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A.F.R.
Reserved
Court No. - 45
Case :- WRIT - C No. - 65085 of 2012
Petitioer :- !"era#d Court $%er Residet We#fare
Asso&iatio
Res'odet :- (tate $f ).P. T*ru (e&+. Ad $t*ers
Couse# for Petitioer :- A"it (a,ea-.ua# Ravi
(i/*
Couse# for Res'odet :- C.(.C.-(atis*
0ad*a+a-(*iva" 1adav-2...(i/*
3o45#e 2... (*u6#a-7.
3o45#e (ueet .u"ar-7.
89e#ivered 5+ (ueet .u"ar-7.:
The petitioner claims to be the recognized Resident
Welfare Association (RWA) of Emerald Court Group
Housing Societ and b means of this !rit petition the
petitioner see"s inter alia the follo!ing reliefs#$
i. %ssue a !rit& order or direction 'uashing the
re(ised plan appro(ed b respondent ) for
construction of ne! to!ers namel To!er *A+E,* and
*CE-A.E* in plot no/ 0& Sector 12$A& and issue
further directions for demolishing of aforesaid
to!ers& the appro(al and construction being in
complete (iolation of pro(isions of 3/+/ Apartments
Act of )454/
ii. %ssue a !rit& order or direction directing the
Respondent ) not to sanction amendments to an
further building plans in respect of the Group
Housing Societ being de(eloped b respondent 6
!ithout obtaining consent of all the residents/
iii. %ssue a !rit& order or direction 'uashing the
permission granted to respondent 6 to lin" To!er
T$5 and T *A+E,* 7 *CE-A.CE* through space frame/
2
iv. %ssue a !rit& order or direction directing
respondents ) and 2 to ensure that fire safet
e'uipment and infrastructure is installed at the
e8penses of respondent 6 !ithin a specified period/
v. %ssue a !rit& order or direction directing
respondent ) to demolish illegal construction made
in the basement and setbac" area as per notice
dated 51/49/)45) and 5:/4:/)45)/
vi. %ssue a !rit or direction directing respondent no/
) and 6 to pro(ide car par"ing spaces (both abo(e
ground and in the basement) as per the pro(isions
of the .;C )446 to all the legal allottees7residents of
Supertech Emerald Court Comple8& plot 0& Section
12$A .<%=A/
The petitioner has pressed reliefs no/ 5 and 2/ The
other reliefs being disputed 'uestion of fact !as not
pressed b the petitioner/
The respondent no/ )& .e! <"hla %ndustrial
=e(elopment Authorit (herein after referred to as .<%=A
Authorit) is an authorit& constituted under Section 2 of
the 3ttar +radesh %ndustrial Area =e(elopment Act& 51:9&
!hereas respondent no/ 6 Supertech >td/ is a compan
registered under the Companies Act and is the de(eloper
of Group Housing Societ of !hich the petitioner
association are residents/
The facts briefl is& that the respondent compan
!as allotted& a part of +lot .o/ 0 measuring 0?&)92/44
s'/m/ situated in Sector 12$A& b the .<%=A Authorit on
)2/55/)440 for de(elopment of Emerald Court Group
Housing Societ/
The .<%=A Authorit (ide appro(al dated )4/9/)446
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sanctioned the laout plan on the aforementioned plot/
The .<%=A Authorit (ide supplementar lease deed
dated )5/9/)449 allotted an additional area of 9&669/65
S'/m/ of the same plot& increasing the total area of the
plot to 60&?51/65 S'/m/ The sanctioned map !as
accordingl re(ised and it !as proposed to built a
shopping centre Ground plus one floor (G @ 5) and a
building bloc" Ground plus ele(en floors (G @ 55) on the
additional leased area/ The .<%=A Authorit accorded
sanction on )1/5)/)449/
The de(eloper compan submitted a third re(ised
map& !herein the .<%=A Authorit sanctioned the map
(ide sanction dated )9/55/)441/ The sanction !as for
To!er .o/ 59 (CE-A.E) and To!er .o/ 5: (A+E,) !ith
Ground @ )0 stories (floors)/ To!ers 59 and 5: (A+E, A
CE-A.E) !as to be built in place of (G @ 55) and shopping
center (G@5) as appro(ed earlier/ The height of the bloc"
!as raised to 99 meters/
The de(eloper compan purchased additional floor
area ratio (BAR) and got the map re(ised (ide sanction
dated 4)/42/)45)/ The sanction permitted the raising of
heights of To!ers 59 and 5: (A+E, A CE-A.E) from (G @
)0) floors to (G @ 04) floors i/e/ raising the height to 5)5
meters/
The petitioner is aggrie(ed b the sanction granted
b .<%=A Authorit& in (iolation of ;uilding Regulations&
to raise the heights of To!ers 59 @ 5: (A+E, A CE-A.E)&
!ithout maintaining the mandator distance of 59
meters bet!een their building bloc" Aster$) (G @ 55) and
To!ers 59 and 5: (A+E, A CE-A.E)& as re'uired b .e!
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<"hla %ndustrial =e(elopment Area ;uilding Regulations
and =irections& )454 (herein after referred to as ;uilding
Regulations& )454)& ma"ing their bloc" unsafe& apart from
bloc"ing light and air/
According to the .<%=A Authorit& the map !as
initiall sanctioned on )4/9/)446 as per .e! <"hla
%ndustrial =e(elopment Area ;uilding Regulations and
=irections& 51?9 (herein after referred to as ;uilding
Regulations 51?9)/ The second sanction and third
sanction !as granted on )1/5)/)449 and )9/55/)441
respecti(el& as per .e! <"hla %ndustrial =e(elopment
Area ;uilding Regulations and =irections& )449 (herein
after referred to as ;uilding Regulations& )449)/ The
fourth and the last sanction !as granted to the
respondent compan on )/2/)45) under building
regulations of )454 read !ith Apartment Act& )454/
To!ers 59 A 5: (A+E, A CE-A.E) !as sanctioned in
)441 under ;uilding Regulations )449& fourth and final
sanction& in )45)& onl increases the heights of to!ers 59
and 5: (A+E, A CE-A.E) from )0 floors to 04 Bloors&
therefore& it is not correct to sa that distance bet!een
the t!o building bloc"s ha(e been (iolated/ 3nder
;uilding Regulations )449 there !as no pro(ision !ith
regard to the minimum distance bet!een t!o building
bloc"s/ The .ational ;uilding Code of )446 !as not
incorporated b ;uilding Regulations )449& therefore&
there is no mandator re'uirement under the ;uilding
Regulation of )449 to follo! the .ational ;uilding Code of
)446/ The re'uirement of distance bet!een t!o building
bloc"s !as mandated b the ;uilding Regulations of )454
and e8cept for distance& the sanction dated )/2/)45) is
5
strictl in accordance to the ;uilding Regulations of )454/
The respondent de(eloper compan& on the other
hand& has 'uestioned the locus of the petitioner b
contending that the petitioner is not recognized b the
respondent de(eloper compan under the 3ttar +radesh
Apartment (permission of construction& o!nership and
maintenance) Act& )454 (herein after referred to as the
Apartment Act& )454)/ The model be$la!s has not been
adopted b the petitioners& as such& the are not entitled
to become the member of Resident Welfare Association
(RWA) of Emerald Court +hase %/ Burther the +resident of
the said societ is not the o!ner of an apartment in the
societ& therefore& he cannot become the member of the
petitioners* societ& as per the pro(isions of the
Apartment Act& )454/ The impleadment of one of the
o!ners subse'uentl is an inherent defect/ Burther the
petitioner has an alternati(e remed to first approach the
competent authorit under the Apartment Act& )454 i/e/
the Chief E8ecuti(e <fficer of .<%=A and the matter
should be decided b !a of mediation and conciliation
process and in case an part is aggrie(ed then it should
approach the State Go(ernment under Section ): of the
Apartment Act )454/ The present !rit petition& bpassing
the statutor pro(ision& as such is not maintainable/
%t is further stated that the !rit petition is barred b
dela and laches as the A+E, A CE-A.E (G @ )0) floors
!as appro(ed on )9/55/)441& !hereas the !rit petition&
has been filed in =ecember& )45)& that is& after 2 ears/
The ;uilding is in ad(ance stage of construction and more
than )5 stories ha(e been constructed in the A+E, (To!er
59) and 5: stories in CE-A.E (To!er 5:)& about 944 flats
6
ha(e alread been sold to the prospecti(e buers thus
in(aluable rights ha(e crstallized in fa(our of third part/
Brom the ri(al submissions the follo!ing 'uestions
need to be ans!ered#$
i.: As to !hether the !rit petition is
maintainable at the behest of petitioner societC
ii.: As to !hether the petitioner can be relegated
to alternati(e remed under Section ): of the
Apartment Act )454C
iii.: As to !hether the .<%=A Authorit has
(iolated the ;uilding Regulations and Apartment
<!ners Act )454 in granting sanction of To!ers
59 A 5: (A+E, A CE-A.E)C
We ha(e heard Sri Dunal Ra(i Singh& learned counsel
for the petitioners& Sri Asho" Eehta& Sr/ Ad(ocate assisted
b Sri Shi(am -ada( on behalf of .<%=A Authorit and Sri
Shashi .andan& Sr/ Ad(ocate assisted b Sri Shatish
Eadhan& on behalf of respondent =e(eloper Compan
and learned Standing Counsel on behalf of State and
perused the record and !ritten submissions of the
respecti(e parties/ The petition is being decided at the
admission stage b the consent of parties and as per
rules of the Court/
Question No. 1:- Locus
The meaning of the e8pression *person aggrie(ed*
!ill ha(e to be ascertained !ith reference to the purpose
and the pro(isions of the statute/ <ne of the meaning is&
that person !ill be held to be aggrie(ed b a decision if
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that decision is materiall ad(erse to him/ The restricted
meaning of the e8pression re'uires denial or depri(ation
of legal rights/ A more legal approach is re'uired in the
bac"ground of statues !hich do not deal !ith the
propert rights but deal !ith professional misconduct and
moralit/ (Bar Council of Maharastra vs. M.V.
Dabholkar, (1!"# $ %CC !&$-11, 'aras $! ( $)#.
;roadl& spea"ing a part or a person is aggrie(ed
b a decision !hen& it onl operates directl and
inFuriousl upon his personal& pecuniar and proprietar
rights (Corpus Guris Seundem/ Edn/ 5& Hol/%H/& p/ 269& as
referred in *alva %u+hakar ,e++- vs. Man+ala
%u+hakar ,e++-, ./, $&&" .0 1", 1 'ara 1&#
The e8pression *person aggrie(ed* means a person
!ho has suffered a legal grie(ance i/e/ a person against
!hom a decision has been pronounced !hich has la!full
depri(ed him of something or !rongfull refused him
something/
The Apartment Act& )454 !as notified b the State
Go(ernment on 51/2/)454/ Chapter H% deals !ith
Association of Apartment o!ners and be$la!s for the
registration of the affairs of such Association/ The
administration of the affairs in relation to the apartments
and management of common areas and facilit has been
conferred upon the Association under Section 50/ %t is the
Foint responsibilit of the promoter and the apartment
o!ners to form an association/ The promoter shall get the
association registered/ The Go(ernment ma& b
notification& frame model be$la!s in accordance !ith
!hich the propert referred to in Sub$section (5) shall be
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administered b the Association of Apartment <!ners and
the Association shall in its first meeting ma"e its be$la!s
in accordance !ith the model be$la!s so framed/ The
model be$la!s under Sub$section (9) of Section 50 !as
notified on 59/55/)455/
As per the a(erments of the respondent7compan&
the flats !ere handed o(er to the apartment o!ners b
September )441/ The o!ners immediatel formed
Resident Welfare Association (RWA) and got it registered
!ith the Registrar Societies& in the (er same ear/
Adopting the model be$la!s& did not arise& as it !as not
enforced until )455/ After notification of Eodel be$la!s&
the =eput Registrar Birm& Societies and Chits& Eeerut
(ide letter dated 50/5)/)45) informed& that pending
instructions form the Registrar Birm Societies and Chits
3ttar +radesh& no decision in the matter can be ta"en in
respect of Eodel be$la!s and its registration/ The
Registrar Birm& Societies and Chits 3ttar +radesh (ide
circular dated 6/)/)452 addressed to all =eput
Registrars7=istrict Registrars issued instructions for
registration under Apartment Act& )454 and directed that
be$la!s of e8isting RAW be accordingl amended/ The
petitioner7societ (ide resolution dated )4/54/)452
adopted the Eodel be$la!s and conducted elections and
thereafter informed the =eput Registrar/
The respondent7compan has recognized the
petitioners societ as RWA of the Apartment o!ners since
inception and has continuousl corresponded !ith the
petitioner societ as RWA/ >etter dated 1/54/)45)&
):/1/)45)& 0/1/)45) and Ganuar& )452 addressed to the
petitioner societ regarding redressal of their grie(ance is
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on record/ The petitioner societ has approached all the
authorities& including C/E/</ .<%=A Authorit& Bire Safet
<fficer& +olice <fficial& !ho in turn ha(e issued notices
see"ing e8planation from the respondent7compan/ The
respondent7compan has ne(er obFected that petitioners&
societ is not competent to raise collecti(el the issues
pertaining to apartment o!ners of Emerald Court& rather
the ha(e been engaged b the Respondent compan in
resol(ing the problem faced b the o!ners/
.<%=A Authorit in granting sanction to respondent
compan& in (iolation of ;uilding Regulation*s& affects the
rights of each and e(er apartment o!ner and in order to
a(oid multiple litigations& the petitioners societ has locus
to espouse the cause of the apartment o!ners in
representati(e capacit/ This aspect has to be assessed
in the bac"drop of the respondent compan*s o!n case&
that b April& )44? and finall b September& )441
possession !as handed o(er to the residents/ After the
Apartment Act )454 !as enforced& it is onl thereafter&
the final sanction !as ta"en b the respondent$compan
from .<%=A Authorit in )45)/
;oth the .<%=A Authorit& as !ell as& the respondent
compan had not ta"en the pre(ious consent7obFections
of the petitioners* societ& regarding the
amendments7re(ision of the sanctioned plan& as re'uired
under the Apartment Act/ Chapter H of the Apartment Act
)454 pro(ides& =eclaration of ;uilding and =eed of
Apartment& !hich re'uires declaration to be submitted b
the promoter& in the office of the Competent Authorit& in
respect of building constructed& in such form as ma be
prescribed/ %n e8ercise of po!ers conferred under Section
10
24 of the Apartment Act& )454& the 3ttar +radesh
Apartment (+romotion of Construction& <!nership and
Eaintenance) Rules& )455 (herein after referred to as
Apartment Rules& )455) !as framed/ Rule 2 of the
Apartment Rules& )455 prescribes the form of declaration
under sub$section (5) of section 5)/ The declaration has
to be submitted !ithin 5) months from the date of
appro(al of the plans and in case !here the building has
been constructed or is under construction& prior to the
commencement of the rules& the declaration shall be
submitted !ithin 14 das from the date of such
commencement/ Rule 0 pro(ides for the procedure for
amendment of the declaration submitted under Rule 2/
Rules 0& (5) (b)(c)& (2)& (0) and (6) are reproduced#$
4. Amendment of Declaration (sub section-2 of section
12).--
(5) The declaration submitted b a promoter
under rule 2 ma be amended at an time& b the
promoter& %f&$
(a) the declaration suffers from an clerical or
arithmetical mista"e or error arising therein from
an accidental slip or omissionI or
(b) the amendment is necessitated b reason of
an re(ision in the sanctioned plan of the buildingI
or
(c) the proposed amendment is Fust and
reasonableI
pro(ided that the amendment made b the
promoter shall not (iolate the building be$
la!s& sanctioned building plan or the
contractual obligation of the promoter/
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()) ///////////////////////////////
(2) The Competent Authorit& on receipt of the
application under sub$rule ()) shall issue a !ritten
notice to the association of the apartment o!ners
of the building and shall also cause the publication
of a public notice in t!o dail ne!spapers
circulating in that localit/
(0) <n receipt of the obFections& if an& recei(ed
!ithin 24 das from the date of publication of
notice under sub$rules (2) the Competent
Authorit shall& after gi(ing an opportunit of
being heard to the obFector& association of
apartment o!ners and promoter& pass such order
thereon as it deems fit as e8peditiousl as
possible/
(6) A true cop of the order passed under sub$
rule (0) shall be sent b the Competent Authorit
to the promoter& association of the apartment
o!ners or to the obFector as the case ma be/
The plain reading of the rule ma"es it clear that the
amendment necessitated& b reason of an re(ision& in
the sanctioned plan of the building shall not (iolate the
building be$la!s& plan and contractual obligations of the
promoter/ Sub Rule (2) re'uires the competent authorit
to issue !ritten notice to Resident Welfare Association of
the building and after opportunit of being heard& the
authorit is re'uired to pass orders and shall also cause
publication of public notice in t!o dail ne!spapers
circulating in the localit/ %t is not the case of the
contesting respondents that the procedure prescribed !as
follo!ed& and precise case of the petitioner is& that the
are aggrie(ed& as no obFections7consent !as sought b
the respondents as per Apartment Act )454 read !ith
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Apartment Rules )455/ The Association is an Jaggrie(ed
personK as its rights has been affected b the .<%=A
Authorit in sanctioning the map& in (iolation of statutor
;uilding Regulations& in collusion !ith the
respondent7compan/ The maps& specifications as
re'uired under rule 0 of the Apartment Rules& )455 !as
ne(er disclosed to the petitioner societ and admittedl
maFor alterations !ere made b lin"ing petitioners*
building bloc" !ith T$59 and T$5: (Ape8 A Ceane)& b
space frame ma"ing the petitioners bloc" unsafe/ .o
obFection7consent& as re'uired under pro(iso to sub$
section (0) read !ith Section 5) and rule 2 and 0 of the
Apartment Rules& )455 !as ta"en b the respondent$
compan or .oida Authorit from the petitioners/ %n the
opinion of the Court the petitioner has a right to maintain
the !rit petition against the .<%=A Authorit and the
respondent$compan& as it is the .<%=A Authorit that
has (iolated the rule 0 of the Apartment Rules )455 thus
causing serious preFudice and harm to the petitioner
societ of apartment o!ners/ The 'uestion is decided
accordingl/
Question No. $:- .lternative ,e2e+-
%t has been contended b the respondent7compan
that the petitioner societ has an efficacious alternati(e
remed& either approaching the Chief E8ecuti(e <fficer&
.<%=A Authorit& under the Apartment Act& )454 or b
approaching the State Go(ernment under Section ): of
3/+/ %ndustrial Area =e(elopment Act& 51:9/
The petitioner societ did approach the C/E/</ .<%=A
Authorit for redressal of their grie(ance& ho!e(er& the
13
.<%=A Authorit did not proceed after issuing notices
dated 51/9/)45)& 5:/:/)45) and )?/?/)45) to respondent$
compan/ The reason is !rit large& as the
respondent7compan and .<%=A Authorit are hand in
glo(e& shielding each other against blatant (iolation of
;uilding Regulations/ The sanctioned map is the anchor
sheet of defence of both respondents& that is& the
constructions of To!ers T$59 and T$5: (Ape8 A Ceane) is
being raised strictl as per sanctioned map/ The case at
hand is not (iolation of sanctioned map b the
respondent$compan but it is a case of (iolation of
;uilding Regulations b .<%=A Authorit& in collusion !ith
the respondent$compan& in sanctioning the map& that
has ad(ersel affected the rights of the apartment
o!ners/ %t is for this reason the .<%=A Authorit did not
proceed beond notices& as the could not hold
themsel(es responsible for sanctioning the map in
(iolation of their o!n ;uilding Regulations& of !hich& the
are framers as !ell as e8ecutors/
The plea of the respondent$compan that the
petitioners should first approach the CE< of .<%=A and
get the matter settled through mediation and conciliation
and thereafter& if aggrie(ed& the should approach the
State Go(ernment& cannot be accepted& as admittedl the
space7distance bet!een building bloc"s is not as per
;uilding Regulations )454/ The respondent$compan has
relied upon a =i(ision ;ench Fudgment of this Court in
M3s Desi4narch /nfrastructure 0vt. Lt+. ( .nr.
vs. Vice Chair2an, 5ha6iaba+ Develo'2ent
.uthorit- ( 7rs. ($&18# .D9 "1/ +aragraph no/ 06
and 96(5) of the aforesaid Fudgment is follo!s#
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J06/ Shri +/D/ Gain& Sr/ Ad(ocateI Shri .a(in
Sinha& Sr/ Ad(ocate and Shri Dunal Ra(i Singh
submits that on the enforcement of the 3/+/
Apartment Act& )454 on recei(ing the assent of
the Go(ernor on 5?/2/)454 and its publication in
the 3/+/ Gazette on 51/2/)454 pro(isions of the
Act came into force and could not ha(e a!aited
the notification of the Rules on 59/55/)455 and
the Eodel ;e$>a!s b notification of the same
date on 59/55/)455/ The Act is complete code in
itself/ The definition of competent authorit&
form of declaration& the amendment of
declaration& grant of permission for prosecution
and underta"ing to be filed b the person
ac'uiring apartment as !ell as model be$la!s
!ould not ha(e arrested the application of the
pro(isions of the Act/ The submit that as soon
as the building containing four or more
apartments or t!o or more building in an area
designated as bloc" each containing t!o ore
more apartments !ith total of four or more
apartments as defined in Section 2 (g) came into
e8istence and is occupied b the apartment
o!ners/ The pro(isions of the Act become
applicable to the building/ The declaration of
building and the deed of apartment under
Chapter H does not depend upon the completion
certificate to be gi(en b the local authorit and
that as soon as such number of apartments
ha(e been handed o(er to the o!ners& !hich is
necessar to form an association for 22L of the
apartments& !hiche(er is more b !a of sale&
transfer or possession pro(ided the building has
been completed along !ith all infrastructure
ser(ices& the pro(isions of Chapter$%% pro(iding
for duties and liabilities of +romoters and
Chapter$%%% pro(iding for rights and obligations of
15
apartment o!ners become operati(e/ The
declaration has to be submitted under Section
5) b the promoter in respect of a building as
defined in sub$section (2) (g) after the
commencement of the Act/ Section 52 pro(iding
for registration of deed of apartment after the
commencement of the Act is mandator to be
made under the pro(isions of the Registration
Act& 514?& !hich also pro(ides for promoter or
apartment o!ner to enclose true cop of the
declaration made under Section 5) to such deed
of transfer/ The formation of a association is
mandator under sub$section ()) of Section 50
and is the Foint responsibilit of the promoter
and the apartment o!ners !ith the obligation
upon the promoter to get the association
registered/
65. To sum up the conclusions dra!n b us are
as follo!s#$
(5) The 3/+/ Apartment Act& )454 and the 3/+/
Apartment Rules& )455 pro(ides for a complete
code for regulating the rights& duties and
liabilities and for resol(ing the issues and
disputes bet!een the promoters and the
apartment o!ners/ The Act has o(erriding effect
under Section 25 (5) o(er all other la!s on the
subFect not!ithstanding anthing inconsistent
there!ith contained in an other la! for the
time being enforced/K
The Fudgment does not help the respondent$compan/
The Apartment Act& )454 operates in a restricti(e field to
pro(ide Jownership of an individual apartment in a
building of an undivided interest in the common areas
and facilities appurtenant to such apartment and to make
16
such apartment and interest heritable and transferable
and for matters connected therewith or incidental
thereto/K
The Apartment Act& )454 is confined to disputes
bet!een Apartment <!ners and de(eloper pertaining to
(iolation of common area or facilities in contra(ention of
sanctioned map/ Section )6 pro(ides for offences Sub 5(b)
reproduced belo!#$
25. $ffe&es/ $$ (5) %f an promoter&
(a) M////////////////
(b) illegall ma"es construction in contra(ention
of the plan appro(ed b the prescribed
sanctioning authorit beond compoundable
limitsI
As stated earlier& the case at hand& is not a case
!here the de(eloper has (iolated the common area or
facilities under sanctioned plan7map& but it is a case of
(iolation of ;uilding Regulations b .<%=A Authorit in
sanctioning the map& !hich has ad(ersel affected the
rights of apartment o!ners/
The 3/+/ %ndustrial Area =e(elopment Act& 51:9 and
regulations framed thereunder is applicable in the present
case/ The language of Section ):(2) of the Apartment Act&
)454 and Section 05(2) of the 3/+/ 3rban =e(elopment
Act is pari materia/ Sub$Section (2) of Section ): is
reproduced belo!#$
2;. Control b State Go(ernment/$$
5/) ///////////////////
)/)///////////////////
2/) The State Go(ernment ma& at an time&
17
either on its o!n motion or on application made
to it in this behalf& call for the records of an case
disposed of or order passed b the competent
authorit for the purpose of the satisfing itself as
to the legalit or propriet of an order passed or
direction issued and ma pass such order or issue
such direction in relation thereto as it ma thin"
fit#
The Supreme Court in Manohar Lal vs. :4rasen
an+ others ($&1&# 11 %CC ""! has considered the
scope of Section 05(2) of the 3/+/ 3rban =e(elopment Act&
51:2/ +aras 29 and 2: are reproduced#$
29/) Sub$section (5) thereof empo!ers the State
Go(ernment to issue general directions !hich are
necessar to properl enforce the pro(isions of the
Act/ Sub$Section (2) thereof ma"e it crstal clear
that the State Go(ernment is a re(isional authorit/
Therefore& the scheme of the Act ma"es it clear
that if a person is aggrie(ed b an order of the
authorit& he can prefer an appeal before the
Appellate Authorit i/e/ =i(isional Commissioner
and the person aggrie(ed of that order ma file a
re(ision Application before the State Go(ernment/
Ho!e(er& the State Go(ernment cannot pass an
order !ithout gi(ing opportunit of hearing to the
person& !ho ma be ad(ersel affected/
2:/ %n the instant case& it is the re(isional
authorit !hich has issued direction to G=A to
ma"e allotment in fa(our of both the parties/
<rders had been passed !ithout hearing the other
part/ The authorit& i/e/ G=A did not ha(e the
opportunit to e8amine the case of either of the
said parties/ The High Court erred in holding that
sub$section (5) of Section 05 empo!ers the State
Go(ernment to deal !ith the application of an
18
indi(idual/ The State Go(ernment can ta"e onl
polic decisions as to ho! the statutor pro(isions
!ould be enforced but cannot deal !ith an
indi(idual application/ The re(isional authorit can
e8ercise its Furisdiction pro(ided there is an order
passed b the lo!er authorit under the Act as it
can e8amine onl legalit or propriet of the order
passed or direction issued b the authorit therein/
%n (ie! thereof& !e are of the considered opinion
that there !as no occasion for the State
Go(ernment to entertain the applications of the
said parties for allotment of land directl and issue
directions to G=A for allotment of land in their
fa(our/
%n the facts of this case& the .<%=A Authorit admits
of issuing notices to the respondent$compan on the
complaints filed b the petitioner societ& but has not
proceeded an further/ Had .<%=A Authorit ta"en a
decision onl then the aggrie(ed part could approach
the State Go(ernment under Section ): of the Act& 51:9/
As discussed earlier the .<%=A Authorit had itself
(iolated its ;uilding Regulations therefore& there !as no
occasion of it passing an order/
.<%=A Authorit has colluded !ith respondent$
compan in sanctioning the plan hence there !as no
occasion of the .<%=A Authorit to respond to the specific
grie(ance of the petitioners/ The letter dated )6/54/)455
appro(ing the additional purchase of BAR and the sanction
of the re(ised plan (ide )/2/)45) clearl states that the
pro(isions of the Apartment Act )454 and rules framed
thereunder is applicable/ %n (ie! of the undisputed facts
bet!een the parties& the plea of alternati(e remed&
raised b the contesting respondents at this stage is
19
reFected/ +lea of alternati(e remed cannot become the
dumping ground of legitimate legal grie(ance of the
Apartment <!ners nor can it be the escape route for the
de(eloper for (iolations of ;uilding Regulations in
collusion !ith the .<%=A Authorit/ The 'uestion is
decided accordingl/
Question No. 8:- Violation of Buil+in4
,e4ulations
We proceed to e8amine as to !hether sanction dated
)/2/)45) in respect of To!ers 59 and 5: (A+E, A
CE-A.E) is as per ;uilding Regulations )454/ The
admitted facts bet!een the parties is that the .<%=A
Authorit has allotted +lot .o/ 0& Sector 12$A .<%=A& in
t!o parts& for de(elopment of Group Housing Societ/ <n
)4/9/)446& the .<%=A Authorit appro(ed the plan on the
site +lot .o/ 0& Sector 12$A measuring 0?)92/44 s' meter/
The .<%=A Authorit (ide lease dated )5/9/)449
alloted additional area measuring 9669/65 s' meter !hich
!as part and parcel of +lot .o/ 0& Sector 12$A enhancing
the area of the +lot to 60?51/65/ ;uilding Regulations
)449 came into force on 59/5)/)449 superseding the
earlier ;uilding Regulations/ Respondent compan
submitted an amended7re(ised plan and proposed to built
a shopping centre and a building& Ground @ 55 store (G
@ 55) on the additional leased plot/ There !as no
amendment7re(ision in the earlier sanctioned map/ The
respondent7compan again got the laout map amended7
re(ised and To!ers .o/ 59 and 5: (A+E, A CE-A.E) of )0
stories !as proposed to be built on the additional leased
out land instead of (G @ 55) and shopping center (G @ 5)/
20
<n )5/:/)454 3/+/ Apartment (+romotion of Construction&
<!nership and Eaintenance) Act& )454 !as enforced/ The
.<%=A Authorities framed ;uilding Regulation& )454
superseding the ;uilding Regulation of )449/ The ;uilding
Regulation of )454 came into force on )4/55/)454/ The
respondent$compan again submitted an
amended7re(ised plan and the heights of the To!er .</
59$5: (A+E, A CE-A.E) !ere increased to 04 stories
utilizing additional purchasable BAR )/:6& that is& raising
the height to 5)5/6 meters/ The additional B/A/R/ !as
appro(ed b .<%=A Authorit (ide letter dated
)6/54/)455/
The case of the petitioner is that the sanction of
to!ers (A+E, A CE-A.E) i/e/ to!ers 59 and 5:& (iolate the
;uilding Regulations/ The distance bet!een petitioner*s
building bloc" Aster %% (To!er 5) and To!ers 59 and 5:
(A+E, A CE-A.E) must be si8teen meters !hich is
mandator under ;uilding Regulations& )454& read !ith
.ational ;uilding Code )446/ The sanction (iolates
Apartment Act& )454& as no permission !as ta"en from
the petitioner societ& before getting the re(ised map
sanctioned/
Admitted position bet!een the parties& as !ell as&
according to the .<%=A Authorit& the distance bet!een
the t!o building bloc"s is onl 1 meters& as against 59
metres& re'uired under ;uilding Regulations& )454/
According to the respondent$compan the proFect is
in t!o phases& Emerald Court proFect (+hase$5)
comprises of 56 to!ers/ The compan after being leased
out additional area of land& phase$) !as launched
21
comprising of To!ers 59 A 5: (A+E, A CE-A.E)/ The
laout plan for construction of A+E, A CE-A.E (phase$))
!as sanctioned on )9/55/)441& that is& before the
enactment of the 3/+/ Apartment Act& )454 and ;uilding
Regulations& )454 respecti(el& therefore& according to
them& the pro(isions of the said Act and ;uilding
Regulations !ould not appl to the respondents/ ; the
last sanction dated )/2/)45)& !hen both the Apartment
Act )454 and ;uilding Regulations )454 !as in force& onl
the heights has been raised to 04 stories (5)5 mtrs) b
purchasing additional Bloor Area Ratio (BAR)/ %t is further
stated that the possession of flats and amenities of
phase$% has been handed o(er to the residents !a bac"
in April& )44? and latest b September& )441& that is& the
flats ha(e been sold before coming into force of the Act/
According to the respondent$compan the A+E, A
CE-A.E (phase$)) are entirel separate proFects ha(ing
separate facilities and separate entr and e8it gates&
therefore& the petitioners* societ Emerald Court (phase$
5) has& no locus nor an concern !ith the to!ers A+E, A
CE-A.E (To!er 5: and 59)/
The .<%=A Authorit in their counter affida(it has
ta"en a stand !hich is tangent to the stand ta"en b the
respondent compan/ The precise case of .<%=A Authorit
is that& the additional plot of land allotted to the
respondent$compan and the sanction of the map&
thereon& dated )/2/)45)& !as as per ;uilding Regulations
)454 and the de(eloper !as re'uired to compl !ith the
pro(isions of the 3/+/ Apartment Act& )454/ The sanction
letter dated )/2/)45) categoricall states that the
pro(isions of the Apartment Act& )454 and rules framed
22
thereunder has to be complied !ith/ The .<%=A Authorit
has further stated that plot no/ 0 is not separated in t!o
parts and the final laout has been sanctioned on a single
plot and it is a single proFect/ BAR )/:6 has been
sanctioned (ide letter dated )6/54/)455 considering the
entire area of the plot/ %n the counter affida(it it is
admitted that the distance bet!een pre(iousl built
to!ers Aster$) (To!er no/ 5) and the ne!l built to!ers
59 and 5: (A+E, A CE-A.E) is 1 meters/ This fact is also
not disputed b the respondent7compan/
E8amining the pleadings of the parties& on admitted
facts& it transpires that the stand of the de(eloper is
totall di(ergent to the stand of the .<%=A Authorities/
The contention of the respondent$compan that the map
!as initiall sanctioned and re(ised and modified under
pro(isions of ;uilding Regulations )449& hence the
;uilding Regulations of )454 is not applicable and further
since possession !as alread handed o(er to the
members of the petitioner societ !a bac" in the ear
)441& therefore& pro(isions of the Apartment Act& )454 is
not applicable& is not borne out from the record/ The
appro(al for purchase of additional BAR is of the ear
)455 and sanction of laout map dated )/2/)45) is for
single proFect and imposes the condition of applicabilit
of Apartment Act )454 on the proFect/
%t is settled principle of la! that rules and regulations
applicable on the date of sanction i/e/ )/2/)45) !ill appl$
(ide Co22issioner Munici'al Cor'oration, %hi2la
vs. 0re2 Lata %oo+ an+ others ($&&!# 11 %CC 1&,
:nion of /n+ia an+ others vs. /n+ian Char4e Chro2e
an+ .nother (1# ! %CC 811, *ul+ee' %in4h vs.
23
5ovt. of NC; of Delhi ($&&<# " %CC !&$.
%n this conte8t !e ma usefull refer to the decision
of Supreme Court in :nion of /n+ia vs. ,.
0a+2anabhan $&&8 (!# %CC $!&& !herein this Court
obser(ed#
JThat apart& being e8 gratia& no right accrues to an
sum as such till it is determined and a!arded and&
in such cases& normall it should not onl be in
terms of the Guidelines and +olic& in force& as on
the date of consideration and actual grant but has
to be necessaril !ith reference to an indications
contained in this regard in the Scheme itself/ The
line of decisions relation to (ested rights accrued
being protected from an subse'uent amendments
ma not be rele(ant for such a situation and it
!ould be apposite to ad(ert to the decision of this
Court reported in State of Tamil .adu (s/ Hind
Stone and <rs/ $ 51?5 ()) SCC )46/ That !as a case
!herein this Court had to consider the claims of
lessees for rene!al of the Tamil .adu Einor Eineral
Concession Rules& 5161/ The High Court !as of the
(ie! that it !as not open to the State Go(ernment
to "eep the time and then depose them of on the
basis of a rule !hich had come into force later/ This
Court& !hile re(ersing such (ie! ta"en b the High
Court& held that in the absence of an (ested rights
in anone& an application for a lease has
necessaril to be dealt !ith according to the rules
in force on the date of the disposal of the
application& despite the dela& if an& in(ol(ed
although it is desirable to dispose of the
applications& e8peditiousl/K
We ma also refer to the decision of Supreme Court
in *ul+ee' %in4h vs. 5overn2ent of NC; of Delhi
24
N)449 (6) SCC :4)O !hich considered the 'uestion of
grant of li'uor (ent licences/ The Supreme Court held that
!here applications re'uired processing and (erification
the polic !hich should be applicable is the one !hich is
pre(alent on the date of grant and not the one !hich !as
pre(alent !hen the application !as filed/ The Ape8 Court
clarified that the e8ception to the said rule is !here a
right had alread accrued or (ested in the applicant&
before the change of polic/
The map sanctioned in the ear )446 !as amended
and re(ised b the respondent$compan time to time
under subse'uent building regulations/ %t !as in the
fourth and final sanction dated 4)/42/)45)& ma8imum
permissible BAR )/:6 !as purchased/ The compan could
ha(e purchased the aforementioned ma8imum BAR )/:6
in )441 !hen building regulations )449 !as amended in
)441/ The compan chose to purchase BAR )/:6 in )455&
!hen building regulations )449 !as superseded b
building regulations )454 and Apartment Act& )454 !as
enforced/ The map !as sanctioned as per ;uilding
Regulation )454/ The respondent$compan ne(er
'uestioned the condition regarding the application of
Apartment Act& )454/ The stand of the respondent$
compan that the proFect is in t!o phases is also not
borne out from the record& as .<%=A Authorit had
permitted the purchase of additional Bloor Area Ratio
(BAR) and subse'uent sanction& treating the proFect as a
single proFect/ The respondent$compan has not onl
mislead the petitioner but has tried to mislead& the Court
b pleading false facts/ The record re(eals that the
respondent$compan at no point of time treated the
25
proFect in t!o phases/ The maps submitted and
sanctioned is for a single proFect on the entire site/
%n order to appreciate the arguments ad(anced b
the parties/ %t is essential to e8amine the Act as !ell as
the building regulations framed thereunder/
The State legislature enacted the 3ttar +radesh
%ndustrial Area =e(elopment Act& 51:9/ The Act pro(ided
for the constitution of an authorit for the de(elopment of
certain area in the State into %ndustrial 3rban To!nship
and for matters connected there!ith/
3nder Section 2 of the Act& the State Go(ernment
ma b notification constitute for the purpose of the Act
an Authorit/ The Authorit shall be a bod corporate/ The
State Go(ernment under Section 0 is re'uired to appoint
a Chief E8ecuti(e <fficer (CE<) of the Authorit& !ho shall
be the !hole time <fficer of the said Authorit/
Section 9 pro(ides for functions of the Authorit
!hich inter alia re'uires to secure the planned
de(elopment of the %ndustrial =e(elopment Areas/ Sub$
section )(g) pro(ides to regulate the erection of buildings
and setting up of industries/
Section ? confers po!ers upon the authorit to issue
directions/
Sub$section 5(c) of Section ? pro(ides for issuing
directions regarding the restrictions and conditions !ith
regard to open spaces to be maintained in around
buildings and heights and character of buildings and Sub
clause (d) regarding number of residential buildings that
ma be erected on an site/
26
Section 1 pro(ides for ban on erection of buildings in
contra(ention of regulations/ Sub$clause 5 categoricall
states that no person shall erect or occup the building in
the industrial de(elopment area in contra(ention of an
building regulations made under Sub$section )/ Sub$
clause ) pro(ides that the authorit ma b notification
!ith prior appro(al of the State Go(ernment ma"e
regulations to regulate the erection of buildings and such
regulations made pro(ide for on or an of the matters
contained in Sub$clause A to %/ Sub$clause ; pertains to
laout plan of building !hether industrial& commercial or
residential and Sub$clause E is !ith regard to number of
heights of stories of buildings/
The Authorit !ith the prior appro(al of the State
Go(ernment and in e8ercise of its po!ers under sub$
section ) of Section 1 of the =e(elopment Act& 51:9
enacted the .e! <"hla %ndustrial =e(elopment Area
;uilding Regulations and =irections )449/ The said
regulations superseded the .e! <"hla %ndustrial
=e(elopment Area ;uilding Regulations and =irections
51?9/ The ;uilding Regulations of )449 !as notified on
6/5)/)449 and published in the 3/+/ Gazette dated
59/5)/)449/ The regulations )454 came into force on
)4/55/)454 superseding ;uilding Regulations )449/
=istance Re'uirement as per height under ;uilding
Regulations is as follo!s#$
%/) ;uilding Regulation& )449#$
Regulation 22/)/2
(i.) Distance between two adjacent
building blocks shall not be less than half the
27
height of the tallest building.
%%/) ;uilding Regulation )454#$
Regulation )0/)/5(9)
Distance between two adjacent building
blocks shall be minimum 6 mtrs. to 16 mtrs.
depending on the height of blocks. or building
height up to 1! mtrs." the spacing shall be 6 mtrs.
#nd thereafter the spacing shall be increased b$
1 mtrs. or ever$ addition of % mtrs. &n height of
buildings subject to a ma'imum(!%) spacing of
16 mtrs. #s per *ational +uilding ,ode" -../. &f
the blocks have dead0end sides facing each other"
than the spacing shall be ma'imum ( mtrs.
&nstead of 16 mtrs. 1oreover the allottee ma$
provide or propose more than 16 meters space
between two blocks.
%%%/) .ational ;uilding Code&)446#$
!.-.%.1 or buildings of height above 1. m"
the open sapces (side and rear) shall be as given
in 2able -. 2he front open spaces for increasing
heights of buildings shall be govered b$ (.).1 (a).
;able $ %i+e an+ ,ear 7'en %'aces for Different
=ei4hts of Buil+in4s
(Clause ).$.8.1#
3l. 4eight of +uilding
(meters)
3ide and 5ear 6pen 3paces to be 7eft #round
+uilding
(meters)
i. 1. %
ii. 1/ /
&ii. 1! 6
iv. -1 8
28
v. -) !
vi. -8 (
9ii %. 1.
9iii %/ 11
&' ). 1-
: )/ 1%
:i /. 1)
:ii // and above 16
The respondent$compan has purchased the
additional BAR in )455 and the sanction of the map&
accordingl is in )45)/ The sanction has to be as per the
;uilding Regulations applicable on the date of sanction/
Admittedl& the distance bet!een the building bloc"s has
been (iolated b se(en metres/
.ot onl this& the respondent$compan has also
(iolated the clear space of :/6 mtrs after pro(iding for
surface par"ing/ The respondent$compan in para 2: of
their counter affida(it has stated that J2hat the contents
of para 1/ of the ;rit <etition are wrong and denied. &t is
stated that no setback area has been converted into
parking area. 2he parking of the vehicles are being
allowed leaving aside the 6... m clear setback from the
tower as per the sanction of the ,ompletion Drawing
dated 16.(.-..( b$ *oida #uthorit$. Whereas the stand
of the .<%=A Authorit is that as per Go(ernment
notification dated 0/5)/)454 the pro(isions of par"ing is
allo!ed onl after lea(ing clear space of :/64 metre/ %t is
29
e(ident& on admitted facts& that the respondent compan
in collusion !ith the .<%=A Authorit ha(e managed to
obtain sanction of laout map in (iolation of mandator
spaces bet!een building bloc"s and clear space& but for
these (iolation the additional BAR purchased b the
respondent compan in )455& could not ha(e been
e8ecuted on the ground7site/ The stand of both the
respondents that constructions are being carried out&
strictl as per sanction is untenable& as the sanction itself
grossl (iolates the ;uilding Regulations/
%n this regard the pro(isions of 3ttar +radesh Bire
+re(ention and Bire Safet Act& )446 needs to be
e8amined/
The purpose of the Act is to ma"e more effecti(e
pro(isions for the fire pre(ention and fire safet measures
in certain buildings and premises in the State of 3ttar
+radesh/
Section 0 pro(ides for& measures for the pre(ention
and fire safet/ The nominated authorit shall& after the
completion of the inspection of the building for permission
under Section 2& record its (ie!s on the de(iation from or
the contra(ention of& the building be$la!s !ith regard to
fire pre(ention and fire safet measures and inade'uac
of such measures pro(ided therein !ith reference to the
height of the building or the nature of acti(ities carried on
in such building and premises and issue of notice to the
o!ner or occupier of such building or premises directing
him to underta"e such measures as ma be specified in
the notice/
Section : pro(ides for& permission for certain
30
buildings# E(er building abo(e 56 meters of height
!hether e8isting or to be erected shall submit plan and
obtain permission from entit authorized b the State
Go(ernment that safet from fire is reasonabl attainable
in practical and can be achie(ed/
%n e8ercise of its po!er under Section 5: of the Bire
Safet Act& )446& the State Go(ernment framed the 3ttar
+radesh Bire +re(ention and Bire Safet Rules )446/ Rule 0
of the Rules pro(ides the minimum standards for fire
pre(ention and fire safet measures specified for building
or premises shall be such as are pro(ided in the building
be$la!s and .ational ;uilding Code of %ndia or an other
la! for the time being in force as amended from time to
time/ Rule !as notified on 5?/9/)446 and Act came into
force on )0
th
Ganuar& )446/
Brom the aforementioned pro(isions& it is clear that
both the respondents are bound to compl !ith the
pro(isions of the Bire Safet Act& )446 and the rules
framed thereunder !hich !as enforced !a bac" in the
ear )446/ The distance bet!een building bloc"s as !ell
as clear space of :/6 mtrs for fire tenders is mandator&
!hich admittedl& has been (iolated !hile sanctioning the
map in the ear )45)/ The respondent compan !as put
to notice under the Act for (iolation of distance and
space/
>earned counsel for the respondent$compan finall
made an attempt to argue that the phrase Jbuilding
bloc"sK is not defined under the be$la!s and according
to the learned Senior Ad(ocate building bloc"s !ould
mean the entire building on plot no/ 0 of Sector 12$A
31
.<%=A/ The said argument is far fetched and against the
pro(isions of the ;uilding Regulations of )449 as !ell as
)454/ ;uilding ;loc" means group of buildings on the
plot7site/ The sanctioned maps clearl sho!s that the
respondent$compan has got the laout appro(ed
consisting of separate bloc"s/ The nomenclature of the
bloc"s !as subse'uentl changed b the respondent$
compan& in each successi(e plans and finall the
buildings !ere numbered as To!ers (5 to 5:)/ The maps
sanctioned clearl sho!s that the buildings in dispute
Aster %% (To!er 5) and Ape8 A Ceane (To!ers 59 and 5:)
are separate building bloc"s/ The argument has been
ad(anced !ithout there being an foundation in the
pleadings/ Without pleadings argument cannot be
ad(anced/
Bor the reasons stated herein abo(e& it is e(ident
that the map sanctioned b .<%=A Authorit is in teeth of
the ;uilding Regulation& the mandator distance has not
been maintained bet!een building bloc"s and mo(ement
space/ The (iolation has seriousl affected the rights of
the apartment o!ners and safet of their bloc"/ The
'uestion is accordingl decided/
%llegal and unauthorized constructions are on the
rampant rise !ith the conni(ance of the officials of
de(elopment authorit and such acti(ities is re'uired to
be dealt !ith b firm hand other!ise builders7colonizers
!ould be encouraged to raise constructions under the
garb of sanction !hich other!ise is gross (iolation of the
;uilding Regulations and the Act/ The ultimate aim is
planned de(elopment and the flat o!ners should not fall
pre to such acti(ities as the ultimate desire of the famil
32
of common man is to ha(e a shelter of his o!n/ <ther
fundamental rights is also associated !ith dependent
upon the right to propert especiall right to shelter/
3nla!ful constructions in (iolation of building regulation is
definitel against public interest and hazardous to the
safet of occupiers and residents of multistoreed
buildings7group housing/
The Supreme Court in Pri+a6a !states
Iteratioa# 8P: <td. v. (tate of Assa" and other
()454) ) SCC ):& !as of the opinion that unauthorized
constructions should not be allo!ed to stand or gi(en a
seal of appro(al b the court as it is bound to affect the
public at large/ +aragraph .o/ :0 is reproduced
hereinbelo!#
J:0/ E(en though on earlier occasions also& under
similar circumstances& there ha(e been
Fudgments of this Court !hich should ha(e been
a pointer to all the builders that raising
unauthorised construction ne(er pas and is
against the interest of societ at large& but& no
heed to it has been gi(en b the builders/ Rules&
regulations and be$la!s are made b
Corporation or b =e(elopment Authorities&
ta"ing in (ie! the larger public interest of the
societ and it is a bounden dut of the citizens to
obe and follo! such rules !hich are made for
their benefit/ %f unauthorised constructions are
allo!ed to stand or gi(en a seal of appro(al b
court then it is bound to affect the public at large/
An indi(idual has a right& including a fundamental
right& !ithin a reasonable limit& it inroads the
public rights leading to public incon(enience&
therefore& it is to be curtailed to that e8tent/
The Ape8 Court after considering the cases
pertaining to illegal and unauthorized constructions
especiall 0.I. =ui#ders Pvt. <td. v. Rad*e+ (*+a"
(a*u ad $t*ers (5111) 9 SCC 090I Frieds Co#o+
33
9eve#o'"et Co""ittee v. (tate of $rissa ad
$t*ers ()440) ? SCC :22I Ro+a# Paradise 3ote# 8P:
<td. 2s. (tate of 3ar+aa ad $t*ers ()449) : SCC
61:I ad 0a*edra =u5urao 0a*adi6 ad $t*ers v.
(u5*as* .ris*a .ait6ar ad $t*ers ()446) 0 SCC
11& came to the conclusion that constructions made in
(iolation of sanctioned appro(al la!s and in (iolation of
building regulations& the conse'uence is demolition/
+aragraph 99 is reproduced hereinbelo!#$
66. %t is not necessar to deal !ith the aforesaid
Fudgments of this Court in greater detail as the
consistent ratio decidendi of this Court is that if the
constructions are in absolute (iolation of sanctioned or
appro(ed plans and are not li"el to fall in the categor
of compoundable items& then the necessar
conse'uence is to order its demolition and seal of
appro(al for such illegal acti(ities is not re'uired to be
gi(en b this Court/
%n 9i'a6 .u"ar 0u6*er>ee vs .o#6ata
0u.Cor'.? $rs- 201@ 85: (CC @@6& the Supreme
Court obser(ed that in last four decades& the menace of
illegal and unauthorized constructions of buildings and
other structures in different parts of the countr has
ac'uired monstrous proportion/
%n Frieds Co#o+ 9eve#o'"et Co""ittee
(supra) Supreme Court noted that large number of illegal
and unauthorized constructions !ere made in the cit of
Cuttac" and made follo!ing obser(ations#$
34
J%n all de(eloped and de(eloping countries there
is emphasis on planned de(elopment of cities
!hich is sought to be achie(ed b zoning&
planning and regulating building construction
acti(it/ Such planning& though highl comple8& is
a matter based on scientific research& stud and
e8perience leading to rationalization of la!s b
!a of legislati(e enactments and rules and
regulations framed thereunder/ Poning and
planning do result in hardship to indi(idual
propert o!ners as their freedom to use their
propert in the !a the li"e& is subFected to
regulation and control/ The pri(ate o!ners are to
some e8tent pre(ented from ma"ing the most
profitable use of their propert/ ;ut for this reason
alone the controlling regulations cannot be
termed as arbitrar or unreasonable/ The pri(ate
interest stands subordinated to the public good/ %t
can be stated in a !a that po!er to plan
de(elopment of cit and to regulate the building
acti(it therein flo!s from the police po!er of the
state/ The e8ercise of such go(ernmental po!er is
Fustified on account of its being reasonabl
necessar for the public health& safet& morals or
general !elfare and ecological considerationsI
though an unnecessar or unreasonable inter$
meddling !ith the pri(ate o!nership of the
propert ma not be Fustified/
The municipal la!s regulating the building
construction acti(it ma pro(ide for regulations
as to floor area& the number of floors& the e8tent
of height rise and the nature of use to !hich a
built$up propert ma be subFected in an
particular area/ The indi(iduals as propert
o!ners ha(e to pa some price for securing
peace& good order& dignit& protection and comfort
and safet of the communit/ .ot onl filth& stench
and unhealth places ha(e to be eliminated& but
the laout helps in achie(ing famil (alues& outh
(alues& seclusion and clean air to ma"e the
localit a better place to li(e/ ;uilding regulations
also help in reduction or elimination of fire
hazards& the a(oidance of traffic dangers and the
lessening of pre(ention of traffic congestion in the
streets and roads/ Poning and building regulations
are also legitimized from the point of (ie! of the
control of communit de(elopment& the
pre(ention of o(er$cro!ding of land& the furnishing
of recreational facilities li"e par"s and
plagrounds and the a(ailabilit of ade'uate
!ater& se!erage and other go(ernmental or utilit
35
ser(ices/
Structural and lot$area regulations authorize the
municipal authorities to regulate and restrict the
height& number of stories and other structuresI
the percentage of a plot that ma be occupiedI
the size of ards& courts& and open spacesI the
densit of populationI and the location and use of
buildings and structures/ All these ha(e in (ie!
and do achie(e the larger purpose of the public
health& safet or general !elfare/ So are front
setbac" pro(isions& a(erage alignments and
structural alterations/ An (iolation of zoning and
regulation la!s ta"es the toll in terms of public
!elfare and con(enience being sacrificed apart
from the ris"& incon(enience and hardship !hich
is posed to the occupants of the building/
What needs to be emphasized is that illegal and
unauthorized constructions of buildings and other
structure not onl (iolate the municipal la!s and the
concept of planned de(elopment of the particular area
but also affect (arious fundamental and constitutional
rights of other persons/ The common man feels cheated
!hen he finds that illegal and unauthorized constructions
are supported b the people entrusted !ith the dut of
preparing and e8ecuting master plan and zonal plan as
!ell as building regulations/ The failure of the State
apparatus to ta"e prompt action to demolish such illegal
constructions has con(inced the citizens that planning
la!s are enforced onl against poor and all compromises
are made b the State machiner including the
de(elopment authorit !hen it is re'uired to deal !ith
those !ho ha(e mone po!er or unhol ne8us to the
po!er corridors/
%n 9i'a6 .u"ar 0u6*er>ee case (supra)& the Ape8
Court held that there should be no Fudicial tolerance of
36
illegal and unauthorized constructions b those !ho treat
the la! to be their sub$ser(ient and those indulging in
such acti(ities !ill not be spared/ (Refer ,avin+ra
Mutne>a, ,a>en+ra vs. Bha?an Cor'oration .
0artnershi', $&&8("# Bo2 C, <".)
The Court is not at all impressed b the plea of
financial loss or proposed sale in respect of the flats being
constructed/ %t has repeatedl come to the notice that
builders b Foining hands !ith the officer of the
de(elopment authorities openl flout e(er concei(able
rule& including building regulations/ The builder is al!as
under the impression that once the frame of the building
is illegall constructed then the Court can be persuaded
to ta"e a smpathetic (ie! and permit the construction
e(en though in total breach of legal pro(ision/ The price of
land is s" roc"eting as !ell as there is scarcit of land in
group housing/ Ta"ing ad(antage of the situation the
;uilder lobb is e8ploiting need of the people b setting
up illegal construction and the unfortunate part of this is
that it has acti(e assistance of the officers of the
de(elopment authorit/ <nce the sanction for Ape8 A
Ceane (T 59 and 5:) !as in total breach of the building
regulations& )454 and Apartment Act& )454& then the
Court !ould be failing in its dut if respondent
compan7de(eloper is permitted to raise the
constructions/ The time has come !hen e(erone should
realize that rule of la! is not a purchasable commodit
and illegalities !ill not be tolerated merel because the
builder has ta"en protection against the sanction !hich
admittedl is illegal and in (iolation of building regulations
and the Act/
37
The respondent$compan has pleaded falsel and
destroed facts to non$suit the petitioner and mislead the
Court/ The then official of .<%=A Authorit ha(e not acted
bona fide in discharge of their duties& the map has been
sanctioned and is being e8ecuted in (iolation of ;uilding
Regulations/ The officials cannot claim protection under
section 64 of the 3/+/ 3rban =e(elopment Act& 51:2 as
incorporated under section 5) of the 51:9 Act/
Bor the reasons and la! stated herein abo(e& it is
directed that #
%/) The To!ers 59 A 5: (Ape8 A Ceane) situated on
+lot .o/ 0& Sector 12A .<%=A shall be demolished b the
.<%=A Authorit !ithin period of four months from the
date of filing of the certified cop of this order&
ii/) E8penses of the demolition and remo(al of the
debris shall be borne b the respondent$compan& failing
!hich it shall be reco(ered b .<%=A Authorit as arrears
of land re(enue/
iii/) The officials of the respondent$compan and the
officers of the .<%=A Authorit ha(e e8posed themsel(es
for prosecution under the 3ttar +radesh %ndustrial Area
=e(elopment Act& 51:9 and 3ttar +radesh Apartment
(+romotion of Construction& <!nership A Eaintenance)
Act& )454/ Sanction for prosecution as re'uired under
section 01 of the 3/+/ 3rban =e(elopment Act& 51:2& as
incorporated b section 5) of the 3/+/ %ndustrial Area
=e(elopment Act& 51:9& shall be sanctioned b the
Competent Authorit !ithin a period of three months from
the date of filing of certified cop of this order/
38
i(/) The respondent$compan shall refund the
consideration recei(ed from the pri(ate parties& !ho ha(e
boo"ed apartments in Ape8 A Ceane (T 59 and 5:) along
!ith 50L interest compounded annuall !ithin four
months from the date of filing of certified cop of this
order/
SubFect to the abo(e& the !rit petition stands
a##o%ed/
.o order as to costs/
$rder 9ate :- 55/40/)450
S/ +ra"ash
(Suneet Dumar& G/) (H/D/ Shu"la&G/)