- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29..04..2010 C O R A M The Honourable Mrs. Justice Prabha Sridevan and The Honourable Mr. Justice P.P.S. Janarthana Raja Writ Petition No.25306 of 2006 The Indian National Trust for Architectural and Cultural Heritage (INTACH), No.1, Second Street, Wallace Garden, Chennai. .. Petitioner versus 1. The Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maligai, No.8, Gandhi Irwin Road, Egmore, Chennai-8. 2. The Corporation of Chennai, Rep. by its Commissioner, Ripon Buildings, Chennai-3. 3. Life Insurance Corporation of India, Southern Zonal Office, LIC Building, 102, Anna Salai, Chennai-2. .. Respondents - - - - - Prayer : Writ Petition filed under Article 226 of the Constitution of India seeking a mandamus to forbear the respondents from granting permission to demolish the Bharath Insurance Building situated at No.102, Anna Salai, Chennai-2 without applying the provisions of Rule 22 of the Development Control Rules and directions of the Supreme Court of India in Rajeev Mankotia vs. Secretary to President, Writ Petition C.C. No.862 of 1990 passed on 27.3.1997. - - - - - For Petitioner : Mr. N.L. Rajah For Respondent-1 : Mr. I. Paranthaman For Respondent-2 : Mr. V. Bharathidasan For Respondent-3 :Mr. A.L. Somayaji, Senior Counsel for V. Parthiban - - - - - https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T ( Delivered by Prabha Sridevan, J. ) This writ petition has been filed in public interest by the Indian National Trust for Architectural and Cultural Heritage (INTACH), a nation wide non-profit membership organisation set up in the year 1984 to protect and conserve India's vast natural and cultural heritage. The present public interest litigation is for protection of the Bharath Insurance Building from being demolished without applying the provisions of Rule 22 of the Development Control Rules for Chennai Metropolitan Area, 2004. 2. The Bharath Building, which is presently owned and rented out by the Life Insurance Corporation, is a landmark building recognised as a symbol of heritage conservation's losing battle in the city and State. The history of the building may have to be set out at this juncture. The Bharat Building's story goes back to 1868 when W.E. Smith, a pharmacist, arrived in Madras and, finding enough pharmacies and more in business in the city, proceeded to Ooty where he set up shop. The success of the Ooty pharmacy and other branches in the Blue Mountains made Smith decide not only to look at Madras again, but also set up a shop the city would not forget. On the site that became Bharat Insurance's, he set up facilities that enabled W.E. Smith's to describe itself as "wholesale and manufacturing druggists... opticians, dealers in surgical instruments... and makers of aerated waters." When business grew, Smith's wanted not only more built-space but also a building in keeping with the image it had gained, as South India's leading pharmacists. And so work began in 1894, on a building that was to be inaugurated in 1897 as Kardyl Building, headquarters of the firm that now described itself as "W.E. Smith & Co Ltd.". A triangular building with its peak flattened, Kardyl Building was designed by J.H. Stephens of the Madras P.W.D. and he let his vision of Indo-Saracenic architecture run riot in it. Domes, spires, 100-foot minarets, arches and verandahs blended the Mughal with the Ottoman, the Hindu and the European Classical in a fantasy that at its inauguration was described as "a palatial structure... ten times the size of what was occupied originally... one of the sights of the city... a far greater show than any other building on Mount Road." Within, its main feature was a magnificent 60-foot by 40 showroom. It also provided rooms for doctors and dentists on its first floor facing Mount Road, and for its European assistants facing General Patter's Road. It even ran a café and a beer bar! And in its rear compound was its aerated water factory. When competition – especially from its great rival across the street, Spencer's (more about anon) – increased, Smith's sold its business, building and all, to Spencer's https://hcservices.ecourts.gov.in/hcservices/ in 1925. Whereupon that growing giant incorporated Smith's pharma business into its own and rented out all the space, including the showroom. In 1934, Spencer's finally found a buyer for the building, Bharat Insurance that had been established in Lahore in 1896 by Lala Harikishenlal. Bharat was taken over by the Dalmia's in 1936 and when life insurance was nationalised in 1956, the numerous buildings the various life insurance companies owned in the country - including the Bharat Building - were taken over by LIC, which became one of the biggest property owners in the country. But before that happened, in the triangular garden in front of the old building was raised incongruously, in the art-deco styling of the time, a new, near contiguous block to the design of Prynne, Abbott and Davis, the leading Madras architects of the day. This was called the Bharat Insurance Building; the old Kardyl Building had never really changed its name but had begun to be referred to as the Bharat Building. –– vide "The Towers of Assurance", The Hindu dated 6.8.2003. 3. One of the finest examples of Indo-Saracenic architecture in the country, the Bharath Insurance building has been listed as a Grade-A Heritage Building as per INTACH listings based on a nation- wide listing standard detailed in the draft heritage regulations formulated by the Ministry of Environment and Forests, Government of India, in June, 1995. The building is presently owned and leased out to tenants by Life Insurance Corporation, the third respondent herein. In the year 1998, the third respondent initiated a process of eviction of tenants in this building on the grounds that the building was unsafe for occupation due to its dilapidated condition. A notice warning the tenants therein of the risk of injury/damage to the property was posted in prominent parts of the building. When the petitioner learnt that a plan to demolish the building was under consideration, the Convenor of the petitioner-Trust approached the Chairman of the third respondent; the Director of Town and Country Planning, Chennai; the Chief Planner, Chennai Metropolitan Development Authority (CMDA), Chennai, expressing their apprehension regarding the destruction of what the petitioner describes as a building having beauty, grandeur and uniqueness. The Government of Tamil Nadu had issued a Government Order in the year 1999 requiring the CMDA, the first and the second respondents, to persuade owners of heritage buildings against demolition thereof and not to issue demolition permits. There was a meeting, but the third respondent expressed dissatisfaction over the rental returns, and since the returns were barely sufficient to meet the costs towards maintenance, the respondent was not interested in retaining the building. According to the petitioner, the third respondent had actually restored all the heritage buildings in its possession in other cities and it is only with regard to this building that the step to demolish it has been taken. It is in these circumstances that the present writ petition has been filed. https://hcservices.ecourts.gov.in/hcservices/ 4. On the directions of this Court, a Committee of Experts had inspected the building and filed a report on the feasibility of renovation and restoration of the said building. The Committee appointed by the High Court consisted of a Chief Engineer (Retd.), a civil engineer nominated by the Dean, I.I.T., Chennai and the Superintendent, Archaeological Survey of India. They suggested several measures for restoration of the building. Against the interim orders calling for a report, the third respondent went before the Supreme Court. On 2.11.2007, the Supreme Court dismissed the Special Leave Petition with the following observations : "Having heard the learned counsel for the parties, we are of the opinion that as the Committee has submitted its report, in the fitness of things, the question as to whether the building in question should be demolished or not should be determined by the High Court at the earliest. Learned counsel appearing on behalf of the Corporation states that no list is maintained by the Corporation in respect of the heritage buildings. We would, therefore, request the High Court to consider the desirability of disposing of the entire matter as expeditiously as possible and preferably within a period of four weeks from date. All the contentions of the parties shall remain open." The Life Insurance Corporation had engaged experts and their reports are dated 12.1.2007, 9.1.2008 and 11.1.2008. According to their reports, the economic life of the building had come to an end and therefore, it may be demolished and a new building could be put up on the same architectural lines as the existing building so that the aesthetics of heritage will not be lost. When the matter came up on 21.10.2009, we granted liberty to the petitioner to engage the expertise of anyone who is a heritage engineer or architect to explore the possibility of restoration of the building wholly or in part. A report has been filed on 27.10.209. The opinion of the experts is that it is possible for the third respondent to use the structure for customer service, conference and meeting halls etc. 5. On 19.12.2009, this Court directed the Government to form a Heritage Conservation Committee within three months, if possible, since such a committee has been formed at least in the State of Maharashtra, whose opinion is sought for, when the question of demolition of heritage buildings is in issue. 6. On 1.4.2010, by G.O. Ms. No.85, Housing and Urban Development (U.D.I) Department dated 1.4.2010, the Government, accepting the proposal of the Member Secretary, CMDA, appointed the Heritage Conservation Committee with the composition of the following members under Special Rule 2(i) of the Special Rules for https://hcservices.ecourts.gov.in/hcservices/ Conservation of Heritage Buildings contained in Annexure-XXV under Regulation No.31 of the Development Regulation of Second Master Plan for Chennai Metropolitan Area, 2026 : Chief Planner, Chennai Metropolitan Development Authority Chairman Superintending Archaeologist, Archaeological Survey of India Member Archaeologist nominated by the Tamil Nadu State Archaeology Department Member Superintending Engineer (Building) nominated by the Chief Engineer (Building), Public Works Department Member Senior Architect, Public Works Department Member A Heritage Building/Precincts Conservation Expert nominated by the INTACH, Chennai Chapter Member Chairman of the UBTACH, Chennai Chapter Member Professor of History nominated by the Head of History Department, University of Madras Member Environment Expert nominated by the Director of the Centre for Environmental Studies, Anna University Member Thiru. Alandur R.S. Bharathi, Former Member, Chennai Metropolitan Development Authority, representing general public or NGO Member Professor of Architecture nominated by the Director, School of Architecture & Planning, Anna University Member Senior Planner (DDP), Chennai Metropolitan Development Authority Member/ Convenor 7. Mr. N.L. Rajah, learned counsel appearing for the petitioner submitted that in (1997) 10 S.C.C. 441 [Rajeev Mankotia vs. Secretary to the President of India], the Supreme Court had referred to the preservation of heritage buildings as a manifestation of our cultural heritage and the protection of monuments of State importance by the State Governments as well. The learned counsel submitted that in that case, the Supreme Court had taken note of the Ancient Monuments Act and Archaeological Sites and Remains Act, 1958. The definition of 'ancient monument' under Section 2(a) of the said Act will well apply to the present building and it would be a heritage building. He submitted that by destruction and demolition of heritage buildings, the future generation is losing its link with the past. He also referred to (1992) 3 S.C.C. 637 [Life Insurance Corporation of India vs. Prof. Manubhai D. Shah], where the Supreme Court held that the Life Insurance Corporation is a State for the purpose of Article 12 of the Constitution of India. Learned counsel submitted that, therefore, the third respondent is https://hcservices.ecourts.gov.in/hcservices/ bound to act reasonably without arbitrariness. He further submitted that when the third respondent had taken part in the meeting with CMDA and the Heritage characteristic of the building had been acknowledged, it is not now open to the third respondent to resile from the position and insist on demolition. He submitted that the respondents may rely on 2003 (4) C.T.C. 513 [Indian National Trust for Art and Cultural Hetirage (INTAVH) vs. Chennai Metropolitan Development Authority], but on facts, there are several distinguishing features and that cannot be relied on for demolishing this building. He also referred to the Convention concerning the Protection of the World Cultural and National Heritage of the United Nations Educational, Scientific and Cultural Organisation (UNESCO). He referred to a news item where the Union Minister had promised that the Bharath Insurance Building will not be pulled down. Learned counsel referred to Rule 22 of the Development Control Rules for Chennai Metropolitan Area, 2004 which provided that if a building or premises is not covered under the Archaeological Monuments Act, but still, in the opinion of the Authority, is of historical or archaeological interest and is in danger of demolition or alteration likely to affect its character by a development, the Authority may impose such conditions as are necessary for preservation of the said building. 8. Mr. A.L. Somayaji, learned senior counsel appearing on behalf of the third respondent submitted that the Life Insurance Corporation is bound by Section 6 of the Life Insurance Corporation Act, 1956 to carry on its business in a manner that renders the business profitable. The funds are public funds. The Corporation is accountable to the public. According to the learned senior counsel, the building in question is sadly dilapidated and is in a state of imminent danger of falling down. Learned senior counsel also submitted that there is no historical value attached to the building. It has always been used for commercial purposes. Learned senior counsel submitted that the Rajiv Mankotia's case cited supra cannot be applied to the present case. That was the Viceregal Lodge where several historic events had taken place and that is not so in the instant building. Learned senior counsel referred in detail to the various reports by the experts who had been engaged by them who have all testified to the fact that the building had become obsolescent economically and that there would be no prudence in retaining the building. The learned senior counsel submitted that the experts who had given their report to save the building had not actually examined the building and they were not civil engineers; they were only architects. Whereas, these three experts who had been engaged by the third respondent, viz., C.H. Gopinatha Rao, Former National President, Institution of Valuers; Prof. A.R. Santhakumar, Emeritus Professor & Dean of Civil Engineering; and Ln. A. Sivasankaran, Former Chairman, Institution of Engineers are all highly competent persons of professional excellence and they have https://hcservices.ecourts.gov.in/hcservices/ all recommended demolition after inspection of the building after going into the details with regard to each and every aspect of the building, including the beams, the joists, the brick walls etc. The learned senior counsel submitted, therefore, their report definitely deserves more weight than the report filed by the petitioner. Learned senior counsel submitted that demolition permission had been obtained as early as on 4.11.2004, but they have been prevented from demolishing the building for nearly six years thereafter. He produced the Concept Draft of the proposed building, which according to him, will be grant, economically viable and along the same lines as the existing building and therefore, will satisfy both the economic objectives as well as the aesthetic objectives. Learned senior counsel submitted that the decision of this Court in 2003 (4) C.T.C. 513 (supra) is a case where the same petitioner had filed the writ petition and sought for restraint of demolition of the building known as Madras Club House. The same points were raised there too, viz. that it is a heritage building and cannot be demolished. The Division Bench went into the issue and held that the owner of a building cannot be restrained from exercising her rights over her property and it would amount to deprivation of her rights under Article 300A of the Constitution of India. It was also submitted that when there is no law relating to heritage buildings, the Court cannot be used to direct statutory authorities to do something which has no sanction of law and therefore, no mandamus can be issued as sought for in the present case. 9. We have seen the photographs, the various reports in this regard and also the provisions of law. 10. The Tamil Nadu Ancient and Historical Monuments and Archaeological Sites and Remains Act (25 of 1966) was enacted to provide for the preservation of ancient and historical monuments and archaeological sites and remains other than those of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects. Section 2 of the said Act reads thus :- "S. 2. Definitions.–– In this Act, unless the context otherwise requires, –– (a) 'Ancient monument' means any structure, erection or monument or any tumulus or place of interment, or any cave, rock-sculpture; inscription or monolith, which is of Historical archaeological, or artistic interest and which has been in existence for not less than one hundred years and includes - (i) the remains of an ancient monument, (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of https://hcservices.ecourts.gov.in/hcservices/ an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, (iv) the gardens, if any, appurtenant to an ancient monument, and (v) the means of access to, and convenient inspection of an ancient monument; but does not include any ancient or Historical monument declared by or under law made by Parliament to be of national importance; (b) 'antiquity' includes–– (i) any coin, sculpture, manuscript, epigraph, or other work of art or craftsmanship, (ii) any article, object or thing detached from a building or cave, (iii) any article, object or thing illustrative of science, art, crafts, literature religion, customs, morals or politics in bygone ages, (iv) any article, object or things of Historical interest, and (v) any article, object or things declared by the Government, by notification to be an antiquity for the purposes of this Act, which has been in existence for not less than one hundred years; (c) 'archaeological officer' means any officer appointed by the Government, by notification; to be an archaeological officer for the purpose of this Act for such area as may be specified in the notification; (d) 'archaeological site and remains' means any area which contains or is reasonably believed to contain ruins or relics of Historical or archaeological importance which have been in existence for not less than one hundred years, and include - (i) such portion of land adjoining the area as may be required for fencing or covering in or otherwise preserving it, and (ii) the means of access to, and convenience inspection of, the area; but does not include any archaeological site or remains declared by or under law made by Parliament to be of national importance; (e) 'Director' means the Director of Archaeology and includes any officer authorised by the Government, by notification, to exercise the powers conferred on, and discharge the duties imposed upon, the Director under this Act; (f) 'Government' means the State Government; (g) 'maintain' with its, grammatical variations and cognate expressions includes the fencing covering in, repairing, restoring and cleaning of a protected monument, https://hcservices.ecourts.gov.in/hcservices/ and the doing of any act which may be necessary for the purpose of preserving a protected monument or of securing convenient access thereto; (h) 'Owner' includes - (i) a joint owner invested with powers of management on behalf of himself and other joint owners and the successor-in-office of any such owner, and (ii) any manager or trustee exercising power of management and the successor-in-office of any such manager or trustee; (i) 'protected area' means any archaeological site and remains which is declared to be a protected area under this Act; (j) 'protected monument' means any ancient monument which is declared to be a protected monument under this Act." According to the learned counsel for the petitioner, this Act defines "ancient monument" quite widely and therefore, nothing could prevent this Court from invoking the provisions of that Act to protect this building. According to the learned senior counsel, that would really relate to archaeological excavations and preservations of ancient and historical monuments, this building is neither. The description of ancient monument includes "any structure which has been in existence for not less than 100 years". There should be "historical, archaeological or artistic interest". It is an inclusive definition as seen from the above. According to the learned senior counsel appearing for the third respondent, the building has no archaeological value nor historical value since no historical event took place and there is no historical connection to the building. But we are not quite sure if we can rule out the possibility of including it as a structure of artistic interest. 11. In the city of Chennai especially, many of the historic buildings belong to the genre of Indo-Saracenic Architecture, including our High Court and therefore, perhaps a hundred years ago, the city skyline was dotted with impressive grand buildings that have the same character, namely the Indo-Saracenic character. There is no dispute that the building in question is more than a hundred years old. The Madras University, the National Gallery, the General Museum, the Senate House, the Chennai Central and the Egmore Railway Stations and some Government Offices like the Public Works Department and Ezhilagam housed in historic buildings, are examples of other buildings. They are characterised by the Hindu and Mughal elements of Gothic Arches, Domes and Minarets. These buildings were developed by the British architects like Chisholm. 12. The Indo-Saracenic architecture is described as a https://hcservices.ecourts.gov.in/hcservices/ combination of the features of Hindu, Islamic and Western elements. This itself is in a sense a record of our history. Nothing more is required to show its heritage value; because it records our rich past. 13. The reports filed by the third respondent declare in one voice that it would be uneconomical to restore the Bharath Insurance Building and retain the same and that in the present stage, it is completely unhygenic and not fit for entry (vide report of Mr. C.H. Gopinatha Rao). According to the report filed by Prof. A.R. Santhakumar, the building is completely dilapidated; the brick work has lost its bearing capacity and the masonry is crumbling and therefore, the building should be scientifically and immediately demolished. He has taken samples and according to him, wooden samples show manifestation of termites; the mortar samples show that there is no calcium content; and the brick samples show that the adhesion between mortar and brick is nearly zero. In the report filed by Mr. A. Sivasankaran, it is stated that due to the efflux of time, the weathering action and the efflorescence of saline action, the extended cantilever portion of the building has fallen down and there are large wide vegetation growth across the building and construction of a new building would facilitate earning rental revenue. 14. At the same time, even in Mr. C.H. Gopinatha Rao's report, we find that he has observed, "the only merit for considering this building as a heritage building is the aesthetic design of the elements". So, even according to the report filed by the expert chosen by the Life Insurance Corporation, the building has heritage value. 15. From the typed set of papers, we see that the third respondent had issued letters to tenants asking them to vacate since they had already obtained permission for demolition of the building. On 27.8.1999, the Superintending Engineer, Planning and Designs Circle, Public Works Department had addressed a letter to the third respondent after inspection of the building. He had given even on that date, the details of the repairs to be immediately undertaken to safeguard the building from further deterioration. The suggestions are :- "1. The lime mortar used in the masonry walls is