One of the important due-diligence exercises that homebuyers are advised to do is to check with the concerned development authority for any violations in the layout plans of the project he or she is investing in. What happens, however, if the sanctioning of the layout plan by the development authority itself is in violation of rules? Can any consumer then, ever protect his or her own interests?
Dealing with the alleged violations of UP Apartment Act 2010 and the Noida Building Regulations in Supertech’s Emerald Court case, the Allahabad High Court states, “The case at hand is not violation of the sanctioned map by the respondent-company (Supertech) but it is a case of violation of building regulations by the Noida Authority, in collusion with the respondent-company, in sanctioning the map, that has adversely affected the rights of the apartment owners. It is for this reason that the Noida Authority did not proceed beyond notices, as they could not hold themselves responsible for sanctioning the map in violation of their own building regulations, of which, they are framers as well as executors.”
The Allahabad High Court, while adjudicating on the matter of illegal construction of two towers – Ceyane and Apex in the Emerald Court group housing project, rejected each and every plea of Supertech and the Noida Authority.
Defending itself against the allegations of violations of building regulations, Supertech argued that the whole project was in two phases - Emerald Court project (Phase-1) comprising 15 towers and Apex and Ceyane (phase-2) comprising towers 16 and 17, with additional purchase of land.
The builder tried to prove that the layout plan for construction of Apex and Ceyane was sanctioned on November 26, 2009, ie, before the enactment of the UP Apartment Act, 2010, and Building Regulations, 2010, respectively, and, therefore, the provisions of the said Act and Building Regulations would not apply to it. The builder also contended that by the last sanction dated March 2, 2012, when both the Apartment Act 2010 and Building Regulations 2010 were in force, only the height of the towers had been raised to 40 storeys (121 mtrs) by purchasing additional Floor Area Ratio (FAR).
Interestingly, Noida Authority, in its counter affidavit, departed from the stand taken by the developer. According to the Authority, the additional plot of land allotted to Supertech and the sanction of the map, on March 2, 2012, was as per Building Regulations 2010 and the developer was required to comply with the provisions of the UP Apartment Act, 2010.
The High Court said, “Examining the pleadings of the parties, on admitted facts, it transpires that the stand of the developer is totally divergent to the stand of the Noida Authority.” The contention of the respondent-company that the map was initially sanctioned, revised and modified when Building Regulations of 2010 were not applicable and possession was handed over before the Apartment Act was in place, was not borne out from the record. The approval for purchase of additional FAR is of the year 2011 and sanction of layout map dated March 2, 2012 is for a single project and imposes the condition of applicability of Apartment Act 2010 on the project. It is a settled principle of law that rules and regulations on the date of sanction, ie March 2, 2012 will apply, the court added.
Holding both Supertech and Noida Authority responsible for overlooking the fire safety norms, the court states, “It is clear that both the respondents (Noida Authority and Supertech) are bound to comply with the provisions of the Fire Safety Act, 2005, and the rules framed thereunder which was enforced way back in the year 2005. The distance between building blocks as well as clear space of 7.5 metres for fire tenders is mandatory, which, admittedly, has been violated while sanctioning the map in the year 2012. The respondent company was put to notice under the Act for violation of distance and space.”
It’s interesting to note that the Allahabad High Court even rejected the pleas of financial loss or proposed sale and said, “It has repeatedly come to our notice that builders by joining hands with the officer of the development authorities openly flout every conceivable rule, including building regulations. The builder is always under the impression that once the frame of the building is illegally constructed then the court can be persuaded to take a sympathetic view and permit the construction even though in total breach of legal provisions.”
“The price of land is skyrocketing and there is scarcity of land in group housing. Taking advantage of the situation, the builder lobby is exploiting the needs of the people by setting up illegal construction... (unfortunately) it has active assistance of the officers,” the court said.
Rule of law cannot be ‘purchased’
The time has come when everyone should realise that rule of law is not a purchasable commodity and illegalities will not be tolerated merely because the builder has taken protection against the sanction which admittedly is illegal and in violation of building regulations.” Sharply criticising the violations in the Emerald Court Project, the Allahabad High Court said once the violations had become clear the court would fail in its duty if the developer was permitted to go ahead with the construction.
The judges also took a very strong view of the fact that Supertech had made false pleas and destroyed facts to mislead the court. Directing the demolition of towers 16 and 17, the court ordered, “The official of the respondent company and the officers of Noida Authority have exposed themselves for prosecution under the Uttar Pradesh Industrial Area Development Act, 1976, and Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010. Sanction for prosecution as required under Section 49 of the UP Urban Development Act, 1973, as incorporated by Section 12 of the UP Industrial Area Development Act, 1976, shall be sanctioned by the competent authority within a period of three months from the date of filing of certified copy of this order.”