Does the NKDA Act’s Non-Obstante Clause Override Statutory Owner Consent Requirements Under the West Bengal Apartment Ownership and Promoters Acts?

The Calcutta High Court holds (29-08-2025) that Section 184 of the NKDA Act 2007 does not bar application of the West Bengal Apartment Ownership Act 1972 or the West Bengal Promoters Act 1993; revised sanction plans require proof of exclusive construction rights, including written consent of existing flat owners, and absence of such consent renders plans void.

Summary

Practical Impact

What’s New / What Lawyers Should Note

• Clarifies that a non-obstante clause in a development authority Act does not displace separate statutes conferring rights on apartment owners and regulating promoters.
• Confirms that development authorities must ascertain exclusive construction rights—including written consent under Section 7 Apartment Ownership Act 1972 and Section 8 Promoters Act 1993—before granting or revising building sanctions.
• Establishes that a revised sanction plan obtained without existing owners’ consent and by misrepresentation is void ab initio and cancellable under Section 81 NKDA Act 2007.
• Affirms that additional-structure construction sans owner consent violates Article 300A’s guarantee of property rights and must be demolished, not regularised by compensation.
• Holds engineers and NKDA officers liable for departmental and criminal proceedings when involved in sanctioning illegal plans.

Summary of Legal Reasoning

1. Scope & Statutory Interplay: The NKDA Act 2007, Apartment Ownership Act 1972 and Promoters Act 1993 regulate complementary fields—building-plan sanction, individual apartment-ownership rights and promoter duties respectively—and must be read harmoniously under the material-inconsistency test.
2. Non-Obstante Clause: Section 184 NKDA Act gives overriding effect only over conflicting laws; no conflict arises as all three statutes share the common subject of regulating construction on multi-owner land.
3. Owner-Consent Precondition: Sections 7, 10 and 10A of the Apartment Ownership Act 1972 (and Rules 3–5 of 1974) bar any material addition—such as a new 16th tower—without written consent of all existing apartment owners.
4. Promoter-Duty & Proof of Title: Sections 3 and 8 of the Promoters Act 1993 require promoters to secure title or express owner-authorisation for any construction beyond a sanctioned plan; they also prohibit unilateral additions.
5. Cancellation & Demolition: Section 81 of the NKDA Act empowers cancellation of any sanction procured by misrepresentation or suppression of material facts; Section 82 enables demolition of unauthorised works.
6. Article 300A Right: The dilution of undivided land rights without notice or owner consent infringes the constitutional right to property—notice, hearing, reasoned decision, public-purpose and compensation requirements—and cannot be remedied by mere monetary compensation.

Arguments by the Parties

Petitioners (Flat Owners of 15 Towers)

• Construction of the 16th tower is illegal without written consent, violating Sections 7–10A of Apartment Ownership Act and Sections 3, 8 of Promoters Act.
• NKDA failed to invoke Section 81 NKDA Act to cancel the revised plan after Form B rejection.
• Dilution of undivided land shares and open areas infringes Article 300A, requiring demolition and compensation.

Respondent No. 6 (Promoter)

• Sale deeds contain clauses permitting further clubhouse and common-area construction; purchasers purportedly agreed to future additions.
• Delay and acquiescence by petitioners disentitle them to relief.
• Even if illegality, petitioners cannot insist on demolition after significant third-party rights accrued.

Respondent NKDA

• Petitioners participated in NKDA hearings on NBC-guideline violations, thus acquiesced.
• The Apartment Ownership Act has no application to NKDA’s grant of sanctions.
• Case may be referred to the State under Section 180 NKDA Act for opinion on statute-statute conflict.

Respondents (Purchasers of 16th Tower)

• No suppression: revised plan added common facilities and reduced only a small portion of open-area share.
• Petitioners guilty of material fact suppression regarding overall plan.
• Clauses of consent in sale agreements preclude statutory-consent requirement.
• Single Bench’s view is one of two possible interpretations; no palpable infirmity.

Factual Background

In 2007 NKDA sanctioned a 15-tower residential project; flat owners executed sale deeds and filed Form A under the West Bengal Apartment Ownership Act 1972 to define their undivided land shares. In 2015 a new promoter obtained a revised NKDA sanction for a 16th 26-floor tower and a commercial complex—without the consent or knowledge of existing owners—thereby reducing each owner’s shared land and open areas. Competent and Appellate Authorities under the 1972 Act rejected the promoter’s Form B; a Single Bench held the NKDA Act’s non-obstante clause barred further statutory application. The Division Bench reversed, cancelling the revised plan and ordering demolition and restitution.

Statutory Analysis

• NKDA Act 2007
  • Section 71–75 (sanction preconditions; documentation of exclusive construction rights)
  • Section 81 (cancellation for misrepresentation/suppression)
  • Section 82 (demolition or alteration orders)
  • Section 184 (non-obstante clause; limited override)
• West Bengal Apartment Ownership Act 1972 & Rules 1974
  • Section 2 (application); Section 7 (prohibitory bar against structural additions sans owner consent)
  • Section 10–10A (Form A/B declarations, amendments; mandatory building-plan production and notice to co-owners)
  • Rule 3, 4, 5 (forms, amendment conditions, consent requirements)
• West Bengal Promoters Act 1993
  • Section 2(g), 3 (promoter registration, permission preconstruction, proof of title or owner-authorization)
  • Section 8 (prior consent for alterations or additional structures; no alternative remedy of compensation)
• Constitution: Article 300A (no deprivation of property save by authority of law, incorporating notice, hearing, reasoned decision and acquisition-for-public-purpose requirements)

Dissenting / Concurring Opinion Summary

No dissenting opinion was filed; Hon’ble Justice Ajay Kumar Gupta concurred with the majority.

Procedural Innovations

This decision demonstrates that Division Benches may entertain letter-patent appeals to correct statutory-interpretation errors in municipal law, especially where constitutional property rights under Article 300A are at stake.

Alert Indicators

• ✔ Precedent Followed – Affirms principles from Supreme Court judgments on statute interplay and property rights under Article 300A.
• ✔ Breaking Precedent – Overrules Single Bench decision that had excluded application of Apartment Ownership Act under NKDA Act.

Citations

• Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn., (2021) 10 SCC 1
• Forum for People’s Collective Efforts v. State of West Bengal, (2021) 8 SCC 599
• Jayantilal Investments v. Madhuvihar CHS, (2007) 9 SCC 220
• Dev All (P) Ltd. v. Kolkata Municipal Corporation, (2024) SCC OnLine Cal 2528
• Vikas Singh v. Government of NCTD, (2022) SCC OnLine SC 1207
• Friends Colony Development Committee v. State of Orissa, (2004) 8 SCC 733
• Basheshar Nath v. CIT, (1958) SCC OnLine SC 7