9911796707
TMI Blog2000 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ide 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 the Kerala Government Gazette, Extraordinary, dated August 23, 1971. The Act was given retrospective operation by declaring that it shall be deemed to have come into force on May 10, 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 the 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 registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf 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 December 14, 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 the merits. Feeling aggrieved the petitioners have sought for leave to appeal to this court which has been granted on September 16, 1996. On March 14, 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, learned senior counsel for the appellant, has raised two contentions: firstly, that the order of the High Court dated December 17, 1982, having merged into the order of this court dated July 18, 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 December 17, 1982, passed by the High Court and before the High Court is entirely misconceived ; sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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 that if the subject-matter of the two proceedings is not identical, there can be no merger. In State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144 ; 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 the 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 Gojer Brothers (P.) Ltd. v. Shri Rattan Lal Singh, AIR 1974 SC 1380, this court made it clear that so far as merg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal 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 a 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 the Supreme Court not fettered by the sweep of preceding articles. Article 136 opens with a non obstante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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 are 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 the 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 the appellate jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the 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. v. State of Bihar [1986] 69 FJR 287 [1987] 167 ITR 897, there was a labour dispute adjudicated upon by an award made by the Labour Court. The employer moved the Supreme Court by filing a special leave petition against the award which was dismissed by a non-speaking order in the following terms (page 899 of ITR) : "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not to grant special leave except 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 aforecited, 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a non-speaking order of dismissal of a special leave petition cannot lead to an assumption that it had necessarily decided by implication the correctness of the decision under challenge. We may refer to a recent decision, by a two-judge Bench of this court in V. M. Salgaocar and Bros. Pvt. Ltd. v. CIT [2000] 243 ITR 383 ; [2000] 97 FJR 192 ; [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 a special leave petition under article 136. When an appeal is dismissed, the order of the High Court merges with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench in Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195, 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 the 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 ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttract 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 the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle or logic flowing from the abovesaid 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 that 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 Gopabandhu Biswal v. Krishna Chandra Mohanty. AIR 1998 SC 1872; [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 the 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 and 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 XLVII, rule 1 of the Code of Civil Procedure, 1908, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a dismissal of appeal. The decision of this court would result in superseding the decision under appeal attracting the 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 interlinked. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate 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 XLVII, rule 1(1), Code of Civil Procedure, 1908, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 merit worthiness of the petitioner's 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 meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. (Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the 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 the appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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