Supertech Limited vs Emerald Court Owner Resident Welfare Association & Ors.

24.2.1.6 – Uttar Pradesh Industrial Area Development Act, 1976 – sec. 12 – Uttar Pradesh Urban Development Act, 1973 – sec. 49 – Uttar Pradesh Ownership of Flats Act 1975 – ss. 3(d), 5. Disposing of the appeals, the Court

HELD: 1. There was a challenge to the revised plans by which the construction and increase in the height of T-17 (Apex) and T- 16 (Ceyane) were envisaged. In the first revised plan of

29 December 2006, T-16 was to partially comprise of G+11, the rest being G+4. A shopping complex was envisaged comprising of G+1 floors. A triangular green area is indicated in the first revised plan of 29 December 2006 in front of T-1. In the second revised plan of 26 November 2009, T-17 (Apex) and T-16 (Ceyane) came to be envisaged with twenty-four floors and of a height of 73 mtrs. each. In the third revised plan of 2 March 2012, the number of floors of T-16 and T- 17 was increased further from twenty-four to forty floors (for T-16) and thirty-nine floors (for T-17), and the height of each of the towers was increased from 73 mtrs. to 121 mtrs. In this backdrop, the relief which was sought in prayer (i) was for quashing the revised plan for the construction of the two new towers – T-17 (Apex) and T-16 (Ceyane). This clearly implicates a challenge both to the second revised plan of 26 November 2009 as well as the third revised plan of 2 March 2012. [Para 47][1019-F-H; 1020-A-B]

2. A brazen attempt at stonewalling the first respondent was made by the appellant and NOIDA before the High Court. The sanctioned plans incorporate the condition that a copy of each plan would be made available at the site. Despite this, when the first respondent sought copies of the sanctioned plans and other information, NOIDA wrote to the appellant asking for their consent to provide the plans to the first respondent. When the appellant refused, NOIDA’s refusal to the RWA followed suit. It was only pursuant to the interim directions of the High Court that the sanctioned plans and documents were provided to the first respondent. The reliefs which have been sought encompass a challenge to the validity of the second and third revised plans, under which the two towers, T- 17 (Apex) and T-16 (Ceyane), were being constructed. [Para 48][1020-C-E]

Violation of distance requirement under Building Regulations

3. The first issue is whether the sanction for the construction of T-16 and T-17 by NOIDA is in violation of the distance requirement under applicable building regulations. [Para 49][1020-E-F]

4. Regulations 33.2.3 of the NBR 2006 refers to the distances between adjacent ‘building blocks’ which shall not be less than half of the height of the tallest building. The purpose of this regulation is not to apply it only as between building blocks as distinguished from buildings within a block. Clause (1) of Regulation 33.2.3 has used the expression ‘building blocks’ and ‘height of tallest building’ in the same sentence. These expressions must be given a meaning which accords with common sense and in furtherance with the object and the purpose of the said Regulation. The plain meaning of the expression is that when there are two adjacent blocks, the height of the tallest building will determine the distance required to be observed, with the distance being not less than half the height of the tallest building. Consequently, when two or more buildings exist in proximity together, they comprise of a building block within the meaning of Clause (1) of Regulation 33.2.3. In such an eventuality, the distance between each of the buildings comprised in the block shall also not be less than half of the height of the tallest building. The reference to the height of the tallest building is evidently made because this kind of a building will likely overshadow the buildings of a lesser height in a cluster of proximate construction. Therefore, the regulation has defined the minimum distance required with reference to half the height of the tallest building. Any other construction will defeat the purpose of Regulation

33.2.3 and cannot be accepted. [Para 68][1033-D-H]

5. Applying the NBR 2006 to the facts of the present case, the construction of T- 16 and T-17 was envisaged in the second revised plan dated 26 November 2009. The height of the said towers was to be 73 mtrs., while the height of other towers, including T-1, was to be 37 mtrs. Thus, as per Regulation 33.2.3 of the NBR 2006, the minimum distance between T-17 and T-1, should be half of the height of the tallest building, that is, half of the height of T-17 which is 36.5 mtrs. It is evident from the record that the distance between T-1 and T-17 is 9 mtrs. only. Thus, clearly the second revised plan was violative of the NBR 2006. [Para 69][1034-A-B]

6. Now, coming to the NBR 2010. Regulation 24.2.1(6) has prescribed the requirement of maintaining varying distances between two adjacent blocks from a minimum of 6 mtrs. extending up to 16 mtrs., depending on the height of blocks. The content to the first sentence of this regulation is further amplified by what follows it. The next part of the regulation stipulates that for a building of height up to 18 mtrs., “spacing” shall be 6 mtrs. The expression “spacing” in its plain terms means the observance of a stipulated distance. Where the height of the building is up to 18 mtrs., “the spacing” shall be 6 mtrs. Thereafter, for a height above

18 mtrs., the minimum distance has to be increased by one meter for an additional height of three mtrs. subject to a maximum distance or spacing of 16 mtrs. “as per National Building Code – 2005”. [Para 70][1034-C-E]

7. NOIDA, before it granted sanction for enhancing the height of T-16 and T-17 from G+24 to G+40 (or 39, as the case may be), was duty bound to apply its mind to whether there was a compliance with the provisions of Regulation 24.2.1.6. The third revised plan which was sanctioned on 2 March 2012 has evidently glossed over the clear deficiency of open space with reference to the NBR 2010, the consequence of which would have been to reject the proposal for a further increase in the height of the towers from twenty-four floors to forty floors. Yet NOIDA has chosen to lend its support to the appellant in clear defiance of the provisions of law. [Para 73][1035-G-H; 1036-A]

8. The only reasonable hypothesis which emerges from the disclosures made is that the argument which was sought to be advanced – that Towers 1, 16 and 17 are part of a cluster of buildings comprised within a block, thus obviating the need to maintain the minimum distance between them – is an afterthought. It is contrary to the stated position which has been adopted by the appellant in its affidavit before the High Court. The record before this Court also indicates that the appellant has taken liberties with the truth in making the submission that a cluster of towers in the project constitutes a block which allows the appellant to subvert the minimum distance requirement. [Para 82][1043-F-G]

9. Significantly, it must be noted that the second revised plan of 2009, which has been placed on record, does not show the existence of blocks and is duly endorsed by NOIDA. Similarly, the third revised plan of 2012, which is also on the record, does not embody any description of blocks. Therefore, this Court is in no manner of doubt that the argument sought to be developed in the course of these proceedings that there were separate blocks in the plan is an afterthought. It is contrary to the stated position which has been adopted by the appellant on affidavit before the High Court. It is contrary to the sanctioned plans. What is worse is that an effort was made to place on the record before the High Court a purported plan of dubious origin by seeking to pass it of as the second revised plan of 2009. [Para 86][1046-C-D] Interpretation of “dead end sides of buildings”

10. The interpretation of the expression ‘dead end side of the building’, the sides of T-1 and T-17 facing each other are held not to be dead end sides for the following reasons:

(i) The windows/corridors of T-17 on all floors except the ground floor have an opening on the side that faces T-1. Though this is contested by the appellant, it has been conceded that there are at least a few windows/balconies in T-1 facing T-17 and vice versa;

(ii) The entries of T-1 and T-17 do not face each other but are perpendicular to each other. However, the entry to T-1 is from the side facing T-17;

(iii) Four out of five external sides of T-1 that face T-17 are dead end sides.

However, the fifth side is a balcony of the living room facing T-17. The distance between points of the buildings cannot be selectively measured to argue its compliance with the distance rule; and

(iv) Even though the entry of T-1 facing T-17 is 20 mtrs. away, the distance rule is not complied with since a selective measurement from the dead end points cannot be undertaken. The distance must be measured along the ground. Thus, we find that the revised plans were in violation of NBR 2010 and do not fall under the exception provided in Regulation 24.2.1.6 for blocks having dead end sides. [Para 111][1059-E-H; 1060-A-B]

Violation of NBC 2005

11. According to the NBC 2005, the spacing between T-1 and T-17 should be 20.45 mtrs. Evidently then, the second and third revised plans were not in accordance with the NBC 2005. This conclusion is fortified by the report of the NBCC, which in para 5 reaches the conclusion that the minimum open space around T-17 is to be 20.45 mtrs. and thus, the distance between T-1 and T-17 does not comply with para 8.2.3.1 of the NBC 2005. [Para 112][1061-B-C]

Violation of Fire Safety Norms

12. Regulation 76 of NBR 2006 states that the building must be planned and constructed in accordance with Part IV of National Building Code 1970, amended as of that day. Para 4.6 of NBC 2005 states that the approach to the building and the open spaces on all the sides of a high rise building shall be 6 mtrs. and that the layout of the building must be made in consultation with the CFO. However, para 8.2.3.1 of NBC 2005 prescribes a minimum of 16 mtrs. side and rear spaces for buildings that are higher than 55 mtrs. Therefore, on reading NBC 2005 as a whole, the side and rear space around the building must be 16 mtrs. The distance between T-1 and T-17 is only 9 mtrs., which is less than the required 16 mtrs. Given that the rear distance requirement under NBC 2005 has not been complied with, the NOC given by the CFO stands automatically cancelled. [Paras 119-120][1063-B-D] Consent of the RWA

13. Having held above that the sanction for the construction of T-16 and T-17 were given by NOIDA in contravention of the minimum distance requirement provided by the Building Regulations, we will advert to the next issue. It has been contended by RWA that the sanction could not have been revised without the consent of the flat purchasers in the original fifteen towers. While analyzing this issue, it is first important to consider the appellant’s preliminary objection that the UP 1975 Act is not applicable to the present case. After addressing the preliminary objection, this Court shall analyze whether the consent was actually required under the UP 1975 Act and UP Apartments Act 2010. [Para 121][1063-E-G]

Applicability of UP 1975 Act

14. Under sub-Section (2) of Section 5, the percentage of the undivided interest of each owner of a flat in the common areas and facilities, as expressed in the Declaration, shall not be altered without the consent of all the owners of the flats expressed through an amended Declaration which shall be executed and registered under the Act. [Para 124][1065-C-D]

15. The submission urged on behalf of the appellant is that the UP 1975 Act has no application to the present case, in view of the provisions of Section 2. In the backdrop of this provision, more particularly, clause II(h) of the lease deed which was executed by NOIDA in favour of the appellant on 16 March 2005, the appellant was duty bound to comply with the provisions of the UP 1975 Act. By submitting before this Court that it is not bound by the terms of its agreement or the Act for want of a declaration under Section 2, the appellant is evidently attempting to take advantage of its own wrong. [Paras 125 and 129][1067-B; 1068-E-F]

Applicability of the UP Apartments Act 2010

16. It is important to clarify that the UP Apartments Act 2010 will not apply with retrospective effect to the second revised plan, which was sanctioned on 26 November 2009. However, the legislation, which came into force upon publication in the UP Gazette on 19 March 2010, will have consequences for the third revised plan sanctioned on 2 March 2012. [Para 136][1073-B-C] Requirement of RWA’s Consent

17. Finally, the appellant has also tried to argue that: (i) the consent of each individual flat owner could not be taken and it had to be taken from the RWA, as a collective body; (ii) the RWA only came into existence on 20 October 2013, when it adopted the Model Bye-Laws under the UP Apartments Act 2010l (iii) that this was after the third revised plan was sanctioned; and (iv) hence, there existed no association to take consent from. The High Court had dealt with this argument. It is clear that: (i) the RWA came into existence in 2009 itself, when the first lot of apartment owners moved in; (ii) the appellant was communicating with the RWA ever since; and (iii) the RWA adopted the Model Bye-Laws under the UP Apartments Act 2010, as soon as it was practicable. These averments have not been challenged before this Court during the oral submissions by the appellant, and hence, it will be held bound by its own conduct. In any case, rights under the UP 1975 Act and UP Apartments Act 2010 have been provided to individual flat owners, and not to collective bodies like the RWA. Hence, even the non-constitution of the RWA will not extinguish the rights of individual flat owners. Indeed, however, when such RWAs do exist, developers may use them to seek a common consent from all the flat owners instead of approaching them all individually. [Para 142][1076-C-D; 1077-B-C] Collusion and Illegal Construction

18. The record of this case is replete with instances which highlight the collusion between the officers of NOIDA with the appellant and its management. The case has revealed a nefarious complicity of the planning authority in the violation by the developer of the provisions of law. The complicity of NOIDA has emerged, inter alia, from the following instances:

(i) The sanctioning of the second revised plan on 26 November 2009 in clear breach of the NBR 2006;

(ii) The refusal by NOIDA to disclose the building plans to the first respondent, in spite of a clear stipulation consistently in all the sanctioned plans that the plan would have to be displayed at the construction site of the appellant;

(iii) NOIDA’s referral of RWA’s request to access the sanctioned plans to the appellant to seek its consent and upon the refusal of the latter, a continuous failure to disclose them to the RWA;

(iv) Even when the CFO addressed a communication to NOIDA in regard to the violation of the minimum distance requirements in Emerald Court, it evinced no response and no investigation from them;

(v) In pursuance of the second revised plan of 26 September 2009, the appellant would appear to have built a foundation to support two buildings of forty and thirty-nine floors, while the sanction for the extension from twenty-four to forty or thirty-nine floors came about only on 2 March 2012 through the third revised plan; and

(vi) The construction for T-16 and T-17 commenced in July 2009 by the appellant, five months before the sanction was received for the second revised plan on 26 November 2009, in spite of which NOIDA chose to take no action. [Para 143][1077D-H; 1078-A-C]

19. The judgments of this Court spanning the last four decades emphasize the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation. Hence, the law must step in to protect their legitimate concerns. [Para 148][1079-E-G]

20. In the present case, once this Court has determined that the sanctioned plan for Apex and Ceyane (T-16 and T-17) breached the NBR 2006, NBR 2010, NBC 2005, UP 1975 Act and the UP Apartments Act 2010, it becomes its duty to take stock of the violations committed by the appellant in collusion with NOIDA. The appellant has raised false pleas and attempted to mislead this Court, while the officials of NOIDA have not acted bona fide in the discharge of their duties. The appellant has stooped to the point of producing a fabricated sanctioned plan. Therefore, the directions of the High Court including the order of demolition and for sanctioning prosecution under Section 49 of the UPUD Act, as incorporated by Section 12 of the UPIAD Act 1976, against the officials of the appellant and the officers of NOIDA for violations of the UPIAD Act 1976 and UP Apartments Act 2010 is confirmed. [Para 155][1084-C-E]

Conclusion

21. To summarize findings, the documentary materials referred to and analyzed in this judgment indicate that:

(i) The land allotted to appellant under the original lease agreement and the supplementary lease deed constitute one plot;

(ii) The land which was allotted through the supplementary lease deed forms a part of original Plot No 4, and would be governed by the same terms and conditions as the original lease deed;

(iii) The sanction given by NOIDA on 26 November 2009 and 2 March 2012 for the construction of T-16 and T-17 is violative of the minimum distance requirement under the NBR 2006, NBR 2010 and NBC 2005;

(iv) An effort was made to get around the violation of the minimum distance requirement by representing that T-1 together with T-16 and T-17 form one cluster of buildings in the same block. This representation was sought to be bolstered by providing a space frame between T-1 and T-17. The case that T-1, T-16 and T-17 are part of one block is directly contrary to the appellant’s stated position in its representations to the flat buyers as well as in the counter affidavit before the High Court. The suggestion that T-1, T-16 and T-17 are part of one block is an after-thought and contrary to the record;

(v) After realizing that the building block argument would not pass muster, another false case was sought to be set up with the argument that T-1 and T-17 are dead end sides, thereby obviating the need to comply with the minimum distance requirements. This argument is belied by the comprehensive report submitted by NBCC. The sides of T-1 and T-17 facing each other are not dead end sides since both the sides have vents/egresses facing the other building;

(vi) By constructing T-16 and T-17 without complying with the Building Regulations, the fire safety norms have also been violated;

(vii) The first revised plan of 29 December 2006 contained a clear provision for a garden area adjacent to T-1. In the second revised plan of 26 November 2009, the provision for garden area was obliterated to make way for the construction of Apex and Ceyane (T- 16 and T – 17). The common garden area in front of T-1 was eliminated by the construction of T-16 and T-17. This is violative of the UP Apartments Act 2010 since the consent of the flat owners was not sought before modifying the plan promised to the flat owners; and

(viii) T-16 and T-17 are not part of a separate and distinct phase (Phase–II) with separate amenities and infrastructure. The supplementary lease deed stipulates that the they are part of the original project. Hence, the consent of the individual flat owners of the original fifteen towers, individually or through the RWA, was a necessary requirement under the UP Apartments Act 2010 and UP 1975 Act before T-16 and T-17 could have been constructed, since they necessarily reduced the undivided interest of the individual flat owners in the common area by adding new flats and increasing the number from 650 to 1500; and The illegal construction of T-16 and T-17 has been achieved through acts of collusion between the officers of NOIDA and the appellant and its management. [Para 156][1084-F-G; 1085-A-H; 1086-AC]

22. For the reasons indicated above, this Court has come to the conclusion that:

(i) The order passed by the High Court for the demolition of Apex and Ceyane (T-16 and T-17) does not warrant interference and the direction for demolition issued by the High Court is affirmed;

(ii) The work of demolition shall be carried out within a period of three months from the date of this judgment;

(iii) The work of demolition shall be carried out by the appellant at its own cost under the supervision of the officials of NOIDA. In order to ensure that the work of demolition is carried out in a safe manner without affecting the existing pleadings, NOIDA shall consult its own experts and experts from Central Building Research Institute Roorkee;

(iv) The work of demolition shall be carried out under the overall supervision of CBRI. In the event that CBRI expresses its inability to do so, another expert agency shall be nominated by NOIDA;

(v) The cost of demolition and all incidental expenses including the fees payable to the experts shall be borne by the appellant;

(vi) The appellant shall within a period of two months refund to all existing flat purchasers in Apex and Ceyane (T-16 and T 17), other than those to whom refunds have already been made, all the amounts invested for the allotted flats together with interest at the rate of twelve per cent per annum payable with effect from the date of the respective deposits until the date of refund in terms of Part H of this judgment; and

(vii) The appellant shall pay to the RWA costs quantified at Rs 2 crore, to be paid in one month from the receipt of this judgment. [Para 157][1086-C-H; 1087-A-B]

K. Ramadas Shenoy v. Chief Officer, Town Municipal Council (1974) 2 SCC 506 : [1975] 1 SCR 680; Dr G.N. Khajuria v. Delhi Development Authority (1995) 5 SCC 762 : [1995] 3 Suppl SCR 212; Friends Colony Development Committee v. State of Orissa (2004) 8 SCC

733 : [2004] 5 Suppl. SCR 818; Priyanka Estates International (P) Ltd. v. State of Assam (2010) 2 SCC

27 : [2009] 16 SCR 80; Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai (2013) 5 SCC 357 : [2013] 4 SCR 478 – relied on.

Kerala State Coastal Zone Management Authority v. State of Kerala (2019) 7 SCC 248; Kerala State Coastal Zone Management Authority v. Maradu Municipality, Maradu 2018 SCC OnLine SC 3352; Bikram Chatterji v. Union of India (2019) 19 SCC 161 – referred to.