- (1.) This writ petition has been listed under heading 'To Be mentioned' at instance of petitioner wanting to move on urgent basis.
(2.) 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.
(3.) 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.;