The Curious case of Supertech Towers Demolition

news is abuzz which the reruns of the 9 seconds in which the towering towers of Supertech in the group housing society in the name of Emerald Court were reduced to rubble. A lot of people have expressed an opinion that instead of bring down two completed world-of the art buildings, the premises could have been used as a school or a hospital. Although the opinion is well-intentioned, yet a building constructed in fragrant violation of all rules and regulations poses a significant environment and safety risk cannot be allowed to stand.

The process of construction from commencement to completion is regulated within the framework of law. The regulatory framework encompasses all stages of construction from the point of acquisition/allocation of land, sanctioning of the building plan, regulating the structural integrity of the construction (like height, number of storeys etc.), obtaining clearances from various departments (fire, environment) to the issuance of the occupation and completion certificates. These regulations are put in place to ensure planned urban development.

A brief background of the matter Supertech Ltd. vs Emeral Court Owner Resident Welfare Association & Ors., as was recently adjudicated by the Supreme Court is as follows-:

In November, 2004 Supertech was allotted a plot of land admeasuring 48,263 sq. mtrs. (11.92 acres) in Sector 93A Noida for development of the group housing project in the name of Emerald Court. The building plan for the same which consisted of fourteen towers each with ground and nine floors was sanctioned under New Okhla Industrial Development Area Building Regulations and Directions 1986 (“NBR 1986”).

When the construction was in full swing, in June 2006 by virtue of a supplementary lease deed, an additional area of 6,556.51 sq.mtrs. was allotted to Supertech for the same project which brought the total leased area to Supertech to 54,819.51 sq.mtrs (13.54 acres).

In December 2006, the New Okhla Industrial Development Area Building Regulations and Directions 2006 (“NBR 2006”) were notified which increased the Floor-Area Ratio (FAR)[1] from 1.5 to 2 for new allottees after 2006.

First revised plan: The first revised plan was sanctioned under the NBR 2006 by way which two additional floors were envisaged in the original towers bringing the total floors to G+11. Additional buildings Tower 15 and Tower 16 each with G+11 floors ?and a shopping complex G+1 was sanctioned. The first revised plan contemplated a green area in front of Tower-1, which was also indicated in the brochures.

In 2009, a notification was issued under NBR 2006 enhancing the FAR from 2 to 2.75. Furthermore, it provided for purchasable FAR according to which old allottees like Supertech could purchase FAR to the maximum extent of thirty-three per cent of their base existing FAR of 1.5. Relying on this notification, in November 2009, Supertech purchased thirty-three per cent of its existing base 1.5 FAR at the cost of eight crores, increasing its available FAR to 1.995.

Second revised plan: As per the second revised plan of November 2009, T-16 and T-17 came to be envisaged with twenty-four floors and a height of 73 cm.

A further notification by the State of Uttar Pradesh enabled old allottees in February 2010 to purchase FAR up to 2.75 and as a consequence the limit of maximum purchasable FAR of thirty-three percent of the existing FAR was removed.?

Third revised plan-: The number of floors of T-16 and T-17 were further increased to forty floors and thirty-nine floors respectively and the height of the towers was increased from 73 mtrs. to 121 mtrs.

Legal Contours of the Demolotion- the Whats and Whys-:

A.????Violation of the Distance requirement-:

1.????The importance of prescribing minimum distance between two towers in a housing project is that residents are entitled to basic civic amenities such as access to well-ventilated areas, light, air, which are essential to maintaining a quality of life. It also has an impact on safety norms, in the event of fire there is danger of the flames spreading to adjoining buildings. Buildings in close proximity also pose a hurdle in deployment of fire-fighting equipment.

2.????The second revision plan was sanctioned under NBR 2006, which prescribed that the minimum distance between two buildings should be half the height of the taller building. Accordingly, the distance between T-1 and T-17, should have been half the height of T-17 which comes to 36.5 mtrs., whereas it was only 9 mtrs. as per record, in clear violation of NBR 2006.

3.????Next, the third revised plan which was sanctioned under NBR 2010, which increased the height of the building to 121 mtrs., stipulated a minimum distance of 6 mtrs for a building as high as 18 mtrs.?to be increased by 1 mtr for every additional 3 mtrs. to the height of the building, subject to a maximum ceiling of 16 mtrs as prescribed by National Building Code, 2005. As the distance was 9 mtrs and not 16 mtrs, it was also in violation of NBR 2010.

B.????Consent of the RWA (Resident Welfare Association) -:

1.????The UP Act 1975 and the UP Apartment Act, 2010 ( as applicable to the third revised plan sanctioned in the year 2012) require the previous written consent of the intending purchasers in case of any alteration in the specifications and plans as approved.

2.????The third revised plan which increased the height of the building from twenty-four floors to forty/thirty-nine floors, increased the number of flat owners from 650 to 1500.

3.????Therefore, it is abundantly clear that the construction of T-16 and T-17 in accordance with the revision plans has reduced the undivided interest in the common area and facilities of the individual flat owners. This is in violation to the aforementioned statutes as it was done without the previous consent of the the RWA.

C.????Garden area adjacent to T-1

1.????The flats in the project were sold on the representation that there was a garden adjacent to the T-1. This was even shown in the first revised plan but was subsequently encroached to T-16 and T-17 in the second revised plan approved in 2009.

2.????This is a violation of the UP Apartment Act,1975 as it constituted an alteration in plans as approved done without the written consent of the intending purchasers.

D.????Collusion between the builders and planning authorities

1.????The violation of the rules and regulations have brought into light several instances of collusion between develop and the officers of Noida. For instance, refusal to disclose the sanctioned plans to RWA despite a clear stipulation requiring the plan to be displayed at the construction site of Supertech, second revision plan was sanctioned in clear breach of NBR 2006 etc., to name a few.

Conclusion

An unregulated and an unauthorized construction materially affects the right of enjoyment of property to of the persons residing in the residential area. It is essential to ensure that innocent flat purchasers are not allowed to suffer the impact of the unholy nexus between the builders and planners and it was first and foremost in their interest that the building had to be demolished.

Furthermore, effect of the law should be to create deterrence, if the building was not demolished and allowed to stand it would give a fillip to the commission of tainted acts whereas the aim should be the opposite.

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[1] Floor area ratio is the ratio of a building's total floor area to the size of the piece of land upon which it is built. It is often used as one of the regulations in city planning along with the building-to-land ratio. A higher ratio likely would indicate a dense or urban construction