Recently, the Supreme Court in Rajendra Kumar Barjatya and another v. U.P. Avas Evam Vikas Parishad and others

equivalent area on the first floor (in all 2419.484 sq. meters). The total built up area of commercial structure is 2419.4 sq. meters, which is almost five times the permissible limit. There are various other deviations and irregularities. The sewage treatment plant (STP) has not been constructed so far. The commercial structure in dispute comprising of shops/KIOSKs/studio apartments, has been constructed on the front and side setback, thereby blocking the passage for the movement of fire brigade and posing a great risk for the residents. The resident association has also objected to the construction of the illegal structure. The builder was issued several notices, pointing out the illegalities and not to hand over possession without having a valid occupancy certificate. Moreover, under the sale agreement, possession could be handed over to the allottees only after execution of sub-lease in their favour, which has not been done. No right gets conferred in favour of allottees merely on basis of sale agreements. The petitioners have no independent right to contest the demolition proceedings.

5. The builder in some of the cases, has filed a counter affidavit and has stated that it has applied for occupancy certificate on 28/30.9.2024. The builder has denied that it has abandoned the project and has also stated that it had carried out certain works to remove the deficiencies.

6. We have heard counsel for the parties and perused the record.

7. It is not disputed before us that till date, there is no occupancy certificate in respect of the offending structure nor any sub-lease in favour of the petitioners.

8. Clause 37(a) of the Agreement between the petitioners and the builder stipulates as under: - "(a) That the Shop Allottee(s) will be entitled to possession of the said Shop only after all the amounts payable under this Agreement are paid and the Sub Lease Deed in respect of the said Shop is executed and duly registered with the Registrar/Sub-Registrar concerned."

9. Thus, the alleged possession of the petitioners is even contrary to the sale agreement which they have set up in support of their claim. Additionally, at the time of induction of the petitioners, there was no occupancy certificate in respect of the offending structure. It seems that after NOIDA took steps for demolition, an application was moved by the builder for issuance of occupancy certificate only on 28.9.2024. Recently, the Supreme Court in Rajendra Kumar Barjatya and another vs. U.P. Avas Evam Vikas Parishad and others (Civil Appeal No.14604 of 2024 decided on

17.12.2024) has issued various directions, in larger public interest, to prevent such kind of violations by the builder and occupants. These directions inter alia include strict prohibition on occupation of building without an 'occupancy certificate'. Even after issuance of 'occupancy certificate' if any violation is noticed, the Authorities have to take strict action in accordance with law. The NOIDA, along with the counter affidavit, has filed the layout plan, showing the offending part of the structure with green-diagonal lines. It clearly reveals that the structure has been raised on front and side setbacks and after including some part earmarked for community terrace and as green area. Counsel for the petitioners could not show how the construction was permissible. On the face of it, the offending constructions are against the approved plan. The constructions have also obstructed the fire passage.

10. It was the duty of the petitioners to have ascertained from the sanctioned plan whether the constructions were those which have been approved or were contrary to the sanctioned plan. The sale agreement did not confer right in favour of the petitioners in the building/premises allotted in their favour, unless a registered tripartite sub-lease is executed in their favour, to which, the respondent-Authority is to be party. As already noticed, the occupancy certificate in respect of the building has yet not been issued. In such circumstances, if the petitioners have made payment to the builder or obtained possession, the blame lies on them and they cannot come forward and say that the offending structure should not be demolished as it would result in the petitioner’s losing their hard earned money. The petitioners, vide Clause 32 of the sale agreement, have been given right to claim return of the allotment money. The petitioners have right to sue the builder and recover their investments. They have no independent right to oppose the demolition proceedings.

11. We find no merit in the petitions. The same are accordingly dismissed. However, we leave it open to the petitioners to take appropriate action against the builder as per Clause 32 of the sale agreement between them and the builder. Order Date :- 5.2.2025 Jaideep/- (Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.) JAIDEEP BANERJEE High Court of Judicature at Allahabad

equivalent area on the first floor (in all 2419.484 sq. meters). The total built up area of commercial structure is 2419.4 sq. meters, which is almost five times the permissible limit. There are various other deviations and irregularities. The sewage treatment plant (STP) has not been constructed so far. The commercial structure in dispute comprising of shops/KIOSKs/studio apartments, has been constructed on the front and side setback, thereby blocking the passage for the movement of fire brigade and posing a great risk for the residents. The resident association has also objected to the construction of the illegal structure. The builder was issued several notices, pointing out the illegalities and not to hand over possession without having a valid occupancy certificate. Moreover, under the sale agreement, possession could be handed over to the allottees only after execution of sub-lease in their favour, which has not been done. No right gets conferred in favour of allottees merely on basis of sale agreements. The petitioners have no independent right to contest the demolition proceedings.

5. The builder in some of the cases, has filed a counter affidavit and has stated that it has applied for occupancy certificate on 28/30.9.2024. The builder has denied that it has abandoned the project and has also stated that it had carried out certain works to remove the deficiencies.

6. We have heard counsel for the parties and perused the record.

7. It is not disputed before us that till date, there is no occupancy certificate in respect of the offending structure nor any sub-lease in favour of the petitioners.

8. Clause 37(a) of the Agreement between the petitioners and the builder stipulates as under: - "(a) That the Shop Allottee(s) will be entitled to possession of the said Shop only after all the amounts payable under this Agreement are paid and the Sub Lease Deed in respect of the said Shop is executed and duly registered with the Registrar/Sub-Registrar concerned."

9. Thus, the alleged possession of the petitioners is even contrary to the sale agreement which they have set up in support of their claim. Additionally, at the time of induction of the petitioners, there was no occupancy certificate in respect of the offending structure. It seems that after NOIDA took steps for demolition, an application was moved by the builder for issuance of occupancy certificate only on 28.9.2024. Recently, the Supreme Court in Rajendra Kumar Barjatya and another vs. U.P. Avas Evam Vikas Parishad and others (Civil Appeal No.14604 of 2024 decided on

17.12.2024) has issued various directions, in larger public interest, to prevent such kind of violations by the builder and occupants. These directions inter alia include strict prohibition on occupation of building without an 'occupancy certificate'. Even after issuance of 'occupancy certificate' if any violation is noticed, the Authorities have to take strict action in accordance with law. The NOIDA, along with the counter affidavit, has filed the layout plan, showing the offending part of the structure with green-diagonal lines. It clearly reveals that the structure has been raised on front and side setbacks and after including some part earmarked for community terrace and as green area. Counsel for the petitioners could not show how the construction was permissible. On the face of it, the offending constructions are against the approved plan. The constructions have also obstructed the fire passage.

10. It was the duty of the petitioners to have ascertained from the sanctioned plan whether the constructions were those which have been approved or were contrary to the sanctioned plan. The sale agreement did not confer right in favour of the petitioners in the building/premises allotted in their favour, unless a registered tripartite sub-lease is executed in their favour, to which, the respondent-Authority is to be party. As already noticed, the occupancy certificate in respect of the building has yet not been issued. In such circumstances, if the petitioners have made payment to the builder or obtained possession, the blame lies on them and they cannot come forward and say that the offending structure should not be demolished as it would result in the petitioner’s losing their hard earned money. The petitioners, vide Clause 32 of the sale agreement, have been given right to claim return of the allotment money. The petitioners have right to sue the builder and recover their investments. They have no independent right to oppose the demolition proceedings.

11. We find no merit in the petitions. The same are accordingly dismissed. However, we leave it open to the petitioners to take appropriate action against the builder as per Clause 32 of the sale agreement between them and the builder. Order Date :- 5.2.2025 Jaideep/- (Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.) JAIDEEP BANERJEE High Court of Judicature at Allahabad