Rosedale Garden Apartment Owners Association vs New Town, Kolkata Development Authority & Ors

Arindam Sinha, J

This writ petition has been listed under heading 'To Be mentioned' at instance of petitioner wanting to move on urgent basis.

The writ petition is by an association of apartment owners impugning order dated 27th February, 2019 made by Chief Executive Officer, New Town Kolkata Development Authority (NKDA). Mr. Mukherjee, learned senior advocate appears on behalf of petitioner and submits, his clients are owners of apartments in the project developed as Rosedale Garden Complex. Completion certificate in respect of the project was obtained by the developer on 14th October, 2015. He submits, an unit was sold away as to be used for commercial purpose. In respect of that unit the authority has invited the developer to submit application for fresh sanction of plan, incorporating all changes as may be deemed necessary. This is prohibited by rule 9 in New town Kolkata (Building) Rules, 2009, which says amalgamation and sub-division of plot shall not be allowed. He submits the apartments in the complex stand registered under West Bengal Apartment Ownership Act, 1972. The unit sold away as a commercial unit, includes common areas. Common areas and facilities have been defined in said Act. Provisions in section 5, 6 and 7 are to be complied with in respect of the complex. Inviting fresh plan for modification of completed complex or project would be in violation of these provisions as well. He relies on judgment of a learned single Judge of this Court in Basana Dutta vs. State of West Bengal, reported in 109 CWN 1056, paragraph 22 to submit, what was mentioned and executed per original sanction plan cannot be changed without consent in writing of flat owners.

Mr. Bhattacharyya, learned advocate appears on behalf of respondent nos. 1 to 3 (NKDA). He submits, there has been suppression of interim order dated 6th December, 2018 made in W.P. 24454 (W) of 2018 (Rosedale Plaza vs. The New Town Kolkata Development Authority & Ors.) made by a learned single Judge of this Court. His client was directed to allow respondent no. 7 herein to participate in proceeding that may be initiated by it in terms of order dated 4th December, 2014 passed in another writ petition [W.P. 21146 (W) of 2018] - Vinay Chowdhury v. The New Town Kolkata Development Authority & Ors. Impugned order was made pursuant thereto. His client acted in accordance with law and pursuant to directions made in said writ petitions. Basana Dutta (supra) cannot be said to be good law in view of a Division Bench judgment of this Court in Smt. Rinkoo Mitra vs. State of West Bengal, reported in (2003) 2 CLT 588, paragraphs 19 and 20.

Mr. Banerjee, learned advocate appears on behalf of respondent nos. 4 and 5, who have along with respondent no. 6, conveyed the commercial unit to respondent no. 7. He submits with reference to prayer (e) in the writ petition, persons mentioned therein have not been impleaded. Mr. De, learned advocate appears on behalf of respondent no. 6. On query from Court he submits, apart from name 'Rosedale' being common to his client and respondent no. 7, nothing else is common. Nor is there any connection between the two. On further query from Court regarding whether application made by his client for completion certificate, in respect of the project having been completed as a whole, including the commercial unit, was made on notice to respondent no.7 or deliberately not, he seeks adjournment to obtain instructions and submits.

Mr. Sen, learned advocate appears on behalf of respondent no. 7. He relies on following passages in said interim order dated 6th December, 2018.

" ... The claim of ownership of the petitioner is founded on a registered deed of conveyance. As a Writ Court, I am not called upon to decide the title of the petitioner. NKDA has issued a completion certificate by a writing dated October 14, 2015. Apparently, such completion certificate was issued at the request of the respondent no. 3. It was issued at a time subsequent to the registered deed of conveyance in favour of the petitioner on an application made at the behest of the respondent no. 3.

...

There is substance in the contentions of the petitioner. The petitioner is entitled to justify and explain its conduct before NKDA in the proceedings that may be initiated in terms of the order dated December, 4, 2018 passed in W.P. No. 21146 (W) of 2018 (Vinay Chowdhury v. The New Town Kolkata Development Authority & Ors).

In such circumstances, it would be appropriate that, the completion certificate dated October, 14, 2015 particularly serial nos. 34, 35 and 36 do not prejudice the petitioner in making its representation, giving its explanations and justifications of its conduct to NKDA. The authorities will consider such representation and explanations, in accordance with law without dismissing such explanations merely on the ground of issuance of the completion certificate dated October 14, 2015."

He submits, by this order there was, in effect, stay of operation of completion certificate, with regard to serial nos. 34, 35 and 36 therein, in so far as his client is concerned. As such there should be no interference preventing respondent authority and his client from putting forth and proceeding on revised plan in respect of the commercial unit, for sanction. His client has clear title under deed of conveyance dated 19th May, 2014.

By said interim order dated 6th December, 2018, prima facie satisfaction of substance in contentions raised by respondent no. 7 herein was recorded. On that basis NKDA was asked to allow said respondent to make representation without being prejudiced by serial nos. 34, 35 and 36 in the completion certificate dated 14th October, 2015. Impugned order is the disposal of representation made thereafter by said respondent. Following from it are reproduced below:

" Where Rosedale Plaza i.e. transferee of a more of less 18218 Sp. ft. of the whole project claims that his right to propose modification of the plan as owner of this portion of area has not been considered by Rosedale developer at the time of submission of the Completion Certificate (CC) dated 14.10.2015.

And whereas as per Rule 9 of New Town Kolkata (Buildings) Rules, 2009, amalgamation of sub-division of plot is not allowed, accordingly Rosedale Plaza i.e. transferee is not entitled to submit the prayer for modification of the Plan or CC independently, as that will entail the same entitlement to hundreds of co-owners to apply for change in the plan independently which may lead to a chaotic situation.

Under the circumstances, it would be appropriate, without being prejudice to the earlier completion certificate dated October 14, 2015 particularly serial nos. 34, 35 and 36, to allow the Developer i.e. Rosedale Developers Pvt. Ltd. to submit an application for fresh sanction of plan incorporating all the changes as may be deemed necessary as per provision of Act/Rule as applicable, along with no objection, on matter of any change from sanction plan, of the transferee i.e. Rosedale Plaza and wit petitioner i.e. Vinoy Chowdhury, within three months from this date.

Let the matter be disposed off."

NKDA appears to have found respondent no. 7 is transferee of more or less 18218 Sp. ft. of the whole project. Said respondent's right to propose modification of the plan as owner of his portion or area has not been considered by respondent no. 6 at the time of submission of completion certificate dated 14th October, 2015. A potential chaotic situation was considered and the developer allowed to submit application for fresh sanction of plan. Clearly respondent no.7 has not been allowed thereby.

There is prima facie satisfaction that the project has been considered and found by NKDA to be a whole project. The project must relate to a plot of land. A completion certificate in respect of the whole project, therefore on a plot of land, exists. Rule 9 appears to be violated. Further questions arise as to whether an unit owner in an apartment complex, which includes a commercial unit, can apply for modification of a plan, the original of which has been executed on construction completed. A further submission made by Mr. Sen cannot be accepted that the modification sought is for finishing the bare completed RCC structure with brickwork. Whether that work requires modification of original plan is to answered by said respondent at final hearing, if it chooses to answer. These are reasons sufficient for Court to interfere.

Nothing further will be done pursuant to impugned order, till disposal of the writ petition. Respondents are entitled to and may use affidavits. Copies of affidavit-in-opposition, if to be used, are to be served on petitioner by 28th January, 2020. Petitioner will be entitled to use reply on advance copies served. Affidavits will be accepted on adjourned date.

List under heading 'For Orders' on 4th February, 2020.