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

- **Citation:** [2021] 13 S.C.R. 976
- **Court:** Supreme Court of India
- **Decided:** 2021-08-31
- **Case number:** Civil Appeal No. 5041 of 2021
- **Bench:** Dr Dhananjaya Y Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supertech-limited-v-emerald-court-owner-resident-welfare-association-ors-35307
- **Pages:** 120

## Headnote

National Building Regulations, 2006 - Regulation 33.2.3 -
National Building Code 2005 - UP Apartment Act 2010 - ss. 4(1),
4(4), 5 - Adherence to minimum distance requirement between
buildings - Collusion and illegal construction - Demolition of two
towers - NOIDA allotted to the appellant a plot of land for the
development of a group housing society and sanctioned the building
plan for the construction of fourteen towers, each with ground and
nine floors (G+9) - On 05.12.2006, the New Okhla Industrial
Development Area Building Regulations and Directions (NBR 2006)
were notified - On 29.12.2006, NOIDA sanctioned the first revised
plan by which additional buildings were also sanctioned and two
additional floors were envisaged in addition to already sanctioned
(G+9) - Additional buildings were sanctioned, namely (i) Tower-15
(G+11), (ii) Tower-16 (G+11) and (iii) a shopping complex - In the
second revised plan, the earlier T-16 (G+11) was replaced with a
T-16 (G+24) and similarly, the shopping complex was replaced with
T-17 (G+24) - T-16 and T-17 would each be of a height of 73 mtrs
and according to the plan, T-17 was to be at a distance of 9 mtrs.
from T-1 - In the third revised plan, the height of T-16 and T-17 was
permitted to be raised from 24 floors to 40 floors (i.e., G+40),
resulting in the building's height being 121 mtrs. - The first
respondent addressed a communication to NOIDA complaining of
violations - Thereafter, first respondent filed a writ petition in the
High Court and sought quashing of revised plan of disputed towers
and also prayed that the illegal structure be demolished - The High
Court allowed the writ petition and directed the demolition of T-16
and T-17, with the expenses of the demolition being borne by the
appellant and to refund the consideration received from flat
purchasers who had booked apartments - It further directed the
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Competent Authority to grant sanction for the prosecution of NOIDA's
officials - On appeal, held: The National Building Construction
Corporation Limited (NBCC) concluded that the said two towers
are not compliant with Regulation 24.2.1.6 of the NBR 2010 - The
purpose of stipulating a minimum distance between buildings 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 - As
per Regulation 33.2.3 of the NBR 2006, the minimum distance
between T-17 and T-1, should be half of the height of the tallest
building, that is, half of the height of T-17 which is 36.5 mtrs - It is
evident from the record that the distance between T-1 and T-17 is 9
mtrs. only, thus, clearly the second revised plan was violative of the
NBR 2006 - In the third revised plan the height of T-16 and T-17
was increased to 121 mtrs. - In accordance with Regulation 24.2.1.6
of NBR 2010, the spacing between a building of height 121 mtrs.
and another building would be 16 mtrs. however, the distance
between disputed towers was 9 mtrs. - Consequently, the third
revised plan was in violation of NBR 2010 - The construction of
T-16 and T-17 in accordance with the second revised plan and the
third revised plan reduced the value of the undivided interest held
by each individual flat owner in the common areas and facilities,
thereby violating s.5 of the UP 1975 Act and s.5 of the UP Apartments
Act 2010, since the flat owners' consent was not sought - Further,
the third revised plan encroached upon the garden area in front of
T-1, thereby resiling from the representation that was made to the
flat owners at the time when they purchased the apartments in T-1,
without their consent - Therefore, it constituted a violation of s.4(1)
r/w. the proviso to s.4(4) of the UP Apartments Act 2010 - The case
has revealed a nefarious complicity of the planning authority in the
violation by the developer of the provisions of law - NOIDA made
no effort to

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SUPREME COURT REPORTS
[2021] 13 S.C.R.
SUPERTECH LIMITED
v.
EMERALD COURT OWNER RESIDENT WELFARE
ASSOCIATION & ORS.
(Civil Appeal No. 5041 of 2021)
AUGUST 31, 2021
[DR DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
National Building Regulations, 2006 - Regulation 33.2.3 -
National Building Code 2005 - UP Apartment Act 2010 - ss. 4(1),
4(4), 5 - Adherence to minimum distance requirement between
buildings - Collusion and illegal construction - Demolition of two
towers - NOIDA allotted to the appellant a plot of land for the
development of a group housing society and sanctioned the building
plan for the construction of fourteen towers, each with ground and
nine floors (G+9) - On 05.12.2006, the New Okhla Industrial
Development Area Building Regulations and Directions (NBR 2006)
were notified - On 29.12.2006, NOIDA sanctioned the first revised
plan by which additional buildings were also sanctioned and two
additional floors were envisaged in addition to already sanctioned
(G+9) - Additional buildings were sanctioned, namely (i) Tower-15
(G+11), (ii) Tower-16 (G+11) and (iii) a shopping complex - In the
second revised plan, the earlier T-16 (G+11) was replaced with a
T-16 (G+24) and similarly, the shopping complex was replaced with
T-17 (G+24) - T-16 and T-17 would each be of a height of 73 mtrs
and according to the plan, T-17 was to be at a distance of 9 mtrs.
from T-1 - In the third revised plan, the height of T-16 and T-17 was
permitted to be raised from 24 floors to 40 floors (i.e., G+40),
resulting in the building's height being 121 mtrs. - The first
respondent addressed a communication to NOIDA complaining of
violations - Thereafter, first respondent filed a writ petition in the
High Court and sought quashing of revised plan of disputed towers
and also prayed that the illegal structure be demolished - The High
Court allowed the writ petition and directed the demolition of T-16
and T-17, with the expenses of the demolition being borne by the
appellant and to refund the consideration received from flat
purchasers who had booked apartments - It further directed the
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Competent Authority to grant sanction for the prosecution of NOIDA's
officials - On appeal, held: The National Building Construction
Corporation Limited (NBCC) concluded that the said two towers
are not compliant with Regulation 24.2.1.6 of the NBR 2010 - The
purpose of stipulating a minimum distance between buildings 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 - As
per Regulation 33.2.3 of the NBR 2006, the minimum distance
between T-17 and T-1, should be half of the height of the tallest
building, that is, half of the height of T-17 which is 36.5 mtrs - It is
evident from the record that the distance between T-1 and T-17 is 9
mtrs. only, thus, clearly the second revised plan was violative of the
NBR 2006 - In the third revised plan the height of T-16 and T-17
was increased to 121 mtrs. - In accordance with Regulation 24.2.1.6
of NBR 2010, the spacing between a building of height 121 mtrs.
and another building would be 16 mtrs. however, the distance
between disputed towers was 9 mtrs. - Consequently, the third
revised plan was in violation of NBR 2010 - The construction of
T-16 and T-17 in accordance with the second revised plan and the
third revised plan reduced the value of the undivided interest held
by each individual flat owner in the common areas and facilities,
thereby violating s.5 of the UP 1975 Act and s.5 of the UP Apartments
Act 2010, since the flat owners' consent was not sought - Further,
the third revised plan encroached upon the garden area in front of
T-1, thereby resiling from the representation that was made to the
flat owners at the time when they purchased the apartments in T-1,
without their consent - Therefore, it constituted a violation of s.4(1)
r/w. the proviso to s.4(4) of the UP Apartments Act 2010 - The case
has revealed a nefarious complicity of the planning authority in the
violation by the developer of the provisions of law - NOIDA made
no effort to ensure compliance of the UP Apartments Act 2010, as a
result of which the rights of the flat purchasers was brazenly violated
- The illegal construction of T-16 and T-17 was achieved through
acts of collusion between the officers of NOIDA and the appellant
and its management - The High Court has correctly come to the
conclusion that there was collusion between the developer and the
planning authority - Therefore, the directions of the High Court
including the order of demolition and for sanctioning prosecution
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WELFARE ASSOCIATION
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against the officials of the appellant and the officers of NOIDA for
violations of the UPIAD Act 1976 and UP Apartments Act 2010 is
confirmed - National Building Regulations 2010 - Regulation
24.2.1.6 - Uttar Pradesh Industrial Area Development Act, 1976 -
sec. 12 - Uttar Pradesh Urban Development Act, 1973 - sec. 49 -
Uttar Pradesh Ownership of Flats Act 1975 - ss. 3(d), 5.
Disposing of the appeals, the Court
HELD: 1. 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. In the first revised plan of
29 December 2006, T-16 was to partially comprise of G+11, the
rest being G+4. A shopping complex was envisaged comprising
of G+1 floors. A triangular green area is indicated in the first
revised plan of 29 December 2006 in front of T-1. In the second
revised plan of 26 November 2009, T-17 (Apex) and T-16
(Ceyane) came to be envisaged with twenty-four floors and of a
height of 73 mtrs. each. In the third revised plan of 2 March
2012, the number of floors of T-16 and 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. [Para 47][1019-F-H; 1020-A-B]
2. A brazen attempt at stonewalling the first respondent
was made by the appellant and NOIDA before the High Court.
The sanctioned plans incorporate the condition that a copy of
each plan would be made available at the site. Despite this, when
the first respondent sought copies of the sanctioned plans and
other information, NOIDA wrote to the appellant asking for their
consent to provide the plans to the first respondent. When the
appellant refused, NOIDA's refusal to the RWA followed suit. It
was only pursuant to the interim directions of the High Court
that the sanctioned plans and documents were provided to the
first respondent. The reliefs which have been sought encompass
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a challenge to the validity of the second and third revised plans,
under which the two towers, T- 17 (Apex) and T-16 (Ceyane),
were being constructed. [Para 48][1020-C-E]
Violation of distance requirement under Building
Regulations
3. The first issue 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.
[Para 49][1020-E-F]
4. Regulations 33.2.3 of the NBR 2006 refers to the
distances between adjacent 'building blocks' which shall not be
less than half of the height of the tallest building. The purpose of
this regulation is not to apply it only as between building blocks
as distinguished from buildings within a block. Clause (1) of
Regulation 33.2.3 has used the expression 'building blocks' and
'height of tallest building' in the same sentence. These
expressions must be given a meaning which accords with common
sense and in furtherance with the object and the purpose of the
said Regulation. The plain meaning of the expression is that when
there are two adjacent blocks, the height of the tallest building
will determine the distance required to be observed, with the
distance being not less than half the height of the tallest building.
Consequently, when two or more buildings exist in proximity
together, they comprise of a building block within the meaning of
Clause (1) of Regulation 33.2.3. In such an eventuality, the
distance between each of the buildings comprised in the block
shall also not be less than half of the height of the tallest building.
The reference to the height of the tallest building is evidently
made because this kind of a building will likely overshadow the
buildings of a lesser height in a cluster of proximate construction.
Therefore, the regulation has defined the minimum distance
required with reference to half the height of the tallest building.
Any other construction will defeat the purpose of Regulation
33.2.3 and cannot be accepted. [Para 68][1033-D-H]
5. Applying the NBR 2006 to the facts of the present case,
the construction of T- 16 and T-17 was envisaged in the second
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WELFARE ASSOCIATION
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revised plan dated 26 November 2009. The height of the said
towers was to be 73 mtrs., while the height of other towers,
including T-1, was to be 37 mtrs. Thus, as per Regulation 33.2.3
of the NBR 2006, the minimum distance between T-17 and T-1,
should be half of the height of the tallest building, that is, half of
the height of T-17 which is 36.5 mtrs. It is evident from the record
that the distance between T-1 and T-17 is 9 mtrs. only. Thus,
clearly the second revised plan was violative of the NBR 2006.
[Para 69][1034-A-B]
6. Now, coming to the NBR 2010. Regulation 24.2.1(6) has
prescribed the requirement of maintaining varying distances
between two adjacent blocks from a minimum of 6 mtrs. extending
up to 16 mtrs., depending on the height of blocks. The content to
the first sentence of this regulation is further amplified by what
follows it. The next part of the regulation stipulates that for a
building of height up to 18 mtrs., "spacing" shall be 6 mtrs. The
expression "spacing" in its plain terms means the observance of
a stipulated distance. Where the height of the building is up to 18
mtrs., "the spacing" shall be 6 mtrs. Thereafter, for a height above
18 mtrs., the minimum distance has to be increased by one meter
for an additional height of three mtrs. subject to a maximum
distance or spacing of 16 mtrs. "as per National Building Code -
2005". [Para 70][1034-C-E]
7. NOIDA, before it granted sanction for enhancing the
height of T-16 and T-17 from G+24 to G+40 (or 39, as the case
may be), was duty bound to apply its mind to whether there was a
compliance with the provisions of Regulation 24.2.1.6. The third
revised plan which was sanctioned on 2 March 2012 has evidently
glossed over the clear deficiency of open space with reference to
the NBR 2010, the consequence of which would have been to
reject the proposal for a further increase in the height of the
towers from twenty-four floors to forty floors. Yet NOIDA has
chosen to lend its support to the appellant in clear defiance of
the provisions of law. [Para 73][1035-G-H; 1036-A]
8. The only reasonable hypothesis which emerges from the
disclosures made is that the argument which was sought to be
advanced - that Towers 1, 16 and 17 are part of a cluster of
buildings comprised within a block, thus obviating the need to
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maintain the minimum distance between them - is an
afterthought. It is contrary to the stated position which has been
adopted by the appellant in its affidavit before the High Court.
The record before this Court also indicates that the appellant
has taken liberties with the truth in making the submission that a
cluster of towers in the project constitutes a block which allows
the appellant to subvert the minimum distance requirement. [Para
82][1043-F-G]
9. Significantly, it must be noted that the second revised
plan of 2009, which has been placed on record, does not show
the existence of blocks and is duly endorsed by NOIDA. Similarly,
the third revised plan of 2012, which is also on the record, does
not embody any description of blocks. Therefore, this Court is in
no manner of doubt that the argument sought to be developed in
the course of these proceedings that there were separate blocks
in the plan is an afterthought. It is contrary to the stated position
which has been adopted by the appellant on affidavit before the
High Court. It is contrary to the sanctioned plans. What is worse
is that an effort was made to place on the record before the High
Court a purported plan of dubious origin by seeking to pass it of
as the second revised plan of 2009. [Para 86][1046-C-D]
Interpretation of "dead end sides of buildings"
10. The interpretation of the expression 'dead end side of
the building', the sides of T-1 and T-17 facing each other are held
not to be dead end sides for the following reasons:
(i) The windows/corridors of T-17 on all floors except the
ground floor have an opening on the side that faces T-1. Though
this is contested by the appellant, it has been conceded that there
are at least a few windows/balconies in T-1 facing T-17 and vice
versa;
(ii) The entries of T-1 and T-17 do not face each other but
are perpendicular to each other. However, the entry to T-1 is
from the side facing T-17;
(iii) Four out of five external sides of T-1 that face T-17 are
dead end sides.
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However, the fifth side is a balcony of the living room facing
T-17. The distance between points of the buildings cannot be
selectively measured to argue its compliance with the distance
rule; and
(iv) Even though the entry of T-1 facing T-17 is 20 mtrs.
away, the distance rule is not complied with since a selective
measurement from the dead end points cannot be undertaken.
The distance must be measured along the ground.
Thus, we find that the revised plans were in violation of
NBR 2010 and do not fall under the exception provided in
Regulation 24.2.1.6 for blocks having dead end sides. [Para
111][1059-E-H; 1060-A-B]
Violation of NBC 2005
11. According to the NBC 2005, the spacing between T-1
and T-17 should be 20.45 mtrs. Evidently then, the second and
third revised plans were not in accordance with the NBC 2005.
This conclusion is fortified by the report of the NBCC, which in
para 5 reaches the conclusion that the minimum open space
around T-17 is to be 20.45 mtrs. and thus, the distance between
T-1 and T-17 does not comply with para 8.2.3.1 of the NBC 2005.
[Para 112][1061-B-C]
Violation of Fire Safety Norms
12. Regulation 76 of NBR 2006 states that the building must
be planned and constructed in accordance with Part IV of National
Building Code 1970, amended as of that day. Para 4.6 of NBC
2005 states that the approach to the building and the open spaces
on all the sides of a high rise building shall be 6 mtrs. and that the
layout of the building must be made in consultation with the CFO.
However, para 8.2.3.1 of NBC 2005 prescribes a minimum of 16
mtrs. side and rear spaces for buildings that are higher than 55
mtrs. Therefore, on reading NBC 2005 as a whole, the side and
rear space around the building must be 16 mtrs. The distance
between T-1 and T-17 is only 9 mtrs., which is less than the
required 16 mtrs. Given that the rear distance requirement under
NBC 2005 has not been complied with, the NOC given by the
CFO stands automatically cancelled. [Paras 119-120][1063-B-D]
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Consent of the RWA
13. Having held above that the sanction for the construction
of T-16 and T-17 were given by NOIDA in contravention of the
minimum distance requirement provided by the Building
Regulations, we will advert to the next issue. It has been
contended by RWA that the sanction could not have been revised
without the consent of the flat purchasers in the original fifteen
towers. While analyzing this issue, it is first important to consider
the appellant's preliminary objection that the UP 1975 Act is not
applicable to the present case. After addressing the preliminary
objection, this Court shall analyze whether the consent was
actually required under the UP 1975 Act and UP Apartments Act
2010. [Para 121][1063-E-G]
Applicability of UP 1975 Act
14. Under sub-Section (2) of Section 5, the percentage of
the undivided interest of each owner of a flat in the common areas
and facilities, as expressed in the Declaration, shall not be altered
without the consent of all the owners of the flats expressed
through an amended Declaration which shall be executed and
registered under the Act. [Para 124][1065-C-D]
15. The submission urged on behalf of the appellant is that
the UP 1975 Act has no application to the present case, in view of
the provisions of Section 2. In the backdrop of this provision,
more particularly, clause II(h) of the lease deed which was
executed by NOIDA in favour of the appellant on 16 March 2005,
the appellant was duty bound to comply with the provisions of
the UP 1975 Act. By submitting before this Court that it is not
bound by the terms of its agreement or the Act for want of a
declaration under Section 2, the appellant is evidently attempting
to take advantage of its own wrong. [Paras 125 and 129][1067-B;
1068-E-F]
Applicability of the UP Apartments Act 2010
16. It is important to clarify that the UP Apartments Act
2010 will not apply with retrospective effect to the second revised
plan, which was sanctioned on 26 November 2009. However, the
legislation, which came into force upon publication in the UP
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WELFARE ASSOCIATION
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Gazette on 19 March 2010, will have consequences for the third
revised plan sanctioned on 2 March 2012. [Para 136][1073-B-C]
Requirement of RWA's Consent
17. Finally, the appellant has also tried to argue that: (i) the
consent of each individual flat owner could not be taken and it
had to be taken from the RWA, as a collective body; (ii) the RWA
only came into existence on 20 October 2013, when it adopted
the Model Bye-Laws under the UP Apartments Act 2010l (iii)
that this was after the third revised plan was sanctioned; and (iv)
hence, there existed no association to take consent from. The
High Court had dealt with this argument. It is clear that: (i) the
RWA came into existence in 2009 itself, when the first lot of
apartment owners moved in; (ii) the appellant was communicating
with the RWA ever since; and (iii) the RWA adopted the Model
Bye-Laws under the UP Apartments Act 2010, as soon as it was
practicable. These averments have not been challenged before
this Court during the oral submissions by the appellant, and hence,
it will be held bound by its own conduct. In any case, rights under
the UP 1975 Act and UP Apartments Act 2010 have been provided
to individual flat owners, and not to collective bodies like the
RWA. Hence, even the non-constitution of the RWA will not
extinguish the rights of individual flat owners. Indeed, however,
when such RWAs do exist, developers may use them to seek a
common consent from all the flat owners instead of approaching
them all individually. [Para 142][1076-C-D; 1077-B-C]
Collusion and Illegal Construction
18. The record of this case is replete with instances which
highlight the collusion between the officers of NOIDA with the
appellant and its management. The case has revealed a nefarious
complicity of the planning authority in the violation by the
developer of the provisions of law. The complicity of NOIDA has
emerged, inter alia, from the following instances:
(i) The sanctioning of the second revised plan on 26
November 2009 in clear breach of the NBR 2006;
(ii) The refusal by NOIDA to disclose the building plans to
the first respondent, in spite of a clear stipulation consistently in
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all the sanctioned plans that the plan would have to be displayed
at the construction site of the appellant;
(iii) NOIDA's referral of RWA's request to access the
sanctioned plans to the appellant to seek its consent and upon
the refusal of the latter, a continuous failure to disclose them to
the RWA;
(iv) Even when the CFO addressed a communication to
NOIDA in regard to the violation of the minimum distance
requirements in Emerald Court, it evinced no response and no
investigation from them;
(v) In pursuance of the second revised plan of 26 September
2009, the appellant would appear to have built a foundation to
support two buildings of forty and thirty-nine floors, while the
sanction for the extension from twenty-four to forty or thirty-nine
floors came about only on 2 March 2012 through the third revised
plan; and
(vi) The construction for T-16 and T-17 commenced in July
2009 by the appellant, five months before the sanction was
received for the second revised plan on 26 November 2009, in
spite of which NOIDA chose to take no action. [Para 143][1077D-H; 1078-A-C]
19. The judgments of this Court spanning the last four
decades emphasize the duty of planning bodies, while sanctioning
building plans and enforcing building regulations and bye-laws to
conform to the norms by which they are governed. A breach by
the planning authority of its obligation to ensure compliance with
building regulations is actionable at the instance of residents
whose rights are infringed by the violation of law. Their quality of
life is directly affected by the failure of the planning authority to
enforce compliance. Unfortunately, the diverse and unseen group
of flat buyers suffers the impact of the unholy nexus between
builders and planners. Their quality of life is affected the most.
Yet, confronted with the economic might of developers and the
might of legal authority wielded by planning bodies, the few who
raise their voices have to pursue a long and expensive battle for
rights with little certainty of outcomes. As this case demonstrates,
they are denied access to information and are victims of
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misinformation. Hence, the law must step in to protect their
legitimate concerns. [Para 148][1079-E-G]
20. In the present case, once this Court has determined
that the sanctioned plan for Apex and Ceyane (T-16 and T-17)
breached the NBR 2006, NBR 2010, NBC 2005, UP 1975 Act
and the UP Apartments Act 2010, it becomes its duty to take
stock of the violations committed by the appellant in collusion
with NOIDA. The appellant has raised false pleas and attempted
to mislead this Court, while the officials of NOIDA have not acted
bona fide in the discharge of their duties. The appellant has
stooped to the point of producing a fabricated sanctioned plan.
Therefore, the directions of the High Court including the order
of demolition and for sanctioning prosecution under Section 49
of the UPUD Act, as incorporated by Section 12 of the UPIAD
Act 1976, against the officials of the appellant and the officers of
NOIDA for violations of the UPIAD Act 1976 and UP Apartments
Act 2010 is confirmed. [Para 155][1084-C-E]
Conclusion
21. To summarize findings, the documentary materials
referred to and analyzed in this judgment indicate that:
(i) The land allotted to appellant under the original lease
agreement and the supplementary lease deed constitute one plot;
(ii) The land which was allotted through the supplementary
lease deed forms a part of original Plot No 4, and would be
governed by the same terms and conditions as the original lease
deed;
 (iii) The sanction given by NOIDA on 26 November 2009
and 2 March 2012 for the construction of T-16 and T-17 is violative
of the minimum distance requirement under the NBR 2006, NBR
2010 and NBC 2005;
(iv) An effort was made to get around the violation of the
minimum distance requirement by representing that T-1 together
with T-16 and T-17 form one cluster of buildings in the same
block. This representation was sought to be bolstered by
providing a space frame between T-1 and T-17. The case that
T-1, T-16 and T-17 are part of one block is directly contrary to
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the appellant's stated position in its representations to the flat
buyers as well as in the counter affidavit before the High Court.
The suggestion that T-1, T-16 and T-17 are part of one block is
an after-thought and contrary to the record;
(v) After realizing that the building block argument would
not pass muster, another false case was sought to be set up with
the argument that T-1 and T-17 are dead end sides, thereby
obviating the need to comply with the minimum distance
requirements. This argument is belied by the comprehensive
report submitted by NBCC. The sides of T-1 and T-17 facing
each other are not dead end sides since both the sides have vents/
egresses facing the other building;
(vi) By constructing T-16 and T-17 without complying with
the Building Regulations, the fire safety norms have also been
violated;
(vii) The first revised plan of 29 December 2006 contained
a clear provision for a garden area adjacent to T-1. In the second
revised plan of 26 November 2009, the provision for garden area
was obliterated to make way for the construction of Apex and
Ceyane (T- 16 and T - 17). The common garden area in front of
T-1 was eliminated by the construction of T-16 and T-17. This is
violative of the UP Apartments Act 2010 since the consent of the
flat owners was not sought before modifying the plan promised
to the flat owners; and
(viii) T-16 and T-17 are not part of a separate and distinct
phase (Phase-II) with separate amenities and infrastructure. The
supplementary lease deed stipulates that the they are part of the
original project. Hence, the consent of the individual flat owners
of the original fifteen towers, individually or through the RWA,
was a necessary requirement under the UP Apartments Act 2010
and UP 1975 Act before T-16 and T-17 could have been
constructed, since they necessarily reduced the undivided
interest of the individual flat owners in the common area by adding
new flats and increasing the number from 650 to 1500; and The
illegal construction of T-16 and T-17 has been achieved through
acts of collusion between the officers of NOIDA and the appellant
and its management. [Para 156][1084-F-G; 1085-A-H; 1086-AC]
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT
WELFARE ASSOCIATION
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[2021] 13 S.C.R.
22. For the reasons indicated above, this Court has come
to the conclusion that:
(i) The order passed by the High Court for the demolition
of Apex and Ceyane (T-16 and T-17) does not warrant interference
and the direction for demolition issued by the High Court is
affirmed;
(ii) The work of demolition shall be carried out within a
period of three months from the date of this judgment;
(iii) The work of demolition shall be carried out by the
appellant at its own cost under the supervision of the officials of
NOIDA. In order to ensure that the work of demolition is carried
out in a safe manner without affecting the existing pleadings,
NOIDA shall consult its own experts and experts from Central
Building Research Institute Roorkee;
(iv) The work of demolition shall be carried out under the
overall supervision of CBRI. In the event that CBRI expresses
its inability to do so, another expert agency shall be nominated
by NOIDA;
(v) The cost of demolition and all incidental expenses
including the fees payable to the experts shall be borne by the
appellant;
(vi) The appellant shall within a period of two months refund
to all existing flat purchasers in Apex and Ceyane (T-16 and T -
17), other than those to whom refunds have already been made,
all the amounts invested for the allotted flats together with
interest at the rate of twelve per cent per annum payable with
effect from the date of the respective deposits until the date of
refund in terms of Part H of this judgment; and
(vii) The appellant shall pay to the RWA costs quantified at
Rs 2 crore, to be paid in one month from the receipt of this
judgment. [Para 157][1086-C-H; 1087-A-B]
K. Ramadas Shenoy v. Chief Officer, Town Municipal
Council (1974) 2 SCC 506 : [1975] 1 SCR 680; Dr
G.N. Khajuria v. Delhi Development Authority (1995) 5
SCC 762 : [1995] 3 Suppl SCR 212; Friends Colony
Development Committee v. State of Orissa (2004) 8 SCC
A
B
C
D
E
F
G
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989
733 : [2004] 5 Suppl. SCR 818; Priyanka Estates
International (P) Ltd. v. State of Assam (2010) 2 SCC
27 : [2009] 16 SCR 80; Esha Ekta Apartments Coop.
Housing Society Ltd. v. Municipal Corpn. of Mumbai
(2013) 5 SCC 357 : [2013] 4 SCR 478 - relied on.
Kerala State Coastal Zone Management Authority v.
State of Kerala (2019) 7 SCC 248; Kerala State Coastal
Zone Management Authority v. Maradu Municipality,
Maradu 2018 SCC OnLine SC 3352; Bikram Chatterji
v. Union of India (2019) 19 SCC 161 - referred to.
Case Law Reference
[1975] 1 SCR 680
relied on
Para 149
[1995] 3 Suppl. SCR 212
relied on
Para 150
[2004] 5 Suppl. SCR 818
relied on
Para 151
[2009] 16 SCR 80
relied on
Para 152
[2013] 4 SCR 478
relied on
Para 153
(2019) 7 SCC 248
referred to
Para 154
(2019) 19 SCC 161
referred to
Para 154
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5041
of 2021.
From the Judgment and Order dated 11.04.2014 of the High Court
of Judicature at Allahabad in Writ Petition (Civil) No. 65085 of 2012.
With
Civil Appeal Nos. 5042, 5043, 5044, 5045, 5046, 5047, 5048, 5049,
5050 of 2021, Contempt Petition (C) No. 380 of 2021 in SLP (C) No.
14314 of 2014, Contempt Petition (C) No. 381 of 2021 in SLP (C) No.
14314 of 2014, Contempt Petition (C) No. 382 of 2021 in SLP (C) No.
14314 of 2014, Contempt Petition (C) No. 383 of 2021 in SLP (C) No.
14314 of 2014 and Contempt Petition (C) No. 384 of 2021 in SLP (C)
No. 14314 of 2014.
Vikramjit Banerjee, ASG, Vikas Singh, Ms. Meenakshi Arora,
Jayant Bhushan, Raviondra Kumar Raizada, Sr. Advs., R. Chandrachud,
Rajnish Singh, Kapish Seth, Ms. Deepika Kalia, Sandeep Rana,
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT
WELFARE ASSOCIATION
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SUPREME COURT REPORTS
[2021] 13 S.C.R.
Ms. Tanya Kalra, Anurag Dubey, Sarvendra Singh, S.R. Setia, T.V.S.
Raghavendra Sreyas, Ms. Gayatri Gulati, Siddharth Vasudev, Ms. Mahima
Gupta, Ravindra Kumar, Somiran Sharma, M. Shoeb Alam, Faisal
Sherwani, Shantanu Krishna, Shubham Saigal, Ashish Rana, Gaurav
Agrawal, Abraham Mathew, Nishe Rajen Shonker, Mullapudi Rambabu,
S.A. Haseeb, M.K. Maroria, Ms. Aakansha Kaul, Digvijay Dam, Umang
Shankar, Rajeev Singh, Ms. Pinky Behera, Mrs. Bina Gupta, Vishwa
Pal Singh, Anish Agarwal, Ms. Vanshika Gupta, Kunal Ravi, Ketan Paul,
Tushar Bhushan, Amartya Bhushan, Gaurav Kejriwal, Ravi Prakash
Mehrotra, Milind Kumar, Bhakti Vardhan Singh, Rajeev Kumar Dubey,
Saurav Singh Chauhan, Ashiwan Mishra, Kamlendra Mishra, Tarun
Gupta, Ms. Prachi Mishra, Chaitanya Bansal, Arjun Garg, M.C. Dhingra,
Ms. Trishala Trivedi, Ajay Bhargava, Ms. Vanita Bhargava, Ms. Maithili
Moondra, M/s Khaitan & Co., J.B. Mudgil, Ms. Sweta Rani, Sumeet
Agarwal, Abhijeet Sinha, Ms. Dania Nayyar, Krishnamohan K.,
M/s Unuc Legal Llp, Ms. Aparna Bhat, Sumit R. Sharma, Gopal Jha,
P.S. Gosain, Shreyash Bhardwaj, Nishant Verma, Mohammed Sadique
T.A., Nitish Massey, Advs. for the appearing parties.
Intervenor-in-person.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
INDEX
A Factual and procedural history
A.1 The appeals
A.2 The Emerald Court project
A.3 First Revised Plan
A.4 Second Revised Plan
A.5 Third Revised Plan
A.6 Complaints against the Revised Plans
A.7 Proceedings before the Allahabad High Court
A.8 Proceedings before this Court
B Submissions by Counsel
C Prefatory observations
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D Violation of distance requirement under Building
Regulations
D.1 Violation of NBR 2006 and 2010
D.1.1 Interpretation of "building blocks"
D.1.2 Interpretation of "dead end sides of buildings"
D.2 Violation of NBC 2005
D.3 Violation of Fire Safety Norms
E Consent of the RWA
E.1 Applicability of UP 1975 Act
E.2 Applicability of the UP Apartments Act 2010
E.3 Requirement of RWA's Consent
F Collusion and Illegal Construction
G Conclusion
H Interlocutory Applications
1. Leave granted.
A Factual and procedural history
A.1 The appeals
2. These appeals have arisen from a judgment of a Division Bench
of the High Court of Judicature at Allahabad dated 11 April 2014, upon a
writ petition1 instituted by the first respondent, the Residents' Welfare
Association2 of Emerald Court Group Housing Society3.
3. By its judgment, the High Court directed:
(i)
The demolition of Towers -164 and 175 by the third
respondent, New Okhla Industrial Development Authority6,
in Emerald Court situated on Plot No 4, Sector 93A, NOIDA
constructed by the appellant, Supertech Limited7;
1 Writ Petition (Civil) No 65085 of 2012
2 "RWA"
3 "Emerald Court"
4 "T-16"/"Ceyane"
5 "T-17"/"Apex"
6 "NOIDA"
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]
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[2021] 13 S.C.R.
(ii)
The cost of demolition and removal would be borne by the
appellant, failing which NOIDA shall recover it as arrears
of land revenue;
(iii)
Sanction for prosecution under Section 49 of the Uttar
Pradesh Urban Development Act 19738, as incorporated
by Section 12 of the Uttar Pradesh Industrial Area
Development Act 19769, shall be granted for the prosecution
of the officials of the appellant and the officers of NOIDA
for possible violations of the UPIAD Act 1976 and Uttar
Pradesh Apartment (Promotion of Construction, Ownership
& Maintenance) Act 201010; and
(iv)
Refund by the appellant of amounts invested by purchasers
who had booked apartments in T-16 and T-17, with interest
at fourteen per cent, compounded annually.
4. The correctness of these directions is challenged before this
Court in the present appeals.
A.2 The Emerald Court project
5. On 23 November 2004, NOIDA allotted to the appellant a plot
of land admeasuring 48,263 sq. mtrs., which was a part of Plot No 4
situated in Sector 93A. This plot of land was allotted for the development
of a group housing society, by the name of Emerald Court.
6. The first deed of lease was executed on 16 March 2005
between the appellant and NOIDA. A possession certificate was issued
on 17 March 2005.
7. On 20 June 2005, NOIDA sanctioned the building plan for the
construction of Emerald Court consisting of fourteen towers, each with
ground and nine floors (G+9). This sanction was granted under the New
Okhla Industrial Development Area Building Regulations and Directions
198611. The construction commenced for these fourteen towers.
A.3 First Revised Plan
7 "Supertech"
8 "UPUD Act 1973"
9 "UPIAD Act 1976"
10 "UP Apartments Act 2010"
11 "NBR 1986"
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8. On 21 June 2006, a supplementary lease deed was executed
by NOIDA in favour of the appellant for an additional land area of 6556.51
sq. mtrs. in the same plot of land in Plot No 4. Adding to the existing
holding allotted under the first lease deed, the total leased area allotted
to the appellant increased to 54,819.51 sq. mtrs. The supplementary
lease deed noted that:
(i) The demised premises shall be deemed to be part of Plot No
4, Sector 93A, NOIDA as already leased to the appellant;
(ii) All other conditions of the original lease deed and allotment
shall remain unchanged and would be applicable to the newly
demised premises, and bind the appellant;
(iii) The period of lease shall commence from 16 March 2005;
and
(iv) The total area of Plot No 4, Sector 93A, NOIDA is 54,819.51
sq. mtrs.
The possession certificate in respect of the additional land was
issued to the appellant on 23 June 2006.
9. On 5 December 2006, the New Okhla Industrial Development
Area Building Regulations and Directions 200612 were notified. Under
the NBR 2006, the Floor-Area-Ratio13 was increased from 1.5 to 2 for
new allottees after 2006. Regulation 33.2.3(i) provided as follows:
"33. 'Floor area ratio' Floor Area Ratio. Ground coverage and
height limitations.
[...]
33.2.3 Any other utilities as decided by Chief Executive Officer
depending on its requirement.
i. Distance between two adjacent building blocks shall not be less
than half of the height of the tallest building."
10. On 29 December 2006, NOIDA sanctioned the first revised
plan for Emerald Court under the NBR 2006, by which two additional
floors were envisaged in addition to the already sanctioned G+9 floors in
the original fourteen towers, thereby bringing all of them to ground and
eleven floors (G+11). Furthermore, additional buildings were also
12 "NBR 2006"
13 "FAR"
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]
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[2021] 13 S.C.R.
sanctioned, namely: (i) Tower-15 (comprising of ground and eleven floors
(G+11)); (ii) T-16 (comprising of a cluster of wings including 1 wing of
ground and eleven floors (G+11) and 3 wings of ground and four floors
(G+4)); and (iii) a shopping complex (comprising of ground and first
floor (G+1)). As a consequence, under the first revised plan, NOIDA
permitted a total of sixteen towers (G+11) (which would each be 37
mtrs. in height) and one shopping complex (G+1). It is important to note
that the appellant was able to have this additional construction due to the
area that was made available to it under the supplementary lease deed,
and further, when the appellant had allotted flats to the purchasers, only
a small building on the additional leased area was sanctioned. Pertinently,
it is also necessary to highlight that the first revised plan contemplated a
green area in front of Tower- 114. According to the purchasers, when
the flats were sold, the brochure of the appellant contained information
in accordance with the first revised plan dated 29 December 2006, which
shows the area in front of T-1 as a green area.
11. On 10 April 2008, a completion certificate was granted in
relation to the first eight towers (G+11). Thereafter, various owners of
flats were granted possession by the appellant. Crucially, the completion
map also indicated a green area in front of T-1, where currently T-16
and T-17 are being constructed.
A.4 Second Revised Plan
12. On 28 February 2009, a notification was issued by the State
of Uttar Pradesh enhancing the FAR from 2 (as provided under the
NBR 2006) to 2.75 for new allottees. Further, the notification also
provided for "purchasable FAR", according to which old allottees (such
as the appellant) could purchase FAR to the maximum extent of thirtythree per cent of their base existing FAR of 1.5.
13. On 3 July 2009, NOIDA decided that the stipulation to purchase
thirty-three per cent FAR of the existing base FAR for old allotees under
the notification dated 28 February 2009, should be brought at par with
other allotees. As a consequence, the purchasable FAR for old allotees
would be enhanced to 2.75. However, the notification by the State of
Uttar Pradesh in this regard was still awaited. The appellant states that,
in any case, based on the decision of NOIDA, it planned the construction
14 "T-1"/ "Aster 2"
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of T-16 and T-17 in a way that catered to the additional FAR which may
be available for purchase at a later date.
14. On 19 November 2009, relying on the notification dated
28 February 2009, the appellant purchased thirty-three per cent of its
existing base 1.5 FAR at the cost of Rs eight crores, increasing its available
FAR to 1.995.
15.