Court No.12 v. State of West Bengal & Ors.

2. Mr. Mahata, learned Advocate for the appellants submits that the order of the Sub-Divisional Officer 2 and the Block Land and Land Reforms Officer were contradictory. While the Block Land and Land Reforms Officer stated that a construction was on a ‘path’ and the plot pertains to Khatian No.354, the Sub-Divisional Officer held that the construction was on L.R. Dag No.1012/1348, which fell within R.S. Dag No.1055 corresponding to Khatian No.17, Mouza - Hazipur, which was recorded as a pond. We find from the order of the Sub-Divisional Officer dated June 18, 2024 that steps were taken in terms of Section 23(5) of the West Bengal Panchayat Act, 1973, which is quoted below:- “(5) Where any new structure or new building or any addition to any structure or building is being or has been erected or made, as the case may be, in contravention of the provisions of sub-section (1), the permission granting authority shall refer the matter the Sub-Divisional Officer concerned who may after giving the owner of such building an opportunity of being heard, make an order directing the demolition of the building or a portion of the building, as the case may be, by the owner within such period as may be specified in order and in default, the Sub- Divisional Officer may itself effect the demolition and impose a fine as may be specified by the State Government and recover the cost thereof from the owner as a public demand.”

3. According to the Sub-Divisional Officer, L.R. Dag No.1012/1348 of Mouza – Hazipur was created out of R.S. Dag No.1055 pertaining to Khatian No.17. The discrepancy, if any, in the description of the land does not take away the right of the permission granting authority to act and proceed in accordance 3 with law. In respect of unauthorized constructions, the authorities have a right to demolish the same in accordance with law. Section 23 of the Panchayat Act is quoted below:- “23. Control of building operations. [(1) No person shall erect any new structure or new building or make any addition to any structure or building having plinth area of not more than 150 square metres and height not more than 6.5 metres in any area within the jurisdiction of a Gram Panchayat except with the previous permission in writing from the Gram Panchayat: Provided that where the State Government or an authority or agency under the State Government intends to set up or has set up an industrial estate or industrial park within the jurisdiction of a Gram Panchayat, permission for erection of any structure or building or any addition to the structure or building for setting up an industry within such industrial estate or industrial park, shall be obtained from such authority or industrial development authority or corporation as the State Government may, by notifi-cation, specify: Provided further that such erection of a new structure or a new building or such addition to any structure or building or such permission from the Gram Panchayat shall be subject to such rules as may be made by the State Government in this be-half: Provided also that a Gram Panchayat shall not accord permission for erection of a new structure or construction of a new building, if the proposal for such erection or construction, as the case may be,— (a) has any provision for erection or construction of any dry latrine, by whatever name called, and (b) does not have any provision for erection or latrine of any construction of a sanitary description.] (2) Every person seeking permission under sub- section (1), shall make an application in writing to the Gram Panchayat in such form, containing such particulars and on payment of such fee to the Gram Panchayat, as may be prescribed: Provided that no amount in whatever name or manner other than the fees prescribed by the 4 State Government, shall be charged by the Gram Panchayat for according permission: Provided further that there shall be no restriction of covered area on construction of kuchcha and semi-pucca residential building which shall mean a single storeyed building not hav- ing concrete roof and brick wall with setback of not less than nine-tenth metre on the road side: (1) shall be necessary subject Provided also that no permission under sub- section submission of a self-declaration for erection of any new thatched structure, tin shed or tile shed without brick wall covering an area not exceeding eighteen square metres where such structure or shed does not cover more than three-fourth of the total area of the (including appurtenant land) and there is a setback of not less than nine-tenth metre on the road-side: Provided also that the State Government may, by order, exempt any structure or building or any class of structures or buildings from the operation of the provisions of sub-section (1) and of this sub-section: Provided also that if the building plan contains a proposal for construction of a structure for rain water harvesting on its roof, the Gram Panchayat shall allow a rebate in paying fee for permission under sub-section (1) to the applicant at such rate as may be determined by the State Government.] (3) On receipt of such application the Gram Panchayat, after making such enquiry and examination of the building plan as it considers necessary and in accordance with such rules as may be made by the State Government in this behalf, shall, by order in writing, either grant the permission or refuse it, recording in the case of refusal the reasons therefor.] (4) Any person aggrieved by an order of the Gram Panchayat under sub-section refusing permission or non-receipt of any intimation in this regard within the stipulated time as may be prescribed, may prefer an appeal to such appellate authority as may be prescribed: (3) Provided that any person aggrieved by an order of the authority may prefer an appeal before the reviewing authority as may be prescribed: Provided further that no appeal shall lie against the order of the reviewing authority.] 5 (5) Where any new structure or new building or any addition to any structure or building is being or has been erected or made, as the case may be, in contravention of the provisions of sub-section (1), the permission granting authority shall refer the Sub-Divisional Officer the matter concerned who may after giving the owner of such building an opportunity of being heard, make an order directing the demolition of the building or a portion of the building, as the case may be, by the owner within such period as may be specified in order and in default, the Sub- Divisional Officer may itself effect the demolition and impose a fine as may be specified by the State Government and recover the cost thereof from the owner as a public demand. (6) Where any new structure or new building or any addition to any structure or building is being or has been erected or made, as the case may be, in contravention of the provisions of subsection (1), the authority may, after giving the owner of such building an opportunity of being heard, make an order directing the demolition of the building by the owner within such period as may be specified in the order and in default the authority may itself effect the demolition and recover the cost thereof from the owner as a public demand.”

4. No construction within a panchayat area permissible without sanction the Gram Panchayat. Moreover, the appellants have not been able to satisfy us with regard to any right, title and interest on L.R. Dag No.1012/1348. Record of rights have not been produced. The concerned Gram Panchayat also filed a report, before the court, which has been annexed at page 76 of the connected application and the same is quoted below:- “To The Hon’ble Calcutta High Court Bar No.13 3, Esplanade Row West, Kolkata, West Bengal, 700001 6 Subject: Declaration Regarding Plot No.1055, LR Khatiyan 17, Mouza – Hazipur, JL 16 Respected Sir/Madam, With reference to the petition filed by Sk. Asikur Hossain & Others in C.A.N. No.1 of 2025, M.A.T. No.219 of 2025, WPA No.29669 of 2024, I, on behalf of Somaspur-II Gram Panchayat, hereby declare the following:

1. No Permission or Sanctioned Plans: The Somaspur-II Gram Panchayat has neither passed any order, nor issued certificate, nor granted any sanctioned building plans in connection with Plot No.1055, LR Khatiyan 17, Mouza- Hazipur, JL 16.

2. No Official Record of Construction Approval: As the Panchayat’s official records, no permission has been granted to Sk. Firoj Mondal, Sk. Amir Mondal, Sk. Suraj Mondal, or Sk. Dilwar Mondal to construction any house or structure on the said plot under the jurisdiction of Dhania Khali Police Station, Hooghly.

3. Verification of Property Ownership: If any construction exists under the above-mentioned names, a proper verification of land ownership details is required. However, as per our records, there is no authorization or legal sanction for any construction in their names. This declaration is being provided in response to the ongoing legal proceedings before the Hon’ble High Court and may be forwarded to our legal representative for necessary action.” 7

5. Under such circumstances, we are not inclined to interfere with the order of Her Lordship.

6. We refer to the following decisions of the Hon’ble Apex Court in support of the contention that, an unauthorized construction cannot be allowed to remain.

7. In the matter of Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn., reported in (2021) 10 SCC 1, the Hon’ble Apex Court held as follows:- occupation encompasses stages including allocation in metropolitan cities, “160. From commencement to completion, the process of construction by developers is regulated within the framework of law. The regulatory framework construction, land, sanctioning of the plan for construction, regulation of the structural integrity of the structures under construction, obtaining clearances from different departments (fire, garden, sewage, etc.), and the issuance completion certificates. While the availability of housing stock, especially necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations — environment and the well-being and safety of those who occupy these constructions. The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned. Hence, when these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards. Hence, illegal construction has to be dealt with strictly to ensure compliance with the rule of law.” protection

8. In Friends Colony Development Committee v. State of Orissa reported in (2004) 8 8 SCC 733, the Hon’ble Apex Court dealt with a case where the builder had exceeded the permissible construction under the sanctioned plan and had constructed an additional floor on the building, which was unauthorised. The Apex Court held as follow:- “24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building.”

9. Unauthorised floors have been held to be a burden on general welfare, must be dealt with strictly.

10. The Apex Court observed that if unauthorised constructions were allowed to stand or are “given a seal of approval by Court”, it was bound to affect the public at large.

11. In the matter of Supertech (Supra), the Hon’ble Apex Court discussed the duties of the civic bodies and lamented the sorry state of affairs as under:- further observed “167. The Court that an unauthorised construction destroys the concept of planned development, and places an unbearable burden on basic amenities provided by public authorities. The Court held that it was 9 Housing following observations Apartments Coop. imperative for the public authority to not only demolish such constructions but also to impose a penalty on the wrongdoers involved. This lament of this Court, over the brazen violation of building regulations by developers acting in collusion with planning bodies, was brought to forefront when the Court prefaced judgment with the : (EshaEkta case [EshaEkta Society Apartments Ltd. v. Municipal Corpn. of Mumbai, (2013) 5 SCC 357 : (2013) 3 SCC (Civ) 89] , SCC p. 363, para 1) “1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the failed to master plan, etc. have miserably perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise.” 168. Finally, the Court also observed that no case has been made out for directing the a municipal construction which has been made in violation of the sanctioned plan and cautioned against doing (EshaEkta so. Apartments case [EshaEkta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai, (2013) 5 SCC 357 : (2013) 3 SCC (Civ) 89] , SCC pp. 394-95, para 56) “56. … We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.” 169. These concerns have been reiterated in the more recent decisions of this Court in Kerala State Management Authority v. State of Kerala [Kerala State Coastal Zone Management Authority v. State of Kerala, that context, corporation regularise it held Coastal Zone In : 10