TMI Blog2021 (10) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. - Miscellaneous Application No 1572 of 2021 In Civil Appeal No 5041 of 2021 - - - Dated:- 4-10-2021 - HON'BLE DR. JUSTICE D.Y. CHANDRACHUD and HON'BLE MRS. JUSTICE B.V. NAGARATHNA Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NBC 2005; (iv) An effort was made to get around the violation of the minimum distance requirement by representing that T-1 together with T-16 and T-17 form one cluster of buildings in the same block. This representation was sought to be bolstered 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 is directly contrary to the appellant's stated position in its representations to the flat buyers as well as in the counter affidavit before the High Court. The suggestion that T-1, T- 16 and T-17 are part of one block is an after-thought and contrary to the record; (v) After realizing that the building block argument would not pass muster, another false case was sought to be set up with the argument that T-1 and T-17 are dead end sides, thereby obviating the need to comply with the minimum distance requirements. This argument is belied by the comprehensive report submitted by NBCC. The sides of T- 1 and T-17 facing each other are not dead end sides since both the sides have vents/egresses facing the other building; (vi) By constructing T-16 and T-17 without complying with the Building Regulations, the fire safety norms hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be borne by the appellant; (vi) The appellant shall within a period of two months refund to all existing flat purchasers in Apex and Ceyane (T-16 and T-17), other than those to whom refunds have already been made, all the amounts invested for the allotted flats together with interest at the rate of twelve per cent per annum payable with effect from the date of the respective deposits until the date of refund in terms of Part H of this judgment; and (vii) The appellant shall pay to the RWA costs quantified at Rs. 2 crore, to be paid in one month from the receipt of this judgment. 3 Mr Mukul Rohatgi, learned senior counsel appearing on behalf of the applicant submitted that: (I) The applicant does not seek a review of the judgment of this Court, which is the reason for filing an application for modification; (ii) The basis of the judgment of this Court is that: (a) The minimum distance required under the relevant Building Regulations has not been complied with; and (b) There is a violation of the requirement of maintaining a green area under the relevant Building Regulations; and (iii) The applicant would seek to meet the above two findings which have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to architectural and structural reason's duly recommended and verified by authorized Architect or Engineer after proper declaration and intimation to the owner: Provided that the promoter shall not make any alterations in the plans, specifications and other particulars without the previous consent of the intending purchaser, project Architect, project Engineer and obtaining the required permission of the prescribed sanctioning authority, and in no case he shall make such alterations as an not permissible in the building bye-laws. 154. Under clause (c) of sub-Section (1) of Section 4, a promoter who intends to sell an apartment is required to make a full disclosure in writing to an intending purchaser and to the competent authority of the plans and specifications approved or submitted for approval to the local authority, of the building of which the apartment is a part. Similarly, under clause (d), a disclosure has to be made in regard to the common areas and facilities in accordance with the approved lay-out plan or building plan. Once such a disclosure has been made, sub- Section (4) stipulates that upon the execution of a written agreement to sell, the promoter may mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant on 16 March 2005, the appellant was duty bound to comply with the provisions of the UP 1975 Act. By submitting before this Court that it is not bound by the terms of its agreement or the Act for want of a declaration under Section 2, the appellant is evidently attempting to take advantage of its own wrong. [ ] 157. In terms of the third revised plan which was sanctioned on 2 March 2012, the height of T-16 and T-17 was sought to be increased from twenty-four to forty (or thirty-nine, as the case may be) floors. As a result, the total number of flat purchasers would increase from 650 to 1500. The clear implication of this would be a reduction of the undivided interest of the existing purchasers in the common areas. As a matter of fad, it has also been submitted on behalf of the first respondent that the additional lease rent paid to NOIDA was also sought to be collected from the existing flat purchasers at the rate of Rs.190 per sq. foot. A statement to that effect was also contained in an affidavit filed before the High Court on behalf of the first respondent. The purchase of additional FAR by the appellant cannot be used to trample over the rights of the existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. 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 the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registrar of this Court in Sone Lal v. State of U.P. [(1982) 2 SCC 398] deprecating a similar practice.) 18. We, therefore, agree with the learned Solicitor General that the Court should not permit hearing of such an application for clarification , modification or recall if the application is in substance one for review. In that event, the Court could either reject the application straight away with or without costs or permit withdrawal with leave to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 : 2001 SCC (Cri) 915] and Devender Pal Singh v. State, NCT of Delhi [(2003) 2 SCC 501 : 2003 SCC (Cri) 572] notwithstanding the wider set of grounds for review in civil proceedings, it is limited to errors apparent on the face of the record in criminal proceedings. Such applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well. 7. In Delhi Admn. v. Gurdip Singh Uban [(2000) 7 SCC 296] 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 the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. The court should not permit hearing of such an application for clarification , modification or recall if the application is in substance a clever move for review. 10 More recently, another two-Judge Bench in Rashid Khan Pathan (Applicant) In Re: Vijay Kurle (supra) held as follows: 9. In a country governed by the rule of law, fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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