JUDGMENT
Pranab Kumar Chattopadhyay, J.
1. This writ petition has been filed challenging the decision/order dated 12th May, 2003 passed by the South Dum Dum Municipality whereby and whereunder the said Municipality refused to sanction the building plan of the petitioner in respect of the Premises Nos. 39, 39A and 39B, Shyam Nagar Road, Kolkata.
2. The ground for refusal to sanction the aforesaid building plan of the petitioners as recorded in the impugned decision of the Municipality is that the Block Land and Land Reforms Officer issued a letter on 30th April, 2003 informing the Chairman, South Dum Dum Municipality that there was a mistake in recording the classification of R.S. Plot No. 794 in the Record of Right.
3. It has been submitted on behalf of the petitioners that even on the date of the said letter the plot in question was recorded as ‘Danga’ and not as ‘Karkhana’ and in the aforesaid letter dated 30th April, 2003 the concerned Block Land and Land Reforms Officer also did not mention that the aforesaid plot of land of the petitioners should be classified as ‘Karkhana’ instead of ‘Danga’.
4. The learned counsel of the petitioners submits that after filing of this writ petition, Record of Right was sought to be corrected under Section 44(2a) of the West Bengal Estate Acquisition Act and Khatian No. 513/1 was merged with Khatian No. 513 although no correction was made in respect of the descriptions or character of the land in question.
5. Undisputedly, the writ petitioners herein are the owners of the aforesaid premises in question, namely, premises Nos. 39, 39A and 39B of Shyam Nagar Road, Kolkata under the South Dum Dum Municipality. It has been submitted on behalf of the petitioners that there was a factory in the adjacent area of the aforesaid premises and no factory was ever in existence at the premises in question of the petitioners.
6. It has also been submitted on behalf of the petitioners that the aforesaid factory on the adjacent land of the premises in question had also been closed down sometime in the year 1960. According to the writ petitioners, the entire premises were all along used for residential purpose.
7. The authorities of the South Dum Dum Municipality refused to take note of the aforesaid claim of the petitioners and refused to sanction the building plan of the petitioners on the ground of receiving communication from the concerned Block Land and Land Reforms Officer to the effect that there is a mistake in recording the classification of Plot No. 794 of the petitioners in the Record of Right. It has been submitted on behalf of the petitioners that the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979 are applicable in respect of the aforesaid lands in question.
8. Mr. Anindya Mitra, learned senior counsel of the writ petitioners submits that change of land use was brought about by operation of law under the West Bengal Town & Country (Planning & Development) Act, 1979 and regulations framed thereunder. Mr. Mitra also submits that Land Use and Development Control Plan in respect of the area in question have been prepared and published with the approval of the Government of West Bengal under the provisions of the said West Bengal Town & Country (Planning & Development) Act, 1979. It has been specifically submitted on behalf of the writ petitioners that the concerned plot in question is in the residential area and there cannot be any valid objection against construction of residential building thereon.
9. Referring to Section 4C of the West Bengal Land Reforms Act, 1955, learned counsel of the respondent Municipality submits that the building plan submitted on behalf of the writ petitioners cannot be sanctioned unless change of user of the concerned land is permitted by the Collector. The learned counsel of the writ petitioners however, submits that the change of user of the concerned land was brought about by and/or under the subsequent Act, namely, West Bengal Town & Country (Planning & Development) Act, 1979 and furthermore, the land use map was also prepared in this regard under the said West Bengal Town & Country (Planning & Development) Act, 1979.
10. The learned counsel of the petitioners submits that the property in question is in Ward No. 20 of South Dum Dum Municipality, which has been shown as a residential area in the land use map prepared under the said West Bengal Town & Country (Planning & Development) Act, 1979. Mr. Mitra, learned senior counsel of the petitioners submits that in view of the preparation and publication of the aforesaid land use map under the West Bengal Town & Country (Planning & Development) Act, 1979, nobody can construct any ‘Karkhana’ on the plot of land of the petitioners and the said land can be used only for the purpose of construction of residential building.
11. In this connection, Mr. Mitra referred to the various sections of the West Bengal Town & Country (Planning & Development) Act, 1979, which are briefly summarised hereunder:
Section 28.–Preparation of the present land use map;
Section 31(4)(1).–Preparation of land use and development control plan indicating different zone of land use, namely for residential, commercial, industrial, agriculture, etc.
Section 37.–Approval of the State Government of the land use and development control plan;
Section 38.–After approval of the State Government, issue of public notice;
Section 44.–No person shall use any land or carry out development in the area otherwise than in conformity with the land use and development control plan;
Section 45.–Payment of development charges for change of use;
Section 46.–Planning and development authority is to grant permission for construction of building;
Section 52.–Penalty for unauthorised development or use of land otherwise than in conformity with control plan;
Sections 102 and 103.–Development charges and rates thereof;
Section 137.–Overriding effect of the West Bengal Town & Country (Planning & Development) Act, 1979 over any other law.
12. Mr. Mitra further submits that by the Gazette Notification dated January 20, 1994, provisions of the Calcutta Metropolitan Development Control Regulations, 1994 have been introduced to the areas under the jurisdiction of various Municipalities including the South Dum Dum Municipality and detailed rules regarding construction of building have been made under the said regulation. It has been urged on behalf of the writ petitioners that the West Bengal Land Reforms Act has ceased to be applicable to the municipal areas particularly to the areas under the jurisdiction of the Municipalities mentioned in the Gazette Notification dated January 20, 1994 apart from the territorial zone of the Kolkata Metropolitan Development Area.
13. Mr. Mitra also submits that the provisions of the West Bengal Land Reforms Act are not longer applicable to the areas under the South Dum Dum Municipality and that is why the petitioner was asked by the authorities of the South Dum Dum Municipality to rectify the building plan following the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979. It has been submitted on behalf of the petitioners that the authorities of the South Dum Dum Municipality also charged the development fees from the petitioners which are receivable by the Municipality under Sections 102 and 103 of the West Bengal Town & Country (Planning & Development) Act, 1979.
14. It has also been submitted by the learned counsel of the petitioners that the provision of Section 4C of the West Bengal Land Reforms Act has no manner of application in the facts of the present case and the provision of the said Section 4C has been referred to by the authorities of the respondent Municipality in the present case in a desperate attempt to support the wrongful decision regarding refusal to sanction the building plan of the petitioners.
15. The learned counsel of the Municipality although submitted before this Court that Record of Right relating to Khatian No. 513 was corrected for the first time under Section 44(2a) of the West Bengal Estate Acquisition Act at the time of opening R.S. Khatian No. 593 in case No. 18 and therefore, could not be corrected for the second time in 1993 when a portion of Khatian No. 513 was corrected as ‘Danga’ which was incorporated in Khatian No. 513/1 out of Khatian No. 513 but the learned counsel of the petitioners disputed the aforesaid contentions made on behalf of the Municipality authorities and urged that Section 44(2a) was introduced for the first time in the West Bengal Estate Acquisition Act by West Bengal Act No. 9 of 1961 whereas R.S. Khatian No. 593 was opened prior to 1958.
16. The learned counsel of the petitioners submits that the first correction was made in the year 1993 and therefore, the second correction under Section 44(2a) was purported to be made during pendency of the writ petition on 25th June, 2003 although the same was without jurisdiction.
17. Referring to the affidavit-in-opposition filed on behalf of the Municipality, Mr. Mitra submits that that authorities of the said Municipality have also admitted that the factory was not only closed since 1968 but the land and the factory shed was being used for residential purpose. Mr. Mitra submits that Section 4C was introduced in the Land Reforms Act by the Amendment Act of 1981 with retrospective effect from 7th August, 1969 and therefore, the user of the land in question had changed into residence and had become residential even prior to coming into operation of Section 4C. Therefore, according to the learned counsel of the petitioners, permission of the Collector will be necessary only if there is change of use of the said plot of land from residence into any other use as the land was being used as residence prior to 1969.
18. Mr. Mitra specifically urged before this Court that the building plan in question is to be considered according to the building regulations prevailing at the time of sanctioning of the said building plan as has been laid down by the Hon’ble Supreme Court in the case of Usman Gani J. Khatri v. Cantonment Board reported in (1992)3 SCC 455, paragraph 24 which has also been quoted in the judgment passed by D.P. Kundu, J. (as His Lordship then was) while deciding the earlier writ petition of the petitioners herein being W.P. No. 348(W) of 2003. While deciding the earlier writ petition of the petitioners herein, D.P. Kundu, J. by his order dated 24th March, 2003 specifically directed the concerned respondents of the Municipality to consider the building plan submitted by the writ petitioners and take a final decision within 6 weeks from the date of communication of this order which expired on 12th May, 2003.
19. Mr. Mitra submits that the fact as prevailing on 12th May, 2003 was that the concerned plot of land was recorded as ‘Danga’ in the Record of Right and hence Sections 4B, 4C and 4D of the West Bengal Land Reforms Act, 1955 are not attracted under any circumstances. The learned counsel of the petitioners submits that the impugned order refusing to sanction the building plan of the petitioners is based solely on the letter dated 30th April, 2003 by which the Block Land and Land Reforms Officer informed the Municipality that “there is recording mistake” although the nature of mistake was not mentioned in the said letter. In the aforesaid circumstances, Mr. Mitra submits that on 12th May, 2003, the Municipality had no valid ground either under the Bengal Municipal Act or under the rules to refuse sanction of the building plan submitted on behalf of the petitioners. Mr. Mitra also submits that the judgment passed earlier by D.P. Kundu, J. is final and binding on the Municipality as no appeal has yet been preferred from the said judgment.
20. Referring to the said judgment passed by D.P. Kundu, J. on 24th March, 2003, in the earlier writ petition filed on behalf of the writ petitioners herein, Mr. Mitra submits that question of obtaining the view or approval of any department of the Government of West Bengal is not necessary in the present case and the character of the land in question has already been changed in the records and recorded as ‘Danga’. Under the aforesaid circumstances, Mr. Mitra submits that the land in question can no longer be treated as ‘Karkhana’ particularly in view of the aforesaid findings of D.P. Kundu, J. in the judgment mentioned above.
21. Mr. Mitra also submits that it was the duty of the Municipality to consider the question of sanction of the building plan of the petitioners strictly on the basis of the aforesaid judgment passed by D.P. Kundu, J. wherein it has been specifically mentioned that the land in question is recorded as ‘Danga’. The learned counsel of the petitioners submits that the impugned action of the Municipality is discriminatory and arbitrary, as the building plan has already been sanctioned by the said Municipality on 8th March, 1996 in respect of Holding No. 27/1, which was sub-divided from Holding No. 27 and as a matter of fact completion certificate has already been issued in respect of the building constructed thereon by the competent authority of the South Dum Dum Municipality on 13th September, 2000.
22. Mr. Mitra further submits that the Holding No. 27(1) and Holding No. 27 are similarly situated in so far as Record of Right is concerned and discriminatory treatment in this regard is therefore, arbitrary and in violation of Article 14 of the Constitution of India. Mr. Mitra also submits that the discriminatory conduct of the Municipality will be apparent from the fact that the building plans on the lands of the other closed industrial units have been sanctioned by the Municipality without insisting on permission under Sections 4B. 4C and 4D whereas the petitioners herein have been singled out and the building plan submitted on behalf of the petitioners has been refused.
23. Mr. Mitra specifically submits that the decision of the Municipality in the present case is mala fide and the steps taken regarding change of Record of Rights are also an outcome of the mala fide action of the respondent authorities including the South Dum Dum Municipality.
24. Mr. Rabi Lal Moitra, learned senior counsel appearing on behalf of the South Dum Dum Municipality submits that the building plan submitted on behalf of the writ petitioners herein could not be sanctioned as the land on which the building was proposed to be constructed was recorded as ‘Karkhana’ in the Record of Right. It has also been submitted on behalf of the Municipality that at the time of consideration of the building plan it was found from the records that a mistake was committed by the concerned authorities in respect of the classification of R.S. Plot No. 794 appertaining to R.S. Khatian No. 513/1 of Mouza: Shyamnagar and the concerned Block Land and Land Reforms Officer by a written communication dated 30th April 2003 intimated that steps have been taken for rectification of the aforesaid mistake.
25. In view of the detection of the aforesaid mistake in recording the classification of the land in question, Board of Councillors of the said South Dum Dum Municipality resolved that the building plan submitted on behalf of the writ petitioners cannot be sanctioned on the basis of the wrong recording as reported by the concerned department and therefore, the prayer for sanction of the building plan was refused.
26. Mr. Moitra, learned senior counsel of the Municipality further submits that the premises in question is a factory premises of Jaiswal & Co. and the nature and character of land was not changed from ‘Karkhana’ to ‘Danga’ and therefore, the Municipal authorities cannot accord sanction of the building plan on a recorded factory premises unless and until the recording of the said land is changed following the provisions of Section 4C of the West Bengal Land Reforms Act, 1955. Mr. Moitra submits that the municipal authorities cannot allow any construction on a land which is recorded as ‘Karkhana’ and not as ‘Danga’.
27. The learned counsel of the State respondents also produced certain records and submits that the land in question is recorded as ‘Karkhana’ and not as ‘Danga’ and therefore, the municipal authorities have rightly rejected the prayer of the petitioners regarding sanction of the building plan.
28. Considering the aforesaid rival contentions of the respective parties I find that the prayer of the petitioners regarding sanction of the building plan was refused by the Municipality on the ground that the said land has been recorded as ‘Karkhana’ and not as ‘Danga’. It appears from the records that the earlier writ petition filed on behalf of the writ petitioners herein was finally decided upon hearing the submissions of the respective parties including the respondent Municipality wherein Justice D.P. Kundu, J. specifically observed as hereunder:
“I have also discussed hereinabove that from the documents produced by the learned advocate for respondent No. 2 it is evident that the character of the land in question has already been changed in the records and now it is recorded as ‘Danga’. Under the circumstances, the land in question can no longer be treated as ‘Karkhana’. Therefore, the building plan submitted by the petitioners requires immediate consideration by the South Dum Dum Municipality and it is now not necessary to have the view or approval of any department of Government of West Bengal.”
29. Even assuming the respondent authorities subsequently detected any mistake in recording the classification of the land in question then appropriate application should have been filed before this Court for necessary clarification of the earlier judgment passed by this Court. As a matter of fact, after disposal of the earlier writ petition by a reasoned judgment dated 24th March, 2003, respondent authorities herein detected the alleged mistake and decided to refuse the sanction in respect of the building plan submitted on behalf of the petitioners.
30. The plea of the respondent that the alleged mistake was detected subsequently by the respondent authorities, in my view, cannot be sustained on the ground that the first correction of the Record of Rights in this regard was made in the year 1993. In the year 1993 in Case No. 16/BKP/92/93, the description of the land was changed from ‘Karkhana’ to ‘Danga’ under Section 44(2A) of the West Bengal Estate Acquisition Act by the S.D.L. & L.R.O., Barrackpore designated as Assistant Settlement Officer and therefore, a further correction under the aforesaid section cannot be made for the second time under Section 44(2a) of the West Bengal Estate Acquisition Act.
31. In any event, the factory in question was closed in the year 1968 and undisputedly, the land including the factory shed was being used for residential purpose since then. This has been admitted by the respondent Municipality in the affidavit-in-opposition in the present proceeding.
32. Section 4C of the West Bengal Land Reforms Act has come into operation with effect from 7th August, 1969 although the land in question was being used for residential purpose prior to corning into operation of the said Section 4C. Accordingly, after coming into operation of Section 4C in the year 1969 permission of the Collector will be necessary only for alteration in the mode of use of the said land.
In the present case, the land in question was being used for residential purpose prior to 7th August, 1969 and therefore, no question of change of user of the land in question arises in the facts of the present case. The petitioners herein therefore, cannot be asked to obtain the permission from the Collector under Section 4C of the West Bengal Land Reforms Act, 1955 for the purpose of taking steps regarding sanction of the building plan of the petitioners.
33. Furthermore, the land in question has been specifically shown as a residential area in the land use map prepared under the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979 and therefore, no ‘Karkhana’ can be allowed to be constructed on the said land even assuming the said land is still recorded in the Record of Right as ‘Karkhana’. The respondent authorities must take a practical view in the matter. The authorities of the South Dum Dum Municipality cannot allow any construction in violation of the land use map prepared under the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979.
34. The authorities of the South Dum Dum Municipality must adhere to the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979 while considering the sanction of any building plan apart from the provisions of the West Bengal Municipal Act and Rules framed thereunder.
35. From the records also I find that the authorities of the South Dum Dum Municipality have been well aware of the aforesaid fact that the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979 is applicable in respect of the lands in question and as such by the written communication dated 28th November, 1991, asked the petitioner to rectify the building plan following the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979.
36. The authorities of the South Dum Dum Municipality can under no circumstances ignore the land use map prepared in respect of the areas of the said Municipality under the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979 and therefore, cannot treat the land as ‘Karkhana’ land and refuse to use the same for residential purpose even though the same has been specifically mentioned in the land use map as residential area. The authorities of the South Dum Dum Municipality should have remembered that the use and development of land within the area of the said Municipality must be in conformity with Land Use and Development Control Plan and as such in the present case, the aforesaid lands in question should be used only for residential purpose in terms of the aforesaid land use map.
37. The provisions of Section 4C of the Land Reforms Act has also no manner of application in the present case in view of the fact that the aforesaid land in question was being used for residential purpose even prior to coming into operation of Section 4C of the Land Reforms Act in the year 1969.
38. Furthermore, D.P. Kundu, J. while deciding the earlier writ petition filed on behalf of the writ petitioners, on examination of the relevant records and upon considering the submissions of the learned counsel of the respective parties came to the conclusion that the land in question can no longer be treated as ‘Karkhana’ as the said land in question has already been changed in the records as ‘Danga’.
39. The subsequent decision on the part of the respondent authorities including the respondent Municipality to classify the land in question as ‘Karkhana’ instead of ‘Danga’ is not only violative of the earlier decision of this Court but the same has also been done in clear violation of the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979 and the land use map prepared under the said Act of 1979. The aforesaid unfortunate decision on the part of the respondent authorities including the authorities of the South Dum Dum Municipality cannot be appreciated by this Court.
40. Scrutinising the available records I am satisfied that the respondent authorities herein have wrongfully and illegally changed the Record of Flight in respect of the land in question subsequent to the order dated 24th March, 2003 passed by D.P. Kundu, J. with a mala fide intention to circumvent the aforesaid order passed by this Hon’ble Court. Therefore, the subsequent order passed by the Assistant Settlement Officer regarding correction of Record of Right in respect of the land in question cannot be sustained and the same is accordingly quashed.
41. In my opinion, the authorities of the South Dum Dum Municipality not only ignored the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979 and the land use map prepared thereunder but also ignored the directions and/or observations of this Hon’ble Court as mentioned in the earlier order dated 24th March, 2003 and unusually placed reliance on a letter dated 30th April, 2003 written by the Block Land and Land Reforms Officer for the purpose of refusing the prayer of the petitioners regarding sanction of the building plan.
42. For the reasons mentioned hereinbefore, I am of the view that the respondent authorities herein particularly the authorities of the South Dum Dum Municipality have acted in an arbitrary and wrongful manner by rejecting the prayer of the petitioners for sanction of the building plan.
43. In the aforesaid circumstances, the impugned order of refusal dated 12th May, 2003 passed by the South Dum Dum Municipality stands quashed.
44. The respondent Nos. 2, 3 and 4 are therefore, directed to take necessary steps regarding sanction of the building plan of the petitioners for the purpose of construction of the building on the land in question strictly in terms of the provisions of the West Bengal Town & Country (Planning & Development) Act, 1979 and the West Bengal Municipal Act and Building Rules framed thereunder without any further delay but positively within a period of 4 weeks from the date of communication of this order ignoring the order dated 24th June, 2003 passed by the Assistant Settlement Officer in Case No. 6 of 2003 for alleged correction of the Record of Right in respect of the land in question.
45. This writ petition thus stands allowed with costs assessed at 1000 G.Ms, to be paid by the authorities of the South Dum Dum Municipality to the writ petitioners within a period of 4 weeks from the date of communication of this order.
46. Urgent xerox certified copy of this judgment, if applied for, may be handed over to the learned advocates of the parties upon compliance with usual undertaking.