The Supreme Court on Tuesday upheld the order of the Allahabad High Court in Supertech Emerald Court Case, directing demolition of two 40-storeyed buildings within three months for violation of NBR 2006, NBR 2010, NBC 2005, UP 1975 Act, UP Apartments Act 2010 and Fire safety norms.
The bench of Justices D.Y. Chandrachud and M.R. Shah, while directing the demolition of the two towers, dealt with several issues.
Violation of distance requirement between two towers under building regulations
The first question that arose was whether the two buildings are separate or part of a building block i.e. cluster of buildings, it was observed that there is no definition of a building block under NBR 2006 and NBR 2010. The arguments constructed by Supertech were that the said two towers are separately a part of one building block and since they are part of one block, minimum distance requirement of 16 meter between two towers as per building norms need not be fulfilled.
The bench observed clear difference between the arguments of Supertech before the Supreme Court and High Court, wherein they stated that the whole set of towers (all 17 towers) form a set of building block and not just two said towers.
The bench further observed, “It will deprive the residents of urban areas of the amenities of light, air and ventilation, which are essential for maintaining a basic quality of life. It will also have serious ramifications on fire safety. The developer cannot be allowed to subvert the requirement of maintaining minimum distances prescribed in the Building Regulations by unilaterally designating independent towers as building blocks.
“The only reasonable hypothesis which emerges from the above disclosures is that the argument which has now sought to be advanced – that Towers 1, 16 and 17 are part of a cluster of buildings comprised within a block, thus obviating the need to maintain the minimum distance between them – is an afterthought,” it added.
Interpretation of “dead end sides of buildings”
An alternative to the above argument of Supertech was advanced by Noida that Regulation of the NBR 2010 provides for an exception to the 16 m minimum distance requirement if the building blocks have dead-end sides facing each other. It stipulates that if the blocks have dead-end sides facing each other, then the spacing shall be a minimum of 9 m instead of 16 m and in this case Tower 1 and Tower 17 are dead end sides.
The bench observed that the term ‘dead-end sides of a building’ has not been defined in NBR 2006, NBR 2010, and NBC 2005. NBCC was engaged to submit a report on this issue.
The report stated that “a dead end exists in the corridor or passageway, where there is only one direction to travel to an exit”. Using this meaning as reference, NBCC interpreted the phrase ‘dead end side of building’ to hold that Tower 1 and Tower 17 do not have dead end sides facing each other. Further, NBCC observed that the distance between Tower 1 and Tower 17 does not comply with the distance rule specified in NBC 2005.
Thereafter, an expert report from IIT, Delhi and IIT, Roorkee was sought and it was concluded that Tower 1 and Tower 17 are not dead end sites since there is exit/ entry on both sides of Tower 17 and the doors, windows, and balconies of Tower 1 face Tower 17.
The bench observed, “The purpose of imposing 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’…
“Therefore, irrespective of whether all or some units in the block have an egress facing the adjacent building, the minimum distance of 16 m will have to be complied with, otherwise the purpose of providing the vent would be functionally compromised,” it added.
Violation of NBC, 2005
The bench observed that according to NBC 2005, the spacing between Tower 1 and Tower 17 should be 20.45 mtrs. Evidently then, the second and third revised plans were not in accordance with NBC 2005.
Violation of Fire Safety Norms
The CFO requested show-cause notice several times to provide for NOC for fire safety, and while providing a temporary NOC, it was stated that NBC 2005 must be complied with which states that distance between two towers must be 16 m at least. However, the same was never complied with and the NOC given by the CFO stands automatically cancelled.
Consent of the RWA
RWA stated that the sanction could not have been revised without the consent of the flat purchasers in the original fifteen towers.
The Society as per the plan for the construction was originally sanctioned on 20 June 2005. Thereafter, three revisions were sanctioned on 29 December 2006, 26 November 2009 and 2 March 2012.
The bench observed that the second revised plan and the third revised plan reduced the value of the undivided interest held by each individual flat owner in the common areas and facilities as the height of the two buildings was increased from twenty-four to forty floors i.e. from 650 to 1500 purchasers 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 Tower-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.
Collusion and Illegal Construction
It is observed that the case has revealed a nefarious complicity of the planning authority in the violation by the developer of the provisions of law, like,
The sanctioning of the second revised plan in clear breach of the NBR 2006, The refusal by NOIDA to disclose the building plans to RWA, 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 Emerald Court, NOIDA’s referral of RWA’s request to access the sanctioned plans to the Supertech (Emerald) to seek its consent and upon the refusal of the latter, a continuous failure to disclose them to the RWA, 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, In pursuance of the second revised plan on 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, The construction for Tower 16 and 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.
The bench observed, “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”
The Court while upholding the Allahabad High Court judgment for demolition directed that the work of demolition shall be carried out within a period of three months from the date of this judgment furthermore, the same shall be carried out entirely by the Supertech at its own cost under the supervision of the officials of NOIDA. To ensure safety, NOIDA shall consult its own experts and experts from Central Building Research Institute Roorkee.
Supertech was also directed to refund within a period of two months to all existing flat purchasers in the two towers, other than those to whom refunds have already been made with interest at 12 percent pa. Supertech shall also pay Rs two crore to RWA in one month.
The above case travelled to the Supreme Court, against the judgment of a Division Bench of the Allahabad High Court upon a writ petition moved by RWA of Supertech Emerald Group Housing Society against Builder/ Promoter of Supertech Emerald Court, for violation of sanction plan and building code and bylaws.
The RWA sought directions for quashing the revised plan approved by Noida for construction of two new towers at Sector 93 – A NOIDA; the approval and construction being in complete violation of provisions of UP Apartments Act of 2010; and for demolishing of tower 16 and 17.