2021 (10) TMI 1325 - SC - Indian Laws

Maintainability of miscellaneous application - seeking modification of the judgement - seeking modification of the judgement to the extent that the Applicant may demolish a part of tower T-17 - seeking an order of status quo in respect of Towers 16 17 in Emerald Court, Plot No. 4, Sector 93A, NOIDA till final orders are passed in the present application - HELD THAT - The attempt in the present miscellaneous application is clearly to seek a substantive modification of the judgment of this Court. Such an attempt is not permissible in a miscellaneous application. While Mr Mukul Rohatgi, learned senior counsel has relied upon the provisions of Order LV Rule 6 of the Supreme Court Rules 2013, what is contemplated therein is a saving of the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Order LV Rule 6 cannot be inverted to bypass the provisions for review in Order XLVII in the Supreme Court Rules 2013. The Miscellaneous application is an abuse of the process. The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather - A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly. Application dismissed.

Issues Involved:
1. Modification of the Supreme Court's judgment dated 31 August 2021.
2. Compliance with Building Regulations and fire safety norms.
3. Violation of the UP Apartments Act 2010.
4. Reduction of undivided interest of flat purchasers in common areas.
5. Collusion between NOIDA officials and the appellant.
6. Maintainability of the miscellaneous application.

Detailed Analysis:

1. Modification of the Supreme Court's Judgment:
The petitioner sought to modify the Supreme Court's judgment dated 31 August 2021, specifically requesting permission to demolish only a part of Tower 17 while retaining Tower 16. The Court noted that this request essentially sought a review of the original judgment, which is not permissible under the guise of a miscellaneous application.

2. Compliance with Building Regulations and Fire Safety Norms:
The Court found that the construction of Towers 16 and 17 violated the minimum distance requirements under the NBR 2006, NBR 2010, and NBC 2005. Additionally, the fire safety norms were not adhered to. The Court highlighted that the representation of T-1, T-16, and T-17 as part of one block was an afterthought and contrary to the appellant's earlier representations.

3. Violation of the UP Apartments Act 2010:
The judgment emphasized that the construction of Towers 16 and 17 without the consent of the flat owners violated the UP Apartments Act 2010. Specifically, the Court cited Sub-Section (4) of Section 4, which prohibits alterations in plans without the previous consent of the intending purchaser. The appellant failed to obtain such consent, thereby violating the Act.

4. Reduction of Undivided Interest of Flat Purchasers in Common Areas:
The Court found that the construction of Towers 16 and 17 reduced the undivided interest of the existing flat purchasers in the common areas without their consent. This was in direct violation of the UP Apartments Act 2010 and the UP 1975 Act. The Court noted that the number of flats increased from 650 to 1500, thereby significantly reducing the common areas available to the original flat owners.

5. Collusion Between NOIDA Officials and the Appellant:
The judgment highlighted acts of collusion between NOIDA officials and the appellant, which facilitated the illegal construction of Towers 16 and 17. This collusion was a significant factor in the Court's decision to affirm the demolition order.

6. Maintainability of the Miscellaneous Application:
The Court cited several precedents to establish that a miscellaneous application cannot be used to seek a substantive modification of a final judgment. The Court referred to the decisions in "Gurdip Singh Uban," "Ram Chandra Singh," and "Rashid Khan Pathan (Applicant) – In Re: Vijay Kurle," which collectively underscore that such applications are an abuse of the process of law. The Court reiterated that judicial pronouncements must have stability and finality, and cannot be subject to modification through miscellaneous applications.

Conclusion:
The Supreme Court dismissed the miscellaneous application, affirming that the original judgment for the demolition of Towers 16 and 17 stands. The Court emphasized the importance of adherence to legal procedures and the finality of judicial pronouncements, thereby rejecting the appellant's attempt to modify the judgment through a miscellaneous application.

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