R.P. No.335/2013 in W.P.(C) No.494/1991

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 27^th February, 2017

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W.P.(C) 494/1991

KANORIA INDUSTRIES LIMTIED & ORS .... Petitioners

Through:

Mr. C.U. Singh, Sr. Adv. with Mr.

Anuj Sharma, Adv.

Versus

UNION OF INDIA & ORS

..... Respondents

Through:

Mr. Vikram Jetly, CGSC for UOI.

CORAM:-

HON’BLE MR. JUSTICE BADAR DURREZ AHMED

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

Review Petition No.335/2013

1. This order disposes of the preliminary objection to the very

maintainability of the review petition, on the ground that the Special Leave

Petition (SLP) preferred against the order of which review is sought having

been dismissed, this Court cannot review its judgment.

2. Review is sought of the judgment dated 13^th July, 2012 of dismissal of

the writ petition. The petitioners preferred SLP(C) No.31982/2012 against

the said judgment and which came up before the Supreme Court on 7^th

December, 2012, when the following order was passed:

R.P. No.335/2013 in W.P.(C) No.494/1991

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“UPON hearing counsel the Court made the following

The special leave petition is dismissed as withdrawn. ”

3. It is the case of the petitioners that the petitioners on 14^th January,

2013 filed an application for correction / rectification of an error in the

aforesaid order, averring that the liberty sought and granted had remained to

be noted therein, but the counsel for the petitioners was informed that the

application was considered and would not be listed for hearing.

4. We have heard the senior counsel for the review petitioners as well as

the counsel for the respondent Union of India (UOI) and have also perused

the written submissions filed on the said preliminary objection.

5. The senior counsel for the review petitioners has contended (i) that

once the Supreme Court permits withdrawal of a SLP without recording

reasons, it is as if no appeal was ever filed or entertained since in the

absence of grant of special leave, there is no appeal in existence; (ii) that

where a SLP is permitted to be withdrawn and equally when it is dismissed

in limine without recording reasons, the High Court‟s judgment neither

merges into any proceedings before the Supreme Court nor is it in any

manner affected by the filing and subsequent withdrawal or dismissal of the

SLP; (iii) that a three Judges Bench of the Supreme Court in Kunhayammed

Vs. State of Kerala (2000) 6 SCC 359 expressly concerned with the issue of

maintainability of a review petition after the dismissal in limine of the SLP

R.P. No.335/2013 in W.P.(C) No.494/1991

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and after noticing conflicting judgments held that a review petition can be

filed subsequent to the dismissal of an SLP inasmuch as at the stage of

dismissal of an SLP, there exists no appeal in the eyes of law as at that stage

the Supreme Court is exercising its discretionary jurisdiction and not the

appellate jurisdiction; only when the Supreme Court grants leave in SLP and

converts it into an appeal and the appeal thereafter is disposed of with or

without reasons, that the judgment of the Supreme Court merges with that of

the High Court and where-after review petition cannot be filed; (iv) that

Kunhayammed (supra) has been followed in National Housing Coop.

Society Vs. State of Rajasthan (2005) 12 SCC 149, Palani Roman Catholic

Mission Vs. S. Bagirathi Ammal (2009) 16 SCC 657, Gangadhara Palo Vs.

Revenue Divisional Officer (2011) 4 SCC 602, Bakshi Dev Raj Vs.

Sudheer Kumar (2011) 8 SCC 679, Bhakra Beas Management Board Vs.

Krishan Kumar Vij (2010) 8 SCC 701 and Sri Ram Builders Vs. State of

Madhya Pradesh (2014) 14 SCC 102; (v) that the earlier judgment also of a

three Judges Bench in A