AI Structured Summary
Not yet generated for this judgment
Judgment
The Appellants in Appeal No.33/2014 and the Respondent Nos. 8 to 11, in Appeal No.35/2014, have preferred these Review Applications against the common Judgment and order dated 2nd July, 2015, passed in both the said Appeals.
The Goa Coastal Zone Management Authority (GCZMA) in exercise of powers conferred under Section 5 of the Environment (Protection) Act, 1986, read with sub-rule 3(1) of Rule-4 of the Environment (Protection) Rules, 1986, directed the Review Applicants to demolish the retaining wall constructed along the sea, concrete rings constructed along the coconut trees and parking lot comprising of concrete balusters constructed in survey Nos.12/1 to 12/5 of village Sernabatim, Salcete Taluka-Goa and restore the land to its original condition. According to the Appellants in Appeal No.35/204 some more constructions in the said property were also illegal and required demolition. Thus, the Appellants in both the said Appeals being aggrieved by the order passed by GCZMA had preferred the aforesaid Appeals before us.
After hearing the parties in both the said Appeals this Bench dismissed the Appeal preferred by the Review Applicants being Appeal No.33/2014 and allowed the Appeal No.35/2014, preferred by Review Respondents Mr. Rabindra Dias and Mr. Santana Piedade Afonso in the present Review Applications and consequently the order of demolition of entire constructions of the house property and retaining wall around the house property, guest house called 'Furtado Guest House' as well as other constructions standing on the land Survey Nos. 12/1 to 12/5 within Non Development Zone (NDZ) of Sernabatim village was upheld.
The record reveals that the Review Applicants preferred the Civil Appeal being Civil Appeal Nos. 5733-5734 of 2015 against the common Judgment and order before the Hon'ble Supreme Court of India, as per Section 22 of the National Green Tribunal Act, 2010 on 3rd August, 2015 i.e. prior to the present Review Applications.
A preliminary issue as to whether the present Review Applications are barred as per the provisions under Section 114 read with Order-XLVII, Rule-1 of the Civil Procedure Code, 1908, therefore, arose before us, vide order dated 12th August, 2016.
The record reveals the Review Applicants challenged this order dated 12th August, 2016 before the Hon'ble Supreme Court in Civil Appeal Nos. 8779-8780 of 2016, but later on choose to unconditionally withdraw the said Appeals and the said Appeals were dismissed as withdrawn as per the following order quoted herein below:
"Mr. Rana Mukherjee, learned senior counsel appearing for the appellants, seeks leave to withdraw these appeals which are hereby dismissed as withdrawn. " sending a message that the issue now raised before us needs to be resolved by us.
We heard the parties at length and allowed them to file their written submissions.
Leaned Counsel appearing on behalf of the Review Applicants submit that the present Review Applications have been filed in terms of the order passed by the Hon'ble Supreme Court in Civil Appeal Nos. 5733-34 of 2015 dated 3rd August, 2015, quoted herein below:
"Shri. Kapil Sibal, learned senior counsel appearing for the appellants, on instructions, seeks permission of this Court to withdraw these appeals with liberty to file an appropriate review petition along with additional documents, if any, before the National Green Tribunal (Western Zone), Pune.
Permission sought for is granted.
accordingly, the Civil Appeals are disposed of as withdraw with liberty to the appellants to file an appropriate review petition along with additional documents, if any, before the National Green Tribunal (Western Zone), Pune.
Learned Counsel appearing on behalf of the Review Applicants submit that this Tribunal having found merits in the matter had granted review and issued Notice to the other side and admitted additional documents and as such, it would be appropriate that the matter is heard on merits and the preliminary issue whether the review can be entertained, is deemed to have already been determined. In this context, he relied upon para-7 of the Judgment delivered by the Apex Court in Saroj & Ors's case (2014 AIR CC 1881)
The Apex Court, it appears from the reading of the said paragraph, dissected the entire basis of review in three stages: The First one is admission of the Review Application; Second one is to decide whether the Review Application needs to be heard on merits or not and Third one is when the Court hearing the Review Application enters merits and re-hears the case as required to be heard by way of review and decides it on merits.
The reasons of this procedure is found in Rule-22 of the National Green Tribunal (Practice & Procedures) Rules, 2011, which regulates procedure for review in the following terms:
"22 Application for Review:- (1) No Application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed."
To curtail consumption of judicial working hours, loss of time, the Rule permits the Tribunal to dispose of Review Application by circulation when the Tribunal may either dismiss the Application or direct Notice to the present parties. However, the National Green Tribunal Act, 2010 vests the Tribunal with powers of the Civil Court under the Civil Procedure Code, 1908 to review its decision as per Section 19(4) (f) of the NGT Act.
In the present case, the record reveals that this Bench entertained the Review Application in deference to the order passed by the Hon'ble Supreme Court referred to hereinabove and issued Notice to the Non-Applicants, vide order dated 4th September, 2015 and 2nd December, 2015.
Having issued the Notice and entertained the Review Applications, this Bench was obliged to hear the parties in order to decide the issue whether the Review Applications should further be heard on merits or not and to ensure that it does not suffer from any legal infirmity so as to be valid within four corners of sub-rule (1) of Order 47 of the Civil Procedure Code, 1908. It is at this stage that the preliminary issue as framed aforesaid arose for our consideration. The Hon'ble Supreme Court by allowing the Review Applications to withdraw the Appeal Nos. 8779-8780 of 2016, endorsed this approach leaving such preliminary issue to be decided by us. The submission, therefore, that the preliminary issue whether Review Application can be entertained has already been determined, therefore, does not find favour with us.
This takes us to next question whether the order passed by the Hon'ble Supreme Court dated 3rd August, 2015 in Civil Appeal Nos. 5733-5734 of 2016 mandates this Tribunal to ignore the provisions of Section 114 read with Rule LXVII (1) of the Civil Procedure Code, 1908.
Learned Counsel appearing on behalf of the Review Applicants profusely cited decisions of the Apex Court to highlight a fact that the Hon'ble Supreme Court being the highest Court of the country has powers over all other Courts under Article 142 of the Constitution and submits that the order granting liberty to file an appropriate Review Application along with additional documents is the mandate of Hon'ble Supreme Court to skirt the provisions of the Civil Procedure Code for doing complete justice in the present case.
In Prem Chand Garg's Case (1963 AIR, 996) (Prem Chand Garg vs Excise Commissioner, UP) the Hon'ble Apex Court observed that " "
"The order which the Hon'ble Supreme Court make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws."
And further observed:
"It would not be bound by the relevant provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties."
In Delhi Judicial Services vs. State of Gujarat (1991 AIR,2176), the Hon'ble Supreme Court observed:
"Plenary jurisdiction unaffected by self-imposed restrictions of the Court and from it flows supervisory jurisdiction over all Courts and Tribunals in India."
Learned Counsel appearing on behalf of the Review Applicants quoted from the Judgment delivered by the Hon'ble Supreme Court in case of Supreme Court Bar Association vs Union of India & Anr on 17th April,1998"Apart from the fact that these observations are made with reference to the powers of this Court under Article 142 which are in the nature of supplementary powers and not with reference to this Court's power under Article 129, the said observation have been explained by this Court in its latter decisions in Delhi Judicial services Association v. State of Gujarat (supra) and Union Carbide corporation v. Union of India (1991) 4 SCC 574). In paragraph 51 of the former decision, it has been, with respect, rightly pointed out that the said observations were made in the context of fundamental rights. Those observations have no bearing on the present issue. No doubt, it was further observed there that those observations have no bearing on the question in issue in that case as there was no provision in any substantive law restricting this Court's power to quash proceedings pending before subordinate courts. But it was also added there that this Court's power under Article 142(1) to do complete justice was entirely of different leave and of a different quality."
The Hon'ble Supreme Court further observed:
"It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the Apex Court under Article 142(1) is unsound and erroneous. In both Garg as well as Antulay cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 Cr. P.C. or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions of limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers limited in some appropriate way is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy, Shri Sorabjee, learned Attorney General , referring to Garg case, said that limitation on the powers under Article 1425 arising from 'inconsistency' with express statutory provisions of substantive law' must really mean and be understood as some express prohibition contained in any substantive statutory law. He suggested that if the expression 'prohibition' is read in place of 'provision' that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of 'complete justice' of accuse of matter, the Apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise."
These three decisions clearly stipulate that in the matters of procedures the Hon'ble Supreme Court has powers to pass orders to do complete justice between the parties and that procedural provisions of the CPC can be side stepped, and this is precisely what the Hon'ble Supreme Court has done in the present case by permitting the parties to file a Review Application and also permitting the parties to file additional documents. However, it is preposterous to suggest that the Hon'ble Supreme Court mandated the Tribunal to ignore the criterion stipulated by law to assess the merits of Review Applications.
It is amply clear that the Hon'ble Supreme Court has supervisory jurisdiction over all the Courts and Tribunals in India, including NGT and can pass such orders overriding procedural law to do complete justice in the matter. In the words of the Hon'ble Supreme Court powers under Article 142 and in assessing the needs of 'complete justice' in the matter, the Apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly.
In the instant case, it appears that the Review Applicants i.e. the Appellants before the Hon'ble Supreme Court sought permission to withdraw substantive Appeals provided under Section 22 of the National Green Tribunal Act, 2010 with liberty to file appropriate Review Application along with additional documents before us and permission sought was granted and Civil Appeals were disposed of as withdrawn with liberty as solicited.
We do not find from reading of the order that the Hon'ble Supreme Court assessed merits in the present case to do away with provisions under Section 114 read with Order XLVII, Rule-1 of the Civil Procedure Code, 1908 but merely granted of liberty to the Review Applicants to seek their remedy as per law. Moreover, the Review Applicants exercised conscious option to withdraw the substantive Appeals provided under Section 22 of the National Green Tribunal Act, 2010, which had larger conspectus to deal with the issues and those arising out of Order XLVII, Rule-1 of the Civil Procedure Code, 1908.
Learned Counsel appearing on behalf of the Review Applicants further quoted from Kunhayammed & Ors vs State of Kerala and Another (2000) 6SCC 359 in Bakshi Dev Raj & Anr Vs Sudheer Kumar to expound the premise that dismissal of SLP with or without reasons does not come in the way of filing Review Application and further to highlight inter relationship between the doctrine of merger and right of review.
The relevant paras in Kunhayammed's case (supra) are quoted herein below:
"The doctrine of merger and the right of review are concepts which are closely inter-linked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed - there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits - in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave - the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it.
The Review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1 (a). Thus the words no appeal has been preferred in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted."
Thus, it can be seen that when the SLP is not allowed or is dismissed, there is no Appeal in the eye of law before the superior Court and section 114 as well as the provisions under Order XLVII, Rule-1 of the Civil Procedure Code, 1908, requires to be read and construed in context of such situation created by law.
Leaned Counsel appearing on behalf of the Respondent Nos. 2 and 3- Original Appellants in Appeal No.35/2014 submitted that they do not dispute the proposition of law raised by the Review Applicants that the Hon'ble Apex Court in exercise of its powers conferred under Art.142 of the Constitution has vide powers to do complete justice in any case. However, he submits that the power of review is regulated by the provisions of Section 114, read with Order 47, R-1 of the Civil Procedure Code, 1908 and the Review Applicants having once consciously exercised their option to withdraw the substantive Appeals against the impugned order, no longer remains 'aggrieved person' and thus, forfeit their right to invoke jurisdiction of inferior Court to review the impugned order in terms of provisions of Section 114 of the Civil Procedure Code, 1908.
Section 114 of the Civil Procedure Code, 1908 reproduced herein below:
"114. Review- Subject as aforesaid, any person considering himself aggrieved- "
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Court, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
provides the eligibility criterion for the Review Applicants making review. Such provisions have been made to streamline the process of dispensation of justice, particularly, keeping in view judicial discipline that the inferior Court should not entertain review when the Superior Court having larger conspectus to evaluate the merits of the decree/order in question in the Appeal would be dealing with it in totality.
In the instant case, the Review Applicants preferred a substantive Appeal under Section 22 of the National Green Tribunal Act, 2001, against the impugned order and invoked jurisdiction of the Hon'ble Apex Court. Having done so and more particularly after consciously exercising the option to withdraw such Appeals and giving up remedy of wider assessment of the merits in totality in the Appeal rendering the impugned order attain its finality, her right to prefer review against the impugned order was lost having been consciously given up. Even otherwise, in our considered opinion the Review Applicants are virtually seeking re-hearing of the case as in the Appeals. Moreover, the Hon'ble Apex Court has not issued any mandate/directions to this Tribunal to ignore the provisions of Section 114 read with Order 47, Rule-1 of the Civil Procedure Code, 1908 and enter into the merits of case afresh and decide the Review Applications.
In view of above discussion, the Review Applications are disposed off with the following order:
Review Application No.13/2015 and Review Application No.14/2015 are rejected with no order as to costs.
The parties shall collect the copies of the Judgment, if required, from the Registry.