The original HIDCO plan was the only legally valid sanctioned plan, and the impugned order lacked credible defense and was contrary to legal provisions.

JUDGMENT :

Moushumi Bhattacharya, J.

1. The petitioner is an association of apartment owners registered under the West Bengal Apartment Ownership Act, 1972. The petitioner’s cause of action arises out of a Development Agreement dated 24.02.2006, executed between the West Bengal Housing Infrastructure Development Corporation (HIDCO) and Rosedale Developers Private Limited (respondent no. 6/developer), for development of a residential project at New Town, Kolkata. The residential project was named “Rosedale Garden Complex”.

2. The other parties before the Court are the New Town Kolkata Development Authority (NKDA) which was formed with effect from 24th June, 2008 and the respondent no. 4 being the West Bengal Housing Infrastructure Development Corporation. The respondent nos. 7-9 is M/s. Rosedale Plaza are the owners of a commercial plaza constructed inside the residential complex.

3. The petitioner prays for stay/quashing of an order passed by the New Town Kolkata Development Authority dated 27.02.2019 and a direction on the said respondent to demolish the construction made by Rosedale Plaza (respondent nos. 7-9) within the residential complex. The petitioner urges that the commercial construction made by the respondent nos. 7-9 is beyond the Original Plan sanctioned by NKDA.

4. A brief list of events is relevant to the present controversy and is stated below.

Brief Facts

5. A Development Agreement dated 24.02.2006 was executed as stated above between HIDCO/the original land owner and the respondent no. 6 for construction of a housing complex consisting of original apartment and a commercial hub in accordance with the plan sanctioned by HIDCO. A Master Plan of the Rosedale Complex (residential complex) was sanctioned by HIDCO on 27th August, 2009 under the Planning Area (Building Portions) Rules, 2006. This plan was referred to as the “Original HIDCO Plan” and divided the entire plot into two demarcated areas comprising of a complex for residential use and a separate area for commercial use. The former was named “Rosedale Garden Complex” and the latter was named “Rosedale Plaza Complex”.

6. An agreement for sale dated 7th April, 2010 was entered into between one Ramji Power Construction for purchase of the entire Rosedale Plaza Commercial Complex with parking spaces and other amenities in terms of the Original HIDCO Plan. The developers/Rosedale Developers Private Limited obtained a revised Master Plan on 26th April, 2011. NKDA, in the meantime, became the sanctioning authority pursuant to coming into force of the New Town Kolkata (Building) Rules, 2009. On 30th April, 2011 a final Agreement for Sale was entered into between Ramji Power, HIDCO and respondent no. 6 in terms of the original HIDCO Plan. The entire construction of the Rosedale Plaza Complex was handed to the Commercial Plaza Owner in February, 2013 as a bare shell and in August/September, 2013, the rights and interest of the Rosedale Plaza Complex was transferred in favour of the respondent no. 7/Commercial Plaza Owners. A registered deed of conveyance was executed on 21st September, 2013 in favour of the writ petitioner for sale of one apartment in Tower 1 of the residential complex on the basis of the original HIDCO Plan. Other deeds of conveyance were executed in December, 2013 and May, 2014 by HIDCO and the respondent no. 6 in favour of the writ petitioner and the commercial plaza owner in respect of the residential complex and the commercial plaza, respectively.

Litigations

7. In September, 2017, a representative of the petitioner complained to HIDCO alleging deviation from the Original HIDCO Plan. WPA 21146 of 2018 was filed in October, 2018 praying for restoring the nature and character of the Rosedale Garden Complex as depicted in the original Plan dated 27th August, 2009 which was approved by HIDCO. In November, 2018, the Commercial Plaza Owner/respondent nos. 7-9 approached NKDA for extension of the original HIDCO Plan but was informed that notice of completion had