Holding

The revised plans for T-16 and T-17 violated the applicable building regulations, fire‑safety norms, and the UP Ownership of Flats Act 1975 and UP Apartments Act 2010, and therefore must be demolished.

Summary

The Supreme Court examined the legality of two towers (T-16 and T-17) constructed by Supertech Limited in the Emerald Court project in NOIDA. It held that the revised plans violated the National Building Regulations 2006 and 2010, as well as the National Building Code 2005, because the distance between the new towers and the existing Tower T-1 was far less than the required half‑height or 16‑metre minimum spacing. The Court also found that the towers breached fire‑safety norms and reduced the undivided interest of existing flat owners in common areas, contravening the Uttar Pradesh Ownership of Flats Act 1975 and the Uttar Pradesh Apartment Act 2010, which required consent of all owners. Evidence showed collusion between Supertech and NOIDA officials in granting illegal sanctions and withholding plan documents. Consequently, the Court affirmed the High Court's order to demolish the towers, imposed demolition costs on the appellant, and ordered refunds with interest to the affected flat purchasers.

Issues considered

The revised plans for T-16 and T-17 complied with the distance requirements under NBR 2006, NBR 2010 and NBC 2005.
Whether the sides of T-1 and T-17 constitute "dead‑end sides" that would permit a reduced spacing under Regulation 24.2.1(6) of NBR 2010.
Whether the construction of T-16 and T-17 required the consent of all existing flat owners under the UP Ownership of Flats Act 1975 and the UP Apartments Act 2010.
Whether NOIDA and Supertech colluded to sanction illegal construction in violation of statutory building regulations and fire‑safety norms.

Legislation cited

National Building Code 2005 (NBC 2005)s. Para 8.2.3.1, s. Para 8.2.3.2
National Building Regulations 2006 (NBR 2006)s. Regulation 33.2.3
National Building Regulations 2010 (NBR 2010)s. Regulation 24.2.1(6)
Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act 2010s. Section 4(1), s. Section 4(4), s. Section 5
Uttar Pradesh Fire Prevention and Fire Safety Act 2005
Uttar Pradesh Industrial Area Development Act 1976 (UPIAD Act 1976)s. Section 12
Uttar Pradesh Ownership of Flats Act 1975s. Section 2, s. Section 5(2), s. Section 5(3)
Uttar Pradesh Urban Development Act 1973 (UPUD Act 1973)s. Section 49

Subjects

building regulationsminimum distancedemolitioncollusionflat owners' rightsUP Apartments Actfire safetyillegal construction

Judgment

976 [2021]REPORTS
SUPREME COURT 13 S.C.R.976 [2021] 13 S.C.R.

A SUPERTECH LIMITED
v.
EMERALD COURT OWNER RESIDENT WELFARE
ASSOCIATION & ORS.
B (Civil Appeal No. 5041 of 2021)
AUGUST 31, 2021
[DR DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
National Building Regulations, 2006 – Regulation 33.2.3 –
C
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
D 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
E
(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
F 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
G
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
H purchasers who had booked apartments – It further directed the
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Competent Authority to grant sanction for the prosecution of NOIDA’s A
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
B
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 C
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
D
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 E
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)
F
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 G
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
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978 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 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.
B
Disposing of the appeals, the Court
HELD: 1. There was a challenge to the revised plans by
which the construction and increase in the height of T-17 (Apex)
and T- 16 (Ceyane) were envisaged. In the first revised plan of
C 29 December 2006, T-16 was to partially comprise of G+11, the
rest being G+4. A shopping complex was envisaged comprising
of G+1 floors. A triangular green area is indicated in the first
revised plan of 29 December 2006 in front of T-1. In the second
revised plan of 26 November 2009, T-17 (Apex) and T-16
(Ceyane) came to be envisaged with twenty-four floors and of a
D height of 73 mtrs. each. In the third revised plan of 2 March
2012, the number of floors of T-16 and T- 17 was increased further
from twenty-four to forty floors (for T-16) and thirty-nine floors
(for T-17), and the height of each of the towers was increased
from 73 mtrs. to 121 mtrs. In this backdrop, the relief which was
E sought in prayer (i) was for quashing the revised plan for the
construction of the two new towers – T-17 (Apex) and T-16
(Ceyane). This clearly implicates a challenge both to the second
revised plan of 26 November 2009 as well as the third revised
plan of 2 March 2012. [Para 47][1019-F-H; 1020-A-B]

F 2. A brazen attempt at stonewalling the first respondent
was made by the appellant and NOIDA before the High Court.
The sanctioned plans incorporate the condition that a copy of
each plan would be made available at the site. Despite this, when
the first respondent sought copies of the sanctioned plans and
other information, NOIDA wrote to the appellant asking for their
G consent to provide the plans to the first respondent. When the
appellant refused, NOIDA’s refusal to the RWA followed suit. It
was only pursuant to the interim directions of the High Court
that the sanctioned plans and documents were provided to the
first respondent. The reliefs which have been sought encompass
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a challenge to the validity of the second and third revised plans, A
under which the two towers, T- 17 (Apex) and T-16 (Ceyane),
were being constructed. [Para 48][1020-C-E]
Violation of distance requirement under Building
Regulations
3. The first issue is whether the sanction for the B
construction of T-16 and T-17 by NOIDA is in violation of the
distance requirement under applicable building regulations.
[Para 49][1020-E-F]
4. Regulations 33.2.3 of the NBR 2006 refers to the
distances between adjacent ‘building blocks’ which shall not be C
less than half of the height of the tallest building. The purpose of
this regulation is not to apply it only as between building blocks
as distinguished from buildings within a block. Clause (1) of
Regulation 33.2.3 has used the expression ‘building blocks’ and
‘height of tallest building’ in the same sentence. These D
expressions must be given a meaning which accords with common
sense and in furtherance with the object and the purpose of the
said Regulation. The plain meaning of the expression is that when
there are two adjacent blocks, the height of the tallest building
will determine the distance required to be observed, with the
distance being not less than half the height of the tallest building. E
Consequently, when two or more buildings exist in proximity
together, they comprise of a building block within the meaning of
Clause (1) of Regulation 33.2.3. In such an eventuality, the
distance between each of the buildings comprised in the block
shall also not be less than half of the height of the tallest building. F
The reference to the height of the tallest building is evidently
made because this kind of a building will likely overshadow the
buildings of a lesser height in a cluster of proximate construction.
Therefore, the regulation has defined the minimum distance
required with reference to half the height of the tallest building.
Any other construction will defeat the purpose of Regulation G
33.2.3 and cannot be accepted. [Para 68][1033-D-H]
5. Applying the NBR 2006 to the facts of the present case,
the construction of T- 16 and T-17 was envisaged in the second

H
980 SUPREME COURT REPORTS [2021] 13 S.C.R.

A revised plan dated 26 November 2009. The height of the said
towers was to be 73 mtrs., while the height of other towers,
including T-1, was to be 37 mtrs. Thus, 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
B
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.
[Para 69][1034-A-B]
6. Now, coming to the NBR 2010. Regulation 24.2.1(6) has
prescribed the requirement of maintaining varying distances
C between two adjacent blocks from a minimum of 6 mtrs. extending
up to 16 mtrs., depending on the height of blocks. The content to
the first sentence of this regulation is further amplified by what
follows it. The next part of the regulation stipulates that for a
building of height up to 18 mtrs., “spacing” shall be 6 mtrs. The
D expression “spacing” in its plain terms means the observance of
a stipulated distance. Where the height of the building is up to 18
mtrs., “the spacing” shall be 6 mtrs. Thereafter, for a height above
18 mtrs., the minimum distance has to be increased by one meter
for an additional height of three mtrs. subject to a maximum
distance or spacing of 16 mtrs. “as per National Building Code –
E 2005”. [Para 70][1034-C-E]
7. NOIDA, before it granted sanction for enhancing the
height of T-16 and T-17 from G+24 to G+40 (or 39, as the case
may be), was duty bound to apply its mind to whether there was a
compliance with the provisions of Regulation 24.2.1.6. The third
F revised plan which was sanctioned on 2 March 2012 has evidently
glossed over the clear deficiency of open space with reference to
the NBR 2010, the consequence of which would have been to
reject the proposal for a further increase in the height of the
towers from twenty-four floors to forty floors. Yet NOIDA has
G chosen to lend its support to the appellant in clear defiance of
the provisions of law. [Para 73][1035-G-H; 1036-A]
8. The only reasonable hypothesis which emerges from the
disclosures made is that the argument which was sought to be
advanced – that Towers 1, 16 and 17 are part of a cluster of
H buildings comprised within a block, thus obviating the need to
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 981
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maintain the minimum distance between them – is an A
afterthought. It is contrary to the stated position which has been
adopted by the appellant in its affidavit before the High Court.
The record before this Court also indicates that the appellant
has taken liberties with the truth in making the submission that a
cluster of towers in the project constitutes a block which allows
B
the appellant to subvert the minimum distance requirement. [Para
82][1043-F-G]
9. Significantly, it must be noted that the second revised
plan of 2009, which has been placed on record, does not show
the existence of blocks and is duly endorsed by NOIDA. Similarly,
the third revised plan of 2012, which is also on the record, does C
not embody any description of blocks. Therefore, this Court is in
no manner of doubt that the argument sought to be developed in
the course of these proceedings that there were separate blocks
in the plan is an afterthought. It is contrary to the stated position
which has been adopted by the appellant on affidavit before the D
High Court. It is contrary to the sanctioned plans. What is worse
is that an effort was made to place on the record before the High
Court a purported plan of dubious origin by seeking to pass it of
as the second revised plan of 2009. [Para 86][1046-C-D]
Interpretation of “dead end sides of buildings” E
10. The interpretation of the expression ‘dead end side of
the building’, the sides of T-1 and T-17 facing each other are held
not to be dead end sides for the following reasons:
(i) The windows/corridors of T-17 on all floors except the
ground floor have an opening on the side that faces T-1. Though F
this is contested by the appellant, it has been conceded that there
are at least a few windows/balconies in T-1 facing T-17 and vice
versa;
(ii) The entries of T-1 and T-17 do not face each other but
are perpendicular to each other. However, the entry to T-1 is G
from the side facing T-17;
(iii) Four out of five external sides of T-1 that face T-17 are
dead end sides.

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982 SUPREME COURT REPORTS [2021] 13 S.C.R.

A However, the fifth side is a balcony of the living room facing
T-17. The distance between points of the buildings cannot be
selectively measured to argue its compliance with the distance
rule; and
(iv) Even though the entry of T-1 facing T-17 is 20 mtrs.
B away, the distance rule is not complied with since a selective
measurement from the dead end points cannot be undertaken.
The distance must be measured along the ground.
Thus, we find that the revised plans were in violation of
NBR 2010 and do not fall under the exception provided in
C Regulation 24.2.1.6 for blocks having dead end sides. [Para
111][1059-E-H; 1060-A-B]
Violation of NBC 2005
11. According to the NBC 2005, the spacing between T-1
and T-17 should be 20.45 mtrs. Evidently then, the second and
D third revised plans were not in accordance with the NBC 2005.
This conclusion is fortified by the report of the NBCC, which in
para 5 reaches the conclusion that the minimum open space
around T-17 is to be 20.45 mtrs. and thus, the distance between
T-1 and T-17 does not comply with para 8.2.3.1 of the NBC 2005.
E [Para 112][1061-B-C]
Violation of Fire Safety Norms
12. Regulation 76 of NBR 2006 states that the building must
be planned and constructed in accordance with Part IV of National
Building Code 1970, amended as of that day. Para 4.6 of NBC
F 2005 states that the approach to the building and the open spaces
on all the sides of a high rise building shall be 6 mtrs. and that the
layout of the building must be made in consultation with the CFO.
However, para 8.2.3.1 of NBC 2005 prescribes a minimum of 16
mtrs. side and rear spaces for buildings that are higher than 55
mtrs. Therefore, on reading NBC 2005 as a whole, the side and
G
rear space around the building must be 16 mtrs. The distance
between T-1 and T-17 is only 9 mtrs., which is less than the
required 16 mtrs. Given that the rear distance requirement under
NBC 2005 has not been complied with, the NOC given by the
CFO stands automatically cancelled. [Paras 119-120][1063-B-D]
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Consent of the RWA A
13. Having held above that the sanction for the construction
of T-16 and T-17 were given by NOIDA in contravention of the
minimum distance requirement provided by the Building
Regulations, we will advert to the next issue. It has been
contended by RWA that the sanction could not have been revised B
without the consent of the flat purchasers in the original fifteen
towers. While analyzing this issue, it is first important to consider
the appellant’s preliminary objection that the UP 1975 Act is not
applicable to the present case. After addressing the preliminary
objection, this Court shall analyze whether the consent was
actually required under the UP 1975 Act and UP Apartments Act C
2010. [Para 121][1063-E-G]
Applicability of UP 1975 Act
14. Under sub-Section (2) of Section 5, the percentage of
the undivided interest of each owner of a flat in the common areas D
and facilities, as expressed in the Declaration, shall not be altered
without the consent of all the owners of the flats expressed
through an amended Declaration which shall be executed and
registered under the Act. [Para 124][1065-C-D]
15. The submission urged on behalf of the appellant is that E
the UP 1975 Act has no application to the present case, in view of
the provisions of Section 2. In the backdrop of this provision,
more particularly, clause II(h) of the lease deed which was
executed by NOIDA in favour of the appellant on 16 March 2005,
the appellant was duty bound to comply with the provisions of
the UP 1975 Act. By submitting before this Court that it is not F
bound by the terms of its agreement or the Act for want of a
declaration under Section 2, the appellant is evidently attempting
to take advantage of its own wrong. [Paras 125 and 129][1067-B;
1068-E-F]
Applicability of the UP Apartments Act 2010 G
16. It is important to clarify that the UP Apartments Act
2010 will not apply with retrospective effect to the second revised
plan, which was sanctioned on 26 November 2009. However, the
legislation, which came into force upon publication in the UP
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984 SUPREME COURT REPORTS [2021] 13 S.C.R.

A Gazette on 19 March 2010, will have consequences for the third
revised plan sanctioned on 2 March 2012. [Para 136][1073-B-C]
Requirement of RWA’s Consent
17. Finally, the appellant has also tried to argue that: (i) the
consent of each individual flat owner could not be taken and it
B had to be taken from the RWA, as a collective body; (ii) the RWA
only came into existence on 20 October 2013, when it adopted
the Model Bye-Laws under the UP Apartments Act 2010l (iii)
that this was after the third revised plan was sanctioned; and (iv)
hence, there existed no association to take consent from. The
C High Court had dealt with this argument. It is clear that: (i) the
RWA came into existence in 2009 itself, when the first lot of
apartment owners moved in; (ii) the appellant was communicating
with the RWA ever since; and (iii) the RWA adopted the Model
Bye-Laws under the UP Apartments Act 2010, as soon as it was
practicable. These averments have not been challenged before
D this Court during the oral submissions by the appellant, and hence,
it will be held bound by its own conduct. In any case, rights under
the UP 1975 Act and UP Apartments Act 2010 have been provided
to individual flat owners, and not to collective bodies like the
RWA. Hence, even the non-constitution of the RWA will not
E extinguish the rights of individual flat owners. Indeed, however,
when such RWAs do exist, developers may use them to seek a
common consent from all the flat owners instead of approaching
them all individually. [Para 142][1076-C-D; 1077-B-C]
Collusion and Illegal Construction
F 18. The record of this case is replete with instances which
highlight the collusion between the officers of NOIDA with the
appellant and its management. The case has revealed a nefarious
complicity of the planning authority in the violation by the
developer of the provisions of law. The complicity of NOIDA has
G emerged, inter alia, from the following instances:
(i) The sanctioning of the second revised plan on 26
November 2009 in clear breach of the NBR 2006;
(ii) The refusal by NOIDA to disclose the building plans to
the first respondent, in spite of a clear stipulation consistently in
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all the sanctioned plans that the plan would have to be displayed A
at the construction site of the appellant;
(iii) NOIDA’s referral of RWA’s request to access the
sanctioned plans to the appellant to seek its consent and upon
the refusal of the latter, a continuous failure to disclose them to
the RWA; B
(iv) Even when the CFO addressed a communication to
NOIDA in regard to the violation of the minimum distance
requirements in Emerald Court, it evinced no response and no
investigation from them;
(v) In pursuance of the second revised plan of 26 September C
2009, the appellant would appear to have built a foundation to
support two buildings of forty and thirty-nine floors, while the
sanction for the extension from twenty-four to forty or thirty-nine
floors came about only on 2 March 2012 through the third revised
plan; and D
(vi) The construction for T-16 and T-17 commenced in July
2009 by the appellant, five months before the sanction was
received for the second revised plan on 26 November 2009, in
spite of which NOIDA chose to take no action. [Para 143][1077-
D-H; 1078-A-C] E
19. The judgments of this Court spanning the last four
decades emphasize the duty of planning bodies, while sanctioning
building plans and enforcing building regulations and bye-laws to
conform to the norms by which they are governed. A breach by
the planning authority of its obligation to ensure compliance with F
building regulations is actionable at the instance of residents
whose rights are infringed by the violation of law. Their quality of
life is directly affected by the failure of the planning authority to
enforce compliance. Unfortunately, the diverse and unseen group
of flat buyers suffers the impact of the unholy nexus between
builders and planners. Their quality of life is affected the most. G
Yet, confronted with the economic might of developers and the
might of legal authority wielded by planning bodies, the few who
raise their voices have to pursue a long and expensive battle for
rights with little certainty of outcomes. As this case demonstrates,
they are denied access to information and are victims of
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986 SUPREME COURT REPORTS [2021] 13 S.C.R.

A misinformation. Hence, the law must step in to protect their
legitimate concerns. [Para 148][1079-E-G]
20. In the present case, once this Court has determined
that the sanctioned plan for Apex and Ceyane (T-16 and T-17)
breached the NBR 2006, NBR 2010, NBC 2005, UP 1975 Act
B and the UP Apartments Act 2010, it becomes its duty to take
stock of the violations committed by the appellant in collusion
with NOIDA. The appellant has raised false pleas and attempted
to mislead this Court, while the officials of NOIDA have not acted
bona fide in the discharge of their duties. The appellant has
stooped to the point of producing a fabricated sanctioned plan.
C Therefore, the directions of the High Court including the order
of demolition and for sanctioning prosecution under Section 49
of the UPUD Act, as incorporated by Section 12 of the UPIAD
Act 1976, against the officials of the appellant and the officers of
NOIDA for violations of the UPIAD Act 1976 and UP Apartments
D Act 2010 is confirmed. [Para 155][1084-C-E]
Conclusion
21. To summarize findings, the documentary materials
referred to and analyzed in this judgment indicate that:

E (i) The land allotted to appellant under the original lease
agreement and the supplementary lease deed constitute one plot;
(ii) The land which was allotted through the supplementary
lease deed forms a part of original Plot No 4, and would be
governed by the same terms and conditions as the original lease
F deed;
(iii) The sanction given by NOIDA on 26 November 2009
and 2 March 2012 for the construction of T-16 and T-17 is violative
of the minimum distance requirement under the NBR 2006, NBR
2010 and NBC 2005;
G (iv) An effort was made to get around the violation of the
minimum distance requirement by representing that T-1 together
with T-16 and T-17 form one cluster of buildings in the same
block. This representation was sought to be bolstered by
providing a space frame between T-1 and T-17. The case that
T-1, T-16 and T-17 are part of one block is directly contrary to
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the appellant’s stated position in its representations to the flat A
buyers as well as in the counter affidavit before the High Court.
The suggestion that T-1, T-16 and T-17 are part of one block is
an after-thought and contrary to the record;
(v) After realizing that the building block argument would
not pass muster, another false case was sought to be set up with B
the argument that T-1 and T-17 are dead end sides, thereby
obviating the need to comply with the minimum distance
requirements. This argument is belied by the comprehensive
report submitted by NBCC. The sides of T-1 and T-17 facing
each other are not dead end sides since both the sides have vents/
egresses facing the other building; C

(vi) By constructing T-16 and T-17 without complying with
the Building Regulations, the fire safety norms have also been
violated;
(vii) The first revised plan of 29 December 2006 contained D
a clear provision for a garden area adjacent to T-1. In the second
revised plan of 26 November 2009, the provision for garden area
was obliterated to make way for the construction of Apex and
Ceyane (T- 16 and T – 17). The common garden area in front of
T-1 was eliminated by the construction of T-16 and T-17. This is
violative of the UP Apartments Act 2010 since the consent of the E
flat owners was not sought before modifying the plan promised
to the flat owners; and
(viii) T-16 and T-17 are not part of a separate and distinct
phase (Phase–II) with separate amenities and infrastructure. The
supplementary lease deed stipulates that the they are part of the F
original project. Hence, the consent of the individual flat owners
of the original fifteen towers, individually or through the RWA,
was a necessary requirement under the UP Apartments Act 2010
and UP 1975 Act before T-16 and T-17 could have been
constructed, since they necessarily reduced the undivided G
interest of the individual flat owners in the common area by adding
new flats and increasing the number from 650 to 1500; and The
illegal construction of T-16 and T-17 has been achieved through
acts of collusion between the officers of NOIDA and the appellant
and its management. [Para 156][1084-F-G; 1085-A-H; 1086-A-
C] H
988 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 22. For the reasons indicated above, this Court has come
to the conclusion that:
(i) The order passed by the High Court for the demolition
of Apex and Ceyane (T-16 and T-17) does not warrant interference
and the direction for demolition issued by the High Court is
B affirmed;
(ii) The work of demolition shall be carried out within a
period of three months from the date of this judgment;
(iii) The work of demolition shall be carried out by the
appellant at its own cost under the supervision of the officials of
C NOIDA. In order to ensure that the work of demolition is carried
out in a safe manner without affecting the existing pleadings,
NOIDA shall consult its own experts and experts from Central
Building Research Institute Roorkee;
(iv) The work of demolition shall be carried out under the
D overall supervision of CBRI. In the event that CBRI expresses
its inability to do so, another expert agency shall be nominated
by NOIDA;
(v) The cost of demolition and all incidental expenses
including the fees payable to the experts shall be borne by the
E appellant;
(vi) The appellant shall within a period of two months refund
to all existing flat purchasers in Apex and Ceyane (T-16 and T -
17), other than those to whom refunds have already been made,
all the amounts invested for the allotted flats together with
F interest at the rate of twelve per cent per annum payable with
effect from the date of the respective deposits until the date of
refund in terms of Part H of this judgment; and
(vii) The appellant shall pay to the RWA costs quantified at
Rs 2 crore, to be paid in one month from the receipt of this
G judgment. [Para 157][1086-C-H; 1087-A-B]
K. Ramadas Shenoy v. Chief Officer, Town Municipal
Council (1974) 2 SCC 506 : [1975] 1 SCR 680; Dr
G.N. Khajuria v. Delhi Development Authority (1995) 5
SCC 762 : [1995] 3 Suppl SCR 212; Friends Colony
H Development Committee v. State of Orissa (2004) 8 SCC
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 989
WELFARE ASSOCIATION

733 : [2004] 5 Suppl. SCR 818; Priyanka Estates A
International (P) Ltd. v. State of Assam (2010) 2 SCC
27 : [2009] 16 SCR 80; Esha Ekta Apartments Coop.
Housing Society Ltd. v. Municipal Corpn. of Mumbai
(2013) 5 SCC 357 : [2013] 4 SCR 478 – relied on.
Kerala State Coastal Zone Management Authority v. B
State of Kerala (2019) 7 SCC 248; Kerala State Coastal
Zone Management Authority v. Maradu Municipality,
Maradu 2018 SCC OnLine SC 3352; Bikram Chatterji
v. Union of India (2019) 19 SCC 161 – referred to.
Case Law Reference C
[1975] 1 SCR 680 relied on Para 149
[1995] 3 Suppl. SCR 212 relied on Para 150
[2004] 5 Suppl. SCR 818 relied on Para 151
[2009] 16 SCR 80 relied on Para 152 D
[2013] 4 SCR 478 relied on Para 153
(2019) 7 SCC 248 referred to Para 154
(2019) 19 SCC 161 referred to Para 154
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5041 E
of 2021.
From the Judgment and Order dated 11.04.2014 of the High Court
of Judicature at Allahabad in Writ Petition (Civil) No. 65085 of 2012.
With F
Civil Appeal Nos. 5042, 5043, 5044, 5045, 5046, 5047, 5048, 5049,
5050 of 2021, Contempt Petition (C) No. 380 of 2021 in SLP (C) No.
14314 of 2014, Contempt Petition (C) No. 381 of 2021 in SLP (C) No.
14314 of 2014, Contempt Petition (C) No. 382 of 2021 in SLP (C) No.
14314 of 2014, Contempt Petition (C) No. 383 of 2021 in SLP (C) No.
G
14314 of 2014 and Contempt Petition (C) No. 384 of 2021 in SLP (C)
No. 14314 of 2014.
Vikramjit Banerjee, ASG, Vikas Singh, Ms. Meenakshi Arora,
Jayant Bhushan, Raviondra Kumar Raizada, Sr. Advs., R. Chandrachud,
Rajnish Singh, Kapish Seth, Ms. Deepika Kalia, Sandeep Rana,
H
990 SUPREME COURT REPORTS [2021] 13 S.C.R.

A Ms. Tanya Kalra, Anurag Dubey, Sarvendra Singh, S.R. Setia, T.V.S.
Raghavendra Sreyas, Ms. Gayatri Gulati, Siddharth Vasudev, Ms. Mahima
Gupta, Ravindra Kumar, Somiran Sharma, M. Shoeb Alam, Faisal
Sherwani, Shantanu Krishna, Shubham Saigal, Ashish Rana, Gaurav
Agrawal, Abraham Mathew, Nishe Rajen Shonker, Mullapudi Rambabu,
S.A. Haseeb, M.K. Maroria, Ms. Aakansha Kaul, Digvijay Dam, Umang
B
Shankar, Rajeev Singh, Ms. Pinky Behera, Mrs. Bina Gupta, Vishwa
Pal Singh, Anish Agarwal, Ms. Vanshika Gupta, Kunal Ravi, Ketan Paul,
Tushar Bhushan, Amartya Bhushan, Gaurav Kejriwal, Ravi Prakash
Mehrotra, Milind Kumar, Bhakti Vardhan Singh, Rajeev Kumar Dubey,
Saurav Singh Chauhan, Ashiwan Mishra, Kamlendra Mishra, Tarun
C Gupta, Ms. Prachi Mishra, Chaitanya Bansal, Arjun Garg, M.C. Dhingra,
Ms. Trishala Trivedi, Ajay Bhargava, Ms. Vanita Bhargava, Ms. Maithili
Moondra, M/s Khaitan & Co., J.B. Mudgil, Ms. Sweta Rani, Sumeet
Agarwal, Abhijeet Sinha, Ms. Dania Nayyar, Krishnamohan K.,
M/s Unuc Legal Llp, Ms. Aparna Bhat, Sumit R. Sharma, Gopal Jha,
P.S. Gosain, Shreyash Bhardwaj, Nishant Verma, Mohammed Sadique
D
T.A., Nitish Massey, Advs. for the appearing parties.
Intervenor-in-person.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
E
INDEX
A Factual and procedural history
A.1 The appeals
A.2 The Emerald Court project
F
A.3 First Revised Plan
A.4 Second Revised Plan
A.5 Third Revised Plan

G A.6 Complaints against the Revised Plans
A.7 Proceedings before the Allahabad High Court
A.8 Proceedings before this Court
B Submissions by Counsel
H C Prefatory observations
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 991
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

D Violation of distance requirement under Building A
Regulations
D.1 Violation of NBR 2006 and 2010
D.1.1 Interpretation of “building blocks”
D.1.2 Interpretation of “dead end sides of buildings”
B
D.2 Violation of NBC 2005
D.3 Violation of Fire Safety Norms
E Consent of the RWA
E.1 Applicability of UP 1975 Act
C
E.2 Applicability of the UP Apartments Act 2010
E.3 Requirement of RWA’s Consent
F Collusion and Illegal Construction
G Conclusion
D
H Interlocutory Applications
1. Leave granted.
A Factual and procedural history
A.1 The appeals
2. These appeals have arisen from a judgment of a Division Bench E
of the High Court of Judicature at Allahabad dated 11 April 2014, upon a
writ petition1 instituted by the first respondent, the Residents’ Welfare
Association2 of Emerald Court Group Housing Society3.
3. By its judgment, the High Court directed:
F
(i) The demolition of Towers -16 4 and 17 5 by the third
respondent, New Okhla Industrial Development Authority6,
in Emerald Court situated on Plot No 4, Sector 93A, NOIDA
constructed by the appellant, Supertech Limited7;

G
1
Writ Petition (Civil) No 65085 of 2012
2
“RWA”
3
“Emerald Court”
4
“T-16”/”Ceyane”
5
“T-17”/”Apex”
6
“NOIDA” H
992 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (ii) The cost of demolition and removal would be borne by the
appellant, failing which NOIDA shall recover it as arrears
of land revenue;
(iii) Sanction for prosecution under Section 49 of the Uttar
Pradesh Urban Development Act 19738, as incorporated
B by Section 12 of the Uttar Pradesh Industrial Area
Development Act 19769, shall be granted for the prosecution
of the officials of the appellant and the officers of NOIDA
for possible violations of the UPIAD Act 1976 and Uttar
Pradesh Apartment (Promotion of Construction, Ownership
& Maintenance) Act 201010; and
C
(iv) Refund by the appellant of amounts invested by purchasers
who had booked apartments in T-16 and T-17, with interest
at fourteen per cent, compounded annually.
4. The correctness of these directions is challenged before this
D Court in the present appeals.
A.2 The Emerald Court project
5. On 23 November 2004, NOIDA allotted to the appellant a plot
of land admeasuring 48,263 sq. mtrs., which was a part of Plot No 4
situated in Sector 93A. This plot of land was allotted for the development
E of a group housing society, by the name of Emerald Court.
6. The first deed of lease was executed on 16 March 2005
between the appellant and NOIDA. A possession certificate was issued
on 17 March 2005.
7. On 20 June 2005, NOIDA sanctioned the building plan for the
F
construction of Emerald Court consisting of fourteen towers, each with
ground and nine floors (G+9). This sanction was granted under the New
Okhla Industrial Development Area Building Regulations and Directions
198611. The construction commenced for these fourteen towers.
A.3 First Revised Plan
G

7
“Supertech”
8
“UPUD Act 1973”
9
“UPIAD Act 1976”
10
“UP Apartments Act 2010”
11
H “NBR 1986”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 993
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

8. On 21 June 2006, a supplementary lease deed was executed A
by NOIDA in favour of the appellant for an additional land area of 6556.51
sq. mtrs. in the same plot of land in Plot No 4. Adding to the existing
holding allotted under the first lease deed, the total leased area allotted
to the appellant increased to 54,819.51 sq. mtrs. The supplementary
lease deed noted that:
B
(i) The demised premises shall be deemed to be part of Plot No
4, Sector 93A, NOIDA as already leased to the appellant;
(ii) All other conditions of the original lease deed and allotment
shall remain unchanged and would be applicable to the newly
demised premises, and bind the appellant; C
(iii) The period of lease shall commence from 16 March 2005;
and
(iv) The total area of Plot No 4, Sector 93A, NOIDA is 54,819.51
sq. mtrs.
D
The possession certificate in respect of the additional land was
issued to the appellant on 23 June 2006.
9. On 5 December 2006, the New Okhla Industrial Development
Area Building Regulations and Directions 200612 were notified. Under
the NBR 2006, the Floor-Area-Ratio13 was increased from 1.5 to 2 for
E
new allottees after 2006. Regulation 33.2.3(i) provided as follows:
“33. ‘Floor area ratio’ Floor Area Ratio. Ground coverage and
height limitations.
[…]
33.2.3 Any other utilities as decided by Chief Executive Officer F
depending on its requirement.
i. Distance between two adjacent building blocks shall not be less
than half of the height of the tallest building.”
10. On 29 December 2006, NOIDA sanctioned the first revised G
plan for Emerald Court under the NBR 2006, by which two additional
floors were envisaged in addition to the already sanctioned G+9 floors in
the original fourteen towers, thereby bringing all of them to ground and
eleven floors (G+11). Furthermore, additional buildings were also
12
“NBR 2006”
13
“FAR” H
994 SUPREME COURT REPORTS [2021] 13 S.C.R.

A sanctioned, namely: (i) Tower-15 (comprising of ground and eleven floors
(G+11)); (ii) T-16 (comprising of a cluster of wings including 1 wing of
ground and eleven floors (G+11) and 3 wings of ground and four floors
(G+4)); and (iii) a shopping complex (comprising of ground and first
floor (G+1)). As a consequence, under the first revised plan, NOIDA
permitted a total of sixteen towers (G+11) (which would each be 37
B
mtrs. in height) and one shopping complex (G+1). It is important to note
that the appellant was able to have this additional construction due to the
area that was made available to it under the supplementary lease deed,
and further, when the appellant had allotted flats to the purchasers, only
a small building on the additional leased area was sanctioned. Pertinently,
C it is also necessary to highlight that the first revised plan contemplated a
green area in front of Tower- 114. According to the purchasers, when
the flats were sold, the brochure of the appellant contained information
in accordance with the first revised plan dated 29 December 2006, which
shows the area in front of T-1 as a green area.
D 11. On 10 April 2008, a completion certificate was granted in
relation to the first eight towers (G+11). Thereafter, various owners of
flats were granted possession by the appellant. Crucially, the completion
map also indicated a green area in front of T-1, where currently T-16
and T-17 are being constructed.
E A.4 Second Revised Plan
12. On 28 February 2009, a notification was issued by the State
of Uttar Pradesh enhancing the FAR from 2 (as provided under the
NBR 2006) to 2.75 for new allottees. Further, the notification also
provided for “purchasable FAR”, according to which old allottees (such
F as the appellant) could purchase FAR to the maximum extent of thirty-
three per cent of their base existing FAR of 1.5.
13. On 3 July 2009, NOIDA decided that the stipulation to purchase
thirty-three per cent FAR of the existing base FAR for old allotees under
the notification dated 28 February 2009, should be brought at par with
G other allotees. As a consequence, the purchasable FAR for old allotees
would be enhanced to 2.75. However, the notification by the State of
Uttar Pradesh in this regard was still awaited. The appellant states that,
in any case, based on the decision of NOIDA, it planned the construction

14
H “T-1”/ “Aster 2”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 995
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

of T-16 and T-17 in a way that catered to the additional FAR which may A
be available for purchase at a later date.
14. On 19 November 2009, relying on the notification dated
28 February 2009, the appellant purchased thirty-three per cent of its
existing base 1.5 FAR at the cost of Rs eight crores, increasing its available
FAR to 1.995. B
15. However, it appears from the record that the appellant had
already started construction of the disputed towers – Apex and Ceyane
– prior to the grant of this sanction by NOIDA. On 16 July 2009, the
appellant informed the flat owners that:
“1. That we have bought two separate plots measuring C
approximately 48000 square meter and 6500 square meter and
got them registered separately in March 2005 & May 2006
respectively.
2. That the new towers which are being constructed will have
altogether separate entry, exit, swimming pool, club & basic D
infrastructure. We will also construct boundary wall separating
two structure i.e. existing 15 towers & Apex Ceyane.”
16. The above communication of the appellant indicates that:
(i) The construction of T-16 and T-17 had already commenced
E
on 16 July 2009;
(ii) According to the appellant, these new towers would have
separate entry-exit, amenities and infrastructure; and
(iii) The new towers would be separated from the existing fifteen
towers by the construction of a boundary wall. F
The appellant represented to the flat-owners that a revised building
plan for replacing the existing T-16 (G+11) and the shopping complex
(G+1) was sanctioned, with twin towers T-16 and T-17, each of G+24
floors and a height of 73 mtrs., replacing them.
17. On 11 September 2009, the Chief Fire Officer of Gautam G
Budh Nagar15, the fourth respondent, issued a report to the In-charge
(Building Cell) NOIDA, Sector 6 for the grant of the provisional Non-

15
“CFO” H
996 SUPREME COURT REPORTS [2021] 13 S.C.R.

A Objection Certificate16 for T-16 and T-17. The provisional Fire NOC
was made subject to compliance with the requirements of the National
Building Code, 200517.
18. On 16 September 2009, a completion certification was granted
in relation to another six towers (G+11). The completion map
B accompanying this certificate again showed the green area in front of
T-1, where presently T-16 and T-17 are being constructed.
19. On 26 November 2009, NOIDA sanctioned the second revised
plan for Emerald Court under the NBR 2006. In this plan, the earlier
T-16 (G+11) was replaced with a T-16 consisting of ground and twenty-
C four floors (G+24). Similarly, the shopping complex (G+1) was replaced
with T-17 consisting of ground and twenty-four floors (G+24). T-16 and
T-17 would each be of a height of 73 mtrs. According to the plan, T-17
was to be at a distance of 9 mtrs. from T-1, and there was a provision
for their connection through a space-frame at the upper level. This plan
was sanctioned by NOIDA on the basis of the appellant having purchased
D thirty-three per cent of the purchasable FAR (27,135.657 sq. mtrs.), in
addition to the permissible 1.5 FAR (82,229.265 sq. mtrs.), totalling to
1.995 FAR (1,09,364.922 sq. mtrs.). The second revised plan expressly
provided for the following, among other conditions:
“2. Due to this sanction of the building plan, the right and ownership
E of any government authority like (municipality, NOIDA) any other
person will not get affected.
[…]
8. A set of sanctioned building plan shall be kept at the
F construction site so that it can be checked at the site at any
time and the construction work shall be done as per the
sanctioned building plans specifications as per the rules of
Noida Building Rules. The allottee shall start the construction
work of the ground floor only after getting the inspection of the
basement done upon completion of the work of basement from
G building section department, Noida. Otherwise sanctioned map
deemed to be cancelled.”
(emphasis supplied)

16
“NOC”
17
H “NBC 2005”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 997
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

A.5 Third Revised Plan A
20. On 20 February 2010, a notification was issued by the State
of Uttar Pradesh enabling old allotees to purchase FAR of up to 2.75
and, as a consequence, the limit of a maximum purchasable FAR of
thirty-three per cent of the existing base FAR was removed. The
notification contemplated that “the purchasable FAR shall be allowed up B
to the maximum limit of applicable FAR”. The notification also amended
the NBR 2006, which expressly provided that:
“Purchasable FAR is an enabling provision. It shall not be allowed
to any allottee as a matter of right.”
21. On 19 March 2010, the UP Apartments Act 2010 came into C
force. Section 4(4) and Section 5 of this Act provide for the consent of
the owners of flats before any change in the sanctioned plans is effected
and also envisage that the percentage of undivided common interest of
the owners of the flats cannot be changed without their consent.
22. On 30 November 2010, the New Okhla Industrial Development D
Area Building Regulations 201018 came into force. Regulation 24.2.1.(6)
contains the following stipulations:
“(6). Distance between two adjacent building blocks
Distance between two adjacent building blocks shall be minimum
E
6 mtrs. to 16 mtrs, depending on the height of blocks. For building
height up to 18 mts., the spacing shall be increased by 1 metre for
every addition of 3 mtrs. as per National Building Code 2005. If
the blocks have dead-end sides facing each other, than the spacing
shall be maximum 9 mtrs. instead of 16 mtrs. Moreover, the allottee
may provide or propose more than 16 mtrs space between two F
blocks.”
23. On 18 August 2011, the CFO granted a temporary NOC in
respect of T-16 and T-17, for a height of 121.5 mtrs. with proposed
ground and thirty-eight floors (G+38). It was noted that once the buildings
were constructed and proper fire safety equipment was installed, they G
would be inspected in order to assess whether a permanent NOC should
be granted.
24. On 25 October 2011, in view of the notification dated 20
February 2010, the appellant purchased an additional FAR at a cost of
18
“NBR 2010” H
998 SUPREME COURT REPORTS [2021] 13 S.C.R.

A Rs 15 crores, so as to enhance the available FAR from 1.995 to 2.75
(1,50,753.652 sq. mtrs.). On the same date, NOIDA issued a letter to
the appellant in relation to the purchase of the FAR, imposing several
requirements, including compliance with the provisions of the UP
Apartments Act 2010.
B 25. On 2 March 2012, the third revised plan was sanctioned by
NOIDA for Emerald Court. Through this sanction, 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. Further, T-16
and T-17 would also consist, inter alia, of two basements and open
space for parking beneath the towers. The third revised plan also
C contained a requirement of compliance with the UP Apartments Act
2010, along with similar requirements which were present in the second
revised plan.
A.6 Complaints against the Revised Plans

D 26. On 9 March 2012, the appellant addressed a communication
to the first respondent intimating that the flat purchasers of T-16 and
T-17, which were under construction, would have altogether separate
entry-exit, amenities and infrastructure.
27. On 29 March 2012, the office of the CFO, on the basis of a
E complaint by the first respondent, issued a notice to the appellant in
regard to certain deficiencies and violations in complying with fire safety
requirements.
28. On 24 April 2012, the CFO, on the basis of another complaint
by the first respondent, addressed a communication to NOIDA in regards
F the violation of the minimum distance between T-1 and T-17. The letter,
inter alia, states:
“When record was perused in respect of the above, it was found
that:
[…]
G 2. There should be a minimum distance of half of the height of
building in between two building blocks as per Clause No. 33.2.3.
of Building Construction Regulations, 2006 and there should be a
distance of 16 meters in between the buildings whose height is
more than 50 meters as per Noida Regulations, 2010.
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 999
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

3. There should be a distance of 16 meter in between two buildings A
situated side by side as per National building Code of India –
2005.
Therefore, you are requested that in the light of above kindly inform
that license was granted for construction of building after providing
relaxation to the building in question in Special Category or B
construction is being carried out by the concerned is contrary to
the standards.”
29. On 3 May 2012 and 22 May 2012, the first respondent filed an
RTI application with NOIDA for obtaining the sanctioned plans in relation
to Plot No 4 of Sector 93A. Though under the terms of the sanctioned C
plans the appellant was required to display the sanctioned map at its site,
NOIDA still wrote to the appellant to verify whether the sanctioned
plans and maps could be made available to the first respondent. The
appellant in response refused to grant its consent to release sanctioned
plans and maps to the first respondent. Hence, NOIDA refused to provide
the sanctioned plans to the first respondent. D

30. On 19 June 2012, a show cause notice was issued by NOIDA
to the appellant stating that: (i) the construction was not in accordance
with the third revised plan since, inter alia, T-1 and T-16/17 were not
joined by a space frame; and (ii) a copy of the plan had not been exhibited
at the site office. The appellant replied to the show cause notice on E
26 June 2012 stating that T-16 and T-17 were still under construction
and the space frame would be built at the time of construction.
31. On 26 June 2012, NOIDA issued a completion certificate to
the appellant in respect of Tower-15 (G+11).
F
32. On 28 June 2012, the first respondent addressed a
communication to NOIDA complaining of violations and
misrepresentations made to the owners by the appellant, and sought
cancellation of the layout plan of the two new towers, T-16 and T-17.
The first respondent followed up its earlier communication with letters
dated 9 and 29 August 2012 demanding information, and intimating that G
the construction was being carried out by the appellant in violation of the
norms.
A.7 Proceedings before the Allahabad High Court

H
1000 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 33. On 10 December 2012, the first respondent filed a writ petition
under Article 226 of the Constitution before the High Court seeking
inter alia the following reliefs:
“i. Issue a writ, order or direction quashing the revised plan
approved by respondent 2 for construction of new towers namely
B Tower ‘APEX’ and ‘CEYANE’ in plot no. 4, Sector 93-A, and
issue further directions for demolishing of aforesaid towers, the
approval and construction being in complete violation of provisions
of U.P. Apartments Act of 2010.
ii. Issue a writ, order or direction directing the Respondent 2 not
C to sanction amendments to any further building plans in respect of
the Group Housing Society being developed by respondent 5
without obtaining consent of all the residents.
iii. Issue a writ, order or direction quashing the permission granted
to respondent 5 to link Tower T-1 and T ‘APEX’ / ‘CEYANCE’
D through space frame.
iv. Issue a writ, order or direction directing respondents 2 and 3 to
ensure that fire safety equipment and infrastructure is installed at
the expenses of respondent 5 within a specified period.
v. Issue a writ, order or direction directing respondent 2 to demolish
E illegal construction made in the basement and setback area as per
notice dated 19.06.2012 and 17.07.2012.
vi. Issue a writ or direction directing respondent no. 2and 5 to
provide car parking spaces (both aboveground and in the
basement) as per the provisions of the NBC 2005 to all the legal
F allottees/residents of Supertech Emerald Court Complex, plot 4,
Section 93-A NOIDA.”
34. The first respondent only pressed reliefs i and iii, seeking a
direction to quash the revised plan which approved the construction of
T-16 and T-17, and to demolish them. The first respondent also sought
G the quashing of the permission granted to link T-1 and T-16/T-17 though
a space frame. During the pendency of the writ proceedings, in pursuance
of a specific order of the High Court, the RWA was provided with the
sanctioned maps together with related information and documents in
respect of the construction at the site. Pleadings were subsequently
exchanged between the parties.
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1001
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

35. The appellant filed a counter affidavit on 27 January 2013 A
submitting that:
(i) The first respondent is not recognised by the appellant under
the UP Apartments Act 2010;
(ii) The first respondent should have first approached the Chief
Executive Officer of NOIDA, who is the competent authority B
under the UP Apartments Act 2010, and then the State
Government, before approaching the High Court under the
writ jurisdiction;
(iii) Construction of T-16 and T-17 was approved on 26 November
2009, but the writ petition had been filed after three years in C
December 2012, when the building is in an advanced stage of
construction. Hence, the writ petition is barred by delay and
laches; and
(iv) T-16 and T-17 were sanctioned in 2009 under the NBR 2006.
The final sanction given on 2 March 2012 only increased the D
height of the towers from twenty-four floors to forty floors,
after the appellant purchased the additional FAR. Under the
NBR 2006, there is no provision with regard to the minimum
distance between two “building blocks”. Since the NBR 2006
did not incorporate the NBC 2005, the mandatory requirement E
of 16 mtrs. between two building blocks for buildings higher
than 55 mtrs. need not be followed. The distance requirement
between two building blocks was only mandated by NBR
2010, which is not applicable since the initial sanction for T-
16 and T-17 was given under NBR 2006.
F
36. NOIDA in its counter affidavit dated 7 February 2013 stated
that:
(i) It allotted the plot to the appellant by complying with the NBR
2010. The sanction was also given with the specific condition
that the UP Apartments Act 2010 must be complied with;
G
(ii) Plot No 4 is not divided into two projects. It is unified and
belongs to a single project; and
(iii) The permission for the construction of a space frame
connecting T-1 with T-16/T-17 was granted only after the
design was approved by IIT Roorkee. H
1002 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 37. The High Court allowed the writ petition on 11 April 2014 and
directed the demolition of T-16 and T-17, with the expenses of the
demolition being borne by the appellant. It further directed the Competent
Authority to grant sanction for the prosecution of NOIDA’s officials as
required under the UPUD Act 1973, within a period of three months.
The High Court also directed the appellant to refund the consideration
B
received from flat purchasers who had booked apartments in T-16 and
T-17, with fourteen per cent interest compounded annually. While allowing
the writ petition, the High Court made the following observations:
(i) The first respondent had the locus to institute proceedings
under Article 226 of the Constitution. The flats were handed
C over to the purchasers by September 2009. The RWA was
formed and registered with the Registrar of Societies in the
same year. The Model Bye-Laws under the UP Apartments
Act 2010 were notified by the Government on 16 November
2011. However, the Deputy Registrar Firms, Societies and
D Chits, Meerut, Uttar Pradesh issued a letter on 14 December
2012 stating that pending instructions from the Registrar, no
decision could be taken in respect of the Model Bye-Laws
and registration. The Registrar by a circular dated 5 December
2013 issued instructions for registration of the first respondent
under the UP Apartments Act 2010. On 20 October 2013, the
E first respondent by its resolution adopted the Model Bye-Laws
and conducted its elections. Further, in any case, the appellant
had recognized the first respondent since its inception and
had corresponded with it continuously. The appellant had never
raised objections on its competence to represent the flat
F purchasers. The grant of sanction by NOIDA in violation of
the relevant building regulations affects the rights of every
apartment owner, who is represented through the first
respondent. Hence, the first respondent is a ‘person aggrieved’
and was entitled to initiate the writ proceedings;
G (ii) The first respondent under Article 226 was not barred by the
available remedy of approaching either the CFO, NOIDA
under the UP Apartments Act 2010 or the State under Section
27 of the UPIAD Act 1976. Though the first respondent raised
its grievance before NOIDA, no notices were issued and there
was no follow up. Only if NOIDA had issued an order, could
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SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1003
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

the first respondent have approached the State Government A
under Section 27 of the UPIAD Act 1976. Thus, there was
no other alternative remedy that was available to first
respondent but to initiate writ proceedings;
(iii) The appellant must have submitted a declaration in the office
of the competent authority with regard to the construction of B
the building under the UP Apartments Act 2010. Rule 4 of the
Uttar Pradesh Apartment (Promotion of Construction,
Ownership and Maintenance) Rules 2011 states that when
the competent authority receives an application for amendment
of the declaration, it shall issue a written notice to the
association of the building owners and an order shall be passed C
by the competent authority only after the association is given
the opportunity of being heard. Since no such notice was given
to the association, it is an ‘aggrieved person’ and thus has the
locus to initiate writ proceedings;
(iv) The original building plan was sanctioned when NBR 2006 D
was in force. However, the approval for purchase of additional
FAR was made in 2011. It is a settled principle of law that the
rules and regulations applicable on the date of the sanction
would determine the rights of the parties. The sanction given
on 2 March 2012 further imposed a condition of applicability E
of the UP Apartments Act 2010. Therefore, both the NBR
2010 (and NBC 2005, since NBR 2010 makes it applicable)
and the UP Apartments Act 2010 shall be applicable;
(v) The contention of appellant that the project was in two phases
is not borne out from the record since NOIDA has permitted F
the purchase of additional FAR and granted the subsequent
sanction treating the project as a single project. The plans
submitted and sanctioned were for a single project, and an
attempt has been made by the appellant to mislead the court;
(vi) Regulation 24.2.1(6) of the NBR 2010 states that for buildings G
up to the height of 18 mtrs., the spacing between two adjacent
building blocks shall be 6 mtrs. and the spacing shall be
increased by 1 mtr. for every 3 mtrs. above 18 mtrs., but
subject to a maximum distance of 16 mtrs. Para 8.2.3.1 of
the NBC 2005 states that for buildings higher than 55 mtrs.,
H
1004 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 16 mtrs. open space must be left in the sides and rear. Since
the height of T-17 is 121 mtrs., the distance between the
building blocks must at least be 16 mtrs. However, the distance
is only 9 mtrs. and is deficient by 7 mtrs.;
(vii) The appellant, in collusion with NOIDA, obtained sanctions
B for the layout map in violation of the mandatory requirement
for space to be maintained between building blocks and clear
space;
(viii) The provisions of the UP Fire Prevention and Fire Safety
Act 200519 were required to be complied with, according to
C which the minimum distance of 7.5 mtrs. between building
blocks and a clear space must be provided, which has been
violated in the third revised plan of 2012;
(ix) The submission of the appellant that the expression ‘building
blocks’ having not been defined in the NBR 2010, would mean
D the entire set of buildings on Plot No 4 is contrary to the NBR
2006 and NBR 2010. The sanctioned plans show that the
appellant got the layout approved, consisting of separate
blocks. The nomenclature of the blocks was subsequently
changed in each successive plan, and finally the buildings were
numbered as T-1 to T-17. The sanctioned plans clearly show
E that T-1 and T-16/17 are separate building blocks; and
(x) The plan sanctioned by NOIDA was contrary to: (a) the
building regulations; (b) the mandatory distance between
building blocks; and (c) the movement space required, as a
result of which the rights of the apartment owners and the
F safety of their apartment blocks have been seriously affected.
A.8 Proceedings before this Court
38. The appellant filed a Special Leave Petition under Article 136
of the Constitution on 28 April 2014 assailing the judgment of the High
Court. On 5 May 2014, this Court directed the maintenance of status
G
quo in respect of T-16 and T-17, directing that neither the builder nor the
purchaser shall alienate the property or create third party rights. During
the course of the hearings on 19 July 2016 and 27 July 2016, the appellant
and NOIDA submitted that the Court may have the view of an expert
19
H “Fire Safety Act”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1005
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

agency on the issue and engage an expert for this purpose. On the A
submission of the Additional Solicitor General, the National Buildings
Construction Corporation Limited20, a government owned enterprise, was
appointed to examine various facts in relation to the dispute, particularly
those having a bearing on whether the two towers (T-1 and T-17) have
dead-end sides facing each other. By its report dated 13 October 2016,
B
the NBCC concluded that the two towers are not compliant with
Regulation 24.2.1.6 of the NBR 2010. Apart from the report which has
been submitted by the NBCC, the first respondent had commissioned
IIT Delhi and IIT Roorkee to report on the disputed issue of ‘dead ends’.
Reports by them have been placed on the record.
39. By its interim orders dated 6 September 2016 and 11 January C
2017, this Court directed that a group of applicants be given ten per cent
per month towards return of investment21. On 22 September 2017, this
Court directed Mr Gaurav Agarwal, Amicus Curiae, to create a portal
link to coordinate with the appellant and the flat purchasers on issues
relating to refund. Further, this Court directed that the principal amount D
along with interest of fourteen per cent shall be provided to the flat
purchasers who have opted not to wait for the decision of this Court in
the present Special Leave Petition.
40. By an order dated 30 July 2018, this Court with the assistance
of the Amicus Curiae classified the home buyers into the following E
groups, based on the refund option chosen by them:
(i) Refund of principal amount along with twelve per cent simple
interest per annum (one hundred and one home buyers);
(ii) Home buyers who still insist on getting interest at the rate
of fourteen per cent (twenty-four home buyers) - since a F
substantial number of home purchasershave agreed to twelve
per cent interest, these twenty-four purchasers were also
directed to accept the twelve per cent interest rate;
(iii) Home buyers through the Subvention Scheme – in such
cases, the EMIs shall be paid by the appellant until the G
possession is handed over; and
(iv) Disputed cases - Mr Sanjeev Agrawal and Ms Rashmi Arora
have paid Rs 38,51,009 and Rs 17,43,162 respectively by
20
“NBCC”
21
“ROI” H
1006 SUPREME COURT REPORTS [2021] 13 S.C.R.

A cheque. The said amount shall be refunded with a simple
interest at twelve per cent per annum.
B Submissions by Counsel
41. Mr Vikas Singh, learned Senior Counsel appearing on behalf
of the appellant urged the following submissions:
B
(i) The sanction and construction of T-16 and T-17 is not
violative of the distance rule under NBR 2010:
a. NBR 2010 does not apply to T-16 and T-17, since they
were first sanctioned in the second revised plan issued
C under the NBR 2006. Under the NBR 2006, the distance
provision in Regulation 33.2.3(i) was not mandatory and
it was open to the CEO to stipulate the distance
requirement depending upon the exigencies of a lay out
plan. In any case, the Regulation applies to the distance
between two building blocks and does not govern the
D distance between the T-1 and T-17, which form a part
of the same block. Further, if this provision was
mandatorily applied, then it would also affect the first
revised plan, in which the heights of the fifteen other
towers is 37.5 mtrs. while the distance with the adjacent
E blocks was less than half the height, i.e., less than 18.75
mtrs.;
b. Even if NBR 2010 was to apply, T-16 and T-17 are part
of the same building block consisting of T-1, Tower-2,
Tower-3 and T-17, which is connected by a space frame
F to T-1. Hence, Regulation 24.1.2(6) of the NBR 2010,
which provides for a distance to be maintained between
“adjacent building blocks” (“Bhawan Samuh”/cluster of
buildings), is not applicable in respect of the distance
between T-17 and T-1;
c. The concept of a building block has been explained in a
G
note submitted by NOIDA to the High Court. While using
the FAR, the only requirement is to maintain a certain
percentage as an open/green area. Instead of scattering
the buildings over the total project area, group housing
projects can envisage adjacent towers or even a block
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1007
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

of towers so as to ensure a large open green space rather A
than scattered small spaces all over the project;
d. In the alternative, even if the they are not part of the
same building block, T-17 being a “tower like structure”,
para 8.2.3.2 of the NBC 2005 is attracted in terms of
Regulation 24.2.1(6). In accordance with para 8.2.3.2, B
the minimum distance for buildings of a height of less
than 37.5 mtrs. is 9 mtrs., while for buildings of a greater
height, it is 12 mtrs. Further, in accordance with para
8.2.3.2(d), the deficiency of this distance at the ground
level can be made good at the upper levels. Hence,
maintaining a minimum distance of 16 mtrs. between C
“tower like structures” is not an inviolable requirement;
e. In the present case, the minimum distance between T-1
and T-17 varies from 9.88 mtrs (at the ground level) to
25.75 mtrs (at the upper level), since the total height of
T-1 is 27.61 mtrs. while that of T-17 is 84.5 mtrs. As D
such, it is in compliance with NBC 2005; and
f. The Model Bye-Laws 2016 issued by the Ministry of
Urban Development, Government of India prescribe a
9 mtrs. space around any building irrespective of the
height beyond 40 mtrs.; E

(ii) The sanction to construct T-16 and T-17 is not violative of
the UP Apartments Act 2010:
a. T-16 and T-17 were sanctioned on 26 November 2009,
and hence the requirement of prior consent did not arise, F
since the Act was not in force then;
b. The flat owners of T-1 to T-15 who already had
possession of their flats would not be “intended
purchasers” under the proviso to Section 4(4) of UP
Apartments Act 2010, and their consent was not required
G
for the construction of additional floors in T-16 and
T-17;
c. The consent of all flat owners would be impractical, and
at best the consent of the RWA would suffice. On 2
March 2012, when the third revised plan was sanctioned,
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1008 SUPREME COURT REPORTS [2021] 13 S.C.R.

A the RWA was not functional and it was only on 20
October 2013 that the RWA adopted the Model Bye-
Laws under the UP Apartments Act 2010;
d. There has been no violation of the common area facilities
of the flat owners of T-1 to T-15 by the creation of T-16
B and T-17, since they have been planned with separate
entries and exit facilities together with infrastructure;
and
e. A majority of the flat owners of T-1 to T-15 was fully
aware of the sanction to construct T-16 and T-17 since:
C (i) 245 flats were booked till the first revised plan in
2006; (ii) between 2006 and until the second revised
plan in 2009, 141 flats were booked; (iii) after the second
revised plan and until the third revised plan in 2012, 114
flats were booked; and (iv) after the third revised plan
in 2012 till 2 August 2021, 159 flats have been
D purchased;
(iii) There has been no violation of fire safety norms:
a. A provisional Fire NOC was received on 11 September
2009, prior to the sanction on 26 November 2009. The
E fire department thereafter granted another temporary
NOC for T-16 and T-17 on 18 August 2012, prior to the
sanction dated 2 March 2012; and
b. Under NBR 1986 and NBR 2006, buildings were required
to be compliant with fire safety norms prescribed in Part-
F IV of the NBC 2005. Para 4.6(b) of the NBC 2005
provides that for high rise buildings, open spaces on all
sides up to a width of 6 mtrs. shall be available for free
movement of fire tenders. In the present case, there is
a clear space of 9 mtrs. between T-1 and T-17, which
allows a free movement of fire tenders;
G
(iv) The Uttar Pradesh Ownership of Flats Act 197522 is not
applicable:
a. Under Section 2, the Act applies only to properties, the
owners of which submit to the provisions of the Act by
22
H “UP 1975 Act”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1009
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

executing a declaration. As such, the Act does not A
automatically apply to all properties and none of the flat
owners have made executed any such declaration
presently;
b. Clause II(h) of the lease deed dated 26 March 2005
deals with maintenance, and cannot be construed to B
incorporate the application of the UP 1975 Act; and
c. If the contention of the first respondent is accepted, the
changes made by the first revised plan in T-1 to T-15,
involving an increase in the height of all towers from
nine to eleven floors, would also to be illegal; C
(v) There is no green area violation in the sanctioning of T-16
and T-17:
a. A triangular green space in the first revised plan was
planned for the newly proposed T-16 (G+11) and
shopping complex (G+1). This area was over and above D
the mandatory green area (soft landscape) required to
be maintained on the plots under the NBR 2006;
b. The central green area was sanctioned in the original
plan of 2005. The required green area under Regulation
38 of the NBR 2006 was twenty-five per cent of the E
open area, which would be 11,538,02 sq. mtrs. whereas
the appellant had provided a green area of 12,064.91 sq.
mtrs. in the form of a central park;
c. T-1 was not sold on the promise of a green space area
in front of it and none of the buyers were charged F
preferential location charges; and
d. Only eleven flats in T-1, out of a total of 44, were booked
after the sanctioning of first revised plan and before the
second revised plan. Out of these eleven, only seven
flats were facing towards T-17. Even in these seven, G
there were no windows/balconies facing T-17, but only
small bathroom windows;
(vi) The sanction of T-16 and T-17 is based on a valid certificate
as regards the structural design of the towers;
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1010 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (vii) The appellant has not collected the entire lease rent payable
to NOIDA only from the flat owners of T-1 to T-15. It has
only collected around Rs 7.5 crores, while it itself has paid
around Rs 14 crores; and
(viii) The order for demolition of T-16 and T-17 is liable to be set
B aside on ground of equity:
a. The construction was carried out with the sanction of
the authorities;
b. 600 persons had purchased flats in these towers;

C c. Construction began in December of 2009, and third-party
rights in favour of the purchasers have been crystalized;
d. The petition was filed before the High Court in December
2012; and
e. 28 floors in T-17 and 26 floors in T-16 were constructed
D as on 20 December 2013 when arguments were
concluded before the High Court, and by the time that
the judgment was delivered, 32 floors had been
constructed.
Hence, the order of demolition would be harsh and inequitable.
E 42. Supplementing the submissions of Mr Vikas Singh, Mr Ravindra
Kumar, learned Counsel appearing on behalf of NOIDA, made the
following submissions:
(i) Para 8.2.3.2 of NBC 2005 provides that for buildings of
heights between 24 mtrs. to 37.5 mtrs. with one setback,
F the open space at the ground level shall not be less than 9
mtrs. Since the height of the existing tower Aster-2 (T-1) is
less than 37.5 mtrs., the minimum space required between
this tower and T-17 is only 9 mtrs. Further, the deficiency
of open space can be made good through set-backs at the
G upper level. However, since the height of T-1 is not proposed
to be increased and the tower is open from all three sides,
this requirement need not be fulfilled;
(ii) The various NOIDA Building Regulations have not been
violated as they do not prescribe the minimum distance
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1011
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

between two towers. It only refers to the distance between A
‘building blocks’, with reference to the NBC 2005;
(iii) If building blocks have dead end sides facing each other,
then the space between two building blocks shall be a
maximum of 9 mtrs. as per the NBR 2010. Similar provisions
are found in other building bye-laws such as Delhi Building B
Bye Laws, Bhubaneshwar Development Authority Building
Byelaws, and Model Building Byelaws prepared by the
Ministry of Urban Development;
(iv) The Fire Safety Act has also been adhered to, as it requires
a minimum distance of 6 mtrs. between two towers to C
provide space for movement of fire tenders;
(v) The construction of the buildings was not stayed by the
High Court, which has now jeopardized the rights of third-
parties, who will now be aggrieved by the order of
demolition; D
(vi) At the time of sanction of the second revised plan dated 26
November 2009, the UP Apartments Act 2010 had not been
enacted. With respect to grant of sanction to the third revised
plan, the power to sanction the plans or revisions vests with
NOIDA and is not curtailed by the UP Apartments Act E
2010;
(vii) UP Apartments Act 2010 does not mandate the taking of
any consent or NOC from the RWA prior to sanction of
plans. In spite of this, an obligation was placed on the
appellant to abide by the provisions of UP Apartments Act F
2010, while sanctioning the third revised plan dated 2 March
2012;
(viii) While sanctioning the third revised plan, there was no
change in the ground coverage area of T-16 and T-17 and
only their proposed heights were increased; and
G
(ix) There is no factual foundation to conclude that there had
been any collusion between the appellant and NOIDA.
43. Mr Jayant Bhushan, learned Senior Counsel appearing on
behalf of RWA urged that the members of the RWA purchased their
flats after being shown a layout which included a limited number of flats H
1012 SUPREME COURT REPORTS [2021] 13 S.C.R.

A and gardens, including a garden in front of T-1. Many of the allottees are
retired persons who have suffered as a result of the unilateral changes
made by the appellant, which resulted in an increase in the number of
flats from 689 to 1573. The garden area in front of T-1 has been
completely removed and instead of a complex of 11 storeyed buildings,
two long and tall structures have been sanctioned without the consent of
B
the existing allottees obliterating their right to light, air, view and garden
area, thereby endangering their safety. Mr Bhushan submitted that:
(i) The sanctions of 2009 and 2012 are in violation of the
minimum distance criteria required to be maintained
between two buildings. Under Regulation 32.3.1(i) of the
C NBR 2006, the distance required is half the height of the
tallest building. The tallest building, T-17, under the second
revised plan of 2009 is 73 mtrs. and hence, the minimum
distance of 36.5 mtrs. was required between T-1 and T-17.
Even the existing T-1 is of 37 mtrs. height and therefore,
D even a building smaller than T-1 could come up only at a
distance of at least 18.5 mtrs from T-1;
(ii) Regulation 24.2.1(6) of the NBR 2010 requires a minimum
distance of 16 mtrs. between T-1 and T-17, as opposed to 9
mtrs. at the side;
E (iii) Under para 8.2.3.1 of NBC 2005, the distance required
between buildings would be 16 mtrs. plus ten per cent of
the building length minus 4 mtrs. The length of the proposed
tower is 84.5 mtrs., and hence the distance required would
be (16 + (10 per cent of 84.5) – 4), which is equal to 20.45
F mtrs.;
(iv) The requirement of complying with NBC 2005 is prescribed
by NBR 2010 and the NOC issued by the CFO in 2009. In
this regard, on 24 April 2012, the CFO inquired from NOIDA
how the new buildings were sanctioned in violation of the
G distance criteria prescribed in NBR 2006 and 2010, and
NBC 2005, which was not responded to by NOIDA;
(v) NBCC, which was appointed by this Court at the request
of the appellant, has stated in its report that the distance
requirement has been violated;
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1013
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(vi) In response to the argument of the appellant that T-1, T-16 A
and T-17 form part of one building block, obviating the
requirement of minimum distance, it was submitted that:
a. NBC 2005 refers to the distance between buildings and
not building blocks;
b. The expression “building block” though used in NBR B
2006 and 2010, has not been defined in either of the
regulations. The rationale for the distance between
building blocks is to ensure fire safety evacuation, light
and ventilation. It cannot be left to the builder to designate
groups of buildings as one building block since the C
purpose of maintaining the minimum distance would be
seriously compromised. The expression must take its
colour from NBC 2005 and every building must be a
building block; and
c. The reports submitted by the IITs of Delhi and Roorkee D
specify functional requirements of distance between
buildings including:
i. fire separation to avoid transmission between buildings;
ii. safe escape and rescue during fire;
E
iii. ventilation; and
iv. daylight access.
These requirements have been severely compromised
due to the lack of the minimum distance between T-1
and T-17; F
d. Regulation 24.2.1(6) of NBR 2010 refers to NBC 2005
as the source of the distance requirement. The
interpretation of the phrase ‘building block’ in NBR 2010
and 2006 must be consistent with NBC 2005;
e. The first revised plan of 2006 shows that each building G
was intended to be a separate block;
f. The initial argument of the appellant was that T-1 and
T-17 are on separate plots and were never intended as
the same block. Subsequently, the appellant claimed that
H
1014 SUPREME COURT REPORTS [2021] 13 S.C.R.

A they were constructed in separate phases and were to
have separate facilities. Later, it introduced a false and
unapproved map showing T-1, T-2, T-3, T-16 and T-17
as one block;
g. The affidavit of the appellant dated 4 August 2021 before
B this Court states that T-16 and T-17 will have separate
facilities including entry and exit;
h. T-1, T-16 and the shopping complex as sanctioned in the
first revised plan of 2006 were distanced and were
different blocks altogether;
C i. The construction of T-1 was completed in April 2008
and possession was granted to allottees. It was not legally
possible to construct T-17 in 2008 since it was first
sanctioned only in November 2009;
j. The road between T-1 and T-17 is the main road for the
D society and leads into the basement and parking;
k. The basement of T-1 has one level while T-17 has two
levels;
l. The foundation of T-1 is made to bear a load of only
eleven floors. The appellant has claimed that though the
E
foundation of T-17 was laid in 2009, when only twenty-
four floors were sanctioned, it was meant to bear a load
of forty floors, which were sanctioned only in 2012;
m. The connection of two building blocks with the space
frame would not make it one building block; and
F
n. The appellant itself was unconvinced by the building block
argument and raised the ‘dead end’ side issue, which
led to the appointment of NBCC by this Court to verify
the facts. After a negative report from NBCC, the
appellant has once again fallen back on the building block
G argument to assert that blocks can be defined at the
discretion of the developer;
(vii) In response to the submission of the appellant that the
buildings are “tower like structures” under the NBC 2005
and thus, meet the minimum distance mandated, it was
H submitted that:
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1015
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

a. Requirements of NBR 2006 and 2010 and NBC 2005 A
are independent and hence, the defence of a tower like
structure under the NBC 2005 cannot cure violations of
the NBRs;
b. T-17 does not have any set-backs and has the same
width throughout; B
c. At least 12 mtrs. distance is required at the ground level
even for tower like structures; and
d. The deficiency of the mandated open space of 16 mtrs.
under the NBC 2005 in tower-like structures can be
cured by set-backs on upper levels. However, the C
distance of 12 mtrs. at the ground level is still mandatory;
(viii) Possession of flats in T-1 was given to purchasers in 2008.
The second and third revised plans of 2009 and 2012
respectively proposed a space frame connecting T-1 and
T-17 when the residents had already started living in T-1. D
This is illegal and a safety hazard;
(ix) Under the lease, the undivided interest in common areas
stood transferred to the respective allottees. The owners
of the existing flats had paid the entire lease amount and
more. While the appellant paid Rs 13 crores as onetime E
lease rent, the buyers of existing flats (other than those in
T-16 and T-17) were charged over Rs 16 crores;
(x) Consent of flat owners was required under UP Apartments
Act 2010 before an alteration in the sanctioned plan:
F
a. Sections 4(4) and Section 5(3) of the UP Apartments
Act 2010 requires the consent of all allottees before a
change in the sanctioned plan/undivided interest in the
common area is made. The removal of the green area
reduced the common areas and, with an increase in the
flats from 689 to 1573, the proportionate undivided G
interest in the common areas has been reduced
substantially;
b. The UP Apartments Act 2010 is applicable irrespective
of whether or not a society is formed. The rights are
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1016 SUPREME COURT REPORTS [2021] 13 S.C.R.

A vested with the apartment owners and not the
association; and
c. Gardens as well as land are included in the definition of
common areas over which all residents have rights;
(xi) Consent of flat owners ought to have been obtained before
B obtaining an alteration of the sanctioned plan, under UP
1975 Act:
a. Under Sections 5(2) and 5(3), undivided interest cannot
be altered without the consent of all owners of flats;

C b. Clause II(h) of the lease deed stipulates the applicability
of the UP 1975 Act. This is not confined only to
maintenance. The tripartite sub-lease between NOIDA,
the appellant and the allotees also mandates the
applicability of the UP 1975 Act; and

D c. The appellant was responsible to ensure that the
declaration under the UP 1975 Act was made. It cannot
take advantage of its own wrong in failing to submit a
declaration;
(xii) The appellant and NOIDA have colluded to by-pass the
Building Regulations:
E
a. Despite the revised plans violating the distance criteria,
NOIDA granted sanction to the said revisions. The plans
were not cancelled despite repeated reminders from the
RWA;
F b. Despite the letter of the CFO dated 24 April 2012
highlighting the violation of the distance criteria, NOIDA
did not take any action;
c. The appellant was aware in advance that its plan would
be sanctioned in the future, and hence built a stronger
G foundation in 2009 to support forty storey buildings for
T-16 and T-17, which received sanction only in 2012;
d. Under the terms of approval, the sanctioned plan had to
be kept at the site for display. In spite of this, there was

H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1017
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

a failure of the appellant to display the plans. When a A
request was made by the RWA to NOIDA to provide a
copy of the plans, NOIDA asked the appellant whether
it could supply the plans. Upon the refusal by the
appellant, NOIDA declined to provide the plans; and
e. No action was taken by NOIDA after issuing a show B
cause notice for violation of the minimum distance
requirement to the appellant based on a complaint by
the flat owners;
(xiii) No part of the second revised plan of 2009 can be saved as
it is in violation of the distance criteria contained in the NBR C
2006, and is also contrary to the UP 1975 Act;
(xiv) The appellant cannot make any further constructions without
the consent of the existing flat owners under the UP
Apartments Act 2010 and the Real Estate Regulation and
Development Act 2016; D
(xv) There is no equity in favour of the flat buyers in the new
buildings (T-16 and T-17) who have decided to retain their
flats, particularly when this Court had through several orders
granted an opportunity to the purchasers to seek refund;
(xvi) T-16 and T-17 can safely be demolished; and E
(xvii) False and misleading statements have been made by the
appellant in the course of its pleadings before the High Court
and this Court.
C Prefatory observations
F
44. At the outset, it must be noted that:
(i) The area which was originally leased to the appellant
admeasured 48,263 sq. mtrs.; and
(ii) As a result of the supplementary lease, the area stood
increased to 54,816 sq. mtrs. G

In order to bring clarity to the issues raised, the dates of sanction
and details of the construction are tabulated below:

H
1018 SUPREME COURT REPORTS [2021] 13 S.C.R.

A

B

C

D

E The plan for the construction was originally sanctioned on 20 June
2005. Thereafter, three revisions were sanctioned on 29 December 2006,
26 November 2009 and 2 March 2012.
45. The sanctioning of the revised plans and the construction of
T- 16 and T- 17 have been challenged on the ground of a violation of:
F (i) NBR 2006;
(ii) NBR 2010;
(iii) NBC 2005;

G The earlier G+1 shopping complex is numbered as T-16, while the original T-16 is
numbered as T-17. Further, T-1 and T-17 were to be connected by a space frame at the
upper level.
As per the third revised plan dated 2 March 2012, the proposed floors for T-16 and T-
17 were G+40. We note however, that in the details of sanctioned plans submitted by
Mr Vikas Singh, learned Senior Counsel, the number of floors envisaged for T-17 were
G+39 and T-16 were G+40. Further, as per the provisional Fire NOC dated 18 August
H 2011, the proposed construction for T-16 and T-17 was for G+38 floors.
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1019
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(iv) UP 1975 Act; A
(v) UP Apartments Act 2010; and
(vi) Fire safety norms.
The appellant disputes the applicability of the UP 1975 Act. This
will be considered in the course of the judgment. B
46. It becomes necessary to clear the ground in regard to the
reliefs which were sought before the High Court. The reliefs sought
before the High Court in the petition were for:
(i) Quashing the revised plan for the construction of T-16
(Ceyane) and T-17 (Apex) and the demolition of the C
structures constructed pursuant to the plan;
(ii) Directing NOIDA to not sanction any further building plans
in respect of Emerald Court without obtaining the consent
of all residents;
D
(iii) Quashing the permission granted to link T-1 with T-16/ T-
17;
(iv) Directing the installation of fire safety equipment and
infrastructure;
(v) Directing the demolition of the illegal construction in the E
basement and the setback area; and
(vi) Directing NOIDA and the appellant to provide car parking
spaces in accordance with NBC 2005.
Of the above reliefs, the High Court recorded that only prayers
(i) and (iii) were pressed. F
47. The above narration establishes that there was a challenge to
the revised plans by which the construction and increase in the height of
T-17 (Apex) and T- 16 (Ceyane) were envisaged. As the tabulation set
out above indicates, in the first revised plan of 29 December 2006, T-16
was to partially comprise of G+11, the rest being G+4. A shopping complex G
was envisaged comprising of G+1 floors. A triangular green area is
indicated in the first revised plan of 29 December 2006 in front of T-1.
In the second revised plan of 26 November 2009, T-17 (Apex) and T-16
(Ceyane) came to be envisaged with twenty-four floors and of a height
of 73 mtrs. each. In the third revised plan of 2 March 2012, the number
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1020 SUPREME COURT REPORTS [2021] 13 S.C.R.

A of floors of T-16 and T-17 was increased further from twenty-four to
forty floors (for T-16) and thirty-nine floors (for T-17), and the height of
each of the towers was increased from 73 mtrs. to 121 mtrs. In this
backdrop, the relief which was sought in prayer (i) was for quashing the
revised plan for the construction of the two new towers – T-17 (Apex)
and T-16 (Ceyane). This clearly implicates a challenge both to the second
B
revised plan of 26 November 2009 as well as the third revised plan of 2
March 2012.
48. A brazen attempt at stonewalling the first respondent was
made by the appellant and NOIDA before the High Court. The sanctioned
plans incorporate the condition that a copy of each plan would be made
C available at the site. Despite this, when the first respondent sought copies
of the sanctioned plans and other information, NOIDA wrote to the
appellant asking for their consent to provide theplans to the first
respondent. When the appellant refused, NOIDA’s refusal to the RWA
followed suit. It was only pursuant to the interim directions of the High
D Court that the sanctioned plans and documents were provided to the
first respondent. The reliefs which have been sought encompass a
challenge to the validity of the second and third revised plans, under
which the two towers, T-17 (Apex) and T-16 (Ceyane), were being
constructed.
E D Violation of distance requirement under Building
Regulations
49. The first issue we shall address is whether the sanction for
the construction of T-16 and T-17 by NOIDA is in violation of the distance
requirement under applicable building regulations.
F Original sanction dated 20 June 2005
50. When the plan was originally sanctioned on 20 June 2005, the
NBR 2006 was yet to come into force. The sanction of 20 June 2005
was under the regime of the NBR 1986. NBR 1986 envisaged a 15
mtrs. set back from the front and 9 mtrs. on all sides. Since the original
G plan did not envisage construction of T-16 and T-17, the said plan is not
under challenge for violation of the relevant building regulations.
First revised sanction dated 29 December 2006
51. NBR 2006 came into force on 16 December 2006. The
sanctioned plan for the project was first revised on 29 December 2006,
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1021
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

and it covered a total area of 54,819 sq. mtrs., leased to the appellant A
under the Lease Deed and the Supplementary Lease Deed. The first
revised plan provided for the construction of two additional towers
(T-15 and T-16) and one shopping complex (G+1 floors). All 16 towers
were to comprise of G+11 floors and were to be 37 mtrs. in height.
52. The first revised plan was governed by the NBR 2006. B
Regulation 33 provided for permissible FAR, ground coverage and height
of buildings. Regulation 33.2 dealt with the group housing. The table
appended to it is as follows:
“33.2 Group Housing
C

D

Regulation 32 deals with set-backs, which is defined as the line
parallel to the plot boundaries, beyond which nothing can be constructed
towards the plot boundaries. Regulation 32.3 stipulates that where a plot E
size exceeds 40,000 sq. mtrs., there has to be a front setback of
25 mtrs., while setbacks on the rear and on all sides will be 9 mtrs.
Regulation 33.2.3 is relevant for the dispute in the present case and it
stipulates as follows, insofar as is relevant:
“i. Distance between two adjacent building blocks shall not F
be less than half of the height of tallest building.”
(emphasis supplied)
Second revised sanction dated 26 November 2009
53. The second revision to the original plan was sanctioned on G
26 November 2009, under the NBR 2006. The second revised plan
envisaged that instead of the construction of T-16 (comprising of G + 11
floors and G+4 floors), and a shopping complex (G + 1 floor), two towers,
T- 16 and T-17, would be constructed, each comprising of G+24 floors
and of 73 mtrs. height. According to the revision, a 9 mtrs. distance was
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1022 SUPREME COURT REPORTS [2021] 13 S.C.R.

A to be maintained between T-17 and T-1 at the ground level, and T-1 and
T-17 were to be connected through a space frame at the upper level.
The second revised plan provided that a front set back of 15 mtrs., and
a rear and side set-back of 9 mtrs. each was approved.
54. The issue is whether the second revised plan for construction
B of T-16 and T-17 each of a height of 73 mtrs. and at a distance of 9 mtrs.
from T-1, is in compliance with the applicable regulation at the time, that
is NBR 2006. We shall advert to this in the next section.
Third revised sanction dated 2 March 2012
55. The third revision to the plan was sanctioned on 2 March
C 2012, by which the height of T-16 and T-17 was increased from 73 mtrs.
to 121 mtrs., and the number of floors in T-16 and T-17 was increased
from twenty-four to forty floors.
56. At the time of the sanction of the third revised plan, the NBR
2010 had come into force. Regulations 1.6 and 1.7 of the NBR 2010 are
D in the following terms:
“1.6 The plot on which map has already been sanctioned and
construction has already started or completed, the allottee may
be allowed to revise the same building plan or submit the
new plan as per the prevailing regulations for that part of
E the building where construction has not started or any new
addition is required in the building.
1.7 F.A.R, Ground coverage, setbacks and density as indicated in
the regulations shall not be applicable in respect of those plots
which were allotted on auction or tender basis and group housing
F prior to the coming into operation of these regulations. However,
the calculation of FAR and Ground Coverage in the new
buildings in such plots shall be done as per these
regulations. The purchasable F.A.R and Ground coverage as
per applicability may be allowed.”
G (emphasis supplied)
57. Under Regulation 24.2, the following stipulations have been
provided for Group Housing:
(II) Maximum permissible-

H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1023
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(i) Ground coverage 35 per cent to 40000 sq. A
mtrs and 40% above 40000
sq. mtrs
(ii) Floor Area Ratio 2.75
(iii) Height No limit. For buildings
above 30 metres in height, B
clearance from Airport
Authority shall have to be
taken.
(iv) Density (Family size 4.5) As mentioned in the sector
Layout Plan or decided by C
the Authority for a
particular scheme.
Table No 2 of the NBR 2010 prescribes the set-back requirement
in relation to Regulation 24. For all plots measuring above 40,000 sq.
mtrs., the set-backs in the front are 16 mtrs. and at the rear and on the D
sides are 12 mtrs.
58. Regulation 24.2.1(1)(vi) provides that a distance of 6 mtrs. is
to be left open for fire tenders. The said regulation is extracted below:
“The following features shall be permitted after leaving minimum
E
6 mtrs. open corridor for fire tenders.
(a) Meter room as per norms of Electricity Authority.
(b) Open transformers without any permanent enclosure keeping
in view the necessary safety requirements.
(c) Other features as mentioned in Table 3. F

(d) Rockery, well and well structures, water pool, swimming pool
(if uncovered), uncovered platform around tree, tank, fountain,
bench, chabutra With open top and unenclosed by side walls,
compound-wall, gate, slide- swing, culverts on drains.
G
(e) Any other feature, primarily ornamental in nature, not enclosing
or covering space of commercial use may be permitted by the
Chief Executive Officer on case to case basis.
(f) Open generator set, filtration plant, Electrical distribution
equipment, feeder pillars, telephone distribution equipments may
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1024 SUPREME COURT REPORTS [2021] 13 S.C.R.

A be permitted in open setback as a service utility provided after
leaving clear space for fire tender.”
With respect to the distance between two adjacent building blocks,
Regulation 24.2.1.6 provides:
“Distance between two adjacent building blocks
B
Distance between two adjacent building blocks shall be minimum
6 mtrs. to 16 mtrs. depending on the height of blocks. For building
height up to 18 mtrs, the spacing shall be 6 mtrs and thereafter the
spacing shall be increased by 1 metre for every addition of 3 mtrs
in height of building subject to a maximum spacing of 16 mtrs as
C per National Building Code – 2005. If the blocks have dead-end
sides facing each other, th[e]n the spacing shall be maximum 9
mtrs. instead of 16 mtrs. Moreover, the allottee may provide or
propose more than 16 mtrs. space between two blocks.”
59. The above regulation indicates that:
D
(i) The distance between two “adjacent building blocks” is to be
a minimum of 6 mtrs. going up to 16 mtrs., depending upon
the height of the blocks;
(ii) For a building height upto 18 mtrs., the spacing would be 6
mtrs., to be increased by 1 mtr. for every addition of 3 mtrs. to
E
the height of the building (subject to a maximum spacing of 16
mtrs. under the NBC 2005);
(iii) If the blocks have dead-end sides facing each other, the spacing
shall be a maximum of 9 mtrs. instead of 16 mtrs.; and
F (iv) The allottee may, however, propose more than a 16 mtrs. space
between two blocks.
60. Regulation 24.2.1.6 of NBR 2010 refers to the NBC 2005 for
the minimum distance requirement. The NBC 2005 contains the following
stipulations in para 8.2.3.1:
G “8.2.3.1 For buildings of height above 10 m, the open spaces (side
and rear) shall be as given in Table 2. The front open spaces for
increasing heights of buildings shall be governed by 9.4.1(a).

H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1025
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

Table 2 Side and Rear Open Spaces for Different Heights A
of Buildings
(Clause 8.2.3.1)

B

C

D

E

F

NOTES
1. For buildings above 24 m in height, there shall be a minimum G
front open space of 6 m.
2. Where rooms do not derive light and ventilation from the exterior
open space, the width of such exterior open space as given in col

H
1026 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 3 may be reduced by 1 m subject to a minimum of 3 m and a
maximum of 8 m. No further projections shall be permitted.
3. If the length or depth of the building exceeds 40 m, add
to col (3) 10 percent of length or depth of building minus
4.0 m.”
B (emphasis supplied)
Para 8.2.3.2 provides as follows:
“8.2.3.2 For tower like structures, as an alternative to 8.2.3.1,
open spaces shall be as below:
C (a) Up to a height of 24 m, with one set-back, the open spaces
at the ground level shall be not less than 6 m;
(b) For heights between 24 m and 37.5 m with one set-back,
the open spaces at the ground level, shall be not less than 9 m.
(c) For heights above 37.5m with two set-backs, the open
D
spaces at the ground level, shall be not less than 12m;
and
(d) The deficiency in the open spaces shall be made good
to satisfy 8.2.3.1 through the set-backs at the upper
level;: these set-backs shall not be accessible from
E individual rooms/flats at these levels.”
(emphasis supplied)
61. Para 8.2.3.1 of NBC 2005 indicates that where the height of
the building is 55 mtrs. and above, the side and rear open spaces to be
F left around the building must be 16 mtrs. Note 3 indicates that if the
length or the depth of the building exceeds 40 mtrs., in addition to the
height which is specified in column 3, ten per cent of the length and the
depth of the building minus 4 mtrs. has to be added to the distance
required. Thus, in the case of a height (as in the present case) of 55
mtrs. and above, an additional 8.45 mtrs. (10 per cent of 84.5 mtrs.) is
G added to the 16 mtrs. and 4 mtrs is to be deducted, arriving at a 20.45
mtrs. distance requirement. However, an alternative is provided by para
8.2.3.2 for “tower like structures”. For heights above 37.5 mtrs., open
spaces at the ground level shall not be less than 12 mtrs. Further,
deficiencies in open space as required under Para 8.3.2.1, can be met
H through set-backs at the upper levels, subject to the condition that the
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1027
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

set-back shall not be accessible from the individual rooms/flats at these A
levels.
D.1 Violation of NBR 2006 and 2010
D.1.1 Interpretation of “building blocks”
62. The first aspect which needs to be considered is whether T- B
17 and T-1 are two adjacent building blocks or form part of a single
building block as claimed by the appellant. Regulation 33.2.3 of the NBR
2006 stipulates that the distance between the two adjacent building blocks
shall not be less than half of the height of the tallest building.
63. The submission of Mr Vikas Singh, learned Senior Counsel, C
as well as of Mr Ravindra Kumar, appearing on behalf of NOIDA, is
that Regulation 33.2.3 of the NBR 2006, which was in force when the
second revised plan was sanctioned on 26 November 2009 (contemplating
the construction of T-16 and T-17), stipulates a distance between “two
adjacent building blocks”. Mr Vikas Singh submitted that it is entirely the
discretion of the developer to determine as to whether one or more D
buildings should be treated as a building block, there being no definition
of the expression “building blocks” in NBR 2006. It has been urged that
the appellant is entitled to assert that the sanctioned plan consists of
building blocks, and that T-16 and 17 are part of a building block along
with T-1, T-2, and T-3. Thus, it has been submitted that all these towers E
(T-1, T-2, T-3, T-16 and T-17) constitute one single building block. To
buttress this submission, the space frame connecting T-1 and T-17 is
referred to. It has been urged that there is no necessity of maintaining
the minimum distance provided by Regulation 33.2.3, which applies only
to the distance between two adjacent building blocks, and since T-1 was
to be connected to T-17 by a space-frame, the two new towers (T-17 F
and T-16) would constitute a part of the same building block, thus obviating
the need of maintaining a minimum distance between them. This argument
was sought to be supported by adverting to the original Hindi version of
Regulation 33.2.3, which uses the expression “ ’’. In
this context, it has been submitted that after the NBR 2010 came into G
force, there was an increase in the height of T-16 and T-17 from twenty-
four to forty floors. Regulation 24.2.1.(6) of the NBR 2010 has also
used the expression “two adjacent building blocks”. Thus, based on both
the NBR 2006 and 2010, it has been urged that the appellant was entitled
to treat T-16 and T-17 as forming a part of a cluster which would include
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1028 SUPREME COURT REPORTS [2021] 13 S.C.R.

A T-1. Therefore, the submission is that since all of them constitute a single
building block, the minimum distance requirement need not be maintained.
64. The submission which has been urged on behalf of the the
appellant finds support in the arguments of Mr Ravinder Kumar, learned
Counsel appearing on behalf of NOIDA. The submissions which have
B been made on behalf of NOIDA highlight the following features:
(i) Apart from the English version of Regulation 24.2.1.(6) of
the NBR 2010, which uses the expression building blocks,
the Hindi version uses the terms “ ’’,
which emphasises the concept of a cluster of buildings;
C
(ii) When the Regulations speak of a “ ’’, it is not the
distance between the towers but the distance between
blocks which is implicated;
(iii) T-1, T-16 and T-17 form part of one cluster or block and
D hence there is no need of maintaining a distance between
buildings forming part of a block;
(iv) The absence of a minimum distance between the T-1 and
T-7 would be of no consequence;
(v) Apart from the alleged breach of the minimum distance
E requirement, all parameters have been maintained, in terms
of:
a. Ground coverage;
b. FAR;
F c. Open area; and
d. Green area; and
(vi) An explanatory note was submitted by NOIDA before the
High Court, concerning the issue of building blocks, and is
extracted below:
G
“Building Block in a Group Housing Project
Main Points:
1. Noida Building Regulations, 2010: A “Bhavan Samuh” which
is translated in English as a “Building block” is the combination
H or a group of buildings in any given area/Plot.
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1029
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

2. The Section 3(g) of The Uttar Pradesh Apartment (Promotion A
of Construction, Ownership, Maintenance) Act, 2010 defines
building. As per the Act, “building” means a building
constructed on any land, containing four or more apartments,
or two or more buildings in any area designated as a block,
each containing two or more apartments with a total of four
B
or more apartments in all such buildings; Provided that an
independent house constructed in a row with independent entry
and exit, whether or not adjoining to other independent houses,
shall not constitute a building.
Therefore, it is clear that the Block is designated as “two or
more buildings in any area” and the building is defined as “four C
or more apartments on any land”.
3. As per Zoning Glossary of New York City Planning; “A
Block” is defined as a tract of land bounded on all sides
by streets by a combination of streets, public parks,
railroad rights of way, pierhead lines or airport D
boundaries. Building is defined as a structure that has
one or more floors and a roof, is permanently affixed to
the land and is bounded by open areas or the lot lines of
a zoning lot.
4. The buildings in a block may not be connected, may be partially E
connected or may be fully connected, as is clear from the
aforesaid provisions.
5. It is a common practice in all the metropolitan cities of India
and all over the world to construct high rise buildings for
different purposes to make optimum utilization of land. In any F
given area, more open & green space can be provided only
with a provision of high rise buildings which enable to
accommodate high density comparatively with less ground
coverage and more open space. Large size projects generally
have many buildings which are planned, arranged & designed, G
keeping in view the requirement of common space, common
facility & amenities, natural light, ventilation, open space and
maximum possible exit routes for early evacuation in event of
any emergency. In view of all these considerations generally
different building blocks or groups of buildings having
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1030 SUPREME COURT REPORTS [2021] 13 S.C.R.

A interconnected accessibility, facilities and services are
designed, which give better living environment than having a
system of all buildings situated in isolation within the project
area. It is common practice in all the metropolitan cities of
India and over world to construct high-rise building for different
purpose to make optimum utilization of land. In any given area
B
more open & green space can be provided only within a
provision of high-rise building which enable to accommodate
high density comparatively within less ground coverage and
more open space. Large size projects generally have many
building which are planned, arranged & designed, keeping in
C view the requirement of common space, common facility &
amenities, natural light, ventilation, open space and maximum
possible exit routes for early evacuation in the event of any
emergency. In view of all these considerations generally
different building blocks or cluster of building having inter
connected accessibilities & facilities are decided, which give
D
better living environment than having a system of all building
situated in isolation within the project area.
6. Isolated buildings are more prone to safety, security, provision
and maintenance of common services related problems. In
case of a fire accident in any isolated building having no extra
E exit routes, chances of danger to human lives is more.
7. Generally, a group of buildings in a project is constructed with
the provision of common basement i.e. One basement for all
the buildings. This is done for better accessibility and movement
and provision of common facilities. It is also a very common
F practice in India and abroad to connect the high rise buildings
by way of space frame bridges giving additional exit routes
for early evacuation in the event of emergency. This practice
has increased after the occurrence of incident of fire in Gopal
tower in Connaught Place, New Delhi and the temporary space
G frame was made connecting the said tower at the Height with
nearby tower for evacuation of cornered persons saving many
lives.
8. NBC OF INDIA OF 2005: Side and rear open space for
different height of building is governed as per Para 8.2.3.1 of
H NBC 2005 which states that for height of building.
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1031
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

A

B

But as per Para 8.2.3, tower like structures as an alternative to
Para 8.2.3.1 open space as below:
For height between 24 Mtr nd 37.50 Mtr with one set back the
open space C
At the ground level, shall not be less than 9 Mtr.
9. It is stated that NOIDA Building Regulations intends to provide
the distance between two adjacent building blocks to be
between 6 meter to 16 meter depending upon the height of
D
the building blocks. It does not provide any specific requirement
of distance between two buildings. The concept of minimum
distance required between two High Rise building of a block
may not necessarily be the same as required between the two
building blocks. For Example a building block may have three
or four stories for the entire block area and few towers of E
different height and different upper stories designed at different
places in the same block.
10. The concept of minimum distance between the two building
blocks is for the purpose of free fire tender movement
(Minimum 6 meters setback as per regulation), air ventilation, F
sunlight etc. The minimum distance requirement is in no way
connected with the structural safety of the building.
11. It is stated here that the new building under construction is
having perimeter of approx. 230 meter the entire building is
surrounding by enough open area i.e. more than 16 meter G
except at one place where the building is made a part of block
of adjoining building by way off a proposed connecting bridge
to provide an extra exit route for the purpose of emergency
evacuation. Here also the minimum gap between old building
and new building is 9 meter for 6.80 meter length with satisfies
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1032 SUPREME COURT REPORTS [2021] 13 S.C.R.

A the requirements of fire safety provisions. It does not violate
any provision with regards to fire safety and air circulation.”
65. Essentially, the plea both on behalf of the appellant and NOIDA
is that the requirement of maintaining a minimum distance applies only
to adjacent building blocks, which is not equivalent to adjacent buildings.
B To put it differently, the arguments proceed on the basis that where
there is a cluster of buildings the requirement of a minimum distance
cannot be observed as between buildings forming part of the cluster, but
only as between two adjacent building blocks/clusters. Each building
block in this line of argument may consist of a collection of buildings, and
it is argued that neither NBR 2006 nor NBR 2010 mandates the
C maintenance of a minimum distance as between buildings in a cluster.
66. The expression ‘building block’ has not been defined either in
NBR 2006 or in NBR 2010. The construction which is placed upon the
content of the expression must advance the object and purpose of the
said Regulations. The purpose of stipulating a minimum distance is a
D 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. The purpose of stipulating
a minimum distance comprehends several concerns. These include
safeguarding the privacy of occupants and their enjoyment of basic civic
E amenities including access to well-ventilated areas where air and light
are not blocked by the presence of close towering constructions. Access
to these amenities is becoming a luxury instead of a necessity. The
prescription of a minimum distance also has a bearing on fire safety. In
the event of a fire, there is a danger that the flames would rapidly spread
from one structure to adjoining ones. Moreover, the presence of structures
F in close proximity poses serious hurdles to fire-fighting machinery which
has to be deployed by the civic body.
67. If a developer is left with the unbridled discretion to define the
content of the expression “building block”, this will defeat the purpose of
prescribing minimum distances, leaving the health, safety and quality of
G life of flat buyers at the mercy of developers. Before this Court, an
argument has been advanced that four towers out of the seventeen towers
in the plot are a part of one “building block” and do not require
maintenance of a minimum distance. Before the High Court, the appellant
attempted to argue that all the buildings (that is all seventeen towers) on
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1033
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

Plot No 4 of Sector 93A NOIDA would comprise of one “building block”. A
The inconsistency of the appellant’s argument on building blocks before
the High Court and this Court points out the obvious flaw in it – that the
designation of how many buildings constitute a “building block” by the
developer would undermine the requirements prescribed by Building
Regulations. As a matter of first principle, we are not inclined to adopt
B
the construction proposed by the appellant. It will deprive the residents
of urban areas of the amenities of light, air and ventilation which are
essential to maintaining a basic quality of life. It will also have serious
ramifications on fire safety. The developer cannot be allowed to subvert
the requirement of maintaining minimum distances prescribed in the
Building Regulations by unilaterally designating independent towers as C
building blocks, in the manner which the appellant has suggested before
this Court. Setting up a space frame or providing for a common entry or
exit would not make two otherwise separate buildings as one consolidated
block.
68. Regulations 33.2.3 of the NBR 2006 refers to the distances D
between adjacent ‘building blocks’ which shall not be less than half of
the height of the tallest building. The purpose of this regulation is not to
apply it only as between building blocks as distinguished from buildings
within a block. Clause (1) of Regulation 33.2.3 has used the expression
‘building blocks’ and ‘height of tallest building’ in the same sentence.
These expressions must be given a meaning which accords with common E
sense and in furtherance with the object and the purpose of the said
Regulation. The plain meaning of the expression is that when there are
two adjacent blocks, the height of the tallest building will determine the
distance required to be observed, with the distance being not less than
half the height of the tallest building. Consequently, when two or more F
buildings exist in proximity together, they comprise of a building block
within the meaning of Clause (1) of Regulation 33.2.3. In such an
eventuality, the distance between each of the buildings comprised in the
block shall also not be less than half of the height of the tallest building.
The reference to the height of the tallest building is evidently made
because this kind of a building will likely overshadow the buildings of a G
lesser height in a cluster of proximate construction. Therefore, the
regulation has defined the minimum distance required with reference to
half the height of the tallest building. Any other construction will defeat
the purpose of Regulation 33.2.3 and cannot be accepted.
H
1034 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 69. Applying the NBR 2006 to the facts of the present case, the
construction of T-16 and T-17 was envisaged in the second revised plan
dated 26 November 2009. The height of the said towers was to be 73
mtrs., while the height of other towers, including T-1, was to be 37 mtrs.
Thus, 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,
B
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.
70. We shall now come to the NBR 2010. Regulation 24.2.1(6)
has prescribed the requirement of maintaining varying distances between
C two adjacent blocks from a minimum of 6 mtrs. extending up to 16 mtrs.,
depending on the height of blocks. The content to the first sentence of
this regulation is further amplified by what follows it. The next part of
the regulation stipulates that for a building of height up to 18 mtrs.,
“spacing” shall be 6 mtrs. The expression “spacing” in its plain terms
D means the observance of a stipulated distance. Where the height of the
building is up to 18 mtrs., “the spacing” shall be 6 mtrs. Thereafter, for a
height above 18 mtrs., the minimum distance has to be increased by one
meter for an additional height of three mtrs. subject to a maximum distance
or spacing of 16 mtrs. “as per National Building Code – 2005”.
E 71. Mr Ravindra Kumar, learned counsel appearing on behalf of
NOIDA, has particularly laid emphasis on the Hindi version of the NBR
2010 to argue that it used the term “ ’’, which must mean that a
separate meaning is accorded to it than the term “ ’’. The Hindi text
of Regulation 24.2.1.(6) (Regulation 24.2.1 (V) in the Hindi version) is
F as follows:

G

As is evident, the Hindi version of the NBR 2010, uses three
H different terms “ ’’, and “ ’’. A purely textual interpretation,
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1035
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

as is suggested by Mr Ravindra Kumar, would lead us to ascribe three A
different meanings to each of these terms. Extending this argument would
then imply that the first sentence, which states that two adjacent building
blocks require a minimum distance of 6 mtrs. to a maximum distance of
16 mtrs., will depend on the height of the blocks. The second sentence,
which in English simply reads, “for building height upto 18 mtrs, the
B
spacing shall be 6 mtrs…”, does not clarify what the term “spacing”
denotes – does it imply spacing between buildings inter se the block, or
spacing between adjacent ‘building blocks’. Mr Ravindra Kumar suggests
that it implies the latter. However, looking at the Hindi version of the
Regulations from a purely textual standpoint, it would appear that it states
that the spacing between the buildings of height 18 mtrs. should be 6 C
mtrs., that is, “18.00 …”.
The term used here is “ ’’ and not “ ” or “ ’’. Thus,
overemphasis on the text of the NBR 2010, while losing sight of the
context and the purpose of the regulation, would lead to an absurd
interpretation. Where the initial part of Regulation 24.2.1.6 provides for D
distance between building blocks, the latter part stipulates the distance
between buildings of height above 18 mtrs. Accordingly, we reject the
argument of Mr Ravindra Kumar that Regulation 24.2.1.6 only provides
for the distance between ‘building blocks’ and not buildings within the
blocks.
E
72. The latter part of Regulation 24.2.1.6 of the NBR 2010 provides
that the maximum spacing between buildings of a height above 18 mtrs.
shall be 16 mtrs. as per the NBC 2005. In the third revised plan dated
2 March 2012, the height of T-16 and T-17 was increased to 121 mtrs.
In accordance with Regulation 24.2.1.6, the spacing between a building
F
of height 121 mtrs. and another building would be 16 mtrs. (the maximum
limit as per NBC 2005). Thus, the distance between T-1 and T-17 should
have been 16 mtrs., as opposed to 9 mtrs. Consequently, we find that the
third revised plan dated 2 March 2012 was in violation of NBR 2010.
73. NOIDA, before it granted sanction for enhancing the height
of T-16 and T-17 from G+24 to G+40 (or 39, as the case may be), was G
duty bound to apply its mind to whether there was a compliance with the
provisions of Regulation 24.2.1.6. The third revised plan which was
sanctioned on 2 March 2012 has evidently glossed over the clear
deficiency of open space with reference to the NBR 2010, the
consequence of which would have been to reject the proposal for a H
1036 SUPREME COURT REPORTS [2021] 13 S.C.R.

A further increase in the height of the towers from twenty-four floors to
forty floors. Yet NOIDA has chosen to lend its support to the appellant
in clear defiance of the provisions of law.
74. The issue as to whether T-1, together with T-16 and T-17,
form one cluster can be looked from another perspective to test the
B hypothesis of Mr Vikas Singh. The original sanctioned plan dated
20 June 2005 provided that:
“Total area of plot : 48263.00 Sq. mt
Permissible coverage 35 % : 16892.05 Sq. mt

C Sanctioned coverage 14.03% : 6773.25 sq. mt
Permissible FAR 1.50 : 72394.50 Sq. mt
Sanctioned FAR 134.28 : 64810.04 Sq. mt.
Sanctioned height of building : 30.00 meter
D SET BACK
SET BACK OF BUILDING
Permissible Sanctioned
Front 9.66 Mt 15.00 Mt
E Back 9.66 Mt 09.70 Mt.
Side 9.66 Mt 09.70 Mt.
Side 9.69 Mt 09.70 Mt.”
75. The original sanctioned plan covered a total plot area of 48,263
F sq. mtrs. Subsequently, an additional area of 6556.61 sq mtrs. was leased
out to the appellant by a Supplementary Lease Deed dated 21 June
2006, so as to enhance the total area of the plot to 54,819.51 sq. mtrs. As
a consequence, the first revised plan was sanctioned on 29 December
2006, where the sanctioned area was enhanced from 64,810.04 sq. mtrs.
to 81,943.216 sq. mtrs., the calculations being as follows:
G
“Sanctioned area
Total area of plot : 54819 Sq. Mt

H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1037
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

A

B

C

D

E

F

76. The first revised plan dated 29 December 2006 relating to G
6556.61 sq. mtrs. indicates that in the south-west corner of the plot, an
additional construction comprising of one tower and a shopping facility
would be put up and directly opposite T-1 was a green area, which has
been depicted on the sanctioned plan.
H
1038 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 77. On 26 November 2009, there was a second revised sanction,
consequent upon the acquisition of purchasable FAR of thirty-three per
cent of the permissible 1.5 FAR. The area calculations of the second
revised sanction were indicated as follows:
“Area of plot : 54819.510 Sq. Mt.
B Permissible FAR 1.50% : 82229.265 Sq. Mt.
Purchasable FAR 33% : 27135.657 Sq. Mt
Total FAR 82229.265 + 27135.657 = 109364.922 Sq. Mt
Area of utilization issued earlier: 78019.956 Sq. Mt
C
Area of upper basement issued earlier:
40542.380 sq Mt. (3397.0990 with demolished upper basement)

D

E

F

G

H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1039
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

Set back Permissible Sanctioned A
Front 15.00 Mt 15.00 Mt
Back 9.00 Mt 9.00 Mt
Side 9.00 Mt 9.00 Mt
Side 9.00 Mt 9.00 Mt B

78. As the second revised plan indicates, the existing towers now
envisaged twenty-four floors instead of eleven floors. The third revised
plan of 2 March 2012 further envisaged an enhancement in the
constructed area consequent upon a purchasable FAR, together with
the sanctioned FAR of 2.75. The number of floors was further increased C
to forty floors in T-16 and T-17, the relevant calculations being as follows:
“Total area of plot : 54819.510 Sq. mt
Permissible coverage 35% : 19186.828 Sq. mt
Sanctioned coverage 14.03% : 6773.25 sq. mt D
Permissible FAR @ 1.5% : 82229.265 Sq. mt
at the time of allotment
Purchasable FAR on 25.10.10 : 150753.652 Sq. mt
With Sanctioned FAR @ 2.75 E

Floor wise Description of Proposed area of different floors are as
under
Floor Permissibl Built up Previous Proposed Revised Total area
e area (Sq. area (tower sanctioned FAR tower area tower
Mt.) 1 to 14) on area tower 15, 16 & 15, 16 & (Sq. Mt.)
16.10.09 15, 16 & 17 (Sq. 17 (Sq. F
utility 17 date Mt.) Mt.) (2 +5)
certificate 26.11.09
issued. Sq. (3 +4)
Mt

1 2 3 4 5

Space -- -- -- 24.00 24.00 24.00
frame
G
Podium -- 288.983 -- -- -- --

(T-1 to T-
14)

Ground 19186.825 6823.429 1751.320 1125.302 2876.622 9700.051
Floor

H
1040 SUPREME COURT REPORTS [2021] 13 S.C.R.

A

B

C

D

E

F

G

H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1041
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

A

B

C

Proposed land coverage area = 10648.503 Sq. Mt. (19.425%)
Revised FAR (Built + Revised) = 150464.664 Sq Mt.”
D
79. On 24 April 2012, the CFO drew the attention of the In-Charge
of the Building Cell, NOIDA to the violation of the minimum distance
which was required to be maintained in the construction which was
being carried out by the appellant. The subject of the letter reads thus:
“Regarding distance between the under construction (Tower No. E
17) situated at Plot No. 4, Sector-93A NOIDA being constructed
by M/s Supertech Limited and old constructed buildings”
The letter (which has been extracted above para 28 of Part A.5)
has a crucial bearing on these proceedings. The CFO made a clear
reference to the distance requirements which were to be observed in F
terms of NBR 2006, NBR 2010 and NBC 2005. The CFO queried
NOIDA as to whether the license for construction was granted after
granting a relaxation to the builder in a “special category” or whether
the construction was being carried out contrary to the standards. This
letter evinced no response from NOIDA.
G
80. When the construction of two towers in the newly acquired
leasehold area commenced in July 2009, a communication dated 16 July
2009 was addressed on behalf of the appellant (by its Director) to the
Group Co-coordinator of Emerald Court (the letter has been extracted
in para 15 of Part A.4). Evidently, the residents were concerned about
H
1042 SUPREME COURT REPORTS [2021] 13 S.C.R.

A the construction of the new towers. The said letter clearly demonstrates
that in 2009, the appellant was of the view that the new towers which
were being constructed would have separate entries and exits, amenities
and infrastructure and that the developer would construct a boundary
wall separating the existing 15 towers from Apex and Ceyane. This
representation was reiterated in a letter dated 9 March 2012 from the
B
appellant to the President of the RWA.
81.The first paragraph of the above letter indicates that the
appellant had obtained two separate plots admeasuring approximately
48,650 sq. mtrs. and 6556.61 sq mtrs., and had got them registered
separately in March 2005 and May 2006. The representation to the
C residents that these were separate plots which were leased out to the
developer was clearly contrary to the provisions of the supplementary
lease deed which stipulated that the newly demised area of 6556.61 sq.
mtrs would form a part of the original plot which had been allotted to the
appellant. The supplementary lease deed contains the following covenants:
D “[…]
That the Lessor has agreed to demise on lease in additional place
of land measuring 6556.61 Sq. mtrs. Against consideration of
Rs.14,48,98,871/- (Rupees Fourteen Crores forty eight lacs ninety
eight thousand eight hundred seventy one only) which has been
E already been paid by the lessee to the lessor and also in
consideration of the yearly lease rent @1 % of the total premium
per year Rs.1,59,38,876 for enhanced area has been paid by the
Lessee to the Lessors as one time lease rent (equal to 11 year’s
lease rent). That the demised premises shall be deemed to be part
F of the Plot No.04, Sector 93-A, Noida already leased to the lessee.
That all other conditions of the original lease deed and allotment
shall remain unchanged and shall be equally applicable to this
demised ·premises and binding upon the lessee.
That the period of 90 years lease shall commence from16.03.2005.
G
That the demised premises shall be part of the original allotted
Plot No. 04 Sector Noida. Necessary addition or alterations in the
structure can be subject to the building byelaws of the lessor and
terms of the transfer lease deed.
That total area of Plot No. 94, Sector 93-A, Noida is 54819.51
H Sq. mtrs.
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1043
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

That the total premium of Plot No. 04, Sector 93-A is Rs.1,21, A
15,11,171/- (Rupees One hundred Twenty one crores fifteen lacs
eleven thousand and one hundred and seventy one only) instead
of Rs.1,06,66,12,000/-.(Rupees One hundred six crores sixty six
lacs twelve thousand and three hundred).
The lessee shall construct the building on the demised premises B
according to the building bye laws of the Lessor.”
Despite the clear terms of the supplementary lease deed in terms
of which the additional land allotted under it is to form a part of the
original plot, the communication addressed to the flat buyers of the existing
towers was that the new towers were completely disconnected from C
and independent of the earlier developed fifteen towers. This letter cannot
be glossed over because a similar position was affirmed before the High
Court in paragraph 32 of the counter affidavit filed by the appellant,
which reads as follows:
“32. That the contents of para 12 so far it relates to matter of D
record are need no reply and other contents are wrong and denied.
The letter dated 16.07.2009 and 09.03.2012 given by respondent
no. 5 contains the same stand, that “Apex and Ceyane” is Phase
II of the project as in the present counter affidavit. Similarly, letter
dated 31.01.2012 and 13.02.2012 filed by respondent no.5 before
police authorities can be relied upon in support of the stand of E
respondent no.5.”
82. The only reasonable hypothesis which emerges from the above
disclosures is that the argument which has now sought to be advanced –
that Towers 1, 16 and 17 are part of a cluster of buildings comprised
within a block, thus obviating the need to maintain the minimum distance F
between them – is an afterthought. It is contrary to the stated position
which has been adopted by the appellant in its affidavit before the High
Court. The record before this Court also indicates that the appellant has
taken liberties with the truth in making the submission that a cluster of
towers in the project constitutes a block which allows the appellant to G
subvert the minimum distance requirement.
83. The above conclusion is clearly evident from the record from
IA No 54807 of 2021 for the production of additional documents.
Annexures A-1, A-2, A-3 and A-4 are:
H
1044 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (i) A true copy of the first revised plan dated 29 December 2006
showing various blocks as sanctioned by NOIDA;
(ii) A true copy of an allotment letter dated 17 March 2007 issued
by the appellant in favour of a flat purchaser;
(iii) A true copy of the completion map dated 10 April 2008 in
B relation to T- 1 to 8; and
(iv) A true copy of the completion map dated 16 September 2009
in relation to T- 9 to 14.
84. Annexure A1 above, which is part of the first revised plan of
C 2006, clearly indicates that each block comprises of a cluster of two
buildings. Annexure A2, which is the letter of allotment, makes it clear
that what is meant by a block was the Tower comprised of Aster II.
Moreover, the letter also indicates the recovery of lease rent at Rs 190
per sq. foot. Annexure A-3, the completion drawing of 2008, indicates
that each tower is depicted to have four wings. In other words, the
D tower itself is a block comprising of four wings and the towers have
been specified distinctly with reference to numbers. During the course
of the proceedings before the High Court, the appellant filed a document
purported to be the second revised plan of 2009 where a depiction of
several blocks was made. The plan which was filed before the High
E Court bears no signature of the competent officer of NOIDA. In the
counter affidavit filed by the appellant in the High Court, it was stated
that:
“3. That Noida Building Bye-laws talks about building blocks. Even
the mandatory distance is provided only between the two building
F blocks in the said bye-laws. It is stated that Cluster of buildings
from one building block, provided these buildings are connected
with each other to form one building block. Further number of
buildings within one building block depends upon various factors
like the theme of the project its Architecture features surrounding,
plot dimensions etc.
G
4. The Emerald Court (phase I) has five building block each
comprising of three buildings. After acquisition of additional land,
admeasuring 6556 sq.mt. Apex & Ceyane (phase II) was
envisaged and the same was sanctioned by NOIDA. With the
provision of space frame between tower Apex and Aster-2 as
H per sanction plan dated 26.11.2009 by NOIDA, the Apex &
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1045
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

Ceyane were connected within the existing building block A
comprising of towers Aster-2, Aspire-1 and Aster-1 as per
Architecture feature of the project. The sanction dated 26.11.2009
was granted by NOIDA only after structural safety certificate
was issued by the IIT-Roorkee. Copy of the sanctioned plan
showing the Building block is annexed herewith as
B
ANNEXURE SCA-1.”
(emphasis supplied)
85. In the rejoinder filed to the above affidavit on behalf of the
RWA, the contents of the above plan were seriously disputed and it was
averred: C
“5. That the contents of paragraph 4 of the supplementary counter
affidavit are incorrect as Aster Type-A was already envisaged on
the additional land measuring 6556 sq. mtrs. along with certain
green area as is evident in the plan approved by NOIDA in Dec.
2006 (Annexures 2 of WP) on total area of the plot viz. 54800sq. D
mt.
The respondent has submitted a document marked as SCA-
1 which is called the sanctioned building plan. This is
altogether a new document submitted by respondent 5 and
is a shocking surprise to the petitioner as this has never E
ever been disclosed nor advertised in the past. The
documents has glaring deviations as compared to the
document shared and submitted in the past. For the first
time respondent 5 has submitted a plan which contains
reference to “BLOCKS”. In the past such a document was
never shared. Also now each tower is given only a tower F
number and the nomenclature used in title documents and
popular usage has been deleted viz Aspire/Aster/ Emperor
etc. This is an alarming misnomer being created by
respondent 5. Also, nowhere this bears the sanctioning
endorsement by NOIDA (Respondent No. 2) terming as G
BLOCK 1 to 5. It is amply clear that respondent 5 is using
false representation and documents and trying to create
confusions on flimsy ground. They are trying to buy time and
attention of this Court and using these as delaying tactics, which
is against the interest of petition. With the delaying tactics
H
1046 SUPREME COURT REPORTS [2021] 13 S.C.R.

A respondent 5 is rapidly proceeding with unauthorized construction
of APEX and CYNE towers day and night, especially after filing
of writ petition by the petitioners, as no injunction has been issued
so far. Respondent 5 has been and will be using the public interest
plea of investors and financial institutions/banks to cover up illegal
and unauthorized construction as is evident from Para 19 of the
B
supplementary counter affidavit.”
(emphasis supplied)
86. Significantly, it must be noted that the second revised plan of
2009, which has been placed on record, does not show the existence of
C blocks and is duly endorsed by NOIDA. Similarly, the third revised plan
of 2012, which is also on the record, does not embody any description of
blocks. Therefore, we have no manner of doubt in finding that the
argument sought to be developed in the course of these proceedings that
there were separate blocks in the plan is an afterthought. It is contrary
to the stated position which has been adopted by the appellant on affidavit
D before the High Court. It is contrary to the sanctioned plans. What is
worse is that an effort was made to place on the record before the High
Court a purported plan of dubious origin by seeking to pass it of as the
second revised plan of 2009.
87. In its affidavit before the High Court, the appellant stated that:
E
“9. That it is pertinent to mention here that the Phase II of
the project by the name of “Apex and Ceyane” has been
planned to have provision of altogether separate facilities
like swimming pool, gymnasium, separate power backup,
separate L.T. Panels and separate entry and exits gates
F etc. Therefore the members of petitioner society of Emerald Court
(Phase I) does not have any locus to challenge any issue relating
to the towers of “Apex and Ceyane” (Phase II).”
(emphasis supplied)
88. The above averments would belie the submission sought to be
G
advanced before this Court that Apex and Ceyane are parts of a cluster
of buildings comprised within one block. The High Court, while rejecting
the submission, observed:
“Learned counsel for the respondent-company finally made an
attempt to argue that the phase “building blocks” is not defined
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1047
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

under the byelaws and according to the learned senior advocate A
building blocks would mean the entire building on plot no. 4 of
Sector 93A NOIDA. The said argument is farfetched and against
the provisions of the Building Regulation of 2006 as well as 2010.
Building blocks means group of building on the plot/site. The
sanctioned maps clearly shows that the respondent company has
B
got the layout approved consisting of separate blocks. The
nomenclature of the blocks was subsequently changed by the
respondent company, in each successive plan and finally the
buildings were numbered as towers (1-17). The maps sanctioned
clearly shows that the buildings in dispute Aster II (tower 1) and
Apex and Ceyane (tower 16 and 17) are separate building blocks. C
The argument has been advanced without there being any
foundation in the pleadings. Without pleadings argument cannot
be advanced.”
89. Based on the interpretation of ‘building blocks’ in the Building
Regulations as discussed above, and the inconsistency in fact and in the D
argument of the appellant, we affirm the above conclusion of the High
Court.
D.1.2 Interpretation of “dead end sides of buildings”
90. An alternative argument has been advanced by Mr Ravindra
Kumar, counsel for NOIDA, that Regulation 24.2.1.6 of the NBR 2010 E
provides for an exception to the 16 mtrs. minimum distance requirement
if the building blocks have dead-end sides facing each other. It stipulates
that if the blocks have dead-end sides facing each other, then the spacing
shall be a minimum of 9 mtrs. instead of 16 mtrs. Mr Ravindra Kumar
submitted that T-1 and T-17 have dead-end sides facing each other and F
thus, the distance requirement of 16 mtrs. was not applicable. The “dead-
end” argument has met a dead-end in the submissions of the appellant
as during the proceedings. Mr Vikas Singh, learned Senior Counsel for
the appellant, has specifically clarified that he is not pressing the
submission. We will however deal with it as the counsel appearing for
NOIDA has raised it before this Court. G
91. Regulation 24.2.6 of the NBR 2010 stipulates that if the blocks
have dead-end sides facing each other, then the spacing shall be a
maximum of 9 mtrs. instead of 16 mtrs. The question of dead-end sides
arises only between blocks, in which case the minimum distance required
is 9 mtrs. H
1048 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 92. This Court on 27 July 2016 directed the NBCC to ascertain if
the dead-end sides of T-1 and T-17 are facing each other, in order to
decide if the towers can be brought within the exception in Regulation
24.2.1(6) of NBR 2010. The terms of reference were as follows:
“To ascertain whether the two towers- Tower-1 (Aster 2) and
B Tower-17 have dead end sides facing each other for the purpose
of Reg. 24.2.1(6) of Noida Building Regulations 2010.”
NBCC was tasked with the job of determining the meaning of the
phrase ‘dead end sides facing each other’, and whether T-1 and T-17
could be brought within the exception. This Court also specifically directed
C that NBCC shall not travel beyond the issue that was referred to it.
93. The appellant filed its submissions before NBCC on the
meaning of the phrase ‘dead end side of a building’. It was submitted
that:
(i) Model Bye-Laws 2004, Model Bye-Laws 2016 and the Delhi
D Development Authority Building Byelaws 2016 have relaxed
the 16 mtrs. distance rule to 9 mtrs. if there are ‘no habitable
rooms in the front’, irrespective of the height of the building.
A similar provision has been incorporated in NBR 2010 as
well. However, instead of using the phrase “no habitable
E rooms in the front”, the phrase “dead end” has been used.
Therefore, the phrase “dead end” must take color from the
bye-laws and will have to be interpreted to mean absence of
‘habitable rooms’; and
(ii) Clause 3.46 of NBR 2006 defines ‘habitable room’ as “a room
F occupied or designed for occupation by one or more persons
for study, living, sleeping, eating, kitchen if it is used as a
living room but not including bathrooms, water closet,
compartments laundries, serving and storage pantries,
corridors, cellars, attics and spaces that are not used
frequently or during extended periods”.
G
94. The term ‘dead-end sides of a building’ has not been defined
in NBR 2006, NBR 2010, and NBC 2005. Regulation 3 of NBR 2010
states that words that are not defined in the Regulations shall have the
meanings assigned to them in the UPIAD 1976. If no meaning is assigned
to the word in UPIAD 1976, then the meaning assigned to the word in
H the Master Plan/Development Plan, Development Plan, National Building
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1049
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

Code, Indian Standard Institution Code shall be referred to. However, A
none of the above mentioned authorities define the phrase ‘dead end
sides of a building’. Though, NBC 2005 uses the phrase in reference to
dead end situation of road, corridor, water supply etc., no reference with
respect to ‘dead end sides of a building’ is made.
95. Therefore, NBCC wrote to the Bureau of Indian Standards 23 B
and NOIDA on 3 September 2016 and 30 August 2016 respectively,
seeking a clarification on the meaning of the phrase ‘dead end sides of a
building’. BIS through a letter dated 9 September 2016 stated that the
phrase was only used in NBR 2010 and not the NBC 2005 that was
brought by BIS, and therefore, it was not best suited to provide an
interpretation on the phrase. NOIDA vide a letter dated 30 August 2016 C
stated that it refers to “[a]n area/side of a building or a residence having
no access/entrance or exit becomes a dead end area/side of the building,
though it may have openings for ventilation”.
96. NBCC submitted its report on 13 October 2016. The report
discusses the structure of T-1 and T-17, the meaning of the phrase ‘dead D
end side of a building’ and concludes that the sides of T-1 and T-17
facing each other are not dead end sides of the buildings. NBCC made
the following observations on the structure of T-1 and T-17 after site
verification:
(i) The ground floor of T-17 is allocated for commercial shops. E
The remaining floors in T-17 will have residential flats with
windows/balconies/ventilators on all sides. Except for one
opening for a fire exit, there will be no opening on the ground
floor on the side that faces T-1. However, all other floors
(i.e., except the ground floor) will have an opening on the F
side that faces T-1;
(ii) The entry to T-17 is on the side that is perpendicular to the
side that is facing T-1;
(iii) The entry to the residential flats of T-1 is from the side
facing T-17; G
(iv) T-1 has offsets. Therefore, the space between T-1 and T-
17 varies from 9.3 mtrs. to 25 mtrs.;

23
“BIS” H
1050 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (v) The habitable rooms with balconies in T-1 and T-17 face
each other; and
(vi) T-1 and T-17 do not taper at the higher floor. None of the
tower wings have different heights.
97. Since there is no clarity on the meaning of ‘dead end side of a
B building’, NBCC interpreted the phrase by referring to the use of the
phrase ‘dead end’ in NBC 2005 in the context of roads, water supply
network etc. where the passage is limited. The report stated that “a
dead end exists in the corridor or passageway where there is only one
direction to travel to an exit”. Using this meaning as a reference, NBCC
C interpreted the phrase of ‘dead end side of building’ to hold that T-1 and
T-17 do not have dead end sides facing each other. Further, NBCC also
observed that the distance between T-1 and T-17 does not comply with
the distance rule specified in NBC 2005:
“6. The dead end sides, as per regulation 24.2.1 (6) of NBR 2010
D would mean where habitable rooms of the building do not
face each other and the distance between two adjacent building
blocks shall be 9 mtrs and otherwise it shall be 16 mtrs as per
NBC 2005. In the present case both the buildings i.e T-1 &
T-17 have habitable rooms (with balconies) facing each
other so these are not dead ends”.
E
7. Whether the side of T-17 which is facing T-1 is its dead-end
side:
(a) The T-17 has entry & exit routes on the sides perpendicular to
the side facing T-1. Therefore, the side of tower T-17 which faces
F T-1 is not the front-side, and therefore, the ‘Building Separation’
between T-1 & T-17 should be guided by those clause(s) in NBC
2005 that guide(s) open spaces to the sides of a building.
(b) On the ground floor, tower T-17 has commercial space/shops
which would be always busy/occupied with people for most of
the time during a normal dat.
G
(c) On higher floors it has balconies & terraces anchored to
habitable rooms on all sides.
Inference: From (i), (ii) & (iii) above, the side of T-17 which faces
T-1 would naturally have frequent human use & activity both during
H daytime and nighttime, every day of the year, for however short
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1051
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

the durations, both on ground and on higher floors (balconies & A
terraces anchored to habitable rooms) on any normal day.
Therefore, it may be safe to conclude it is not a dead-end side of
T-17.
8. Whether the side of T-1 which faces T-17 is its dead-end side:
The side of T-1 facing T-17 has three sections, and its middle B
section is offset further away from Tower T-17 while the two
sections at the ends are in the same line. However, that section is
the main entry/exist to the Tower. The remaining portion of
the side facing Tower T-17 is also not inactive since it has
balconies & terraces anchored to habitable rooms and/or
toilets. C

Inference: The entry to tower T-1 is from the side facing
Tower-17. This the side of tower 1 facing tower-17 cannot be
treated as dead end side of tower-1.”
(emphasis supplied) D
98. The appellant filed its objections to the report of NBCC,
contending the following:
(i) The scope of enquiry was restricted by this Court to the
issue whether T-1 and T-17 have dead end sides facing
each other for the purpose of Regulation 24.2.1(6) of the E
NBR 2010. However, NBCC has widened the scope of
enquiry and determined if the sanction is in compliance with
the distance rule in NBC 2005;
(ii) The entry to the ground floor of T-17 is provided on both
sides. For the commercial shops, the entry is on the side F
perpendicular to the side facing T-1, and for the other
facilities it is on the other side opening towards the side of
T-16 and the open space;
(iii) The passage between T-1 and T-17 is used only to enter
into the parking space allotted for the houses in T-1 toT-15. G
To enter the parking space of T-17, another passage is used;
(iv) Four out of the five external sides of the apartments in T-1
facing T-17 are dead ends (two plumbing shafts, toilet dead
wall, bedroom dead wall). Only the fifth external side of
H
1052 SUPREME COURT REPORTS [2021] 13 S.C.R.

A T-1, which is a balcony attached to the living room, faces
towards T-17;
(v) Though the entry in T-1 is facing T-17, the entry is 20 mtrs.
away from T-17;
(vi) NBCC has failed to consider the different line positions
B with respect to T-1 and T-17. There are sixteen line positions
of the sides of T-1 and T-17 that are facing each other and
they are predominantly dead end sides. Of the sixteen line
positions:
a. Eleven line positions have dead walls facing each other;
C
b. Two line positions have dead walls of T1 facing windows
of T-17. However, there is a 16 mtrs. open space
between them;
c. Two line positions have the railings of common lift lobbies
D of T-1 facing the bed room window of T-17. However,
there is a 3 mtrs. open space between them; and
d. One line position where the dead wall of shaft of T-1
faces the railing of balcony in T-17, there is 9.30 mtrs.
of open space between them. The open space between
the walls of both the buildings in this line space is 10.80
E
mtrs.
99. The first respondent also sought an expert opinion on whether
T-1 and T-17 have dead end sides facing each other from IIT Delhi. The
report was submitted on 6 September 2016 to this Court, and concluded
that the sides of T-1 and T-17 that face each other cannot be considered
F
as ‘dead end sides of the building’. It was observed that when balconies
and windows (or any other egress) are provided, the functional
performance will be compromised if the minimum distance as prescribed
is not adhered to. Elaborating further, it was stated that the minimum
distance can be reduced when there is no egress on the concerned side
G of the building because then there would be no possibility of a functional
compromise. The reasoning in the report is summarized below:
(i) The dictionary meaning of ‘dead end’ is ‘“no exit”, i.e., no
egress or without openings. Therefore, the presence of any
opening in the form of windows of balconies renders the
H building side not a dead end;
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1053
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(ii) The purpose of prescribing a minimum distance requirement A
between two buildings is to prevent transmission of fire for
safe escape during calamities, minimum ventilation, and to
receive natural day light. In case the minimum distance
requirement between buildings with egress facing another
building is not complied with, then the function of the egress
(through window or balcony) will be compromised due to the B
following reasons:
a. To avoid transmission of fire: According to NBC 2005,
fire separation is defined as the distance from the
‘external wall’ of a building to the ‘external wall’ of
another building. There is an increased possibility for C
fire to be transmitted to the adjacent building through
windows. However, if the walls have no openings, then
the distance between the buildings can be less since there
is a lesser chance for transmission of fire;
b. Safe escape and rescue: As the height of the building D
increases, there is an increased difficulty to rescue
residents in case of emergency situations. In such cases,
open balconies can be used to facilitate rescue operations
provided that the street has sufficient width. As the height
of the building increases, for maximum safe inclination
of the ladder, the street has to be wider; E

c. Minimum ventilation: Minimum natural ventilation is
required for hygienic ventilation (i.e., the removal of CO2,
body odour, etc.), for heat exchange and cooling of the
building; and
F
d. Natural day light: When the distance between two
buildings is high, the building receives direct sunlight;
(iii) The main entry/exit of T-1 is facing T-17. This entry is the
only one that abuts the road and will in all probability be used
for rescue operations if the need arises. The balconies of
habitable rooms in T-1 and T-17 also face each other. G
Therefore, the concerned building sides (of T-1 facing T-17
and vice versa) cannot be considered as dead ends since the
sides have egress. Moreover, a reduction in the minimum
distance requirement would severely compromise the purpose
of providing such egress. H
1054 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 100 The first respondent by a letter dated 6 October 2016 also
sought an expert opinion from IIT Roorkee on whether T-1 and T-17
have dead end sides facing each other. A report was submitted in October
2016 to this Court holding that the building sides of T-1 and T-17 facing
each other cannot be termed as ‘dead ends’ for the following reasons:
B (i) The scientific basis of providing the distance requirement is
to enhance fire safety, provide sufficient day light and
ventilation, visual privacy and air flow;
(ii) The Merriam Webster Dictionary defines ‘Dead End’ as a
street that ends instead of joining with another street so that
C there is only one way in and out of it. ‘Dead wall’ is defined
as a wall without openings such as doors, windows and
ventilators. Therefore, evidently, openings for fenestration and
the presence of balconies and windows would mean that the
‘side’ is not a dead end side;

D (iii) When the side of the building facing another building has egress,
the minimum distance specified under the Regulations must
be complied with. Otherwise, the functional performances of
the egress (i.e., balcony, window, etc.) will be compromised;
and

E (iv) The main entry, the doors, windows, and balconies of T-1
face T-17. Since the side of T-1 facing T-17 has egress, it is
not a ‘dead end side’.
101. The appellant approached Design Forum International 24, an
architectural and design firm, requesting their assistance in the ongoing
F case. DFI through its report made the following observations on NBCC’s
report regarding the dead end issue:
(i) T-1 and T-17 vary in design. T-17 has nearly three times
the length when compared to T-1. Moreover, the portion of
T-17 that overlaps T-1 is not constant along the whole length.
Therefore, it is necessary that the sides of the towers facing
G
each other are examined in a more detailed manner;
(ii) The entry of T-1 and T-17 is perpendicular to each other;
(iii) The sides of T-1 and T-17 can be classified into the following
three categories: (a) dead end facing dead end (i.e., a wall
H 24
“DFI”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1055
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

facing a wall); (b) dead end facing a non-dead end (i.e., a A
wall facing a window); and (c) non-dead end facing a non-
dead end (i.e., a window facing a window);
(iv) The position is clear under Regulation 24.2.1(6) of NBR
2010 that for cases falling under (a), the distance between
the buildings must be 9 mtrs. and for cases falling under B
(c), the distance must be 16 mtrs. However, for cases that
fall under (b), there is no clarity on the distance that must
be maintained between the buildings;
(v) There are thirteen unique line positions between T-1 and
T-17. Of the thirteen line positions, in six line positions the C
dead end side of T-1 faces the dead end side of T-17 (Type
(a)); in four line positions, the dead end side of T1/T-17
faces the non- dead end side of the other (Type (b)); in
three line positions, the non-dead end side of T-1 and T-17
face each other (Type (c));
D
(vi) For the line positions falling under type (a), the distance
varies from 9.88 mtrs. to 15.11 mtrs. complying with the 9
mtrs. requirement; for the line positions falling under type
(b), the distance varies from 10.8 mtrs. to 15.3 mtrs.; for
the line positions falling under type (c), the distance varies
between 14.62 mtrs. to 15.5 mtrs., which is ‘very slightly E
lesser’ than the required 16 mtrs.;
(vii) Since the distance between the sides of T-1 and T-17 facing
each other differ widely and is not uniform, this Court will
have to undertake an in depth analysis of the issue keeping
in mind the unique situation; and F
(viii) The minute deficiency in case of type (c) and type (b) (if
this Court declares the distance to be deficient) can be
rectified by making structural alterations in the buildings by
shifting the position of the egresses.
G
102. The NBR 2010 does not provide any definition of the phrase
‘the dead end side of the block.’ NBR 2006, NBC 2005 and the UPIAD
Act 1976 also do not define the phrase. The Court while interpreting the
expression will have to attribute a contextual meaning to the phrase
‘dead end side of the block’. The above reports adopt two different
meanings of the phrase. The NBCC report and the appellant in its H
1056 SUPREME COURT REPORTS [2021] 13 S.C.R.

A objections before the NBCC state that the dead end sides of the building
would mean where ‘habitable rooms’ of a building do not face each
other. Though it is not specified that only habitable rooms with ‘windows/
balconies’ will not be considered as dead ends, it is evident that the
argument is that it is only if a habitable room with egress faces the side
of the adjacent building, that it should not be considered as a dead end
B
side. The corollary is that if the store room or the bathroom or corridor
with a window/vent faces the side of the adjacent building it must still be
considered as a dead end. Whereas, the reports by IIT Delhi and IIT
Roorkee take another approach by defining a dead end side of a building
as a side with egress (i.e., windows, balconies or vents) without any
C reference to ‘habitable rooms’.
103. Two other contentions on the interpretation of the phrase
have also been raised. It is contended that the phrase is ambiguous to
the extent that it does not provide clarity on whether an egress of a
building facing a dead wall of the adjacent building would fall within the
D exception. It is also contended that since the height of T-1 and T-17 is
not the same, two egresses in adjacent buildings face each other only in
a few line positions, and the requirement of minimum distance between
the adjacent buildings must differ with each line position depending upon
whether those specific line positions are dead ends.
E 104. We are therefore faced with three questions while interpreting
the phrase ‘dead end sides of the buildings’:
(i) whether only habitable rooms with egress in any part of the
building must be excluded from the ambit of the phrase ‘dead
end sides of the buildings’;
F (ii) whether both sides of the buildings must be dead end sides,
or whether it is sufficient if one side of the building is a dead
end side; and
(iii) whether the direct line position must be used for the
determination of ‘dead end sides of the building’ and the
G distance between two adjacent buildings.
105. We are unable to accept the contention that only habitable
rooms with egress (that is, windows or balconies) will fall outside the
ambit of ‘dead end side of the buildings’. ‘Dead end’ in common parlance
means no exit or absence of access. NBR 2010 does not provide any
H indication to classify between habitable and non-habitable rooms in the
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1057
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

context of the phrase ‘dead end side’. The argument that the classification A
between habitable and non-habitable rooms has been made in the Model
Bye-Laws with specific reference to the distance requirement and
therefore, it must be imported for the interpretation of the phrase ‘dead
end sides of the building’ is unsatisfactory. It is a settled principle of
statutory interpretation that words must be given their plain and ordinary
B
meaning unless such an interpretation leads to an ambiguity or absurdity
or when the object of the statute indicates otherwise. The use of the
phrase ‘dead end side of the building’ in NBR 2010, in spite of the other
bye laws using the phrase ‘habitable rooms’, makes it evident that the
intent was to restrict the ambit of the exception. Interpreting the phrase
in the context of the ordinary meaning of the word ‘dead end’ does not C
lead to any ambiguity; rather it is in pursuance of the intent and purpose
behind the provision. As stated by the reports submitted by IIT Delhi
and IIT Roorkee, the purpose of prescribing a higher minimum distance
between adjacent buildings in case the side of the building facing another
has egress is so that the functional utility of the egress (either a window
D
or balcony) is not diminished. Windows/balconies, irrespective of whether
they are attached to a habitable or a non-habitable room, perform
functions which will be greatly diminished if the adjacent building is closer
and thereby restricting the air flow and increasing the chance of
transmissibility in the event of a fire. Moreover, the privacy of the flat
dwellers would be severely compromised. The expansion of the meaning E
of the phrase ‘dead end side of the building’ to include non-habitable
rooms with windows would thus amount to rewriting the regulation, when
no such indication can be construed from NBR 2006 or NBR 2010.
106. The contention that the dead end exception will be applicable,
even if one side of the two adjacent buildings has a dead end is erroneous. F
Regulation 24.2.1(6) of NBR 2010 states “If the blocks have dead
end sides facing each other, then the spacing shall be maximum 9
meters instead of 16 meters”. The words ‘blocks’ and ‘sides’ in the
plural form find place in Regulation 24.2.1(6) of NBR 2010. The
Regulation does not state ‘if the block having a dead end side’. When
the phrases or words are free from ambiguity and when there is only G
one meaning that the phrase would take when fairly construed, it will
have to be literally construed, and courts must not resort to a liberal
interpretation which will defeat the intent, purpose and object of a provision
in a planning regulation.
H
1058 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 107. The report submitted by DFI refers to the variant heights of
T-1 and T-17. The contention is that since the structure of T-1 and T-17
are different, and since the towers horizontally overlap with each other
only to the extent of the height of the shorter tower (T-1), the distance
between T-1 and T-17 must be measured in the direct line positions.
These direct line positions are then classified into three categories
B
(Category (a) - dead end facing dead end; Category (b) - dead end
facing a non-dead end; Category (c) - a non-dead end facing a non-
dead end). The distances between T-1 and T-17 with respect to each of
these types have been measured to argue that for lines falling in category
(a), it is enough if the distance is 9 mtrs; for those falling under category
C (b), there is no clarity on the distance required; and for lines in category
(c), a minimum distance of 16 mtrs. is required. This argument rests on
two premises: (i) the minimum distance requirement prescribed under
Regulation 24.2.1(6) of NBR 2010 is not the distance between two
buildings but is rather the distance between the different direct line
positions between two adjacent buildings; and (ii) it is necessary for the
D
entire adjacent blocks to have non-dead end sides facing each other for
the 16 mtrs. distance rule to be applied uniformly.
108. The phrase which is used in Regulation 24.2.1(6) of NBR
2010 is ‘block’ and not ‘flat’/‘unit’. The unit of consideration is thus not
individual ‘units’ in the block but the entire block itself. The side of the
E block would not be a dead end side if there are even few egresses. If
the direct line position argument is accepted, then the intent behind
providing the minimum distance requirement would become nugatory.
The purpose of imposing the minimum distance requirement as stated in
the reports of IIT Delhi and IIT Roorkee is to provide ventilation, direct
F sun light, means of rescue and prevent the spread of fire. If particular
‘flats’/‘units’ in the block have a vent according to the construction plan,
the minimum distance would have to be complied with, not just with
respect to the direct line but with respect to the ‘entire block’.
109. The reports of IIT Delhi and IIT Roorkee clearly elucidate
G the difficulty in evacuation of occupants in high rise buildings. The report
states that the distance between adjacent buildings needs to be greater
for taller buildings since the street has to be wider for the maximum safe
inclination of the ladder. The reports also mention the reduction in
ventilation, sunlight and privacy in case the distance between the buildings
is less. Therefore, irrespective of whether all or some of the units in the
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1059
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

block have an egress facing the adjacent building, the minimum distance A
of 16 mtrs. will have to be complied with, otherwise the purpose of
providing the vent would be functionally compromised
110. In view of the above discussion, the principles that would
guide the interpretation of the phrase ‘dead end sides of the blocks’ are
as follows: B
(i) The phrase ‘dead end side of the block’ would mean that any
building does not have an egress;
(ii) An egress in a non-habitable room like the bathroom or the
storeroom will be considered as a non-dead end side;
C
(iii) For the ‘dead end’ exception to be applicable, it is necessary
that the sides of both the buildings facing each other must not
have any egress;
(iv) It is not necessary that all the units in the building facing the
other building must have an egress. Even if some of the units D
have an egress, that side of the block will not be considered
as a ‘dead end side’; and
(v) The minimum distance required between two adjacent blocks
must not be measured through direct line positions of the units
but along the ground.
E
111. On application of the principles deduced above on the
interpretation of the expression ‘dead end side of the building’, the sides
of T-1 and T-17 facing each other are held not to be dead end sides for
the following reasons:
(i) The windows/corridors of T-17 on all floors except the ground F
floor have an opening on the side that faces T-1. Though this
is contested by the appellant, it has been conceded that there
are at least a few windows/balconies in T-1 facing T-17 and
vice versa;
(ii) The entries of T-1 and T-17 do not face each other but are G
perpendicular to each other. However, the entry to T-1 is
from the side facing T-17;
(iii) Four out of five external sides of T-1 that face T-17 are dead
end sides. However, the fifth side is a balcony of the living
room facing T-17. The distance between points of the buildings H
1060 SUPREME COURT REPORTS [2021] 13 S.C.R.

A cannot be selectively measured to argue its compliance with
the distance rule; and
(iv) Even though the entry of T-1 facing T-17 is 20 mtrs. away,
the distance rule is not complied with since a selective
measurement from the dead end points cannot be undertaken.
B The distance must be measured along the ground.
Thus, we find that the revised plans were in violation of NBR
2010 and do not fall under the exception provided in Regulation 24.2.1.6
for blocks having dead end sides.
D.2 Violation of NBC 2005
C
112. We shall now address the question of whether the third revised
plans violated the NBC 2005. As we have seen above, NBC 2005 is
referenced in Regulations 24.2.1.6 of the NBR 2010. NBC 2005 has
two parts in regard to the maintenance of open spaces – para 8.2.3.1
and para 8.2.3.2. Para 8.2.3.1 provides for open spaces for buildings
D above the height of 10 mtrs., which are specified in Table 2. Table 2
indicates that the side and rear open spaces correspond to the height of
the building and increase accordingly, beginning with 3 mtrs. for a building
of a height of 10 mtrs. and up to 16 mtrs., where the height of the
building is 55 mtrs. and above. In addition, Note 3 clarifies that where
E either the length and depth of the building exceeds 40 mtrs., the minimum
distance which is prescribed must be further increased by ten percent of
the length and depth of the building minus 4 mtrs. Thus, the calculation
for the side and rear open spaces to be left around the building would be
as follows:

F (third revision) (second revision)
Height of the Building 84.5 m25 73 m
Minimum distance
prescribed in Col 3 of 16 m 16 m
G Table 22 (for buildings
above 55 mtrs)
Distance to be

25
The total actual length of T-17 as noted in the NBCC Report is 84.5 m as against the
H envisaged 121 m.
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1061
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

maintained as per Note A
3: 16 + 10% 16 + 10% (73)
Distance in col (3) + 10% (84.5) – 4 – 4 = 19.3
of the length or depth of = 20.45 mtrs mtrs
building – 4.0 mtrs B
Thus, according to the NBC 2005, the spacing between T-1 and
T-17 should be 20.45 mtrs. Evidently then, the second and third revised
plans were not in accordance with the NBC 2005. This conclusion is
fortified by the report of the NBCC, which in para 5 reaches the
conclusion that the minimum open space around T-17 is to be 20.45 C
mtrs. and thus, the distance between T-1 and T-17 does not comply with
para 8.2.3.1 of the NBC 2005.
113. An alternative to para 8.2.3.1 has been provided in para 8.2.3.2
for ‘tower like structures’. Para 8.2.3.2 stipulates that for a structure of
a height up to 24 mtrs. with one set-back, the open spaces at the ground D
level should not be less than 6 mtrs.; if the height is between 24 mtrs.
and 37.5 mtrs. with one set-back, the open space at the ground level
must be not less than 9 mtrs.; and for heights above 37.5 mtrs. with two
set-backs, the open space at the ground level should not be less than 12
mtrs. Additionally, under (d) of para 8.2.3.1, the deficiency in open spaces
E
of tower like structures (as compared to all building of height above 10
mtrs. in para 8.2.3.1) can be made good by providing set-backs at the
upper levels, so long as the set-backs are not accessible from individual
rooms or flats at these levels.
114. A reading of para 8.2.3.2 indicates that this exception is only
F
applicable if the deficiency in open spaces can be made good by set-
backs at the upper level. Clause (d) of para 8.2.3.2 of the NBC 2005 is
ex facie not attracted for the reason that there are no set-backs at the
upper levels within the contemplation of the disputed constructions. In
any case, even para 8.2.3.2 provides that for tower like structures higher
than 37.5 mtrs. with two setbacks, the open space should be not less G
than 12 mtrs. Thus, the exception is of no aid to the appellant and NOIDA
which has issued the third revised plan envisaging a distance of 9 mtrs.
between T-1 and T-17.
D.3 Violation of Fire Safety Norms
H
1062 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 115. The appellant requested for a fire NOC for the construction
of T-16 and T-17. On 11 September 2009, a report was submitted to the
CFO observing that the road is wide enough for vehicles of the Fire
Brigade Department to reach the spot in case of emergency situations.
However, clause 10 of the report states that Part III and Part IV of
NBC 2005 will have to be complied with during the construction of the
B
building and in case of non-compliance, the NOC shall stand cancelled.
Para 8.2.3.1 of NBC 2005 prescribes a minimum of 16 mtrs. for the side
and rear open spaces of buildings which are 55 mtrs. high and above.
116. On 18 August 2011, the CFO issued a temporary fire NOC
for the construction of T-16 and T-17. This letter also stated that the
C applicant will have make arrangements for fire safety compliant with
the NBC 2005. On 29 March 2012, the CFO issued a notice to the
appellant highlighting various shortcomings in fire security provisions.
On 24 April 2012, the CFO wrote to NOIDA stating that the distance
between T-1 and T-17 is only 9 mtrs. which is violative of NBR 2006,
D NBR 2010 and NBC 2005 and asking if NOIDA had provided any
exemption to the distance rule to appellant. The CFO issued a show
cause notice to the appellant on 17 July 2012 directing that T-16 and T-
17 that are under construction be physically separated from the ‘old
towers’.
E 117. A complaint was made by the first respondent to the CFO on
the non-compliance of the conditions stipulated for the grant of the NOC
for the complex (for T1 to T-15). A committee was constituted to look
into the complaint and the following observations were made by the
committee:

F (i) A show cause notice was issued for the construction of a
second staircase. The stair case has still not been built;
(ii) People are living in quarters constructed in the basement
which is not in accordance with the NBC 2005 provisions;
(iii) Set back is used as a parking, so the effective set back in
G certain places is reduced by 2 mtrs. and is thus less than the
required 9 mtrs.;
(iv) On the rear side of the tower, 6 mtrs. set back is not available.
118. These suggestions given by the committee were required to
be complied with within six months. Since they were not complied with,
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1063
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

a show cause notice was issued on 30 May 2014 for not remedying the A
deficiencies.
119. Regulation 76 of NBR 2006 states that the building must be
planned and constructed in accordance with Part IV of National Building
Code 1970, amended as of that day. Para 4.6 of NBC 2005 states that
the approach to the building and the open spaces on all the sides of a B
high rise building shall be 6 mtrs. and that the layout of the building must
be made in consultation with the CFO. However, para 8.2.3.1 of NBC
2005 prescribes a minimum of 16 mtrs. side and rear spaces for buildings
that are higher than 55 mtrs. Therefore, on reading NBC 2005 as a
whole, the side and rear space around the building must be 16 mtrs. The
distance between T-1 and T-17 is only 9 mtrs., which is less than the C
required 16 mtrs.
120. The temporary NOC that was given by the CFO clearly
states that the NBC 2005 must be complied with. However, as shown
above, the provisions of NBC 2005 have not been complied with.
Therefore, given that the rear distance requirement under NBC 2005 D
has not been complied with, the NOC given by the CFO stands
automatically cancelled in terms of the report dated 11 September 2009
and letter dated 18 August 2011.
E Consent of the RWA
E
121. Having held above that the sanction for the construction of
T-16 and T-17 were given by NOIDA in contravention of the minimum
distance requirement provided by the Building Regulations, we will advert
to the next issue. It has been contended by RWA that the sanction could
not have been revised without the consent of the flat purchasers in the
original fifteen towers. While analyzing this issue, it is first important to F
consider the appellant’s preliminary objection that the UP 1975 Act is
not applicable to the present case. After addressing the preliminary
objection, we shall analyze whether the consent was actually required
under the UP 1975 Act and UP Apartments Act 2010.
E.1 Applicability of UP 1975 Act G
122. The UP 1975 Act has been described in its long title as “an
Act to provide for matters connected with the ownership and use of
individual flats in buildings consisting of four or more flats”. Section 2 of
the Act states that the Act shall apply only to owners who submit to the
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1064 SUPREME COURT REPORTS [2021] 13 S.C.R.

A provisions of the Act by executing a declaration. Section 2 reads as
follows:
“2. Application of the Act. — This Act applies only to property,
the sole owner or all the owners of which submit the same to the
provisions of this Act by duly executing and registering a
B Declaration setting out the particulars referred to in section 10:
Provided that no property shall be submitted to the provisions of
this Act, unless it is actually used or is proposed to be used for
residential purposes:
Provided further that the sole owner or all the owners of the land
C on which building is situated may submit such land to the provisions
of this Act with a condition that he or they shall grant a lease of
such land to the owners of the flats, the terms and conditions of
the lease being disclosed in the declaration either by annexing a
copy of the instrument of lease to be executed to the declaration
D or otherwise.”
123. Section 3(d)26 contains the definition of common area and
facilities. Section 427 stipulates that a flat shall be transferable and heritable

26
" (d) “common areas and facilities” includes—
(1) the land on which the building is located and all easements, rights and appurtenances
E belonging to the land and the building;
(2) the foundations, columns, girders, beams, supports, main wall, roofs, halls, corridors,
lobbies, stairs, stair-way, fire-escapes and entrances and exits of the building;
(3) the basements, cellars, yards, gardens, parking areas and storage spaces;
(4) the premises for the lodging of janitors or persons employed for the management of
the property;
(5) installations of common services, such as power, light, gas, hot and cold water,
F
heating, refrigeration, air conditioning and sewerage;
(6) the elevators, tanks, pumps, motors, expressors, pipes and ducts and in general all
apparatus and installations existing for common use;
(7) such other common facilities as may be specially provided for in the Declaration;
27
“4. Flat to be transferable and heritable property.—(1) Each owner of a flat shall
be entitled to the exclusive ownership and possession of his flat in accordance with the
G Declaration.
(2) Subject to the provisions of the second proviso to section 2, a flat, together with its
undivided interest in the common areas and facilities, shall constitute heritable and
transferable immovable property within the meaning of any law for the time being in
force:
Provided that no flat and the percentage of undivided interest in the common areas and
facilities appurtenant to such flat shall be partitioned or sub-divided for any purpose
H whatsoever.”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1065
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

property. Each owner of a flat is entitled to exclusive ownership and A
possession of their flat in accordance with the declaration. Moreover, a
flat together with its undivided interest in the common areas and facilities
shall be heritable and transferable immoveable property. Further, a flat
together with its undivided interest in the common areas and facilities
shall not be partitioned or sub-divided for any purpose.
B
124. Section 5 provides for common areas and facilities in the
following terms:
“5. Common areas and facilities. — (1) Each owner of a flat
shall be entitled to an undivided interest in the common areas and
facilities in the percentage expressed in the Declaration. C
(2) The percentage of the undivided interest of each owner
of a flat in the common areas and facilities as expressed in
the Declaration shall not be altered without the consent of
all the owners of the flats expressed in an amended Declaration
duly executed and registered as required by this Act. D
(3) The percentage of the undivided interest in the common areas
and facilities shall not be separated from the flat to which it
appertains, and shall be deemed to be conveyed or encumbered
with the flat even though such interest is not expressly mentioned
in the conveyance or other instrument. E
(4) The common areas and facilities shall remain undivided, and
no suit shall lie at the instance of any owner of the flat or other
person for partition or division of any part thereof, unless the
property have been withdrawn from the provisions of this Act.
(5) Each owner of a flat may use the common areas and facilities F
for the purpose for which they are intended without hindering or
encroaching upon the lawful rights of the owners of other flats.
(6) The work relating to the maintenance, repair and replacement
of the common areas and facilities and the making of any additions
or improvement thereto shall be carried out in accordance with G
the provisions of this Act and the bye-laws.
(7) The Association of Owners of flats shall have irrevocable
right to be exercised by the Manager or the Board of Managers
on behalf of the Association with such assistance as the Manager
or the Board of Managers, as the case may be, considers H
1066 SUPREME COURT REPORTS [2021] 13 S.C.R.

A necessary to have access to each flat from time to time during
reasonable hours, for the maintenance, repair and replacement of
any of the common areas and facilities therein or accessible
therefrom or for making emergency repairs therein to prevent
any damage to the common areas and facilities or to other flats.”
B (emphasis supplied)
Under sub-Section (2) of Section 5, the percentage of the undivided
interest of each owner of a flat in the common areas and facilities, as
expressed in the Declaration, shall not be altered without the consent of
all the owners of the flats expressed through an amended Declaration
C which shall be executed and registered under the Act. Section 1028 provides
for the contents of such a Declaration. Further, Section 1129 envisages

28
“10. Contents of Declaration.—(1) The declaration referred to in section 2 shall be
submitted in such form and in such manner as may be prescribed and shall contain the
following particulars, namely:—
D (a) description of the property, namely the description of the land on which the
building is or is to be located, whether the land is freehold or leasehold and whether any
lease of the land is to be granted in accordance with the second proviso to section 2, and
description of the building or proposed building stating the number of storeys and
basements and the number of flats;
(b) nature of interest of the owner or owners in the property;
(c) existing encumbrance, if any, affecting the property;
E (d) description of each flat containing its location, approximate area, number of rooms,
immediate common area to which it has access, and any other data necessary for its
proper identification;
(e) description of the common areas and facilities;
(f) description of the limited common areas and facilities, if any, stating to which flats
their use is reserved;
(g) value of the property and of each flat, and the percentage of undivided interest in the
F common areas and facilities appertaining to each flat and its owner for all purposes,
including voting.”
29
“11. Withdrawal from the provisions of the Act.— (1) All the owners of flats may
withdraw a property from the provisions of this Act by an instrument executed to that
effect.
(2) Upon the property being withdrawn from the provisions of this Act, it shall be
G deemed to be owned in common by the owners of flats and the share of each such owner
in the property shall be the percentage of undivided interest previously owned by such
owner in the common areas and facilities.
(3) Any encumbrance affecting any of the flats shall be deemed to be transferred in
accordance with the existing priority to the percentage of the undivided interest of the
owner of the flat in the property as provided therein.
(4) The withdrawal provided for in sub-section (1) shall in no way bar the subsequent
H resubmission of the property to the provisions of this Act.”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1067
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

that all the owners of flats may withdraw a property from the provisions A
of the Act by an instrument executed to that effect, following which it
shall be deemed to be owned in common by the owners of flats wherein
the share of each such owner shall be the percentage of undivided interest
previously owned in the common areas and facilities.
125. The submission urged on behalf of the appellant is that the B
UP 1975 Act has no application to the present case, in view of the
provisions of Section 2. Section 2, as we have seen, specifies that the
Act applies only to a property, the sole owner or all the owners of which,
submit it to the provisions of the Act by duly executing and registering a
Declaration setting out the particulars as contained in Section 10.
C
126. Undoubtedly, in this case there was no declaration in terms
of Section 2. However, significantly, the lease deed which was executed
by NOIDA in favour of the appellant on 16 March 2005, contains a
stipulation in clause II(h) in the following terms:
“II) AND THE LESSEE DOTH HEREBY DECLARE AND D
COVENANTS WITH THE LESSOR IN THE MANNER
FOLLOWING:
[…]
h) The Lessee/sub-lessee shall make such arrangement as are
necessary for maintenance of the building and common services E
and if the building is not maintained properly the Chief Executive
Officer, Noida or any officer authorized by him will have the power
to get the maintenance done through the Authority and recover
the amount so spent from the Lessee/Sub-Lessee. The Lessee/
Sub-Lessee will be individually and severally liable for payment F
of the maintenance amount. The rule/regulation of U.P. Flat
Ownership Act, 1975 shall be applicable on the lessee/sub-
lessee.” (emphasis supplied)
127. Mr Ravindra Kumar, learned Counsel appearing on behalf
of NOIDA, advanced a submission that the last sentence of clause II(h)
G
must be read together with the entirety of the clause, which relates to
the maintenance of the building and common services. Clause II(h) states
that in the event the building or common services are not maintained
properly, NOIDA would be entitled to ensure the maintenance and recover
the amount from the lessee/sub-lessee.
H
1068 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 128. However, the application of clause II(h) cannot be brushed
away on this basis, particularly since the sentence imposing the application
of the UP 1975 Act on the lessee/sub-lessee must bear some meaning
and content. In this context, during the course of his submissions, Mr
Jayant Bhushan, learned Senior Counsel appearing on behalf of the RWA,
has placed on the record a copy of the registered sub-lease executed on
B
a tripartite basis by NOIDA, with the appellant as the lessee and the flat
buyer as the sub-lessee. Some important provisions of this deed of sub-
lease are:
(i) Clause 16 contemplates that the occupant of the ground floor
would be entitled to use a “sit-out area but the right of user
C shall be subject to the provisions of the UP Ownership Flat
Act 1975”;
(ii) Clause 17 recognizes the right to user of the occupant of the
dwelling unit on the top floor, subject to the provisions of the
same enactment; and
D
(iii) Clause 27 envisages that all clauses of the lease executed by
NOIDA in favour of the appellant on 16 March 2005 shall be
applicable to the sub-lease deed as well.
129. In the backdrop of this provision, more particularly, clause
E II(h) of the lease deed which was executed by NOIDA in favour of the
appellant on 16 March 2005, the appellant was duty bound to comply
with the provisions of the UP 1975 Act. By submitting before this Court
that it is not bound by the terms of its agreement or the Act for want of
a declaration under Section 2, the appellant is evidently attempting to
take advantage of its own wrong.
F
E.2 Applicability of the UP Apartments Act 2010
130. In 2010, the State legislature enacted the UP Apartments
Act 2010. The long title describes the legislation as:
“An Act to provide for the ownership of an individual apartment
G in a building of an undivided interest in the common areas and
facilities appurtenant to such apartment and to make such
apartment and interest heritable and transferable and for matters
connected therewith or incidental thereto”
131. Section 2 of the Act is in the following terms:
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1069
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

“2. Application.- The provisions of this Act shall apply to all A
buildings having four or more apartments in any building
constructed or converted into apartment and land attached to the
apartment, where freehold, or held on lease excluding shopping
malls and multiplexes.”
Thus, in contrast with Section 2 of the UP 1975 Act, the B
corresponding provision of the UP Apartments Act 2010 stipulates that
the Act shall apply to all buildings with four or more apartments in any
building and land attached to the apartment whether freehold or held on
lease. Further, unlike Section 2 of the UP 1975 under which the Act was
to apply only when a declaration in terms of Section 10 was submitted,
this Act does not require a declaration for it to apply. C

132. The expression ‘apartment owner’ is defined by Section 3(d)
of the Act as follows:
“(d) “apartment owner” means the person or persons owning an
apartment or the promoter or his nominee in case of unsold D
apartments to and an undivided interest in the common areas and
facilities appurtenant to such apartment in the percentage specified
in the Deed of Apartment and includes the lessee of the land on
which the building containing such apartment has been constructed,
where the lease of such land is for a period of thirty years or
more;” E

133. The Act contains a definition of common areas in Section
3(i) and of limited common arears in Section 3(s):
“(i) “common area and facilities” means—
(i) the land on which the building is located and all easements, F
rights and appurtenances belonging to the land and the building;
(ii) the foundations, columns, girders, beams, supports, main walls,
roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes and
entrances and exits of the building;
(iii) the basements, cellars, yards, parks, gardens, community G
centers and parking areas of common use;
(iv) the premises for the lodging of janitors or persons employed
for the management of the property;

H
1070 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (v) installations of central services, such as power, light, gas, hot
and cold water, heating, refrigeration, air conditioning, incinerating
and sewerage;
(vi) the elevators, tanks, pumps, motors, fans, cable pipe line (TV,
gas, electricity etc.) rain water harvesting system, compressors,
B ducts and in general all apparatus and installations existing for
common use;
(vii) such other community and commercial facilities as may be
specified in the bye-laws; and
(viii) all other parts of the property necessary or convenient to its
C existence, maintenance and safety, or normally in common use;
[…]
(s) “limited common areas and facilities” means those common
areas and facilities which are designated in writing by the promoter
D before the allotment, sale or other transfer of any apartment as
reserved for use of certain apartment or apartments to the
exclusion of the other apartments;”
134. The general liabilities which have been cast upon promoters
intending to sell an apartment are set out in Section 4(1), which reads as
follows:
E
“4. General liabilities of promoter.— (1) Any promoter who
intends to sell an apartment, shall make a full and true disclosure
in writing of following to an intending purchaser and the Competent
Authority:
F (a) rights and his title to the land and the building in which the
apartments have been or proposed to be constructed;
(b) all encumbrances, if any, on such land or building, and any
right, title, interest or claim of any person in or, over such land or
building;
G (c) the plans and specifications approved by or submitted for
approval to the local authority of the entire building of which such
apartment forms part;
(d) detail of all common areas and facilities as per the approved
lay-out plan or building plan;
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1071
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(dd) built-up area and common area of an apartment. A
(e) the nature of fixtures, fittings, and amenities, which have been
or proposed to be provided;
(f) the details of the design and specifications of works or and
standards of the material which have been or are proposed to be
used in the construction of the building, together with the details B
of all structural, architectural drawings, layout plans, no objection
certificate from Fire Department, external and internal services
plan of electricity, sewage, drainage and water supply system etc.
to be made available with the Association;
(g) all outgoings, including ground rent, municipal or other local C
taxes, water and electricity charges, revenue assessments,
maintenance and other charges, interest on any mortgage or other
encumbrance, if any, in respect of such land, building and
apartments;
(h) such other information and documents as may be prescribed.” D
Sub-Section (4) of Section 4 contains the following stipulations:
“(4) After plans, specifications and other particulars specified in
this section as sanctioned by the prescribed sanctioning authority
are disclosed to the intending purchaser and a written agreement
E
of sale is entered into and registered with the office of concerned
registering authorities. The promoter may make such minor
additions or alterations as may be required by the owner or owners,
or such minor changes or alterations as may be necessary due to
architectural and structural reason’s duly recommended and
verified by authorized Architect or Engineer after proper F
declaration and intimation to the owner:
Provided that the promoter shall not make any alterations in the
plans, specifications and other particulars without the previous
consent of the intending purchaser, project Architect, project
Engineer and obtaining the required permission of the prescribed G
sanctioning authority, and in no case he shall make such alterations
as an not permissible in the building bye-laws.”
Under clause (c) of sub-Section (1) of Section 4, a promoter who
intends to sell an apartment is required to make a full disclosure in writing
to an intending purchaser and to the competent authority of the plans H
1072 SUPREME COURT REPORTS [2021] 13 S.C.R.

A and specifications approved or submitted for approval to the local authority,
of the building of which the apartment is a part. Similarly, under clause
(d), a disclosure has to be made in regard to the common areas and
facilities in accordance with the approved lay-out plan or building plan.
Once such a disclosure has been made, sub-Section (4) stipulates that
upon the execution of a written agreement to sell, the promoter may
B
make minor additions or alterations as may be required or necessary
due to architectural and structural reasons duly authorized and verified
by authorized Architects or Engineers. Apart from these minor additions
or alterations which are contemplated by sub-Section (4), the proviso
stipulates that the promoter shall not make any alterations in the plans,
C specifications and other particulars “without the previous consent of the
intending purchaser”. Mr Vikas Singh’s submission, that this provision
will apply to intending purchasers of Apex and Ceyane and not to the
persons who had purchased apartments in the existing fifteen towers,
cannot be accepted. The above proviso is evidently intended to protect
persons to whom the plans and specifications were disclosed when they
D
were the “intending purchasers”. Further, a construction to the contrary
will run against the grain of the intent and purpose of the statute as well
its express provisions.
135. Section 5 of the Act provides for the rights of apartment
owners in the following terms, insofar as is relevant:
E
“5. Rights of Apartment Owners.— (1) Every person to whom
any apartment is sold or otherwise transferred by the promoter
shall subject to the other provisions of this Act, be entitled to the
exclusive ownership and possession of the apartment so sold or
otherwise transferred to him.
F
(2) Every person who becomes entitled to the exclusive ownership
and possession of an apartment shall be entitled to such percentage
of undivided interest in the common areas and facilities as may be
specified in the Deed of Apartment and such percentage shall be
computed by taking, as a basis, the area of the apartment in relation
G to the aggregate area of all apartments of the building.
(3)(a) The percentage of the undivided interest of each apartment
owner in the common areas and facilities shall have a permanent
character, and shall not be altered without the written consent of
all the apartment owners and approval of the competent authority.
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1073
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(b) The percentage of the undivided interest in the common areas A
and facilities shall not be separated from the apartment to which
it appertains and shall be deemed to be conveyed or encumbered
with apartment, even though such interest is not expressly
mentioned in the conveyance or other instrument.”
136. It is important to clarify at this stage that the UP Apartments B
Act 2010 will not apply with retrospective effect to the second revised
plan, which was sanctioned on 26 November 2009. However, the
legislation, which came into force upon publication in the UP Gazette on
19 March 2010, will have consequences for the third revised plan
sanctioned on 2 March 2012, as analysed below.
C
E.3 Requirement of RWA’s Consent
137. In terms of the third revised plan which was sanctioned on
2 March 2012, the height of T-16 and T-17 was sought to be increased
from twenty-four to forty (or thirty-nine, as the case may be) floors. As
a result, the total number of flat purchasers would increase from 650 to D
1500. The clear implication of this would be a reduction of the undivided
interest of the existing purchasers in the common areas. As a matter of
fact, it has also been submitted on behalf of the first respondent that the
additional lease rent paid to NOIDA was also sought to be collected
from the existing flat purchasers at the rate of Rs 190 per sq. foot. A
statement to that effect was also contained in an affidavit filed before E
the High Court on behalf of the first respondent. The purchase of
additional FAR by the appellant cannot be used to trample over the rights
of the existing purchasers.
138. Flats were sold on the representation that there would be a
garden area adjacent to T-1. The garden adjacent to T-1 is clearly depicted F
in the first revised plan of 29 December 2006. It is this garden area
which was encroached upon when the second revised plan was
sanctioned on 26 November 2009.
139. However, according to the appellant, T-16 and T-17 form
part of Phase II of Emerald Court, which had not encroached on any G
part of the common areas of Phase I, under which all the other towers
fell. In this context, it would be material to note a letter dated 13 February
2012 addressed to the Circle Officer, City 3rd NOIDA, Gautam Buddh
Nagar, by the Director of the appellant, in which it has been stated that:
H
1074 SUPREME COURT REPORTS [2021] 13 S.C.R.

A “Kindly, refer to your Letter Dt. 10.02,2012, received by us on
11.02.2012, regarding which written statement on behalf of M/s.
Supertech Limited is presented as under:
1. That, [A]pex and [Ceyane] multi storey residential tower is
being constructed over plot measuring nearly 6500 sq. meter which
B was acquired by the Company M/s. Supertech Limited from
NOIDA Development Authority in the year 2006, regarding which
its supplementary lease deed was registered in the office of Sub-
Registrar, Second, Gautam Buddh Nagar…
2. That, right from the beginning there was a pan for
C constructing separate complex viz. Apex and [Ceyane] and
provisions have been separately made in both towers viz.
swimming pool, car, club, parking and gym etc. The facilities
of other old towers as shown in the brochure have been
published by mistake, but concerned amendment was made
in the brochure upon the company being informed by the
D residents residing in old towers…
[…]
4. That, company has erected wall for the expansion of basement
and above wall was erected by the company over its land and this
E basement area was not sold to any resident of old tower over
which company has complete ownership. No adverse effect is
there on the interests of any resident in erecting above wall, rather
the residents of old tower have been removed from the allotted
basement area by it. Company has full right to make construction
over its land.
F
5. That, construction carried out earlier or being carried out by
the company is completely legal and in accordance with Rules
and company has not affected the interest of anybody and no
fraud was committed by the company with anybody.
Therefore, it appears that the complainant having presented this
G
false complaint inspired by mala fides wants to harass the company
and wants to earn undue advantage by not making payment of an
amount which is payable to the company. Therefore, it is requested
that complaint presented by the complainant is liable to be
dismissed. In addition, it is also requested that any personal name
H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1075
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

be not used in any correspondence or inquiry, rather name of A
company through its Director be used.”
(emphasis supplied)
The above letter puts forth the case that T-16 and T-17 have been
constructed as a separate project over the area which was obtained
under the supplementary lease deed, and that it has separate provisions B
for all amenities and infrastructure. In fact, it indicates that the facilities
of the older buyers were shown in the brochure but that representation
was ‘clarified’ to be a ‘mistake’, which had been amended.
140. As such, it becomes important to refer to the supplementary
lease deed, which was granted in favour of the appellant on 21 June C
2006. The supplementary lease deed makes it clear that the demised
premises admeasuring 6556.51 sq. mtrs. would form a part of the originally
allotted plot. In the course of its affidavit before the High Court, the
appellant contended that:
“7. The Office bearers/members of the petitioners society has D
the right title & interest only in its flat and undivided interest in the
common areas of the Emerald Court (phase I). He has the right
to challenge if somebody is trying to encroach in his flat or in the
Common area are intended to be used for the purpose of the
residents. However, here this is not the case. It is stated that the E
“Apex & Ceyane” (Phase II) comprising of two towers has not
encroached any area of the common of the Emerald Court (Phase
I). Therefore the petitioner society does not have the locus to
challenge the issues related with “Apex & Ceyane” (Phase- II).”
In other words, the case which was sought to be set up was that F
the flat purchasers had an undivided interest in the common areas of
Phase I of the Emerald Court, but since T-16 and T-17 formed a part of
Phase II, it did not affect the rights of the original flat purchasers of T-1
to T-15. This contention is expressly contrary to the clear terms governing
the supplementary lease deed, which indicates that the area comprising
of the demised premises would form part of the original plot. Furthermore, G
the appellant having utilized the FAR of the entire plot, including the area
which forms the subject matter of the original lease and the supplementary
lease, cannot be allowed to assert to the contrary.
141. Hence, it is abundantly clear that the construction of T-16
and T-17 in accordance with the second revised plan and the third revised H
1076 SUPREME COURT REPORTS [2021] 13 S.C.R.

A plan reduced the value of the undivided interest held by each individual
flat owner in the common areas and facilities, thereby violating Section
5 of the UP 1975 Act and Section 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 had been made to the flat owners at the
B
time when they purchased the apartments in T-1, without their consent.
Therefore, it constituted a violation of Section 4(1) read with the proviso
to Section 4(4) of the UP Apartments Act 2010.
142. Finally, the appellant has also tried to argue that: (i) the consent
of each individual flat owner could not be taken and it had to be taken
C from the RWA, as a collective body; (ii) the RWA only came into existence
on 20 October 2013, when it adopted the Model Bye-Laws under the
UP Apartments Act 2010l (iii) that this was after the third revised plan
was sanctioned; and (iv) hence, there existed no association to take
consent from. The High Court has dealt with this argument in the
D impugned judgment by observing:
“As per the averments of the respondent/company, the flats were
handed over to the apartment owners by September 2009. The
owners immediately formed Resident Welfare Association (RWA)
and got it registered with the Registrar Societies, in the very same
E year. Adopting the model bye-laws, did not arise, as it was not
enforced until 2011. After notification of Model bye-laws, the
Deputy Registrar Firm, Societies and Chits, Meerut vide letter
dated 14.12.2012 informed, that pending instructions from the
Registrar Firm Societies and Chits Uttar Pradesh, no decision in
the matter can be taken in respect of Model bye-laws and its
F registration. The Registrar Firm, Societies and Chits Uttar Pradesh
vide circular dated 5.2.2013 addressed to all Deputy Registrars/
District Registrars issued instructions for registration under
Apartment Act, 2010 and directed that bye laws of existing RAW
be accordingly amended. The petitioner/society vide resolution
G dated 20.10.2013 adopted the Model bye-laws and conducted
elections and thereafter informed the Deputy Registrar.
The respondent/company has recognized the petitioners society
as RWA of the Apartment owners since inception and has
continuously corresponded with the petitioner society as RWA.
H Letter dated 9.10.2012, 27.9.2012, 4.9.2012 and January, 2013
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1077
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

addressed to the petitioner society regarding redressal of their A
grievance is on record…”
Therefore, it is clear that: (i) the RWA came into existence in
2009 itself, when the first lot of apartment owners moved in; (ii) the
appellant was communicating with the RWA ever since; and (iii) the
RWA adopted the Model Bye-Laws under the UP Apartments Act 2010, B
as soon as it was practicable. These averments have not been challenged
before this Court during the oral submissions by the appellant, and hence,
it will be held bound by its own conduct. In any case, rights under the UP
1975 Act and UP Apartments Act 2010 have been provided to individual
flat owners, and not to collective bodies like the RWA. Hence, even the
non-constitution of the RWA will not extinguish the rights of individual C
flat owners. Indeed, however, whensuch RWAs do exist, developers
may use them to seek a common consent from all the flat owners instead
of approaching them all individually.
F Collusion and Illegal Construction
D
143. The record of this case is replete with instances which highlight
the collusion between the officers of NOIDA with the appellant and its
management. The case has revealed a nefarious complicity of the planning
authority in the violation by the developer of the provisions of law. The
complicity of NOIDA has emerged, inter alia, from the following
instances: E

(i) The sanctioning of the second revised plan on 26 November
2009 in clear breach of the NBR 2006;
(ii) The refusal by NOIDA to disclose the building plans to the
first respondent, in spite of a clear stipulation consistently F
in all the sanctioned plans that the plan would have to be
displayed at the construction site of the appellant;
(iii) NOIDA’s referral of RWA’s request to access the
sanctioned plans to the appellant to seek its consent and
upon the refusal of the latter, a continuous failure to disclose
G
them to the RWA;
(iv) Even when the CFO addressed a communication to NOIDA
in regard to the violation of the minimum distance
requirements in Emerald Court, it evinced no response and
no investigation from them;
H
1078 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (v) In pursuance of the second revised plan of 26 September
2009, the appellant would appear to have built a foundation
to support two buildings of forty and thirty-nine floors, while
the sanction for the extension from twenty-four to forty or
thirty-nine floors came about only on 2 March 2012 through
the third revised plan; and
B
(vi) The construction for T-16 and T-17 commenced in July 2009
by the appellant, five months before the sanction was
received for the second revised plan on 26 November 2009,
in spite of which NOIDA chose to take no action.
C 144. The High Court has dealt with the collusion between the
officials of NOIDA and the appellant. This is writ large from the facts
as they have emerged before this Court as well. The High Court has in
these circumstances correctly come to the conclusion that there was
collusion between the developer and the planning authority.

D 145. Condition 15 of the third revised plan dated 2 March 2012
stipulated that:
“15. Compliance of provisions of Uttar Pradesh Apartment
(promotion of construction, ownership & maintenance) Act 2010,
and directions issued thereunder shall be ascertained.
E Sanctioned site plan/map is enclosed with this letter. Application
for utility certificate would be made after completion of building
work within validity of map/site plan, and without permission and
certification building shall not be used…”
In spite of this condition, NOIDA made no effort to ensure
F compliance of the UP Apartments Act 2010, as a result of which the
rights of the flat purchasers have been brazenly violated. This cannot
point to any conclusion, other than the collusion between NOIDA and
the appellant to avoid complying with the provisions of the applicable
statutes and regulations for monetary gain, at the cost of the rights of the
flat purchasers.
G
146. The rampant increase in unauthorized constructions across
urban areas, particularly in metropolitan cities where soaring values of
land place a premium on dubious dealings has been noticed in several
decisions of this Court. This state of affairs has often come to pass in no
small a measure because of the collusion between developers and planning
H authorities.
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1079
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

147. From commencement to completion, the process of A
construction by developers is regulated within the framework of law.
The regulatory framework encompasses all stages of construction,
including allocation of land, sanctioning of the plan for construction,
regulation of the structural integrity of the structures under construction,
obtaining clearances from different departments (fire, garden, sewage,
B
etc.), and the issuance of occupation and completion certificates. While
the availability of housing stock, especially in metropolitan cities, is
necessary to accommodate the constant influx of people, it has to be
balanced with two crucial considerations – the protection of the
environment and the well-being and safety of those who occupy these
constructions. The regulation of the entire process is intended to ensure C
that constructions which will have a severe negative environmental impact
are not sanctioned. Hence, when these regulations are brazenly violated
by developers, more often than not with the connivance of regulatory
authorities, it strikes at the very core of urban planning, thereby directly
resulting in an increased harm to the environment and a dilution of safety
D
standards. Hence, illegal construction has to be dealt with strictly to
ensure compliance with the rule of law.
148. The judgments of this Court spanning the last four decades
emphasize the duty of planning bodies, while sanctioning building plans
and enforcing building regulations and bye-laws to conform to the norms
by which they are governed. A breach by the planning authority of its E
obligation to ensure compliance with building regulations is actionable at
the instance of residents whose rights are infringed by the violation of
law. Their quality of life is directly affected by the failure of the planning
authority to enforce compliance. Unfortunately, the diverse and unseen
group of flat buyers suffers the impact of the unholy nexus between F
builders and planners. Their quality of life is affected the most. Yet,
confronted with the economic might of developers and the might of legal
authority wielded by planning bodies, the few who raise their voices
have to pursue a long and expensive battle for rights with little certainty
of outcomes. As this case demonstrates, they are denied access to
information and are victims of misinformation. Hence, the law must step G
in to protect their legitimate concerns.
149. In K. Ramadas Shenoy v. Chief Officer, Town Municipal
Council30, Chief Justice AN Ray speaking for a two judge Bench of
30
(1974) 2 SCC 506 H
1080 SUPREME COURT REPORTS [2021] 13 S.C.R.

A this Court observed that the municipality functions for public benefit and
when it “acts in excess of the powers conferred by the Act or abuses
those powers then in those cases it is not exercising its jurisdiction
irregularly or wrongly but it is usurping powers which it does not possess”.
This Court also held:
B “27…The right to build on his own land is a right incidental to the
ownership of that land. Within the Municipality the exercise of
that right has been regulated in the interest of the community
residing within the limits of the Municipal Committee. If under
pretence of any authority which the law does give to the
Municipality it goes beyond the line of its authority, and infringes
C or violates the rights of others, it becomes like all other individuals
amenable to the jurisdiction of the courts. If sanction is given to
build by contravening a bye-law the jurisdiction of the courts will
be invoked on the ground that the approval by an authority of
building plans which contravene the bye-laws made by that
D authority is illegal and inoperative. (See Yabbicom v. King [(1899)
1 QB 444]).”
This Court held that an unregulated construction materially affects
the right of enjoyment of property by persons residing in a residential
area, and hence, it is the duty of the municipal authority to ensure that
E the area is not adversely affected by unauthorized construction.
150. These principles were re-affirmed by a two judge Bench in
Dr G.N. Khajuria v. Delhi Development Authority31 where this Court
held that it was not open to the Delhi Development Authority to carve
out a space, which was meant for a park for a nursery school. Justice
F BL Hansaria, speaking for the Court, observed:
“10. Before parting, we have an observation to make. The same
is that a feeling is gathering ground that where unauthorised
constructions are demolished on the force of the order of courts,
the illegality is not taken care of fully inasmuch as the officers of
G the statutory body who had allowed the unauthorised construction
to be made or make illegal allotments go scot free. This should
not, however, have happened for two reasons. First, it is the illegal
action/order of the officer which lies at the root of the unlawful
act of the citizen concerned, because of which the officer is more
31
H (1995) 5 SCC 762
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1081
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

to be blamed than the recipient of the illegal benefit. It is thus A
imperative, according to us, that while undoing the mischief which
would require the demolition of the unauthorised construction, the
delinquent officer has also to be punished in accordance with law.
This, however, seldom happens. Secondly, to take care of the
injustice completely, the officer who had misused his power has
B
also to be properly punished. Otherwise, what happens is that the
officer, who made the hay when the sun shined (sic), retains the
hay, which tempts others to do the same. This really gives fillip to
the commission of tainted acts, whereas the aim should be
opposite.”
151. In Friends Colony Development Committee v. State of C
Orissa32, this Court dealt with a case where the builder had exceeded
the permissible construction under the sanctioned plan and had constructed
an additional floor on the building, which was unauthorized. Chief Justice
RC Lahoti, speaking for a two judge Bench, observed:
“24. Structural and lot area regulations authorise the municipal D
authorities to regulate and restrict the height, number of storeys
and other structures; the percentage of a plot that may be occupied;
the size of yards, courts and open spaces; the density of population;
and the location and use of buildings and structures. All these
have in our view and do achieve the larger purpose of the public E
health, safety or general welfare. So are front setback provisions,
average alignments and structural alterations. Any violation of
zoning and regulation laws takes the toll in terms of public welfare
and convenience being sacrificed apart from the risk, inconvenience
and hardship which is posed to the occupants of the building.”
F
Noting that the private interest of land owners stands subordinate
to the public good while enforcing building and municipal regulations, the
Court issued a caution against the tendency to compound violations of
building regulations:
“25…The cases of professional builders stand on a different footing G
from an individual constructing his own building. A professional
builder is supposed to understand the laws better and deviations
by such builders can safely be assumed to be deliberate and done
with the intention of earning profits and hence deserve to be dealt
32
(2004) 8 SCC 733 H
1082 SUPREME COURT REPORTS [2021] 13 S.C.R.

A with sternly so as to act as a deterrent for future. It is common
knowledge that the builders enter into underhand dealings. Be
that as it may, the State Governments should think of levying heavy
penalties on such builders and therefrom develop a welfare fund
which can be utilised for compensating and rehabilitating such
innocent or unwary buyers who are displaced on account of
B
demolition of illegal constructions.”
152. In Priyanka Estates International (P) Ltd. v. State of
Assam33, Justice Deepak Verma, speaking for a two judge Bench,
observed:
C “55. It is a matter of common knowledge that illegal and
unauthorised constructions beyond the sanctioned plans are on
rise, may be due to paucity of land in big cities. Such activities are
required to be dealt with by firm hands otherwise builders/colonisers
would continue to build or construct beyond the sanctioned and
approved plans and would still go scot-free. Ultimately, it is the
D flat owners who fall prey to such activities as the ultimate desire
of a common man is to have a shelter of his own. Such unlawful
constructions are definitely against the public interest and
hazardous to the safety of occupiers and residents of multistoreyed
buildings. To some extent both parties can be said to be equally
E responsible for this. Still the greater loss would be of those flat
owners whose flats are to be demolished as compared to the
builder.”
The Court lamented that the earlier decisions on the subject had
not resulted in enhancing compliance by developers with building
F regulations. Further, the Court noted that if unauthorized constructions
were allowed to stand or are “given a seal of approval by Court”, it was
bound to affect the public at large. It also noted that the jurisdiction and
power of Courts to indemnify citizens who are affected by an unauthorized
construction erected by a developer could be utilized to compensate
ordinary citizens.
G
153. In Esha Ekta Apartments Coop. Housing Society Ltd.
v. Municipal Corpn. of Mumbai34, Justice GS Singhvi, writing for a
two judge Bench, reiterated the earlier decisions on this subject and
observed:
33
(2010) 2 SCC 27
H 34
(2013) 5 SCC 357
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1083
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

“8. At the outset, we would like to observe that by rejecting the A
prayer for regularisation of the floors constructed in wanton
violation of the sanctioned plan, the Deputy Chief Engineer and
the appellate authority have demonstrated their determination to
ensure planned development of the commercial capital of the
country and the orders passed by them have given a hope to the
B
law-abiding citizens that someone in the hierarchy of administration
will not allow unscrupulous developers/builders to take law into
their hands and get away with it.”
The Court further observed that an unauthorized construction
destroys the concept of planned development, and places an unbearable
burden on basic amenities provided by public authorities. The Court held C
that it was imperative for the public authority to not only demolish such
constructions but also to impose a penalty on the wrongdoers involved.
This lament of this Court, over the brazen violation of building regulations
by developers acting in collusion with planning bodies, was brought to
the fore-front when the Court prefaced its judgment with the following D
observations:
“1. In the last five decades, the provisions contained in various
municipal laws for planned development of the areas to which
such laws are applicable have been violated with impunity in all
the cities, big or small, and those entrusted with the task of ensuring E
implementation of the master plan, etc. have miserably failed to
perform their duties. It is highly regrettable that this is so despite
the fact that this Court has, keeping in view the imperatives of
preserving the ecology and environment of the area and protecting
the rights of the citizens, repeatedly cautioned the authorities
concerned against arbitrary regularisation of illegal constructions F
by way of compounding and otherwise.”
Finally, the Court also observed that no case has been made out
for directing the municipal corporation to regularize a construction which
has been made in violation of the sanctioned plan and cautioned against
doing so. In that context, it held: G
“56…We would like to reiterate that no authority administering
municipal laws and other similar laws can encourage violation of
the sanctioned plan. The courts are also expected to refrain from
exercising equitable jurisdiction for regularisation of illegal and
H
1084 SUPREME COURT REPORTS [2021] 13 S.C.R.

A unauthorised constructions else it would encourage violators of
the planning laws and destroy the very idea and concept of planned
development of urban as well as rural areas.”
154. These concerns have been reiterated in the more recent
decisions of this Court in Kerala State Coastal Zone Management
B Authority v. State of Kerala 35 , Kerala State Coastal Zone
Management Authority v. Maradu Municipality, Maradu36 and
Bikram Chatterji v. Union of India37.
155. In the present case, once this Court has determined that the
sanctioned plan for Apex and Ceyane (T-16 and T-17) breached the
C NBR 2006, NBR 2010, NBC 2005, UP 1975 Act and the UP Apartments
Act 2010, it becomes its duty to take stock of the violations committed
by the appellant in collusion with NOIDA. The appellant has raised false
pleas and attempted to mislead this Court, while the officials of NOIDA
have not acted bona fide in the discharge of their duties. The appellant
has stooped to the point of producing a fabricated sanctioned plan.
D Therefore, we confirm the directions of the High Court including the
order of demolition and for sanctioning prosecution under Section 49 of
the UPUD Act, as incorporated by Section 12 of the UPIAD Act 1976,
against the officials of the appellant and the officers of NOIDA for
violations of the UPIAD Act 1976 and UP Apartments Act 2010.
E G Conclusion
156. To summarize our findings, the documentary materials
referred to and analyzed in this judgment indicate that:
(i) The land allotted to appellant under the original lease
F agreement and the supplementary lease deed constitute one
plot;
(ii) The land which was allotted through the supplementary lease
deed forms a part of original Plot No 4, and would be
governed by the same terms and conditions as the original
lease deed;
G
(iii) The sanction given by NOIDA on 26 November 2009 and
2 March 2012 for the construction of T-16 and T-17 is
35
(2019) 7 SCC 248
36
2018 SCC OnLine SC 3352
37
H (2019) 19 SCC 161
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1085
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

violative of the minimum distance requirement under the A
NBR 2006, NBR 2010 and NBC 2005;
(iv) An effort was made to get around the violation of the
minimum distance requirement by representing that T-1
together with T-16 and T-17 form one cluster of buildings
in the same block. This representation was sought to be B
bolstered by providing a space frame between T-1 and
T-17. The case that T-1, T-16 and T-17 are part of one
block is directly contrary to the appellant’s stated position
in its representations to the flat buyers as well as in the
counter affidavit before the High Court. The suggestion
that T-1, T-16 and T-17 are part of one block is an after- C
thought and contrary to the record;
(v) After realizing that the building block argument would not
pass muster, another false case was sought to be set up
with the argument that T-1 and T-17 are dead end sides,
thereby obviating the need to comply with the minimum D
distance requirements. This argument is belied by the
comprehensive report submitted by NBCC. The sides of
T-1 and T-17 facing each other are not dead end sides since
both the sides have vents/egresses facing the other building;
(vi) By constructing T-16 and T-17 without complying with the E
Building Regulations, the fire safety norms have also been
violated;
(vii) The first revised plan of 29 December 2006 contained a
clear provision for a garden area adjacent to T-1. In the
second revised plan of 26 November 2009, the provision F
for garden area was obliterated to make way for the
construction of Apex and Ceyane (T- 16 and T – 17). The
common garden area in front of T-1 was eliminated by the
construction of T-16 and T-17. This is violative of the UP
Apartments Act 2010 since the consent of the flat owners G
was not sought before modifying the plan promised to the
flat owners; and
(viii) T-16 and T-17 are not part of a separate and distinct phase
(Phase–II) with separate amenities and infrastructure. The
supplementary lease deed stipulates that the they are part
H
1086 SUPREME COURT REPORTS [2021] 13 S.C.R.

A of the original project. Hence, the consent of the individual
flat owners of the original fifteen towers, individually or
through the RWA, was a necessary requirement under the
UP Apartments Act 2010 and UP 1975 Act before T-16
and T-17 could have been constructed, since they necessarily
reduced the undivided interest of the individual flat owners
B
in the common area by adding new flats and increasing the
number from 650 to 1500; and
(ix) The illegal construction of T-16 and T-17 has been achieved
through acts of collusion between the officers of NOIDA
and the appellant and its management.
C
157. For the reasons which we have indicated above, we have
come to the conclusion that:
(i) The order passed by the High Court for the demolition of
Apex and Ceyane (T-16 and T-17) does not warrant
D interference and the direction for demolition issued by the
High Court is affirmed;
(ii) The work of demolition shall be carried out within a period
of three months from the date of this judgment;
(iii) The work of demolition shall be carried out by the appellant
E at its own cost under the supervision of the officials of
NOIDA. In order to ensure that the work of demolition is
carried out in a safe manner without affecting the existing
pleadings, NOIDA shall consult its own experts and experts
from Central Building Research Institute Roorkee38;
F (iv) The work of demolition shall be carried out under the overall
supervision of CBRI. In the event that CBRI expresses its
inability to do so, another expert agency shall be nominated
by NOIDA;
(v) The cost of demolition and all incidental expenses including
G the fees payable to the experts shall be borne by the
appellant; (vi) The appellant shall within a period of two
months refund to all existing flat purchasers in Apex and
Ceyane (T-16 and T -17), other than those to whom refunds
have already been made, all the amounts invested for the
38
H “CBRI”
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1087
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

allotted flats together with interest at the rate of twelve per A
cent per annum payable with effect from the date of the
respective deposits until the date of refund in terms of Part
H of this judgment; and
(vii) The appellant shall pay to the RWA costs quantified at Rs 2
crore, to be paid in one month from the receipt of this B
judgment.
H Interlocutory Applications
158. Mr Vikas Singh, learned Senior Counsel, has during the course
of the hearing tendered an additional affidavit to indicate the following
position: C

(i) The contention of RWA that the appellant has collected the
onetime lease rent at the rate of Rs 190 per sq. foot from
all the flat owners in T-1 to T-15 and that though an amount
of Rs 16.75 crores was collected, only Rs 13.32 crores
was payable to NOIDA is incorrect; D
(ii) The appellant did not collect the lease rent payable to
NOIDA from all allotees of T-1 to T-15. An amount of Rs
7.54 crores was received from some allotees;
(iii) The lease rent paid to NOIDA was in the amount of Rs
E
14.49 crores;
(iv) A total of 659 units were booked in T-1 to T-14; and
(v) Of these units 245 flats were booked till 28 December 2006;
141 flats were booked between 29 December 2006 and 25
November 2009, 114 flats were booked between 26 F
November 2009 and 1 March 2012, while 159 units were
booked after 2 March 2012.
On this basis, it has been submitted that 518 units were booked
either before 28 December 2006 (before the first revised plan) or after
26 November 2009 (after the second revised plan). The figures which G
have been indicated by the appellant demonstrate that between the first
revised plan on 29 December 2006 and the second revised plan on 25
November 2009, 141 flat purchasers had booked flats. They did so on
the clear representation contained in the sanctioned plans.

H
1088 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 159. During the pendency of these proceedings, two interim orders
were passed by this Court on 6 September 2016 and 22 September
2017. By the order dated 6 September 2016, this Court directed the
appellant to pay a return of ten per cent to those flat purchasers who
continue to stay in the project. By the order dated 22 September 2017,
an exit option was granted to those who sought refunds to take the
B
amounts invested with interest at the rate of twelve per cent per annum.
160. The position as indicated to this Court by Mr Ravindra Kumar,
learned Counsel, in respect of flats in Apex and Ceyane (T-16 and 17) is
as follows:
C (i) Number of flats: 915;
(ii) Number of shops: 21
(iii) Number of bookings: 633;
(iv) Persons who have reinvested in other projects of the developer:
D 133;
(v) Purchasers to whom refund has been granted: 248; and
(vi) Remaining purchasers: 252.
161. The above position indicates that following the opt-out which
was provided in terms of the order of this Court, 248 purchasers have
E opted for refunds while 252 purchasers in T-16 and T-17 remain
committed to the project.
162. Mr Gaurav Agarwal, learned Amicus Curiae has rendered
comprehensive assistance to the Court. Apart from urging his submissions
in an objective and dispassionate manner, the Amicus Curiae has
F painstakingly complied the pleadings, documents and statutory provisions
to facilitate the convenience of arguing Counsel and the Court. We record
our appreciation for the assistance which has been rendered by the
Amicus Curiae. The Amicus Curiae has also prepared a note for the
purpose of segregating the applications which have been filed by home
G buyers into distinct categories, and suggesting reliefs to each category
based on the outcome of the proceedings. These categories are:
Category I
163. Buyers who have received ROI payments:

H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1089
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(i) By its orders dated 6 September 2016 and 11 January 2017, A
this Court directed that those home buyers who have chosen
to stay on with the project and do not desire refund should
be paid ROI at ten per cent per annum; and
(ii) Thirteen persons filed applications before this Court claiming
that ROI payments were not made by the appellant. The B
appellant has intimated the payments which are due till July
2021. Though, the home buyers claim higher amounts, the
Amicus Curiae has proceeded on the figures furnished by
the appellant which are tabulated as follows:
C

D

E

F

164. The submission of the Amicus Curiae is that if the buildings
were to stand, the home buyers may be paid the above ROI. On the G
other hand, if the buildings are to be demolished, the home buyers should
receive refund with interest and the amounts would be subsumed in the
interest to be paid. Since this Court has come to the conclusion that the
buildings are to be demolished, the general directions in regard to refund
together with interest will subsume the claims of the above home buyers. H
1090 SUPREME COURT REPORTS [2021] 13 S.C.R.

A Category 2
165. Homebuyers to whom principal has been paid but interest
payments have remained:
(i) By an order dated 30 July 2018, this Court directed that
homebuyers who had registered on the portal and were willing
B to take twelve per cent simple interest per annum from the
date of deposit till the date of payment towards full and final
payment would be refunded the principal sum together with
interest at the above rate on filing affidavits to that effect;
and
C (ii) The registry has refunded the principal sum to thirteen
homebuyers but since their affidavits were not received by
the Amicus Curiae within time, interest remained to be paid.
The details have been tabulated by the Amicus Curiae as
follows:
D

E

F

G

H
SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1091
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

166. The Amicus Curiae has submitted that irrespective of the A
fate of the pleadings, the appellant should be directed to refund the interest
as computed above since the above homebuyers have exited from the
project. We accept the submission and direct the appellant to refund
interest payments to the thirteen homebuyers as tabulated above within
two months.
B
Category 3
167. Home buyers under a ‘subvention scheme’:
(i) Under the subvention scheme, a home loan is taken in the
name of the homebuyer but EMIs are to be paid by appellant
till possession is granted. Certain homebuyers are governed C
by the subvention scheme. There is a default by the appellant
in paying the EMIs;
(ii) By an order dated 30 July 2018, this Court directed the
appellant to continue paying the EMIs. Sixteen homebuyers
have moved this Court for a direction for payment of the D
balance EMIs due;
(iii) The Amicus Curiae has tabulated the interest payable to the
homebuyers (as computed by them and by the appellant
separately):
E

F

G

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1092 SUPREME COURT REPORTS [2021] 13 S.C.R.

A

B

C

The Amicus Curiae submits that the amounts calculated above
be paid.
D 168. The Amicus Curiae submitted that if the buildings are ordered
to be demolished, the appellant may close the home loans and refund the
amounts contributed by the homebuyers with such interest as this Court
may determine. On the other hand, if the buildings stand, the appellant
may be directed to clear the outstanding EMIs and continue paying them
E until possession. Since the buildings have been ordered to be demolished
under the directions of this Court in the present judgment, the appellant
shall close the home loans and refund the amounts contributed by each
of the above home buyers with interest at the rate of twelve per cent per
annum within two months.
F Category 4
169. There are two IAs in which the homebuyers have a dispute
with the appellant relating to the amounts due to the homebuyers:
(i) In IA No 56187/2021, Mr DP Tripathi was allotted Flat No
1105 in Apex. A total amount of Rs 31,70,410 was paid for
G the flat. Out of this amount, Rs. 14,25,000 was funded by
loan. The appellant paid the loan pursuant to an order of
this Court. However, the applicant has paid the balance
amount of Rs 17,45,410 out of his own funds towards the
flat, and Rs 6,58,700 as loan repayments before it was
ultimately settled by the appellant. ROI payments for 27
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SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1093
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

months amounting to Rs 5,20,315 have been received from A
the appellant. Thus, the case of the applicant is that a sum
of Rs 18,83,795 remains invested by the applicant, which
may be ordered to be refunded. In contrast, the appellant
has stated that this dispute has been settled by the Debt
Recovery Tribunal and nothing is payable; and
B
(ii) In IA No 67028/2017, Mr Raj Kishore had purchased Flat
No 3507, in respect of which the amount has been refunded
along with interest. A cheque of Rs 67,319 bearing no
213233 for the last payment remained to be encashed due
to oversight. The Amicus Curiae has suggested that the
appellant may be directed to issue a fresh cheque pertaining C
to this payment.
170. With regards to IA No 56187/2021, since the underlying dispute
regarding payment is pending in this IA, it is de-linked and will be heard
separately. In IA No 67028/2017, the appellant is directed to provide a
fresh cheque for an amount of Rs 67,319 to the applicant within one D
month.
Category 5
171. Application of homebuyers which have been rendered
infructuous. The Amicus Curiae has tabulated applications which have E
been rendered infructuous, indicating the reasons for the same:

F

G

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1094 SUPREME COURT REPORTS [2021] 13 S.C.R.

A

B

C

D

E

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SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT 1095
WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

172. The above applications are disposed of as infructuous. A
173. The appeals shall stand disposed of in the above terms. The
contempt petitions are disposed of accordingly.
174. Pending application(s), if any, stand disposed of.
B
Ankit Gyan Appeals disposed of.

C

D

E

F

G

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