Summary
The Court affirmed demolition of Supertech’s Apex and Ceyane towers at Emerald Court. The revised sanctions violated building-separation and fire-safety requirements, and construction reduced existing apartment owners’ common interests without consent. Describing the towers as one block or a separate project did not cure the violations. The Court found collusion with NOIDA, confirmed the prosecution-sanction direction, and ordered demolition at the developer’s cost, buyer refunds with 12% annual interest and Rs 2 crore costs to the residents’ association, subject to specific buyer-category directions.
Issues
- Whether the revised tower sanctions complied with building-separation, dead-end and fire-safety requirements.
- Whether the developer could alter the project and dilute common interests without existing apartment owners’ consent.
- What relief followed from the unlawful construction and collusion with the planning authority.
Provisions considered
- Regulation 33.2.3(i), New Okhla Industrial Development Area Building Regulations and Directions, 2006The minimum separation applied between the buildings concerned; unilateral grouping into a block could not defeat its purpose. The second revised sanction breached the required separation. (¶¶ 9, 52, 62, 66, 67, 68, 69)
- Regulations 1.6, 1.7 and 24.2.1(6), New Okhla Industrial Development Area Building Regulations, 2010The third revised sanction was subject to the prevailing requirements. Its spacing was deficient and the opposing sides did not qualify for the dead-end exception. (¶¶ 56, 58, 59, 70, 71, 72, 73, 105, 106, 108, 109, 110, 111)
- Paragraphs 8.2.3.1 and 8.2.3.2, National Building Code of India, 2005The open-space requirements were violated. The alternative for tower-like structures did not assist because the necessary upper setbacks were absent and even its ground-level minimum was unmet. (¶¶ 60, 61, 112, 113, 114, 119, 120)
- Sections 2 and 5(2), read with the lease covenants, Uttar Pradesh Ownership of Flats Act, 1975The developer was bound by its lease commitments to comply and could not rely on its own failure to submit a declaration to evade owners’ common-interest rights. (¶¶ 122, 124, 125, 126, 128, 129, 141)
- Sections 2, 4(1), 4(4) proviso and 5(3), Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010The 2012 revision required consent for the material alterations and dilution of common interests. The Act was not applied retrospectively to the 2009 sanction. (¶¶ 131, 134, 135, 136, 137, 140, 141, 142)
Held
- The supplementary lease enlarged the same plot and project. The developer’s use of the combined floor-area entitlement and the lease terms contradicted its attempt to present the disputed towers as an independent second phase. (¶¶ 75, 80, 81, 82, 139, 140, 156)
- A developer could not avoid minimum separation requirements by unilaterally labelling separate towers a single building block. A proposed space frame or common entry did not consolidate otherwise separate buildings. Both the 2009 and 2012 revised sanctions violated the applicable separation rules. (¶¶ 66, 67, 68, 69, 70, 71, 72, 73, 89)
- The dead-end exception required both facing sides to lack openings. Openings to non-habitable rooms also counted; even some units with openings prevented the side from being treated as a dead end. Compliance was measured along the ground for the building, rather than selectively through individual sight lines. The towers did not qualify. (¶¶ 105, 106, 107, 108, 109, 110, 111)
- The National Building Code requirements were independently unmet, and the tower-like-structure alternative did not cure the deficiency. The conditional fire approvals did not excuse non-compliance and stood cancelled under their terms. (¶¶ 112, 113, 114, 115, 116, 119, 120)
- The developer’s lease and subleases bound it to the 1975 statutory protections notwithstanding the missing declaration. The 2010 Act applied to the 2012 revision, protecting persons who had already purchased after disclosure of the plans as well as current intending purchasers. (¶¶ 122, 124, 126, 128, 129, 131, 134, 135, 136)
- The revisions diluted existing owners’ undivided common interests and displaced the represented garden area without consent. Purchase of additional floor-area entitlement could not override those rights. The rights belonged to individual owners and survived any absence of an association; an existing association could facilitate obtaining common consent. (¶¶ 137, 138, 140, 141, 142)
- The record established collusion between the developer and NOIDA, including unlawful sanctions, withholding plans and ignoring the fire officer’s warning. The demolition and prosecution-sanction directions were confirmed; the latter did not itself constitute criminal convictions. (¶¶ 143, 144, 145, 147, 148, 155)
- Demolition was ordered within three months at the developer’s expense, under NOIDA’s supervision and overall expert supervision by CBRI or a nominated substitute if CBRI was unable to act. The developer also owed the association Rs 2 crore costs within one month of receipt of judgment. (¶ 157)
- Existing buyers not already refunded were to receive their invested sums with 12% annual interest from their respective deposits to refund within two months, subject to the buyer-category directions. Return-on-investment claims were subsumed in refund interest; specified unpaid interest was to be paid and subvention loans closed with refund of buyers’ contributions and interest. (¶¶ 157, 163, 164, 165, 166, 167, 168)
- The disputed payment application in IA 56187/2021 was de-linked for separate hearing; a fresh Rs 67,319 cheque was directed in IA 67028/2017 within one month. Listed infructuous applications and the appeals and contempt petitions were disposed of in the stated terms. (¶¶ 169, 170, 171, 172, 173, 174)
Result
Demolition and prosecution-sanction directions affirmed; developer-funded demolition, refunds with 12% annual interest and Rs 2 crore association costs ordered, with category-specific relief and one payment dispute reserved for separate hearing.