1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 5041 of 2021
(Arising out of SLP (C) No. 11959 of 2014)
Supertech Limited ...Appellant
Versus
Emerald Court Owner Resident
Welfare Association & Ors. ...Respondents
With
Civil Appeal No. 5042 of 2021
(Arising out of SLP (C) No. 14314 of 2014)
With
Civil Appeal No. 5043 of 2021
(Arising out of SLP (C) No. 12470 of 2014)
With
Civil Appeal No. 5044 of 2021
(Arising out of SLP (C) No. 14262 of 2014)
With
Civil Appeal No. 5045 of 2021
(Arising out of SLP (C) No. 21035 of 2014)
With
Civil Appeal No. 5046 of 2021
(Arising out of SLP (C) No. 31117 of 2014)
With
Civil Appeal No. 5047 of 2021
(Arising out of SLP (C) No. 12427 of 2015)
2
With
Civil Appeal No. 5048 of 2021
(Arising out of SLP (C) No. 12947 of 2015)
With
Civil Appeal No. 5049 of 2021
(Arising out of SLP (C) No. 12948 of 2015)
With
Civil Appeal No. 5050 of 2021
Arising out of SLP (C) No. 12191 of 2021
(Diary No. 28571 of 2018)
With
Contempt Petition (C) No. 380 of 2021
In
Special Leave Petition (C) No. 14314 of 2014
With
Contempt Petition (C) No. 381 of 2021
In
Special Leave Petition (C) No. 14314 of 2014
With
Contempt Petition (C) No. 382 of 2021
In
Special Leave Petition (C) No. 14314 of 2014
With
Contempt Petition (C) No. 383 of 2021
In
Special Leave Petition (C) No. 14314 of 2014
And With
Contempt Petition (C) No. 384 of 2021
In
Special Leave Petition (C) No. 14314 of 2014
3
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
INDEX
A Factual and procedural history
A.1 The appeals
A.2 The Emerald Court project
A.3 First Revised Plan
A.4 Second Revised Plan
A.5 Third Revised Plan
A.6 Complaints against the Revised Plans
A.7 Proceedings before the Allahabad High Court
A.8 Proceedings before this Court
B Submissions by Counsel
C Prefatory observations
D Violation of distance requirement under Building Regulations
D.1 Violation of NBR 2006 and 2010
D.1.1 Interpretation of “building blocks”
D.1.2 Interpretation of “dead end sides of buildings”
4
D.2 Violation of NBC 2005
D.3 Violation of Fire Safety Norms
E Consent of the RWA
E.1 Applicability of UP 1975 Act
E.2 Applicability of the UP Apartments Act 2010
E.3 Requirement of RWA’s Consent
F Collusion and Illegal Construction
G Conclusion
H Interlocutory Applications
PART A
5
1 Leave granted.
A Factual and procedural history
A.1 The appeals
2 These appeals have arisen from a judgment of a Division Bench of the High
Court of Judicature at Allahabad dated 11 April 2014, upon a writ petition1 instituted
by the first respondent, the Residents’ Welfare Association2 of Emerald Court Group
Housing Society3
.
3 By its judgment, the High Court directed:
(i) The demolition of Towers -164 and 175 by the third respondent, New Okhla
Industrial Development Authority6
, in Emerald Court situated on Plot No 4,
Sector 93A, NOIDA constructed by the appellant, Supertech Limited7
;
(ii) The cost of demolition and removal would be borne by the appellant, failing
which NOIDA shall recover it as arrears of land revenue;
(iii)Sanction for prosecution under Section 49 of the Uttar Pradesh Urban
Development Act 19738
, as incorporated by Section 12 of the Uttar Pradesh
Industrial Area Development Act 19769
, shall be granted for the prosecution
of the officials of the appellant and the officers of NOIDA for possible
1 Writ Petition (Civil) No 65085 of 2012 2 “RWA” 3 “Emerald Court” 4 “T-16”/“Ceyane” 5 “T-17”/“Apex” 6 “NOIDA” 7 “Supertech” 8 “UPUD Act 1973” 9 “UPIAD Act 1976”
PART A
6
violations of the UPIAD Act 1976 and Uttar Pradesh Apartment (Promotion of
Construction, Ownership & Maintenance) Act 201010; and
(iv)Refund by the appellant of amounts invested by purchasers who had booked
apartments in T-16 and T-17, with interest at fourteen per cent, compounded
annually.
4 The correctness of these directions is challenged before this Court in the
present appeals.
A.2 The Emerald Court project
5 On 23 November 2004, NOIDA allotted to the appellant a plot of land
admeasuring 48,263 sq. mtrs., which was a part of Plot No 4 situated in Sector 93A.
This plot of land was allotted for the development of a group housing society, by the
name of Emerald Court.
6 The first deed of lease was executed on 16 March 2005 between the
appellant and NOIDA. A possession certificate was issued on 17 March 2005.
7 On 20 June 2005, NOIDA sanctioned the building plan for the construction of
Emerald Court consisting of fourteen towers, each with ground and nine floors
(G+9). This sanction was granted under the New Okhla Industrial Development Area
10 “UP Apartments Act 2010”
PART A
7
Building Regulations and Directions 198611. The construction commenced for these
fourteen towers.
A.3 First Revised Plan
8 On 21 June 2006, a supplementary lease deed was executed by NOIDA in
favour of the appellant for an additional land area of 6556.51 sq. mtrs. in the same
plot of land in Plot No 4. Adding to the existing holding allotted under the first lease
deed, the total leased area allotted to the appellant increased to 54,819.51 sq. mtrs.
The supplementary lease deed noted that:
(i) The demised premises shall be deemed to be part of Plot No 4, Sector 93A,
NOIDA as already leased to the appellant;
(ii) All other conditions of the original lease deed and allotment shall remain
unchanged and would be applicable to the newly demised premises, and bind
the appellant;
(iii)The period of lease shall commence from 16 March 2005; and
(iv)The total area of Plot No 4, Sector 93A, NOIDA is 54,819.51 sq. mtrs.
The possession certificate in respect of the additional land was issued to the
appellant on 23 June 2006.
9 On 5 December 2006, the New Okhla Industrial Development Area Building
Regulations and Directions 200612 were notified. Under the NBR 2006, the Floor-
11 “NBR 1986” 12 “NBR 2006”
PART A
8
Area-Ratio13 was increased from 1.5 to 2 for new allottees after 2006. Regulation
33.2.3(i) provided as follows:
“33. 'Floor area ratio' Floor Area Ratio. Ground coverage and
height limitations.
[…]
33.2.3 Any other utilities as decided by Chief Executive
Officer depending on its requirement.
i. Distance between two adjacent building blocks shall not be
less than half of the height of the tallest building.”
10 On 29 December 2006, NOIDA sanctioned the first revised plan for Emerald
Court under the NBR 2006, by which two additional floors were envisaged in
addition to the already sanctioned G+9 floors in the original fourteen towers, thereby
bringing all of them to ground and eleven floors (G+11). Furthermore, additional
buildings were also sanctioned, namely: (i) Tower-15 (comprising of ground and
eleven floors (G+11)); (ii) T-16 (comprising of a cluster of wings including 1 wing of
ground and eleven floors (G+11) and 3 wings of ground and four floors (G+4)); and
(iii) a shopping complex (comprising of ground and first floor (G+1)). As a
consequence, under the first revised plan, NOIDA permitted a total of sixteen towers
(G+11) (which would each be 37 mtrs. in height) and one shopping complex (G+1).
It is important to note that the appellant was able to have this additional construction
due to the area that was made available to it under the supplementary lease deed,
and further, when the appellant had allotted flats to the purchasers, only a small
13 “FAR”
PART A
9
building on the additional leased area was sanctioned. Pertinently, it is also
necessary to highlight that the first revised plan contemplated a green area in front
of Tower- 114. According to the purchasers, when the flats were sold, the brochure of
the appellant contained information in accordance with the first revised plan dated
29 December 2006, which shows the area in front of T-1 as a green area.
11 On 10 April 2008, a completion certificate was granted in relation to the first
eight towers (G+11). Thereafter, various owners of flats were granted possession by
the appellant. Crucially, the completion map also indicated a green area in front of T1, where currently T-16 and T-17 are being constructed.
A.4 Second Revised Plan
12 On 28 February 2009, a notification was issued by the State of Uttar Pradesh
enhancing the FAR from 2 (as provided under the NBR 2006) to 2.75 for new
allottees. Further, the notification also provided for “purchasable FAR”, according to
which old allottees (such as the appellant) could purchase FAR to the maximum
extent of thirty-three per cent of their base existing FAR of 1.5.
13 On 3 July 2009, NOIDA decided that the stipulation to purchase thirty-three
per cent FAR of the existing base FAR for old allotees under the notification dated
28 February 2009, should be brought at par with other allotees. As a consequence,
the purchasable FAR for old allotees would be enhanced to 2.75. However, the
notification by the State of Uttar Pradesh in this regard was still awaited. The
14 “T-1”/ “Aster 2”
PART A
10
appellant states that, in any case, based on the decision of NOIDA, it planned the
construction of T-16 and T-17 in a way that catered to the additional FAR which may
be available for purchase at a later date.
14 On 19 November 2009, relying on the notification dated 28 February 2009,
the appellant purchased thirty-three per cent of its existing base 1.5 FAR at the cost
of Rs eight crores, increasing its available FAR to 1.995.
15 However, it appears from the record that the appellant had already started
construction of the disputed towers – Apex and Ceyane – prior to the grant of this
sanction by NOIDA. On 16 July 2009, the appellant informed the flat owners that:
“1. That we have bought two separate plots measuring
approximately 48000 square meter and 6500 square meter
and got them registered separately in March 2005 & May
2006 respectively.
2. That the new towers which are being constructed will have
altogether separate entry, exit, swimming pool, club & basic
infrastructure. We will also construct boundary wall separating
two structure i.e. existing 15 towers & Apex Ceyane.”
16 The above communication of the appellant indicates that:
(i) The construction of T-16 and T-17 had already commenced on 16 July 2009;
(ii) According to the appellant, these new towers would have separate entry-exit,
amenities and infrastructure; and
(iii)The new towers would be separated from the existing fifteen towers by the
construction of a boundary wall.
PART A
11
The appellant represented to the flat-owners that a revised building plan for
replacing the existing T-16 (G+11) and the shopping complex (G+1) was sanctioned,
with twin towers T-16 and T-17, each of G+24 floors and a height of 73 mtrs.,
replacing them.
17 On 11 September 2009, the Chief Fire Officer of Gautam Budh Nagar15, the
fourth respondent, issued a report to the In-charge (Building Cell) NOIDA, Sector 6
for the grant of the provisional Non-Objection Certificate16 for T-16 and T-17. The
provisional Fire NOC was made subject to compliance with the requirements of the
National Building Code, 200517.
18 On 16 September 2009, a completion certification was granted in relation to
another six towers (G+11). The completion map accompanying this certificate again
showed the green area in front of T-1, where presently T-16 and T-17 are being
constructed.
19 On 26 November 2009, NOIDA sanctioned the second revised plan for
Emerald Court under the NBR 2006. In this plan, the earlier T-16 (G+11) was
replaced with a T-16 consisting of ground and twenty-four floors (G+24). Similarly,
the shopping complex (G+1) was replaced with T-17 consisting of ground and
twenty-four floors (G+24). T-16 and T-17 would each be of a height of 73 mtrs.
According to the plan, T-17 was to be at a distance of 9 mtrs. from T-1, and there
15 “CFO” 16 “NOC” 17 “NBC 2005”
PART A
12
was a provision for their connection through a space-frame at the upper level. This
plan was sanctioned by NOIDA on the basis of the appellant having purchased
thirty-three per cent of the purchasable FAR (27,135.657 sq. mtrs.), in addition to the
permissible 1.5 FAR (82,229.265 sq. mtrs.), totalling to 1.995 FAR (1,09,364.922 sq.
mtrs.). The second revised plan expressly provided for the following, among other
conditions:
“2. Due to this sanction of the building plan, the right and
ownership of any government authority like (municipality,
NOIDA) any other person will not get affected.
[…]
8. A set of sanctioned building plan shall be kept at the
construction site so that it can be checked at the site at
any time and the construction work shall be done as per
the sanctioned building plans specifications as per the
rules of Noida Building Rules. The allottee shall start the
construction work of the ground floor only after getting the
inspection of the basement done upon completion of the work
of basement from building section department, Noida.
Otherwise sanctioned map deemed to be cancelled.”
(emphasis supplied)
A.5 Third Revised Plan
20 On 20 February 2010, a notification was issued by the State of Uttar Pradesh
enabling old allotees to purchase FAR of up to 2.75 and, as a consequence, the limit
of a maximum purchasable FAR of thirty-three per cent of the existing base FAR
was removed. The notification contemplated that “the purchasable FAR shall be
PART A
13
allowed up to the maximum limit of applicable FAR”. The notification also amended
the NBR 2006, which expressly provided that:
“Purchasable FAR is an enabling provision. It shall not be
allowed to any allottee as a matter of right.”
21 On 19 March 2010, the UP Apartments Act 2010 came into force. Section
4(4) and Section 5 of this Act provide for the consent of the owners of flats before
any change in the sanctioned plans is effected and also envisage that the
percentage of undivided common interest of the owners of the flats cannot be
changed without their consent.
22 On 30 November 2010, the New Okhla Industrial Development Area Building
Regulations 201018 came into force. Regulation 24.2.1.(6) contains the following
stipulations:
“(6). Distance between two adjacent building blocks
Distance between two adjacent building blocks shall be
minimum 6 mtrs. to 16 mtrs, depending on the height of
blocks. For building height up to 18 mts., the spacing shall be
increased by 1 metre for every addition of 3 mtrs. as per
National Building Code 2005. If the blocks have dead-end
sides facing each other, than the spacing shall be maximum 9
mtrs. instead of 16 mtrs. Moreover, the allottee may provide
or propose more than 16 mtrs space between two blocks.”
18 “NBR 2010”
PART A
14
23 On 18 August 2011, the CFO granted a temporary NOC in respect of T-16
and T-17, for a height of 121.5 mtrs. with proposed ground and thirty-eight floors
(G+38). It was noted that once the buildings were constructed and proper fire safety
equipment was installed, they would be inspected in order to assess whether a
permanent NOC should be granted.
24 On 25 October 2011, in view of the notification dated 20 February 2010, the
appellant purchased an additional FAR at a cost of Rs 15 crores, so as to enhance
the available FAR from 1.995 to 2.75 (1,50,753.652 sq. mtrs.). On the same date,
NOIDA issued a letter to the appellant in relation to the purchase of the FAR,
imposing several requirements, including compliance with the provisions of the UP
Apartments Act 2010.
25 On 2 March 2012, the third revised plan was sanctioned by NOIDA for
Emerald Court. Through this sanction, the height of T-16 and T-17 was permitted to
be raised from 24 floors to 40 floors (i.e., G+40), resulting in the building’s height
being 121 mtrs. Further, T-16 and T-17 would also consist, inter alia, of two
basements and open space for parking beneath the towers. The third revised plan
also contained a requirement of compliance with the UP Apartments Act 2010, along
with similar requirements which were present in the second revised plan.
A.6 Complaints against the Revised Plans
26 On 9 March 2012, the appellant addressed a communication to the first
respondent intimating that the flat purchasers of T-16 and T-17, which were under
PART A
15
construction, would have altogether separate entry-exit, amenities and
infrastructure.
27 On 29 March 2012, the office of the CFO, on the basis of a complaint by the
first respondent, issued a notice to the appellant in regard to certain deficiencies and
violations in complying with fire safety requirements.
28 On 24 April 2012, the CFO, on the basis of another complaint by the first
respondent, addressed a communication to NOIDA in regards the violation of the
minimum distance between T-1 and T-17. The letter, inter alia, states:
“When record was perused in respect of the above, it was
found that:
[…]
2. There should be a minimum distance of half of the height of
building in between two building blocks as per Clause No.
33.2.3. of Building Construction Regulations, 2006 and there
should be a distance of 16 meters in between the buildings
whose height is more than 50 meters as per Noida
Regulations, 2010.
3. There should be a distance of 16 meter in between two
buildings situated side by side as per National building Code
of India – 2005.
Therefore, you are requested that in the light of above kindly
inform that license was granted for construction of building
after providing relaxation to the building in question in Special
Category or construction is being carried out by the
concerned is contrary to the standards.”
29 On 3 May 2012 and 22 May 2012, the first respondent filed an RTI application
with NOIDA for obtaining the sanctioned plans in relation to Plot No 4 of Sector 93A.
Though under the terms of the sanctioned plans the appellant was required to
PART A
16
display the sanctioned map at its site, NOIDA still wrote to the appellant to verify
whether the sanctioned plans and maps could be made available to the first
respondent. The appellant in response refused to grant its consent to release
sanctioned plans and maps to the first respondent. Hence, NOIDA refused to
provide the sanctioned plans to the first respondent.
30 On 19 June 2012, a show cause notice was issued by NOIDA to the appellant
stating that: (i) the construction was not in accordance with the third revised plan
since, inter alia, T-1 and T-16/17 were not joined by a space frame; and (ii) a copy of
the plan had not been exhibited at the site office. The appellant replied to the show
cause notice on 26 June 2012 stating that T-16 and T-17 were still under
construction and the space frame would be built at the time of construction.
31 On 26 June 2012, NOIDA issued a completion certificate to the appellant in
respect of Tower-15 (G+11).
32 On 28 June 2012, the first respondent addressed a communication to NOIDA
complaining of violations and misrepresentations made to the owners by the
appellant, and sought cancellation of the layout plan of the two new towers, T-16
and T-17. The first respondent followed up its earlier communication with letters
dated 9 and 29 August 2012 demanding information, and intimating that the
construction was being carried out by the appellant in violation of the norms.
PART A
17
A.7 Proceedings before the Allahabad High Court
33 On 10 December 2012, the first respondent filed a writ petition under Article
226 of the Constitution before the High Court seeking inter alia the following reliefs:
“i. Issue a writ, order or direction quashing the revised plan
approved by respondent 2 for construction of new towers
namely Tower 'APEX' and 'CEYANE' in plot no. 4, Sector 93-
A, and issue further directions for demolishing of aforesaid
towers, the approval and construction being in complete
violation of provisions of U.P. Apartments Act of 2010.
ii. Issue a writ, order or direction directing the Respondent 2
not to sanction amendments to any further building plans in
respect of the Group Housing Society being developed by
respondent 5 without obtaining consent of all the residents.
iii. Issue a writ, order or direction quashing the permission
granted to respondent 5 to link Tower T-1 and T 'APEX' /
'CEYANCE' through space frame.
iv. Issue a writ, order or direction directing respondents 2 and
3 to ensure that fire safety equipment and infrastructure is
installed at the expenses of respondent 5 within a specified
period.
v. Issue a writ, order or direction directing respondent 2 to
demolish illegal construction made in the basement and
setback area as per notice dated 19.06.2012 and 17.07.2012.
vi. Issue a writ or direction directing respondent no. 2and 5 to
provide car parking spaces (both aboveground and in the
basement) as per the provisions of the NBC 2005 to all the
legal allottees/residents of Supertech Emerald Court
Complex, plot 4, Section 93-A NOIDA.”
34 The first respondent only pressed reliefs i and iii, seeking a direction to quash
the revised plan which approved the construction of T-16 and T-17, and to demolish
them. The first respondent also sought the quashing of the permission granted to
link T-1 and T-16/T-17 though a space frame. During the pendency of the writ
PART A
18
proceedings, in pursuance of a specific order of the High Court, the RWA was
provided with the sanctioned maps together with related information and documents
in respect of the construction at the site. Pleadings were subsequently exchanged
between the parties.
35 The appellant filed a counter affidavit on 27 January 2013 submitting that:
(i) The first respondent is not recognised by the appellant under the UP
Apartments Act 2010;
(ii) The first respondent should have first approached the Chief Executive Officer
of NOIDA, who is the competent authority under the UP Apartments Act 2010,
and then the State Government, before approaching the High Court under the
writ jurisdiction;
(iii)Construction of T-16 and T-17 was approved on 26 November 2009, but the
writ petition had been filed after three years in December 2012, when the
building is in an advanced stage of construction. Hence, the writ petition is
barred by delay and laches; and
(iv)T-16 and T-17 were sanctioned in 2009 under the NBR 2006. The final
sanction given on 2 March 2012 only increased the height of the towers from
twenty-four floors to forty floors, after the appellant purchased the additional
FAR. Under the NBR 2006, there is no provision with regard to the minimum
distance between two “building blocks”. Since the NBR 2006 did not
incorporate the NBC 2005, the mandatory requirement of 16 mtrs. between
two building blocks for buildings higher than 55 mtrs. need not be followed.
PART A
19
The distance requirement between two building blocks was only mandated by
NBR 2010, which is not applicable since the initial sanction for T-16 and T-17
was given under NBR 2006.
36 NOIDA in its counter affidavit dated 7 February 2013 stated that:
(i) It allotted the plot to the appellant by complying with the NBR 2010. The
sanction was also given with the specific condition that the UP Apartments
Act 2010 must be complied with;
(ii) Plot No 4 is not divided into two projects. It is unified and belongs to a single
project; and
(iii) The permission for the construction of a space frame connecting T-1 with T16/T-17 was granted only after the design was approved by IIT Roorkee.
37 The High Court allowed the writ petition on 11 April 2014 and directed the
demolition of T-16 and T-17, with the expenses of the demolition being borne by the
appellant. It further directed the Competent Authority to grant sanction for the
prosecution of NOIDA’s officials as required under the UPUD Act 1973, within a
period of three months. The High Court also directed the appellant to refund the
consideration received from flat purchasers who had booked apartments in T-16 and
T-17, with fourteen per cent interest compounded annually. While allowing the writ
petition, the High Court made the following observations:
(i) The first respondent had the locus to institute proceedings under Article 226
of the Constitution. The flats were handed over to the purchasers by
PART A
20
September 2009. The RWA was formed and registered with the Registrar of
Societies in the same year. The Model Bye-Laws under the UP Apartments
Act 2010 were notified by the Government on 16 November 2011. However,
the Deputy Registrar Firms, Societies and Chits, Meerut, Uttar Pradesh
issued a letter on 14 December 2012 stating that pending instructions from
the Registrar, no decision could be taken in respect of the Model Bye-Laws
and registration. The Registrar by a circular dated 5 December 2013 issued
instructions for registration of the first respondent under the UP Apartments
Act 2010. On 20 October 2013, the first respondent by its resolution adopted
the Model Bye-Laws and conducted its elections. Further, in any case, the
appellant had recognized the first respondent since its inception and had
corresponded with it continuously. The appellant had never raised objections
on its competence to represent the flat purchasers. The grant of sanction by
NOIDA in violation of the relevant building regulations affects the rights of
every apartment owner, who is represented through the first respondent.
Hence, the first respondent is a ‘person aggrieved’ and was entitled to initiate
the writ proceedings;
(ii) The first respondent under Article 226 was not barred by the available remedy
of approaching either the CFO, NOIDA under the UP Apartments Act 2010 or
the State under Section 27 of the UPIAD Act 1976. Though the first
respondent raised its grievance before NOIDA, no notices were issued and
there was no follow up. Only if NOIDA had issued an order, could the first
respondent have approached the State Government under Section 27 of the
PART A
21
UPIAD Act 1976. Thus, there was no other alternative remedy that was
available to first respondent but to initiate writ proceedings;
(iii) The appellant must have submitted a declaration in the office of the
competent authority with regard to the construction of the building under the
UP Apartments Act 2010. Rule 4 of the Uttar Pradesh Apartment (Promotion
of Construction, Ownership and Maintenance) Rules 2011 states that when
the competent authority receives an application for amendment of the
declaration, it shall issue a written notice to the association of the building
owners and an order shall be passed by the competent authority only after the
association is given the opportunity of being heard. Since no such notice was
given to the association, it is an ‘aggrieved person’ and thus has the locus to
initiate writ proceedings;
(iv) The original building plan was sanctioned when NBR 2006 was in force.
However, the approval for purchase of additional FAR was made in 2011. It is
a settled principle of law that the rules and regulations applicable on the date
of the sanction would determine the rights of the parties. The sanction given
on 2 March 2012 further imposed a condition of applicability of the UP
Apartments Act 2010. Therefore, both the NBR 2010 (and NBC 2005, since
NBR 2010 makes it applicable) and the UP Apartments Act 2010 shall be
applicable;
(v) The contention of appellant that the project was in two phases is not borne
out from the record since NOIDA has permitted the purchase of additional
FAR and granted the subsequent sanction treating the project as a single
PART A
22
project. The plans submitted and sanctioned were for a single project, and an
attempt has been made by the appellant to mislead the court;
(vi) Regulation 24.2.1(6) of the NBR 2010 states that for buildings up to the height
of 18 mtrs., the spacing between two adjacent building blocks shall be 6 mtrs.
and the spacing shall be increased by 1 mtr. for every 3 mtrs. above 18 mtrs.,
but subject to a maximum distance of 16 mtrs. Para 8.2.3.1 of the NBC 2005
states that for buildings higher than 55 mtrs., 16 mtrs. open space must be left
in the sides and rear.. Since the height of T-17 is 121 mtrs., the distance
between the building blocks must at least be 16 mtrs. However, the distance
is only 9 mtrs. and is deficient by 7 mtrs.;
(vii) The appellant, in collusion with NOIDA, obtained sanctions for the layout map
in violation of the mandatory requirement for space to be maintained between
building blocks and clear space;
(viii) The provisions of the UP Fire Prevention and Fire Safety Act 200519 were
required to be complied with, according to which the minimum distance of 7.5
mtrs. between building blocks and a clear space must be provided, which has
been violated in the third revised plan of 2012;
(ix) The submission of the appellant that the expression ‘building blocks’ having
not been defined in the NBR 2010, would mean the entire set of buildings on
Plot No 4 is contrary to the NBR 2006 and NBR 2010. The sanctioned plans
show that the appellant got the layout approved, consisting of separate
19 “Fire Safety Act”
PART A
23
blocks. The nomenclature of the blocks was subsequently changed in each
successive plan, and finally the buildings were numbered as T-1 to T-17. The
sanctioned plans clearly show that T-1 and T-16/17 are separate building
blocks; and
(x) The plan sanctioned by NOIDA was contrary to: (a) the building regulations;
(b) the mandatory distance between building blocks; and (c) the movement
space required, as a result of which the rights of the apartment owners and
the safety of their apartment blocks have been seriously affected.
A.8 Proceedings before this Court
38 The appellant filed a Special Leave Petition under Article 136 of the
Constitution on 28 April 2014 assailing the judgment of the High Court. On 5 May
2014, this Court directed the maintenance of status quo in respect of T-16 and T-17,
directing that neither the builder nor the purchaser shall alienate the property or
create third party rights. During the course of the hearings on 19 July 2016 and 27
July 2016, the appellant and NOIDA submitted that the Court may have the view of
an expert agency on the issue and engage an expert for this purpose. On the
submission of the Additional Solicitor General, the National Buildings Construction
Corporation Limited20, a government owned enterprise, was appointed to examine
various facts in relation to the dispute, particularly those having a bearing on
whether the two towers (T-1 and T-17) have dead-end sides facing each other. By
its report dated 13 October 2016, the NBCC concluded that the two towers are not
20 “NBCC”
PART A
24
compliant with Regulation 24.2.1.6 of the NBR 2010. Apart from the report which
has been submitted by the NBCC, the first respondent had commissioned IIT Delhi
and IIT Roorkee to report on the disputed issue of ‘dead ends’. Reports by them
have been placed on the record.
39 By its interim orders dated 6 September 2016 and 11 January 2017, this
Court directed that a group of applicants be given ten per cent per month towards
return of investment21. On 22 September 2017, this Court directed Mr Gaurav
Agarwal, Amicus Curiae, to create a portal link to coordinate with the appellant and
the flat purchasers on issues relating to refund. Further, this Court directed that the
principal amount along with interest of fourteen per cent shall be provided to the flat
purchasers who have opted not to wait for the decision of this Court in the present
Special Leave Petition.
40 By an order dated 30 July 2018, this Court with the assistance of the Amicus
Curiae classified the home buyers into the following groups, based on the refund
option chosen by them:
(i) Refund of principal amount along with twelve per cent simple interest per
annum (one hundred and one home buyers);
(ii) Home buyers who still insist on getting interest at the rate of fourteen per cent
(twenty-four home buyers) - since a substantial number of home purchasers
21 “ROI”
PART B
25
have agreed to twelve per cent interest, these twenty-four purchasers were
also directed to accept the twelve per cent interest rate;
(iii) Home buyers through the Subvention Scheme – in such cases, the EMIs shall
be paid by the appellant until the possession is handed over; and
(iv) Disputed cases - Mr Sanjeev Agrawal and Ms Rashmi Arora have paid Rs
38,51,009 and Rs 17,43,162 respectively by cheque. The said amount shall
be refunded with a simple interest at twelve per cent per annum.
B Submissions by Counsel
41 Mr Vikas Singh, learned Senior Counsel appearing on behalf of the appellant
urged the following submissions:
(i) The sanction and construction of T-16 and T-17 is not violative of the distance
rule under NBR 2010:
a. NBR 2010 does not apply to T-16 and T-17, since they were first
sanctioned in the second revised plan issued under the NBR 2006. Under
the NBR 2006, the distance provision in Regulation 33.2.3(i) was not
mandatory and it was open to the CEO to stipulate the distance
requirement depending upon the exigencies of a lay out plan. In any case,
the Regulation applies to the distance between two building blocks and
does not govern the distance between the T-1 and T-17, which form a part
of the same block. Further, if this provision was mandatorily applied, then it
would also affect the first revised plan, in which the heights of the fifteen
PART B
26
other towers is 37.5 mtrs. while the distance with the adjacent blocks was
less than half the height, i.e., less than 18.75 mtrs.;
b. Even if NBR 2010 was to apply, T-16 and T-17 are part of the same
building block consisting of T-1, Tower-2, Tower-3 and T-17, which is
connected by a space frame to T-1. Hence, Regulation 24.1.2(6) of the
NBR 2010, which provides for a distance to be maintained between
“adjacent building blocks” (“Bhawan Samuh”/cluster of buildings), is not
applicable in respect of the distance between T-17 and T-1;
c. The concept of a building block has been explained in a note submitted by
NOIDA to the High Court. While using the FAR, the only requirement is to
maintain a certain percentage as an open/green area. Instead of scattering
the buildings over the total project area, group housing projects can
envisage adjacent towers or even a block of towers so as to ensure a
large open green space rather than scattered small spaces all over the
project;
d. In the alternative, even if the they are not part of the same building block,
T-17 being a “tower like structure”, para 8.2.3.2 of the NBC 2005 is
attracted in terms of Regulation 24.2.1(6). In accordance with para 8.2.3.2,
the minimum distance for buildings of a height of less than 37.5 mtrs. is 9
mtrs., while for buildings of a greater height, it is 12 mtrs. Further, in
accordance with para 8.2.3.2(d), the deficiency of this distance at the
ground level can be made good at the upper levels. Hence, maintaining a
PART B
27
minimum distance of 16 mtrs. between “tower like structures” is not an
inviolable requirement;
e. In the present case, the minimum distance between T-1 and T-17 varies
from 9.88 mtrs (at the ground level) to 25.75 mtrs (at the upper level),
since the total height of T-1 is 27.61 mtrs. while that of T-17 is 84.5 mtrs.
As such, it is in compliance with NBC 2005; and
f. The Model Bye-Laws 2016 issued by the Ministry of Urban Development,
Government of India prescribe a 9 mtrs. space around any building
irrespective of the height beyond 40 mtrs.;
(ii) The sanction to construct T-16 and T-17 is not violative of the UP Apartments
Act 2010:
a. T-16 and T-17 were sanctioned on 26 November 2009, and hence the
requirement of prior consent did not arise, since the Act was not in force
then;
b. The flat owners of T-1 to T-15 who already had possession of their flats
would not be “intended purchasers” under the proviso to Section 4(4) of
UP Apartments Act 2010, and their consent was not required for the
construction of additional floors in T-16 and T-17;
c. The consent of all flat owners would be impractical, and at best the
consent of the RWA would suffice. On 2 March 2012, when the third
revised plan was sanctioned, the RWA was not functional and it was only
PART B
28
on 20 October 2013 that the RWA adopted the Model Bye-Laws under the
UP Apartments Act 2010;
d. There has been no violation of the common area facilities of the flat
owners of T-1 to T-15 by the creation of T-16 and T-17, since they have
been planned with separate entries and exit facilities together with
infrastructure; and
e. A majority of the flat owners of T-1 to T-15 was fully aware of the sanction
to construct T-16 and T-17 since: (i) 245 flats were booked till the first
revised plan in 2006; (ii) between 2006 and until the second revised plan
in 2009, 141 flats were booked; (iii) after the second revised plan and until
the third revised plan in 2012, 114 flats were booked; and (iv) after the
third revised plan in 2012 till 2 August 2021, 159 flats have been
purchased;
(iii) There has been no violation of fire safety norms:
a. A provisional Fire NOC was received on 11 September 2009, prior to the
sanction on 26 November 2009. The fire department thereafter granted
another temporary NOC for T-16 and T-17 on 18 August 2012, prior to the
sanction dated 2 March 2012; and
b. Under NBR 1986 and NBR 2006, buildings were required to be compliant
with fire safety norms prescribed in Part-IV of the NBC 2005. Para 4.6(b)
of the NBC 2005 provides that for high rise buildings, open spaces on all
sides up to a width of 6 mtrs. shall be available for free movement of fire
PART B
29
tenders. In the present case, there is a clear space of 9 mtrs. between T-1
and T-17, which allows a free movement of fire tenders;
(iv) The Uttar Pradesh Ownership of Flats Act 197522 is not applicable:
a. Under Section 2, the Act applies only to properties, the owners of which
submit to the provisions of the Act by executing a declaration. As such, the
Act does not automatically apply to all properties and none of the flat
owners have made executed any such declaration presently;
b. Clause II(h) of the lease deed dated 26 March 2005 deals with
maintenance, and cannot be construed to incorporate the application of
the UP 1975 Act; and
c. If the contention of the first respondent is accepted, the changes made by
the first revised plan in T-1 to T-15, involving an increase in the height of
all towers from nine to eleven floors, would also to be illegal;
(v) There is no green area violation in the sanctioning of T-16 and T-17:
a. A triangular green space in the first revised plan was planned for the newly
proposed T-16 (G+11) and shopping complex (G+1). This area was over
and above the mandatory green area (soft landscape) required to be
maintained on the plots under the NBR 2006;
b. The central green area was sanctioned in the original plan of 2005. The
required green area under Regulation 38 of the NBR 2006 was twenty-five
per cent of the open area, which would be 11,538,02 sq. mtrs. whereas
22 “UP 1975 Act”
PART B
30
the appellant had provided a green area of 12,064.91 sq. mtrs. in the form
of a central park;
c. T-1 was not sold on the promise of a green space area in front of it and
none of the buyers were charged preferential location charges; and
d. Only eleven flats in T-1, out of a total of 44, were booked after the
sanctioning of first revised plan and before the second revised plan. Out of
these eleven, only seven flats were facing towards T-17. Even in these
seven, there were no windows/balconies facing T-17, but only small
bathroom windows;
(vi) The sanction of T-16 and T-17 is based on a valid certificate as regards the
structural design of the towers;
(vii) The appellant has not collected the entire lease rent payable to NOIDA only
from the flat owners of T-1 to T-15. It has only collected around Rs 7.5 crores,
while it itself has paid around Rs 14 crores; and
(viii) The order for demolition of T-16 and T-17 is liable to be set aside on ground
of equity:
a. The construction was carried out with the sanction of the authorities;
b. 600 persons had purchased flats in these towers;
c. Construction began in December of 2009, and third-party rights in favour
of the purchasers have been crystalized;
d. The petition was filed before the High Court in December 2012; and
PART B
31
e. 28 floors in T-17 and 26 floors in T-16 were constructed as on 20
December 2013 when arguments were concluded before the High Court,
and by the time that the judgment was delivered, 32 floors had been
constructed.
Hence, the order of demolition would be harsh and inequitable.
42 Supplementing the submissions of Mr Vikas Singh, Mr Ravindra Kumar,
learned Counsel appearing on behalf of NOIDA, made the following submissions:
(i) Para 8.2.3.2 of NBC 2005 provides that for buildings of heights between 24
mtrs. to 37.5 mtrs. with one setback, the open space at the ground level shall
not be less than 9 mtrs. Since the height of the existing tower Aster-2 (T-1) is
less than 37.5 mtrs., the minimum space required between this tower and T17 is only 9 mtrs. Further, the deficiency of open space can be made good
through set-backs at the upper level. However, since the height of T-1 is not
proposed to be increased and the tower is open from all three sides, this
requirement need not be fulfilled;
(ii) The various NOIDA Building Regulations have not been violated as they do
not prescribe the minimum distance between two towers. It only refers to the
distance between ‘building blocks’, with reference to the NBC 2005;
(iii) If building blocks have dead end sides facing each other, then the space
between two building blocks shall be a maximum of 9 mtrs. as per the NBR
2010. Similar provisions are found in other building bye-laws such as Delhi
PART B
32
Building Bye Laws, Bhubaneshwar Development Authority Building Byelaws,
and Model Building Byelaws prepared by the Ministry of Urban Development;
(iv) The Fire Safety Act has also been adhered to, as it requires a minimum
distance of 6 mtrs. between two towers to provide space for movement of fire
tenders;
(v) The construction of the buildings was not stayed by the High Court, which has
now jeopardized the rights of third-parties, who will now be aggrieved by the
order of demolition;
(vi) At the time of sanction of the second revised plan dated 26 November 2009,
the UP Apartments Act 2010 had not been enacted. With respect to grant of
sanction to the third revised plan, the power to sanction the plans or revisions
vests with NOIDA and is not curtailed by the UP Apartments Act 2010;
(vii) UP Apartments Act 2010 does not mandate the taking of any consent or NOC
from the RWA prior to sanction of plans. In spite of this, an obligation was
placed on the appellant to abide by the provisions of UP Apartments Act
2010, while sanctioning the third revised plan dated 2 March 2012;
(viii) While sanctioning the third revised plan, there was no change in the ground
coverage area of T-16 and T-17 and only their proposed heights were
increased; and
(ix) There is no factual foundation to conclude that there had been any collusion
between the appellant and NOIDA.
PART B
33
43 Mr Jayant Bhushan, learned Senior Counsel appearing on behalf of RWA
urged that the members of the RWA purchased their flats after being shown a layout
which included a limited number of flats and gardens, including a garden in front of
T-1. Many of the allottees are retired persons who have suffered as a result of the
unilateral changes made by the appellant, which resulted in an increase in the
number of flats from 689 to 1573. The garden area in front of T-1 has been
completely removed and instead of a complex of 11 storeyed buildings, two long and
tall structures have been sanctioned without the consent of the existing allottees
obliterating their right to light, air, view and garden area, thereby endangering their
safety. Mr Bhushan submitted that:
(i) The sanctions of 2009 and 2012 are in violation of the minimum distance
criteria required to be maintained between two buildings. Under Regulation
32.3.1(i) of the NBR 2006, the distance required is half the height of the tallest
building. The tallest building, T-17, under the second revised plan of 2009 is
73 mtrs. and hence, the minimum distance of 36.5 mtrs. was required
between T-1 and T-17. Even the existing T-1 is of 37 mtrs. height and
therefore, even a building smaller than T-1 could come up only at a distance
of at least 18.5 mtrs from T-1;
(ii) Regulation 24.2.1(6) of the NBR 2010 requires a minimum distance of 16
mtrs. between T-1 and T-17, as opposed to 9 mtrs. at the side;
(iii) Under para 8.2.3.1 of NBC 2005, the distance required between buildings
would be 16 mtrs. plus ten per cent of the building length minus 4 mtrs. The
PART B
34
length of the proposed tower is 84.5 mtrs., and hence the distance required
would be (16 + (10 per cent of 84.5) – 4), which is equal to 20.45 mtrs.;
(iv) The requirement of complying with NBC 2005 is prescribed by NBR 2010 and
the NOC issued by the CFO in 2009. In this regard, on 24 April 2012, the
CFO inquired from NOIDA how the new buildings were sanctioned in violation
of the distance criteria prescribed in NBR 2006 and 2010, and NBC 2005,
which was not responded to by NOIDA;
(v) NBCC, which was appointed by this Court at the request of the appellant, has
stated in its report that the distance requirement has been violated;
(vi) In response to the argument of the appellant that T-1, T-16 and T-17 form part
of one building block, obviating the requirement of minimum distance, it was
submitted that:
a. NBC 2005 refers to the distance between buildings and not building
blocks;
b. The expression “building block” though used in NBR 2006 and 2010, has
not been defined in either of the regulations. The rationale for the distance
between building blocks is to ensure fire safety evacuation, light and
ventilation. It cannot be left to the builder to designate groups of buildings
as one building block since the purpose of maintaining the minimum
distance would be seriously compromised. The expression must take its
colour from NBC 2005 and every building must be a building block; and
c. The reports submitted by the IITs of Delhi and Roorkee specify functional
requirements of distance between buildings including:
PART B
35
i. fire separation to avoid transmission between buildings;
ii. safe escape and rescue during fire;
iii. ventilation; and
iv. daylight access.
These requirements have been severely compromised due to the lack of
the minimum distance between T-1 and T-17;
d. Regulation 24.2.1(6) of NBR 2010 refers to NBC 2005 as the source of the
distance requirement. The interpretation of the phrase ‘building block’ in
NBR 2010 and 2006 must be consistent with NBC 2005;
e. The first revised plan of 2006 shows that each building was intended to be
a separate block;
f. The initial argument of the appellant was that T-1 and T-17 are on
separate plots and were never intended as the same block. Subsequently,
the appellant claimed that they were constructed in separate phases and
were to have separate facilities. Later, it introduced a false and
unapproved map showing T-1, T-2, T-3, T-16 and T-17 as one block;
g. The affidavit of the appellant dated 4 August 2021 before this Court states
that T-16 and T-17 will have separate facilities including entry and exit;
h. T-1, T-16 and the shopping complex as sanctioned in the first revised plan
of 2006 were distanced and were different blocks altogether;
PART B
36
i. The construction of T-1 was completed in April 2008 and possession was
granted to allottees. It was not legally possible to construct T-17 in 2008
since it was first sanctioned only in November 2009;
j. The road between T-1 and T-17 is the main road for the society and leads
into the basement and parking;
k. The basement of T-1 has one level while T-17 has two levels;
l. The foundation of T-1 is made to bear a load of only eleven floors. The
appellant has claimed that though the foundation of T-17 was laid in 2009,
when only twenty-four floors were sanctioned, it was meant to bear a load
of forty floors, which were sanctioned only in 2012;
m. The connection of two building blocks with the space frame would not
make it one building block; and
n. The appellant itself was unconvinced by the building block argument and
raised the ‘dead end’ side issue, which led to the appointment of NBCC by
this Court to verify the facts. After a negative report from NBCC, the
appellant has once again fallen back on the building block argument to
assert that blocks can be defined at the discretion of the developer;
(vii) In response to the submission of the appellant that the buildings are “tower
like structures” under the NBC 2005 and thus, meet the minimum distance
mandated, it was submitted that:
PART B
37
a. Requirements of NBR 2006 and 2010 and NBC 2005 are independent and
hence, the defence of a tower like structure under the NBC 2005 cannot
cure violations of the NBRs;
b. T-17 does not have any set-backs and has the same width throughout;
c. At least 12 mtrs. distance is required at the ground level even for tower like
structures; and
d. The deficiency of the mandated open space of 16 mtrs. under the NBC
2005 in tower-like structures can be cured by set-backs on upper levels.
However, the distance of 12 mtrs. at the ground level is still mandatory;
(viii) Possession of flats in T-1 was given to purchasers in 2008. The second and
third revised plans of 2009 and 2012 respectively proposed a space frame
connecting T-1 and T-17 when the residents had already started living in T-1.
This is illegal and a safety hazard;
(ix) Under the lease, the undivided interest in common areas stood transferred to
the respective allottees. The owners of the existing flats had paid the entire
lease amount and more. While the appellant paid Rs 13 crores as onetime
lease rent, the buyers of existing flats (other than those in T-16 and T-17)
were charged over Rs 16 crores;
(x) Consent of flat owners was required under UP Apartments Act 2010 before
an alteration in the sanctioned plan:
a. Sections 4(4) and Section 5(3) of the UP Apartments Act 2010 requires
the consent of all allottees before a change in the sanctioned
PART B
38
plan/undivided interest in the common area is made. The removal of the
green area reduced the common areas and, with an increase in the flats
from 689 to 1573, the proportionate undivided interest in the common
areas has been reduced substantially;
b. The UP Apartments Act 2010 is applicable irrespective of whether or not a
society is formed. The rights are vested with the apartment owners and not
the association; and
c. Gardens as well as land are included in the definition of common areas
over which all residents have rights;
(xi) Consent of flat owners ought to have been obtained before obtaining an
alteration of the sanctioned plan, under UP 1975 Act:
a. Under Sections 5(2) and 5(3), undivided interest cannot be altered without
the consent of all owners of flats;
b. Clause II(h) of the lease deed stipulates the applicability of the UP 1975
Act. This is not confined only to maintenance. The tripartite sub-lease
between NOIDA, the appellant and the allotees also mandates the
applicability of the UP 1975 Act; and
c. The appellant was responsible to ensure that the declaration under the UP
1975 Act was made. It cannot take advantage of its own wrong in failing to
submit a declaration;
(xii) The appellant and NOIDA have colluded to by-pass the Building Regulations:
PART B
39
a. Despite the revised plans violating the distance criteria, NOIDA granted
sanction to the said revisions. The plans were not cancelled despite
repeated reminders from the RWA;
b. Despite the letter of the CFO dated 24 April 2012 highlighting the violation
of the distance criteria, NOIDA did not take any action;
c. The appellant was aware in advance that its plan would be sanctioned in
the future, and hence built a stronger foundation in 2009 to support forty
storey buildings for T-16 and T-17, which received sanction only in 2012;
d. Under the terms of approval, the sanctioned plan had to be kept at the site
for display. In spite of this, there was a failure of the appellant to display
the plans. When a request was made by the RWA to NOIDA to provide a
copy of the plans, NOIDA asked the appellant whether it could supply the
plans. Upon the refusal by the appellant, NOIDA declined to provide the
plans; and
e. No action was taken by NOIDA after issuing a show cause notice for
violation of the minimum distance requirement to the appellant based on a
complaint by the flat owners;
(xiii) No part of the second revised plan of 2009 can be saved as it is in violation of
the distance criteria contained in the NBR 2006, and is also contrary to the
UP 1975 Act;
(xiv) The appellant cannot make any further constructions without the consent of
the existing flat owners under the UP Apartments Act 2010 and the Real
Estate Regulation and Development Act 2016;
PART C
40
(xv) There is no equity in favour of the flat buyers in the new buildings (T-16 and
T-17) who have decided to retain their flats, particularly when this Court had
through several orders granted an opportunity to the purchasers to seek
refund;
(xvi) T-16 and T-17 can safely be demolished; and
(xvii) False and misleading statements have been made by the appellant in the
course of its pleadings before the High Court and this Court.
C Prefatory observations
44 At the outset, it must be noted that:
(i) The area which was originally leased to the appellant admeasured 48,263 sq.
mtrs.; and
(ii) As a result of the supplementary lease, the area stood increased to 54,816
sq. mtrs.
In order to bring clarity to the issues raised, the dates of sanction and details of the
construction are tabulated below:
Title Date of Sanction Buildings Details
Original Plan 20 June 2005 Towers 1-14 G+9 floors
First Revised Plan 29 December 2006
Towers 1-15
G+11 floors, height of each
tower is 37 mtrs.
Tower 16
T-16 was to comprise of a
cluster of wings comprising
PART C
41
of 1 (G+11 floors) and 3
(G+4 floors) with a height of
37 mtrs.
Shopping Complex G+1 floor
Second Revised Plan 26 November 2009
Towers 1-15
G+11 floors, height of each
tower is 37 mtrs.
Towers 16-17∗
G+24 floors, height of each
tower increased to 73 mtrs.
Third Revised Plan 2 March 2012
Towers 1-15
G+11 floors, height of each
tower is 37 mtrs.
Towers 16-17φ
G+40 floors, height of each
tower is increased to 121
mtrs.
The plan for the construction was originally sanctioned on 20 June 2005. Thereafter,
three revisions were sanctioned on 29 December 2006, 26 November 2009 and 2
March 2012.
45 The sanctioning of the revised plans and the construction of T- 16 and T- 17
have been challenged on the ground of a violation of:
(i) NBR 2006;
∗ The earlier G+1 shopping complex is numbered as T-16, while the original T-16 is numbered as T-17. Further, T-1
and T-17 were to be connected by a space frame at the upper level.
φ As per the third revised plan dated 2 March 2012, the proposed floors for T-16 and T-17 were G+40. We note
however, that in the details of sanctioned plans submitted by Mr Vikas Singh, learned Senior Counsel, the number of
floors envisaged for T-17 were G+39 and T-16 were G+40. Further, as per the provisional Fire NOC dated 18 August
2011, the proposed construction for T-16 and T-17 was for G+38 floors.
PART C
42
(ii) NBR 2010;
(iii)NBC 2005;
(iv)UP 1975 Act;
(v) UP Apartments Act 2010; and
(vi)Fire safety norms.
The appellant disputes the applicability of the UP 1975 Act. This will be considered
in the course of the judgment.
46 It becomes necessary to clear the ground in regard to the reliefs which were
sought before the High Court. The reliefs sought before the High Court in the petition
were for:
(i) Quashing the revised plan for the construction of T-16 (Ceyane) and T-17
(Apex) and the demolition of the structures constructed pursuant to the plan;
(ii) Directing NOIDA to not sanction any further building plans in respect of
Emerald Court without obtaining the consent of all residents;
(iii) Quashing the permission granted to link T-1 with T-16/ T-17;
(iv) Directing the installation of fire safety equipment and infrastructure;
(v) Directing the demolition of the illegal construction in the basement and the
setback area; and
(vi) Directing NOIDA and the appellant to provide car parking spaces in
accordance with NBC 2005.
PART C
43
Of the above reliefs, the High Court recorded that only prayers (i) and (iii) were
pressed.
47 The above narration establishes that 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. As the tabulation set out above indicates, 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 T17 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.
48 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
PART D
44
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.
D Violation of distance requirement under Building Regulations
49 The first issue we shall address 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.
Original sanction dated 20 June 2005
50 When the plan was originally sanctioned on 20 June 2005, the NBR 2006 was
yet to come into force. The sanction of 20 June 2005 was under the regime of the
NBR 1986. NBR 1986 envisaged a 15 mtrs. set back from the front and 9 mtrs. on
all sides. Since the original plan did not envisage construction of T-16 and T-17, the
said plan is not under challenge for violation of the relevant building regulations.
First revised sanction dated 29 December 2006
51 NBR 2006 came into force on 16 December 2006. The sanctioned plan for
the project was first revised on 29 December 2006, and it covered a total area of
54,819 sq. mtrs., leased to the appellant under the Lease Deed and the
PART D
45
Supplementary Lease Deed. The first revised plan provided for the construction of
two additional towers (T-15 and T-16) and one shopping complex (G+1 floors). All
16 towers were to comprise of G+11 floors and were to be 37 mtrs. in height.
52 The first revised plan was governed by the NBR 2006. Regulation 33 provided
for permissible FAR, ground coverage and height of buildings. Regulation 33.2 dealt
with the group housing. The table appended to it is as follows:
“33.2 Group Housing
GROUP HOUSING
Max Ground
Coverage
FAR Height
1 Coverage 30 200 No limit
2 Density As mentioned in the section layout plan
or scheme
Regulation 32 deals with set-backs, which is defined as the line parallel to the plot
boundaries, beyond which nothing can be constructed towards the plot boundaries.
Regulation 32.3 stipulates that where a plot size exceeds 40,000 sq. mtrs., there has
to be a front setback of 25 mtrs., while setbacks on the rear and on all sides will be 9
mtrs. Regulation 33.2.3 is relevant for the dispute in the present case and it
stipulates as follows, insofar as is relevant:
“i. Distance between two adjacent building blocks shall
not be less than half of the height of tallest building.”
(emphasis supplied)
PART D
46
Second revised sanction dated 26 November 2009
53 The second revision to the original plan was sanctioned on 26 November
2009, under the NBR 2006. The second revised plan envisaged that instead of the
construction of T-16 (comprising of G + 11 floors and G+4 floors), and a shopping
complex (G + 1 floor), two towers, T- 16 and T-17, would be constructed, each
comprising of G+24 floors and of 73 mtrs. height. According to the revision, a 9 mtrs.
distance was to be maintained between T-17 and T-1 at the ground level, and T-1
and T-17 were to be connected through a space frame at the upper level. The
second revised plan provided that a front set back of 15 mtrs., and a rear and side
set-back of 9 mtrs. each was approved.
54 The issue is whether the second revised plan for construction of T-16 and T17 each of a height of 73 mtrs. and at a distance of 9 mtrs. from T-1, is in
compliance with the applicable regulation at the time, that is NBR 2006. We shall
advert to this in the next section.
Third revised sanction dated 2 March 2012
55 The third revision to the plan was sanctioned on 2 March 2012, by which the
height of T-16 and T-17 was increased from 73 mtrs. to 121 mtrs., and the number
of floors in T-16 and T-17 was increased from twenty-four to forty floors.
56 At the time of the sanction of the third revised plan, the NBR 2010 had come
into force. Regulations 1.6 and 1.7 of the NBR 2010 are in the following terms:
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47
“1.6 The plot on which map has already been sanctioned and
construction has already started or completed, the allottee
may be allowed to revise the same building plan or
submit the new plan as per the prevailing regulations for
that part of the building where construction has not
started or any new addition is required in the building.
1.7 F.A.R, Ground coverage, setbacks and density as
indicated in the regulations shall not be applicable in respect
of those plots which were allotted on auction or tender basis
and group housing prior to the coming into operation of these
regulations. However, the calculation of FAR and Ground
Coverage in the new buildings in such plots shall be
done as per these regulations. The purchasable F.A.R and
Ground coverage as per applicability may be allowed.”
(emphasis supplied)
57 Under Regulation 24.2, the following stipulations have been provided for
Group Housing:
(II) Maximum permissible-
(i) Ground coverage 35 per cent to 40000 sq. mtrs
and 40% above 40000 sq.
mtrs
(ii) Floor Area Ratio 2.75
(iii) Height No limit. For buildings above
30 metres in height, clearance
from Airport Authority shall
have to be taken.
(iv) Density (Family size
4.5)
As mentioned in the sector
Layout Plan or decided by the
Authority for a particular
scheme.
Table No 2 of the NBR 2010 prescribes the set-back requirement in relation to
Regulation 24. For all plots measuring above 40,000 sq. mtrs., the set-backs in the
front are 16 mtrs. and at the rear and on the sides are 12 mtrs.
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48
58 Regulation 24.2.1(1)(vi) provides that a distance of 6 mtrs. is to be left open
for fire tenders. The said regulation is extracted below:
“The following features shall be permitted after leaving
minimum 6 mtrs. open corridor for fire tenders.
(a) Meter room as per norms of Electricity Authority.
(b) Open transformers without any permanent enclosure
keeping in view the necessary safety requirements.
(c) Other features as mentioned in Table 3.
(d) Rockery, well and well structures, water pool, swimming
pool (if uncovered), uncovered platform around tree, tank,
fountain, bench, chabutra With open top and unenclosed by
side walls, compound-wall, gate, slide- swing, culverts on
drains.
(e) Any other feature, primarily ornamental in nature, not
enclosing or covering space of commercial use may be
permitted by the Chief Executive Officer on case to case
basis.
(f) Open generator set, filtration plant, Electrical distribution
equipment, feeder pillars, telephone distribution equipments
may be permitted in open setback as a service utility provided
after leaving clear space for fire tender.”
With respect to the distance between two adjacent building blocks, Regulation
24.2.1.6 provides:
“Distance between two adjacent building blocks
Distance between two adjacent building blocks shall be
minimum 6 mtrs. to 16 mtrs. depending on the height of
blocks. For building height up to 18 mtrs, the spacing shall be
6 mtrs and thereafter the spacing shall be increased by 1
metre for every addition of 3 mtrs in height of building subject
to a maximum spacing of 16 mtrs as per National Building
Code – 2005. If the blocks have dead-end sides facing each
other, th[e]n the spacing shall be maximum 9 mtrs. instead of
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49
16 mtrs. Moreover, the allottee may provide or propose more
than 16 mtrs. space between two blocks.”
59 The above regulation indicates that:
(i) The distance between two “adjacent building blocks” is to be a minimum of 6
mtrs. going up to 16 mtrs., depending upon the height of the blocks;
(ii) For a building height upto 18 mtrs., the spacing would be 6 mtrs., to be
increased by 1 mtr. for every addition of 3 mtrs. to the height of the building
(subject to a maximum spacing of 16 mtrs. under the NBC 2005);
(iii) If the blocks have dead-end sides facing each other, the spacing shall be a
maximum of 9 mtrs. instead of 16 mtrs.; and
(iv) The allottee may, however, propose more than a 16 mtrs. space between two
blocks.
60 Regulation 24.2.1.6 of NBR 2010 refers to the NBC 2005 for the minimum
distance requirement. The NBC 2005 contains the following stipulations in para
8.2.3.1:
“8.2.3.1 For buildings of height above 10 m, the open spaces
(side and rear) shall be as given in Table 2. The front open
spaces for increasing heights of buildings shall be governed
by 9.4.1(a).
Table 2 Side and Rear Open Spaces for Different Heights
of Buildings
(Clause 8.2.3.1)
Si
No.
Height of Buildings Side and Rear Open
Spaces to be Left Around
the Building
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50
(1)
m
(2)
m
(3)
i) 10 3
ii) 15 5
iii) 18 6
iv) 21 7
v) 24 8
vi) 27 9
vii) 30 10
viii) 35 11
ix) 40 12
x) 45 13
xi) 50 14
xii) 55 and above 16
NOTES
1 For buildings above 24 m in height, there shall be a
minimum front open space of 6 m.
2 Where rooms do not derive light and ventilation from the
exterior open space, the width of such exterior open space as
given in col 3 may be reduced by 1 m subject to a minimum of
3 m and a maximum of 8 m. No further projections shall be
permitted.
3 If the length or depth of the building exceeds 40 m, add
to col (3) 10 percent of length or depth of building minus
4.0 m.”
(emphasis supplied)
Para 8.2.3.2 provides as follows:
“8.2.3.2 For tower like structures, as an alternative to
8.2.3.1, open spaces shall be as below:
(a) Up to a height of 24 m, with one set-back, the open
spaces at the ground level shall be not less than 6 m;
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51
(b) For heights between 24 m and 37.5 m with one set-back,
the open spaces at the ground level, shall be not less than 9
m.
(c) For heights above 37.5m with two set-backs, the open
spaces at the ground level, shall be not less than 12m;
and
(d) The deficiency in the open spaces shall be made good
to satisfy 8.2.3.1 through the set-backs at the upper
level;: these set-backs shall not be accessible from
individual rooms/flats at these levels.”
(emphasis supplied)
61 Para 8.2.3.1 of NBC 2005 indicates that where the height of the building is 55
mtrs. and above, the side and rear open spaces to be left around the building must
be 16 mtrs. Note 3 indicates that if the length or the depth of the building exceeds 40
mtrs., in addition to the height which is specified in column 3, ten per cent of the
length and the depth of the building minus 4 mtrs. has to be added to the distance
required. Thus, in the case of a height (as in the present case) of 55 mtrs. and
above, an additional 8.45 mtrs. (10 per cent of 84.5 mtrs.) is added to the 16 mtrs.
and 4 mtrs is to be deducted, arriving at a 20.45 mtrs. distance requirement.
However, an alternative is provided by para 8.2.3.2 for “tower like structures”. For
heights above 37.5 mtrs., open spaces at the ground level shall not be less than 12
mtrs. Further, deficiencies in open space as required under Para 8.3.2.1, can be met
through set-backs at the upper levels, subject to the condition that the set-back shall
not be accessible from the individual rooms/flats at these levels.
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52
D.1 Violation of NBR 2006 and 2010
D.1.1 Interpretation of “building blocks”
62 The first aspect which needs to be considered is whether T-17 and T-1 are
two adjacent building blocks or form part of a single building block as claimed by the
appellant. Regulation 33.2.3 of the NBR 2006 stipulates that the distance between
the two adjacent building blocks shall not be less than half of the height of the tallest
building.
63 The submission of Mr Vikas Singh, learned Senior Counsel, as well as of Mr
Ravindra Kumar, appearing on behalf of NOIDA, is that Regulation 33.2.3 of the
NBR 2006, which was in force when the second revised plan was sanctioned on 26
November 2009 (contemplating the construction of T-16 and T-17), stipulates a
distance between “two adjacent building blocks”. Mr Vikas Singh submitted that it is
entirely the discretion of the developer to determine as to whether one or more
buildings should be treated as a building block, there being no definition of the
expression “building blocks” in NBR 2006. It has been urged that the appellant is
entitled to assert that the sanctioned plan consists of building blocks, and that T-16
and 17 are part of a building block along with T-1, T-2, and T-3. Thus, it has been
submitted that all these towers (T-1, T-2, T-3, T-16 and T-17) constitute one single
building block. To buttress this submission, the space frame connecting T-1 and T17 is referred to. It has been urged that there is no necessity of maintaining the
minimum distance provided by Regulation 33.2.3, which applies only to the distance
PART D
53
between two adjacent building blocks, and since T-1 was to be connected to T-17 by
a space-frame, the two new towers (T-17 and T-16) would constitute a part of the
same building block, thus obviating the need of maintaining a minimum distance
between them. This argument was sought to be supported by adverting to the
original Hindi version of Regulation 33.2.3, which uses the expression “दो भवन समूहोंके
बीच की दू री”. In this context, it has been submitted that after the NBR 2010 came into
force, there was an increase in the height of T-16 and T-17 from twenty-four to forty
floors. Regulation 24.2.1.(6) of the NBR 2010 has also used the expression “two
adjacent building blocks”. Thus, based on both the NBR 2006 and 2010, it has been
urged that the appellant was entitled to treat T-16 and T-17 as forming a part of a
cluster which would include T-1. Therefore, the submission is that since all of them
constitute a single building block, the minimum distance requirement need not be
maintained.
64 The submission which has been urged on behalf of the the appellant finds
support in the arguments of Mr Ravinder Kumar, learned Counsel appearing on
behalf of NOIDA. The submissions which have been made on behalf of NOIDA
highlight the following features:
(i) Apart from the English version of Regulation 24.2.1.(6) of the NBR 2010,
which uses the expression building blocks, the Hindi version uses the terms
“भवन समूह”, which emphasises the concept of a cluster of buildings;
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54
(ii) When the Regulations speak of a “भवन समूह”, it is not the distance between
the towers but the distance between blocks which is implicated;
(iii) T-1, T-16 and T-17 form part of one cluster or block and hence there is no
need of maintaining a distance between buildings forming part of a block;
(iv) The absence of a minimum distance between the T-1 and T-7 would be of no
consequence;
(v) Apart from the alleged breach of the minimum distance requirement, all
parameters have been maintained, in terms of:
a. Ground coverage;
b. FAR;
c. Open area; and
d. Green area; and
(vi) An explanatory note was submitted by NOIDA before the High Court,
concerning the issue of building blocks, and is extracted below:
“Building Block in a Group Housing Project
Main Points:
1. Noida Building Regulations, 2010: A “Bhavan Samuh”
which is translated in English as a “Building block” is the
combination or a group of buildings in any given
area/Plot.
2. The Section 3(g) of The Uttar Pradesh Apartment
(Promotion of Construction, Ownership, Maintenance)
Act, 2010 defines building. As per the Act, “building”
means a building constructed on any land, containing four
or more apartments, or two or more buildings in any area
designated as a block, each containing two or more
apartments with a total of four or more apartments in all
such buildings; Provided that an independent house
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55
constructed in a row with independent entry and exit,
whether or not adjoining to other independent houses,
shall not constitute a building.
Therefore, it is clear that the Block is designated as “two
or more buildings in any area” and the building is defined
as “four or more apartments on any land”.
3. As per Zoning Glossary of New York City Planning; "A
Block" is defined as a tract of land bounded on all sides
by streets by a combination of streets, public parks,
railroad rights of way, pierhead lines or airport
boundaries. Building is defined as a structure that has
one or more floors and a roof, is permanently affixed to
the land and is bounded by open areas or the lot lines of
a zoning lot.
4. The buildings in a block may not be connected, may be
partially connected or may be fully connected, as is clear
from the aforesaid provisions.
5. It is a common practice in all the metropolitan cities of
India and all over the world to construct high rise buildings
for different purposes to make optimum utilization of land.
In any given area, more open & green space can be
provided only with a provision of high rise buildings which
enable to accommodate high density comparatively with
less ground coverage and more open space. Large size
projects generally have many buildings which are
planned, arranged & designed, keeping in view the
requirement of common space, common facility &
amenities, natural light, ventilation, open space and
maximum possible exit routes for early evacuation in
event of any emergency. In view of all these
considerations generally different building blocks or
groups of buildings having interconnected accessibility,
facilities and services are designed, which give better
living environment than having a system of all buildings
situated in isolation within the project area. It is common
practice in all the metropolitan cities of India and over
world to construct high-rise building for different purpose
to make optimum utilization of land. In any given area
more open & green space can be provided only within a
provision of high-rise building which enable to
PART D
56
accommodate high density comparatively within less
ground coverage and more open space. Large size
projects generally have many building which are planned,
arranged & designed, keeping in view the requirement of
common space, common facility & amenities, natural
light, ventilation, open space and maximum possible exit
routes for early evacuation in the event of any
emergency. In view of all these considerations generally
different building blocks or cluster of building having inter
connected accessibilities & facilities are decided, which
give better living environment than having a system of all
building situated in isolation within the project area.
6. Isolated buildings are more prone to safety, security,
provision and maintenance of common services related
problems. In case of a fire accident in any isolated
building having no extra exit routes, chances of danger to
human lives is more.
7. Generally, a group of buildings in a project is constructed
with the provision of common basement i.e. One
basement for all the buildings. This is done for better
accessibility and movement and provision of common
facilities. It is also a very common practice in India and
abroad to connect the high rise buildings by way of space
frame bridges giving additional exit routes for early
evacuation in the event of emergency. This practice has
increased after the occurrence of incident of fire in Gopal
tower in Connaught Place, New Delhi and the temporary
space frame was made connecting the said tower at the
Height with nearby tower for evacuation of cornered
persons saving many lives.
8. NBC OF INDIA OF 2005: Side and rear open space for
different height of building is governed as per Para 8.2.3.1
of NBC 2005 which states that for height of building.
Height Side and Rear Open Space
35 Mtr 11 Mtr
40 Mtr 12 Mtr
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57
55 Mtr & above 16 Mtr
But as per Para 8.2.3, tower like structures as an
alternative to Para 8.2.3.1 open space as below:
For height between 24 Mtr nd 37.50 Mtr with one set back
the open space
At the ground level, shall not be less than 9 Mtr.
9. It is stated that NOIDA Building Regulations intends to
provide the distance between two adjacent building
blocks to be between 6 meter to 16 meter depending
upon the height of the building blocks. It does not provide
any specific requirement of distance between two
buildings. The concept of minimum distance required
between two High Rise building of a block may not
necessarily be the same as required between the two
building blocks. For Example a building block may have
three or four stories for the entire block area and few
towers of different height and different upper stories
designed at different places in the same block.
10. The concept of minimum distance between the two
building blocks is for the purpose of free fire tender
movement (Minimum 6 meters setback as per regulation),
air ventilation, sunlight etc. The minimum distance
requirement is in no way connected with the structural
safety of the building.
11. It is stated here that the new building under construction
is having perimeter of approx. 230 meter the entire
building is surrounding by enough open area i.e. more
than 16 meter except at one place where the building is
made a part of block of adjoining building by way off a
proposed connecting bridge to provide an extra exit route
for the purpose of emergency evacuation. Here also the
minimum gap between old building and new building is 9
meter for 6.80 meter length with satisfies the
requirements of fire safety provisions. It does not violate
any provision with regards to fire safety and air
circulation.”
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65 Essentially, the plea both on behalf of the appellant and NOIDA is that the
requirement of maintaining a minimum distance applies only to adjacent building
blocks, which is not equivalent to adjacent buildings. To put it differently, the
arguments proceed on the basis that where there is a cluster of buildings the
requirement of a minimum distance cannot be observed as between buildings
forming part of the cluster, but only as between two adjacent building
blocks/clusters. Each building block in this line of argument may consist of a
collection of buildings, and it is argued that neither NBR 2006 nor NBR 2010
mandates the maintenance of a minimum distance as between buildings in a cluster.
66 The expression ‘building block’ has not been defined either in NBR 2006 or in
NBR 2010. The construction which is placed upon the content of the expression
must advance the object and purpose of the said Regulations. The purpose of
stipulating a minimum distance is a matter of public interest in planned development.
The residents who occupy constructed areas in a housing project are entitled to
ventilation, light and air and adherence to fire safety norms. The purpose of
stipulating a minimum distance comprehends several concerns. These include
safeguarding the privacy of occupants and their enjoyment of basic civic amenities
including access to well-ventilated areas where air and light are not blocked by the
presence of close towering constructions. Access to these amenities is becoming a
luxury instead of a necessity. The prescription of a minimum distance also has a
bearing on fire safety. In the event of a fire, there is a danger that the flames would
rapidly spread from one structure to adjoining ones. Moreover, the presence of
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59
structures in close proximity poses serious hurdles to fire-fighting machinery which
has to be deployed by the civic body.
67 If a developer is left with the unbridled discretion to define the content of the
expression “building block”, this will defeat the purpose of prescribing minimum
distances, leaving the health, safety and quality of life of flat buyers at the mercy of
developers. Before this Court, an argument has been advanced that four towers out
of the seventeen towers in the plot are a part of one “building block” and do not
require maintenance of a minimum distance. Before the High Court, the appellant
attempted to argue that all the buildings (that is all seventeen towers) on Plot No 4 of
Sector 93A NOIDA would comprise of one “building block”. The inconsistency of the
appellant’s argument on building blocks before the High Court and this Court points
out the obvious flaw in it – that the designation of how many buildings constitute a
“building block” by the developer would undermine the requirements prescribed by
Building Regulations. As a matter of first principle, we are not inclined to adopt the
construction proposed by the appellant. It will deprive the residents of urban areas of
the amenities of light, air and ventilation which are essential to maintaining a basic
quality of life. It will also have serious ramifications on fire safety. The developer
cannot be allowed to subvert the requirement of maintaining minimum distances
prescribed in the Building Regulations by unilaterally designating independent
towers as building blocks, in the manner which the appellant has suggested before
this Court. Setting up a space frame or providing for a common entry or exit would
not make two otherwise separate buildings as one consolidated block.
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68 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.
69 Applying the NBR 2006 to the facts of the present case, the construction of T16 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,
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61
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.
70 We shall now come 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”.
71 Mr Ravindra Kumar, learned counsel appearing on behalf of NOIDA, has
particularly laid emphasis on the Hindi version of the NBR 2010 to argue that it used
the term “भवन समूह”, which must mean that a separate meaning is accorded to it
than the term “भवन”. The Hindi text of Regulation 24.2.1.(6) (Regulation 24.2.1 (V) in
the Hindi version) is as follows:
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As is evident, the Hindi version of the NBR 2010, uses three different terms “भवन
खंडो”, “भवन समूह”, and “भवन”. A purely textual interpretation, as is suggested by Mr
Ravindra Kumar, would lead us to ascribe three different meanings to each of these
terms. Extending this argument would then imply that the first sentence, which
states that two adjacent building blocks require a minimum distance of 6 mtrs. to a
maximum distance of 16 mtrs., will depend on the height of the blocks. The second
sentence, which in English simply reads, “for building height upto 18 mtrs, the
spacing shall be 6 mtrs…”, does not clarify what the term “spacing” denotes – does
it imply spacing between buildings inter se the block, or spacing between adjacent
‘building blocks’. Mr Ravindra Kumar suggests that it implies the latter. However,
looking at the Hindi version of the Regulations from a purely textual standpoint, it
would appear that it states that the spacing between the buildings of height 18 mtrs.
should be 6 mtrs., that is, “18.00 मीटर ऊँ चेभवनों की बीच की दू री 6.00 मीटर रखी जाएगी
…”. The term used here is “भवनों” and not ““भवन खंडो” or “भवन समूह”. Thus,
overemphasis on the text of the NBR 2010, while losing sight of the context and the
purpose of the regulation, would lead to an absurd interpretation. Where the initial
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63
part of Regulation 24.2.1.6 provides for distance between building blocks, the latter
part stipulates the distance between buildings of height above 18 mtrs. Accordingly,
we reject the argument of Mr Ravindra Kumar that Regulation 24.2.1.6 only provides
for the distance between ‘building blocks’ and not buildings within the blocks.
72 The latter part of Regulation 24.2.1.6 of the NBR 2010 provides that the
maximum spacing between buildings of a height above 18 mtrs. shall be 16 mtrs. as
per the NBC 2005. In the third revised plan dated 2 March 2012, the height of T-16
and T-17 was increased to 121 mtrs. In accordance with Regulation 24.2.1.6, the
spacing between a building of height 121 mtrs. and another building would be 16
mtrs. (the maximum limit as per NBC 2005). Thus, the distance between T-1 and T17 should have been 16 mtrs., as opposed to 9 mtrs. Consequently, we find that the
third revised plan dated 2 March 2012 was in violation of NBR 2010.
73 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.
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64
74 The issue as to whether T-1, together with T-16 and T-17, form one cluster
can be looked from another perspective to test the hypothesis of Mr Vikas Singh.
The original sanctioned plan dated 20 June 2005 provided that:
“Total area of plot : 48263.00 Sq. mt
Permissible coverage 35 % : 16892.05 Sq. mt
Sanctioned coverage 14.03% : 6773.25 sq. mt
Permissible FAR 1.50 : 72394.50 Sq. mt
Sanctioned FAR 134.28 : 64810.04 Sq. mt.
Sanctioned height of building : 30.00 meter
SET BACK
SET BACK OF BUILDING
Permissible · Sanctioned
Front 9.66 Mt 15.00 Mt
Back 9.66 Mt 09.70 Mt.
Side 9.66 Mt 09.70 Mt.
Side 9.69 Mt 09.70 Mt.”
75 The original sanctioned plan covered a total plot area of 48,263 sq. mtrs.
Subsequently, an additional area of 6556.61 sq mtrs. was leased out to the
appellant by a Supplementary Lease Deed dated 21 June 2006, so as to enhance
the total area of the plot to 54,819.51 sq. mtrs. As a consequence, the first revised
plan was sanctioned on 29 December 2006, where the sanctioned area was
enhanced from 64,810.04 sq. mtrs. to 81,943.216 sq. mtrs., the calculations being
as follows:
“Sanctioned area
Total area of plot : 54819 Sq. Mt
Floor Existing Addition Total
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65
Ground
Floor
6773.25 Sq. Mt. 1025.313 Sq Mt 7798.563 Sq. Mt
First Floor 6672.17 Sq. Mt 1010.673 Sq Mt 7682.843 Sq. Mt
Second
Floor
6672.17 Sq. Mt 1010.673 Sq Mt 7682.843 Sq. Mt
Third Floor 6672.17 Sq. Mt 1010.673 Sq Mt 7682.843 Sq. Mt
Fourth
Floor
6672.17 Sq. Mt 778.737 Sq Mt 7450.907 Sq.
Mt.
Fifth Floor 6672.17 Sq. Mt - 177.574 Sq
Mt
6494.596 Sq. Mt
Sixth Floor 6672.17 Sq. Mt - 177.574 Sq
Mt
6494.596 Sq. Mt
Seventh
Floor
6672.17 Sq. Mt - 177.574 Sq
Mt
6494.596 Sq. Mt
Eighth Floor 6522.89 Sq. Mt - 28.294 Sq Mt 6494.596 Sq. Mt
Ninth Floor 4808.71 Sq. Mt 1685.886 Sq Mt 6494.596 Sq. Mt
Tenth Floor 6312.410 Sq Mt 6312.410 Sq.
Mt.
Eleventh
Floor
4448.677 Sq Mt 4448.677 Sq Mt
Commercial 411.15 Sq Mt. 411.15 Sq Mt.
Total 64810.04 17133.176 81943.216
Basement : 32352.71 + 8189.67 = 40542.38
Total 97162.75 25528.41 122485.60
76 The first revised plan dated 29 December 2006 relating to 6556.61 sq. mtrs.
indicates that in the south-west corner of the plot, an additional construction
comprising of one tower and a shopping facility would be put up and directly
opposite T-1 was a green area, which has been depicted on the sanctioned plan.
77 On 26 November 2009, there was a second revised sanction, consequent
upon the acquisition of purchasable FAR of thirty-three per cent of the permissible
1.5 FAR. The area calculations of the second revised sanction were indicated as
follows:
PART D
66
“Area of plot : 54819.510 Sq. Mt.
Permissible FAR 1.50% : 82229.265 Sq. Mt.
Purchasable FAR 33% : 27135.657 Sq. Mt
Total FAR 82229.265 + 27135.657 = 109364.922 Sq. Mt
Area of utilization issued earlier: 78019.956 Sq. Mt
Area of upper basement issued earlier:
40542.380 sq Mt. (3397.0990 with demolished upper basement)
Floor Permissible area
(Sq. Mt.)
Proposed Area (Sq.
Mt.)
Ground
Floor
19186.82 1751.320
First Floor Rest FAR 228.230
Second
Floor
2249.220
Third Floor 2249.220
Fourth Floor ……. 2249.220
Fifth Floor ……. 2249.220
Sixth Floor ……. 2249.220
Seventh
Floor
……. 2249.220
Eighth Floor ……. 2249.220
Ninth Floor ……. 2249.220
Tenth Floor ……. 1358.786
Eleventh
Floor
……. 1186.914
Twelfth
Floor
……. 740.162
Thirteenth
Floor
……. 740.162
Fourteenth
Floor
……. 740.162
Fifteenth
Floor
……. 740.162
Sixteenth
Floor
……. 447.955
Seventeenth
Floor
……. 447.955
Eighteenth
Floor
……. 447.955
PART D
67
Nineteenth
Floor
……. 447.955
Twentieth
Floor
……. 447.955
Twenty first
Floor
……. 383.168
Twenty
second
Floor
……. 383.168
Twenty third
Floor
……. 383.168
Twenty
fourth Floor
……. 383.168
TOTAL FAR ……. 31312.081
Upper
basement
……. 3397.090
Lower
basement
40542.38 3397.090
Total Area 43939.470
Set back Permissible Sanctioned
Front 15.00 Mt 15.00 Mt
Back 9.00 Mt 9.00 Mt
Side 9.00 Mt 9.00 Mt
Side 9.00 Mt 9.00 Mt
78 As the second revised plan indicates, the existing towers now envisaged
twenty-four floors instead of eleven floors. The third revised plan of 2 March 2012
further envisaged an enhancement in the constructed area consequent upon a
purchasable FAR, together with the sanctioned FAR of 2.75. The number of floors
was further increased to forty floors in T-16 and T-17, the relevant calculations being
as follows:
“Total area of plot : 54819.510 Sq. mt
Permissible coverage 35% : 19186.828 Sq. mt
Sanctioned coverage 14.03% : 6773.25 sq. mt
PART D
68
Permissible FAR @ 1.5% : 82229.265 Sq. mt
at the time of allotment
Purchasable FAR on 25.10.10: 150753.652 Sq. mt
With Sanctioned FAR @ 2.75
Floor wise Description of Proposed area of different floors are
as under
Floor Permissibl
e area
(Sq. Mt.)
Built up
area
(tower 1 to
14) on
16.10.09
utility
certificate
issued.
Sq. Mt
Previous
sanctioned
area tower
15, 16 &
17 date
26.11.09
Proposed
FAR tower
15, 16 &
17 (Sq.
Mt.)
Revised
area tower
15, 16 &
17 (Sq.
Mt.)
(3 +4)
Total area
(Sq. Mt.)
(2 +5)
1 2 3 4 5
Space
frame
-- -- -- 24.00 24.00 24.00
Podium
(T-1 to T14)
-- 288.983 -- -- -- --
Ground
Floor
19186.825 6823.429 1751.320 1125.302 2876.622 9700.051
1st Floor Rest FAR 6722.349 2288.230 78.075 2366.305 9088.654
2nd Floor -- 6722.349 2249.220 58.555 2307.775 9030.124
3rd Floor -- 6722.349 2249.220 58.555 2307.775 9030.124
4th Floor -- 6722.349 2249.220 38.400 2287.620 9009.969
5th Floor -- 6722.349 2249.220 38.400 2287.620 9009.969
6th Floor 6722.349 2249.220 -12.397 2236.823 8959.172
7th Floor 6722.349 2249.220 -12.397 2236.823 8959.172
8th Floor 6722.349 2249.220 -12.397 2236.823 8959.172
9th Floor 6722.349 2249.220 -12.397 2236.823 8959.172
10th Floor 6423.737 1358.786 878.037 2236.823 8660.560
11th Floor 3982.669 1186.94 910.301 2097.215 6079.884
12th Floor 740.162 851.205 1591.367 1591.367
13th Floor 740.162 851.205 1591.367 1591.367
14th Floor 740.162 851.205 1591.367 1591.367
15th Floor 740.162 851.205 1591.367 1591.367
16th Floor 447.995 1162.568 1610.523 1610.523
18th Floor 447.995 1162.568 1610.523 1610.523
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69
19th Floor 447.995 1162.568 1610.523 1610.523
20th Floor 447.995 1165.568 1610.523 1610.523
21st Floor 383.168 1610.523 1610.523 1610.523
22nd Floor 383.168 1610.523 1610.523 1610.523
23rd Floor 383.168 1610.523 1610.523 1610.523
24th Floor 383.168 1610.523 1610.523
25th Floor 1610.523 1610.523 1610.523
26th Floor 1610.523 1610.523 1610.523
27th Floor 1610.523 1610.523 1610.523
28th Floor 1610.523 1610.523 1610.523
29th Floor 1610.523 1610.523 1610.523
30th Floor 1610.523 1610.523 1610.523
31st Floor 1610.523 1610.523 1610.523
32nd Floor 1610.523 1610.523 1610.523
33rd Floor 1610.523 1610.523 1610.523
34th Floor 1610.523 1610.523 1610.523
35th Floor 1610.523 1610.523 1610.523
36th Floor 1610.523 1610.523 1610.523
37th Floor 1610.523 1610.523 1610.523
38th Floor 1610.523 1610.523 1610.523
39th Floor 859.055 859.055 859.055
40th Floor 439.106 439.106 439.106
Total FAR 150753.65
2
78019.956 31312.105 41132.600 72444.705 150464.66
4
Basement
Upper
basement
Lower
basement
Total area
After
leaving set
back, rest
area (for
parking,
services)
40542.38
40542.38
3397.09
3397.09
1511.144
41.680
1552.824
42053.524
3438.770
45942.294
Services 15%
services
Zero Zero 6396.896 6396.896
Total area
(including
118562.33
6
34709.195 49082.32 83791.515 202353.85
4
PART D
70
basement
and
services)
Proposed land coverage area = 10648.503 Sq. Mt. (19.425%)
Revised FAR (Built + Revised) = 150464.664 Sq Mt.”
79 On 24 April 2012, the CFO drew the attention of the In-Charge of the Building
Cell, NOIDA to the violation of the minimum distance which was required to be
maintained in the construction which was being carried out by the appellant. The
subject of the letter reads thus:
“Regarding distance between the under construction (Tower
No. 17) situated at Plot No. 4, Sector-93A NOIDA being
constructed by M/s Supertech Limited and old constructed
buildings”
The letter (which has been extracted above para 28 of Part A.5) has a crucial
bearing on these proceedings. The CFO made a clear reference to the distance
requirements which were to be observed in terms of NBR 2006, NBR 2010 and NBC
2005. The CFO queried NOIDA as to whether the license for construction was
granted after granting a relaxation to the builder in a “special category” or whether
the construction was being carried out contrary to the standards. This letter evinced
no response from NOIDA.
80 When the construction of two towers in the newly acquired leasehold area
commenced in July 2009, a communication dated 16 July 2009 was addressed on
behalf of the appellant (by its Director) to the Group Co-coordinator of Emerald
Court (the letter has been extracted in para 15 of Part A.4). Evidently, the residents
PART D
71
were concerned about the construction of the new towers. The said letter clearly
demonstrates that in 2009, the appellant was of the view that the new towers which
were being constructed would have separate entries and exits, amenities and
infrastructure and that the developer would construct a boundary wall separating the
existing 15 towers from Apex and Ceyane. This representation was reiterated in a
letter dated 9 March 2012 from the appellant to the President of the RWA.
81 The first paragraph of the above letter indicates that the appellant had
obtained two separate plots admeasuring approximately 48,650 sq. mtrs. and
6556.61 sq mtrs., and had got them registered separately in March 2005 and May
2006. The representation to the residents that these were separate plots which were
leased out to the developer was clearly contrary to the provisions of the
supplementary lease deed which stipulated that the newly demised area of 6556.61
sq. mtrs would form a part of the original plot which had been allotted to the
appellant. The supplementary lease deed contains the following covenants:
“[…]
That the Lessor has agreed to demise on lease in additional
place of land measuring 6556.61 Sq. mtrs. Against
consideration of Rs.14,48,98,871/- (Rupees Fourteen Crores
forty eight lacs ninety eight thousand eight hundred seventy
one only) which has been already been paid by the lessee to
the lessor and also in consideration of the yearly lease rent
@1 % of the total premium per year Rs.1,59,38,876 for
enhanced area has been paid by the Lessee to the Lessors
as one time lease rent (equal to 11 year's lease rent). That
the demised premises shall be deemed to be part of the Plot
No.04, Sector 93-A, Noida already leased to the lessee.
That all other conditions of the original lease deed and
allotment shall remain unchanged and shall be equally
PART D
72
applicable to this demised ·premises and binding upon the
lessee.
That the period of 90 years lease shall commence
from16.03.2005.
That the demised premises shall be part of the original
allotted Plot No. 04 Sector Noida. Necessary addition or
alterations in the structure can be subject to the building
byelaws of the lessor and terms of the transfer lease deed.
That total area of Plot No. 94, Sector 93-A, Noida is 54819.51
Sq. mtrs.
That the total premium of Plot No. 04, Sector 93-A is Rs.1,21,
15,11,171/- (Rupees One hundred Twenty one crores fifteen
lacs eleven thousand and one hundred and seventy one only)
instead of Rs.1,06,66,12,000/-.(Rupees One hundred six
crores sixty six lacs twelve thousand and three hundred).
The lessee shall construct the building on the demised
premises according to the building bye laws of the Lessor.”
Despite the clear terms of the supplementary lease deed in terms of which the
additional land allotted under it is to form a part of the original plot, the
communication addressed to the flat buyers of the existing towers was that the new
towers were completely disconnected from and independent of the earlier developed
fifteen towers. This letter cannot be glossed over because a similar position was
affirmed before the High Court in paragraph 32 of the counter affidavit filed by the
appellant, which reads as follows:
“32. That the contents of para 12 so far it relates to matter
of record are need no reply and other contents are wrong and
denied. The letter dated 16.07.2009 and 09.03.2012 given by
respondent no. 5 contains the same stand, that “Apex and
Ceyane" is Phase II of the project as in the present counter
affidavit. Similarly, letter dated 31.01.2012 and 13.02.2012
filed by respondent no.5 before police authorities can be
relied upon in support of the stand of respondent no.5.”
PART D
73
82 The only reasonable hypothesis which emerges from the above disclosures is
that the argument which has now 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.
83 The above conclusion is clearly evident from the record from IA No 54807 of
2021 for the production of additional documents. Annexures A-1, A-2, A-3 and A-4
are:
(i) A true copy of the first revised plan dated 29 December 2006 showing various
blocks as sanctioned by NOIDA;
(ii) A true copy of an allotment letter dated 17 March 2007 issued by the
appellant in favour of a flat purchaser;
(iii) A true copy of the completion map dated 10 April 2008 in relation to T- 1 to 8;
and
(iv) A true copy of the completion map dated 16 September 2009 in relation to T9 to 14.
PART D
74
84 Annexure A1 above, which is part of the first revised plan of 2006, clearly
indicates that each block comprises of a cluster of two buildings. Annexure A2,
which is the letter of allotment, makes it clear that what is meant by a block was the
Tower comprised of Aster II. Moreover, the letter also indicates the recovery of lease
rent at Rs 190 per sq. foot. Annexure A-3, the completion drawing of 2008, indicates
that each tower is depicted to have four wings. In other words, the tower itself is a
block comprising of four wings and the towers have been specified distinctly with
reference to numbers. During the course of the proceedings before the High Court,
the appellant filed a document purported to be the second revised plan of 2009
where a depiction of several blocks was made. The plan which was filed before the
High Court bears no signature of the competent officer of NOIDA. In the counter
affidavit filed by the appellant in the High Court, it was stated that:
“3. That Noida Building Bye-laws talks about building
blocks. Even the mandatory distance is provided only
between the two building blocks in the said bye-laws. It is
stated that Cluster of buildings from one building block,
provided these buildings are connected with each other to
form one building block. Further number of buildings within
one building block depends upon various factors like the
theme of the project its Architecture features surrounding, plot
dimensions etc.
4. The Emerald Court (phase I) has five building block
each comprising of three buildings. After acquisition of
additional land, admeasuring 6556 sq.mt. Apex & Ceyane
(phase II) was envisaged and the same was sanctioned by
NOIDA. With the provision of space frame between tower
Apex and Aster-2 as per sanction plan dated 26.11.2009 by
NOIDA, the Apex & Ceyane were connected within the
existing building block comprising of towers Aster-2, Aspire-1
and Aster-1 as per Architecture feature of the project. The
sanction dated 26.11.2009 was granted by NOIDA only after
structural safety certificate was issued by the IIT-Roorkee.
PART D
75
Copy of the sanctioned plan showing the Building block
is annexed herewith as ANNEXURE SCA-1.”
(emphasis supplied)
85 In the rejoinder filed to the above affidavit on behalf of the RWA, the contents
of the above plan were seriously disputed and it was averred:
“5. That the contents of paragraph 4 of the
supplementary counter affidavit are incorrect as Aster Type-A
was already envisaged on the additional land measuring 6556
sq. mtrs. along with certain green area as is evident in the
plan approved by NOIDA in Dec. 2006 (Annexures 2 of WP)
on total area of the plot viz. 54800sq. mt.
The respondent has submitted a document marked as
SCA-1 which is called the sanctioned building plan. This
is altogether a new document submitted by respondent 5
and is a shocking surprise to the petitioner as this has
never ever been disclosed nor advertised in the past. The
documents has glaring deviations as compared to the
document shared and submitted in the past. For the first
time respondent 5 has submitted a plan which contains
reference to “BLOCKS”. In the past such a document
was never shared. Also now each tower is given only a
tower number and the nomenclature used in title
documents and popular usage has been deleted viz
Aspire/Aster/ Emperor etc. This is an alarming misnomer
being created by respondent 5. Also, nowhere this bears
the sanctioning endorsement by NOIDA (Respondent No.
2) terming as BLOCK 1 to 5. It is amply clear that
respondent 5 is using false representation and
documents and trying to create confusions on flimsy
ground. They are trying to buy time and attention of this
Court and using these as delaying tactics, which is against
the interest of petition. With the delaying tactics respondent 5
is rapidly proceeding with unauthorized construction of APEX
and CYNE towers day and night, especially after filing of writ
petition by the petitioners, as no injunction has been issued
so far. Respondent 5 has been and will be using the public
interest plea of investors and financial institutions/banks to
PART D
76
cover up illegal and unauthorized construction as is evident
from Para 19 of the supplementary counter affidavit.”
(emphasis supplied)
86 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, we have no manner of doubt in
finding 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.
87 In its affidavit before the High Court, the appellant stated that:
“9. That it is pertinent to mention here that the Phase II of
the project by the name of “Apex and Ceyane” has been
planned to have provision of altogether separate facilities
like swimming pool, gymnasium, separate power backup,
separate L.T. Panels and separate entry and exits gates
etc. Therefore the members of petitioner society of Emerald
Court (Phase I) does not have any locus to challenge any
issue relating to the towers of “Apex and Ceyane” (Phase II).”
(emphasis supplied)
PART D
77
88 The above averments would belie the submission sought to be advanced
before this Court that Apex and Ceyane are parts of a cluster of buildings comprised
within one block. The High Court, while rejecting the submission, observed:
“Learned counsel for the respondent-company finally made
an attempt to argue that the phase “building blocks” is not
defined under the byelaws and according to the learned
senior advocate building blocks would mean the entire
building on plot no. 4 of Sector 93A NOIDA. The said
argument is farfetched and against the provisions of the
Building Regulation of 2006 as well as 2010. Building blocks
means group of building on the plot/site. The sanctioned
maps clearly shows that the respondent company has got the
layout approved consisting of separate blocks. The
nomenclature of the blocks was subsequently changed by the
respondent company, in each successive plan and finally the
buildings were numbered as towers (1-17). The maps
sanctioned clearly shows that the buildings in dispute Aster II
(tower 1) and Apex and Ceyane (tower 16 and 17) are
separate building blocks. The argument has been advanced
without there being any foundation in the pleadings. Without
pleadings argument cannot be advanced.”
89 Based on the interpretation of ‘building blocks’ in the Building Regulations as
discussed above, and the inconsistency in fact and in the argument of the appellant,
we affirm the above conclusion of the High Court.
D.1.2 Interpretation of “dead end sides of buildings”
90 An alternative argument has been advanced by Mr Ravindra Kumar, counsel
for NOIDA, that Regulation 24.2.1.6 of the NBR 2010 provides for an exception to
the 16 mtrs. minimum distance requirement if the building blocks have dead-end
sides facing each other. It stipulates that if the blocks have dead-end sides facing
each other, then the spacing shall be a minimum of 9 mtrs. instead of 16 mtrs. Mr
PART D
78
Ravindra Kumar submitted that T-1 and T-17 have dead-end sides facing each other
and thus, the distance requirement of 16 mtrs. was not applicable. The “dead-end”
argument has met a dead-end in the submissions of the appellant as during the
proceedings. Mr Vikas Singh, learned Senior Counsel for the appellant, has
specifically clarified that he is not pressing the submission. We will however deal
with it as the counsel appearing for NOIDA has raised it before this Court.
91 Regulation 24.2.6 of the NBR 2010 stipulates that if the blocks have dead-end
sides facing each other, then the spacing shall be a maximum of 9 mtrs. instead of
16 mtrs. The question of dead-end sides arises only between blocks, in which case
the minimum distance required is 9 mtrs.
92 This Court on 27 July 2016 directed the NBCC to ascertain if the dead-end
sides of T-1 and T-17 are facing each other, in order to decide if the towers can be
brought within the exception in Regulation 24.2.1(6) of NBR 2010. The terms of
reference were as follows:
“To ascertain whether the two towers- Tower-1 (Aster 2) and
Tower-17 have dead end sides facing each other for the
purpose of Reg. 24.2.1(6) of Noida Building Regulations
2010.”
NBCC was tasked with the job of determining the meaning of the phrase ‘dead end
sides facing each other’, and whether T-1 and T-17 could be brought within the
exception. This Court also specifically directed that NBCC shall not travel beyond
the issue that was referred to it.
PART D
79
93 The appellant filed its submissions before NBCC on the meaning of the
phrase ‘dead end side of a building’. It was submitted that:
(i) Model Bye-Laws 2004, Model Bye-Laws 2016 and the Delhi Development
Authority Building Byelaws 2016 have relaxed the 16 mtrs. distance rule to 9
mtrs. if there are ‘no habitable rooms in the front’, irrespective of the height of
the building. A similar provision has been incorporated in NBR 2010 as well.
However, instead of using the phrase “no habitable rooms in the front”, the
phrase “dead end” has been used. Therefore, the phrase “dead end” must
take color from the bye-laws and will have to be interpreted to mean absence
of ‘habitable rooms’; and
(ii) Clause 3.46 of NBR 2006 defines ‘habitable room’ as “a room occupied or
designed for occupation by one or more persons for study, living, sleeping,
eating, kitchen if it is used as a living room but not including bathrooms, water
closet, compartments laundries, serving and storage pantries, corridors,
cellars, attics and spaces that are not used frequently or during extended
periods”.
94 The term ‘dead-end sides of a building’ has not been defined in NBR 2006,
NBR 2010, and NBC 2005. Regulation 3 of NBR 2010 states that words that are not
defined in the Regulations shall have the meanings assigned to them in the UPIAD
1976. If no meaning is assigned to the word in UPIAD 1976, then the meaning
assigned to the word in the Master Plan/Development Plan, Development Plan,
National Building Code, Indian Standard Institution Code shall be referred to.
PART D
80
However, none of the above mentioned authorities define the phrase ‘dead end
sides of a building’. Though, NBC 2005 uses the phrase in reference to dead end
situation of road, corridor, water supply etc., no reference with respect to ‘dead end
sides of a building’ is made.
95 Therefore, NBCC wrote to the Bureau of Indian Standards23 and NOIDA on 3
September 2016 and 30 August 2016 respectively, seeking a clarification on the
meaning of the phrase ‘dead end sides of a building’. BIS through a letter dated 9
September 2016 stated that the phrase was only used in NBR 2010 and not the
NBC 2005 that was brought by BIS, and therefore, it was not best suited to provide
an interpretation on the phrase. NOIDA vide a letter dated 30 August 2016 stated
that it refers to “[a]n area/side of a building or a residence having no
access/entrance or exit becomes a dead end area/side of the building, though it may
have openings for ventilation”.
96 NBCC submitted its report on 13 October 2016. The report discusses the
structure of T-1 and T-17, the meaning of the phrase ‘dead end side of a building’
and concludes that the sides of T-1 and T-17 facing each other are not dead end
sides of the buildings. NBCC made the following observations on the structure of T-1
and T-17 after site verification:
(i) The ground floor of T-17 is allocated for commercial shops. The remaining
floors in T-17 will have residential flats with windows/balconies/ventilators on
23 “BIS”
PART D
81
all sides. Except for one opening for a fire exit, there will be no opening on the
ground floor on the side that faces T-1. However, all other floors (i.e., except
the ground floor) will have an opening on the side that faces T-1;
(ii) The entry to T-17 is on the side that is perpendicular to the side that is facing
T-1;
(iii) The entry to the residential flats of T-1 is from the side facing T-17;
(iv) T-1 has offsets. Therefore, the space between T-1 and T-17 varies from 9.3
mtrs. to 25 mtrs.;
(v) The habitable rooms with balconies in T-1 and T-17 face each other; and
(vi) T-1 and T-17 do not taper at the higher floor. None of the tower wings have
different heights.
97 Since there is no clarity on the meaning of ‘dead end side of a building’,
NBCC interpreted the phrase by referring to the use of the phrase ‘dead end’ in NBC
2005 in the context of roads, water supply network etc. where the passage is limited.
The report stated that “a dead end exists in the corridor or passageway where there
is only one direction to travel to an exit”. Using this meaning as a reference, NBCC
interpreted the phrase of ‘dead end side of building’ to hold that T-1 and T-17 do not
have dead end sides facing each other. Further, NBCC also observed that the
distance between T-1 and T-17 does not comply with the distance rule specified in
NBC 2005:
“6. The dead end sides, as per regulation 24.2.1 (6) of NBR
2010 would mean where habitable rooms of the building
do not face each other and the distance between two
PART D
82
adjacent building blocks shall be 9 mtrs and otherwise it shall
be 16 mtrs as per NBC 2005. In the present case both the
buildings i.e T-1 & T-17 have habitable rooms (with
balconies) facing each other so these are not dead
ends”.
7. Whether the side of T-17 which is facing T-1 is its deadend side:
(a) The T-17 has entry & exit routes on the sides
perpendicular to the side facing T-1. Therefore, the side of
tower T-17 which faces T-1 is not the front-side, and
therefore, the ‘Building Separation’ between T-1 & T-17
should be guided by those clause(s) in NBC 2005 that
guide(s) open spaces to the sides of a building.
(b) On the ground floor, tower T-17 has commercial
space/shops which would be always busy/occupied with
people for most of the time during a normal dat.
(c) On higher floors it has balconies & terraces anchored to
habitable rooms on all sides.
Inference: From (i), (ii) & (iii) above, the side of T-17 which
faces T-1 would naturally have frequent human use & activity
both during daytime and nighttime, every day of the year, for
however short the durations, both on ground and on higher
floors (balconies & terraces anchored to habitable rooms) on
any normal day. Therefore, it may be safe to conclude it is not
a dead-end side of T-17.
8. Whether the side of T-1 which faces T-17 is its dead-end
side: The side of T-1 facing T-17 has three sections, and its
middle section is offset further away from Tower T-17 while
the two sections at the ends are in the same line. However,
that section is the main entry/exist to the Tower. The
remaining portion of the side facing Tower T-17 is also
not inactive since it has balconies & terraces anchored to
habitable rooms and/or toilets.
Inference: The entry to tower T-1 is from the side facing
Tower-17. This the side of tower 1 facing tower-17 cannot be
treated as dead end side of tower-1.”
(emphasis supplied)
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98 The appellant filed its objections to the report of NBCC, contending the
following:
(i) The scope of enquiry was restricted by this Court to the issue whether T-1
and T-17 have dead end sides facing each other for the purpose of
Regulation 24.2.1(6) of the NBR 2010. However, NBCC has widened the
scope of enquiry and determined if the sanction is in compliance with the
distance rule in NBC 2005;
(ii) The entry to the ground floor of T-17 is provided on both sides. For the
commercial shops, the entry is on the side perpendicular to the side facing T1, and for the other facilities it is on the other side opening towards the side of
T-16 and the open space;
(iii) The passage between T-1 and T-17 is used only to enter into the parking
space allotted for the houses in T-1 toT-15. To enter the parking space of T17, another passage is used;
(iv) Four out of the five external sides of the apartments in T-1 facing T-17 are
dead ends (two plumbing shafts, toilet dead wall, bedroom dead wall). Only
the fifth external side of T-1, which is a balcony attached to the living room,
faces towards T-17;
(v) Though the entry in T-1 is facing T-17, the entry is 20 mtrs. away from T-17;
(vi) NBCC has failed to consider the different line positions with respect to T-1
and T-17. There are sixteen line positions of the sides of T-1 and T-17 that
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are facing each other and they are predominantly dead end sides. Of the
sixteen line positions:
a. Eleven line positions have dead walls facing each other;
b. Two line positions have dead walls of T1 facing windows of T-17.
However, there is a 16 mtrs. open space between them;
c. Two line positions have the railings of common lift lobbies of T-1 facing the
bed room window of T-17. However, there is a 3 mtrs. open space
between them; and
d. One line position where the dead wall of shaft of T-1 faces the railing of
balcony in T-17, there is 9.30 mtrs. of open space between them. The
open space between the walls of both the buildings in this line space is
10.80 mtrs.
99 The first respondent also sought an expert opinion on whether T-1 and T-17
have dead end sides facing each other from IIT Delhi. The report was submitted on
6 September 2016 to this Court, and concluded that the sides of T-1 and T-17 that
face each other cannot be considered as ‘dead end sides of the building’. It was
observed that when balconies and windows (or any other egress) are provided, the
functional performance will be compromised if the minimum distance as prescribed
is not adhered to. Elaborating further, it was stated that the minimum distance can
be reduced when there is no egress on the concerned side of the building because
then there would be no possibility of a functional compromise. The reasoning in the
report is summarized below:
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(i) The dictionary meaning of ‘dead end’ is ‘“no exit”, i.e., no egress or without
openings. Therefore, the presence of any opening in the form of windows of
balconies renders the building side not a dead end;
(ii) The purpose of prescribing a minimum distance requirement between two
buildings is to prevent transmission of fire for safe escape during calamities,
minimum ventilation, and to receive natural day light. In case the minimum
distance requirement between buildings with egress facing another building is
not complied with, then the function of the egress (through window or
balcony) will be compromised due to the following reasons:
a. To avoid transmission of fire: According to NBC 2005, fire separation is
defined as the distance from the ‘external wall’ of a building to the ‘external
wall’ of another building. There is an increased possibility for fire to be
transmitted to the adjacent building through windows. However, if the walls
have no openings, then the distance between the buildings can be less
since there is a lesser chance for transmission of fire;
b. Safe escape and rescue: As the height of the building increases, there is
an increased difficulty to rescue residents in case of emergency situations.
In such cases, open balconies can be used to facilitate rescue operations
provided that the street has sufficient width. As the height of the building
increases, for maximum safe inclination of the ladder, the street has to be
wider;
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c. Minimum ventilation: Minimum natural ventilation is required for hygienic
ventilation (i.e., the removal of CO2, body odour, etc.), for heat exchange
and cooling of the building; and
d. Natural day light: When the distance between two buildings is high, the
building receives direct sunlight;
(iii) The main entry/exit of T-1 is facing T-17. This entry is the only one that abuts
the road and will in all probability be used for rescue operations if the need
arises. The balconies of habitable rooms in T-1 and T-17 also face each
other. Therefore, the concerned building sides (of T-1 facing T-17 and vice
versa) cannot be considered as dead ends since the sides have egress.
Moreover, a reduction in the minimum distance requirement would severely
compromise the purpose of providing such egress.
100 The first respondent by a letter dated 6 October 2016 also sought an expert
opinion from IIT Roorkee on whether T-1 and T-17 have dead end sides facing each
other. A report was submitted in October 2016 to this Court holding that the building
sides of T-1 and T-17 facing each other cannot be termed as ‘dead ends’ for the
following reasons:
(i) The scientific basis of providing the distance requirement is to enhance fire
safety, provide sufficient day light and ventilation, visual privacy and air flow;
(ii) The Merriam Webster Dictionary defines ‘Dead End’ as a street that ends
instead of joining with another street so that there is only one way in and out
of it. ‘Dead wall’ is defined as a wall without openings such as doors, windows
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and ventilators. Therefore, evidently, openings for fenestration and the
presence of balconies and windows would mean that the ‘side’ is not a dead
end side;
(iii) When the side of the building facing another building has egress, the
minimum distance specified under the Regulations must be complied with.
Otherwise, the functional performances of the egress (i.e., balcony, window,
etc.) will be compromised; and
(iv) The main entry, the doors, windows, and balconies of T-1 face T-17. Since
the side of T-1 facing T-17 has egress, it is not a ‘dead end side’.
101 The appellant approached Design Forum International24, an architectural and
design firm, requesting their assistance in the ongoing case. DFI through its report
made the following observations on NBCC’s report regarding the dead end issue:
(i) T-1 and T-17 vary in design. T-17 has nearly three times the length when
compared to T-1. Moreover, the portion of T-17 that overlaps T-1 is not
constant along the whole length. Therefore, it is necessary that the sides of
the towers facing each other are examined in a more detailed manner;
(ii) The entry of T-1 and T-17 is perpendicular to each other;
(iii) The sides of T-1 and T-17 can be classified into the following three
categories: (a) dead end facing dead end (i.e., a wall facing a wall); (b) dead
end facing a non-dead end (i.e., a wall facing a window); and (c) non-dead
end facing a non-dead end (i.e., a window facing a window);
24 “DFI”
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(iv) The position is clear under Regulation 24.2.1(6) of NBR 2010 that for cases
falling under (a), the distance between the buildings must be 9 mtrs. and for
cases falling under (c), the distance must be 16 mtrs. However, for cases that
fall under (b), there is no clarity on the distance that must be maintained
between the buildings;
(v) There are thirteen unique line positions between T-1 and T-17. Of the thirteen
line positions, in six line positions the dead end side of T-1 faces the dead
end side of T-17 (Type (a)); in four line positions, the dead end side of T1/T17 faces the non- dead end side of the other (Type (b)); in three line positions,
the non-dead end side of T-1 and T-17 face each other (Type (c));
(vi) For the line positions falling under type (a), the distance varies from 9.88
mtrs. to 15.11 mtrs. complying with the 9 mtrs. requirement; for the line
positions falling under type (b), the distance varies from 10.8 mtrs. to 15.3
mtrs.; for the line positions falling under type (c), the distance varies between
14.62 mtrs. to 15.5 mtrs., which is ‘very slightly lesser’ than the required 16
mtrs.;
(vii) Since the distance between the sides of T-1 and T-17 facing each other differ
widely and is not uniform, this Court will have to undertake an in depth
analysis of the issue keeping in mind the unique situation; and
(viii) The minute deficiency in case of type (c) and type (b) (if this Court declares
the distance to be deficient) can be rectified by making structural alterations in
the buildings by shifting the position of the egresses.
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102 The NBR 2010 does not provide any definition of the phrase ‘the dead end
side of the block.’ NBR 2006, NBC 2005 and the UPIAD Act 1976 also do not define
the phrase. The Court while interpreting the expression will have to attribute a
contextual meaning to the phrase ‘dead end side of the block’. The above reports
adopt two different meanings of the phrase. The NBCC report and the appellant in
its objections before the NBCC state that the dead end sides of the building would
mean where ‘habitable rooms’ of a building do not face each other. Though it is not
specified that only habitable rooms with ‘windows/balconies’ will not be considered
as dead ends, it is evident that the argument is that it is only if a habitable room with
egress faces the side of the adjacent building, that it should not be considered as a
dead end side. The corollary is that if the store room or the bathroom or corridor with
a window/vent faces the side of the adjacent building it must still be considered as a
dead end. Whereas, the reports by IIT Delhi and IIT Roorkee take another approach
by defining a dead end side of a building as a side with egress (i.e., windows,
balconies or vents) without any reference to ‘habitable rooms’.
103 Two other contentions on the interpretation of the phrase have also been
raised. It is contended that the phrase is ambiguous to the extent that it does not
provide clarity on whether an egress of a building facing a dead wall of the adjacent
building would fall within the exception. It is also contended that since the height of
T-1 and T-17 is not the same, two egresses in adjacent buildings face each other
only in a few line positions, and the requirement of minimum distance between the
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adjacent buildings must differ with each line position depending upon whether those
specific line positions are dead ends.
104 We are therefore faced with three questions while interpreting the phrase
‘dead end sides of the buildings’:
(i) whether only habitable rooms with egress in any part of the building must be
excluded from the ambit of the phrase ‘dead end sides of the buildings’;
(ii) whether both sides of the buildings must be dead end sides, or whether it is
sufficient if one side of the building is a dead end side; and
(iii) whether the direct line position must be used for the determination of ‘dead
end sides of the building’ and the distance between two adjacent buildings.
105 We are unable to accept the contention that only habitable rooms with egress
(that is, windows or balconies) will fall outside the ambit of ‘dead end side of the
buildings’. ‘Dead end’ in common parlance means no exit or absence of access.
NBR 2010 does not provide any indication to classify between habitable and nonhabitable rooms in the context of the phrase ‘dead end side’. The argument that the
classification between habitable and non-habitable rooms has been made in the
Model Bye-Laws with specific reference to the distance requirement and therefore, it
must be imported for the interpretation of the phrase ‘dead end sides of the building’
is unsatisfactory. It is a settled principle of statutory interpretation that words must be
given their plain and ordinary meaning unless such an interpretation leads to an
ambiguity or absurdity or when the object of the statute indicates otherwise. The use
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of the phrase ‘dead end side of the building’ in NBR 2010, in spite of the other bye
laws using the phrase ‘habitable rooms’, makes it evident that the intent was to
restrict the ambit of the exception. Interpreting the phrase in the context of the
ordinary meaning of the word ‘dead end’ does not lead to any ambiguity; rather it is
in pursuance of the intent and purpose behind the provision. As stated by the reports
submitted by IIT Delhi and IIT Roorkee, the purpose of prescribing a higher
minimum distance between adjacent buildings in case the side of the building facing
another has egress is so that the functional utility of the egress (either a window or
balcony) is not diminished. Windows/balconies, irrespective of whether they are
attached to a habitable or a non-habitable room, perform functions which will be
greatly diminished if the adjacent building is closer and thereby restricting the air
flow and increasing the chance of transmissibility in the event of a fire. Moreover, the
privacy of the flat dwellers would be severely compromised. The expansion of the
meaning of the phrase ‘dead end side of the building’ to include non-habitable rooms
with windows would thus amount to rewriting the regulation, when no such indication
can be construed from NBR 2006 or NBR 2010.
106 The contention that the dead end exception will be applicable, even if one
side of the two adjacent buildings has a dead end is erroneous. Regulation 24.2.1(6)
of NBR 2010 states “If the blocks have dead end sides facing each other, then the
spacing shall be maximum 9 meters instead of 16 meters”. The words ‘blocks’ and
‘sides’ in the plural form find place in Regulation 24.2.1(6) of NBR 2010. The
Regulation does not state ‘if the block having a dead end side’. When the phrases or
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words are free from ambiguity and when there is only one meaning that the phrase
would take when fairly construed, it will have to be literally construed, and courts
must not resort to a liberal interpretation which will defeat the intent, purpose and
object of a provision in a planning regulation.
107 The report submitted by DFI refers to the variant heights of T-1 and T-17. The
contention is that since the structure of T-1 and T-17 are different, and since the
towers horizontally overlap with each other only to the extent of the height of the
shorter tower (T-1), the distance between T-1 and T-17 must be measured in the
direct line positions. These direct line positions are then classified into three
categories (Category (a) - dead end facing dead end; Category (b) - dead end facing
a non-dead end; Category (c) - a non-dead end facing a non-dead end). The
distances between T-1 and T-17 with respect to each of these types have been
measured to argue that for lines falling in category (a), it is enough if the distance is
9 mtrs; for those falling under category (b), there is no clarity on the distance
required; and for lines in category (c), a minimum distance of 16 mtrs. is required.
This argument rests on two premises: (i) the minimum distance requirement
prescribed under Regulation 24.2.1(6) of NBR 2010 is not the distance between two
buildings but is rather the distance between the different direct line positions
between two adjacent buildings; and (ii) it is necessary for the entire adjacent blocks
to have non-dead end sides facing each other for the 16 mtrs. distance rule to be
applied uniformly.
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108 The phrase which is used in Regulation 24.2.1(6) of NBR 2010 is ‘block’ and
not ‘flat’/‘unit’. The unit of consideration is thus not individual ‘units’ in the block but
the entire block itself. The side of the block would not be a dead end side if there are
even few egresses. If the direct line position argument is accepted, then the intent
behind providing the minimum distance requirement would become nugatory. The
purpose of imposing the minimum distance requirement as stated in the reports of
IIT Delhi and IIT Roorkee is to provide ventilation, direct sun light, means of rescue
and prevent the spread of fire. If particular ‘flats’/‘units’ in the block have a vent
according to the construction plan, the minimum distance would have to be complied
with, not just with respect to the direct line but with respect to the ‘entire block’.
109 The reports of IIT Delhi and IIT Roorkee clearly elucidate the difficulty in
evacuation of occupants in high rise buildings. The report states that the distance
between adjacent buildings needs to be greater for taller buildings since the street
has to be wider for the maximum safe inclination of the ladder. The reports also
mention the reduction in ventilation, sunlight and privacy in case the distance
between the buildings is less. Therefore, irrespective of whether all or some of the
units in the block have an egress facing the adjacent building, the minimum distance
of 16 mtrs. will have to be complied with, otherwise the purpose of providing the vent
would be functionally compromised
110 In view of the above discussion, the principles that would guide the
interpretation of the phrase ‘dead end sides of the blocks’ are as follows:
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(i) The phrase ‘dead end side of the block’ would mean that any building does
not have an egress;
(ii) An egress in a non-habitable room like the bathroom or the storeroom will be
considered as a non-dead end side;
(iii) For the ‘dead end’ exception to be applicable, it is necessary that the sides of
both the buildings facing each other must not have any egress;
(iv) It is not necessary that all the units in the building facing the other building
must have an egress. Even if some of the units have an egress, that side of
the block will not be considered as a ‘dead end side’; and
(v) The minimum distance required between two adjacent blocks must not be
measured through direct line positions of the units but along the ground.
111 On application of the principles deduced above on 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
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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.
D.2 Violation of NBC 2005
112 We shall now address the question of whether the third revised plans violated
the NBC 2005. As we have seen above, NBC 2005 is referenced in Regulations
24.2.1.6 of the NBR 2010. NBC 2005 has two parts in regard to the maintenance of
open spaces – para 8.2.3.1 and para 8.2.3.2. Para 8.2.3.1 provides for open spaces
for buildings above the height of 10 mtrs., which are specified in Table 2. Table 2
indicates that the side and rear open spaces correspond to the height of the building
and increase accordingly, beginning with 3 mtrs. for a building of a height of 10 mtrs.
and up to 16 mtrs., where the height of the building is 55 mtrs. and above. In
addition, Note 3 clarifies that where either the length and depth of the building
exceeds 40 mtrs., the minimum distance which is prescribed must be further
increased by ten percent of the length and depth of the building minus 4 mtrs. Thus,
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the calculation for the side and rear open spaces to be left around the building would
be as follows:
(third revision) (second revision)
Height of the Building 84.5 m25 73 m
Minimum distance
prescribed in Col 3 of
Table 22 (for buildings
above 55 mtrs)
16 m 16 m
Distance to be
maintained as per Note
3:
Distance in col (3) + 10%
of the length or depth of
building – 4.0 mtrs
16 + 10% (84.5) – 4 =
20.45 mtrs
16 + 10% (73) – 4 = 19.3
mtrs
Thus, 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.
113 An alternative to para 8.2.3.1 has been provided in para 8.2.3.2 for ‘tower like
structures’. Para 8.2.3.2 stipulates that for a structure of a height up to 24 mtrs. with
one set-back, the open spaces at the ground level should not be less than 6 mtrs.; if
25 The total actual length of T-17 as noted in the NBCC Report is 84.5 m as against the envisaged 121 m.
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the height is between 24 mtrs. and 37.5 mtrs. with one set-back, the open space at
the ground level must be not less than 9 mtrs.; and for heights above 37.5 mtrs. with
two set-backs, the open space at the ground level should not be less than 12 mtrs.
Additionally, under (d) of para 8.2.3.1, the deficiency in open spaces of tower like
structures (as compared to all building of height above 10 mtrs. in para 8.2.3.1) can
be made good by providing set-backs at the upper levels, so long as the set-backs
are not accessible from individual rooms or flats at these levels.
114 A reading of para 8.2.3.2 indicates that this exception is only applicable if the
deficiency in open spaces can be made good by set-backs at the upper level.
Clause (d) of para 8.2.3.2 of the NBC 2005 is ex facie not attracted for the reason
that there are no set-backs at the upper levels within the contemplation of the
disputed constructions. In any case, even para 8.2.3.2 provides that for tower like
structures higher than 37.5 mtrs. with two setbacks, the open space should be not
less than 12 mtrs. Thus, the exception is of no aid to the appellant and NOIDA which
has issued the third revised plan envisaging a distance of 9 mtrs. between T-1 and
T-17.
D.3 Violation of Fire Safety Norms
115 The appellant requested for a fire NOC for the construction of T-16 and T-17.
On 11 September 2009, a report was submitted to the CFO observing that the road
is wide enough for vehicles of the Fire Brigade Department to reach the spot in case
of emergency situations. However, clause 10 of the report states that Part III and
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Part IV of NBC 2005 will have to be complied with during the construction of the
building and in case of non-compliance, the NOC shall stand cancelled. Para 8.2.3.1
of NBC 2005 prescribes a minimum of 16 mtrs. for the side and rear open spaces of
buildings which are 55 mtrs. high and above.
116 On 18 August 2011, the CFO issued a temporary fire NOC for the
construction of T-16 and T-17. This letter also stated that the applicant will have
make arrangements for fire safety compliant with the NBC 2005. On 29 March 2012,
the CFO issued a notice to the appellant highlighting various shortcomings in fire
security provisions. On 24 April 2012, the CFO wrote to NOIDA stating that the
distance between T-1 and T-17 is only 9 mtrs. which is violative of NBR 2006, NBR
2010 and NBC 2005 and asking if NOIDA had provided any exemption to the
distance rule to appellant. The CFO issued a show cause notice to the appellant on
17 July 2012 directing that T-16 and T-17 that are under construction be physically
separated from the ‘old towers’.
117 A complaint was made by the first respondent to the CFO on the noncompliance of the conditions stipulated for the grant of the NOC for the complex (for
T1 to T-15). A committee was constituted to look into the complaint and the following
observations were made by the committee:
(i) A show cause notice was issued for the construction of a second staircase.
The stair case has still not been built;
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(ii) People are living in quarters constructed in the basement which is not in
accordance with the NBC 2005 provisions;
(iii) Set back is used as a parking, so the effective set back in certain places is
reduced by 2 mtrs. and is thus less than the required 9 mtrs.;
(iv) On the rear side of the tower, 6 mtrs. set back is not available.
118 These suggestions given by the committee were required to be complied with
within six months. Since they were not complied with, a show cause notice was
issued on 30 May 2014 for not remedying the deficiencies.
119 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.
120 The temporary NOC that was given by the CFO clearly states that the NBC
2005 must be complied with. However, as shown above, the provisions of NBC 2005
have not been complied with. Therefore, given that the rear distance requirement
under NBC 2005 has not been complied with, the NOC given by the CFO stands
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automatically cancelled in terms of the report dated 11 September 2009 and letter
dated 18 August 2011.
E Consent of the RWA
121 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, we shall analyze whether the consent was actually required under the UP
1975 Act and UP Apartments Act 2010.
E.1 Applicability of UP 1975 Act
122 The UP 1975 Act has been described in its long title as “an Act to provide for
matters connected with the ownership and use of individual flats in buildings
consisting of four or more flats”. Section 2 of the Act states that the Act shall apply
only to owners who submit to the provisions of the Act by executing a declaration.
Section 2 reads as follows:
“2. Application of the Act. — This Act applies only to
property, the sole owner or all the owners of which submit the
same to the provisions of this Act by duly executing and
registering a Declaration setting out the particulars referred to
in section 10:
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Provided that no property shall be submitted to the provisions
of this Act, unless it is actually used or is proposed to be used
for residential purposes:
Provided further that the sole owner or all the owners of the
land on which building is situated may submit such land to the
provisions of this Act with a condition that he or they shall
grant a lease of such land to the owners of the flats, the terms
and conditions of the lease being disclosed in the declaration
either by annexing a copy of the instrument of lease to be
executed to the declaration or otherwise.”
123 Section 3(d)26 contains the definition of common area and facilities. Section
427 stipulates that a flat shall be transferable and heritable property. Each owner of a
flat is entitled to exclusive ownership and possession of their flat in accordance with
the declaration. Moreover, a flat together with its undivided interest in the common
areas and facilities shall be heritable and transferable immoveable property. Further,
a flat together with its undivided interest in the common areas and facilities shall not
be partitioned or sub-divided for any purpose.
26“ (d) “common areas and facilities” includes—
(1) the land on which the building is located and all easements, rights and appurtenances belonging to the land and
the building;
(2) the foundations, columns, girders, beams, supports, main wall, roofs, halls, corridors, lobbies, stairs, stair-way,
fire-escapes and entrances and exits of the building;
(3) the basements, cellars, yards, gardens, parking areas and storage spaces;
(4) the premises for the lodging of janitors or persons employed for the management of the property;
(5) installations of common services, such as power, light, gas, hot and cold water, heating, refrigeration, air
conditioning and sewerage;
(6) the elevators, tanks, pumps, motors, expressors, pipes and ducts and in general all apparatus and installations
existing for common use;
(7) such other common facilities as may be specially provided for in the Declaration;
(8) all other parts of the property necessary or convenient to its existence, maintenance and safety or normally in
common use;”
27 “4. Flat to be transferable and heritable property.—(1) Each owner of a flat shall be entitled to the exclusive
ownership and possession of his flat in accordance with the Declaration.
(2) Subject to the provisions of the second proviso to section 2, a flat, together with its undivided interest in the
common areas and facilities, shall constitute heritable and transferable immovable property within the meaning of any
law for the time being in force:
Provided that no flat and the percentage of undivided interest in the common areas and facilities appurtenant to such
flat shall be partitioned or sub-divided for any purpose whatsoever.”
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124 Section 5 provides for common areas and facilities in the following terms:
“5. Common areas and facilities. — (1) Each owner of a flat
shall be entitled to an undivided interest in the common areas
and facilities in the percentage expressed in the Declaration.
(2) 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 in an
amended Declaration duly executed and registered as
required by this Act.
(3) The percentage of the undivided interest in the common
areas and facilities shall not be separated from the flat to
which it appertains, and shall be deemed to be conveyed or
encumbered with the flat even though such interest is not
expressly mentioned in the conveyance or other instrument.
(4) The common areas and facilities shall remain undivided,
and no suit shall lie at the instance of any owner of the flat or
other person for partition or division of any part thereof,
unless the property have been withdrawn from the provisions
of this Act.
(5) Each owner of a flat may use the common areas and
facilities for the purpose for which they are intended without
hindering or encroaching upon the lawful rights of the owners
of other flats.
(6) The work relating to the maintenance, repair and
replacement of the common areas and facilities and the
making of any additions or improvement thereto shall be
carried out in accordance with the provisions of this Act and
the bye-laws.
(7) The Association of Owners of flats shall have irrevocable
right to be exercised by the Manager or the Board of
Managers on behalf of the Association with such assistance
as the Manager or the Board of Managers, as the case may
be, considers necessary to have access to each flat from time
to time during reasonable hours, for the maintenance, repair
and replacement of any of the common areas and facilities
therein or accessible therefrom or for making emergency
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repairs therein to prevent any damage to the common areas
and facilities or to other flats.”
(emphasis supplied)
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. Section 1028 provides for the contents of such a Declaration. Further, Section
1129 envisages that all the owners of flats may withdraw a property from the
provisions of the Act by an instrument executed to that effect, following which it shall
be deemed to be owned in common by the owners of flats wherein the share of each
28 “10. Contents of Declaration.—(1) The declaration referred to in section 2 shall be submitted in such form and in
such manner as may be prescribed and shall contain the following particulars, namely:—
(a) description of the property, namely the description of the land on which the building is or is to be located, whether
the land is freehold or leasehold and whether any lease of the land is to be granted in accordance with the second
proviso to section 2, and description of the building or proposed building stating the number of storeys and
basements and the number of flats;
(b) nature of interest of the owner or owners in the property;
(c) existing encumbrance, if any, affecting the property;
(d) description of each flat containing its location, approximate area, number of rooms, immediate common area to
which it has access, and any other data necessary for its proper identification;
(e) description of the common areas and facilities;
(f) description of the limited common areas and facilities, if any, stating to which flats their use is reserved;
(g) value of the property and of each flat, and the percentage of undivided interest in the common areas and facilities
appertaining to each flat and its owner for all purposes, including voting.”
29 “11. Withdrawal from the provisions of the Act.— (1) All the owners of flats may withdraw a property from the
provisions of this Act by an instrument executed to that effect.
(2) Upon the property being withdrawn from the provisions of this Act, it shall be deemed to be owned in common by
the owners of flats and the share of each such owner in the property shall be the percentage of undivided interest
previously owned by such owner in the common areas and facilities.
(3) Any encumbrance affecting any of the flats shall be deemed to be transferred in accordance with the existing
priority to the percentage of the undivided interest of the owner of the flat in the property as provided therein.
(4) The withdrawal provided for in sub-section (1) shall in no way bar the subsequent resubmission of the property to
the provisions of this Act.”
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such owner shall be the percentage of undivided interest previously owned in the
common areas and facilities.
125 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. Section 2,
as we have seen, specifies that the Act applies only to a property, the sole owner or
all the owners of which, submit it to the provisions of the Act by duly executing and
registering a Declaration setting out the particulars as contained in Section 10.
126 Undoubtedly, in this case there was no declaration in terms of Section 2.
However, significantly, the lease deed which was executed by NOIDA in favour of
the appellant on 16 March 2005, contains a stipulation in clause II(h) in the following
terms:
“II) AND THE LESSEE DOTH HEREBY DECLARE AND
COVENANTS WITH THE LESSOR IN THE MANNER
FOLLOWING:
[…]
h) The Lessee/sub-lessee shall make such arrangement as
are necessary for maintenance of the building and common
services and if the building is not maintained properly the
Chief Executive Officer, Noida or any officer authorized by
him will have the power to get the maintenance done through
the Authority and recover the amount so spent from the
Lessee/Sub-Lessee. The Lessee/Sub-Lessee will be
individually and severally liable for payment of the
maintenance amount. The rule/regulation of U.P. Flat
Ownership Act, 1975 shall be applicable on the
lessee/sub-lessee.” (emphasis supplied)
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127 Mr Ravindra Kumar, learned Counsel appearing on behalf of NOIDA,
advanced a submission that the last sentence of clause II(h) must be read together
with the entirety of the clause, which relates to the maintenance of the building and
common services. Clause II(h) states that in the event the building or common
services are not maintained properly, NOIDA would be entitled to ensure the
maintenance and recover the amount from the lessee/sub-lessee.
128 However, the application of clause II(h) cannot be brushed away on this
basis, particularly since the sentence imposing the application of the UP 1975 Act on
the lessee/sub-lessee must bear some meaning and content. In this context, during
the course of his submissions, Mr Jayant Bhushan, learned Senior Counsel
appearing on behalf of the RWA, has placed on the record a copy of the registered
sub-lease executed on a tripartite basis by NOIDA, with the appellant as the lessee
and the flat buyer as the sub-lessee. Some important provisions of this deed of sublease are:
(i) Clause 16 contemplates that the occupant of the ground floor would be
entitled to use a “sit-out area but the right of user shall be subject to the
provisions of the UP Ownership Flat Act 1975”;
(ii) Clause 17 recognizes the right to user of the occupant of the dwelling unit on
the top floor, subject to the provisions of the same enactment; and
(iii) Clause 27 envisages that all clauses of the lease executed by NOIDA in
favour of the appellant on 16 March 2005 shall be applicable to the sub-lease
deed as well.
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129 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.
E.2 Applicability of the UP Apartments Act 2010
130 In 2010, the State legislature enacted the UP Apartments Act 2010. The long
title describes the legislation as:
“An Act to provide for the ownership of an individual
apartment in a building of an undivided interest in the
common areas and facilities appurtenant to such apartment
and to make such apartment and interest heritable and
transferable and for matters connected therewith or incidental
thereto”
131 Section 2 of the Act is in the following terms:
“2. Application.- The provisions of this Act shall apply to all
buildings having four or more apartments in any building
constructed or converted into apartment and land attached to
the apartment, where freehold, or held on lease excluding
shopping malls and multiplexes.”
Thus, in contrast with Section 2 of the UP 1975 Act, the corresponding provision of
the UP Apartments Act 2010 stipulates that the Act shall apply to all buildings with
four or more apartments in any building and land attached to the apartment whether
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freehold or held on lease. Further, unlike Section 2 of the UP 1975 under which the
Act was to apply only when a declaration in terms of Section 10 was submitted, this
Act does not require a declaration for it to apply.
132 The expression ‘apartment owner’ is defined by Section 3(d) of the Act as
follows:
“(d) “apartment owner” means the person or persons owning
an apartment or the promoter or his nominee in case of
unsold apartments to and an undivided interest in the
common areas and facilities appurtenant to such apartment in
the percentage specified in the Deed of Apartment and
includes the lessee of the land on which the building
containing such apartment has been constructed, where the
lease of such land is for a period of thirty years or more;”
133 The Act contains a definition of common areas in Section 3(i) and of limited
common arears in Section 3(s):
“(i) “common area and facilities” means—
(i) the land on which the building is located and all
easements, rights and appurtenances belonging to the land
and the building;
(ii) the foundations, columns, girders, beams, supports, main
walls, roofs, halls, corridors, lobbies, stairs, stairways, fireescapes and entrances and exits of the building;
(iii) the basements, cellars, yards, parks, gardens, community
centers and parking areas of common use;
(iv) the premises for the lodging of janitors or persons
employed for the management of the property;
(v) installations of central services, such as power, light, gas,
hot and cold water, heating, refrigeration, air conditioning,
incinerating and sewerage;
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(vi) the elevators, tanks, pumps, motors, fans, cable pipe line
(TV, gas, electricity etc.) rain water harvesting system,
compressors, ducts and in general all apparatus and
installations existing for common use;
(vii) such other community and commercial facilities as may
be specified in the bye-laws; and
(viii) all other parts of the property necessary or convenient to
its existence, maintenance and safety, or normally in common
use;
[…]
(s) “limited common areas and facilities” means those
common areas and facilities which are designated in writing
by the promoter before the allotment, sale or other transfer of
any apartment as reserved for use of certain apartment or
apartments to the exclusion of the other apartments;”
134 The general liabilities which have been cast upon promoters intending to sell
an apartment are set out in Section 4(1), which reads as follows:
“4. General liabilities of promoter.— (1) Any promoter who
intends to sell an apartment, shall make a full and true
disclosure in writing of following to an intending purchaser
and the Competent Authority:
(a) rights and his title to the land and the building in which the
apartments have been or proposed to be constructed;
(b) all encumbrances, if any, on such land or building, and
any right, title, interest or claim of any person in or, over such
land or building;
(c) the plans and specifications approved by or submitted for
approval to the local authority of the entire building of which
such apartment forms part;
(d) detail of all common areas and facilities as per the
approved lay-out plan or building plan;
(dd) built-up area and common area of an apartment.
(e) the nature of fixtures, fittings, and amenities, which have
been or proposed to be provided;
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(f) the details of the design and specifications of works or and
standards of the material which have been or are proposed to
be used in the construction of the building, together with the
details of all structural, architectural drawings, layout plans,
no objection certificate from Fire Department, external and
internal services plan of electricity, sewage, drainage and
water supply system etc. to be made available with the
Association;
(g) all outgoings, including ground rent, municipal or other
local taxes, water and electricity charges, revenue
assessments, maintenance and other charges, interest on
any mortgage or other encumbrance, if any, in respect of
such land, building and apartments;
(h) such other information and documents as may be
prescribed.”
Sub-Section (4) of Section 4 contains the following stipulations:
“(4) After plans, specifications and other particulars specified
in this section as sanctioned by the prescribed sanctioning
authority are disclosed to the intending purchaser and a
written agreement of sale is entered into and registered with
the office of concerned registering authorities. The promoter
may make such minor additions or alterations as may be
required by the owner or owners, or such minor changes or
alterations as may be necessary due to architectural and
structural reason's duly recommended and verified by
authorized Architect or Engineer after proper declaration and
intimation to the owner:
Provided that the promoter shall not make any alterations in
the plans, specifications and other particulars without the
previous consent of the intending purchaser, project Architect,
project Engineer and obtaining the required permission of the
prescribed sanctioning authority, and in no case he shall
make such alterations as an not permissible in the building
bye-laws.”
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Under clause (c) of sub-Section (1) of Section 4, a promoter who intends to sell an
apartment is required to make a full disclosure in writing to an intending purchaser
and to the competent authority of the plans and specifications approved or submitted
for approval to the local authority, of the building of which the apartment is a part.
Similarly, under clause (d), a disclosure has to be made in regard to the common
areas and facilities in accordance with the approved lay-out plan or building plan.
Once such a disclosure has been made, sub-Section (4) stipulates that upon the
execution of a written agreement to sell, the promoter may make minor additions or
alterations as may be required or necessary due to architectural and structural
reasons duly authorized and verified by authorized Architects or Engineers. Apart
from these minor additions or alterations which are contemplated by sub-Section (4),
the proviso stipulates that the promoter shall not make any alterations in the plans,
specifications and other particulars “without the previous consent of the intending
purchaser”. Mr Vikas Singh’s submission, that this provision will apply to intending
purchasers of Apex and Ceyane and not to the persons who had purchased
apartments in the existing fifteen towers, cannot be accepted. The above proviso is
evidently intended to protect persons to whom the plans and specifications were
disclosed when they were the “intending purchasers”. Further, a construction to the
contrary will run against the grain of the intent and purpose of the statute as well its
express provisions.
135 Section 5 of the Act provides for the rights of apartment owners in the
following terms, insofar as is relevant:
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“5. Rights of Apartment Owners.— (1) Every person to
whom any apartment is sold or otherwise transferred by the
promoter shall subject to the other provisions of this Act, be
entitled to the exclusive ownership and possession of the
apartment so sold or otherwise transferred to him.
(2) Every person who becomes entitled to the exclusive
ownership and possession of an apartment shall be entitled to
such percentage of undivided interest in the common areas
and facilities as may be specified in the Deed of Apartment
and such percentage shall be computed by taking, as a basis,
the area of the apartment in relation to the aggregate area of
all apartments of the building.
(3)(a) The percentage of the undivided interest of each
apartment owner in the common areas and facilities shall
have a permanent character, and shall not be altered without
the written consent of all the apartment owners and approval
of the competent authority.
(b) The percentage of the undivided interest in the common
areas and facilities shall not be separated from the apartment
to which it appertains and shall be deemed to be conveyed or
encumbered with apartment, even though such interest is not
expressly mentioned in the conveyance or other instrument.”
136 It is important to clarify at this stage 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, as analysed below.
E.3 Requirement of RWA’s Consent
137 In terms of the third revised plan which was sanctioned on 2 March 2012, the
height of T-16 and T-17 was sought to be increased from twenty-four to forty (or
thirty-nine, as the case may be) floors. As a result, the total number of flat
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purchasers would increase from 650 to 1500. The clear implication of this would be
a reduction of the undivided interest of the existing purchasers in the common areas.
As a matter of fact, it has also been submitted on behalf of the first respondent that
the additional lease rent paid to NOIDA was also sought to be collected from the
existing flat purchasers at the rate of Rs 190 per sq. foot. A statement to that effect
was also contained in an affidavit filed before the High Court on behalf of the first
respondent. The purchase of additional FAR by the appellant cannot be used to
trample over the rights of the existing purchasers.
138 Flats were sold on the representation that there would be a garden area
adjacent to T-1. The garden adjacent to T-1 is clearly depicted in the first revised
plan of 29 December 2006. It is this garden area which was encroached upon when
the second revised plan was sanctioned on 26 November 2009.
139 However, according to the appellant, T-16 and T-17 form part of Phase II of
Emerald Court, which had not encroached on any part of the common areas of
Phase I, under which all the other towers fell. In this context, it would be material to
note a letter dated 13 February 2012 addressed to the Circle Officer, City 3rd NOIDA,
Gautam Buddh Nagar, by the Director of the appellant, in which it has been stated
that:
“Kindly, refer to your Letter Dt. 10.02,2012, received by us on
11.02.2012, regarding which written statement on behalf of
M/s. Supertech Limited is presented as under:
1. That, [A]pex and [Ceyane] multi storey residential tower is
being constructed over plot measuring nearly 6500 sq. meter
which was acquired by the Company M/s. Supertech Limited
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from NOIDA Development Authority in the year 2006,
regarding which its supplementary lease deed was registered
in the office of Sub-Registrar, Second, Gautam Buddh
Nagar…
2. That, right from the beginning there was a pan for
constructing separate complex viz. Apex and [Ceyane]
and provisions have been separately made in both
towers viz. swimming pool, car, club, parking and gym
etc. The facilities of other old towers as shown in the
brochure have been published by mistake, but concerned
amendment was made in the brochure upon the company
being informed by the residents residing in old towers…
[…]
4. That, company has erected wall for the expansion of
basement and above wall was erected by the company over
its land and this basement area was not sold to any resident
of old tower over which company has complete ownership.
No adverse effect is there on the interests of any resident in
erecting above wall, rather the residents of old tower have
been removed from the allotted basement area by it.
Company has full right to make construction over its land.
5. That, construction carried out earlier or being carried out by
the company is completely legal and in accordance with
Rules and company has not affected the interest of anybody
and no fraud was committed by the company with anybody.
Therefore, it appears that the complainant having presented
this false complaint inspired by mala fides wants to harass the
company and wants to earn undue advantage by not making
payment of an amount which is payable to the company.
Therefore, it is requested that complaint presented by the
complainant is liable to be dismissed. In addition, it is also
requested that any personal name be not used in any
correspondence or inquiry, rather name of company through
its Director be used.”
(emphasis supplied)
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The above letter puts forth the case that T-16 and T-17 have been constructed as a
separate project over the area which was obtained under the supplementary lease
deed, and that it has separate provisions for all amenities and infrastructure. In fact,
it indicates that the facilities of the older buyers were shown in the brochure but that
representation was ‘clarified’ to be a ‘mistake’, which had been amended.
140 As such, it becomes important to refer to the supplementary lease deed,
which was granted in favour of the appellant on 21 June 2006. The supplementary
lease deed makes it clear that the demised premises admeasuring 6556.51 sq. mtrs.
would form a part of the originally allotted plot. In the course of its affidavit before the
High Court, the appellant contended that:
“7. The Office bearers/members of the petitioners society has
the right title & interest only in its flat and undivided interest in
the common areas of the Emerald Court (phase I). He has the
right to challenge if somebody is trying to encroach in his flat
or in the Common area are intended to be used for the
purpose of the residents. However, here this is not the case.
It is stated that the “Apex & Ceyane” (Phase II) comprising of
two towers has not encroached any area of the common of
the Emerald Court (Phase I). Therefore the petitioner society
does not have the locus to challenge the issues related with
“Apex & Ceyane” (Phase- II).”
In other words, the case which was sought to be set up was that the flat purchasers
had an undivided interest in the common areas of Phase I of the Emerald Court, but
since T-16 and T-17 formed a part of Phase II, it did not affect the rights of the
original flat purchasers of T-1 to T-15. This contention is expressly contrary to the
clear terms governing the supplementary lease deed, which indicates that the area
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comprising of the demised premises would form part of the original plot.
Furthermore, the appellant having utilized the FAR of the entire plot, including the
area which forms the subject matter of the original lease and the supplementary
lease, cannot be allowed to assert to the contrary.
141 Hence, it is abundantly clear that the construction of T-16 and T-17 in
accordance with the second revised plan and the third revised plan reduced the
value of the undivided interest held by each individual flat owner in the common
areas and facilities, thereby violating Section 5 of the UP 1975 Act and Section 5 of
the UP Apartments Act 2010, since the flat owners’ consent was not sought. Further,
the third revised plan encroached upon the garden area in front of T-1, thereby
resiling from the representation that had been made to the flat owners at the time
when they purchased the apartments in T-1, without their consent. Therefore, it
constituted a violation of Section 4(1) read with the proviso to Section 4(4) of the UP
Apartments Act 2010.
142 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 has dealt with this argument in the
impugned judgment by observing:
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“As per the averments of the respondent/company, the flats
were handed over to the apartment owners by September
2009. The owners immediately formed Resident Welfare
Association (RWA) and got it registered with the Registrar
Societies, in the very same year. Adopting the model byelaws, did not arise, as it was not enforced until 2011. After
notification of Model bye-laws, the Deputy Registrar Firm,
Societies and Chits, Meerut vide letter dated 14.12.2012
informed, that pending instructions from the Registrar Firm
Societies and Chits Uttar Pradesh, no decision in the matter
can be taken in respect of Model bye-laws and its registration.
The Registrar Firm, Societies and Chits Uttar Pradesh vide
circular dated 5.2.2013 addressed to all Deputy
Registrars/District Registrars issued instructions for
registration under Apartment Act, 2010 and directed that bye
laws of existing RAW be accordingly amended. The
petitioner/society vide resolution dated 20.10.2013 adopted
the Model bye-laws and conducted elections and thereafter
informed the Deputy Registrar.
The respondent/company has recognized the petitioners
society as RWA of the Apartment owners since inception and
has continuously corresponded with the petitioner society as
RWA. Letter dated 9.10.2012, 27.9.2012, 4.9.2012 and
January, 2013 addressed to the petitioner society regarding
redressal of their grievance is on record…”
Therefore, 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
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such RWAs do exist, developers may use them to seek a common consent from all
the flat owners instead of approaching them all individually.
F Collusion and Illegal Construction
143 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
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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.
144 The High Court has dealt with the collusion between the officials of NOIDA
and the appellant. This is writ large from the facts as they have emerged before this
Court as well. The High Court has in these circumstances correctly come to the
conclusion that there was collusion between the developer and the planning
authority.
145 Condition 15 of the third revised plan dated 2 March 2012 stipulated that:
“15. Compliance of provisions of Uttar Pradesh Apartment
(promotion of construction, ownership & maintenance) Act
2010, and directions issued thereunder shall be ascertained.
Sanctioned site plan/map is enclosed with this letter.
Application for utility certificate would be made after
completion of building work within validity of map/site plan,
and without permission and certification building shall not be
used…”
In spite of this condition, NOIDA made no effort to ensure compliance of the UP
Apartments Act 2010, as a result of which the rights of the flat purchasers have been
brazenly violated. This cannot point to any conclusion, other than the collusion
between NOIDA and the appellant to avoid complying with the provisions of the
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applicable statutes and regulations for monetary gain, at the cost of the rights of the
flat purchasers.
146 The rampant increase in unauthorized constructions across urban areas,
particularly in metropolitan cities where soaring values of land place a premium on
dubious dealings has been noticed in several decisions of this Court. This state of
affairs has often come to pass in no small a measure because of the collusion
between developers and planning authorities.
147 From commencement to completion, the process of construction by
developers is regulated within the framework of law. The regulatory framework
encompasses all stages of construction, including allocation of land, sanctioning of
the plan for construction, regulation of the structural integrity of the structures under
construction, obtaining clearances from different departments (fire, garden, sewage,
etc.), and the issuance of occupation and completion certificates. While the
availability of housing stock, especially in metropolitan cities, is necessary to
accommodate the constant influx of people, it has to be balanced with two crucial
considerations – the protection of the environment and the well-being and safety of
those who occupy these constructions. The regulation of the entire process is
intended to ensure that constructions which will have a severe negative
environmental impact are not sanctioned. Hence, when these regulations are
brazenly violated by developers, more often than not with the connivance of
regulatory authorities, it strikes at the very core of urban planning, thereby directly
resulting in an increased harm to the environment and a dilution of safety standards.
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Hence, illegal construction has to be dealt with strictly to ensure compliance with the
rule of law.
148 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.
149 In K. Ramadas Shenoy v. Chief Officer, Town Municipal Council30, Chief
Justice AN Ray speaking for a two judge Bench of this Court observed that the
municipality functions for public benefit and when it “acts in excess of the powers
conferred by the Act or abuses those powers then in those cases it is not exercising
30 (1974) 2 SCC 506
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its jurisdiction irregularly or wrongly but it is usurping powers which it does not
possess”. This Court also held:
“27…The right to build on his own land is a right incidental to
the ownership of that land. Within the Municipality the
exercise of that right has been regulated in the interest of the
community residing within the limits of the Municipal
Committee. If under pretence of any authority which the law
does give to the Municipality it goes beyond the line of its
authority, and infringes or violates the rights of others, it
becomes like all other individuals amenable to the jurisdiction
of the courts. If sanction is given to build by contravening a
bye-law the jurisdiction of the courts will be invoked on the
ground that the approval by an authority of building plans
which contravene the bye-laws made by that authority is
illegal and inoperative. (See Yabbicom v. King [(1899) 1 QB
444]).”
This Court held that an unregulated construction materially affects the right of
enjoyment of property by persons residing in a residential area, and hence, it is the
duty of the municipal authority to ensure that the area is not adversely affected by
unauthorized construction.
150 These principles were re-affirmed by a two judge Bench in Dr G.N. Khajuria
v. Delhi Development Authority31 where this Court held that it was not open to the
Delhi Development Authority to carve out a space, which was meant for a park for a
nursery school. Justice BL Hansaria, speaking for the Court, observed:
“10. Before parting, we have an observation to make. The
same is that a feeling is gathering ground that where
unauthorised constructions are demolished on the force of the
order of courts, the illegality is not taken care of fully
31 (1995) 5 SCC 762
PART F
122
inasmuch as the officers of the statutory body who had
allowed the unauthorised construction to be made or make
illegal allotments go scot free. This should not, however, have
happened for two reasons. First, it is the illegal action/order of
the officer which lies at the root of the unlawful act of the
citizen concerned, because of which the officer is more to be
blamed than the recipient of the illegal benefit. It is thus
imperative, according to us, that while undoing the mischief
which would require the demolition of the unauthorised
construction, the delinquent officer has also to be punished in
accordance with law. This, however, seldom happens.
Secondly, to take care of the injustice completely, the officer
who had misused his power has also to be properly punished.
Otherwise, what happens is that the officer, who made the
hay when the sun shined (sic), retains the hay, which tempts
others to do the same. This really gives fillip to the
commission of tainted acts, whereas the aim should be
opposite.”
151 In Friends Colony Development Committee v. State of Orissa32, this Court
dealt with a case where the builder had exceeded the permissible construction
under the sanctioned plan and had constructed an additional floor on the building,
which was unauthorized. Chief Justice RC Lahoti, speaking for a two judge Bench,
observed:
“24. Structural and lot area regulations authorise the
municipal authorities to regulate and restrict the height,
number of storeys and other structures; the percentage of a
plot that may be occupied; the size of yards, courts and open
spaces; the density of population; and the location and use of
buildings and structures. All these have in our view and do
achieve the larger purpose of the public health, safety or
general welfare. So are front setback provisions, average
alignments and structural alterations. Any violation of zoning
and regulation laws takes the toll in terms of public welfare
and convenience being sacrificed apart from the risk,
32 (2004) 8 SCC 733
PART F
123
inconvenience and hardship which is posed to the occupants
of the building.”
Noting that the private interest of land owners stands subordinate to the public good
while enforcing building and municipal regulations, the Court issued a caution
against the tendency to compound violations of building regulations:
“25…The cases of professional builders stand on a different
footing from an individual constructing his own building. A
professional builder is supposed to understand the laws
better and deviations by such builders can safely be assumed
to be deliberate and done with the intention of earning profits
and hence deserve to be dealt with sternly so as to act as a
deterrent for future. It is common knowledge that the builders
enter into underhand dealings. Be that as it may, the State
Governments should think of levying heavy penalties on such
builders and therefrom develop a welfare fund which can be
utilised for compensating and rehabilitating such innocent or
unwary buyers who are displaced on account of demolition of
illegal constructions.”
152 In Priyanka Estates International (P) Ltd. v. State of Assam33, Justice
Deepak Verma, speaking for a two judge Bench, observed:
“55. It is a matter of common knowledge that illegal and
unauthorised constructions beyond the sanctioned plans are
on rise, may be due to paucity of land in big cities. Such
activities are required to be dealt with by firm hands otherwise
builders/colonisers would continue to build or construct
beyond the sanctioned and approved plans and would still go
scot-free. Ultimately, it is the flat owners who fall prey to such
activities as the ultimate desire of a common man is to have a
shelter of his own. Such unlawful constructions are definitely
against the public interest and hazardous to the safety of
occupiers and residents of multistoreyed buildings. To some
extent both parties can be said to be equally responsible for
33 (2010) 2 SCC 27
PART F
124
this. Still the greater loss would be of those flat owners whose
flats are to be demolished as compared to the builder.”
The Court lamented that the earlier decisions on the subject had not resulted in
enhancing compliance by developers with building regulations. Further, the Court
noted that if unauthorized constructions were allowed to stand or are “given a seal of
approval by Court”, it was bound to affect the public at large. It also noted that the
jurisdiction and power of Courts to indemnify citizens who are affected by an
unauthorized construction erected by a developer could be utilized to compensate
ordinary citizens.
153 In Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn.
of Mumbai34, Justice GS Singhvi, writing for a two judge Bench, reiterated the
earlier decisions on this subject and observed:
“8. At the outset, we would like to observe that by rejecting
the prayer for regularisation of the floors constructed in
wanton violation of the sanctioned plan, the Deputy Chief
Engineer and the appellate authority have demonstrated their
determination to ensure planned development of the
commercial capital of the country and the orders passed by
them have given a hope to the law-abiding citizens that
someone in the hierarchy of administration will not allow
unscrupulous developers/builders to take law into their hands
and get away with it.”
The Court further observed that an unauthorized construction destroys the concept
of planned development, and places an unbearable burden on basic amenities
34 (2013) 5 SCC 357
PART F
125
provided by public authorities. The Court held that it was imperative for the public
authority to not only demolish such constructions but also to impose a penalty on the
wrongdoers involved. This lament of this Court, over the brazen violation of building
regulations by developers acting in collusion with planning bodies, was brought to
the fore-front when the Court prefaced its judgment with the following observations:
“1. In the last five decades, the provisions contained in
various municipal laws for planned development of the areas
to which such laws are applicable have been violated with
impunity in all the cities, big or small, and those entrusted with
the task of ensuring implementation of the master plan, etc.
have miserably failed to perform their duties. It is highly
regrettable that this is so despite the fact that this Court has,
keeping in view the imperatives of preserving the ecology and
environment of the area and protecting the rights of the
citizens, repeatedly cautioned the authorities concerned
against arbitrary regularisation of illegal constructions by way
of compounding and otherwise.”
Finally, the Court also observed that no case has been made out for directing the
municipal corporation to regularize a construction which has been made in violation
of the sanctioned plan and cautioned against doing so. In that context, it held:
“56…We would like to reiterate that no authority administering
municipal laws and other similar laws can encourage violation
of the sanctioned plan. The courts are also expected to
refrain from exercising equitable jurisdiction for regularisation
of illegal and unauthorised constructions else it would
encourage violators of the planning laws and destroy the very
idea and concept of planned development of urban as well as
rural areas.”
PART F
126
154 These concerns have been reiterated in the more recent decisions of this
Court in Kerala State Coastal Zone Management Authority v. State of Kerala35,
Kerala State Coastal Zone Management Authority v. Maradu Municipality,
Maradu36 and Bikram Chatterji v. Union of India37.
155 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, we confirm 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.
35 (2019) 7 SCC 248 36 2018 SCC OnLine SC 3352 37 (2019) 19 SCC 161
PART G
127
G Conclusion
156 To summarize our 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 T1, 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 T17 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 T17 are dead end sides, thereby obviating the need to comply with the
PART G
128
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
PART G
129
(ix) 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.
157 For the reasons which we have indicated above, we have 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 Roorkee38;
(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;
38 “CBRI”
PART H
130
(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.
H Interlocutory Applications
158 Mr Vikas Singh, learned Senior Counsel, has during the course of the hearing
tendered an additional affidavit to indicate the following position:
(i) The contention of RWA that the appellant has collected the onetime lease
rent at the rate of Rs 190 per sq. foot from all the flat owners in T-1 to T-15
and that though an amount of Rs 16.75 crores was collected, only Rs 13.32
crores was payable to NOIDA is incorrect;
(ii) The appellant did not collect the lease rent payable to NOIDA from all allotees
of T-1 to T-15. An amount of Rs 7.54 crores was received from some allotees;
(iii) The lease rent paid to NOIDA was in the amount of Rs 14.49 crores;
(iv) A total of 659 units were booked in T-1 to T-14; and
(v) Of these units 245 flats were booked till 28 December 2006; 141 flats were
booked between 29 December 2006 and 25 November 2009, 114 flats were
PART H
131
booked between 26 November 2009 and 1 March 2012, while 159 units were
booked after 2 March 2012.
On this basis, it has been submitted that 518 units were booked either before 28
December 2006 (before the first revised plan) or after 26 November 2009 (after the
second revised plan). The figures which have been indicated by the appellant
demonstrate that between the first revised plan on 29 December 2006 and the
second revised plan on 25 November 2009, 141 flat purchasers had booked flats.
They did so on the clear representation contained in the sanctioned plans.
159 During the pendency of these proceedings, two interim orders were passed
by this Court on 6 September 2016 and 22 September 2017. By the order dated 6
September 2016, this Court directed the appellant to pay a return of ten per cent to
those flat purchasers who continue to stay in the project. By the order dated 22
September 2017, an exit option was granted to those who sought refunds to take the
amounts invested with interest at the rate of twelve per cent per annum.
160 The position as indicated to this Court by Mr Ravindra Kumar, learned
Counsel, in respect of flats in Apex and Ceyane (T-16 and 17) is as follows:
(i) Number of flats: 915;
(ii) Number of shops: 21
(iii) Number of bookings: 633;
(iv)Persons who have reinvested in other projects of the developer: 133;
(v) Purchasers to whom refund has been granted: 248; and
PART H
132
(vi)Remaining purchasers: 252.
161 The above position indicates that following the opt-out which was provided in
terms of the order of this Court, 248 purchasers have opted for refunds while 252
purchasers in T-16 and T-17 remain committed to the project.
162 Mr Gaurav Agarwal, learned Amicus Curiae has rendered comprehensive
assistance to the Court. Apart from urging his submissions in an objective and
dispassionate manner, the Amicus Curiae has painstakingly complied the pleadings,
documents and statutory provisions to facilitate the convenience of arguing Counsel
and the Court. We record our appreciation for the assistance which has been
rendered by the Amicus Curiae. The Amicus Curiae has also prepared a note for the
purpose of segregating the applications which have been filed by home buyers into
distinct categories, and suggesting reliefs to each category based on the outcome of
the proceedings. These categories are:
Category I
163 Buyers who have received ROI payments:
(i) By its orders dated 6 September 2016 and 11 January 2017, this Court
directed that those home buyers who have chosen to stay on with the project
and do not desire refund should be paid ROI at ten per cent per annum; and
(ii) Thirteen persons filed applications before this Court claiming that ROI
payments were not made by the appellant. The appellant has intimated the
payments which are due till July 2021. Though, the home buyers claim higher
PART H
133
amounts, the Amicus Curiae has proceeded on the figures furnished by the
appellant which are tabulated as follows:
Sr.
No.
Name IA no. Interest due till 1st
July, 2021 as per
email received
from Supertech
Name of AOR
1 Aarti Puri 55556/2021 Rs. 16,78,720 Nishe Rajen
Shonker
2 Divay Puri 80599/2021 Rs. 16,78,548 Do
3 Jatin Vardi 55562/2021 Rs. 11,65,686 Do
4 Amit Khanna 56228/2021 Rs. 11,65,686 Do
5 Narinder Thakur 55550/2021 Rs. 10,41,578 Do
6 Manju Kohli 142969/2014 Rs. 6,78,524 Do
7 Namrata Tuli 142975/2018 Rs. 8,26,616 do
8 Mahesh Jaura 80916/2019 Rs.1,11,160 do
9 Kavita Jaura 80875/2019 Rs. 2,01,299 do
10 Hemendra Varshney 80879/2019 Rs. 1,33,980 do
11 Shachi Varshney 80881/2019 Rs. 1,31,988 do
12 Bandana Kedia 80918/2019 Rs. 1,31,700 do
13 Sapna Ahluwalia 43555/2021 Rs. 19,87,020 do
164 The submission of the Amicus Curiae is that if the buildings were to stand, the
home buyers may be paid the above ROI. On the other hand, if the buildings are to
be demolished, the home buyers should receive refund with interest and the
amounts would be subsumed in the interest to be paid. Since this Court has come to
the conclusion that the buildings are to be demolished, the general directions in
regard to refund together with interest will subsume the claims of the above home
buyers.
Category 2
165 Homebuyers to whom principal has been paid but interest payments have
remained:
PART H
134
(i) By an order dated 30 July 2018, this Court directed that homebuyers who had
registered on the portal and were willing to take twelve per cent simple
interest per annum from the date of deposit till the date of payment towards
full and final payment would be refunded the principal sum together with
interest at the above rate on filing affidavits to that effect; and
(ii) The registry has refunded the principal sum to thirteen homebuyers but since
their affidavits were not received by the Amicus Curiae within time, interest
remained to be paid. The details have been tabulated by the Amicus Curiae
as follows:
Sr.
No.
Name Interest payable IA no. Name of AOR
1 Anuj Goyal Rs. 31,40,704 69916-69917 of
2019
Abhijeet Sinha
2 Sumit Goel Rs. 28,97,199
3 Priya Goel Rs. 28,97,199
4 Mukta Jain Rs. 30,10,253
5 Subhash Chand
Jain
Rs. 29,05,957
6 Abhishek Jain Rs. 30,42,129
7 Abhishek Jain Rs. 30,22,785
8 Herbinder Singh Rs. 32,84,789
9 Vineet Kapoor Rs. 28,90,491
10 Vishal
Maheshwari
Rs. 22,45,399 24823/2020 Nishe Rajen
Shonker
11 Shipli
Maheshwari
Rs. 15,30,585 24834/2020 do
12 Poonam Lata
Kushwaha
Rs. 29,22,513 120666/2019
&
120669/2019
Sweta Rani
13 Paramita Ray Rs. 40,65,228 In-person
166 The Amicus Curiae has submitted that irrespective of the fate of the
pleadings, the appellant should be directed to refund the interest as computed
above since the above homebuyers have exited from the project. We accept the
PART H
135
submission and direct the appellant to refund interest payments to the thirteen
homebuyers as tabulated above within two months.
Category 3
167 Home buyers under a ‘subvention scheme’:
(i) Under the subvention scheme, a home loan is taken in the name of the
homebuyer but EMIs are to be paid by appellant till possession is granted.
Certain homebuyers are governed by the subvention scheme. There is a
default by the appellant in paying the EMIs;
(ii) By an order dated 30 July 2018, this Court directed the appellant to continue
paying the EMIs. Sixteen homebuyers have moved this Court for a direction
for payment of the balance EMIs due;
(iii) The Amicus Curiae has tabulated the interest payable to the homebuyers (as
computed by them and by the appellant separately):
Sr.
No.
Name Interest as
indicated by
homebuyer
Interest as
indicated by
Supertech
IA no. Name of AOR
1 Parvinder
Singh
Rs. 11,71,110 Rs. 8,81,847 24814,
24825,
24839,
24848,
24972,
24973,
24974,
24978,
24984,
24985,
24989,
24992,
24996,
Khaitan & Co.
2 Amit Mangla Rs. 12,09,052 Rs. 12,09,052
3 Binod Kumar Rs. 11,73,902 Rs. 8,43,073
4 Shailesh Kr
Singh
Rs. 11,69,640 Rs. 8,51,310
5 Dev Verma Rs. 11,73,919 Rs. 8,58,311
6 Naveen
Kumar
Rs. 16,08,467 Rs. 11,07,792
7 Vaibhav
Mishra
Rs. 11,66,778 Rs. 8,37,666
8 Mandar
Hastekar
Rs. 11,66,826 Rs. 8,53,381
PART H
136
9 Ashish
Sharma
Rs. 11,73,092 Rs. 8,25,030 24997, 29374
&
10 Hrisikesh- 29386/2020
Kshitiza
Bawa
Rs. 11,73,919 Rs. 8,39,984
11 Babneet
Singh
Rs. 11,74,308 Rs. 8,40,383
12 Romit
Agarwal
Rs. 11,66,182 Rs. 8,59,768
13 BhupinderPuran Das
Pruthi
Rs. 11,51,855 Rs. 9,43,782
14 Nilay Ashmi Rs. 11,67,529 Rs. 8,29,579
15 Manoj Kr
Pamneja (*)
Rs. 8,10,866 Nil 25950/18 Krishnamohan
K
16 Sandeep Jain
(*)
Rs. 8,10,866 nil 67854 &
67856/2020
Arjun Garg
The Amicus Curiae submits that the amounts calculated above be paid.
168 The Amicus Curiae submitted that if the buildings are ordered to be
demolished, the appellant may close the home loans and refund the amounts
contributed by the homebuyers with such interest as this Court may determine. On
the other hand, if the buildings stand, the appellant may be directed to clear the
outstanding EMIs and continue paying them until possession. Since the buildings
have been ordered to be demolished under the directions of this Court in the present
judgment, the appellant shall close the home loans and refund the amounts
contributed by each of the above home buyers with interest at the rate of twelve per
cent per annum within two months.
PART H
137
Category 4
169 There are two IAs in which the homebuyers have a dispute with the appellant
relating to the amounts due to the homebuyers:
(i) In IA No 56187/2021, Mr DP Tripathi was allotted Flat No 1105 in Apex. A
total amount of Rs 31,70,410 was paid for the flat. Out of this amount, Rs.
14,25,000 was funded by loan. The appellant paid the loan pursuant to an
order of this Court. However, the applicant has paid the balance amount of Rs
17,45,410 out of his own funds towards the flat, and Rs 6,58,700 as loan
repayments before it was ultimately settled by the appellant. ROI payments
for 27 months amounting to Rs 5,20,315 have been received from the
appellant. Thus, the case of the applicant is that a sum of Rs 18,83,795
remains invested by the applicant, which may be ordered to be refunded. In
contrast, the appellant has stated that this dispute has been settled by the
Debt Recovery Tribunal and nothing is payable; and
(ii) In IA No 67028/2017, Mr Raj Kishore had purchased Flat No 3507, in respect
of which the amount has been refunded along with interest. A cheque of Rs
67,319 bearing no 213233 for the last payment remained to be encashed due
to oversight. The Amicus Curiae has suggested that the appellant may be
directed to issue a fresh cheque pertaining to this payment.
170 With regards to IA No 56187/2021, since the underlying dispute regarding
payment is pending in this IA, it is de-linked and will be heard separately. In IA No
PART H
138
67028/2017, the appellant is directed to provide a fresh cheque for an amount of Rs
67,319 to the applicant within one month.
Category 5
171 Application of homebuyers which have been rendered infructuous. The
Amicus Curiae has tabulated applications which have been rendered infructuous,
indicating the reasons for the same:
Applications of home buyers which are rendered infructuous
Sr.
No.
Name of homebuyers IA no. Name of AOR Reasons
1 Leo VIII Films Pvt.
Ltd.
18211/2018
18217/2018
Nitish Massey Refund received
with interest
2 Raj Kishore 67028/2017 Mahima Gupta Refund received
with interest
3 Sajeev Katarya 24785/2017 Rajeev Singh Refund received
with interest
4 Girish Arun Singpote 175122 & 175124
of 2018
UNUC Legal LLP Applicants have
not applied in
portal
5 Darpan Bhargav 137549/2018 Gopal Jha Applicant has not
applied in portal
6 1)Arvind Kaur Sodhi
2) Amarjit Singh
Rana & Jasjit Kaur
18064-18066/2020 Gopal Jha Applicants have
not applied in
portal
7 Poonam Kulbir
Krishnan
6919/2018 Aparna Bhat This does not
relate to this
project, but it
relates to the
project in
Gurgaon
8 Sanjay Bahl 24785/17 Rajeev Singh Refund already
paid @12%
9 Mini Kohli & Ors. 68049/17 PK Jain Refund already
paid with interest
10 Vibhav Bindal 96289/17 Pinky Behera Refund already
paid with interest
11 Sayed Asad Ahmad 11/15 in SLP Shantanu Applicant has not
PART H
139
14314/14 Krishna applied in portal
12 Vivek Sharma &
others
12/2015 in SLP
14314/14
Rajeev Singh Applicant has not
applied in portal
13 Usha Rani & others 14/16 in SLP
14314/14
Rajeev Singh There are
number of
applicants in this
application.
Some of them
got refund with
interest. Others
did not apply.
14 Vishal Raj Singh IA 15/2016 in SLP
14314/14
Rajeev Singh Applicant has not
applied in portal
15 Ishwar Kumar Singh IA 16/2016 Amit Anand
Tiwari
Refund already
paid with interest
16 Sanjeev Katariya IA 17/2016 in SLP
14314/14
Rajeev Singh Refund already
paid with interest
17 Ms. Raj Kishore &
another
IA 18/2016 in SLP
14314/14
Mahima Gupta One applicant
has already paid
refund with
interest and other
did not apply in
portal
18 Mini Kohli & others IA 21/17 in SLP
14314/14
PK Jain Some applicants
have already
paid refund with
interest and other
did not apply in
port.
19 Rashmi Arora 121826,121828/17 MC Dhingra Refund already
paid with interest
20 Jitendra Kumar
Sabharwal & others
IA 121085/17 Rajeev Singh Some applicants
have already
paid refund with
interest and other
did not apply in
port.
21 Poonam Kulbir
Krishan
14898/18 Aparna Bhat This does not
relate to present
project.
22 Usha Rani & others 35845/21 Avjit Mani
Tripathi
Most of the
applicants have
get refund of with
12%. Now they
want 14%
interest.
23 Manprit Kaur IA 20/18 &
95793/16 in SLP
Anupam Lal Das Refund already
paid with interest
PART H
140
14314/14
24 Sajeev Aggrawal IA 121841/17 &
121842/17
MC Dhingra Refund already
paid with interest
172 The above applications are disposed of as infructuous.
173 The appeals shall stand disposed of in the above terms. The contempt
petitions are disposed of accordingly.
174 Pending application(s), if any, stand disposed of.
…………………..…………………………J
[Dr Dhananjaya Y Chandrachud]
………..………….…………………………J
[MR Shah]
New Delhi;
August 31, 2021
