SUPERTECH LIMITED versus EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION & ORS. on 31 August 2021

SUPREME COURT REPORTS

[2021] 13 S.C.R.

SUPERTECH LIMITED

A

v.

EMERALD COURT OWNER RESIDENT WELFAREASSOCIATION & ORS.

(Civil Appeal No. 5041 of 2021)

B

AUGUST 31, 2021

[DR DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

National Building Regulations, 2006 – Regulation 33.2.3 –CNational Building Code 2005 – UP Apartment Act 2010 – ss. 4(1),4(4), 5 – Adherence to minimum distance requirement betweenbuildings – Collusion and illegal construction – Demolition of twotowers – NOIDA allotted to the appellant a plot of land for thedevelopment of a group housing society and sanctioned the buildingDplan for the construction of fourteen towers, each with ground andnine floors (G+9) – On 05.12.2006, the New Okhla IndustrialDevelopment Area Building Regulations and Directions (NBR 2006)were notified – On 29.12.2006, NOIDA sanctioned the first revisedplan by which additional buildings were also sanctioned and twoadditional floors were envisaged in addition to already sanctionedE(G+9) – Additional buildings were sanctioned, namely (i) Tower-15(G+11), (ii) Tower-16 (G+11) and (iii) a shopping complex – In thesecond revised plan, the earlier T-16 (G+11) was replaced with aT-16 (G+24) and similarly, the shopping complex was replaced withT-17 (G+24) – T-16 and T-17 would each be of a height of 73 mtrsFand according to the plan, T-17 was to be at a distance of 9 mtrs.from T-1 – In the third revised plan, the height of T-16 and T-17 waspermitted to be raised from 24 floors to 40 floors (i.e., G+40),resulting in the building’s height being 121 mtrs. – The firstrespondent addressed a communication to NOIDA complaining ofviolations – Thereafter, first respondent filed a writ petition in theGHigh Court and sought quashing of revised plan of disputed towersand also prayed that the illegal structure be demolished – The HighCourt allowed the writ petition and directed the demolition of T-16and T-17, with the expenses of the demolition being borne by theappellant and to refund the consideration received from flatHpurchasers who had booked apartments – It further directed the

Competent Authority to grant sanction for the prosecution of NOIDA’sofficials – On appeal, held: The National Building ConstructionCorporation Limited (NBCC) concluded that the said two towersare not compliant with Regulation 24.2.1.6 of the NBR 2010 – Thepurpose of stipulating a minimum distance between buildings is amatter of public interest in planned development – The residentswho occupy constructed areas in a housing project are entitled toventilation, light and air and adherence to fire safety norms – Asper Regulation 33.2.3 of the NBR 2006, the minimum distancebetween T-17 and T-1, should be half of the height of the tallestbuilding, that is, half of the height of T-17 which is 36.5 mtrs – It isevident from the record that the distance between T-1 and T-17 is 9mtrs. only, thus, clearly the second revised plan was violative of theNBR 2006 – In the third revised plan the height of T-16 and T-17was increased to 121 mtrs. – In accordance with Regulation 24.2.1.6of NBR 2010, the spacing between a building of height 121 mtrs.and another building would be 16 mtrs. however, the distancebetween disputed towers was 9 mtrs. – Consequently, the thirdrevised plan was in violation of NBR 2010 – The construction ofT-16 and T-17 in accordance with the second revised plan and thethird revised plan reduced the value of the undivided interest heldby each individual flat owner in the common areas and facilities,thereby violating s.5 of the UP 1975 Act and s.5 of the UP ApartmentsAct 2010, since the flat owners’ consent was not sought – Further,the third revised plan encroached upon the garden area in front ofT-1, thereby resiling from the representation that was made to theflat owners at the time when they purchased the apartments in T-1,without their consent – Therefore, it constituted a violation of s.4(1)r/w. the proviso to s.4(4) of the UP Apartments Act 2010 – The casehas revealed a nefarious complicity of the planning authority in theviolation by the developer of the provisions of law – NOIDA madeno effort to ensure compliance of the UP Apartments Act 2010, as aresult of which the rights of the flat purchasers was brazenly violated– The illegal construction of T-16 and T-17 was achieved throughacts of collusion between the officers of NOIDA and the appellantand its management – The High Court has correctly come to theconclusion that there was collusion between the developer and theplanning authority – Therefore, the directions of the High Courtincluding the order of demolition and for sanctioning prosecution AB

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Aagainst the officials of the appellant and the officers of NOIDA forviolations of the UPIAD Act 1976 and UP Apartments Act 2010 isconfirmed – National Building Regulations 2010 – Regulation24.2.1.6 – Uttar Pradesh Industrial Area Development Act, 1976 –sec. 12 – Uttar Pradesh Urban Development Act, 1973 – sec. 49 –Uttar Pradesh Ownership of Flats Act 1975 – ss. 3(d), 5.B

Disposing of the appeals, the Court

Conclusion

HELD: 1. There was a challenge to the revised plans bywhich the construction and increase in the height of T-17 (Apex)and T- 16 (Ceyane) were envisaged. In the first revised plan ofC29 December 2006, T-16 was to partially comprise of G+11, therest being G+4. A shopping complex was envisaged comprisingof G+1 floors. A triangular green area is indicated in the firstrevised plan of 29 December 2006 in front of T-1. In the secondrevised plan of 26 November 2009, T-17 (Apex) and T-16(Ceyane) came to be envisaged with twenty-four floors and of aDheight of 73 mtrs. each. In the third revised plan of 2 March2012, the number of floors of T-16 and T- 17 was increased furtherfrom twenty-four to forty floors (for T-16) and thirty-nine floors(for T-17), and the height of each of the towers was increasedfrom 73 mtrs. to 121 mtrs. In this backdrop, the relief which wasEsought in prayer (i) was for quashing the revised plan for theconstruction of the two new towers – T-17 (Apex) and T-16(Ceyane). This clearly implicates a challenge both to the secondrevised plan of 26 November 2009 as well as the third revisedplan of 2 March 2012. [Para 47][1019-F-H; 1020-A-B]

F2. A brazen attempt at stonewalling the first respondentwas made by the appellant and NOIDA before the High Court.The sanctioned plans incorporate the condition that a copy ofeach plan would be made available at the site. Despite this, whenthe first respondent sought copies of the sanctioned plans andother information, NOIDA wrote to the appellant asking for theirGconsent to provide the plans to the first respondent. When theappellant refused, NOIDA’s refusal to the RWA followed suit. Itwas only pursuant to the interim directions of the High Courtthat the sanctioned plans and documents were provided to thefirst respondent. The reliefs which have been sought encompass H

a challenge to the validity of the second and third revised plans,under which the two towers, T- 17 (Apex) and T-16 (Ceyane),were being constructed. [Para 48][1020-C-E]

Violation of distance requirement under BuildingRegulations

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

4. Regulations 33.2.3 of the NBR 2006 refers to thedistances between adjacent ‘building blocks’ which shall not beless than half of the height of the tallest building. The purpose ofthis regulation is not to apply it only as between building blocksas distinguished from buildings within a block. Clause (1) ofRegulation 33.2.3 has used the expression ‘building blocks’ and‘height of tallest building’ in the same sentence. Theseexpressions must be given a meaning which accords with commonsense and in furtherance with the object and the purpose of thesaid Regulation. The plain meaning of the expression is that whenthere are two adjacent blocks, the height of the tallest buildingwill determine the distance required to be observed, with thedistance being not less than half the height of the tallest building.Consequently, when two or more buildings exist in proximitytogether, they comprise of a building block within the meaning ofClause (1) of Regulation 33.2.3. In such an eventuality, thedistance between each of the buildings comprised in the blockshall also not be less than half of the height of the tallest building.The reference to the height of the tallest building is evidentlymade because this kind of a building will likely overshadow thebuildings of a lesser height in a cluster of proximate construction.Therefore, the regulation has defined the minimum distancerequired with reference to half the height of the tallest building.Any other construction will defeat the purpose of Regulation33.2.3 and cannot be accepted. [Para 68][1033-D-H]

5. Applying the NBR 2006 to the facts of the present case,the construction of T- 16 and T-17 was envisaged in the second A

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Arevised plan dated 26 November 2009. The height of the saidtowers was to be 73 mtrs., while the height of other towers,including T-1, was to be 37 mtrs. Thus, as per Regulation 33.2.3of 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 ofthe height of T-17 which is 36.5 mtrs. It is evident from the recordBthat the distance between T-1 and T-17 is 9 mtrs. only. Thus,clearly the second revised plan was violative of the NBR 2006.[Para 69][1034-A-B]

6. Now, coming to the NBR 2010. Regulation 24.2.1(6) hasprescribed the requirement of maintaining varying distancesCbetween two adjacent blocks from a minimum of 6 mtrs. extendingup to 16 mtrs., depending on the height of blocks. The content tothe first sentence of this regulation is further amplified by whatfollows it. The next part of the regulation stipulates that for abuilding of height up to 18 mtrs., “spacing” shall be 6 mtrs. TheDexpression “spacing” in its plain terms means the observance ofa stipulated distance. Where the height of the building is up to 18mtrs., “the spacing” shall be 6 mtrs. Thereafter, for a height above18 mtrs., the minimum distance has to be increased by one meterfor an additional height of three mtrs. subject to a maximumdistance or spacing of 16 mtrs. “as per National Building Code –E2005”. [Para 70][1034-C-E]

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

8. The only reasonable hypothesis which emerges from thedisclosures made is that the argument which was sought to beadvanced – that Towers 1, 16 and 17 are part of a cluster ofHbuildings comprised within a block, thus obviating the need to maintain the minimum distance between them – is anafterthought. It is contrary to the stated position which has beenadopted by the appellant in its affidavit before the High Court.The record before this Court also indicates that the appellanthas taken liberties with the truth in making the submission that acluster of towers in the project constitutes a block which allowsthe appellant to subvert the minimum distance requirement. [Para82][1043-F-G]

9. Significantly, it must be noted that the second revisedplan of 2009, which has been placed on record, does not showthe existence of blocks and is duly endorsed by NOIDA. Similarly,the third revised plan of 2012, which is also on the record, doesnot embody any description of blocks. Therefore, this Court is inno manner of doubt that the argument sought to be developed inthe course of these proceedings that there were separate blocksin the plan is an afterthought. It is contrary to the stated positionwhich has been adopted by the appellant on affidavit before theHigh Court. It is contrary to the sanctioned plans. What is worseis that an effort was made to place on the record before the HighCourt a purported plan of dubious origin by seeking to pass it ofas the second revised plan of 2009. [Para 86][1046-C-D]

Interpretation of “dead end sides of buildings”

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

(i) The windows/corridors of T-17 on all floors except theground floor have an opening on the side that faces T-1. Thoughthis is contested by the appellant, it has been conceded that thereare at least a few windows/balconies in T-1 facing T-17 and viceversa;

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

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

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AHowever, the fifth side is a balcony of the living room facingT-17. The distance between points of the buildings cannot beselectively measured to argue its compliance with the distancerule; and

(iv) Even though the entry of T-1 facing T-17 is 20 mtrs.Baway, the distance rule is not complied with since a selectivemeasurement 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 ofNBR 2010 and do not fall under the exception provided inCRegulation 24.2.1.6 for blocks having dead end sides. [Para111][1059-E-H; 1060-A-B]

Violation of NBC 2005

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

Violation of Fire Safety Norms

12. Regulation 76 of NBR 2006 states that the building mustbe planned and constructed in accordance with Part IV of NationalBuilding Code 1970, amended as of that day. Para 4.6 of NBCF2005 states that the approach to the building and the open spaceson all the sides of a high rise building shall be 6 mtrs. and that thelayout of the building must be made in consultation with the CFO.However, para 8.2.3.1 of NBC 2005 prescribes a minimum of 16mtrs. side and rear spaces for buildings that are higher than 55mtrs. Therefore, on reading NBC 2005 as a whole, the side andGrear space around the building must be 16 mtrs. The distancebetween T-1 and T-17 is only 9 mtrs., which is less than therequired 16 mtrs. Given that the rear distance requirement underNBC 2005 has not been complied with, the NOC given by theCFO stands automatically cancelled. [Paras 119-120][1063-B-D]H

Consent of the RWA

13. Having held above that the sanction for the constructionof T-16 and T-17 were given by NOIDA in contravention of theminimum distance requirement provided by the BuildingRegulations, we will advert to the next issue. It has beencontended by RWA that the sanction could not have been revisedwithout the consent of the flat purchasers in the original fifteentowers. While analyzing this issue, it is first important to considerthe appellant’s preliminary objection that the UP 1975 Act is notapplicable to the present case. After addressing the preliminaryobjection, this Court shall analyze whether the consent wasactually required under the UP 1975 Act and UP Apartments Act2010. [Para 121][1063-E-G]

Applicability of UP 1975 Act

14. Under sub-Section (2) of Section 5, the percentage ofthe undivided interest of each owner of a flat in the common areasand facilities, as expressed in the Declaration, shall not be alteredwithout the consent of all the owners of the flats expressedthrough an amended Declaration which shall be executed andregistered under the Act. [Para 124][1065-C-D]

15. The submission urged on behalf of the appellant is thatthe UP 1975 Act has no application to the present case, in view ofthe provisions of Section 2. In the backdrop of this provision,more particularly, clause II(h) of the lease deed which wasexecuted by NOIDA in favour of the appellant on 16 March 2005,the appellant was duty bound to comply with the provisions ofthe UP 1975 Act. By submitting before this Court that it is notbound by the terms of its agreement or the Act for want of adeclaration under Section 2, the appellant is evidently attemptingto take advantage of its own wrong. [Paras 125 and 129][1067-B;1068-E-F]

Applicability of the UP Apartments Act 2010

16. It is important to clarify that the UP Apartments Act2010 will not apply with retrospective effect to the second revisedplan, which was sanctioned on 26 November 2009. However, thelegislation, which came into force upon publication in the UP

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AGazette on 19 March 2010, will have consequences for the thirdrevised plan sanctioned on 2 March 2012. [Para 136][1073-B-C]

Requirement of RWA’s Consent

17. Finally, the appellant has also tried to argue that: (i) theconsent of each individual flat owner could not be taken and itBhad to be taken from the RWA, as a collective body; (ii) the RWAonly came into existence on 20 October 2013, when it adoptedthe 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. TheCHigh Court had dealt with this argument. It is clear that: (i) theRWA came into existence in 2009 itself, when the first lot ofapartment owners moved in; (ii) the appellant was communicatingwith the RWA ever since; and (iii) the RWA adopted the ModelBye-Laws under the UP Apartments Act 2010, as soon as it waspracticable. These averments have not been challenged beforeDthis Court during the oral submissions by the appellant, and hence,it will be held bound by its own conduct. In any case, rights underthe UP 1975 Act and UP Apartments Act 2010 have been providedto individual flat owners, and not to collective bodies like theRWA. Hence, even the non-constitution of the RWA will notEextinguish the rights of individual flat owners. Indeed, however,when such RWAs do exist, developers may use them to seek acommon consent from all the flat owners instead of approachingthem all individually. [Para 142][1076-C-D; 1077-B-C]

Collusion and Illegal ConstructionF

18. The record of this case is replete with instances whichhighlight the collusion between the officers of NOIDA with theappellant and its management. The case has revealed a nefariouscomplicity of the planning authority in the violation by thedeveloper of the provisions of law. The complicity of NOIDA hasGemerged, inter alia, from the following instances:

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

(ii) The refusal by NOIDA to disclose the building plans tothe first respondent, in spite of a clear stipulation consistently inH

all the sanctioned plans that the plan would have to be displayedat the construction site of the appellant;

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

(iv) Even when the CFO addressed a communication toNOIDA in regard to the violation of the minimum distancerequirements in Emerald Court, it evinced no response and noinvestigation from them;

(v) In pursuance of the second revised plan of 26 September2009, the appellant would appear to have built a foundation tosupport two buildings of forty and thirty-nine floors, while thesanction for the extension from twenty-four to forty or thirty-ninefloors came about only on 2 March 2012 through the third revisedplan; and

(vi) The construction for T-16 and T-17 commenced in July2009 by the appellant, five months before the sanction wasreceived for the second revised plan on 26 November 2009, inspite of which NOIDA chose to take no action. [Para 143][1077-D-H; 1078-A-C]

19. The judgments of this Court spanning the last fourdecades emphasize the duty of planning bodies, while sanctioningbuilding plans and enforcing building regulations and bye-laws toconform to the norms by which they are governed. A breach bythe planning authority of its obligation to ensure compliance withbuilding regulations is actionable at the instance of residentswhose rights are infringed by the violation of law. Their quality oflife is directly affected by the failure of the planning authority toenforce compliance. Unfortunately, the diverse and unseen groupof flat buyers suffers the impact of the unholy nexus betweenbuilders and planners. Their quality of life is affected the most.Yet, confronted with the economic might of developers and themight of legal authority wielded by planning bodies, the few whoraise their voices have to pursue a long and expensive battle forrights with little certainty of outcomes. As this case demonstrates,they are denied access to information and are victims of A

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Amisinformation. Hence, the law must step in to protect theirlegitimate concerns. [Para 148][1079-E-G]

20. In the present case, once this Court has determinedthat the sanctioned plan for Apex and Ceyane (T-16 and T-17)breached the NBR 2006, NBR 2010, NBC 2005, UP 1975 ActBand the UP Apartments Act 2010, it becomes its duty to takestock of the violations committed by the appellant in collusionwith NOIDA. The appellant has raised false pleas and attemptedto mislead this Court, while the officials of NOIDA have not actedbona fide in the discharge of their duties. The appellant hasstooped to the point of producing a fabricated sanctioned plan.CTherefore, the directions of the High Court including the orderof demolition and for sanctioning prosecution under Section 49of the UPUD Act, as incorporated by Section 12 of the UPIADAct 1976, against the officials of the appellant and the officers ofNOIDA for violations of the UPIAD Act 1976 and UP Apartments DAct 2010 is confirmed. [Para 155][1084-C-E]

Conclusion

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

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

(ii) The land which was allotted through the supplementarylease deed forms a part of original Plot No 4, and would begoverned by the same terms and conditions as the original leasedeed;F

(iii) The sanction given by NOIDA on 26 November 2009and 2 March 2012 for the construction of T-16 and T-17 is violativeof the minimum distance requirement under the NBR 2006, NBR2010 and NBC 2005; G(iv) An effort was made to get around the violation of theminimum distance requirement by representing that T-1 togetherwith T-16 and T-17 form one cluster of buildings in the sameblock. This representation was sought to be bolstered byproviding a space frame between T-1 and T-17. The case thatT-1, T-16 and T-17 are part of one block is directly contrary toH

the appellant’s stated position in its representations to the flatbuyers as well as in the counter affidavit before the High Court.The suggestion that T-1, T-16 and T-17 are part of one block isan after-thought and contrary to the record;

(v) After realizing that the building block argument wouldnot pass muster, another false case was sought to be set up withthe argument that T-1 and T-17 are dead end sides, therebyobviating the need to comply with the minimum distancerequirements. This argument is belied by the comprehensivereport submitted by NBCC. The sides of T-1 and T-17 facingeach 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 withthe Building Regulations, the fire safety norms have also beenviolated;

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

(viii) T-16 and T-17 are not part of a separate and distinctphase (Phase–II) with separate amenities and infrastructure. Thesupplementary lease deed stipulates that the they are part of theoriginal project. Hence, the consent of the individual flat ownersof the original fifteen towers, individually or through the RWA,was a necessary requirement under the UP Apartments Act 2010and UP 1975 Act before T-16 and T-17 could have beenconstructed, since they necessarily reduced the undividedinterest of the individual flat owners in the common area by addingnew flats and increasing the number from 650 to 1500; and Theillegal construction of T-16 and T-17 has been achieved throughacts of collusion between the officers of NOIDA and the appellantand its management. [Para 156][1084-F-G; 1085-A-H; 1086-A-C]

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A22. For the reasons indicated above, this Court has cometo the conclusion that:

(i) The order passed by the High Court for the demolitionof Apex and Ceyane (T-16 and T-17) does not warrant interferenceand the direction for demolition issued by the High Court isBaffirmed;

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

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

(iv) The work of demolition shall be carried out under theDoverall supervision of CBRI. In the event that CBRI expressesits inability to do so, another expert agency shall be nominatedby NOIDA;

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

(vi) The appellant shall within a period of two months refundto 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 withFinterest at the rate of twelve per cent per annum payable witheffect from the date of the respective deposits until the date ofrefund in terms of Part H of this judgment; and

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

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

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENTWELFARE ASSOCIATION

733 : [2004] 5 Suppl. SCR 818; Priyanka EstatesInternational (P) Ltd. v. State of Assam (2010) 2 SCC27 : [2009] 16 SCR 80; Esha Ekta Apartments Coop.Housing Society Ltd. v. Municipal Corpn. of Mumbai(2013) 5 SCC 357 : [2013] 4 SCR 478 – relied on.

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

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5041of 2021.

From the Judgment and Order dated 11.04.2014 of the High Courtof Judicature at Allahabad in Writ Petition (Civil) No. 65085 of 2012.

With

Civil Appeal Nos. 5042, 5043, 5044, 5045, 5046, 5047, 5048, 5049,5050 of 2021, Contempt Petition (C) No. 380 of 2021 in SLP (C) No.14314 of 2014, Contempt Petition (C) No. 381 of 2021 in SLP (C) No.14314 of 2014, Contempt Petition (C) No. 382 of 2021 in SLP (C) No.14314 of 2014, Contempt Petition (C) No. 383 of 2021 in SLP (C) No.14314 of 2014 and Contempt Petition (C) No. 384 of 2021 in SLP (C)No. 14314 of 2014.

Vikramjit Banerjee, ASG, Vikas Singh, Ms. Meenakshi Arora,Jayant Bhushan, Raviondra Kumar Raizada, Sr. Advs., R. Chandrachud,Rajnish Singh, Kapish Seth, Ms. Deepika Kalia, Sandeep Rana, A

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AMs. Tanya Kalra, Anurag Dubey, Sarvendra Singh, S.R. Setia, T.V.S.Raghavendra Sreyas, Ms. Gayatri Gulati, Siddharth Vasudev, Ms. MahimaGupta, Ravindra Kumar, Somiran Sharma, M. Shoeb Alam, FaisalSherwani, Shantanu Krishna, Shubham Saigal, Ashish Rana, GauravAgrawal, Abraham Mathew, Nishe Rajen Shonker, Mullapudi Rambabu,S.A. Haseeb, M.K. Maroria, Ms. Aakansha Kaul, Digvijay Dam, UmangBShankar, Rajeev Singh, Ms. Pinky Behera, Mrs. Bina Gupta, VishwaPal Singh, Anish Agarwal, Ms. Vanshika Gupta, Kunal Ravi, Ketan Paul,Tushar Bhushan, Amartya Bhushan, Gaurav Kejriwal, Ravi PrakashMehrotra, Milind Kumar, Bhakti Vardhan Singh, Rajeev Kumar Dubey,Saurav Singh Chauhan, Ashiwan Mishra, Kamlendra Mishra, TarunCGupta, Ms. Prachi Mishra, Chaitanya Bansal, Arjun Garg, M.C. Dhingra,Ms. Trishala Trivedi, Ajay Bhargava, Ms. Vanita Bhargava, Ms. MaithiliMoondra, M/s Khaitan & Co., J.B. Mudgil, Ms. Sweta Rani, SumeetAgarwal, Abhijeet Sinha, Ms. Dania Nayyar, Krishnamohan K.,M/s Unuc Legal Llp, Ms. Aparna Bhat, Sumit R. Sharma, Gopal Jha, P.S. Gosain, Shreyash Bhardwaj, Nishant Verma, Mohammed SadiqueDT.A., Nitish Massey, Advs. for the appearing parties.

Intervenor-in-person.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.EINDEX

A Factual and procedural history

A.1 The appeals

A.2 The Emerald Court projectF

A.3 First Revised Plan

A.4 Second Revised Plan

A.5 Third Revised Plan

GA.6 Complaints against the Revised Plans A.7 Proceedings before the Allahabad High Court A.8 Proceedings before this Court B Submissions by Counsel HC Prefatory observations D Violation of distance requirement under BuildingRegulations 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”

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

1. Leave granted.

A Factual and procedural history

A.1 The appeals

2. These appeals have arisen from a judgment of a Division Benchof the High Court of Judicature at Allahabad dated 11 April 2014, upon awrit petition[1] instituted by the first respondent, the Residents’ WelfareAssociation[2] of Emerald Court Group Housing Society[3].

3. By its judgment, the High Court directed:

(i) The demolition of Towers -16[4] and 17[5] by the thirdrespondent, New Okhla Industrial Development Authority[6],in Emerald Court situated on Plot No 4, Sector 93A, NOIDAconstructed by the appellant, Supertech Limited[7]; 1 Writ Petition (Civil) No 65085 of 2012

2 “RWA”

3 “Emerald Court”

4 “T-16”/”Ceyane”

5 “T-17”/”Apex”

6 “NOIDA”

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A(ii)The cost of demolition and removal would be borne by theappellant, failing which NOIDA shall recover it as arrearsof land revenue;

(iii) Sanction for prosecution under Section 49 of the UttarPradesh Urban Development Act 1973[8], as incorporatedBby Section 12 of the Uttar Pradesh Industrial AreaDevelopment Act 1976[9], shall be granted for the prosecutionof the officials of the appellant and the officers of NOIDAfor possible violations of the UPIAD Act 1976 and UttarPradesh Apartment (Promotion of Construction, Ownership& Maintenance) Act 2010[10]; and C

(iv) Refund by the appellant of amounts invested by purchaserswho had booked apartments in T-16 and T-17, with interestat fourteen per cent, compounded annually.

4. The correctness of these directions is challenged before thisDCourt in the present appeals.

A.2 The Emerald Court project

5. On 23 November 2004, NOIDA allotted to the appellant a plotof land admeasuring 48,263 sq. mtrs., which was a part of Plot No 4situated in Sector 93A. This plot of land was allotted for the developmentEof a group housing society, by the name of Emerald Court.

6. The first deed of lease was executed on 16 March 2005between the appellant and NOIDA. A possession certificate was issuedon 17 March 2005.

7. On 20 June 2005, NOIDA sanctioned the building plan for theFconstruction of Emerald Court consisting of fourteen towers, each withground and nine floors (G+9). This sanction was granted under the NewOkhla Industrial Development Area Building Regulations and Directions1986[11]. The construction commenced for these fourteen towers.

A.3 First Revised Plan

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7 “Supertech”8 “UPUD Act 1973”

9 “UPIAD Act 1976”

10 “UP Apartments Act 2010”

H11 “NBR 1986”

8. On 21 June 2006, a supplementary lease deed was executedby NOIDA in favour of the appellant for an additional land area of 6556.51sq. mtrs. in the same plot of land in Plot No 4. Adding to the existingholding allotted under the first lease deed, the total leased area allottedto the appellant increased to 54,819.51 sq. mtrs. The supplementarylease deed noted that:

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(i) The demised premises shall be deemed to be part of Plot No4, Sector 93A, NOIDA as already leased to the appellant;

(ii) All other conditions of the original lease deed and allotmentshall remain unchanged and would be applicable to the newlydemised premises, and bind the appellant;C

(iii) The period of lease shall commence from 16 March 2005;and

(iv) The total area of Plot No 4, Sector 93A, NOIDA is 54,819.51sq. mtrs.

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The possession certificate in respect of the additional land wasissued to the appellant on 23 June 2006.

9. On 5 December 2006, the New Okhla Industrial DevelopmentArea Building Regulations and Directions 2006[12] were notified. Underthe NBR 2006, the Floor-Area-Ratio[13] was increased from 1.5 to 2 fornew allottees after 2006. Regulation 33.2.3(i) provided as follows:

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“33. ‘Floor area ratio’ Floor Area Ratio. Ground coverage andheight limitations.

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33.2.3 Any other utilities as decided by Chief Executive Officerdepending on its requirement.

i. Distance between two adjacent building blocks shall not be lessthan half of the height of the tallest building.”

10. On 29 December 2006, NOIDA sanctioned the first revisedplan for Emerald Court under the NBR 2006, by which two additionalfloors were envisaged in addition to the already sanctioned G+9 floors inthe original fourteen towers, thereby bringing all of them to ground andeleven floors (G+11). Furthermore, additional buildings were also G

12 “NBR 2006”13 “FAR”

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Asanctioned, namely: (i) Tower-15 (comprising of ground and eleven floors(G+11)); (ii) T-16 (comprising of a cluster of wings including 1 wing ofground and eleven floors (G+11) and 3 wings of ground and four floors(G+4)); and (iii) a shopping complex (comprising of ground and firstfloor (G+1)). As a consequence, under the first revised plan, NOIDApermitted a total of sixteen towers (G+11) (which would each be 37Bmtrs. in height) and one shopping complex (G+1). It is important to notethat the appellant was able to have this additional construction due to thearea that was made available to it under the supplementary lease deed,and further, when the appellant had allotted flats to the purchasers, onlya small building on the additional leased area was sanctioned. Pertinently,Cit is also necessary to highlight that the first revised plan contemplated agreen area in front of Tower- 1[14]. According to the purchasers, whenthe flats were sold, the brochure of the appellant contained informationin accordance with the first revised plan dated 29 December 2006, whichshows the area in front of T-1 as a green area.

D11. On 10 April 2008, a completion certificate was granted inrelation to the first eight towers (G+11). Thereafter, various owners offlats were granted possession by the appellant. Crucially, the completionmap also indicated a green area in front of T-1, where currently T-16and T-17 are being constructed.

EA.4 Second Revised Plan

12. On 28 February 2009, a notification was issued by the Stateof Uttar Pradesh enhancing the FAR from 2 (as provided under theNBR 2006) to 2.75 for new allottees. Further, the notification alsoprovided for “purchasable FAR”, according to which old allottees (suchFas 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 purchasethirty-three per cent FAR of the existing base FAR for old allotees underthe notification dated 28 February 2009, should be brought at par withGother allotees. As a consequence, the purchasable FAR for old alloteeswould be enhanced to 2.75. However, the notification by the State ofUttar Pradesh in this regard was still awaited. The 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 maybe available for purchase at a later date.

14. On 19 November 2009, relying on the notification dated28 February 2009, the appellant purchased thirty-three per cent of itsexisting base 1.5 FAR at the cost of Rs eight crores, increasing its availableFAR to 1.995.

15. However, it appears from the record that the appellant hadalready started construction of the disputed towers – Apex and Ceyane– prior to the grant of this sanction by NOIDA. On 16 July 2009, theappellant informed the flat owners that:

“1. That we have bought two separate plots measuringapproximately 48000 square meter and 6500 square meter andgot them registered separately in March 2005 & May 2006respectively.

2. That the new towers which are being constructed will havealtogether separate entry, exit, swimming pool, club & basicinfrastructure. We will also construct boundary wall separatingtwo 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 commencedon 16 July 2009;

(ii) According to the appellant, these new towers would haveseparate entry-exit, amenities and infrastructure; and

(iii) The new towers would be separated from the existing fifteentowers by the construction of a boundary wall.

The appellant represented to the flat-owners that a revised buildingplan 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+24floors and a height of 73 mtrs., replacing them.

17. On 11 September 2009, the Chief Fire Officer of GautamBudh Nagar[15], the fourth respondent, issued a report to the In-charge(Building Cell) NOIDA, Sector 6 for the grant of the provisional Non- 15 “CFO”

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AObjection Certificate[16] for T-16 and T-17. The provisional Fire NOCwas made subject to compliance with the requirements of the NationalBuilding Code, 2005[17].

18. On 16 September 2009, a completion certification was grantedin relation to another six towers (G+11). The completion mapBaccompanying this certificate again showed the green area in front ofT-1, where presently T-16 and T-17 are being constructed.

19. On 26 November 2009, NOIDA sanctioned the second revisedplan for Emerald Court under the NBR 2006. In this plan, the earlierT-16 (G+11) was replaced with a T-16 consisting of ground and twenty-Cfour floors (G+24). Similarly, the shopping complex (G+1) was replacedwith T-17 consisting of ground and twenty-four floors (G+24). T-16 andT-17 would each be of a height of 73 mtrs. According to the plan, T-17was to be at a distance of 9 mtrs. from T-1, and there was a provisionfor their connection through a space-frame at the upper level. This planwas sanctioned by NOIDA on the basis of the appellant having purchasedDthirty-three per cent of the purchasable FAR (27,135.657 sq. mtrs.), inaddition to the permissible 1.5 FAR (82,229.265 sq. mtrs.), totalling to1.995 FAR (1,09,364.922 sq. mtrs.). The second revised plan expresslyprovided for the following, among other conditions:

“2. Due to this sanction of the building plan, the right and ownershipEof any government authority like (municipality, NOIDA) any otherperson will not get affected.

[…]

8. A set of sanctioned building plan shall be kept at theFconstruction site so that it can be checked at the site at anytime and the construction work shall be done as per thesanctioned building plans specifications as per the rules ofNoida Building Rules. The allottee shall start the constructionwork of the ground floor only after getting the inspection of thebasement done upon completion of the work of basement fromGbuilding section department, Noida. Otherwise sanctioned mapdeemed to be cancelled.”

16 “NOC”H17 “NBC 2005”

A.5 Third Revised Plan

(emphasis supplied)

16 “NOC”H17 “NBC 2005”

A.5 Third Revised Plan

20. On 20 February 2010, a notification was issued by the Stateof Uttar Pradesh enabling old allotees to purchase FAR of up to 2.75and, as a consequence, the limit of a maximum purchasable FAR ofthirty-three per cent of the existing base FAR was removed. Thenotification contemplated that “the purchasable FAR shall be allowed upto the maximum limit of applicable FAR”. The notification also amendedthe NBR 2006, which expressly provided that:

“Purchasable FAR is an enabling provision. It shall not be allowedto any allottee as a matter of right.”

21. On 19 March 2010, the UP Apartments Act 2010 came intoforce. Section 4(4) and Section 5 of this Act provide for the consent ofthe owners of flats before any change in the sanctioned plans is effectedand also envisage that the percentage of undivided common interest ofthe owners of the flats cannot be changed without their consent.

22. On 30 November 2010, the New Okhla Industrial DevelopmentArea Building Regulations 2010[18] 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 minimum6 mtrs. to 16 mtrs, depending on the height of blocks. For buildingheight up to 18 mts., the spacing shall be increased by 1 metre forevery addition of 3 mtrs. as per National Building Code 2005. Ifthe blocks have dead-end sides facing each other, than the spacingshall be maximum 9 mtrs. instead of 16 mtrs. Moreover, the allotteemay provide or propose more than 16 mtrs space between twoblocks.”

23. On 18 August 2011, the CFO granted a temporary NOC inrespect of T-16 and T-17, for a height of 121.5 mtrs. with proposedground and thirty-eight floors (G+38). It was noted that once the buildingswere constructed and proper fire safety equipment was installed, theywould be inspected in order to assess whether a permanent NOC shouldbe granted.

24. On 25 October 2011, in view of the notification dated 20February 2010, the appellant purchased an additional FAR at a cost of18 “NBR 2010”

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ARs 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 tothe appellant in relation to the purchase of the FAR, imposing severalrequirements, including compliance with the provisions of the UPApartments Act 2010.B25. On 2 March 2012, the third revised plan was sanctioned byNOIDA for Emerald Court. Through this sanction, the height of T-16and 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-16and T-17 would also consist, inter alia, of two basements and openspace for parking beneath the towers. The third revised plan alsoCcontained a requirement of compliance with the UP Apartments Act2010, along with similar requirements which were present in the secondrevised plan.

A.6 Complaints against the Revised Plans

26. On 9 March 2012, the appellant addressed a communicationto the first respondent intimating that the flat purchasers of T-16 andT-17, which were under construction, would have altogether separateentry-exit, amenities and infrastructure.

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27. On 29 March 2012, the office of the CFO, on the basis of aEcomplaint by the first respondent, issued a notice to the appellant inregard to certain deficiencies and violations in complying with fire safetyrequirements.

28. On 24 April 2012, the CFO, on the basis of another complaintby the first respondent, addressed a communication to NOIDA in regardsthe violation of the minimum distance between T-1 and T-17. The letter,Finter alia, states:

“When record was perused in respect of the above, it was foundthat:

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2. There should be a minimum distance of half of the height ofbuilding in between two building blocks as per Clause No. 33.2.3.of Building Construction Regulations, 2006 and there should be adistance of 16 meters in between the buildings whose height ismore than 50 meters as per Noida Regulations, 2010.

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3. There should be a distance of 16 meter in between two buildingssituated side by side as per National building Code of India –2005.

Therefore, you are requested that in the light of above kindly informthat license was granted for construction of building after providingrelaxation to the building in question in Special Category orconstruction is being carried out by the concerned is contrary tothe standards.”

29. On 3 May 2012 and 22 May 2012, the first respondent filed anRTI application with NOIDA for obtaining the sanctioned plans in relationto Plot No 4 of Sector 93A. Though under the terms of the sanctionedplans the appellant was required to display the sanctioned map at its site,NOIDA still wrote to the appellant to verify whether the sanctionedplans and maps could be made available to the first respondent. Theappellant in response refused to grant its consent to release sanctionedplans and maps to the first respondent. Hence, NOIDA refused to providethe sanctioned plans to the first respondent.

30. On 19 June 2012, a show cause notice was issued by NOIDAto the appellant stating that: (i) the construction was not in accordancewith the third revised plan since, inter alia, T-1 and T-16/17 were notjoined by a space frame; and (ii) a copy of the plan had not been exhibitedat the site office. The appellant replied to the show cause notice on26 June 2012 stating that T-16 and T-17 were still under constructionand the space frame would be built at the time of construction.

31. On 26 June 2012, NOIDA issued a completion certificate tothe appellant in respect of Tower-15 (G+11).

32. On 28 June 2012, the first respondent addressed acommunication to NOIDA complaining of violations andmisrepresentations made to the owners by the appellant, and soughtcancellation of the layout plan of the two new towers, T-16 and T-17.The first respondent followed up its earlier communication with lettersdated 9 and 29 August 2012 demanding information, and intimating thatthe construction was being carried out by the appellant in violation of thenorms.

A.7 Proceedings before the Allahabad High Court AB

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A33. On 10 December 2012, the first respondent filed a writ petitionunder Article 226 of the Constitution before the High Court seekinginter alia the following reliefs:

“i. Issue a writ, order or direction quashing the revised planapproved by respondent 2 for construction of new towers namelyBTower ‘APEX’ and ‘CEYANE’ in plot no. 4, Sector 93-A, andissue further directions for demolishing of aforesaid towers, theapproval and construction being in complete violation of provisionsof U.P. Apartments Act of 2010.

ii. Issue a writ, order or direction directing the Respondent 2 notCto sanction amendments to any further building plans in respect ofthe Group Housing Society being developed by respondent 5without obtaining consent of all the residents.

iii. Issue a writ, order or direction quashing the permission grantedto respondent 5 to link Tower T-1 and T ‘APEX’ / ‘CEYANCE’Dthrough space frame.

iv. Issue a writ, order or direction directing respondents 2 and 3 toensure that fire safety equipment and infrastructure is installed atthe expenses of respondent 5 within a specified period.

v. Issue a writ, order or direction directing respondent 2 to demolishEillegal construction made in the basement and setback area as pernotice dated 19.06.2012 and 17.07.2012.

vi. Issue a writ or direction directing respondent no. 2and 5 toprovide car parking spaces (both aboveground and in thebasement) as per the provisions of the NBC 2005 to all the legalFallottees/residents of Supertech Emerald Court Complex, plot 4,Section 93-A NOIDA.”

34. The first respondent only pressed reliefs i and iii, seeking adirection to quash the revised plan which approved the construction ofT-16 and T-17, and to demolish them. The first respondent also soughtGthe quashing of the permission granted to link T-1 and T-16/T-17 thougha space frame. During the pendency of the writ proceedings, in pursuanceof a specific order of the High Court, the RWA was provided with thesanctioned maps together with related information and documents inrespect of the construction at the site. Pleadings were subsequentlyexchanged between the parties.H

35. The appellant filed a counter affidavit on 27 January 2013submitting that:

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(i) The first respondent is not recognised by the appellant underthe UP Apartments Act 2010;

(ii) The first respondent should have first approached the ChiefBExecutive Officer of NOIDA, who is the competent authorityunder the UP Apartments Act 2010, and then the StateGovernment, before approaching the High Court under thewrit jurisdiction;

(iii) Construction of T-16 and T-17 was approved on 26 NovemberC2009, but the writ petition had been filed after three years inDecember 2012, when the building is in an advanced stage ofconstruction. Hence, the writ petition is barred by delay andlaches; 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 theDheight of the towers from twenty-four floors to forty floors,after the appellant purchased the additional FAR. Under theNBR 2006, there is no provision with regard to the minimumdistance between two “building blocks”. Since the NBR 2006did not incorporate the NBC 2005, the mandatory requirementEof 16 mtrs. between two building blocks for buildings higherthan 55 mtrs. need not be followed. The distance requirementbetween two building blocks was only mandated by NBR2010, which is not applicable since the initial sanction for T-16 and T-17 was given under NBR 2006.

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36. NOIDA in its counter affidavit dated 7 February 2013 stated that:

(i) It allotted the plot to the appellant by complying with the NBR2010. The sanction was also given with the specific conditionthat the UP Apartments Act 2010 must be complied with; G

(ii) Plot No 4 is not divided into two projects. It is unified andbelongs to a single project; and

(iii) The permission for the construction of a space frameconnecting T-1 with T-16/T-17 was granted only after thedesign was approved by IIT Roorkee.

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A37. The High Court allowed the writ petition on 11 April 2014 anddirected the demolition of T-16 and T-17, with the expenses of thedemolition being borne by the appellant. It further directed the CompetentAuthority to grant sanction for the prosecution of NOIDA’s officials asrequired under the UPUD Act 1973, within a period of three months.The High Court also directed the appellant to refund the considerationBreceived from flat purchasers who had booked apartments in T-16 andT-17, with fourteen per cent interest compounded annually. While allowingthe writ petition, the High Court made the following observations:

(i) The first respondent had the locus to institute proceedingsunder Article 226 of the Constitution. The flats were handedCover to the purchasers by September 2009. The RWA wasformed and registered with the Registrar of Societies in thesame year. The Model Bye-Laws under the UP ApartmentsAct 2010 were notified by the Government on 16 November2011. However, the Deputy Registrar Firms, Societies andDChits, Meerut, Uttar Pradesh issued a letter on 14 December2012 stating that pending instructions from the Registrar, nodecision could be taken in respect of the Model Bye-Lawsand registration. The Registrar by a circular dated 5 December2013 issued instructions for registration of the first respondentunder the UP Apartments Act 2010. On 20 October 2013, theEfirst respondent by its resolution adopted the Model Bye-Lawsand conducted its elections. Further, in any case, the appellanthad recognized the first respondent since its inception andhad corresponded with it continuously. The appellant had neverraised objections on its competence to represent the flatFpurchasers. The grant of sanction by NOIDA in violation ofthe relevant building regulations affects the rights of everyapartment owner, who is represented through the firstrespondent. Hence, the first respondent is a ‘person aggrieved’and was entitled to initiate the writ proceedings; G(ii) The first respondent under Article 226 was not barred by theavailable remedy of approaching either the CFO, NOIDAunder the UP Apartments Act 2010 or the State under Section27 of the UPIAD Act 1976. Though the first respondent raisedits grievance before NOIDA, no notices were issued and therewas no follow up. Only if NOIDA had issued an order, couldH

the first respondent have approached the State Governmentunder Section 27 of the UPIAD Act 1976. Thus, there wasno other alternative remedy that was available to firstrespondent but to initiate writ proceedings;

(iii) The appellant must have submitted a declaration in the officeof the competent authority with regard to the construction ofthe building under the UP Apartments Act 2010. Rule 4 of theUttar Pradesh Apartment (Promotion of Construction,Ownership and Maintenance) Rules 2011 states that whenthe competent authority receives an application for amendmentof the declaration, it shall issue a written notice to theassociation of the building owners and an order shall be passedby the competent authority only after the association is giventhe opportunity of being heard. Since no such notice was givento the association, it is an ‘aggrieved person’ and thus has thelocus to initiate writ proceedings;

(iv) The original building plan was sanctioned when NBR 2006was in force. However, the approval for purchase of additionalFAR was made in 2011. It is a settled principle of law that therules and regulations applicable on the date of the sanctionwould determine the rights of the parties. The sanction givenon 2 March 2012 further imposed a condition of applicabilityof the UP Apartments Act 2010. Therefore, both the NBR2010 (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 phasesis not borne out from the record since NOIDA has permittedthe purchase of additional FAR and granted the subsequentsanction treating the project as a single project. The planssubmitted and sanctioned were for a single project, and anattempt has been made by the appellant to mislead the court;

(vi) Regulation 24.2.1(6) of the NBR 2010 states that for buildingsup to the height of 18 mtrs., the spacing between two adjacentbuilding blocks shall be 6 mtrs. and the spacing shall beincreased by 1 mtr. for every 3 mtrs. above 18 mtrs., butsubject to a maximum distance of 16 mtrs. Para 8.2.3.1 ofthe NBC 2005 states that for buildings higher than 55 mtrs., A

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A16 mtrs. open space must be left in the sides and rear. Sincethe height of T-17 is 121 mtrs., the distance between thebuilding blocks must at least be 16 mtrs. However, the distanceis only 9 mtrs. and is deficient by 7 mtrs.;

(vii) The appellant, in collusion with NOIDA, obtained sanctionsBfor the layout map in violation of the mandatory requirementfor space to be maintained between building blocks and clearspace;

(viii) The provisions of the UP Fire Prevention and Fire SafetyAct 2005[19] were required to be complied with, according toCwhich the minimum distance of 7.5 mtrs. between buildingblocks and a clear space must be provided, which has beenviolated in the third revised plan of 2012;

(ix) The submission of the appellant that the expression ‘buildingblocks’ having not been defined in the NBR 2010, would meanDthe entire set of buildings on Plot No 4 is contrary to the NBR2006 and NBR 2010. The sanctioned plans show that theappellant got the layout approved, consisting of separateblocks. The nomenclature of the blocks was subsequentlychanged in each successive plan, and finally the buildings werenumbered as T-1 to T-17. The sanctioned plans clearly showEthat T-1 and T-16/17 are separate building blocks; and

(x) The plan sanctioned by NOIDA was contrary to: (a) thebuilding regulations; (b) the mandatory distance betweenbuilding blocks; and (c) the movement space required, as aresult of which the rights of the apartment owners and theFsafety of their apartment blocks have been seriously affected.

A.8 Proceedings before this Court

38. The appellant filed a Special Leave Petition under Article 136of the Constitution on 28 April 2014 assailing the judgment of the HighCourt. On 5 May 2014, this Court directed the maintenance of statusGquo in respect of T-16 and T-17, directing that neither the builder nor thepurchaser shall alienate the property or create third party rights. Duringthe course of the hearings on 19 July 2016 and 27 July 2016, the appellantand NOIDA submitted that the Court may have the view of an expert H19 “Fire Safety Act”

agency on the issue and engage an expert for this purpose. On thesubmission of the Additional Solicitor General, the National BuildingsConstruction Corporation Limited[20], a government owned enterprise, wasappointed to examine various facts in relation to the dispute, particularlythose having a bearing on whether the two towers (T-1 and T-17) havedead-end sides facing each other. By its report dated 13 October 2016,the NBCC concluded that the two towers are not compliant withRegulation 24.2.1.6 of the NBR 2010. Apart from the report which hasbeen submitted by the NBCC, the first respondent had commissionedIIT Delhi and IIT Roorkee to report on the disputed issue of ‘dead ends’.Reports by them have been placed on the record.

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39. By its interim orders dated 6 September 2016 and 11 January2017, this Court directed that a group of applicants be given ten per centper month towards return of investment[21]. On 22 September 2017, thisCourt directed Mr Gaurav Agarwal, Amicus Curiae, to create a portallink to coordinate with the appellant and the flat purchasers on issuesrelating to refund. Further, this Court directed that the principal amountalong with interest of fourteen per cent shall be provided to the flatpurchasers who have opted not to wait for the decision of this Court inthe present Special Leave Petition.

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40. By an order dated 30 July 2018, this Court with the assistanceof the Amicus Curiae classified the home buyers into the followinggroups, based on the refund option chosen by them:

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(i) Refund of principal amount along with twelve per cent simpleinterest per annum (one hundred and one home buyers);

(ii) Home buyers who still insist on getting interest at the rateof fourteen per cent (twenty-four home buyers) - since aFsubstantial number of home purchasershave agreed to twelveper cent interest, these twenty-four purchasers were alsodirected to accept the twelve per cent interest rate;

(iii) Home buyers through the Subvention Scheme – in suchcases, the EMIs shall be paid by the appellant until theGpossession is handed over; and

(iv) Disputed cases - Mr Sanjeev Agrawal and Ms Rashmi Arorahave paid Rs 38,51,009 and Rs 17,43,162 respectively by 20 “NBCC”

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21 “ROI”

Acheque. The said amount shall be refunded with a simpleinterest at twelve per cent per annum.

B Submissions by Counsel

41. Mr Vikas Singh, learned Senior Counsel appearing on behalfof the appellant urged the following submissions:

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(i) The sanction and construction of T-16 and T-17 is notviolative of the distance rule under NBR 2010:

a.NBR 2010 does not apply to T-16 and T-17, since theywere first sanctioned in the second revised plan issuedunder the NBR 2006. Under the NBR 2006, the distanceprovision in Regulation 33.2.3(i) was not mandatory andit was open to the CEO to stipulate the distancerequirement depending upon the exigencies of a lay outplan. In any case, the Regulation applies to the distancebetween two building blocks and does not govern thedistance between the T-1 and T-17, which form a partof the same block. Further, if this provision wasmandatorily applied, then it would also affect the firstrevised plan, in which the heights of the fifteen othertowers is 37.5 mtrs. while the distance with the adjacentblocks was less than half the height, i.e., less than 18.75mtrs.; C

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b.Even if NBR 2010 was to apply, T-16 and T-17 are partof the same building block consisting of T-1, Tower-2,Tower-3 and T-17, which is connected by a space frameFto 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 ofbuildings), is not applicable in respect of the distancebetween T-17 and T-1;

c.The concept of a building block has been explained in anote submitted by NOIDA to the High Court. While usingthe FAR, the only requirement is to maintain a certainpercentage as an open/green area. Instead of scatteringthe buildings over the total project area, group housingprojects can envisage adjacent towers or even a block G

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of towers so as to ensure a large open green space ratherthan scattered small spaces all over the project; d.In the alternative, even if the they are not part of thesame building block, T-17 being a “tower like structure”,para 8.2.3.2 of the NBC 2005 is attracted in terms ofRegulation 24.2.1(6). In accordance with para 8.2.3.2,Bthe minimum distance for buildings of a height of lessthan 37.5 mtrs. is 9 mtrs., while for buildings of a greaterheight, it is 12 mtrs. Further, in accordance with para8.2.3.2(d), the deficiency of this distance at the groundlevel can be made good at the upper levels. Hence,Cmaintaining a minimum distance of 16 mtrs. between“tower like structures” is not an inviolable requirement; e.In the present case, the minimum distance between T-1and T-17 varies from 9.88 mtrs (at the ground level) to25.75 mtrs (at the upper level), since the total height ofT-1 is 27.61 mtrs. while that of T-17 is 84.5 mtrs. Assuch, it is in compliance with NBC 2005; and D

f.The Model Bye-Laws 2016 issued by the Ministry ofUrban Development, Government of India prescribe a9 mtrs. space around any building irrespective of theheight beyond 40 mtrs.; E

(ii) The sanction to construct T-16 and T-17 is not violative ofthe 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,Fsince the Act was not in force then; b.The flat owners of T-1 to T-15 who already hadpossession of their flats would not be “intendedpurchasers” under the proviso to Section 4(4) of UPApartments Act 2010, and their consent was not requiredfor the construction of additional floors in T-16 andT-17; G

c.The consent of all flat owners would be impractical, andat best the consent of the RWA would suffice. On 2March 2012, when the third revised plan was sanctioned, H

the RWA was not functional and it was only on 20October 2013 that the RWA adopted the Model Bye-Laws under the UP Apartments Act 2010; A

d.There has been no violation of the common area facilitiesof the flat owners of T-1 to T-15 by the creation of T-16Band T-17, since they have been planned with separateentries and exit facilities together with infrastructure;and e.A majority of the flat owners of T-1 to T-15 was fullyaware of the sanction to construct T-16 and T-17 since:C(i) 245 flats were booked till the first revised plan in2006; (ii) between 2006 and until the second revisedplan in 2009, 141 flats were booked; (iii) after the secondrevised plan and until the third revised plan in 2012, 114flats were booked; and (iv) after the third revised planin 2012 till 2 August 2021, 159 flats have beenDpurchased;

(iii) There has been no violation of fire safety norms:

a.A provisional Fire NOC was received on 11 September2009, prior to the sanction on 26 November 2009. TheEfire department thereafter granted another temporaryNOC for T-16 and T-17 on 18 August 2012, prior to thesanction dated 2 March 2012; and b.Under NBR 1986 and NBR 2006, buildings were requiredto be compliant with fire safety norms prescribed in Part-FIV of the NBC 2005. Para 4.6(b) of the NBC 2005provides that for high rise buildings, open spaces on allsides up to a width of 6 mtrs. shall be available for freemovement of fire tenders. In the present case, there isa clear space of 9 mtrs. between T-1 and T-17, whichallows a free movement of fire tenders; G

(iv) The Uttar Pradesh Ownership of Flats Act 1975[22] is notapplicable:

a.Under Section 2, the Act applies only to properties, theowners of which submit to the provisions of the Act byH22 “UP 1975 Act”

executing a declaration. As such, the Act does notautomatically apply to all properties and none of the flatowners have made executed any such declarationpresently; A

b.Clause II(h) of the lease deed dated 26 March 2005deals with maintenance, and cannot be construed toBincorporate the application of the UP 1975 Act; and

c.If the contention of the first respondent is accepted, thechanges made by the first revised plan in T-1 to T-15,involving an increase in the height of all towers fromnine to eleven floors, would also to be illegal;C

(v) There is no green area violation in the sanctioning of T-16and T-17:

a.A triangular green space in the first revised plan wasplanned for the newly proposed T-16 (G+11) andshopping complex (G+1). This area was over and aboveDthe mandatory green area (soft landscape) required tobe maintained on the plots under the NBR 2006; b.The central green area was sanctioned in the originalplan of 2005. The required green area under Regulation38 of the NBR 2006 was twenty-five per cent of theEopen area, which would be 11,538,02 sq. mtrs. whereasthe 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 areain front of it and none of the buyers were chargedFpreferential location charges; and d.Only eleven flats in T-1, out of a total of 44, were bookedafter the sanctioning of first revised plan and before thesecond revised plan. Out of these eleven, only sevenflats were facing towards T-17. Even in these seven,Gthere were no windows/balconies facing T-17, but onlysmall bathroom windows;

(vi) The sanction of T-16 and T-17 is based on a valid certificateas regards the structural design of the towers; H

A(vii) The appellant has not collected the entire lease rent payableto NOIDA only from the flat owners of T-1 to T-15. It hasonly collected around Rs 7.5 crores, while it itself has paidaround Rs 14 crores; and

(viii) The order for demolition of T-16 and T-17 is liable to be setBaside on ground of equity:

a.The construction was carried out with the sanction ofthe authorities; b.600 persons had purchased flats in these towers;

c.Construction began in December of 2009, and third-partyrights in favour of the purchasers have been crystalized; C

d.The petition was filed before the High Court in December2012; and e.28 floors in T-17 and 26 floors in T-16 were constructedDas on 20 December 2013 when arguments wereconcluded before the High Court, and by the time thatthe judgment was delivered, 32 floors had beenconstructed.

Hence, the order of demolition would be harsh and inequitable.E42. Supplementing the submissions of Mr Vikas Singh, Mr RavindraKumar, learned Counsel appearing on behalf of NOIDA, made thefollowing submissions:

(i) Para 8.2.3.2 of NBC 2005 provides that for buildings ofheights between 24 mtrs. to 37.5 mtrs. with one setback,Fthe open space at the ground level shall not be less than 9mtrs. Since the height of the existing tower Aster-2 (T-1) isless than 37.5 mtrs., the minimum space required betweenthis tower and T-17 is only 9 mtrs. Further, the deficiencyof open space can be made good through set-backs at theGupper level. However, since the height of T-1 is not proposedto 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 beenviolated as they do not prescribe the minimum distance H

between two towers. It only refers to the distance betweenA‘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 amaximum of 9 mtrs. as per the NBR 2010. Similar provisionsare found in other building bye-laws such as Delhi BuildingBBye Laws, Bhubaneshwar Development Authority BuildingByelaws, and Model Building Byelaws prepared by theMinistry of Urban Development;

(iv) The Fire Safety Act has also been adhered to, as it requiresa minimum distance of 6 mtrs. between two towers toCprovide space for movement of fire tenders;

(v) The construction of the buildings was not stayed by theHigh Court, which has now jeopardized the rights of third-parties, who will now be aggrieved by the order ofdemolition; D

(vi) At the time of sanction of the second revised plan dated 26November 2009, the UP Apartments Act 2010 had not beenenacted. With respect to grant of sanction to the third revisedplan, the power to sanction the plans or revisions vests withNOIDA and is not curtailed by the UP Apartments Act2010; E

(vii) UP Apartments Act 2010 does not mandate the taking ofany consent or NOC from the RWA prior to sanction ofplans. In spite of this, an obligation was placed on theappellant to abide by the provisions of UP Apartments Act2010, while sanctioning the third revised plan dated 2 March2012; F

(viii) While sanctioning the third revised plan, there was nochange in the ground coverage area of T-16 and T-17 andonly their proposed heights were increased; and G

(ix) There is no factual foundation to conclude that there hadbeen any collusion between the appellant and NOIDA.

43. Mr Jayant Bhushan, learned Senior Counsel appearing onbehalf of RWA urged that the members of the RWA purchased theirflats after being shown a layout which included a limited number of flats H

Aand gardens, including a garden in front of T-1. Many of the allottees areretired persons who have suffered as a result of the unilateral changesmade by the appellant, which resulted in an increase in the number offlats from 689 to 1573. The garden area in front of T-1 has beencompletely removed and instead of a complex of 11 storeyed buildings,two long and tall structures have been sanctioned without the consent ofBthe existing allottees obliterating their right to light, air, view and gardenarea, thereby endangering their safety. Mr Bhushan submitted that:

(i) The sanctions of 2009 and 2012 are in violation of theminimum distance criteria required to be maintainedbetween two buildings. Under Regulation 32.3.1(i) of theCNBR 2006, the distance required is half the height of thetallest building. The tallest building, T-17, under the secondrevised plan of 2009 is 73 mtrs. and hence, the minimumdistance of 36.5 mtrs. was required between T-1 and T-17.Even the existing T-1 is of 37 mtrs. height and therefore,Deven a building smaller than T-1 could come up only at adistance of at least 18.5 mtrs from T-1;

(ii) Regulation 24.2.1(6) of the NBR 2010 requires a minimumdistance of 16 mtrs. between T-1 and T-17, as opposed to 9mtrs. at the side; E(iii)Under para 8.2.3.1 of NBC 2005, the distance requiredbetween buildings would be 16 mtrs. plus ten per cent ofthe building length minus 4 mtrs. The length of the proposedtower is 84.5 mtrs., and hence the distance required wouldbe (16 + (10 per cent of 84.5) – 4), which is equal to 20.45Fmtrs.;

(iv) The requirement of complying with NBC 2005 is prescribedby NBR 2010 and the NOC issued by the CFO in 2009. Inthis regard, on 24 April 2012, the CFO inquired from NOIDAhow the new buildings were sanctioned in violation of theGdistance criteria prescribed in NBR 2006 and 2010, andNBC 2005, which was not responded to by NOIDA;

(v) NBCC, which was appointed by this Court at the requestof the appellant, has stated in its report that the distancerequirement has been violated; H

(vi) In response to the argument of the appellant that T-1, T-16and T-17 form part of one building block, obviating therequirement of minimum distance, it was submitted that:

a. NBC 2005 refers to the distance between buildings andnot building blocks;

b. The expression “building block” though used in NBR2006 and 2010, has not been defined in either of theregulations. The rationale for the distance betweenbuilding blocks is to ensure fire safety evacuation, lightand ventilation. It cannot be left to the builder to designategroups of buildings as one building block since thepurpose of maintaining the minimum distance would beseriously compromised. The expression must take itscolour from NBC 2005 and every building must be abuilding block; and

c. The reports submitted by the IITs of Delhi and Roorkeespecify functional requirements of distance betweenbuildings including:

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 compromiseddue to the lack of the minimum distance between T-1and T-17;

d. Regulation 24.2.1(6) of NBR 2010 refers to NBC 2005as the source of the distance requirement. Theinterpretation of the phrase ‘building block’ in NBR 2010and 2006 must be consistent with NBC 2005;

e. The first revised plan of 2006 shows that each buildingwas intended to be a separate block;

f. The initial argument of the appellant was that T-1 andT-17 are on separate plots and were never intended asthe same block. Subsequently, the appellant claimed that A

B

C

D

E

F

G

H

they were constructed in separate phases and were tohave separate facilities. Later, it introduced a false andunapproved map showing T-1, T-2, T-3, T-16 and T-17as one block; A

g. The affidavit of the appellant dated 4 August 2021 beforethis Court states that T-16 and T-17 will have separatefacilities including entry and exit; B

h. T-1, T-16 and the shopping complex as sanctioned in thefirst revised plan of 2006 were distanced and weredifferent blocks altogether; C

i.The construction of T-1 was completed in April 2008and possession was granted to allottees. It was not legallypossible to construct T-17 in 2008 since it was firstsanctioned only in November 2009; j.The road between T-1 and T-17 is the main road for thesociety and leads into the basement and parking; D

k. The basement of T-1 has one level while T-17 has twolevels;

l.The foundation of T-1 is made to bear a load of onlyeleven floors. The appellant has claimed that though theEfoundation of T-17 was laid in 2009, when only twenty-four floors were sanctioned, it was meant to bear a loadof forty floors, which were sanctioned only in 2012;

m. The connection of two building blocks with the spaceframe would not make it one building block; and F

n. The appellant itself was unconvinced by the building blockargument and raised the ‘dead end’ side issue, whichled to the appointment of NBCC by this Court to verifythe facts. After a negative report from NBCC, theappellant has once again fallen back on the building blockGargument to assert that blocks can be defined at thediscretion of the developer;

(vii) In response to the submission of the appellant that thebuildings are “tower like structures” under the NBC 2005and thus, meet the minimum distance mandated, it wasHsubmitted that:

a. Requirements of NBR 2006 and 2010 and NBC 2005are independent and hence, the defence of a tower likestructure under the NBC 2005 cannot cure violations ofthe NBRs; A

b. T-17 does not have any set-backs and has the samewidth throughout; B

c. At least 12 mtrs. distance is required at the ground leveleven 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 beCcured by set-backs on upper levels. However, thedistance 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 2012respectively proposed a space frame connecting T-1 andT-17 when the residents had already started living in T-1.This is illegal and a safety hazard; D

(ix) Under the lease, the undivided interest in common areasstood transferred to the respective allottees. The ownersof the existing flats had paid the entire lease amount andmore. While the appellant paid Rs 13 crores as onetimelease rent, the buyers of existing flats (other than those inT-16 and T-17) were charged over Rs 16 crores; E

(x) Consent of flat owners was required under UP ApartmentsAct 2010 before an alteration in the sanctioned plan:

F

a. Sections 4(4) and Section 5(3) of the UP ApartmentsAct 2010 requires the consent of all allottees before achange in the sanctioned plan/undivided interest in thecommon area is made. The removal of the green areareduced the common areas and, with an increase in theflats from 689 to 1573, the proportionate undividedinterest in the common areas has been reducedsubstantially; G

b. The UP Apartments Act 2010 is applicable irrespectiveof whether or not a society is formed. The rights are H

Avested with the apartment owners and not theassociation; and

c. Gardens as well as land are included in the definition ofcommon areas over which all residents have rights;

(xi) Consent of flat owners ought to have been obtained beforeBobtaining an alteration of the sanctioned plan, under UP1975 Act:

a. Under Sections 5(2) and 5(3), undivided interest cannotbe altered without the consent of all owners of flats;

b. Clause II(h) of the lease deed stipulates the applicabilityof the UP 1975 Act. This is not confined only tomaintenance. The tripartite sub-lease between NOIDA,the appellant and the allotees also mandates theapplicability of the UP 1975 Act; and C

c. The appellant was responsible to ensure that thedeclaration under the UP 1975 Act was made. It cannottake advantage of its own wrong in failing to submit adeclaration; D

(xii) The appellant and NOIDA have colluded to by-pass theBuilding Regulations:

E

a. Despite the revised plans violating the distance criteria,NOIDA granted sanction to the said revisions. The planswere not cancelled despite repeated reminders from theRWA;

b. Despite the letter of the CFO dated 24 April 2012highlighting the violation of the distance criteria, NOIDAdid not take any action; F

c. The appellant was aware in advance that its plan wouldbe sanctioned in the future, and hence built a strongerfoundation in 2009 to support forty storey buildings forT-16 and T-17, which received sanction only in 2012; G

d. Under the terms of approval, the sanctioned plan had tobe kept at the site for display. In spite of this, there was H

a failure of the appellant to display the plans. When arequest was made by the RWA to NOIDA to provide acopy of the plans, NOIDA asked the appellant whetherit could supply the plans. Upon the refusal by theappellant, NOIDA declined to provide the plans; and

e. No action was taken by NOIDA after issuing a showcause notice for violation of the minimum distancerequirement to the appellant based on a complaint bythe flat owners;

(xiii) No part of the second revised plan of 2009 can be saved asit is in violation of the distance criteria contained in the NBR2006, and is also contrary to the UP 1975 Act;

(xiv) The appellant cannot make any further constructions withoutthe consent of the existing flat owners under the UPApartments Act 2010 and the Real Estate Regulation andDevelopment Act 2016;

(xv) There is no equity in favour of the flat buyers in the newbuildings (T-16 and T-17) who have decided to retain theirflats, particularly when this Court had through several ordersgranted 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 theappellant in the course of its pleadings before the High Courtand this Court.

C Prefatory observations

44. At the outset, it must be noted that:

(i) The area which was originally leased to the appellantadmeasured 48,263 sq. mtrs.; and

(ii) As a result of the supplementary lease, the area stoodincreased to 54,816 sq. mtrs.

In order to bring clarity to the issues raised, the dates of sanctionand details of the construction are tabulated below:

A

B

C

D

E

F

G

A

BCD

EThe plan for the construction was originally sanctioned on 20 June2005. 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 ofT- 16 and T- 17 have been challenged on the ground of a violation of:

F(i) NBR 2006;

(ii) NBR 2010;

(iii) NBC 2005;

G The earlier G+1 shopping complex is numbered as T-16, while the original T-16 isnumbered as T-17. Further, T-1 and T-17 were to be connected by a space frame at theupper level.

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 byMr Vikas Singh, learned Senior Counsel, the number of floors envisaged for T-17 wereG+39 and T-16 were G+40. Further, as per the provisional Fire NOC dated 18 AugustH2011, the proposed construction for T-16 and T-17 was for G+38 floors.

(iv) UP 1975 Act;

A

(v) UP Apartments Act 2010; and

(vi) Fire safety norms.

The appellant disputes the applicability of the UP 1975 Act. Thiswill be considered in the course of the judgment.

B

46. It becomes necessary to clear the ground in regard to thereliefs which were sought before the High Court. The reliefs soughtbefore 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 theCstructures constructed pursuant to the plan;

(ii) Directing NOIDA to not sanction any further building plansin respect of Emerald Court without obtaining the consentof all residents; D

(iii) Quashing the permission granted to link T-1 with T-16/ T-17;

(iv) Directing the installation of fire safety equipment andinfrastructure;

(v) Directing the demolition of the illegal construction in theEbasement and the setback area; and

(vi) Directing NOIDA and the appellant to provide car parkingspaces in accordance with NBC 2005.

Of the above reliefs, the High Court recorded that only prayers(i) and (iii) were pressed.

F

47. The above narration establishes that there was a challenge tothe revised plans by which the construction and increase in the height ofT-17 (Apex) and T- 16 (Ceyane) were envisaged. As the tabulation setout above indicates, in the first revised plan of 29 December 2006, T-16was to partially comprise of G+11, the rest being G+4. A shopping complexwas envisaged comprising of G+1 floors. A triangular green area isindicated 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 heightof 73 mtrs. each. In the third revised plan of 2 March 2012, the number G

H

Aof floors of T-16 and T-17 was increased further from twenty-four toforty floors (for T-16) and thirty-nine floors (for T-17), and the height ofeach of the towers was increased from 73 mtrs. to 121 mtrs. In thisbackdrop, the relief which was sought in prayer (i) was for quashing therevised plan for the construction of the two new towers – T-17 (Apex)and T-16 (Ceyane). This clearly implicates a challenge both to the secondBrevised plan of 26 November 2009 as well as the third revised plan of 2March 2012.

48. A brazen attempt at stonewalling the first respondent wasmade by the appellant and NOIDA before the High Court. The sanctionedplans incorporate the condition that a copy of each plan would be madeCavailable at the site. Despite this, when the first respondent sought copiesof the sanctioned plans and other information, NOIDA wrote to theappellant asking for their consent to provide theplans to the firstrespondent. When the appellant refused, NOIDA’s refusal to the RWAfollowed suit. It was only pursuant to the interim directions of the HighDCourt that the sanctioned plans and documents were provided to thefirst respondent. The reliefs which have been sought encompass achallenge to the validity of the second and third revised plans, underwhich the two towers, T-17 (Apex) and T-16 (Ceyane), were beingconstructed.ED Violation of distance requirement under BuildingRegulations

49. The first issue we shall address is whether the sanction forthe construction of T-16 and T-17 by NOIDA is in violation of the distancerequirement under applicable building regulations.FOriginal sanction dated 20 June 2005

50. When the plan was originally sanctioned on 20 June 2005, theNBR 2006 was yet to come into force. The sanction of 20 June 2005was under the regime of the NBR 1986. NBR 1986 envisaged a 15mtrs. set back from the front and 9 mtrs. on all sides. Since the originalGplan did not envisage construction of T-16 and T-17, the said plan is notunder 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. Thesanctioned plan for the project was first revised on 29 December 2006,H

and it covered a total area of 54,819 sq. mtrs., leased to the appellantunder the Lease Deed and the Supplementary Lease Deed. The firstrevised plan provided for the construction of two additional towers(T-15 and T-16) and one shopping complex (G+1 floors). All 16 towerswere 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 heightof buildings. Regulation 33.2 dealt with the group housing. The tableappended to it is as follows:

“33.2 Group Housing

Regulation 32 deals with set-backs, which is defined as the lineparallel to the plot boundaries, beyond which nothing can be constructedtowards the plot boundaries. Regulation 32.3 stipulates that where a plotsize exceeds 40,000 sq. mtrs., there has to be a front setback of25 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 itstipulates as follows, insofar as is relevant:

“i. Distance between two adjacent building blocks shall notbe less than half of the height of tallest building.”

Second revised sanction dated 26 November 2009

53. The second revision to the original plan was sanctioned on26 November 2009, under the NBR 2006. The second revised planenvisaged that instead of the construction of T-16 (comprising of G + 11floors 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 floorsand of 73 mtrs. height. According to the revision, a 9 mtrs. distance was A

B

C

D

E

F

G

H

Ato be maintained between T-17 and T-1 at the ground level, and T-1 andT-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., anda rear and side set-back of 9 mtrs. each was approved.

54. The issue is whether the second revised plan for constructionBof T-16 and T-17 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, thatis 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 MarchC2012, 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 increasedfrom twenty-four to forty floors.

56. At the time of the sanction of the third revised plan, the NBR2010 had come into force. Regulations 1.6 and 1.7 of the NBR 2010 areDin the following terms:

“1.6 The plot on which map has already been sanctioned andconstruction has already started or completed, the allottee maybe allowed to revise the same building plan or submit thenew plan as per the prevailing regulations for that part ofEthe building where construction has not started or any newaddition is required in the building.

1.7 F.A.R, Ground coverage, setbacks and density as indicated inthe regulations shall not be applicable in respect of those plotswhich were allotted on auction or tender basis and group housingFprior to the coming into operation of these regulations. However,the calculation of FAR and Ground Coverage in the newbuildings in such plots shall be done as per theseregulations. The purchasable F.A.R and Ground coverage asper applicability may be allowed.”

G

57. Under Regulation 24.2, the following stipulations have beenprovided for Group Housing:

(II) Maximum permissible-

H

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENTWELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(i) Ground coverage

35 per cent to 40000 sq.mtrs and 40% above 40000sq. mtrs

(ii) Floor Area Ratio

2.75

(iii) Height

No limit. For buildingsabove 30 metres in height,clearance from AirportAuthority shall have to betaken.

(iv) Density (Family size 4.5)

As mentioned in the sectorLayout Plan or decided bythe Authority for aparticular scheme.

Table No 2 of the NBR 2010 prescribes the set-back requirementin 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 thesides are 12 mtrs.

58. Regulation 24.2.1(1)(vi) provides that a distance of 6 mtrs. isto be left open for fire tenders. The said regulation is extracted below:

“The following features shall be permitted after leaving minimum6 mtrs. open corridor for fire tenders.

(a) Meter room as per norms of Electricity Authority.

(b) Open transformers without any permanent enclosure keepingin 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 enclosingor covering space of commercial use may be permitted by theChief Executive Officer on case to case basis.

(f) Open generator set, filtration plant, Electrical distributionequipment, feeder pillars, telephone distribution equipments may A

B

C

D

E

F

G

H

Abe permitted in open setback as a service utility provided afterleaving 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 blocksB

Distance between two adjacent building blocks shall be minimum6 mtrs. to 16 mtrs. depending on the height of blocks. For buildingheight up to 18 mtrs, the spacing shall be 6 mtrs and thereafter thespacing shall be increased by 1 metre for every addition of 3 mtrsin height of building subject to a maximum spacing of 16 mtrs asCper National Building Code – 2005. If the blocks have dead-endsides facing each other, th[e]n the spacing shall be maximum 9mtrs. instead of 16 mtrs. Moreover, the allottee may provide orpropose more than 16 mtrs. space between two blocks.”

59. The above regulation indicates that:

D

(i) The distance between two “adjacent building blocks” is to bea minimum of 6 mtrs. going up to 16 mtrs., depending uponthe height of the blocks;

(ii) For a building height upto 18 mtrs., the spacing would be 6mtrs., to be increased by 1 mtr. for every addition of 3 mtrs. toEthe height of the building (subject to a maximum spacing of 16mtrs. under the NBC 2005);

(iii) If the blocks have dead-end sides facing each other, the spacingshall be a maximum of 9 mtrs. instead of 16 mtrs.; and F(iv) The allottee may, however, propose more than a 16 mtrs. spacebetween two blocks.

60. Regulation 24.2.1.6 of NBR 2010 refers to the NBC 2005 forthe minimum distance requirement. The NBC 2005 contains the followingstipulations in para 8.2.3.1:

G

“8.2.3.1 For buildings of height above 10 m, the open spaces (sideand rear) shall be as given in Table 2. The front open spaces forincreasing heights of buildings shall be governed by 9.4.1(a).

H

A

Table 2 Side and Rear Open Spaces for Different Heightsof Buildings (Clause 8.2.3.1)BCDEF

NOTES

1. For buildings above 24 m in height, there shall be a minimumGfront open space of 6 m.

2. Where rooms do not derive light and ventilation from the exterioropen space, the width of such exterior open space as given in col

A3 may be reduced by 1 m subject to a minimum of 3 m and amaximum of 8 m. No further projections shall be permitted.

3. If the length or depth of the building exceeds 40 m, addto col (3) 10 percent of length or depth of building minus4.0 m.”

B(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:

C(a) Up to a height of 24 m, with one set-back, the open spacesat the ground level shall be not less than 6 m; (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 openDspaces at the ground level, shall be not less than 12m;and (d) The deficiency in the open spaces shall be made goodto satisfy 8.2.3.1 through the set-backs at the upperlevel;: these set-backs shall not be accessible fromEindividual rooms/flats at these levels.”

61. Para 8.2.3.1 of NBC 2005 indicates that where the height ofthe building is 55 mtrs. and above, the side and rear open spaces to beFleft around the building must be 16 mtrs. Note 3 indicates that if thelength or the depth of the building exceeds 40 mtrs., in addition to theheight which is specified in column 3, ten per cent of the length and thedepth of the building minus 4 mtrs. has to be added to the distancerequired. Thus, in the case of a height (as in the present case) of 55mtrs. and above, an additional 8.45 mtrs. (10 per cent of 84.5 mtrs.) isGadded to the 16 mtrs. and 4 mtrs is to be deducted, arriving at a 20.45mtrs. distance requirement. However, an alternative is provided by para8.2.3.2 for “tower like structures”. For heights above 37.5 mtrs., openspaces 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 metHthrough set-backs at the upper levels, subject to the condition that the set-back shall not be accessible from the individual rooms/flats at theselevels.

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 singlebuilding block as claimed by the appellant. Regulation 33.2.3 of the NBR2006 stipulates that the distance between the two adjacent building blocksshall 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, isthat Regulation 33.2.3 of the NBR 2006, which was in force when thesecond revised plan was sanctioned on 26 November 2009 (contemplatingthe construction of T-16 and T-17), stipulates a distance between “twoadjacent building blocks”. Mr Vikas Singh submitted that it is entirely thediscretion of the developer to determine as to whether one or morebuildings should be treated as a building block, there being no definitionof the expression “building blocks” in NBR 2006. It has been urged thatthe appellant is entitled to assert that the sanctioned plan consists ofbuilding blocks, and that T-16 and 17 are part of a building block alongwith 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. Tobuttress this submission, the space frame connecting T-1 and T-17 isreferred to. It has been urged that there is no necessity of maintainingthe minimum distance provided by Regulation 33.2.3, which applies onlyto the distance between two adjacent building blocks, and since T-1 wasto be connected to T-17 by a space-frame, the two new towers (T-17and T-16) would constitute a part of the same building block, thus obviatingthe need of maintaining a minimum distance between them. This argumentwas sought to be supported by adverting to the original Hindi version ofRegulation 33.2.3, which uses the expression “’’. Inthis context, it has been submitted that after the NBR 2010 came intoforce, 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 alsoused the expression “two adjacent building blocks”. Thus, based on boththe NBR 2006 and 2010, it has been urged that the appellant was entitledto treat T-16 and T-17 as forming a part of a cluster which would include A

BCD

EF

G

H

A

BCD

EF

G

H

AT-1. Therefore, the submission is that since all of them constitute a singlebuilding block, the minimum distance requirement need not be maintained.

64. The submission which has been urged on behalf of the theappellant finds support in the arguments of Mr Ravinder Kumar, learnedCounsel appearing on behalf of NOIDA. The submissions which haveBbeen made on behalf of NOIDA highlight the following features:

(i) Apart from the English version of Regulation 24.2.1.(6) ofthe NBR 2010, which uses the expression building blocks,the Hindi version uses the terms “’’,which emphasises the concept of a cluster of buildings;C

(ii) When the Regulations speak of a “’’, it is not thedistance between the towers but the distance betweenblocks which is implicated;

(iii) T-1, T-16 and T-17 form part of one cluster or block andDhence there is no need of maintaining a distance betweenbuildings forming part of a block;

(iv) The absence of a minimum distance between the T-1 andT-7 would be of no consequence;

(v) Apart from the alleged breach of the minimum distanceErequirement, all parameters have been maintained, in termsof:

a. Ground coverage;

b. FAR;

Fc. Open area; and

d. Green area; and

(vi) An explanatory note was submitted by NOIDA before theHigh Court, concerning the issue of building blocks, and isextracted below:G“Building Block in a Group Housing Project Main Points:

1. Noida Building Regulations, 2010: A “Bhavan Samuh” whichis translated in English as a “Building block” is the combinationHor a group of buildings in any given area/Plot.

2. The Section 3(g) of The Uttar Pradesh Apartment (Promotionof Construction, Ownership, Maintenance) Act, 2010 definesbuilding. As per the Act, “building” means a buildingconstructed 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 fouror more apartments in all such buildings; Provided that anindependent house constructed in a row with independent entryand 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 ormore buildings in any area” and the building is defined as “fouror more apartments on any land”.

3. As per Zoning Glossary of New York City Planning; “ABlock” is defined as a tract of land bounded on all sidesby streets by a combination of streets, public parks,railroad rights of way, pierhead lines or airportboundaries. Building is defined as a structure that hasone or more floors and a roof, is permanently affixed tothe land and is bounded by open areas or the lot lines ofa zoning lot.

4. The buildings in a block may not be connected, may be partiallyconnected or may be fully connected, as is clear from theaforesaid provisions.

5. It is a common practice in all the metropolitan cities of Indiaand all over the world to construct high rise buildings fordifferent purposes to make optimum utilization of land. In anygiven area, more open & green space can be provided onlywith a provision of high rise buildings which enable toaccommodate high density comparatively with less groundcoverage and more open space. Large size projects generallyhave many buildings which are planned, arranged & designed,keeping in view the requirement of common space, commonfacility & amenities, natural light, ventilation, open space andmaximum possible exit routes for early evacuation in event ofany emergency. In view of all these considerations generallydifferent building blocks or groups of buildings having A

B

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E

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A

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Ainterconnected accessibility, facilities and services aredesigned, which give better living environment than having asystem of all buildings situated in isolation within the projectarea. It is common practice in all the metropolitan cities ofIndia and over world to construct high-rise building for differentpurpose to make optimum utilization of land. In any given areaBmore open & green space can be provided only within aprovision of high-rise building which enable to accommodatehigh density comparatively within less ground coverage andmore open space. Large size projects generally have manybuilding which are planned, arranged & designed, keeping inCview the requirement of common space, common facility &amenities, natural light, ventilation, open space and maximumpossible exit routes for early evacuation in the event of anyemergency. In view of all these considerations generallydifferent building blocks or cluster of building having interconnected accessibilities & facilities are decided, which giveDbetter living environment than having a system of all buildingsituated in isolation within the project area.

6. Isolated buildings are more prone to safety, security, provisionand maintenance of common services related problems. Incase of a fire accident in any isolated building having no extraEexit routes, chances of danger to human lives is more.

7. Generally, a group of buildings in a project is constructed withthe provision of common basement i.e. One basement for allthe buildings. This is done for better accessibility and movementand provision of common facilities. It is also a very commonFpractice in India and abroad to connect the high rise buildingsby way of space frame bridges giving additional exit routesfor early evacuation in the event of emergency. This practicehas increased after the occurrence of incident of fire in Gopaltower in Connaught Place, New Delhi and the temporary spaceGframe was made connecting the said tower at the Height withnearby tower for evacuation of cornered persons saving manylives.

8. NBC OF INDIA OF 2005: Side and rear open space fordifferent height of building is governed as per Para 8.2.3.1 ofHNBC 2005 which states that for height of building.

But as per Para 8.2.3, tower like structures as an alternative toPara 8.2.3.1 open space as below:

For height between 24 Mtr nd 37.50 Mtr with one set back theopen space At the ground level, shall not be less than 9 Mtr.

9. It is stated that NOIDA Building Regulations intends to providethe distance between two adjacent building blocks to bebetween 6 meter to 16 meter depending upon the height ofthe building blocks. It does not provide any specific requirementof distance between two buildings. The concept of minimumdistance required between two High Rise building of a blockmay not necessarily be the same as required between the twobuilding blocks. For Example a building block may have threeor four stories for the entire block area and few towers ofdifferent height and different upper stories designed at differentplaces in the same block.

10. The concept of minimum distance between the two buildingblocks 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 wayconnected with the structural safety of the building.

11. It is stated here that the new building under construction ishaving perimeter of approx. 230 meter the entire building issurrounding by enough open area i.e. more than 16 meterexcept at one place where the building is made a part of blockof adjoining building by way off a proposed connecting bridgeto provide an extra exit route for the purpose of emergencyevacuation. Here also the minimum gap between old buildingand new building is 9 meter for 6.80 meter length with satisfies A

B

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Athe requirements of fire safety provisions. It does not violateany provision with regards to fire safety and air circulation.”

65. Essentially, the plea both on behalf of the appellant and NOIDAis that the requirement of maintaining a minimum distance applies onlyto adjacent building blocks, which is not equivalent to adjacent buildings.BTo put it differently, the arguments proceed on the basis that wherethere is a cluster of buildings the requirement of a minimum distancecannot be observed as between buildings forming part of the cluster, butonly as between two adjacent building blocks/clusters. Each buildingblock in this line of argument may consist of a collection of buildings, andit is argued that neither NBR 2006 nor NBR 2010 mandates theCmaintenance of a minimum distance as between buildings in a cluster.

66. The expression ‘building block’ has not been defined either inNBR 2006 or in NBR 2010. The construction which is placed upon thecontent of the expression must advance the object and purpose of thesaid Regulations. The purpose of stipulating a minimum distance is aDmatter of public interest in planned development. The residents whooccupy constructed areas in a housing project are entitled to ventilation,light and air and adherence to fire safety norms. The purpose of stipulatinga minimum distance comprehends several concerns. These includesafeguarding the privacy of occupants and their enjoyment of basic civicEamenities including access to well-ventilated areas where air and lightare not blocked by the presence of close towering constructions. Accessto these amenities is becoming a luxury instead of a necessity. Theprescription of a minimum distance also has a bearing on fire safety. Inthe event of a fire, there is a danger that the flames would rapidly spreadfrom one structure to adjoining ones. Moreover, the presence of structuresFin close proximity poses serious hurdles to fire-fighting machinery whichhas to be deployed by the civic body.

67. If a developer is left with the unbridled discretion to define thecontent of the expression “building block”, this will defeat the purpose ofprescribing minimum distances, leaving the health, safety and quality ofGlife of flat buyers at the mercy of developers. Before this Court, anargument has been advanced that four towers out of the seventeen towersin the plot are a part of one “building block” and do not requiremaintenance of a minimum distance. Before the High Court, the appellantattempted to argue that all the buildings (that is all seventeen towers) on H

Plot No 4 of Sector 93A NOIDA would comprise of one “building block”.The inconsistency of the appellant’s argument on building blocks beforethe High Court and this Court points out the obvious flaw in it – that thedesignation of how many buildings constitute a “building block” by thedeveloper would undermine the requirements prescribed by BuildingRegulations. As a matter of first principle, we are not inclined to adoptthe construction proposed by the appellant. It will deprive the residentsof urban areas of the amenities of light, air and ventilation which areessential to maintaining a basic quality of life. It will also have seriousramifications on fire safety. The developer cannot be allowed to subvertthe requirement of maintaining minimum distances prescribed in theBuilding Regulations by unilaterally designating independent towers asbuilding blocks, in the manner which the appellant has suggested beforethis Court. Setting up a space frame or providing for a common entry orexit would not make two otherwise separate buildings as one consolidatedblock.

68. Regulations 33.2.3 of the NBR 2006 refers to the distancesbetween adjacent ‘building blocks’ which shall not be less than half ofthe height of the tallest building. The purpose of this regulation is not toapply it only as between building blocks as distinguished from buildingswithin 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 commonsense and in furtherance with the object and the purpose of the saidRegulation. The plain meaning of the expression is that when there aretwo adjacent blocks, the height of the tallest building will determine thedistance required to be observed, with the distance being not less thanhalf the height of the tallest building. Consequently, when two or morebuildings exist in proximity together, they comprise of a building blockwithin the meaning of Clause (1) of Regulation 33.2.3. In such aneventuality, the distance between each of the buildings comprised in theblock 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 madebecause this kind of a building will likely overshadow the buildings of alesser height in a cluster of proximate construction. Therefore, theregulation has defined the minimum distance required with reference tohalf the height of the tallest building. Any other construction will defeatthe purpose of Regulation 33.2.3 and cannot be accepted.

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A69. Applying the NBR 2006 to the facts of the present case, theconstruction of T-16 and T-17 was envisaged in the second revised plandated 26 November 2009. The height of the said towers was to be 73mtrs., while the height of other towers, including T-1, was to be 37 mtrs.Thus, as per Regulation 33.2.3 of the NBR 2006, the minimum distancebetween T-17 and T-1, should be half of the height of the tallest building,Bthat is, half of the height of T-17 which is 36.5 mtrs. It is evident fromthe 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 betweenCtwo 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 ofthis regulation is further amplified by what follows it. The next part ofthe regulation stipulates that for a building of height up to 18 mtrs.,“spacing” shall be 6 mtrs. The expression “spacing” in its plain termsDmeans the observance of a stipulated distance. Where the height of thebuilding is up to 18 mtrs., “the spacing” shall be 6 mtrs. Thereafter, for aheight above 18 mtrs., the minimum distance has to be increased by onemeter for an additional height of three mtrs. subject to a maximum distanceor spacing of 16 mtrs. “as per National Building Code – 2005”.

E71. Mr Ravindra Kumar, learned counsel appearing on behalf ofNOIDA, has particularly laid emphasis on the Hindi version of the NBR2010 to argue that it used the term “’’, which must mean that aseparate meaning is accorded to it than the term “’’. The Hindi textof Regulation 24.2.1.(6) (Regulation 24.2.1 (V) in the Hindi version) isFas follows:

G

As is evident, the Hindi version of the NBR 2010, uses threeHdifferent terms “’’, and “’’. A purely textual interpretation,

as is suggested by Mr Ravindra Kumar, would lead us to ascribe threedifferent meanings to each of these terms. Extending this argument wouldthen imply that the first sentence, which states that two adjacent buildingblocks require a minimum distance of 6 mtrs. to a maximum distance of16 mtrs., will depend on the height of the blocks. The second sentence,which in English simply reads, “for building height upto 18 mtrs, thespacing shall be 6 mtrs…”, does not clarify what the term “spacing”denotes – does it imply spacing between buildings inter se the block, orspacing between adjacent ‘building blocks’. Mr Ravindra Kumar suggeststhat it implies the latter. However, looking at the Hindi version of theRegulations from a purely textual standpoint, it would appear that it statesthat the spacing between the buildings of height 18 mtrs. should be 6mtrs., that is, “18.00 …”.

…”.

The term used here is “’’ and not “” or “’’. Thus,overemphasis on the text of the NBR 2010, while losing sight of thecontext and the purpose of the regulation, would lead to an absurdinterpretation. Where the initial part of Regulation 24.2.1.6 provides fordistance between building blocks, the latter part stipulates the distancebetween buildings of height above 18 mtrs. Accordingly, we reject theargument of Mr Ravindra Kumar that Regulation 24.2.1.6 only providesfor the distance between ‘building blocks’ and not buildings within theblocks.

72. The latter part of Regulation 24.2.1.6 of the NBR 2010 providesthat 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 dated2 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 buildingof height 121 mtrs. and another building would be 16 mtrs. (the maximumlimit as per NBC 2005). Thus, the distance between T-1 and T-17 shouldhave been 16 mtrs., as opposed to 9 mtrs. Consequently, we find that thethird revised plan dated 2 March 2012 was in violation of NBR 2010.

73. NOIDA, before it granted sanction for enhancing the heightof T-16 and T-17 from G+24 to G+40 (or 39, as the case may be), wasduty bound to apply its mind to whether there was a compliance with theprovisions of Regulation 24.2.1.6. The third revised plan which wassanctioned on 2 March 2012 has evidently glossed over the cleardeficiency of open space with reference to the NBR 2010, theconsequence of which would have been to reject the proposal for a ABC

D

E

F

G

H

Afurther increase in the height of the towers from twenty-four floors toforty floors. Yet NOIDA has chosen to lend its support to the appellantin clear defiance of the provisions of law.

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 theBhypothesis of Mr Vikas Singh. The original sanctioned plan dated20 June 2005 provided that:

75. The original sanctioned plan covered a total plot area of 48,263Fsq. mtrs. Subsequently, an additional area of 6556.61 sq mtrs. was leasedout to the appellant by a Supplementary Lease Deed dated 21 June2006, so as to enhance the total area of the plot to 54,819.51 sq. mtrs. Asa consequence, the first revised plan was sanctioned on 29 December2006, where the sanctioned area was enhanced from 64,810.04 sq. mtrs.to 81,943.216 sq. mtrs., the calculations being as follows:G

“Sanctioned areaTotal area of plot: 54819 Sq. Mt H

76. The first revised plan dated 29 December 2006 relating to6556.61 sq. mtrs. indicates that in the south-west corner of the plot, anadditional construction comprising of one tower and a shopping facilitywould be put up and directly opposite T-1 was a green area, which hasbeen depicted on the sanctioned plan.

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1038SUPREME COURT REPORTS

A77. On 26 November 2009, there was a second revised sanction,consequent upon the acquisition of purchasable FAR of thirty-three percent of the permissible 1.5 FAR. The area calculations of the secondrevised sanction were indicated as follows:

“Area of plot:54819.510 Sq. Mt.B 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 CArea of upper basement issued earlier:

40542.380 sq Mt. (3397.0990 with demolished upper basement)

D

E

F

G

H

78. As the second revised plan indicates, the existing towers nowenvisaged twenty-four floors instead of eleven floors. The third revisedplan of 2 March 2012 further envisaged an enhancement in theconstructed area consequent upon a purchasable FAR, together withthe sanctioned FAR of 2.75. The number of floors was further increasedto forty floors in T-16 and T-17, the relevant calculations being as follows:

“Total area of plot: 54819.510 Sq. mtPermissible coverage 35%: 19186.828 Sq. mtSanctioned coverage 14.03%: 6773.25 sq. mtPermissible FAR @ 1.5%: 82229.265 Sq. mtat the time of allotmentPurchasable FAR on 25.10.10: 150753.652 Sq. mtWith Sanctioned FAR @ 2.75

Floor wise Description of Proposed area of different floors are asunder

AB

C

DE

F

GH

ABCDEFGH

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-Chargeof the Building Cell, NOIDA to the violation of the minimum distancewhich was required to be maintained in the construction which wasbeing 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 constructedby 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 clearreference to the distance requirements which were to be observed interms of NBR 2006, NBR 2010 and NBC 2005. The CFO queriedNOIDA as to whether the license for construction was granted aftergranting a relaxation to the builder in a “special category” or whetherthe construction was being carried out contrary to the standards. Thisletter evinced no response from NOIDA.

80. When the construction of two towers in the newly acquiredleasehold area commenced in July 2009, a communication dated 16 July2009 was addressed on behalf of the appellant (by its Director) to theGroup Co-coordinator of Emerald Court (the letter has been extractedin para 15 of Part A.4). Evidently, the residents were concerned about A

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Athe construction of the new towers. The said letter clearly demonstratesthat in 2009, the appellant was of the view that the new towers whichwere being constructed would have separate entries and exits, amenitiesand infrastructure and that the developer would construct a boundarywall separating the existing 15 towers from Apex and Ceyane. Thisrepresentation was reiterated in a letter dated 9 March 2012 from theBappellant to the President of the RWA.

81. The first paragraph of the above letter indicates that theappellant had obtained two separate plots admeasuring approximately48,650 sq. mtrs. and 6556.61 sq mtrs., and had got them registeredseparately in March 2005 and May 2006. The representation to theCresidents that these were separate plots which were leased out to thedeveloper was clearly contrary to the provisions of the supplementarylease 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 theappellant. The supplementary lease deed contains the following covenants:D“[…]

That the Lessor has agreed to demise on lease in additional placeof land measuring 6556.61 Sq. mtrs. Against consideration ofRs.14,48,98,871/- (Rupees Fourteen Crores forty eight lacs ninetyeight thousand eight hundred seventy one only) which has beenEalready been paid by the lessee to the lessor and also inconsideration of the yearly lease rent @1 % of the total premiumper year Rs.1,59,38,876 for enhanced area has been paid by theLessee to the Lessors as one time lease rent (equal to 11 year’slease rent). That the demised premises shall be deemed to be partFof the Plot No.04, Sector 93-A, Noida already leased to the lessee.

That all other conditions of the original lease deed and allotmentshall remain unchanged and shall be equally applicable to thisdemised ·premises and binding upon the lessee.

That the period of 90 years lease shall commence from16.03.2005.

G

That the demised premises shall be part of the original allottedPlot No. 04 Sector Noida. Necessary addition or alterations in thestructure can be subject to the building byelaws of the lessor andterms of the transfer lease deed.

That total area of Plot No. 94, Sector 93-A, Noida is 54819.51HSq. 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 lacseleven thousand and one hundred and seventy one only) insteadof Rs.1,06,66,12,000/-.(Rupees One hundred six crores sixty sixlacs twelve thousand and three hundred).

The lessee shall construct the building on the demised premisesaccording to the building bye laws of the Lessor.”

Despite the clear terms of the supplementary lease deed in termsof which the additional land allotted under it is to form a part of theoriginal plot, the communication addressed to the flat buyers of the existingtowers was that the new towers were completely disconnected fromand independent of the earlier developed fifteen towers. This letter cannotbe glossed over because a similar position was affirmed before the HighCourt 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 ofrecord are need no reply and other contents are wrong and denied.The letter dated 16.07.2009 and 09.03.2012 given by respondentno. 5 contains the same stand, that “Apex and Ceyane” is PhaseII of the project as in the present counter affidavit. Similarly, letterdated 31.01.2012 and 13.02.2012 filed by respondent no.5 beforepolice authorities can be relied upon in support of the stand ofrespondent no.5.”

82. The only reasonable hypothesis which emerges from the abovedisclosures is that the argument which has now sought to be advanced –that Towers 1, 16 and 17 are part of a cluster of buildings comprisedwithin a block, thus obviating the need to maintain the minimum distancebetween them – is an afterthought. It is contrary to the stated positionwhich has been adopted by the appellant in its affidavit before the HighCourt. The record before this Court also indicates that the appellant hastaken liberties with the truth in making the submission that a cluster oftowers in the project constitutes a block which allows the appellant tosubvert the minimum distance requirement.

83. The above conclusion is clearly evident from the record fromIA No 54807 of 2021 for the production of additional documents.Annexures A-1, A-2, A-3 and A-4 are:

A

BC

DE

F

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H

A(i) A true copy of the first revised plan dated 29 December 2006showing various blocks as sanctioned by NOIDA;

(ii) A true copy of an allotment letter dated 17 March 2007 issuedby the appellant in favour of a flat purchaser;

(iii) A true copy of the completion map dated 10 April 2008 inBrelation to T- 1 to 8; and

(iv) A true copy of the completion map dated 16 September 2009in relation to T- 9 to 14.

84. Annexure A1 above, which is part of the first revised plan ofC2006, clearly indicates that each block comprises of a cluster of twobuildings. Annexure A2, which is the letter of allotment, makes it clearthat 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 190per sq. foot. Annexure A-3, the completion drawing of 2008, indicatesthat each tower is depicted to have four wings. In other words, theDtower itself is a block comprising of four wings and the towers havebeen specified distinctly with reference to numbers. During the courseof the proceedings before the High Court, the appellant filed a documentpurported to be the second revised plan of 2009 where a depiction ofseveral blocks was made. The plan which was filed before the HighECourt bears no signature of the competent officer of NOIDA. In thecounter affidavit filed by the appellant in the High Court, it was statedthat:

“3. That Noida Building Bye-laws talks about building blocks. Eventhe mandatory distance is provided only between the two buildingFblocks in the said bye-laws. It is stated that Cluster of buildingsfrom one building block, provided these buildings are connectedwith each other to form one building block. Further number ofbuildings within one building block depends upon various factorslike the theme of the project its Architecture features surrounding,plot dimensions etc.G

4. The Emerald Court (phase I) has five building block eachcomprising of three buildings. After acquisition of additional land,admeasuring 6556 sq.mt. Apex & Ceyane (phase II) wasenvisaged and the same was sanctioned by NOIDA. With theprovision of space frame between tower Apex and Aster-2 asHper sanction plan dated 26.11.2009 by NOIDA, the Apex &

Ceyane were connected within the existing building blockcomprising of towers Aster-2, Aspire-1 and Aster-1 as perArchitecture feature of the project. The sanction dated 26.11.2009was granted by NOIDA only after structural safety certificatewas issued by the IIT-Roorkee. Copy of the sanctioned planshowing the Building block is annexed herewith asANNEXURE SCA-1.”

85. In the rejoinder filed to the above affidavit on behalf of theRWA, the contents of the above plan were seriously disputed and it wasaverred:

“5. That the contents of paragraph 4 of the supplementary counteraffidavit are incorrect as Aster Type-A was already envisaged onthe additional land measuring 6556 sq. mtrs. along with certaingreen 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 isaltogether a new document submitted by respondent 5 andis a shocking surprise to the petitioner as this has neverever been disclosed nor advertised in the past. Thedocuments has glaring deviations as compared to thedocument shared and submitted in the past. For the firsttime respondent 5 has submitted a plan which containsreference to “BLOCKS”. In the past such a document wasnever shared. Also now each tower is given only a towernumber and the nomenclature used in title documents andpopular usage has been deleted viz Aspire/Aster/ Emperoretc. This is an alarming misnomer being created byrespondent 5. Also, nowhere this bears the sanctioningendorsement by NOIDA (Respondent No. 2) terming asBLOCK 1 to 5. It is amply clear that respondent 5 is usingfalse representation and documents and trying to createconfusions on flimsy ground. They are trying to buy time andattention of this Court and using these as delaying tactics, whichis against the interest of petition. With the delaying tactics A

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Arespondent 5 is rapidly proceeding with unauthorized constructionof APEX and CYNE towers day and night, especially after filingof writ petition by the petitioners, as no injunction has been issuedso far. Respondent 5 has been and will be using the public interestplea of investors and financial institutions/banks to cover up illegaland unauthorized construction as is evident from Para 19 of theBsupplementary counter affidavit.”

86. Significantly, it must be noted that the second revised plan of2009, which has been placed on record, does not show the existence ofCblocks and is duly endorsed by NOIDA. Similarly, the third revised planof 2012, which is also on the record, does not embody any description ofblocks. Therefore, we have no manner of doubt in finding that theargument sought to be developed in the course of these proceedings thatthere were separate blocks in the plan is an afterthought. It is contraryto the stated position which has been adopted by the appellant on affidavitDbefore the High Court. It is contrary to the sanctioned plans. What isworse is that an effort was made to place on the record before the HighCourt a purported plan of dubious origin by seeking to pass it of as thesecond revised plan of 2009.

87. In its affidavit before the High Court, the appellant stated that:E

“9. That it is pertinent to mention here that the Phase II ofthe project by the name of “Apex and Ceyane” has beenplanned to have provision of altogether separate facilitieslike swimming pool, gymnasium, separate power backup,separate L.T. Panels and separate entry and exits gatesFetc. Therefore the members of petitioner society of Emerald Court(Phase I) does not have any locus to challenge any issue relatingto the towers of “Apex and Ceyane” (Phase II).”

88. The above averments would belie the submission sought to beGadvanced before this Court that Apex and Ceyane are parts of a clusterof buildings comprised within one block. The High Court, while rejectingthe submission, observed:

“Learned counsel for the respondent-company finally made anattempt to argue that the phase “building blocks” is not definedH

under the byelaws and according to the learned senior advocatebuilding blocks would mean the entire building on plot no. 4 ofSector 93A NOIDA. The said argument is farfetched and againstthe provisions of the Building Regulation of 2006 as well as 2010.Building blocks means group of building on the plot/site. Thesanctioned maps clearly shows that the respondent company hasgot the layout approved consisting of separate blocks. Thenomenclature of the blocks was subsequently changed by therespondent company, in each successive plan and finally thebuildings were numbered as towers (1-17). The maps sanctionedclearly shows that the buildings in dispute Aster II (tower 1) andApex and Ceyane (tower 16 and 17) are separate building blocks.The argument has been advanced without there being anyfoundation in the pleadings. Without pleadings argument cannotbe advanced.”

89. Based on the interpretation of ‘building blocks’ in the BuildingRegulations as discussed above, and the inconsistency in fact and in theargument of the appellant, we affirm the above conclusion of the HighCourt.

D.1.2 Interpretation of “dead end sides of buildings”

90. An alternative argument has been advanced by Mr RavindraKumar, counsel for NOIDA, that Regulation 24.2.1.6 of the NBR 2010provides for an exception to the 16 mtrs. minimum distance requirementif the building blocks have dead-end sides facing each other. It stipulatesthat if the blocks have dead-end sides facing each other, then the spacingshall be a minimum of 9 mtrs. instead of 16 mtrs. Mr Ravindra Kumarsubmitted that T-1 and T-17 have dead-end sides facing each other andthus, the distance requirement of 16 mtrs. was not applicable. The “dead-end” argument has met a dead-end in the submissions of the appellantas during the proceedings. Mr Vikas Singh, learned Senior Counsel forthe appellant, has specifically clarified that he is not pressing thesubmission. We will however deal with it as the counsel appearing forNOIDA has raised it before this Court.

91. Regulation 24.2.6 of the NBR 2010 stipulates that if the blockshave dead-end sides facing each other, then the spacing shall be amaximum of 9 mtrs. instead of 16 mtrs. The question of dead-end sidesarises only between blocks, in which case the minimum distance requiredis 9 mtrs.

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A92. This Court on 27 July 2016 directed the NBCC to ascertain ifthe dead-end sides of T-1 and T-17 are facing each other, in order todecide if the towers can be brought within the exception in Regulation24.2.1(6) of NBR 2010. The terms of reference were as follows:

“To ascertain whether the two towers- Tower-1 (Aster 2) andBTower-17 have dead end sides facing each other for the purposeof Reg. 24.2.1(6) of Noida Building Regulations 2010.”

NBCC was tasked with the job of determining the meaning of thephrase ‘dead end sides facing each other’, and whether T-1 and T-17could be brought within the exception. This Court also specifically directedCthat NBCC shall not travel beyond the issue that was referred to it.

93. The appellant filed its submissions before NBCC on themeaning of the phrase ‘dead end side of a building’. It was submittedthat:

(i) Model Bye-Laws 2004, Model Bye-Laws 2016 and the DelhiDDevelopment Authority Building Byelaws 2016 have relaxedthe 16 mtrs. distance rule to 9 mtrs. if there are ‘no habitablerooms in the front’, irrespective of the height of the building.A similar provision has been incorporated in NBR 2010 aswell. However, instead of using the phrase “no habitableErooms in the front”, the phrase “dead end” has been used.Therefore, the phrase “dead end” must take color from thebye-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 roomFoccupied or designed for occupation by one or more personsfor study, living, sleeping, eating, kitchen if it is used as aliving room but not including bathrooms, water closet,compartments laundries, serving and storage pantries,corridors, cellars, attics and spaces that are not usedfrequently or during extended periods”.G94. The term ‘dead-end sides of a building’ has not been definedin NBR 2006, NBR 2010, and NBC 2005. Regulation 3 of NBR 2010states that words that are not defined in the Regulations shall have themeanings assigned to them in the UPIAD 1976. If no meaning is assignedto the word in UPIAD 1976, then the meaning assigned to the word inHthe Master Plan/Development Plan, Development Plan, National Building Code, Indian Standard Institution Code shall be referred to. However,none of the above mentioned authorities define the phrase ‘dead endsides of a building’. Though, NBC 2005 uses the phrase in reference todead end situation of road, corridor, water supply etc., no reference withrespect to ‘dead end sides of a building’ is made.

A

95. Therefore, NBCC wrote to the Bureau of Indian Standards[23]and NOIDA on 3 September 2016 and 30 August 2016 respectively,seeking a clarification on the meaning of the phrase ‘dead end sides of abuilding’. BIS through a letter dated 9 September 2016 stated that thephrase was only used in NBR 2010 and not the NBC 2005 that wasbrought by BIS, and therefore, it was not best suited to provide aninterpretation on the phrase. NOIDA vide a letter dated 30 August 2016stated that it refers to “[a]n area/side of a building or a residence havingno access/entrance or exit becomes a dead end area/side of the building,though it may have openings for ventilation”.

B

C

96. NBCC submitted its report on 13 October 2016. The reportdiscusses the structure of T-1 and T-17, the meaning of the phrase ‘deadend side of a building’ and concludes that the sides of T-1 and T-17facing each other are not dead end sides of the buildings. NBCC madethe following observations on the structure of T-1 and T-17 after siteverification:

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(i) The ground floor of T-17 is allocated for commercial shops.The remaining floors in T-17 will have residential flats withwindows/balconies/ventilators on all sides. Except for oneopening for a fire exit, there will be no opening on the groundfloor on the side that faces T-1. However, all other floors(i.e., except the ground floor) will have an opening on theFside that faces T-1;

(ii) The entry to T-17 is on the side that is perpendicular to theside that is facing T-1;

(iii) The entry to the residential flats of T-1 is from the sidefacing T-17;G

(iv) T-1 has offsets. Therefore, the space between T-1 and T-17 varies from 9.3 mtrs. to 25 mtrs.; H

A(v)The habitable rooms with balconies in T-1 and T-17 faceeach other; and

(vi) T-1 and T-17 do not taper at the higher floor. None of thetower wings have different heights.

97. Since there is no clarity on the meaning of ‘dead end side of aBbuilding’, NBCC interpreted the phrase by referring to the use of thephrase ‘dead end’ in NBC 2005 in the context of roads, water supplynetwork etc. where the passage is limited. The report stated that “adead end exists in the corridor or passageway where there is only onedirection to travel to an exit”. Using this meaning as a reference, NBCCCinterpreted the phrase of ‘dead end side of building’ to hold that T-1 andT-17 do not have dead end sides facing each other. Further, NBCC alsoobserved that the distance between T-1 and T-17 does not comply withthe distance rule specified in NBC 2005:

“6. The dead end sides, as per regulation 24.2.1 (6) of NBR 2010Dwould mean where habitable rooms of the building do notface each other and the distance between two adjacent buildingblocks shall be 9 mtrs and otherwise it shall be 16 mtrs as perNBC 2005. In the present case both the buildings i.e T-1 &T-17 have habitable rooms (with balconies) facing eachother so these are not dead ends”.E7. Whether the side of T-17 which is facing T-1 is its dead-endside:

(a) The T-17 has entry & exit routes on the sides perpendicular tothe side facing T-1. Therefore, the side of tower T-17 which facesFT-1 is not the front-side, and therefore, the ‘Building Separation’between T-1 & T-17 should be guided by those clause(s) in NBC2005 that guide(s) open spaces to the sides of a building.

(b) On the ground floor, tower T-17 has commercial space/shopswhich would be always busy/occupied with people for most ofthe time during a normal dat.G(c) On higher floors it has balconies & terraces anchored tohabitable rooms on all sides.

Inference: From (i), (ii) & (iii) above, the side of T-17 which facesT-1 would naturally have frequent human use & activity both duringHdaytime 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 ofT-17.

A

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 middlesection is offset further away from Tower T-17 while the twosections at the ends are in the same line. However, that section isthe main entry/exist to the Tower. The remaining portion ofthe side facing Tower T-17 is also not inactive since it hasbalconies & terraces anchored to habitable rooms and/ortoilets.

B

C

Inference: The entry to tower T-1 is from the side facingTower-17. This the side of tower 1 facing tower-17 cannot betreated as dead end side of tower-1.”

D

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 theissue whether T-1 and T-17 have dead end sides facingeach other for the purpose of Regulation 24.2.1(6) of theENBR 2010. However, NBCC has widened the scope ofenquiry and determined if the sanction is in compliance withthe distance rule in NBC 2005;

(ii) The entry to the ground floor of T-17 is provided on bothsides. For the commercial shops, the entry is on the sideperpendicular to the side facing T-1, and for the otherfacilities it is on the other side opening towards the side ofT-16 and the open space; F

(iii) The passage between T-1 and T-17 is used only to enterinto the parking space allotted for the houses in T-1 toT-15.To enter the parking space of T-17, another passage is used; G

(iv) Four out of the five external sides of the apartments in T-1facing T-17 are dead ends (two plumbing shafts, toilet deadwall, bedroom dead wall). Only the fifth external side of H

AT-1, which is a balcony attached to the living room, facestowards 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 positionsBwith respect to T-1 and T-17. There are sixteen line positionsof the sides of T-1 and T-17 that are facing each other andthey are predominantly dead end sides. Of the sixteen linepositions:

a. Eleven line positions have dead walls facing each other; C

b. Two line positions have dead walls of T1 facing windowsof T-17. However, there is a 16 mtrs. open spacebetween them;

c. Two line positions have the railings of common lift lobbiesof T-1 facing the bed room window of T-17. However,there is a 3 mtrs. open space between them; and D

d. One line position where the dead wall of shaft of T-1faces the railing of balcony in T-17, there is 9.30 mtrs.of open space between them. The open space betweenthe walls of both the buildings in this line space is 10.80Emtrs.

99. The first respondent also sought an expert opinion on whetherT-1 and T-17 have dead end sides facing each other from IIT Delhi. Thereport was submitted on 6 September 2016 to this Court, and concludedthat the sides of T-1 and T-17 that face each other cannot be consideredFas ‘dead end sides of the building’. It was observed that when balconies and windows (or any other egress) are provided, the functionalperformance will be compromised if the minimum distance as prescribedis not adhered to. Elaborating further, it was stated that the minimumdistance can be reduced when there is no egress on the concerned sideGof the building because then there would be no possibility of a functionalcompromise. The reasoning in the report is summarized below:

(i) The dictionary meaning of ‘dead end’ is ‘“no exit”, i.e., noegress or without openings. Therefore, the presence of anyopening in the form of windows of balconies renders theHbuilding side not a dead end;

(ii) The purpose of prescribing a minimum distance requirementAbetween two buildings is to prevent transmission of fire forsafe escape during calamities, minimum ventilation, and toreceive natural day light. In case the minimum distancerequirement between buildings with egress facing anotherbuilding is not complied with, then the function of the egressB(through window or balcony) will be compromised due to thefollowing reasons:

A

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’ ofanother building. There is an increased possibility forfire to be transmitted to the adjacent building throughwindows. However, if the walls have no openings, thenthe distance between the buildings can be less since thereis a lesser chance for transmission of fire; C

b.Safe escape and rescue: As the height of the buildingincreases, there is an increased difficulty to rescueresidents in case of emergency situations. In such cases,open balconies can be used to facilitate rescue operationsprovided that the street has sufficient width. As the heightof the building increases, for maximum safe inclinationof the ladder, the street has to be wider; D

E

c.Minimum ventilation: Minimum natural ventilation isrequired for hygienic ventilation (i.e., the removal of CO2,body odour, etc.), for heat exchange and cooling of thebuilding; and F

d.Natural day light: When the distance between twobuildings is high, the building receives direct sunlight;

(iii) The main entry/exit of T-1 is facing T-17. This entry is theonly one that abuts the road and will in all probability be usedfor rescue operations if the need arises. The balconies ofhabitable rooms in T-1 and T-17 also face each other.Therefore, the concerned building sides (of T-1 facing T-17and vice versa) cannot be considered as dead ends since thesides have egress. Moreover, a reduction in the minimumdistance requirement would severely compromise the purposeof providing such egress.

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A100 The first respondent by a letter dated 6 October 2016 alsosought an expert opinion from IIT Roorkee on whether T-1 and T-17have dead end sides facing each other. A report was submitted in October2016 to this Court holding that the building sides of T-1 and T-17 facingeach other cannot be termed as ‘dead ends’ for the following reasons:

B(i)The scientific basis of providing the distance requirement isto enhance fire safety, provide sufficient day light andventilation, visual privacy and air flow;

(ii) The Merriam Webster Dictionary defines ‘Dead End’ as astreet that ends instead of joining with another street so thatCthere is only one way in and out of it. ‘Dead wall’ is definedas a wall without openings such as doors, windows andventilators. Therefore, evidently, openings for fenestration andthe presence of balconies and windows would mean that the‘side’ is not a dead end side; D(iii) When the side of the building facing another building has egress,the minimum distance specified under the Regulations mustbe complied with. Otherwise, the functional performances ofthe egress (i.e., balcony, window, etc.) will be compromised;and E(iv) The main entry, the doors, windows, and balconies of T-1face T-17. Since the side of T-1 facing T-17 has egress, it isnot a ‘dead end side’.

101. The appellant approached Design Forum International[24], anarchitectural and design firm, requesting their assistance in the ongoingFcase. DFI through its report made the following observations on NBCC’sreport regarding the dead end issue:

(i) T-1 and T-17 vary in design. T-17 has nearly three timesthe length when compared to T-1. Moreover, the portion ofT-17 that overlaps T-1 is not constant along the whole length.Therefore, it is necessary that the sides of the towers facingGeach 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 followingthree categories: (a) dead end facing dead end (i.e., a wallH24 “DFI”

facing a wall); (b) dead end facing a non-dead end (i.e., awall facing a window); and (c) non-dead end facing a non-dead end (i.e., a window facing a window); A

(iv) The position is clear under Regulation 24.2.1(6) of NBR2010 that for cases falling under (a), the distance betweenthe buildings must be 9 mtrs. and for cases falling underB(c), the distance must be 16 mtrs. However, for cases thatfall under (b), there is no clarity on the distance that mustbe maintained between the buildings;

(v) There are thirteen unique line positions between T-1 andT-17. Of the thirteen line positions, in six line positions theCdead 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/T-17faces the non- dead end side of the other (Type (b)); inthree line positions, the non-dead end side of T-1 and T-17face each other (Type (c)); D

(vi) For the line positions falling under type (a), the distancevaries from 9.88 mtrs. to 15.11 mtrs. complying with the 9mtrs. requirement; for the line positions falling under type(b), the distance varies from 10.8 mtrs. to 15.3 mtrs.; forthe line positions falling under type (c), the distance variesbetween 14.62 mtrs. to 15.5 mtrs., which is ‘very slightlylesser’ than the required 16 mtrs.; E

(vii) Since the distance between the sides of T-1 and T-17 facingeach other differ widely and is not uniform, this Court willhave to undertake an in depth analysis of the issue keepingin mind the unique situation; and F

(viii) The minute deficiency in case of type (c) and type (b) (ifthis Court declares the distance to be deficient) can berectified by making structural alterations in the buildings byshifting the position of the egresses.

G

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 UPIADAct 1976 also do not define the phrase. The Court while interpreting theexpression will have to attribute a contextual meaning to the phrase‘dead end side of the block’. The above reports adopt two differentmeanings of the phrase. The NBCC report and the appellant in its H

Aobjections before the NBCC state that the dead end sides of the buildingwould mean where ‘habitable rooms’ of a building do not face eachother. Though it is not specified that only habitable rooms with ‘windows/balconies’ will not be considered as dead ends, it is evident that theargument is that it is only if a habitable room with egress faces the sideof the adjacent building, that it should not be considered as a dead endBside. The corollary is that if the store room or the bathroom or corridorwith a window/vent faces the side of the adjacent building it must still beconsidered as a dead end. Whereas, the reports by IIT Delhi and IITRoorkee take another approach by defining a dead end side of a buildingas a side with egress (i.e., windows, balconies or vents) without anyCreference to ‘habitable rooms’.

103. Two other contentions on the interpretation of the phrasehave also been raised. It is contended that the phrase is ambiguous tothe extent that it does not provide clarity on whether an egress of abuilding facing a dead wall of the adjacent building would fall within theDexception. It is also contended that since the height of T-1 and T-17 isnot the same, two egresses in adjacent buildings face each other only ina few line positions, and the requirement of minimum distance betweenthe adjacent buildings must differ with each line position depending uponwhether those specific line positions are dead ends.

E104. We are therefore faced with three questions while interpretingthe phrase ‘dead end sides of the buildings’:

(i) whether only habitable rooms with egress in any part of thebuilding must be excluded from the ambit of the phrase ‘deadend sides of the buildings’; F(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 deadend side; and

(iii) whether the direct line position must be used for thedetermination of ‘dead end sides of the building’ and theGdistance between two adjacent buildings.

105. We are unable to accept the contention that only habitablerooms with egress (that is, windows or balconies) will fall outside theambit of ‘dead end side of the buildings’. ‘Dead end’ in common parlancemeans no exit or absence of access. NBR 2010 does not provide anyHindication to classify between habitable and non-habitable rooms in the

context of the phrase ‘dead end side’. The argument that the classificationbetween habitable and non-habitable rooms has been made in the ModelBye-Laws with specific reference to the distance requirement andtherefore, it must be imported for the interpretation of the phrase ‘deadend sides of the building’ is unsatisfactory. It is a settled principle ofstatutory interpretation that words must be given their plain and ordinarymeaning unless such an interpretation leads to an ambiguity or absurdityor when the object of the statute indicates otherwise. The use of thephrase ‘dead end side of the building’ in NBR 2010, in spite of the otherbye laws using the phrase ‘habitable rooms’, makes it evident that theintent was to restrict the ambit of the exception. Interpreting the phrasein the context of the ordinary meaning of the word ‘dead end’ does notlead to any ambiguity; rather it is in pursuance of the intent and purposebehind the provision. As stated by the reports submitted by IIT Delhiand IIT Roorkee, the purpose of prescribing a higher minimum distancebetween adjacent buildings in case the side of the building facing anotherhas egress is so that the functional utility of the egress (either a windowor balcony) is not diminished. Windows/balconies, irrespective of whetherthey are attached to a habitable or a non-habitable room, performfunctions which will be greatly diminished if the adjacent building is closerand thereby restricting the air flow and increasing the chance oftransmissibility in the event of a fire. Moreover, the privacy of the flatdwellers would be severely compromised. The expansion of the meaningof the phrase ‘dead end side of the building’ to include non-habitablerooms with windows would thus amount to rewriting the regulation, whenno 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 deadend sides facing each other, then the spacing shall be maximum 9meters instead of 16 meters”. The words ‘blocks’ and ‘sides’ in theplural form find place in Regulation 24.2.1(6) of NBR 2010. TheRegulation does not state ‘if the blockhaving a dead end side’. Whenthe phrases or words are free from ambiguity and when there is onlyone meaning that the phrase would take when fairly construed, it willhave to be literally construed, and courts must not resort to a liberalinterpretation which will defeat the intent, purpose and object of a provisionin a planning regulation.

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A107. The report submitted by DFI refers to the variant heights ofT-1 and T-17. The contention is that since the structure of T-1 and T-17are different, and since the towers horizontally overlap with each otheronly to the extent of the height of the shorter tower (T-1), the distancebetween T-1 and T-17 must be measured in the direct line positions.These direct line positions are then classified into three categoriesB(Category (a) - dead end facing dead end; Category (b) - dead endfacing 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 ofthese 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 categoryC(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 ontwo premises: (i) the minimum distance requirement prescribed underRegulation 24.2.1(6) of NBR 2010 is not the distance between twobuildingsbut is rather the distance between the different direct linepositions between two adjacent buildings; and (ii) it is necessary for theDentireadjacent blocksto have non-dead end sides facing each other forthe 16 mtrs. distance rule to be applied uniformly.

108. The phrase which is used in Regulation 24.2.1(6) of NBR2010 is ‘block’ and not ‘flat’/‘unit’. The unit of consideration is thus notindividual ‘units’ in the block but the entire block itself. The side of theEblock would not be a dead end side if there are even few egresses. Ifthe direct line position argument is accepted, then the intent behindproviding the minimum distance requirement would become nugatory.The purpose of imposing the minimum distance requirement as stated inthe reports of IIT Delhi and IIT Roorkee is to provide ventilation, direct Fsun 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 withrespect to the direct line but with respect to the ‘entire block’.

109. The reports of IIT Delhi and IIT Roorkee clearly elucidateGthe difficulty in evacuation of occupants in high rise buildings. The reportstates that the distance between adjacent buildings needs to be greaterfor taller buildings since the street has to be wider for the maximum safeinclination of the ladder. The reports also mention the reduction inventilation, sunlight and privacy in case the distance between the buildingsis less. Therefore, irrespective of whether all or some of the units in theH

block have an egress facing the adjacent building, the minimum distanceof 16 mtrs. will have to be complied with, otherwise the purpose ofproviding the vent would be functionally compromised

110. In view of the above discussion, the principles that wouldguide the interpretation of the phrase ‘dead end sides of the blocks’ areas follows:

(i) The phrase ‘dead end side of the block’ would mean that anybuilding does not have an egress;

(ii) An egress in a non-habitable room like the bathroom or thestoreroom will be considered as a non-dead end side;

(iii) For the ‘dead end’ exception to be applicable, it is necessarythat the sides of both the buildings facing each other must nothave any egress;

(iv) It is not necessary that all the units in the building facing theother building must have an egress. Even if some of the unitshave an egress, that side of the block will not be consideredas a ‘dead end side’; and

(v) The minimum distance required between two adjacent blocksmust not be measured through direct line positions of the unitsbut along the ground.

111. On application of the principles deduced above on theinterpretation of the expression ‘dead end side of the building’, the sidesof T-1 and T-17 facing each other are held not to be dead end sides forthe following reasons:

(i) The windows/corridors of T-17 on all floors except the groundfloor have an opening on the side that faces T-1. Though thisis contested by the appellant, it has been conceded that thereare at least a few windows/balconies in T-1 facing T-17 andvice versa;

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

(iii) Four out of five external sides of T-1 that face T-17 are deadend sides. However, the fifth side is a balcony of the livingroom facing T-17. The distance between points of the buildings A

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Acannot be selectively measured to argue its compliance withthe 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 selectivemeasurement from the dead end points cannot be undertaken.BThe distance must be measured along the ground.

Thus, we find that the revised plans were in violation of NBR2010 and do not fall under the exception provided in Regulation 24.2.1.6for blocks having dead end sides.

D.2 Violation of NBC 2005C

112. We shall now address the question of whether the third revisedplans violated the NBC 2005. As we have seen above, NBC 2005 isreferenced in Regulations 24.2.1.6 of the NBR 2010. NBC 2005 hastwo parts in regard to the maintenance of open spaces – para 8.2.3.1and para 8.2.3.2. Para 8.2.3.1 provides for open spaces for buildingsDabove the height of 10 mtrs., which are specified in Table 2. Table 2indicates that the side and rear open spaces correspond to the height ofthe building and increase accordingly, beginning with 3 mtrs. for a buildingof a height of 10 mtrs. and up to 16 mtrs., where the height of thebuilding is 55 mtrs. and above. In addition, Note 3 clarifies that whereEeither the length and depth of the building exceeds 40 mtrs., the minimumdistance which is prescribed must be further increased by ten percent ofthe length and depth of the building minus 4 mtrs. Thus, the calculationfor the side and rear open spaces to be left around the building would beas follows:

25 The total actual length of T-17 as noted in the NBCC Report is 84.5 m as against theHenvisaged 121 m.

Thus, according to the NBC 2005, the spacing between T-1 andT-17 should be 20.45 mtrs. Evidently then, the second and third revisedplans were not in accordance with the NBC 2005. This conclusion isfortified by the report of the NBCC, which in para 5 reaches theconclusion that the minimum open space around T-17 is to be 20.45mtrs. and thus, the distance between T-1 and T-17 does not comply withpara 8.2.3.1 of the NBC 2005.

C

113. An alternative to para 8.2.3.1 has been provided in para 8.2.3.2for ‘tower like structures’. Para 8.2.3.2 stipulates that for a structure ofa height up to 24 mtrs. with one set-back, the open spaces at the groundlevel should not be less than 6 mtrs.; if the height is between 24 mtrs.and 37.5 mtrs. with one set-back, the open space at the ground levelmust be not less than 9 mtrs.; and for heights above 37.5 mtrs. with twoset-backs, the open space at the ground level should not be less than 12mtrs. Additionally, under (d) of para 8.2.3.1, the deficiency in open spacesof tower like structures (as compared to all building of height above 10mtrs. in para 8.2.3.1) can be made good by providing set-backs at theupper levels, so long as the set-backs are not accessible from individualrooms or flats at these levels.

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114. A reading of para 8.2.3.2 indicates that this exception is onlyapplicable 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 isex facie not attracted for the reason that there are no set-backs at theupper levels within the contemplation of the disputed constructions. Inany case, even para 8.2.3.2 provides that for tower like structures higherthan 37.5 mtrs. with two setbacks, the open space should be not lessthan 12 mtrs. Thus, the exception is of no aid to the appellant and NOIDAwhich has issued the third revised plan envisaging a distance of 9 mtrs.between T-1 and T-17.

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D.3 Violation of Fire Safety Norms

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A115. The appellant requested for a fire NOC for the constructionof T-16 and T-17. On 11 September 2009, a report was submitted to theCFO observing that the road is wide enough for vehicles of the FireBrigade Department to reach the spot in case of emergency situations.However, clause 10 of the report states that Part III and Part IV ofNBC 2005 will have to be complied with during the construction of theBbuilding 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 sideand rear open spaces of buildings which are 55 mtrs. high and above.

116. On 18 August 2011, the CFO issued a temporary fire NOCfor the construction of T-16 and T-17. This letter also stated that theCapplicant will have make arrangements for fire safety compliant withthe NBC 2005. On 29 March 2012, the CFO issued a notice to theappellant highlighting various shortcomings in fire security provisions.On 24 April 2012, the CFO wrote to NOIDA stating that the distancebetween T-1 and T-17 is only 9 mtrs. which is violative of NBR 2006,DNBR 2010 and NBC 2005 and asking if NOIDA had provided anyexemption to the distance rule to appellant. The CFO issued a showcause notice to the appellant on 17 July 2012 directing that T-16 and T-17 that are under construction be physically separated from the ‘oldtowers’.

E117. A complaint was made by the first respondent to the CFO onthe non-compliance of the conditions stipulated for the grant of the NOCfor the complex (for T1 to T-15). A committee was constituted to lookinto the complaint and the following observations were made by thecommittee:F(i)A show cause notice was issued for the construction of asecond staircase. The stair case has still not been built;

(ii) People are living in quarters constructed in the basementwhich is not in accordance with the NBC 2005 provisions;

(iii) Set back is used as a parking, so the effective set back inGcertain places is reduced by 2 mtrs. and is thus less than therequired 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 tobe complied with within six months. Since they were not complied with,H

a show cause notice was issued on 30 May 2014 for not remedying thedeficiencies.

119. Regulation 76 of NBR 2006 states that the building must beplanned and constructed in accordance with Part IV of National BuildingCode 1970, amended as of that day. Para 4.6 of NBC 2005 states thatthe approach to the building and the open spaces on all the sides of ahigh rise building shall be 6 mtrs. and that the layout of the building mustbe made in consultation with the CFO. However, para 8.2.3.1 of NBC2005 prescribes a minimum of 16 mtrs. side and rear spaces for buildingsthat are higher than 55 mtrs. Therefore, on reading NBC 2005 as awhole, the side and rear space around the building must be 16 mtrs. Thedistance between T-1 and T-17 is only 9 mtrs., which is less than therequired 16 mtrs.

120. The temporary NOC that was given by the CFO clearlystates that the NBC 2005 must be complied with. However, as shownabove, the provisions of NBC 2005 have not been complied with.Therefore, given that the rear distance requirement under NBC 2005has not been complied with, the NOC given by the CFO standsautomatically cancelled in terms of the report dated 11 September 2009and letter dated 18 August 2011.

E Consent of the RWA

121. Having held above that the sanction for the construction ofT-16 and T-17 were given by NOIDA in contravention of the minimumdistance requirement provided by the Building Regulations, we will advertto the next issue. It has been contended by RWA that the sanction couldnot have been revised without the consent of the flat purchasers in theoriginal fifteen towers. While analyzing this issue, it is first important toconsider the appellant’s preliminary objection that the UP 1975 Act isnot applicable to the present case. After addressing the preliminaryobjection, we shall analyze whether the consent was actually requiredunder 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 “anAct to provide for matters connected with the ownership and use ofindividual flats in buildings consisting of four or more flats”. Section 2 ofthe Act states that the Act shall apply only to owners who submit to the AB

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Aprovisions of the Act by executing a declaration. Section 2 reads asfollows:

“2. Application of the Act. — This Act applies only to property,the sole owner or all the owners of which submit the same to theprovisions of this Act by duly executing and registering aBDeclaration setting out the particulars referred to in section 10:

Provided that no property shall be submitted to the provisions ofthis Act, unless it is actually used or is proposed to be used forresidential purposes:

Provided further that the sole owner or all the owners of the landCon which building is situated may submit such land to the provisionsof this Act with a condition that he or they shall grant a lease ofsuch land to the owners of the flats, the terms and conditions ofthe lease being disclosed in the declaration either by annexing acopy of the instrument of lease to be executed to the declarationor otherwise.”D

123. Section 3(d)[26 ]contains the definition of common area andfacilities. Section 4[27] stipulates that a flat shall be transferable and heritable 26" (d) “common areas and facilities” includes—

(1) the land on which the building is located and all easements, rights and appurtenancesEbelonging 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 ofthe property;F(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 allapparatus and installations existing for common use;

(7) such other common facilities as may be specially provided for in the Declaration;27 “4. Flat to be transferable and heritable property.—(1) Each owner of a flat shallbe entitled to the exclusive ownership and possession of his flat in accordance with theGDeclaration.(2) Subject to the provisions of the second proviso to section 2, a flat, together with itsundivided interest in the common areas and facilities, shall constitute heritable andtransferable immovable property within the meaning of any law for the time being inforce:

Provided that no flat and the percentage of undivided interest in the common areas andfacilities appurtenant to such flat shall be partitioned or sub-divided for any purposeHwhatsoever.”

property. Each owner of a flat is entitled to exclusive ownership andpossession of their flat in accordance with the declaration. Moreover, aflat together with its undivided interest in the common areas and facilitiesshall be heritable and transferable immoveable property. Further, a flattogether with its undivided interest in the common areas and facilitiesshall not be partitioned or sub-divided for any purpose.

124. Section 5 provides for common areas and facilities in thefollowing terms:

“5. Common areas and facilities. — (1) Each owner of a flatshall be entitled to an undivided interest in the common areas andfacilities in the percentage expressed in the Declaration.

(2) The percentage of the undivided interest of each ownerof a flat in the common areas and facilities as expressed inthe Declaration shall not be altered without the consent ofall the owners of the flats expressed in an amended Declarationduly executed and registered as required by this Act.

(3) The percentage of the undivided interest in the common areasand facilities shall not be separated from the flat to which itappertains, and shall be deemed to be conveyed or encumberedwith the flat even though such interest is not expressly mentionedin the conveyance or other instrument.

(4) The common areas and facilities shall remain undivided, andno suit shall lie at the instance of any owner of the flat or otherperson for partition or division of any part thereof, unless theproperty have been withdrawn from the provisions of this Act.

(5) Each owner of a flat may use the common areas and facilitiesfor the purpose for which they are intended without hindering orencroaching upon the lawful rights of the owners of other flats.

(6) The work relating to the maintenance, repair and replacementof the common areas and facilities and the making of any additionsor improvement thereto shall be carried out in accordance withthe provisions of this Act and the bye-laws.

(7) The Association of Owners of flats shall have irrevocableright to be exercised by the Manager or the Board of Managerson behalf of the Association with such assistance as the Manageror the Board of Managers, as the case may be, considers A

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Anecessary to have access to each flat from time to time duringreasonable hours, for the maintenance, repair and replacement ofany of the common areas and facilities therein or accessibletherefrom or for making emergency repairs therein to preventany damage to the common areas and facilities or to other flats.”

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Under sub-Section (2) of Section 5, the percentage of the undividedinterest of each owner of a flat in the common areas and facilities, asexpressed in the Declaration, shall not be altered without the consent ofall the owners of the flats expressed through an amended DeclarationCwhich shall be executed and registered under the Act. Section 10[28 ]providesfor the contents of such a Declaration. Further, Section 11[29] envisages 28 “10. Contents of Declaration.—(1) The declaration referred to in section 2 shall besubmitted in such form and in such manner as may be prescribed and shall contain thefollowing particulars, namely:—D(a) description of the property, namely the description of the land on which thebuilding is or is to be located, whether the land is freehold or leasehold and whether anylease of the land is to be granted in accordance with the second proviso to section 2, anddescription of the building or proposed building stating the number of storeys andbasements 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;

E(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 itsproper identification; (e) description of the common areas and facilities; (f) description of the limited common areas and facilities, if any, stating to which flatstheir use is reserved; (g) value of the property and of each flat, and the percentage of undivided interest in theFcommon 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 maywithdraw a property from the provisions of this Act by an instrument executed to thateffect.

(2) Upon the property being withdrawn from the provisions of this Act, it shall beGdeemed to be owned in common by the owners of flats and the share of each such ownerin the property shall be the percentage of undivided interest previously owned by suchowner in the common areas and facilities.

(3) Any encumbrance affecting any of the flats shall be deemed to be transferred inaccordance with the existing priority to the percentage of the undivided interest of theowner of the flat in the property as provided therein.

(4) The withdrawal provided for in sub-section (1) shall in no way bar the subsequentHresubmission of the property to the provisions of this Act.”

that all the owners of flats may withdraw a property from the provisionsof the Act by an instrument executed to that effect, following which itshall be deemed to be owned in common by the owners of flats whereinthe share of each such owner shall be the percentage of undivided interestpreviously owned in the common areas and facilities.

125. The submission urged on behalf of the appellant is that theUP 1975 Act has no application to the present case, in view of theprovisions of Section 2. Section 2, as we have seen, specifies that theAct 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 aDeclaration setting out the particulars as contained in Section 10.

126. Undoubtedly, in this case there was no declaration in termsof Section 2. However, significantly, the lease deed which was executedby NOIDA in favour of the appellant on 16 March 2005, contains astipulation in clause II(h) in the following terms:

“II) AND THE LESSEE DOTH HEREBY DECLARE ANDCOVENANTS WITH THE LESSOR IN THE MANNERFOLLOWING:

[…]

h) The Lessee/sub-lessee shall make such arrangement as arenecessary for maintenance of the building and common servicesand if the building is not maintained properly the Chief ExecutiveOfficer, Noida or any officer authorized by him will have the powerto get the maintenance done through the Authority and recoverthe amount so spent from the Lessee/Sub-Lessee. The Lessee/Sub-Lessee will be individually and severally liable for paymentof the maintenance amount. The rule/regulation of U.P. FlatOwnership Act, 1975 shall be applicable on the lessee/sub-lessee.” (emphasis supplied)

127. Mr Ravindra Kumar, learned Counsel appearing on behalfof NOIDA, advanced a submission that the last sentence of clause II(h)must be read together with the entirety of the clause, which relates tothe maintenance of the building and common services. Clause II(h) statesthat in the event the building or common services are not maintainedproperly, NOIDA would be entitled to ensure the maintenance and recoverthe amount from the lessee/sub-lessee.

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A128. However, the application of clause II(h) cannot be brushedaway on this basis, particularly since the sentence imposing the applicationof the UP 1975 Act on the lessee/sub-lessee must bear some meaningand content. In this context, during the course of his submissions, MrJayant Bhushan, learned Senior Counsel appearing on behalf of the RWA,has placed on the record a copy of the registered sub-lease executed onBa tripartite basis by NOIDA, with the appellant as the lessee and the flatbuyer as the sub-lessee. Some important provisions of this deed of sub-lease are:

(i) Clause 16 contemplates that the occupant of the ground floorwould be entitled to use a “sit-out area but the right of userCshall be subject to the provisions of the UP Ownership FlatAct 1975”;

(ii) Clause 17 recognizes the right to user of the occupant of thedwelling unit on the top floor, subject to the provisions of thesame enactment; andD

(iii) Clause 27 envisages that all clauses of the lease executed byNOIDA in favour of the appellant on 16 March 2005 shall beapplicable to the sub-lease deed as well.

129. In the backdrop of this provision, more particularly, clauseEII(h) of the lease deed which was executed by NOIDA in favour of theappellant on 16 March 2005, the appellant was duty bound to complywith the provisions of the UP 1975 Act. By submitting before this Courtthat it is not bound by the terms of its agreement or the Act for want ofa declaration under Section 2, the appellant is evidently attempting totake advantage of its own wrong.F

E.2 Applicability of the UP Apartments Act 2010

130. In 2010, the State legislature enacted the UP ApartmentsAct 2010. The long title describes the legislation as:

“An Act to provide for the ownership of an individual apartmentGin a building of an undivided interest in the common areas andfacilities appurtenant to such apartment and to make suchapartment and interest heritable and transferable and for mattersconnected therewith or incidental thereto”

131. Section 2 of the Act is in the following terms:

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“2. Application.- The provisions of this Act shall apply to allbuildings having four or more apartments in any buildingconstructed or converted into apartment and land attached to theapartment, where freehold, or held on lease excluding shoppingmalls and multiplexes.”

Thus, in contrast with Section 2 of the UP 1975 Act, thecorresponding provision of the UP Apartments Act 2010 stipulates thatthe Act shall apply to all buildings with four or more apartments in anybuilding and land attached to the apartment whether freehold or held onlease. Further, unlike Section 2 of the UP 1975 under which the Act wasto 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 anapartment or the promoter or his nominee in case of unsoldapartments to and an undivided interest in the common areas andfacilities appurtenant to such apartment in the percentage specifiedin the Deed of Apartment and includes the lessee of the land onwhich the building containing such apartment has been constructed,where the lease of such land is for a period of thirty years ormore;”

133. The Act contains a definition of common areas in Section3(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, fire-escapes andentrances and exits of the building;

(iii) the basements, cellars, yards, parks, gardens, communitycenters and parking areas of common use;

(iv) the premises for the lodging of janitors or persons employedfor the management of the property; A

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A(v) installations of central services, such as power, light, gas, hotand cold water, heating, refrigeration, air conditioning, incineratingand sewerage;

(vi) the elevators, tanks, pumps, motors, fans, cable pipe line (TV,gas, electricity etc.) rain water harvesting system, compressors,Bducts and in general all apparatus and installations existing forcommon use;

(vii) such other community and commercial facilities as may bespecified in the bye-laws; and

(viii) all other parts of the property necessary or convenient to itsCexistence, maintenance and safety, or normally in common use; […]

(s) “limited common areas and facilities” means those commonareas and facilities which are designated in writing by the promoterDbefore the allotment, sale or other transfer of any apartment asreserved for use of certain apartment or apartments to theexclusion of the other apartments;”

134. The general liabilities which have been cast upon promotersintending to sell an apartment are set out in Section 4(1), which reads asfollows:E

“4. General liabilities of promoter.— (1) Any promoter whointends to sell an apartment, shall make a full and true disclosurein writing of following to an intending purchaser and the CompetentAuthority:

F(a) rights and his title to the land and the building in which theapartments have been or proposed to be constructed; (b) all encumbrances, if any, on such land or building, and anyright, title, interest or claim of any person in or, over such land orbuilding; G(c) the plans and specifications approved by or submitted forapproval to the local authority of the entire building of which suchapartment forms part; (d) detail of all common areas and facilities as per the approvedlay-out plan or building plan;H

(dd) built-up area and common area of an apartment.

(e) the nature of fixtures, fittings, and amenities, which have beenor proposed to be provided; (f) the details of the design and specifications of works or andstandards of the material which have been or are proposed to beused in the construction of the building, together with the detailsof all structural, architectural drawings, layout plans, no objectioncertificate from Fire Department, external and internal servicesplan 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 localtaxes, water and electricity charges, revenue assessments,maintenance and other charges, interest on any mortgage or otherencumbrance, if any, in respect of such land, building andapartments; (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 inthis section as sanctioned by the prescribed sanctioning authorityare disclosed to the intending purchaser and a written agreementof sale is entered into and registered with the office of concernedregistering authorities. The promoter may make such minoradditions or alterations as may be required by the owner or owners,or such minor changes or alterations as may be necessary due toarchitectural and structural reason’s duly recommended andverified by authorized Architect or Engineer after properdeclaration and intimation to the owner:

Provided that the promoter shall not make any alterations in theplans, specifications and other particulars without the previousconsent of the intending purchaser, project Architect, projectEngineer and obtaining the required permission of the prescribedsanctioning authority, and in no case he shall make such alterationsas an not permissible in the building bye-laws.”

Under clause (c) of sub-Section (1) of Section 4, a promoter whointends to sell an apartment is required to make a full disclosure in writingto an intending purchaser and to the competent authority of the plans A

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Aand 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 andfacilities in accordance with the approved lay-out plan or building plan.Once such a disclosure has been made, sub-Section (4) stipulates thatupon the execution of a written agreement to sell, the promoter mayBmake minor additions or alterations as may be required or necessarydue to architectural and structural reasons duly authorized and verifiedby authorized Architects or Engineers. Apart from these minor additionsor alterations which are contemplated by sub-Section (4), the provisostipulates that the promoter shall not make any alterations in the plans,Cspecifications and other particulars “without the previous consent of theintending purchaser”. Mr Vikas Singh’s submission, that this provisionwill apply to intending purchasers of Apex and Ceyane and not to thepersons who had purchased apartments in the existing fifteen towers,cannot be accepted. The above proviso is evidently intended to protectpersons to whom the plans and specifications were disclosed when theyDwere the “intending purchasers”. Further, a construction to the contrarywill run against the grain of the intent and purpose of the statute as wellits express provisions.

135. Section 5 of the Act provides for the rights of apartmentowners in the following terms, insofar as is relevant:E

“5. Rights of Apartment Owners.— (1) Every person to whomany apartment is sold or otherwise transferred by the promotershall subject to the other provisions of this Act, be entitled to theexclusive ownership and possession of the apartment so sold orotherwise transferred to him.F

(2) Every person who becomes entitled to the exclusive ownershipand possession of an apartment shall be entitled to such percentageof undivided interest in the common areas and facilities as may bespecified in the Deed of Apartment and such percentage shall becomputed by taking, as a basis, the area of the apartment in relationGto the aggregate area of all apartments of the building.

(3) (a) The percentage of the undivided interest of each apartmentowner in the common areas and facilities shall have a permanentcharacter, and shall not be altered without the written consent ofall the apartment owners and approval of the competent authority.

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(b) The percentage of the undivided interest in the common areasand facilities shall not be separated from the apartment to whichit appertains and shall be deemed to be conveyed or encumberedwith apartment, even though such interest is not expresslymentioned in the conveyance or other instrument.”

136. It is important to clarify at this stage that the UP ApartmentsAct 2010 will not apply with retrospective effect to the second revisedplan, which was sanctioned on 26 November 2009. However, thelegislation, which came into force upon publication in the UP Gazette on19 March 2010, will have consequences for the third revised plansanctioned 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 on2 March 2012, the height of T-16 and T-17 was sought to be increasedfrom twenty-four to forty (or thirty-nine, as the case may be) floors. Asa result, the total number of flat purchasers would increase from 650 to1500. The clear implication of this would be a reduction of the undividedinterest of the existing purchasers in the common areas. As a matter offact, it has also been submitted on behalf of the first respondent that theadditional lease rent paid to NOIDA was also sought to be collectedfrom the existing flat purchasers at the rate of Rs 190 per sq. foot. Astatement to that effect was also contained in an affidavit filed beforethe High Court on behalf of the first respondent. The purchase ofadditional FAR by the appellant cannot be used to trample over the rightsof the existing purchasers.

138. Flats were sold on the representation that there would be agarden area adjacent to T-1. The garden adjacent to T-1 is clearly depictedin the first revised plan of 29 December 2006. It is this garden areawhich was encroached upon when the second revised plan wassanctioned on 26 November 2009.

139. However, according to the appellant, T-16 and T-17 formpart of Phase II of Emerald Court, which had not encroached on anypart of the common areas of Phase I, under which all the other towersfell. In this context, it would be material to note a letter dated 13 February2012 addressed to the Circle Officer, City 3[rd] NOIDA, Gautam BuddhNagar, by the Director of the appellant, in which it has been stated that:

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“Kindly, refer to your Letter Dt. 10.02,2012, received by us on11.02.2012, 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 isbeing constructed over plot measuring nearly 6500 sq. meter whichwas acquired by the Company M/s. Supertech Limited fromNOIDA Development Authority in the year 2006, regarding whichits 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 forconstructing separate complex viz. Apex and [Ceyane] andprovisions have been separately made in both towers viz.swimming pool, car, club, parking and gym etc. The facilitiesof other old towers as shown in the brochure have beenpublished by mistake, but concerned amendment was madein the brochure upon the company being informed by theresidents residing in old towers…

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4. That, company has erected wall for the expansion of basementand above wall was erected by the company over its land and thisbasement area was not sold to any resident of old tower overwhich company has complete ownership. No adverse effect isthere on the interests of any resident in erecting above wall, ratherthe residents of old tower have been removed from the allottedbasement area by it. Company has full right to make constructionover its land.

5. That, construction carried out earlier or being carried out bythe company is completely legal and in accordance with Rulesand company has not affected the interest of anybody and nofraud was committed by the company with anybody.

Therefore, it appears that the complainant having presented thisfalse complaint inspired by mala fides wants to harass the companyand wants to earn undue advantage by not making payment of anamount which is payable to the company. Therefore, it is requestedthat complaint presented by the complainant is liable to bedismissed. In addition, it is also requested that any personal name be not used in any correspondence or inquiry, rather name ofcompany through its Director be used.”

The above letter puts forth the case that T-16 and T-17 have beenconstructed as a separate project over the area which was obtainedunder the supplementary lease deed, and that it has separate provisionsfor all amenities and infrastructure. In fact, it indicates that the facilitiesof the older buyers were shown in the brochure but that representationwas ‘clarified’ to be a ‘mistake’, which had been amended.

140. As such, it becomes important to refer to the supplementarylease deed, which was granted in favour of the appellant on 21 June2006. The supplementary lease deed makes it clear that the demisedpremises admeasuring 6556.51 sq. mtrs. would form a part of the originallyallotted plot. In the course of its affidavit before the High Court, theappellant contended that:

“7. The Office bearers/members of the petitioners society hasthe right title & interest only in its flat and undivided interest in thecommon areas of the Emerald Court (phase I). He has the rightto challenge if somebody is trying to encroach in his flat or in theCommon area are intended to be used for the purpose of theresidents. However, here this is not the case. It is stated that the“Apex & Ceyane” (Phase II) comprising of two towers has notencroached any area of the common of the Emerald Court (PhaseI). Therefore the petitioner society does not have the locus tochallenge the issues related with “Apex & Ceyane” (Phase- II).”

In other words, the case which was sought to be set up was thatthe flat purchasers had an undivided interest in the common areas ofPhase I of the Emerald Court, but since T-16 and T-17 formed a part ofPhase II, it did not affect the rights of the original flat purchasers of T-1to T-15. This contention is expressly contrary to the clear terms governingthe supplementary lease deed, which indicates that the area comprisingof the demised premises would form part of the original plot. Furthermore,the appellant having utilized the FAR of the entire plot, including the areawhich forms the subject matter of the original lease and the supplementarylease, cannot be allowed to assert to the contrary.

141. Hence, it is abundantly clear that the construction of T-16and T-17 in accordance with the second revised plan and the third revised A

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Aplan reduced the value of the undivided interest held by each individualflat owner in the common areas and facilities, thereby violating Section5 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 revisedplan encroached upon the garden area in front of T-1, thereby resilingfrom the representation that had been made to the flat owners at theBtime when they purchased the apartments in T-1, without their consent.Therefore, it constituted a violation of Section 4(1) read with the provisoto Section 4(4) of the UP Apartments Act 2010.

142. Finally, the appellant has also tried to argue that: (i) the consentof each individual flat owner could not be taken and it had to be takenCfrom the RWA, as a collective body; (ii) the RWA only came into existenceon 20 October 2013, when it adopted the Model Bye-Laws under theUP Apartments Act 2010l (iii) that this was after the third revised planwas sanctioned; and (iv) hence, there existed no association to takeconsent from. The High Court has dealt with this argument in theDimpugned judgment by observing:

“As per the averments of the respondent/company, the flats werehanded over to the apartment owners by September 2009. Theowners immediately formed Resident Welfare Association (RWA)and got it registered with the Registrar Societies, in the very sameEyear. Adopting the model bye-laws, did not arise, as it was notenforced until 2011. After notification of Model bye-laws, theDeputy Registrar Firm, Societies and Chits, Meerut vide letterdated 14.12.2012 informed, that pending instructions from theRegistrar Firm Societies and Chits Uttar Pradesh, no decision inthe matter can be taken in respect of Model bye-laws and itsFregistration. The Registrar Firm, Societies and Chits Uttar Pradeshvide circular dated 5.2.2013 addressed to all Deputy Registrars/District Registrars issued instructions for registration underApartment Act, 2010 and directed that bye laws of existing RAWbe accordingly amended. The petitioner/society vide resolutionGdated 20.10.2013 adopted the Model bye-laws and conductedelections and thereafter informed the Deputy Registrar.

The respondent/company has recognized the petitioners societyas RWA of the Apartment owners since inception and hascontinuously corresponded with the petitioner society as RWA.HLetter dated 9.10.2012, 27.9.2012, 4.9.2012 and January, 2013

addressed to the petitioner society regarding redressal of theirgrievance is on record…”

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Therefore, it is clear that: (i) the RWA came into existence in2009 itself, when the first lot of apartment owners moved in; (ii) theappellant was communicating with the RWA ever since; and (iii) theRWA adopted the Model Bye-Laws under the UP Apartments Act 2010,as soon as it was practicable. These averments have not been challengedbefore 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 UP1975 Act and UP Apartments Act 2010 have been provided to individualflat owners, and not to collective bodies like the RWA. Hence, even thenon-constitution of the RWA will not extinguish the rights of individualflat owners. Indeed, however, whensuch RWAs do exist, developersmay use them to seek a common consent from all the flat owners insteadof approaching them all individually.

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F Collusion and Illegal Construction

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143. The record of this case is replete with instances which highlightthe collusion between the officers of NOIDA with the appellant and itsmanagement. The case has revealed a nefarious complicity of the planningauthority in the violation by the developer of the provisions of law. Thecomplicity of NOIDA has emerged, inter alia, from the followinginstances:

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(i) The sanctioning of the second revised plan on 26 November2009 in clear breach of the NBR 2006;

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

(iii) NOIDA’s referral of RWA’s request to access thesanctioned plans to the appellant to seek its consent andupon the refusal of the latter, a continuous failure to discloseGthem to the RWA;

(iv) Even when the CFO addressed a communication to NOIDAin regard to the violation of the minimum distancerequirements in Emerald Court, it evinced no response andno investigation from them; H

A(v)In pursuance of the second revised plan of 26 September2009, the appellant would appear to have built a foundationto support two buildings of forty and thirty-nine floors, whilethe sanction for the extension from twenty-four to forty orthirty-nine floors came about only on 2 March 2012 throughthe third revised plan; and B

(vi) The construction for T-16 and T-17 commenced in July 2009by the appellant, five months before the sanction wasreceived for the second revised plan on 26 November 2009,in spite of which NOIDA chose to take no action.

C144. The High Court has dealt with the collusion between theofficials of NOIDA and the appellant. This is writ large from the factsas they have emerged before this Court as well. The High Court has inthese circumstances correctly come to the conclusion that there wascollusion between the developer and the planning authority.

D145. Condition 15 of the third revised plan dated 2 March 2012stipulated that:

“15. Compliance of provisions of Uttar Pradesh Apartment(promotion of construction, ownership & maintenance) Act 2010,and directions issued thereunder shall be ascertained.

ESanctioned site plan/map is enclosed with this letter. Applicationfor utility certificate would be made after completion of buildingwork within validity of map/site plan, and without permission andcertification building shall not be used…”

In spite of this condition, NOIDA made no effort to ensureFcompliance of the UP Apartments Act 2010, as a result of which therights of the flat purchasers have been brazenly violated. This cannotpoint to any conclusion, other than the collusion between NOIDA andthe appellant to avoid complying with the provisions of the applicablestatutes and regulations for monetary gain, at the cost of the rights of theflat purchasers.G

146. The rampant increase in unauthorized constructions acrossurban areas, particularly in metropolitan cities where soaring values ofland place a premium on dubious dealings has been noticed in severaldecisions of this Court. This state of affairs has often come to pass in nosmall a measure because of the collusion between developers and planningHauthorities.

147. From commencement to completion, the process ofconstruction 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. Whilethe availability of housing stock, especially in metropolitan cities, isnecessary to accommodate the constant influx of people, it has to bebalanced with two crucial considerations – the protection of theenvironment and the well-being and safety of those who occupy theseconstructions. The regulation of the entire process is intended to ensurethat constructions which will have a severe negative environmental impactare not sanctioned. Hence, when these regulations are brazenly violatedby developers, more often than not with the connivance of regulatoryauthorities, it strikes at the very core of urban planning, thereby directlyresulting in an increased harm to the environment and a dilution of safetystandards. Hence, illegal construction has to be dealt with strictly toensure compliance with the rule of law.

148. The judgments of this Court spanning the last four decadesemphasize the duty of planning bodies, while sanctioning building plansand enforcing building regulations and bye-laws to conform to the normsby which they are governed. A breach by the planning authority of itsobligation to ensure compliance with building regulations is actionable atthe instance of residents whose rights are infringed by the violation oflaw. Their quality of life is directly affected by the failure of the planningauthority to enforce compliance. Unfortunately, the diverse and unseengroup of flat buyers suffers the impact of the unholy nexus betweenbuilders and planners. Their quality of life is affected the most. Yet,confronted with the economic might of developers and the might of legalauthority wielded by planning bodies, the few who raise their voiceshave to pursue a long and expensive battle for rights with little certaintyof outcomes. As this case demonstrates, they are denied access toinformation and are victims of misinformation. Hence, the law must stepin to protect their legitimate concerns.

149. In K. Ramadas Shenoy v. Chief Officer, Town MunicipalCouncil[30], Chief Justice AN Ray speaking for a two judge Bench of30 (1974) 2 SCC 506

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Athis Court observed that the municipality functions for public benefit andwhen it “acts in excess of the powers conferred by the Act or abusesthose powers then in those cases it is not exercising its jurisdictionirregularly or wrongly but it is usurping powers which it does not possess”.This Court also held:

B“27…The right to build on his own land is a right incidental to theownership of that land. Within the Municipality the exercise ofthat right has been regulated in the interest of the communityresiding within the limits of the Municipal Committee. If underpretence of any authority which the law does give to theMunicipality it goes beyond the line of its authority, and infringesCor violates the rights of others, it becomes like all other individualsamenable to the jurisdiction of the courts. If sanction is given tobuild by contravening a bye-law the jurisdiction of the courts willbe invoked on the ground that the approval by an authority ofbuilding plans which contravene the bye-laws made by thatDauthority is illegal and inoperative. (See Yabbicom v. King [(1899)1 QB 444]).”

This Court held that an unregulated construction materially affectsthe right of enjoyment of property by persons residing in a residentialarea, and hence, it is the duty of the municipal authority to ensure thatEthe area is not adversely affected by unauthorized construction.

150. These principles were re-affirmed by a two judge Bench inDr G.N. Khajuria v. Delhi Development Authority[31] where this Courtheld that it was not open to the Delhi Development Authority to carveout a space, which was meant for a park for a nursery school. JusticeFBL Hansaria, speaking for the Court, observed:

“10. Before parting, we have an observation to make. The sameis that a feeling is gathering ground that where unauthorisedconstructions are demolished on the force of the order of courts,the illegality is not taken care of fully inasmuch as the officers ofGthe statutory body who had allowed the unauthorised constructionto be made or make illegal allotments go scot free. This shouldnot, however, have happened for two reasons. First, it is the illegalaction/order of the officer which lies at the root of the unlawfulact of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thusimperative, according to us, that while undoing the mischief whichwould require the demolition of the unauthorised construction, thedelinquent officer has also to be punished in accordance with law.This, however, seldom happens. Secondly, to take care of theinjustice completely, the officer who had misused his power hasalso to be properly punished. Otherwise, what happens is that theofficer, who made the hay when the sun shined (sic), retains thehay, which tempts others to do the same. This really gives fillip tothe commission of tainted acts, whereas the aim should beopposite.”

151. In Friends Colony Development Committee v. State ofOrissa[32], this Court dealt with a case where the builder had exceededthe permissible construction under the sanctioned plan and had constructedan additional floor on the building, which was unauthorized. Chief JusticeRC Lahoti, speaking for a two judge Bench, observed:

“24. Structural and lot area regulations authorise the municipalauthorities to regulate and restrict the height, number of storeysand 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 thesehave in our view and do achieve the larger purpose of the publichealth, safety or general welfare. So are front setback provisions,average alignments and structural alterations. Any violation ofzoning and regulation laws takes the toll in terms of public welfareand convenience being sacrificed apart from the risk, inconvenienceand hardship which is posed to the occupants of the building.”

Noting that the private interest of land owners stands subordinateto the public good while enforcing building and municipal regulations, theCourt issued a caution against the tendency to compound violations ofbuilding regulations:

“25…The cases of professional builders stand on a different footingfrom an individual constructing his own building. A professionalbuilder is supposed to understand the laws better and deviationsby such builders can safely be assumed to be deliberate and donewith the intention of earning profits and hence deserve to be dealt A

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Awith sternly so as to act as a deterrent for future. It is commonknowledge that the builders enter into underhand dealings. Bethat as it may, the State Governments should think of levying heavypenalties on such builders and therefrom develop a welfare fundwhich can be utilised for compensating and rehabilitating suchinnocent or unwary buyers who are displaced on account ofBdemolition of illegal constructions.”

152. In Priyanka Estates International (P) Ltd. v. State ofAssam[33], Justice Deepak Verma, speaking for a two judge Bench,observed:

C“55. It is a matter of common knowledge that illegal andunauthorised constructions beyond the sanctioned plans are onrise, may be due to paucity of land in big cities. Such activities arerequired to be dealt with by firm hands otherwise builders/coloniserswould continue to build or construct beyond the sanctioned andapproved plans and would still go scot-free. Ultimately, it is theDflat owners who fall prey to such activities as the ultimate desireof a common man is to have a shelter of his own. Such unlawfulconstructions are definitely against the public interest andhazardous to the safety of occupiers and residents of multistoreyedbuildings. To some extent both parties can be said to be equallyEresponsible for this. Still the greater loss would be of those flatowners whose flats are to be demolished as compared to thebuilder.”

The Court lamented that the earlier decisions on the subject hadnot resulted in enhancing compliance by developers with buildingFregulations. Further, the Court noted that if unauthorized constructionswere allowed to stand or are “given a seal of approval by Court”, it wasbound to affect the public at large. It also noted that the jurisdiction andpower of Courts to indemnify citizens who are affected by an unauthorizedconstruction erected by a developer could be utilized to compensateordinary citizens.G

153. In Esha Ekta Apartments Coop. Housing Society Ltd.v. Municipal Corpn. of Mumbai[34], Justice GS Singhvi, writing for atwo judge Bench, reiterated the earlier decisions on this subject andobserved:33 (2010) 2 SCC 27H34 (2013) 5 SCC 357

“8. At the outset, we would like to observe that by rejecting theprayer for regularisation of the floors constructed in wantonviolation of the sanctioned plan, the Deputy Chief Engineer andthe appellate authority have demonstrated their determination toensure planned development of the commercial capital of thecountry and the orders passed by them have given a hope to thelaw-abiding citizens that someone in the hierarchy of administrationwill not allow unscrupulous developers/builders to take law intotheir hands and get away with it.”

The Court further observed that an unauthorized constructiondestroys the concept of planned development, and places an unbearableburden on basic amenities provided by public authorities. The Court heldthat it was imperative for the public authority to not only demolish suchconstructions but also to impose a penalty on the wrongdoers involved.This lament of this Court, over the brazen violation of building regulationsby developers acting in collusion with planning bodies, was brought tothe fore-front when the Court prefaced its judgment with the followingobservations:

“1. In the last five decades, the provisions contained in variousmunicipal laws for planned development of the areas to whichsuch laws are applicable have been violated with impunity in allthe cities, big or small, and those entrusted with the task of ensuringimplementation of the master plan, etc. have miserably failed toperform their duties. It is highly regrettable that this is so despitethe fact that this Court has, keeping in view the imperatives ofpreserving the ecology and environment of the area and protectingthe rights of the citizens, repeatedly cautioned the authoritiesconcerned against arbitrary regularisation of illegal constructionsby way of compounding and otherwise.”

Finally, the Court also observed that no case has been made outfor directing the municipal corporation to regularize a construction whichhas been made in violation of the sanctioned plan and cautioned againstdoing so. In that context, it held:

“56…We would like to reiterate that no authority administeringmunicipal laws and other similar laws can encourage violation ofthe sanctioned plan. The courts are also expected to refrain fromexercising equitable jurisdiction for regularisation of illegal and A

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Aunauthorised constructions else it would encourage violators ofthe planning laws and destroy the very idea and concept of planneddevelopment of urban as well as rural areas.”

154. These concerns have been reiterated in the more recentdecisions of this Court in Kerala State Coastal Zone ManagementBAuthority v. State of Kerala[35], Kerala State Coastal ZoneManagement Authority v. Maradu Municipality, Maradu[36] andBikram Chatterji v. Union of India[37].

155. In the present case, once this Court has determined that thesanctioned plan for Apex and Ceyane (T-16 and T-17) breached theCNBR 2006, NBR 2010, NBC 2005, UP 1975 Act and the UP ApartmentsAct 2010, it becomes its duty to take stock of the violations committedby the appellant in collusion with NOIDA. The appellant has raised falsepleas and attempted to mislead this Court, while the officials of NOIDAhave not acted bona fide in the discharge of their duties. The appellanthas stooped to the point of producing a fabricated sanctioned plan.DTherefore, we confirm the directions of the High Court including theorder of demolition and for sanctioning prosecution under Section 49 ofthe UPUD Act, as incorporated by Section 12 of the UPIAD Act 1976,against the officials of the appellant and the officers of NOIDA forviolations of the UPIAD Act 1976 and UP Apartments Act 2010.

EG Conclusion

156. To summarize our findings, the documentary materialsreferred to and analyzed in this judgment indicate that:

(i) The land allotted to appellant under the original leaseFagreement and the supplementary lease deed constitute oneplot;

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

(iii) The sanction given by NOIDA on 26 November 2009 and2 March 2012 for the construction of T-16 and T-17 is 35 (2019) 7 SCC 24836 2018 SCC OnLine SC 3352H37 (2019) 19 SCC 161

violative of the minimum distance requirement under theNBR 2006, NBR 2010 and NBC 2005; A

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

(v) After realizing that the building block argument would notpass muster, another false case was sought to be set upwith the argument that T-1 and T-17 are dead end sides,thereby obviating the need to comply with the minimumdistance requirements. This argument is belied by thecomprehensive report submitted by NBCC. The sides ofT-1 and T-17 facing each other are not dead end sides sinceboth the sides have vents/egresses facing the other building; D

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

(vii) The first revised plan of 29 December 2006 contained aclear provision for a garden area adjacent to T-1. In thesecond revised plan of 26 November 2009, the provisionfor garden area was obliterated to make way for theconstruction of Apex and Ceyane (T- 16 and T – 17). Thecommon garden area in front of T-1 was eliminated by theconstruction of T-16 and T-17. This is violative of the UPApartments Act 2010 since the consent of the flat ownerswas not sought before modifying the plan promised to theflat owners; and F

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(viii) T-16 and T-17 are not part of a separate and distinct phase(Phase–II) with separate amenities and infrastructure. Thesupplementary lease deed stipulates that the they are part H

Aof the original project. Hence, the consent of the individualflat owners of the original fifteen towers, individually orthrough the RWA, was a necessary requirement under theUP Apartments Act 2010 and UP 1975 Act before T-16and T-17 could have been constructed, since they necessarilyreduced the undivided interest of the individual flat ownersBin the common area by adding new flats and increasing thenumber from 650 to 1500; and A

(ix) The illegal construction of T-16 and T-17 has been achievedthrough acts of collusion between the officers of NOIDAand the appellant and its management.C

157. For the reasons which we have indicated above, we havecome to the conclusion that:

(i) The order passed by the High Court for the demolition ofApex and Ceyane (T-16 and T-17) does not warrantDinterference and the direction for demolition issued by theHigh Court is affirmed;

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

(iii) The work of demolition shall be carried out by the appellantEat its own cost under the supervision of the officials ofNOIDA. In order to ensure that the work of demolition iscarried out in a safe manner without affecting the existingpleadings, NOIDA shall consult its own experts and expertsfrom Central Building Research Institute Roorkee[38]; F(iv)The work of demolition shall be carried out under the overallsupervision of CBRI. In the event that CBRI expresses itsinability to do so, another expert agency shall be nominatedby NOIDA;

(v) The cost of demolition and all incidental expenses includingGthe fees payable to the experts shall be borne by theappellant; (vi) The appellant shall within a period of twomonths refund to all existing flat purchasers in Apex andCeyane (T-16 and T -17), other than those to whom refundshave already been made, all the amounts invested for the

allotted flats together with interest at the rate of twelve perAcent per annum payable with effect from the date of therespective deposits until the date of refund in terms of PartH of this judgment; and

(vii) The appellant shall pay to the RWA costs quantified at Rs 2crore, to be paid in one month from the receipt of thisBjudgment.

H Interlocutory Applications

158. Mr Vikas Singh, learned Senior Counsel, has during the courseof the hearing tendered an additional affidavit to indicate the followingposition:

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(i) The contention of RWA that the appellant has collected theonetime lease rent at the rate of Rs 190 per sq. foot fromall the flat owners in T-1 to T-15 and that though an amountof Rs 16.75 crores was collected, only Rs 13.32 croreswas payable to NOIDA is incorrect;D

(ii) The appellant did not collect the lease rent payable toNOIDA from all allotees of T-1 to T-15. An amount of Rs7.54 crores was received from some allotees;

(iii) The lease rent paid to NOIDA was in the amount of RsE14.49 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 25November 2009, 114 flats were booked between 26November 2009 and 1 March 2012, while 159 units werebooked after 2 March 2012.

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On this basis, it has been submitted that 518 units were bookedeither before 28 December 2006 (before the first revised plan) or after26 November 2009 (after the second revised plan). The figures whichhave been indicated by the appellant demonstrate that between the firstrevised plan on 29 December 2006 and the second revised plan on 25November 2009, 141 flat purchasers had booked flats. They did so onthe clear representation contained in the sanctioned plans.

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A159. During the pendency of these proceedings, two interim orderswere passed by this Court on 6 September 2016 and 22 September2017. By the order dated 6 September 2016, this Court directed theappellant to pay a return of ten per cent to those flat purchasers whocontinue to stay in the project. By the order dated 22 September 2017,an exit option was granted to those who sought refunds to take theBamounts 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) isas follows:

C(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;D

(v) Purchasers to whom refund has been granted: 248; and

(vi) Remaining purchasers: 252.

161. The above position indicates that following the opt-out whichwas provided in terms of the order of this Court, 248 purchasers haveEopted for refunds while 252 purchasers in T-16 and T-17 remaincommitted to the project.

162. Mr Gaurav Agarwal, learned Amicus Curiae has renderedcomprehensive assistance to the Court. Apart from urging his submissionsin an objective and dispassionate manner, the Amicus Curiae hasFpainstakingly complied the pleadings, documents and statutory provisionsto facilitate the convenience of arguing Counsel and the Court. We recordour appreciation for the assistance which has been rendered by theAmicus Curiae. The Amicus Curiae has also prepared a note for thepurpose of segregating the applications which have been filed by homeGbuyers into distinct categories, and suggesting reliefs to each categorybased on the outcome of the proceedings. These categories are:

Category I

163. Buyers who have received ROI payments:

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(i) By its orders dated 6 September 2016 and 11 January 2017,Athis Court directed that those home buyers who have chosento stay on with the project and do not desire refund shouldbe paid ROI at ten per cent per annum; and

(ii) Thirteen persons filed applications before this Court claimingthat ROI payments were not made by the appellant. TheBappellant has intimated the payments which are due till July2021. Though, the home buyers claim higher amounts, theAmicus Curiae has proceeded on the figures furnished bythe appellant which are tabulated as follows:

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164. The submission of the Amicus Curiae is that if the buildingswere to stand, the home buyers may be paid the above ROI. On theother hand, if the buildings are to be demolished, the home buyers shouldreceive refund with interest and the amounts would be subsumed in theinterest to be paid. Since this Court has come to the conclusion that thebuildings are to be demolished, the general directions in regard to refundtogether with interest will subsume the claims of the above home buyers.

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ACategory 2

165. Homebuyers to whom principal has been paid but interestpayments have remained:

(i) By an order dated 30 July 2018, this Court directed thathomebuyers who had registered on the portal and were willingBto take twelve per cent simple interest per annum from thedate of deposit till the date of payment towards full and finalpayment would be refunded the principal sum together withinterest at the above rate on filing affidavits to that effect;and C

(ii) The registry has refunded the principal sum to thirteenhomebuyers but since their affidavits were not received bythe Amicus Curiae within time, interest remained to be paid.The details have been tabulated by the Amicus Curiae asfollows:

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166. The Amicus Curiae has submitted that irrespective of thefate of the pleadings, the appellant should be directed to refund the interestas computed above since the above homebuyers have exited from theproject. We accept the submission and direct the appellant to refundinterest payments to the thirteen homebuyers as tabulated above withintwo months.

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Category 3

167. Home buyers under a ‘subvention scheme’:

(i) Under the subvention scheme, a home loan is taken in thename of the homebuyer but EMIs are to be paid by appellantCtill possession is granted. Certain homebuyers are governedby the subvention scheme. There is a default by the appellantin paying the EMIs;

(ii) By an order dated 30 July 2018, this Court directed theappellant to continue paying the EMIs. Sixteen homebuyershave moved this Court for a direction for payment of theDbalance EMIs due;

(iii) The Amicus Curiae has tabulated the interest payable to thehomebuyers (as computed by them and by the appellantseparately):

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1092SUPREME COURT REPORTS[2021] 13 S.C.R.

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The Amicus Curiae submits that the amounts calculated abovebe paid.

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168. The Amicus Curiae submitted that if the buildings are orderedto be demolished, the appellant may close the home loans and refund theamounts contributed by the homebuyers with such interest as this Courtmay determine. On the other hand, if the buildings stand, the appellantmay be directed to clear the outstanding EMIs and continue paying themEuntil possession. Since the buildings have been ordered to be demolishedunder the directions of this Court in the present judgment, the appellantshall close the home loans and refund the amounts contributed by eachof the above home buyers with interest at the rate of twelve per cent perannum within two months.

FCategory 4

169. There are two IAs in which the homebuyers have a disputewith the appellant relating to the amounts due to the homebuyers:

(i) In IA No 56187/2021, Mr DP Tripathi was allotted Flat No1105 in Apex. A total amount of Rs 31,70,410 was paid forGthe flat. Out of this amount, Rs. 14,25,000 was funded byloan. The appellant paid the loan pursuant to an order ofthis Court. However, the applicant has paid the balanceamount of Rs 17,45,410 out of his own funds towards theflat, and Rs 6,58,700 as loan repayments before it wasultimately settled by the appellant. ROI payments for 27

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months amounting to Rs 5,20,315 have been received fromthe appellant. Thus, the case of the applicant is that a sumof Rs 18,83,795 remains invested by the applicant, whichmay be ordered to be refunded. In contrast, the appellanthas stated that this dispute has been settled by the DebtRecovery Tribunal and nothing is payable; and

(ii) In IA No 67028/2017, Mr Raj Kishore had purchased FlatNo 3507, in respect of which the amount has been refundedalong with interest. A cheque of Rs 67,319 bearing no213233 for the last payment remained to be encashed dueto oversight. The Amicus Curiae has suggested that theappellant may be directed to issue a fresh cheque pertainingto this payment.

170. With regards to IA No 56187/2021, since the underlying disputeregarding payment is pending in this IA, it is de-linked and will be heardseparately. In IA No 67028/2017, the appellant is directed to provide afresh cheque for an amount of Rs 67,319 to the applicant within onemonth.

Category 5

171. Application of homebuyers which have been renderedinfructuous. The Amicus Curiae has tabulated applications which havebeen rendered infructuous, indicating the reasons for the same:

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172. The above applications are disposed of as infructuous.173. The appeals shall stand disposed of in the above terms. Thecontempt petitions are disposed of accordingly.174. Pending application(s), if any, stand disposed of.

Ankit Gyan

Appeals disposed of.

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