Calcutta High Court Orders Demolition Of Tower At Elita Garden Vista Apartment Complex Over Fraudulently Obtained Sanction

The Calcutta High Court has directed the demolition of an additional tower constructed at the city's Elita Garden Vista housing complex, which had been constructed without the consent of the flat owners in the 15 towers, erected per the original sanction plan.

Justices Rajasekhar Mantha and Ajay Kumar Gupta held:

"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 further ordered the promoter of the project to carry out the demolition within two months and to refund the purchasers of apartment in the 16th tower, along with 7% interest per annum,

It was held that although the promoter knew the requirement of taking consent of the flat owners in the other 15 towers, they chose not to do so, thereby defrauding the pre-existing flat owners.

Court noted that the promoters were in violation of Section 81 of the Newtown Kolkata Development Authority Act (NKDA Act), which speaks of misrepresentation or fraudulent statements before the authority.

"The passage of time cannot regularise an illegal construction. The consequences flowing from the violation of the sanction plan while making construction, and construction made without any plan, will depend on the very many factors. In this case, the sanction plan is the outcome of fraud. The present case is not one where, while effecting construction, due to bona fide mistake, the revised plan has been violated. Hence, this case is equivalent to a no-sanction case," it was held.

In reprimanding the authorities of the NKDA in allowing such a fraudulent revised sanction to be obtained and such an illegal structure to be constructed, the court observed that mere compensation in this case would not meet the ends of justice. It said:

"The promoter, with the active connivance of the NKDA, has deprived the flat owners of the 15 towers of their right to the land. The Promoter has also fraudulently obtained a modified sanction plan from the KMDA by suppression of facts, a misstatement thereof. In fact, the modified sanction plan obtained by the promoter is void ab initio. A private citizen cannot be permitted to deprive their fellow citizen of their right to property. The NKDA also acted illegally in depriving the flat owners of the original 15 towers of their land by granting a revised plan for construction to be made on their land by a third party/ Promoter without their consent."

Accordingly, the court directed an inquiry against the officers and engineers of the NKDA who had signed the revised sanction plan for construction of the 16th tower. It held:

"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."

Case: RAJAN KUMAR PRASAD & ORS. Vs NEW TOWN DEVELOPMENT AUTHORITY & ORS. WITH ELITA GARDEN VISTA PROJECT PRIVATE LIMITED Vs EGV ASSOCIATION OF APARTMENT OWNERS & ORS.  

Case No: MAT No. 2420 of 2023

Click here to read order