BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

Review Application No. 13/2015

In
Appeal No. 35/2014 (WZ)
[Disposed 2.7.2015]
(M.A. No. 148/2015 M.A. No. 216/2016)
And
Review Application No. 14/2015
In
Appeal No. 33/2014
[Disposed 2.7.2015]
[M.A. No. 149/2015 M.A. No. 215/2016]

In the matter of:

Mrs. Maria Filomena & Ors

Vs
Village Panchayat of Colva

And

Mrs. Maria Filomena& Ors

Vs
GCZMA

CORAM:

HON’BLE SHRI U.D.SALVI

(JUDICIAL MEMBER)

HON’BLE DR. AJAY A. DESHPANDE

(EXPERT MEMBER)

REVIEW APPLICATION NO. 13/2015

1. Mrs. MARIA FILOMENA FURTADO,

Aged 76, widow of Antonio Jose Furtado
and sons:

(J) R. A. Nos.13 & 14 of 2015 Page 1 of 18

2. Mr. SILSTON FORTADO,
Aged 51;
3. Mr. PIO FURTADO,
Aged 40;
4. Mr. JOAO INACIO FURTADO,
Aged 55;
All residents of Ambeaxir,
Sernabatim, Colva, Salcete, Goa.
. Review Applicants

Versus

1. THE VILLAGE PANCHAYAT OF COLVA,

VANELIM, SERNABATIM AND GQAUNDALIM
Through its Sarpanch,
Colva, Salcete-Goa.

2. THE GOA COASTAL ZONE MANAGEMENT AUTHORITY,

Through its Member Secretary
Having its office at 3rd Floor, Dempo Tower,
Patto, Panaji, Goa 403 001.

3. THE COMMISSIONER OF EXCISE,

Government of Goa,
Panaji-Goa.

4. THE DIRECTOR OF TOURISM,

Government of Goa,
Panaji-Goa.

5. THE DIRECTOR OF FOOD & DRUGS ADMIN,

Govt.of Goa,
Panaji Goa.

6. THE ASSISTANT ENGINEER,

Division IV-SD-I,
Electricity Department,
1st Floor, Vidyut Bhavan,
(J) R. A. Nos.13 & 14 of 2015 Page 2 of 18
 Aquem, Margao Goa,

7. STATE OF GOA
Through its Chief Secretary;
Govt. of Goa,
Secretariat, Porvorim, Goa.

8. MR RABINDRA DIAS,
Major, Resident of Dr.Pires Colony,
Block B, Santa Cruz, IIhas, Tiswadi, Goa,

9. MR. SANTANA PIEDADE AFONSO,

Major, resident of 518 (263), Comba
Central, Cuncolim, Salcete, Goa.
RESPONDENTS

REVIEW APPLICATION NO. 14/2015

In the matter of :

1. Mrs. MARIA FILOMENA FURTADO,

Aged 76, widow of Antonio Jose Furtado
and sons:
2. Mr. SILSTON FORTADO,
Aged 51;
3. Mr. PIO FURTADO,
Aged 40;
4. Mr. JOAO INACIO FURTADO,
Aged 55;
All residents of Ambeaxir,
Sernabatim, Colva, Salcete, Goa.
Review Applicants

Versus

(J) R. A. Nos.13 & 14 of 2015 Page 3 of 18

1. THE GOA COASTAL ZONE MANAGEMENT AUTHORITY,
Through its Member Secretary
Having its office at 3rd Floor, Dempo Tower,
Patto, Panaji, Goa 403 001.

2. MR RABINDRA DIAS,
Major, Resident of Dr.Pires Colony,
Block B, Santa Cruz, IIhas, Tiswadi, Goa,

3. MR. SANTANA PIEDADE AFONSO,

Major, resident of 518 (263), Comba
Central, Cuncolim, Salcete, Goa.
RESPONDENTS

Counsel for Applicant(s) in R.A.Nos.13-14/2015

Mr. Radharao F. Gracias, Mr. S.D.Lothikar Sr. Adv. Mr David

Rao Mr. Anand Rao, Mr. Suresh Lothiku.

Counsel for Respondent(s):

F.M.Mesquita, Mr. Pio Furtado, Mr. Amogh V. Prabhudesai Mr

Abid Ali Beeran. P. for Respondent Nos.2-7.
Mr. Santana Piedade Afonso, Mr. Ralph Mascarenhas Mr.
NIghel D. Costa Frias, Mr. Manish Salkar for Respondent Nos.
2,3.

DATE: November 10th, 2016

COMMON JUDGMENT

Per U.D. Salvi J.

1. 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

(J) R. A. Nos.13 & 14 of 2015 Page 4 of 18

Judgment and order dated 2nd July, 2015, passed in

both the said Appeals.

2. 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.

3. 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

(J) R. A. Nos.13 & 14 of 2015 Page 5 of 18

other constructions standing on the land Survey Nos.

12/1 to 12/5 within Non Development Zone (NDZ) of

Sernabatim village was upheld.

4. 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.

5. 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.

6. 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. ”

(J) R. A. Nos.13 & 14 of 2015 Page 6 of 18

 sending a message that the issue now raised

before us needs to be resolved by us.

7. We heard the parties at length and allowed them to

file their written submissions.

8. 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:

1. “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.

2. Permission sought for is granted.

3. 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.

9. 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

(J) R. A. Nos.13 & 14 of 2015 Page 7 of 18

Judgment delivered by the Apex Court in Saroj & Ors’s

case (2014 AIR CC 1881)

10. 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.

11. 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.”

12. 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.

(J) R. A. Nos.13 & 14 of 2015 Page 8 of 18

13. 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.

14. 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.

15. 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

(J) R. A. Nos.13 & 14 of 2015 Page 9 of 18

this Tribunal to ignore the provisions of Section 114 read

with Rule LXVII (1) of the Civil Procedure Code, 1908.

16. 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.

17. 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.”

18. In Delhi Judicial Services vs. State of Gujarat

(1991 AIR,2176), the Hon’ble Supreme Court observed:

(J) R. A. Nos.13 & 14 of 2015 Page 10 of 18
 “Plenary jurisdiction unaffected by self-imposed restrictions
of the Court and from it flows supervisory jurisdiction over all
Courts and Tribunals in India.”

19. 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
(J) R. A. Nos.13 & 14 of 2015 Page 11 of 18
 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
(J) R. A. Nos.13 & 14 of 2015 Page 12 of 18
 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."

20. 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.

21. 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

(J) R. A. Nos.13 & 14 of 2015 Page 13 of 18
principles of public policy and regulate the exercise of its

power and discretion accordingly.

22. 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.

23. 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.

24. Learned Counsel appearing on behalf of the Review

Applicants further quoted from Kunhayammed & Ors

vs State of Kerala and Another (2000) 6SCC 359 in

(J) R. A. Nos.13 & 14 of 2015 Page 14 of 18

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.

25. 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.

(J) R. A. Nos.13 & 14 of 2015 Page 15 of 18

 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.”

26. 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.

27. 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,

(J) R. A. Nos.13 & 14 of 2015 Page 16 of 18

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.

28. 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

(J) R. A. Nos.13 & 14 of 2015 Page 17 of 18
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.

29. In view of above discussion, the Review

Applications are disposed off with the following order:

1. Review Application No.13/2015 and

Review Application No.14/2015 are rejected

with no order as to costs.

2. The parties shall collect the copies of the

Judgment, if required, from the Registry.

..…………………………………, JM
(Justice U.D.Salvi)

.....………………………………, EM
(Dr. Ajay A. Deshpande)

Date: November 10th, 2016.

PUNE.
Hkk

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