VINOD KAPOORversusSTATE OF GOA & ORS.

                    [2012] 8 S.C.R. 1089


                      VINOD KAPOOR                                 A
                              v.
                  STATE OF GOA & ORS.
          (Civil Appeal Nos. 8643-8644 of 2003)

                    OCTOBER 03, 2012
                                                                   B
    [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

     Constitution of India, 1950 - Article 136 - Maintainability
of appeal by way of Special Leave under Article 136 against
an order of the High Court after an earlier Special Leave C
Petition against the same order had been withdrawn without
any liberty to file a fresh Special Leave Petition - Held: Not
maintainable - As the appellant had withdrawn the Special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 D
review instead and had not taken the liberty from the Supreme
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 was precluded from challenging the order
dated 29.01.2000 of the High Court by way of fresh Special E
Leave to Appeal under Article 136.

    Abhishek Malviya v. Additional Welfare Commissioner
and Another (2008) 3 SCC 108 - relied on.

    Board of Control for Cricket in India and Another v. Netaji    F
Cricket Club and Others (2005) 4 SCC 741: 2005 (1) SCR
173; Kunhayammed and Others v. State of Kera/a and
Another (2000) 6 SCC 359: 2000 (1) Suppl. SCR 538 and
Gangadhara Palo v. Revenue Divisional Officer and Another
(2011) 4 sec 602: 2011 (3) scR 746- cited.                         G

     Constitution of India, 1950 - Article 136 - Maintainability
of appeal by way of Special Leave under Article 136 against
the order of the High Court rejecting an application for review
                             1089                                  H
    1090    SUPREME COURT REPORTS                 [20121 8 S.C.R.


A of the appellant - Held: Not maintainable - The order rejecting
    the application for review is not appealable by virtue· of the
    principle in Order XL VII, Rule 7 CPC - Code of Civil
    Procedure, 1908 - Order XL VII, r. 7.

B        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 - relied on.
c                        Case Law Reference:

        (2008) 3 sec 108              relied on    Para 5, 9, 11

        (1994) 2 sec 753              relied on    Para 5, 10

D       (2004) 13 sec 675             relied on    Para 5

        (2004) 13 sec 677             relied on    Para 5

        2005 (1) SCR 173              cited        Para 6

        2000 (1) Suppl. SCR 538       cited        Para 6
E
        2011 (3) SCR 746              cited        Para 6

        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    8643-8644 of 2003.

F        From the Judgment & Order dated 6.12.2000 and
    29.1.2000 of the High Court of Bombay at Panaji-Goa in Civil
    Review Petition No. 1712000 and Civil Writ Petition No. 253/
    1999.
        Vinod Kapoor (In-Person).
G
        Mukul Rohatgi, A.V. Rangam, A. Subhashini, Kiran
    Bhardwaj, B.K. Prasad. Shreekant N. Terdal, Hari Shankar K,
    Ninad Laud, Vikas Singh Jangra, Swati Mantri for the
    Respondents.
H
    VINOD KAPOOR v. STATE OF GOA & ORS.                  1091


    The Order of the Court was delivered by                       A

     A.K. PATNAIK, J. 1. 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.
                                                                  B
      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 C
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 D
construction was within a distance of 100 Mtrs. from Zuari river
and was in breach of the Coastal Regulation Zone notificatlbn
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 E
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/ F
 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 G
 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   H
     1092   SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A 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 Costa I Regulation
  Zone (CRZ) Ill area. The High Court called for a report from the
s 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
C 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
0
    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
E 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.

F      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
G 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
H
    VINOD KAPOOR v. STATE OF GOA & ORS.                       1093
              [A.K. PATNAIK, J.]

of 1999 filed by the appellant had become final and could not A
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 B
2000 of the applicant was also not maintainable in view of
Order XLVll 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 c
XLVll, 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 Vidya/aya
                                                                0
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            E
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 Kera/a
and Another [(2000) 6 SCC 359] and Gangadhara Palo v.                   F
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       F
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              H
     1094    SUPREME COURT REPORTS                  [2012) 8 S.C.R.


A        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
8
  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
C 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.~000 of the High
   Court dismissing Writ Petition No.253 of 1999 when an earlier
  Special Leave Petition against the said order dated
D 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
E 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
F 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
G 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
H of special leave under Article 136 of the Constitution was filed,
    VINOD KAPOOR v. STATE OF GOA & ORS.                     1095
              [A.K. PATNAIK, J.]

this Court held that the fresh appeal is liable to be dismissed      A
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
                                                                     8
    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            C
    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.                                      D

     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
XLVll, Rule 7 of the CPC. In Shanker Motiram Nale v.                 E
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             F
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 XLVll, 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     G
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       H
    1096    SUPREME COURT REPORTS                [2012] 8 S.C.R.


A 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
s 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
C 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.

D B.B.B.                                    Appeals dismissed.