Calcutta High Court
Satrughan Khatick vs The Kolkata Municipal Corporation And ... on 3 September, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Rai Chattopadhyay
WPO 400 of 2021
Satrughan Khatick
Vs.
The Kolkata Municipal Corporation and Ors.
with
WPO 708 of 2021
Pradip Khatick
Vs.
The Kolkata Municipal Corporation and Ors.
For the Petitioner : Mr. Raghunath Chakraborty
: Mr. Supratick Syamal
: Ms. Peu R. Mallick
For the State Respondents : Mr. Manoj Malhotra
: Mr. Manoj Kr. Mondal
For the KMC : Mr. Alak Kumar Ghosh
: Mr. Swapan Kumar Debnath
(...in WPO 400 of 2021)
: Mr. Gopal Chandra Das
(...in WPO 708 of 2021)
Judgment on : 03.09.2025
Rai Chattopadhyay, J. :-
1. The two writ petitions involved similar issues hence, have been heard
together and are being decided by dint of the judgment as follows:-
2. In writ petition No. WPO 400 of 2021, an order of the Chairperson,
Board of Administrator, Kolkata Municipal Corporation dated
February 23, 2021 is under challenge which is concerned with the
premises No. 74A, Christopher Road, Calcutta- 700046. In the other
writ petition No. WPO 708 of 2021, an order of the Chief Valuer and
Surveyor/respondent No. 4, Kolkata Municipal Corporation dated
January 17, 2017 has been impugned. The said order of the
respondent No. 4 in the said writ petition, is in respect of the premises
No. 32, Pulin Khatik Road, Kolkata- 700015.
3. The issue which is pertinent and involved in the instant writ petitions
is whether the land purchased by the respective writ petitioners,
which fall within the earmarked road alignment earlier determined by
the respondent/Kolkata Municipal Corporation should be considered
as a freehold land of the writ petitioners in order to the Kolkata
Municipal Corporation be able to sanction plan for construction of
building thereon.
4. It is necessary to discuss in a nutshell the relevant facts in both the
cases. In WPO 400 of 2021, the petitioner has purchased the property
by dint of a deed of conveyance dated August 21, 2015. He has
recorded his name as the owner thereof in municipal assessment
records and since thereafter, has been paying municipal taxes. By
dint of a letter dated August 30, 2018, the petitioner has sought for
information regarding the premises No. 74A, Christopher Road, from
the Kolkata Improvement Trust. The reply of the Kolkata Improvement
Trust vide letter dated October 11, 2018 is annexed with the writ
petition. The same reveals that, after examining the building plan in
comparison with the trust records, the Chief Engineer of the Kolkata
Improvement Trust has stated that the concerned property was not
"affected at present by any published/sanctioned Scheme/alignment
of the Trust". Therefore, on the basis of the same, the petitioner
sought for obtaining Survey Observation Report before the
respondent/Kolkata Municipal Corporation. The Department of Chief
Valuer Surveyor, Kolkata Municipal Corporation has issued a Survey
Observation Report dated August 7, 2019 stating therein as follows:-
"(1) KMC Alignment on abutting Road/Passage (if any) :
There is a 60'-00" Wide KMC sanctioned alignment (Plan No. 6108)
on northern side abutting road and the premises is affected by the
said alignment to an extent 32'-00" at point 'B'.
(2) Character of abutting Road/Passage:
The Road abutting on northern side of the aforesaid premises is
recorded according to availability of records in this Department.
(3) Width of Abutting Road/Passage:
The Width of the road abutting on northern side of the aforesaid
premises is 28'-00" (8.534 M) at point A-A' and 25'-00" (7.619 m) at
point B-B' as per record."
5. The writ petitioner in WPO 400 of 2021 has stated that from the said
report dated August 7, 2019, he came to know that from amongst the
total area of 3 katha 2 chhitaks and 41 square feet of land purchased
by him, a 60 feet alignment on the northern side of the plot exists,
abutting the road and the premises. Also that, leaving aside the area
of alignment as stated in the report, the petitioner would be left to
enjoy only 1 katha 3 chhitaks of land from amongst the total land
area purchased by him. Hence, by dint of a letter dated October 6,
2018, the learned advocate for the petitioner has sought for
cancellation of the sanctioned alignment (Plan No. 6108 on the
northern side abutting road), but to no avail. According to petitioner,
in response to his application under the Right to Information Act,
2005 dated December 21, 2018, the respondent Authority has
provided no information excepting that the plan of the projected street
alignment Plan No. 6108 is declared as sanctioned.
6. The first writ petition No. WP 2266 (W) of 2019 was filed by the instant
petitioner in which the Board of Administration, Kolkata Municipal
Corporation was directed to consider petitioner‟s writ petition and
pass a reasoned order. The order of the Court as above was followed
by a fresh representation of the petitioner dated October 14, 2020 to
be filed before the Chairman, Board of Administration, Kolkata
Municipal Corporation and a hearing has taken place on December
14, 2020. Finally, after much persuasion, the petitioner has stated
that the Chairperson, Board of Administrator, Kolkata Municipal
Corporation has passed the order dated February 23, 2021, which is
impugned in the instant writ petition.
7. Likewise, the father of the writ petitioner in WPO 708 of 2021 had
purchased the concerned property on December 30, 1969. The
petitioner became the owner after death of his father by way of
inherence, along with the other legal heirs of the said deceased
person. Their names were mutated in the records and municipal taxes
are being duly paid by the petitioner.
8. For the purpose of sanction of a building plan, the petitioner sought
for obtaining Survey Observation Report but was declined as a reason,
the Authorities have stated in their letter dated August 4, 2010 that
Kolkata Municipal Corporation alignment on abutting road affects the
premises by 15.24 meter wide in forced regular line; the affected
portion varies from 4.115 meter to 6.401 meter from West to East as
per alignment Plan No. 6953. Therefore, according to the said report,
the petitioner‟s premises was affected by a 50 feet wide KMC
alignment in forced regular line from West to East as per the
alignment Plan No. 6953.
9. Such refusal of his prayer prompted the said petitioner to file writ
petition before this Court being WP No. 2582 (W) of 2016. The Court
in the said case had directed the Chief Valuer and Surveyor to
consider and dispose of the petitioner‟s writ petition by dint of a
reasoned order. Hence, the Chief Valuer and Surveyor, Kolkata
Municipal Corporation after considering the petitioner‟s prayers
passed the order dated January 17, 2017, which is under challenge in
the instant writ petition.
10. Mr. Chakraborty while representing the writ petitioners in the
case has mentioned that in accordance with the statutory provisions,
though the respondent/Kolkata Municipal Corporation would be
entitled and eligible for defining the regular line of alignment of public
roads, however a defined regular land of alignment of public road is
not to be sustained for time immemorial without being implemented.
He has argued that the petitioners are such unfortunate purchasers of
land through which possibly the defined regular lines of alignment go
though excepting being defined, no steps have however been taken to
execute the same by changing the alignment of the public road
according to the said definition, by the respondent Authority. He says
that even being asked to provide information as per the statutory
provisions, the respondent Authority has not cared to facilitate the
land owners with the petitioners with any particular information
regarding as to when the respective plans for defining the regular line
of alignment of the public road over their respective freehold premises,
were determined. Mr. Chakraborty has specifically mentioned as
regards provision under Section 357 (6) of the Kolkata Municipal
Corporation Act, 1980 to submit that it is within jurisdiction of the
respondent Authority in case it considers expedient to do so, to cancel
even wholly the regular line of public street, after a period of 10 years
from the date of defining the said regular line, if not, the object for
which the said regular line was defined has been completed within the
said period. According to Mr. Chakraborty, the instant cases are best
suited for the respondent Authority to exercise their power in terms of
Section 357 (6) of the Kolkata Municipal Corporation Act, 1980.
11. Mr. Chakraborty has submitted that the reasons assigned by
the respective Authorities in the respective impugned orders are only
baseless, and in that way are arbitrary. He submits that though the
respective Authorities in the said impugned orders have held that the
proposed plan of regular line of alignment has never been
implemented but concludes finally that those are required to be
maintained. According to Mr. Chakraborty, such decision of the
Authorities respectively is not only unreasoned but also is in glare
violation of the statutory provision which mandates revisitation of the
proposed plan in an interval of the specified period. According to him,
otherwise the power granted to the Authorities by the legislators for
cancellation of the proposed plan in case of any expedience would
turn to be futile. He says that nothing is on record in the instant cases
to show that any revisit as to the requirement of sustaining the plan
for road alignment has ever been made by the respondent Authority,
not to speak at a regular interval as per the statutory provision.
Hence, when admittedly the object for determining the road alignment
has not yet been accomplished, it is most apt, reasonable and also
lawful exercises that the road alignment plan should be cancelled in
terms of the statutory provision as above in order to bestow the
petitioners their right to the property they own which is as a matter of
fact, a right guaranteed by the Constitution of India, he says.
12. Mr. Chakraborty has also referred to the Calcutta Municipal
Act, 1951 to submit that in accordance with the provision under
Section 357 (2) thereof the respondent Corporation would have been
obliged to revisit the requirement of keeping the building or street line
alignment within 5 years as per the commencement of the said Act.
He says that unless the object for which the line of alignment would
have been determined, was completed, the Act of 1951 had made a
deeming provision that in that case the street alignment shall be
deemed to be cancelled on the expiry of the specified period, he says.
13. The following two judgments have been referred to by Mr.
Chakraborty, in support of his submissions as summarized above:-
i) Kolkata Municipal Corporation Vs. Shri Keshov Prasad
Shaw reported in 2014 (2) CHN (Cal) 294
ii) Rajvar Properties Private Limited and Another Vs.
Kolkata Municipal Corporation and Others reported in 2022
SCC OnLine (Cal) 2523
14. Hence, the petitioner‟s prayer in both the writ petitions is same
that is, for setting aside of the two impugned orders dated February
23, 2021 and January 17, 2017 in writ petition Nos. WPO 400 of 2021
and writ petition No. WPO 708 of 2021 respectively and directing the
respondent Authority to sanction the building plan has submitted by
the petitioners.
15. Per-contra Mr. Alak Kumar Ghosh representing the
respondent/KMC has argued the instant writ petitions would not be
maintainable at all. So far as WPO No. 400 of 2021 is concerned,
according to the respondent/KMC the sanctioned alignment plan No.
6108 of the Corporation was notified on February 27, 1930 and since
then it has been in vogue. That the same has never been cancelled.
Hence, according to the said respondent, the property is not free from
encumbrances. It has been submitted that at the time of purchase of
the property on August 21, 2015, the property was encumbered in the
way as stated above. That the principle of „caveat emptor‟ that is
„buyer beware‟, put the responsibility upon the purchaser, in this
case, the writ petitioner to perform due diligence before making the
purchase. In case of any encumbrance, the buyer that is the present
petitioner in this case assumes the risk. Since admittedly, the
petitioner has purchased the property, therefore, by following the
principle of the contract law as above, the petitioner has purchased
the property with adequate knowledge of the same being encumbered
by dint of the road alignment plan, Mr. Ghosh has submitted.
16. He has submitted that it is not only for the reason of a prayer
made by the purchaser for cancellation of the existing road alignment
plan, but a specific case being made out justifying such cancellation
of the existing alignment plan, would prompt the respondent to invoke
its powers for cancellation of the existing alignment plan in terms of
the statutory provision. Mr. Ghosh has submitted that in this case,
the petitioner has not been able to make out a plausible reason which
can justify any such step to be taken by the respondent authority for
cancellation of the said existing alignment plan, in exercise of its
power as envisaged under the statute.
17. He has thus submitted that the Survey Observation Report has
clearly indicated as to how the property is butted and bounded by the
road alignment plan, earlier sanctioned by the competent Authority.
That, on the basis of the same and with proper reasons, the
respondent Authority has declined the prayer made by the petitioner
regarding cancellation of the sanctioned road alignment plan or for
sanction of his plan for construction of building. According to the said
respondent, there would not be any reason for this Court to interfere
into the order, which is under challenge in the instant writ petition. It
is submitted that until and unless the proposed sanctioned road
alignment/regular line is cancelled or modified, the same remains to
be valid in accordance with law. That the Survey Observation Report
also discloses about the validity of the said sanctioned alignment plan.
Mr. Alak Kumar Ghosh has submitted that there would not have been
any question of automatic invalidation of such sanctioned road
alignment/regular line, due to efflux of time or for any other reason
whatsoever. Hence, submission of the petitioner to that extent has
been strongly resisted.
18. On the other hand, it is submitted, that any modification or
cancellation of the sanctioned road alignment plan shall adversely
affect the public interest in so far as the object for which the road
alignment plan has been made is to develop the structure of the
streets and the roads commensurate to the requirements, which may
evolve with the passage of time. Hence, that without any proper and
justifiable reason, there would not be a scope or occasion for the
respondent Authority, to cancel or modify the plan which is in place.
It is submitted that the public interest would prevail over the private
interest of the writ petitioner. The allegations of arbitrariness or
impropriety of the impugned order are denied.
19. So far as the writ petition WPO No. 708 of 2021 is concerned,
the respondent has also submitted that the Chief Valuer & Surveyor
has no authority and/or power to define or declare the regular line of
any street. Also, that the said office does not possess any power to
cancel or modify the declared regular line of alignment of the public
street. The respondent has contended that in that way, the petitioner
has not made any representation before the competent authority but
to such an office which is not authorized to entertain such prayer as
per law.
20. The questions fall for determination, are if the plan of regular
line of street alignment, if once sanctioned shall remain valid in
perpetuity, even if such plan having not been executed for years
together and till the present time; even in that case, a person who
might not have been aware at the time of purchase of property,
regarding existence of such encumbrance, should be deprived of his
right of enjoyment of the property under his exclusive ownership, for
the reason of existence of such an unimplemented, sanctioned plan
for street alignment/ regular line.
21. In Part -- VI for "Town Planning, Land and Land Use Controls,"
under Chapter -- XXI of the Kolkata Municipal Corporation Act, 1980,
which deals with "Streets and Public Places," the provisions have been
made regarding "Regular line of street." Section 357 thereof is for
defining regular line of a street. The said section, comprised of six sub
sections, has provided authority and power to the Municipal
Commissioner to define or redefine the regular line on one or both
sides of any public street or portions thereof, in accordance with the
rules and regulations made in this behalf.
22. The procedure for redefining the regular line of street alignment
has been prescribed in the statute, that, it should be done by
issuance of public notice and thereafter affording reasonable
opportunity to the residents of the premises abutting on such public
street to make suggestions or objections with respect to the proposed
redefinition. The statute says that the street alignment operative
under the law, since the time immediately before commencement of
the Act of 1980, shall be deemed to be a regular line of alignment of
the street. Also that the line defined or redefined shall be called
regular line of street. According to Section 357 (3) of the Act of 1980,
no construction or reconstruction of any building or portion thereof or
any boundary wall should be made within the regular line of a street.
23. Therefore, the law has provided that line of a street, which is
defined would be the regular line of alignment thereof, within which
there should not be any construction of any building or boundary wall
of any building.
24. The two other very vital legal provisions have been made under
sections 357(4) and 357(5) of the said Act, that the Municipal
Commissioner shall maintain a register containing prescribed
particulars of the defined regular street lines with plans attached
thereto and that all such registers shall be open for inspection and
taking extract therefrom.
25. It has further been provided under section 357(b) of the said Act
that the Corporation is empowered to cancel or modify the regular line
of public street, if it finds it expedient to do so. The Corporation is
empowered to cancel or modify the regular line of public street after a
period of ten years from the date of defining the said regular line, if
not the object for which the regular line was defined, has not been
completed. The statute has provided the mode to follow, in case the
Corporation finds it expedient to cancel or modify the regular line of
public street.
26. The fundamental doctrines on which the said action should be
based are of reasonableness, fairness and non-arbitrariness. The
respondent‟s action should always meet with the requirements of the
doctrines of reasonableness, fairness and non-arbitrariness vis-à-vis
the law. The doctrines as above, serve as a critical check on
governmental power, ensuring that all administrative actions are
based on discernible principles, are founded on logic and are made at
achieving a just and fair outcome for all citizens.
27. So far as facts of these cases are concerned, admittedly, the
petitioners are the owners of the concerned property by way of
purchase/inherence. Their names are recorded in the books and they
are the regular tax-payers with respect to the said property, since
from the date of ownership of the property by self or by the
predecessor-in-interest. Therefore, they are in absolute possession
over the said properties. Now, as the owners of the properties, the
petitioner‟s desire to sanction building plan from the concerned office
of the respondent/Kolkata Municipal Corporation and built houses.
As we have already seen that as per provision under Section 357 (3),
no person shall construct any building or even a boundary wall within
the regular line of a street.
28. According to the respondent Authority portion of the petitioner‟s
property fall within the defined regular line of a street according to the
sanctioned Plans Nos. 6108 and 6953. Hence, for the said reason, no
building plan can be sanctioned over there.
29. Admittedly, here the street alignment has been declared back in
the year 1930, to be precise on February 27, 1930. However,
admittedly also, the same has remained unimplemented and
unaffected till date. Therefore, it has been decades since the sanction
of such plans that the Authority has not considered for actually
implementing the same. The prolonged inaction of the Authority in
implementing the plan has given rise to the strong presumption of
abandonment of the said plan, leading to the presumption of
cancellation of the said plan. In the instant case, the authority, having
not given effect to the defined regular line of the street, has implicitly
abandoned alignment through inaction over a significant period of
time, evidenced by long delay and non-implementation of the plan. A
plan must be converted into action within a reasonable period of time.
It would not be fair, reasonable, and proper for the respondent
authority to keep the plan of regular line of the street alive
perpetually. That is why the legislature, according to its own wisdom,
has provided for cancellation or modification of the said plan. This can
be done after a period of 10 years from the date of defining the said
regular line and the respondent Authority being satisfied about the
expedient reason for the same.
30. Evidently, in these cases, such a statutory period of ten years
from the date of the plan has expired long ago. No record is available
as to whether any assessment has been done regarding the existence
or not of any expedient reason to sustain the regular line of the street
as it is. Abandonment or cancellation can be inferred if the authority
has not taken any steps within a reasonable period; the long-standing
non-implementation indicates a clear intent to abandon. This Court in
the case of Keshav Prasad Shaw (supra) has found that long inaction
can lead to a presumption of abandonment or cancellation. The Court
has found there in that when a declared alignment has not been acted
upon or implemented for over 50 years, it can be regarded as
abandoned or cancelled. That, to make this presumption an absolute
rule, the statutory procedure must be followed.
31. Consequently, the principles of law are now firmly established.
In that view, the submissions advanced on behalf of the
respondent/Kolkata Municipal Corporation that once sanctioned a
plan defining the regular line of street should remain static and in
vogue for all time to come, unless and until the Corporation itself
cancels or modifies the same, do not inspire much confidence in the
mind of the Court. The law is that it should be implemented within a
reasonable period of time or else there would be a presumption to be
converted into absolute that the respondent has abandoned or
cancelled any such plan defining the regular line of street. Of course,
there are statutory procedures prescribed, which are to be followed to
formally declare the plan as abandoned or cancelled. Be that as it
may, that would be a matter of procedure only.
32. The respondent, in the impugned orders has held inter alia that
the road alignment plans, which are challenged by the petitioners, is
still in force and necessary to be maintained for smooth vehicular
movement, better infrastructure and overall development of the area
for greater public interest. Admittedly it is a plan prepared about 100
years ago, which has remained unimplemented till date. The drastic
changes in the socio-economic conditions during this long period of
time are vital and relevant for the purpose as to whether the plan for
alignment of road, which has remained unimplemented, would be any
further feasible or practical. Admittedly, for all these years, no
assessment has been made by the respondent authorities regarding
the requirement of keeping the plan for regular line of the street alive.
This militates with the provisions under section 357(6) of the Kolkata
Municipal Corporation Act 1980, which has provided for cancellation,
wholly or partly or modification of the regular line of a public street
after a period of 10 years from the date of its being defined, in case the
object for which the said regular line was defined, has not been
completed. In this respect, the Court conquerors with the submissions
made on behalf of the petitioner that, even in the Old Act of 1951,
provisions have been made for revisiting the reason and justification
to keep the prescribed street alignment after a certain specified period,
that is 25 years.
33. The Court is also constrained to find that during all these years
for about a century, there has not been a single finding of the
respondent authority regarding its reason to keep the regular line plan
of the street as existing without cancelling or modifying the same. It is
as if the same goes into oblivion. Time is of immense importance here
which strongly presupposes the lack of intent on part of the
respondent Authority to actually execute the plan, which was
prepared and undertaken about a century back. The prolonged period
of inaction over the plan, defeats its purpose. It is undeniable that
statutory provisions do not become inoperative simply due to efflux of
time and there is no estoppel against a statute. This concept known as
obsolescence or desuetude is generally not recognized in law. Instead,
the statute remains in force unless repealed by the legislator or unless
their applicability is limited by other provisions within the statute
itself, such as those related to a specific time frame or condition
precedent.
34. For all the reasons as mentioned above the Court is of
considered opinion that the plans of regular line of the street
alignment, which are based by the respondent Authority to reject the
petitioners‟ prayer for sanction of the building plan on the piece of
property, has lost its force being not implemented or even verified
whether it's existence is justified or not. In such circumstances the
findings of the respondent Authority in the impugned orders dated
February 23, 2021 and January 17, 2017 are unsustainable being
unreasonable and arbitrary. These are the result of sheer non-
application of mind of the said concerned respondents. On the
contrary, having lost their force and purpose, the said plans are liable
to be cancelled.
35. It is pertinent to note that in accordance with the provisions
under section 357 of the Act of 1980, cancellation of the plan for
regular line of street alignment would not be an automatic exercise
but require specific statutory procedure to be followed for the same.
Section 357(6) of the Kolkata Municipal Corporation Act 1980 has
explicitly stated that the regular line of a street may be cancelled or
modified only following prescribe procedures including issuing notices
to residence, considering objections and obtaining sanctions.
36. For all the reasons as discussed above, the instant writ petitions
should succeed. Hence, writ petition No. WPO 400 of 2021 and WPO
708 of 2021 are allowed with the following directions:-
i) The impugned order dated February 23, 2021 in writ
petition No. WPO 400 of 2021 and that dated January 17,
2017 in writ petition No. WPO 708 of 2021 are set aside.
ii) The plans No. 6108 and 6953 respectively of regular line
of street alignment are held liable to be cancelled.
iii) The respondent No. 1 shall take immediate necessary
steps in accordance with law for cancellation of the plans
No. 6108 and 6953, in accordance with the procedure as
prescribed under law.
iv) The exercise as above, should be concluded within a
period of eight (08) weeks from the date of communication
of copy of this judgment.
v) Let the concerned respondent take necessary and
adequate steps for sanction of building plan of the writ
petitioners after cancellation of the plans for regular line of
street alignment as above in accordance with law.
37. Urgent certified copy of this judgment, if applied for, be supplied
to the parties upon compliance with all requisite formalities.
(Rai Chattopadhyay, J.)
