DEMOLITION OF PRIVATE PROPERTY MUST BE BASED ON CLEAR STATUTORY GROUNDS AND CONSIDERATION OF ALL FACTORS

Introduction
The Supreme Court of India’s Judgment in M/s Aarsuday Projects & Infrastructure (P) Ltd. v. Jogen Chowdhury and others (Civil Appeal Nos. 2920, 2921 and 2922‑2923 of 2018) reconciling private property rights with environmental preservation and cultural heritage protection near Santiniketan. The case was decided by the Two Judge Bench comprising Justice Sandeep Mehta and Justice Vikram Nath. The case arose from a challenge to a multi‑storey residential complex constructed close to Visva‑Bharati University in Birbhum district, West Bengal, which the Calcutta High Court had ordered to be demolished as an illegal construction on ecologically sensitive land. The Supreme Court had to decide whether the High Court’s directions were sustainable in law in light of the factual record and the earlier precedent in Sushanta Tagore v. Union of India (2005) 3 SCC 16.
Factual Background
The dispute concerns a plot in Mouza Ballavpur, District Birbhum, situated near the Visva‑Bharati campus and within the Sriniketan‑Santiniketan Development Authority (SSDA) planning area. Under the Land Use and Development Control Plan published in 2002, this plot was expressly earmarked for “residential use” and revenue records in 2009 described it as “danga” (barren, non‑agricultural land). Aarsuday Projects purchased the plot through a registered sale deed and thereafter sought to develop it as a residential complex.
On 29 December 2009, the Ruppur Gram Panchayat issued a No Objection Certificate (NOC) for residential construction, subject to conversion of the land from “danga” to “bastu.” Because the proposed plinth area exceeded 300 square metres, the building plan was forwarded to the Zilla Parishad, Birbhum, which vetted it on 4 November 2011 and returned it to the Gram Panchayat, which treated the vetted plan as approved and communicated this to the developer. Construction commenced in June 2011 and was completed by July 2013, during which time the SSDA’s three‑member Sub‑Committee (including representatives of Visva‑Bharati and local residents) inspected the site and recommended grant of NOC for conversion from “danga” to “bastu”; the District Land & Land Reforms Officer thereafter approved the conversion on 9 January 2013.
The controversy turned on the allegation that the land was in fact “khoai” – an ecologically sensitive, canyon‑like laterite formation famously celebrated by Rabindranath Tagore and previously noticed in Sushanta Tagore’s case, where new large‑scale construction was claimed to be impermissible. Although “khoai” has no formal category in the State’s revenue laws, the High Court treated the area as a preserved “khoai” landscape and acting on a PIL filed in 2012, ultimately held the construction to be illegal.
Court’s Decision
The Supreme Court allowed all three appeals and set aside the High Court’s demolition and consequential directions, while underscoring that environmental concerns must be addressed through legally sound, evidence‑based processes.
Nature of the Land and “Khoai”
The Court noted that “khoai” is not a revenue classification in West Bengal and that the record did not contain any contemporaneous material establishing that the subject plot was, in fact, “khoai” land. The WBPCB’s 2013 inspection report expressly stated that the adjacent area to the plot was a low‑lying area locally known as “khoai” and that the project’s built‑up area fell below the 20,000 square meter threshold requiring environmental clearance, thereby implying that the specific plot was not itself clearly demarcated as “khoai.” The District Magistrate’s report similarly did not conclusively record the plot as “khoai,” and the Sub‑Committee with Visva‑Bharati’s representative had raised no such objection at the time of granting NOC. In a PIL context, the Court held, petitioners bear the burden of placing “clear, cogent and reliable” evidence on record; that burden had not been discharged.
Competence and Procedural Irregularities
On the issue of the proper authority to grant building permission, the Court accepted that, under the statutory scheme, the Panchayat Samiti was the competent body, but it treated the Gram Panchayat’s grant, after Zilla Parishad vetting, as a long‑standing administrative practice amounting to a procedural irregularity rather than a nullity. It highlighted that the Panchayat Samiti had only begun granting permissions in practice from March 2012, whereas the developer’s plan had already been vetted and acted upon in 2011 and that there was no allegation of fraud, suppression or collusion on the part of Aarsuday Projects. In such circumstances, the extreme remedy of demolition, with consequential loss to innocent purchasers, was held to be wholly disproportionate.
Bona Fide of the PIL and Selective Challenge
The Court attached significant weight to the fact that several writ petitioners themselves owned or occupied constructions within the same 28.12‑acre tract and that existing buildings, some directly opposite the disputed project, had not been challenged. This selective targeting, combined with omission to disclose their own property interests, led the Court to doubt the bona fides of the petition and to view it as an attempt to single out one project rather than a genuine effort to protect the environment of Santiniketan.
Relief Granted
Appeal was allowed, the demolition order and compensation of Rs 10 lakhs and costs of Rs 25,000 imposed by the High Court were quashed and the developer’s construction was effectively regularized in light of the approvals on record. Appeal of flat purchasers was disposed of in terms of the principal relief, thereby protecting the interests of bona fide buyers.
Conclusion
The Judgment strikes a balance between environmental protection, cultural heritage and the rule of law governing private property and administrative action. It reiterates that while areas like Santiniketan deserve heightened protection, Courts cannot order drastic remedies like demolition on the basis of unverified assumptions or retrospective re‑characterization of land as “khoai” without solid evidentiary support. Procedural lapses by public authorities, in the absence of deceit or collusion, do not automatically justify razing completed structures, particularly where third‑party purchasers have acted in good faith.

YASH HARI DIXIT
LEGAL ASSOCIATE
THE INDIAN LAWYER AND ALIED SERVICES
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