‘The law must step in to protect legitimate concerns of residents whose quality of life is directly affected by the failure of the planning authority to enforce compliance of law.’
Supreme Court: A Division Bench of Dr D.Y. Chandrachud and M.R. Shah, JJ. upheld the 2014 decision of the Allahabad High Court ordering demolition of Tower 16 and Tower 17 of Emerald Court constructed by Supertech Ltd. in Sector 93-A, Noida, Uttar Pradesh. The Supreme Court found the construction illegal. The revised building plans sanctioned by the New Okhla Industrial Development Authority (“NOIDA”) allowing construction of two additional towers, Tower 16 and Tower 17, were in violation of statutory regulations. The Court ordered Supertech to refund with interest the amounts invested by allottees of flats in these two towers. Supertech was also ordered to pay costs of Rs 2 crore to the Resident Welfare Association of Emerald Court Group Housing Society, which had initiated proceedings by filing a writ petition in the High Court.
The Court further found that the case was replete with instances which highlight collusion between the officers of NOIDA with Supertech and its management. Therefore, the High Court’s direction for sanctioning prosecution against officials of Supertech and NOIDA was also upheld. Observing that illegal construction has to be dealt with strictly to ensure compliance with the rule of law, the Court said:
“[W]hen [r]egulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards. “
Operative order of the Supreme Court
The directions of the Supreme Court are summarised below:
(i) The order passed by the High Court for the demolition of Tower 16 and Tower 17 of Emerald Court does not warrant interference and the direction for demolition issued by the High Court is affirmed;
(ii) The work of demolition shall be carried out within a period of three months from the date of the instant judgment;
(iii) The work of demolition shall be carried out by Supertech at its own cost under the supervision of the officials of NOIDA. In order to ensure that the work of demolition is carried out in a safe manner, NOIDA shall consult its own experts and experts from Central Building Research Institute, Roorkee (“CBRI”);
(iv) The work of demolition shall be carried out under the overall supervision of CBRI. In the event that CBRI expresses its inability to do so, another expert agency shall be nominated by NOIDA;
(v) The cost of demolition and all incidental expenses including the fees payable to the experts shall be borne by Supertech;
(vi) Supertech shall within a period of two months refund to all existing flat purchasers in Tower 16 and Tower 17 other than those to whom refunds have already been made, all the amounts invested for the allotted flats together with interest at the rate of 12% per annum payable with effect from the date of the respective deposits until the date of refund in terms specified[1] in the judgment; and
(vii) Supertech shall pay to the RWA of Emerald Court costs quantified at Rs 2 crore, to be paid in one month from the receipt of the judgment.
A comprehensive analysis of Supreme Court’s issue-wise discussion is given later in this report.
Impugned Judgment of the Allahabad High Court
Supertech Ltd. filed the instant appeal challenging the Allahabad High Court judgment upon a writ petition instituted by the Resident Welfare Association of Emerald Court Group Housing Society (“RWA”). By its judgment dated 11-4-2014, the High Court had directed:
(i) Demolition of Tower 16 (Ceyane) and Tower 17 (Apex) of Emerald Court constructed by Supertech in Sector 93-A, Noida.
(ii) Cost of demolition to be borne by Supertech.
(iii) Sanction for prosecution shall be granted against officials of Supertech and NOIDA for possible violations of U.P. Industrial Area Development Act, 1976 and U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010.
(iv) Supertech shall refund amounts invested by purchasers who booked apartments in Tower 16 and Tower 17, with interest.
What was RWA’s grievance?
It may be noted that NOIDA originally leased an area admeasuring 48,263 sq. mtrs. in Sector 93-A to Supertech. This plot of land was allotted for development of Emerald Court Group Housing Society. As a result of supplementary lease, the area stood increased to 54,819 sq. mtrs. The original building plan sanctioned by NOIDA for construction of Emerald Court consisted of fourteen towers, each with a ground and nine floors. Later, NOIDA sanctioned three revised plans, the cumulative effect of which was the construction of additional towers and increase in height of the towers.
The RWA of Emerald Court challenged the revised plans by which the construction and increase in height of Tower 16 and Tower 17 were envisaged. The height of additional Tower 16 and Tower 17 was increased from 24 floors (73 mtrs.) to 40 floors (121 mtrs.). Also, the triangular green area in front of Tower 1 came to be covered by these two additional towers. In such backdrop, the RWA sought quashing of revised plans for construction of Tower 16 and Tower 17.
Analysis and Observations
Following is the report of Supreme Court’s issue-wise discussion:
1. Violation of distance requirement under Building Regulations
The first issue addressed by the Supreme Court was whether the sanction for the construction of Tower 16 and Tower 17 by NOIDA was in violation of the distance requirement under applicable building regulations.
Violation of NBR 2006
The second revised plan which envisaged the construction of Tower 16 and Tower 17 was sanctioned in 2009 under NOIDA Building Regulations and Directions, 2006 (“NBR 2006”). According to the revision, a 9 mtrs. distance was to be maintained between Tower 17 and Tower 1 at the ground level, and these towers were to be connected through a space frame at the upper level.
Notably, NBR 2006 stipulated that distance between two adjacent building blocks shall not be less than half of the height of the tallest building. The question which fell for consideration was whether Tower 17 and Tower 1 were two adjacent blocks or formed part of a single building block as claimed by Supertech. The submission of Supertech as well as NOIDA was that Tower 1, Tower 16 and Tower 17 formed part of one cluster/block and hence there was no need of maintaining distance requirements.
The Court noted that the expression “building block” was not defined in NBR. The construction which is placed upon the content of the expression must advance the object and purpose of the regulations. It was opined that the purpose of stipulating a minimum distance is a matter of public interest in planned development. The residents who occupy constructed areas in a housing project are entitled to ventilation, light and air and adherence to fire safety norms. It was observed:
“The purpose of stipulating a minimum distance comprehends several concerns. These include safeguarding the privacy of occupants and their enjoyment of basic civic amenities including access to well-ventilated areas where air and light are not blocked by the presence of close towering constructions. Access to these amenities is becoming a luxury instead of a necessity.”
It was further explained that prescription of a minimum distance also has a bearing on fire safety. In the event of a fire, there is a danger that the flames would rapidly spread from one structure to adjoining ones. Moreover, the presence of structures in close proximity poses serious hurdles to fire-fighting machinery which has to be deployed by the civic body.
The Court was of the view that if a developer is left with the unbridled discretion to define the content of the expression “building block”, this will defeat the purpose of prescribing minimum distances, leaving the health, safety and quality of life of flat buyers at the mercy of developers. It was observed:
“The developer cannot be allowed to subvert the requirement of maintaining minimum distances prescribed in the Building Regulations by unilaterally designating independent towers as building blocks, in the manner which the appellant has suggested before this Court. Setting up a space frame or providing for a common entry or exit would not make two otherwise separate buildings as one consolidated block.”
The Court noted that NBR 2006 referred to distances between adjacent ‘building blocks’ which shall not be less than half of the ‘height of the tallest building’. The purpose of this regulation was not to apply it only as between building blocks as distinguished from buildings within a block. According to the Court, the plain meaning of the expression is that when there are two adjacent blocks, the height of the tallest building will determine the distance required to be observed. Consequently, when two or more buildings exist in proximity together, they comprise of a building block within the meaning of NBR 2006. In such an eventuality, the distance between each of the buildings comprised in the block shall also not be less than half of the height of the tallest building.
The construction of Tower 16 and Tower 17 was envisaged under the second revised plan sanctioned under NBR 2006. At that time, the height of these towers was to be 73 mtrs., while the height of other towers including Tower 1 was to be 37 mtrs. Thus, as per NBR 2006, the minimum distance between Tower 17 and Tower 1 should be 36.5 mtrs. However, the actual distance between these two towers was only 9 mtrs. Thus, clearly the second revised plan was violative of NBR 2006.
Violation of NBR 2010
The third revised plan which increased the height of Tower 16 and Tower 17 to 121 mtrs. was sanctioned by NOIDA in 2012 under NBR 2010. Notably, NBR 2010 prescribes the requirement of maintaining varying distances between two adjacent blocks. It provides that the spacing between buildings of a height above 18 mtrs. shall be 16 mtrs.
In the third revised plan, the height of Tower 16 and Tower 17 was increased to 121 mtrs. In accordance with NBR 2010, the spacing between a building of height 121 mtrs. and another building would be 16 mtrs. Thus, the distance between Tower 1 and Tower 17 should have been 16 mtrs., as opposed to actual 9 mtrs. Consequently, the Court found that the third revised plan was in violation of NBR 2010.
Moreover, various documents on record indicated that the argument which was now sought to be advanced that Towers 1, 16 and 17 were part of a cluster of building comprised within a block, obviating the need to maintain the minim distance requirement, was an afterthought.
Next, an alternative argument was advanced by NOIDA that NBR 2010 provides for an exception to the 16 mtrs. minimum distance requirement if the building blocks have dead-end sides facing each other. This argument was also rejected by the Court. It was noted that the phrase ‘dead-end side of the block’ was not defined in any of the regulations. Therefore, the Court while interpreting the expression will have to attribute a contextual meaning to the phrase ‘dead-end side of the block’.
The Court refused to accept the contention that only habitable rooms with egress (that is, windows or balconies) will fall outside the ambit of ‘dead-end side’ of the buildings. NBR 2010 did not provide any indication to classify between habitable and non-habitable rooms in the context of the phrase ‘dead-end side’. ‘Dead-end’ in common parlance means no exit or absence of access. The Court observed:
“It is a settled principle of statutory interpretation that words must be given their plain and ordinary meaning unless such an interpretation leads to an ambiguity or absurdity or when the object of the statute indicates otherwise.”
The Court said that interpreting the phrase in the context of the ordinary meaning of the word ‘dead-end’ does not lead to any ambiguity; rather it is in pursuance of the intent and purpose behind the provision. It was observed:
“[T]he purpose of prescribing a higher minimum distance between adjacent buildings in case the side of the building facing another has egress is so that the functional utility of the egress (either a window or balcony) is not diminished. Windows/balconies, irrespective of whether they are attached to a habitable or a non-habitable room, perform functions which will be greatly diminished if the adjacent building is closer and thereby restricting the air flow and increasing the chance of transmissibility in the event of a fire. Moreover, the privacy of the flat dwellers would be severely compromised.”
Notably, the windows/corridors of Tower 17 on all floors except the ground floor (or at least a few windows as conceded by Supertech) had an opening on the side that faces Tower 1. Noting the principles that would guide the interpretation of the phrase ‘dead-end sides of the blocks’, the Court held that the sides of Tower 1 and Tower 17 facing each other could not be dead-end sides.
Thus, the Court found that the revised plans were in violation of NBR 2010 and did not fall under the exception provided for blocks having dead-end sides.
Violation of NBC 2005
National Building Code, 2005 (“NBC 2005”) prescribes maintenance of open spaces for buildings above the height of 10 mtrs. When calculated according to NBC 2005, the minim open space around Tower 17 should have been 20.45 mtrs. as opposed to actual 9 mtrs between Tower 17 and Tower 1. Evidently then, the second and third revised plans were not in accordance with NBC 2005.
Violation of Fire Safety Norms
Supertech requested for a fire No Objection Certificate (“NOC”) for the construction of Tower 16 and Tower 17. The Chief Fire Officer issued a temporary fire NOC stating that Supertech will have to make arrangements for fire safety compliant with NBC 2005. On reading NBC 2005 as a whole, the side and rear space around the building must be 16 mtrs. The distance between Tower 1 and Tower 17 was only 9 mtrs., which was less than the required 16 mtrs. Therefore, given that the rear distance requirement under NBC 2005 was not complied with, the temporary fire NOC given by the Chief Fire Officer stood automatically cancelled.
2. Consent of RWA
The RWA of Emerald Court contended that the sanction could not have been revised without the consent of the flat purchasers in the original fifteen towers.
Applicability of U.P. Ownership of Flats Act, 1975
Section 5 of the 1975 Act provides for common areas and facilities. Under Section 5(2), the percentage of the undivided interest of each owner of a flat in the common areas and facilities, as expressed in the Declaration, shall not be altered without the consent of all the owners of the flats expressed through an amended Declaration which shall be executed and registered under the Act.
Supertech contended that the 1975 Act was not applicable to the instant case as there was no declaration in terms of Section 2 which specifies that the Act applies only to a property, the sole owner or all the owners of which, submit it to the provisions of the Act by duly executing and registering a Declaration setting out the particulars as contained in Section 10.
The Court noted that undoubtedly, in the instant case, there was no declaration in terms of Section 2. However, significantly, the lease deed executed by NOIDA in favour of Supertech in March 2005, contained a stipulation in clause II(h) which said that the 1975 Act shall be applicable on the lessee/sub-lessee.
In the backdrop of clause II(h) of the lease deed and certain provisions of the deed of sub-lease, the Court held that Supertech was duty bound to comply with the provisions of the 1975 Act. The Court also said that:
“By submitting before this Court that it is not bound by the terms of its agreement or the Act for want of a declaration under Section 2, the appellant is evidently attempting to take advantage of its own wrong.”
Applicability of U.P. Apartments Act, 2010
Section 2 of the 2010 Act stipulates that the Act shall apply to all buildings with four or more apartments and land attached to the apartment whether freehold or held on lease. This Act does not require a declaration for it to apply.
Section 4 sets out general liabilities which have been cast upon the promoters intending to sell an apartment. The proviso to sub-section (4) stipulates that the promoter shall not make any alterations in the plans, specifications and other particulars “without the previous consent of the intending purchaser”. Supertech contended that this provision will apply to intending purchasers of Tower 16 and Tower 17, and not to persons who had purchased apartments in the existing fifteen towers. Rejecting the contention, the Court opined that the proviso is evidently intended to protect persons to whom the plans and specifications were disclosed when they were the ‘intending purchasers’. Further, a construction to the contrary will run against the intent and purpose of the statute as well its express provisions.
Requirement of RWA’s consent
In terms of the third revised plan of 2012, the height of Tower 16 and Tower 17 was sought to be increased from 24 floors to 40 floors. As a result, the total number of flat purchasers would increase from 650 to 1500. The clear implication of this would be a reduction of the undivided interest of the existing purchasers in the common areas. The garden area in front of Tower 1 was also encroached, thereby resiling from the representation that had been made to the flat owners at the time when they purchased the apartments in Tower 1. All this was done without seeking consent of the flat owners, which was in violation of the provisions of the 1975 Act and the 2010 Act.
Finally, Supertech argued that consent of each flat owner could not be taken and it had to be taken from the RWA which came into existence in only in October 2013, whereas the third revised plan was already sanctioned in 2012. The Court found this factually incorrect. The RWA came into existence in 2009 itself when the first lot of apartment buyers moved in. It was observed that:
“In any case, rights under the U.P. 1975 Act and U.P. Apartments Act 2010 have been provided to individual flat owners, and not to collective bodies like the RWA. Hence, even the non-constitution of the RWA will not extinguish the rights of individual flat owners. Indeed, however, when such RWAs do exist, developers may use them to seek a common consent from all the flat owners instead of approaching them all individually.”
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Collusion and Illegal Construction
The Court noted that the record of the instant case was replete with instances which highlight collusion between the officers of NOIDA with Supertech and its management. It was observed:
“The case has revealed a nefarious complicity of the planning authority in the violation by the developer of the provisions of law.”
It was noted that complicity of NOIDA has emerged, inter alia, from the following instances:
(i) The sanctioning of the second revised plan on 26 November 2009 in clear breach of the NBR 2006;
(ii) The refusal by NOIDA to disclose the building plans to the RWA of Emerald Court, in spite of a clear stipulation consistently in all the sanctioned plans that the plan would have to be displayed at the construction site of Supertech;
(iii) NOIDA’s referral of RWA’s request to access the sanctioned plans to Supertech to seek its consent and upon the refusal of the latter, a continuous failure to disclose them to the RWA;
(iv) Even when the Chief Fire Officer addressed a communication to NOIDA in regard to the violation of the minimum distance requirements in Emerald Court, it evinced no response and no investigation from them;
(v) In pursuance of the second revised plan of 26 September 2009, Supertech would appear to have built a foundation to support two buildings of forty and thirty-nine floors, while the sanction for the extension from twenty-four to forty or thirty-nine floors came about only on 2 March 2012 through the third revised plan; and
(vi) The construction for Tower 16 and Tower 17 commenced in July 2009 by Supertech, five months before the sanction was received for the second revised plan on 26 November 2009, in spite of which NOIDA chose to take no action.
Further, in spite of the condition stipulated in the third revised plan, NOIDA made no effort to ensure compliance of the U.P. Apartments Act, 2010, as a result of which the rights of the flat purchasers were brazenly violated. The Court opined that this could not point to any conclusion, other than the collusion between NOIDA and the appellant to avoid complying with the provisions of the applicable statutes and regulations for monetary gain, at the cost of the rights of the flat purchasers. The Court observed that:
“The rampant increase in unauthorised constructions across urban areas, particularly in metropolitan cities where soaring values of land place a premium on dubious dealings has been noticed in several decisions of this Court. This state of affairs has often come to pass in no small a measure because of the collusion between developers and planning authorities.”
It was further observed that while the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations ─ the protection of the environment and the well-being and safety of those who occupy these constructions. The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned.
Observing that the law must step in to protect legitimate concerns of residents whose quality of life is directly affected by the failure of the planning authority to enforce compliance of law, the Court said:
“Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation.”
The Court was of the view that once it was determined that sanctioned plan for Tower 16 and Tower 17 breached NBR 2006, NBR 2010, NBC 2005, the 1975 Act and the 2010 Act, it became Court’s duty to take stock of the violation committed by Supertech in collusion with NOIDA. The Court noted:
“The appellant has raised false pleas and attempted to mislead this Court, while the officials of NOIDA have not acted bona fide in the discharge of their duties. The appellant has stooped to the point of producing a fabricated sanctioned plan.”
Therefore, the Supreme Court confirmed the directions given by the High Court including the order of demolition of Tower 16 and Tower 17 of Emerald Court and for sanctioning prosecution against officials of Supertech and NOIDA. [Supertech Ltd. v. Emerald Court Owner Resident Welfare Association, 2021 SCC OnLine SC 648, decided on 31-8-2021]
[1] See Part H of the judgment