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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

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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  

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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  

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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  

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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].

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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  

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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  

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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  

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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  

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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,  

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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.

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