Calcutta High Court orders demolition of residential tower at Elita Garden Vista

The Calcutta High Court on Friday ordered demolition of a multi-story residential tower in the outskirts of Kolkata after finding it was illegally constructed at the cost of the undivided share of flat owners of other 15 towers of the same real estate project [Rajan Kumar Prasad & Ors v New Town Kolkata Development Authority & Ors].

The Division Bench of Justice Rajasekhar Mantha and Justice Ajay Kumar Gupta ruled that the developer had obtained a revised sanction plan for the 26-floor additional tower at Elita Garden Vista complex by fraud and suppression of material facts.

“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,” the Court said.

It added that the authorities failed to discharge their statutory duties despite specific notice of the illegality committed by the developer. The obstruction of the free flow of light, air and ventilation to the existing 15 towers, as a consequence of the illegal 16th tower, cannot be compensated in terms of money, it said.

Accordingly, the Court ordered Elita Garden Vista Projects Private Limited to demolish the tower within two months. It also ordered that purchasers of the apartments in the 16th tower and the commercial plaza be refunded the price of each apartment paid by them to the promoter, with interest at the rate of 7 percent annum. 

The Court further ordered action against the officers of New Town Kolkata Development Authority (NKDA).

“The Engineers who have signed the revised sanction plan, and all the officers of the NKDA and their promoter and their men and agents who were involved in the process of the Grant of the revised sanction plan, for the 16th tower shall inquired into and be proceeded against both departmentally and under the criminal laws for acts of omission and commission after such inquiry is conducted by the State Vigilance Commission.” 

In 2007, Keppel Magus Private Limited announced a residential complex comprising about 15 towers, each having about 23 stories and containing 1,278 flats. In 2014, the original developer sold the project to Elita Garden Vista Projects.

A year later, the new developer obtained a revised sanction plan for the 16th tower, leading to reduction in the proportionate share of common areas for apartment owners. Sanction was also obtained for a new commercial complex within that building complex.

The decision led to multiple case – a single bench of the High Court in October 2023 refused to intervene in the matter and asked the NKDA to take a decision after hearing the parties.

The case then reached the Division Bench, where it was argued that entire construction made by the promoter under the revised sanction plan was illegal and without the consent of the owner or persons who bought apartments in terms of the original sanction plan.

In the judgment passed on August 29, the Court opined that it would be grossly inequitable, apart from being illegal, if it were held that the flat owners of the 15 towers had subjected their undivided share in the land to the discretion of the promoter.

“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,” the Court said.

The flat owners of the 15 Towers have Article 300A in their favour, whereas the flat owners of the 16th Tower have no such right since the 16th Tower was illegally built on muscle power, it further said.

“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 Court said.

The appellants were represented by Senior Advocate Sabsyasachi Chowdhury and advocates Rajarshi Datta, Shounak Mukhopadyay. They were briefed and instructed by Argus Partners. The Argus team consisted of Soorjya Ganguli and Pooja Chakrabarti (Partners) and Arti Bhattacharyya (Senior Associate) and Aritra Deb (Associate).

Senior Advocates Abhrajit Mitra and Arindam Banerjee with advocates Satadeep Bhattacharya, Saptarshi Datta, Abir Lal Chakraborty, Samriddha Sen, S Ghosh, Pourush Kanti Pal and Debdut Hore appeared for Elita Garden Vista Projects Private Limited.

Advocates Anirudha Chatterjee, Rahul Karmakar and Abirlal Chakraborty represented purchasers of units in the 16th Tower.

Advocate Biswabrata Basu Mallick represented the State.

Senior Advocate Anirban Roy with advocates Debashish Ghosh and Munmun Ganguly appeared for NKDA.

[Read Judgment]