SC clears housing project near Visva-Bharati University, sets aside HC's demolition order

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, it said.

The Supreme Court on Thursday cleared the construction of a commercial housing project near the historic Visva-Bharati University in West Bengal and set aside a Calcutta High Court order directing its demolition. The top court said disputed land in question was referred to by the name of ''khoai'' (protected) by the high court but no category by the name of ''khoai'' land exists under the revenue laws of West Bengal. A bench of justices Vikram Nath and Sandeep Mehta noted that the description of ''khoai'' appears to have been borrowed from the writings of Nobel Laureate Rabindranath Tagore, who referred to a peculiar geological formation found in and around the Birbhum region, created by natural decay and erosion, by wind and water, of small hills comprising red laterite soil rich in iron, resulting in the formation of natural gullies and canyon-like terrain. It said the high court held that the construction raised by Aarsuday Projects, a private developer on a plot of land admeasuring 0.39 acres, near the Visva-Bharati University was in the nature of preserved land falling in the category of ''khoai'' land. Upholding the legality of the construction of the residential building, the bench said, ''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 said the approval by the Ruppur Gram Panchayat to the building plan on November 5, 2011 cannot be faulted and outrightly rejected. ''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,'' the top court said. It added that such an infirmity would warrant regulatory scrutiny or corrective measures in accordance with law but would not, however, justify the extreme consequence of demolition of a completed structure, particularly when the land was earmarked for ''residential use'' as per the Land Use and Development Control Plan, 2002 and the conversion was subsequently approved by the competent authority and no statutory provision mandated demolition as an automatic or inevitable consequence of such a defect. ''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,'' it said. The top court said from the material on record it is evident that Aarsuday Projects undertook and completed the construction after securing the requisite permissions and sanctions from the competent authorities and exercising jurisdiction at the relevant point in time. ''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,'' it said. Criticising the high court's decision, the top court said the high court proceeded on the premise that the land on which the disputed construction was raised, was ''khoai'' land deserving preservation, drawing heavily from the judgment of this court in Sushanta Tagore (2005 verdict) and with references to the writings of Rabindranath Tagore, wherein ''khoai'' was described as a unique natural formation of aesthetic and visual significance, frequented by visitors to Santiniketan and serving as a source of artistic inspiration. The top court further said that the high court's judgement was also conspicuously silent on the crucial aspect that plots adjoining the subject plot had already been utilised for construction of residential buildings much prior to the disputed construction. It noted that the PIL petitioners who alleged illegality in the construction of the housing project for want of compliance of norms before the high court did not place on record any contemporaneous documentary evidence or admissible material to establish that the disputed construction was, in fact, raised on ''khoai'' land. Observing that the PIL should not have been entertained, the bench said while writ jurisdiction serves an important constitutional purpose, the burden squarely lies on the writ petitioners to place clear, cogent, and reliable material on record in support of the allegations made. ''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,'' it said and imposed a fine of Rs 1 lakh on the PIL petitioners before the high court for not disclosing that they had existing residential structures in the immediate vicinity of the disputed construction raised by Aarsuday Projects.

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