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2014 Supreme(All) 1658
ALLAHABAD HIGH COURT
BEFORE : V.K. SHUKLA AND SUNEET KUMAR, JJ.
EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION - .Petitioner
Versus
STATE OF U.P. AND OTHERS - Respondents
(Civil Misc. Writ Petition No. 65085 of 2012, decided on 11th April, 2014)
Counsel :
Amit Saxena and Kunal Ravi Singh for the Petitioner; C.S.C., Satish Mandhayan, Shivam Yadav and V.K. Singh for the Respondents.
Headnote:U.P. Apartments (Promotion of Construction, Ownership and Maintenance) Act, 2010—Sections 27, 14(6), 30 and 35—U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Rules, 2011—Rules 3 and 4—Building plans—Quashing of—Quashing of revised plan as per approval by respondent No. 2 for construction of new towers also sought—Petitioner a recognised Resident Welfare Association—Respondent allotted a part of plot for development of Group Housing Society—Petitioner aggrieved by sanction granted in violation of Building Regulations to raise the heights of Towers 16 + 17 without maintaining the distance 16 meters between their building block—Challenge against—Held, ‘person aggrieved’ means a person who has suffered a legal grievance—Since violation of Rule 4 of 2011 Rules, petitioner has a locus to file instant petition—Plea of alternative remedy cannot become the escape route for the developer for violations of Building Regulations—Distance between the two building blocks is only 9 meters, as against 16 metres as required by Building Regulations, 2010—Distance between building blocks as well as clear space of 7.5 mtrs for fire tenders is mandatory, which admittedly has been violated—Towers in question directed to be demolished—Further directions issued. [Paras 15 to 74]
Result; Petition Allowed.
Hon'ble Suneet Kumar, J.—The petitioner claims to be the recognized Resident Welfare Association (RWA) of Emerald Court Group Housing Society and by means of this writ petition the petitioner seeks 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 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 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’ 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 illegal construction made in the basement and setback area as per notice dated 19.6.2012 and 17.7.2012.
vi. Issue a writ or direction directing respondent No. 2 and 5 to provide car parking spaces (both above ground and in the basement) as per the provisions of the NBC 2005 to all the legal allottees/residents of Supertech Emerald Court Complex, plot 4, Section 93-A NOIDA.
The petitioner has pressed reliefs No. 1 and 3. The other reliefs being disputed question of fact was not pressed by the petitioner.
2. The respondent No. 2, New Okhla Industrial Development Authority (herein after referred to as NOIDA Authority) is an authority, constituted under Section 3 of the Uttar Pradesh Industrial Area Development Act, 1976, whereas respondent No. 5 Supertech Ltd. is a company registered under the Companies Act and is the developer of Group Housing Society of which the petitioner association are residents.
3. The facts briefly is, that the respondent company was allotted, a part of Plot No. 4 measuring 48,263.00 sq.m. situated in Sector 93-A, by the NOIDA Authority on 23.11.2004 for development of Emerald Court Group Housing Society.
4. The NOIDA Authority vide approval dated 20.6.2005 sanctioned the layout plan on the aforementioned plot.
5. The NOIDA Authority vide supplementary lease deed dated 21.6.2006 allotted an additional area of 6,556.51 Sq.m. of the same plot, increasing the total area of the plot to 54,819.51 Sq.m. The sanctioned map was accordingly revised and it was proposed to built a shopping centre Ground plus one floor (G + 1) and a building block Ground plus eleven floors (G + 11) on the additional leased area. The NOIDA Authority accorded sanction on 29.12.2006.
6. The developer company submitted a third revised map, wherein the NOIDA Authority sanctioned the map vide sanction dated 26.11.2009. The sanction was for Tower No. 16 (CEYANE) and Tower No. 17 (APEX) with Ground + 24 stories (floors). Towers 16 and 17 (APEX & CEYANE) was to be built in place of (G + 11) and shopping center (G+1) as approved earlier. The height of the block was raised to 66 meters.
7. The developer company purchased additional floor area ratio (FAR) and got the map revised vide sanction dated 2.3.2012. The sanction permitted the raising of heights of Towers 16 and 17 (APEX & CEYANE) from (G + 24) floors to (G + 40) floors i.e. raising the height to 121 meters.
8. The petitioner is aggrieved by the sanction granted by NOIDA Authority, in violation of Building Regulations, to raise the heights of Towers 16 + 17 (APEX & CEYANE), without maintaining the mandatory distance of 16 meters between their building block Aster-2 (G + 11) and Towers 16 and 17 (APEX & CEYANE), as required by New Okhla Industrial Development Area Bui
