Neutral Citation No. - 2025:AHC:15887-DB Court No. - 21 Case :- WRIT - C No. - 26764 of 2024 Petitioner :- Madan Jain And 3 Others Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Taniya Pandey Counsel for Respondent :- Ashutosh Mishra,Kaushalendra Nath Singh,Kunal Ravi Singh WITH Case :- WRIT - C No. - 27549 of 2024 Petitioner :- Raj Kumar Srivastava And 18 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sr. Advocate,Vineet Kumar Singh Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh WITH Case :- WRIT - C No. - 28416 of 2024 Petitioner :- Saima Amer And 3 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Taniya Pandey Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh,Utkarsh Birla WITH Case :- WRIT - C No. - 28870 of 2024 Petitioner :- Dr Priti Prakash And 14 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rahul Mishra Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh Hon'ble Manoj Kumar Gupta,J. Hon'ble Anish Kumar Gupta,J. 1. The present batch of petitions have been filed assailing the action of the respondent-Authority (Noida) in seeking police help to demolish illegal constructions in Gardenia Gateway Eco City, Sector – 75, Noida, on the ground that the same were constructed by the builder, M/s Futec Shelters Pvt. Ltd., in gross violation of the sanctioned layout plan by covering the front and side setbacks, apart from other irregularities. The petitioners claim that they have entered into sale agreements with the builder for purchase of various shops/KIOSKs/studio apartments in the said project. In Writ Petition No. 27549 of 2024, a prayer has also been made for a direction to the respondent- Authority to regularize the constructions, even if the same are contrary to the sanctioned plan. As common facts and issues are involved, therefore, these cases are being decided by common order. 2. The builder was sub-leased Plot No. GH-10, Eco City, Sector – 75, Noida. Thereunder, major portion was to be developed for group housing - 50% (max). Only 10% (max) could be developed as commercial and 35% was reserved for park, open spaces, roads and public parking. The builder got a layout plan sanctioned for developing a group housing project. The petitioners have set up separate sale agreements in their favour, executed by the builder. They also claim that they have obtained physical possession of the shops/KIOSKs/studio apartments from the builder on basis of the sale agreements. On 30.7.2024, Noida issued a notice to the builder stating that illegal constructions in the shape of shops/KIOSKs have been raised by covering side and front setbacks. The allottees have been handed over possession without obtaining occupancy certificate. Various other irregularities were also pointed out. The said notice was in continuation of earlier notices dated 19.10.2023, 22.4.2024 and 13.5.2024, issued to the builder in this behalf. The builder was called upon to demolish the shops and KIOSKs which have been illegally constructed within three days, failing which, the same would be demolished by use of force. 3. On 9.8.2024, the Senior Manager, Building Division, Noida, requested the Senior Manager, Work Circle – III, Noida, to make available requisite police force to carry out demolition of illegal constructions. It is this communication which is under challenge. The case of the petitioners is that they entered into agreement with the builder on the assumption that the builder is sub lessee of Noida and the Noida, as a development authority, must have ensured that all constructions were in accordance with the sanctioned plan. They have invested their hard earned money and they were not aware of the violations, if any, made by the builder. It is stated that the builder does not seem to have replied to the notices issued by the Noida Authority, as he has abandoned the project and is absconding. In Writ Petition No. 27549 of 2024, the petitioners have stated that in case the constructions are in violation of the sanctioned plan, a direction be issued to the Authority to compound the same. The petitioners cannot be made to suffer on account of any fault on part of the builder. Moreover, the action of the Authority is illegal as the petitioners have not been given any notice nor have been heard. 4. The Noida Authority has filed a counter affidavit and admits having executed a sub-lease on 12.1.2012 in favour of the builder. It is stated that the sanctioned layout plan is primarily for group housing. Only 549.594 sq. meters was commercial, but the builder has constructed shops/KIOSKs, etc. over an area measuring 1209.742 sq. meters on the ground floor and equivalent area on the first floor (in all 2419.484 sq. meters). The total built up area of commercial structure is 2419.4 sq. meters, which is almost five times the permissible limit. There are various other deviations and irregularities. The sewage treatment plant (STP) has not been constructed so far. The commercial structure in dispute comprising of shops/KIOSKs/studio apartments, has been constructed on the front and side setback, thereby blocking the passage for the movement of fire brigade and posing a great risk for the residents. The resident association has also objected to the construction of the illegal structure. The builder was issued several notices, pointing out the illegalities and not to hand over possession without having a valid occupancy certificate. Moreover, under the sale agreement, possession could be handed over to the allottees only after execution of sub-lease in their favour, which has not been done. No right gets conferred in favour of allottees merely on basis of sale agreements. The petitioners have no independent right to contest the demolition proceedings. 5. The builder in some of the cases, has filed a counter affidavit and has stated that it has applied for occupancy certificate on 28/30.9.2024. The builder has denied that it has abandoned the project and has also stated that it had carried out certain works to remove the deficiencies. 6. We have heard counsel for the parties and perused the record. 7. It is not disputed before us that till date, there is no occupancy certificate in respect of the offending structure nor any sub-lease in favour of the petitioners. 8. Clause 37(a) of the Agreement between the petitioners and the builder stipulates as under: - "(a) That the Shop Allottee(s) will be entitled to possession of the said Shop only after all the amounts payable under this Agreement are paid and the Sub Lease Deed in respect of the said Shop is executed and duly registered with the Registrar/Sub-Registrar concerned." 9. Thus, the alleged possession of the petitioners is even contrary to the sale agreement which they have set up in support of their claim. Additionally, at the time of induction of the petitioners, there was no occupancy certificate in respect of the offending structure. It seems that after NOIDA took steps for demolition, an application was moved by the builder for issuance of occupancy certificate only on 28.9.2024. Recently, the Supreme Court in Rajendra Kumar Barjatya and another vs. U.P. Avas Evam Vikas Parishad and others (Civil Appeal No.14604 of 2024 decided on 17.12.2024) has issued various directions, in larger public interest, to prevent such kind of violations by the builder and occupants. These directions inter alia include strict prohibition on occupation of building without an 'occupancy certificate'. Even after issuance of 'occupancy certificate' if any violation is noticed, the Authorities have to take strict action in accordance with law. The NOIDA, along with the counter affidavit, has filed the layout plan, showing the offending part of the structure with green-diagonal lines. It clearly reveals that the structure has been raised on front and side setbacks and after including some part earmarked for community terrace and as green area. Counsel for the petitioners could not show how the construction was permissible. On the face of it, the offending constructions are against the approved plan. The constructions have also obstructed the fire passage. 10. It was the duty of the petitioners to have ascertained from the sanctioned plan whether the constructions were those which have been approved or were contrary to the sanctioned plan. The sale agreement did not confer right in favour of the petitioners in the building/premises allotted in their favour, unless a registered tripartite sub-lease is executed in their favour, to which, the respondent-Authority is to be party. As already noticed, the occupancy certificate in respect of the building has yet not been issued. In such circumstances, if the petitioners have made payment to the builder or obtained possession, the blame lies on them and they cannot come forward and say that the offending structure should not be demolished as it would result in the petitioner’s losing their hard earned money. The petitioners, vide Clause 32 of the sale agreement, have been given right to claim return of the allotment money. The petitioners have right to sue the builder and recover their investments. They have no independent right to oppose the demolition proceedings. 11. We find no merit in the petitions. The same are accordingly dismissed. However, we leave it open to the petitioners to take appropriate action against the builder as per Clause 32 of the sale agreement between them and the builder. (Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.) Order Date :- 5.2.2025 Jaideep/- Digitally signed by :- JAIDEEP BANERJEE High Court of Judicature at Allahabad