Revised Sanction Plan Sans Existing Flat Owners' Consent Is Illegal & Fraudulent; Calcutta HC Orders Demolition Of 16th Tower - 2025-08-29

Tracking Legal Developments.

Calcutta High Court Orders Demolition of 16th Tower in 'Elita Garden Vista', Rules Revised Sanction Plan Without Flat Owners' Consent is Illegal

Kolkata: In a landmark judgment with significant implications for the real estate sector, the Calcutta High Court has ordered the demolition of a 26-storey residential tower in New Town's 'Elita Garden Vista' complex. A division bench of Justice Rajasekhar Mantha and Justice Ajay Kumar Gupta held that a revised building plan sanctioned without the prior consent of existing flat owners is illegal, fraudulent, and violates their constitutional right to property under Article 300A.

The court set aside a single-judge bench order, ruling that the New Town Kolkata Development Authority (NKDA) acted illegally by granting a revised sanction in 2015 for the 16th tower, which reduced the undivided share and common areas promised to the original homeowners.

Background of the Dispute

The case was brought by Rajan Kumar Prasad and other flat owners of the first 15 towers of the "Elita Garden Vista" (EGV) complex. The original project, sanctioned in 2007, promised 15 towers with extensive open spaces, gardens, and other amenities. The appellants purchased their flats based on this plan.

In 2014, a new developer, M/s. Elita Garden Vista Projects Pvt. Ltd., took over the project. In 2015, without the knowledge or consent of the existing 1278 flat owners, the new developer obtained a revised sanction plan from the NKDA to construct an additional 16th tower and a commercial complex on an area previously designated as an open landscape. This new construction significantly reduced the common areas, pathways, and the undivided property share of each original owner from 0.1% to 0.08%.

After discovering the revised plan in 2017, the original flat owners objected, but construction continued. A single-judge bench dismissed their writ petition in 2023, refusing to order demolition, which led to the present appeal.

Key Arguments

• Appellants' Stance: Senior Counsel Sabyasachi Chowdhury, representing the flat owners, argued that the revised plan was illegal as it was granted without their mandatory consent, violating the West Bengal Apartment Ownership Act, 1972, and the West Bengal Promoters Act, 1993. They contended that once they became owners, their undivided share in the land and common areas could not be altered unilaterally. The appellants drew parallels to the Supreme Court's decision in the Supertech case, demanding demolition.

• Developer and NKDA's Defense: The developer, represented by Senior Counsel Abhrajit Mitra, argued that clauses in the sale agreements permitted further construction and that the flat owners were barred by delay and acquiescence, having waited until the tower was substantially complete. The NKDA contended that its own Act of 2007 had an overriding effect and did not require it to consider the provisions of the Apartment Ownership Act.

Court's Analysis and Legal Principles Applied

The Division Bench conducted a thorough analysis of the interplay between the NKDA Act, the WB Apartment Ownership Act, and the WB Promoters Act, reaching several crucial conclusions.

• No Overriding Effect of NKDA Act: The court rejected the argument that the non-obstante clause in the NKDA Act, 2007, allows it to ignore other relevant statutes. It held that the WB Apartment Ownership Act, 1972, is not inconsistent with but rather aids the NKDA Act by establishing clear ownership rights, which are fundamental for sanctioning building plans. The Court noted, " The NKDA Act calls for the requirement of consent of the flat owners, since it requires the person seeking to construct to establish that he has the exclusive right to make construction on the land in question. "

• Prior Consent is Mandatory: The judgment heavily emphasized Section 7 of the WB Apartment Ownership Act and Section 8 of the WB Promoters Act, which explicitly prohibit a promoter from constructing an additional structure without the prior consent of existing owners. The court held that this is a statutory right enacted in the public interest to balance the unequal bargaining power between developers and homebuyers.

• Revised Plan Obtained by Fraud: The court found that the developer obtained the 2015 revised plan by "fraud and suppression of material facts." The promoter failed to disclose that it no longer had the exclusive right to develop the land, as a significant portion of the undivided share had been transferred to the original flat owners. This rendered the sanction void ab initio under Section 81 of the NKDA Act.

  " The promoter has misled the NKDA into sanctioning a modified plan in the year 2015. The said modifed sanction plan is liable to be cancelled... and the construction made pursuant thereto is liable to be demolished. "

• Violation of Constitutional Right to Property: The bench elevated the issue from a statutory violation to a constitutional one, holding that the reduction of the flat owners' undivided share without their consent amounted to a deprivation of property without the authority of law, violating Article 300A of the Constitution.

  " The reduction of the undivided share of the flat owners of the 15 towers has violated their right under Article 300A... The said reduction amounts to a surreptitious acquisition of land by the promoter/non-state actor with the active connivance of the NKDA. "

• Delay Not Fatal: Dismissing the developer's argument on delay, the court cited Supreme Court precedents holding that delay cannot legitimize an illegal construction or override the need to protect the constitutional right to property.

Final Decision and Directions

The Calcutta High Court allowed the appeal and set aside the single judge's order. It issued the following stringent directions:

1. Demolition: The 16th tower (numbered 8) and the commercial plaza are to be demolished by the promoter within two months, failing which the NKDA must carry it out at the promoter's cost.
2. Refund and Compensation: Purchasers of flats in the demolished tower must be refunded their full purchase price with 7% annual interest.
3. Accountability: The State Vigilance Commission is directed to conduct an inquiry into the roles of the NKDA officers and engineers involved in granting the illegal sanction and to initiate departmental and criminal proceedings.

This judgment serves as a stern warning to developers against unilaterally altering sanctioned plans and underscores the primacy of existing homeowners' rights in a housing project.