2000 (7) TMI 67 - SC - Indian Laws

SC dismisses Kerala's appeal petition, upholds High Court's review jurisdiction under Section 8C(2) of Kerala Act

Kunhayammed And Others Versus State Of Kerala And Another

The SC dismissed the State of Kerala's petition for special leave to appeal under Article 136, finding it devoid of merit through a non-speaking order. ... Doctrine of merger and review - legal effect and finality of a non-speaking order - retrospective operation - 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 - 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 - Held that:- 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 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 the 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. 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 a 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. The first stage is up to the disposal of the prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited 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 a 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 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 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 the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of rule 1 of Order XLVII of the Code of Civil Procedure. 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 the 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 merit and hence dismissed. The order is a non-speaking and unreasoned order. All that can be spelt out is that the court was not convinced of the need for, exercising its appellate jurisdiction. The order of the High Court dated December 17, 1982, did not merge in the order dated July 13, 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. The 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, 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 nor in the petition filed before this court. No fault can be found with the approach of the High Court. The appeal is dismissed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in the judgment are:(i) Whether the doctrine of merger applies to an order of the High Court when a special leave petition (SLP) under Article 136 of the Constitution is dismissed by the Supreme Court;(ii) The legal effect and finality of a non-speaking order dismissing a special leave petition under Article 136, particularly whether such dismissal causes the High Court order to merge into the Supreme Court order;(iii) Whether the High Court retains jurisdiction to entertain a review petition against its own order after the Supreme Court has dismissed a special leave petition challenging that order;(iv) The distinction between the two stages of jurisdiction under Article 136: the stage of granting or refusing special leave and the stage of hearing the appeal after leave is granted;(v) The applicability of principles such as res judicata, judicial discipline, and Article 141 of the Constitution in the context of dismissal of special leave petitions;(vi) The constitutional and statutory validity of retrospective amendments conferring review jurisdiction on the High Court in cases where the Supreme Court has dismissed an SLP;(vii) The scope and limitations of the discretionary jurisdiction exercised by the Supreme Court under Article 136 and its implications for subsequent proceedings.2. ISSUE-WISE DETAILED ANALYSISDoctrine of Merger and Its Applicability to Dismissal of Special Leave Petition:The doctrine of merger, rooted in common law principles, holds that when a superior court exercises appellate or revisional jurisdiction and modifies, reverses, or affirms an order of an inferior court, the inferior order merges into the superior court's order, which then becomes the operative and enforceable decree. This doctrine, however, is not of universal application and depends on the nature of jurisdiction exercised and the subject-matter of the challenge.Precedents such as CIT v. Amritlal Bhogilal and Co., State of Madras v. Madurai Mills Co. Ltd., and Gojer Brothers (P.) Ltd. v. Shri Rattan Lal Singh elucidate that merger applies where the superior forum has exercised appellate or revisional jurisdiction after notice and hearing, resulting in a final judgment replacing the lower order.In the present context, the Supreme Court's dismissal of a special leave petition under Article 136 is an exercise of discretionary jurisdiction, not appellate jurisdiction. The Court does not reverse, modify, or affirm the impugned order at this stage. Therefore, the doctrine of merger does not apply to non-speaking or even speaking orders dismissing SLPs. The High Court order challenged by the SLP remains intact and does not merge into the Supreme Court's order rejecting leave.Distinction Between Stages Under Article 136:The Court emphasized that the jurisdiction under Article 136 involves two distinct stages:(i) The first stage is the consideration of the petition for special leave to appeal, where the Supreme Court exercises discretionary jurisdiction to grant or refuse leave. This is not an appellate exercise.(ii) The second stage commences if leave is granted, converting the petition into an appeal, where the Court exercises appellate jurisdiction and may affirm, reverse, or modify the order under challenge.The doctrine of merger applies only to the latter stage, where appellate jurisdiction is exercised. Dismissal of a special leave petition at the first stage, especially by a non-speaking order, does not affect the finality of the lower court's order or cause merger.Legal Effect of Non-Speaking Orders Dismissing Special Leave Petitions:Non-speaking orders dismissing SLPs merely indicate that the Court did not find the case fit for grant of leave. Such orders do not constitute a decision on merits or an affirmation of the lower court's order. The Court cited several precedents, including Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Indian Oil Corporation Ltd. v. State of Bihar, to affirm that non-speaking dismissals do not attract res judicata or merger principles and do not preclude subsequent proceedings on the same issues.The Court further noted that the dismissal of an SLP does not bar the aggrieved party from seeking relief under writ jurisdiction or statutory review mechanisms available before the High Court or other forums.Review Jurisdiction of the High Court Post Dismissal of SLP:The High Court retains jurisdiction to entertain review petitions against its own orders even after the Supreme Court dismisses a special leave petition challenging those orders, provided no leave to appeal has been granted. This is supported by statutory provisions such as Order XLVII, Rule 1 of the Code of Civil Procedure, which allows review applications where an appeal is allowed but not preferred.The Court referred to Thungabhadra Industries Ltd. v. Government of Andhra Pradesh, which held that the crucial date for determining the maintainability of a review petition is the date of filing the review application. If no appeal (including by way of special leave) has been admitted by the Supreme Court at that time, the High Court may entertain the review petition on merits.Once special leave is granted and appellate jurisdiction invoked, the High Court loses jurisdiction to entertain review petitions on the same order, as the appellate jurisdiction of the Supreme Court supersedes the High Court's jurisdiction.Speaking Orders Dismissing Special Leave Petitions and Article 141:When the Supreme Court dismisses an SLP by a speaking order that assigns reasons, the order constitutes a declaration of law under Article 141 of the Constitution, which is binding on all courts and tribunals. Such an order, while not attracting merger, binds parties and lower courts by judicial discipline, precluding contradictory views.However, even in such cases, the order is a refusal to grant leave to appeal and not an appellate decision affirming the lower order. The doctrine of merger remains inapplicable.Competing Views and Judicial Discipline:The Court acknowledged conflicting precedents that suggested dismissal of SLPs may operate as final orders precluding review or further challenge. It clarified that such views overextend the doctrine of merger and res judicata principles.Judicial discipline and respect for the Supreme Court's pronouncements require that courts and parties adhere to the law declared in speaking orders dismissing SLPs. Nonetheless, this does not extinguish the jurisdiction of the High Court to review its orders where no leave to appeal has been granted.Constitutional and Statutory Framework:The Court examined the Kerala Private Forests (Vesting and Assignment) Act, 1971, and its retrospective amendment (Section 8C(2)) conferring power on the Government to file review applications in the High Court against its orders even after dismissal of SLPs by the Supreme Court. The constitutional validity of this provision was not challenged.This statutory provision aligns with the legal principle that dismissal of SLPs does not bar review jurisdiction of the High Court, especially where the SLP was dismissed without granting leave to appeal.Application of Law to Facts:In the case at hand, the State of Kerala's SLP against the High Court's order was dismissed by a non-speaking order. The High Court entertained the Government's review petition under the amended Section 8C(2) of the Kerala Act. The appellants contended that the High Court lacked jurisdiction to entertain the review petition, asserting merger of orders and finality of the Supreme Court's dismissal.The Court rejected these contentions, holding that the non-speaking dismissal of the SLP did not merge the High Court's order into the Supreme Court's order. The High Court's jurisdiction to entertain the review petition was valid and supported by statutory provisions.The Court found no fault with the High Court's approach and dismissed the appeal.3. SIGNIFICANT HOLDINGS'The doctrine of merger is not a doctrine of universal or unlimited 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 a petition for special leave to appeal. The doctrine of merger can, therefore, be applied to the former and not to the latter.''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.''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.''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 doctrine of merger; the order may be of reversal, modification or merely affirmation.''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.''The dismissal of a special leave petition in limine by a non-speaking order 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.''Mere rejection of a special leave petition does not take away the jurisdiction of the court, the 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.'