# KUNHA YAMMED AND ORS v. ST A TE OF KERALA AND ANR

- **Citation:** [2000] Supp. 1 S.C.R. 538
- **Court:** Supreme Court of India
- **Decided:** 2000-07-19
- **Bench:** K.T. Thomas, D.P. Mohapatra, R.C. Lahoti
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kunha-yammed-and-ors-v-st-a-te-of-kerala-and-anr-17473
- **Pages:** 29

## Headnote

Constitution of India, 1950: Articles 136 and 141.
Special Leave Petition-Dismissal-Thereafter Review Petition filed in
t
c High Court-Permissibility of
Special Leave Petition-Power of Supreme Court-Nature and scope
of jurisdiction of Supreme Court-Pendency of Special leave Petition-Grant
of Special Leave-Effect of
D
Kera/a Forest Tribunal-Order passed by-Appeal Preferred against
order-Dismissal by High Court-No statutory remedy of appeal, Revision or
review available against said order-Special Leave Petition filed in Supreme
Court against said order-Dismissal of Special Leave petition on meritsThereafter Review Petition filed in the High Court-Held maintainable.
E
Code of Civil Procedure, 1908:
Order 47-Rule I-Expression 'no appeal has been preferred' Scope
of
F
Kera/a Private Forests (Vesting and Assignment) Act. 1971: Section
8-C (as inserted by Amendment Act No. 36 of 1986)-Scope of
Doctrine of Merger-Nature and scope of-Applicability of the
Doctrine-Held it is not a Doctrine of Unlimited Application-Its applicability
depends on the nature <?(Jurisdiction exercised by the superior forum and the
G subject matter of challenge.
Practice and procedure-Appeal-Raising fresh plea-Permissibility
of
The Forest Tribunal constituted under the provisions of the Kerala
H Private Forests (Vesting and Assignment) Act, 1971 passed an order dated
.,__
538
KUN HAY AMMED v. STA TE
539
.
11.8.1982 holding that the land in question did not vest in the Government. A
Appeal preferred by the State of Keral:i before the High Court was dismissed
on 17.12.1982. As there was no statutory remedy of appeal, revision or review
provided against the order of the High Court the State filed a special leave
·1
petition before the Supreme Court. By its order dated 18.7.1983 Supreme
Court dismissed the petition on merits. By Amendment Act No. 36of1986
Section SC was inserted in the 1971 Act giving it a retrospective effect from B
19.11.1983. This Section empowered the Government to file appeal or
application for review in certain cases. In January, 1984 State of Kerala filed
an application before the Kerala High Court ~king review of the order dated
17.12.1982. On behalfofthe petitioners a preliminary objection was raised
as to the maintainability of the review petition. By its order dated 14.12.1995 C
the High Court rejected the preliminary objection and directed the review
petition to be posted for hearing on merits. Against the said order petitioners
sought for leave to appeal to this Court which was granted on 16.9.1996.
On behalf of the applicant it was contended that (i) the order of the High
Court dated 17.12.1982 having merged into the order of this Court dated D
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
before the High Court is entirely misconceived; (ii) 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 E
prayer for review of its onler much less disturb the order in exercise of review
jurisdiction.
Dismissing the appeal, this Court
HELD : 1. No fault can be found with the approach of the High Court In F
the instant case the earlier order of the High Court was sought to be subjected
to exercise of appellate jurisdiction of Supreme Court by the State ofKerala
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 G
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 onlerdated 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-S

## Text

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A
KUNHA YAMMED AND ORS.
v.
ST A TE OF KERALA AND ANR.
'I
JULY 19, 2000
B
[K.T. THOMAS, D.P. MOHAPATRA AND R.C. LAHOTI, JJ.]
Constitution of India, 1950: Articles 136 and 141.
Special Leave Petition-Dismissal-Thereafter Review Petition filed in
t
c High Court-Permissibility of
Special Leave Petition-Power of Supreme Court-Nature and scope
of jurisdiction of Supreme Court-Pendency of Special leave Petition-Grant
of Special Leave-Effect of
D
Kera/a Forest Tribunal-Order passed by-Appeal Preferred against
order-Dismissal by High Court-No statutory remedy of appeal, Revision or
review available against said order-Special Leave Petition filed in Supreme
Court against said order-Dismissal of Special Leave petition on meritsThereafter Review Petition filed in the High Court-Held maintainable.
E
Code of Civil Procedure, 1908:
Order 47-Rule I-Expression 'no appeal has been preferred' Scope
of
F
Kera/a Private Forests (Vesting and Assignment) Act. 1971: Section
8-C (as inserted by Amendment Act No. 36 of 1986)-Scope of
Doctrine of Merger-Nature and scope of-Applicability of the
Doctrine-Held it is not a Doctrine of Unlimited Application-Its applicability
depends on the nature <?(Jurisdiction exercised by the superior forum and the
G subject matter of challenge.
Practice and procedure-Appeal-Raising fresh plea-Permissibility
of
The Forest Tribunal constituted under the provisions of the Kerala
H Private Forests (Vesting and Assignment) Act, 1971 passed an order dated
.,__
538
KUN HAY AMMED v. STA TE
539
.
11.8.1982 holding that the land in question did not vest in the Government. A
Appeal preferred by the State of Keral:i before the High Court was dismissed
on 17.12.1982. As there was no statutory remedy of appeal, revision or review
provided against the order of the High Court the State filed a special leave
·1
petition before the Supreme Court. By its order dated 18.7.1983 Supreme
Court dismissed the petition on merits. By Amendment Act No. 36of1986
Section SC was inserted in the 1971 Act giving it a retrospective effect from B
19.11.1983. This Section empowered the Government to file appeal or
application for review in certain cases. In January, 1984 State of Kerala filed
an application before the Kerala High Court ~king review of the order dated
17.12.1982. On behalfofthe petitioners a preliminary objection was raised
as to the maintainability of the review petition. By its order dated 14.12.1995 C
the High Court rejected the preliminary objection and directed the review
petition to be posted for hearing on merits. Against the said order petitioners
sought for leave to appeal to this Court which was granted on 16.9.1996.
On behalf of the applicant it was contended that (i) the order of the High
Court dated 17.12.1982 having merged into the order of this Court dated D
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
before the High Court is entirely misconceived; (ii) 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 E
prayer for review of its onler much less disturb the order in exercise of review
jurisdiction.
Dismissing the appeal, this Court
HELD : 1. No fault can be found with the approach of the High Court In F
the instant case the earlier order of the High Court was sought to be subjected
to exercise of appellate jurisdiction of Supreme Court by the State ofKerala
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 G
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 onlerdated 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 SC of the Kerala
Act. [566-D-El
H
540
SUPREME COURT REPORTS [2000) SUPP. I S.C.R.
A
2. 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 ad\llppellate jurisdiction on the Supreme Court
subject to the special leave being granted in such matters as may not be covered
by the preceding Articles. The exercise of jurisdiction conferred on this Court
B 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.
[549-F; 550-8(
C
Thus, a petition seeking grant of special leave to appeal and the appeal
itself though both dealt with by Article 136 of Constitution, are two clearly
distinct stages. The legal position which emerges is as under :
(i) 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.
D 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;
E
(550-G-H)
(ii) 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;
F
(iii) 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 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.
G
(iv) 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
H pass a specific order staying or suspending the operation or execution of the
KUNHA Y AMMED v. STATE
541
judgment, decree or order under challenge. [551-A-DI
Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port
Trust and Anr., [197813SCC119; Indian Oil Corporation Ltd v. State of
Bihar and Ors., AIR (1986) SC 1780; Mis. Rup Diamonds and Ors. v. Union
A
of India and Ors., AIR (1989) SC 674; Supreme Court Employees' Welfare
Association v. Union of India and Anr., [198914 sec 187; Yogendra Narayan B
Chowdhury and Ors. v. Union of India and Ors., [19961 7 SCC I and The
Management of W. India Match Co. Ltd. v. Industrial Tribunal, AIR (1958)
Mad. 398, referred to.
Sree Narayana Dharmasanghom Trust v. Swami Prakasananda and
Others, (19971 6 SCC 78 and State of Maharashtra and Anr. v. Prabhakar C
Bhikaji Ingle, [1996) 3 SCC 463, explained and overruled.
Wilson v. Colchester Justices, [19851 2 All England Law Reports 97,
referred to.
3. An order dismissing a special leave petition, more so when it is by a D
non-speaking order, does not result in merger of the order impugned into
the order of the Supreme Court.
VM. Salgaocar& Bros. Pvt. Ltd v. Commissioner of Income Tax, (2000)
3 Scale 240, relied on.
E
4. A petition for leave to appeal to this Court may be dismissed by nonspeaking 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 F
before it nor would it be a declaration of Jaw 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 G
leave to appeal 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 H
542
SUPREME COURT REPORTS [2000] SUPP. I S.C.R.
A 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
B 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
C 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.
[557-D-H; 558-A)
Penu Balakrishna Iyer and Ors. v. Ariya M. Ramaswami Iyer and Ors.,
AIR (1965) SC 165; Abba/ Mal/gal Partnership Firm and Anr. v. K
D Santhakumaran & Ors., [1998) 7 SCC 386 and Supreme Court Employees
Welfare Association v. Union of India and Another, (1989) 4 SCC 187, referred
to.
E
Gopalbandhu Biswal v. Krishna Chandra Mohanty & Ors., (1998) 4
sec 447, explained and distinguished.
Junior Telecom Officers Forum and Ors. v. Union of India & Ors., [1993)
Supp. 4 SCC 693, distinguished.
5. 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
F 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. (558-G)
G
Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR
(1970) SC 1 and Sushi/ Kumar Sen v. State of Bihar, AIR (1975) SC 1185,
referred to.
6. It may be that in spite of having granted leave to appeal, the Court
H may dismiss the appeal on such grounds as may have provided foundation for
KUN HAY AMMED v. ST A TE
543
refusing the grant at the earlier stage. But that will be a dismissal of appeal. A
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.
[559-H; 560-A) B
7. 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. [547-C)
8. The logic underlying the doctrine of merger is that there cannot be C
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 list before it either way whether the D
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 E
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. [ 549-B-DI
Commissioner of Income-Tax, Bombay v. Amritlal Bhogi/al and Co., AIR
(1958) SC 868; State of Madras v. Madurai Mills Co. Ltd., AIR (1967) SC
681; Mis. Gojer Brothers Pvt. Ltd. v. Shri Ratanla/, AIR (1974) SC 1380; S.S F
Rathor v. State of Madhya Pradsh, AIR (1990) SC 10; U.J.S. Chopra v. State
of Bombay, AIR (1955) SC 633 and Thungabhadra Industries Ltd v. The Govt.
of A.P., AIR (1964) SC 1372, referred to.
9. 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 G
this Court by way of 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 H
544
SUPREME COURT REPORTS (2000] SUPP. I S.C.R.
A 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.
(560-C-DI
10. Where the review is filed first and the delay in the SLP is condoned
B and the special leave petition is ultimately granted and the appeal is pending
in this Court the petition 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. This is
C 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. (562-B-q
11. Review can be filed even after SLP is dismissed is clear from the
language or Order 47 Rule l(a). Thus the words "no appeal has been preferred
D in Order 47 Rule l(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, 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 Court's
order vests in the Supreme Court and the High Court cannot entertain a review
E thereafter, unless such a review application was preferred in the High Court
before special leave was granted. (562-D-EI
12. Where an appeal or revision is provided against an order passed by
a court, tribunal or any other authority before superior forum and such
F 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. (564-Hl
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12309of1996.
From the Judgment and Order dated 14.12.95 of the Kerala High Court
in R.P. No. 14of1984.
T.L.V. Iyer, Ramesh Babu M.R. and T.G.N. Nair for the Appellants.
Ashok H. Desai, Attorney General, P. Krishnamoorthy, Ms. Beena Prakash
H and G. Prakash for the Respondents.
1·
KUNHAY AMMED v. STATE [R.C. LAHOTI, J.)
545
The Judgment of the Court was delivered by
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
A
B
in the State of Kerala and for the assignment thereof to agriculturists and C
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 I 0th 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 D
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 of60 days from the date of that E
decision, appeal against such decision to the High Court under Section SA
of the Act.
There is a large family consisting of71 members which raised a dispute
before the Forest Tribunal, Kozhikode which was registered as OA 5 of 1981.
Land to the tune of I 020 acres was the subject-matter of dispute. By order p
dated 11.8.1982 the Tribunal held that the land did not vest in the Government.
An appeal ·Nas 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 G
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 H
546
SUPREME COURT REPORTS [2000] SUPP. I S.C.R.
A 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. Subsection (2) of Section 8C, with which we are concerned, reads as under:
B
c
D
E
F
BC. Power of Government to file appeal or application for review
in certain cases.
(I) xxxx
xx xx
xxxx
xx xx
xx xx
xx xx
xxxx
xx xx
(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 I 984 the State of Kerala filed an application for review
registered as RP No.14of1984 before the High Court ofKerala 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
G 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
H came up for hearing before a bench of two Judges they directed the matter
.,
'·
KUNHA Y AMMED v. STATE [R.C. LAHOTI, J.]
547
to be referred to a bench of three Judges having regard to the importance of A
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 B
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 C
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 D
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 v. Mis Amrit/a/ Bhogi/al and E
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 F
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 ot 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 G
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 H
548
SUPREME COURT REPORTS [2000] SUPP. I S.C.R.
A 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
B 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 lncome-taic Act
so as to determine the nature and scope of relevant appellate and revisional
C powers and held 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 - 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
D 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.
E
In Mis Gojer Brothers Pvt. Ltd. v. Shri Ratan/a/, 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
F 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
G
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 v. State of Madhya Pradesh - AIR ( 1990) - SC I 0 a larger
H Bench of this Court (Seven-Judges) having reviewed the available decisions
..
r
KUNHAYAMMED v. STATE [R.C. LAHOTI, J.)
549
of the Supreme Court on the doctrine of merger, held that the distinction made A
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 B
of the higher authority disposing of the statutory remedy was passed. Support
was taken from doctrine of merger by referring to C.l.T. v. 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 C
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 !is before it either way - whether the
decree or order under appeal is set aside or modified or simply confirmed, it D
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 E
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 F
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 G
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 H
550
SUPREME COURT REPORTS (2000) SUPP. I S.C.R.
A 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 appt!llate jurisdiction not open otherwise and as of
B 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
C 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
D by a certified copy of the judgment or order app·ealed from and an affidavit
in support of the statement of facts contained in the petition. Under Rule I 0
the petition for grant of spec:ial 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
E 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 s!'eking special leave to appeal either ex-parte or
F 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
G 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 :-
I.
While hearing th1: petition for special leave to appeal, the Court
is called upon to see whether the petitioner should be granted
H
such leave or not. While hearing such petition, the Court is not
KUNHAYAMMED v. STATE [R.C. LAHOTI, J.]
551
exercising its appellate jurisdiction; it is merely exercising its A
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 B
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 called upon C
to face him, though in an appropriate case, in spite of having
granted leave to appeal, the court may dismiss the dppeal 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 D
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 E
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 F
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 v. Board of Trustees of the Cochin Port Trust and
Another, [1978] 3 sec 119, a Three-Judges Bench of this Court has held that G
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 H
552
SUPREME COURT REPORTS (2000] SUPP. I S.C.R.
A 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 v.
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
B to Supreme Court under Article I 36, 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.
c
D
In Indian Oil Corporation Ltd v. 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. Cm behalf of the employee the principal contention
E 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
F 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
G of this Court, it was further held :
H
'"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
KUNHAYAMMED v. STATE [R.C. LAHOTI, J.]
553
this Court due to several reasons. When the. order passed by this A
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 B
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 poiicy analogous thereto, would the order of this Court
dismissing the special leave petition operate to bar the trial of identical C
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
D
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 E
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.