Silk Trade (P) Ltd Vs. Devendra & Ors  Insc 692 (19 October 2006)
Sema & P.K. Balasubramanyan
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.
No 17771 of 2006 (CC No.7240 of 2006)
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.
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
Appeal No of 2006 (D.No.24316 of 2006)
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withdrawn by the appellant herein.
order dated 9.11.2001 reads as under:
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 The appeal is dismissed as withdrawn with liberty to the appellant to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.
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.
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.
No of 2006 (CC No.7585 of 2006)
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.
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.
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.
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.
Hence, the Civil Appeal sought to be filed has only to be rejected.
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.
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.
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 Another [(2000) 6
SCC 359] would enable the petitioner to get over the ratio of the three judges
bench decision in Abbai & 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.
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.
Thus, the petition for special leave to appeal and the Appeal are liable to be
Coming to the second petition for special leave to appeal with permission, we
think that in view of our 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
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.