The Supreme Court set aside the Calcutta High Court’s demolition order and allowed a housing project near Visva-Bharati University, holding that “khoai” is not a recognised land category under West Bengal law. The Court ruled that in the absence of fraud or major illegality, demolition is a harsh measure and imposed a Rs 1 lakh cost on PIL petitioners.
The Supreme Court of India on Thursday allowed the construction of a commercial housing project near the historic Visva-Bharati University in West Bengal and set aside an earlier order of the Calcutta High Court which had directed that the building be demolished.
The apex court clearly held that the High Court was wrong in treating the disputed land as “khoai” land. The bench pointed out that there is no land category called “khoai” under the land and revenue laws of West Bengal. The land had been wrongly described as protected “khoai” land by the High Court even though such a classification does not legally exist.
A Bench of Justices Vikram Nath and Sandeep Mehta explained that the word “khoai” appears to have been taken from the writings of Nobel Laureate Rabindranath Tagore.
In his works, Tagore had described “khoai” as a special geological formation found in and around the Birbhum region, created due to natural erosion by wind and water on small hills made of red laterite soil rich in iron, forming natural gullies and canyon-like landscapes.
The High Court had earlier held that the construction carried out by Aarsuday Projects, a private real estate developer, on a plot of land measuring 0.39 acres near Visva-Bharati University, was on preserved “khoai” land and therefore illegal.
However, while upholding the legality of the residential construction, the Supreme Court observed,
“In the absence of any tangible evidence of fraud, misrepresentation, or deliberate circumvention of statutory requirements, such a procedural lapse, even if assumed to exist, for arguments sake, could not render the construction per se illegal, nor could it justify the issuance of a direction for demolition, which is an extremely draconian consequence reserved for cases of blatant and substantive illegalities and violation.”
The bench further stated that the approval granted by the Ruppur Gram Panchayat to the building plan on November 5, 2011 was valid and could not be questioned. It said that the approval was lawful and there was no reason to reject it outright.
The court also addressed the issue of land conversion and said,
“Even if it is assumed, arguendo, that there was any infirmity in the timing or manner of conversion of the subject plot from ‘danga’ (barren land) to ‘bastu’ (residential use), such infirmity could not have the effect of invalidating the entire construction raised by Aarsuday Projects.”
It clarified that even if there was some defect in the conversion process, it would only call for regulatory action or correction under the law. It would not justify demolishing a completed building, especially when the land was already marked for residential use under the Land Use and Development Control Plan, 2002.
The court noted that the conversion was later approved by the competent authority and no law required demolition as an automatic consequence of such a defect.
The bench further held,
“The classification of land as ‘danga’ or ‘bastu’ is essentially a revenue classification, and in the absence of a specific statutory prohibition, the mere fact that conversion was granted subsequent to the approval of the building plan could not, by itself, render the construction raised by Aarsuday Projects, illegal.”
The Supreme Court observed that the material on record clearly showed that Aarsuday Projects had completed the construction only after obtaining all necessary permissions and approvals from the authorities who had jurisdiction at the relevant time.
It said, “In these circumstances, no mala fides or deliberate mischief or wrongdoing can be attributed to the actions of Aarsuday Projects in undertaking and completing the disputed construction.”
Strongly criticising the High Court’s approach, the apex court noted that the High Court had assumed the land to be “khoai” land requiring protection, relying heavily on the Supreme Court’s 2005 judgment in the Sushanta Tagore case and on Rabindranath Tagore’s literary descriptions.
The High Court had treated “khoai” as a unique natural formation of visual and aesthetic importance, popular among visitors to Santiniketan and a source of artistic inspiration.
The Supreme Court pointed out that the High Court judgment failed to consider a crucial fact — that plots adjoining the disputed land had already been used for residential construction much before Aarsuday Projects began its project.
The court also noted that the PIL petitioners who had challenged the construction did not place any proper documentary or admissible evidence before the High Court to prove that the land was actually “khoai” land.
Observing that the PIL itself should not have been entertained, the bench said that although writ jurisdiction serves an important constitutional purpose, petitioners must bring clear, reliable, and strong evidence to support their claims.
ALSO READ: Nainital Minor Rape Case: Uttarakhand HC Slams Authorities, Orders SSP to Lead Probe
It further said,
“Public interest litigation cannot be permitted to become a vehicle for selective or targeted challenges, nor can it be invoked to resolve contested factual issues which are not capable of determination on affidavits alone,”
Taking a serious view of the conduct of the PIL petitioners, the Supreme Court imposed a fine of ₹1 lakh on them. The court noted that the petitioners had failed to disclose an important fact — that they themselves had existing residential structures very close to the disputed construction raised by Aarsuday Projects.
Click Here to Read More Reports On Calcutta HC Demolition
FOLLOW US FOR MORE LEGAL UPDATES ON YOUTUBE
