The Calcutta High Court ordered the demolition of a tower at Elita Garden Vista, stressing that there is no alternative when additional structures are built without the consent of flat owners and beyond the sanctioned plan.
The Calcutta High Court mandated the demolition of a multi-story residential tower on the outskirts of Kolkata, determining that it was constructed illegally, infringing on the undivided shares of flat owners from 15 other towers in the same real estate project.
The Division Bench, comprising Justice Rajasekhar Mantha and Justice Ajay Kumar Gupta, found that the developer had fraudulently obtained a revised sanction plan for the 26-floor additional tower at the Elita Garden Vista complex by concealing critical facts.
The Court stated,
“There is no alternative to demolition when an additional structure is constructed without the consent of the existing flat owners of the 15 towers. Further, the situation has leaned in favour of demolition of the 16th tower, given that the original sanction plan of 2007 permitted only the construction of 15 towers, based on which the aggrieved flat owners/appellants purchased their respective flats,”
It also criticized the authorities for failing to fulfill their statutory responsibilities despite being notified of the developer’s illegal actions.
The Court noted that the obstruction of light, air, and ventilation to the existing towers due to the illegal construction cannot be rectified with monetary compensation.
Consequently, the Court ordered Elita Garden Vista Projects Private Limited to demolish the tower within two months and mandated that purchasers of apartments in the 16th tower and the adjacent commercial plaza be refunded their payments, with interest at 7 percent per annum.
Further, the Court directed investigations and actions against officials from the New Town Kolkata Development Authority (NKDA). Those involved in signing the revised sanction plan and other agents related to the approval process for the 16th tower are to be scrutinized and face both departmental and criminal proceedings after an inquiry by the State Vigilance Commission.
Originally, in 2007, Keppel Magus Private Limited announced a residential complex featuring about 15 towers, each with around 23 stories and a total of 1,278 flats. In 2014, the project was sold to Elita Garden Vista Projects. A year later, the new developer secured a revised sanction plan for the 16th tower, reducing the proportionate share of common areas for apartment owners and also obtaining approval for a new commercial complex.
This development sparked multiple legal challenges. A single bench of the High Court had previously declined to intervene, directing the NKDA to make a decision after hearing all parties.
The case was escalated to the Division Bench, which was presented with arguments asserting that the entire construction under the revised sanction plan was illegal and conducted without the consent of owners who had purchased apartments under the original plan.
In its judgment delivered on August 29, the Court opined that it would be fundamentally unjust and illegal to permit the flat owners of the 15 towers to relinquish their undivided land shares at the discretion of the promoter.
The Court asserted,
“The purchase of the flats not only creates rights in the nooks and corners of the flat but also in the proportionate share of land. It would be inconsistent to say that while the square feet of the flats remained in the control of the flat owners, the control over the concomitant proportionate share in the land stood transferred by the same agreement to the promoter,”
It further emphasized that the flat owners of the 15 towers possess rights under Article 300A, whereas those in the 16th tower lack such entitlements since it was built unlawfully.
The Court concluded,
“The flat owners of the 15 towers have lost their undivided share in the land. Instead, they have not been provided any land, but an increase in the number of common facilities, which cannot compensate for the reduction of their share in the land and particularly in the open common areas. Exchanging the land with an increase of common area, if at all can be done, ought to have been done with the due consent of the flat owners of the 15 towers,”
The appellants were represented by Senior Advocate Sabsyasachi Chowdhury and advocates Rajarshi Datta, Shounak Mukhopadyay, with instructions from Argus Partners, including partners Soorjya Ganguli and Pooja Chakrabarti, as well as Senior Associate Arti Bhattacharyya and Associate Aritra Deb.
Elita Garden Vista Projects was defended by Senior Advocates Abhrajit Mitra and Arindam Banerjee, along with advocates Satadeep Bhattacharya, Saptarshi Datta, Abir Lal Chakraborty, Samriddha Sen, S. Ghosh, Pourush Kanti Pal, and Debdut Hore.
Purchasers of units in the 16th Tower were represented by advocates Anirudha Chatterjee, Rahul Karmakar, and Abirlal Chakraborty, while Advocate Biswabrata Basu Mallick represented the State. Senior Advocate Anirban Roy, assisted by advocates Debashish Ghosh and Munmun Ganguly, appeared for the NKDA.
Case Title: Rajan Kumar Prasad & Ors v New Town Kolkata Development Authority & Ors
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