M/s Rajasthan Art Emporium filed this complaint before this Commission in September, 1997 against Kuwait Airways and Daga Air Agents. when the goods are sent by Air the fact that time is essence of the contract automatically becomes a part of contract. The complainant has paid Air freight Rs.24.48 lakh equivalent to US $ 70000 whereas the sea fraught for the said cargo cannot be more than the US $ 7200. The complainant paid 10 times so that there should be timely delivery of the goods in question. Again the sea cargo would have taken 25 to 30 days but the Air cargo took more than 30 days.- the complainant is entitled to US $ 20 per kg. of the weight of the goods consigned under Warsaw Convention (as amended by the Hague Protocol) as incorporated in Rule 22(2) of Schedule II of the Carriage by Air Act, 1972, governing International Carriage.- The total weight was 26859.5 kg. After deduction of this weight the remaining comes of 25037.5 kg. It is entitled to compensation of 25037.5 kg. multiplied by US $ 20 each kg., the total comes to US $ 500750 that will exceed the sum of Rs.20,000,00/-. We, therefore, order that complainant will be entitled to have US $ 500740 or Rs.20,000,00/- whichever is lesser amount. Apart from that he will get 9% p.a. compensation with effect from 31.7.96 till its realization. We also award litigation charges and compensation for harassment and mental agony in the sum of Rs.5 lakh in favour of the complainant and against the opposite party No. 1. The said compensation to be paid within 3 months failing which it shall carry interest @9% p.a.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

The Umaid Bhawan Palace is one of the largest royal palaces in the world. (Photo credit: Wikipedia)

NEW DELHI

ORIGINAL PETITION NO. 229 OF 1997

M/s Rajasthan Art Emporium

Heritage House,

Umaid Bhawan Palace Road,

Rae Ka Bagh,

Jodhpur- 342006                                               ….. Complainant

Versus

1. Kuwait Airways

86, Veer Nariman Road

Churchgate

Mumbai – 400 020

2. Daga Air Agents

1, ACCAI Cargo Terminal

Near Nangal Dairy

New Delhi – 110 037                                     ….. Opp. Parties

BEFORE:

HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

      HON’BLE MR. VINAY KUMAR, MEMBER

For the Complainant    :   Mr. M. Malhotra, Advocate with

Ms. Madhurima Tatia, Advocate

For the Opp. Party No1 :  Mr. Dinesh Sabharwal, Advocate with

Ms. Preeti Mechan, Advocate

For the Opp. Party No.2:      Mr. Avijeet Bhujabal, Advocate

Pronounced on  1^st October, 2012

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      M/s Rajasthan Art Emporium filed this complaint before this Commission in September, 1997 against Kuwait Airways and Daga Air Agents.  This Commission decided the complaint on 21.5.2003.  The complaint was partly allowed.  Aggrieved by that order, the complainant approached Hon’ble Supreme Court.  The Hon’ble Supreme Court vide its order dated 15.3.2011, was pleased to hold as follows:

“We are not persuaded to agree with the submission.  Further, the National Commission did not commit any error in granting the amount of US$ 36440 towards the short delivery.  The relief so granted by the National Commission is based on appreciation of the material available on record.  Be that as it may, the respondent did not prefer any separate appeal challenging the correctness of the order of the National Commission in awarding the said amount towards the short delivery but preferred cross objections which in our considered opinion, are not maintainable.

For the aforesaid reasons, this appeal is allowed setting aside the finding recorded by the National Commission so far as it concerns the issue relating as to whether there was any delay in delivering the consignment.  The matter, is accordingly, remitted for fresh consideration by the National Commission.

We make it clear that we have not expressed any opinion, whatsoever, on the question as to whether there was any delay at all in delivering the consignment as the same is required to be gone into by the National Commission.”

2.      It is not out of place to mention here that after the receipt of the order from the Hon’ble Supreme Court, it was reported by the Registry that file is not available/traceable.  Thereafter, the file was reconstructed with the help and assistance of both the counsel.  For that, we are grateful to them in getting the file prepared.  It is also noticed that, whenever, the Hon’ble Supreme Court calls the record, in few cases, the file is not traced out after its remand.  The registry is directed to be careful and keep tabs on the file till its final disposal.

3.      The case of the complainant is as follows.  The complainant is exporter of all kinds of handicrafts articles with several countries including USA.  The complainant had received an order from M/s Williams Sonoma Inc. USA for supply of handicraft goods.  Those were to be sent on urgent basis.  The opposite parties above said assured the complainant that the goods will be delivered within seven days.  The complainant tendered three shipments to the opposite party No. 1 through opposite party No. 2.  The complainant was informed that three consignments as detailed in the complaint were to be delivered on 29.7.1996, 31.7.1996 and 31.7.1996.

4.      However, the said consignments did not reach the destination at Memphis (USA).  On enquiry, the opposite party No. 1 gave a revised delivery schedule which mentioned the date of delivery on 6.8.1996, 31.7.1996/3.8.1996 and 6.8.1996 in respect of all the three consignments.  However, the said goods did not reach the destination as per the revised delivery schedule also.  The buyer also informed the complainant that the goods had not reached them and displayed their annoyance.  They also warned the complainant that their future relationship was in jeopardy.  M/s Williams Sonoma Inc. is complainant’s one of the largest overseas buyer.  The opposite parties 1 and 2 were approached time and again but those efforts did not ring the bell.

5.      On 19.8.1996, the above said buyer expressed its anguish vide letter dated 23.8.1996 and informed the complainant as follows.

“Further more, Kuwait Airways can’t even tell us where the remaining cartons are.  Apparently, Lufthansa is responsible for the forwarding of Kuwait’s freight.  Once goods arrive in Chicago, Lufthansa arranges for their on forwarding to Memphis through Alliance.  Alliance delivers the goods to their CFS-LTD. Ltd. is a bonded warehouse in Memphis and the freight is held there until it clears Customs.”

It also transpired that 69 cartons were lying with Lufthansa.  The opposite party No. 1, by its letter dated 30.8.1996 addressed to opposite party No. 2 accepted the short delivery.  On 7.9.1996, the complainant made a modest claim against the opposite party for refund of full freight, leaving the other claim of loss of business etc.  In response to said request, the opposite party No. 2 confirmed having short delivered 104 cartons out of 288 cartons but did not state whether the other cartons had arrived at the destination.  Legal notice dated 4.8.1997 was sent but it evoked no response.

6.      Ultimately, this complaint was lodged with the prayer that the opposite party No. 1 be directed to refund a sum of Rs.24,48,345/- being the fair charges for the above said three consignments; pay a sum of Rs.20 lakh as compensation for loss of business and reputation, pay US$ 7042.00 being the value of the goods short delivered; pay interest @18% as well as cost of litigation.  This Commission vide its order dated 21^st May, 2003 was pleased to hold:

“On the basis of average weight of each piece, with regard to two AWB’s, we find that there has been short delivery of 1822 Kgs.  As per Rule 22 of Carriage by Air Act, multiplying this weight by US $ 20 per kgs., amount payable shall work out to US $36440 which becomes payable by the Ist OP to the complainant for loss of goods hence Ist OP is directed to pay this amount along with interest @9% from 1.10.1996 till the date of payment alongwith cost which we fix at Rs.10,000/-.”

7.      The opposite parties have contested this case.  The opposite party No. 1 has denied all the allegations.  According to it, there was no deficiency in service rendered by opposite party No. 1.  All reasonable care in performing their duties under the Contract of Carriage were discharged.  No specific instructions were given by the complainant with regard to the time by which the consignments had to reach its destination.  Time was not the essence of contract entered into between the parties.  Only 44 pieces were short delivered.

8.      The opposite party No. 2 while almost supporting the case of the complainant, made the following averments.  The opposite party No. 2 was a booking agent for Kuwait Airlines.  The relationship between the complainant and the opposite party No. 2 runs on good faith and the complainant and opposite party No. 2 are honouring their commitments.  It is admitted that the opposite parties were interested in sending their goods to M/s William Sonoma Inc. on urgent basis and this was the only reason the complainant wanted to send the goods by AIR.  The complainant was provided tentative schedule of arrival of the goods at Memphis by opposite party No. 1.  The goods were supposed to reach Memphis by 31.7.1998.  The opposite party No. 1 expressed its inability to deliver the goods as per tentative schedule provided to the complainant earlier, thus, a revised schedule was provided to the complainant.  Thereafter, the role of the opposite party No. 2 came to an end.  The goods were given in custody of Kuwait Airlines.  However, opposite party No. 2 was worried about the goods sent by the complainant and was providing all assistance to the complainant in getting information either from opposite party No. 1 or from agent in USA to know the fate about the packets sent by the complainant.

9.      We have heard the learned counsel for the parties and gone through their written synopses.  Learned counsel for the opposite party No.1 vehemently argued that there was no delay on the part of opposite party No. 1.    There was no express condition.  The case goes to reveal that time was not the essence of the contract.  The evidence on record goes to show that the goods arrived at the destination on 23.8.1996.  Thereafter, it took time in making the custom clearance.  Under these circumstances, no fault can be attributed on the part of opposite party No. 1.   The complainant has failed to prove that there was urgent need of these goods as the same were to be sold in an exhibition.  He argued that this is an afterthought and there is no evidence that the complainant or his buyer urgently needed them.

10.    Again, the goods were neither fragile nor of perishable nature.  Even when the revised delivery schedule was submitted there was no protest from the complainant.  The substantial portion of the goods arrived in time.  Therefore, there is no delay in delivery in such like circumstances as was held in Saddler Shoes Pvt. Ltd. vs. Air India 1995 (III) CTJ 904 CP (NCDRC).   He also referred to one judgment reported in S. Sundaram Pillai vs. V. R. Pattabiraman, AIR 1985 SC 582 where it was held that words “willful default” appears to indicate that default in order to be willful must be intentional, deliberate, calculated, and conscious, with full knowledge of legal consequences flowing therefrom which is not the present case.

11.    Again, any loss suffered by the consignee can be fastened upon the carrier by the consigner unless or until carrier has been informed and the same risks are incorporated as condition before entering into contract of carriage and carrier was being expressly been communicated to have prior knowledge of any alleged loss of profit or business association between consignor and consignee in case of delay, which is not the present case.

12.    We have marshalled the evidence on record and we are unable to locate any substance in the arguments urged by learned counsel for opposite party No. 1.  The arrival schedule of goods is mentioned in the fax message sent by Daga Air Agents which clearly goes to show that the goods arrived at Chicago Memphis on 29.7.1996, 31.7.1996, 31.7.1996.  Since the said consignment did not reach the destination, M/s Rajasthan Art Emporium wrote to the opposite party that on 7.8.1996, they received a message from buying agent of the consignee on 3.8.1996, wherein he informed that they were surprised to inform that none of the shipments scheduled had reached Chicago till 3.8.1996 and all the shipments were lying at Kuwait.  They were provided with revised flight schedule wherein the consignments were to reach subsequently.  Other shipments did not reach the destination even as per revised flight schedule according to which the goods were to reach the destination on 6.8.1996

13.    On 30.8.1996, Kuwait Airlines informed the opposite party No. 2 that the goods were received at Memphis and US custom authorities will clear the shipments and all the shipments will be recounted at the agents bounded warehouse.  The goods received on 30.8.1996 were only in part as also admitted by opposite party No. 1 by its letter dated 24.9.1996.

14.    It is also clear that the buyer was annoyed due to the above said delay.  A telex message dated 13.8.1996 has been placed on record.  The same is reproduced as follows:

“RE: Rajasthan All Shipments

Please convey to Mr. Singhal my disappointment with his performance.  We still have not received the goods which were aired via Kuwait Airways almost one month ago.  Now, everything is considerably later than promised when he was in San Francisco.   Our future relationship is in serious jeopardy.”

    ( EMPHASIS SUPPLIED )

15.    It is clear that the buyer was the largest customer of the complainant.  The said thing is apparent from the graph showing sales to Willioms Sanoma Inc. USA.  Relevant portion is reproduced as under:-

YEAR			FOR VALUE
			AMOUNT IN Rs.
1992-93			5459062
1993-94			31014056
1994-95			39251245
1995-96			59378597
1996-97			48491406
1997-98			5250736

16.    The complainant also placed on record the certificate of B. K. Boob, B.Com. F.C.A., Chartered Accountants, Member Ship No. 8272, which has certified the above said details as follows.

“Details of yearwise sales to M/s William Sonoma Inc. USA.

FINANCIAL YEAR			F.O.B. VALUE
			AMOUNT IN Rs.
1992-93			54,59,062.00
1993-94			3,10,14,056.00
1994-95			3,92,51,245.00
1995-96			5,93,78,597.00
1996-97			4,84,91,406.00
1997-98			52,50,736.00

17.    It is thus clear that the complainant had suffered a huge loss due to this transaction.  The record reveals that the goods were received on 3.9.1996.

18.    Section 19 of the Carriage by Air Act 1972 make provision for compensation in case of damaged delivery of goods.  Section 19 runs as follows:

“19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.”

Section 13(3) of the same Act further provides as under:-

“(3) If the carrier admits the loss of the goods, or if the goods have not arrived at the expiration of seven days after the date on which they ought to have arrived, the consignee is entitled to put into force against the carrier the rights which flow from the contract of carriage.”

19.    Moreover, the following rules form part of Air Ticket.  Provisions 4 and 6 of the Air Ticket are relevant and are reproduced hereunder:-

“4. Except as otherwise provided in carrier’s tariffs or condition of carriage, in carriage to which the Warsaw Convention does not apply carrier’s liability shall not exceed USD 20.00 or the equivalent per kilogram of goods lost, damaged or delayed, unless a higher value is declared by the shipper and a supplementary charge paid.

6. In cases of loss, damage or delay of part of the consignment, the weight to be taken into account in determining carrier’s limit of liability shall be only the weight of the package or packages concerned.”

20.    All these facts and circumstances clearly establish negligence, inaction and passivity on the part of the opposite party No. 1.  The question of willful default does not arise.  When the goods are not delivered within 7 days, the fault certainly lies at the door of opposite party No. 1.  In view of the rules cited above and the fact the opposite party No. 2 itself admits that the goods were to be sent on urgent basis, the question whether the time was the essence of the contract pales into insignificance.  Even if there was no time fixed for reaching the destination, yet the buyers desire to have the goods immediately as is apparent from the above said buyer’s letter.  In foreign countries, you have buyers of a thing for some particular time/season.  If they do not get the goods, the buyers mostly change their view and do not wait for the goods for a long time.

21.    In view of the above discussion, three aspects are to be considered, firstly, buyer was annoyed and he stopped giving sufficient orders to the complainant.  The complainant suffered huge loss because of lack of orders.  Secondly, opposite party No. 1 is liable to pay as per rules quoted above. Thirdly, it has to be borne in mind that the goods which already reached their, became useless in absence of their counter parts, which were delayed or due to the short delivery or were lost.

22.    It has to be presumed that when the goods are sent by Air the fact that time is essence of the contract automatically becomes a part of contract.  The complainant has paid Air freight Rs.24.48 lakh equivalent to US $ 70000 whereas the sea fraught for the said cargo cannot be more than the US $ 7200.  The complainant paid 10 times so that there should be timely delivery of the goods in question.  Again the sea cargo would have taken 25 to 30 days but the Air cargo took more than 30 days.

23.    Learned counsel for the complainant submitted that in Sarkar on evidence (15Edn. 1999) at P. 1724 under the heading ‘Negligence’ it is stated:-

“As a rule negligence is not to be presumed; it is rather to be presumed that ordinary care has been used.  The rule goes not apply in the case of common carriers, who, on grounds of public policy, are presumed to have been negligent of goods entrusted to their care have been lost or damaged or delayed in delivery (Ross v. Hill, Jones S15).  The law will conclusively presume that the carrier has been guilty of a negligence unless he can show that the loss or damage was occasioned by what is technically called the ‘act of God’, or by ‘King’s enemies.”

24.    The learned counsel for the complainant submitted that the complainant is entitled to US $ 20 per kg. of the weight of the goods consigned under Warsaw Convention (as amended by the Hague Protocol) as incorporated in Rule 22(2) of Schedule II of the Carriage by Air Act, 1972, governing International Carriage.  Admittedly the total weight of the three consignment was 26859.5 kg.  Accordingly, complainant is entitled to damages @ $20 per kg.  He also cited a case titled ‘The Manager, Air India Ltd. & Ors. V. M/s India Ever Bright Shipping & Trading Co. reported in II (2001) CPJ 32(NC) the full bench of this Hon’ble Commission held that the complainant would be entitled to US $ 20 per kg. of the weight of goods consigned for not delivering the consignment on time.

25.    We see some force in this argument.    The record reveals that the complainant has already received a compensation of 1822 kg.  It would not be proper to pay it the double compensation for the same goods.  It cannot have the benefit of both the worlds.  The total weight was 26859.5 kg.   After deduction of this weight the remaining comes of 25037.5 kg.  It is entitled to compensation of 25037.5 kg. multiplied by US $ 20 each kg., the total comes to US $ 500750 that will exceed the sum of Rs.20,000,00/-.  We, therefore, order that complainant will be entitled to have US $ 500740 or Rs.20,000,00/- whichever is lesser amount.  Apart from that he will get 9% p.a. compensation with effect from 31.7.96 till its realization. We also award litigation charges and compensation for harassment and mental agony in the sum of Rs.5 lakh in favour of the complainant and against the opposite party No. 1.  The said compensation to be paid within 3 months failing which it shall carry interest @9% p.a. 

26.    The complaint against opposite party No. 2 stands dismissed.  The complaint stands disposed of.

..…………Sd/-………..………

     (J.M. MALIK, J.)

      PRESIDING MEMBER

                                                              

  ……………Sd/-….……………

                                                        (VINAY KUMAR)

                                                                            MEMBER

Naresh/Reserved

It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal.

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                 CRIMINAL APPEAL NO. 1572            OF 2012
             (Arising out of S.L.P. (Criminal) No. 6468 of 2012)

Manubhai Ratilal Patel Tr. Ushaben               ... Appellant
                                   Versus
State of Gujarat & Ors.                          ... Respondents









                               J U D G M E N T

Dipak Misra, J.



      Leave granted.


2.    The appellant was an accused in FIR No. I-CR No. 56/12  registered  at
Pethapur Police Station on 20th of June, 2012 for offences punishable  under
Sections 467, 468, 471, 409 and 114 of the  Indian  Penal  Code  (for  short
‘the IPC’).  Challenging the registration of the FIR and the  investigation,
the accused-appellant (hereinafter referred to as “the  accused”)  preferred
Criminal Miscellaneous Application No. 10303  of  2012  on  11.7.2012  under
Section 482 of the Code of Criminal Procedure (for brevity  “the  Code”)  in
the High Court of Gujarat at Ahmedabad for quashing of the  FIR.   A  prayer
was  also  made  for  stay  of  further  proceedings  in  respect   of   the
investigation of I-CR No. 56/12.


3.    The unfurling of factual scenario further shows that  the  matter  was
taken up on 17.7.2012 and  the  High  Court  issued  notice  and  fixed  the
returnable date on 7.8.2012 and allowed  the  interim  relief  in  terms  of
prayer No. (C) which pertained to stay of further proceedings in respect  of
the investigation.


4.    The exposition of facts reveals  that  the  accused  was  arrested  on
16.7.2012 and produced before the learned Judicial Magistrate  First  Class,
Gandhinagar at 4.00 p.m. on 17.7.2012.  The police prayed for remand of  the
accused to police custody which was granted by the learned  Magistrate  upto
2.00 p.m. on 19.7.2012.  On 18.7.2012, it was brought to the notice  of  the
concerned investigation agency about the  stay  order  passed  by  the  High
Court on 17.7.2012 and prayer was made  not  to  proceed  further  with  the
investigation in obedience to the order passed by the  High  Court.   It  is
pertinent to note that an application for regular bail under Section 439  of
the Code was filed on 19.7.2012 before the learned Magistrate.   Apart  from
other grounds, it was highlighted that when a petition  was  pending  before
the High Court for quashment of the First  Information  Report  and  a  stay
order had been passed pertaining to  further  investigation,  the  detention
was illegal and hence, the accused was entitled to be admitted to bail.


5.    The learned Magistrate dwelled upon the allegations made  against  the
accused and declined to release him on bail regard being had to  the  nature
of offences.  Dealing with the order passed by the High Court,  he  observed
that the order passed by  the  Hon’ble  High  Court  pertained  to  stay  of
further investigation although no investigation was required to  be  carried
out during judicial custody and, as the accused was involved  in  commission
of grievous offences, it would not be just to enlarge him on bail.


6.     Being  aggrieved  by  the  aforesaid  order,  the  accused  preferred
Criminal Miscellaneous Application No. 539 of 2012 in the Court  of  learned
Sessions Judge, Gandhinagar and also prayed for grant of interim bail.   The
learned Sessions Judge rejected the prayer for grant  of  interim  bail  and
fixed the main application for hearing on 24.7.2012.


7.    Dissatisfied with  the  aforesaid  orders,  the  accused  preferred  a
habeas corpus petition before the High Court of Gujarat forming the  subject
matter of Special Criminal Application No. 2207 of 2012.  It  was  contended
before the High Court that since the investigation was stayed  by  the  High
Court in exercise of power under  Section  482  of  the  Code,  the  learned
Magistrate could not have exercised power under Section 167(2) of  the  Code
remanding the  accused  either  to  police  or  judicial  custody.   It  was
submitted that the power of the Magistrate remanding the accused to  custody
during the course of investigation stood  eclipsed  by  the  order  of  stay
passed by the High  Court  and,  therefore,  the  detention  was  absolutely
illegal and non est in law.  It was also urged that as the detention of  the
accused was unlawful, a writ of habeas corpus would lie and he  deserved  to
be set at liberty forthwith as long as the stay order was operative.


8.    The aforesaid stand put forth by the learned counsel was  combated  by
the State contending, inter alia, that it could not be said that  there  had
been no investigation as arrest had already taken place and hence,  stay  of
further investigation would not nullify the order of remand, be it a  remand
to police custody or judicial custody.  Highlighting  the  said  stance,  it
was  propounded  that  the  order  of  remand  could  not  be   treated   as
impermissible warranting interference by  the  High  Court  in  exercise  of
jurisdiction of writ of habeas corpus.


9.    The High Court adverted to the chronology of events and held thus: -


           “From the chronology of events as emerging from the petition  as
           well as affidavit-in-reply, it is not in dispute that the arrest
           of the petitioner  was  effected  on  16/07/2012.   Whereas  the
           quashing petition came to be filed on 17/07/2012  and  the  stay
           order was granted on 17/07/2012 at  about  04.30  p.m.  and  the
           remand of the accused – petitioner to police custody was granted
           on 17/07/2012  till  02.00  p.m.  of  19/07/2012.   It  is  also
           required to be noted that order passed by learned JMFC  has  not
           been challenged anywhere and has attained finality.  Thereafter,
           the order passed by this Court in CRMA No.  10303  of  2012  has
           been served on the Police authority on 17/07/2012 at 09.30  p.m.
           On the next day i.e. on 18/07/2012,  the  Investigating  Officer
           seems to have informed learned JMFC about the  stay  granted  by
           the High Court and has attended High Court  in  connection  with
           anticipatory bail application preferred by the  petitioner.   It
           is also not the case of the petitioner that after the service of
           order of stay, any other investigation has been carried  by  the
           Investigating  Officer.   On  19/07/2012  itself  the  applicant
           preferred an application for bail under Section 437 of the Code,
           which came to be  rejected  and  the  accused  was  remanded  to
           judicial custody and as such the  petitioner  –  accused  is  in
           judicial custody as on now.  It is pertinent to  note  that  the
           learned JMFC  has  rightly  observed  in  his  order  upon  bail
           application that the High Court has stayed further investigation
           only.”





10.   After so stating, the High Court dealt  with  the  issue  whether  the
custody of the accused could be said to be illegal.  It was  opined  by  the
High Court that it was not possible  to  accept  the  stand  that  once  the
investigation  was  stayed,  there  could  not   have   been   exercise   of
jurisdiction under Section 167(2) of the Code,  for  stay  of  investigation
would not eradicate the FIR or  the  investigation  that  had  been  already
carried out pursuant to lodging of FIR.  It was further opined that  it  was
only an ad-interim order and if the stay order would eventually  be  vacated
or the quashing petition would not be entertained, the  investigation  would
be continued.  The High Court  further  observed  that  solely  because  the
investigation was stayed, it would not be apposite to say that there was  no
investigation and the order passed by the learned Magistrate was flawed.


11.   Addressing to the issue of remand, the  High  Court  opined  that  the
order of remand of the accused to custody could not be said to be a part  of
the investigation and hence, the said order was not  in  conflict  with  the
order passed under  Section  482  of  the  Code  of  Criminal  Procedure  in
Criminal Miscellaneous Application No. 10303 of 2012.    Reference was  made
to Section 2(h) of the Code which defines ‘investigation’ and it  was  ruled
that the order passed by the learned Magistrate could not  be  termed  as  a
part of the investigation.  Eventually, the High Court opined that it  could
not be held that when the order was passed by the learned  JMFC,  there  was
no investigation and, therefore, there was no force  in  the  argument  that
the learned JMFC could not have remanded the accused in such a situation  in
exercise of powers under Section 167 of the Code, and secondly, the  act  of
the learned JMFC remanding the accused to custody is a  judicial  act  which
cannot be termed as part of the investigation and cannot  be  considered  to
have been covered under the stay granted by  the  High  Court  in  CRMA  No.
10303 of 2012.  It was further held that illegal or  unauthorised  detention
or confinement is a sine qua non for entertaining a  petition  for  writ  of
habeas corpus and the custody of the petitioner  being  in  pursuance  of  a
judicial act, it could not be termed as illegal.


12.   At this juncture, it is seemly to note that the appellant had  knocked
at the doors of the High Court in a habeas corpus  petition.   The  writ  of
habeas corpus has always  been  given  due  signification  as  an  effective
method to ensure  release  of  the  detained  person  from  prison.   In  P.
Ramanatha  Aiyar’s  Law  Lexicon  (1997  edition),  while  defining  “habeas
corpus”, apart from other aspects, the following has been stated: -


           “The ancient prerogative writ of habeas corpus  takes  its  name
           from the two mandatory words habeas. corpus, which it  contained
           at the time when it, in common with all forms of legal  process,
           was framed in Latin.  The general purpose  of  these  writs,  as
           their name  indicates,  was  to  obtain  the  production  of  an
           individual.”


13.   In Secretary of State for Home Affairs  v.  O’Brien[1],  it  has  been
observed  that  it  is  perhaps  the  most  important  writ  known  to   the
constitutional law of England affording as it does a  swift  and  imperative
remedy in  all  cases  of  illegal  restraint  or  confinement.   It  is  of
immemorial antiquity, an instance of its use occurring in the  thirty  third
year of Edward I.  It has through the ages been jealously maintained by  the
courts of law as a check  upon  the  illegal  usurpation  of  power  by  the
executive at the cost of liege.


14.   In  Ranjit  Singh  v.  The  State  of  Pepsu  (now  Punjab)[2],  after
referring to Greene v. Secretary of States for Home Affairs[3],  this  Court
observed that the whole object of proceedings for a writ  of  habeas  corpus
is to make them expeditious, to keep  them  as  free  from  technicality  as
possible and to keep them as simple as  possible.   The  Bench  quoted  Lord
Wright who, in Greene’s case, had stated thus:


        “The incalculable value of Habeas Corpus is  that  it  enables  the
        immediate determination of the right to the appellant’s freedom.”


      Emphasis was laid  on  the  satisfaction  of  the  court  relating  to
justifiability and legality of the custody.


15.   In Kanu Sanyal v. District Magistrate, Darjeeling  and  others[4],  it
was laid down that the writ of habeas corpus deals  with  the  machinery  of
justice, not the substantive law.  The object  of  the  writ  is  to  secure
release of a person who is illegally restrained of his liberty.


16.   Speaking about the importance of the writ of  habeas  corpus,  a  two-
Judge Bench, in Ummu Sabeena v. State of Kerala and others[5], has  observed
as follows: -


           “…the writ of habeas corpus is the oldest writ  evolved  by  the
           common law of England to protect the individual liberty  against
           its invasion in the hands of the executive or may be also at the
           instance of private persons.  This principle  of  habeas  corpus
           has been incorporated in our constitutional law and  we  are  of
           the opinion that in  a  democratic  republic  like  India  where
           Judges function under a written Constitution  and  which  has  a
           chapter on fundamental rights, to protect individual liberty the
           Judges owe a duty to safeguard  the  liberty  not  only  of  the
           citizens but also of all persons within the territory of  India.
           The most effective way of doing the same is by way  of  exercise
           of power by the Court by issuing a writ of habeas corpus.”


In the said case, a reference was made to Halsbury’s Laws  of  England,  4th
Edn. Vol. 11, para 1454 to highlight that a writ of habeas corpus is a  writ
of highest  constitutional  importance  being  a  remedy  available  to  the
lowliest citizen against the most powerful authority.


17.   Having stated about the significance of the writ of habeas  corpus  as
a weapon for protection of individual liberty through judicial  process,  it
is condign to refer to certain authorities to appreciate how this Court  has
dwelled upon and expressed its views  pertaining  to  the  legality  of  the
order of detention, especially that ensuing from  the  order  of  the  court
when an accused is produced in custody before  a  Magistrate  after  arrest.
It is also worthy to note that the opinion of this  Court  relating  to  the
relevant stage of delineation for the purpose of adjudicating  the  legality
of the order of detention is of immense importance for the present case.


18.   In Col. Dr. B. Ramachandra Rao v. The State of Orissa  and  others[6],
it was opined that a writ of habeas corpus is not granted where a person  is
committed to jail custody by a competent  court  by  an  order  which  prima
facie does not appear to be without jurisdiction or wholly illegal.


19.   In Re. Madhu Limaye and others[7], the Court referred to the  decision
in Ram Narayan Singh v. State of Delhi[8] and opined  that  the  court  must
have regard to the legality or otherwise of the detention  at  the  time  of
return.


20.    In  Kanu  Sanyal  v.  Dist.  Magistrate,  Darjeeling  and  others[9],
contentions were raised to the effect that  the  initial  detention  of  the
petitioner in District Jail, Darjeeling was illegal because he was  detained
without being informed of the grounds  for  his  arrest  as  required  under
clause (i) of Article 22 of the Constitution  and  that  the  Sub-Divisional
Magistrate, Darjeeling had no jurisdiction to try and, therefore,  he  could
not authorise the detention of the  petitioner  under  Section  167  of  the
Code.  The two-Judge Bench adverted to the aforesaid  aspects  and  referred
to the earlier decisions in Naranjan  Singh  v.  State  of  Punjab[10],  Ram
Narain Singh (supra), B.R. Rao (Supra) and Talib Hussain v. State  of  Jammu
and Kashmir[11] and noted that three views had been taken by this  Court  at
various  times  pertaining  to  the   relevant   date   to   determine   the
justifiability of the detention and opined as follows:-
           “This Court speaking through Wanchoo, J. (as he then  was)  said
           in A.K. Gopalan v. Government of India; [(1966) 2 SCR 427 = (AIR
           1966 SC 816)].  “It is well settled that  in  dealing  with  the
           petition for habeas corpus the  Court  is  to  see  whether  the
           detention on the date on which the application is  made  to  the
           Court is legal, if nothing more has intervened between the  date
           of the application and the date of the hearing”.  In  two  early
           decisions of this Court,  however,  namely,  Naranjan  Singh  v.
           State of Punjab, [(1952 SCR 395) = AIR 1952  SC  106)]  and  Ram
           Narain Singh v. State of Delhi, [(1953 SCR 652) = (AIR  1953  SC
           277)] a slightly different view was expressed and that view  was
           reiterated by this Court in B.R. Rao v.  State  of  Orissa  (AIR
           1971 SC 2197) where it was said; “In habeas corpus the Court  is
           to have regard to the legality or otherwise of the detention  at
           the time of the return and not with reference to the institution
           of the proceedings.”  And yet in another decision of this  Court
           in Talib Husain v. State of Jammu & Kashmir (AIR 1971 SC 62) Mr.
           Justice Dua, sitting  as  a  Single  Judge,  presumably  in  the
           vacation, observed that “in habeas corpus proceedings the  Court
           has to consider the legality of the detention on the date of the
           hearing.”  Of these three views taken by the Court at  different
           times, the second appears to be more in consonance with the  law
           and practice in England and may be taken as having received  the
           largest measure of approval in India, though the third view also
           cannot be discarded as incorrect, because an inquiry whether the
           detention is legal  or  not  at  the  date  of  hearing  of  the
           application for habeas corpus would be quite relevant,  for  the
           simple reason that if on that date the detention is  legal,  the
           Court cannot order release of the person detained by  issuing  a
           writ of habeas corpus.  But, for  the  purpose  of  the  present
           case, it is immaterial which of these three views is accepted as
           correct, for it is clear that, whichever be  the  correct  view,
           the earliest date  with  reference  to  which  the  legality  of
           detention  may  be  examined  is  the  date  of  filing  of  the
           application for habeas corpus and the Court is not, to quote the
           words of Mr. Justice Dua in AIR 1971 SC 2197 “concerned  with  a
           date prior to the initiation of the proceedings for  a  writ  of
           habeas corpus”.”

                                                         (emphasis supplied)


      After so stating, the Bench opined that for adjudication in  the  said
case, it was immaterial which of the three views  was  accepted  as  correct
but eventually referred to paragraph 7 in  the  case  of  B.R.  Rao  (supra)
wherein the Court had expressed the view in the following manner: -


           “….in habeas corpus proceedings the court is to have  regard  to
           the legality or otherwise of the detention at the  time  of  the
           return  and  not  with  reference  to  the  institution  of  the
           proceedings.”


      Eventually, the Bench ruled thus: -


           “The production of the  petitioner  before  the  Special  Judge,
           Vizakhapatnam, could not, therefore, be said to be  illegal  and
           his subsequent detention in  the  Central  Jail,  Vizakhapatnam,
           pursuant to the orders made by the Special Judge, Vizakhapatnam,
           pending trial must be held to be valid.  This Court pointed  out
           in AIR 1971 SC 2197 that a  writ  of  habeas  corpus  cannot  be
           granted “where a person  is  committed  to  Jail  custody  by  a
           competent court by an order which prima facie does not appear to
           be without jurisdiction or wholly illegal”.”





21.   The principle laid down in Kanu Sanyal  (supra),  thus,  is  that  any
infirmity in the detention of the petitioner at  the  initial  stage  cannot
invalidate the subsequent detention and the same has to  be  judged  on  its
own merits.


22.   At this juncture, we may profitably refer to  the  Constitution  Bench
decision in  Sanjay Dutt v. State through C.B.I.,  Bombay  (II)[12]  wherein
it has been opined thus: -


           “It is settled by Constitution Bench decisions that  a  petition
           seeking the writ of habeas corpus on the ground of absence of  a
           valid order of remand or detention of the  accused,  has  to  be
           dismissed, if on the date of return of the rule, the custody  or
           detention is on the basis of a valid order.”


23.   Keeping in view the aforesaid concepts with  regard  to  the  writ  of
habeas corpus, especially pertaining to  an  order  passed  by  the  learned
Magistrate at the time of production of the  accused,  it  is  necessary  to
advert to the schematic  postulates  under  the  Code  relating  to  remand.
There are two provisions  in  the  Code  which  provide  for  remand,  i.e.,
Sections 167 and 309.   The  Magistrate  has  the  authority  under  Section
167(2) of the Code to direct for detention of the accused in  such  custody,
i.e., police or judicial, if he thinks that further detention is  necessary.



24.   The act of directing remand of an accused is fundamentally a  judicial
function.  The Magistrate does not act in executive capacity while  ordering
the detention of an accused.  While exercising  this  judicial  act,  it  is
obligatory on the part of the Magistrate  to  satisfy  himself  whether  the
materials  placed  before  him  justify  such  a  remand  or,  to   put   it
differently, whether there exist reasonable grounds to  commit  the  accused
to custody and extend his remand.   The  purpose  of  remand  as  postulated
under Section 167 is  that  investigation  cannot  be  completed  within  24
hours.  It  enables  the  Magistrate  to  see  that  the  remand  is  really
necessary.  This requires the investigating agency to send  the  case  diary
along with the remand report so  that  the  Magistrate  can  appreciate  the
factual scenario and apply his mind whether there is a  warrant  for  police
remand or justification for judicial remand or there  is  no  need  for  any
remand at all.  It is obligatory on the part of the Magistrate to apply  his
mind and not to pass an order of remand automatically  or  in  a  mechanical
manner.  It is apt to note that in Madhu Limaye (supra), it has been  stated
that once it is shown that the arrests made  by  the  police  officers  were
illegal, it was necessary for the State to establish that at  the  stage  of
remand, the Magistrate directed detention in  jail  custody  after  applying
his mind to all relevant matters.


25.   In Central Bureau of Investigation, Special Investigation Cell-I,  New
Delhi v. Anupam J. Kulkarni[13], it has been stated that  where  an  accused
is placed in police custody for the maximum period of fifteen  days  allowed
under law either pursuant to a single order  of  remand  or  more  than  one
order, when the remand is restricted on each occasion to a lesser number  of
days, the further  detention  of  the  accused,  if  warranted,  has  to  be
necessarily to judicial custody and not otherwise.  Thus,  the  exercise  of
jurisdiction clearly shows that the Magistrate performs a judicial act.


26.   Presently, we shall advert to the concept of investigation.  The  term
“investigation” has been defined in Section 2(h) of the Code.  It  reads  as
follows: -


           “Investigation” includes all the proceedings under this Code for
           the collection of evidence conducted by a police officer  or  by
           any person (other than a Magistrate)  who  is  authorised  by  a
           Magistrate in this behalf;”


27.    A  three-Judge  Bench  in  H.N.  Rishbud  and  another  v.  State  of
Delhi[14], while dealing with “investigation”, has  stated  that  under  the
Code,  investigation  consists  generally  of  the  following   steps:   (1)
Proceeding to the spot, (2) Ascertainment of the facts and circumstances  of
the  case,  (3)  Discovery  and  arrest  of  the  suspected  offender,   (4)
Collection of evidence relating to the commission of the offence  which  may
consist of (a) the examination of various persons  (including  the  accused)
and the reduction of their statements into writing, if  the  officer  thinks
fit, (b) the search of places or seizure of things considered necessary  for
the investigation and to be produced at the trial, and (5) Formation of  the
opinion as to whether on the material collected, there is a  case  to  place
the accused before a Magistrate for trial and, if so, taking  the  necessary
steps for the same by the filing of a charge-sheet under Section 173.


28.   In Adri Dharan Das v. State of West Bengal[15],  it  has  been  opined
that arrest is a part of the process of  investigation  intended  to  secure
several  purposes.   The  accused  may  have  to  be  questioned  in  detail
regarding  the  various  facets  of  motive,  preparation,  commission   and
aftermath of the crime and the connection of other persons, if any,  in  the
crime.


29.   In Niranjan Singh v. State of Uttar  Pradesh[16],  it  has  been  laid
down that investigation is not an inquiry or  trial  before  the  court  and
that is  why  the  legislature  did  not  contemplate  any  irregularity  in
investigation as of sufficient importance to vitiate or otherwise  form  any
infirmity in the inquiry or trial.


30.   In S.N. Sharma v. Bipen Kumar Tiwari[17], it has  been  observed  that
the power of police to investigate is independent  of  any  control  by  the
Magistrate.


31.   In State of Bihar v. J.A.C.  Saldanha  and  others[18],  it  has  been
observed that there is a clear cut and well demarcated  sphere  of  activity
in  the  field  of  crime  detection  and  crime  punishment   and   further
investigation of an offence  is  the  field  exclusively  reserved  for  the
executive in the police department.


32.   Coming to the case at hand, it is evincible that the arrest had  taken
place a day prior to the passing of order of  stay.   It  is  also  manifest
that the order  of  remand  was  passed  by  the  learned  Magistrate  after
considering the allegations in the FIR but not in a  routine  or  mechanical
manner.  It has to be borne in mind that the effect  of  the  order  of  the
High Court regarding stay of investigation could only have  bearing  on  the
action of the  investigating  agency.   The  order  of  remand  which  is  a
judicial act, as we perceive, does not suffer from any infirmity.  The  only
ground that was highlighted before the High Court as  well  as  before  this
Court is that once there is stay of investigation, the order  of  remand  is
sensitively  susceptible  and,  therefore,  as  a  logical  corollary,   the
detention is unsustainable.  It is worthy to  note  that  the  investigation
had already commenced and  as  a  resultant  consequence,  the  accused  was
arrested.  Thus, we are disposed to think that the order  of  remand  cannot
be regarded as untenable in law.  It is well accepted principle that a  writ
of habeas corpus is not to be entertained when  a  person  is  committed  to
judicial custody or police custody by the competent court by an order  which
prima facie does not appear to be  without  jurisdiction  or  passed  in  an
absolutely mechanical manner or wholly illegal.  As has been stated  in  the
cases of B.R. Rao (supra) and Kanu Sanyal (supra), the court is required  to
scrutinize the legality or otherwise of the order  of  detention  which  has
been passed.   Unless  the  court  is  satisfied  that  a  person  has  been
committed to jail custody by virtue of an order that suffers from  the  vice
of lack of jurisdiction or absolute illegality,  a  writ  of  habeas  corpus
cannot be granted.  It is apposite to note that the  investigation,  as  has
been dealt with in various authorities of this Court, is neither an  inquiry
nor trial.  It is within the exclusive domain of the police  to  investigate
and is independent  of  any  control  by  the  Magistrate.   The  sphere  of
activity is clear cut and well demarcated.  Thus viewed, we do not  perceive
any error in the order passed by the High Court refusing to grant a writ  of
habeas corpus as the detention by virtue of the  judicial  order  passed  by
the Magistrate remanding the accused to custody is valid in law.


33.   Though we have not interfered  with  the  order  passed  by  the  High
Court, yet we would request the  High  Court  to  dispose  of  the  Criminal
Miscellaneous Application No. 10303 of 2012 within a period  of  six  weeks.
Liberty is granted to the appellant to move the appropriate court for  grant
of bail, if so advised.


34.   Consequently, with the aforesaid observations  mentioned  hereinabove,
the appeal, being sans merit, stands dismissed.




                                                             ……………………………….J.
                                                       [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                               [Dipak Misra]

New Delhi;
September 28, 2012.
-----------------------
[1]    (1923) AC 603 (609)

[2]    AIR 1959 SC 843
[3]    1942 AC 284
[4]    AIR 1973 SC 2684

[5]    (2011) 10 SCC 781
[6]    AIR 1971 SC 2197
[7]    AIR 1969 SC 1014
[8]    AIR 1953 SC 277
[9]    AIR 1974 SC 510
[10]   AIR 1952 SC 106
[11]   AIR 1971 SC 62
[12]   (1994) 5 SCC 410

[13]   AIR 1992 SC 1768

[14]   AIR 1955 SC 196

[15]   AIR 2005 SC 1057
[16]   AIR 1957 SC 142
[17]   (1970) 1 SCC 653
[18]   (1980) 1 SCC 554

whether the appeal will lie against the order dated 29.01.2000 of the High Court dismissing Writ Petition No.253 of 1999 when an earlier Special Leave Petition against the said order dated 29.01.2000 of the High Court was filed by the appellant but was withdrawn with the permission of this Court to pursue his remedy by way of review against the said order dated 29.01.2000 of the High Court. As the appellant has withdrawn the Special Leave to Appeal against the order dated 29.01.2000 of the High Court with permission to pursue his remedy by way of review instead and had not taken the liberty from this Court to challenge the order dated 29.01.2000 afresh by way of special leave in case he did not get relief in the review application, he is precluded from challenging the order dated 29.01.2000 of the High Court by way of Special Leave to Appeal under Article 136 of the Constitution.= a preliminary issue was raised on behalf of the respondent no.8 that the Civil Appeals by way of Special Leave Petition were not maintainable. = this Court has consistently held that an appeal by way of Special Leave Petition under Article 136 of the Constitution is not maintainable against the order rejecting an application for review in view of the provisions of Order XLVII, Rule 7 of the CPC.

Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOs. 8643-8644 OF 2003


Vinod Kapoor                                                     …
Appellant

                                   Versus

State of Goa & Ors.                                          …
Respondents





                                  O R D E R

A. K. PATNAIK, J.

      These are appeals by way of special leave under  Article  136  of  the
Constitution against the orders of the Bombay High Court at  Goa  dismissing
Civil Writ Petition No. 253 of 1999 and Civil  Review  Petition  No.  17  of
2000.


2.    The facts very briefly are that the respondent no. 8 was  served  with
a  show-cause  notice  dated  26.11.1996  by  the  North  Goa  Planning  and
Development Authority  (for  short  ‘the  Authority’).   In  the  show-cause
notice, it  was  alleged  that  the  respondent  no.  8  had  constructed  a
residential bungalow on  a  land  in  Survey  No.250/12  without  the  prior
permission of the Authority as required under Section 44  of  the  Town  and
Country Planning Act, 1974 (for short ‘the Act’).  It was  also  alleged  in
the show-cause notice that there was no proper access road to  the  property
as required under the Act and that the construction was  within  a  distance
of 100 Mtrs. from Zuari river and was in breach of  the  Coastal  Regulation
Zone notification issued under the Environment (Protection) Act,  1986.   By
the show-cause notice, the respondent  no.8  was  asked  to  show-cause  why
action should not be initiated under Section 52 of the  Act  for  demolition
of the construction.  By a communication dated 10.12.1996, the Town  Planner
of the Authority also informed the Chief Officer, Panaji Municipal  Council,
that the respondent  no.  8  had  obtained  permission  from  the  Municipal
Council to make the construction on the land in Survey No.  250/12,  Village
Taleigao, by misrepresenting the facts and, therefore,  the  permission  may
be revoked.  Thereafter,  a  notice  dated  18.11.1997  was  issued  by  the
Municipal Council to  the  respondent  no.  8  directing  him  to  stop  the
construction work immediately and to show-cause why the licence  granted  to
him for the construction of the building on the land in Survey.  No.  250/12
of Taleigao Village should not be revoked.


3. The appellant also filed Writ Petition No. 253 of 1999 before the  Bombay
High Court at Goa alleging that the structure made by the respondent  no.  8
on the  land  in  Survey  No.250/12  in  Village  Taleigao  contravenes  the
provisions of the Coastal  Regulation  Zone  Notification  dated  19.02.1991
inasmuch as it  was  within  100  Mtrs.  from  the  river  Zuari  in  Costal
Regulation Zone (CRZ) III area.  The High Court called  for  a  report  from
the Director of National Institute of Oceanography after inspection  of  the
property of the respondent no.8  and  a  Senior  Technical  Officer  of  the
National Institute of  Oceanography  submitted  a  report  dated  24.01.2000
saying that the structure in question was not within 100 Mtrs. of  the  High
Tide Line (HTL).  After perusing the report, the High  Court  dismissed  the
writ petition by order dated 29.01.2000


4.    Aggrieved, the appellant filed Special Leave  Petition  under  Article
136 of the Constitution against the order dated  29.01.2000  of  the  Bombay
High Court at Goa dismissing the writ  petition.   When  the  Special  Leave
Petition was taken up for hearing by a three-Judge Bench  on  22.11.2000,  a
submission was made on behalf of the appellant before  the  Court  that  the
appellant had filed a Review Petition before the High  Court  and  that  the
learned counsel for the appellant had instructions to withdraw  the  Special
Leave Petition and  the  Court  dismissed  the  Special  Leave  Petition  as
withdrawn.  Thereafter, the High Court took up the  hearing  of  the  Review
Petition and rejected the Review Petition by order dated 06.12.2000.


5.    When the appeals were taken up for hearing, a  preliminary  issue  was
raised on behalf of the respondent no.8 that the Civil  Appeals  by  way  of
Special Leave Petition were not  maintainable.   According  to  the  learned
counsel for  the  respondent  no.8,  the  appeal  against  the  order  dated
29.01.2000 of the High Court in  Writ  Petition  No.  253  of  1999  is  not
maintainable as the appellant had earlier challenged the said  order  before
this Court in a Special Leave Petition, but  had  withdrawn  the  same  and,
therefore, the order dated 29.01.2000 of  the  High  Court  dismissing  Writ
Petition No. 253 of 1999 filed by the appellant had become final  and  could
not be challenged again.  In support of this submission, he  relied  on  the
decision  of  this  Court  in  Abhishek  Malviya   v.   Additional   Welfare
Commissioner and Another [(2008) 3 SCC 108].  He submitted that  the  appeal
against the order dated 06.12.2000 of the High Court rejecting Civil  Review
Application No. 17 of 2000 of the applicant was  also  not  maintainable  in
view of Order XLVII Rule 7 of the Code of Civil Procedure, 1908  (for  short
‘the CPC’),  which  provides  that  an  order  of  the  Court  rejecting  an
application for review is not appealable.  He submitted that this Court  has
held that the principle of Order XLVII, Rule 7 is applicable to  appeals  by
way of Special Leave under  Article  136  of  the  Constitution  in  Shanker
Motiram Nale v. Shiolalsing Gannusing Rajput  [(1994)  2  SCC  753],  Suseel
Finance & Leasing Co. v. M. Lata and Others [(2004) 13  SCC  675]  and  M.N.
Haider and Others v. Kendriya Vidyalaya Sangathan and Others [(2004) 13  SCC
677].


6.      The appellant,  on  the  other  hand,  submitted  that  the  appeals
against the order dated 29.01.2000 of the High Court in  the  Writ  Petition
and the order dated 06.12.2000 of the High  Court  in  the  Review  Petition
were maintainable under Article 136 of  the  Constitution.   In  support  of
this submission, he relied on the  decisions  of  this  Court  in  Board  of
Control for Cricket in India and Another v. Netaji Cricket Club  and  Others
[(2005) 4 SCC 741], Kunhayammed and Others v. State of  Kerala  and  Another
[(2000) 6 SCC 359] and Gangadhara Palo v.  Revenue  Divisional  Officer  and
Another [(2011) 4 SCC 602].


7.    We  have  considered  the  submissions  of  the  learned  counsel  for
respondent no.8 and the appellant and  we  find  that  the  earlier  Special
Leave Petition filed by the appellant against the order dated 29.01.2000  of
the High Court dismissing Writ Petition No. 253 of  1999  was  dismissed  as
withdrawn by order dated 22.11.2000, which is quoted hereinbelow:


          “It is submitted that the petitioner has filed a  review  petition
          in the High Court and, therefore, learned counsel has instructions
          to  withdraw  the  petition.   The  Special  Leave  Petition   is,
          accordingly, dismissed as withdrawn.”


The order dated 22.11.2000 of this Court quoted above  would  show  that  no
liberty was taken by the appellant to file a fresh  Special  Leave  Petition
under Article 136 of the Constitution against the order dated 29.01.2000  of
the High  Court  and  the  Special  Leave  Petition  was  withdrawn  by  the
appellant saying that he had filed a review petition before the High  Court.
 Hence, this Court appears to have permitted the  appellant  to  pursue  his
remedy by way of review before the High Court.


8.    The question that we have to decide is whether  the  appeal  will  lie
against the order  dated  29.01.2000  of  the  High  Court  dismissing  Writ
Petition No.253 of 1999 when an earlier Special Leave Petition  against  the
said order dated 29.01.2000 of the High Court was  filed  by  the  appellant
but was withdrawn with the permission of this Court to pursue his remedy  by
way of review against the said order dated 29.01.2000  of  the  High  Court.
As the appellant has withdrawn the  Special  Leave  to  Appeal  against  the
order dated 29.01.2000 of the High  Court  with  permission  to  pursue  his
remedy by way of review instead and had not  taken  the  liberty  from  this
Court to challenge the order dated  29.01.2000  afresh  by  way  of  special
leave in case he did not  get  relief  in  the  review  application,  he  is
precluded from challenging the order dated 29.01.2000 of the High  Court  by
way of Special Leave to Appeal under Article 136 of the Constitution.


9.      In Abhishek Malviya v. Additional Welfare Commissioner  and  Another
(supra),  cited  by  the  counsel  for  respondent  No.8,  the  order  dated
13.03.1997 of  the  Madhya  Pradesh  High  Court  sustaining  the  order  of
compensation passed by the Additional Welfare  Commissioner  was  challenged
before this Court in a Special Leave Petition and by order dated  04.05.1999
this Court dismissed the Special Leave Petition as withdrawn  and  when  the
fresh appeal by way of special leave under Article 136 of  the  Constitution
was filed, this Court held that the fresh appeal is liable to  be  dismissed
as not maintainable.  Para 8 of this Court’s order in the aforesaid case  of
Abhishek Malviya v. Additional Welfare Commissioner and Another  (supra)  is
quoted hereinbelow:




        “8. We find no merit in appellant's contention. The order dated 4-5-
        1999 of this Court specifically refers to the error  in  the  order
        describing the appellant as “deceased” and  dismissed  the  SLP  as
        withdrawn with the following observation: “He wants to apply to the
        Additional Welfare  Commissioner  for  correction.  We  express  no
        opinion in that behalf”. No liberty was reserved to  file  a  fresh
        appeal or seek review of the order dated 13-3-1997 on  merits.  The
        order dated 13-3-1997 having  attained  finality,  his  efforts  to
        reagitate the issue again and again is an exercise in futility.  We
        are therefore of the view that appeal is liable to be dismissed.


10.    Moreover, on the High Court rejecting the application for  review  of
the appellant, the  order  rejecting  the  application  for  review  is  not
appealable by virtue of the principle in Order XLVII, Rule  7  of  the  CPC.
In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput;  Suseel  Finance  &
Leasing Co. v. M. Lata and Others and M.N. Haider  and  Others  v.  Kendriya
Vidyalaya Sangathan and Others (supra) cited  by  the  learned  counsel  for
respondent No.8, this Court has consistently held that an appeal by  way  of
Special Leave  Petition  under  Article  136  of  the  Constitution  is  not
maintainable against the order rejecting an application for review  in  view
of the provisions of Order XLVII, Rule 7 of the CPC.



11.    There is nothing in the decisions cited  by  the  appellant  to  show
that this Court has taken a view different from the view taken  in  Abhishek
Malviya v. Additional Welfare Commissioner and Another (supra)  with  regard
to maintainability of an appeal by way of Special Leave  under  Article  136
of the Constitution against an order of the  High  Court  after  an  earlier
Special Leave Petition against the same order  had  been  withdrawn  without
any liberty to file a fresh Special Leave  Petition.   Similarly,  there  is
nothing in the decisions cited by the appellant to show that this Court  has
taken a view  that  against  the  order  of  the  High  Court  rejecting  an
application for review, an appeal by way of Special Leave under Article  136
of the Constitution is maintainable.


12.     In the result, we hold that the Civil Appeals are  not  maintainable
and we accordingly dismiss the same.  We, however, make  it  clear  that  we
have not expressed any opinion on the merits of the case  of  the  appellant
or on whether the Authority or the Municipal Council could under  law  issue
the notices to the respondent no. 8 or take any action  in  respect  of  the
construction made by  him  on  the  land  in  Survey  No.250/12  in  Village
Taleigao.



                                                               .……………………….J.
                                                            (A. K. Patnaik)








                                                               ………………………..J.
                                                            (Swatanter
Kumar)
New Delhi,
October 03, 2012.