http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

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  That appeal was withdrawn by the appellant herein.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  The appeal is dismissed as withdrawn  with liberty to the appellant to approach the  High Court for appropriate relief by way of a  Review Petition.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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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.   

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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.