Full Judgment Text
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CASE NO.:
Appeal (civil) 4575 of 2006
PETITIONER:
KUMARAN SILK TRADE (P) LTD
RESPONDENT:
DEVENDRA & ORS
DATE OF JUDGMENT: 19/10/2006
BENCH:
H.K. SEMA & P.K. BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
ARISING FROM SPECIAL LEAVE PETITION NO 17771 OF 2006
ARISING FROM CC NO.7240 OF 2006)
[with C.A. No. of 2006]
(D.NO.24316 OF 2006
AND
SPECIAL LEAVE PETITION NO. 17773 OF 2006
(CC NO.7585 OF 2006)
P.K. BALASUBRAMANYAN, J.
SLP(C) No 17771 of 2006 (CC No.7240 of 2006)
1. This petition for special leave to appeal seeks to
challenge the order of the High Court dated 7.9.2006 passed
in Review Application No.84 of 2005 and Review Sub-
Application No.366 of 2001 in Writ Appeal No.1171 of 2000.
An attempt has been made to indicate in the petition for
special leave to appeal that the order dated 3.8.2000 rendered
in Writ Appeal No.1171 of 2000 is also being appealed from.
Civil Appeal No\005\005\005 of 2006 (D.No.24316 of 2006)
2. This appeal purports to challenge the order of the
High Court dated 2.3.2001 passed in Contempt Application
No.560 of 2000. The application is filed with a delay of 1970
days in filing it. It may be noted that challenging the very
same order the appellant had filed Civil Appeal No.1837 of
2001. That appeal was withdrawn by the appellant herein.
The order dated 9.11.2001 reads as under:
"Learned senior counsel for the appellant
seeks leave of the Court to withdraw this
appeal. The appeal is dismissed as withdrawn
with liberty to the appellant to approach the
High Court for appropriate relief by way of a
Review Petition.
It is made clear that the order made by us on
23.3.2001 to maintain status quo, shall
continue for a period of one week from today.
What is attempted now is to file yet another appeal against the
very same order of the High Court invoking Section 19 of the
Contempt of Courts Act, 1971.
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SLP(C) No\005\005\005 of 2006 (CC No.7585 of 2006)
3. This petition for Special Leave to Appeal is sought to
be filed by seeking the permission of this Court by way of I.A.
No. 1 of 2006 for challenging the judgment rendered by the
High Court of Madras in Writ Petition Nos.18898 of 2000 and
other connected matters striking down the amendments
brought about to Section 113A of the Tamil Nadu Town and
Country Planning Act, 1971 by Amending Acts 31/2000,
17/2001 and 7/2002 and issuing other consequential and
incidental directions. The petitioner was not a party to any of
the writ petitions but submits that the petitioner is affected by
the decision rendered by the High Court in the writ petitions
and the possible rights the petitioner may have under the
amended provision stood annihilated by the decision.
4. The first of the petitions for Special Leave to Appeal,
as indicated, challenges the order of the High Court refusing to
review its earlier decision. No petition for special leave to
appeal under Article 136 of the Constitution of India could be
entertained against such an order. It has been so held by this
Court in Shankar Motiram Nale vs. Shiolalsing Gannusing
Rajput (1994 (2) SCC 753). The said decision has been
followed by another Bench of which one of us (H.K. Sema, J.)
was a party in Suseel Finance & Leasing Co. vs. M. Lata and
others (2004 (13) SCC 675) wherein this Court held that a
petition for special leave to appeal against an order dismissing
a petition for review is not maintainable. This Court
distinguished two cases cited in which the question itself had
not been adverted to or decided. Another Bench of this Court
in M.N. Haider and others vs. Kendriya Vidyalaya
Sangathan and others (2004 (13) SCC 677) again considered
the question and held that a petition for special leave to appeal
is not maintainable. This Court also held that once a petition
for special leave to appeal is found not maintainable, no order
can or should be passed thereon except an order of dismissal
of the same.
5. With respect, we see no reason to depart from the
position adopted in these decisions. All that was argued was
that the petitioner is also seeking to challenge the original
order by way of the petition for special leave to appeal. But it
is seen that against the original order dated 3.8.2000 a
petition for special leave to appeal, No.5333 of 2001 was filed
in this Court and that petition for special leave to appeal was
dismissed on 24.9.2001 also taking into account the conduct
of the petitioner in this Court. Since the petition for special
leave to appeal has already been dismissed by this Court, it is
no more open to the petitioner to seek to challenge the original
order in this Court again by invoking Article 136 of the
Constitution of India. In view of this it has to be held that
the first of the petitions for special leave to appeal, is not
maintainable.
6. We have already noticed that the Appeal attempted
to be filed seeks to challenge the order dated 2.3.2001 in
Contempt Application No.560 of 2000 and that against the
said decision the petitioner had already filed Civil Appeal
No.1837 of 2001 but had withdrawn the same reserving only
liberty in itself to seek a review of the decision of the High
Court. In view of this, it is not open to the petitioner to seek to
challenge the original order again in this Court after
withdrawing the earlier appeal, reserving only a liberty in itself
of seeking a review of the original order.
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7. Hence, the Civil Appeal sought to be filed has only
to be rejected.
8. In view of our conclusions that the first petition for
special leave to appeal and the appeal are not maintainable, it
is not appropriate for us to pass any other order therein as
has been observed by this Court in Suseel Finance & Leasing
Co. vs. M. Lata and others (supra). We may, however,
broadly observe that the petitioner having got a plan
sanctioned for construction of a basement, parking ground
floor and three floors had not only flouted the permission and
the plan in respect of the construction of those floors including
the not providing of any parking space, but even while the
litigation was pending and it was permitted to carry on the
construction in terms of the approved plan, had gone ahead
and constructed additional floors 4, 5 and 6 without any
regard to the Building bye-laws and other relevant enactments
and showing scant respect to the orders of Court. Such
conduct does not entitle the petitioner to any order by way of
indulgence or discretion from this Court. We have already
held that the petitioner is not entitled to any order as of right.
9. It was contended that in view of the order of this
Court in C.A. Nos. 4479 of 2004 and 4480 of 2004, the
petition for special leave to appeal and the appeal under
Section 19 of the Contempt of Courts Act must be held to be
maintainable. As we see it, all that this Court did was to
condone the delay on the part of the petitioner in filing one of
the Review Petitions in the circumstances of the case and
directing that the contentions sought to be raised in review
including the one based on the amendment to Section 113A of
the Town & Country Planning Act, 1971 may be considered.
Obviously, a decision on the Review Petitions themselves was
left to the High Court and the High Court has dismissed the
Review Petitions after considering them on merits. If such a
dismissal cannot be challenged under Article 136 of the
Constitution of India, nothing would turn upon the fact that
the Review Petitions were directed to be decided afresh on
merits by this Court. As a matter of fact at the earlier stage
this Court did not consider the question whether one of the
appeals against the order dismissing the Review Petition on
merits was maintainable. At best the order of remand and the
decision in Kunhayammed & Others Vs. State of Kerala &
Another [(2000) 6 SCC 359] would enable the petitioner to get
over the ratio of the three judges bench decision in Abbai
Maligai Partnership Firm & Another Vs. K. Santhakumaran
& Others [(1998) 7 SCC 386] that the seeking of a review after
the petition for special leave to appeal was dismissed without
reserving any liberty in the petitioner was an abuse of process.
10. Even otherwise we find no reason to interfere with
the order on the review petition in the Contempt Application in
exercise of our jurisdiction under Article 136 of the
Constitution of India on the facts and in the circumstances of
the case and especially taking note of the conduct of the
petitioner. Therefore, even assuming that the first petition for
special leave to appeal against the order refusing to review the
decision in Writ Appeal No. 1171 of 2000 is maintainable, no
relief can be granted to the petitioner therein in view of the
finality that would be attained by the order on the petition for
review of the order dated 2.3.2001 in Contempt Application
No. 560 of 2000 in view of our refusal to exercise our
discretionary jurisdiction in that case.
11. Thus, the petition for special leave to appeal and the
Appeal are liable to be rejected.
12. Coming to the second petition for special leave to
appeal with permission, we think that in view of our
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conclusion in the first petition for special leave to appeal, and
in the Appeal, there is no necessity for or justification in
granting any permission to the petitioner for challenging the
order of the High Court of Madras in the connected writ
petitions to which it is not a party. In view of our refusal to
entertain the challenge of the petitioner to the orders against
it, the petitioner and the authorities who are respondents, are
bound to implement the orders of the High Court to ensure
that the unauthorized constructions are removed and the
majesty of law is upheld. In view of this, we do not think it
necessary or proper to grant to the petitioner the permission
sought for. The conduct of the petitioner also does not
warrant it. We, therefore, decline permission to the petitioner
to challenge the decision of the High Court dated 23.8.2006 in
Writ Petition No.18898 of 2000 and the connected cases.
13. Hence, the Petitions for Special Leave to Appeal and
the Civil Appeal sought to be filed are rejected. The order of
status quo granted, is vacated.