Elita Garden Vista case: Calcutta HC orders demolition of 26-storey Kolkata tower

A Calcutta High Court division bench has ordered the complete demolition of a 26-storey residential tower in Kolkata’s New Town area within two months, delivering a landmark judgment that underscores the primacy of homeowner consent and property rights in urban development.

The ruling, reported by The Indian Express, targets the illegally constructed 16th tower of the Elita Garden Vista housing society. The building contains 233 apartments, a commercial plaza and parking for 269 cars. Justices Rajasekhar Mantha and Ajay Kumar Gupta ruled that the structure violated multiple statutory provisions and must be razed.

According to the court’s order, the tower was constructed without the mandatory consent of the existing flat owners from the original 15 towers, a direct breach of the West Bengal Apartment Ownership Act, 1972. The judges found that a revised plan, sanctioned in 2015 after the project was sold to Elita Garden Vista Projects, also contravened the West Bengal Premises Development Act, 1993.

Crucially, the court held that the revised plan unlawfully reduced the undivided shares of the original residents in the project’s common areas. This reduction was deemed an infringement of property rights guaranteed under Article 300A of the Constitution.

“There is no alternative to demolition when an additional structure is constructed without the consent of the existing flat owners,” the bench observed in its order. It further stated that the original 2007 sanction plan permitted only 15 towers, a fact upon which the aggrieved flat owners had based their purchase decisions.

The judgment, as reported by The Indian Express, was scathing in its assessment of the authorities’ role. It noted that the New Town Kolkata Development Authority (NKDA) could not sanction a revised plan while ignoring consent and ownership requirements under other laws, an act the court equated to “fraud” as the promoter had “suppressed critical facts”.

In a significant move, the court has directed the State Vigilance Commission to initiate a thorough enquiry. This probe will target the promoter, the engineers who signed the revised sanction plan and the NKDA officers involved in granting the approval, with both departmental and criminal proceedings to follow.

The court delineated a clear path for restitution. All buyers of apartments and shops in the illegal tower are to be refunded their money with 7% annual interest. The residents have been granted one month to remove their belongings, after which the promoter and the NKDA must carry out the demolition at the promoter’s cost within the subsequent two months.

The ruling made a stark distinction between the legitimate and illegitimate residents. It observed that while the original flat owners possess constitutional property rights, those occupying the 16th tower lack such amenities as it was built unlawfully. They have, the order stated, been provided with increased common facilities that “cannot compensate for the reduction of their share in the land”.

Despite a request from the promoters’ counsel, Abhrajit Mitra, for a stay on the order, the bench refused to entertain it, allowing the directives to stand.