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2014 Supreme(Cal) 837
IN THE HIGH COURT AT CALCUTTA (D.B)
Tapan Kumar Dutt and R.K. Bag, JJ.
Ramesh Chandra Dey - Appellant
Versus
State of West Bengal & Ors. - Respondents
F.M.A. No. 3560 of 2013
Decided On : 24-12-2014
For the Appellant :Subrata Mukhopadhyay, P.C. Pal Chowdhury and D.N. Mukherjee, Advocates.
For the Respondents:Tapan Kumar Mukherjee and Shukla Das Chanda, Sadananda Ganguly and Saikat Chatterjee, Asoke Kumar Banerjee, Debabrata Banerjee, Koushik Bhattacharjee and Samir Chakraborty, Advocates.
The provisions of the New Town Kolkata Development Authority Act, 2007 will prevail over the provisions of any other law for the time being in force, including the West Bengal Panchayat Act, 1973.
Headnote:
NEW TOWN KOLKATA DEVELOPMENT AUTHORITY ACT - SECTION 82 - CONSTRUCTION OF BUILDING - DEMOLITION - JURISDICTION OF GRAM PANCHAYAT TO GRANT PERMISSION - APPLICABILITY OF WEST BENGAL PANCHAYAT ACT - CONVERSION OF AGRICULTURAL LAND TO HOMESTEAD - SECTION 4C OF WEST BENGAL LAND REFORMS ACT, 1955 - NOTICE AND HEARING - PROCEDURE FOR DEMOLITION - SECTION 184 OF NEW TOWN KOLKATA DEVELOPMENT AUTHORITY ACT, 2007 - OVERRIDING EFFECT - AUTHORITY OF SANCTIONING AUTHORITY - SECTION 3(2) OF NEW TOWN KOLKATA DEVELOPMENT AUTHORITY ACT, 2007 - RULE 2 (ZN) OF NEW TOWN KOLKATA (BUILDING) RULES, 2009 - DEFINITION OF SANCTIONING AUTHORITY - : The Pradhan of Gram Panchayat has no jurisdiction to grant permission for construction of a building on land that falls within the project area of the New Town Kolkata Development Authority (NKDA) and to which the provisions of the New Town Kolkata Development Authority Act, 2007 are applicable. The West Bengal Panchayat Act, 1973 will not be applicable to such land. The provisions of the New Town Kolkata Development Authority Act, 2007 will prevail over the provisions of any other law for the time being in force, including the West Bengal Panchayat Act, 1973. The sanctioning authority under the New Town Kolkata (Building) Rules, 2009 is the Chairman of the Development Authority or any officer of the Development Authority empowered by the Chairman of the Development Authority. The procedure for demolition of a building under Section 82 of the New Town Kolkata Development Authority Act, 2007 was followed by the respondent authority.
Fact of the Case:
The appellant purchased land in Mouza Rekjuani in 1986. In 2009, the appellant obtained permission from the Pradhan of Rajarhat Bishnupur No.1 Gram Panchayat to construct a double-storied building on plot no. 6049. The appellant constructed the 1st floor of the building as per the plan sanctioned by the Gram Panchayat. On 22.12.2011, the respondent no.2, New Town Kolkata Development Authority issued a notice to the appellant under Section 82 of the New Town Kolkata Development Authority Act, 2007, calling upon the appellant to appear before the said authority to show cause why the unauthorised construction made by the appellant would not be demolished. On 06.01.2012, the appellant submitted an application before the respondent no.2, New Town Kolkata Development Authority for regularisation of the plan sanctioned by the Gram Panchayat. However, on 09.02.2012, the respondent no.2, New Town Kolkata Development Authority did not accept the contention made by the appellant and found that the building was constructed by the appellant in contravention of the provisions of the New Town Kolkata Development Act, 2007 and as such directed the appellant to demolish the said building of the appellant within 15 days from the date of the notice to the satisfaction of the said authority, in default the said authority would demolish the said structure.
Finding of the Court:
The appellant had no manner of title in and possession over plot nos.6048, 6049 and 6050 of Mouza Rekjuani and since the said land was brought within the project area of New Town Kolkata Development Authority after acquiring the same under the provisions of the Land Acquisition Act, 1894, the appellant had no manner of right in plot no.6049 of Mouza Rekjuani and as such the order dated 09.02.2012 issued by the sanctioning authority, New Town Kolkata Development Authority for demolition of the structure on plot no.6049 is legal and valid.
Issues: 1. Whether the Pradhan of Gram Panchayat had the authority and jurisdiction to grant permission to the appellant for construction of a building on land that falls within the project area of the New Town Kolkata Development Authority (NKDA) and to which the provisions of the New Town Kolkata Development Authority Act, 2007 are applicable? 2. Whether the provisions of the West Bengal Panchayat Act, 1973 will be applicable to such land? 3. Whether the provisions of the New Town Kolkata Development Authority Act, 2007 will prevail over the provisions of any other law for the time being in force, including the West Bengal Panchayat Act, 1973? 4. Who is the sanctioning authority under the New Town Kolkata (Building) Rules, 2009? 5. Whether the procedure for demolition of a building under Section 82 of the New Town Kolkata Development Authority Act, 2007 was followed by the respondent authority?
Ratio Decidendi: 1. The Pradhan of Gram Panchayat has no jurisdiction to grant permission for construction of a building on land that falls within the project area of the New Town Kolkata Development Authority (NKDA) and to which the provisions of the New Town Kolkata Development Authority Act, 2007 are applicable. 2. The West Bengal Panchayat Act, 1973 will not be applicable to such land. 3. The provisions of the New Town Kolkata Development Authority Act, 2007 will prevail over the provisions of any other law for the time being in force, including the West Bengal Panchayat Act, 1973. 4. The sanctioning authority under the New Town Kolkata (Building) Rules, 2009 is the Chairman of the Development Authority or any officer of the Development Authority empowered by the Chairman of the Development Authority. 5. The procedure for demolition of a building under Section 82 of the New Town Kolkata Development Authority Act, 2007 was followed by the respondent authority.
Final Decision: The appeal is dismissed. The order passed by Learned Single Judge on 03.04.2012 in W.P. No.3577 (W) of 2012 is hereby affirmed.
R.K. Bag, J.
This appeal is preferred by the writ petitioner challenging the order dated 3rd April, 2012 passed in WP No. 3577 (W) of 2012, by which Learned Single Judge dismissed the writ petition with cost assessed at 100 GM.
2. The backdrop of the case made out by the appellant/writ petitioner is as follows: The appellant acquired right, title and interest in 64 decimals of land appertaining to plot nos.6048, 6049 and 6050, Khatian no.1951, J.L. No.13 of Mouza Rekjuani, Police Station Rajarhat from one Sahidul Ostagar under registered sale deed dated 20.06.1986. The appellant obtained permission from the Pradhan of Rajarhat Bishnupur, No.1 Gram Panchayat on 11.08.2009 for construction of double storied residential building covering an area of 1500 sq. ft. on plot no.6049. It is contended on behalf of the appellant that the appellant constructed 1st floor of the building on plot no.6049 as per plan sanctioned by the Gram Panchayat. On 22.12.2011 the respondent no.2, New Town Kolkata Development Authority issued one notice to the appellant under Section 82 of the New Town Kolkata Development Authority Act, 2007, calling upon the appellant to appear before the said authority on 5th January, 2012 to show cause why the unauthorised construction made by the appellant would not be demolished. On 06.01.2012 the appellant submitted an application before the respondent no.2, New Town Kolkata Development Authority for regularisation of the plan sanctioned by the Gram Panchayat. However, on 09.02.2012 the respondent no.2, New Town Kolkata Development Authority did not accept the contention made by the appellant and found that the building was constructed by the appellant in contravention of the provisions of the New Town Kolkata Development Act, 2007 and as such directed the appellant to demolish the said building of the appellant within 15 days from the date of the notice to the satisfaction of the said authority, in default the said authority would demolish the said structure.
3. The appellant challenged the order of demolition of the building issued by the respondent no.2, New Town Kolkata Development Authority on 09.02.2012 as illegal by preferring the writ petition before Learned Single Judge. Learned Single Judge did not accept the contention made on behalf of the appellant and dismissed the writ petition on 03.04.2012. The said order of dismissal of the writ petition is under challenge by way of appeal before this Court. On 17.04.2012 the building of the appellant was demolished by force by the officers of the respondent no.2 with the help of the police. With the leave of the appellate court the appellant amended the pleading of the writ petition by incorporating the fact of demolition of the building by the respondent no.2 on17.04.2012 and challenged the action of the respondent no.2 as illegal, mala fide and without jurisdiction.
4. Mr. Subrata Mukhopadhyay, Learned Counsel appearing on behalf of the appellant contends that plot nos.6048, 6049 and 6050 of Mouza Rekjuani are not included in Schedule 1 of the New Town Kolkata Development Authority Act, 2007, which came into force on 28th December, 2006. The further contention of Mr. Mukhopadhyay is that the appellant has right, title and interest in and possession over plot nos.6048, 6049 and 6050 of Mouza Rekjuani, even after coming into force of the New Town Kolkata Development Authority Act, 2007. According to Mr. Mukhopadhyay, the Pradhan of Rajarhat Bishnupur, no.1 Gram Panchayat had the authority to grant permission to the appellant for construction of building on plot no.6049 of Mouza Rekjuani under Section 23 of the West Bengal Panchayat Act, 1973. The specific submission of Mr. Mukhopadhyay is that the procedure for demolition of the building of the appellant was not followed by the respondent no.2, New Town Kolkata Development Authority as laid down under Section 82 (2) of the New Town Kolkata Development Authority Act, 2007. The notice dated 22.12.2011 issued to
