| Headnote |
National Building Regulations, 2006 – Regulation 33.2.3 – National Building Code 2005 – UP Apartment Act 2010 – ss. 4(1), 4(4), 5 – Adherence to minimum distance requirement between buildings – Collusion and illegal construction – Demolition of two towers – NOIDA allotted to the appellant a plot of land for the development of a group housing society and sanctioned the building plan for the construction of fourteen towers, each with ground and nine floors (G+9) – On 05.12.2006, the New Okhla Industrial Development Area Building Regulations and Directions (NBR 2006) were notified – On 29.12.2006, NOIDA sanctioned the first revised plan by which additional buildings were also sanctioned and two additional floors were envisaged in addition to already sanctioned (G+9) – Additional buildings were sanctioned, namely (i) Tower-15 (G+11), (ii) Tower-16 (G+11) and (iii) a shopping complex – In the second revised plan, the earlier T-16 (G+11) was replaced with a T-16 (G+24) and similarly, the shopping complex was replaced with T-17 (G+24) – T-16 and T-17 would each be of a height of 73 mtrs and according to the plan, T-17 was to be at a distance of 9 mtrs. from T-1 – In the third revised plan, the height of T-16 and T-17 was permitted to be raised from 24 floors to 40 floors (i.e., G+40), resulting in the building’s height being 121 mtrs. – The first respondent addressed a communication to NOIDA complaining of violations – Thereafter, first respondent filed a writ petition in the High Court and sought quashing of revised plan of disputed towers and also prayed that the illegal structure be demolished – The High Court allowed the writ petition and directed the demolition of T-16 and T-17, with the expenses of the demolition being borne by the appellant and to refund the consideration received from flat purchasers who had booked apartments – It further directed the Competent Authority to grant sanction for the prosecution of NOIDA’s officials – On appeal, held: The National Building Construction Corporation Limited (NBCC) concluded that the said two towers are not compliant with Regulation 24.2.1.6 of the NBR 2010 – The purpose of stipulating a minimum distance between buildings is a matter of public interest in planned development – The residents who occupy constructed areas in a housing project are entitled to ventilation, light and air and adherence to fire safety norms – As per Regulation 33.2.3 of the NBR 2006, the minimum distance between T-17 and T-1, should be half of the height of the tallest building, that is, half of the height of T-17 which is 36.5 mtrs – It is evident from the record that the distance between T-1 and T-17 is 9 mtrs. only, thus, clearly the second revised plan was violative of the NBR 2006 – In the third revised plan the height of T-16 and T-17 was increased to 121 mtrs. – In accordance with Regulation 24.2.1.6 of NBR 2010, the spacing between a building of height 121 mtrs. and another building would be 16 mtrs. however, the distance between disputed towers was 9 mtrs. – Consequently, the third revised plan was in violation of NBR 2010 – The construction of T-16 and T-17 in accordance with the second revised plan and the third revised plan reduced the value of the undivided interest held by each individual flat owner in the common areas and facilities, thereby violating s.5 of the UP 1975 Act and s.5 of the UP Apartments Act 2010, since the flat owners’ consent was not sought – Further, the third revised plan encroached upon the garden area in front of T-1, thereby resiling from the representation that was made to the flat owners at the time when they purchased the apartments in T-1, without their consent – Therefore, it constituted a violation of s.4(1) r/w. the proviso to s.4(4) of the UP Apartments Act 2010 – The case has revealed a nefarious complicity of the planning authority in the violation by the developer of the provisions of law – NOIDA made no effort to ensure compliance of the UP Apartments Act 2010, as a result of which the rights of the flat purchasers was brazenly violated – The illegal construction of T-16 and T-17 was achieved through acts of collusion between the officers of NOIDA and the appellant and its management – The High Court has correctly come to the conclusion that there was collusion between the developer and the planning authority – Therefore, the directions of the High Court including the order of demolition and for sanctioning prosecution against the officials of the appellant and the officers of NOIDA for violations of the UPIAD Act 1976 and UP Apartments Act 2010 is confirmed – National Building Regulations 2010 – Regulation 24.2.1.6 – Uttar Pradesh Industrial Area Development Act, 1976 – sec. 12 – Uttar Pradesh Urban Development Act, 1973 – sec. 49 – Uttar Pradesh Ownership of Flats Act 1975 – ss. 3(d), 5. |
