Consent of Existing Apartment Owners Is a Condition Precedent for Additional Structures; NKDA’s Non‑Obstante Clause Cannot Eclipse the WB Apartment Ownership Act and Promoters Act — Calcutta High Court Orders Demolition of Elita Garden Vista’s 16th Tower

Introduction

This Division Bench judgment of the Calcutta High Court (Rajasekhar Mantha, J. and Ajay Kumar Gupta, J.) settles a recurring and significant question in urban real-estate regulation: can a development authority grant a revised building plan permitting additional towers in a multi-owner apartment project without the prior consent of existing apartment owners when such addition reduces their undivided share in the land and affects common areas? In allowing the appeals against a Single Judge decision, the Court holds that the New Town Kolkata Development Authority Act, 2007 (NKDA Act) does not override the West Bengal Apartment Ownership Act, 1972 (WB AOA) and the West Bengal Promoters Act, 1993 (Promoters Act) on this issue.

The case arises from the Elita Garden Vista (EGV) project in New Town, originally sanctioned in 2007 with 15 towers and 1,278 flats. In 2015, a revised NKDA sanction permitted a 16th tower (Tower No. 8) and a G+8 commercial block, without the knowledge or consent of existing flat owners and after the developer’s rights had been transferred to a new promoter. The revised plan reduced open areas, altered pathways, and effectively diluted each existing owner’s undivided share in land and common facilities (from 0.1% to 0.08%). The apartment owners challenged the revised sanction, seeking demolition of the 16th tower and allied works. The Single Bench dismissed the writ petition, but the Division Bench has now reversed, ordering demolition and spelling out a clear rule for future: prior consent of existing flat owners is mandatory for additional structures that impact their rights.

Summary of the Judgment

• The NKDA Act’s non-obstante clause (Section 184) does not displace or immunize NKDA from factoring and enforcing the WB Apartment Ownership Act, 1972 and the Promoters Act, 1993 during plan sanction or revision; these statutes are complementary, not inconsistent.
• “Exclusive right to construct” is a condition precedent for plan sanction under the NKDA regime. Where land is owned proportionately by apartment owners, the promoter can demonstrate such exclusive right only through prior consent of all affected owners. Absent such consent, NKDA cannot lawfully grant a revised plan.
• Section 7 of the WB AOA, 1972 is prohibitory: an owner (including a promoter) cannot add any material structure detrimental to co-owners without prior consent. Section 8(1)(ii) of the Promoters Act, 1993 likewise bars additional structures without prior consent of flat takers; compensation is not a substitute remedy for such illegality.
• The revised plan (20 August 2015) was obtained by suppression and misrepresentation, violating Sections 75 and 81 of the NKDA Act; it is cancelled. The 16th tower and allied construction are illegal and must be demolished.
• Reduction of existing owners’ undivided share in land and common areas without their consent violates Article 300A (right to property): it amounts to an unauthorized deprivation without authority of law. Delay and laches do not bar relief when Article 300A is implicated.
• Promissory estoppel and waiver arguments based on sale agreement clauses fail: statutory and constitutional protections cannot be contracted away; equity cannot validate gross illegality.
• Directions include: demolition within two months at the promoter’s cost; refund of purchase price with 7% p.a. interest to buyers in the 16th tower and commercial block; vigilance/criminal and departmental action against erring officials and professionals involved in granting the revised sanction.

Analysis

A. Precedents Cited and Their Influence

• Supertech Ltd. v. Emerald Court (2021) 10 SCC 1: The Court draws substantive parallels with NOIDA’s regime and UP Apartment laws, emphasizing that additions reducing undivided shares or altering promised amenities require consent. The judgment cites Supertech’s core holdings to demonstrate that increasing flats (thereby reducing undivided shares) and encroaching on open spaces violate apartment ownership statutes and justify demolition. This anchors the consent requirement and the primacy of buyers’ property interests vis-à-vis revised plans.
• Jayantilal Investments v. Madhuvihar CHS (2007) 9 SCC 220: Even in a jurisdiction where “additional structures” consent language was later deleted, the Supreme Court insisted on full disclosure of the entire project at agreement stage. If the additional construction was not part of the disclosed sanctioned plan, subsequent construction requires consent. The Division Bench uses this to reject the promoter’s attempt to rely on generic contract clauses to justify an undisclosed 16th tower.
• Forum for People’s Collective Efforts v. State of West Bengal (2021) 8 SCC 599: The Supreme Court struck down WBHIRA as repugnant to RERA but underscored the continued relevance of municipal and local laws to real estate projects. The Bench uses this to show that far from excluding the AOA/Promoters Act, the NKDA framework coexists with and must factor them.
• Dev All (P) Ltd. v. KMC (Cal DB, 2024): A coordinate bench held KMC could not sanction construction on a roof owned 50% by another without their prior consent; sanctions obtained by misrepresentation are liable to cancellation and demolition. NKDA Section 81 is pari materia with KMC Section 397. This supports the principle that plan sanctions obtained without establishing “exclusive right to construct” are voidable and constructions are demolishable.
• Vikas Singh v. GNCTD (2022 SCC OnLine SC 1207): Distinguished. There, fire clearance was directory and not a precondition for sanction in the case facts. Here, consent flows from substantive statutory mandates (WB AOA/Promoters Act) and from NKDA’s own requirement to verify exclusive rights — not a mere directory formality.
• Regularization jurisprudence: Esha Ekta Apartments (2013) and a string of decisions emphasize that illegal/unauthorized constructions cannot be regularized by equity. The Court leans on this line to hold that time, investment, or third-party rights cannot sanitize an inherently illegal tower.
• Article 300A line of cases: Bimal Kumar Shah (2024) identifies “sub-rights” within Article 300A (notice, hearing, reasons, public purpose, fair compensation, efficient process, conclusion). Elizabeth Samuel (FB, Kerala) clarifies “authority of law” after Article 31’s repeal. Sukh Dutt Ratra (2022) and later decisions reiterate that delay does not immunize State-inflicted property violations. These inform the Court’s conclusion that reduction of undivided shares without owners’ participation is a constitutional wrong, not just a regulatory lapse.
• Waiver and promissory estoppel: Sasan Power (2017), Brahmputra Metallics (2023), Waman Shriniwas (1959), and Murlidhar Aggarwal (1974) are used to hold that statutory/public-interest protections cannot be waived or contracted away; and equity doctrines cannot validate what statute prohibits.

B. The Court’s Legal Reasoning

1. Scope and framing: The pivotal issue is whether a revised plan enabling a 16th tower could be sanctioned and constructed without prior consent of existing flat owners when ownership (including undivided shares in land and common areas) had already vested in them under the 2007 plan and registered Form A.
2. Non-obstante clause of NKDA (Section 184) harmonized: The Bench rejects the Single Judge’s view that NKDA’s non-obstante clause excludes WB AOA and the Promoters Act. It holds:
   • There is no “material inconsistency” between NKDA and those Acts; instead, they are mutually reinforcing: NKDA governs municipal permissions; the AOA/Promoters Act define ownership structures and promoter duties critical to sanction decisions.
   • Thus, NKDA must factor apartment ownership and promoter-regulation statutes, especially where title/authority-to-build turns on consent of co-owners with undivided shares.
3. “Exclusive right to construct” as a gating requirement:
   • NKDA Building Rules (Schedule I) require documents evidencing exclusive right to develop/construct.
   • Where land is held in undivided shares, such exclusivity flows only from owners’ consent. After registration of Form A and sale deeds under the original plan, the promoter lost unilateral build rights. Consent of existing owners is therefore a statutory prerequisite.
4. WB AOA, 1972 woven into sanctioning process:
   • Section 7 is prohibitory: no apartment owner (including promoter) shall add any material structure prejudicial to property or other owners (the 16th tower is an obvious “material addition”).
   • Section 10 and Rules require the plan and particulars to be disclosed in Form A; Rule 4 allows amendments only with proper notice and procedure, reinforcing transparency and owners’ participation.
   • Form B filed by the promoter to amend Form A was rejected by both competent and appellate authorities, underscoring the lack of lawful basis to alter the project behind owners’ backs.
5. Promoters Act, 1993 applies and binds NKDA processes:
   • WB AOA adopts the definition of “promoter” from the 1993 Act, knitting the schemes together.
   • Sections 3 and 8 require permission and prohibit additional structures absent prior consent of flat takers; the proviso makes clear that sanctioned plans and specifications must be respected.
   • Crucially, Section 8(2)’s compensation/rectification remedy pertains to defects in the existing building, not to unlawful additional structures; therefore, an illegal additional tower cannot be “cured” by compensation.
6. Ejusdem generis: “any other law” in Section 75(b) NKDA:
   • The phrase is construed broadly to include statutes bearing upon the condition precedent of an applicant’s authority to build — that is, laws governing ownership/consent, not merely technical building specifications.
   • Thus the AOA and Promoters Act are squarely within “any other law for the time being in force” for refusal/cancellation grounds.
7. Fraud/misrepresentation and Section 81 cancellation:
   • The promoter suppressed the lack of exclusive rights and the absence of owners’ consent, vitiating the integrity of the process under Section 75 and attracting Section 81.
   • Result: the revised sanction is cancelled; works thereunder are deemed without sanction.
8. Article 300A and constitutional dimensions:
   • Reducing undivided shares and open spaces without statutory authority and owners’ consent amounts to deprivation of property without authority of law.
   • Article 300A’s “sub-rights” (notice, hearing, reasons, public purpose, fairness) were breached; delay cannot defeat constitutional redress in such cases.
9. Equitable defenses rejected:
   • Promissory estoppel/waiver: Cannot override prohibitory statutes enacted in public interest; sale agreement clauses cannot be used to defeat statutory consent requirements or to “trade” undivided share in land for amenities.
   • Delay/laches: Earlier interim orders put purchasers on notice; when property rights are at stake, courts will not perpetuate illegality on the ground of time elapsed.

C. Impact and Prospective Significance

• For NKDA and all sanctioning authorities in West Bengal:
  • They must verify “exclusive right to construct” in fact and law. Where land is held in undivided shares, they must require clear, prior consent of all affected owners before granting/revising plans for additional structures.
  • Non-obstante clauses do not permit ignoring apartment ownership and promoter-regulation statutes; processing must reflect statutory harmonization.
  • Section 81 cancellation and Section 82 demolition powers will be engaged where sanctions are procured by misrepresentation or suppression.
• For developers/promoters:
  • Generic “future construction” and “amenities” clauses in buyer agreements do not substitute for statutory consent. Full and true disclosure of the entire project configuration at the time of sale is essential; undisclosed additional structures later require fresh consent.
  • Relying on revised municipal sanctions without clearing the consent/ownership hurdles risks demolition, criminal and departmental consequences, and restitution liability.
• For apartment purchasers and associations:
  • Registered Form A and sanctioned plans are powerful protectors. Any post hoc addition that dilutes undivided shares or alters promised open spaces can be resisted and undone.
  • Article 300A is a robust backstop: even where municipal permissions exist, deprivation of property incidents without authority of law will be reversed; delay is not fatal in such claims.
• Compliance culture and due diligence:
  • Sanctioning files must document owners’ prior consent when project configurations change. Vigilance inquiries ordered here signal heightened accountability of public officials and empanelled professionals who sign off on revised plans.
  • Expect ripple effects beyond NKDA to KMC/municipalities in West Bengal, given the Court’s reliance on pari materia provisions and coordinate bench precedent.

D. Complex Concepts Simplified

• Undivided share: Each apartment owner holds an inseverable, proportionate interest in the project land and common areas. Reducing that share (by adding more flats/towers) without consent is unlawful.
• Prior consent: Written agreement of all existing owners whose rights are affected by additions altering land share, open spaces or common facilities; consent cannot be implied from generic sale clauses.
• Exclusive right to construct: The applicant for sanction must prove the legal authority to build on the land proposed — via title or valid authorization from all co-owners. Without this, sanction cannot lawfully issue.
• Non-obstante clause: A statutory “overriding” clause (e.g., Section 184 NKDA). It prevails only where there is material inconsistency. Here, AOA/Promoters Act operate in harmony with NKDA; hence NKDA cannot ignore them.
• Ejusdem generis: A rule of interpretation. When a general phrase follows specific words, the general is read to include things of the same kind. Section 75(b)’s “any other law” includes laws governing the applicant’s authority to build (not just technical codes).
• Article 300A (right to property): A constitutional right requiring “authority of law” for deprivation. It contains sub-rights like notice, hearing, reasons, fairness and public purpose. Municipal action that effectively takes property incidents from owners without lawful authority is unconstitutional.
• Additional structure v. defect rectification: Under Section 8(2) of the Promoters Act, defects in a constructed building can be rectified or compensated. But unauthorized additional structures made without consent are not “defects” that can be bought out by compensation; the remedy is removal.

Key Directions Issued

• Revised sanction dated 20 August 2015 is cancelled under Section 81 NKDA.
• 16th tower (Tower No. 8) to be demolished within two months at promoter’s cost; NKDA to carry out demolition in default.
• Purchasers/occupiers of the 16th tower to remove belongings within one month.
• Refund of purchase price paid by buyers in the 16th tower and commercial block with 7% per annum interest.
• Vigilance inquiry and possible criminal/departmental proceedings against involved NKDA officers and professionals who signed the revised plan.
• Appeals allowed; Single Judge’s judgment set aside; stay refused.

Practical Compliance Takeaways

• Before seeking any revised plan that changes density, reduces open space, or adds towers/blocks, promoters must:
  • Obtain written prior consent from all existing apartment owners whose undivided shares/common areas are impacted.
  • Secure permissions under the Promoters Act, 1993 as applicable, and ensure Form A/Form B processes are lawfully undertaken.
  • Disclose the full project configuration at the agreement stage and update owners transparently when changes are proposed.
• Sanctioning authorities must:
  • Insist on documentary proof of exclusive right to construct (title/consent/authorizations) as part of sanction dossiers.
  • Record reasons and conduct independent verification where ownership is fractional or contested.
  • Be prepared to invoke cancellation and demolition powers if sanctions were procured by misstatement/suppression.
• Apartment owners’ associations should:
  • Register Form A; preserve all sanctioned plans and disclosures; monitor every application for revised plans that could affect common amenities and undivided shares.
  • Assert Article 300A rights promptly; delay will not bar relief but early assertion curbs downstream hardship.

Conclusion

This landmark Division Bench decision forges a clear doctrinal path in West Bengal’s apartment law: the municipal/development sanctioning regime cannot operate in a silo insulated by a non-obstante clause. Where multi-owner apartment property is concerned, the NKDA must verify that the applicant has an exclusive right to construct, which, in practical terms, requires prior consent of all existing apartment owners for any additional structure that changes density, open space, or undivided shares. The WB Apartment Ownership Act and the Promoters Act are not just relevant — they are controlling in this context.

By rooting its analysis in Article 300A’s constitutional guarantees and in Supreme Court jurisprudence against regularization of illegal constructions, the Court chooses demolition over ex post compensation where a tower has been erected on the back of a void revised sanction. The judgment thus recalibrates incentives in the urban housing market: transparency, consent, and statutory fidelity are non-negotiable; reliance on broad contractual clauses, municipal endorsements procured without authority, or the passage of time will not rescue unlawful additions.

In the broader legal landscape, the ruling strengthens owners’ participatory rights in project alterations, signals heightened scrutiny of sanction processes, and underscores that private development cannot erode property rights through procedural shortcuts. Its combined statutory and constitutional holdings offer a robust precedent that is likely to shape municipal practice, promoter conduct, and owner remedies across West Bengal and beyond.