What is next if SLP dismissed without granting leave ?
-REVIEW-
Under Articles 132 to 136 of the Constitution of India, the
Appellate Jurisdiction is conferred on the Supreme Court. Article 136 of the
Constitution confers a special discretionary jurisdiction on the Supreme Court.
It is a residuary power in the sense that it confers an Appellate Jurisdiction
on the Supreme Court subject to the Special Leave being granted in such matters
as may not be covered by the other Articles. It is an overriding provision
conferring a special jurisdiction providing for invoking of the Appellate
Jurisdiction of the Supreme Court not fettered by the sweep of the preceding
articles.
The exercise of the jurisdiction under Article 136 consists
of two steps viz, (I) granting special leave to appeal; and (ii) hearing the
appeal.
In many cases, at the first stage, Special Leave Petition
(SLP) is dismissed by the Supreme Court. In such cases, the question of legal
implications and the impact of an order rejecting such SLP to appeal under
Article 136 has arisen in the past before the Supreme Court under different
circumstances.
Recently, in the case of Kunhayammed Vs State of Kerala, the
Supreme Court has analysed in detail its power under Article 136 and has also
explained the impact of the order passed rejecting the SLP to appeal under Article
136.
KUNHAYAMMED
Vs STATE OF KERALA
In the above case, the facts were : The Kerala Private
Forests (Vesting & Assignment) Act, 1971 (hereinafter referred to as
Private Forests Act) was enacted by the State of Kerala to provide for vesting
in the Government of private forests in the State and other related matters.
Under this Act, any dispute as to whether any land is a private forest or not
or whether any private forest or portion thereof is vested in the Government or
not was to be entrusted for decision to the Tribunal constituted under the said
Act (popularly known as Forest Tribunal) and against the decision of such
Tribunal, provision for appeal to the High Court was made. There was no
statutory remedy of appeal, revision or review provided against the Order of
the High Court.
Supreme
Court of India
Kunhayammed & Ors vs State Of Kerala & Anr
Author: R Lahoti
Bench: K Thomas, D Mohapatra., R C Lahoti.
PETITIONER:
KUNHAYAMMED & ORS.
Vs.
RESPONDENT:
STATE OF KERALA & ANR.
DATE OF JUDGMENT:
19/07/2000
BENCH:
K.T. Thomas, D.P.
Mohapatra., & R C Lahoti.
JUDGMENT:
R.C. Lahoti, J.
A question of frequent
recurrence and of some significance involving the legal implications and the
impact of an order rejecting a petition seeking grant of special leave to
appeal under Article 136 of the Constitution of India has arisen for decision
in this appeal.
Facts in brief :
The Kerala Private Forests
(Vesting and Assignment) Act, 1971 (Act 26 of 1971), hereinafter referred to as
the Act for short, was enacted by the State of Kerala to provide for the
vesting in the Government of private forests in the State of Kerala and for the
assignment thereof to agriculturists and agricultural labourers for
cultivation. The Act and the assent of the President on the Act were both
published in Kerala Government Gazette (Extraordinary) dated 23.8.1971. The Act
was given a retrospective operation by declaring that it shall be deemed to
have come into force on the 10th day of May, 1971. We are not concerned with
the details of several provisions contained in the Act. For our purpose it
would suffice to notice that the disputes - (i) whether any land is a private
forest or not, or (ii) whether any private forest or portion thereof is vested
in the Government or not - may be entrusted for decision under Section 8 to a
Tribunal constituted under Section 7 of the Act popularly known as Forest
Tribunal. The Government or any person objecting to any decision of the
Tribunal may within a period of 60 days from the date of that decision, appeal
against such decision to the High Court under Section 8A of the Act.
There is a large family
consisting of 71 members which raised a dispute before the Forest Tribunal,
Kozhikode which was registered as OA 5 of 1981. Land to the tune of 1020 acres
was the subject-matter of dispute. By order dated 11.8.1982 the Tribunal held
that the land did not vest in the Government. An appeal was preferred by the
State of Kerala before the High Court of Kerala which was dismissed on
17.12.1982 by an elaborate order. There was no statutory remedy of appeal,
revision or review provided against the order of the High Court. The State of
Kerala filed a petition for special leave to appeal under Article 136 of the
Constitution registered as SLP(C) No.8098 of 1983. The petition was dismissed
by an order dated 18.7.83. The order reads as under :- Special leave petition
is dismissed on merits. By Amendment Act No.36 of 1986 published in Kerala
Government Gazette (Extraordinary) dated 1.12.1986 Section 8C amongst others
was enacted into the body of the Act giving it a retrospective effect from
19.11.1983. Sub-section (2) of Section 8C, with which we are concerned, reads
as under:-
8C. Power of Government to
file appeal or
application for review in
certain cases.
(1) xxxx xxxx xxxxx
xxxx xxxx xxxx
(2) Notwithstanding
anything containing in this Act, or in the Limitation Act, 1963 (Central Act 36
of 1963), or in any other law for the time being in force, or in any judgment,
decree or order of any court or other authority, the Government, if they are satisfied
that any order of the High Court in an appeal under Section 8A (including an
order against which an appeal to the Supreme Court has not been admitted by
that Court) has been passed on the basis of concessions made before the High
Court without the authority in writing of the government or due to the failure
to produce relevant data or other particulars before the High Court or that an
appeal against such order could not be filed before the Supreme Court by reason
of the delay in applying for and obtaining a certified copy of such order, may,
during the period beginning with the commencement of the Kerala Private Forests
(Vesting and Assignment) Amendment Act, 1986 and ending on the 31st day of
March, 1987, make an application to the High Court for review of such order.
xxx xxx xxx xxx
[emphasis supplied]
In January 1984 the State
of Kerala filed an application for review registered as RP No.14 of 1984 before
the High Court of Kerala seeking review of the order dated 17.12.1982 passed by
the High Court. On behalf of the respondents before the High Court a
preliminary objection was raised to the maintainability of the review petition
which has been heard and disposed of by the order dated 14th December, 1995
which is put in issue in this appeal. The High Court has overruled the
preliminary objection as to the maintainability of the petition and directed
the review petition to be posted for hearing on merits. Feeling aggrieved the
petitioners have sought for leave to appeal to this Court which has been granted
on 16.9.1996. On 14.3.2000 when this matter came up for hearing before a bench
of two Judges they directed the matter to be referred to a bench of three
Judges having regard to the importance of the question involved.
Shri T.L.V. Iyer, the
learned senior counsel for the appellant has raised two contentions: Firstly,
that the order of the High Court dated 17.12.1982 having merged into the order
of this court dated 18.7.1983, the order of the High Court had ceased to exist
in the eye of law and therefore an application seeking review of the order
dated 17.12.1982 passed by the High Court and before the High Court is entirely
misconceived; Secondly, the order dated 18.7.1983 passed by this Court amounts
to affirmation of the order dated 17.12.1982 passed by the High Court and
therefore the High Court cannot entertain a prayer for review of its order much
less disturb the order in exercise of review jurisdiction.
The doctrine of merger :
The doctrine of merger is
neither a doctrine of constitutional law nor a doctrine statutorily recognised.
It is a common law doctrine founded on principles of propriety in the hierarchy
of justice delivery system. On more occasions than one this Court had an
opportunity of dealing with the doctrine of merger. It would be advisable to
trace and set out the judicial opinion of this Court as it has progressed
through the times.
In Commissioner of
Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 this Court
held :
There can be no doubt that,
if an appeal is provided against an order passed by a tribunal, the decision of
the appellate authority is the operative decision in law. If the appellate
authority modifies or reverses the decision of the tribunal, it is obvious that
it is the appellate decision that is effective and can be enforced. In law the
position would be just the same even if the appellate decision merely confirms
the decision of the tribunal. As a result of the confirmation or affirmance of
the decision of the tribunal by the appellate authority the original decision
merges in the appellate decision and it is the appellate decision alone which
subsists and is operative and capable of enforcement.
However, in the facts and
circumstances of the case this Court refused to apply the doctrine of merger. There,
an order of registration of a firm was made by the Income-tax Officer. The firm
was then assessed as a registered firm. The order of assessment of the assessee
was subjected to appeal before the Appellate Commissioner. Later on the order
passed by the Income-tax Officer in respect of registration of the firm was
sought to be revised by the Commissioner of Income-tax. Question arose whether
the Commissioner of Income-tax could have exercised the power of revision. This
Court held that though the order of assessment made by the ITO was appealed
against before the Appellate Commissioner, the order of registration was not
appeallable at all and therefore the order granting registration of the firm
cannot be said to have been merged in the appellate order of the Appellate
Commissioner. While doing so this Court analysed several provisions of the
Income-tax Act so as to determine the nature and scope of relevant appellate
and revisional powers and held if the subject matter of the two proceedings is
not identical, there can be no merger. In State of Madras Vs. Madurai Mills
Co.Ltd. AIR 1967 SC 681 this Court held that the doctrine of merger is not a
doctrine of rigid and universal application and it cannot be said that wherever
there are two orders, one by the inferior authority and the other by a superior
authority, passed in an appeal or revision there is a fusion or merger of two
orders irrespective of the subject-matter of the appellate or revisional order
and the scope of the appeal or revision contemplated by the particular statute.
The application of the doctrine depends on the nature of the appellate or
revisional order in each case and the scope of the statutory provisions
conferring the appellate or revisional jurisdiction.
In M/s Gojer Brothers Pvt.Ltd.
Vs. Shri Ratanlal AIR 1974 SC 1380 this Court made it clear that so far as
merger is concerned on principle there is no distinction between an order of
reversal or modification or an order of confirmation passed by the appellate
authority; in all the three cases the order passed by the lower authority shall
merge in the order passed by the appellate authority whatsoever be its decision
whether of reversal or modification or only confirmation. Their Lordships
referred to an earlier decision of this court in U.J.S. Chopra Vs. State of
Bombay AIR 1955 SC 633 wherein it was held.
A judgment pronounced by a
High Court in exercise of its appellate or revisional jurisdiction after issue
of a notice and a full hearing in the presence of both the parties would replace
the judgment of the lower court, thus constituting the judgment of the High
Court the only final judgment to be executed in accordance with law by the
courts below.
In S.S. Rathor Vs. State of
Madhya Pradesh AIR 1990- SC 10 a larger Bench of this Court (Seven-Judges)
having reviewed the available decisions of the Supreme Court on the doctrine of
merger, held that the distinction made between courts and tribunals as regards
the applicability of doctrine of merger is without any legal justification; where
a statutory remedy was provided against an adverse order in a service dispute
and that remedy was availed, the limitation for filing a suit challenging the
adverse order would commence not from the date of the original adverse order
but on the date when the order of the higher authority disposing of the
statutory remedy was passed. Support was taken from doctrine of merger by
referring to C.I.T. Vs. Amritlal Bhogilal & Co. (supra) and several other
decisions of this Court.
The logic underlying the
doctrine of merger is that there cannot be more than one decree or operative
orders governing the same subject-matter at a given point of time. When a
decree or order passed by inferior court, tribunal or authority was subjected
to a remedy available under the law before a superior forum then, though the
decree or order under challenge continues to be effective and binding,
nevertheless its finality is put in jeopardy. Once the superior court has
disposed of the lis before it either way - whether the decree or order under
appeal is set aside or modified or simply confirmed, it is the decree or order
of the superior court, tribunal or authority which is the final, binding and
operative decree or order wherein merges the decree or order passed by the
court, tribunal or the authority below. However, the doctrine is not of
universal or unlimited application. The nature of jurisdiction exercised by the
superior forum and the content or subject-matter of challenge laid or which
could have been laid shall have to be kept in view.
Stage of SLP and post-leave
stage The appellate jurisdiction exercised by the Supreme Court is conferred by
Articles 132 to 136 of the Constitution. Articles 132, 133 and 134 provide when
an appeal thereunder would lie and when not. Article 136 of the Constitution is
a special jurisdiction conferred on the Supreme Court which is sweeping in its
nature. It is a residuary power in the sense that it confers an appellate
jurisdiction on the Supreme Court subject to the special leave being granted in
such matters as may not be covered by the preceding articles. It is an
overriding provision conferring a special jurisdiction providing for invoking
of the appellate jurisdiction of Supreme Court not fettered by the sweep of
preceding articles. Article 136 opens with a non- obstante clause and conveys a
message that even in the field covered by the preceding articles, jurisdiction
conferred by Article 136 is available to be exercised in an appropriate case.
It is an untrammeled reservoir of power incapable of being confined to
definitional bounds; the discretion conferred on the Supreme Court being
subjected to only one limitation, that is, the wisdom and good sense or sense
of justice of the Judges. No right of appeal is conferred upon any party; only
a discretion is vested in Supreme Court to interfere by granting leave to an
applicant to enter in its appellate jurisdiction not open otherwise and as of
right.
The exercise of
jurisdiction conferred on this Court by Article 136 of the Constitution
consists of two steps : (i) granting special leave to appeal; and (ii) hearing
the appeal. This distinction is clearly demonstrated by the provisions of Order
XVI of the Supreme Court Rules framed in exercise of the power conferred by
Article 145 of the Constitution. Under Rule 4, the petition seeking special
leave to appeal filed before the Supreme Court under Article 136 of the
Constitution shall be in form No.28. No separate application for interim relief
need be filed, which can be incorporated in the petition itself. If notice is
ordered on the special leave petition, the petitioner should take steps to
serve the notice on the respondent. The petition shall be accompanied by a
certified copy of the judgment or order appealed from and an affidavit in
support of the statement of facts contained in the petition. Under Rule 10 the
petition for grant of special leave shall be put up for hearing ex-parte unless
there be a caveat. The court if it thinks fit, may direct issue of notice to
the respondent and adjourn the hearing of the petition. Under Rule 13, the
respondent to whom a notice in special leave petition is issued or who had
filed a caveat, shall be entitled to oppose the grant of leave or interim
orders without filing any written objections. He shall also be at liberty to
file his objections only by setting out the grounds in opposition to the
questions of law or grounds set out in the S.L.P.. On hearing the Court may
refuse the leave and dismiss the petition for seeking special leave to appeal
either ex-parte or after issuing notice to the opposite party. Under Rule 11,
on the grant of special leave, the petition for special leave shall, subject to
the payment of additional court fee, if any, be treated as the petition of
appeal and it shall be registered and numbered as such. The appeal shall then
be set down for hearing in accordance with the procedure laid down thereafter.
Thus, a petition seeking grant of special leave to appeal and the appeal
itself, though both dealt with by Article 136 of the Constitution, are two
clearly distinct stages. In our opinion, the legal position which emerges is as
under :-
1. While hearing the
petition for special leave to appeal, the Court is called upon to see whether
the petitioner should be granted such leave or not. While hearing such
petition, the Court is not exercising its appellate jurisdiction; it is merely
exercising its discretionary jurisdiction to grant or not to grant leave to
appeal. The petitioner is still outside the gate of entry though aspiring to
enter the appellate arena of Supreme Court. Whether he enters or not would
depend on the fate of his petition for special leave;
2. If the petition seeking
grant of leave to appeal is dismissed, it is an expression of opinion by the
Court that a case for invoking appellate jurisdiction of the Court was not made
out;
3. If leave to appeal is
granted the appellate jurisdiction of the Court stands invoked; the gate for
entry in appellate arena is opened. The petitioner is in and the respondent may
also be JJ
called upon to face him,
though in an appropriate case, in spite of having granted leave to appeal, the
court may dismiss the appeal without noticing the respondent.
4. In spite of a petition
for special leave to appeal having been filed, the judgment, decree or order
against which leave to appeal has been sought for, continues to be final,
effective and binding as between the parties. Once leave to appeal has been
granted, the finality of the judgment, decree or order appealed against is put
in jeopardy though it continues to be binding and effective between the parties
unless it is a nullity or unless the Court may pass a specific order staying or
suspending the operation or execution of the judgment, decree or order under
challenge.
Dismissal at stage of
special leave - without reasons - no res judicata, no merger
Having so analysed and
defined the two stages of the jurisdiction conferred by Article 136, now we
proceed to deal with a number of decisions cited at the Bar during the course
of hearing and dealing with the legal tenor of an order of Supreme Court
dismissing a special leave petition. In Workmen of Cochin Port Trust Vs. Board
of Trustees of the Cochin Port Trust and Another 1978 (3) SCC 119, a
Three-Judges Bench of this Court has held that dismissal of special leave
petition by the Supreme Court by a non-speaking order of dismissal where no
reasons were given does not constitute res judicata. All that can be said to
have been decided by the Court is that it was not a fit case where special
leave should be granted. That may be due to various reasons. During the course
of the judgement, their Lordships have observed that dismissal of a special
leave petition under Article 136 against the order of a Tribunal did not
necessarily bar the entertainment of a writ petition under Article 226 against
the order of the Tribunal. The decision of Madras High Court in The Management
of W. India Match Co. Ltd. Vs. Industrial Tribunal, AIR 1958 Mad 398, 403 was
cited before their Lordships. The High Court had taken the view that the right
to apply for leave to appeal to Supreme Court under Article 136, if it could be
called a right at all, cannot be equated to a right to appeal and that a High
Court could not refuse to entertain an application under Article 226 of the
Constitution on the ground that the aggrieved party could move Supreme Court
under Article 136 of the Constitution. Their Lordships observed that such a
broad statement of law is not quite accurate, although substantially it is
correct.
In Indian Oil Corporation
Ltd. Vs. State of Bihar and Ors. - AIR 1986 SC 1780 there was a labour dispute
adjudicated upon by an award made by the Labour Court. The employer moved the
Supreme Court by filing special leave petition against the award which was
dismissed by a non-speaking order in the following terms :-
The special leave petition
is dismissed. Thereafter the employer approached the High Court by preferring a
petition under Article 226 of the Constitution seeking quashing of the award of
the Labour Court. On behalf of the employee the principal contention raised was
that in view of the order of the Supreme Court dismissing the special leave
petition preferred against the award of the Labour Court it was not legally
open to the employer to approach the High Court under Article 226 of the
Constitution challenging the very same award. The plea prevailed with the High
Court forming an opinion that the doctrine of election was applicable and the
employer having chosen the remedy of approaching a superior court and having
failed therein he could not thereafter resort to the alternative remedy of
approaching the High Court. This decision of the High Court was put in issue
before the Supreme Court. This Court held that the view taken by the High Court
was not right and that the High Court should have gone into the merits of the
writ petition. Referring to two earlier decisions of this Court, it was further
held :-
the effect of a
non-speaking order of dismissal of a special leave petition, without anything
more indicating the grounds or reasons of its dismissal must, by necessary
implication, be taken to be that this Court had decided only that it was not a
fit case where special leave should be granted. This conclusion may have been
reached by this Court due to several reasons. When the order passed by this
Court was not a speaking one, it is not correct to assume that this Court had
necessarily decided implicitly all the questions in relation to the merits of
the award, which was under challenge before this Court in the special leave
petition. A writ proceeding is a wholly different and distinct proceeding.
Questions which can be said to have been decided by this Court expressly,
implicity or even constructively while dismissing the special leave petition
cannot, of course, be re- opened in a subsequent writ proceeding before the
High Court. But neither on the principle of res judicata nor on any principle
of public policy analogous thereto, would the order of this Court dismissing
the special leave petition operate to bar the trial of identical issues in a
separate proceeding namely, the writ proceeding before the High Court merely on
the basis of an uncertain assumption that the issues must have been decided by
this Court at least by implication. It is not correct or safe to extend the
principle of res judicata or constructive res judicata to such an extent so as
to found it on mere guesswork.
It is not the policy of
this Court to entertain special leave petitions and grant leave under Article
136 of the Constitution save in those cases where some substantial question of
law of general or public importance is involved or there is manifest injustice
resulting from the impugned order or judgment. The dismissal of a special leave
petition in limine by a non-speaking order does not therefore justify any
inference that by necessary implication the contentions raised in the special
leave petition on the merits of the case have been rejected by this Court. It
may also be observed that having regard to the very heavy backlog of work in
this Court and the necessity to restrict the intake of fresh cases by strictly
following the criteria aforementioned, it has very often been the practice of this
Court to grant special leave in cases where the party cannot claim effective
relief by approaching the concerned High Court under Article 226 of the
Constitution. In such cases also the special leave petitions are quite often
dismissed only by passing a non-speaking order especially in view of the
rulings already given by this Court in the two decisions afore-cited, that such
dismissal of the special leave petition will not preclude the party from moving
the High Court for seeking relief under Article 226 of the Constitution. In
such cases it would work extreme hardship and injustice if the High Court were
to close its doors to the petitioner and refuse him relief under Article 226 of
the Constitution on the sole ground of dismissal of the special leave petition.
[emphasis supplied]
In our opinion what has
been stated by this Court applies also to a case where a special leave petition
having been dismissed by a non- speaking order the applicant approaches the
High Court by moving a petition for review. May be that the Supreme Court was
not inclined to exercise its discretionary jurisdiction under Article 136
probably because it felt that it was open to the applicant to move the High
Court itself. As nothing has been said specifically in the order dismissing the
special leave petition one is left merely guessing. We do not think it would be
just to deprive the aggrieved person of the statutory right of seeking relief
in review jurisdiction of the High Court if a case for relief in that
jurisdiction could be made out merely because a special leave petition under
Article 136 of the Constitution had already stood rejected by the Supreme Court
by a non-speaking order.
In M/s. Rup Diamonds and
others Vs. Union of India and others AIR 1989 SC 674, the law declared by this
Court is that it cannot be said that the mere rejection of special leave
petition could, by itself, be construed as the imprimatur of this Court on the
correctness of the decision sought to be appealed against.
In Wilson Vs. Colchester
Justices 1985 (2) All England Law Reports 97, the House of Lords stated;
There are a multitude of
reasons why, in a particular case, leave to appeal may be refused by an Appeal
Committee. I shall not attempt to embark on an exhaustive list for it would be
impossible to do so. One reason may be that the particular case raises no
question of general principle but turns on its own facts. Another may be that
the facts of the particular case are not suitable as a foundation for
determining some question of general principle. . Conversely the fact that
leave to appeal is given is not of itself an indication that the judgments
below are thought to be wrong. It may well be that leave is given in order that
the relevant law may be authoritatively restated in clearer terms.
In Supreme Court Employees
Welfare Association Vs. Union of India and Another 1989 (4) SCC 187, and
Yogendra Narayan Chowdhury and Others Vs. Union of India and Others 1996 (7)
SCC 1, both decisions by Two-Judges Benches, this Court has held that a
non-speaking order of dismissal of a special leave petition cannot lead to
assumption that it had necessarily decided by implication the correctness of
the decision under challenge.
We may refer to a recent
decision, by Two-Judges Bench, of this Court in V.M. Salgaocar & Bros. Pvt.
Ltd. Vs. Commissioner of Income Tax 2000 (3) Scale 240, holding that when a
special leave petition is dismissed, this Court does not comment on the
correctness or otherwise of the order from which leave to appeal is sought.
What the Court means is that it does not consider it to be a fit case for
exercising its jurisdiction under Article 136 of the Constitution. That
certainly could not be so when appeal is dismissed though by a non- speaking
order. Here the doctrine of merger applies. In that case the Supreme Court
upholds the decision of the High Court or of the Tribunal. This doctrine of
merger does not apply in the case of dismissal of special leave petition under
Article 136. When appeal is dismissed, order of the High Court is merged with
that of the Supreme Court. We find ourselves in entire agreement with the law
so stated. We are clear in our mind that anorder dismissing a special leave
petition, more so when it is by a non-speaking order, does not result in merger
of the order impugned into the order of the Supreme Court.
A few decisions which
apparently take a view to the contrary may now be noticed. In Sree Narayana
Dharmasanghom Trust Vs. Swami Prakasananda and Others 1997 (6) SCC 78, it was
held that a revisional order of the High Court against which a petition for
special leave to appeal was dismissed in limine could not have been reviewed by
the High Court subsequent to dismissal of S.L.P. by Supreme Court. This
decision proceeds on the premises, as stated in para 6 of the order, that It is
settled law that even the dismissal of special leave petition in limine
operates as a final order between the parties. In our opinion, the order is
final in the sense that once a special leave petition is dismissed, whether by
a speaking or non- speaking order or whether in limine or on contest, second
special leave petition would not lie. However, this statement cannot be
stretched and applied to hold that such an order attracts applicability of
doctrine of merger and excludes the jurisdiction of the Court or authority
passing the order to review the same.
In State of Maharashtra and
Anr. Vs. Prabhakar Bhikaji Ingle 1996 (3) SCC 463, the view taken by a
Two-Judges Bench of this Court is that the dismissal of special leave petition
without a speaking order does not constitute res judicata but the order dealt
with in S.L.P., disposed of by a non-speaking order cannot be subjected to
review by the Tribunal. In our opinion the law has been too broadly stated
through the said observation. Learned Judges have been guided by the
consideration of judicial discipline which, as we would shortly deal with, is a
principle of great relevance and may be attracted in an appropriate case. But
we find it difficult to subscribe to the view, as expressed in this decision,
that dismissal of SLP without a speaking order amounts to confirmation by
Supreme Court of the order against which leave was sought for and the order had
stood merged in the order of Supreme Court.
Dismissal of SLP by
speaking or reasoned order - no merger but Rule of discipline and Article 141
attracted. The efficacy of an order disposing of a special leave petition under
Article 136 of the Constitution came up for the consideration of Constitution
Bench in Penu Balakrishna Iyer and Ors. Vs. Ariya M. Ramaswami Iyer and Ors. -
AIR 1965 SC 165 in the context of revocation of a special leave once granted.
This Court held that in a given case if the respondent brings to the notice of
the Supreme Court facts which would justify the Court in revoking the leave
earlier granted by it, the Supreme Court would in the interest of justice not
hesitate to adopt that course. It was therefore held that no general rules
could be laid down governing the exercise of wide powers conferred on this
Court under Article 136; whether the jurisdiction of this Court under Article
136 should be exercised or not and if used, on what terms and conditions, is a
matter depending on the facts of each case. If at the stage when special leave
is granted the respondent- caveator appears and resists the grant of special
leave and the ground urged in support of resisting the grant of special leave
is rejected on merits resulting in grant of special leave then it would not be
open to the respondent to raise the same point over again at the time of the
final hearing of the appeal. However, if the respondent/caveator does not
appear, or having appeared, does not raise a point, or even if he raised a
point and the Court does not decide it before grant of special leave, the same
point can be raised at the time of final hearing. There would be no technical
bar of res judicata. The Constitution Bench thus makes it clear that the order
disposing of a special leave petition has finality of a limited nature
extending only to the points expressly decided by it.
The underlying logic
attaching efficacy to an order of the Supreme Court dismissing S.L.P. after
hearing counsel for the parties is discernible from a recent Three-Judges Bench
decision of this Court in Abbai Maligai Partnership Firm & Anr. Vs. K.
Santhakumaran & Ors. 1998 (7) SCC 386. In the matter of eviction proceeding
initiated before the Rent Controller, the order passed therein was subjected to
appeal and then revision before the High Court. Special leave petitions were
preferred before the Supreme Court where the respondents were present on
caveat. Both the sides were heard through the senior advocates representing
them. The special leave petitions were dismissed. The High Court thereafter
entertained review petitions which were highly belated and having condoned the
delay reversed the orders made earlier in civil revision petitions. The orders
in review were challenged by filing appeals under leave granted on special
leave petitions. This Court observed that what was done by the learned single
Judge was subversive of judicial discipline. The facts and circumstances of the
case persuaded this Court to form an opinion that the tenants were indulging in
vexatious litigations, abusing the process of the Court by approaching the High
Court and the very entertainment of review petitions (after condoning a long
delay of 221 days) and then reversing the earlier orders was an affront to the
order of this Court. However the learned judges deciding the case have nowhere
in the course of their judgment relied on doctrine of merger for taking the
view they have done. A careful reading of this decision brings out the correct
statement of law and fortifies us in taking the view as under.
A petition for leave to
appeal to this Court may be dismissed by a non-speaking order or by a speaking
order. Whatever be the phraseology employed in the order of dismissal, if it is
a non-speaking order, i.e. it does not assign reasons for dismissing the
special leave petition, it would neither attract the doctrine of merger so as
to stand substituted in place of the order put in issue before it nor would it
be a declaration of law by the Supreme Court under Article 141 of the
Constitution for there is no law which has been declared. If the order of
dismissal be supported by reasons then also the doctrine of merger would not be
attracted because the jurisdiction exercised was not an appellate jurisdiction
but merely a discretionary jurisdiction refusing to grant leave to appeal. We
have already dealt with this aspect earlier. Still the reasons stated by the
Court would attract applicability of Article 141 of the Constitution if there
is a law declared by the Supreme Court which obviously would be binding on all
the courts and tribunals in India and certainly the parties thereto. The
statement contained in the order other than on points of law would be binding
on the parties and the court or tribunal, whose order was under challenge on
the principle of judicial discipline, this Court being the apex court of the
country. No court or tribunal or parties would have the liberty of taking or
canvassing any view contrary to the one expressed by this Court. The order of
Supreme Court would mean that it has declared the law and in that light the
case was considered not fit for grant of leave. The declaration of law will be
governed by Article 141 but still, the case not being one where leave was
granted, the doctrine of merger does not apply. The Court sometimes leaves the
question of law open. Or it sometimes briefly lays down the principle, may be,
contrary to the one laid down by the High Court and yet would dismiss the
special leave petition. The reasons given are intended for purposes of Article
141. This is so done because in the event of merely dismissing the special
leave petition, it is likely that an argument could be advanced in the High
Court that the Supreme Court has to be understood as not to have differed in
law with the High Court.
Incidentally we may notice
two other decisions of this Court which though not directly in point, the law
laid down wherein would be of some assistance to us. In Shankar Ramchandra
Abhyankar Vs. Krishnaji Dattatraya Bapat AIR 1970 SC 1, this Court vide para 7
has emphasized three pre conditions attracting applicability of doctrine of
merger. They are : i) the jurisdiction exercised should be appellate or
revisional jurisdiction; ii) the jurisdiction should have been exercised after
issue of notice; and, iii) after a full hearing in presence of both the
parties. Then the appellate or revisional order would replace the judgment of
the lower court and constitute the only final judgment. In Sushil Kumar Sen Vs.
State of Bihar AIR 1975 SC 1185 the doctrine of merger usually applicable to
orders passed in exercise of appellate or revisional jurisdiction was held to
be applicable also to orders passed in exercise of review jurisdiction. This
Court held that the effect of allowing an application for review of a decree is
to vacate a decree passed. The decree that is subsequently passed on review
whether it modifies, reverses or confirms the decree originally passed, is a
new decree superseding the original one. The distinction is clear. Entertaining
an application for review does not vacate the decree sought to be reviewed. It
is only when the application for review has been allowed that the decree under
review is vacated. Thereafter the matter is heard afresh and the decree passed
therein, whatever be the nature of the new decree, would be a decree
superseding the earlier one. The principle or logic flowing from the above-said
decisions can usefully be utilised for resolving the issue at hand. Mere
pendency of an application seeking leave to appeal does not put in jeopardy the
finality of the decree or order sought to be subjected to exercise of appellate
jurisdiction by the Supreme Court. It is only if the application is allowed and
leave to appeal granted then the finality of the decree or order under
challenge is jeopardised as the pendency of appeal reopens the issues decided
and this court is then scrutinising the correctness of the decision in exercise
of its appellate jurisdiction.
In Gopalbandhu Biswal Vs.
Krishna Chandra Mohanty & Ors. 1998 (4) SCC 447 there are observations vide
para 8 and at a few other places that rejection of a special leave petition against
the order of administrative tribunal makes the order of the Tribunal final and
binding and the party cannot thereafter go back to the Tribunal to apply for
review. However, paras 12 & 13 of the judgment go to show that (i) the
applications for review before the Tribunal were not within the principle laid
down under Order 47 Rule 1 of the C.P.C., (ii) did not comply with the relevant
rules contained in Central Administrative Tribunal (Procedure) Rules, 1987,
(iii) the review applicants were not in the category of persons aggrieved, and
(iv) the review petitions were filed beyond the period of limitation prescribed
and the delay was not explained. Thus the case proceeds on the peculiar facts
of its own.
In Junior Telecom Officers
Forum & Ors. Vs. Union of India & Ors. 1993 Supp.(4) SCC 693 also the
view taken by a Two- Judges Bench of this Court is that the dismissal of the
SLP, though in limine, was on merits and the Court had declined to interfere
with the impugned judgment of the High Court except to a limited extent as
noticed therein whereafter the Tribunal could not have reopened the matter. The
order passed earlier by the Supreme Court is quoted in para 5 of the report. It
clearly states that on SLP itself the Court heard counsel of both the sides. While
dismissing the special leave petition on merits, this Court had to some extent
interfere with the order of the High Court which was put in issue before the
Supreme Court. It is clear that the Supreme Court had exercised appellate
jurisdiction vested in it under Article 136 of the Constitution and heard both
the sides though the leave was not formally granted and the special leave
petition was not formally converted into an appeal. Hence this decision rests
on the special facts of that case.
In Supreme Court Employees
Welfare Associations case (supra), this Court held :-
When Supreme Court gives
reasons while dismissing a special leave petition under Article 136 the
decision becomes one which attracts Article 141. But when no reason is given
and the special leave petition is summarily dismissed, the Court does not lay
down any law under Article 141. The effect of a non-speaking order of dismissal
of a special leave petition without anything more indicating the grounds or
reasons of its dismissal must, by necessary implication, be taken to be that
the Supreme Court had decided only that it was not a fit case where special
leave petition should be granted.
Leave granted - dismissal
without reasons - merger results It may be that in spite of having granted leave
to appeal, the Court may dismiss the appeal on such grounds as may have
provided foundation for refusing the grant at the earlier stage. But that will
be a dismissal of appeal. The decision of this Court would result in
superseding the decision under appeal attracting doctrine of merger. But if the
same reasons had prevailed with this Court for refusing leave to appeal, the
order would not have been an appellate order but only an order refusing to
grant leave to appeal.
Doctrine of merger and
review :-
This question directly
arises in the case before us.
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 Courts 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.
It will be useful to refer
to Order 47 Rule 1 of the Code of Civil Procedure 1908. It reads as follows :
R.1. Application for review
of judgment.
(1) Any person considering
himself aggrieved, -
(a) by a decree or order
from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order
from which no appeal is allowed, or
(c) by a decision on
reference from a Court of Small Causes, and who, from the discovery of new and
important matter or evidence which, after the exercise of due diligence, was
not within his knowledge or could not be produced by him at the time when the
decree was passed or order made, or on account of some mistake or error
apparent on the face of the record, or for any other sufficient reason, desires
to obtain a review of the decree passed or order made against him, may apply
for a review of judgment to the Court which passed the decree or made the
order.
(2) A party who is not
appealing from a decree or order may apply for a review of judgment
notwithstanding the pendency of an appeal by some other party except where the
ground of such appeal is common to the applicant and the appellant, or when,
being respondent, he can present to the Appellate Court the case on which he
applies for the review.
[Explanation. - The fact
that the decision on a question of law on which the judgment of the Court is
based has been reversed or modified by the subsequent decision of a superior
Court in any other case, shall not be a ground for the review of such
judgment.]
For our purpose it is
clause (a) sub-rule(1) which is relevant. It contemplates a situation where an
appeal is allowed but no appeal has been preferred. The Rule came up for
consideration of this Court in Thungabhadra Industries Ltd. Vs. The Govt. of
A.P. (AIR 1964 SC 1372) in the context of Article 136 of the Constitution of
India. The applicant had filed an application for review of the order of the
High Court refusing to grant a certificate under Article 133 of the
Constitution. The applicant also filed an application for special leave to
appeal in respect of the same matter under Article 136 along with an
application for condonation of delay. The Supreme Court refused to condone the
delay and rejected the application under Article 136. When the application for
review came up for consideration before the High Court, it was dismissed on the
ground that the special leave petition had been dismissed by the Supreme Court.
This Court held that the crucial date for determining whether or not the terms
of Order 47 Rule 1(1) CPC are satisfied is the date when the application for
review is filed. If on that date no appeal has been filed it is competent for
the Court hearing the petition for review to dispose of the application on the
merits notwithstanding the pendency of the appeal, subject only to this, that if
before the application for review is finally decided the appeal itself has been
disposed of, the jurisdiction of the Court hearing the review petition would
come to an end. On the date when the application for review was filed the
applicant had not filed an appeal to this Court and therefore there was no bar
to the petition for review being entertained.
Let us assume that the
review is filed first and the delay in the SLP is condoned and the special
leave petition is ultimately granted and the appeal is pending in this Court.
The position then, under Order 47 Rule 1 CPC is that still the review can be
disposed of by the High Court. If the review of a decree is granted before the
disposal of the appeal against the decree, the decree appealed against will cease
to exist and the appeal would be rendered incompetent. An appeal cannot be
preferred against a decree after a review against the decree has been granted.
This is because the decree reviewed gets merged in the decree passed on review
and the appeal to the superior court preferred against the earlier decree - the
one before review - becomes infructuous.
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. The reason is obvious. Once special leave is granted the
jurisdiction to consider the validity of the High Courts order vests in the
Supreme Court and the High Court cannot entertain a review thereafter, unless
such a review application was preferred in the High Court before special leave
was granted. Conclusions :-
We have catalogued and
dealt with all the available decisions of this Court brought to our notice on
the point at issue. It is clear that as amongst the several two-Judges Bench
decisions there is a conflict of opinion and needs to be set at rest. The
source of power conferring binding efficacy on decisions of this Court is not
uniform in all such decisions. Reference is found having been made to (i)
Article 141 of the Constitution, (ii) doctrine of merger, (iii) res-judicata,
and (iv) Rule of discipline flowing from this Court being the highest court of
the land.
A petition seeking grant of
special leave to appeal may be rejected for several reasons. For example, it
may be rejected (i) as barred by time, or (ii) being a defective presentation,
(iii) the petitioner having no locus standi to file the petition, (iv) the
conduct of the petitioner disentitling him to any indulgence by the Court, (iv)
the question raised by the petitioner for consideration by this Court being not
fit for consideration or deserving being dealt with by the apex court of the
country and so on. The expression often employed by this Court while disposing
of such petitions are - heard and dismissed, dismissed, dismissed as barred by
time and so on. May be that at the admission stage itself the opposite party
appears on caveat or on notice and offers contest to the maintainability of the
petition. The Court may apply its mind to the meritworthiness of the petitioners
prayer seeking leave to file an appeal and having formed an opinion may say
dismissed on merits. Such an order may be passed even ex-parte, that is, in the
absence of the opposite party. In any case, the dismissal would remain a
dismissal by a non-speaking order where no reasons have been assigned and no
law has been declared by the Supreme Court. The dismissal is not of the appeal
but of the special leave petition. Even if the merits have been gone into, they
are the merits of the special leave petition only. In our opinion neither
doctrine of merger nor Article 141 of the Constitution is attracted to such an
order. Grounds entitling exercise of review jurisdiction conferred by Order 47
Rule 1 of the C.P.C. or any other statutory provision or allowing review of an
order passed in exercise of writ or supervisory jurisdiction of the High Court
(where also the principles underlying or emerging from Order 47 Rule 1 of the
C.P.C. act as guidelines) are not necessarily the same on which this court
exercises discretion to grant or not to grant special leave to appeal while
disposing of a petition for the purpose. Mere rejection of special leave
petition does not take away the jurisdiction of the court, tribunal or forum
whose order forms the subject matter of petition for special leave to review
its own order if grounds for exercise of review jurisdiction are shown to
exist. Where the order rejecting an SLP is a speaking order, that is, where
reasons have been assigned by this Court for rejecting the petition for special
leave and are stated in the order still the order remains the one rejecting
prayer for the grant of leave to appeal. The petitioner has been turned away at
the threshold without having been allowed to enter in the appellate
jurisdiction of this Court. Here also the doctrine of merger would not apply.
But the law stated or declared by this Court in its order shall attract
applicability of Article 141 of the Constitution. The reasons assigned by this
Court in its order expressing its adjudication (expressly or by necessary
implication) on point of fact or law shall take away the jurisdiction of any
other court, tribunal or authority to express any opinion in conflict with or
in departure from the view taken by this Court because permitting to do so would
be subversive of judicial discipline and an affront to the order of this Court.
However this would be so not by reference to the doctrine of merger.
Once a special leave
petition has been granted, the doors for the exercise of appellate jurisdiction
of this Court have been let open. The order impugned before the Supreme Court
becomes an order appealed against. Any order passed thereafter would be an
appellate order and would attract the applicability of doctrine of merger. It
would not make a difference whether the order is one of reversal or of
modification or of dismissal affirming the order appealed against. It would
also not make any difference if the order is a speaking or non- speaking one.
Whenever this Court has felt inclined to apply its mind to the merits of the
order put in issue before it though it may be inclined to affirm the same, it
is customary with this Court to grant leave to appeal and thereafter dismiss
the appeal itself (and not merely the petition for special leave) though at times
the orders granting leave to appeal and dismissing the appeal are contained in
the same order and at times the orders are quite brief. Nevertheless, the order
shows the exercise of appellate jurisdiction and therein the merits of the
order impugned having been subjected to judicial scrutiny of this Court.
To merge means to sink or
disappear in something else; to become absorbed or extinguished; to be combined
or be swallowed up. Merger in law is defined as the absorption of a thing of
lesser importance by a greater, whereby the lesser ceases to exist, but the
greater is not increased; an absorption or swallowing up so as to involve a
loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp.
1067-1068)
We may look at the issue
from another angle. The Supreme Court cannot and does not reverse or modify the
decree or order appealed against while deciding a petition for special leave to
appeal. What is impugned before the Supreme Court can be reversed or modified
only after granting leave to appeal and then assuming appellate jurisdiction
over it. If the order impugned before the Supeme Court cannot be reversed or
modified at the SLP stage obviously that order cannot also be affirmed at the
SLP stage.
To sum up our conclusions
are :-
(i) Where an appeal or
revision is provided against an order passed by a court, tribunal or any other
authority before superior forum and such superior forum modifies, reverses or
affirms the decision put in issue before it, the decision by the subordinate
forum merges in the decision by the superior forum and it is the latter which
subsists, remains operative and is capable of enforcement in the eye of law.
ii) The jurisdiction
conferred by Article 136 of the Constitution is divisible into two stages.
First stage is upto the disposal of prayer for special leave to file an appeal.
The second stage commences if and when the leave to appeal is granted and
special leave petition is converted into an appeal.
(iii) Doctrine of merger is
not a doctrine of universal or unlimite application. It will depend on the
nature of jurisdiction exercised by the superior forum and the content or
subject-matter of challenge laid or capable of being laid shall be
determinative of the applicability of merger. The superior jurisdiction should
be capable of reversing, modifying or affirming the order put in issue before
it. Under Article 136 of the Constitution the Supreme Court may reverse, modify
or affirm the judgment-decree or order appealed against while exercising its
appellate jurisdiction and not while exercising the discretionary jurisdiction
disposing of petition for special leave to appeal. The doctrine of merger can
therefore be applied to the former and not to the latter.
iv) An order refusing
special leave to appeal may be a non- speaking order or a speaking one. In
either case it does not attract the doctrine of merger. An order refusing
special leave to appeal does not stand substituted in place of the order under
challenge. All that it means is that the Court was not inclined to exercise its
discretion so as to allow the appeal being filed.
v) If the order refusing
leave to appeal is a speaking order, i.e. gives reasons for refusing the grant
of leave, then the order has two implications. Firstly, the statement of law
contained in the order is a declaration of law by the Supreme Court within the
meaning of Article 141 of the Constitution. Secondly, other than the
declaration of law, whatever is stated in the order are the findings recorded
by the Supreme Court which would bind the parties thereto and also the court,
tribunal or authority in any proceedings subsequent thereto by way of judicial
discipline, the Supreme Court being the apex court of the country. But, this
does not amount to saying that the order of the court, tribunal or authority
below has stood merged in the order of the Supreme Court rejecting special
leave petition or that the order of the Supreme Court is the only order binding
as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal
has been granted and appellate jurisdiction of Supreme Court has been invoked
the order passed in appeal would attract the doctrine of merger; the order may
be of reversal, modification or merely affirmation.
(vii) On an appeal having
been preferred or a petition seeking leave to appeal having been converted into
an appeal before Supreme Court the jurisdiction of High Court to entertain a
revew petition is lost thereafter as provided by sub-rule (1) of Rule (1) of
Order 47 of the C.P.C.
Having thus made the law
clear, the case at hand poses no problem for solution. The earlier order of the
High Court was sought to be subjected to exercise of appellate jurisdiction of
Supreme Court by the State of Kerala wherein it did not succeed. The prayer
contained in the petition seeking leave to appeal to this Court was found
devoid of any merits and hence dismissed. The order is a non- speaking and
unreasoned order. All that can be spelled out is that the Court was not
convinced of the need for exercising its appellate jurisdiction. The order of
the High Court dated 17.12.1982 did not merge in the order dated 18.7.1983
passed by this Court. So it is available to be reviewed by the High Court.
Moreover such a right of review is now statutorily conferred on the High Court
by sub-section (2) of Section 8C of the Kerala Act. Legislature has taken care
to confer the jurisdiction to review on the High Court as to such appellate
orders also against which though an appeal was carried to the Supreme Court,
the same was not admitted by it. An appeal would be said to have been admitted
by the Supreme Court if leave to appeal was granted. The constitutional
validity of sub-section (2) of Section 8C has not been challenged. Though, Shri
T.L.V. Iyer, the learned senior counsel for the appellant made a feeble attempt
at raising such a plea at the time of hearing but unsuccessfully, as such a
plea has not so far been raised before the High Court also not in the petition
filed before this Court.
No fault can be found with
the approach of the High Court. The appeal is dismissed. No order as to the
costs.
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