Calcutta High Court (Appellete Side)
Society Ltd. (Dechsl) And Another vs The State Of West Bengal And Others on 21 January, 2025
Author: Kausik Chanda
Bench: Kausik Chanda
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Kausik Chanda
W.P.A. No.15851 of 2024
With
I.A. No. C.A.N. 1 of 2024
THE DURGAPUR EX-SERVICEMEN'S CO-OPERATIVE HOUSING
SOCIETY LTD. (DECHSL) AND ANOTHER
-VERSUS-
THE STATE OF WEST BENGAL AND OTHERS
For the petitioners : Mr. Tanmoy Mukherjee, Adv.,
Ms. Debanwita Pramanik, Adv.,
Mr. K. Raihan Ahmed, Adv.
For DMC : Mr. Sandipan Banerjee, Adv.,
Mr. Arijeet Bhattacharjee, Adv.,
Ms. Utsa Dutta, Adv.
[
For ADDA : Mr. Sharanya Chatterjee, Adv.,
Mr. A. Ghosh, Adv.
For Special Officer : Mr. Ankit Surekha, Adv.,
Mr. Biplab Das, Adv.
For Co-operative Election : Mr. Srijan Nayak, Adv.,
Commission.
Ms. Rituparna Maitra, Adv.
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For the State : Mr. K. J. Yusuf, Adv.,
Mr. Saurav Chaudhuri, Adv.
For Respondent No.6 : Mr. Saheb Banerjee, Adv.
Hearing concluded on : 16.01.2025
Judgment on : 21.01.2025
Kausik Chanda, J.:-
Interestingly, although the controversy raised in this writ petition
concerns whether the West Bengal Town and Country (Planning and
Development) Act, 1979 (in short 'Act of 1979') or the West Bengal
Municipal Corporation Act, 2006, should prevail when an unauthorised
construction falls within the jurisdiction of both Acts, this issue has never
been explicitly argued or addressed by the parties at any point. This writ
petition is preceded by a series of litigations with a complex history. Before
addressing the issue, it is necessary to consider the background facts that
led to the filing of this writ petition.
2. A land measuring about 28.25 acres at Amarabti Defence Colony,
Durgapur was leased out for the construction of a residential building for
the petitioners. The relevant land is situated within the concurrent
3
jurisdiction of Asansol Durgapur Development Authority (in short, 'ADDA')
and Durgapur Municipal Corporation (in short, 'DMC'). Later, a master
plan for utilisation of the land was approved by ADDA in the year 1992,
where 18.19 acres was earmarked for residential purposes and the rest
area was proposed for shopping centre, office, parks, playground, school
and community centre, etc.
3. Respondent no. 6 who claims to be a member of the Society filed
WPA 1024 of 2024 before this Court alleging unauthorised construction by
the petitioners.
4. It was alleged that the petitioners engaged in construction of some
godowns and garages for utilisation of a part of the land without any
intimation or prior permission of ADDA, violating the relevant clause of the
lease deed.
5. The said writ petition was disposed of by a learned Single Judge of
this Court on May 25, 2021, directing ADDA to conclude the proceedings
related to unauthorised construction in accordance with law. It was further
observed that the order should not prevent DMC from proceeding against
the society or any person for violation of any statue.
6. The petitioners, thereafter, filed an application before DMC for post-
facto approval for the construction of a boundary wall including the
garages/godowns by a letter dated October 2, 2021.
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7. The Commissioner of DMC, thereafter, informed the Chief Executive
Officer of ADDA by a communication dated October 8, 2021, that an
application for regularisation of post-facto approval has been submitted by
the petitioners. ADDA by a letter dated April 28, 2023, addressed to the
Department of Urban Development & Municipal Affairs (in short, 'UDMA')
disclosed that the Secretary, Durgapur Ex-Servicemen's Co-operative
Society submitted a proposal for (i) approval for revised Master Plan, (ii)
Permission for the construction of Sainik Bhawan for Welfare of Ex-
Servicemen (iii) Amendment of lease deed from "Residential to Residential
cum Commercial" and requested UDMA for approval of the revised master
plan and amendment of lease deed from "Residential to Residential cum
Commercial" upon realisation of prescribed charges.
8. Thereafter, the commissioner of DMC by a communication dated
August 24, 2022, directed the petitioners to self-demolish the unauthorised
construction.
9. Challenging the said self-demolition order dated August 24, 2022,
the petitioners filed WPA 20916/2022 before this Court, which was
disposed of by a learned single Judge of this Court by an order dated
September 15, 2022, directing the Commissioner, DMC to take a decision
with regard to the application made by the petitioners for grant of post-
facto approval of the construction made by the petitioners, in accordance
with law.
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10. Respondent no. 6, however, filed WPA 28017/2022 (Binoy Majumder
vs. The State of West Bengal & Ors.) for implementation of the said self
demolition order dated August 24, 2022. In the said writ petition, an
interim order was passed on June 21, 2023, the relevant segment of the
order is quoted below:
"It appears that the department of Urban
Development and the ADDA are required to act in
tandem for taking a decision with regard to the
revision of the master plan.
The aforesaid departments are hereby directed to
take necessary steps in the matter, after giving a 3
reasonable opportunity of hearing to all the
necessary parties. A decision shall be taken at the
earliest but positively within eight weeks from the
date of communication of this order.
Let the writ petition be listed once again for
consideration on September 20, 2023 marked "For
Orders".
11. In compliance with the said order dated June 21, 2023, UDMA,
called for a hearing of the parties and by an order dated August 17, 2023,
disposed of the matter with the following observations:
"9. ....
b. A prayer under Section 53(3) of West Bengal
Town and Country (Planning and Development) Act,
1979 is applicable only when a notice under Section
53(1) of the said Act, 1979 has been served upon.
Hence the prayer of the Durgapur Ex-servicemen's
Cooperative Housing Society Limited under Section
53(3) of the said Act of 1979 made before Asansol
Durgapur Development Authority against the notice
issued by Durgapur Municipal Corporation is not
tenable in the eyes of law.
c. ...
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From the above provisions of West Bengal Municipal
Corporation Act, 2006 it appears that Durgapur
Municipal Corporation has the authority to deal with
the issue of inspection and taking appropriate
action following due process of law with regard to
alleged unauthorized construction.
d. Master Plan for utilisation of the land allotted in
favour of Durgapur Ex-Servicemen's Co-Operative
Housing Colony Society Ltd. was approved by the
Office of Asansol Durgapur Development Authority
on 23.05.1992. State Government does neither give
approval of any Master Plan nor gives approval for
amendment of any Master Plan.
In view of the above, it is hereby concluded
that -
i. Durgapur Municipal Corporation is hereby
directed to act in accordance with extant statutory
provisions of West Bengal Municipal Corporation
Act, 2006, Government Notifications, rules etc with
regard to unauthorized construction subject to order
of Hon'ble High Court, if any.
ii. There is no legal provision for approval of Master
Plan for each and every lessee or its amendment by
State Government. State Government approves
Land Use Map and Land Register (LUMR) under
Section 28 of the said Act of 1979 and Land Use
and Development Control Plan (LUDCP) under
Section 44 of the said Act of 1979 Therefore,
Asansol Durgapur Development Authority is also
directed to take appropriate action as per provisions
laid down in West Bengal Town and Country
(Planning and Development) Act, 1979."
12. Thereafter WPA 28017/2022 was disposed of on September 20,
2023, with the following observations by the learned single Judge.
"The Asansol Durgapur Development Authority is
directed to take steps in accordance with the
direction passed by the Urban Development &
Municipal Affairs Department.
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The Durgapur Municipal Corporation and ADDA are
directed to act in accordance with the direction
passed by the Department at the earliest but
positively within a period of eight weeks from the
date of communication of this order.
The writ petition stands disposed of."
13. In compliance with the said order dated September 20, 2023, ADDA
took up the matter for hearing and after giving due notice to all concerned
and passed the following orders on November 21, 2023.
"It is clear from the above observation made by the
Department of U.D. & M.A. that the applications of
the Co-operative society before ADDA, in effect
seeking post fact approval of the constructions
already raised, are not tenable and accordingly
nothing remains for the ADDA to decide in respect of
those applications as far the approval for structures
already raised is concerned.
It is hereby made clear that there will be no revision
in the Master Plan, save and except the fact that
any prayer seeking permission, if made, will be
considered in future in accordance with the
provisions, which would commensurate with the
guidelines framed by the Department of U.D. &
M.A., State of West Bengal vide para (ii) page-5 of
the Reasoned Order dated 16/17-08-2023 passed
by the aforesaid Department."
14. Thereafter, the Corporation again revived the original order of
demolition dated August 24, 2022, with a subsequent order dated January
18, 2024.
15. Challenging the said order, the writ petitioners again filed WPA 9212
of 2024 (Durgapur Ex-Servicemen's Co-operative Housing Society Limited &
Anr. Vs. The State of West Bengal & Ors.).
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16. The learned Single Judge duly considered the orders passed by
UDMA, dated August 17, 2023, as well as the order dated November 21,
2023, passed by ADDA, and dismissed the writ petition on April 10, 2024.
The relevant part of the said judgment is quoted below:
" .....
Upon hearing the submission made on behalf of
all the parties, it appears that, admittedly, there is
no provision in law for regularizing the constructions
already made or to grant post facto approval of the
constructions made.
There is already a Master Plan according to
which the constructions were raised. No further
addition, alteration could have been made in the
said place without approval or sanction from the
competent authority. In fact, there is hardly any
scope for revision of the Master Plan.
......
In the instant case, the
garages/warehouse/store rooms have been
constructed. It hardly matters whether there is a
pucca roof over the said construction. In the absence
of any legal provision relying upon which the post
facto approval can be sanctioned, the court does not
find any error with the order passed by the
Commissioner of the Corporation.
……”
17. The petitioners preferred an appeal, MAT 782/2024, against the
order which was dismissed by the Division Bench of this Court on April 29,
2024, with the following observation:
“……
We have considered the rival contentions of the
parties. We are of the view that the learned Single
Judge has not committed any error in passing the
9order impugned. Reckless people, who raise
constructions without obtaining prior permission
from the Competent Authority, deserve no
indulgence from Court and in particular, a Court of
equity, which the Writ Court is. It is not in dispute
that the impugned constructions in the present case
are not supported by any sanctioned plan. No
sympathy should be shown to people who indulge
in such illegal activities.
……”
18. The petitioners have filed this writ petition after the dismissal order
dated April 29, 2024, challenging the order of UDMA dated August 17,
2023, and the order dated November 21, 2023, passed by ADDA.
19. It has been submitted by the learned advocate appearing for the
petitioners that the prayer for regularisation of the unauthorised
construction was never considered by any of the authorities on merit and
unless such prayer is considered on merit, the demolition order passed by
DMC should not be implemented.
20. On behalf of ADDA, it has been submitted that it is bound by the
direction of UDMA, which has categorically observed that the construction
in question cannot be regularised in terms of Section 53 of the Act of 1979.
Therefore, ADDA could not consider the said application on merit.
21. Learned advocate appearing for DMC, on the other hand,
acknowledges the primacy of ADDA in a ‘township’ within the jurisdiction of
the Development Authority under the Act of 1979. He submits that in the
present case, DMC forwarded the prayer for post-facto approval of ADDA.
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Subsequently, ADDA declined to regularise the unauthorised construction.
Therefore, DMC has passed the order of demolition. He also acknowledges
that in a township area, the Corporation follows the order passed by ADDA.
22. In the present case, since there was no approval accorded by ADDA
with regard the alleged unauthorised constructions, DMC, consequently,
has issued the demolition order.
23. Learned advocate appearing for respondent no. 6, on the other hand,
submits that the order of demolition passed by DMC has been upheld by
the learned single Judge. The order of the learned single Judge has been
affirmed by the Division Bench. Therefore, in this writ petition, no order
can be passed for regularisation of the alleged unauthorised construction.
He places reliance upon a judgment passed by the Supreme Court in 2024
SCC OnLine SC 3767 (Rajendra Kumar Barjatya v. U.P. Avas Evan
Vikas Parishad) dated December 17, 2024, and submits that an
unauthorised construction can never be regularised.
24. After hearing the parties, I am of the view that DMC should not
implement the demolition order unless and until the prayer for
regularisation is considered by ADDA in accordance with law. It is essential
to quote Section 53 of the Act of 1979.
“53. Notice regarding unauthorised
development or use otherwise than in
conformity with the [Land Use and
Development Control Plan.] — (1) Where any
development of land has been or is being carried
out as mentioned in section 52, the Planning
11Authority or the Development Authority shall serve
on the owner a notice requiring him, within a
period of one month after the service of the notice,
to take such steps as may be specified in the
notice, which shall be–
(a) in cases specified in clauses (a), (c) or (e)
of sub-section (1) of section 52 to restore the
land to its condition before the said
development took place;
(b) in a case specified in clause (b) of sub-
section (1) of section 52 to pay the
development charge and such penalty, if
any, as may be prescribed;
(c) in cases specified in clauses (d) or (f) of
sub-section (1) of section 52 to secure
compliance with the conditions or with the
permission as modified.
(2) In particular, any such notice may, for the
purpose aforesaid, require–
(a) the demolition or alteration of any
building or works; (b) the carrying out on
land, of any building or other operations; or
(c) the discontinuance of any use of land:
Provided that in case the notice relates
to the discontinuance of any use of
land, the Planning Authority or the
Development Authority shall serve a
notice on the occupier also.
(3) Any person aggrieved by such notice may,
within the period specified in the notice–
(a) apply for permission under section 46 for
the retention on the land of any buildings or
12works or for the continuance of any use of
the land, to which the notice relates; or
(b) apply to the concerned authority for
reconsideration and withdrawal of the
notice.
(4) (a) The notice shall be of no effect pending the
final determination or withdrawal of the
application.
(b) (i) The provisions of sections 45, 46 and 47
shall apply to such application with such
modifications as may be necessary.
(ii) If permission is granted on an application made
under clause (a) of sub-section (3), the notice shall
not take effect, or if such permission is granted for
the retention only of some buildings or works or for
the continuance of use of only a part of the land,
the notice shall not take effect regarding such
buildings or works or such part of the land, but
shall have full effect regarding other buildings or
works or other parts of the land.
(5) The authority or any officer of the
authority, appointed in this behalf, may dismiss
the application or accept it by quashing or varying
the notice as he may think fit.
(6) If within the period specified in the notice
or within such period after the disposal or
withdrawal of the application under sub-section
(3), the notice or so much of it as continues to have
effect, or the notice with variation made under
sub-section (5) is not complied with, the Planning
Authority or the Development Authority may–
(a) prosecute the owner for not complying
with the notice and in case where the
notice required the discontinuance of
13any use of land, any other person also
who uses the land or causes or permits
the land to be used in contravention of
the notice; and
(b) (i) in the case of a notice requiring the
demolition or alteration of any building
or works or carrying out of any building
or other operations, itself cause the
restoration of the land to its condition
before the development took place and
secure the compliance with the
conditions of the permission or with the
permission as modified, by taking such
steps as the Planning Authority or the
Development Authority may consider
necessary including demolition or
alteration of any building or works or
carrying out of any building or other
operations;
(ii) the Planning Authority or the
Development Authority may recover the
cost of any expenses incurred by it in
this behalf from the owner as arrears of
land revenue.
(7) Any person prosecuted under clause (a)
of sub-section (6) shall be punishable with simple
imprisonment for a term which may extend to six
months or with a fine which may extend to two
thousand rupees, or with both, and in the case of a
continuing offence, with a further fine which may
extend to two hundred rupees for every day during
which such offence continues.”
25. The primary objectives of this section are: (a) to identify and regulate
unauthorised developments; (b) to provide mechanisms for rectifying or
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regularising such developments; and (c) to penalise non-compliance in
order to maintain orderly urban and rural development.
26. The provision allowing for an application for retention or
reconsideration strikes a balance between strict enforcement and fairness.
It offers owners the opportunity to legalise developments that comply with
planning norms. However, in my view, the interpretation that an
application for regularisation is contingent upon the issuance of a notice
under Sub-sections (1) and (2) of Section 53 could undermine the Act’s
purpose of providing an opportunity to legalise a development that
conforms to planning norms.
27. It is unreasonable to suggest that a party wishing to regularise their
construction should wait for a demolition notice. It is equally implausible to
argue that the authority cannot regularise unauthorised construction
without a demolition notice.
28. The purpose of Section 53 is to regulate unauthorised developments
and bring them into compliance with planning norms. Requiring a notice as
an absolute precondition for regularisation would defeat this objective,
particularly when a party is voluntarily seeking to comply with the law
without the need for an enforcement action. A purposive interpretation of
the section allows the authority to consider an application for
regularisation even in the absence of a notice, provided, the development
can be brought into compliance. While Sub-section (3) outlines the steps to
15
be taken when a notice is issued, this does not imply that regularisation
must always be reactive. A proactive approach, wherein parties apply
voluntarily for regularisation, aligns with the objectives of Section 53. Such
an interpretation is justified by the practical need to encourage voluntary
compliance.
29. I am of the view that Sub-section (3) does not preclude regularisation
in cases where no notice has been issued under Section 53(1) and (2). The
Act does not prohibit a party from voluntarily applying for regularisation
under Section 46 in the absence of the notice. Sub-section (3) does not limit
the broader authority granted under Section 46.
30. The issue, as outlined in the opening paragraph of the judgment, can
be effectively addressed by referring to Section 137 of the Act of 1979.
Section 137 addresses the overriding effect of the Act, as quoted below:
“137. Overriding effect. — (1) The provisions of
this Act and the rules and regulations Overriding
made thereunder shall have effect notwithstanding
anything inconsistent effect. therewith contained
in any other law.
(2) Notwithstanding anything contained in
any other law–
(a) when permission for development in
respect any land has been obtained under
this Act, such development shall not be
deemed to be unlawfully undertaken or
carried out by reason only of the fact that
permission, approval or sanction required
16under any other law for such development
has not been obtained; this shall not,
however, be construed as exemption to
application for permission and of payments
of such fees and charges as required by such
other law,
(b) when permission for such development
has not been obtained under this Act, such
development shall not be deemed to be
lawfully undertaken or carried out by reason
only of the fact that permission, approval or
sanction required under such other law for
such development has been obtained.
(3) Notwithstanding the provisions of sub-
sections (1) and (2), the provisions of the
West Bengal Slum Areas (Improvement and
Clearance) Act, 1972, if in conflict with the
provisions of this Act, shall prevail.”
31. This section establishes the supremacy of the Act of 1979 over the
West Bengal Municipal Corporation Act, 2006. Sub-section (1) stipulates
that the provisions of this Act, along with the rules and regulations made
under it, shall take precedence over any conflicting provisions in other
laws. Thus, in the event of any inconsistency between this Act and other
laws, this Act will prevail.
32. Sub-section (2) clarifies two key points: first, if a development has
been carried out without obtaining the necessary permission under this
Act, it will not automatically be deemed lawful simply because permission,
17
approval, or sanction has not been obtained under other laws; second, if
permission has not been granted under other laws but has been granted
under this Act, the development will not be considered unlawful.
33. This section confirms that Act of 1979 holds overriding authority,
making it the primary legal framework for matters related to development.
34. In view of the above, it must be held that since the alleged
unauthorised construction falls under the jurisdiction of the Act of 1979,
ADDA as well as UDMA should have considered the request for
regularisation of the petitioners on merit in terms of the interim order dated
June 21, 2023, passed in WPA 28017 of 2022, without requiring the
issuance of a notice under Section 53(1) of the Act of 1979.
35. Accordingly, the orders dated November 21, 2023, passed by ADDA,
and August 17, 2023, passed by UDMA, are set aside.
36. It is also important to note that the Division Bench on April 29, 2024,
upheld the order of the learned Single Judge, inter alia, observing that the
order of ADDA dated November 21, 2023, was not challenged by the
petitioners.
37. I am of the view that since the petitioners have succeeded in
challenging the order of ADDA dated November 21, 2023, and the order
dated August 17, 2023, passed by UDMA, this Court is not precluded to
pass an appropriate order for the ends of justice.
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38. In view of the aforesaid, this writ petition is disposed of with a
direction upon ADDA to consider the prayers for regularisation of the
petitioners made before ADDA, in terms of Section 53 (4) of the Act of 1979
within a period of one month from the date of communication of this order.
39. Pending consideration of the prayer for post-facto approval, DMC
shall not implement the demolition order dated August 24, 2022 and
January 18, 2024. DMC will act in terms of the order that may be passed
by ADDA in compliance with this order.
40. With the aforesaid directions, WPA 15851 of 2024 and I.A. No.
C.A.N. 1 of 2024 is disposed of.
41. Urgent certified website copy of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
(Kausik Chanda, J.)