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2004 Supreme(Cal) 721
High Court Of Calcutta
Pranab Kumar Chattopadhyay
SITALA PRASAD JAISWAL - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 8616 Of 2003
Decided On : 11/19/2004
A.N.MUKHERJEE, Avrajit Mitra, BHARATI MUTSUDDI, DIPAK DEY, RABILAL MAITRA, RINA BASU
The provisions of the West Bengal Town and Country (Planning and Development) Act, 1979, and the land use map prepared thereunder, override the provisions of the West Bengal Land Reforms Act, 1955, in respect of the areas under the jurisdiction of the South Dum Dum Municipality.
Headnote:
LAND USE - CHANGE OF USER - WEST BENGAL TOWN AND COUNTRY (PLANNING AND DEVELOPMENT) ACT, 1979 - APPLICABILITY - LAND USE MAP - CLASSIFICATION OF LAND - WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 4C - APPLICABILITY - BUILDING PLAN - SANCTION - REFUSAL - VALIDITY.
Fact of the Case:
Petitioner's writ petition challenged the decision of the South Dum Dum Municipality refusing to sanction their building plan for Premises Nos. 39, 39a, and 39b, Shyam Nagar Road, Kolkata, on the ground that the Block Land and Land Reforms Officer informed the Municipality of a mistake in recording the classification of R.S. Plot No. 794 in the Record of Rights.
Finding of the Court:
1. The West Bengal Town and Country (Planning and Development) Act, 1979, and the land use map prepared thereunder are applicable to the area in question. 2. The land in question is shown as a residential area in the land use map, and therefore, no 'karkhana' can be constructed on the said land. 3. Section 4c of the West Bengal Land Reforms Act, 1955, has no application in the present case as the land was being used for residential purposes even prior to its coming into operation in 1969. 4. The subsequent decision of the respondent authorities to classify the land in question as 'karkhana' instead of 'danga' is violative of the earlier decision of this Court and the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979.
Issues: 1. Whether the West Bengal Town and Country (Planning and Development) Act, 1979, and the land use map prepared thereunder are applicable to the area in question? 2. Whether the land in question can be used for the construction of a 'karkhana' despite being shown as a residential area in the land use map? 3. Whether Section 4c of the West Bengal Land Reforms Act, 1955, is applicable in the present case? 4. Whether the subsequent decision of the respondent authorities to classify the land in question as 'karkhana' instead of 'danga' is valid?
Ratio Decidendi: 1. The West Bengal Town and Country (Planning and Development) Act, 1979, and the land use map prepared thereunder are applicable to the area in question as the provisions of the Calcutta Metropolitan Development Control Regulations, 1994, have been introduced to the areas under the jurisdiction of various municipalities, including the South Dum Dum Municipality. 2. The land in question cannot be used for the construction of a 'karkhana' as it is shown as a residential area in the land use map prepared under the West Bengal Town and Country (Planning and Development) Act, 1979. 3. Section 4c of the West Bengal Land Reforms Act, 1955, is not applicable in the present case as the land was being used for residential purposes even prior to its coming into operation in 1969. 4. The subsequent decision of the respondent authorities to classify the land in question as 'karkhana' instead of 'danga' is violative of the earlier decision of this Court and the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979.
Final Decision: The impugned order of refusal dated 12th May 2003 passed by the South Dum Dum Municipality is quashed. The respondent authorities are directed to take necessary steps regarding the sanction of the building plan of the petitioners for the construction of the building on the land in question strictly in terms of the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979, and the West Bengal Municipal Act and Building rules framed thereunder, ignoring the order dated 24th June 2003 passed by the Assistant Settlement Officer.
( 1 ) THIS writ petition has been filed challenging the decision/order dated 12th May, 2003 passed by the South Dum Dum Municipality whereby and whereunder the said municipality refused to sanction the building plan of the petitioner in respect of the Premises Nos. 39, 39aand 39b, Shyam Nagar road, Kolkata.
( 2 ) THE ground for refusal to sanction the aforesaid building plan of the petitioners as recorded in the impugned decision of the municipality is that the Block Land the Land Reforms Officer issued a letter on 30th April, 2003 informing the Chairman, South Dum Dum Municipality that there was a mistake in recording the classification of R. S. Plot No. 794 in the Record of Right.
( 3 ) IT has been submitted on behalf of the petitioners that even on the date of the said letter the plot in question was recorded as 'danga'and not as 'karkhana'and in the aforesaid letter dated 30th April, 2003 the concerned block Land and Land Reforms Officer also did not mention that the aforesaid plot of land of the petitioners should be classified as 'karkhana' instead of 'danga'.
( 4 ) THE learned Counsel of the petitioners submits that after filing of this writ petition, Record of Right was sought to be corrected under Section 44 (2a) of the West Bengal Estate Acquisition Act and Khatian No, 513/1 was merged with Khatian No. 513 although no correction was made in respect of the descriptions or character of the land in question.
( 5 ) UNDISPUTEDLY, the writ petitioners herein are the owners of the aforesaid premises in question, namely, Premises Nos. 39, 39a and 39b of shyam Nagar Road, Kolkata under the South Dum Dum Municipality. It has been submitted on behalf of the petitioners that there was a factory in the adjacent area of the aforesaid premises and no factory was ever in existence at the premises in question of the petitioners.
( 6 ) IT has also been submitted on behalf of the petitioners that the aforesaid factory on the adjacent land of the premises in question had also been closed down sometime in the year 1960. According, to the writ petitioners, the entire premises were all along used for residential purpose.
( 7 ) THE authorities of the South Dum Dum Municipality refused to take note of the aforesaid claim of the petitioners and refused to sanction the building plan of the petitioners on the ground of receiving communication from the concerned Block Land and Land Reforms Officer to the effect that there is a mistake in recording the classification of Plot No. 794 of the petitioners in the Record of Right. It has been submitted on behalf of the petitioners that the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979 are applicable in respect of the aforesaid lands in question.
( 8 ) MR. Anindya Mitra, learned Senior Counsel of the writ petitioners submits that change of land use was brought about by operation of law underthe West Bengal Town and Country (Planning and Development) Act, 1979 and regulations framed thereunder. Mr. Mitra also submits that Land use and Development Control Plan in respect of the area in question have been prepared and published with the approval of the Government of West bengal under the provisions of the said West Bengal Town and Country (Planning and Development) Act, 1979. It has been specifically submitted on behalf of the writ petitioners that the concerned plot in question is in the residential area and there cannot be any valid objection against construction of residential building thereon.
( 9 ) REFERRING to Section 4c of the West Bengal Land Reforms Act, 1955, learned Counsel of the respondent municipality submits that the building plan submitted on behalf of the writ petitioners cannot be sanctioned unless change of user of the concerned land is permitted by the Collector. The learned Counsel of the writ petitioners however, submits that the change of user of the concerned land was brought about by and/or underthe subseq
