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Supertech Limited Vs Emerald Court Owner Resident Welfare Association & Ors: Illegal Construction Has To Be Dealt With Strictly To Ensure Compliance With The Rule Of Law

Tushar Bansode ,
  02 September 2021       Share Bookmark

Court :
The Supreme Court of India
Brief :
In this case, the Supreme Court upheld the order of the High Court for demolition of the 40 story twin tower because of illegal construction.
Citation :
Civil Appeal No. 5041 of 2021 [Arising out of SLP (C) No. 11959 of 2014]

Date of judgement:
31 August 2021

Bench:
Justice Dhananjaya Y Chandrachud
Justice M R Shah

Parties:
Appellant – Supertech Limited
Respondent – Emerald Court Owner Resident Welfare Association & Ors

Subject

In this case, the Supreme Court upheld the order of the High Court for demolition of the 40 story twin tower because of illegal construction.

Legal Provisions

  • Article 226 of the Indian Constitution – The power of the High Court to issue writs.
  • Article 136 of the Indian Constitution – Special Leave Petition.
  • Section 49 of the Uttar Pradesh Urban Planning And Development Act – Sanction of the Vice-Chairman required to initiate proceedings or prosecution against a person for an offence under this Act.

Overview

  • In 2004, NOIDA (New Okhla Industrial Development Authority) had allotted a plot of land to Supertech Limited (appellant) for developing a housing society by the name of Emerald Court. This project in total had three revised plans, which were sanctioned by NOIDA in 2012 under which the height of Tower 16 and 17 was raised from 24 floors to 40 floors.
  • That same year in June, Resident Welfare Association (respondent) made a complaint to NOIDA that the appellants have violated regulations and misrepresented facts to the buyers. Hence, they sought to cancel the layout plans of Towers 16 & 17. When there was no response, they filed a Writ Petition in the Allahabad High Court under Article 226 for demolition of illegal constructions (T-16 and 17).
  • The High Court held that the construction was illegal and was in violation of the Uttar Pradesh Industrial Area Development Act 1976 and UP Apartments Act 2010. It ordered the demolition of the twin 40 storey Tower 16 & 17 and directed the appellants to bear the cost. The court also ordered the appellant to refund the money received as consideration from the flat purchasers with 12% interest.
  • In addition, the court believed that the appellant had connived with NOIDA to obtain permission for such construction. Hence, it further directed the competent authority to grant sanction for prosecuting the officials at NOIDA, within a period of three months as required under the UPUD Act, 1973.
  • The aggrieved appellant approached the Supreme Court under Article 136 and challenged the judgement of the High Court. The Supreme Court further appointed the National Buildings Construction Corporation Limited as an expert agency for an unbiased view. They had submitted that the appellant had in fact violated the provisions of the State Acts and Regulations.

Issues

  • Whether the sanction for the construction of T-16 and T-17 by NOIDA violates the distance requirement under the statutory regulations?

Judgement Analysis

  • The counsel for the appellant contended that the construction of T-16 and T-17 does not violate the distance rule under NBR, 2010. He also stated that it did not violate the UP Apartments Act of 2010 because the project was sanctioned before the said Act came into force. Therefore, he pleaded with the court to set aside the order of demolition because a) the construction was sanctioned by the proper authorities, b) 600 persons have booked apartments, c) almost 30 floors have been constructed.
  • The counsel for the Resident Welfare Association argued that the sanction was illegally obtained by the appellant. The minimum distance criteria required to be followed as per the Regulations were ignored by the appellant, as per the report of the expert agency. He also pointed out that the appellant failed to obtain the consent of the flat owners before altering the sanction plan, which they were under obligation to obtain as per the UP Apartments Act, 2010. He finally alleged that the appellant and NOIDA have connived to circumvent the building regulations.
  • After carefully examining the revised and sanctioned plans of the project and listening to the submissions of the learned counsels, the Supreme Court upheld the verdict passed by the High Court. It observed that appellants have raised false pleas to mislead the court and NOIDA has also acted mala fide while discharging of its duties. The bench ordered that the demolition of the twin towers should be completed within 3 months and the builder shall bear all the costs.
  • The facts of the case also indicate that there was definitely collusion between the officers of NOIDA with the appellant in the process of sanctioning as a result of which the Supreme Court ordered the sanction for prosecuting the officers in charge under Section 49 of the UPUD Act for violating provisions of UPIAD Act, 1976 and UP Apartments Act, 2010.
  • While passing the judgement, the Court held that the purpose of these aforementioned regulations is to ensure that there is no negative environmental impact and the safety standards are complied with. However, if they are so brazenly violated, it strikes at the very core of urban planning. Bearing that in mind, illegal construction has to be dealt with strictly to ensure compliance with the rule of law.

Conclusion

The Supreme Court has observed that there has been an increase in unauthorized constructions primarily in urban areas due to the soaring price of real estate. Various builders are conspiring with the officers of developing authorities and are violating the regulations. In light of such nefarious complicity, it has become imperative to take strict action against such illegal constructions to deter such crimes in the future.

The court reiterated what it held in K. Ramadas Shenoy V. Chief Officer, that unregulated construction affects the right of enjoyment of property of the residents of an area. Thus, it is the duty of the competent authority to ensure that the area is not adversely affected by such illegal constructions.

Click here to download the original copy of the judgement

 
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