Calcutta High Court (Appellete Side)

Syed Bakibillah vs State Of West Bengal & Ors on 16 May, 2023

 16.05.2023
Sl. No.16(DL)
    srm
                                  W.P.A. No. 11483 of 2023

                                      Syed Bakibillah

                                            Versus

                                State of West Bengal & Ors.



                        Mr. Souojanya Bandyopadhyay,
                        Ms. Sweta Mukherjee
                                                        ....for the Petitioner.

                        Mr. Jahar Lal De,
                        Mr. Rudranil De
                                                ...for the State-respondents.

                        Md. Hadiur Rahaman,
                        Mr. Krishnendu Bera,
                        Ms. Shravani Paul,
                        Ms. Debolina Chakraborty
                                           ...for the Respondent Nos.8 & 9.




                        Despite service, none appears on behalf of the

                panchayat authorities. Affidavit-of-service is taken on

                record.

                        The petitioner has challenged the final report

                prepared by the Pradhan of Khorda Gram Panchayat,

                South 24-Parganas, which is annexure P-13 at page 61 to 62

                of the writ petition. Such report was prepared on April 28,

                2023.

                        The report is the culmination of an order passed by

                this Court dated January 4, 2023, in WPA No.28667 of 2022.

                The petitioner had filed the said writ petition alleging that
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a   two-storeyed    building       was   being   constructed

unauthorisedly on LR Dag No.545 pertaining to Khatian

No.891 within mouza Dakshin Simla. The other allegation

was with regard to the encroachment of the land of the

petitioner. The writ petition was disposed of with a

direction upon the Khorda Gram Panchayat to dispose of

the representation of the petitioner by considering the

allegation of unauthorised construction. A procedure had

been laid down by the Court, which was to be followed

during such decision. Upon completing the entire process,

the gram panchayat was directed to act and proceed in

accordance with the provisions of Section 23(5) of the West

Bengal Panchayat, 1973.

      It appears that pursuant to the direction of this

Court an inspection was held on March 11, 2023 at 11.30

a.m. The respondent Nos.8 and 9 submitted documents

including a plan of a two-storeyed residential building.

The said plan had been prepared by an engineer, but had

not been sanctioned by the Pradhan. The petitioner

produced the answer given by the gram panchayat under

the Right to Information Act dated January 16, 2023. The

fact that the Khorda Gram Panchayat did not have any

record in its office with regard to the grant of sanction in

favour of Syeda Shyama Bibi, the respondent No.8 herein,
                              3




had been recorded in the inspection report. It was also

recorded that no application for sanction had been filed in

the office.

       Subsequently, the final report which is under

challenge, was prepared upon hearing the parties. It

appears from the report that at the time of physical

verification the building plan had not been sanctioned. For

the first time at the hearing the respondent No.8 claimed

that the sanction for the building on LR Dag No.545

pertaining to Khatian No.891 within mouza Dakshin Simla

under the Khorda Gram Panchayat had been granted on

March 27, 2023. A copy of the same was produced at the

time of hearing. Fees of Rs.3,100/- for approval of the plan

had been accepted by the gram panchayat. Therefore, it

appears that the building plan in respect of the

construction on LR Dag No.545, was sanctioned after the

inspection, but just before scheduled date of hearing. The

Pradhan observed that the said building should neither be

demolished    nor   destroyed    as   the   plan   had   been

subsequently sanctioned.

       The petitioner submits that post facto sanction could

not be given, especially when the High Court had directed

the authorities to decide the issue of unauthorised
                               4




construction. It is further submitted that conversion of the

land had not been obtained prior to such construction.

      The learned Advocate for the respondent Nos.8 and

9 submits that the plan had been deposited in the office of

the gram panchayat and conversion has been applied for

on March 21, 2023 for conversion from 'sali' to 'bastu'.

Further contention is that the issue of illegal conversion of

the land should be decided by the learned Tribunal and

this Court would not have jurisdiction to consider such

aspect.

      Admittedly, when the order was passed on January

4, 2023, directing the panchayat authorities to look into the

representation of the petitioner with regard to the

allegation of unauthorised construction of the respondent

Nos.8 and 9, the plan had not been sanctioned. Even at the

time of inspection, the gram panchayat found that a plan

had been prepared, but not sanctioned.

      Next, the question of post facto sanction does not

arise as the law does not provide for either regularization

of an unauthorised construction or grant of sanction after

the building has been completed. Even at the inspection,

the authority found that there were documents showing

that the plan had been prepared. The space where the seal

and signature of the Pradhan was to be affixed was blank.
                              5




The answer of the authority under the Right to Information

Act clarifies that no plan had been filed in the gram

panchayat office for sanction and the office records did not

indicate that such sanction had ever been granted. The

inspection was held on March 11, 2023 and the hearing was

given on April 28, 2023. Between this intervening period, a

post facto sanction was given by the gram panchayat and

the Pradhan arrived at the conclusion that the building

was not unauthorised.

      In the matter of Dipak Kumar Mukherjee v.

Kolkata Municipal Corpn. reported in (2013) 5

SCC 336, the Hon'ble Apex Court held as follows:-

     "24. In view of the pleadings filed before the High
     Court and the affidavits filed before this Court,
     there is no escape from the conclusion that
     Respondent 7 had raised construction in violation
     of the plan sanctioned under Section 396 of the
     1980 Act and continued with that activity despite
     the order of the Mayor-in-Council. In the
     prevailing scenario, the representative of
     Respondent 7 might have thought that he will be
     able to pull strings in the power corridors and get
     an order for regularisation of the illegal
     construction but he did not know that there are
     many mortals in the system who are prepared to
     take the bull by horn and crush it with iron hand.
     ****

****

29. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines,

drainage, sewerage, etc. Unauthorised construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it is imperative for the public authorities concerned not only to demolish such construction but also impose adequate penalty on the wrongdoer."

In the matter of Supertech Ltd. v. Emerald

Court Owner Resident Welfare Assn., reported in

(2021) 10 SCC 1, the Hon'ble Apex Court discussed

the duties of the civic bodies and lamented the sorry

state of affairs as under:-

"167. The Court further observed 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 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 the forefront when the Court prefaced its judgment with the following observations : (Esha Ekta Apartments case [Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai, (2013) 5 SCC 357 : (2013) 3 SCC (Civ) 89] , SCC p. 363, para 1)

In Esha Ekta Apartments Coop. Housing

Society Ltd. v. Municipal Corpn. of

Mumbai reported in (2013) 5 SCC 357, the Hon'ble

Apex Court observed as follows:-

"8. At the outset, we would like to observe that by rejecting the prayer for regularisation of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law-abiding citizens that someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their hands and get away with it."

According to this Court, the observation of the

Pradhan and the final report are completely de hors the law.

A sanction has been granted for a two storeyed building

after orders were passed by this court for determination of

the issue and for appropriate legal steps in terms of the

provisions of Section 23(5) of the West Bengal Panchayat

Act, 1973. The gram panchayat did not have any authority

under the law to sanction a building which was found to

be unauthorised. Just a day before the date of hearing, that

is, on March 27, 2023 the sanction had been granted by

disobeying the order of this Court dated January 4, 2023.

The sanction given to the respondent Nos.8 and 9 were

completely illegal, unauthorised and arbitrary and in

violation of the order of this court. Unlike some municipal

laws which allow regularization of minor deviations, the

Panchayat Act does not empower the authority to even

regularize minor deviation and definitely a two storeyed

building could not have been sanctioned when demolition

proceedings were going on.

Reliance is placed on a decision of the Hon'ble

Division Bench in the matter of Falguni Mukherjee vs The

State of West Bengal & Ors, decided in MAT 1025 of 2022,

the relevant portions of the decisions rendered by Arijit

Banerjee J, are quoted below:-

" 6. Section 23 is a regulatory provision. It makes it mandatory for a person to obtain prior permission from the concerned Panchayat before he can construct a building beyond a certain dimension. Two of the important objects of a statutory provision regulating construction of buildings or addition/alteration to buildings are to ensure optimal utilisation of land which is a scarce commodity and also planned development of a particular locality. In my understanding, keeping those objects in mind, the State Legislature has included Section 23 in the 1973 statute, making it obligatory for a person to obtain previous permission of the concerned Panchayat before putting up a building beyond the dimension mentioned in the said Section. The entire object and rationale behind Section 23 would be defeated if a person is permitted to construct a building without having a building plan sanctioned by the Panchayat, as per his own whims, and then apply for post-facto permission for regularising the unauthorised construction.

7. In my considered opinion, section 23 of the 1973 Act does not envisage grant of post facto sanction of a building plan after construction of the building is

completed. The language of Section 23(1) is plain and clear. There is no ambiguity, no scope for confusion. The language is not capable of more than one interpretation. No canons of construction of a statute are required to be pressed into service for ascertaining the true scope, effect and meaning of Section 23(1) of the 1973 Act.

8. An interpretation has to be given to a provision of law like Section 23(1) of the 1973 Act, which will discourage people from taking law into their own hands and dissuade them from putting up constructions without obtaining prior permission of the concerned authority. A building constructed in violation of the provisions of Section 23(1) of the 1973 Act must be held to be illegal and unauthorised and incapable of being regularised. If Section 23(1) is construed as permitting the Panchayat to accord post facto sanction, the same is also likely to lead to show of money power and corruption. On this aspect, the learned Single Judge has observed, and in my opinion very aptly, as follows:-

"In the present day there is a growing tendency to flout the law. Mindset of the public is developing that anything and everything is possible by spending money and by greasing the palms of the persons who are in power. The petitioner mustered the guts to make construction of two storied pucca construction, photograph of which has been produced in Court, without the minimum permission from the competent authority. In fact, permission to make construction was never sought for. The petitioner was absolutely confident that somehow or the other the construction raised will be regularized in a circuitous manner by paying money on the garb of fine.

If the prayer of the petitioner for post facto sanction is allowed, nobody will care for the law and apply for obtaining sanction prior to making construction. The said idea is to be nipped in the bud otherwise the rule of law cannot be applied. There ought not to be different set of rules/law for different people. When a law is there in place the same is bound to be followed.

...

Any interference with the order of demolition will lower the morale of the officers who resisted the temptation to regularize the illegal and unauthorized construction by accepting money from the petitioner. The authority ought to be encouraged for sticking to the law and it is expected that they should continue to keep strict vigil so that the violators of law are suitably dealt with."

9. Learned Advocate for the appellant submitted that sub-section 6 of Section 23 contemplates that the concerned authority may order demolition of a building which has been constructed in contravention of the provisions of sub-section 1. He contended that an element of discretion remains with the authority and it is not mandatory for the authority to order demolition. This necessarily implies that the authority has power to grant post facto approval to a building plan if an application for sanction is made even after completion of construction.

I am unable to agree with the above submission of learned Counsel. A degree of discretion may be there with the authority to be exercised in cases where there may be minor deviation from the sanctioned plan or where the builder is able to persuade the authority that there are other good reasons for not directing demolition. In such cases, the authority may refrain from order in demolition upon such terms as the law may envisage. However, I am unable to interpret sub-section 6 of Section 23 in a manner so as to infer that the authority has power to grant post facto sanction to a building plan where a building is constructed without obtaining any sanction at all from the concerned authority.

10. Persons who think they can flout the law with impunity, deserve no sympathy. Unauthorised construction has become a major problem in our society which has to be tackled with iron hands. No leniency ought to be shown to persons who have scant regard for law. If such persons are treated with misplaced sympathy, Rule of Law will be the casualty, which cannot be countenanced."

Secondly, Rule 26 of the West Bengal Panchayat

(Gram Panchayat Administrative) Rules, 2004 clarifies that

the panchayat authorities cannot grant sanction for

construction on any land apart from a homestead land.

Homestead land means 'bastu' land. Admittedly, even on

March 27, 2023, conversion had not been allowed. The

respondent Nos.8 and 9 applied in Form 1C for

regularization of the change of character of the land and/or

conversion, only on March 21, 2023.

Thus, even though the issue of conversion is

covered under a specified act, that is, the West Bengal

Land Reforms Act, 1955, this Court can take cognizance of