SUPERTECH LIMITED versus EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION AND OTHERS on 4 October 2021

ORDER

1. A miscellaneous application has been filed by Supertech LimitedHseeking modification of the judgment and order of this Court dated 31

August 2021. The reliefs which are sought in the MiscellaneousApplication read thus:

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“(a)Modify the Judgment dated 31.08.2021…to the extent thatthe Applicant may demolish a part of tower T-17 as stipulatedin paragraph 6 hereinabove; B

(b) Pass an order of status quo in respect of Towers 16 & 17in Emerald Court, Plot No. 4, Sector 93A, NOIDA till finalorders are passed in the present application.”

2. A Division Bench of the High Court of Judicature at Allahabaddirected the demolition of Towers 16 and 17 by the third respondent,New Okhla Industrial Development Authority, in Emerald Courtconstructed by the applicant and situated on Plot No 4, Sector 93A,NOIDA. While affirming the judgment of the Division Bench, this Courthas recorded the following conclusions in its judgment, which is reportedas Supertech Limited vs Emerald Court Owner Resident WelfareAssociation and Others[1]:

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“185. To summarize our findings, the documentary materialsreferred to and analyzed in this judgment indicate that:

(i) The land allotted to appellant under the original leaseagreement and the supplementary lease deed constitute oneplot; E

(ii) The land which was allotted through the supplementary leasedeed forms a part of original Plot No 4, and would begoverned by the same terms and conditions as the originallease deed; F

(iii) The sanction given by NOIDA on 26 November 2009 and2 March 2012 for the construction of T-16 and T-17 isviolative of the minimum distance requirement under theNBR 2006, NBR 2010 and NBC 2005;

(iv) An effort was made to get around the violation of theminimum distance requirement by representing that T-1Gtogether with T-16 and T-17 form one cluster of buildingsin the same block. This representation was sought to bebolstered by providing a space frame between T-1 and T-17. The case that T-1, T-16 and T-17 are part of one block H

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is directly contrary to the appellant’s stated position in itsrepresentations to the flat buyers as well as in the counteraffidavit before the High Court. The suggestion that T-1,T-16 and T-17 are part of one block is an after-thought andcontrary to the record; A

B(v)After realizing that the building block argument would notpass muster, another false case was sought to be set upwith the argument that T-1 and T-17 are dead end sides,thereby obviating the need to comply with the minimumdistance requirements. This argument is belied by thecomprehensive report submitted by NBCC. The sides ofCT-1 and T-17 facing each other are not dead end sides sinceboth the sides have vents/egresses facing the other building;

(vi) By constructing T-16 and T-17 without complying with theBuilding Regulations, the fire safety norms have also beenviolated; D

(vii) The first revised plan of 29 December 2006 contained aclear provision for a garden area adjacent to T-1. In thesecond revised plan of 26 November 2009, the provisionfor garden area was obliterated to make way for theconstruction of Apex and Ceyane (T-16 and T-17). TheEcommon garden area in front of T-1 was eliminated by theconstruction of T-16 and T-17. This is violative of the UPApartments Act 2010 since the consent of the flat ownerswas not sought before modifying the plan promised to theflat owners; and F

(viii) T-16 and T-17 are not part of a separate and distinct phase(Phase-II) with separate amenities and infrastructure. Thesupplementary lease deed stipulates that the they are partof the original project. Hence, the consent of the individualflat owners of the original fifteen towers, individually orGthrough the RWA, was a necessary requirement under theUP Apartments Act 2010 and UP 1975 Act before T-16and T-17 could have been constructed, since they necessarilyreduced the undivided interest of the individual flat ownersin the common area by adding new flats and increasing thenumber from 650 to 1500; and H

(ix) The illegal construction of T-16 and T-17 has been achievedAthrough acts of collusion between the officers of NOIDAand the appellant and its management.

186. For the reasons which we have indicated above, we havecome to the conclusion that:

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(i) The order passed by the High Court for the demolition ofApex and Ceyane (T-16 and T-17) does not warrantinterference and the direction for demolition issued by theHigh Court is affirmed;

(ii) The work of demolition shall be carried out within a periodof three months from the date of this judgment; C

(iii) The work of demolition shall be carried out by the appellantat its own cost under the supervision of the officials ofNOIDA. In order to ensure that the work of demolition iscarried out in a safe manner without affecting the existingpleadings, NOIDA shall consult its own experts and expertsfrom Central Building Research Institute Roorkee; D

(iv) The work of demolition shall be carried out under the overallsupervision of CBRI. In the event that CBRI expresses itsinability to do so, another expert agency shall be nominatedby NOIDA; E

(v) The cost of demolition and all incidental expenses includingthe fees payable to the experts shall be borne by theappellant; F

(vi) The appellant shall within a period of two months refund toall existing flat purchasers in Apex and Ceyane (T-16 andT-17), other than those to whom refunds have already beenmade, all the amounts invested for the allotted flats togetherwith interest at the rate of twelve per cent per annum payablewith effect from the date of the respective deposits untilthe date of refund in terms of Part H of this judgment; and G

(vii) The appellant shall pay to the RWA costs quantified at Rs.2 crore, to be paid in one month from the receipt of thisjudgment.”

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A3. Mr Mukul Rohatgi, learned senior counsel appearing on behalfof the applicant submitted that:

(I)The applicant does not seek a review of the judgment ofthis Court, which is the reason for filing an application formodification; B

(ii) The basis of the judgment of this Court is that:

(a) The minimum distance required under the relevantBuilding Regulations has not been complied with; and (b)There is a violation of the requirement of maintaininga green area under the relevant Building Regulations;and C

(iii) The applicant would seek to meet the above two findingswhich have been arrived at in the judgment of this Court byslicing a portion of Tower 17, while retaining Tower 16 soDas to ensure compliance with the minimum distancerequirement and the green area requirement under therelevant Building Regulations.

4. Learned senior counsel submitted that the proposal may beexamined by the planning authority, if the Court so directs.

E5. Mr Jayant Bhushan, learned senior counsel appearing on behalfof the first respondent has raised a preliminary objection to themaintainability of such a miscellaneous application, based on the decisionsof this Court in Delhi Administration vs Gurdip Singh Uban andOthers[2](“Gurdip Singh Uban”), Ram Chandra Singh vs Savitri Deviand Others[3] (“Ram Chandra Singh”) and Rashid Khan PathanF(Applicant) – In Re: Vijay Kurle and Others[4](“Rashid Khan Pathan(Applicant) – In Re: Vijay Kurle”). Apart from this, it has beensubmitted on behalf of the first respondent that the miscellaneousapplication proceeds on the misconceived basis that the only twoobjections which were noticed in the judgment of this Court to the legalityGof the two structures are the ones which have been submitted on behalfof the applicant (minimum distance and green area). In addition to theviolation of the distance requirement and the requirement of a green 2 (2000) 7 SCC 2963 (2004) 12 SCC 713H4 2020 SCC OnLine SC 711

SUPERTECH LTD v. EMERALD COURT OWNER RESIDENTWELFARE ASSOCIATION AND OTHERS

area, it has been urged that this Court has, as a matter of fact, advertedto various other violations, including: (i) the non-compliance with theprovision of the UP Apartments Act 2010 Act[5]; and (ii) a reduction ofthe undivided interest of the flat purchasers in the common areas withouttheir consent. On the non-compliance with the provisions of the 2010Act, Mr Bhushan placed reliance on the following findings contained inparagraphs 153 and 154 of the judgment of this Court, namely:

“153. Sub-Section (4) of Section 4 contains the followingstipulations:

“(4) After plans, specifications and other particulars specifiedin this section as sanctioned by the prescribed sanctioningauthority are disclosed to the intending purchaser and a writtenagreement of sale is entered into and registered with the officeof concerned registering authorities. The promoter may makesuch minor additions or alterations as may be required by theowner or owners, or such minor changes or alterations as maybe necessary due to architectural and structural reason’s dulyrecommended and verified by authorized Architect or Engineerafter proper declaration and intimation to the owner:

Provided that the promoter shall not make any alterations inthe plans, specifications and other particulars without theprevious consent of the intending purchaser, project Architect,project Engineer and obtaining the required permission of theprescribed sanctioning authority, and in no case he shall makesuch alterations as an not permissible in the building bye-laws.”

154. Under clause (c) of sub-Section (1) of Section 4, apromoter who intends to sell an apartment is required to makea full disclosure in writing to an intending purchaser and to thecompetent authority of the plans and specifications approvedor submitted for approval to the local authority, of the buildingof which the apartment is a part. Similarly, under clause (d), adisclosure has to be made in regard to the common areas andfacilities in accordance with the approved lay-out plan or buildingplan. Once such a disclosure has been made, sub-Section (4)stipulates that upon the execution of a written agreement tosell, the promoter may make minor additions or alterations as AB

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Amay be required or necessary due to architectural and structuralreasons duly authorized and verified by authorized Architectsor Engineers. Apart from these minor additions or alterationswhich are contemplated by sub-Section (4), the provisostipulates that the promoter shall not make any alterations inthe plans, specifications and other particulars “without theBprevious consent of the intending purchaser”. Mr. Vikas Singh’ssubmission, that this provision will apply to intending purchasersof Apex and Ceyane and not to the persons who had purchasedapartments in the existing fifteen towers, cannot be accepted.The above proviso is evidently intended to protect persons toCwhom the plans and specifications were disclosed when theywere the “intending purchasers”. Further, a construction tothe contrary will run against the grain of the intent and purposeof the statute as well its express provisions.”

6. Similarly, in respect of the reduction of the undivided interest inDthe common areas without the consent of the residents, reliance hasbeen placed on the following findings of this Court:

“145. However, the application of clause II(h) cannot be brushedaway on this basis, particularly since the sentence imposing theapplication of the UP 1975 Act on the lessee/sub-lessee mustEbear some meaning and content. In this context, during the courseof his submissions, Mr. Jayant Bhushan, learned Senior Counselappearing on behalf of the RWA, has placed on the record a copyof the registered sub-lease executed on a tripartite basis byNOIDA, with the appellant as the lessee and the flat buyer as thesub-lessee. Some important provisions of this deed of subleaseFare:

(i) Clause 16 contemplates that the occupant of the groundfloor would be entitled to use a “sit-out area but theright of user shall be subject to the provisions of the UPOwnership Flat Act 1975”; G

(ii) Clause 17 recognizes the right to user of the occupantof the dwelling unit on the top floor, subject to theprovisions of the same enactment; and

(iii) Clause 27 envisages that all clauses of the lease executedby NOIDA in favour of the appellant on 16 March 2005Hshall be applicable to the sub-lease deed as well.

146. In the backdrop of this provision, “more particularly, clauseII(h) of the lease deed which was executed by NOIDA in favourof the appellant on 16 March 2005, the appellant was duty boundto comply with the provisions of the UP 1975 Act. By submittingbefore this Court that it is not bound by the terms of its agreementor the Act for want of a declaration under Section 2, the appellantis evidently attempting to take advantage of its own wrong.

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157. In terms of the third revised plan which was sanctioned on 2March 2012, the height of T-16 and T-17 was sought to beincreased from twenty-four to forty (or thirty-nine, as the casemay be) floors. As a result, the total number of flat purchaserswould increase from 650 to 1500. The clear implication of thiswould be a reduction of the undivided interest of the existingpurchasers in the common areas. As a matter of fad, it has alsobeen submitted on behalf of the first respondent that the additionallease rent paid to NOIDA was also sought to be collected fromthe existing flat purchasers at the rate of Rs.190 per sq. foot. Astatement to that effect was also contained in an affidavit filedbefore the High Court on behalf of the first respondent. Thepurchase of additional FAR by the appellant cannot be used totrample over the rights of the existing purchasers.”

Hence it has been urged that in any event, the proposal will notensure compliance with the judgment of this court.

7. The judgment of this Court dated 31 August 2021 has affirmedthe direction which was issued by the Division Bench of the AllahabadHigh Court for the demolition of Tower 16 and Tower 17. This is evidentfrom the ultimate conclusions and directions contained in paragraph 186(i)to (v) of the judgment. In essence, what the applicant seeks in the presentapplication is that the direction for the demolition of Tower 16 and Tower17 should be substituted by the retention of Tower 16 in its entirety andslicing of a portion of Tower 17. Clearly, the grant of such a relief is inthe nature of a review of the judgment of this Court.

8. In successive decisions, this Court has held that the filing ofapplications styled as “miscellaneous applications” or “applications forclarification/modification” in the guise of a review cannot becountenanced. In Gurdip Singh Uban (supra), Justice M JagannadhaRao, speaking for a two-Judge Bench of this Court observed:

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A“17. We next come to applications described as applications for“clarification”, “modification” or “recall” of judgments or ordersfinally passed. We may point out that under the relevant Rule XLof the Supreme Court Rules, 1966 a review application has firstto go before the learned Judges in circulation and it will be for theCourt to consider whether the application is to be rejected withoutBgiving an oral hearing or whether notice is to be issued.

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Order XL Rule 3 states as follows:

“3. Unless otherwise ordered by the Court, an application forreview shall be disposed of by circulation without any oralarguments, but the petitioner may supplement his petition byadditional written arguments. The Court may either dismiss thepetition or direct notice to the opposite party….”

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In case notice is issued, the review petition will be listed for hearing,after notice is served. This procedure is meant to save the time ofthe Court and to preclude frivolous review petitions being filedDand heard in open court. However, with a view to avoid thisprocedure of “no hearing”, we find that sometimes applicationsare filed for “clarification”, “modification” or “recall” etc. notbecause any such clarification, modification is indeed necessarybut because the applicant in reality wants a review and also wantsa hearing, thus avoiding listing of the same in chambers by way ofEcirculation. Such applications, if they are in substance reviewapplications, deserve to be rejected straight away inasmuch asthe attempt is obviously to bypass Order XL Rule 3 relating tocirculation of the application in chambers for consideration withoutoral hearing. By describing an application as one for “clarification”For “modification”, — though it is really one of review — a partycannot be permitted to circumvent or bypass the circulationprocedure and indirectly obtain a hearing in the open court. Whatcannot be done directly cannot be permitted to be done indirectly.(See in this connection a detailed order of the then Registrar ofthis Court in Sone Lal v. State of U.P. [(1982) 2 SCC 398]Gdeprecating a similar practice.)

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18. We, therefore, agree with the learned Solicitor General thatthe Court should not permit hearing of such an application for“clarification”, “modification” or “recall” if the application is insubstance one for review. In that event, the Court could eitherHreject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initiallyin chambers.”

9. The same view has been expressed in a subsequent decision inRam Chandra Singh (supra) wherein another two-Judge Bench ofthis Court observed as follows:

“15. In Gurdip Singh Uban [(2000) 7 SCC 296] the law hasbeen laid down in the following terms:

“17. … This procedure is meant to save the time of the Courtand to preclude frivolous review petitions being filed and heardin open court. However, with a view to avoid this procedure of‘no hearing’, we find that sometimes applications are filed for‘clarification’, ‘modification’ or ‘recall’ etc. not because anysuch clarification, modification is indeed necessary but becausethe applicant in reality wants a review and also wants a hearing,thus avoiding listing of the same in chambers by way ofcirculation. Such applications, if they are in substance reviewapplications, deserve to be rejected straight away inasmuch asthe attempt is obviously to bypass Order 40 Rule 3 relating tocirculation of the application in chambers for considerationwithout oral hearing. By describing an application as one for‘clarification’ or ‘modification’, — though it is really one ofreview — a party cannot be permitted to circumvent or bypassthe circulation procedure and indirectly obtain a hearing in theopen court. What cannot be done directly cannot be permittedto be done indirectly.”

16. In Common Cause [(2004) 5 SCC 222] Lahoti, J. (as thelearned Chief Justice then was) speaking for a Division Benchobserved:

“2. … We are satisfied that the application does not seek anyclarifications. It is an application seeking in substance a reviewof the judgment. By disguising the application as one for‘clarification’, the attempt is to seek a hearing in the open courtavoiding the procedure governing the review petitions which,as per the rules of this Court, are to be dealt with in chambers.Such an attempt on the part of the applicant has to bedeprecated.”

17. Recently in Zahira Habibullah Sheikh v. State of Gujarat[(2004) 5 SCC 353 : 2004 SCC (Cri) 1613] referring to Order 40Rule 3, this Court opined:

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A“6. As noted by a Constitution Bench of this Court in P.N.Eswara Iyer v. Registrar, Supreme Court of India [(1980) 4SCC 680], Suthendraraja v. State [(1999) 9 SCC 323 : 2000SCC (Cri) 463], Ramdeo Chauhan v. State of Assam [(2001)5 SCC 714 : 2001 SCC (Cri) 915] and Devender Pal Singh v.State, NCT of Delhi [(2003) 2 SCC 501 : 2003 SCC (Cri)B572] notwithstanding the wider set of grounds for review incivil proceedings, it is limited to ‘errors apparent on the face ofthe record’ in criminal proceedings. Such applications are notto be filed for the pleasure of the parties or even as a devicefor ventilating remorselessness, but ought to be resorted toCwith a great sense of responsibility as well.

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7. In Delhi Admn. v. Gurdip Singh Uban [(2000) 7 SCC296] it was held that by describing an application as one for‘clarification’ or ‘modification’ though it is really one of review,a party cannot be permitted to circumvent or bypass thecirculation procedure and indirectly obtain a hearing in the opencourt. What cannot be done directly cannot be permitted to bedone indirectly. The court should not permit hearing of such anapplication for ‘clarification’, ‘modification’ or ‘recall’ if theapplication is in substance a clever move for review.”

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E10. More recently, another two-Judge Bench in Rashid KhanPathan (Applicant) – In Re: Vijay Kurle (supra) held as follows:

“9. In a country governed by the rule of law, finality of the judgmentis absolutely imperative and great sanctity is attached to the finalityof the judgment. Permitting the parties to reopen the concludedFjudgments of this Court by filing repeated interlocutory applicationsis clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice.”

11. The attempt in the present miscellaneous application is clearlyto seek a substantive modification of the judgment of this Court. Such anGattempt is not permissible in a miscellaneous application. While Mr MukulRohatgi, learned senior counsel has relied upon the provisions of OrderLV Rule 6 of the Supreme Court Rules 2013, what is contemplated thereinis a saving of the inherent powers of the Court to make such orders asmay be necessary for the ends of justice or to prevent an abuse of theprocess of the Court. Order LV Rule 6 cannot be inverted to bypass theH

provisions for review in Order XLVII in the Supreme Court Rules 2013.The Miscellaneous application is an abuse of the process.

Statutes

12. The hallmark of a judicial pronouncement is its stability andfinality. Judicial verdicts are not like sand dunes which are subject to thevagaries of wind and weather[6]. A disturbing trend has emerged in thiscourt of repeated applications, styled as Miscellaneous Applications, beingfiled after a final judgment has been pronounced. Such a practice has nolegal foundation and must be firmly discouraged. It reduces litigation toa gambit. Miscellaneous Applications are becoming a preferred courseto those with resources to pursue strategies to avoid compliance withjudicial decisions. A judicial pronouncement cannot be subject tomodification once the judgment has been pronounced, by filing amiscellaneous application. Filing of a miscellaneous application seekingmodification/clarification of a judgment is not envisaged in law. Further,it is a settled legal principle that one cannot do indirectly what one cannotdo directly [“Quando aliquid prohibetur ex directo, prohibetur etper obliquum”].

13. Further, there is another legal principle which is applicable inthe present case. It is that where a power is given to do a certain thingin a certain way, the thing must be done in that way or not at all and thatother methods of performance are necessarily forbidden[7]. Hence, whena statute requires a particular thing to be done in a particular manner, itmust be done in that manner or not at all and other methods ofperformance are necessarily forbidden[8]. This Court too, has adoptedthis maxim[9]. This rule provides that an expressly laid down mode ofdoing something necessarily implies a prohibition on doing it in any otherway.

14. For the above reasons, there is no substance in themiscellaneous application.

15. The Miscellaneous Application is accordingly dismissed.

Ankit GyanMiscellaneous Application dismissed.

6 See Meghmala v G Narasimha Reddy, (2010) 8 SCC 383

7 Taylor vs Taylor, 1875 (1) Ch D 426

8 Nazir Ahmed vs King Emperor, (1936) L.R. 63 IndAp 372

9 Parbhani Transport Co-operative Society Ltd. vs The Regional Transport Authority,Aurangabad & Others, AIR 1960 SC 801

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