Grave in­dict­ment of Noida Author­ity

The Al­la­habad High Court judg­ment has held that Su­pertech and Noida Author­ity col­luded with each other to act against buy­ers’ in­ter­ests

HT Estates - - FRONT PAGE - Jee­van Prakash Sharma

One of the im­por­tant duedili­gence 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 E m e r a l d C o u r t c a s e, t h e 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 ournotice 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.

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