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.
