TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 1325
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....rt dated 31 August 2021. The reliefs which are sought in the Miscellaneous Application read thus: "(a) Modify the Judgment dated 31.08.2021...to the extent that the Applicant may demolish a part of tower T-17 as stipulated in paragraph 6 hereinabove; (b) Pass 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." 2 A Division Bench of the High Court of Judicature at Allahabad directed the demolition of Towers 16 and 17 by the third respondent, New Okhla Industrial Development Authority, in Emerald Court constructed by the applicant and situated on Plot No 4, Sector 93A, NOIDA. While affirming the judgment of the Division Bench, this Court has recorded the following conclusions in its judgment, which is reported as Supertech Limited vs Emerald Court Owner Resident Welfare Association and Others 2021 SCC OnLline SC 648: "185. To summarize our findings, the documentary materials referred to and analyzed in this judgment indicate that: (i) The land allotted to appellant under the original lease agreement and the supplementary lease deed constitute one plot; (ii) The land wh....
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....wers, individually or through the RWA, was a necessary requirement under the UP Apartments Act 2010 and UP 1975 Act before T-16 and T-17 could have been constructed, since they necessarily reduced the undivided interest of the individual flat owners in the common area by adding new flats and increasing the number from 650 to 1500; and (ix) The illegal construction of T-16 and T-17 has been achieved through acts of collusion between the officers of NOIDA and the appellant and its management. 186. For the reasons which we have indicated above, we have come to the conclusion that: (i) The order passed by the High Court for the demolition of Apex and Ceyane (T-16 and T-17) does not warrant interference and the direction for demolition issued by the High Court is affirmed; (ii) The work of demolition shall be carried out within a period of three months from the date of this judgment; (iii) The work of demolition shall be carried out by the appellant at its own cost under the supervision of the officials of NOIDA. In order to ensure that the work of demolition is carried out in a safe manner without affecting the existing pleadings, NOIDA shall consult its own experts and exper....
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....shid Khan Pathan (Applicant) - In Re: Vijay Kurle"). Apart from this, it has been submitted on behalf of the first respondent that the miscellaneous application proceeds on the misconceived basis that the only two objections which were noticed in the judgment of this Court to the legality of the two structures are the ones which have been submitted on behalf of the applicant (minimum distance and green area). In addition to the violation of the distance requirement and the requirement of a green area, it has been urged that this Court has, as a matter of fact, adverted to various other violations, including: (i) the non-compliance with the provision of the UP Apartments Act 2010 Act the "2010 Act"; and (ii) a reduction of the undivided interest of the flat purchasers in the common areas without their consent. On the non-compliance with the provisions of the 2010 Act, Mr Bhushan placed reliance on the following findings contained in paragraphs 153 and 154 of the judgment of this Court, namely: "153. Sub-Section (4) of Section 4 contains the following stipulations: "(4) After plans, specifications and other particulars specified in this section as sanctioned by the prescribed san....
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....un against the grain of the intent and purpose of the statute as well its express provisions." 6 Similarly, in respect of the reduction of the undivided interest in the common areas without the consent of the residents, reliance has been placed on the following findings of this Court: "145. However, the application of clause II(h) cannot be brushed away on this basis, particularly since the sentence imposing the application of the UP 1975 Act on the lessee/sublessee must bear some meaning and content. In this context, during the course of his submissions, Mr. Jayant Bhushan, learned Senior Counsel appearing on behalf of the RWA, has placed on the record a copy of the registered sub-lease executed on a tripartite basis by NOIDA, with the appellant as the lessee and the flat buyer as the sub-lessee. Some important provisions of this deed of sublease are: (i) Clause 16 contemplates that the occupant of the ground floor would be entitled to use a "sit-out area but the right of user shall be subject to the provisions of the UP Ownership Flat Act 1975"; (ii) Clause 17 recognizes the right to user of the occupant of the dwelling unit on the top floor, subject to the provisions of t....
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....s applications" or "applications for clarification/modification" in the guise of a review cannot be countenanced. In Gurdip Singh Uban (supra), Justice M Jagannadha Rao, speaking for a two-Judge Bench of this Court observed: "17. We next come to applications described as applications for "clarification", "modification" or "recall" of judgments or orders finally passed. We may point out that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued. Order XL Rule 3 states as follows: "3. Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party...." 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 of the Court and to preclude frivolous....
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....ance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order 40 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." 16. In Common Cause [(2004) 5 SCC 222] Lahoti, J. (as the learned Chief Justice then was) speaking for a Division Bench observed: "2. ... We are satisfied that the application does not seek any clarifications. It is an application seeking in substance a review of the judgment. By disguising the application as one for 'clarification', the attempt is to seek a hearing in the open court avoiding 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 be deprecated." 17. Recently in Zahira Habibullah Sheikh v. State of Gujarat [(2004) 5 SCC 3....