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Supertech Sealing case Noida

The present petition does bring out the haunting reality prevailing in the unchecked real estate sector. In the present case the Resident Welfare Association (RWA) of Emerald Court Group Housing Society moved a writ petition against the Noida Authority (authority) and the developer/ builder alleging violation of the provisions of U.P. Apartments Act of 2010 and also that the authority in connivance with the developer has sanctioned the revised plan of the developer, in contravention to the statute and building bye-laws.

The foremost question that arose before the Court was the locus standi of Petitioners challenging the act of Noida authority vis-à-vis Developer. It was observed that soon after the handing over of flats to the apartment owners the RWA was formed and was also duly registered with the Registrar Societies. The Developer had recognized RWA of the Apartment owners since inception and was continuously corresponding with the Petitioner’s society as RWA. The Developer had also never objected to any of the written communications made on behalf of the RWA and concerned authorities, subsequent to which notices were issued to developer as well. The RWA was accordingly held as an “aggrieved person” and its rights affected by the NOIDA Authority in sanctioning the map, in violation of statutory Building Regulations, in collusion with the Developer, thus causing serious prejudice and harm to the Petitioner society i.e. RWA of apartment owners and hence the challenge against locus standi was disallowed.
It was further held in reference to the issue of availability of alternative remedy i.e. taking up the grievance before the authorities concerned instead of filing the present writ, it was held that the developer and NOIDA Authority were hand in glove, shielding each other against blatant violation of Building Regulations thus adversely affecting the rights of the apartment owners. It is for this reason the NOIDA Authority did not proceed beyond notices, as they could not hold themselves responsible for sanctioning the map in violation of their own Building Regulations, of which, they are framers as well as executors.

It was reiterated that the U.P. Apartment Act, 2010 and the U.P. Apartment Rules, 2011 provides for a complete code for regulating the rights, duties and liabilities and for resolving the issues and disputes between the promoters and the apartment owners. The Act has overriding effect over all other laws on the subject notwithstanding anything inconsistent therewith contained in any other law for the time being enforced. The Apartment Act, 2010 is confined to disputes between Apartment Owners and developer pertaining to violation of common area or facilities in contravention of sanctioned map. NOIDA Authority has colluded with respondent-company in sanctioning the plan hence there was no occasion of the NOIDA Authority to respond to the specific grievance of the petitioners.
Therefore, as held, the plea of alternative remedy cannot become the dumping ground of legitimate legal grievance of the Apartment Owners nor can it be the escape route for the developer for violations of Building Regulations in collusion with the NOIDA Authority. The question is decided accordingly.

In reference to violation of building code, it was held that the developer not only misled the Petitioner (RWA) but also tried to mislead the Court by pleading false facts. Declining the plea raised by developer, it was held that as per the records, the developer at no point of time treated the project in question in two phases. The maps submitted and sanctioned was for a single project on the entire site. It was held as evident on admitted facts that the developer in collusion with the NOIDA Authority managed to obtain sanction of layout map in violation of mandatory spaces between building blocks and clear space, but for these violation the additional FAR purchased by the developer in 2011, could not have been executed on the ground/site. The sanction was held to be grossly violating the Building Regulations.

The High Court while concluding the present case made following observations:
• There is a rampant rise in illegal and unauthorized constructions in connivance with the officials of development authority.
• The above has to be dealt with by firm hand otherwise builders/colonizers would be encouraged to raise constructions under the garb of sanction in gross violation of the Building Regulations and the Act.
• Unlawful constructions in violation of building regulation is against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings/group housing.
• Illegal and unauthorized constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons.
The Court taking the firm and strict view in the present matter directed for demolition of the towers constructed by developer and also for the refund of consideration received from private parties along with interest compounded annually within four months from the date relevant, besides other directions.

[Emerald Court Owner Resident Welfare Association vs. State Of U.P. Thru Secy. And Others]
(Allahabad HC, 11.04.2014)