On 28th February, 2022, the Supreme Court was informed how the demolition of two 40-storied towers, T-16 and T-17 namely Apex and Ceyane belonging to the Emerald Court Project of Supertech Builders would be carried out in phased manner with the use of specialized blasting procedure. During the demolition, the area would be declared a no-fly zone and would be completely evacuated. The demolition would be completed by May 22, 2022.

Background of Dispute:

The Emerald Court Owner Resident Welfare Association had approached the Allahabad High Court in 2012 alleging that the Developer was constructing two humongous towers on an area which was represented to be a green area in the brochure and advertisements which induced them to buy apartments in the Towers T-1 to T-15 of the Project. The Allahabad High Court had allowed the writ-petition in 2014 and ordered the demolition of the two towers. The Developer had challenged the said judgment of the Allahabad High Court before the Supreme Court in special leave petition. This was decided as Civil Appeal no. 5041/2021 on 31.08.2021 upholding the judgment of the High Court for demolition of the two towers.

Developer's Attempts at justifying Construction

The Developer tried to justify the raising of the two towers with the following arguments:

  • The two towers were not part of the same plan approved for building of the earlier completed towers T-1 to T-15. While towers T-1 to T-15 fell in Phase -1 of the Project, T-16 and T-17 were part of phase-2 of the same Project. The green area as alleged by Resident Welfare Association was never a part of building plan sanctioned for towers T-1 to T-15.
  • The area over which the towers were raised was demarcated with a boundary wall, had separate entry and exit, club-house, parking and garden and other amenities. The revised sanction plans had been passed by Building Authority for construction of the two towers.
  • T-1, T-16 and T-17 form one cluster of buildings in the same block.
  • T-1 and T-17 are dead–end sides thereby obviating the need to maintain minimum distance of 16 metres.

How Supreme Court dealt with the arguments of the Developer

On perusal of record and hearing of rival submissions, the Supreme Court gave the following findings:

  • In the original approved plan, the green area was clearly demarcated for enjoyment of Towers T-1 to T-15. The completion certificates in respect of Towers T-1to T-8 and later in respect of towers T-9 to T-14 showed the green area as part of building plan.
  • The original building plan as well as 1st, 2nd and 3 rd revised plans were all in respect of the same premises leased for the same project. There were no Phase-1 for Towers T-1 to T-15 and Phase-2 for T-16 and T-17
  • The Developer's argument that T-1, T-16 and T-17 form one cluster of buildings in the same block is diametrically opposed to their own argument that towers T-16 and T-17 were not part of the Phase-1 of the project.
  • T-1 and T-17 are facing each other and are not dead-end sides.

Factors that weighed heavy with the Supreme Court while upholding the judgment of the Allahabad High Court

In para 147 of the judgment, the Hon'ble Apex Court has re-emphasized the importance of building /construction activity to pass the two way test :

  1. Protection of environment
  2. Well-being and safety of the existing purchasers who have undivided interest in the common areas and amenities.

Previous Judgments of the Supreme Court discussed in this Judgment:

  • K Ramadas Shenoy Vs. Chief Officer , Town Municipal Council : (1974)2SCC 506
  • Dr. GN Khajuria vs. Delhi Development Authority (1995)5SCC 762
  • Friends Colony Development Committee vs. State of Orissa : (2004)8SCC 733
  • Priyanka Estate International (P)ltd. Vs. State of Assam : (2010)2SCC 27
  • Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corporation of Mumbai : (2013) 5 SCC 357
  • Kerala State Coastal Zone Management Authority Vs. State of Kerala: (2019)7SCC 248
  • Kerala State Coastal Zone Management Authority vs. Maradu Municipality, Maradu: (2018) SCC Online SC 3352
  • Bikram Chatterji vs. Union of India: (2019)19 SCC 161

In para 152, while discussing the judgment in Priyanka Estate international (P)ltd. Vs. State of Assam (supra) , the court observed that the bench delivering that judgment had 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.

The leit motif of all the judgments has been the Supreme Court's anguish regarding the complicity of building and planning Authorities' officials with Developers .

DISTILLATE OF THE JUDGMENT

The Supreme Court has found the construction of the two towers to be in violation of the following Regulations and Acts:

  • New Okhla Industrial Development Area Building Regulations and Directions 2006 (NBR 2006) : non maintenance of minimum distance equal to half of the height of the tallest building between two building blocks which in this case was 84.5 metres
  • New Okhla Industrial Development Area Building Regulations 2010 (NBR 2010): distance between two buildings to be 16 metres when height of building is more than 50 metres.
  • National Building Code 2005 : non- maintenance of prescribed distance between two side by side buildings of 16 metres + 10% of building -4 metres
  • Uttar Pradesh Ownership of Flats Act ,1975
  • Uttar Pradesh Apartments Act 2010 : Ss. 4(4) and 5 provide that consent of flat owners is pre-requisite before making any change in the sanctioned plan and altering the percentage of undivided common interest by the Developer.
  • Fire Safety Norms

WAY FORWARD

Reference to this judgment can be incorporated as a necessary clause in the lease agreements between the Authorities and Developers to highlight the consequences of violations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.