Calcutta High Court: In a writ petition challenging the order dated 27-02-2019 passed by New Town Kolkata Development Authority (NKDA), and seeking demolition of the construction made by Rosedale Plaza within the residential complex based on allegation of exceeding the Original Plan sanctioned by NKDA, a single-judge bench comprising of Moushumi Bhattacharya,* J., found no basis for the impugned order by NKDA and quashed it, as the same was contrary to Sections 81 and 82 of the New Town Kolkata Development Authority Act, 2007 (NKDA Act) and lacked credible defense. The Court also rejected the petitioner’s prayer for demolition of the alleged unauthorized construction and direction to stop all alleged unauthorised construction, citing lack of supporting material and ongoing title disputes in another court.
Factual Matrix
In the instant matter, the petitioner, an association of apartment owners registered under the West Bengal Apartment Ownership Act, 1972, initiated legal action based on a Development Agreement executed between HIDCO and Rosedale Developers Private Limited (Developer) for a residential project in New Town, Kolkata named “Rosedale Garden Complex.” The petitioner alleged deviations from the Original HIDCO Plan by respondent 7-9, the commercial plaza owners, and sought the quashing of an order dated 27-02-2019, passed by the New Town Kolkata Development Authority (NKDA) directing the respondent 6 to file a fresh plan for the entire project and did not find any deviations in the construction made by the respondent 7-9. The petitioner also sought demolition of the commercial construction made by respondent nos. 7-9.
Moot Point
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Whether the impugned order passed by NKDA directing the filing of a fresh plan is valid?
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Which plan should be considered as the valid one for Sections 81 and 82 of the New Town Kolkata Development Authority Act, 2007 (NKDA Act)?
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Whether there were deviations from the original sanctioned plan?
Court’s Observation
The Court held that the original HIDCO plan dated 27-08-2009 is the legally valid sanctioned plan under Sections 81 and 82 of the NKDA Act, and it had not been challenged by any party in the proceedings. The Court opined that the impugned order dated 27-02-2019 passed by NKDA is liable to be quashed. The Court highlighted the allegations of encroachment regarding the commercial complex are essentially a title dispute which is beyond the jurisdiction of a Writ Court.
The Court noted that “the rights of the Commercial Plaza owner / respondent no. 7—9 also cannot be ignored in respect of the reality of the situation. Admittedly, the respondent no. 7—9 have completed construction only of the ground floor of the ground + 1 building as originally sanctioned in the HIDCO plan. Hence, there can be no scope for the said respondents exceeding the construction beyond any sanctioned area.” Additionally, the Court found that the allegations of deviations were not substantiated, especially in light of NKDA’s subsequent report confirming that the construction by the commercial plaza owner was in accordance with the sanctioned drawing.
The Court observed that the impugned order by NKDA was beyond the scope of its authority, as the Court did not find any deviation from the original plan and NKDA failed to provide a credible defense. The Court asserted that the impugned order lacked a basis for sustaining it and was contrary to the relevant provisions of the NKDA Act. The Court also rejected the petitioner’s prayer for demolition of the alleged unauthorized construction and direction on NKDA to stop all alleged unauthorised construction made at Rosedale Garden Complex, citing lack of supporting material and ongoing title disputes in another court. Therefore, the Court allowed the writ petition only to the extent of quashing the impugned order.
Court’s Decision
The writ petition was partly allowed, quashing the impugned order, but the petitioner’s prayers for demolition and further directions were rejected due to lack of factual and legal support.
[Rosedale Garden Apartment Owners Assn. v. New Town, Kolkata Development Authority, 2024 SCC OnLine Cal 2011, order dated 23-02-2024]
*Judgment by Justice Moushumi Bhattacharya
Advocates who appeared in this case:
Mr. Srijib Chakraborty, Mr. A. Mandal, Mr. Bimalendu Das, Mr. Shomrik Das, Counsel for the Petitioner
Mr. Rohit Das, Ms. Kishwar Rahman, Ms. Sristi Roy, Counsel for the Respondent Nos. 7 to 9
Mr. Debabrata Banerjee, Mr. Samir Chakraborty, Counsel for the HIDCO
Mr. Debabrata Banerjee, Mr. Tapojit Dey, Counsel for the NKDA
Ms. Suranjana Chatterjee, Ms. Suranjana Chatterjee, Ms. Madhusmita Senapati, Counsel for the Developer /respondent no. 6
