In a significant ruling that reinforces the rights of homebuyers, the West Bengal Real Estate Appellate Tribunal (WBREAT) has come down heavily on the promoter of a premium residential project in Kolkata. The tribunal upheld an earlier order by the state's real estate regulator, restraining the developer from making any unauthorized changes to the project's layout or common areas.
WBREAT Upholds RERA's Interim Order
The case revolves around 'Atmosphere – the luxurious condominium', a high-end project located off the EM Bypass in Kolkata. On Friday, the tribunal, chaired by Justice Rabindranath Samanta, validated the interim order issued by the West Bengal Real Estate Regulatory Authority (WBRERA). This order explicitly prohibits the project promoters from "alienating, transferring or dealing" with any part of the project or its shared common areas without following due legal process.
The dispute reached the tribunal after ten residents of the complex filed a complaint. They alleged that the promoter had unilaterally modified the original construction plans without securing the mandatory consent from two-thirds of the existing allottees. This is a clear violation of the Real Estate (Regulation and Development) Act, 2016, which is designed to protect homebuyers from such arbitrary actions.
Details of the Unilateral Modifications
The residential complex, built on a 3-acre plot, comprises two towers with 82 apartments and several amenities. According to the homebuyers' allegations, the promoter made two key unauthorized changes. First, they applied for and obtained a revised plan sanction in November 2018 to construct one additional duplex apartment on the 35th floor of each tower.
Secondly, and more controversially, the promoter is accused of illegally converting common areas on the first floor, known as the 'E-deck' level, into an additional private apartment. The facilities in these common areas are meant to be shared proportionately by all unit holders. The developer reportedly justified the modifications citing a change in the Kolkata Municipal Corporation (KMC) building rules in June 2018, which allowed for an additional 20% Floor Area Ratio (FAR) for properties near metro corridors.
Legal Mandate and Inspection Orders
In its definitive order, Justice Samanta's bench left no room for ambiguity. The tribunal stated, "Viewed from any angle, it is a legal mandate on a promoter to first obtain prior written consent of 2/3 of allottees and then submit a modified or revised plan of the original sanctioned plan to the concerned municipal authority." This ruling underscores the non-negotiable requirement of buyer consent before any project alterations.
The WBREAT has also directed the Kolkata Municipal Corporation (KMC) to conduct a physical inspection of the site. The civic body must verify whether the construction in the designated common area on the first-floor E-deck and the additional duplexes complies with the originally sanctioned plans. Simultaneously, WBRERA officers have been instructed to inspect the project and confirm if the developer is in compliance with all documents submitted during the project's initial registration.
It is important to note that on February 25, 2025, the Calcutta High Court had permitted the continuation of construction as per the modified plan. However, the court had clearly stated that this construction would be subject to the final outcome of separate arbitration proceedings initiated by other allottees. The latest WBREAT order adds a crucial legal layer to this ongoing battle, firmly siding with the aggrieved homebuyers and setting a strong precedent for future disputes.
