Consent of existing flat owners is mandatory for modifications to original building plans under relevant statutes, and failure to secure such consent renders subsequent constructions illegal.

JUDGMENT :

Rajasekhar Mantha, J.

1. The present appeals are directed against a judgment and order dated 18th October 2023, passed by a Single Judge of this Court in writ petition being WPA 15903 of 2018. By the said judgment, the Single Bench dismissed the writ petition, refusing to pass any order of demolition in respect of the 16th tower, which was constructed as per the revised sanction plan granted by the New Town Kolkata Development Authority (NKDA) of the year 2015 (The original sanction plan was of the year 2007).

A. FACTS OF THE CASE

2. The facts relevant to the case are that sometime in the year 2007, one M/s. Keppel Magus Pvt. Ltd. (original developer) published brochures for the construction of a residential complex comprising about 15 towers, each having about 23 stories and containing 1278 flats. The complex known as “Elita Garden Vista” (EGV) was to contain several facilities like gardens, wide open areas, a swimming pool, water bodies, clubhouses, shopping areas and other comfort living facilities. There were 1688 car parking spaces. The plinth area of construction was 37,369.74 sq. mtrs. The total area of land allotted by the WBHIDCO for the project was 99,983 sq. meters situated and lying at Plot AAIII in New Town under Rajarhat P.S. on the outskirts of the city of Kolkata.

3. The undivided share attached to each flat/apartment unit owner was 0.1% of the land constructed upon and in the common areas. The original building plan for the entire project was sanctioned by the New Town Kolkata Development Authority (NKDA) on 10th September, 2007.

4. The appellant no. 1, inter alia, on 7th January, 2010, entered into an agreement for the sale of units in the property along with several persons in respect of the 15 towers. Final conveyances were thereafter executed by the developer with several flat owners, including the appellant/writ petitioners.

5. On or about 19th December 2012, the apartment owners filed a declaration under Form A in terms of Section 2, read with Section 10 of the West Bengal Apartment Ownership Act of 1972 (W.B. Act of 1972). The said Form was contemplated under Section 10 of the Act of 1972, and Rules 3(1) and 5(1) of the West Bengal Apartment Ownership Rules of 1973 (Rules of 1973). The said Form-A was statutorily required and came to be registered with the concerned Registrar of Assurances.

6. Upon registration, the names and extent of the rights of the apartment owners and their undivided share in the land, the respective car-parking spaces and theextent of share in common areas came to be finally defined and demarcated.

7. 1278 apartment owners were recognised in the said declaration in the aforesaid Form A that was filed by the original promoters and the flat owners before the Competent Authority under the WB Act of 1972. On 9th February 2013, deeds of conveyance in respect of the flat units of the appellants in block/tower 5 were registered, and possession was handed over by the developer to the appellants on 8th January 2015.

8. On 21st January, 2015, a partial occupancy certificate was issued by the NKDA in terms of the original sanction plan of September 2007.

9. Sometime in 2014, the original developers sold and transferred their rights and interests, in the said project, in favour of the Respondent No. 6, M/s. Elita Garden Vista Projects Pvt. Ltd.

10. Without the knowledge or consent or concurrence of the existing land and flat owners, the new promoter i.e. respondent no. 6 on 20^th August, 2015, applied for and obtained a revised