M/S Aarsuday Projects vs Jogen Chowdhury

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 2920 OF 2018

M/S AARSUDAY PROJECTS & INFRASTRUCTURE (P) LTD .….APPELLANT(S)

VERSUS

JOGEN CHOWDHURY & ORS. ….RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). 2921 OF 2018

CIVIL APPEAL NO(S). 2922-2923 OF 2018

JUDGMENT

Mehta, J.

Table of Contents

I. SUBJECT MATTER AND SCOPE OF THE PRESENT APPEALS........................................................................ 2

II. BACKGROUND AND EVOLUTION OF THE Signature Not Verified CONTROVERSY: - ........................................................... 9 Digitally signed by RASHI GUPTA Date: 2026.01.29 17:48:15 IST Reason: 1 III. FACTUAL MATRIX OF THE PRESENT CASE: -...... 22

IV. SUBMISSIONS ON BEHALF OF AARSUDAY PROJECTS: - ................................................................ 30

V. SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 1- 7 (WRIT PETITIONERS BEFORE THE HIGH COURT): - .. 37

VI. SUBMISSIONS ON BEHALF OF THE SSDA:- .......... 40

VII. SUBMISSIONS ON BEHALF OF VISVA-BHARATI UNIVERSITY: - ............................................................. 43

VIII. ANALYSIS AND DISCUSSION: - ............................ 44

A. ADMITTED FACTS EMERGING FROM THE RECORD .............. 45 B. FINDINGS RECORDED BY THE HIGH COURT ...................... 47 C. REGULATORY APPROVALS, PERMISSIONS, AND FACTUAL CHRONOLOGY RELATING TO THE DISPUTED CONSTRUCTION ...... 55 D. ASSESSMENT OF THE HIGH COURT’S APPROACH ON THE NATURE OF THE LAND AND REGULATORY PERMISSIONS ............ 70 E. BONA FIDES OF THE WRIT PETITIONERS (RESPONDENT NOS. 1-

7) AND BURDEN OF PROOF IN PUBLIC INTEREST LITIGATION ...... 83

IX. CONCLUSION ...................................................... 91

1. Heard.

I. SUBJECT MATTER AND SCOPE OF THE PRESENT APPEALS

2

C.A. NO(S). 2920/2018 & connected matters

2. The instant appeals with special leave are

directed against the judgment and order dated 21st &

22nd August, 2013 passed by the Division Bench of

the High Court at Calcutta1 in Writ Petition No.

8341(W) of 2012, whereby the said writ petition in the

nature of public interest litigation preferred by

respondent Nos. 1-72 came to be accepted and the

High Court directed the demolition of the building

constructed by the appellant-M/s. Aarsuday Projects

& Infrastructure (P) Ltd.3 on the subject plot4 and also

directed Aarsuday Projects to pay compensation to

the tune of Rs.10,00,000/-, which was to be used for

the purpose of restoration and preservation of the

area in question. The High Court also saddled

1 Hereinafter, being referred to as the “High Court”. 2 Before the High Court, there were 8 writ petitioners, and all were made

party-respondents in Civil Appeal No. 2920 of 2018. However, the name of Shri Sushanta Tagore was deleted from the array of parties vide this Court’s order dated 27th July, 2015 owing to his death. 3 Hereinafter, being referred to as the “Aarsuday Projects”. 4 Plot No. 3644/3782 admeasuring 0.39 acres in Mouza Ballavpur, J.L.

No. 63, District Birbhum.

3 C.A. NO(S). 2920/2018 & connected matters Aarsuday Projects with costs of Rs.25,000/- payable

to the writ petitioners therein.

3. Simultaneously, the High Court also directed

the initiation of appropriate proceedings against the

officers of Sriniketan Santiniketan Development

Authority5 who had issued the “No Objection

Certificate” for conversion of land from “danga” to

“bastu” and District Land & Land Reforms Officer,

Birbhum (DL&LRO, Birbhum), as well as against the

concerned officers of the Ruppur Gram Panchayat for

alleged violation of the mandate of judgment

rendered by this Court in the case of Sushanta

Tagore and Ors. v. Union of India and Ors.6 For

the sake of ready reference, the operative portion of

the impugned judgment is reproduced hereinbelow: -

“In the instant case, the land in question is of immense public importance. Considering the environmental ambience and the international heritage, importance of Visva Bharati and

5 Hereinafter, being referred to as the “SSDA”. 6 (2005) 3 SCC 16.

4

C.A. NO(S). 2920/2018 & connected matters Santiniketan, we find that the construction made for private gain in the land which has been converted to “khoai” a rare gift of nature, and/or in areas the inextricably connected to “khoai”, is wholly impermissible and violative of principles laid down by the Hon’ble Supreme Court in the aforesaid decision of Susantha Tagore (supra). Private rights/interests have to give way to larger public interest.

(…..) It is apparent that there were various illegal encroachments, which have been made in the area of Santiniketan and Visva Bharati, though there are resolutions that such structures have to be demolished in accordance with law, but no steps have been taken by the respondents.

Coming to yet another aspect, we find that the District Magistrate has ordered as the lodging of first information report against the builders for illegal construction by the builders and for taking steps against the Sriniketan Santiniketan Development Authority and DLLRO. Though we appreciate report but we record the steps have to be taken to their logical conclusion implemented along with resolutions in true spirit and not allowed to remain as mere lip service to the cause of preservation of ecology and heritage.

Since we find flagrant violation of the decision of the Hon’ble Supreme Court in Sushanta Tagore’s case, we propose to initiate action against the responsible officer of Sriniketan Santiniketan Development Authority, who had issued the no objection, and the District Land & Land Reforms Officer as well as against the concerned officers of the gram panchayet as to why they should not be dealt with suitably for violating the mandate of the apex court in the manner in which they have done. The officers, as aforesaid, should have first of all considered the decision of the Hon’ble Supreme Court and ought to have acted in accordance with it, but ignoring the mandate of the Hon'ble Supreme Court they had

5 C.A. NO(S). 2920/2018 & connected matters acted directly against the same. Thus, they are supposed to explain why they should not be hauled up for violating the decision of the Hon’ble Supreme Court.

Let appropriate proceedings be separately registered against them and be placed before us for consideration.

We are, therefore, of the opinion that since the development plan prepared by the Sriniketan Santiniketan Development Authority was required to be modified in terms of the notification issued on January 25, 2010, no right can accrue to the respondent no. 6 therefrom so as to sustain a totally illegal and unauthorised act in raising a large scale multi-storied construction in an ecologically and culturally preserved area adjoining a wild life sanctuary and destroying “khoai” land. It is apparent that it was necessary to work out peripheral limits of buffer zone in and around Visva Bharati campus, which has not been done so far. it was also necessary to carry out changes in development plans mentioned in notification dated 25.04.2010 issued under the Act of 1979. We restrain any kind of construction till such exercise is done and the development plan is modified by the Sriniketan-Santiniketan Development Authority in terms of the notification dated January 25, 2010 in mouzas covered in it issued under the West Bengal Town & Country (Planning and Development) Act, 1979.

We find that objection raised from time to time remain unheeded to. Prompt action ought to have been taken by the District Magistrate and the Superintendent of Police against the Sriniketan- Santiniketan Development Authority and other concerned bodies not only to stop the construction in question but to demolish it as the same is totally illegal.

Resultantly, as the construction of the building is found to be wholly unauthorised and illegal for the reasons, as aforesaid, we direct demolition of the

6 C.A. NO(S). 2920/2018 & connected matters same. The District Magistrate, Birbhum and the Superintendent of Police, Birbhum as also the Bolpur-Srinikektan Panchayet Samity shall take action for demolishing the building within a period of one month from date and to file their compliance report before this court. We direct the authorities, as aforesaid, not only to demolish the building in question in totality but to restore the land, as it was, as far as possible and to keep it as such. They are also directed to ensure that no constructional activity in the area covered by notification on 25/1/2010 of Santiniketan and Visva Bharati to be undertaken till the development plan is modified in accordance with law in terms of the notification dated January 25, 2010 and without prior approval of the Apex Advisory Committee constituted in terms of notification dated January 18, 2011 and without consultation with the West Bengal Pollution Control Board. We further direct till consultation with the Archaeological Survey of India is completed, no permission for raising any construction to be accorded in future by any authority, such as, Sriniketan Santiniketan Development Authority, Bolpur-Srinikektan Panchayet and other local bodies, authorities such as municipality, etc. in Mouzas included in notification dated 25.1.2010 and in Visva Bharati/Santiniketan.

As the construction had been raised by the respondent no. 6 in a wholly unauthorised manner and that too without providing any ingress and egress to the road and thereby creating disturbances to the. Visva Bharati University and damage to Khoai land, we direct compensation of Rs. 10 lakhs to be paid by the respondent No. 6, which is to be used for the purpose of restoration of the land and preservation of the area in question. The amount of compensation is to be spent at the advice of the Apex Advisory Committee. The respondent No. 6 is further directed to pay costs of litigation Rs.25,000/- to the writ petitioners.”

7 C.A. NO(S). 2920/2018 & connected matters

4. The aforesaid judgment of the High Court forms

the subject matter of challenge in the present appeals

by special leave. The particulars of the appeals are

set out hereunder: -

• Civil Appeal No. 2920 of 2018: Preferred by

Aarsuday Projects, the developer of the subject

plot.

• Civil Appeal No. 2921 of 2018: Preferred by

the SSDA, challenging the adverse observations

made by the High Court against it and its

officers, as well as the consequential directions

for initiation of action against its officer(s).

• Civil Appeal Nos. 2922-2923 of 2018:

Preferred by the subsequent purchasers of flats

constructed by Aarsuday Projects on the subject

plot.

5. It is apposite to note herein that this Court, vide

order dated 6th September, 2013, while issuing notice

8 C.A. NO(S). 2920/2018 & connected matters in the appeal preferred by Aarsuday Projects, directed

the parties to maintain status quo in all respects with

regard to the subject building(s) as well as the subject

land, in the following terms:

“In the meanwhile, the petitioner and respondents shall maintain status quo as obtaining today in all respects with regard to the subject building(s) as well as the subject land.”

II. BACKGROUND AND EVOLUTION OF THE CONTROVERSY: -

6. The controversy in the case at hand revolves

around the disputed construction raised by Aarsuday

Projects on a plot of land admeasuring 0.39 acres,

near the Visva-Bharati University, which, according

to the High Court was in the nature of preserved land

falling in the category of “khoai” land. There is no

dispute amongst the parties that no category by the

name of “khoai” land exists under the revenue laws

of the State of West Bengal. The said description

appears to have been borrowed from the writings of

9 C.A. NO(S). 2920/2018 & connected matters the Nobel Laureate, Shri Rabindranath Tagore, who

referred to a peculiar geological formation found in

and around the Birbhum region, created by natural

decay and erosion, by wind and water, of small hills

comprising red laterite soil rich in iron, resulting in

the formation of natural gullies and canyon-like

terrain.

7. In judicial parlance, the existence of “khoai”

land was recognised for the first time by the High

Court at Calcutta and subsequently by this Court in

the case of Sushanta Tagore (supra). In the said

case, the Courts were concerned with the large-scale

construction of residential-cum-commercial

complexes within the territorial limits of

Santiniketan, District Birbhum, West Bengal, which

were alleged to have adversely impacted the

ecological balance, cultural ethos, and environmental

sanctity of the region.

10 C.A. NO(S). 2920/2018 & connected matters

8. The litigation originated from a public interest

petition instituted before the High Court, inter alia,

alleging that unregulated and indiscriminate

construction activity in and around Santiniketan had

resulted in serious degradation of its cultural and

environmental heritage, undermining the ideals and

objectives underlying the establishment of Visva-

Bharati University.

9. A Division Bench of the High Court vide

judgment dated 20th August, 2004, dismissed the

writ petition filed in the nature of public interest

litigation, holding that since Visva-Bharati University

was not the owner of the entire 3,000 hectares of land

in question, the relief sought for by the PIL petitioner

therein could not be granted. The High Court opined

that, in the absence of any statutory restriction, the

State was competent to deal with such land in

accordance with law, and that the establishment of

11 C.A. NO(S). 2920/2018 & connected matters residential structures or other peaceful activities in

the vicinity of a university could not, by itself, be

termed illegal. While acknowledging that increasing

population and construction activity would inevitably

alter the character of areas surrounding Santiniketan

over a period of time, the High Court held that neither

the Visva-Bharati Act, 1951 nor the ideals of

Rabindranath Tagore mandated that the entire

Santiniketan has to be preserved as an exclusive or

static zone in perpetuity. It was further observed that

regulating construction on the basis of the poet’s

ideals, in the absence of a clear statutory framework,

would be impractical and unenforceable. The High

Court concluded that although the proposed housing

project therein would alter the local topography, no

overriding public interest warranted restraint,

particularly where development was planned,

systematic, and in conformity with applicable laws.

12 C.A. NO(S). 2920/2018 & connected matters

10. The aforesaid judgment of the High Court was

challenged before this Court in Sushanta Tagore

(supra).

11. This Court, while adjudicating the matter, took

cognizance of the fact that the West Bengal Pollution

Control Board (WBPCB) had imposed restrictions

upon municipal authorities, prohibiting the sanction

of building plans for large housing complexes without

prior environmental clearance. This Court also

referred to and extracted relevant portions of the

report submitted by the WBPCB. For ready reference,

these observations from Sushanta Tagore (supra)

are reproduced hereinbelow: -

“Report of the Pollution Control Board

20. From the report sent by the W.B. Pollution Control Board, it would appear that it had issued a direction restricting the municipal corporations, etc. from sanctioning any building plan of big housing complexes without obtaining its environmental clearance. Having regard to the peculiar features and the fact that SSDA’s working area includes maintenance and preservation of cultural heritage and natural environment of Sriniketan-Santiniketan and further in view of the increase in the price of the

13 C.A. NO(S). 2920/2018 & connected matters land of Khoai and as people visiting Santiniketan enjoy Khoai by seeing in different climatic and scenic conditions, it was stated:

“Increasing constructional activity in Sriniketan- Santiniketan area may cause serious disruption in natural drainage system. It is therefore necessary to examine the drainage pattern (both dry weather flow and storm water flow) in the area and document it as per field condition. It is suggested that SSDA could take up the job examining the drainage pattern and system and document them in a map (marked with contour). The coming rainy season (July-September) could be ideal for the field study. As Santiniketan is getting developed as tourist place, therefore, it is essential to preserve the natural beauty and heritage which people like to enjoy. It is true that planned housing is one of the components of urbanisation. There is a great demand of housing not only from the local residents but also from people outside. Many want to keep a second home for use during weekends, holidays and festivals. Housing needs supporting infrastructures, also required to be constructed. Further, it will require adequate water supply, sanitation and drainage, solid waste management, etc. Urbanisation will have impact on ambient air quality unless problem-mitigation measures are taken properly. The rapid EIA report submitted by BPHDCL though indicated that suspended particulate matters in ambient air at Sonar Taree area are below maximum permissible limit, but the same near Pearson Memorial Hospital was more than the permissible limit in December. Even on some days of December the SPM was more than the permissible limit at Sonar Taree area. However, other parameters of ambient air are well below the permissible limit.” It was opined:

“SSDA should follow land use and development control plan already prepared by Urban Development (T&CP) Department. In addition, SSDA

14 C.A. NO(S). 2920/2018 & connected matters must see to conservation of the natural heritage of the place as far as practicable. It is also true that when development of Santiniketan-Sriniketan area is a necessity due to promotion of tourism and urban pull, there must be certain changes in the land use pattern resulting in disappearance of Khoai landscape from certain places. Hence SSDA must look into this aspect while planning for development of area keeping changes of Khoai land formation minimal.” Among other things, the report recommended that:

(i) no more housing projects be undertaken until SSDA’s perspective plan 2025 including Visva- Bharati’s special requirements was approved,

(ii) ensure minimal damage to the remaining Khoai so as to preserve its natural beauty, heritage and natural drainage system,

(iii) a satellite township be built at a suitable distance from the Visva-Bharati area.”

12. Taking note of the aforesaid report, as well as

the provisions of the Visva-Bharati Act, 1951, this

Court proceeded to hold that while development and

change are inevitable, Santiniketan, having regard to

its unique cultural, educational, and ecological

character, stands on a distinct footing. This Court

emphasized that the statutory scheme underlying the

Visva-Bharati Act, 1951 mandated preservation of

the traditions, ethos, and environmental ambience of

15 C.A. NO(S). 2920/2018 & connected matters the institution and its surroundings, particularly the

“khoai” landscape, which forms an integral part of

Nobel Laureate, Shri Rabindranath Tagore’s literary

philosophy. It was observed that indiscriminate and

large-scale residential or commercial construction

would not only alter the topography of Santiniketan

but also defeat the very object and purpose of the

enactment. This Court further held that development

must be sustainable, planned, and in conformity with

environmental and pollution control laws, and that

there could be no parity/perpetuity of illegality

merely because unauthorized constructions may

have come up in the past.

13. Having held so, this Court addressed the

prevailing equities and noted that the project in

question had received approvals at various stages,

that substantial investment had already been made,

and that similar housing projects had already come

16 C.A. NO(S). 2920/2018 & connected matters into existence in the area. In those circumstances,

while refraining from disrupting the construction

already undertaken, this Court issued clear

directions that, in future, the SSDA must

scrupulously adhere to the statutory provisions, the

objectives of the Visva-Bharati Act, 1951 and the

recommendations of the WBPCB, recognizing that

the SSDA bears a higher and distinct responsibility

in view of the sui generis character of Santiniketan.

Relevant findings from the said judgment are

reproduced hereinbelow: -

“25. The Division Bench of the High Court, as noticed hereinbefore, arrived at a finding that the continued increase of building activities will slowly change the place almost beyond recognition of the poet and the activities of Bengal Ambuja Housing Complex Ltd. will to some extent change the topography of Santiniketan in the canal front. Despite holding so, the High Court observed that such changes are necessary having regard to the continued increase in population of Santiniketan and, as the Act does not contain any provision Santiniketan was required to be made an exclusive spot forever and, furthermore, as allowing Santiniketan in its original form would be impractical, it can be permitted to become residential town or even industrial town provided the

17 C.A. NO(S). 2920/2018 & connected matters growth is planned, systematic and in accordance with the laws relating to freedom from population.

26. If by reason of any activity, the tradition and special features of Visva-Bharati are not preserved, the very purpose of the enactment would be defeated. It has not been denied or disputed that even now Visva-Bharati organises classes in open air and also on Khoai lands, particularly, drawing and painting classes. (…..)

29. The Division Bench of the High Court, in our opinion, was not correct in holding that in the event the building activity in the territorial area comprising Santiniketan as specified in the Act was to take place in accordance with the spirit and ideas of Rabindranath Tagore, such activity cannot be monitored in the practical world and, therefore, would constitute illegal and impractical way of thought and furthermore although the House Complex Project of Respondent 10 would change the topography of Santiniketan in the canal front, there was no public interest calling for restraint of such a change.

30. The West Bengal Pollution Control Board is a statutory body. The environmental impact assessment in terms of the provisions of the laws governing ecology of the area is imperative. The Pollution Control Board which has statutory duties to perform had issued certain directions for preservation and conservation for cultural, historical, archaeological, environmental and ecological purposes. Such directions are binding on the State as well as SSDA. If any construction is carried out on the Khoai, the same indisputably will destroy its unique natural and cultural heritage, as opined by the Board, and, thus, all constructional activities must abide by the same.

(…..)

33. It may be true that the development of a town is the job of the Town Planning Authority but the same

18 C.A. NO(S). 2920/2018 & connected matters should conform to the requirements of law.

Development must be sustainable in nature. A land use plan should be prepared not only having regard to the provisions contained in the 1979 Act and the Rules and Regulations framed thereunder but also the provisions of other statutes enacted therefor and in particular those for protection and preservation of ecology and environment.

34. As Visva-Bharati has the unique distinction of being not only a university of national importance but also a unitary one, SSDA should be well advised to keep in mind the provisions of the Act, the object and purpose for which it has been enacted as also the report of the West Bengal Pollution Control Board. It is sui generis.

35. It is idle to compare Santiniketan with any other university. Truism is that Santiniketan has unique features. Its environmental ambience, thus, must be maintained. There is no other university which having regard to the purport and object of the Act, as would appear from the objects and reasons thereof, can be compared with Visva-Bharati. Our attention has not been drawn to any other statute establishing any university which has such unique features as Visva-Bharati.

36. Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality.

37. The Parliamentary Debates, some of which we have noticed hereinbefore, clearly go to show that

19 C.A. NO(S). 2920/2018 & connected matters the Act was enacted with particular objectives in view. Such statutory objects could not have been given a go-by. It is not suggested that Santiniketan should remain as it was in 1921 but it cannot be permitted to become full of concrete jungles and industrial hub. For carrying out further constructional activities, it may not be necessary for a builder to apply to the University for seeking its permission but the local self- government which is responsible therefor must take into consideration the salutary principles laid down in the pollution control laws as well as the Act. The land use and future planning of Santiniketan must be done in such a manner so that the changes be brought about which would not be beyond the recognition of the poet as also the provisions of the Act. SSDA in that sense must distinguish itself from the other development authorities. It has an extra burden to shoulder. It cannot shut its eyes to the provisions of the Act and the object and purport it seeks to achieve. It cannot ignore the environmental impact assessment made by the Board. It is one thing to say that SSDA may permit small constructions to be made by the owners of the land or additions or allow alterations to the existing building for residential purposes but it is another thing to say that it would not consider the effect of the changes which may be brought about by turning Santiniketan into a commercial and industrial hub.

(…..) Conclusion

39. The question is what do we do in the instant case?

40. SSDA issued notices as regards adoption of the land use map as far back as in the years 1999 and 2000. The State Government had granted a long- term settlement in favour of SSDA with a further right to the residential flat owners for the

20 C.A. NO(S). 2920/2018 & connected matters unexpired period of lease by an order dated 25-4- 2003. In 2003 itself, the project had been given a green signal and it is stated before us that Respondent 10 has already spent about 1.5 crores of rupees.

41. Our attention has further been drawn by Mr Sanghi that the house project of Bengal Peerless has already come into being. In that view of the matter, we do not intend to stop the construction activities which are being carried out by Respondent 10 but direct that in future SSDA must keep in mind the statutory provisions referred to hereinbefore as also the observations made by us herein.” [Emphasis supplied]

14. The present litigation seems to be a sequel to

the above judgment. The public interest litigation

being Writ Petition No. 8341(W) of 2012 came to be

filed in the High Court alleging inter alia that the

permission granted to Aarsuday Projects to construct

a residential building was illegal inasmuch as the

permission for construction was not granted by the

competent authority and that the construction was

being raised on “khoai” land which was

impermissible in view of the mandate of this Court in

Sushanta Tagore (supra).

21 C.A. NO(S). 2920/2018 & connected matters

15. The High Court accepted the averments made in

the writ petition as well as the inspection reports

called by it during the course of adjudication and on

that basis, by the impugned judgment, directed

demolition of the building constructed by Aarsuday

Projects for residential and commercial purposes and

also gave ancillary directions reproduced (supra).

III. FACTUAL MATRIX OF THE PRESENT CASE: -

16. Before adverting to the submissions of learned

counsel for the parties, it would be apposite, for the

sake of convenience, to set out a chronological list of

dates relevant and essential for the disposal of the

present appeals.

2002: The Land Use and Development Control Plan

in respect of Sriniketan Santiniketan Planning Area

including the subject plot admeasuring 0.39 acres

was published by the competent planning authority,

22 C.A. NO(S). 2920/2018 & connected matters wherein the subject plot was designated for

“residential use”.

11.08.2009: Aarsuday Projects, purchased the

subject plot by way of a registered sale deed.

03.12.2009: The subject plot was recorded

as danga (barren land) in the Record of Rights.

29.12.2009: The Ruppur Gram Panchayat issued a

“No Objection Certificate” for residential construction

on the subject plot, conditional upon procurement of

conversion permission for the same.

25.10.2010: The Urban Development Department,

Government of West Bengal, directed the SSDA to

revise the Development Plan for eleven mouzas

including Mouza Ballavpur, keeping in view the spirit

of conservation and preservation.

30.06.2011: Aarsuday Projects started the

development on the subject plot.

23 C.A. NO(S). 2920/2018 & connected matters 10.09.2011: SSDA constituted a three-member Sub-

Committee, comprising representatives of the Visva-

Bharati Anchal Abasik Samiti and Visva-Bharati

University, for selection and implementation of the

schemes approved by it.

21.10.2011: The building plan submitted by

Aarsuday Projects proposed a plinth area of over 300

square metres. Consequently, the Ruppur Gram

Panchayat forwarded the same to the Zilla Parishad,

Birbhum, for vetting and approval in terms of

the second proviso to Rule 28 of the West Bengal

Panchayat (Gram Panchayat Administration) Rules,

2004.

04.11.2011: The Zilla Parishad, Birbhum vetted the

building plan and forwarded it to the Ruppur Gram

Panchayat.

24 C.A. NO(S). 2920/2018 & connected matters 05.11.2011: The Ruppur Gram Panchayat treated

the vetted plan as approved and communicated the

same to Aarsuday Projects.

27.01.2012: SSDA directed inspection of the site and

called for a report from the Sub-Committee prior to

considering the grant of “No Objection Certificate” for

construction on the subject plot.

08.02.2012: The Sub-Committee conducted

inspection of the site and submitted its report,

finding no impediment to the grant of “No Objection

Certificate” for conversion of land for residential

construction, i.e., from “danga” to “bastu”.

28.02.2012: SSDA accorded “No Objection

Certificate” for conversion of the land to bastu

(residential use).

17.04.2012: The present writ petition being Writ

Petition No. 8341(W) of 2012 in the nature of public

interest litigation, was filed before the High Court

25 C.A. NO(S). 2920/2018 & connected matters seeking revocation of the sanction/permission

granted to Aarsuday Projects for construction of the

building, primarily on two grounds, (a) permission to

construct granted to Aarsuday Projects was illegal

inasmuch as the permission was not granted by the

competent authority and (b) the construction was

being raised on “khoai” land, which was

impermissible in view of the mandate of this Court in

Sushanta Tagore (supra).

It is relevant to note that no interim stay on

construction was granted by the High Court at the

initial stage.

05.06.2012: SSDA recorded the grant of “No

Objection Certificate” to Aarsuday Projects. The said

action was taken in the presence of

representatives of Visva-Bharati University.

09.01.2013: The District Land & Land Reforms

Officer, Birbhum (DL&LRO, Birbhum), approved the

26 C.A. NO(S). 2920/2018 & connected matters conversion of the subject plot from “danga” to “bastu”

for the purpose of setting up a commercial housing

project, subject to completion within a period of six

months.

July, 2013: Construction of the disputed building

was completed by Aarsuday Projects.

11.07.2013: The High Court called for reports from

the District Magistrate and the West Bengal Pollution

Control Board (WBPCB) on the issue as to whether

the subject plot was “khoai” land and whether due

clearances/permissions had been taken by the

builder, i.e., Aarsuday Projects for raising

construction on the subject plot.

19.07.2013: WBPCB submitted its inspection report

stating that the adjacent area to the subject plot

was a low-lying area locally known as “khoai”

land, and further observed that no clearance

from the Board was required as the built-up area

27 C.A. NO(S). 2920/2018 & connected matters of the construction raised by Aarsuday Projects

measured less than 20,000 square metres.

23.07.2013: The District Magistrate submitted a

report without recording any specific finding on the

nature of the land, stating that clarification had been

sought from the SSDA regarding the basis for grant

of “No Objection Certificate” for construction on the

subject plot.

14.08.2013: SSDA filed its objections/exceptions to

the District Magistrate’s report, asserting that the “No

Objection Certificate” was granted considering that

the subject plot was earmarked for “residential use”

in the Land Use and Development Control Plan, 2002

and that substantial human settlement already

existed in the area.

21/22.08.2013: The High Court rendered

the impugned judgment, holding that the Panchayat

Samiti alone was the competent authority to grant

28 C.A. NO(S). 2920/2018 & connected matters the permission for construction and that no such

permission had been obtained. It was further held

that the officers of the SSDA, Gram Panchayat, and

DL&LRO, Birbhum had acted in violation of the

judgment in Sushanta Tagore (supra), and that the

development plan ought to have been modified in

compliance with the said judgment. Consequently,

the construction carried out by Aarsuday Projects

was declared to be illegal and directions were issued

for demolition of the disputed construction. The High

Court also held that the construction had caused

disturbance to Visva-Bharati University and damage

to “khoai” land, and accordingly directed the

developer, i.e., Aarsuday Projects, to pay

compensation of Rs. 10,00,000/-. Further, costs of

Rs. 25,000/- was imposed on Aarsuday Projects,

payable to the writ petitioners. Liberty was granted to

29 C.A. NO(S). 2920/2018 & connected matters the purchasers to work out their equities with the

builder/developer, i.e., Aarsuday Projects.

The aforesaid judgment of the High court is the

subject matter of challenge in the present appeals by

special leave, preferred independently by Aarsuday

Projects, the SSDA and the subsequent purchasers

of flats built by Aarsuday Projects.

IV. SUBMISSIONS ON BEHALF OF AARSUDAY PROJECTS: -

17. Mr. Siddharth Bhatnagar, learned senior

counsel appearing on behalf of Aarsuday Projects,

assailed the impugned judgment of the High Court on

the following counts: -

A. That the High Court completely glossed over the

vital fact that the subject plot admeasuring 0.39

acres was privately owned property, lawfully

acquired by Aarsuday Projects under a registered

sale deed and that the entire area, including the

30 C.A. NO(S). 2920/2018 & connected matters subject plot, had been earmarked for residential

and commercial use under the Land Use and

Development Control Plan, 2002 notified by the

SSDA, being the sole competent authority for land-

use planning in the region.

B. That it was clearly demonstrated before the High

Court that historically the Panchayat Samiti had

not been according building permissions for

several years and that applications for

construction exceeding the jurisdiction of the

Gram Panchayat were routinely forwarded to the

Zilla Parishad for vetting. In the present case, the

Aarsuday Projects’ building plan was submitted to

the Ruppur Gram Panchayat which forwarded the

same to the Zilla Parishad, Birbhum, which in turn

vetted the same in accordance with law. The vetted

plan was returned to the Ruppur Gram Panchayat,

which treated the plan to be approved, conveyed

31 C.A. NO(S). 2920/2018 & connected matters the said approval to Aarsuday Projects and only

thereafter was the construction undertaken.

C. That even assuming, arguendo, that the Gram

Panchayat was not the competent authority to

accord approval to the building plan and that such

authority vested exclusively in the Panchayat

Samiti, the same constituted, at best, a minor

procedural irregularity which was curable in

nature. It was urged that such an alleged defect in

the grant of approval could not have been treated

as fatal so as to warrant demolition of the entire

structure, especially when the building plan had

been vetted by the Zilla Parishad, construction was

undertaken bona fide, and no statutory framework

mandated demolition as the sole consequence of

such an irregularity.

D. That the SSDA had constituted a three-member

Sub-Committee for the selection and

32 C.A. NO(S). 2920/2018 & connected matters implementation of the construction schemes in the

Santiniketan area, which duly considered and

approved Aarsuday Projects’ application for

conversion of the subject plot from “danga” to

“bastu”. The said Sub-Committee comprised of the

representatives of Visva-Bharati Anchal Abasik

Samiti and Visva-Bharati University, and at no

stage of its deliberations was any objection raised

regarding the subject plot being in the nature of

“khoai” land. Furthermore, the conversion of land

use of the subject plot from “danga” to “bastu”

being permissible under the applicable rules, no

mala fides or ill intention could be attributed to

Aarsuday Projects in undertaking construction

pursuant to the permission/sanction granted by

the SSDA.

E. That the High Court completely glossed over the

material placed on record demonstrating the

33 C.A. NO(S). 2920/2018 & connected matters existence of extensive construction of residential

premises in the surrounding area, including on

adjoining plots as well as on plots situated

opposite the subject plot owned by Aarsuday

Projects. In such circumstances, the decision to

single out Aarsuday Projects for the extreme

measure of demolition, which is both drastic and

disproportionate, on the basis of unreliable

material and unsubstantiated findings, is wholly

arbitrary and unjustified.

F. Mr. Bhatnagar further submitted that the reliance

placed by the High Court on the reports of the

District Magistrate and the West Bengal Pollution

Control Board (WBPCB) for concluding that the

disputed construction was unauthorised and

illegal is absolutely unjust and arbitrary. He

pointed out that the report of the WBPCB clearly

indicated that the subject plot was situated in a

34 C.A. NO(S). 2920/2018 & connected matters residential area; that the built-up area of the

residential building raised by Aarsuday Projects

measured less than 20,000 square metres and

hence, no permission was required from the

WBPCB and that the “khoai” like

recess/depression existed adjacent to the subject

plot. He submitted that the report of the District

Magistrate is also based on sheer conjectures and

surmises, since no scientific survey, technical

study, or contemporaneous land record was relied

upon to substantiate the conclusion that the land

was of “khoai” nature or otherwise restricted for

residential construction. It was urged that both the

reports are conspicuously silent on the material

aspect as to how several pre-existing buildings in

the immediate vicinity of the construction raised

by Aarsuday Projects had been permitted to be

erected, a circumstance which had a direct bearing

35 C.A. NO(S). 2920/2018 & connected matters on the character of the area and the uniform

application of the regulatory framework. He,

therefore, submitted that since the very foundation

of the impugned judgment rests upon the reports

of the WBPCB and the District Magistrate, which

are unreliable and unsupported by cogent

material, the judgment cannot be sustained either

on facts or in law.

On these grounds, learned senior counsel urged that

the impugned judgment does not stand to scrutiny

being founded on conjectures and surmises and

rendered in complete disregard of admitted and

unimpeachable documentary evidence available on

record, and therefore, the same deserves to be set

aside.

36 C.A. NO(S). 2920/2018 & connected matters V. SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 1-7 (WRIT PETITIONERS BEFORE THE HIGH COURT): -

18. Mr. Jaideep Gupta, learned senior counsel

appearing on behalf of Respondent Nos. 1-7 (Writ

Petitioners before the High Court), supported the

impugned judgment to the hilt and urged that the

same calls for no interference by this Court, inter alia,

on the following grounds: -

A. That the impugned judgment is unassailable both

on facts and in law, inasmuch as the reports

submitted by the WBPCB and the District

Magistrate unequivocally establish that the

disputed construction was raised by destroying

“khoai” land and in clear violation of the judgment

passed in Sushanta Tagore (supra). It was

therefore contended that the High Court was

justified in exercising its writ jurisdiction to direct

37 C.A. NO(S). 2920/2018 & connected matters demolition of what was found to be an illegal and

unauthorised construction.

B. That the construction was undertaken without

obtaining permission from the competent

authority, namely, the Panchayat Samiti, and that

the manner in which Aarsuday Projects assumed

permission merely on the basis of a file vetted by

the Zilla Parishad demonstrates clear connivance

between Aarsuday Projects and the concerned

authorities.

C. That the ex-post facto conversion of the land from

“danga” to “bastu” was wholly unjustified and

contrary to law, and consequently, the directions

issued by the High Court quashing such

permission and conversion, and holding the

construction to be grossly illegal and

unauthorised, cannot be faulted and should not be

interfered with by this Court in exercise of its

38 C.A. NO(S). 2920/2018 & connected matters extraordinary jurisdiction under Article 136 of the

Constitution of India.

D. That this Court, in Sushanta Tagore (supra), had

as early as in the year 2005, emphasised the need

for preservation of the Santiniketan area,

including lands described as “khoai”, and had

cautioned against construction activities

detrimental to its ecological and cultural

character. It was therefore contended that the

subsequent grant of permission to construct and

the conversion of land in the present case were

contrary to the spirit and mandate of the said

judgment and amounted to a disregard of the

directions issued by this Court.

E. That, in these circumstances, the High Court

rightly entertained the challenge to such blatantly

illegal actions and justly issued directions for

demolition of the unauthorised structure as well

39 C.A. NO(S). 2920/2018 & connected matters as for initiation of appropriate proceedings against

the erring officials, which were in the nature of

restorative justice intended to undo the damage

caused to the environment, cultural heritage and

ethos of Visva-Bharati by the unlawful acts of the

parties concerned.

On these grounds, learned senior counsel implored

this Court to dismiss the appeals with costs.

VI. SUBMISSIONS ON BEHALF OF THE SSDA:- 19. Mr. Abhrotosh Majumdar, learned senior

counsel, appearing on behalf of the SSDA submitted

that the role discharged by the SSDA in the present

case was strictly within the confines of its statutory

functions and in accordance with the prevailing legal

framework. It was urged that the “No Objection

Certificate” issued by the SSDA was confined only to

the conversion of the land from “danga” to “bastu”,

40 C.A. NO(S). 2920/2018 & connected matters which was permissible and within the statutory

framework having regard to the fact that the subject

plot was already earmarked as “residential” under the

notified Land Use and Development Control Plan,

2002. The SSDA was neither the sanctioning

authority for the building plan nor did it grant any

permission for construction, such authority

admittedly vested with the local bodies under the

applicable laws. The subsequent approval granted by

the competent revenue authority further validates

the conversion. In these circumstances, it was

submitted that the construction undertaken

pursuant to valid approvals from the competent

authorities could not be characterized as illegal, nor

could the SSDA be faulted for having acted within its

limited statutory role.

20. It was further submitted that subsequent to the

passing of the impugned judgment, the SSDA has

41 C.A. NO(S). 2920/2018 & connected matters taken several concrete, bona fide and consistent

steps towards preservation of the ecological and

cultural heritage of the Santiniketan–Sriniketan

region balancing the objective of conservation and

planned development of the area. It was pointed out

that in pursuance of the order dated 6th September,

2013 passed by this Court directing maintenance of

status quo, SSDA immediately issued a public notice

clarifying that no further “No Objection Certificate”

would be issued for conversion of land or for

development in the concerned mouzas, and

thereafter, acted strictly in accordance with the

orders passed by this Court from time to time.

21. Learned senior counsel appearing for the SSDA

lastly submitted that the authority undertook a

comprehensive exercise for revision of the Land Use

and Development Control Plan, including

appointment of IIT, Kharagpur as consultant,

42 C.A. NO(S). 2920/2018 & connected matters preparation of a revised plan covering 44 mouzas,

inviting objections from the public, placing the

revised plan before the Apex Advisory Committee,

and obtaining approvals from the State Government

under the provisions of the West Bengal Town &

Country (Planning and Development) Act, 1979,

followed by publication of the approved plan. It was,

therefore, urged that in view of the subsequent

actions taken by the SSDA in compliance with the

directions of this Court and the statutory framework,

the adverse remarks and consequential directions

issued against the SSDA and its officers in the

impugned judgment are liable to be expunged.

VII. SUBMISSIONS ON BEHALF OF VISVA-

BHARATI UNIVERSITY: -

22. Mr. Rana Mukherjee, learned senior counsel,

appearing on behalf of Visva-Bharati University,

strenuously supported the impugned judgment. He

43 C.A. NO(S). 2920/2018 & connected matters submitted that the disputed construction was raised

on “khoai” land, without securing permission from

the competent authority, namely, the Panchayat

Samiti and without obtaining due conversion from

the SSDA, rendering the construction wholly

unauthorized and illegal. It was, thus, contended

that the impugned judgment is legally sound and

does not call for interference by this Court. He

accordingly urged that the appellants are not entitled

to any relief and that the appeals deserve to be

dismissed.

VIII. ANALYSIS AND DISCUSSION: -

23. We have heard and considered the submissions

advanced by learned counsel for the parties and have

carefully gone through the impugned judgment as

well as the material placed on record.

44

C.A. NO(S). 2920/2018 & connected matters a. Admitted Facts Emerging from the Record

24. We shall, at the outset, enumerate certain

admitted and undisputed facts emerging from the

record.

A. The entire parcel of land (admeasuring 28.12

acres) of which the subject plot admeasuring 0.39

acres forms a part is situated in District Birbhum

and falls within the territorial jurisdiction of the

Ruppur Gram Panchayat. The said land was never

a part of the land owned by Visva-Bharati

University, though it is contiguous thereto, and

had, much prior to the disputed construction,

been notified as falling within the planning area of

the SSDA.

B. The SSDA, being the designated planning

authority, had published a Land Use and

Development Control Plan, 2002, wherein the

subject plot situated in Mouza Ballavpur, District

45 C.A. NO(S). 2920/2018 & connected matters Birbhum, admeasuring 0.39 acres and forming

part of a larger tract of land admeasuring 28.12

acres, was included within the planning area as

“residential” land.

C. The subject plot on which the disputed

construction was raised is private land, lawfully

acquired by Aarsuday Projects by way of a

registered sale deed dated 11th August, 2009 from

its erstwhile owners. The said sale deed has never

been questioned or disputed before any forum.

D. The land in question stood recorded as “danga”

[barren land] in the revenue records. There is no

contemporaneous document or material on record

indicating the existence of any “khoai” type recess

or undulation either on the subject plot or on the

adjoining plots.

E. Although deliberations had been ongoing for a

considerable period regarding declaration of areas

46 C.A. NO(S). 2920/2018 & connected matters adjoining Visva-Bharati University as preserved

land, no formal notification to that effect had been

issued prior to the commencement or completion

of the disputed construction.

F. The record further reflects that a substantial

number of residential structures had already come

into existence on the larger tract of land adjoining

Visva-Bharati University, within which the

disputed construction is situated. Some of these

constructions exist adjacent to and opposite to the

disputed construction. The entire area appears to

be a systematically plotted landscape inhabited by

a large number of people.

b. Findings Recorded by the High Court

25. We shall now advert to certain relevant findings

recorded by the High Court in the impugned

judgment. Relevant extracts from the impugned

47 C.A. NO(S). 2920/2018 & connected matters judgment are reproduced hereinbelow for ready

reference: -

“Coming to the instant case when we gauge it in the perspective of directions issued by the Hon’ble Supreme Court in the case of Sushanta Tagore (supra), firstly we find it is the same area described as Deer Park where construction is being raised.

SSDA while issuing N.O.C. has not at all consulted the Pollution Control Board. They have not taken into consideration the Notification dated 25th January, 2010 issued in Act of 1979. Nor it has consulted the Apex Advisory Committee constituted on 18th January, 2011. The Report submitted before the Apex Court by the Pollution Control Board in 2005 itself mentions that there should not be any constructional activity in the area in question. As per the decision of the Hon’ble Supreme Court in the case of Sushanta Tagore (supra), report was binding upon the SSDA and Panchayat/Zilla Parishad and could not have given a go-bye to it. It is not in dispute that SSDA while issuing N.O.C. in February, 2012 has not at all considered the decision of the Hon’ble Supreme Court in Sushanta’s case, neither the District Land & Land Reform Officer considered the decision of the said case while ordering the conversion of land in January, 2013. As per the Pollution Control Board, no such activity is permissible in the area. The land had formed by natural process into ‘khoai’ land though the land is classified as Danga land. The same is contiguous to wildlife sanctuary also, which is 70 metres away. The area is in Deer Park, thus, there is flagrant violation of the aforesaid directions issued by the Apex Court which were required to be observed while dealing with such N.O.C., conversion and the permission to raise construction.

Now we propose to take up the question with respect to the competence of Gram Panchayat/Zilla Parishad to accord permission to raise the

48 C.A. NO(S). 2920/2018 & connected matters construction. The same is illegal and void for various reasons.

Firstly it is uncontroverted fact that permission had been accorded on 5th November, 2011, whereas land had not been converted on aforesaid date from Danga to Bastu. N.O.C. had been issued by SSDA on 28th February, 2012 for proposed conversion of the plot at Mouza Bhallvpur from Danga to Bastu and it is not also in dispute that the District Land & Land Reforms Officer has passed the order of conversions on 9th January, 2013.

It is also not in dispute that construction had been completed by the middle of 2012. On query being made to the learned Senior Counsel appearing on behalf of the respondent No. 6, it was stated that the structure of building had been constructed by the middle of 2012. By that time the land had not been ordered to be converted from Danga to Bastu. Thus, it is apparent that even before the conversion of the land, construction activity of the building had been undertaken which was clearly an unauthorised act. No such permission to raise building could have been granted before conversion of the land from Danga to Bastu. Danga land is not for the purpose of construction. Danga land is highly arable agricultural land. Thus, the permission granted by Gram Panchayat after being vetted by Zila Parishad on 5th November, 2011 was illegal and void. Before conversion of the land no such permission could have been accorded. Apart from that Gram Panchayat was not competent to accord the sanction for the reasons to follow.

(…..) A conjoint roading of the provisions contained in sections 23, 94, 114 and 114A of the Panchayat Act and Rules 17, 27 and 28 of the Rules of 2004 make it clear that when the area in question is governed by any authority under the Act of 1979 and since it is not in dispute that SSDA is one of such authority under the Act of 1979, obviously the Development Plan prepared by the SSDA under the Act of 1979

49 C.A. NO(S). 2920/2018 & connected matters which is a law for the time being in force, the notification of such Development Plan is relevant for the purposes of section 114A of the Panchayat Act and when such Development Plan is there then the Panchayat would not be competent to deal with matters of sanction of buildings in such area and it has to be dealt with by a larger and different body, namely, Panchayat Samity constituted under section 94 of the Panchayat Act which has to consider various aspects for grant of sanction. The condition precedent for attracting section 114A of the Panchayat Act is the notification of a development plan for the area either under the said provision of law or any other law for the time being in force, that is, the Act of 1979 in the instant case. Such plan being in existence in the facts of the instant case, we are unable to accept the submission of the learned Senior Counsel that the said section is inoperative as specifications have not been notified by the Samity in terms thereof for grant of sanction. No such case however has been made out by respondent No. 6 in its pleadings. Nonetheless, we are of the opinion that notification of specifications for sanction is an exercise after power to grant sanction has vested in the Samity and not a condition precedent for vesting of such power in terms of section 114A of the Panchayat Act. Hence, such plea cannot be a valid ground to clothe the Panchayat with power to grant sanction in any area falling within a development area notified under the Act of 1979. Furthermore, the prayer for grant of sanction in the instant case was to be adjudged by the Samity in the light of the guidelines laid down by the Supreme Court in Susanta Tagore (supra) and the Government Notification dated 25/01/2010 dealing various Mouzas including Mouza – Ballavpur required preservation and conservation for historical, architectural, environmental & ecological purposes.

The Panchayat Samity has not been moved in the instant case which was required to consider the

50 C.A. NO(S). 2920/2018 & connected matters application for grant of sanction as per the procedure and provisions contained in Rule 28 of the Rules of 2004. The provision contained in Rule 28 of the Rules of 2004 cannot be said to be ultra vires and repugnant to the provisions contained in section 23 in any manner whatsoever. In view of the specific provision contained in Section 114A read with Rule 28, the Gram Panchayat was not competent authority to deal with the application at all. It is trite law when law prescribes mode of doing a thing that has to be done in that manner only. Thus, the permission which had been accorded was illegal and void. Vetting of plan by engineer of Zila Parishad does not improve the case as sanction is a matter to be considered by Panchayat Samity.

It has also been submitted by Mr. Saktinath Mukherjee, learned senior advocate appearing on behalf of the respondent No. 6, that there was no necessity to obtain conversion for the development plan from the Sriniketan Santiniketan Development Authority, in whose development plan the area has been shown for the residential purposes. We are of the opinion that when the land was admittedly recorded as Danga land, without its conversion to Bastu land the same could not have been used for raising building construction. As a matter of fact, the conversion permission was accorded on January 9, 2013, whereas the construction has already been made in illegal and unauthorised manner be made in the year 2012 on the basis of the illegal permission granted in the year 2011.

(…..) Not only the mandate of the aforesaid Notification issued under Act of 1979 has been violated by grant of permission in the aforesaid illegal manner. Even before prayer for conversion of the land, permission to raise construction had been granted. On the other hand, meetings were held and various resolutions have been passed by the concerned bodies which were attended by the authorities of SSDA as well as

51 C.A. NO(S). 2920/2018 & connected matters Panchayat, but reality is that they violated the mandates of the resolution and constitutional imperatives as projected by the Hon'ble Supreme Court in the case of Sushanta Tagore (supra). As a matter of fact, they are required to work out buffer zone and no construction area. We have no iota of doubt that the building which has been constructed was wholly impermissible, alternatively, even if purported sanction had been accorded by the competent authority, construction on such land and area in question is illegal and unauthorized. Firstly, the land has been transformed to ‘Khoai’ which is a rare gift of Nature. It is not recorded in the revenue records as ‘Khoai’ land as admittedly, no such classification of land as ‘Khoai’ but as per reports of the District Magistrate as well as Pollution Control Board, same is ‘Khoai’ land. Fact is that ‘Danga’ land has been converted into ‘Khoai’ land and we have no hesitation to accept the report of the District Magistrate as well as the report of the Pollution Control Board in this regard. The District Magistrate in his report has pointed out that permission for construction of three storied building was applied for, but one extra floor has been added using the natural undulating topography of “khoai” land. The following is the observation made by the District Magistrate in its report:

“Aarsuday Projects & Infrastructure Pvt. Ltd. applied to Ruppur Gram Panchayat for construction of III storied building but from the field verification It appears that one extra floor has been added using the natural undulating topography of khoyai land. From the front view it appears as III storied building but from back view It can be seen as IV storied building Photographs of building are enclosed as Annexure-V. Hence the construction of commercial housing Aarsuday Projects & Infrastructure Pvt. Ltd. Is unauthorised complex by and Illegal.”

52 C.A. NO(S). 2920/2018 & connected matters From the report of District Magistrate it is apparent that the building is four storied. Photographs have been filed with the Report to prove the fact that khoai land has been used for raising construction by the builder, the respondent No. 6. Besides, District Magistrate has pointed out that construction is illegal and SSDA had issued N.O.C. in illegal manner. The District Magistrate has rightly mentioned that before conversion of the land, no permission to raise construction could have been granted as has been done in the instant case. Even otherwise conversion was bad in law. We find from the Report submitted by the West Bengal Pollution Control Board that the adjacent area of the alleged site is low lying area formed by partial erosion of laterite soil and colloquially known as ‘khoai’, as the Pollution Control Board had inspected after the construction has been raised. When the report of the Collector as well as the Pollution Control Board are read together, there is no room to doubt that 'khoai' land has been used for the building. Whatever could be seen is apparent from the report of the Pollution Control Board that adjacent area is low lying area known as ‘khoai’. In fact low lying area has been used in construction of four storied building as apparent from the report of the District Magistrate.”

26. On a perusal of the aforesaid findings, it

becomes apparent that the conclusion of the High

Court, declaring the disputed construction to be

illegal, was primarily founded on the following

considerations: -

53

C.A. NO(S). 2920/2018 & connected matters A. That the disputed construction of Aarsuday

Projects was raised on land treated as falling

within a preserved category, i.e., “khoai” land.

B. That the reports submitted by the District

Magistrate and the WBPCB were read to conclude

that the subject plot was in the nature of “khoai”

land.

C. That the Panchayat Samiti was the sole competent

authority to grant permission for construction,

and that no such permission had been obtained by

Aarsuday Projects from the said authority.

Instead, permission was purportedly obtained

from the Gram Panchayat, which was held to be

incompetent to grant such approval under the

extant statutory provisions/framework.

D. That the SSDA committed a grave error in

permitting conversion of the nature of the land

54 C.A. NO(S). 2920/2018 & connected matters from “danga” to “bastu” after the construction

work had been commenced.

E. That no permission had been obtained from the

WBPCB for raising the construction, rendering the

structure wholly illegal.

c. Regulatory Approvals, Permissions, and Factual Chronology Relating to the Disputed Construction

27. Before appreciating the submissions advanced

at the Bar and analysing the reasons assigned by the

High Court in the impugned judgment, whereby it not

only directed demolition of the disputed construction

belonging to Aarsuday Projects but also imposed

costs and ordered initiation of appropriate

proceedings against the officers concerned, it would

be apposite to advert to certain admitted documents

and orders placed on record.

28. The SSDA, being the designated planning

authority, had published a Land Use and

55 C.A. NO(S). 2920/2018 & connected matters Development Plan in the year 2002, wherein the

subject plot situated in Mouza Ballavpur, District

Birbhum, admeasuring 0.39 acres and forming part

of a larger tract of land admeasuring 28.12 acres, was

included within the planning area as “residential”

land. The developer, i.e., Aarsuday Projects

purchased the subject plot by way of a registered sale

deed dated 11th August, 2009. Thereafter, an entry

was made in the revenue records on 3rd December,

2009 recording the nature of the land as “danga”

(barren land). On 29th December, 2009, the Ruppur

Gram Panchayat issued a “No Objection Certificate”

in favour of Aarsuday Projects for construction on the

subject plot, conditional upon the procurement of

requisite land conversion for the same.

Subsequently, by a communication dated 25th

January, 2010, the Urban Development Department,

Government of West Bengal, directed the SSDA to

56 C.A. NO(S). 2920/2018 & connected matters revise the development plan for eleven mouzas,

including Mouza Ballavpur, keeping in view the spirit

of conservation and preservation.

29. On 10th September, 2011, the SSDA constituted

a three-member Sub-Committee comprising of

representatives from the Visva-Bharati Anchal

Abasik Samiti and Visva-Bharati University. It may

be noted that since the building plan submitted by

Aarsuday Projects proposed a plinth area exceeding

300 square metres, the Ruppur Gram Panchayat on

21st October, 2011, forwarded the same to the Zilla

Parishad, Birbhum, for vetting and approval in terms

of the second proviso to Rule 28 of the West Bengal

Panchayat (Gram Panchayat Administration) Rules,

2004. The Zilla Parishad vetted the building plan and

returned the same to the Gram Panchayat on 4th

November, 2011, whereupon, on 5th November, 2011,

the Gram Panchayat communicated the approval to

57 C.A. NO(S). 2920/2018 & connected matters Aarsuday Projects. Thereafter, on 27th January,

2012, the Director, SSDA, directed inspection of the

site and called for a report from the Sub-Committee

prior to considering the grant of “No Objection

Certificate” for conversion of land from “danga” to

“bastu”. The Sub-Committee furnished its inspection

report on 8th February, 2012, finding no impediment

to the grant of “No Objection Certificate” and

conversion of land for construction, pursuant to

which the SSDA accorded its approval and issued a

“No Objection Certificate” for conversion of the land

from “danga” to “bastu” on 28th February, 2012.

30. On 17th April, 2012, the writ petition forming

the basis of the present appeal, came to be filed

before the High Court seeking revocation of the

sanction granted to Aarsuday Projects primarily on

the ground that the land in question was “khoai”

land. Meanwhile, on 5th June, 2012, the SSDA

58 C.A. NO(S). 2920/2018 & connected matters endorsed the grant of “No Objection Certificate” in the

presence of representatives of Visva-Bharati

University. On 9th January, 2013, the DL&LRO,

Birbhum, approved conversion of the subject plot

from “danga” to “bastu” for setting up the commercial

housing project. By July, 2013, construction of the

building stood completed and even possession of

certain units was handed over to the respective

buyers. In the same month, the High Court called for

reports from the District Magistrate and the WBPCB.

The WBPCB, submitted its report dated 19th July,

2013, wherein it noted that while the land adjacent

to the subject plot was a low-lying tract locally known

as “khoai”, no “No Objection Certificate” was required

from the WBPCB, as the built-up area of the

construction raised by Aarsuday Projects measured

less than 20,000 square metres.

59 C.A. NO(S). 2920/2018 & connected matters

31. The District Magistrate, submitted a report

dated 23rd July, 2013, with no specific finding on the

nature of the land and sought clarification from

SSDA regarding the basis of the grant of “No

Objection Certificate”. SSDA filed its objections on

14th August, 2013, reiterating that the subject plot

was earmarked for “residential use” as per the Land

Use and Development Control Plan, 2002 and that

substantial human settlement already existed in the

adjoining areas. Thereafter, the High Court passed

the impugned judgment dated 21st and 22nd August,

2013.

32. It is essential to note here that another writ

petition, being Writ Petition No. 34241(W) of 2013

(Dharmendra Kumar Sharma v. State of West

Bengal), raising identical issues was filed before the

High Court in relation to a building situated on a plot

adjacent to the subject plot. In the said proceedings,

60 C.A. NO(S). 2920/2018 & connected matters the District Magistrate submitted a report before the

High Court stating that the land in question was not

in the nature of “khoai” and had been earmarked for

“residential use” under the Land Use and

Development Control Plan, 2002 prepared by the

SSDA. In the same writ petition, Visva-Bharati

University filed an affidavit in opposition admitting

that the plot therein was privately owned, accessible

by a PWD road, situated outside the boundaries of

Visva-Bharati, and not located on “khoai” land. The

relevant extracts from the said report and affidavit

are reproduced hereinbelow for ready reference: -

“Report of District Magistrate It also appears from the said report that sanction for existing single storied building was given by the Sriniketan Santiniketan Development Authority vide memo no SSDA/707/13/B-5/157/74/92 dated 07/07/1992 and no sanction for the said double storied residential building was accorded by S.S.D.A. it is mentioned in the report that double storied building might have been constructed before inception of S.S.D.A on 14th December, 1989. The said plot is not of ‘KHOAI’ nature and is marked as residential area in the Land Use and Development Control Plan prepared by S.S.D.A.

61 C.A. NO(S). 2920/2018 & connected matters Report as submitted by Executive Officer, Sriniketan Santiniketan Development Authority along with enclosures are annexed herewith.

Affidavit of Visva-Bharati University

6. The house has been constructed on a private plot. The plot is not owned by Visva Bharati. No construction or extension activity is going on in this building. The house is outside the boundary of Visva Bharati and not on khoai land.

7. However, the house can be accessed from PWD road through the Visva Bharati premises only on Shyambati side, as also from the Siksha Bhavana side. Earlier Visa Bharati did not have a boundary wall and the old inhabitants used to access their houses through the PWD road within the Visva Bharati Campus. At present Visva Bharati has started constructing a boundary wall, all around the campus and has been car-marking one a two PWD to roads to provide access to the house in these localities.

8. The building is located within a few meters of the fencing of the Ballavpur Wildlife Sanctuary as well as Visva Bharati premises.” [Emphasis supplied]

These admissions and findings lend support to the

contention that the subject plot owned by Aarsuday

Projects, being similarly situated and adjacent the

said land, could not have been treated as “khoai” land

in absence of credible and unimpeachable material,

the burden of establishing which rested squarely

62 C.A. NO(S). 2920/2018 & connected matters upon the writ petitioners (respondent Nos. 1-7

herein).

33. Furthermore, in response to an application

made under the Right to Information Act, 2005, the

Panchayat Samiti replied vide communication dated

16th April, 2015, that it became competent to accord

permission for grant of building construction only in

the year 2006. However, the first such construction

permission was granted by the Panchayat Samiti only

on 5th March, 2012. It was further clarified that, prior

thereto, permissions for construction were being

routinely accorded by the Gram Panchayat. The said

response lends support to the submission of the

Aarsuday Projects that, during the relevant period

when Aarsuday Projects initiated the construction on

the subject plot, the practice of granting permissions

through the Gram Panchayat, with vetting by the

Zilla Parishad as and when required, was being

63 C.A. NO(S). 2920/2018 & connected matters consistently followed. Consequently, the approval by

the Ruppur Gram Panchayat to the building plan on

5th November, 2011 cannot be faulted and outrightly

rejected.

34. Even if it is assumed, arguendo, that there was

any infirmity in the timing or manner of conversion

of the subject plot from “danga” to “bastu”, such

infirmity could not have the effect of invalidating the

entire construction raised by Aarsuday Projects. At

best, such an infirmity would warrant regulatory

scrutiny or corrective measures in accordance with

law. It would not, however, justify the extreme

consequence of demolition of a completed structure,

particularly when the land was earmarked for

“residential use” as per the Land Use and

Development Control Plan, 2002 and the conversion

was subsequently approved by the competent

authority and no statutory provision mandated

64 C.A. NO(S). 2920/2018 & connected matters demolition as an automatic or inevitable

consequence of such a defect.

35. The classification of land as “danga” or “bastu”

is essentially a revenue classification, and in the

absence of a specific statutory prohibition, the mere

fact that conversion was granted subsequent to the

approval of the building plan could not, by itself,

render the construction raised by Aarsuday Projects,

illegal. The omission to address this issue is of

relevance, particularly when the land was otherwise

earmarked for “residential use” under the notified

Land Use and Development Control Plan, 2002.

36. Likewise, even if it is assumed that the Gram

Panchayat was not the competent authority to accord

approval to the building plan and that such authority

vested exclusively in the Panchayat Samiti, the same

would constitute, at best, a procedural irregularity.

Such an irregularity, especially where the building

65 C.A. NO(S). 2920/2018 & connected matters plan had been duly vetted by the higher forum, i.e.,

the Zilla Parishad and construction was undertaken

in a bona fide manner, was clearly curable in nature.

In the absence of any tangible evidence of fraud,

misrepresentation, or deliberate circumvention of

statutory requirements, such a procedural lapse,

even if assumed to exist, for arguments sake, could

not render the construction per se illegal, nor could

it justify the issuance of a direction for demolition,

which is an extremely draconian consequence

reserved for cases of blatant and substantive

illegalities and violation.

37. Another aspect which merits consideration is

that the Sub-Committee constituted by the SSDA,

which comprised of the representatives of the Visva-

Bharati Anchal Abasik Samiti and Visva-Bharati

University, was actively involved in examining the

application seeking conversion of the subject plot

66 C.A. NO(S). 2920/2018 & connected matters from “danga” to “bastu”. Upon inspection, the Sub-

Committee submitted its report dated 8th February,

2012, wherein it specifically recorded that there was

no impediment to the grant of a “No Objection

Certificate” or to the conversion of the land for

residential purposes. The absence of any objection at

this stage, particularly from representatives

associated with Visva-Bharati, assumes significance,

as it reinforces the bona fide manner in which

Aarsuday Projects proceeded with the construction

and detracts from the premise that the construction

was undertaken in disregard of environmental

considerations or institutional sensitivities.

38. At this stage, it would also be apposite to note

some developments subsequent to the events in

question. On 25th September, 2019, the Central

Government issued Notification No. S.O. 3527 (E)

providing for demarcation of Eco-Sensitive Zones

67 C.A. NO(S). 2920/2018 & connected matters around the Ballavpur Wildlife Sanctuary and

preparation of Zonal Master Plans, wherein it was

expressly provided that no alteration or restriction

would be made in respect of existing infrastructure.

Additionally, in response to a query raised by

Aarsuday Projects, the SSDA, by a letter dated 9th

February, 2025, informed that the subject plot had

been marked as “Retail Commercial & Business” in

the ‘Land Use Map’ of the proposed Land Use and

Development Control Plan prepared in the year 2017.

The said communication also referred to the

declaration of the Eco-Sensitive Zone adjoining the

protected forest area and clarified that no new

permanent structures would be permitted within the

Eco-Sensitive Zone.

39. In the aforesaid factual backdrop, it is evident

that Aarsuday Projects undertook and completed the

construction after securing the requisite permissions

68 C.A. NO(S). 2920/2018 & connected matters and sanctions from the competent authorities and

exercising jurisdiction at the relevant point in time.

The building plan was duly vetted by the Zilla

Parishad and thereafter treated as approved by the

Ruppur Gram Panchayat. The clarification furnished

in response to the application made under the Right

to Information Act, 2005, on 16th April, 2015, further

establishes that, during the relevant period, the

Gram Panchayat was exercising the authority to

accord building permissions, with vetting by the Zilla

Parishad, wherever required. The SSDA and its duly

constituted Sub-Committee examined in detail and

accorded approval to the application filed by

Aarsuday Projects for conversion of the land from

“danga” to “bastu”. This action was subsequently

confirmed by the competent revenue authority,

namely, the DL&LRO, Birbhum. Significantly, there

was no contemporaneous material on record

69 C.A. NO(S). 2920/2018 & connected matters establishing that the subject plot was in the nature

of “khoai” land. On the contrary, the report submitted

by the District Magistrate and the affidavit filed by

Visva-Bharati University in a separate writ petition

being Writ Petition No. 34241(W) of 2013, concerning

the plot adjacent to the subject plot, categorically

indicated that the land in the vicinity was not “khoai”

and was recorded and treated as residential land. In

these circumstances, no mala fides or deliberate

mischief or wrongdoing can be attributed to the

actions of Aarsuday Projects in undertaking and

completing the disputed construction.

d. Assessment of the High Court’s Approach on the Nature of the Land and Regulatory Permissions

40. The thrust of the impugned judgment of the

High Court is essentially twofold. First, the High

Court proceeded on the premise that the land on

which the disputed construction was raised, was

70 C.A. NO(S). 2920/2018 & connected matters “khoai” land deserving preservation, drawing heavily

from the judgment of this Court in Sushanta Tagore

(supra) and with references to the writings of the

Nobel Laureate, Shri Rabindranath Tagore, wherein

“khoai” was described as a unique natural formation

of aesthetic and visual significance, frequented by

visitors to Santiniketan and serving as a source of

artistic inspiration. Second, the High Court held that

the construction was undertaken without obtaining

due permission from the competent authority and

prior to the grant of conversion of the land use by the

SSDA and thus, the entire construction was illegal

and liable to demolition.

41. However, upon a careful reading of the

impugned judgment, we find no discussion or finding

with respect to the fact that the subject plot on which

the disputed construction was raised by Aarsuday

Projects was privately owned land, nor is there any

71 C.A. NO(S). 2920/2018 & connected matters consideration of the fact that the larger tract of land

of which the subject plot forms a part had already

witnessed substantial human settlement. The

judgment is also conspicuously silent on the crucial

aspect that plots adjoining the subject plot had

already been utilised for construction of residential

buildings much prior to the disputed construction. In

order to demonstrate this apparent anomaly, it would

be apposite to extract and reproduce the site plan of

larger tract of land admeasuring 28.12 acres bearing

reference to existing construction. These documents

are being extracted infra (see, Page No. 84-85). The

omission to advert to these vital aspects assumes

considerable significance, particularly in view of the

constitutional protection of the right to property

guaranteed under Article 300A of the Constitution of

India, which unequivocally provides that “no person

shall be deprived of his property save by

72 C.A. NO(S). 2920/2018 & connected matters authority of law”. Any interference with privately

owned property, including by way of demolition or

deprivation of its beneficial use, must therefore rest

on a clear statutory foundation and be preceded by

due consideration of all relevant factual and legal

circumstances, which exercise, appears not to have

been undertaken in the present case.

42. It is also evident that the writ petitioners

(respondent Nos. 1-7) before the High Court did not

place on record any contemporaneous documentary

evidence or admissible material to establish that the

disputed construction was, in fact, raised on “khoai”

land. The assertion of the writ petitioners (respondent

Nos. 1-7) that the entire tract of land was of “khoai”

nature appears to have been premised on a broad

and generalized assumption drawn from the

judgment of this Court in Sushanta Tagore (supra),

without any site-specific evidence. The High Court, in

73 C.A. NO(S). 2920/2018 & connected matters turn, appears to have proceeded on the same

assumptions.

43. The absence of reliable and contemporaneous

material conclusively establishing the nature of the

subject plot is further evident from the fact that the

High Court itself deemed it necessary to call for

reports from the District Magistrate and the WBPCB

to ascertain whether the land on which the disputed

construction stood was, in fact, “khoai” land. This

fact, in itself, indicates that the question regarding

the nature of the land was not free from doubt and

involved seriously disputed questions of facts

emanating from the material placed before the High

Court at the threshold. Thus, we feel that the writ

petition ought not to have been entertained.

44. That threshold having been crossed, it becomes

necessary for this Court to closely examine these two

reports, both to assess their evidentiary value and to

74 C.A. NO(S). 2920/2018 & connected matters determine whether they furnish credible and cogent

material sufficient to sustain and affirm the

conclusion that the subject plot was of “khoai”

nature, so as to justify the directions issued by the

High Court.

45. Relevant extracts from the report of the District

Magistrate are reproduced hereinbelow: -

“2. Aarsuday Projects & Infrastructure Pvt. Ltd. having address at 26, Lake Avenue, Kolkata 700 026 has dubiously sought for sanction of plan & permission of construction from the Pradhan, Ruppur Gram Panchayat. As per proviso (7) for Rule 28 of the Amendment to Control of Building operations vide NO.4163/PN/O/I/3R-7/04, dated 9th of August, 2006 for Construction of Building Structure in Panchayat Areas under Development Authority. Panchayat Samity is the appropriate authority to sanction such plan but not the Gram Panchayat (copy enclosed as Annexure I). In this case, Aarsuday Projects & Infrastructure Pvt. Ltd.

managed to get sanction of plan from Ruppur Gram Panchayat which has no authority to sanction building plan and give permission for construction (copy enclosed as Annexure II).

3. Executive Officer, SSDA through his office Memo NO.SSDA/35/B-2/2012 dated 28/02/2012 has given No Objection Certificate to Director, Aarsuday Projects & Infrastructure Pvt. Ltd. for conversion of land in question from Danga to Bastu (copy enclosed as Annexure III) and subsequently DLLRO, Birbhum has given permission for Conversion under sub-

75 C.A. NO(S). 2920/2018 & connected matters section 2(c) of Section 4C of WBLR Act 1955 on 09/01/2013 (copy enclosed as Annexure IV).

4. It appears that Pradhan, Ruppur Gram Panchayat issued Sanction to Aarsuday Projects & Infrastructure Pvt. Ltd. on 05/11/2011 i.e. much before No Objection Certificate issued by Executive Officer, SSDA and permission for conversion of land issued by DLLRO, Birbhum.

5. Aarsuday Projects & Infrastructure Pvt. Ltd. applied to Ruppur Gram Panchayat for construction of III storied building but from the field verification it appears that one extra floor has been added using the natural undulating topography of khoai land. From the front view it appears as III storied building but from back view it can be seen as IV storied building. Photographs of building are enclosed as Annexure-V. Hence the construction of commercial housing complex by Aarsuday Projects & Infrastructure Pvt. Ltd. is unauthorised and illegal.

6. It appears that Aarsuday Projects & Infrastructure Pvt. Ltd. constructed commercial housing complex in Mouza Ballavpur in Ruppur Gram Panchayat of Bolopur P.S. illegally without valid sanction and permission from the appropriate authority and SSDA has not taken appropriate action to stop illegal construction.

7. Clarification has been sought from the Executive Officer, SSDA by the undersigned vide memo No.833/1/XXI/Dev. Dated 09/07/2013 regarding the basis of issuance of No Objection Certificate to Aarsuday Projects & Infrastructure Pvt. Ltd. for illegal conversion of land from Danga to Bastu and direction was given for initiation of legal action against those persons who violated the law. (copy enclosed as Annexure VI).”

Observations: A careful perusal of the aforesaid

report of the District Magistrate indicates that, while

it levels serious allegations against the developer, i.e.,

76 C.A. NO(S). 2920/2018 & connected matters Aarsuday Projects as well as against the officers of

the Gram Panchayat and the SSDA in relation to the

grant of permissions and conversion of land, the

report does not refer to any contemporaneous site

inspection by a Geologist or other scientific expert or

to any objective assessment based on reference to

revenue, planning, or land records to substantiate

the conclusion that the subject plot itself was in the

nature of “khoai” land. The observations regarding

utilization of natural undulating topography are not

supported by any technical survey, demarcation, or

documentary evidence identifying the subject plot as

“khoai”. In the absence of such material evidence, the

report could not furnish a reliable basis for

concluding that the disputed construction raised by

Aarsuday Projects was on “khoai” land.

77 C.A. NO(S). 2920/2018 & connected matters

46. Relevant extracts from the report of the West

Bengal Pollution Control Board (WBPCB) are

reproduced hereinbelow: -

“Observations:

• The construction site in concern is situated at a distance of about seventy meters on the southern side of the boundary wall of the Ballavpur Wild Life Sanctuary (locally known as ‘Deer Park’). During inspection it was observed that construction of boundary wall as well as basic construction of a four storied building has been completed. Masonry activities were in progress during inspection. No responsible representative of the concerned construction company was available at the site to deliver relevant information to the inspecting officials. • The adjacent area of the alleged site is low lying area formed by partial erosion of laterite soil and colloquially known as “khoai”. Number of privately owned houses has come up in the near vicinity of the site in concern on the northern side (away from the sanctuary). Considerable human settlement has already come up in the near neighbourhood of the sanctuary.

• The inspecting officials were informed by the SSDA authority that the alleged construction company has not obtained any permission from SSDA for its construction activity; further the executive officer informed that a letter of denial was issued in 2010 to the concerned company by SSDA.

• It was known from the SDLLR office that as per the classification of lands of L&LR Department no classification named “khoai” exists.

78 C.A. NO(S). 2920/2018 & connected matters • Birbhum Zilla Parishad issued approval of building plan to the alleged company for their construction work on the site in concern in 2011. • The Forest Range Officer of Bolopur range informed the inspecting officers that the concerned company has not taken any permission from them for their construction activity.

Comments:

• For construction activities projects having total built up area more than 20000 square meter needs to obtain prior environmental clearance from the State Environmental Impact Assessment Authority (SEIAA) as per the Environmental Impact Assessment Notification of the Ministry of Environment and Forests, Government of India dated 14th September, 2006 and its amendments made thereafter. • Physical observation suggests that the area of concern is very sensitive from ecological point of view. Indiscriminate construction activities and consequent development of human settlement may affect the ecological balance of the area. In fact this possibility has been explicitly expressed in the judgment of the Hon’ble Supreme Court. Also the municipal solid waste and effluent generated from the habitation in this eco- sensitive area may create additional problems.”

Observations: A careful perusal of the report of the

WBPCB indicates that it does not record any finding

to the effect that the subject plot on which the

disputed construction was raised was itself “khoai”

land. The report merely notes that the adjacent area

79 C.A. NO(S). 2920/2018 & connected matters to the site is a low-lying tract formed by partial

erosion of laterite soil and colloquially referred to as

“khoai”, while at the same time acknowledging that,

as per the classifications of land maintained by the

Land & Land Reforms Department, no category of

land described as “khoai” exists in the revenue

records. The report further records that a number of

privately owned houses had already come up in the

vicinity and that substantial human settlement

existed in the surrounding area. Importantly, the

report clarifies that prior environmental clearance

from the State Environmental Impact Assessment

Authority is required only for construction projects

having a total built-up area exceeding 20,000 square

metres in terms of the Environmental Impact

Assessment Notification and its subsequent

amendments, a threshold which was not crossed by

the disputed construction made by Aarsuday projects

80 C.A. NO(S). 2920/2018 & connected matters on the subject plot. It is also pertinent to note that

the WBPCB was not the authority vested with the

jurisdiction to render a definitive opinion on the

nature or classification of land, and any observations

made by it in this regard can, at best, be of a general

or incidental nature and cannot be treated as

conclusive or determinative of the character of the

subject plot.

47. Upon an overall consideration of the material

placed on record, including the reports of the District

Magistrate and the WBPCB, on which the impugned

judgment heavily relies, it becomes evident that

neither of the aforesaid reports furnishes any clear,

contemporaneous, or objective material establishing

that the subject plot on which the disputed

construction was raised was itself “khoai” land or

that construction was totally impermissible

thereupon. While both reports advert to emphasized

81 C.A. NO(S). 2920/2018 & connected matters concerns regarding environmental sensitivity and

procedural irregularities, they stop short of

identifying the subject plot as falling within any

preserved or prohibited category of land, and in fact

acknowledge that no classification of land described

as “khoai” exists in the revenue records. The

WBPCB’s report, in particular, confines its

observations to the nature of the adjacent area and

clarifies that the subject construction did not attract

the requirement of prior environmental clearance

under the applicable statutory regime. The District

Magistrate’s report is based merely on conjectures

and surmises and was submitted without the

concerned official even bothering to undertake a

proper site inspection or getting a spot verification

done through an expert. Hence, in the absence of

reliable scientific material establishing the “khoai”

character of the subject plot, the foundational

82 C.A. NO(S). 2920/2018 & connected matters premise on which the High Court proceeded to issue

the directions cannot be said to be conclusively borne

out from the record.

e. Bona Fides of the Writ Petitioners (Respondent Nos. 1-7) and Burden of Proof in Public Interest Litigation

48. Since the public interest litigation targeted

construction on a single plot forming part of a larger

tract admeasuring approximately 28.12 acres, it

becomes necessary to examine the location of the

subject plot in its proper spatial and factual context.

For this purpose, reference may be made to the

layout plan of the entire tract of land, placed on

record which presents a comparative visualization of

the position of the plot owned by Aarsuday Projects

vis-à-vis other plots comprised within the same

parcel. For the sake of ready reference, the said

layout plan, along with a chart detailing the

ownership particulars, is reproduced hereinbelow: -

83

C.A. NO(S). 2920/2018 & connected matters 84 C.A. NO(S). 2920/2018 & connected matters 85 C.A. NO(S). 2920/2018 & connected matters

49. A perusal of the ownership details reflected in

the aforesaid layout plan reveals that residential

houses belonging to certain writ petitioners

(respondents herein) themselves, including

Respondent No. 2-Mohan Singh (House No. 2);

Respondent No. 3-Prasanta Sahu (House No. 27) and

Respondent No. 4-Bulbul Basu (House No. 56), are

situated within this very tract of land. It is also not in

dispute that, on the date when approval for

construction was granted and the conversion order in

respect of the subject plot was issued, there was no

contemporaneous document or credible material on

record establishing that the subject plot was in the

nature “khoai” land. The situation remains the same

even today.

50. As a matter of fact, even the reports submitted

pursuant to the directions of the High Court,

including those of the District Magistrate and the

86 C.A. NO(S). 2920/2018 & connected matters WBPCB, do not specifically identify the subject plot

as “khoai” land. On the contrary, a pertinent finding

emerging from the survey material collected by

WBPCB is that “khoai” formations were noticed on

the land adjacent to the subject plot on which

Aarsuday Projects has raised the disputed

construction. This finding assumes significance, as it

clearly negates the assumption that the subject plot

itself was of “khoai” nature.

51. During the course of hearing, learned counsel

representing Aarsuday Projects placed on record

photographs depicting the disputed

construction/building and the adjoining structures.

The said photographs, which deserve reference in the

judgment are superimposed hereinbelow: -

87

C.A. NO(S). 2920/2018 & connected matters A perusal of the photographs clearly shows that pre-

existing residential structures stood directly opposite

the disputed construction/building, separated

merely by a road, and were also located within the

same larger tract of land. It is difficult to perceive that

“khoai” indentations could solely and exclusively

exist on the single plot of land owned by Aarsuday

88 C.A. NO(S). 2920/2018 & connected matters Projects, while the nature of the land on which the

adjoining and opposite constructions stood

unremarkable. The omission to question the validity

of these constructions before the writ court, despite

them being located within the same parcel of land,

raises a serious doubt as to the bona fides of the writ

petitioners (respondent Nos. 1-7 herein) and lends

credence to the contention that the writ petition

selectively targeted the newly raised construction of

Aarsuday Projects.

52. Equally significant is the principle governing the

exercise of jurisdiction in public interest litigation

(PIL). While writ jurisdiction serves an important

constitutional purpose, the burden squarely lies on

the writ petitioners to place clear, cogent, and reliable

material on record in support of the allegations made.

Courts exercising writ jurisdiction must remain

circumspect while entertaining petitions that hinge

89 C.A. NO(S). 2920/2018 & connected matters upon disputed questions of fact, particularly where

such disputes require detailed examination of

evidence or adjudication of rival factual claims.

Public interest litigation cannot be permitted to

become a vehicle for selective or targeted challenges,

nor can it be invoked to resolve contested factual

issues which are not capable of determination on

affidavits alone.

53. Reference in this regard may be made to the

decisions of this Court in Chairman, Grid

Corporation of Orissa Ltd. (GRIDCO) v. Sukamani

Das7 and Shubhas Jain v. Rajeshwari Shivam8.

54. Applying the aforesaid principles to the case at

hand, it becomes evident that, in the absence of

unimpeachable material conclusively establishing

the “khoai” character of the subject plot, the High

7 (1999) 7 SCC 298.

8 (2021) 20 SCC 454.

90 C.A. NO(S). 2920/2018 & connected matters Court ought to have exercised greater restraint in

invoking its writ jurisdiction to grant far-reaching

reliefs on the basis of assumptions or inferential

reasoning.

55. Viewed cumulatively, the material placed on

record does not support the foundational

assumptions on which the writ petition proceeded. In

the absence of clear, specific, and contemporaneous

scientific evidence establishing that the subject plot

was of “khoai” nature, the invocation of public

interest jurisdiction to assail the construction

undertaken by Aarsuday Projects cannot be

sustained, particularly where similarly situated

constructions within the same tract of land were left

unchallenged.

IX. CONCLUSION

56. As an upshot of the foregoing discussion and for

the reasons recorded hereinabove, the judgment and

91 C.A. NO(S). 2920/2018 & connected matters order dated 21st & 22nd August, 2013 passed by the

Division Bench of the High Court at Calcutta in Writ

Petition No. 8341(W) of 2012 does not stand to

scrutiny and deserves to be set aside.

57. Hence, the instant appeals are decided in the

following terms:

• Civil Appeal No. 2920 of 2018, preferred by

Aarsuday Projects, the developer of the subject

plot, is allowed and the judgment and order dated

21st & 22nd August, 2013 passed by the Division

Bench of the High Court is hereby set aside.

• Civil Appeal No. 2921 of 2018, preferred by the

Sriniketan Santiniketan Development Authority

(SSDA) challenging the adverse observations made

against it and its officers, as well as the

consequential directions for initiation of

92 C.A. NO(S). 2920/2018 & connected matters proceedings, is allowed in view of the findings

recorded in Civil Appeal No. 2920 of 2018

preferred by Aarsuday Projects and the

subsequent actions taken by the SSDA. The

adverse remarks and consequential directions

issued against the SSDA and its officers in the

impugned judgment shall, accordingly, stand

expunged.

• Civil Appeal Nos. 2922-2923 of 2018, preferred

by the subsequent purchasers of flats constructed

by Aarsuday Projects on the subject plot, are

disposed of in terms of the judgment rendered in

Civil Appeal No. 2920 of 2018.

58. In the course of the discussion made

hereinabove, we have found that the writ petition

instituted before the High Court lacked bona fides,

inasmuch as certain among respondent Nos. 1-7

93 C.A. NO(S). 2920/2018 & connected matters (writ petitioners before the High Court) admittedly

had existing residential structures in the immediate

vicinity and within the same tract of land as the

disputed construction raised by Aarsuday Projects.

The said material fact was not disclosed while

invoking the extraordinary jurisdiction of the High

Court by way of public interest litigation. In view

thereof, we deem it appropriate to impose costs

quantified at Rs.1,00,000/- (Rupees One Lakhs only)

to be paid by the writ petitioners, i.e., respondent

Nos. 1-7 in Civil Appeal No. 2920 of 2018. The said

amount shall be deposited with the West Bengal

Legal Services Authority within a period of two

months from today. Proof of such deposit shall be

filed before the Registry of this Court within two

weeks thereafter.

94 C.A. NO(S). 2920/2018 & connected matters

59. Pending application(s), if any, shall stand

disposed of.

….……………………J. (VIKRAM NATH)

...…………………….J. (SANDEEP MEHTA) NEW DELHI;

JANUARY 29, 2026.

95 C.A. NO(S). 2920/2018 & connected matters