Read judgment: Supertech Limited v. Emerald Court Owner Resident Welfare Association & Ors

Pankaj Bajpai

New Delhi, August 31, 2021: While ordering for demolition of buildings constructed in Emerald Court Project of Noida, the Supreme Court directed the appellant to close the home loans and refund the amounts contributed by each of the home buyers with interest at the rate of 12 percent per annum within two months.

The Division Bench of Justice D.Y Chandrachud and Justice M.R. Shah observed that the sanction given by NOIDA on Nov 26, 2009 and March 2, 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, as 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.

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”, observed the Bench.

It was also highlighted by the Bench that the construction of T-16 and T-17 was done without complying with the Building Regulations which was in violation of the fire safety norms.

The first revised plan of December 29,2006 contained a clear provision for a garden area adjacent to T-1. In the second revised plan of November 26,2009, 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, added the Top Court.

The Apex Court also noted that 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 their number.

Therefore, the Top Court affirmed the order passed by the High Court for the demolition of Apex and Ceyane (T-16 and T-17) and directed that the work of demolition shall be carried out by the appellant at its own cost under the supervision of the officials of NOIDA.

The court noted that there is a rampant increase in unauthorized constructions across urban areas, particularly in metropolitan cities, and opined that 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 i.e., the protection of the environment and the well-being and safety of those who occupy these constructions.

In order to ensure that the work of demolition is carried out in a safe manner without affecting the existing pleadings, the Apex Court asked NOIDA to consult its own experts and experts from Central Building Research Institute, Roorkee.

The work of demolition shall be carried out under the overall supervision of CBRI and in the event that CBRI expresses its inability to do so, another expert agency shall be nominated by NOIDA. The cost of demolition and all incidental expenses including the fees payable to the experts shall be borne by the appellant, added the Court.

In addition, the Top Court also directed the appellant to pay to the RWA costs quantified at Rs. 2 crore, within one month.

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