SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION & ORS.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J. E INDEX A Factual and procedural history A.1 The appeals A.2 The Emerald Court project F A.3 First Revised Plan A.4 Second Revised Plan A.5 Third Revised Plan

G A.6 Complaints against the Revised Plans A.7 Proceedings before the Allahabad High Court A.8 Proceedings before this Court B Submissions by Counsel H C Prefatory observations

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 991 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

D Violation of distance requirement under Building A Regulations D.1 Violation of NBR 2006 and 2010 D.1.1 Interpretation of “building blocks” D.1.2 Interpretation of “dead end sides of buildings” B 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 C E.2 Applicability of the UP Apartments Act 2010 E.3 Requirement of RWA’s Consent F Collusion and Illegal Construction G Conclusion D H Interlocutory Applications

1Copy pinpoint1. Leave granted. A Factual and procedural history A.1 The appeals

2Copy pinpoint2. These appeals have arisen from a judgment of a Division Bench E of the High Court of Judicature at Allahabad dated 11 April 2014, upon a writ petition1 instituted by the first respondent, the Residents’ Welfare Association2 of Emerald Court Group Housing Society3.

3Copy pinpoint3. By its judgment, the High Court directed: F (i) The demolition of Towers -16 4 and 17 5 by the third respondent, New Okhla Industrial Development Authority6, in Emerald Court situated on Plot No 4, Sector 93A, NOIDA constructed by the appellant, Supertech Limited7;

G 1 Writ Petition (Civil) No 65085 of 2012 2 “RWA” 3 “Emerald Court” 4 “T-16”/”Ceyane” 5 “T-17”/”Apex” 6 “NOIDA” H

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A (ii) The cost of demolition and removal would be borne by the appellant, failing which NOIDA shall recover it as arrears of land revenue; (iii) Sanction for prosecution under Section 49 of the Uttar Pradesh Urban Development Act 19738, as incorporated B by Section 12 of the Uttar Pradesh Industrial Area Development Act 19769, shall be granted for the prosecution of the officials of the appellant and the officers of NOIDA for possible violations of the UPIAD Act 1976 and Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act 201010; and C (iv) Refund by the appellant of amounts invested by purchasers who had booked apartments in T-16 and T-17, with interest at fourteen per cent, compounded annually.

4Copy pinpoint4. The correctness of these directions is challenged before this D Court in the present appeals. A.2 The Emerald Court project

5Copy pinpoint5. On 23 November 2004, NOIDA allotted to the appellant a plot of land admeasuring 48,263 sq. mtrs., which was a part of Plot No 4 situated in Sector 93A. This plot of land was allotted for the development of a group housing society, by the name of Emerald Court.

6Copy pinpoint6. The first deed of lease was executed on 16 March 2005 between the appellant and NOIDA. A possession certificate was issued on 17 March 2005.

7Copy pinpoint7. On 20 June 2005, NOIDA sanctioned the building plan for the construction of Emerald Court consisting of fourteen towers, each with ground and nine floors (G+9). This sanction was granted under the New Okhla Industrial Development Area Building Regulations and Directions 198611. The construction commenced for these fourteen towers. A.3 First Revised Plan G

7 “Supertech” 8 “UPUD Act 1973” 9 “UPIAD Act 1976” 10 “UP Apartments Act 2010” 11 H “NBR 1986”

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 993 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

8Copy pinpoint8. On 21 June 2006, a supplementary lease deed was executed A by NOIDA in favour of the appellant for an additional land area of 6556.51 sq. mtrs. in the same plot of land in Plot No 4. Adding to the existing holding allotted under the first lease deed, the total leased area allotted to the appellant increased to 54,819.51 sq. mtrs. The supplementary lease deed noted that: B (i) The demised premises shall be deemed to be part of Plot No 4, Sector 93A, NOIDA as already leased to the appellant; (ii) All other conditions of the original lease deed and allotment shall remain unchanged and would be applicable to the newly demised premises, and bind the appellant; 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 54,819.51 sq. mtrs. D The possession certificate in respect of the additional land was issued to the appellant on 23 June 2006.

9Copy pinpoint9. On 5 December 2006, the New Okhla Industrial Development Area Building Regulations and Directions 200612 were notified. Under the NBR 2006, the Floor-Area-Ratio13 was increased from 1.5 to 2 for E new allottees after 2006. Regulation 33.2.3(i) provided as follows: “33. ‘Floor area ratio’ Floor Area Ratio. Ground coverage and height limitations. […] 33.2.3 Any other utilities as decided by Chief Executive Officer F depending on its requirement. i. Distance between two adjacent building blocks shall not be less than half of the height of the tallest building.”

10Copy pinpoint10. On 29 December 2006, NOIDA sanctioned the first revised G plan for Emerald Court under the NBR 2006, by which two additional floors were envisaged in addition to the already sanctioned G+9 floors in the original fourteen towers, thereby bringing all of them to ground and eleven floors (G+11). Furthermore, additional buildings were also 12 “NBR 2006” 13 “FAR” H

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A sanctioned, namely: (i) Tower-15 (comprising of ground and eleven floors (G+11)); (ii) T-16 (comprising of a cluster of wings including 1 wing of ground and eleven floors (G+11) and 3 wings of ground and four floors (G+4)); and (iii) a shopping complex (comprising of ground and first floor (G+1)). As a consequence, under the first revised plan, NOIDA permitted a total of sixteen towers (G+11) (which would each be 37 B mtrs. in height) and one shopping complex (G+1). It is important to note that the appellant was able to have this additional construction due to the area that was made available to it under the supplementary lease deed, and further, when the appellant had allotted flats to the purchasers, only a small building on the additional leased area was sanctioned. Pertinently, C it is also necessary to highlight that the first revised plan contemplated a green area in front of Tower- 114. According to the purchasers, when the flats were sold, the brochure of the appellant contained information in accordance with the first revised plan dated 29 December 2006, which shows the area in front of T-1 as a green area.

11Copy pinpoint11. On 10 April 2008, a completion certificate was granted in relation to the first eight towers (G+11). Thereafter, various owners of flats were granted possession by the appellant. Crucially, the completion map also indicated a green area in front of T-1, where currently T-16 and T-17 are being constructed. E A.4 Second Revised Plan

12Copy pinpoint12. On 28 February 2009, a notification was issued by the State of Uttar Pradesh enhancing the FAR from 2 (as provided under the NBR 2006) to 2.75 for new allottees. Further, the notification also provided for “purchasable FAR”, according to which old allottees (such as the appellant) could purchase FAR to the maximum extent of thirty- three per cent of their base existing FAR of 1.5.

13Copy pinpoint13. On 3 July 2009, NOIDA decided that the stipulation to purchase thirty-three per cent FAR of the existing base FAR for old allotees under the notification dated 28 February 2009, should be brought at par with other allotees. As a consequence, the purchasable FAR for old allotees would be enhanced to 2.75. However, the notification by the State of Uttar Pradesh in this regard was still awaited. The appellant states that, in any case, based on the decision of NOIDA, it planned the construction

14 H “T-1”/ “Aster 2”

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 995 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

of T-16 and T-17 in a way that catered to the additional FAR which may A be available for purchase at a later date.

14Copy pinpoint14. On 19 November 2009, relying on the notification dated 28 February 2009, the appellant purchased thirty-three per cent of its existing base 1.5 FAR at the cost of Rs eight crores, increasing its available FAR to 1.995. B

15Copy pinpoint15. However, it appears from the record that the appellant had already started construction of the disputed towers – Apex and Ceyane – prior to the grant of this sanction by NOIDA. On 16 July 2009, the appellant informed the flat owners that: “1. That we have bought two separate plots measuring approximately 48000 square meter and 6500 square meter and got them registered separately in March 2005 & May 2006 respectively.

2. That the new towers which are being constructed will have altogether separate entry, exit, swimming pool, club & basic infrastructure. We will also construct boundary wall separating two structure i.e. existing 15 towers & Apex Ceyane.”

16Copy pinpoint16. The above communication of the appellant indicates that: (i) The construction of T-16 and T-17 had already commenced on 16 July 2009; (ii) According to the appellant, these new towers would have separate entry-exit, amenities and infrastructure; and (iii) The new towers would be separated from the existing fifteen towers by the construction of a boundary wall. F The appellant represented to the flat-owners that a revised building plan for replacing the existing T-16 (G+11) and the shopping complex (G+1) was sanctioned, with twin towers T-16 and T-17, each of G+24 floors and a height of 73 mtrs., replacing them.

17Copy pinpoint17. On 11 September 2009, the Chief Fire Officer of Gautam G Budh Nagar15, the fourth respondent, issued a report to the In-charge (Building Cell) NOIDA, Sector 6 for the grant of the provisional Non-

15 “CFO” H

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A Objection Certificate16 for T-16 and T-17. The provisional Fire NOC was made subject to compliance with the requirements of the National Building Code, 200517.

18Copy pinpoint18. On 16 September 2009, a completion certification was granted in relation to another six towers (G+11). The completion map B accompanying this certificate again showed the green area in front of T-1, where presently T-16 and T-17 are being constructed.

19Copy pinpoint19. On 26 November 2009, NOIDA sanctioned the second revised plan for Emerald Court under the NBR 2006. In this plan, the earlier T-16 (G+11) was replaced with a T-16 consisting of ground and twenty- C four floors (G+24). Similarly, the shopping complex (G+1) was replaced with T-17 consisting of ground and twenty-four floors (G+24). T-16 and T-17 would each be of a height of 73 mtrs. According to the plan, T-17 was to be at a distance of 9 mtrs. from T-1, and there was a provision for their connection through a space-frame at the upper level. This plan was sanctioned by NOIDA on the basis of the appellant having purchased thirty-three per cent of the purchasable FAR (27,135.657 sq. mtrs.), in addition to the permissible 1.5 FAR (82,229.265 sq. mtrs.), totalling to 1.995 FAR (1,09,364.922 sq. mtrs.). The second revised plan expressly provided for the following, among other conditions: “2. Due to this sanction of the building plan, the right and ownership of any government authority like (municipality, NOIDA) any other person will not get affected. […]

8. A set of sanctioned building plan shall be kept at the construction site so that it can be checked at the site at any time and the construction work shall be done as per the sanctioned building plans specifications as per the rules of Noida Building Rules. The allottee shall start the construction work of the ground floor only after getting the inspection of the basement done upon completion of the work of basement from building section department, Noida. Otherwise sanctioned map deemed to be cancelled.” (emphasis supplied)

16 “NOC” 17 H “NBC 2005”

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 997 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

A.5 Third Revised Plan A

20Copy pinpoint20. On 20 February 2010, a notification was issued by the State of Uttar Pradesh enabling old allotees to purchase FAR of up to 2.75 and, as a consequence, the limit of a maximum purchasable FAR of thirty-three per cent of the existing base FAR was removed. The notification contemplated that “the purchasable FAR shall be allowed up to the maximum limit of applicable FAR”. The notification also amended the NBR 2006, which expressly provided that: “Purchasable FAR is an enabling provision. It shall not be allowed to any allottee as a matter of right.”

21Copy pinpoint21. On 19 March 2010, the UP Apartments Act 2010 came into force. Section 4(4) and Section 5 of this Act provide for the consent of the owners of flats before any change in the sanctioned plans is effected and also envisage that the percentage of undivided common interest of the owners of the flats cannot be changed without their consent.

22Copy pinpoint22. On 30 November 2010, the New Okhla Industrial Development D Area Building Regulations 201018 came into force. Regulation 24.2.1.(6) contains the following stipulations: “(6). Distance between two adjacent building blocks Distance between two adjacent building blocks shall be minimum E 6 mtrs. to 16 mtrs, depending on the height of blocks. For building height up to 18 mts., the spacing shall be increased by 1 metre for every addition of 3 mtrs. as per National Building Code 2005. If the blocks have dead-end sides facing each other, than the spacing shall be maximum 9 mtrs. instead of 16 mtrs. Moreover, the allottee may provide or propose more than 16 mtrs space between two blocks.”

23Copy pinpoint23. On 18 August 2011, the CFO granted a temporary NOC in respect of T-16 and T-17, for a height of 121.5 mtrs. with proposed ground and thirty-eight floors (G+38). It was noted that once the buildings were constructed and proper fire safety equipment was installed, they would be inspected in order to assess whether a permanent NOC should be granted.

24Copy pinpoint24. On 25 October 2011, in view of the notification dated 20 February 2010, the appellant purchased an additional FAR at a cost of 18 “NBR 2010” H

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A Rs 15 crores, so as to enhance the available FAR from 1.995 to 2.75 (1,50,753.652 sq. mtrs.). On the same date, NOIDA issued a letter to the appellant in relation to the purchase of the FAR, imposing several requirements, including compliance with the provisions of the UP Apartments Act 2010.

25Copy pinpoint25. On 2 March 2012, the third revised plan was sanctioned by NOIDA for Emerald Court. Through this sanction, the height of T-16 and T-17 was permitted to be raised from 24 floors to 40 floors (i.e., G+40), resulting in the building’s height being 121 mtrs. Further, T-16 and T-17 would also consist, inter alia, of two basements and open space for parking beneath the towers. The third revised plan also C contained a requirement of compliance with the UP Apartments Act 2010, along with similar requirements which were present in the second revised plan. A.6 Complaints against the Revised Plans

26Copy pinpoint26. On 9 March 2012, the appellant addressed a communication to the first respondent intimating that the flat purchasers of T-16 and T-17, which were under construction, would have altogether separate entry-exit, amenities and infrastructure.

27Copy pinpoint27. On 29 March 2012, the office of the CFO, on the basis of a E complaint by the first respondent, issued a notice to the appellant in regard to certain deficiencies and violations in complying with fire safety requirements.

28Copy pinpoint28. On 24 April 2012, the CFO, on the basis of another complaint by the first respondent, addressed a communication to NOIDA in regards F the violation of the minimum distance between T-1 and T-17. The letter, inter alia, states: “When record was perused in respect of the above, it was found that: […]

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

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 999 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

3. There should be a distance of 16 meter in between two buildings situated side by side as per National building Code of India – 2005. Therefore, you are requested that in the light of above kindly inform that license was granted for construction of building after providing relaxation to the building in question in Special Category or construction is being carried out by the concerned is contrary to the standards.”

29Copy pinpoint29. On 3 May 2012 and 22 May 2012, the first respondent filed an RTI application with NOIDA for obtaining the sanctioned plans in relation to Plot No 4 of Sector 93A. Though under the terms of the sanctioned plans the appellant was required to display the sanctioned map at its site, NOIDA still wrote to the appellant to verify whether the sanctioned plans and maps could be made available to the first respondent. The appellant in response refused to grant its consent to release sanctioned plans and maps to the first respondent. Hence, NOIDA refused to provide the sanctioned plans to the first respondent. D

30Copy pinpoint30. On 19 June 2012, a show cause notice was issued by NOIDA to the appellant stating that: (i) the construction was not in accordance with the third revised plan since, inter alia, T-1 and T-16/17 were not joined by a space frame; and (ii) a copy of the plan had not been exhibited at the site office. The appellant replied to the show cause notice on E 26 June 2012 stating that T-16 and T-17 were still under construction and the space frame would be built at the time of construction.

31Copy pinpoint31. On 26 June 2012, NOIDA issued a completion certificate to the appellant in respect of Tower-15 (G+11). F

32Copy pinpoint32. On 28 June 2012, the first respondent addressed a communication to NOIDA complaining of violations and misrepresentations made to the owners by the appellant, and sought cancellation of the layout plan of the two new towers, T-16 and T-17. The first respondent followed up its earlier communication with letters dated 9 and 29 August 2012 demanding information, and intimating that G the construction was being carried out by the appellant in violation of the norms. A.7 Proceedings before the Allahabad High Court

H

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33Copy pinpoint33. On 10 December 2012, the first respondent filed a writ petition under Article 226 of the Constitution before the High Court seeking inter alia the following reliefs: “i. Issue a writ, order or direction quashing the revised plan approved by respondent 2 for construction of new towers namely B Tower ‘APEX’ and ‘CEYANE’ in plot no. 4, Sector 93-A, and issue further directions for demolishing of aforesaid towers, the approval and construction being in complete violation of provisions of U.P. Apartments Act of 2010. ii. Issue a writ, order or direction directing the Respondent 2 not C to sanction amendments to any further building plans in respect of the Group Housing Society being developed by respondent 5 without obtaining consent of all the residents. iii. Issue a writ, order or direction quashing the permission granted to respondent 5 to link Tower T-1 and T ‘APEX’ / ‘CEYANCE’ D through space frame. iv. Issue a writ, order or direction directing respondents 2 and 3 to ensure that fire safety equipment and infrastructure is installed at the expenses of respondent 5 within a specified period. v. Issue a writ, order or direction directing respondent 2 to demolish illegal construction made in the basement and setback area as per notice dated 19.06.2012 and 17.07.2012. vi. Issue a writ or direction directing respondent no. 2and 5 to provide car parking spaces (both aboveground and in the basement) as per the provisions of the NBC 2005 to all the legal allottees/residents of Supertech Emerald Court Complex, plot 4, Section 93-A NOIDA.”

34Copy pinpoint34. The first respondent only pressed reliefs i and iii, seeking a direction to quash the revised plan which approved the construction of T-16 and T-17, and to demolish them. The first respondent also sought the quashing of the permission granted to link T-1 and T-16/T-17 though a space frame. During the pendency of the writ proceedings, in pursuance of a specific order of the High Court, the RWA was provided with the sanctioned maps together with related information and documents in respect of the construction at the site. Pleadings were subsequently exchanged between the parties. H

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1001 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

35Copy pinpoint35. The appellant filed a counter affidavit on 27 January 2013 A submitting that: (i) The first respondent is not recognised by the appellant under the UP Apartments Act 2010; (ii) The first respondent should have first approached the Chief Executive Officer of NOIDA, who is the competent authority B under the UP Apartments Act 2010, and then the State Government, before approaching the High Court under the writ jurisdiction; (iii) Construction of T-16 and T-17 was approved on 26 November 2009, but the writ petition had been filed after three years in C December 2012, when the building is in an advanced stage of construction. Hence, the writ petition is barred by delay and laches; and (iv) T-16 and T-17 were sanctioned in 2009 under the NBR 2006. The final sanction given on 2 March 2012 only increased the height of the towers from twenty-four floors to forty floors, after the appellant purchased the additional FAR. Under the NBR 2006, there is no provision with regard to the minimum distance between two “building blocks”. Since the NBR 2006 did not incorporate the NBC 2005, the mandatory requirement of 16 mtrs. between two building blocks for buildings higher than 55 mtrs. need not be followed. The distance requirement between two building blocks was only mandated by NBR 2010, which is not applicable since the initial sanction for T- 16 and T-17 was given under NBR 2006. F

36Copy pinpoint36. NOIDA in its counter affidavit dated 7 February 2013 stated that: (i) It allotted the plot to the appellant by complying with the NBR

2010. The sanction was also given with the specific condition that the UP Apartments Act 2010 must be complied with; G (ii) Plot No 4 is not divided into two projects. It is unified and belongs to a single project; and (iii) The permission for the construction of a space frame connecting T-1 with T-16/T-17 was granted only after the design was approved by IIT Roorkee. H

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37Copy pinpoint37. The High Court allowed the writ petition on 11 April 2014 and directed the demolition of T-16 and T-17, with the expenses of the demolition being borne by the appellant. It further directed the Competent Authority to grant sanction for the prosecution of NOIDA’s officials as required under the UPUD Act 1973, within a period of three months. The High Court also directed the appellant to refund the consideration received from flat purchasers who had booked apartments in T-16 and T-17, with fourteen per cent interest compounded annually. While allowing the writ petition, the High Court made the following observations: (i) The first respondent had the locus to institute proceedings under Article 226 of the Constitution. The flats were handed over to the purchasers by September 2009. The RWA was formed and registered with the Registrar of Societies in the same year. The Model Bye-Laws under the UP Apartments Act 2010 were notified by the Government on 16 November

2011. However, the Deputy Registrar Firms, Societies and D Chits, Meerut, Uttar Pradesh issued a letter on 14 December 2012 stating that pending instructions from the Registrar, no decision could be taken in respect of the Model Bye-Laws and registration. The Registrar by a circular dated 5 December 2013 issued instructions for registration of the first respondent under the UP Apartments Act 2010. On 20 October 2013, the first respondent by its resolution adopted the Model Bye-Laws and conducted its elections. Further, in any case, the appellant had recognized the first respondent since its inception and had corresponded with it continuously. The appellant had never raised objections on its competence to represent the flat purchasers. The grant of sanction by NOIDA in violation of the relevant building regulations affects the rights of every apartment owner, who is represented through the first respondent. Hence, the first respondent is a ‘person aggrieved’ and was entitled to initiate the writ proceedings; G (ii) The first respondent under Article 226 was not barred by the available remedy of approaching either the CFO, NOIDA under the UP Apartments Act 2010 or the State under Section 27 of the UPIAD Act 1976. Though the first respondent raised its grievance before NOIDA, no notices were issued and there was no follow up. Only if NOIDA had issued an order, could H

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1003 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

the first respondent have approached the State Government A under Section 27 of the UPIAD Act 1976. Thus, there was no other alternative remedy that was available to first respondent but to initiate writ proceedings; (iii) The appellant must have submitted a declaration in the office of the competent authority with regard to the construction of the building under the UP Apartments Act 2010. Rule 4 of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Rules 2011 states that when the competent authority receives an application for amendment of the declaration, it shall issue a written notice to the association of the building owners and an order shall be passed by the competent authority only after the association is given the opportunity of being heard. Since no such notice was given to the association, it is an ‘aggrieved person’ and thus has the locus to initiate writ proceedings; (iv) The original building plan was sanctioned when NBR 2006 D was in force. However, the approval for purchase of additional FAR was made in 2011. It is a settled principle of law that the rules and regulations applicable on the date of the sanction would determine the rights of the parties. The sanction given on 2 March 2012 further imposed a condition of applicability of the UP Apartments Act 2010. Therefore, both the NBR 2010 (and NBC 2005, since NBR 2010 makes it applicable) and the UP Apartments Act 2010 shall be applicable; (v) The contention of appellant that the project was in two phases is not borne out from the record since NOIDA has permitted the purchase of additional FAR and granted the subsequent sanction treating the project as a single project. The plans submitted and sanctioned were for a single project, and an attempt has been made by the appellant to mislead the court; (vi) Regulation 24.2.1(6) of the NBR 2010 states that for buildings up to the height of 18 mtrs., the spacing between two adjacent building blocks shall be 6 mtrs. and the spacing shall be increased by 1 mtr. for every 3 mtrs. above 18 mtrs., but subject to a maximum distance of 16 mtrs. Para 8.2.3.1 of the NBC 2005 states that for buildings higher than 55 mtrs., H

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A 16 mtrs. open space must be left in the sides and rear. Since the height of T-17 is 121 mtrs., the distance between the building blocks must at least be 16 mtrs. However, the distance is only 9 mtrs. and is deficient by 7 mtrs.; (vii) The appellant, in collusion with NOIDA, obtained sanctions for the layout map in violation of the mandatory requirement for space to be maintained between building blocks and clear space; (viii) The provisions of the UP Fire Prevention and Fire Safety Act 200519 were required to be complied with, according to which the minimum distance of 7.5 mtrs. between building blocks and a clear space must be provided, which has been violated in the third revised plan of 2012; (ix) The submission of the appellant that the expression ‘building blocks’ having not been defined in the NBR 2010, would mean the entire set of buildings on Plot No 4 is contrary to the NBR 2006 and NBR 2010. The sanctioned plans show that the appellant got the layout approved, consisting of separate blocks. The nomenclature of the blocks was subsequently changed in each successive plan, and finally the buildings were numbered as T-1 to T-17. The sanctioned plans clearly show that T-1 and T-16/17 are separate building blocks; and (x) The plan sanctioned by NOIDA was contrary to: (a) the building regulations; (b) the mandatory distance between building blocks; and (c) the movement space required, as a result of which the rights of the apartment owners and the safety of their apartment blocks have been seriously affected. A.8 Proceedings before this Court

38Copy pinpoint38. The appellant filed a Special Leave Petition under Article 136 of the Constitution on 28 April 2014 assailing the judgment of the High Court. On 5 May 2014, this Court directed the maintenance of status quo in respect of T-16 and T-17, directing that neither the builder nor the purchaser shall alienate the property or create third party rights. During the course of the hearings on 19 July 2016 and 27 July 2016, the appellant and NOIDA submitted that the Court may have the view of an expert 19 H “Fire Safety Act”

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1005 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

agency on the issue and engage an expert for this purpose. On the A submission of the Additional Solicitor General, the National Buildings Construction Corporation Limited20, a government owned enterprise, was appointed to examine various facts in relation to the dispute, particularly those having a bearing on whether the two towers (T-1 and T-17) have dead-end sides facing each other. By its report dated 13 October 2016, B the NBCC concluded that the two towers are not compliant with Regulation 24.2.1.6 of the NBR 2010. Apart from the report which has been submitted by the NBCC, the first respondent had commissioned IIT Delhi and IIT Roorkee to report on the disputed issue of ‘dead ends’. Reports by them have been placed on the record.

39Copy pinpoint39. By its interim orders dated 6 September 2016 and 11 January C 2017, this Court directed that a group of applicants be given ten per cent per month towards return of investment21. On 22 September 2017, this Court directed Mr Gaurav Agarwal, Amicus Curiae, to create a portal link to coordinate with the appellant and the flat purchasers on issues relating to refund. Further, this Court directed that the principal amount along with interest of fourteen per cent shall be provided to the flat purchasers who have opted not to wait for the decision of this Court in the present Special Leave Petition.

40Copy pinpoint40. By an order dated 30 July 2018, this Court with the assistance of the Amicus Curiae classified the home buyers into the following groups, based on the refund option chosen by them: (i) Refund of principal amount along with twelve per cent simple interest per annum (one hundred and one home buyers); (ii) Home buyers who still insist on getting interest at the rate of fourteen per cent (twenty-four home buyers) - since a F substantial number of home purchasershave agreed to twelve per cent interest, these twenty-four purchasers were also directed to accept the twelve per cent interest rate; (iii) Home buyers through the Subvention Scheme – in such cases, the EMIs shall be paid by the appellant until the G possession is handed over; and (iv) Disputed cases - Mr Sanjeev Agrawal and Ms Rashmi Arora have paid Rs 38,51,009 and Rs 17,43,162 respectively by 20 “NBCC” 21 “ROI” H

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A cheque. The said amount shall be refunded with a simple interest at twelve per cent per annum. B Submissions by Counsel

41Copy pinpoint41. Mr Vikas Singh, learned Senior Counsel appearing on behalf of the appellant urged the following submissions: B (i) The sanction and construction of T-16 and T-17 is not violative of the distance rule under NBR 2010: a. NBR 2010 does not apply to T-16 and T-17, since they were first sanctioned in the second revised plan issued under the NBR 2006. Under the NBR 2006, the distance provision in Regulation 33.2.3(i) was not mandatory and it was open to the CEO to stipulate the distance requirement depending upon the exigencies of a lay out plan. In any case, the Regulation applies to the distance between two building blocks and does not govern the distance between the T-1 and T-17, which form a part of the same block. Further, if this provision was mandatorily applied, then it would also affect the first revised plan, in which the heights of the fifteen other towers is 37.5 mtrs. while the distance with the adjacent blocks was less than half the height, i.e., less than 18.75 mtrs.; b. Even if NBR 2010 was to apply, T-16 and T-17 are part of the same building block consisting of T-1, Tower-2, Tower-3 and T-17, which is connected by a space frame to T-1. Hence, Regulation 24.1.2(6) of the NBR 2010, which provides for a distance to be maintained between “adjacent building blocks” (“Bhawan Samuh”/cluster of buildings), is not applicable in respect of the distance between T-17 and T-1; c. The concept of a building block has been explained in a G note submitted by NOIDA to the High Court. While using the FAR, the only requirement is to maintain a certain percentage as an open/green area. Instead of scattering the buildings over the total project area, group housing projects can envisage adjacent towers or even a block H

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1007 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

of towers so as to ensure a large open green space rather A than scattered small spaces all over the project; d. In the alternative, even if the they are not part of the same building block, T-17 being a “tower like structure”, para 8.2.3.2 of the NBC 2005 is attracted in terms of Regulation 24.2.1(6). In accordance with para 8.2.3.2, B the minimum distance for buildings of a height of less than 37.5 mtrs. is 9 mtrs., while for buildings of a greater height, it is 12 mtrs. Further, in accordance with para 8.2.3.2(d), the deficiency of this distance at the ground level can be made good at the upper levels. Hence, maintaining a minimum distance of 16 mtrs. between C “tower like structures” is not an inviolable requirement; e. In the present case, the minimum distance between T-1 and T-17 varies from 9.88 mtrs (at the ground level) to 25.75 mtrs (at the upper level), since the total height of T-1 is 27.61 mtrs. while that of T-17 is 84.5 mtrs. As D such, it is in compliance with NBC 2005; and f. The Model Bye-Laws 2016 issued by the Ministry of Urban Development, Government of India prescribe a 9 mtrs. space around any building irrespective of the height beyond 40 mtrs.; E

(ii) The sanction to construct T-16 and T-17 is not violative of the UP Apartments Act 2010: a. T-16 and T-17 were sanctioned on 26 November 2009, and hence the requirement of prior consent did not arise, since the Act was not in force then; b. The flat owners of T-1 to T-15 who already had possession of their flats would not be “intended purchasers” under the proviso to Section 4(4) of UP Apartments Act 2010, and their consent was not required for the construction of additional floors in T-16 and T-17; c. The consent of all flat owners would be impractical, and at best the consent of the RWA would suffice. On 2 March 2012, when the third revised plan was sanctioned, H

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A the RWA was not functional and it was only on 20 October 2013 that the RWA adopted the Model Bye- Laws under the UP Apartments Act 2010; d. There has been no violation of the common area facilities of the flat owners of T-1 to T-15 by the creation of T-16 B and T-17, since they have been planned with separate entries and exit facilities together with infrastructure; and e. A majority of the flat owners of T-1 to T-15 was fully aware of the sanction to construct T-16 and T-17 since: C (i) 245 flats were booked till the first revised plan in 2006; (ii) between 2006 and until the second revised plan in 2009, 141 flats were booked; (iii) after the second revised plan and until the third revised plan in 2012, 114 flats were booked; and (iv) after the third revised plan in 2012 till 2 August 2021, 159 flats have been D purchased; (iii) There has been no violation of fire safety norms: a. A provisional Fire NOC was received on 11 September 2009, prior to the sanction on 26 November 2009. The E fire department thereafter granted another temporary NOC for T-16 and T-17 on 18 August 2012, prior to the sanction dated 2 March 2012; and b. Under NBR 1986 and NBR 2006, buildings were required to be compliant with fire safety norms prescribed in Part- F IV of the NBC 2005. Para 4.6(b) of the NBC 2005 provides that for high rise buildings, open spaces on all sides up to a width of 6 mtrs. shall be available for free movement of fire tenders. In the present case, there is a clear space of 9 mtrs. between T-1 and T-17, which allows a free movement of fire tenders; G (iv) The Uttar Pradesh Ownership of Flats Act 197522 is not applicable: a. Under Section 2, the Act applies only to properties, the owners of which submit to the provisions of the Act by 22 H “UP 1975 Act”

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1009 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

executing a declaration. As such, the Act does not automatically apply to all properties and none of the flat owners have made executed any such declaration presently; b. Clause II(h) of the lease deed dated 26 March 2005 deals with maintenance, and cannot be construed to incorporate the application of the UP 1975 Act; and c. If the contention of the first respondent is accepted, the changes made by the first revised plan in T-1 to T-15, involving an increase in the height of all towers from nine to eleven floors, would also to be illegal; C (v) There is no green area violation in the sanctioning of T-16 and T-17: a. A triangular green space in the first revised plan was planned for the newly proposed T-16 (G+11) and shopping complex (G+1). This area was over and above the mandatory green area (soft landscape) required to be maintained on the plots under the NBR 2006; b. The central green area was sanctioned in the original plan of 2005. The required green area under Regulation 38 of the NBR 2006 was twenty-five per cent of the open area, which would be 11,538,02 sq. mtrs. whereas the appellant had provided a green area of 12,064.91 sq. mtrs. in the form of a central park; c. T-1 was not sold on the promise of a green space area in front of it and none of the buyers were charged preferential location charges; and d. Only eleven flats in T-1, out of a total of 44, were booked after the sanctioning of first revised plan and before the second revised plan. Out of these eleven, only seven flats were facing towards T-17. Even in these seven, there were no windows/balconies facing T-17, but only small bathroom windows; (vi) The sanction of T-16 and T-17 is based on a valid certificate as regards the structural design of the towers; H

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A (vii) The appellant has not collected the entire lease rent payable to NOIDA only from the flat owners of T-1 to T-15. It has only collected around Rs 7.5 crores, while it itself has paid around Rs 14 crores; and (viii) The order for demolition of T-16 and T-17 is liable to be set B aside on ground of equity: a. The construction was carried out with the sanction of the authorities; b. 600 persons had purchased flats in these towers;

C c. Construction began in December of 2009, and third-party rights in favour of the purchasers have been crystalized; d. The petition was filed before the High Court in December 2012; and e. 28 floors in T-17 and 26 floors in T-16 were constructed D as on 20 December 2013 when arguments were concluded before the High Court, and by the time that the judgment was delivered, 32 floors had been constructed. Hence, the order of demolition would be harsh and inequitable.

42Copy pinpoint42. Supplementing the submissions of Mr Vikas Singh, Mr Ravindra Kumar, learned Counsel appearing on behalf of NOIDA, made the following submissions: (i) Para 8.2.3.2 of NBC 2005 provides that for buildings of heights between 24 mtrs. to 37.5 mtrs. with one setback, the open space at the ground level shall not be less than 9 mtrs. Since the height of the existing tower Aster-2 (T-1) is less than 37.5 mtrs., the minimum space required between this tower and T-17 is only 9 mtrs. Further, the deficiency of open space can be made good through set-backs at the upper level. However, since the height of T-1 is not proposed to be increased and the tower is open from all three sides, this requirement need not be fulfilled; (ii) The various NOIDA Building Regulations have not been violated as they do not prescribe the minimum distance H

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1011 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

between two towers. It only refers to the distance between A ‘building blocks’, with reference to the NBC 2005; (iii) If building blocks have dead end sides facing each other, then the space between two building blocks shall be a maximum of 9 mtrs. as per the NBR 2010. Similar provisions are found in other building bye-laws such as Delhi Building B Bye Laws, Bhubaneshwar Development Authority Building Byelaws, and Model Building Byelaws prepared by the Ministry of Urban Development; (iv) The Fire Safety Act has also been adhered to, as it requires a minimum distance of 6 mtrs. between two towers to C provide space for movement of fire tenders; (v) The construction of the buildings was not stayed by the High Court, which has now jeopardized the rights of third- parties, who will now be aggrieved by the order of demolition; D (vi) At the time of sanction of the second revised plan dated 26 November 2009, the UP Apartments Act 2010 had not been enacted. With respect to grant of sanction to the third revised plan, the power to sanction the plans or revisions vests with NOIDA and is not curtailed by the UP Apartments Act E 2010; (vii) UP Apartments Act 2010 does not mandate the taking of any consent or NOC from the RWA prior to sanction of plans. In spite of this, an obligation was placed on the appellant to abide by the provisions of UP Apartments Act F 2010, while sanctioning the third revised plan dated 2 March 2012; (viii) While sanctioning the third revised plan, there was no change in the ground coverage area of T-16 and T-17 and only their proposed heights were increased; and G (ix) There is no factual foundation to conclude that there had been any collusion between the appellant and NOIDA.

43Copy pinpoint43. Mr Jayant Bhushan, learned Senior Counsel appearing on behalf of RWA urged that the members of the RWA purchased their flats after being shown a layout which included a limited number of flats H

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A and gardens, including a garden in front of T-1. Many of the allottees are retired persons who have suffered as a result of the unilateral changes made by the appellant, which resulted in an increase in the number of flats from 689 to 1573. The garden area in front of T-1 has been completely removed and instead of a complex of 11 storeyed buildings, two long and tall structures have been sanctioned without the consent of B the existing allottees obliterating their right to light, air, view and garden area, thereby endangering their safety. Mr Bhushan submitted that: (i) The sanctions of 2009 and 2012 are in violation of the minimum distance criteria required to be maintained between two buildings. Under Regulation 32.3.1(i) of the C NBR 2006, the distance required is half the height of the tallest building. The tallest building, T-17, under the second revised plan of 2009 is 73 mtrs. and hence, the minimum distance of 36.5 mtrs. was required between T-1 and T-17. Even the existing T-1 is of 37 mtrs. height and therefore, D even a building smaller than T-1 could come up only at a distance of at least 18.5 mtrs from T-1; (ii) Regulation 24.2.1(6) of the NBR 2010 requires a minimum distance of 16 mtrs. between T-1 and T-17, as opposed to 9 mtrs. at the side; E (iii) Under para 8.2.3.1 of NBC 2005, the distance required between buildings would be 16 mtrs. plus ten per cent of the building length minus 4 mtrs. The length of the proposed tower is 84.5 mtrs., and hence the distance required would be (16 + (10 per cent of 84.5) – 4), which is equal to 20.45 F mtrs.; (iv) The requirement of complying with NBC 2005 is prescribed by NBR 2010 and the NOC issued by the CFO in 2009. In this regard, on 24 April 2012, the CFO inquired from NOIDA how the new buildings were sanctioned in violation of the G distance criteria prescribed in NBR 2006 and 2010, and NBC 2005, which was not responded to by NOIDA; (v) NBCC, which was appointed by this Court at the request of the appellant, has stated in its report that the distance requirement has been violated; H

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1013 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(vi) In response to the argument of the appellant that T-1, T-16 A and T-17 form part of one building block, obviating the requirement of minimum distance, it was submitted that: a. NBC 2005 refers to the distance between buildings and not building blocks; b. The expression “building block” though used in NBR B 2006 and 2010, has not been defined in either of the regulations. The rationale for the distance between building blocks is to ensure fire safety evacuation, light and ventilation. It cannot be left to the builder to designate groups of buildings as one building block since the C purpose of maintaining the minimum distance would be seriously compromised. The expression must take its colour from NBC 2005 and every building must be a building block; and c. The reports submitted by the IITs of Delhi and Roorkee D specify functional requirements of distance between buildings including: i. fire separation to avoid transmission between buildings; ii. safe escape and rescue during fire; E iii. ventilation; and iv. daylight access. These requirements have been severely compromised due to the lack of the minimum distance between T-1 and T-17; F d. Regulation 24.2.1(6) of NBR 2010 refers to NBC 2005 as the source of the distance requirement. The interpretation of the phrase ‘building block’ in NBR 2010 and 2006 must be consistent with NBC 2005; e. The first revised plan of 2006 shows that each building G was intended to be a separate block; f. The initial argument of the appellant was that T-1 and T-17 are on separate plots and were never intended as the same block. Subsequently, the appellant claimed that H

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A they were constructed in separate phases and were to have separate facilities. Later, it introduced a false and unapproved map showing T-1, T-2, T-3, T-16 and T-17 as one block; g. The affidavit of the appellant dated 4 August 2021 before B this Court states that T-16 and T-17 will have separate facilities including entry and exit; h. T-1, T-16 and the shopping complex as sanctioned in the first revised plan of 2006 were distanced and were different blocks altogether; C i. The construction of T-1 was completed in April 2008 and possession was granted to allottees. It was not legally possible to construct T-17 in 2008 since it was first sanctioned only in November 2009; j. The road between T-1 and T-17 is the main road for the society and leads into the basement and parking; k. The basement of T-1 has one level while T-17 has two levels; l. The foundation of T-1 is made to bear a load of only eleven floors. The appellant has claimed that though the foundation of T-17 was laid in 2009, when only twenty- four floors were sanctioned, it was meant to bear a load of forty floors, which were sanctioned only in 2012; m. The connection of two building blocks with the space frame would not make it one building block; and F n. The appellant itself was unconvinced by the building block argument and raised the ‘dead end’ side issue, which led to the appointment of NBCC by this Court to verify the facts. After a negative report from NBCC, the appellant has once again fallen back on the building block argument to assert that blocks can be defined at the discretion of the developer; (vii) In response to the submission of the appellant that the buildings are “tower like structures” under the NBC 2005 and thus, meet the minimum distance mandated, it was submitted that:

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1015 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

a. Requirements of NBR 2006 and 2010 and NBC 2005 A are independent and hence, the defence of a tower like structure under the NBC 2005 cannot cure violations of the NBRs; b. T-17 does not have any set-backs and has the same width throughout; B c. At least 12 mtrs. distance is required at the ground level even for tower like structures; and d. The deficiency of the mandated open space of 16 mtrs. under the NBC 2005 in tower-like structures can be cured by set-backs on upper levels. However, the C distance of 12 mtrs. at the ground level is still mandatory; (viii) Possession of flats in T-1 was given to purchasers in 2008. The second and third revised plans of 2009 and 2012 respectively proposed a space frame connecting T-1 and T-17 when the residents had already started living in T-1. D This is illegal and a safety hazard; (ix) Under the lease, the undivided interest in common areas stood transferred to the respective allottees. The owners of the existing flats had paid the entire lease amount and more. While the appellant paid Rs 13 crores as onetime E lease rent, the buyers of existing flats (other than those in T-16 and T-17) were charged over Rs 16 crores; (x) Consent of flat owners was required under UP Apartments Act 2010 before an alteration in the sanctioned plan: F a. Sections 4(4) and Section 5(3) of the UP Apartments Act 2010 requires the consent of all allottees before a change in the sanctioned plan/undivided interest in the common area is made. The removal of the green area reduced the common areas and, with an increase in the flats from 689 to 1573, the proportionate undivided G interest in the common areas has been reduced substantially; b. The UP Apartments Act 2010 is applicable irrespective of whether or not a society is formed. The rights are H

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A vested with the apartment owners and not the association; and c. Gardens as well as land are included in the definition of common areas over which all residents have rights; (xi) Consent of flat owners ought to have been obtained before B obtaining an alteration of the sanctioned plan, under UP 1975 Act: a. Under Sections 5(2) and 5(3), undivided interest cannot be altered without the consent of all owners of flats;

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

D c. The appellant was responsible to ensure that the declaration under the UP 1975 Act was made. It cannot take advantage of its own wrong in failing to submit a declaration; (xii) The appellant and NOIDA have colluded to by-pass the Building Regulations: E a. Despite the revised plans violating the distance criteria, NOIDA granted sanction to the said revisions. The plans were not cancelled despite repeated reminders from the RWA; F b. Despite the letter of the CFO dated 24 April 2012 highlighting the violation of the distance criteria, NOIDA did not take any action; c. The appellant was aware in advance that its plan would be sanctioned in the future, and hence built a stronger G foundation in 2009 to support forty storey buildings for T-16 and T-17, which received sanction only in 2012; d. Under the terms of approval, the sanctioned plan had to be kept at the site for display. In spite of this, there was

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SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1017 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

a failure of the appellant to display the plans. When a A request was made by the RWA to NOIDA to provide a copy of the plans, NOIDA asked the appellant whether it could supply the plans. Upon the refusal by the appellant, NOIDA declined to provide the plans; and e. No action was taken by NOIDA after issuing a show B cause notice for violation of the minimum distance requirement to the appellant based on a complaint by the flat owners; (xiii) No part of the second revised plan of 2009 can be saved as it is in violation of the distance criteria contained in the NBR C 2006, and is also contrary to the UP 1975 Act; (xiv) The appellant cannot make any further constructions without the consent of the existing flat owners under the UP Apartments Act 2010 and the Real Estate Regulation and Development Act 2016; D (xv) There is no equity in favour of the flat buyers in the new buildings (T-16 and T-17) who have decided to retain their flats, particularly when this Court had through several orders granted an opportunity to the purchasers to seek refund; (xvi) T-16 and T-17 can safely be demolished; and E (xvii) False and misleading statements have been made by the appellant in the course of its pleadings before the High Court and this Court. C Prefatory observations F

44Copy pinpoint44. At the outset, it must be noted that: (i) The area which was originally leased to the appellant admeasured 48,263 sq. mtrs.; and (ii) As a result of the supplementary lease, the area stood increased to 54,816 sq. mtrs. G

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

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A

B

C

D

E The plan for the construction was originally sanctioned on 20 June

2005. Thereafter, three revisions were sanctioned on 29 December 2006, 26 November 2009 and 2 March 2012.

45Copy pinpoint45. The sanctioning of the revised plans and the construction of T- 16 and T- 17 have been challenged on the ground of a violation of: 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 is numbered as T-17. Further, T-1 and T-17 were to be connected by a space frame at the upper 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 by Mr Vikas Singh, learned Senior Counsel, the number of floors envisaged for T-17 were G+39 and T-16 were G+40. Further, as per the provisional Fire NOC dated 18 August H 2011, the proposed construction for T-16 and T-17 was for G+38 floors.

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1019 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(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. This will be considered in the course of the judgment. B

46Copy pinpoint46. It becomes necessary to clear the ground in regard to the reliefs which were sought before the High Court. The reliefs sought before the High Court in the petition were for: (i) Quashing the revised plan for the construction of T-16 (Ceyane) and T-17 (Apex) and the demolition of the C structures constructed pursuant to the plan; (ii) Directing NOIDA to not sanction any further building plans in respect of Emerald Court without obtaining the consent of all residents; D (iii) Quashing the permission granted to link T-1 with T-16/ T- 17; (iv) Directing the installation of fire safety equipment and infrastructure; (v) Directing the demolition of the illegal construction in the E basement and the setback area; and (vi) Directing NOIDA and the appellant to provide car parking spaces in accordance with NBC 2005. Of the above reliefs, the High Court recorded that only prayers (i) and (iii) were pressed. F

47Copy pinpoint47. The above narration establishes that there was a challenge to the revised plans by which the construction and increase in the height of T-17 (Apex) and T- 16 (Ceyane) were envisaged. As the tabulation set out above indicates, in the first revised plan of 29 December 2006, T-16 was to partially comprise of G+11, the rest being G+4. A shopping complex G was envisaged comprising of G+1 floors. A triangular green area is indicated in the first revised plan of 29 December 2006 in front of T-1. In the second revised plan of 26 November 2009, T-17 (Apex) and T-16 (Ceyane) came to be envisaged with twenty-four floors and of a height of 73 mtrs. each. In the third revised plan of 2 March 2012, the number H

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

48Copy pinpoint48. A brazen attempt at stonewalling the first respondent was made by the appellant and NOIDA before the High Court. The sanctioned plans incorporate the condition that a copy of each plan would be made available at the site. Despite this, when the first respondent sought copies of the sanctioned plans and other information, NOIDA wrote to the appellant asking for their consent to provide theplans to the first respondent. When the appellant refused, NOIDA’s refusal to the RWA followed suit. It was only pursuant to the interim directions of the High D Court that the sanctioned plans and documents were provided to the first respondent. The reliefs which have been sought encompass a challenge to the validity of the second and third revised plans, under which the two towers, T-17 (Apex) and T-16 (Ceyane), were being constructed. E D Violation of distance requirement under Building Regulations

49Copy pinpoint49. The first issue we shall address is whether the sanction for the construction of T-16 and T-17 by NOIDA is in violation of the distance requirement under applicable building regulations. F Original sanction dated 20 June 2005

50Copy pinpoint50. When the plan was originally sanctioned on 20 June 2005, the NBR 2006 was yet to come into force. The sanction of 20 June 2005 was under the regime of the NBR 1986. NBR 1986 envisaged a 15 mtrs. set back from the front and 9 mtrs. on all sides. Since the original G plan did not envisage construction of T-16 and T-17, the said plan is not under challenge for violation of the relevant building regulations. First revised sanction dated 29 December 2006

51Copy pinpoint51. NBR 2006 came into force on 16 December 2006. The sanctioned plan for the project was first revised on 29 December 2006, H

SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1021 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

and it covered a total area of 54,819 sq. mtrs., leased to the appellant A under the Lease Deed and the Supplementary Lease Deed. The first revised plan provided for the construction of two additional towers (T-15 and T-16) and one shopping complex (G+1 floors). All 16 towers were to comprise of G+11 floors and were to be 37 mtrs. in height.

52Copy pinpoint52. The first revised plan was governed by the NBR 2006. B Regulation 33 provided for permissible FAR, ground coverage and height of buildings. Regulation 33.2 dealt with the group housing. The table appended to it is as follows: “33.2 Group Housing C

D

Regulation 32 deals with set-backs, which is defined as the line parallel to the plot boundaries, beyond which nothing can be constructed towards the plot boundaries. Regulation 32.3 stipulates that where a plot size exceeds 40,000 sq. mtrs., there has to be a front setback of 25 mtrs., while setbacks on the rear and on all sides will be 9 mtrs. Regulation 33.2.3 is relevant for the dispute in the present case and it stipulates as follows, insofar as is relevant: “i. Distance between two adjacent building blocks shall not be less than half of the height of tallest building.” (emphasis supplied) Second revised sanction dated 26 November 2009

53Copy pinpoint53. The second revision to the original plan was sanctioned on G 26 November 2009, under the NBR 2006. The second revised plan envisaged that instead of the construction of T-16 (comprising of G + 11 floors and G+4 floors), and a shopping complex (G + 1 floor), two towers, T- 16 and T-17, would be constructed, each comprising of G+24 floors and of 73 mtrs. height. According to the revision, a 9 mtrs. distance was H

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A to be maintained between T-17 and T-1 at the ground level, and T-1 and T-17 were to be connected through a space frame at the upper level. The second revised plan provided that a front set back of 15 mtrs., and a rear and side set-back of 9 mtrs. each was approved.

54Copy pinpoint54. The issue is whether the second revised plan for construction B of 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, that is NBR 2006. We shall advert to this in the next section. Third revised sanction dated 2 March 2012

55Copy pinpoint55. The third revision to the plan was sanctioned on 2 March C 2012, by which the height of T-16 and T-17 was increased from 73 mtrs. to 121 mtrs., and the number of floors in T-16 and T-17 was increased from twenty-four to forty floors.

56Copy pinpoint56. At the time of the sanction of the third revised plan, the NBR 2010 had come into force. Regulations 1.6 and 1.7 of the NBR 2010 are in the following terms: “1.6 The plot on which map has already been sanctioned and construction has already started or completed, the allottee may be allowed to revise the same building plan or submit the new plan as per the prevailing regulations for that part of the building where construction has not started or any new addition is required in the building. 1.7 F.A.R, Ground coverage, setbacks and density as indicated in the regulations shall not be applicable in respect of those plots which were allotted on auction or tender basis and group housing prior to the coming into operation of these regulations. However, the calculation of FAR and Ground Coverage in the new buildings in such plots shall be done as per these regulations. The purchasable F.A.R and Ground coverage as per applicability may be allowed.” G (emphasis supplied)

57Copy pinpoint57. Under Regulation 24.2, the following stipulations have been provided for Group Housing: (II) Maximum permissible-

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SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1023 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(i) Ground coverage 35 per cent to 40000 sq. A mtrs and 40% above 40000 sq. mtrs (ii) Floor Area Ratio 2.75 (iii) Height No limit. For buildings above 30 metres in height, clearance from Airport Authority shall have to be taken. (iv) Density (Family size 4.5) As mentioned in the sector Layout Plan or decided by the Authority for a particular scheme. Table No 2 of the NBR 2010 prescribes the set-back requirement in relation to Regulation 24. For all plots measuring above 40,000 sq. mtrs., the set-backs in the front are 16 mtrs. and at the rear and on the sides are 12 mtrs.

58Copy pinpoint58. Regulation 24.2.1(1)(vi) provides that a distance of 6 mtrs. is to be left open for fire tenders. The said regulation is extracted below: “The following features shall be permitted after leaving minimum E 6 mtrs. open corridor for fire tenders. (a) Meter room as per norms of Electricity Authority. (b) Open transformers without any permanent enclosure keeping in view the necessary safety requirements. (c) Other features as mentioned in Table 3. F

(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. G (e) Any other feature, primarily ornamental in nature, not enclosing or covering space of commercial use may be permitted by the Chief Executive Officer on case to case basis. (f) Open generator set, filtration plant, Electrical distribution equipment, feeder pillars, telephone distribution equipments may H

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A be permitted in open setback as a service utility provided after leaving clear space for fire tender.” With respect to the distance between two adjacent building blocks, Regulation 24.2.1.6 provides: “Distance between two adjacent building blocks B Distance between two adjacent building blocks shall be minimum 6 mtrs. to 16 mtrs. depending on the height of blocks. For building height up to 18 mtrs, the spacing shall be 6 mtrs and thereafter the spacing shall be increased by 1 metre for every addition of 3 mtrs in height of building subject to a maximum spacing of 16 mtrs as C per National Building Code – 2005. If the blocks have dead-end sides facing each other, th[e]n the spacing shall be maximum 9 mtrs. instead of 16 mtrs. Moreover, the allottee may provide or propose more than 16 mtrs. space between two blocks.”

59Copy pinpoint59. The above regulation indicates that: D (i) The distance between two “adjacent building blocks” is to be a minimum of 6 mtrs. going up to 16 mtrs., depending upon the height of the blocks; (ii) For a building height upto 18 mtrs., the spacing would be 6 mtrs., to be increased by 1 mtr. for every addition of 3 mtrs. to E the height of the building (subject to a maximum spacing of 16 mtrs. under the NBC 2005); (iii) If the blocks have dead-end sides facing each other, the spacing shall be a maximum of 9 mtrs. instead of 16 mtrs.; and F (iv) The allottee may, however, propose more than a 16 mtrs. space between two blocks.

60Copy pinpoint60. Regulation 24.2.1.6 of NBR 2010 refers to the NBC 2005 for the minimum distance requirement. The NBC 2005 contains the following stipulations in para 8.2.3.1: G “8.2.3.1 For buildings of height above 10 m, the open spaces (side and rear) shall be as given in Table 2. The front open spaces for increasing heights of buildings shall be governed by 9.4.1(a).

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SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1025 WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

Table 2 Side and Rear Open Spaces for Different Heights A of Buildings (Clause 8.2.3.1)

B

C

D

E

F

NOTES

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

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

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