The Supreme Court observed that diverse and unseen groups of flat buyers suffer the impact of the unholy nexus between builders and planners.
Observing that there was collusion between Noida Authority and the builder in the construction of 40-storey twin towers in Noida, the Supreme Court on August 31 ordered the demolition of the structures located in Sector 93A within three months. The court held that the construction violated the minimum distance requirement and had been built illegally without taking the consent of the individual flat owners as required under the UP Apartment Act.
A bench of Justices DY Chandrachud and MR Shah ordered that the demolition of the twin towers should be completed within three months and the builder would have to bear the expenses for the same.
“The sanction given by NOIDA on 26 November 2009 and 2 March 2012 for the construction of T-16 and T-17 is violative of the minimum distance requirement under the NBR 2006, NBR 2010 and NBC 2005,” the 140-page order said.
Through its order, the Supreme Court upheld a 2014 verdict of the Allahabad High Court directing the demolition of the Emerald Court project.
The Supreme Court observed that the consent of the individual flat owners was necessary under the UP Apartment Act before the twin tower was constructed as the common area was reduced by adding new flats.
“… The case has revealed nefarious complicity of the planning authority in the violation by the developer of the provisions of law…The suggestion that the twin towers from part of one block was an afterthought,” the order said.
“By constructing the two towers T-16 and T-17 without complying with the Building Regulations, the fire safety norms have also been violated; 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 the 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,” the court said.
It further said that 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 they are part of the original project.
“Hence, the consent of the individual flat owners of the original fifteen towers, individually or through the RWA, was a necessary requirement under the UP Apartments Act 2010 and UP 1975 Act before T-16 and T-17 could have been constructed, since they necessarily reduced the undivided interest of the individual flat owners in the common area by adding new flats and increasing the number from 650 to 1500,” the order said.
What’s in the SC order for buyers?
The apex court has directed that the entire amount paid for by home buyers be refunded with 12 percent interest from the time of the booking and the Residents Welfare Association be paid Rs 2 crore for the harassment caused due to the construction of the twin towers.
“The appellant shall within a period of two months refund to all existing flat purchasers in Apex and Ceyane (T-16 and T -17), other than those to whom refunds have already been made, all the amounts invested for the allotted flats together with interest at the rate of twelve percent per annum payable with effect from the date of the respective deposits until the date of refund … 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,” the order said.
It said the construction of Supertech’s twin 40 storey towers having 915 flats and shops was done in collusion with NOIDA authority and the high court was correct in holding that view.
The top court noted that 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,” the order said.
The order was passed after the Court concluded that the sanction given by New Okhla Industrial Development Authority (NOIDA) in November 2009 for the twin towers was violative of minimum distance requirements and the national building code.
Illegal construction achieved by collusion between Noida and builder
The top court said that recently it has seen rampant unauthorised construction in metropolitan areas in collusion with planning authorities and it has to be dealt with sternly.
“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,” the order said.
“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, 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 order said.
“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 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,” the 140-page order said.
Case to set a precedent for builders and authorities going forward: Legal experts
According to advocate Mihir Kumar, “This will set a precedent and hopefully stop the fraudulent practices of builders who in connivance with the officials change the approved plans even after selling units in the project. This judgment protects and empowers the rights of the homebuyers with respect to the project land.”
Nishit Dhruva, Managing Partner, MDP& Partners, Lawyer & Solicitors, also said that the case will set a precedent going forward.
“Planning authorities are required to sanction plans by balancing environmental concerns and, at the same, ensure the viability of a real estate project. The judgment not only proves to be a wake-up call for builders not to act on the sanctioned plans that have a cloud of suspicion but also for planning authorities to maintain the integrity attached to their office.”
During an earlier hearing, advocate Gaurav Agrawal, appointed as amicus curiae in the Supertech matter had suggested that if the court upholds the Allahabad High Court order directing the demolition of both the towers, it has to be done by a specialised agency as many residential towers are in close proximity.
He referred to the demolition of buildings in Maradu in Kerala, where people had to be evacuated and buildings demolished using explosives.
“The possibility of the impact on residential towers due to the controlled explosion cannot be ruled out as all these buildings are connected with a common basement,” Agrawal said.
The Maradu demolition was on the basis that the builders had violated the CRZ Regulations while constructing the buildings. This order on the other hand has found collusion between the NOIDA planning authority officials and the builders.
“This definitely puts both of them under the scanner and is a positive step to increase accountability in real estate projects, which is lacking,” said Dhruva.
The case so far
On August 4, the top court had reserved its verdict on the batch of pleas while reprimanding NOIDA authority saying it is reeking with corruption and had connived with the builder over not providing the sanctioned plan to the homebuyers of Supertech’s Emerald Court project.
It had said that when the homebuyers asked for the plan, the authority wrote to the developer on whether to share it and refused to give the plan to them at the developer’s behest. The top court had said that it was only after the high court expressly directed the NOIDA authority to give the plan that it did so.
Realty firm Supertech Ltd had defended the construction of twin towers and claimed no illegality. It had said that Supertech had lost the case before the high court on two counts — distance criteria and not taking consent of home buyers before constructing those towers.
It had said the Emerald Court Owner Resident Welfare Association, which has filed the case before the high court challenging the construction of the twin towers, was not even in existence when the plan was sanctioned and construction had begun.
The builder had said that out of 633 people booking the flats initially, 133 have moved out to other projects, 248 have taken refunds and 252 home buyers still had their bookings with the company in the project.
Supertech Ltd had also told the top court earlier that its Emerald Court owner Resident Welfare Association had been terrorising it by making unwarranted claims.
The homebuyers association has claimed that the huge twin towers constructed by the builder were not in the original plan shown to them at the time of booking and it has blocked their view, fresh air and sunlight.
The two towers, Apex and Ceyane of Emerald Court Project of Supertech, together have 915 apartments and 21 shops. Of these, 633 flats were booked initially.
On April 11, 2014, the Allahabad High Court had ordered the demolition of the two buildings within four months and the refund of money to apartment buyers.