M/S Aarsuday Projects vs. Jogen Chowdhury

2026 INSC 93
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 2920 OF 2018


M/S AARSUDAY PROJECTS
& INFRASTRUCTURE (P) LTD .….APPELLANT(S)

VERSUS

JOGEN CHOWDHURY
& ORS. ….RESPONDENT(S)


WITH

CIVIL APPEAL NO(S). 2921 OF 2018

CIVIL APPEAL NO(S). 2922-2923 OF 2018

J U D G M E N T
Mehta, J.
Table of Contents
I. SUBJECT MATTER AND SCOPE OF THE PRESENT
APPEALS ........................................................................ 2
II. BACKGROUND AND EVOLUTION OF THE
CONTROVERSY: - ........................................................... 9
Signature Not Verified
Digitally signed by
RASHI GUPTA
Date: 2026.01.29
17:48:15 IST
Reason:
1


III. FACTUAL MATRIX OF THE PRESENT CASE: - ...... 22
IV. SUBMISSIONS ON BEHALF OF AARSUDAY
PROJECTS: - ................................................................ 30
V. SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 1-
7 (WRIT PETITIONERS BEFORE THE HIGH COURT): - .. 37
VI. SUBMISSIONS ON BEHALF OF THE SSDA:- .......... 40
VII. SUBMISSIONS ON BEHALF OF VISVA-BHARATI
UNIVERSITY: - ............................................................. 43
VIII. ANALYSIS AND DISCUSSION: - ............................ 44
A . A DMITTED F ACTS E MERGING FROM THE R ECORD .............. 45
B . F INDINGS R ECORDED BY THE H IGH C OURT ...................... 47
C . R EGULATORY A PPROVALS , P ERMISSIONS , AND F ACTUAL
C HRONOLOGY R ELATING TO THE D ISPUTED C ONSTRUCTION ...... 55
D . A SSESSMENT OF THE H IGH C OURT ’ S A PPROACH ON THE
N ATURE OF THE L AND AND R EGULATORY P ERMISSIONS ............ 70
E ONA IDES OF THE RIT ETITIONERS ESPONDENT OS
. B F W P (R N . 1-
AND URDEN OF ROOF IN UBLIC NTEREST ITIGATION
7) B P P I L ...... 83
IX. CONCLUSION ...................................................... 91


1. Heard.
I. SUBJECT MATTER AND SCOPE OF
THE PRESENT APPEALS

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2. The instant appeals with special leave are
st
directed against the judgment and order dated 21 &
nd
22 August, 2013 passed by the Division Bench of
1
the High Court at Calcutta in Writ Petition No.
8341(W) of 2012, whereby the said writ petition in the
nature of public interest litigation preferred by
2
respondent Nos. 1-7 came to be accepted and the
High Court directed the demolition of the building
constructed by the appellant-M/s. Aarsuday Projects
3 4
& Infrastructure (P) Ltd. on the subject plot and also
directed Aarsuday Projects to pay compensation to
the tune of Rs.10,00,000/-, which was to be used for
the purpose of restoration and preservation of the
area in question. The High Court also saddled

1
Hereinafter, being referred to as the “High Court”.
2
Before the High Court, there were 8 writ petitioners, and all were made
party-respondents in Civil Appeal No. 2920 of 2018. However, the name of
Shri Sushanta Tagore was deleted from the array of parties vide this
th
Court’s order dated 27 July, 2015 owing to his death.
3
Hereinafter, being referred to as the “Aarsuday Projects”.
4
Plot No. 3644/3782 admeasuring 0.39 acres in Mouza Ballavpur, J.L.
No. 63, District Birbhum.
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Aarsuday Projects with costs of Rs.25,000/- payable
to the writ petitioners therein.
3. Simultaneously, the High Court also directed
the initiation of appropriate proceedings against the
officers of Sriniketan Santiniketan Development
5
Authority who had issued the “No Objection
Certificate” for conversion of land from “danga” to
“bastu” and District Land & Land Reforms Officer,
Birbhum (DL&LRO, Birbhum), as well as against the
concerned officers of the Ruppur Gram Panchayat for
alleged violation of the mandate of judgment
rendered by this Court in the case of Sushanta
6
Tagore and Ors. v. Union of India and Ors. For
the sake of ready reference, the operative portion of
the impugned judgment is reproduced hereinbelow: -
“In the instant case, the land in question is of
immense public importance. Considering the
environmental ambience and the international
heritage, importance of Visva Bharati and

5
Hereinafter, being referred to as the “SSDA”.
6
(2005) 3 SCC 16.
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Santiniketan, we find that the construction made for
private gain in the land which has been converted to
“khoai” a rare gift of nature, and/or in areas the
inextricably connected to “khoai”, is wholly
impermissible and violative of principles laid down
by the Hon’ble Supreme Court in the aforesaid
decision of Susantha Tagore (supra). Private
rights/interests have to give way to larger public
interest.

(…..)
It is apparent that there were various illegal
encroachments, which have been made in the area
of Santiniketan and Visva Bharati, though there are
resolutions that such structures have to be
demolished in accordance with law, but no steps
have been taken by the respondents.
Coming to yet another aspect, we find that the
District Magistrate has ordered as the lodging of first
information report against the builders for illegal
construction by the builders and for taking steps
against the Sriniketan Santiniketan Development
Authority and DLLRO. Though we appreciate report
but we record the steps have to be taken to their
logical conclusion implemented along with
resolutions in true spirit and not allowed to remain
as mere lip service to the cause of preservation of
ecology and heritage.
Since we find flagrant violation of the decision of the
Hon’ble Supreme Court in Sushanta Tagore’s case,
we propose to initiate action against the responsible
officer of Sriniketan Santiniketan Development
Authority, who had issued the no objection, and the
District Land & Land Reforms Officer as well as
against the concerned officers of the gram panchayet
as to why they should not be dealt with suitably for
violating the mandate of the apex court in the
manner in which they have done. The officers, as
aforesaid, should have first of all considered the
decision of the Hon’ble Supreme Court and ought to
have acted in accordance with it, but ignoring the
mandate of the Hon'ble Supreme Court they had
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acted directly against the same. Thus, they are
supposed to explain why they should not be hauled
up for violating the decision of the Hon’ble Supreme
Court.
Let appropriate proceedings be separately registered
against them and be placed before us for
consideration.
We are, therefore, of the opinion that since the
development plan prepared by the Sriniketan
Santiniketan Development Authority was required
to be modified in terms of the notification issued on
January 25, 2010, no right can accrue to the
respondent no. 6 therefrom so as to sustain a totally
illegal and unauthorised act in raising a large scale
multi-storied construction in an ecologically and
culturally preserved area adjoining a wild life
sanctuary and destroying “khoai” land.
It is apparent that it was necessary to work out
peripheral limits of buffer zone in and around Visva
Bharati campus, which has not been done so far. it
was also necessary to carry out changes in
development plans mentioned in notification dated
25.04.2010 issued under the Act of 1979. We
restrain any kind of construction till such exercise
is done and the development plan is modified by the
Sriniketan-Santiniketan Development Authority in
terms of the notification dated January 25, 2010 in
mouzas covered in it issued under the West Bengal
Town & Country (Planning and Development) Act,
1979.
We find that objection raised from time to time
remain unheeded to. Prompt action ought to have
been taken by the District Magistrate and the
Superintendent of Police against the Sriniketan-
Santiniketan Development Authority and other
concerned bodies not only to stop the construction
in question but to demolish it as the same is totally
illegal.
Resultantly, as the construction of the building is
found to be wholly unauthorised and illegal for the
reasons, as aforesaid, we direct demolition of the
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same. The District Magistrate, Birbhum and the
Superintendent of Police, Birbhum as also the
Bolpur-Srinikektan Panchayet Samity shall take
action for demolishing the building within a period
of one month from date and to file their compliance
report before this court. We direct the authorities, as
aforesaid, not only to demolish the building in
question in totality but to restore the land, as it was,
as far as possible and to keep it as such. They are
also directed to ensure that no constructional
activity in the area covered by notification on
25/1/2010 of Santiniketan and Visva Bharati to be
undertaken till the development plan is modified in
accordance with law in terms of the notification
dated January 25, 2010 and without prior approval
of the Apex Advisory Committee constituted in terms
of notification dated January 18, 2011 and without
consultation with the West Bengal Pollution Control
Board. We further direct till consultation with the
Archaeological Survey of India is completed, no
permission for raising any construction to be
accorded in future by any authority, such as,
Sriniketan Santiniketan Development Authority,
Bolpur-Srinikektan Panchayet and other local
bodies, authorities such as municipality, etc. in
Mouzas included in notification dated 25.1.2010
and in Visva Bharati/Santiniketan.
As the construction had been raised by the
respondent no. 6 in a wholly unauthorised manner
and that too without providing any ingress and
egress to the road and thereby creating disturbances
to the. Visva Bharati University and damage to
Khoai land, we direct compensation of Rs. 10 lakhs
to be paid by the respondent No. 6, which is to be
used for the purpose of restoration of the land and
preservation of the area in question. The amount of
compensation is to be spent at the advice of the Apex
Advisory Committee. The respondent No. 6 is further
directed to pay costs of litigation Rs.25,000/- to the
writ petitioners.”

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4. The aforesaid judgment of the High Court forms
the subject matter of challenge in the present appeals
by special leave. The particulars of the appeals are
set out hereunder: -
• Civil Appeal No. 2920 of 2018: Preferred by
Aarsuday Projects, the developer of the subject
plot.
• Civil Appeal No. 2921 of 2018: Preferred by
the SSDA, challenging the adverse observations
made by the High Court against it and its
officers, as well as the consequential directions
for initiation of action against its officer(s).
• Civil Appeal Nos. 2922-2923 of 2018:
Preferred by the subsequent purchasers of flats
constructed by Aarsuday Projects on the subject
plot.
5. It is apposite to note herein that this Court,
vide
th
order dated 6 September, 2013, while issuing notice
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in the appeal preferred by Aarsuday Projects, directed
the parties to maintain status quo in all respects with
regard to the subject building(s) as well as the subject
land, in the following terms:
“In the meanwhile, the petitioner and respondents
shall maintain status quo as obtaining today in all
respects with regard to the subject building(s) as
well as the subject land.”
II. BACKGROUND AND EVOLUTION OF
THE CONTROVERSY: -
6. The controversy in the case at hand revolves
around the disputed construction raised by Aarsuday
Projects on a plot of land admeasuring 0.39 acres,
near the Visva-Bharati University, which, according
to the High Court was in the nature of preserved land
falling in the category of “khoai” land. There is no
dispute amongst the parties that no category by the
name of “khoai” land exists under the revenue laws
of the State of West Bengal. The said description
appears to have been borrowed from the writings of
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the Nobel Laureate, Shri 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.
7. In judicial parlance, the existence of “khoai”
land was recognised for the first time by the High
Court at Calcutta and subsequently by this Court in
the case of Sushanta Tagore (supra) . In the said
case, the Courts were concerned with the large-scale
construction of residential-cum-commercial
complexes within the territorial limits of
Santiniketan, District Birbhum, West Bengal, which
were alleged to have adversely impacted the
ecological balance, cultural ethos, and environmental
sanctity of the region.
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8. The litigation originated from a public interest
petition instituted before the High Court, inter alia ,
alleging that unregulated and indiscriminate
construction activity in and around Santiniketan had
resulted in serious degradation of its cultural and
environmental heritage, undermining the ideals and
objectives underlying the establishment of Visva-
Bharati University.
9. A Division Bench of the High Court vide
th
judgment dated 20 August, 2004, dismissed the
writ petition filed in the nature of public interest
litigation, holding that since Visva-Bharati University
was not the owner of the entire 3,000 hectares of land
in question, the relief sought for by the PIL petitioner
therein could not be granted. The High Court opined
that, in the absence of any statutory restriction, the
State was competent to deal with such land in
accordance with law, and that the establishment of
11
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residential structures or other peaceful activities in
the vicinity of a university could not, by itself, be
termed illegal. While acknowledging that increasing
population and construction activity would inevitably
alter the character of areas surrounding Santiniketan
over a period of time, the High Court held that neither
the Visva-Bharati Act, 1951 nor the ideals of
Rabindranath Tagore mandated that the entire
Santiniketan has to be preserved as an exclusive or
static zone in perpetuity. It was further observed that
regulating construction on the basis of the poet’s
ideals, in the absence of a clear statutory framework,
would be impractical and unenforceable. The High
Court concluded that although the proposed housing
project therein would alter the local topography, no
overriding public interest warranted restraint,
particularly where development was planned,
systematic, and in conformity with applicable laws.
12
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10. The aforesaid judgment of the High Court was
challenged before this Court in Sushanta Tagore
(supra) .
11.
This Court, while adjudicating the matter, took
cognizance of the fact that the West Bengal Pollution
Control Board (WBPCB) had imposed restrictions
upon municipal authorities, prohibiting the sanction
of building plans for large housing complexes without
prior environmental clearance. This Court also
referred to and extracted relevant portions of the
report submitted by the WBPCB. For ready reference,
these observations from Sushanta Tagore (supra)
are reproduced hereinbelow: -
“ Report of the Pollution Control Board
20. From the report sent by the W.B. Pollution
Control Board, it would appear that it had issued a
direction restricting the municipal corporations, etc.
from sanctioning any building plan of big housing
complexes without obtaining its environmental
clearance. Having regard to the peculiar features
and the fact that SSDA’s working area includes
maintenance and preservation of cultural heritage
and natural environment of Sriniketan-Santiniketan
and further in view of the increase in the price of the
13
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land of Khoai and as people visiting Santiniketan
enjoy Khoai by seeing in different climatic and scenic
conditions, it was stated:
“Increasing constructional activity in Sriniketan-
Santiniketan area may cause serious disruption in
natural drainage system. It is therefore necessary to
examine the drainage pattern (both dry weather flow
and storm water flow) in the area and document it
as per field condition. It is suggested that SSDA
could take up the job examining the drainage
pattern and system and document them in a map
(marked with contour). The coming rainy season
(July-September) could be ideal for the field study.
As Santiniketan is getting developed as tourist
place, therefore, it is essential to preserve the
natural beauty and heritage which people like to
enjoy. It is true that planned housing is one of the
components of urbanisation. There is a great
demand of housing not only from the local residents
but also from people outside. Many want to keep a
second home for use during weekends, holidays and
festivals. Housing needs supporting infrastructures,
also required to be constructed. Further, it will
require adequate water supply, sanitation and
drainage, solid waste management, etc.
Urbanisation will have impact on ambient air
quality unless problem-mitigation measures are
taken properly. The rapid EIA report submitted by
BPHDCL though indicated that suspended
particulate matters in ambient air at Sonar Taree
area are below maximum permissible limit, but the
same near Pearson Memorial Hospital was more
than the permissible limit in December. Even on
some days of December the SPM was more than the
permissible limit at Sonar Taree area. However,
other parameters of ambient air are well below the
permissible limit.”
It was opined:
“SSDA should follow land use and development
control plan already prepared by Urban
Development (T&CP) Department. In addition, SSDA
14
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must see to conservation of the natural heritage of
the place as far as practicable. It is also true that
when development of Santiniketan-Sriniketan area
is a necessity due to promotion of tourism and urban
pull, there must be certain changes in the land use
pattern resulting in disappearance of Khoai
landscape from certain places. Hence SSDA must
look into this aspect while planning for development
of area keeping changes of Khoai land formation
minimal.”
Among other things, the report recommended that:
(i) no more housing projects be undertaken until
SSDA’s perspective plan 2025 including Visva-
Bharati’s special requirements was approved,
( ii ) ensure minimal damage to the remaining Khoai
so as to preserve its natural beauty, heritage and
natural drainage system,
( iii ) a satellite township be built at a suitable
distance from the Visva-Bharati area.”
12. Taking note of the aforesaid report, as well as
the provisions of the Visva-Bharati Act, 1951, this
Court proceeded to hold that while development and
change are inevitable, Santiniketan, having regard to
its unique cultural, educational, and ecological
character, stands on a distinct footing. This Court
emphasized that the statutory scheme underlying the
Visva-Bharati Act, 1951 mandated preservation of
the traditions, ethos, and environmental ambience of
15
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the institution and its surroundings, particularly the
“khoai” landscape, which forms an integral part of
Nobel Laureate, Shri Rabindranath Tagore’s literary
philosophy. It was observed that indiscriminate and
large-scale residential or commercial construction
would not only alter the topography of Santiniketan
but also defeat the very object and purpose of the
enactment. This Court further held that development
must be sustainable, planned, and in conformity with
environmental and pollution control laws, and that
there could be no parity/perpetuity of illegality
merely because unauthorized constructions may
have come up in the past.
13. Having held so, this Court addressed the
prevailing equities and noted that the project in
question had received approvals at various stages,
that substantial investment had already been made,
and that similar housing projects had already come
16
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into existence in the area. In those circumstances,
while refraining from disrupting the construction
already undertaken, this Court issued clear
directions that, in future, the SSDA must
scrupulously adhere to the statutory provisions, the
objectives of the Visva-Bharati Act, 1951 and the
recommendations of the WBPCB, recognizing that
the SSDA bears a higher and distinct responsibility
in view of the sui generis character of Santiniketan.
Relevant findings from the said judgment are
reproduced hereinbelow: -
“25. The Division Bench of the High Court, as
noticed hereinbefore, arrived at a finding that the
continued increase of building activities will slowly
change the place almost beyond recognition of the
poet and the activities of Bengal Ambuja Housing
Complex Ltd. will to some extent change the
topography of Santiniketan in the canal front.
Despite holding so, the High Court observed that
such changes are necessary having regard to the
continued increase in population of Santiniketan
and, as the Act does not contain any provision
Santiniketan was required to be made an exclusive
spot forever and, furthermore, as allowing
Santiniketan in its original form would be
impractical, it can be permitted to become
residential town or even industrial town provided the
17
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growth is planned, systematic and in accordance
with the laws relating to freedom from population.
26. If by reason of any activity, the tradition and
special features of Visva-Bharati are not
preserved, the very purpose of the enactment
would be defeated. It has not been denied or
disputed that even now Visva-Bharati organises
classes in open air and also on Khoai lands,
particularly, drawing and painting classes.
(…..)
29. The Division Bench of the High Court, in our
opinion, was not correct in holding that in the
event the building activity in the territorial area
comprising Santiniketan as specified in the Act
was to take place in accordance with the spirit
and ideas of Rabindranath Tagore, such activity
cannot be monitored in the practical world and,
therefore, would constitute illegal and
impractical way of thought and furthermore
although the House Complex Project of
Respondent 10 would change the topography of
Santiniketan in the canal front, there was no
public interest calling for restraint of such a
change.
30. The West Bengal Pollution Control Board is a
statutory body. The environmental impact
assessment in terms of the provisions of the laws
governing ecology of the area is imperative. The
Pollution Control Board which has statutory duties
to perform had issued certain directions for
preservation and conservation for cultural,
historical, archaeological, environmental and
ecological purposes. Such directions are binding on
the State as well as SSDA. If any construction is
carried out on the Khoai, the same indisputably will
destroy its unique natural and cultural heritage, as
opined by the Board, and, thus, all constructional
activities must abide by the same.
(…..)
33. It may be true that the development of a town is
the job of the Town Planning Authority but the same
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should conform to the requirements of law.
Development must be sustainable in nature. A land
use plan should be prepared not only having
regard to the provisions contained in the 1979
Act and the Rules and Regulations framed
thereunder but also the provisions of other
statutes enacted therefor and in particular those
for protection and preservation of ecology and
environment.
34. As Visva-Bharati has the unique distinction
of being not only a university of national
importance but also a unitary one, SSDA should
be well advised to keep in mind the provisions of
the Act, the object and purpose for which it has
been enacted as also the report of the West
Bengal Pollution Control Board. It is sui generis.
35. It is idle to compare Santiniketan with any other
university. Truism is that Santiniketan has unique
features. Its environmental ambience, thus, must be
maintained. There is no other university which
having regard to the purport and object of the Act,
as would appear from the objects and reasons
thereof, can be compared with Visva-Bharati. Our
attention has not been drawn to any other statute
establishing any university which has such unique
features as Visva-Bharati.
36. Only because some advantages would ensue
to the people in general by reason of the
proposed development, the same would not
mean that the ecology of the place would be
sacrificed. Only because some encroachments
have been made and unauthorised buildings have
been constructed, the same by itself cannot be a
good ground for allowing other constructional
activities to come up which would be in violation
of the provisions of the Act. Illegal
encroachments, if any, may be removed in
accordance with law. It is trite law that there is
no equality in illegality.
37. The Parliamentary Debates, some of which we
have noticed hereinbefore, clearly go to show that
19
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the Act was enacted with particular objectives in
view. Such statutory objects could not have been
given a go-by. It is not suggested that
Santiniketan should remain as it was in 1921 but
it cannot be permitted to become full of concrete
jungles and industrial hub. For carrying out
further constructional activities, it may not be
necessary for a builder to apply to the University
for seeking its permission but the local self-
government which is responsible therefor must
take into consideration the salutary principles
laid down in the pollution control laws as well as
the Act. The land use and future planning of
Santiniketan must be done in such a manner so
that the changes be brought about which would
not be beyond the recognition of the poet as also
the provisions of the Act. SSDA in that sense
must distinguish itself from the other
development authorities. It has an extra burden
to shoulder. It cannot shut its eyes to the
provisions of the Act and the object and purport
it seeks to achieve. It cannot ignore the
environmental impact assessment made by the
Board. It is one thing to say that SSDA may
permit small constructions to be made by the
owners of the land or additions or allow
alterations to the existing building for residential
purposes but it is another thing to say that it
would not consider the effect of the changes
which may be brought about by turning
Santiniketan into a commercial and industrial
hub.
(…..)
Conclusion
39. The question is what do we do in the instant
case?
40. SSDA issued notices as regards adoption of the
land use map as far back as in the years 1999 and
2000. The State Government had granted a long-
term settlement in favour of SSDA with a further
right to the residential flat owners for the
20
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unexpired period of lease by an order dated 25-4-
2003. In 2003 itself, the project had been given
a green signal and it is stated before us that
Respondent 10 has already spent about 1.5
crores of rupees.
41. Our attention has further been drawn by Mr
Sanghi that the house project of Bengal Peerless
has already come into being. In that view of the
matter, we do not intend to stop the
construction activities which are being carried
out by Respondent 10 but direct that in future
SSDA must keep in mind the statutory provisions
referred to hereinbefore as also the observations
made by us herein. ”
[Emphasis supplied]
14. The present litigation seems to be a sequel to
the above judgment. The public interest litigation
being Writ Petition No. 8341(W) of 2012 came to be
filed in the High Court alleging inter alia that the
permission granted to Aarsuday Projects to construct
a residential building was illegal inasmuch as the
permission for construction was not granted by the
competent authority and that the construction was
being raised on “khoai” land which was
impermissible in view of the mandate of this Court in
Sushanta Tagore (supra) .
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15. The High Court accepted the averments made in
the writ petition as well as the inspection reports
called by it during the course of adjudication and on
that basis, by the impugned judgment, directed
demolition of the building constructed by Aarsuday
Projects for residential and commercial purposes and
also gave ancillary directions reproduced ( supra).
III. FACTUAL MATRIX OF THE PRESENT
CASE: -
16. Before adverting to the submissions of learned
counsel for the parties, it would be apposite, for the
sake of convenience, to set out a chronological list of
dates relevant and essential for the disposal of the
present appeals.
2002: The Land Use and Development Control Plan
in respect of Sriniketan Santiniketan Planning Area
including the subject plot admeasuring 0.39 acres
was published by the competent planning authority,
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wherein the subject plot was designated for
“residential use”.
11.08.2009 : Aarsuday Projects, purchased the
subject plot by way of a registered sale deed.
03.12.2009 : The subject plot was recorded
as danga (barren land) in the Record of Rights.
29.12.2009 : The Ruppur Gram Panchayat issued a
“No Objection Certificate” for residential construction
on the subject plot, conditional upon procurement of
conversion permission for the same.
25.10.2010 : The Urban Development Department,
Government of West Bengal, directed the SSDA to
revise the Development Plan for eleven mouzas
including Mouza Ballavpur, keeping in view the spirit
of conservation and preservation.
30.06.2011: Aarsuday Projects started the
development on the subject plot.
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10.09.2011 : SSDA constituted a three-member Sub-
Committee, comprising representatives of the Visva-
Bharati Anchal Abasik Samiti and Visva-Bharati
University, for selection and implementation of the
schemes approved by it.
21.10.2011 : The building plan submitted by
Aarsuday Projects proposed a plinth area of over 300
square metres. Consequently, the Ruppur Gram
Panchayat forwarded the same to the Zilla Parishad,
Birbhum, for vetting and approval in terms of
the second proviso to Rule 28 of the West Bengal
Panchayat (Gram Panchayat Administration) Rules,
2004.
04.11.2011 : The Zilla Parishad, Birbhum vetted the
building plan and forwarded it to the Ruppur Gram
Panchayat.
24
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05.11.2011 : The Ruppur Gram Panchayat treated
the vetted plan as approved and communicated the
same to Aarsuday Projects.
27.01.2012
: SSDA directed inspection of the site and
called for a report from the Sub-Committee prior to
considering the grant of “No Objection Certificate” for
construction on the subject plot.
08.02.2012 : The Sub-Committee conducted
inspection of the site and submitted its report,
finding no impediment to the grant of “No Objection
Certificate” for conversion of land for residential
construction, i.e., from “danga” to “bastu” .
28.02.2012 : SSDA accorded “No Objection
Certificate” for conversion of the land to bastu
(residential use).
17.04.2012 : The present writ petition being Writ
Petition No. 8341(W) of 2012 in the nature of public
interest litigation, was filed before the High Court
25
C.A. NO(S). 2920/2018 & connected matters


seeking revocation of the sanction/permission
granted to Aarsuday Projects for construction of the
building, primarily on two grounds, (a) permission to
construct granted to Aarsuday Projects was illegal
inasmuch as the permission was not granted by the
competent authority and (b) the construction was
being raised on “khoai” land, which was
impermissible in view of the mandate of this Court in
Sushanta Tagore (supra) .
It is relevant to note that no interim stay on
construction was granted by the High Court at the
initial stage.
05.06.2012 : SSDA recorded the grant of “No
Objection Certificate” to Aarsuday Projects. The said
action was taken in the presence of
representatives of Visva-Bharati University.
09.01.2013: The District Land & Land Reforms
Officer, Birbhum (DL&LRO, Birbhum), approved the
26
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conversion of the subject plot from “danga” to “bastu”
for the purpose of setting up a commercial housing
project, subject to completion within a period of six
months.
July, 2013: Construction of the disputed building
was completed by Aarsuday Projects.
11.07.2013 : The High Court called for reports from
the District Magistrate and the West Bengal Pollution
Control Board (WBPCB) on the issue as to whether
the subject plot was “khoai” land and whether due
clearances/permissions had been taken by the
builder, i.e., Aarsuday Projects for raising
construction on the subject plot.
19.07.2013 : WBPCB submitted its inspection report
stating that the adjacent area to the subject plot
was a low-lying area locally known as “khoai”
land, and further observed that no clearance
from the Board was required as the built-up area
27
C.A. NO(S). 2920/2018 & connected matters


of the construction raised by Aarsuday Projects
measured less than 20,000 square metres.
23.07.2013 : The District Magistrate submitted a
report without recording any specific finding on the
nature of the land, stating that clarification had been
sought from the SSDA regarding the basis for grant
of “No Objection Certificate” for construction on the
subject plot.
14.08.2013 : SSDA filed its objections/exceptions to
the District Magistrate’s report, asserting that the “No
Objection Certificate” was granted considering that
the subject plot was earmarked for “residential use”
in the Land Use and Development Control Plan, 2002
and that substantial human settlement already
existed in the area.
21/22.08.2013 : The High Court rendered
the impugned judgment, holding that the Panchayat
Samiti alone was the competent authority to grant
28
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the permission for construction and that no such
permission had been obtained. It was further held
that the officers of the SSDA, Gram Panchayat, and
DL&LRO, Birbhum had acted in violation of the
judgment in Sushanta Tagore (supra) , and that the
development plan ought to have been modified in
compliance with the said judgment. Consequently,
the construction carried out by Aarsuday Projects
was declared to be illegal and directions were issued
for demolition of the disputed construction. The High
Court also held that the construction had caused
disturbance to Visva-Bharati University and damage
to “khoai” land, and accordingly directed the
developer, i.e., Aarsuday Projects, to pay
compensation of Rs. 10,00,000/-. Further, costs of
Rs. 25,000/- was imposed on Aarsuday Projects,
payable to the writ petitioners. Liberty was granted to
29
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the purchasers to work out their equities with the
builder/developer, i.e., Aarsuday Projects.
The aforesaid judgment of the High court is the
subject matter of challenge in the present appeals by
special leave, preferred independently by Aarsuday
Projects, the SSDA and the subsequent purchasers
of flats built by Aarsuday Projects.
IV. SUBMISSIONS ON BEHALF OF
AARSUDAY PROJECTS: -

17. Mr. Siddharth Bhatnagar, learned senior
counsel appearing on behalf of Aarsuday Projects,
assailed the impugned judgment of the High Court on
the following counts: -
A. That the High Court completely glossed over the
vital fact that the subject plot admeasuring 0.39
acres was privately owned property, lawfully
acquired by Aarsuday Projects under a registered
sale deed and that the entire area, including the
30
C.A. NO(S). 2920/2018 & connected matters


subject plot, had been earmarked for residential
and commercial use under the Land Use and
Development Control Plan, 2002 notified by the
SSDA, being the sole competent authority for land-
use planning in the region.
B. That it was clearly demonstrated before the High
Court that historically the Panchayat Samiti had
not been according building permissions for
several years and that applications for
construction exceeding the jurisdiction of the
Gram Panchayat were routinely forwarded to the
Zilla Parishad for vetting. In the present case, the
Aarsuday Projects’ building plan was submitted to
the Ruppur Gram Panchayat which forwarded the
same to the Zilla Parishad, Birbhum, which in turn
vetted the same in accordance with law. The vetted
plan was returned to the Ruppur Gram Panchayat,
which treated the plan to be approved, conveyed
31
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the said approval to Aarsuday Projects and only
thereafter was the construction undertaken.
C. That even assuming, arguendo , that the Gram
Panchayat was not the competent authority to
accord approval to the building plan and that such
authority vested exclusively in the Panchayat
Samiti, the same constituted, at best, a minor
procedural irregularity which was curable in
nature. It was urged that such an alleged defect in
the grant of approval could not have been treated
as fatal so as to warrant demolition of the entire
structure, especially when the building plan had
been vetted by the Zilla Parishad, construction was
undertaken bona fide , and no statutory framework
mandated demolition as the sole consequence of
such an irregularity.
D. That the SSDA had constituted a three-member
Sub-Committee for the selection and
32
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implementation of the construction schemes in the
Santiniketan area, which duly considered and
approved Aarsuday Projects’ application for
conversion of the subject plot from “danga” to
“bastu” . The said Sub-Committee comprised of the
representatives of Visva-Bharati Anchal Abasik
Samiti and Visva-Bharati University, and at no
stage of its deliberations was any objection raised
regarding the subject plot being in the nature of
“khoai” land. Furthermore, the conversion of land
use of the subject plot from “danga” to “bastu”
being permissible under the applicable rules, no
mala fides or ill intention could be attributed to
Aarsuday Projects in undertaking construction
pursuant to the permission/sanction granted by
the SSDA.
E. That the High Court completely glossed over the
material placed on record demonstrating the
33
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existence of extensive construction of residential
premises in the surrounding area, including on
adjoining plots as well as on plots situated
opposite the subject plot owned by Aarsuday
Projects. In such circumstances, the decision to
single out Aarsuday Projects for the extreme
measure of demolition, which is both drastic and
disproportionate, on the basis of unreliable
material and unsubstantiated findings, is wholly
arbitrary and unjustified.

F. Mr. Bhatnagar further submitted that the reliance
placed by the High Court on the reports of the
District Magistrate and the West Bengal Pollution
Control Board (WBPCB) for concluding that the
disputed construction was unauthorised and
illegal is absolutely unjust and arbitrary. He
pointed out that the report of the WBPCB clearly
indicated that the subject plot was situated in a
34
C.A. NO(S). 2920/2018 & connected matters


residential area; that the built-up area of the
residential building raised by Aarsuday Projects
measured less than 20,000 square metres and
hence, no permission was required from the
WBPCB and that the “khoai” like
recess/depression existed adjacent to the subject
plot. He submitted that the report of the District
Magistrate is also based on sheer conjectures and
surmises, since no scientific survey, technical
study, or contemporaneous land record was relied
upon to substantiate the conclusion that the land
was of “khoai” nature or otherwise restricted for
residential construction. It was urged that both the
reports are conspicuously silent on the material
aspect as to how several pre-existing buildings in
the immediate vicinity of the construction raised
by Aarsuday Projects had been permitted to be
erected, a circumstance which had a direct bearing
35
C.A. NO(S). 2920/2018 & connected matters


on the character of the area and the uniform
application of the regulatory framework. He,
therefore, submitted that since the very foundation
of the impugned judgment rests upon the reports
of the WBPCB and the District Magistrate, which
are unreliable and unsupported by cogent
material, the judgment cannot be sustained either
on facts or in law.
On these grounds, learned senior counsel urged that
the impugned judgment does not stand to scrutiny
being founded on conjectures and surmises and
rendered in complete disregard of admitted and
unimpeachable documentary evidence available on
record, and therefore, the same deserves to be set
aside.
36
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V. SUBMISSIONS ON BEHALF OF RESPONDENT
NOS. 1-7 (WRIT PETITIONERS BEFORE THE
HIGH COURT): -
18. Mr. Jaideep Gupta, learned senior counsel
appearing on behalf of Respondent Nos. 1-7 (Writ
Petitioners before the High Court), supported the
impugned judgment to the hilt and urged that the
same calls for no interference by this Court, inter alia ,
on the following grounds: -
A. That the impugned judgment is unassailable both
on facts and in law, inasmuch as the reports
submitted by the WBPCB and the District
Magistrate unequivocally establish that the
disputed construction was raised by destroying
“khoai” land and in clear violation of the judgment
passed in Sushanta Tagore (supra) . It was
therefore contended that the High Court was
justified in exercising its writ jurisdiction to direct
37
C.A. NO(S). 2920/2018 & connected matters


demolition of what was found to be an illegal and
unauthorised construction.
B. That the construction was undertaken without
obtaining permission from the competent
authority, namely, the Panchayat Samiti, and that
the manner in which Aarsuday Projects assumed
permission merely on the basis of a file vetted by
the Zilla Parishad demonstrates clear connivance
between Aarsuday Projects and the concerned
authorities.

C. That the ex-post facto conversion of the land from
“danga” to “bastu” was wholly unjustified and
contrary to law, and consequently, the directions
issued by the High Court quashing such
permission and conversion, and holding the
construction to be grossly illegal and
unauthorised, cannot be faulted and should not be
interfered with by this Court in exercise of its
38
C.A. NO(S). 2920/2018 & connected matters


extraordinary jurisdiction under Article 136 of the
Constitution of India.
D. That this Court, in Sushanta Tagore (supra) , had
as early as in the year 2005, emphasised the need
for preservation of the Santiniketan area,
including lands described as “khoai” , and had
cautioned against construction activities
detrimental to its ecological and cultural
character. It was therefore contended that the
subsequent grant of permission to construct and
the conversion of land in the present case were
contrary to the spirit and mandate of the said
judgment and amounted to a disregard of the
directions issued by this Court.
E. That, in these circumstances, the High Court
rightly entertained the challenge to such blatantly
illegal actions and justly issued directions for
demolition of the unauthorised structure as well
39
C.A. NO(S). 2920/2018 & connected matters


as for initiation of appropriate proceedings against
the erring officials, which were in the nature of
restorative justice intended to undo the damage
caused to the environment, cultural heritage and
ethos of Visva-Bharati by the unlawful acts of the
parties concerned.
On these grounds, learned senior counsel implored
this Court to dismiss the appeals with costs.
VI. SUBMISSIONS ON BEHALF OF THE
SSDA:-
19. Mr. Abhrotosh Majumdar, learned senior
counsel, appearing on behalf of the SSDA submitted
that the role discharged by the SSDA in the present
case was strictly within the confines of its statutory
functions and in accordance with the prevailing legal
framework. It was urged that the “No Objection
Certificate” issued by the SSDA was confined only to
the conversion of the land from to ,
“danga” “bastu”
40
C.A. NO(S). 2920/2018 & connected matters


which was permissible and within the statutory
framework having regard to the fact that the subject
plot was already earmarked as “residential” under the
notified Land Use and Development Control Plan,
2002. The SSDA was neither the sanctioning
authority for the building plan nor did it grant any
permission for construction, such authority
admittedly vested with the local bodies under the
applicable laws. The subsequent approval granted by
the competent revenue authority further validates
the conversion. In these circumstances, it was
submitted that the construction undertaken
pursuant to valid approvals from the competent
authorities could not be characterized as illegal, nor
could the SSDA be faulted for having acted within its
limited statutory role.
20. It was further submitted that subsequent to the
passing of the impugned judgment, the SSDA has
41
C.A. NO(S). 2920/2018 & connected matters


taken several concrete, bona fide and consistent
steps towards preservation of the ecological and
cultural heritage of the Santiniketan–Sriniketan
region balancing the objective of conservation and
planned development of the area. It was pointed out
th
that in pursuance of the order dated 6 September,
2013 passed by this Court directing maintenance of
status quo , SSDA immediately issued a public notice
clarifying that no further “No Objection Certificate”
would be issued for conversion of land or for
development in the concerned mouzas , and
thereafter, acted strictly in accordance with the
orders passed by this Court from time to time.
21. Learned senior counsel appearing for the SSDA
lastly submitted that the authority undertook a
comprehensive exercise for revision of the Land Use
and Development Control Plan, including
appointment of IIT, Kharagpur as consultant,
42
C.A. NO(S). 2920/2018 & connected matters


preparation of a revised plan covering 44 mouzas ,
inviting objections from the public, placing the
revised plan before the Apex Advisory Committee,
and obtaining approvals from the State Government
under the provisions of the West Bengal Town &
Country (Planning and Development) Act, 1979,
followed by publication of the approved plan. It was,
therefore, urged that in view of the subsequent
actions taken by the SSDA in compliance with the
directions of this Court and the statutory framework,
the adverse remarks and consequential directions
issued against the SSDA and its officers in the
impugned judgment are liable to be expunged.
VII. SUBMISSIONS ON BEHALF OF VISVA-
BHARATI UNIVERSITY: -

22. Mr. Rana Mukherjee, learned senior counsel,
appearing on behalf of Visva-Bharati University,
strenuously supported the impugned judgment. He
43
C.A. NO(S). 2920/2018 & connected matters


submitted that the disputed construction was raised
on “khoai” land, without securing permission from
the competent authority, namely, the Panchayat
Samiti and without obtaining due conversion from
the SSDA, rendering the construction wholly
unauthorized and illegal. It was, thus, contended
that the impugned judgment is legally sound and
does not call for interference by this Court. He
accordingly urged that the appellants are not entitled
to any relief and that the appeals deserve to be
dismissed.
VIII. ANALYSIS AND DISCUSSION: -
23. We have heard and considered the submissions
advanced by learned counsel for the parties and have
carefully gone through the impugned judgment as
well as the material placed on record.
44
C.A. NO(S). 2920/2018 & connected matters


a. Admitted Facts Emerging from the Record
24. We shall, at the outset, enumerate certain
admitted and undisputed facts emerging from the
record.
A. The entire parcel of land (admeasuring 28.12
acres) of which the subject plot admeasuring 0.39
acres forms a part is situated in District Birbhum
and falls within the territorial jurisdiction of the
Ruppur Gram Panchayat. The said land was never
a part of the land owned by Visva-Bharati
University, though it is contiguous thereto, and
had, much prior to the disputed construction,
been notified as falling within the planning area of
the SSDA.
B. The SSDA, being the designated planning
authority, had published a Land Use and
Development Control Plan, 2002, wherein the
subject plot situated in Mouza Ballavpur, District
45
C.A. NO(S). 2920/2018 & connected matters


Birbhum, admeasuring 0.39 acres and forming
part of a larger tract of land admeasuring 28.12
acres, was included within the planning area as
“residential” land.
C. The subject plot on which the disputed
construction was raised is private land, lawfully
acquired by Aarsuday Projects by way of a
th
registered sale deed dated 11 August, 2009 from
its erstwhile owners. The said sale deed has never
been questioned or disputed before any forum.

D. The land in question stood recorded as “danga”
[barren land] in the revenue records. There is no
contemporaneous document or material on record
indicating the existence of any “khoai” type recess
or undulation either on the subject plot or on the
adjoining plots.
E. Although deliberations had been ongoing for a
considerable period regarding declaration of areas
46
C.A. NO(S). 2920/2018 & connected matters


adjoining Visva-Bharati University as preserved
land, no formal notification to that effect had been
issued prior to the commencement or completion
of the disputed construction.
F. The record further reflects that a substantial
number of residential structures had already come
into existence on the larger tract of land adjoining
Visva-Bharati University, within which the
disputed construction is situated. Some of these
constructions exist adjacent to and opposite to the
disputed construction. The entire area appears to
be a systematically plotted landscape inhabited by
a large number of people.
b. Findings Recorded by the High Court
25. We shall now advert to certain relevant findings
recorded by the High Court in the impugned
judgment. Relevant extracts from the impugned
47
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judgment are reproduced hereinbelow for ready
reference: -
“Coming to the instant case when we gauge it in the
perspective of directions issued by the Hon’ble
Supreme Court in the case of Sushanta Tagore
(supra), firstly we find it is the same area described
as Deer Park where construction is being raised.
SSDA while issuing N.O.C. has not at all consulted
the Pollution Control Board. They have not taken
th
into consideration the Notification dated 25
January, 2010 issued in Act of 1979. Nor it has
consulted the Apex Advisory Committee constituted
th
on 18 January, 2011. The Report submitted before
the Apex Court by the Pollution Control Board in
2005 itself mentions that there should not be any
constructional activity in the area in question. As
per the decision of the Hon’ble Supreme Court in the
case of Sushanta Tagore (supra), report was binding
upon the SSDA and Panchayat/Zilla Parishad and
could not have given a go-bye to it. It is not in
dispute that SSDA while issuing N.O.C. in February,
2012 has not at all considered the decision of the
Hon’ble Supreme Court in Sushanta’s case, neither
the District Land & Land Reform Officer considered
the decision of the said case while ordering the
conversion of land in January, 2013. As per the
Pollution Control Board, no such activity is
permissible in the area. The land had formed by
natural process into ‘khoai’ land though the land is
classified as Danga land. The same is contiguous to
wildlife sanctuary also, which is 70 metres away.
The area is in Deer Park, thus, there is flagrant
violation of the aforesaid directions issued by the
Apex Court which were required to be observed while
dealing with such N.O.C., conversion and the
permission to raise construction.

Now we propose to take up the question with respect
to the competence of Gram Panchayat/Zilla
Parishad to accord permission to raise the
48
C.A. NO(S). 2920/2018 & connected matters


construction. The same is illegal and void for various
reasons.
Firstly it is uncontroverted fact that permission had
th
been accorded on 5 November, 2011, whereas land
had not been converted on aforesaid date from
Danga to Bastu. N.O.C. had been issued by SSDA
th
on 28 February, 2012 for proposed conversion of
the plot at Mouza Bhallvpur from Danga to Bastu
and it is not also in dispute that the District Land &
Land Reforms Officer has passed the order of
th
conversions on 9 January, 2013.
It is also not in dispute that construction had been
completed by the middle of 2012. On query being
made to the learned Senior Counsel appearing on
behalf of the respondent No. 6, it was stated that the
structure of building had been constructed by the
middle of 2012. By that time the land had not been
ordered to be converted from Danga to Bastu. Thus,
it is apparent that even before the conversion of the
land, construction activity of the building had been
undertaken which was clearly an unauthorised act.
No such permission to raise building could have
been granted before conversion of the land from
Danga to Bastu. Danga land is not for the purpose
of construction. Danga land is highly arable
agricultural land. Thus, the permission granted by
Gram Panchayat after being vetted by Zila Parishad
th
on 5 November, 2011 was illegal and void. Before
conversion of the land no such permission could
have been accorded. Apart from that Gram
Panchayat was not competent to accord the sanction
for the reasons to follow.
(…..)
A conjoint roading of the provisions contained in
sections 23, 94, 114 and 114A of the Panchayat Act
and Rules 17, 27 and 28 of the Rules of 2004 make
it clear that when the area in question is governed
by any authority under the Act of 1979 and since it
is not in dispute that SSDA is one of such authority
under the Act of 1979, obviously the Development
Plan prepared by the SSDA under the Act of 1979
49
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which is a law for the time being in force, the
notification of such Development Plan is relevant for
the purposes of section 114A of the Panchayat Act
and when such Development Plan is there then the
Panchayat would not be competent to deal with
matters of sanction of buildings in such area and it
has to be dealt with by a larger and different body,
namely, Panchayat Samity constituted under
section 94 of the Panchayat Act which has to
consider various aspects for grant of sanction.
The condition precedent for attracting section 114A
of the Panchayat Act is the notification of a
development plan for the area either under the said
provision of law or any other law for the time being
in force, that is, the Act of 1979 in the instant case.
Such plan being in existence in the facts of the
instant case, we are unable to accept the submission
of the learned Senior Counsel that the said section
is inoperative as specifications have not been
notified by the Samity in terms thereof for grant of
sanction. No such case however has been made out
by respondent No. 6 in its pleadings. Nonetheless,
we are of the opinion that notification of
specifications for sanction is an exercise after power
to grant sanction has vested in the Samity and not
a condition precedent for vesting of such power in
terms of section 114A of the Panchayat Act. Hence,
such plea cannot be a valid ground to clothe the
Panchayat with power to grant sanction in any area
falling within a development area notified under the
Act of 1979. Furthermore, the prayer for grant of
sanction in the instant case was to be adjudged by
the Samity in the light of the guidelines laid down by
the Supreme Court in Susanta Tagore (supra) and
the Government Notification dated 25/01/2010
dealing various Mouzas including Mouza – Ballavpur
required preservation and conservation for
historical, architectural, environmental & ecological
purposes.
The Panchayat Samity has not been moved in the
instant case which was required to consider the
50
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application for grant of sanction as per the
procedure and provisions contained in Rule 28 of the
Rules of 2004. The provision contained in Rule 28 of
the Rules of 2004 cannot be said to be ultra vires
and repugnant to the provisions contained in section
23 in any manner whatsoever. In view of the specific
provision contained in Section 114A read with Rule
28, the Gram Panchayat was not competent
authority to deal with the application at all. It is trite
law when law prescribes mode of doing a thing that
has to be done in that manner only. Thus, the
permission which had been accorded was illegal and
void. Vetting of plan by engineer of Zila Parishad
does not improve the case as sanction is a matter to
be considered by Panchayat Samity.
It has also been submitted by Mr. Saktinath
Mukherjee, learned senior advocate appearing on
behalf of the respondent No. 6, that there was no
necessity to obtain conversion for the development
plan from the Sriniketan Santiniketan Development
Authority, in whose development plan the area has
been shown for the residential purposes.
We are of the opinion that when the land was
admittedly recorded as Danga land, without its
conversion to Bastu land the same could not have
been used for raising building construction. As a
matter of fact, the conversion permission was
accorded on January 9, 2013, whereas the
construction has already been made in illegal and
unauthorised manner be made in the year 2012 on
the basis of the illegal permission granted in the year
2011.
(…..)
Not only the mandate of the aforesaid Notification
issued under Act of 1979 has been violated by grant
of permission in the aforesaid illegal manner. Even
before prayer for conversion of the land, permission
to raise construction had been granted. On the other
hand, meetings were held and various resolutions
have been passed by the concerned bodies which
were attended by the authorities of SSDA as well as
51
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Panchayat, but reality is that they violated the
mandates of the resolution and constitutional
imperatives as projected by the Hon'ble Supreme
Court in the case of Sushanta Tagore (supra). As a
matter of fact, they are required to work out buffer
zone and no construction area. We have no iota of
doubt that the building which has been constructed
was wholly impermissible, alternatively, even if
purported sanction had been accorded by the
competent authority, construction on such land and
area in question is illegal and unauthorized. Firstly,
the land has been transformed to ‘Khoai’ which is a
rare gift of Nature. It is not recorded in the revenue
records as ‘Khoai’ land as admittedly, no such
classification of land as ‘Khoai’ but as per reports of
the District Magistrate as well as Pollution Control
Board, same is ‘Khoai’ land. Fact is that ‘Danga’ land
has been converted into ‘Khoai’ land and we have no
hesitation to accept the report of the District
Magistrate as well as the report of the Pollution
Control Board in this regard. The District Magistrate
in his report has pointed out that permission for
construction of three storied building was applied
for, but one extra floor has been added using the
natural undulating topography of “khoai” land. The
following is the observation made by the District
Magistrate in its report:
“Aarsuday Projects & Infrastructure Pvt.
Ltd. applied to Ruppur Gram Panchayat
for construction of III storied building but
from the field verification It appears that
one extra floor has been added using the
natural undulating topography of khoyai
land. From the front view it appears as III
storied building but from back view It can
be seen as IV storied building Photographs
of building are enclosed as Annexure-V.
Hence the construction of commercial
housing Aarsuday Projects &
Infrastructure Pvt. Ltd. Is unauthorised
complex by and Illegal.”
52
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From the report of District Magistrate it is apparent
that the building is four storied. Photographs have
been filed with the Report to prove the fact that
khoai land has been used for raising construction by
the builder, the respondent No. 6. Besides, District
Magistrate has pointed out that construction is
illegal and SSDA had issued N.O.C. in illegal
manner. The District Magistrate has rightly
mentioned that before conversion of the land, no
permission to raise construction could have been
granted as has been done in the instant case.
Even otherwise conversion was bad in law. We find
from the Report submitted by the West Bengal
Pollution Control Board that the adjacent area of the
alleged site is low lying area formed by partial
erosion of laterite soil and colloquially known as
‘khoai’, as the Pollution Control Board had inspected
after the construction has been raised. When the
report of the Collector as well as the Pollution
Control Board are read together, there is no room to
doubt that 'khoai' land has been used for the
building. Whatever could be seen is apparent from
the report of the Pollution Control Board that
adjacent area is low lying area known as ‘khoai’. In
fact low lying area has been used in construction of
four storied building as apparent from the report of
the District Magistrate.”

26. On a perusal of the aforesaid findings, it
becomes apparent that the conclusion of the High
Court, declaring the disputed construction to be
illegal, was primarily founded on the following
considerations: -
53
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A. That the disputed construction of Aarsuday
Projects was raised on land treated as falling
within a preserved category, i.e., “khoai” land.

B. That the reports submitted by the District
Magistrate and the WBPCB were read to conclude
that the subject plot was in the nature of “khoai”
land.
C. That the Panchayat Samiti was the sole competent
authority to grant permission for construction,
and that no such permission had been obtained by
Aarsuday Projects from the said authority.
Instead, permission was purportedly obtained
from the Gram Panchayat, which was held to be
incompetent to grant such approval under the
extant statutory provisions/framework.
D. That the SSDA committed a grave error in
permitting conversion of the nature of the land
54
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from “danga” to “bastu” after the construction
work had been commenced.
E. That no permission had been obtained from the
WBPCB for raising the construction, rendering the
structure wholly illegal.
c. Regulatory Approvals, Permissions, and
Factual Chronology Relating to the Disputed
Construction
27. Before appreciating the submissions advanced
at the Bar and analysing the reasons assigned by the
High Court in the impugned judgment, whereby it not
only directed demolition of the disputed construction
belonging to Aarsuday Projects but also imposed
costs and ordered initiation of appropriate
proceedings against the officers concerned, it would
be apposite to advert to certain admitted documents
and orders placed on record.
28. The SSDA, being the designated planning
authority, had published a Land Use and
55
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Development Plan in the year 2002, wherein the
subject plot situated in Mouza Ballavpur, District
Birbhum, admeasuring 0.39 acres and forming part
of a larger tract of land admeasuring 28.12 acres, was
included within the planning area as “residential”
land. The developer, i.e., Aarsuday Projects
purchased the subject plot by way of a registered sale
th
deed dated 11 August, 2009. Thereafter, an entry
rd
was made in the revenue records on 3 December,
2009 recording the nature of the land as “ danga”
th
(barren land). On 29 December, 2009, the Ruppur
Gram Panchayat issued a “No Objection Certificate”
in favour of Aarsuday Projects for construction on the
subject plot, conditional upon the procurement of
requisite land conversion for the same.
th
Subsequently, by a communication dated 25
January, 2010, the Urban Development Department,
Government of West Bengal, directed the SSDA to
56
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revise the development plan for eleven mouzas ,
including Mouza Ballavpur, keeping in view the spirit
of conservation and preservation.
th
29.
On 10 September, 2011, the SSDA constituted
a three-member Sub-Committee comprising of
representatives from the Visva-Bharati Anchal
Abasik Samiti and Visva-Bharati University. It may
be noted that since the building plan submitted by
Aarsuday Projects proposed a plinth area exceeding
300 square metres, the Ruppur Gram Panchayat on
st
21 October, 2011, forwarded the same to the Zilla
Parishad, Birbhum, for vetting and approval in terms
of the second proviso to Rule 28 of the West Bengal
Panchayat (Gram Panchayat Administration) Rules,
2004. The Zilla Parishad vetted the building plan and
th
returned the same to the Gram Panchayat on 4
th
November, 2011, whereupon, on 5 November, 2011,
the Gram Panchayat communicated the approval to
57
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th
Aarsuday Projects. Thereafter, on 27 January,
2012, the Director, SSDA, directed inspection of the
site and called for a report from the Sub-Committee
prior to considering the grant of “No Objection
Certificate” for conversion of land from “danga” to
“bastu” . The Sub-Committee furnished its inspection
th
report on 8 February, 2012, finding no impediment
to the grant of “No Objection Certificate” and
conversion of land for construction, pursuant to
which the SSDA accorded its approval and issued a
“No Objection Certificate” for conversion of the land
th
from “danga” to “bastu” on 28 February, 2012.
th
30. On 17 April, 2012, the writ petition forming
the basis of the present appeal, came to be filed
before the High Court seeking revocation of the
sanction granted to Aarsuday Projects primarily on
the ground that the land in question was “khoai”
th
land. Meanwhile, on 5 June, 2012, the SSDA
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endorsed the grant of “No Objection Certificate” in the
presence of representatives of Visva-Bharati
th
University. On 9 January, 2013, the DL&LRO,
Birbhum, approved conversion of the subject plot
from “danga” to “bastu” for setting up the commercial
housing project. By July, 2013, construction of the
building stood completed and even possession of
certain units was handed over to the respective
buyers. In the same month, the High Court called for
reports from the District Magistrate and the WBPCB.
th
The WBPCB, submitted its report dated 19 July,
2013, wherein it noted that while the land adjacent
to the subject plot was a low-lying tract locally known
as “khoai” , no “No Objection Certificate” was required
from the WBPCB, as the built-up area of the
construction raised by Aarsuday Projects measured
less than 20,000 square metres.
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31. The District Magistrate, submitted a report
rd
dated 23 July, 2013, with no specific finding on the
nature of the land and sought clarification from
SSDA regarding the basis of the grant of “No
Objection Certificate”. SSDA filed its objections on
th
14 August, 2013, reiterating that the subject plot
was earmarked for “residential use” as per the Land
Use and Development Control Plan, 2002 and that
substantial human settlement already existed in the
adjoining areas. Thereafter, the High Court passed
st nd
the impugned judgment dated 21 and 22 August,
2013.
32. It is essential to note here that another writ
petition, being Writ Petition No. 34241(W) of 2013
(Dharmendra Kumar Sharma v. State of West
Bengal), raising identical issues was filed before the
High Court in relation to a building situated on a plot
adjacent to the subject plot. In the said proceedings,
60
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the District Magistrate submitted a report before the
High Court stating that the land in question was not
in the nature of “khoai” and had been earmarked for
“residential use” under the Land Use and
Development Control Plan, 2002 prepared by the
SSDA. In the same writ petition, Visva-Bharati
University filed an affidavit in opposition admitting
that the plot therein was privately owned, accessible
by a PWD road, situated outside the boundaries of
Visva-Bharati, and not located on “khoai” land. The
relevant extracts from the said report and affidavit
are reproduced hereinbelow for ready reference: -
“ Report of District Magistrate
It also appears from the said report that sanction for
existing single storied building was given by the
Sriniketan Santiniketan Development Authority vide
memo no SSDA/707/13/B-5/157/74/92 dated
07/07/1992 and no sanction for the said double
storied residential building was accorded by
S.S.D.A. it is mentioned in the report that double
storied building might have been constructed before
inception of S.S.D.A on 14th December, 1989. The
said plot is not of ‘KHOAI’ nature and is marked
as residential area in the Land Use and
Development Control Plan prepared by S.S.D.A.
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Report as submitted by Executive Officer, Sriniketan
Santiniketan Development Authority along with
enclosures are annexed herewith.


Affidavit of Visva-Bharati University
6. The house has been constructed on a private
plot. The plot is not owned by Visva Bharati. No
construction or extension activity is going on in this
building. The house is outside the boundary of
Visva Bharati and not on khoai land.
7. However, the house can be accessed from PWD
road through the Visva Bharati premises only on
Shyambati side, as also from the Siksha Bhavana
side. Earlier Visa Bharati did not have a boundary
wall and the old inhabitants used to access their
houses through the PWD road within the Visva
Bharati Campus. At present Visva Bharati has
started constructing a boundary wall, all around the
campus and has been car-marking one a two PWD
to roads to provide access to the house in these
localities.
8. The building is located within a few meters of
the fencing of the Ballavpur Wildlife Sanctuary as
well as Visva Bharati premises. ”
[Emphasis supplied]

These admissions and findings lend support to the
contention that the subject plot owned by Aarsuday
Projects, being similarly situated and adjacent the
said land, could not have been treated as “khoai” land
in absence of credible and unimpeachable material,
the burden of establishing which rested squarely
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upon the writ petitioners (respondent Nos. 1-7
herein).
33. Furthermore, in response to an application
made under the Right to Information Act, 2005, the
Panchayat Samiti replied vide communication dated
th
16 April, 2015, that it became competent to accord
permission for grant of building construction only in
the year 2006. However, the first such construction
permission was granted by the Panchayat Samiti only
th
on 5 March, 2012. It was further clarified that, prior
thereto, permissions for construction were being
routinely accorded by the Gram Panchayat. The said
response lends support to the submission of the
Aarsuday Projects that, during the relevant period
when Aarsuday Projects initiated the construction on
the subject plot, the practice of granting permissions
through the Gram Panchayat, with vetting by the
Zilla Parishad as and when required, was being
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consistently followed. Consequently, the approval by
the Ruppur Gram Panchayat to the building plan on
th
5 November, 2011 cannot be faulted and outrightly
rejected.
34. Even if it is assumed, arguendo , that there was
any infirmity in the timing or manner of conversion
of the subject plot from “danga” to “bastu” , such
infirmity could not have the effect of invalidating the
entire construction raised by Aarsuday Projects. At
best, such an infirmity would warrant regulatory
scrutiny or corrective measures in accordance with
law. It 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
64
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demolition as an automatic or inevitable
consequence of such a defect.
35. 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 omission to address this issue is of
relevance, particularly when the land was otherwise
earmarked for “residential use” under the notified
Land Use and Development Control Plan, 2002.
36. Likewise, even if it is assumed that the Gram
Panchayat was not the competent authority to accord
approval to the building plan and that such authority
vested exclusively in the Panchayat Samiti, the same
would constitute, at best, a procedural irregularity.
Such an irregularity, especially where the building
65
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plan had been duly vetted by the higher forum, i.e.,
the Zilla Parishad and construction was undertaken
in a bona fide manner, was clearly curable in nature.
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.
37. Another aspect which merits consideration is
that the Sub-Committee constituted by the SSDA,
which comprised of the representatives of the Visva-
Bharati Anchal Abasik Samiti and Visva-Bharati
University, was actively involved in examining the
application seeking conversion of the subject plot
66
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from “danga” to “bastu” . Upon inspection, the Sub-
th
Committee submitted its report dated 8 February,
2012, wherein it specifically recorded that there was
no impediment to the grant of a “No Objection
Certificate” or to the conversion of the land for
residential purposes. The absence of any objection at
this stage, particularly from representatives
associated with Visva-Bharati, assumes significance,
as it reinforces the bona fide manner in which
Aarsuday Projects proceeded with the construction
and detracts from the premise that the construction
was undertaken in disregard of environmental
considerations or institutional sensitivities.
38. At this stage, it would also be apposite to note
some developments subsequent to the events in
th
question. On 25 September, 2019, the Central
Government issued Notification No. S.O. 3527 (E)
providing for demarcation of Eco-Sensitive Zones
67
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around the Ballavpur Wildlife Sanctuary and
preparation of Zonal Master Plans, wherein it was
expressly provided that no alteration or restriction
would be made in respect of existing infrastructure.
Additionally, in response to a query raised by
th
Aarsuday Projects, the SSDA, by a letter dated 9
February, 2025, informed that the subject plot had
been marked as “Retail Commercial & Business” in
the ‘Land Use Map’ of the proposed Land Use and
Development Control Plan prepared in the year 2017.
The said communication also referred to the
declaration of the Eco-Sensitive Zone adjoining the
protected forest area and clarified that no new
permanent structures would be permitted within the
Eco-Sensitive Zone.
39. In the aforesaid factual backdrop, it is evident
that Aarsuday Projects undertook and completed the
construction after securing the requisite permissions
68
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and sanctions from the competent authorities and
exercising jurisdiction at the relevant point in time.
The building plan was duly vetted by the Zilla
Parishad and thereafter treated as approved by the
Ruppur Gram Panchayat. The clarification furnished
in response to the application made under the Right
th
to Information Act, 2005, on 16 April, 2015, further
establishes that, during the relevant period, the
Gram Panchayat was exercising the authority to
accord building permissions, with vetting by the Zilla
Parishad, wherever required. The SSDA and its duly
constituted Sub-Committee examined in detail and
accorded approval to the application filed by
Aarsuday Projects for conversion of the land from
“danga” to “bastu”. This action was subsequently
confirmed by the competent revenue authority,
namely, the DL&LRO, Birbhum. Significantly, there
was no contemporaneous material on record
69
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establishing that the subject plot was in the nature
of “khoai” land. On the contrary, the report submitted
by the District Magistrate and the affidavit filed by
Visva-Bharati University in a separate writ petition
being Writ Petition No. 34241(W) of 2013, concerning
the plot adjacent to the subject plot, categorically
indicated that the land in the vicinity was not “khoai”
and was recorded and treated as residential land. 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.
d. Assessment of the High Court’s Approach on
the Nature of the Land and Regulatory
Permissions
40. The thrust of the impugned judgment of the
High Court is essentially twofold. First, the High
Court proceeded on the premise that the land on
which the disputed construction was raised, was
70
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“khoai” land deserving preservation, drawing heavily
from the judgment of this Court in Sushanta Tagore
(supra) and with references to the writings of the
Nobel Laureate, Shri 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. Second, the High Court held that
the construction was undertaken without obtaining
due permission from the competent authority and
prior to the grant of conversion of the land use by the
SSDA and thus, the entire construction was illegal
and liable to demolition.
41. However, upon a careful reading of the
impugned judgment, we find no discussion or finding
with respect to the fact that the subject plot on which
the disputed construction was raised by Aarsuday
Projects was privately owned land, nor is there any
71
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consideration of the fact that the larger tract of land
of which the subject plot forms a part had already
witnessed substantial human settlement. The
judgment is 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. In
order to demonstrate this apparent anomaly, it would
be apposite to extract and reproduce the site plan of
larger tract of land admeasuring 28.12 acres bearing
reference to existing construction. These documents
are being extracted infra (see, Page No. 84-85) . The
omission to advert to these vital aspects assumes
considerable significance, particularly in view of the
constitutional protection of the right to property
guaranteed under Article 300A of the Constitution of
India, which unequivocally provides that “no person
shall be deprived of his property save by
72
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authority of law” . Any interference with privately
owned property, including by way of demolition or
deprivation of its beneficial use, must therefore rest
on a clear statutory foundation and be preceded by
due consideration of all relevant factual and legal
circumstances, which exercise, appears not to have
been undertaken in the present case.
42. It is also evident that the writ petitioners
(respondent Nos. 1-7) 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. The assertion of the writ petitioners (respondent
Nos. 1-7) that the entire tract of land was of “khoai”
nature appears to have been premised on a broad
and generalized assumption drawn from the
judgment of this Court in Sushanta Tagore (supra) ,
without any site-specific evidence. The High Court, in
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turn, appears to have proceeded on the same
assumptions.
43. The absence of reliable and contemporaneous
material conclusively establishing the nature of the
subject plot is further evident from the fact that the
High Court itself deemed it necessary to call for
reports from the District Magistrate and the WBPCB
to ascertain whether the land on which the disputed
construction stood was, in fact, “khoai” land. This
fact, in itself, indicates that the question regarding
the nature of the land was not free from doubt and
involved seriously disputed questions of facts
emanating from the material placed before the High
Court at the threshold. Thus, we feel that the writ
petition ought not to have been entertained.
44. That threshold having been crossed, it becomes
necessary for this Court to closely examine these two
reports, both to assess their evidentiary value and to
74
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determine whether they furnish credible and cogent
material sufficient to sustain and affirm the
conclusion that the subject plot was of “khoai”
nature, so as to justify the directions issued by the
High Court.
45. Relevant extracts from the report of the District
Magistrate are reproduced hereinbelow: -
“2. Aarsuday Projects & Infrastructure Pvt. Ltd.
having address at 26, Lake Avenue, Kolkata 700 026
has dubiously sought for sanction of plan &
permission of construction from the Pradhan,
Ruppur Gram Panchayat. As per proviso (7) for Rule
28 of the Amendment to Control of Building
operations vide NO.4163/PN/O/I/3R-7/04, dated
th
9 of August, 2006 for Construction of Building
Structure in Panchayat Areas under Development
Authority. Panchayat Samity is the appropriate
authority to sanction such plan but not the Gram
Panchayat (copy enclosed as Annexure I). In this
case, Aarsuday Projects & Infrastructure Pvt. Ltd.
managed to get sanction of plan from Ruppur Gram
Panchayat which has no authority to sanction
building plan and give permission for construction
(copy enclosed as Annexure II).
3. Executive Officer, SSDA through his office Memo
NO.SSDA/35/B-2/2012 dated 28/02/2012 has
given No Objection Certificate to Director, Aarsuday
Projects & Infrastructure Pvt. Ltd. for conversion of
land in question from Danga to Bastu (copy enclosed
as Annexure III) and subsequently DLLRO, Birbhum
has given permission for Conversion under sub-
75
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section 2(c) of Section 4C of WBLR Act 1955 on
09/01/2013 (copy enclosed as Annexure IV).
4. It appears that Pradhan, Ruppur Gram Panchayat
issued Sanction to Aarsuday Projects &
Infrastructure Pvt. Ltd. on 05/11/2011 i.e. much
before No Objection Certificate issued by Executive
Officer, SSDA and permission for conversion of land
issued by DLLRO, Birbhum.
5. Aarsuday Projects & Infrastructure Pvt. Ltd.
applied to Ruppur Gram Panchayat for construction
of III storied building but from the field verification
it appears that one extra floor has been added using
the natural undulating topography of khoai land.
From the front view it appears as III storied building
but from back view it can be seen as IV storied
building. Photographs of building are enclosed as
Annexure-V. Hence the construction of commercial
housing complex by Aarsuday Projects &
Infrastructure Pvt. Ltd. is unauthorised and illegal.
6. It appears that Aarsuday Projects &
Infrastructure Pvt. Ltd. constructed commercial
housing complex in Mouza Ballavpur in Ruppur
Gram Panchayat of Bolopur P.S. illegally without
valid sanction and permission from the appropriate
authority and SSDA has not taken appropriate
action to stop illegal construction.
7. Clarification has been sought from the Executive
Officer, SSDA by the undersigned vide memo
No.833/1/XXI/Dev. Dated 09/07/2013 regarding
the basis of issuance of No Objection Certificate to
Aarsuday Projects & Infrastructure Pvt. Ltd. for
illegal conversion of land from Danga to Bastu and
direction was given for initiation of legal action
against those persons who violated the law. (copy
enclosed as Annexure VI).”
Observations: A careful perusal of the aforesaid
report of the District Magistrate indicates that, while
it levels serious allegations against the developer, i.e.,
76
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Aarsuday Projects as well as against the officers of
the Gram Panchayat and the SSDA in relation to the
grant of permissions and conversion of land, the
report does not refer to any contemporaneous site
inspection by a Geologist or other scientific expert or
to any objective assessment based on reference to
revenue, planning, or land records to substantiate
the conclusion that the subject plot itself was in the
nature of “khoai” land. The observations regarding
utilization of natural undulating topography are not
supported by any technical survey, demarcation, or
documentary evidence identifying the subject plot as
“khoai” . In the absence of such material evidence, the
report could not furnish a reliable basis for
concluding that the disputed construction raised by
Aarsuday Projects was on “khoai” land.
77
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46. Relevant extracts from the report of the West
Bengal Pollution Control Board (WBPCB) are
reproduced hereinbelow: -
“ Observations:

• The construction site in concern is situated at a
distance of about seventy meters on the southern
side of the boundary wall of the Ballavpur Wild
Life Sanctuary (locally known as ‘Deer Park’).
During inspection it was observed that
construction of boundary wall as well as basic
construction of a four storied building has been
completed. Masonry activities were in progress
during inspection. No responsible representative
of the concerned construction company was
available at the site to deliver relevant
information to the inspecting officials.
• The adjacent area of the alleged site is low lying
area formed by partial erosion of laterite soil and
colloquially known as “khoai”. Number of
privately owned houses has come up in the near
vicinity of the site in concern on the northern side
(away from the sanctuary). Considerable human
settlement has already come up in the near
neighbourhood of the sanctuary.
• The inspecting officials were informed by the
SSDA authority that the alleged construction
company has not obtained any permission from
SSDA for its construction activity; further the
executive officer informed that a letter of denial
was issued in 2010 to the concerned company by
SSDA.
• It was known from the SDLLR office that as per
the classification of lands of L&LR Department no
classification named “khoai” exists.
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• Birbhum Zilla Parishad issued approval of
building plan to the alleged company for their
construction work on the site in concern in 2011.
• The Forest Range Officer of Bolopur range
informed the inspecting officers that the
concerned company has not taken any
permission from them for their construction
activity.
Comments:

• For construction activities projects having total
built up area more than 20000 square meter
needs to obtain prior environmental clearance
from the State Environmental Impact
Assessment Authority (SEIAA) as per the
Environmental Impact Assessment Notification of
the Ministry of Environment and Forests,
th
Government of India dated 14 September, 2006
and its amendments made thereafter.
• Physical observation suggests that the area of
concern is very sensitive from ecological point of
view. Indiscriminate construction activities and
consequent development of human settlement
may affect the ecological balance of the area. In
fact this possibility has been explicitly expressed
in the judgment of the Hon’ble Supreme Court.
Also the municipal solid waste and effluent
generated from the habitation in this eco-
sensitive area may create additional problems.”
Observations: A careful perusal of the report of the
WBPCB indicates that it does not record any finding
to the effect that the subject plot on which the
disputed construction was raised was itself “khoai”
land. The report merely notes that the adjacent area
79
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to the site is a low-lying tract formed by partial
erosion of laterite soil and colloquially referred to as
“khoai” , while at the same time acknowledging that,
as per the classifications of land maintained by the
Land & Land Reforms Department, no category of
land described as “khoai” exists in the revenue
records. The report further records that a number of
privately owned houses had already come up in the
vicinity and that substantial human settlement
existed in the surrounding area. Importantly, the
report clarifies that prior environmental clearance
from the State Environmental Impact Assessment
Authority is required only for construction projects
having a total built-up area exceeding 20,000 square
metres in terms of the Environmental Impact
Assessment Notification and its subsequent
amendments, a threshold which was not crossed by
the disputed construction made by Aarsuday projects
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on the subject plot. It is also pertinent to note that
the WBPCB was not the authority vested with the
jurisdiction to render a definitive opinion on the
nature or classification of land, and any observations
made by it in this regard can, at best, be of a general
or incidental nature and cannot be treated as
conclusive or determinative of the character of the
subject plot.
47. Upon an overall consideration of the material
placed on record, including the reports of the District
Magistrate and the WBPCB, on which the impugned
judgment heavily relies, it becomes evident that
neither of the aforesaid reports furnishes any clear,
contemporaneous, or objective material establishing
that the subject plot on which the disputed
construction was raised was itself “khoai” land or
that construction was totally impermissible
thereupon. While both reports advert to emphasized
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concerns regarding environmental sensitivity and
procedural irregularities, they stop short of
identifying the subject plot as falling within any
preserved or prohibited category of land, and in fact
acknowledge that no classification of land described
as “khoai” exists in the revenue records. The
WBPCB’s report, in particular, confines its
observations to the nature of the adjacent area and
clarifies that the subject construction did not attract
the requirement of prior environmental clearance
under the applicable statutory regime. The District
Magistrate’s report is based merely on conjectures
and surmises and was submitted without the
concerned official even bothering to undertake a
proper site inspection or getting a spot verification
done through an expert. Hence, in the absence of
reliable scientific material establishing the “khoai”
character of the subject plot, the foundational
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premise on which the High Court proceeded to issue
the directions cannot be said to be conclusively borne
out from the record.

e. Bona Fides of the Writ Petitioners (Respondent
Nos. 1-7) and Burden of Proof in Public Interest
Litigation
48. Since the public interest litigation targeted
construction on a single plot forming part of a larger
tract admeasuring approximately 28.12 acres, it
becomes necessary to examine the location of the
subject plot in its proper spatial and factual context.
For this purpose, reference may be made to the
layout plan of the entire tract of land, placed on
record which presents a comparative visualization of
the position of the plot owned by Aarsuday Projects
vis-à-vis other plots comprised within the same
parcel. For the sake of ready reference, the said
layout plan, along with a chart detailing the
ownership particulars, is reproduced hereinbelow: -
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49. A perusal of the ownership details reflected in
the aforesaid layout plan reveals that residential
houses belonging to certain writ petitioners
(respondents herein) themselves, including
Respondent No. 2-Mohan Singh (House No. 2);
Respondent No. 3-Prasanta Sahu (House No. 27) and
Respondent No. 4-Bulbul Basu (House No. 56), are
situated within this very tract of land. It is also not in
dispute that, on the date when approval for
construction was granted and the conversion order in
respect of the subject plot was issued, there was no
contemporaneous document or credible material on
record establishing that the subject plot was in the
nature “khoai” land. The situation remains the same
even today.
50. As a matter of fact, even the reports submitted
pursuant to the directions of the High Court,
including those of the District Magistrate and the
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WBPCB, do not specifically identify the subject plot
as “khoai” land. On the contrary, a pertinent finding
emerging from the survey material collected by
WBPCB is that “khoai” formations were noticed on
the land adjacent to the subject plot on which
Aarsuday Projects has raised the disputed
construction. This finding assumes significance, as it
clearly negates the assumption that the subject plot
itself was of “khoai” nature.
51. During the course of hearing, learned counsel
representing Aarsuday Projects placed on record
photographs depicting the disputed
construction/building and the adjoining structures.
The said photographs, which deserve reference in the
judgment are superimposed hereinbelow: -
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A perusal of the photographs clearly shows that pre-
existing residential structures stood directly opposite
the disputed construction/building, separated
merely by a road, and were also located within the
same larger tract of land. It is difficult to perceive that
“khoai” indentations could solely and exclusively
exist on the single plot of land owned by Aarsuday
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Projects, while the nature of the land on which the
adjoining and opposite constructions stood
unremarkable. The omission to question the validity
of these constructions before the writ court, despite
them being located within the same parcel of land,
raises a serious doubt as to the bona fides of the writ
petitioners (respondent Nos. 1-7 herein) and lends
credence to the contention that the writ petition
selectively targeted the newly raised construction of
Aarsuday Projects.
52. Equally significant is the principle governing the
exercise of jurisdiction in public interest litigation
(PIL). 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.
Courts exercising writ jurisdiction must remain
circumspect while entertaining petitions that hinge
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upon disputed questions of fact, particularly where
such disputes require detailed examination of
evidence or adjudication of rival factual claims.
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.
53. Reference in this regard may be made to the
decisions of this Court in Chairman, Grid
Corporation of Orissa Ltd. (GRIDCO) v. Sukamani
7 8
Das and Shubhas Jain v. Rajeshwari Shivam .
54. Applying the aforesaid principles to the case at
hand, it becomes evident that, in the absence of
unimpeachable material conclusively establishing
the “khoai” character of the subject plot, the High

7
(1999) 7 SCC 298.
8
(2021) 20 SCC 454.
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Court ought to have exercised greater restraint in
invoking its writ jurisdiction to grant far-reaching
reliefs on the basis of assumptions or inferential
reasoning.
55. Viewed cumulatively, the material placed on
record does not support the foundational
assumptions on which the writ petition proceeded. In
the absence of clear, specific, and contemporaneous
scientific evidence establishing that the subject plot
was of “khoai” nature, the invocation of public
interest jurisdiction to assail the construction
undertaken by Aarsuday Projects cannot be
sustained, particularly where similarly situated
constructions within the same tract of land were left
unchallenged.
IX. CONCLUSION
56. As an upshot of the foregoing discussion and for
the reasons recorded hereinabove, the judgment and
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st nd
order dated 21 & 22 August, 2013 passed by the
Division Bench of the High Court at Calcutta in Writ
Petition No. 8341(W) of 2012 does not stand to
scrutiny and deserves to be set aside.
57. Hence, the instant appeals are decided in the
following terms:

• Civil Appeal No. 2920 of 2018 , preferred by
Aarsuday Projects, the developer of the subject
plot, is allowed and the judgment and order dated
st nd
21 & 22 August, 2013 passed by the Division
Bench of the High Court is hereby set aside.

• Civil Appeal No. 2921 of 2018 , preferred by the
Sriniketan Santiniketan Development Authority
(SSDA) challenging the adverse observations made
against it and its officers, as well as the
consequential directions for initiation of
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proceedings, is allowed in view of the findings
recorded in Civil Appeal No. 2920 of 2018
preferred by Aarsuday Projects and the
subsequent actions taken by the SSDA. The
adverse remarks and consequential directions
issued against the SSDA and its officers in the
impugned judgment shall, accordingly, stand
expunged.


• Civil Appeal Nos. 2922-2923 of 2018 , preferred
by the subsequent purchasers of flats constructed
by Aarsuday Projects on the subject plot, are
disposed of in terms of the judgment rendered in
Civil Appeal No. 2920 of 2018 .
58. In the course of the discussion made
hereinabove, we have found that the writ petition
instituted before the High Court lacked bona fides ,
inasmuch as certain among respondent Nos. 1-7
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(writ petitioners before the High Court) admittedly
had existing residential structures in the immediate
vicinity and within the same tract of land as the
disputed construction raised by Aarsuday Projects.
The said material fact was not disclosed while
invoking the extraordinary jurisdiction of the High
Court by way of public interest litigation. In view
thereof, we deem it appropriate to impose costs
quantified at Rs.1,00,000/- (Rupees One Lakhs only)
to be paid by the writ petitioners, i.e., respondent
Nos. 1-7 in Civil Appeal No. 2920 of 2018 . The said
amount shall be deposited with the West Bengal
Legal Services Authority within a period of two
months from today. Proof of such deposit shall be
filed before the Registry of this Court within two
weeks thereafter.


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59. Pending application(s), if any, shall stand
disposed of.
….……………………J.
(VIKRAM NATH)

...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
JANUARY 29, 2026.



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