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

101. The appellant approached Design Forum International24, an architectural and design firm, requesting their assistance in the ongoing case. DFI through its report made the following observations on NBCC’s report regarding the dead end issue: (i) T-1 and T-17 vary in design. T-17 has nearly three times the length when compared to T-1. Moreover, the portion of T-17 that overlaps T-1 is not constant along the whole length. Therefore, it is necessary that the sides of the towers facing each other are examined in a more detailed manner; (ii) The entry of T-1 and T-17 is perpendicular to each other; (iii) The sides of T-1 and T-17 can be classified into the following three categories: (a) dead end facing dead end (i.e., a wall 24 “DFI” facing a wall); (b) dead end facing a non-dead end (i.e., a wall facing a window); and (c) non-dead end facing a non- dead end (i.e., a window facing a window); (iv) The position is clear under Regulation 24.2.1(6) of NBR 2010 that for cases falling under (a), the distance between the buildings must be 9 mtrs. and for cases falling under (c), the distance must be 16 mtrs. However, for cases that fall under (b), there is no clarity on the distance that must be maintained between the buildings; (v) There are thirteen unique line positions between T-1 and T-17. Of the thirteen line positions, in six line positions the dead end side of T-1 faces the dead end side of T-17 (Type (a)); in four line positions, the dead end side of T1/T-17 faces the non- dead end side of the other (Type (b)); in three line positions, the non-dead end side of T-1 and T-17 face each other (Type (c)); (vi) For the line positions falling under type (a), the distance varies from 9.88 mtrs. to 15.11 mtrs. complying with the 9 mtrs. requirement; for the line positions falling under type (b), the distance varies from 10.8 mtrs. to 15.3 mtrs.; for the line positions falling under type (c), the distance varies between 14.62 mtrs. to 15.5 mtrs., which is ‘very slightly lesser’ than the required 16 mtrs.; (vii) Since the distance between the sides of T-1 and T-17 facing each other differ widely and is not uniform, this Court will have to undertake an in depth analysis of the issue keeping in mind the unique situation; and (viii) The minute deficiency in case of type (c) and type (b) (if this Court declares the distance to be deficient) can be rectified by making structural alterations in the buildings by shifting the position of the egresses.

102. The NBR 2010 does not provide any definition of the phrase ‘the dead end side of the block.’ NBR 2006, NBC 2005 and the UPIAD Act 1976 also do not define the phrase. The Court while interpreting the expression will have to attribute a contextual meaning to the phrase ‘dead end side of the block’. The above reports adopt two different meanings of the phrase. The NBCC report and the appellant in its SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] objections before the NBCC state that the dead end sides of the building would mean where ‘habitable rooms’ of a building do not face each other. Though it is not specified that only habitable rooms with ‘windows/ balconies’ will not be considered as dead ends, it is evident that the argument is that it is only if a habitable room with egress faces the side of the adjacent building, that it should not be considered as a dead end side. The corollary is that if the store room or the bathroom or corridor with a window/vent faces the side of the adjacent building it must still be considered as a dead end. Whereas, the reports by IIT Delhi and IIT Roorkee take another approach by defining a dead end side of a building as a side with egress (i.e., windows, balconies or vents) without any reference to ‘habitable rooms’.

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

104. We are therefore faced with three questions while interpreting the phrase ‘dead end sides of the buildings’: (i) whether only habitable rooms with egress in any part of the building must be excluded from the ambit of the phrase ‘dead end sides of the buildings’; (ii) whether both sides of the buildings must be dead end sides, or whether it is sufficient if one side of the building is a dead end side; and (iii) whether the direct line position must be used for the determination of ‘dead end sides of the building’ and the distance between two adjacent buildings.

105. We are unable to accept the contention that only habitable rooms with egress (that is, windows or balconies) will fall outside the ambit of ‘dead end side of the buildings’. ‘Dead end’ in common parlance means no exit or absence of access. NBR 2010 does not provide any indication to classify between habitable and non-habitable rooms in the context of the phrase ‘dead end side’. The argument that the classification between habitable and non-habitable rooms has been made in the Model Bye-Laws with specific reference to the distance requirement and therefore, it must be imported for the interpretation of the phrase ‘dead end sides of the building’ is unsatisfactory. It is a settled principle of statutory interpretation that words must be given their plain and ordinary meaning unless such an interpretation leads to an ambiguity or absurdity or when the object of the statute indicates otherwise. The use of the phrase ‘dead end side of the building’ in NBR 2010, in spite of the other bye laws using the phrase ‘habitable rooms’, makes it evident that the intent was to restrict the ambit of the exception. Interpreting the phrase in the context of the ordinary meaning of the word ‘dead end’ does not lead to any ambiguity; rather it is in pursuance of the intent and purpose behind the provision. As stated by the reports submitted by IIT Delhi and IIT Roorkee, the purpose of prescribing a higher minimum distance between adjacent buildings in case the side of the building facing another has egress is so that the functional utility of the egress (either a window or balcony) is not diminished. Windows/balconies, irrespective of whether they are attached to a habitable or a non-habitable room, perform functions which will be greatly diminished if the adjacent building is closer and thereby restricting the air flow and increasing the chance of transmissibility in the event of a fire. Moreover, the privacy of the flat dwellers would be severely compromised. The expansion of the meaning of the phrase ‘dead end side of the building’ to include non-habitable rooms with windows would thus amount to rewriting the regulation, when no such indication can be construed from NBR 2006 or NBR 2010.

106. The contention that the dead end exception will be applicable, even if one side of the two adjacent buildings has a dead end is erroneous. Regulation 24.2.1(6) of NBR 2010 states “If the blocks have dead end sides facing each other, then the spacing shall be maximum 9 meters instead of 16 meters”. The words ‘blocks’ and ‘sides’ in the plural form find place in Regulation 24.2.1(6) of NBR 2010. The Regulation does not state ‘if the block having a dead end side’. When the phrases or words are free from ambiguity and when there is only one meaning that the phrase would take when fairly construed, it will have to be literally construed, and courts must not resort to a liberal interpretation which will defeat the intent, purpose and object of a provision in a planning regulation. SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

107. The report submitted by DFI refers to the variant heights of T-1 and T-17. The contention is that since the structure of T-1 and T-17 are different, and since the towers horizontally overlap with each other only to the extent of the height of the shorter tower (T-1), the distance between T-1 and T-17 must be measured in the direct line positions. These direct line positions are then classified into three categories (Category (a) – dead end facing dead end; Category (b) – dead end facing a non-dead end; Category (c) – a non-dead end facing a non- dead end). The distances between T-1 and T-17 with respect to each of these types have been measured to argue that for lines falling in category (a), it is enough if the distance is 9 mtrs; for those falling under category (b), there is no clarity on the distance required; and for lines in category (c), a minimum distance of 16 mtrs. is required. This argument rests on two premises: (i) the minimum distance requirement prescribed under Regulation 24.2.1(6) of NBR 2010 is not the distance between two buildings but is rather the distance between the different direct line positions between two adjacent buildings; and (ii) it is necessary for the entire adjacent blocks to have non-dead end sides facing each other for the 16 mtrs. distance rule to be applied uniformly.

108. The phrase which is used in Regulation 24.2.1(6) of NBR 2010 is ‘block’ and not ‘flat’/‘unit’. The unit of consideration is thus not individual ‘units’ in the block but the entire block itself. The side of the block would not be a dead end side if there are even few egresses. If the direct line position argument is accepted, then the intent behind providing the minimum distance requirement would become nugatory. The purpose of imposing the minimum distance requirement as stated in the reports of IIT Delhi and IIT Roorkee is to provide ventilation, direct sun light, means of rescue and prevent the spread of fire. If particular ‘flats’/‘units’ in the block have a vent according to the construction plan, the minimum distance would have to be complied with, not just with respect to the direct line but with respect to the ‘entire block’.

109. The reports of IIT Delhi and IIT Roorkee clearly elucidate the difficulty in evacuation of occupants in high rise buildings. The report states that the distance between adjacent buildings needs to be greater for taller buildings since the street has to be wider for the maximum safe inclination of the ladder. The reports also mention the reduction in ventilation, sunlight and privacy in case the distance between the buildings is less. Therefore, irrespective of whether all or some of the units in the block have an egress facing the adjacent building, the minimum distance of 16 mtrs. will have to be complied with, otherwise the purpose of providing the vent would be functionally compromised

110. In view of the above discussion, the principles that would guide the interpretation of the phrase ‘dead end sides of the blocks’ are as follows: (i) The phrase ‘dead end side of the block’ would mean that any building does not have an egress; (ii) An egress in a non-habitable room like the bathroom or the storeroom will be considered as a non-dead end side; (iii) For the ‘dead end’ exception to be applicable, it is necessary that the sides of both the buildings facing each other must not have any egress; (iv) It is not necessary that all the units in the building facing the other building must have an egress. Even if some of the units have an egress, that side of the block will not be considered as a ‘dead end side’; and (v) The minimum distance required between two adjacent blocks must not be measured through direct line positions of the units but along the ground.

111. On application of the principles deduced above on 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. However, the fifth side is a balcony of the living room facing T-17. The distance between points of the buildings SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] 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. D.2 Violation of NBC 2005

112. We shall now address the question of whether the third revised plans violated the NBC 2005. As we have seen above, NBC 2005 is referenced in Regulations 24.2.1.6 of the NBR 2010. NBC 2005 has two parts in regard to the maintenance of open spaces – para 8.2.3.1 and para 8.2.3.2. Para 8.2.3.1 provides for open spaces for buildings above the height of 10 mtrs., which are specified in Table 2. Table 2 indicates that the side and rear open spaces correspond to the height of the building and increase accordingly, beginning with 3 mtrs. for a building of a height of 10 mtrs. and up to 16 mtrs., where the height of the building is 55 mtrs. and above. In addition, Note 3 clarifies that where either the length and depth of the building exceeds 40 mtrs., the minimum distance which is prescribed must be further increased by ten percent of the length and depth of the building minus 4 mtrs. Thus, the calculation for the side and rear open spaces to be left around the building would be as follows: (third revision) (second revision) Height of the Building 84.5 m25 73 m Minimum distance prescribed in Col 3 of 16 m 16 m Table 22 (for buildings above 55 mtrs) Distance to be 25 The total actual length of T-17 as noted in the NBCC Report is 84.5 m as against the envisaged 121 m. maintained as per Note 3: 16 + 10% 16 + 10% (73) Distance in col (3) + 10% (84.5) – 4 – 4 = 19.3 of the length or depth of = 20.45 mtrs mtrs building – 4.0 mtrs Thus, 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.

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

114. A reading of para 8.2.3.2 indicates that this exception is only applicable if the deficiency in open spaces can be made good by set- backs at the upper level. Clause (d) of para 8.2.3.2 of the NBC 2005 is ex facie not attracted for the reason that there are no set-backs at the upper levels within the contemplation of the disputed constructions. In any case, even para 8.2.3.2 provides that for tower like structures higher than 37.5 mtrs. with two setbacks, the open space should be not less than 12 mtrs. Thus, the exception is of no aid to the appellant and NOIDA which has issued the third revised plan envisaging a distance of 9 mtrs. between T-1 and T-17. D.3 Violation of Fire Safety Norms SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

115. The appellant requested for a fire NOC for the construction of T-16 and T-17. On 11 September 2009, a report was submitted to the CFO observing that the road is wide enough for vehicles of the Fire Brigade Department to reach the spot in case of emergency situations. However, clause 10 of the report states that Part III and Part IV of NBC 2005 will have to be complied with during the construction of the building and in case of non-compliance, the NOC shall stand cancelled. Para 8.2.3.1 of NBC 2005 prescribes a minimum of 16 mtrs. for the side and rear open spaces of buildings which are 55 mtrs. high and above.

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

117. A complaint was made by the first respondent to the CFO on the non-compliance of the conditions stipulated for the grant of the NOC for the complex (for T1 to T-15). A committee was constituted to look into the complaint and the following observations were made by the committee: (i) A show cause notice was issued for the construction of a second staircase. The stair case has still not been built; (ii) People are living in quarters constructed in the basement which is not in accordance with the NBC 2005 provisions; (iii) Set back is used as a parking, so the effective set back in certain places is reduced by 2 mtrs. and is thus less than the required 9 mtrs.; (iv) On the rear side of the tower, 6 mtrs. set back is not available.

118. These suggestions given by the committee were required to be complied with within six months. Since they were not complied with, a show cause notice was issued on 30 May 2014 for not remedying the deficiencies.

119. 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.

120. The temporary NOC that was given by the CFO clearly states that the NBC 2005 must be complied with. However, as shown above, the provisions of NBC 2005 have not been complied with. Therefore, given that the rear distance requirement under NBC 2005 has not been complied with, the NOC given by the CFO stands automatically cancelled in terms of the report dated 11 September 2009 and letter dated 18 August 2011. E Consent of the RWA

121. 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, we shall analyze whether the consent was actually required under the UP 1975 Act and UP Apartments Act 2010. E.1 Applicability of UP 1975 Act

122. The UP 1975 Act has been described in its long title as “an Act to provide for matters connected with the ownership and use of individual flats in buildings consisting of four or more flats”. Section 2 of the Act states that the Act shall apply only to owners who submit to the SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] provisions of the Act by executing a declaration. Section 2 reads as follows: “2. Application of the Act. — This Act applies only to property, the sole owner or all the owners of which submit the same to the provisions of this Act by duly executing and registering a Declaration setting out the particulars referred to in section 10: Provided that no property shall be submitted to the provisions of this Act, unless it is actually used or is proposed to be used for residential purposes: Provided further that the sole owner or all the owners of the land on which building is situated may submit such land to the provisions of this Act with a condition that he or they shall grant a lease of such land to the owners of the flats, the terms and conditions of the lease being disclosed in the declaration either by annexing a copy of the instrument of lease to be executed to the declaration or otherwise.”

123. Section 3(d)26 contains the definition of common area and facilities. Section 427 stipulates that a flat shall be transferable and heritable 26" (d) “common areas and facilities” includes— (1) the land on which the building is located and all easements, rights and appurtenances belonging to the land and the building; (2) the foundations, columns, girders, beams, supports, main wall, roofs, halls, corridors, lobbies, stairs, stair-way, fire-escapes and entrances and exits of the building; (3) the basements, cellars, yards, gardens, parking areas and storage spaces; (4) the premises for the lodging of janitors or persons employed for the management of the property; (5) installations of common services, such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning and sewerage; (6) the elevators, tanks, pumps, motors, expressors, pipes and ducts and in general all apparatus and installations existing for common use; (7) such other common facilities as may be specially provided for in the Declaration; 27 “4. Flat to be transferable and heritable property.—(1) Each owner of a flat shall be entitled to the exclusive ownership and possession of his flat in accordance with the Declaration. (2) Subject to the provisions of the second proviso to section 2, a flat, together with its undivided interest in the common areas and facilities, shall constitute heritable and transferable immovable property within the meaning of any law for the time being in force: Provided that no flat and the percentage of undivided interest in the common areas and facilities appurtenant to such flat shall be partitioned or sub-divided for any purpose whatsoever.” property. Each owner of a flat is entitled to exclusive ownership and possession of their flat in accordance with the declaration. Moreover, a flat together with its undivided interest in the common areas and facilities shall be heritable and transferable immoveable property. Further, a flat together with its undivided interest in the common areas and facilities shall not be partitioned or sub-divided for any purpose.

124. Section 5 provides for common areas and facilities in the following terms: “5. Common areas and facilities. — (1) Each owner of a flat shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the Declaration. (2) The percentage of the undivided interest of each owner of a flat in the common areas and facilities as expressed in the Declaration shall not be altered without the consent of all the owners of the flats expressed in an amended Declaration duly executed and registered as required by this Act. (3) The percentage of the undivided interest in the common areas and facilities shall not be separated from the flat to which it appertains, and shall be deemed to be conveyed or encumbered with the flat even though such interest is not expressly mentioned in the conveyance or other instrument. (4) The common areas and facilities shall remain undivided, and no suit shall lie at the instance of any owner of the flat or other person for partition or division of any part thereof, unless the property have been withdrawn from the provisions of this Act. (5) Each owner of a flat may use the common areas and facilities for the purpose for which they are intended without hindering or encroaching upon the lawful rights of the owners of other flats. (6) The work relating to the maintenance, repair and replacement of the common areas and facilities and the making of any additions or improvement thereto shall be carried out in accordance with the provisions of this Act and the bye-laws. (7) The Association of Owners of flats shall have irrevocable right to be exercised by the Manager or the Board of Managers on behalf of the Association with such assistance as the Manager or the Board of Managers, as the case may be, considers SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] necessary to have access to each flat from time to time during reasonable hours, for the maintenance, repair and replacement of any of the common areas and facilities therein or accessible therefrom or for making emergency repairs therein to prevent any damage to the common areas and facilities or to other flats.” (emphasis supplied) 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. Section 1028 provides for the contents of such a Declaration. Further, Section 1129 envisages 28 “10. Contents of Declaration.—(1) The declaration referred to in section 2 shall be submitted in such form and in such manner as may be prescribed and shall contain the following particulars, namely:— (a) description of the property, namely the description of the land on which the building is or is to be located, whether the land is freehold or leasehold and whether any lease of the land is to be granted in accordance with the second proviso to section 2, and description of the building or proposed building stating the number of storeys and basements and the number of flats; (b) nature of interest of the owner or owners in the property; (c) existing encumbrance, if any, affecting the property; (d) description of each flat containing its location, approximate area, number of rooms, immediate common area to which it has access, and any other data necessary for its proper identification; (e) description of the common areas and facilities; (f) description of the limited common areas and facilities, if any, stating to which flats their use is reserved; (g) value of the property and of each flat, and the percentage of undivided interest in the common areas and facilities appertaining to each flat and its owner for all purposes, including voting.” 29 “11. Withdrawal from the provisions of the Act.— (1) All the owners of flats may withdraw a property from the provisions of this Act by an instrument executed to that effect. (2) Upon the property being withdrawn from the provisions of this Act, it shall be deemed to be owned in common by the owners of flats and the share of each such owner in the property shall be the percentage of undivided interest previously owned by such owner in the common areas and facilities. (3) Any encumbrance affecting any of the flats shall be deemed to be transferred in accordance with the existing priority to the percentage of the undivided interest of the owner of the flat in the property as provided therein. (4) The withdrawal provided for in sub-section (1) shall in no way bar the subsequent resubmission of the property to the provisions of this Act.” that all the owners of flats may withdraw a property from the provisions of the Act by an instrument executed to that effect, following which it shall be deemed to be owned in common by the owners of flats wherein the share of each such owner shall be the percentage of undivided interest previously owned in the common areas and facilities.

125. 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. Section 2, as we have seen, specifies that the Act applies only to a property, the sole owner or all the owners of which, submit it to the provisions of the Act by duly executing and registering a Declaration setting out the particulars as contained in Section 10.

126. Undoubtedly, in this case there was no declaration in terms of Section 2. However, significantly, the lease deed which was executed by NOIDA in favour of the appellant on 16 March 2005, contains a stipulation in clause II(h) in the following terms: “II) AND THE LESSEE DOTH HEREBY DECLARE AND COVENANTS WITH THE LESSOR IN THE MANNER FOLLOWING: h) The Lessee/sub-lessee shall make such arrangement as are necessary for maintenance of the building and common services and if the building is not maintained properly the Chief Executive Officer, Noida or any officer authorized by him will have the power to get the maintenance done through the Authority and recover the amount so spent from the Lessee/Sub-Lessee. The Lessee/ Sub-Lessee will be individually and severally liable for payment of the maintenance amount. The rule/regulation of U.P. Flat Ownership Act, 1975 shall be applicable on the lessee/sub- lessee.” (emphasis supplied)

127. Mr Ravindra Kumar, learned Counsel appearing on behalf of NOIDA, advanced a submission that the last sentence of clause II(h) must be read together with the entirety of the clause, which relates to the maintenance of the building and common services. Clause II(h) states that in the event the building or common services are not maintained properly, NOIDA would be entitled to ensure the maintenance and recover the amount from the lessee/sub-lessee. SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

128. However, the application of clause II(h) cannot be brushed away on this basis, particularly since the sentence imposing the application of the UP 1975 Act on the lessee/sub-lessee must bear some meaning and content. In this context, during the course of his submissions, Mr Jayant Bhushan, learned Senior Counsel appearing on behalf of the RWA, has placed on the record a copy of the registered sub-lease executed on a tripartite basis by NOIDA, with the appellant as the lessee and the flat buyer as the sub-lessee. Some important provisions of this deed of sub- lease are: (i) Clause 16 contemplates that the occupant of the ground floor would be entitled to use a “sit-out area but the right of user shall be subject to the provisions of the UP Ownership Flat Act 1975”; (ii) Clause 17 recognizes the right to user of the occupant of the dwelling unit on the top floor, subject to the provisions of the same enactment; and (iii) Clause 27 envisages that all clauses of the lease executed by NOIDA in favour of the appellant on 16 March 2005 shall be applicable to the sub-lease deed as well.

129. 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. E.2 Applicability of the UP Apartments Act 2010

130. In 2010, the State legislature enacted the UP Apartments Act 2010. The long title describes the legislation as: “An Act to provide for the ownership of an individual apartment in a building of an undivided interest in the common areas and facilities appurtenant to such apartment and to make such apartment and interest heritable and transferable and for matters connected therewith or incidental thereto”

131. Section 2 of the Act is in the following terms: “2. Application.- The provisions of this Act shall apply to all buildings having four or more apartments in any building constructed or converted into apartment and land attached to the apartment, where freehold, or held on lease excluding shopping malls and multiplexes.” Thus, in contrast with Section 2 of the UP 1975 Act, the corresponding provision of the UP Apartments Act 2010 stipulates that the Act shall apply to all buildings with four or more apartments in any building and land attached to the apartment whether freehold or held on lease. Further, unlike Section 2 of the UP 1975 under which the Act was to apply only when a declaration in terms of Section 10 was submitted, this Act does not require a declaration for it to apply.

132. The expression ‘apartment owner’ is defined by Section 3(d) of the Act as follows: “(d) “apartment owner” means the person or persons owning an apartment or the promoter or his nominee in case of unsold apartments to and an undivided interest in the common areas and facilities appurtenant to such apartment in the percentage specified in the Deed of Apartment and includes the lessee of the land on which the building containing such apartment has been constructed, where the lease of such land is for a period of thirty years or more;”

133. The Act contains a definition of common areas in Section 3(i) and of limited common arears in Section 3(s): “(i) “common area and facilities” means— (i) the land on which the building is located and all easements, rights and appurtenances belonging to the land and the building; (ii) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes and entrances and exits of the building; (iii) the basements, cellars, yards, parks, gardens, community centers and parking areas of common use; (iv) the premises for the lodging of janitors or persons employed for the management of the property; SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] (v) installations of central services, such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating and sewerage; (vi) the elevators, tanks, pumps, motors, fans, cable pipe line (TV, gas, electricity etc.) rain water harvesting system, compressors, ducts and in general all apparatus and installations existing for common use; (vii) such other community and commercial facilities as may be specified in the bye-laws; and (viii) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use; (s) “limited common areas and facilities” means those common areas and facilities which are designated in writing by the promoter before the allotment, sale or other transfer of any apartment as reserved for use of certain apartment or apartments to the exclusion of the other apartments;”

134. The general liabilities which have been cast upon promoters intending to sell an apartment are set out in Section 4(1), which reads as follows: “4. General liabilities of promoter.— (1) Any promoter who intends to sell an apartment, shall make a full and true disclosure in writing of following to an intending purchaser and the Competent Authority: (a) rights and his title to the land and the building in which the apartments have been or proposed to be constructed; (b) all encumbrances, if any, on such land or building, and any right, title, interest or claim of any person in or, over such land or building; (c) the plans and specifications approved by or submitted for approval to the local authority of the entire building of which such apartment forms part; (d) detail of all common areas and facilities as per the approved lay-out plan or building plan; (dd) built-up area and common area of an apartment. (e) the nature of fixtures, fittings, and amenities, which have been or proposed to be provided; (f) the details of the design and specifications of works or and standards of the material which have been or are proposed to be used in the construction of the building, together with the details of all structural, architectural drawings, layout plans, no objection certificate from Fire Department, external and internal services plan of electricity, sewage, drainage and water supply system etc. to be made available with the Association; (g) all outgoings, including ground rent, municipal or other local taxes, water and electricity charges, revenue assessments, maintenance and other charges, interest on any mortgage or other encumbrance, if any, in respect of such land, building and apartments; (h) such other information and documents as may be prescribed.” Sub-Section (4) of Section 4 contains the following stipulations: “(4) After plans, specifications and other particulars specified in this section as sanctioned by the prescribed sanctioning authority are disclosed to the intending purchaser and a written agreement of sale is entered into and registered with the office of concerned registering authorities. The promoter may make such minor additions or alterations as may be required by the owner or owners, or such minor changes or alterations as may be necessary due to architectural and structural reason’s duly recommended and verified by authorized Architect or Engineer after proper declaration and intimation to the owner: Provided that the promoter shall not make any alterations in the plans, specifications and other particulars without the previous consent of the intending purchaser, project Architect, project Engineer and obtaining the required permission of the prescribed sanctioning authority, and in no case he shall make such alterations as an not permissible in the building bye-laws.” Under clause (c) of sub-Section (1) of Section 4, a promoter who intends to sell an apartment is required to make a full disclosure in writing to an intending purchaser and to the competent authority of the plans SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] and specifications approved or submitted for approval to the local authority, of the building of which the apartment is a part. Similarly, under clause (d), a disclosure has to be made in regard to the common areas and facilities in accordance with the approved lay-out plan or building plan. Once such a disclosure has been made, sub-Section (4) stipulates that upon the execution of a written agreement to sell, the promoter may make minor additions or alterations as may be required or necessary due to architectural and structural reasons duly authorized and verified by authorized Architects or Engineers. Apart from these minor additions or alterations which are contemplated by sub-Section (4), the proviso stipulates that the promoter shall not make any alterations in the plans, specifications and other particulars “without the previous consent of the intending purchaser”. Mr Vikas Singh’s submission, that this provision will apply to intending purchasers of Apex and Ceyane and not to the persons who had purchased apartments in the existing fifteen towers, cannot be accepted. The above proviso is evidently intended to protect persons to whom the plans and specifications were disclosed when they were the “intending purchasers”. Further, a construction to the contrary will run against the grain of the intent and purpose of the statute as well its express provisions.

135. Section 5 of the Act provides for the rights of apartment owners in the following terms, insofar as is relevant: “5. Rights of Apartment Owners.— (1) Every person to whom any apartment is sold or otherwise transferred by the promoter shall subject to the other provisions of this Act, be entitled to the exclusive ownership and possession of the apartment so sold or otherwise transferred to him. (2) Every person who becomes entitled to the exclusive ownership and possession of an apartment shall be entitled to such percentage of undivided interest in the common areas and facilities as may be specified in the Deed of Apartment and such percentage shall be computed by taking, as a basis, the area of the apartment in relation to the aggregate area of all apartments of the building. (3)(a) The percentage of the undivided interest of each apartment owner in the common areas and facilities shall have a permanent character, and shall not be altered without the written consent of all the apartment owners and approval of the competent authority. (b) The percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains and shall be deemed to be conveyed or encumbered with apartment, even though such interest is not expressly mentioned in the conveyance or other instrument.”

136. It is important to clarify at this stage 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 Gazette on 19 March 2010, will have consequences for the third revised plan sanctioned on 2 March 2012, as analysed below. E.3 Requirement of RWA’s Consent

137. In terms of the third revised plan which was sanctioned on 2 March 2012, the height of T-16 and T-17 was sought to be increased from twenty-four to forty (or thirty-nine, as the case may be) floors. As a result, the total number of flat purchasers would increase from 650 to 1500. The clear implication of this would be a reduction of the undivided interest of the existing purchasers in the common areas. As a matter of fact, it has also been submitted on behalf of the first respondent that the additional lease rent paid to NOIDA was also sought to be collected from the existing flat purchasers at the rate of Rs 190 per sq. foot. A statement to that effect was also contained in an affidavit filed before the High Court on behalf of the first respondent. The purchase of additional FAR by the appellant cannot be used to trample over the rights of the existing purchasers.

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

139. However, according to the appellant, T-16 and T-17 form part of Phase II of Emerald Court, which had not encroached on any part of the common areas of Phase I, under which all the other towers fell. In this context, it would be material to note a letter dated 13 February 2012 addressed to the Circle Officer, City 3rd NOIDA, Gautam Buddh Nagar, by the Director of the appellant, in which it has been stated that: SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] “Kindly, refer to your Letter Dt. 10.02,2012, received by us on 11.02.2012, regarding which written statement on behalf of M/s. Supertech Limited is presented as under: 1. That, [A]pex and [Ceyane] multi storey residential tower is being constructed over plot measuring nearly 6500 sq. meter which was acquired by the Company M/s. Supertech Limited from NOIDA Development Authority in the year 2006, regarding which its supplementary lease deed was registered in the office of Sub- Registrar, Second, Gautam Buddh Nagar… 2. That, right from the beginning there was a pan for constructing separate complex viz. Apex and [Ceyane] and provisions have been separately made in both towers viz. swimming pool, car, club, parking and gym etc. The facilities of other old towers as shown in the brochure have been published by mistake, but concerned amendment was made in the brochure upon the company being informed by the residents residing in old towers… 4. That, company has erected wall for the expansion of basement and above wall was erected by the company over its land and this basement area was not sold to any resident of old tower over which company has complete ownership. No adverse effect is there on the interests of any resident in erecting above wall, rather the residents of old tower have been removed from the allotted basement area by it. Company has full right to make construction over its land. 5. That, construction carried out earlier or being carried out by the company is completely legal and in accordance with Rules and company has not affected the interest of anybody and no fraud was committed by the company with anybody. Therefore, it appears that the complainant having presented this false complaint inspired by mala fides wants to harass the company and wants to earn undue advantage by not making payment of an amount which is payable to the company. Therefore, it is requested that complaint presented by the complainant is liable to be dismissed. In addition, it is also requested that any personal name be not used in any correspondence or inquiry, rather name of company through its Director be used.” (emphasis supplied) The above letter puts forth the case that T-16 and T-17 have been constructed as a separate project over the area which was obtained under the supplementary lease deed, and that it has separate provisions for all amenities and infrastructure. In fact, it indicates that the facilities of the older buyers were shown in the brochure but that representation was ‘clarified’ to be a ‘mistake’, which had been amended. 140. As such, it becomes important to refer to the supplementary lease deed, which was granted in favour of the appellant on 21 June 2006. The supplementary lease deed makes it clear that the demised premises admeasuring 6556.51 sq. mtrs. would form a part of the originally allotted plot. In the course of its affidavit before the High Court, the appellant contended that: “7. The Office bearers/members of the petitioners society has the right title & interest only in its flat and undivided interest in the common areas of the Emerald Court (phase I). He has the right to challenge if somebody is trying to encroach in his flat or in the Common area are intended to be used for the purpose of the residents. However, here this is not the case. It is stated that the “Apex & Ceyane” (Phase II) comprising of two towers has not encroached any area of the common of the Emerald Court (Phase I). Therefore the petitioner society does not have the locus to challenge the issues related with “Apex & Ceyane” (Phase- II).” In other words, the case which was sought to be set up was that the flat purchasers had an undivided interest in the common areas of Phase I of the Emerald Court, but since T-16 and T-17 formed a part of Phase II, it did not affect the rights of the original flat purchasers of T-1 to T-15. This contention is expressly contrary to the clear terms governing the supplementary lease deed, which indicates that the area comprising of the demised premises would form part of the original plot. Furthermore, the appellant having utilized the FAR of the entire plot, including the area which forms the subject matter of the original lease and the supplementary lease, cannot be allowed to assert to the contrary. 141. Hence, it is abundantly clear that the construction of T-16 and T-17 in accordance with the second revised plan and the third revised SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] plan reduced the value of the undivided interest held by each individual flat owner in the common areas and facilities, thereby violating Section 5 of the UP 1975 Act and Section 5 of the UP Apartments Act 2010, since the flat owners’ consent was not sought. Further, the third revised plan encroached upon the garden area in front of T-1, thereby resiling from the representation that had been 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 Section 4(1) read with the proviso to Section 4(4) of the UP Apartments Act 2010. 142. 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 has dealt with this argument in the impugned judgment by observing: “As per the averments of the respondent/company, the flats were handed over to the apartment owners by September 2009. The owners immediately formed Resident Welfare Association (RWA) and got it registered with the Registrar Societies, in the very same year. Adopting the model bye-laws, did not arise, as it was not enforced until 2011. After notification of Model bye-laws, the Deputy Registrar Firm, Societies and Chits, Meerut vide letter dated 14.12.2012 informed, that pending instructions from the Registrar Firm Societies and Chits Uttar Pradesh, no decision in the matter can be taken in respect of Model bye-laws and its registration. The Registrar Firm, Societies and Chits Uttar Pradesh vide circular dated 5.2.2013 addressed to all Deputy Registrars/ District Registrars issued instructions for registration under Apartment Act, 2010 and directed that bye laws of existing RAW be accordingly amended. The petitioner/society vide resolution dated 20.10.2013 adopted the Model bye-laws and conducted elections and thereafter informed the Deputy Registrar. The respondent/company has recognized the petitioners society as RWA of the Apartment owners since inception and has continuously corresponded with the petitioner society as RWA. Letter dated 9.10.2012, 27.9.2012, 4.9.2012 and January, 2013 addressed to the petitioner society regarding redressal of their grievance is on record…” Therefore, 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, whensuch RWAs do exist, developers may use them to seek a common consent from all the flat owners instead of approaching them all individually. F Collusion and Illegal Construction 143. 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 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; SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] (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. 144. The High Court has dealt with the collusion between the officials of NOIDA and the appellant. This is writ large from the facts as they have emerged before this Court as well. The High Court has in these circumstances correctly come to the conclusion that there was collusion between the developer and the planning authority. 145. Condition 15 of the third revised plan dated 2 March 2012 stipulated that: “15. Compliance of provisions of Uttar Pradesh Apartment (promotion of construction, ownership & maintenance) Act 2010, and directions issued thereunder shall be ascertained. Sanctioned site plan/map is enclosed with this letter. Application for utility certificate would be made after completion of building work within validity of map/site plan, and without permission and certification building shall not be used…” In spite of this condition, NOIDA made no effort to ensure compliance of the UP Apartments Act 2010, as a result of which the rights of the flat purchasers have been brazenly violated. This cannot point to any conclusion, other than the collusion between NOIDA and the appellant to avoid complying with the provisions of the applicable statutes and regulations for monetary gain, at the cost of the rights of the flat purchasers. 146. The rampant increase in unauthorized constructions across urban areas, particularly in metropolitan cities where soaring values of land place a premium on dubious dealings has been noticed in several decisions of this Court. This state of affairs has often come to pass in no small a measure because of the collusion between developers and planning authorities. 147. From commencement to completion, the process of construction by developers is regulated within the framework of law. The regulatory framework encompasses all stages of construction, including allocation of land, sanctioning of the plan for construction, regulation of the structural integrity of the structures under construction, obtaining clearances from different departments (fire, garden, sewage, etc.), and the issuance of occupation and completion certificates. While the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations – the protection of the environment and the well-being and safety of those who occupy these constructions. The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned. Hence, when these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards. Hence, illegal construction has to be dealt with strictly to ensure compliance with the rule of law. 148. 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 misinformation. Hence, the law must step in to protect their legitimate concerns. 149. In K. Ramadas Shenoy v. Chief Officer, Town Municipal Council30, Chief Justice AN Ray speaking for a two judge Bench of 30 (1974) 2 SCC 506 SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] this Court observed that the municipality functions for public benefit and when it “acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess”. This Court also held: “27…The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the courts. If sanction is given to build by contravening a bye-law the jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative. (See Yabbicom v. King [(1899) 1 QB 444]).” This Court held that an unregulated construction materially affects the right of enjoyment of property by persons residing in a residential area, and hence, it is the duty of the municipal authority to ensure that the area is not adversely affected by unauthorized construction. 150. These principles were re-affirmed by a two judge Bench in Dr G.N. Khajuria v. Delhi Development Authority31 where this Court held that it was not open to the Delhi Development Authority to carve out a space, which was meant for a park for a nursery school. Justice BL Hansaria, speaking for the Court, observed: “10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more 31 (1995) 5 SCC 762 to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined (sic), retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.” 151. In Friends Colony Development Committee v. State of Orissa32, this Court dealt with a case where the builder had exceeded the permissible construction under the sanctioned plan and had constructed an additional floor on the building, which was unauthorized. Chief Justice RC Lahoti, speaking for a two judge Bench, observed: “24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building.” Noting that the private interest of land owners stands subordinate to the public good while enforcing building and municipal regulations, the Court issued a caution against the tendency to compound violations of building regulations: “25…The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt 32 (2004) 8 SCC 733 SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions.” 152. In Priyanka Estates International (P) Ltd. v. State of Assam33, Justice Deepak Verma, speaking for a two judge Bench, observed: “55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder.” The Court lamented that the earlier decisions on the subject had not resulted in enhancing compliance by developers with building regulations. Further, the Court noted that if unauthorized constructions were allowed to stand or are “given a seal of approval by Court”, it was bound to affect the public at large. It also noted that the jurisdiction and power of Courts to indemnify citizens who are affected by an unauthorized construction erected by a developer could be utilized to compensate ordinary citizens. 153. In Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai34, Justice GS Singhvi, writing for a two judge Bench, reiterated the earlier decisions on this subject and observed: 33 (2010) 2 SCC 27 34 (2013) 5 SCC 357 “8. At the outset, we would like to observe that by rejecting the prayer for regularisation of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law-abiding citizens that someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their hands and get away with it.” The Court further observed that an unauthorized construction destroys the concept of planned development, and places an unbearable burden on basic amenities provided by public authorities. The Court held that it was imperative for the public authority to not only demolish such constructions but also to impose a penalty on the wrongdoers involved. This lament of this Court, over the brazen violation of building regulations by developers acting in collusion with planning bodies, was brought to the fore-front when the Court prefaced its judgment with the following observations: “1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise.” Finally, the Court also observed that no case has been made out for directing the municipal corporation to regularize a construction which has been made in violation of the sanctioned plan and cautioned against doing so. In that context, it held: “56…We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] unauthorised constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.” 154. These concerns have been reiterated in the more recent decisions of this Court in Kerala State Coastal Zone Management Authority v. State of Kerala35, Kerala State Coastal Zone Management Authority v. Maradu Municipality, Maradu36 and Bikram Chatterji v. Union of India37. 155. 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, we confirm 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. G Conclusion 156. To summarize our 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 35 (2019) 7 SCC 248 36 2018 SCC OnLine SC 3352 37 (2019) 19 SCC 161 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 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 SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] 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 (ix) 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. 157. For the reasons which we have indicated above, we have 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 Roorkee38; (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 38 “CBRI” 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. H Interlocutory Applications 158. Mr Vikas Singh, learned Senior Counsel, has during the course of the hearing tendered an additional affidavit to indicate the following position: (i) The contention of RWA that the appellant has collected the onetime lease rent at the rate of Rs 190 per sq. foot from all the flat owners in T-1 to T-15 and that though an amount of Rs 16.75 crores was collected, only Rs 13.32 crores was payable to NOIDA is incorrect; (ii) The appellant did not collect the lease rent payable to NOIDA from all allotees of T-1 to T-15. An amount of Rs 7.54 crores was received from some allotees; (iii) The lease rent paid to NOIDA was in the amount of Rs 14.49 crores; (iv) A total of 659 units were booked in T-1 to T-14; and (v) Of these units 245 flats were booked till 28 December 2006; 141 flats were booked between 29 December 2006 and 25 November 2009, 114 flats were booked between 26 November 2009 and 1 March 2012, while 159 units were booked after 2 March 2012. On this basis, it has been submitted that 518 units were booked either before 28 December 2006 (before the first revised plan) or after 26 November 2009 (after the second revised plan). The figures which have been indicated by the appellant demonstrate that between the first revised plan on 29 December 2006 and the second revised plan on 25 November 2009, 141 flat purchasers had booked flats. They did so on the clear representation contained in the sanctioned plans. SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] 159. During the pendency of these proceedings, two interim orders were passed by this Court on 6 September 2016 and 22 September 2017. By the order dated 6 September 2016, this Court directed the appellant to pay a return of ten per cent to those flat purchasers who continue to stay in the project. By the order dated 22 September 2017, an exit option was granted to those who sought refunds to take the amounts invested with interest at the rate of twelve per cent per annum. 160. The position as indicated to this Court by Mr Ravindra Kumar, learned Counsel, in respect of flats in Apex and Ceyane (T-16 and 17) is as follows: (i) Number of flats: 915; (ii) Number of shops: 21 (iii) Number of bookings: 633; (iv) Persons who have reinvested in other projects of the developer: 133; (v) Purchasers to whom refund has been granted: 248; and (vi) Remaining purchasers: 252. 161. The above position indicates that following the opt-out which was provided in terms of the order of this Court, 248 purchasers have opted for refunds while 252 purchasers in T-16 and T-17 remain committed to the project. 162. Mr Gaurav Agarwal, learned Amicus Curiae has rendered comprehensive assistance to the Court. Apart from urging his submissions in an objective and dispassionate manner, the Amicus Curiae has painstakingly complied the pleadings, documents and statutory provisions to facilitate the convenience of arguing Counsel and the Court. We record our appreciation for the assistance which has been rendered by the Amicus Curiae. The Amicus Curiae has also prepared a note for the purpose of segregating the applications which have been filed by home buyers into distinct categories, and suggesting reliefs to each category based on the outcome of the proceedings. These categories are: Category I 163. Buyers who have received ROI payments: (i) By its orders dated 6 September 2016 and 11 January 2017, this Court directed that those home buyers who have chosen to stay on with the project and do not desire refund should be paid ROI at ten per cent per annum; and (ii) Thirteen persons filed applications before this Court claiming that ROI payments were not made by the appellant. The appellant has intimated the payments which are due till July 2021. Though, the home buyers claim higher amounts, the Amicus Curiae has proceeded on the figures furnished by the appellant which are tabulated as follows: 164. The submission of the Amicus Curiae is that if the buildings were to stand, the home buyers may be paid the above ROI. On the other hand, if the buildings are to be demolished, the home buyers should receive refund with interest and the amounts would be subsumed in the interest to be paid. Since this Court has come to the conclusion that the buildings are to be demolished, the general directions in regard to refund together with interest will subsume the claims of the above home buyers. SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] Category 2 165. Homebuyers to whom principal has been paid but interest payments have remained: (i) By an order dated 30 July 2018, this Court directed that homebuyers who had registered on the portal and were willing to take twelve per cent simple interest per annum from the date of deposit till the date of payment towards full and final payment would be refunded the principal sum together with interest at the above rate on filing affidavits to that effect; and (ii) The registry has refunded the principal sum to thirteen homebuyers but since their affidavits were not received by the Amicus Curiae within time, interest remained to be paid. The details have been tabulated by the Amicus Curiae as follows: 166. The Amicus Curiae has submitted that irrespective of the fate of the pleadings, the appellant should be directed to refund the interest as computed above since the above homebuyers have exited from the project. We accept the submission and direct the appellant to refund interest payments to the thirteen homebuyers as tabulated above within two months. Category 3 167. Home buyers under a ‘subvention scheme’: (i) Under the subvention scheme, a home loan is taken in the name of the homebuyer but EMIs are to be paid by appellant till possession is granted. Certain homebuyers are governed by the subvention scheme. There is a default by the appellant in paying the EMIs; (ii) By an order dated 30 July 2018, this Court directed the appellant to continue paying the EMIs. Sixteen homebuyers have moved this Court for a direction for payment of the balance EMIs due; (iii) The Amicus Curiae has tabulated the interest payable to the homebuyers (as computed by them and by the appellant separately): SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] The Amicus Curiae submits that the amounts calculated above be paid. 168. The Amicus Curiae submitted that if the buildings are ordered to be demolished, the appellant may close the home loans and refund the amounts contributed by the homebuyers with such interest as this Court may determine. On the other hand, if the buildings stand, the appellant may be directed to clear the outstanding EMIs and continue paying them until possession. Since the buildings have been ordered to be demolished under the directions of this Court in the present judgment, the appellant shall close the home loans and refund the amounts contributed by each of the above home buyers with interest at the rate of twelve per cent per annum within two months. Category 4 169. There are two IAs in which the homebuyers have a dispute with the appellant relating to the amounts due to the homebuyers: (i) In IA No 56187/2021, Mr DP Tripathi was allotted Flat No 1105 in Apex. A total amount of Rs 31,70,410 was paid for the flat. Out of this amount, Rs. 14,25,000 was funded by loan. The appellant paid the loan pursuant to an order of this Court. However, the applicant has paid the balance amount of Rs 17,45,410 out of his own funds towards the flat, and Rs 6,58,700 as loan repayments before it was ultimately settled by the appellant. ROI payments for 27 months amounting to Rs 5,20,315 have been received from the appellant. Thus, the case of the applicant is that a sum of Rs 18,83,795 remains invested by the applicant, which may be ordered to be refunded. In contrast, the appellant has stated that this dispute has been settled by the Debt Recovery Tribunal and nothing is payable; and (ii) In IA No 67028/2017, Mr Raj Kishore had purchased Flat No 3507, in respect of which the amount has been refunded along with interest. A cheque of Rs 67,319 bearing no 213233 for the last payment remained to be encashed due to oversight. The Amicus Curiae has suggested that the appellant may be directed to issue a fresh cheque pertaining to this payment. 170. With regards to IA No 56187/2021, since the underlying dispute regarding payment is pending in this IA, it is de-linked and will be heard separately. In IA No 67028/2017, the appellant is directed to provide a fresh cheque for an amount of Rs 67,319 to the applicant within one month. Category 5 171. Application of homebuyers which have been rendered infructuous. The Amicus Curiae has tabulated applications which have been rendered infructuous, indicating the reasons for the same: SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.] 172. The above applications are disposed of as infructuous. 173. The appeals shall stand disposed of in the above terms. The contempt petitions are disposed of accordingly. 174. Pending application(s), if any, stand disposed of. Ankit Gyan Appeals disposed of. SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]