1

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

Present:

Hon’ble Justice Rajasekhar Mantha

And

Hon’ble Justice Anuj Singh

MAT 519 of 2024

With

I.A. No. CAN 2 of 2024

Rosedale Garden Apartment Owners Association

Vs.

The New Town Kolkata Development Authority and Ors.

For the Appellant: Mr. S. N. Mookherji, Ld. Sr. Adv,

Mr. Srijib Chakraborty,

Mr. Dhruv Chadha,

Mr. Aditya Mondal,

Ms. Shomrita Das,

Mr. Shomrik Das.

For the NKDA: Mr. Anirban Ray, Ld. Sr. Adv,

Ms. Munmun Ganguly,

Mr. SayanGanguly.

For the Respondent Nos.4 & 5: Mr. Ashok Kr. Banerjee, Ld. Sr. Adv,

Mr. Debabrata Banerjee,

Mr. Samir Kr. Chakraborty,

Mr. Hemanta Kumar Das.

For the Respondent No.6: Mr. Soumya Majumder, Ld. Sr. Adv,

Mr. Aritra Basu,

Ms. Madhusmita Senapati,

Ms. Swastika Roy.

2

For the Respondent Nos.7 to 9: Mr. Jayanta Kumar Mitra, Ld. Sr. Adv.

Mr. Rohit Das,

Mr. Indradip Das,

Ms. Kishwar Rahman,

Ms. Divya Tekriwal.

Joint Special Officer: Mr. Md. Farhaduddin, Adv.

Mr. Rajarshi Rai Chowdhury, Adv.

Hearing concluded on: 7

th

September, 2026

Judgment pronounced on: 14

th

September, 2026

RAJASEKHAR MANTHA, J:-

A. THE CHALLENGE

1. The Appellant Association has challenged the Judgment and order dated

February 23

rd

, 2024, by which the single Bench of this Court has partly

allowed and dismissed the writ petition WPA 302 of 2020 titled as

Rosedale Garden Apartment Owners Association Vs New Town,

Kolkata Development Authority & Ors .

2. The single Bench has set aside an order dated February 27

th, 2019

passed by the New Town Kolkata Development Authority (NKDA),

Respondent No. 1 therein. It was held that the sanction plan of 2009

issued by West Bengal Housing and Infrastructure Development

Corporation (HIDCO) was the actual sanction plan binding between the

parties. It, however, refused to order demolition of the constructions made

at the alleged commercial plot.

3. By the order dated February 27

th

, 2019, impugned in the said writ

petition, NKDA granted liberty to Rosedale developer Pvt Ltd (RDPL)

Respondent no. 6, to incorporate the deviations, recorded in the

inspection report of the NKDA dated November 28

th, 2018 (filed in WP No.

21146 of 2018, Vinay Chowdhury. Versus The New Town Kolkata

3

Development Authority & Ors.), in consultation with Rosedale Plaza (RP),

respondent nos. 7 -9, in a fresh sanction plan to be submitted to the

NKDA for final ratification, and obtain the consent of the flat owners, if

need be.

4. In the impugned judgement, the single Bench held that the plan dated

August 27

th

, 2009 (HIDCO plan), was valid, declaring the revised plan

dated April 26

th

, 2011 (NKDA revised plan), sanctioned by NKDA invalid,

inter-alia recording the following reasons :-

a) Two writ petitions were filed before this Court regarding the subject

bulk plot. The first writ petition was filed by a flat owner, Vinay

Chowdhury, seeking demolition of the constructions at the subject

bulk plots made in violation of the HIDCO plan. The second writ

petition was filed by RP (Respondent No. 7 to 9), praying for the

reconsideration of the completion certificate issued to the RDPL by

the NKDA without the consent of RP.

b) The NKDA inspection report dated November 28

th, 2018, recording

deviations in the constructions made by the RP from the NKDA

revised plan, should not be given any credence, given that the

HIDCO plan is the valid plan. No party has challenged the HIDCO

plan.

c) RP seeks to complete construction according to the HIDCO plan,

constructing the G+1 retail floor, and should be allowed to do so.

The NKDA revised plan is invalid because RP did not consent to it.

d) In a subsequent report dated October 7, 2020, the NKDA stated

that no illegal construction exists on the subject bulk plots.

4

Therefore, an order of demolition against the constructions made by

RP should not be passed.

5. The appellant Rosedale Garden Apartment Owners Association (RGAOA)

is aggrieved by the impugned order, inter alia, for refusal to order

demolition of the constructions made in deviation of the NKDA Sanction

plan dated 26

th

April 2011. They submit that the said NKDA plan

modified 26

th

April, 2011, superseded the original HIDCO plan of 27

th

August 2009. Hence, the instant appeal.

B. FACTS RELEVANT TO THE APPEAL

6. On February 24, 2006, a development agreement was executed

between HIDCO and RDPL, permitting the latter to construct

residential apartments including amenities for the residents and Retail

shopping area on the 16.32-acre plot (subject bulk plot) in Mouza

Patharghata (J.L. No. 36).

7. On July 24

th

, 2006, HIDCO Building Rules, 2006, and HIDCO Building

Regulations, 2006, were framed and promulgated, notifying HIDCO as

the ‘sanctioning authority’ for building permits.

8. In 2007, the Newtown Kolkata Development Authority Act, 2007

(NKDA Act, 2007) came in force with retrospective effect from

December 28

th, 2006. The schedule to the NKDA Act, 2007, included

the plots to which the said Act will apply. Serial Number 15 of the said

Schedule included a part of Patharghata, J.L. No. 36, under which

certain plots by their respective plot numbers were set out.

9. On August 27

th, 2009, HIDCO sanctioned a plan (HIDCO Plan) to the

RDPL for commencing construction of a residential multi-storied

residential towers and an ancillary retail area.

5

10. On April 20

th, 2010, the RDPL submitted a plan before the NKDA,

which modified the HIDCO plan. On April 26

th, 2011, NKDA sanctioned

the modified plan in favour of the RDPL. The modified plan was,

however, sanctioned by NKDA as per the Planning Area (Building

Operations) Rules, 2006, (HIDCO Building Rules, 2006), discussed

hereinafter.

11. On March 4

th

, 2014, the New Town Kolkata Planning Area Building

Rules, 2014 (Rules of 2014) was notified. By necessary implication,

the subject bulk plots were included under the said Rules of 2014,

discussed hereinafter.

12. On May 19

th

, 2014, a registered deed of conveyance was executed

between HIDCO, RDPL, and RP confirming the sale of 18,218 square

feet. In the conveyance, RP was directed to carry out construction as

per the HIDCO plan notwithstanding that on the date of the

conveyance, the RDPL has obtained the NKDA revised plan, and the

HIDCO plan was non-existent.

13. On October 14

th, 2015, NKDA issued the final occupancy certificate

for the subject bulk plots on an application filed by the RDPL. The

inspection report dated November 28

th

, 2018 filed in WP No. 21146

of 2018 titled Vinay Chowdhury v. New Town Kolkata Development

Authority and Others, preferred by one of the flat owners, recorded

deviations in the constructions at the retail area from the serial nos.

34, 35, and 36 of such a final occupancy. Serial nos. 34, 35, and 36

(supra) are set out below:-

Serial no Construction not found in accordance with

the NKDA revised plan upon spot inspection

6

34. Ground Floor Plan & East Elevation (Retail

Building)

35. Roof Plan (Retail Building)

36. Sections, Elevation-North (Retail Building)

14. On September 9

th

, 2018, WP No. 21146 of 2018 (Vinay Chowdhury v.

New Town Kolkata Development Authority and Others) was filed by

a flat owner, praying for restoring the nature and character of the

Rosedale Garden Complex (residential complex) as depicted in the

original HIDCO plan of 27

th August 2009.

15. On November 2

nd, 2018, RP, purchaser of the alleged commercial plot,

approached NKDA by a letter in writing for an extension of time to

complete the construction at the alleged commercial plot in terms of

the NKDA revised plan dated 26

th April 2011. RP was informed by

NKDA that the final occupancy certificate has already been issued on

October 14

th

, 2015, based on the notice of completion submitted by the

RDPL. RP, which functioned under the name and style of ‘Ramji

Constructions’ till then, was thereafter reconstituted to a partnership

firm called M/s Rosedale Plaza (RP) with the respondents Nos. 7 & 8 as

its partners.

16. RP challenged the final occupancy certificate in a writ petition WP No.

24454 of 2018 titled as Rosedale Plaza v. New Town Kolkata

Development Authority and Others), seeking recall of the

observations of NKDA at serial nos. 34, 35, and 36 of the final

occupation completion certificate, which dealt with the constructions

at the retail plots.

7

17. By an order dated November 15

th, 2018, passed in WPA 21146 of

2018 Vinay Chowdhury (supra) , NKDA was directed to conduct a site

inspection and file a report before the Court. An inspection was

conducted on November 28

th, 2018, by the Chief Architect of the New

Town Kolkata Development Authority. The spot inspection revealed

several existing commercial constructions which violate the completion

drawings submitted by the RDPL to the NKDA. They are as follows: -

A) Unsanctioned Security Structure: A security post (gumti) is

found which is not reflected in the completion drawings.

B) Unauthorized Commercial Outlets: Erection of commercial

establishments, "Momo", "Noodle Story", and a large structure

named "Hola" on the alleged commercial plot. These were not

included in the completion drawings.

C) Unsanctioned Fencing & Encroachment: Installation of a

boundary fence separating the residential complex from the

alleged commercial plot. The said partition was not shown in the

completion drawings.

D) Roadway Contravention: Construction of a toilet block and gas

bank in the northwest corner, directly obstructing and

contravening the internal road network.

E) Illegal Roof Access & Additions: Construction of a stair block

to lay out a roof access from the commercial structures.

Ongoing construction of overhead structures on the roof.

Construction of a U-shaped additional space alongside the stair

headroom. These were not shown in the completion drawings.

8

F) Hazardous Utility Placement: Installation of additional gas

banks within the residential area beyond the scope of the

sanctioned completion drawings.

G) Relocation & Boundary Alterations: Relocation of the tennis

and badminton courts to the front of the club-house,

accompanied by the installation of high fencing. This was not

included in the completion drawings.

18. By Order dated December 4

th

, 2018, WP 21146 of 2018 was

disposed by a single bench of this Court, with a direction to the NKDA

to start demolition proceedings under Section 81 and 82 of the NKDA

Act, 2007 based on the report of the Chief Architect dated

28

thNovember, 2018.

19. By Order dated December 6

th, 2018, WP No. 24454 of 2018 ,

preferred by RP was disposed off, granting liberty to RP to demonstrate

the incorrectness of Serial Nos. 34, 35, and 36, of the final completion

certificate dated October 14

th, 2015, in the aforesaid demolition

proceedings before the NKDA. The NKDA was also to ‘reconsider’ the

issuance of the completion certificate since it was issued without

consent of the owner of alleged commercial plot, RP.

20. By Order dated February 27, 2019 passed in the aforesaid

demolition proceedings, NKDA directed RDPL to file a fresh plan in

consultation with RP including all the changes in the construction and

also obtain the no-objection of the other flat owners, if need be.

21. On April 17

th, 2019, Manoj Kumar Sharma, a flat owner/constituted

attorney of the appellant Apartment Owners’ Association filed a Title

Suit no. 286 of 2019 before Ld. 1

st Civil Judge (Senior division) at

9

Barasat, titled as Sri Monoj Kumar Sharma & Ors v. Rosedale Plaza

and Orspraying for a declaration that RP has no right, title, and

interest in the alleged commercial plot and that the construction

thereat has transgressed to the common area of the residential towers.

The suit appears to have been abandoned.

22. An injunction application filed therein was rejected. The Appeal no.

63 of 2018 before Ld. District Judge, Barasat, was preferred against

the order rejecting the injunction. The prayer for ex-parte ad-interim

injunction was refused in the said appeal. Subsequently, the said

appeal was dismissed for default.

23. On January 6

th

, 2020, WPA 302 of 2020 was filed by the appellant

Association through its constituent attorney/vice-president, Manoj

Kumar Sharma, challenging the order dated February 27

th,

2019(supra) as stated above.

24. By order dated January 10, 2020, The National Consumer Disputes

Redressal Commission in Consumer Case No. 1270 of 2017 titled as

Sanjay Agarwal v. Rosedale Developer Private Limited recorded

material alterations from the original HIDCO plan in the NKDA revised

plan. The NKDA revised plan was held contrary to the provisions of

Section 8(1) of the West Bengal Promoters Act. It was however held that

the NKDA Act and the Rules of NKDA were also valid and applicable to

the project.

25. By judgment dated February 23

rd

, 2024, WPA No. 302 of 2020 was

partly allowed by a single bench of this Court, as already discussed in

para no. 4 hereinabove.

10

26. The instant appeal was thereafter filed challenging the judgement

and order dated 23

rd February 2024(Supra).

27. This Court has heard detailed arguments advanced by Mr. S.N.

Mookherji, Sr Adv, for the appellant, Mr. Jayanta Kumar Mitra, Sr Adv

for the Respondent RP, Mr Ashok Kumar Bannerjee, Sr Adv for HIDCO,

Mr. Soumya Mazumdar, Sr Adv for RDPL and Mr. Anirban Ray Sr Adv

for NKDA.

C. ANALYSIS OF THIS COURT

28. A peculiar situation has emerged in this appeal. All sides have as per

their convenience approbated and reprobated. The first writ petition WP

No. 21146 of 2018 titled Vinay Chowdhury v. New Town Kolkata

Development Authority and Others was filed by one of the flat owners,

praying for the restoration of the construction according to the HIDCO

plan. However, the appellant association of the flat owners now seeks

enforcement of the NKDA revised plan dated April 26, 2011.

29. RP filed the second writ petition WP No. 24454 of 2018 (supra) ,

challenging the completion certificate issued by the NKDA to the RDPL.

The writ petition was filed after the NKDA refused to grant an extension of

the NKDA revised plan to complete the construction at the retail area. RP

now seeks to complete construction at the retail area, according to the

HIDCO plan.

30. The NKDA in the inspection report dated November 28

th, 2018, filed in

the writ petitionof Vinay Chowdhury (supra) carried out a spot

inspection and compared the existing construction thereat with the NKDA

revised plan. It found several deviations and illegalities committed by the

Respondent No.7-9 However, the NKDA allowed the RDPL and RP to apply

11

for regularization of deviations to the Re-sanctioned plan dated 26-04-

2011. The NKDA thereafter permitted RP to seek regularization of such

changes, based on the HIDCO plan.

31. Ld. Sr. Counsel for the NKDA submits that NKDA took over the

jurisdiction of the bulk plots from HIDCO. However, NKDA modified

HIDCO's August 27, 2009 plan with a revised plan dated April 26, 2011,

under the HIDCO Building Rules, 2006. The NKDA Building Rules, 2009

had been in force since August 10, 2010. The NKDA, however, chose the

HIDCO 2006 rules over the NKDA Building Rules 2009 while modifying

the HIDCO plan on April 26

th

, 2011.

32. Before the single Bench, RP averred on affidavit that RP’s unit was

commercial and distinct and separate unit from Rosedale Garden which

is the residential part and a separate and independent unit. Ld. Sr.

Counsel for the RP before this Court has submitted that the

Retail/Commercial part of the plot was a single unit with that of Rosedale

Garden.

33. RP submitted an application along with a majority of the residents

under Section 2 read with Section 10 of the WB Apartments Ownership

Act of 1993 declaring that it was a member of the Appellant Association

having an area of 18,218 Square feet.

34. While the Development agreement prescribed that the plots cannot be

subdivided, RDPL executed a conveyance in favour of RP transferring

exclusively the ownership of the Retail area of the plot.

35. HIDCO sanctioned the plan on August 27, 2009. The NKDA was

constituted in 2007. The NKDA Building Rules came into force on August

10, 2009. Thus, NKDA was empowered to sanction plans for the bulk plot

12

as on August 27, 2009. However, it did not. The reasons therefor are

discussed below.

36. There are several other contradictions in the stand of the each of the

parties in these proceedings. Hence this Court is compelled to address the

following issues to set at rest all controversies between the parties.

A. What is the object and purpose of the development

agreement executed between HIDCO and RDPL?

B. What is the legal status of HIDCO plan dated August 27th,

2009?

C. What is legal status of the NKDA revised plan dated April

26th, 2011?

D. What are the rights of RP, Respondents No. 7 to 9, in the

subject bulk plot?

I) Object and Purpose of the Development Agreement and

its Legal Status

37. The development agreement dated February 24

th

, 2006,

executed between HIDCO and RDPL, conceived a residential project

on the subject bulk plot. Some clauses of the said development

agreement are set out below:-

E. Under the said Memo No. 4146/HIDCO/Admn-681/2004 dated

22

nd

, October, 2005, it was inter alia specified that:-

i) The Developer shall act as a developer of HIDCO with

regard to the development of the said plot by construction of

the said Housing Complex and sale and allotment of the

constructed dwelling units to NRIs and Resident Indians.

In this Agreement, unless there be something contrary or repugnant

to the subject or context:

(ii) "HOUSING COMPLEX" shall mean the said plot and the

new buildings to be constructed thereon in accordance with

the sanction plan thereof comprising of approximately 900

13

(nine hundred) residential units, car parking spaces, internal

roads and all other constructed areas or spaces needed for

use and enjoyment of the Housing Complex and shall

include such other common facilities and/or amenities

that may be required, installed and/or provided therein or

therefor for more better enjoyment of such units/flats, car

parking spaces other entertainments, commercial hubs,

worship place, golf course, swimming pool as are admissible

under relevant building rules and/or other constructed areas

or spaces by the owners thereof

(ix) "SANCTION PLAN" shall mean the plan for construction of

the new buildings at the said plot, to be prepared by the

Architect and caused to be sanctioned by the Developer from

the HIDCO and shall include modifications, alterations

additions and/or amendments thereof of thereto male or

caused by the Developer with the approval of HIDCO

(xv) "PROJECT" shall mean and include the project of the,

development of the Housing Complex and construction of the

new buildings at the said plot for allotment of at least 75% of

the total units, car parking spaces and other constructed

areas or spaces comprised therein to Non-Resident Indians

(NRIs) and the balance to Resident Indians;

ARTICLES-VII

RIGHTS OF THE PARTIES

7.1 It is clarified that this agreement is not an agreement for sale

and/or otherwise transfer of the said plot or any part thereof to the

Developer, but is merely an agreement allotting the said plot to the

Developer and authorising the Developer to develop the said plot by

constructing and completing the said Housing Complex consisting

of a number of new buildings and allotment of the several

independent and self-contained flats, units, car parking spaces,

other entertainment, commercial hubs, worship place, golf

course, swimming pool as are admissible under relevant building

rules and other constructed areas or spaces therein to the intending

buyers thereof.

8.5 The said plot shall be used exclusively for residential

purposes only with such other use as is absolutely related for a

residential complex and as permissible under law.

Emphasis Applied

38. The said development agreement directed RDPL to develop and

construct a ‘housing complex’ on the subject bulk plot. All

14

construction thereon should therefore be in harmony with a housing

residential project.

39. Clause no. 2 thereof defined "Housing Complex" which includes

commercial hubs. The phrase commercial hub is preceded by terms

"better enjoyment," "other entertainments", and "common facilities".

The commercial hubs were therefore conceptualized as common

facilities for the residents.

40. Clause 7.1 mandates that residential units must be "self-

contained,”. Thus the retail/commercial facilities thereat are in aid

of the residential project. They are not independent of the

residential units.

41. Clause 8.5 thereof explicitly states that the bulk plot must be used

exclusively for residential purposes. Any ancillary use should strictly

be limited to the benefit of residents.

42. The development agreement conferred the right to develop a

residential project on RDPL. The agreement authorized RDPL only to

sub-delegate the development work and nothing further.

43. RDPL was authorized to sell the residential units and other non-

residential facilities to buyers. The agreement did not confer any

right of title and ownership on RDPL. Therefore, RDPL could not

have sold any vacant land before developing it.

44. HIDCO continued to own the subject bulk plots. However, HIDCO

restricted its right to sell vacant land thereat by appointing RDPL to

develop the subject bulk plots and sell only constructed units.

45. In Chairman, Indore Vikas Pradhikaran v. Pure Industrial

Coke & Chemicals Ltd. & Ors., reported in (2007) 8 SCC 705, it

15

was held that a Town Planning Act regulates the development of the

land as follows:-

57. The Act being regulatory in nature as by reason thereof the right of

an owner of property to use and develop stands restricted, requires

strict construction. …………..Restrictions are made in larger public

interest. Such restrictions, indisputably must be reasonable ones . (See

Balram Kumawat v. Union of India10; Krishi Utpadan Mandi Samiti v.

Pilibhit Pantnagar Beej Ltd.11 and Union of India v. West Coast Paper Mills

Ltd.12)

Emphasis Applied

46. In State of Gujarat v. Shantilal Mangaldas & Ors., reported in

(1969) 1 SCC 509, it was held that when a town planning scheme is

declared under the Town Planning Act, the right to develop the bulk

plots, governed by the town planning scheme, stands restricted.

Paragraph no. 55 of Shantilal decision ( supra) is set out below :-

55. ……Once the draft town-planning scheme is sanctioned, the

land becomes subject to the provisions of the Town Planning

Act, and on the final town-planning scheme being sanctioned,

by statutory operation the title of the various owners is

readjusted and the lands needed for a public purpose vest in the

local authority.

Emphasis Applied

47. The development agreement has specified the nature and scope of the

project. RDPL, therefore, could not travel beyond the scope of the

development agreement. HIDCO is equally bound by the mandate of

the development that the subject bulk plot should be developed as a

residential project so also RDPL.

48. Any existing partition of the bulk plot for residential and commercial

sections is therefore liable to be demolished. The parties are ad idem

to the demolition of any such partition.

i) The concept of residential cum retail construction

49. The concept of the residential-cum-retail construction was

addressed in Vasundhara Vyapar Mandal v. U.P. Avas Evam Vikas

16

Parishad, reported in (2004) SCC OnLine All 2067. The division

Bench, presided over by Justice Markandey Katju, addressed the

concept of ‘convenient shopping’ in a residential project as follows :-

46. We have perused the relevant extract of the master plan which is

Annexure II to the writ petition. Under the said master plan certain

convenience shops are permitted in residential areas . The term

convenience shops have not been defined, but obviously it means

shops where items of daily use e.g. bread, milk, vegetables, fruits,

etc. may be available to the residents in the area.

47. However, as stated in para 8 of the counter-affidavit, the Vasundhara

Scheme has already provided for convenience shops in certain places in

the residential scheme. Some of the shops have been built by the

Parishad, while certain vacant plots have been allotted for raising

commercial constructions to permit business activities to satisfy

the daily needs of the residents. Details have been given in para 8 of

the counter-affidavit. It follows that no other commercial activities can be

permitted in any other place other than those earmarked in the

Vasundhara Scheme. It is not the petitioner's case that its members are

carrying on commercial activities at the places earmarked for this

purpose in the Vasundhara Scheme.

48. In fact a perusal of Annexure CA-2, which are the photographs of the

various shops and commercial establishments, shows that the entire

residential Vasundhara Scheme has been disrupted by such shops

and commercial establishments which have been set up by the

members of the petitioner's Society. This is clearly illegal as held in

the decisions referred to above. Hence we find no infirmity in the

impugned order dated 23-1-2004.

49. We are also of the opinion that there can be no compounding

which permits change of the land user. Compounding may be

possible (provided it satisfies the relevant prescribed criteria) to

regularise the construction of additional residential room or storey

in an existing residential house, but not by changing the land use.

Emphasis Applied

50. A division Bench of the Delhi High Court in P.V. Kapur v. Union of

India, reported in 2020 SCC OnLine Del 3054, has also explained

the concept of residential-cum-commercial construction in a

residential project to meet the economic realities of the 21

st century

as follows:-

80. One other scholar G.B.K. Rao in an article titled “Issues in

Controlling Urban Building Activities” in “Control of Urban

17

Building Activities” (edited by D.D. Malhotra) JITPA noted, in the

context of Indian cities in general as under:

“…there is horizontal and vertical mixing of uses primarily

between residential, commercial and industrial use, e.g.

commerce on ground floor and residence in the rear and

on upper floors; and industry, at times in the rear. Often,

traditional industry of the household type flourishes in the

older parts of the city and invariably specific industry type is

found to be associated with specific caste, ethnic or religious

group. In a sense, the mixed pattern or landuses in the older

parts of the cities is very much a gradual evolution of the

pattern established in the past when the urban settlement

was still nourishing its rural moorings. The mixing of

landuses grows with the organic growth of settlements

over a period of time, …. In fact, the central areas of

older cities bustle with life and vitality, during the day

and major part of the night due to such conglomeration

of uses which is sadly lacking in more recent

developments.

82. In preparation of the Perspective Development Plan for Delhi

(1981-2001), the DDA conducted a study, which revealed certain facts

about the extent of mixed use in residential areas as under:

“(1) Instances of mixed land uses were correlated with

the age of development, i.e. higher percentage of

dwelling units used for more than one activities in

areas developed before 1962 as compared to those

after that year.

(2) In case of low-income communities, the instances

of mixing of uses was in respect of retail commercial

activities within residential premises. But in Case of

higher income group communities, non-residential

uses that were penetrating into residential areas were

mostly professional consultancy offices and other

office uses, banks and guest houses.

(3) More than 90% of instances of mixed uses were

confined to ground floors of buildings and upper floor

generally used extensively for residential purposes. In case

of commercial and residential mix use areas, commercial

development spreads linearly along the roads occupying

front portions or whole of the ground floors.”

89. The legal position in relation to the permissibility of commercial

activities in a residential zone was summarised thus:

“i) there cannot be a commercial activity in

residential zone and thus chemists shops are not

permitted.

ii) the area in question does not fall in the mixed-use.

18

iii) the DDA & MCD are required to take action under the

respective laws against these violators running chemists

shops in the residential zone, viz in a building allowed to

be used for the purpose of residence only by the

competent authority.”

Emphasis applied

51. In Vasundhara Vyapar Mandal decision (supra) , it was held that

convenient shopping provided within a residential complex cannot be

converted for commercial exploitation. It is for exclusively serving the

residents of the said project.

52. In P.V. Kapur decision (supra), it was held that commercial

exploitation of a residential unit or a residential area is not permissible.

The concept of convenient shopping under the bracket residential-cum -

retail project is as follows:-

a) Residents gain immediate walking-distance access to gyms,

grocery stores, restaurants, offices, healthcare, childcare,

banking, parks, and recreational facilities, simplifying daily life

and freeing up time.

b) Mixed-use occupancy cuts down long commutes and vehicular

emissions by encouraging walking and cycling thereby reducing

our carbon footprint.

c) Developments feature everything from cozy cafes and boutique

stores to high-end restaurants and supermarkets, attracting a

broad customer base.

53. Mr Jayanta Mitra, Ld. Sr. Counsel for Respondents No. 7 to 9,

contended that the HIDCO Planning Area 2006 Rules permit mixed

occupancy for diverse non-residential purposes, such as IT hubs meant

for the general public, not just residents. Both HIDCO and NKDA relied

19

on these mixed-occupancy provisions to sanction. NKDA subsequently

revised the HIDCO plan of 2009 in April 2011. He argues that these

provisions entitle RP to allow outsiders to access non-residential facilities

within a residential project. He argues that 10 % of the bulk plot can be

used for Mercantile (Retail) purposes and all other commercial purposes

as defined in Rule no. 3 of the Planning Area (Building Operations)

Regulations, 2006. This argument cannot be accepted.

54. While the township planning rules outline various ‘land uses’, the

planning authority holds the final discretion to conceive plans and

choose land use. In the development agreement (supra), HIDCO

permitted limited non-residential construction over the bulk plots, that

too in aid of the Residents.

55. The definition of ‘housing complex’ in the development agreement

(supra) has not included IT and other non-residential facilities. It, inter

alia, included facilities such as club house, swimming pool, golf course,

place of worship, etc. These are, therefore, facilities aimed to serve the

residents living thereat. The phrase "better enjoyment and common

facilities" in the ‘housing complex’ definition ensures that every non-

residential facility thereat must ultimately serve the residents.

56. Thus, the development agreement did not provide for the access of

outside public to the non-residential facilities. This is reaffirmed in

Clause no. 8.5 of the development agreement.

20

II. The Legal Status of the HIDCO Plan dated August 27

th

,

2009.

57. HIDCO has been constituted under the West Bengal Town and

Country (Planning and Development) Act, 1979 (Act of 1979). It

carried the mandate to develop a residential project in the subject bulk

plot. Section 13 of the Act of 1979 sets out the power of the ‘planning

authority’ as follows:-

Section 13 Powers and functions of Planning Authority and

Development Authority.

(1) Subject to the provisions of this Act, and the rules made

thereunder and any direction which the State Government

may give from time to time -

(i) a Planning Authority shall have the following powers and

functions :-

(a) to prepare Land Use Map;

(b) to prepare and enforce [a Land Use and

Development Control Plan;]

(c) to prepare and enforce a Detailed

Development Plan;]]

(d) to prescribe use of land within its area;

(e) to perform any other function which is

supplemental, incidental or consequential to

any of the functions aforesaid or which may be

prescribe

Emphasis Applied

58. HIDCO prepared a development plan namely, the development

agreement executed with the RDPL herein. It prescribes the use of land

to be developed namely, a residential project herein. Section 46 of the

Act of 1979, enables a developer to apply for permission before the

planning authority to develop a planning area, namely, the RDPL herein

and subject bulk plot. Section 46(1) and (2) of the Act of 1979, are set

out below:-

Section 46- Permission for development .

(1) Any person or body (excluding a department of the Central or the

State Government or any local authority) intending to [carrying out

21

any development or township project on any land] for carrying out

any development on any land.] shall make an application in

writing to the Planning Authority or Development Authority for

permission in such form and containing such particulars and

accompanied by such documents and plans as may be

prescribed.

(2) On such application having been duly made, and on payment

of the development charge as may be assessed under Chapter IX. -

(a) The Planning Authority or the Development

Authority may pass an order, -

(i) granting permission unconditionally; or

(ii) granting permission subject to such conditions as

it may think fit; or

(iii) refusing permission,

Emphasis Applied

59. HIDCO was declared as the ‘planning authority’ for the entire Mouza

Patharghata, JL Number 36. All subject bulk plot fall within the

jurisdiction of Mouza Patharghata, JL Number 36.

60. The Act of 1979 is a non-municipal legislation. Thus, in exercise of

powers under the Act, 1979, the ‘Planning Area Building Operation

Rules, 2006’ and ‘the Building Regulations of 2006’, were notified. Under

the said rules of 2006, HIDCO was empowered to sanction building

plans, grant occupation certificates, and address unauthorized

constructions.

61. The aforesaid executive notifications and the rules referred to

hereinabove have never been withdrawn in exercise of powers under

Section 10 of the Act of 1979, which is set out below:-

10. Power to withdraw Planning Area from the operations of this

Act.

(1)The State Government may, by notification, withdraw

from the application of this Act any Planning Area or

part thereof.

(2)When a notification is issued under sub-section (1) in

respect of any Planning Area or part thereof

(i)this Act and all notifications, rules, regulations,

orders, directions and powers issued, made or

22

conferred under this Act shall cease to apply to

the said area or part thereof;

Emphasis applied

62. These executive notifications were, in fact, regularized by and under The

New Town Kolkata Planning Area Building Rules, 2014. It has

recognized that in the New Town Area, HIDCO and NKDA will share power

of regulating building operations over plots of land. Both NKDA and

HIDCO thus continued to have jurisdiction in the new town area, where

the bulk plot are situated. The rival parties do not contest the power of

NKDA to grant the revised plan dated April 26

th

, 2011. RP, however,

objects to the modifications made in the NKDA revised plan from HIDCO

plan dated August 27

th, 2009.

63. The development agreement entrusted the RDPL to develop the entire

16.32 acres of land. It did not draw up the boundaries within the 16.32

acres. The HIDCO sanction plan specified the quantity of land for

constructing 6 residential towers, clubs, commercial hubs and etc. The

particulars of the HIDCO sanction plan are set out below:-

Nature of Construction Extent of Area allotted

1. TOTAL AREA OF

TOWER 1, 2,3,4, & 6-

1,03,481.30 Square meter

2. TOTAL AREA OF

TOWER 5

19,888.88 Square meter

3. TOTAL AREA OF

SENIOR RESIDENCE.

- 3891.83 Square meter

4. TOTAL AREA OF

SERVANT QUARTER

1020.05 Square meter

5. TOTAL AREA OF CLUB

BUILDING

1706.70 Square meter

6. TOTAL AREA OF

RETAIL BUILDING

3898.52 Square meter

7. TOTAL AREA OF ESS

ROOMS

1,529.50 square meter

8. TOTAL AREA OF

CONSTRUCTION

SANCTIONED

24,952.68 SQM.

23

64. The primordial object of the HIDCO therefore was to develop the subject

bulk plot into residential units. This is evident from the major part of the

land allotted was for constructing 6 residential towers. HIDCO has also

sanctioned land for construction of units for senior residents and quarters

for servants. The areas allotted for Retail and other constructions,

therefore, were essentially in aid of residents living thereat. The WBHIDCO

plan is in harmony with the development agreement (supra).

III) The Legal Status of the NKDA revised plan

65. Ld Counsel for the NKDA has submitted that the subject plot is under

his client’s jurisdiction. By reason of amendment to Section 10 of the

NKDA Act in the year 2010, it had the power to consider modifications to

existing plans including that of HIDCO.

66. Even if one considers the argument to the contrary advanced by

Counsel for RP, this court notices as follows. By legislative notification

No. 1088-L, dated June 27

th

, 2008, the Newtown Kolkata

Development Authority Act, 2007 was gazetted and notified with

retrospective effect from December 28

th

, 2006. The NKDA Building Rules,

2009 came in force from August 10

th

, 2009.

67. HIDCO sanctioned the building plan on August 27

th, 2009, i.e. after

the NKDA came to be constituted. The Developer, therefore, could have

approached NKDA for a sanction on August 27

th, 2009. It, however, chose

to apply before the HIDCO. Therefore, HIDCO acted as the sanctioning

authority for building operations at the bulk plots, as did the RDPL.

68. The role and presence of New Town Kolkata Development Authority

(NKDA) in the day to day life of the residents of the Rosedale project

24

assumes immense importance. A separate and independent legislation

namely, the New Town Kolkata Development Authority Act, 2007 was

enacted to grant sanction plans and deal with unauthorized constructions

and completion certificates. NKDA has also set up a municipal mechanism

for providing essential services such as water supply and other utilities.

69. NKDA employs competent engineers and architects who possess the

expertise to understand the structural firmness and architectural value of

buildings. NKDA has the expertise to analyse and potentially modify the

HIDCO plan or grant sanction for subject plots. It lacked the territorial

jurisdiction over the subject plots, which continues to lie with HIDCO. The

NKDA authority however did not lack inherent jurisdiction over the

subject matter.

70. While want of inherent jurisdiction renders an order a nullity, an order

passed without territorial jurisdiction, however, is merely irregular. In

Hira Lal Patni v. Kali Nath [Hira Lal Patni v. Kali Nath, reported in

AIR 1962 SC 199, it was held as follows:-

The objection to its [Bombay High Court] territorial jurisdiction is one which

does not go to the competence of the court and can, therefore, be waived .

In the instant case, when the plaintiff obtained the leave of the Bombay High

Court on the original side, under Clause 12 of the Letters Patent, the

correctness of the procedure or of the order granting the leave could be

questioned by the defendant or the objection could be waived by him. When he

agreed to refer the matter to arbitration through court, he would be deemed to

have waived his objection to the territorial jurisdiction of the court, raised by

him in his written statement. It is well settled that the objection as to local

jurisdiction of a court does not stand on the same footing as an objection to the

competence of a court to try a case.

Competence of a court to try a case goes to the very root of the

jurisdiction, and where it is lacking, it is a case of inherent lack of

jurisdiction. On the other hand, an objection as to the local jurisdiction of a

court can be waived and this principle has been given a statutory recognition

by enactments like Section 21 of the Code of Civil Procedure."

Emphasis applied

25

71. In Hasham Abbas Sayyad v. Usman Abbas Sayyad, reported in

(2007) 2 SCC 355, it was held as follows:-

"24. We may, however, hasten to add that a distinction must be made

between a decree passed by a court which has no territorial or pecuniary

jurisdiction in the light of Section 21 of the Code of Civil Procedure, and a

decree passed by a court having no jurisdiction in regard to the

subject-matter of the suit.Whereas in the former case, the appellate

court may not interfere with the decree unless prejudice is

shown,ordinarily the second category of the cases would be interfered

with."

Emphasis Applied

72. In M/S Aarsuday Projects & Infrastructure (P) Ltd v. Jogen

Chowdhury & Ors., reported in 2026 INSC 93, it was held lack of

territorial jurisdiction of the sanctioning authority is a curable

irregularity when the construction is done honestly as follows:-

36. Likewise, even if it is assumed that the Gram Panchayat was not the

competent authority to accord approval to the building plan and that such

authority vested exclusively in the Panchayat Samiti, the same would

constitute, at best, a procedural irregularity. Such an irregularity, especially

where the building plan had been duly vetted by the higher forum, i.e., the

ZillaParishad and construction was undertaken in a bona fide manner, was

clearly curable in nature. In the absence of any tangible evidence of

fraud, misrepresentation, or deliberate circumvention of statutory

requirements, such a procedural lapse, even if assumed to exist, for

arguments sake, could not render the construction per se illegal, nor could it

justify the issuance of a direction for demolition, which is an extremely

draconian consequence reserved for cases of blatant and substantive

illegalities and violation.

Emphasis Applied

73. The salient features of the NKDA revised plan are set out below

Nature of

Construction

Extent of area

(Sanctioned earlier

in the WBHICO

building plan)

Extent of area (proposed

for sanction in the NKDA

revised plan)

1. Total area of

Tower nos. 1, 2,

3, and 6

82, 785.04 square

meter

83, 030. 96 square meter

2. Total area of

Tower no.4

20.696.26 square

meter

20, 693. 69 square meter

26

3. Total area of

Tower no. 5

19.888.88 square

meter

19, 979 square meter

4. Total area of

Senior

residence

3891.83 square meter 2580.10 square meter

5. Total area of

club building

1706.70 square meter 1712.17 square meter

6. Total area of

retail building

with ESS

3,898.52 square meter 2156.81 square meter

7. Total area of

Executive

apartment

New Building Proposed 6517.33 square meter

74. NKDA modified the HIDCO plan to include an executive apartment. This

is in furtherance of the development agreement's core motto of serving

residents without violating the said agreement. The introduction of an

executive apartment is just one more facility added to the bucket of

facilities for the residents. The NKDA was therefore well within its authority

to introduce an executive apartment in the Revised Plan dated 26

th April

2011. The HIDCO plan dated 27

th August 2009 has been superseded by the

NKDA re-sanction dated 26

th April 2011.

75. The conduct of the parties also demonstrates that the NKDA revised plan

of 26

th April 2011 was accepted and acted upon by them:-

a) In the inspection conducted by NKDA on 28

th Nov 2018 pursuant

to order dated 15

th

November 2018 passed in WP 21146 of 2018,

violation of the NKDA Sanction plan of 26

th

April 2011 was found.

b) RP in its writ petition WP.24454 of 2018 asked for extension of re-

sanction of the NKDA plan of 26-04-2011.

c) RP admitted that the NKDA re sanction dated 26-04-2011 was

the basis of the conveyance between RDPL and RP dated 19

th

May 2014.

27

d) Prayer C of WP 24454 of 2018 was for extension of re-sanction

dated 26-11-2011.

e) The said revised sanction of NKDA, removed the first floor from

the Retail area. It reduced the Senior Citizens building from

Ground plus II to Ground Plus I, and omitted the Servants

quarters to accommodate an Executive Tower of Ground plus IX

floors.

f) The removal of servants' quarters and reduction in the height of

the senior citizens quarters done to facilitate the construction of

the executive apartments was within the original FAR under the

HIDCO as well as the NKDA plans, for the whole project. There

is no alteration in the nature of user of the modified

construction in the project i.e. residential. The modified sanction

dated 26

th April 2011 by NKDA rightly approved and re-

sanctioned the same.

g) The conveyance of the year 2014 between RDPL HIDCO and RP

only transferred 18,218 Square feet comprising in a Ground

Floor, Ramp etc. This was the retail area in the re-sanctioned

plan dated 26

th

April 2011. They have purchased only 18,218

square feet out of entire reduce retail area of 27,000 odd square

feet. RP thus cannot maintain a claim to construct the entire

G+1 retail floor sanctioned in HIDCO plan for the entire retail

area.

h) The reduction of the retail area to increase the residential area

is lawful and in harmony with the original development

28

agreement between RDPL and HIDCO of the year 2009, of the

project being a Residential one.

i) The clauses in the conveyance dated 19

th May 2014 restricting

the rights of the parties not to construct on the roof of the

ground floor of the Retail area are in furtherance of the revised

sanction dated 26

th

April 2011.

j) RP and the appellants jointly submitted an application under

Section 10 of the WB Apartment Ownership Act 1972, referring

to the retail area to be restricted to 18,218 Sq Ft in terms of the

re-sanctioned building plan dated 26

th

April 2011.

k) The residential owners would require grocery shops, and etc.

and hence the commercial hubs. These commercial/retail hubs

must be aligned with the development agreement.

l) A deemed consent thus flows from the conduct of both the

residential flat owners and RP to the NKDA Revised Plan dated

26

th April 2011.

ii. The propriety of NKDA to grant a re-sanction on April 26

th, 2011

under the HIDCO building Rules and Regulations, 2006

76. NKDA sanctioned the revised plan under the HIDCO Building Rules

and Regulations, 2006. The reason therefor flows from Rule 4A of the

NKDA Building Rules, 2009, which is set out below:-

4A. Provision of Re-Sanctioning of existing building plan : (1)

Notwithstanding anything contained in these rules —

(a)********

(b)*********

(2) where construction has been commenced and the previous

sanction of the building plan has been obtained in violation of

the provisions of these rules, the re-sanction of the building

29

plan shall be made under the provision of this rule on the

request of the applicant:

Provided that if the building is already constructed, in part

or in full, on the basis of such building plan which has

been obtained in violation of the any provisions of these

rules, shall be seized to exist unless the contradiction is

removed and if the contradiction has not been removed,

the re-sanction may be processed as per the provisions

of respective rule under which the original plan has

been sanctioned unless the applicant opts for sanction of

building plan under these rules.

Emphasis Applied

77. Sub-rule 2 of Rule 4A governs the NKDA revised plan dated April

26th, 2011. Sub-rule 2 applies when construction is made according to

a Plan, sanctioned under different rules by another authority. In the

instant case, the original plan was sanctioned by HIDCO in 2009 under

the HIDCO Building Rules and Building Regulations, 2006.

78. Under sub-rule 2, ordinarily, the re-sanction of such constructions at

the first instance should be attempted to be done under the NKDA

Building Rules, 2009. The proviso to sub-rule 2, however, clarifies that

at the time of re-sanction, if NKDA finds that the existing construction

contradicts the Rules of 2009, NKDA may either remove such

contradiction. If it cannot be removed, NKDA may re-sanction the

revised plan as per the rules under which the Original Plan was

sanctioned.

79. In the present case, the HIDCO plan was sanctioned under the

HIDCO Building Rules, 2006. The proposal to introduce the executive

apartment amounted to a change in the said HIDCO plan. This could

be in violation of NKDA Building Rules, 2009. NKDA thus re-sanctioned

the executive apartment in line with the object of the development

30

agreement, under the HIDCO Building rules of 2006, in terms of the

proviso to sub rule 2 of Rule 4A.

IV) The Right of RP on the Subject Bulk Plots

80. The conveyance dated May 19

th

, 2014 executed in favour of Rp

and/or its predecessor-in interest needs to be examined in light of

development agreement. The relevant clauses from the said

conveyance are set out below:-

ii. PREMISES shall mean Commercial building for the time being

consisting of entire space of 18643 sqft (SBA)constructed by the

Developer at the said plot to be used as self-contained

apartments, shops, show rooms, offices and other constructed

spaces in the Building capable of being exclusively held or

occupied by a person, morefully and particularly mentioned and

described in the SECOND SCHEDULE hereunder.

ix. SUPER BUILT-UP AREA shall where the context refers to the

said Unit (the entire Retail cum Commercial building of

18643 sq.ft S.B.A. little more or less) mean and include (a)

the super built up area of the said Unit, (b) proportionate

share of the area of the Common Areas and Installations

and open areas including top roof of the Premises.

xi. SAID UNIT shall mean the entire Retail cum Commercial

building of 18643 sq.ft S.B.A. little more or less to be

constructed &finished in parity with the morefully and

particularly shown in the brochure complex and as mentioned

and described in the SECOND SCHEDULE hereunder written

TOGETHER WITH the Purchaser's proportionate undivided

share in the common areas and Installations attributable to the

said Unit TOGETHER ALSO WITH the right to use the open

spaces on the top roof of the Premises and wherever the context

so permits shall include the right of parking motor car at the car

parking space at the said premises if so specifically and as

expressly mentioned and described in the within stated

SECOND SCHEDULE and wherever the context so intends or

permits shall also include the said share in the said premises.

xiii. PURPOSE OF USE shall mean usage of the space for

Retail commercial purpose including provision for ATM

facility. Grocery Stores, Utility shop, Pharmacy, & others.

SALE OF PROPERTY AND CONSIDERATION: The Developer

agrees to sell and transfer ALL THAT the said Unit being the entire

Retail cum Commercial building 18218 sqft more or less (15325

31

sqft Builtup area approx. + 1500 sqft. approx. of passage + 1393

sqft. stair, ramp, platform etc.

THE SECOND SCHEDULE ABOVE REFERRED TO:

ALL THAT of entire 18218 sqft more or less (15325 sqft Built up area

approx. + 1500 sqft. approx of passage + 1393 sqft. stair. ramp,

platform etc.) of the Retail cum Commercial building to be constructed

&finished in parity with the complex and as shown in the brochure.

The space to be given an bare shell with brick work & plaster with

provision for for six to ten toilets at north-west corner as shown in the

plan annexed

81. HIDCO’s sole mandate was to develop land or have it developed through

a designated developer. The original development agreement with the

RDPL permitted RDPL to sub-delegate the construction work, but not

transfer of land title. The execution of the conveyance date May 19

th

, 2014

conferring exclusive rights and title of a portion of the bulk plot to RP,

thus, violates the development agreement. RP could at best have been sub-

developer.

82. The said conveyance between RP, HIDCO, and RDPL initially covered

15,000 square feet, which was later increased to 18,218 square feet

handed over as a bare shell. HIDCO’s approved sanction plan dated

August 27, 2009 allocated a total area of 3,898.52 square meters

(equivalent to 41,963.32 square feet) for the retail building.

83. Out of the total 41,963.32 square feet, only 18,218 square feet was

transferred to RP, leaving 23,320.32 square feet un-transferred. The non-

transfer of the entire retail area in favour of RP, clearly implies that HIDCO

and RDPL engaged in a private sale of the 18,218 square feet plot to RP.

Any transfer could at best have been for development of the retail area. No

undeveloped part or portion of the bulk plot of 16. 32 acres could have

been transferred to RP by RDPL and HIDCO.

32

84. Clause 13 of the conveyance confirms that the commercial structures

were meant to serve residents through amenities like ATM facilities,

grocery stores, utility shops, and pharmacies. Such facilities could only be

exploited by RP to the extent of 18, 218 that too ‘ ordinarily and

primarily’ for the benefit of the residents. Clause no. 13 should govern

the constructions made by RP. This aligns the purported conveyance in

favour of RP with the development agreement (supra).

85. Hence the absolute transfer of the 18,218 square feet to RP by RDPL is

illegal. In light of the development agreement (supra),RP can at best be

accepted as the entity to construct and manage the retail area for the

exclusive benefit of the Residents. Any construction made beyond 18, 218

Square feet or beyond the sanction plan dated 26

th April 2011 issued by

NKDA is illegal and is liable to be demolished and removed.

86. The learned Single Judge erred by holding that RP’s right to construct

over the entire retail area stems from the HIDCO plan. RP’s sale deed

explicitly restricted its construction rights to 18,218 odd square feet out of

the broader retail pool. RP is bound by the NKDA revised plan dated 26th

April 2011 that reduced the area of retail construction to 27,000 odd

square feet, of which it has received rights only in respect of 18,218 Sq ft.

RP is therefore strictly prohibited from effecting construction under the

HIDCO plan of August 2009, which has been superseded by the NKDA

revised plan dated April 26

th

, 2011.

87. Ld. Counsels and Sr. Counsel for the RP have conceded that RP’s right

over the retail area does not extend beyond 18, 218 square feet, purchased

by it from RDPL. This would also imply that RP cannot question the NKDA

revised plan. The NKDA revised plan reduced the area of construction for

33

the retail area to 27,000 odd square feet. RP enjoys a lesser area of 18,218

square feet therefrom.

88. The aforesaid concession of counsel for RP implies, as a logical corollary,

that it cannot claim to construct a G+1 structure at the retail area as the

revised sanction plan of NKDA has modified the retail structure to mean

ground plus roof, stairway and ramp etc. The reason is that RP was

transferred 18,218 square feet. The rest of the retail area sanctioned in

both plans was not transferred to it.

89. With the reduction of the retail area in the NKDA revised plan, the

height and breadth of the structure to be built thereon would equally

reduce. The reduction from G+1 to Ground floor and Roof in the NKDA

revised plan was thus an obvious consequence of the reduction of the

retail area from 41, 000 odd square feet to 27, 000 odd square feet.

90. RP cannot claim a right to construct the entire ground floor plus roof

sanctioned in the NKDA revised plan dated April 26th, 2011 since the

same was sanctioned for the entire retail area of 27,000-odd square

feet, of which only 18,218 square feet was purchased by RP. The right

of the RP to make constructions in the retail area, therefore, should be

proportionate to the 18,218 square feet.

D. CONCLUSIONS

91. The Rosedale Garden and RP are a part and parcel of a singular

residential housing project comprising in about 16.32 acres. The Entire

project is under the New Town Kolkata Development Authority. The only

valid sanction plan in respect of the retail and residential areas is dated

26

th

April 2011.

34

92. The retail part of the housing project comprising in about 18,218

square feet purchased by RP, is meant primarily for the use and benefit

of the residents and members of the Appellant.

93. The rights of the respondent RP in respect of the retail part of the

project is restricted to making construction and running of the retail area

to the extent of 18, 218 Square Feet, strictly in terms of the NKDA

sanction Plan dated 26

th

April 2011.

94. The MOU dated 27

th

November 2009, agreements dated 7

th

April 2010

and 30

th

April 2011 and the Conveyance dated 19

th

May 2014, cannot be

invoked to sub-divide the plot of 16.32 Acres into commercial and

residential use. The counsels including the Ld. Sr. Counsel for RP,

respondent nos. 7-9 has agreed and admitted to the same.

95. The Conveyance dated 19

th May 2014, is a contract of sub-agency

permitting RP to construct, run, exploit and manage the retail area in

terms of the NKDA plan of 26

th April 2011.

96. All gates installed at the subject bulk plots are declared an integral

part of and provide access to, the residential-cum-retail area. Such gates

shall not be construed as separating the retail area from the residential

area. This direction aligns the subject bulk plots with the development

agreement under the Town Planning Act, 1979.

97. The order of NKDA dated February 27

th

, 2019 is set aside. The NKDA

RTI reply cum report dated October 7

th

, 2020, absolving RP of any un-

authorized construction is set aside.

35

E. DIRECTIONS

98. The NKDA shall ensure that existing constructions at RP, including

residential towers and retail shops, comply with the development agreement

dated 24

th

February 2006 between HIDCO and RDPL, and the re-sanctioned

plan of NKDA dated 26

th

April 2011.

99. Respondent Nos. 7 to 9, are not entitled to make constructions exceeding

18,218 sq. ft. of the total retail area of 27, 000 odd square feet. The retail

area outside the aforesaid 18, 218 square feet shall not be used by RP. The

NKDA shall demolish all and any construction made by Respondents Nos.7-9

and/or M/s RP beyond the 18,218 square feet, in the retail area demarcated

in the NKDA plan dated 26

th April 2011, within two months from date.

100. NKDA shall further demolish the existing partition by fence, separating the

residential complex from the commercial complex. For the said purpose the

NKDA shall depute appropriate engineers and officers to ascertain the extent

of illegal construction made by respondents Nos.7-9 and M/s RP over the

subject bulk plot and take steps as directed hereinabove. The costs of

demolition shall be recovered from RP.

101. The RP shall be at liberty to cordon off 18,218 square feet of the 16.32

acres of land together with limited access area as per the NKDA Act and

Rules framed thereunder to demarcate the length and breadth of its right

over the subject plots. This is to ensure the privacy of the residents of bulk

plot.

36

102. MAT 519 of 2024 is disposed of. Consequently all connected applications,

if any, are disposed of in terms of this judgement. The impugned judgement

is set aside to the extent that it is inconsistent with the above.

103. There shall be no orders as to costs.

(Rajasekhar Mantha, J.)

I Agree

(Anuj Singh, J.)

Later:

After the judgment is pronounced in open Court, the Joint Special Officer

appointed by the Coordinate Bench in this appeal, shall stand discharged. The

remuneration already paid shall constitute final remuneration to the Special

Officer.

(Rajasekhar Mantha, J.)

I Agree

(Anuj Singh, J.)