) Respondents 1 and 2 shall also give immediate directions to protect all such buildings/places in the entire State of Tamil Nadu, wherever they may be, e.g., the 150 years old 'Kudhirai Vandi Court' in Coimbatore, the first ever Court of Coimbatore has become the home of anti-social elements because of disuse and heritage conservationists are anguished by its present condition
(9) We record our deep appreciation of the excellent report prepared by Justice E.Padmanabhan, J. and the members of the said Committee. If the heritage buildings of Chennai are saved from demolition it will be both because of the untiring efforts of the petitioner and the report mentioned above. The petitioner may ensure that the notices referred to above are sent without any delay.
(10) The State Government has also responded by forming the committee without further delay."
13. Subsequent to this order, the HCC was re-constituted by the Government of Tamil Nadu in G.O.Ms.No.85, dated 1.4.2010 wherein the nominee of the petitioner Institute was included as a member. The function of the Committee, as mentioned in the said G.O. is to assist CMDA with its recommendation and advice CMDA in matters relating to conservation of Heritage Buildings/Precincts in Chennai Metropolitan area.
14. Relying on the above observations of the Division Bench of this Court, it has been argued on the part of the petitioner that while granting permission to demolish the impugned structure, the official respondents have completely ignored the directions issued in the said judgment. It is their specific argument that Justice E.Padmanabhan Committee report ranks the entire structure of the P.Orr & Sons building as Grade-I structure and not restricted to any specific part thereof and that in spite of their specific requests several times, Metro Rail and their consultants have not supplied the correct outline of the heritage precinct of 'P.ORR & Sons', which is one of the most magnificent landmarks of Chennai.
15. In the light of what is stated above, it is to be seen as to whether the P.ORR and sons is a heritage building and if so, whether the whole building or any part of it, since it, admittedly contains two wings - front and rear?
16. Before entering into this aspect of the case, it is to be mentioned that as of now, no law has been enacted relating to heritage building, defining what is a 'heritage building'. We have been informed that the Central Government had circulated a draft Act to all States defining Heritage Buildings, but it has not attained finality, for various reasons, which we are not concerned with in this matter. Even though, as stated above, Annexure XXV of the Development Rules, deal with special rules for conservation of heritage buildings, here also, there is no definition for the term 'heritage building'.
17. However, for considering a building to be 'heritage', the accepted principles are the architecture; the historical and cultural connection of the building and the personality attached to the building. Of course, age of the building is also one of the criteria. Throughout, in this matter, arguments have been advanced on the part of the petitioner that the P.Orr and Sons building being more than 100 years old (constructed in the year 1873, that is even prior to the construction of the Madras High Court in the year 1892), is a 'heritage building' and should, therefore, be protected.
18. We are not convinced with this argument for the simple reason that age of the building may be one of the criteria, but cannot be the sole criterion for deciding whether the building is a 'heritage building' or not. In the firm opinion of this Court, even if the building is less than 100 years, depending upon the personality attached to the building or any significant event of the history attached thereto or having the cultural connection, it can be construed and treated as a heritage building.
19. In the case on hand, to understand the whole dispute, first we must note the structure of the 'P.ORR and sons'. Since the structural aspect and other connected details have been clearly discussed in the report of Justice E.Padmanabhan, we fall back on the same, to even decide the counter claims of the parties as to whether the entire structure or any part of the structure is 'heritage' in character. The report reads thus:
"The quaint P.Orr & Sons building, formerly the commercial and industrial outlet of Peter Orr, erstwhile manufacturer of watches and clocks, is located on Mount Road or Anna Salai as it is now called. Designed by Robert Chisholm and built in 1873 as a showroom, it continues to serve the same purpose to this day.
Planned in two floors as a rectangle with projected ends, the main hall of double floor height is entered through a continuous canopy that fronts the road, and serves as the showroom with the service stations and workshops located behind. Developed in 1893, these workshops, which contained a lathe, a turning shop for survey instruments and an electroplating facility, were all run by state-of-the art 'Mansfield patent oil-gas apparatus'. The exterior of the building has undergone considerable change from when it was first built. Once walled in with no openings to the exterior, a projecting canopy-like porch was located at the centre of the facade corresponding to the tower above, bearing strong resemblance to the impressive houses of the Chettiar community from south India.
Now removed, with newer openings facing the road, an additional storey was added to the tower above the clock face, earlier roofed by a truncated, pyramidal sheet roof. Built of brick and plastered with lime, the hall is roofed by a corrugated, galvanized iron sheet roof while the projected ends are covered by Madras Terrace. The interiors of the showroom were once strikingly laid out with embellished walls, ornamental wooden showcases, 'Minton' tiles on the floor, chandeliers and a coat of arms Though some of this grandeur remains in a rather rundown fashion, much of the old charm has been lost, both due to neglect as well as mindless changes. The workshops are now unused and abandoned. The company was purchased after independence by Kurumuth Thiagarajan Chettiyar."
20. From this unassailed report, it is clear that the building was planned in two floors, a rectangle with projected ends. This report conferred heritage status on the building which was constructed in 1872, which is being used as showroom. But, the rear portion of the building, constructed 20 years after the main building, was used as workshops. Not only the report but the photographs filed before us clearly show that the rear portion of the building is abandoned and it is not in the heritage list of buildings.
21. From the voluminous material placed before us we are able to see that originally the Chennai Metro Rail Limited has proposed to have their structure in front of adjacent Simpson building. But, when HCC required them to shift the same elsewhere, the CMRL, by their letter dated 3.8.2011, has made a specific request to CMDA to clarify whether the building to the rear of ' P.ORR and Sons' and abutting Athipattan street is a heritage building or not. Then, the matter was referred to HCC and the CMDA, by their communication dated 26.8.2011, after conducting site inspection, has clarified that 'as per Justice E.Padmanabhan Committee Report, only the P.ORR & Sons building abutting Anna Salai constructed in 1872 has been listed as Grade-I Heritage Building under building No.C9/1/2 in page 347 of the report. The building referred to by the CMRL abutting Athipattan street in the rear of the P.ORR & Sons is not a heritage building found listed therein.'
22. From page No.8 of the typed set of papers filed on behalf of the respondents, it is seen that Ms.Sujatha Shankar (nominee of petitioner in sub-committee representing the petitioner), called the architectural consultant of CMRL's contractor and conveyed her additional comments and with respect to P.Orr & Sons, she requested to improve the facade adjacent to the heritage building on 3.2.2012 and on 13.2.2012, a meeting took place among CMRL, their consultants and Ms.Sujatha Shankar and all her comments were discussed and incorporated. Page No.23 of the typed set of papers filed on behalf of the respondents, contains the minutes of the 8th meeting of the HCC, to which also Tmt.Sujatha Shankar, nominated by the petitioner is a party, being a member of the Committee. With regard to Agenda Item No.2 subject:
"CMDA- HCC Chennai Metro Rail Development in the alignment in the vicinity of heritage building or within the heritage premises Reg."
a resolution in C.R.No.28/2012 has been passed and the resolution with regard to Anna Salai alignment is re-produced herein for ready reference:
"The Committee noted that the heritage buildings/premises viz., P.ORR & Sons, Bharat Insurance Buildings, Higginbothams, Poompuhar, Amalgamation, State Bank of India Building etc. fall in the proximity of the Anna Salai alignment of Metro Rail. After detailed discussion by the sub-group earlier and by the full committee in this meeting, recommended for approval of the structures as proposed, subject to the minor modification in the elements above the arch proposed for the vent structures at the SBI premises, and subject to the condition that no proposed structure shall fall within the premises of Bharat Insurance Heritage building premises, and the proposed construction shall no way affect structurally or weaken the existing heritage buildings around including the Bharat Insurance Building which is already in a weaker condition and relating to this heritage building a Writ Appeal is pending before the Hon'ble Supreme Court."
23. Thus, the committee, wherein the nominee of the petitioner is also a member has taken a decision, approving the proposal of CMRL. While that being so, the petitioner, who seems to have lost her arguments in the committee and fell a minority to the decision of the HCC, has come forward to file this writ petition, in a way challenging the decision of the Committee. No doubt, when a committee passes a resolution, on a majority view, it binds every one of the Committee like any other individual/institute. While that being the case, the legal question now arises for consideration is whether it is open for any of such member of the Committee to challenge the Resolution of the Committee, to which he is a party?
24. A similar question arose before the Constitution Bench of the Honourable Apex Court, when a member of the Cooperative Society challenged its resolution. While answering the situation, in DAMAN SINGH AND OTHERS vs. STATE OF PUNJAB AND OTHERS [AIR 1985 SC 973], the Constitution Bench of the Honourable Apex Court has held as follows:
"Once a person becomes a member of a co-operative society, he loses his individuality qua the society and he has no independent rights except those given to him by the statute and the bye-laws. He must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body."
25. In STATE OF U.P. AND ANOTHER vs. C.O.D. CHHEOKI EMPLOYEES' COOPERATIVE SOCIETY LTD. AND OTHERS [(1997) 3 SCC 681], also the Supreme Court considered the position of the members of the society qua the co-operative society in the following lines:
"A member of the society has no independent right qua the society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source."
26. The above judgments of the Honourable Apex Court squarely apply to the facts of the case on hand. Being a member of a Committee, which has permitted the CMRL to go on with their proposal, the petitioner cannot take 'U' turn and challenge the very same resolution, on the ground that her views fallen minority. Had it been the intention of not supporting the majority view, the petitioner should have resigned from the Membership and then challenged the resolution. For these reasons, we cannot appreciate the stand taken on the part of the petitioner. Even though the petitioner has argued that the required material has not been placed before the Committee for its useful and valuable consideration, it is pooh-poohed by the learned Advocate General by producing the list of materials placed before the Committee.
27. The original owner of the building having submitted himself for acquisition of the building, by participating in the acquisition proceedings, leading to passage of award, is due to receive the compensation. When it is the specific case of the official respondents from day number one that they are not going to demolish the 'P.ORR & Sons', an enlisted Grade-I Heritage Building, but only an abandoned rear portion of it, which has been neglected by the original owner himself and has not at all been in the list of either heritage buildings or important monuments, the petitioner cannot be said to have justified in entering into the shoes of the tenant 'P.Orr & Sons', under the guise of public interest litigation, that too after being a party to the Committee, which has passed a resolution giving green signal to CMRL. It is nothing but a corporal teasing, with an intention to hit top headlines of media as if they are the only crusaders of protecting the buildings.
28. It has also been established before us by the learned Advocate General that in due compliance of the order of the Division Bench of this Court in W.P.No.25306 of 2006, dated 29.4.2010, extracted supra, notices had already been issued to the owners/occupants of the heritage buildings. Therefore, we are unable to say that the official respondents failed to comply with the above said judgment and committed breach of any Development Rules.
29. It is to be pointed out that when, after hearing all the parties, we reserved orders in this matter on 20.3.2012, a mention was made before us on 27.3.2012 by the learned senior counsel for the petitioner that cleared out pavements revealed the foundation stone at the P.Orr premises on Anna Salai and therefore, matter need to be heard again. Accordingly, we permitted the counsel to advance arguments on the subsequent developments.
30. During the course of further hearing, it has been brought to our notice that a plaque was unearthed on the evening of 21.3.2012, which is a foundation stone for the rear portion of the building. The photographs of the plaque produced before us show that foundation for the rear portion of the building was laid on 6.7.1893, i.e. exactly 20 years after the construction of the front portion in the year 1873. This is precisely what is being argued on the part of the respondents all these days. Even Justice Padmanabhan's Committee has specifically observed that while the front portion of the building was built in 1873, the rear portion was developed in 1893. Clinging on the fact that this plaque depicts that the rear portion is also 100 years old, the learned senior counsel for the petitioner would argue that the building is a heritage one having historical and cultural connections and therefore, should not be pulled down.
31. As has already been observed supra, the age of the building may be one of the criteria but not the sole criterion, to decide whether a particular building is a heritage one or not. No historical or important event attached to this rear portion of the building has been brought to our notice by the learned counsel for the petitioner, except repeatedly arguing that this rear portion was also designed by Robert Chisholm, who developed the front portion. In the absence of any material to say that this rear portion of the building is also a heritage building and further since Justice Padmanabhan's Committee, after conducting thorough work in the field, did not recognise the rear portion of the building as a 'heritage building' or for that matter even as an important building and further admittedly, the rear portion of the building, once used as a workshop, was abandoned long back, the unearthing of the plaque would not turn the favourable water towards the petitioner. It is also to be pointed out that though it is 100 years old, only commercial activity was going on to gain profit with no great personality or historical or cultural activity attached to it. Therefore, at no stretch of imagination can we find fault with the decision of the official respondents, to pull down this part of the building to pave way for CMRL.
32. Further more, when a specific question was put to the learned senior counsel for the petitioner by us that whether there is no public interest involved in the ongoing CMRL project, which, in the particular area, came to a standstill because of the present litigation, he said that there cannot be any doubt that a public interest is involved in the project. But, however, he reiterated that developmental activities need not be at the cost of the heritage structures.
33. There cannot be any doubt that the heritage buildings are the connections with the history of a city in particular and the country at large and they need to be protected.But, whether, for that matter, all the old buildings are required to be maintained and protected, in whatever condition they may be ignoring the fact of their non-contribution, in any way, to the culture and heritage of the country? Our answer for such a question would be an emphatic 'NO' since, if we follow the said method, we will be moving only backwards instead of the destined march forward.
34. When the building has been inspected by a high level committee (Justice Padmanabhan's Committee), with experts in the field, as its members and has specifically noted that the rear portion of the building is not a heritage building, we cannot sit as a super expert over and above such expert opinion. For this, we draw support from a Three Judge Bench judgment of the Honourable Apex Court in SECRETARY AND CURATOR, VICTORIA MEMORIAL HALL vs. HOWRAH GANATANTRIK NAGRIK SAMITY ANDOTHERS [(2010) 3 SCC 732], wherein when the High Court rejected the expert committee recommendation in respect of administration, maintenance, refubishment, alteration etc. of Victoria Memorial Hall, Calcutta, the Honourable Apex Court has held that 'it is normally wise and safe for courts to leave decision to experts who are more familiar with the problem they face than the courts generally can be.'
35. This Court really pained to observe that when the matter is subjudice, some section of printing media, went on publishing articles, views of their readers about the fate of the building post-litigation etc., without even understanding the concept of 'heritage building'. This is nothing but an act tantamount to interfering into the justice delivery system. When an issue is subjudice, utmost restraint is expected not only from the parties concerned in particular but also from any other member of the society in general, from expressing their own versions and opinions. However, since the issue of suggesting guidelines for the media on court reporting with a view to ensuring that day-to-day proceedings are not distorted is pending before a Five Judge Constitution Bench of the Honourable Apex Court, we restrain ourselves from passing any further comments on the issue.
36. All our above discussions, would lead us to the following conclusions:
1.Only the front portion of the 'P.ORR & Sons' building is a Grade-I Heritage building.
2.The rear portion of the 'P.ORR & sons' is not a heritage building.
3.The age of the building may be one of the criteria for deciding whether a particular building is a heritage one or not, but not the sole criterion.
4.The original owner of the building himself has submitted to the acquisition proceedings, leading to passage of award.
5.The writ petitioner, being a member of the Heritage Conservation Committee cannot challenge the resolution passed by the very same Committee.
6.If at all the petitioner is unhappy about the resolution, they should have resigned from the membership of the Committee and should have challenged the resolution of the Committee.
7.This writ petition filed by the writ petitioner entering into the shoes of the tenant is nothing but a corporal teasing, to obstruct the ongoing CMRL project, for which this writ petition is liable to be dismissed with costs, further recommending to the Government to remove the petitioner from the membership of the Committee and fill up the vacancy with a more suitable candidate with proven standards in the field.
In the result, this Writ Petition fails and the same is dismissed with a cost of Rs.5 lakhs (Rupees Five Lakhs) to be paid by the petitioner to the Tamil Nadu State Legal Services Authority, High Court campus, Chennai, within four weeks from today. In default, the Member Secretary, Tamil Nadu State Legal Services Authority is directed to take all necessary legal steps to recover the said amount.
Since the petitioner, being a member of the Heritage Conservation Committee, which has permitted the CMRL to go on with the project, has taken a 'U' turn to illegally challenge the resolution, by entering into the shoes of the tenant of the building (when the original owner himself has no objection for the acquisition proceedings and submitted himself to the acquisition proceedings), thus indulging in corporal teasing and professional misconduct, betraying the trust and unnecessarily stalling a public project like CMRL by filing this vexatious litigation, we direct the Government of Tamil Nadu/the first respondent herein to remove the petitioner from the said Committee and from any such other committees, within a period of two weeks and fill up such vacancy/vacancies with more suitable candidates with proven standards in the field.
Connection Miscellaneous Petition is also dismissed.