SUPERTECH LIMITED v. EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION & ORS.

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 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 individual rooms/flats at these levels.” (emphasis supplied)

61Copy pinpoint61. 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 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 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 through set-backs at the upper levels, subject to the condition that the

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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”

62Copy pinpoint62. 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.

63Copy pinpoint63. 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 H

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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.

64Copy pinpoint64. 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 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 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.

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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 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 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 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 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 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, 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 H

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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 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 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 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 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 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 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.

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WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

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 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 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, 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 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 H

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A the requirements of fire safety provisions. It does not violate any provision with regards to fire safety and air circulation.”

65Copy pinpoint65. 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.

66Copy pinpoint66. 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 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 in close proximity poses serious hurdles to fire-fighting machinery which has to be deployed by the civic body.

67Copy pinpoint67. 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 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

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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 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 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.

68Copy pinpoint68. Regulations 33.2.3 of the NBR 2006 refers to the distances 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 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 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

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69Copy pinpoint69. 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, 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.

70Copy pinpoint70. We shall now come to the NBR 2010. Regulation 24.2.1(6) has prescribed the requirement of maintaining varying distances 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 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 – 2005”.

71Copy pinpoint71. 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:

As is evident, the Hindi version of the NBR 2010, uses three H different terms “ ’’, and “ ’’. A purely textual interpretation,

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WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

as is suggested by Mr Ravindra Kumar, would lead us to ascribe three 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 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

72Copy pinpoint72. 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 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.

73Copy pinpoint73. 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 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

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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.

74Copy pinpoint74. 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.”

75Copy pinpoint75. 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

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WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

76Copy pinpoint76. 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

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77Copy pinpoint77. 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)

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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

78Copy pinpoint78. 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

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

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WELFARE ASSOCIATION [DR DHANANJAYA Y CHANDRACHUD, J.]

Proposed land coverage area = 10648.503 Sq. Mt. (19.425%) Revised FAR (Built + Revised) = 150464.664 Sq Mt.” D

79Copy pinpoint79. 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

80Copy pinpoint80. 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

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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 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 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 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 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.

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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 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 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 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 respondent no.5.”

82Copy pinpoint82. 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 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 subvert the minimum distance requirement.

83Copy pinpoint83. 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

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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.

84Copy pinpoint84. 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 &

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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)

85Copy pinpoint85. 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 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 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

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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 supplementary counter affidavit.” (emphasis supplied)

86Copy pinpoint86. 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 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 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.

87Copy pinpoint87. 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 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)

88Copy pinpoint88. The above averments would belie the submission sought to be 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

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under the byelaws and according to the learned senior advocate 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 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.”

89Copy pinpoint89. 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”

90Copy pinpoint90. 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

91Copy pinpoint91. 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

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92Copy pinpoint92. 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.

93Copy pinpoint93. 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 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 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

94Copy pinpoint94. 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

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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.

95Copy pinpoint95. 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”.

96Copy pinpoint96. 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

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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.

97Copy pinpoint97. 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

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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

98Copy pinpoint98. 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

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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.

99Copy pinpoint99. 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 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 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 building side not a dead end;

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(ii) The purpose of prescribing a minimum distance requirement 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 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 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 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

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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’.

101Copy pinpoint101. The appellant approached Design Forum International 24, an architectural and design firm, requesting their assistance in the ongoing 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 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”

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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

102Copy pinpoint102. 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

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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 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 reference to ‘habitable rooms’.

103Copy pinpoint103. 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 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.

104Copy pinpoint104. 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 distance between two adjacent buildings.

105Copy pinpoint105. 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 indication to classify between habitable and non-habitable rooms in the

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context of the phrase ‘dead end side’. The argument that the classification 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 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 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 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 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.

106Copy pinpoint106. 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

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107Copy pinpoint107. 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 entire adjacent blocks to have non-dead end sides facing each other for the 16 mtrs. distance rule to be applied uniformly.

108Copy pinpoint108. 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 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 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’.

109Copy pinpoint109. The reports of IIT Delhi and IIT Roorkee clearly elucidate 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

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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

110Copy pinpoint110. 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

111Copy pinpoint111. 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 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 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

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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

112Copy pinpoint112. 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 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 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.

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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.

113Copy pinpoint113. 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 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 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.

114Copy pinpoint114. A reading of para 8.2.3.2 indicates that this exception is only 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 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

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115Copy pinpoint115. 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 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.

116Copy pinpoint116. 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 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’.

117Copy pinpoint117. 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.

118Copy pinpoint118. These suggestions given by the committee were required to be complied with within six months. Since they were not complied with, H

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a show cause notice was issued on 30 May 2014 for not remedying the A deficiencies.

119Copy pinpoint119. 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.

120Copy pinpoint120. 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

121Copy pinpoint121. 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

122Copy pinpoint122. 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 H

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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 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 or otherwise.”

123Copy pinpoint123. 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 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, 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.”

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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

124Copy pinpoint124. 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 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 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

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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 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 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 resubmission of the property to the provisions of this Act.”

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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.

125Copy pinpoint125. 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

126Copy pinpoint126. 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 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 of the maintenance amount. The rule/regulation of U.P. Flat Ownership Act, 1975 shall be applicable on the lessee/sub- lessee.” (emphasis supplied)

127Copy pinpoint127. 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

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128Copy pinpoint128. 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.

129Copy pinpoint129. 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

130Copy pinpoint130. 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”

131Copy pinpoint131. Section 2 of the Act is in the following terms: H

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“2. Application.- The provisions of this Act shall apply to all 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 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

132Copy pinpoint132. 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

133Copy pinpoint133. 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, 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 centers and parking areas of common use; (iv) the premises for the lodging of janitors or persons employed for the management of the property;

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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, 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 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 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;”

134Copy pinpoint134. 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

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(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 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 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 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 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 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

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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 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, 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 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.

135Copy pinpoint135. 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

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