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2015 Supreme(Cal) 698
IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, J.
Companion Traders Pvt. Ltd. & Ors. - Petitioners
Versus
The Kolkata Municipal Corporation & Ors. - Respondents
WP 2384(W) of 2015
Decided On : 09-12-2015
For the Petitioner: Anindya Kumar Mitra, Abhrajit Mitra, Jishnu Chowdhury, Soumya Roy Chowdhury, Satadeep Bhattacharya, Awani Kumar Roy, Surajit Biswas
For the Respondent: Biswajit Mukherjee, Fazlul Haque, Debangshu Mondal
For the State : Jayanta Mitra, Lakshmi Kumar Gupta, Ziaul Islam
The West Bengal Land Reforms Act, 1955 does not apply to land in Madurdaha, Kolkata, which was not comprised in any of the municipalities of Jadavpur, South Suburban, or Garden Reach prior to its inclusion in Schedule I to the KMC Act, 1980. The Urban Land Ceiling Act, 1976 applies to Madurdaha, and the provisions of the West Bengal Land Reforms Act have no application in respect of matters covered by the Urban Land Ceiling Act, except in relation to agricultural land.
Headnote:
KMC BUILDING PLAN SANCTION - URBAN LAND CEILING ACT - WEST BENGAL LAND REFORMS ACT - APPLICABILITY - KMC ACT - SECTIONS 396(2)(A), 599 - INTERPRETATION - VALIDITY OF BUILDING PLAN - KOLKATA MUNICIPAL CORPORATION ACT, 1980 - SECTIONS 396(2), 599 - INTERPRETATION - APPLICABILITY OF WEST BENGAL LAND REFORMS ACT, 1955 TO MADURDAHA - EFFECT OF INCLUSION OF MADURDAHA IN SCHEDULE I TO KMC ACT, 1980 - APPLICABILITY OF URBAN LAND CEILING ACT, 1976 TO MADURDAHA - EFFECT ON APPLICABILITY OF WEST BENGAL LAND REFORMS ACT, 1955 - ROLE OF KMC IN GRANTING OR WITHHOLDING SANCTION TO BUILDING PLAN - EXTENT OF STATE GOVERNMENT'S AUTHORITY IN THE MATTER.
Fact of the Case:
Petitioners, private limited companies, acquired several plots of land in Madurdaha, Kolkata, and applied for sanction of a building plan to KMC. KMC initially raised concerns about the Urban Land Ceiling Act, but petitioners submitted a certificate from the Urban Land Ceiling Authorities. KMC's Municipal Building Committee sanctioned the plan subject to submission of NOC from the Urban Land Ceiling Department. Petitioners applied for NOC but did not receive it within three months. Petitioners relied on Rule 4(4) of the Kolkata Municipal Corporation Building Rules, 2009, which provides that the requirement of NOC is deemed to have been waived in such cases. KMC still did not sanction the plan, citing a memorandum from the competent authority, ULC, SDO, Alipore, Sadar, 24 Parganas, expressing concerns about multiple companies purchasing less than 500 sq. mtr. of agricultural land and mutating their names in the Record-of-Right to obtain NOCs. The State Government, added as a party respondent, argued that the West Bengal Land Reforms Act, 1955 applies to the land, and KMC cannot sanction the plan without obtaining conversion of the land from tank to homestead land under Section 4C of the Act.
Finding of the Court:
1. The West Bengal Land Reforms Act, 1955 does not apply to Madurdaha where the land in question is situated, as it was not comprised in any of the municipalities of Jadavpur, South Suburban, or Garden Reach prior to its inclusion in Schedule I to the KMC Act, 1980. 2. The Urban Land Ceiling Act, 1976 applies to Madurdaha, and the provisions of the West Bengal Land Reforms Act have no application in respect of matters covered by the Urban Land Ceiling Act, except in relation to agricultural land. 3. The land in question is not agricultural land, as described in the Municipal Assessment Book of the KMC and the mutation certificates issued by the KMC. 4. The record of rights referred to by the State Government is of dubious reliability and was prepared in 1955, with no subsequent revision or preparation of record of rights as contemplated by the West Bengal Land Reforms Act. 5. KMC is the supreme authority for granting or refusing sanction of a building plan in respect of land to which the KMC Act, 1980 applies, and the grounds for refusal are specified in Section 396 of the Act. 6. The State Government has no role to play in the matter of granting or withholding sanction to a building plan in respect of land to which the KMC Act, 1980 applies, and cannot impose its view on the KMC.
Issues: 1. Whether the West Bengal Land Reforms Act, 1955 applies to the land in question, situated in Madurdaha, Kolkata. 2. Whether the Urban Land Ceiling Act, 1976 applies to Madurdaha, and if so, its effect on the applicability of the West Bengal Land Reforms Act. 3. Whether the KMC is the supreme authority for granting or refusing sanction of a building plan in respect of land to which the KMC Act, 1980 applies, and the extent of the State Government's authority in the matter.
Ratio Decidendi: 1. The applicability of the West Bengal Land Reforms Act, 1955 to Madurdaha depends on whether it was comprised in any of the municipalities of Jadavpur, South Suburban, or Garden Reach prior to its inclusion in Schedule I to the KMC Act, 1980. In the absence of any evidence to that effect, the Act does not apply to the land in question. 2. The Urban Land Ceiling Act, 1976 applies to Madurdaha, and the provisions of the West Bengal Land Reforms Act have no application in respect of matters covered by the Urban Land Ceiling Act, except in relation to agricultural land. Since the land in question is not agricultural land, the West Bengal Land Reforms Act does not apply. 3. KMC is the supreme authority for granting or refusing sanction of a building plan in respect of land to which the KMC Act, 1980 applies, and the grounds for refusal are specified in Section 396 of the Act. The State Government has no role to play in the matter and cannot impose its view on the KMC.
Final Decision: The writ application is allowed, and the Kolkata Municipal Corporation is directed to sanction the building plan in question within four weeks from the date of the judgment, subject to the plan being in compliance with the provisions of the Kolkata Municipal Corporation Act, 1980 and the rules framed thereunder, including the Kolkata Municipal Corporation Building Rules, 2009.
Arijit Banerjee, J.
The writ petitioners pray for issuance of a writ of mandamus upon the respondent authorities to grant sanction to the building plan submitted by the petitioners in respect of Premises No. 761, Madurdaha, Kolkata-700107.
Case of the Petitioners':
2. The petitioners no. 1 to 30 are all private limited companies. The petitioner no. 31 is the director and authorised representative of the petitioner nos. 1 to 30. The petitioners nos. 1 to 30 (in short 'the petitioners') have acquired by 54 several conveyance deeds, different plots of land adjoining each other, situate in Mouza Madurdaha which is within the Borough No. XII of the Kolkata Municipal Corporation (in short 'KMC').
3. After acquiring the said plots of land, the petitioners applied to the KMC to mutate the said plots of land in the names of the petitioners. Initially the KMC sat tight on such applications and the petitioners had to approach this court twice by way of writ petitions. Finally, in terms of a judgment and order dated 13th December, 2013 passed by this Court in WP No. 656 of 2013, the names of the petitioners were mutated and the various plots owned by the petitioners were amalgamated and allotted a single municipal premises no. being No. 761, Madurdaha, Kolkata 700107 (in short 'the said premises').
4. Subsequently, the petitioners prepared a building plan for making construction on the said premises and submitted the same for sanction by the KMC. The petitioners have also submitted necessary No Objection Certificates including those from Fire Department and BSNL.
5. At a meeting of KMC's Municipal Building Committee held on 25th November, 2014, the building plan was corrected and changes as desired by the respondents were incorporated. The Municipal Building Committee sanctioned the plan subject to the submission of NOC from the Urban Land Ceiling Department. Even though the Urban Land (Ceiling and Regulation) Act, 1976 does not apply to the said land, and even though the petitioners submitted certificate from the Urban Land Ceiling Authorities, the respondent authorities asked for NOC from the Urban Land Ceiling Department.
6. By way of abundant caution the petitioners had already applied for NOC from the Urban Land Ceiling Authorities on 13th October, 2014. However, no such certificate was furnished by the competent authority under the 1976 Act even after three months elapsed from the date of the application for such certificate.
7. Rule 4 (4) of the Kolkata Municipal Corporation Building Rules, 2009, provides, inter alia, as follows:-
"In the case of a site or plot measuring 500 square metre or more to which, the Urban Land (Ceiling And Regulation) Act, 1976 (33 of 1976) applies, the notice shall be accompanied by a 'No Objection Certificate' from the competent authority, appointed under clause (d) of Section 2 of the said Act, to the effect that there is no objection or in respect of transfer of the site or plot under sub-Section (3) of Section 5 of the said Act: Provided that the requirement as aforesaid shall be deemed to have been waived on the failure of the competent authority to furnish the certificate within three months from the date of reference to it."
8. Upon expiry of three months, the requirement of NOC is deemed to have been waived and there can be no impediment to the respondent authorities in granting sanction to the building plan. However, the respondent authorities are sitting tight over the matter and have not yet sanctioned the building plan. Hence, the present writ petition.
9. On 17th March when the writ petition was moved, this court directed that the State of West Bengal, through the Secretary, Urban Development Department be added as a party respondent. On 20th March, 2015 this court recorded the categorical submission of Ld. Counsel for KMC that KMC per se has no objection in proceeding with sanction of the plan. However, Ld. Counsel for the KMC had drawn this court's attention to a memorandum bearing No. 3008
