SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE

From the Judgment and Order dated 11.04.2014 of the High Court of Judicature at Allahabad in Writ Petition (Civil) No.65085 of 2012. Mukul Rohatgi, Sr. Adv., Mahesh Agarwal, Anshuman Srivastava, Rishabh Parikh, E. C. Agrawala, Advs. for the Appellant. Jayant Bhushan, Ravindra Raizada, Sr. Advs., Anish Agarwal, Ms. Vanshika Gupta, Ms. Meenakshi Garg, Ketan Paul, Tushar Bhushan, Amartya Bhushan, Bhakti Vardhan Singh, Ravindra Kumar, Ravi Prakash Mehrotra, Rajeev Kumar Dubey, Ashiwan Mishra, Kamlendra Mishra, Tarun Gupta, Ms. Prachi Mishra, Chaitanya Bansal, Tushar Bathija, Arjun Garg, Advs. for the Respondents. The following Order of the Court was passed : ORDER

#1. A miscellaneous application has been filed by Supertech Limited seeking modification of the judgment and order of this Court dated 31 E F G H SUPERTECH LTD v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION AND OTHERS 571 August 2021. The reliefs which are sought in the Miscellaneous Application read thus: A “(a) Modify the Judgment dated 31.08.2021…to the extent that the Applicant may demolish a part of tower T-17 as stipulated in paragraph 6 hereinabove; (b) Pass an order of status quo in respect of Towers 16 & 17 in Emerald Court, Plot No. 4, Sector 93A, NOIDA till final orders are passed in the present application.”

#2. A Division Bench of the High Court of Judicature at Allahabad directed the demolition of Towers 16 and 17 by the third respondent, New Okhla Industrial Development Authority, in Emerald Court constructed by the applicant and situated on Plot No 4, Sector 93A, NOIDA. While affirming the judgment of the Division Bench, this Court has recorded the following conclusions in its judgment, which is reported as Supertech Limited vs Emerald Court Owner Resident Welfare Association and Others1: “185. To summarize our findings, the documentary materials referred to and analyzed in this judgment indicate that: (i) (ii) (iii) The land allotted to appellant under the original lease agreement and the supplementary lease deed constitute one plot; The land which was allotted through the supplementary lease deed forms a part of original Plot No 4, and would be governed by the same terms and conditions as the original lease deed; 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; (iv) 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 1 2021 SCC OnLline SC 648 B C D E F G H 572 SUPREME COURT REPORTS [2021] 10 S.C.R. A B C D E F G H 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; (v) After realizing that the building block argument would not pass muster, another false case was sought to be set up with the argument that T-1 and T-17 are dead end sides, thereby obviating the need to comply with the minimum distance requirements. This argument is belied by the comprehensive report submitted by NBCC. The sides of T-1 and T-17 facing each other are not dead end sides since both the sides have vents/egresses facing the other building; (vi) By constructing T-16 and T-17 without complying with the Building Regulations, the fire safety norms have also been violated; (vii) 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 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; and (viii) 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 the 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; and SUPERTECH LTD v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION AND OTHERS 573 (ix) 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.

#186. For the reasons which we have indicated above, we have come to the conclusion that: (i) (ii) (iii) The order passed by the High Court for the demolition of Apex and Ceyane (T-16 and T-17) does not warrant interference and the direction for demolition issued by the High Court is affirmed; The work of demolition shall be carried out within a period of three months from the date of this judgment; C The work of demolition shall be carried out by the appellant at its own cost under the supervision of the officials of NOIDA. In order to ensure that the work of demolition is carried out in a safe manner without affecting the existing pleadings, NOIDA shall consult its own experts and experts from Central Building Research Institute Roorkee; (iv) The work of demolition shall be carried out under the overall supervision of CBRI. In the event that CBRI expresses its inability to do so, another expert agency shall be nominated by NOIDA; (v) The cost of demolition and all incidental expenses including the fees payable to the experts shall be borne by the appellant; (vi) 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 per cent per annum payable with effect from the date of the respective deposits until the date of refund in terms of Part H of this judgment; and (vii) 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.” A B D E F G H 574 SUPREME COURT REPORTS [2021] 10 S.C.R. A

#3. Mr Mukul Rohatgi, learned senior counsel appearing on behalf of the applicant submitted that: (I) The applicant does not seek a review of the judgment of this Court, which is the reason for filing an application for modification; (ii) The basis of the judgment of this Court is that: (a) (b) The minimum distance required under the relevant Building Regulations has not been complied with; and There is a violation of the requirement of maintaining a green area under the relevant Building Regulations; The applicant would seek to meet the above two findings which have been arrived at in the judgment of this Court by slicing a portion of Tower 17, while retaining Tower 16 so as to ensure compliance with the minimum distance requirement and the green area requirement under the relevant Building Regulations. (iii)

#4. Learned senior counsel submitted that the proposal may be examined by the planning authority, if the Court so directs.

#5. Mr Jayant Bhushan, learned senior counsel appearing on behalf of the first respondent has raised a preliminary objection to the maintainability of such a miscellaneous application, based on the decisions of this Court in Delhi Administration vs Gurdip Singh Uban and Others2 (“Gurdip Singh Uban”), Ram Chandra Singh vs Savitri Devi and Others3 (“Ram Chandra Singh”) and Rashid Khan Pathan (Applicant) – In Re: Vijay Kurle and Others4 (“Rashid Khan Pathan (Applicant) – In Re: Vijay Kurle”). Apart from this, it has been submitted on behalf of the first respondent that the miscellaneous application proceeds on the misconceived basis that the only two objections which were noticed in the judgment of this Court to the legality of the two structures are the ones which have been submitted on behalf of the applicant (minimum distance and green area). In addition to the violation of the distance requirement and the requirement of a green