12 min read.Updated: 04 Sep 2021, 11:43 AM ISTFarid Karachiwala
The first revised plan added Towers 15 and 16 and a shopping complex to the project.
In a landmark judgment passed on August 31, 2021, the Supreme Court of India has upheld an order of the Allahabad High Court directing the demolition of twin towers being constructed by Supertech Ltd. (“Supertech") in Noida on account of illegal construction facilitated by collusion among the developer and the development authority.
On November 23, 2004, the New Okhla Industrial Development Authority (“Authority") allotted a portion of a plot of land to Supertech for the development of a group housing society. On June 20, 2005, the Authority sanctioned the building plan for the construction of 14 towers under the New Okhla Industrial Development Area Building Regulations and Directions 1986 (“NBR 1986").
On June 21, 2006 a supplementary lease deed was executed by the Authority in favour of Supertech for additional land in the same plot granted under the original lease deed. The supplementary lease deed noted that the premises demised thereunder would form part of the land already leased to Supertech and all conditions of the original lease deed would be applicable to the newly demised premises under the supplementary deed.
The sanctioned building plan was subsequently revised on December 29, 2006, November 26, 2009 and March 02, 2012. The first revised plan added Towers 15 and 16 and a shopping complex to the project. Tower 16 was to consist of one building with ground plus 11 floors and three buildings of ground plus 4 floors with a height of 37 mtrs. In the second revised plan, Tower 17 was added to the project. Under this plan, Towers 16 and 17 were to consist of 24 floors with a height of 73 mtrs. each. Further, Tower 17 was to be at a distance of 9 mtrs. from Tower 1 and there was a provision for their connection through a space frame at the upper level. In the third revised plan the number of floors of Towers 16 and 17 was increased to 40 and 39 floors respectively with a height of 121 mtrs.
The Emerald Court Owner Resident Welfare Association (“RWA") challenged the revision plans for the construction of Towers 16 and 17 by way of a writ petition filed before the Allahabad High Court and sought directions for demolishing these towers under the provisions of the UP Apartments Act 2010. The RWA further sought a direction quashing the permission granted by the Authority to Supertech to link Tower 1 and Towers 16 and 17 through a space frame.
On April 11, 2014, the High Court allowed the writ petition and directed the demolition of Towers 16 and 17. The High Court directed the Competent Authority to grant sanction for the prosecution of the Authority’s officials under Section 49 of the UP Urban Development Act, 1973 (incorporated in Section 12 of the Uttar Pradesh Industrial Area Development Act 1976 (“UPIAD 1976")). The High Court further directed Supertech to refund the consideration received from flat purchasers who had booked apartments in Towers 16 and 17 with interest at the rate of 14% p.a. compounded annually.
Supertech filed a Special Leave Petition before the Supreme Court of India challenging this order of the Allahabad High Court.
Rationale and Analysis
On August 31, 2021, the Supreme Court upheld the decision of the Allahabad High Court on the following grounds:
Violation of distance requirements under the New Okhla Industrial Development Area Building Regulations and Directions, 2006 (“NBR 2006") and New Okhla Industrial Development Area Building Regulations and Directions, 2010 (“NBR 2010"):
The NBR 2006 came into force on December 16, 2006 i.e. before the approval of the first revised plan. Under Regulation 33.2.3 of the NBR 2006, the distance between two adjacent “building blocks" is required to be not less than half the height of the tallest building. The NBR 2010 came into force prior to the approval of the third revised plan. Regulation 126.96.36.199 of NBR 2010 states that the distance between two adjacent “building blocks" is required to be between 6 and 16 mtrs. depending on the height of the building. For a building height up to 18 mtrs., the spacing required is 6 mtrs. This spacing is to be increased by 1 mtr. for every addition of 3 mtrs. to the height of the building, subject to a maximum spacing of 16 mtrs. in accordance with the National Building Code, 2005 (“NBC 2005"). This regulation additionally states that if the “building blocks" have “dead-end sides" facing each other, the spacing is required to be a maximum of 9 mtrs. instead of 16 mtrs.
Supertech and the Authority claimed that as Towers 16 and 17 formed part of a single “building block" along with Towers 1, 2 and 3, and accordingly, the requirement to maintain distance in accordance with NBR 2006 and NBR 2010 did not arise. While rejecting this argument, the Supreme Court held that:
The purpose of maintaining distance between buildings is a matter public interest in planned development. Residents who occupy constructed areas in a housing project are entitled to ventilation, light and air and adherence to fire safety norms. There are several purposes of stipulating minimum distance such as safeguarding the privacy of occupants, 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. The prescription of a minimum distance also has a bearing on fire safety. Presence of structures in close proximity poses serious hurdles to fire-fighting machinery which has to be deployed by the civic body.
Developers do not have unbridled discretion to define the content of the expression “building block". The provision of a space frame or provision of common entry/ exit would not make two separate buildings as one consolidated block.
The Authority was duty bound to apply its mind and determine whether there was compliance with the above regulations while sanctioning the revisions to the original plan.
The contention of Supertech was clearly an afterthought as it was contrary to the stand taken by it in its affidavit filed before the High Court, correspondence addressed to the flat purchasers and the plans/ maps prepared and sanctioned by the Authority. According to these documents, the new towers were disconnected from the existing 15 towers, with separate entries/exits, amenities and infrastructure. In fact, Supertech had (contrary to the supplementary lease deed) represented to the residents that the plot demised under the supplementary lease deed, where Towers 16 and 17 were being constructed, was separate from the plot under the original lease deed.
The Authority also contended that Tower 1 and Tower 17 have “dead end sides" facing one another and thus, the distance requirement of 16 mtrs. was not applicable under NBR 2010. The Supreme Court rejected this contention and held that:
The term “dead end side" is not defined in NBR 2006, NBC 2005 and the UPIAD 1976. Thus, a contextual meaning is required to be given to this phrase when interpreting it.
In order to constitute a “dead end side" it is necessary that the sides of both buildings facing each other must not have an egress (such as a window or balcony) irrespective of the rooms on such side being non-habitable (such as a bathroom). Even if some units on the relevant side have an egress, that side of the building will not be considered as a “dead end side". This is primarily to prevent the restriction of air flow and reduce the chance of transmissibility in the event of a fire. This is also to protect the privacy of flat dwellers.
Regulation 188.8.131.52. of NBR 2010 uses of the plural words “blocks" and “sides" instead of “block" and “side". When words are free from ambiguity and there is only one meaning that the phrase would take when fairly construed, it will have to be literally construed, and courts must not resort to a liberal interpretation which will defeat the intent, purpose and object of a provision in a planning regulation. Thus, the contention that even if one side of two adjacent buildings have a dead end, the aforesaid exception under NBR 2010 would be applicable, is erroneous.
Regulation 184.108.40.206. of NBR 2010 uses the phrase “block" and not “flat/unit". The unit of consideration thus cannot be individual units in the block but the entire block itself. The main reason for the minimum distance between two blocks being ventilation, direct sun light, and means of rescue, measurement through direct line positions in respect of the “flats/units" would not be acceptable. Measurement of distance would accordingly need to be undertaken with respect to the entire block, along the ground.
Violation of NBC 2005:
Para 220.127.116.11 of NBC 2005 provides that where the height of the building is 55 mtrs. and above, the distance to be maintained between adjacent buildings is 16 mtrs., and where either the length and depth of the building exceeds 40 mtrs., the minimum distance which is prescribed must be further increased by ten percent of the length and depth of the building minus 4 mtrs. According to the aforesaid, the distance required to be maintained between Towers 1 and 17 was 20.45 sq. mtrs. This was clearly violated.
Paragraph 18.104.22.168 of NBC 2005, which states that the open space at the ground level should not be less than 12 mtrs. for tower like structures with heights above 37.5 mtrs. with two set-backs at the upper levels, was held to be non-applicable as the structures under consideration did not contemplate any set backs at the upper level.
Violation of safety norms: On a reading of NBC 2005 as a whole, the side and rear space around a building higher than 55 mtrs. must be 16 mtrs. The distance between Towers 1 and 17 being only 9 mtrs., NBC 2005 was violated. As the temporary NOC given by the Chief Fire Officer on August 18, 2011 clearly stated that NBC 2005 was required to be complied with, the NOC stood automatically cancelled upon non-compliance.
Consent of the RWA:
Section 2 of the U.P. Flat Ownership Act, 1975 (“UP Act 1975") states that the Act shall apply only to owners who submit to the provisions thereunder by executing a declaration. Even though there was no declaration made in the present case in terms of Section 2, clause II(h) of the lease deed executed by the Authority in favour of Supertech, stated that the UP Act 1975 would be applicable to the lease granted thereunder. Additionally, various provisions of the sub-lease executed tripartite among Supertech, the Authority and the flat purchasers (as sub-lessees) also contemplated the applicability of the UP Act 1975 to the sub-lease.
The U.P. Apartments Act, 2010, which came into force on March 19, 2010 was held to be applicable to the third revised plan which was sanctioned on March 02, 2012.
The construction of Towers 16 and 17 in accordance with the second and third revised plans reduced the value of the undivided interest held by each existing individual flat purchaser in the common areas and facilities. This violated Section 5 of the UP Act 1975 and Section 5 of the U.P. Apartments Act, 2010 as it was done without the consent of the existing flat purchasers. Further, the third revised plan encroached on the garden area promised to be provided in front of Tower 1 thereby resiling on the representation made by Supertech to the flat purchasers of Tower 1, without their consent.
The argument posed by Supertech, regarding their inability to seek consent from RWA due to it not having been constituted prior to the second and third revision of the plan was held to be erroneous as the rights under the UP Act 1975 and the U.P. Apartments Act, 2010 are provided to individual flat owners and not to collective bodies. Thus, the non-constitution of a collective body of flat owners would not extinguish rights of individual flat owners under these legislations. However, it was clarified that where such collective bodies do exist, developers may use them to seek common consent from flat owners.
It was held that the record was replete with instances of collusion between the Authority and Supertech and collusion was writ large in the case.
The regulatory framework encompasses all stages of construction. 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. When these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards. Accordingly, illegal construction has to be dealt with strictly to ensure compliance with the rule of law.
The Supreme Court cited the cases of K. Ramadas Shenoy v. Chief Officer, Town Municipal Council [(1974) 2 SCC 506], Priyanka Estates International (P) Ltd. v. State of Assam [(2010) 2 SCC 27] and Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai [(2013) 5 SCC 357] (amongst others), while holding that unregulated construction materially affects the right of enjoyment of property by persons residing in residential areas, and the approval or condonation of such unauthorised construction by either courts or development/planning authorities would affect the public at large. The Supreme Court further observed that courts have powers to indemnify citizens who are affected by unauthorised construction erected by developers.
In view of the above, the Supreme Court inter alia ordered the demolition of Towers 16 and 17 to be carried out by Supertech within three months from the date of the judgment at its own cost. The Court further directed Supertech to refund all existing flat purchasers of Towers 16 and 17 all amounts invested by them together with interest at the rate of 12% p.a. from the date of deposit made by the purchasers until date of refund within two months of this judgment and pay the RWA costs of Rs. 2 crore within one month of this judgment.
In this judgment, the Supreme Court has given a purposive interpretation to the concerned legislation to ensure that the ultimate intent behind the legislation (i.e. the protection of the rights and safety of residents and the environment) is given proper effect. The directions passed by the Supreme Court in this decision will instil confidence in home-buyers, and hopefully act as a strong deterrent to both builders and development authorities engaging in unwarranted and corrupt practises that could impinge upon the rights of such home-buyers.