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2011 DIGILAW 752 (RAJ)

Sahas Karan v. State of Rajasthan

2011-04-13

GOPAL KRISHAN VYAS, GOVIND MATHUR, SANGEET LODHA

body2011
JUDGMENT 1. - The Following questions are referred to this Bench for adjudication in pursuant to the order dated 25.07.2002 "whether in view of affirmance of judgment in Pari Devi's case by Supreme Court vide its order dated 18.02.1994 dismissing the appeal, Division Bench decision in Ram Gopal's case is impliedly overruled? In case the answer is in the negative, which of the two divergent opinion of Division Bench lays down the law correctly?" 2. The factual matrix necessary to be noticed is that Single Bench of this Court in the case of Pari Devi v. State of Rajasthan, 1984 RLR 931 , while setting aside the order for reopening of the ceiling proceedings as per Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred as "the Act of 1973"), held that it is not open to the authority competent to proceed again under Chapter-III-B of the Rajasthan Tenancy Act, 1955 (hereinafter referred as "the Old Ceiling Law"), after the proceedings had been initiated and culminated in favour of an Agricultural Land Holder under Section 15(4) of the Act of 1973 3. The ratio of the law laid down in the case of Pari Devi (supra) was that the Old Ceiling Law and of 1973 cannot occupy the same field or the same subject matter. The judgment aforesaid was later on approved by the Division Bench in State of Rajasthan v. Smt. Dakhan, DB Civil Writ Petition No. 228 of decided on 20.07.1984 . The special leave petitioner preferred by the State to challenge the Division Bench judgment of this Court in the case of Smt. Dakhan I was rejected by Hon'ble Supreme Court. The law laid down in the case of Pari Devi (supra) was also adhered in State of Rajasthan v. Prithvi Singh, 1986 I RLR 32 and Smt. Amarjeet Kaur v. State of Rajasthan, 1987 (1) RLR 544 . 4. The law laid down in the case of Pari Devi (supra) was also adhered in State of Rajasthan v. Prithvi Singh, 1986 I RLR 32 and Smt. Amarjeet Kaur v. State of Rajasthan, 1987 (1) RLR 544 . 4. After noticing all the facts aforesaid including, the dismissal of special leave petition against the judgment of Division Bench in Dakltan's case (supra) another Division Bench of this Court Ram Gopal v. State of Rajasthan & Ors., 1989 (1) RLR 845 struck a discordant note and took a different view with following observations: "it may also be stated that a special Leave Petition was filed against the decision in the case of Smt. Dakhan by the State of Rajasthan in the Supreme Court and it did not allow' it. We may observe at this stage that the decision not to grant S.L.P. does not decide the dispute involved, and it can only be said that the Supreme Court in that case did not consider it proper to grant S.L.P." 5. The Division Bench in the case of Ram Gopal (supra) took the view that determination of ceiling area end the decision of the case both under the Old Law as well as under the Act of 1973 does not debar State Government from reopening the case under Section 15(2) of the Act of 1973. At the time of decision given in the case of Ram Gopal an appeal in the case of Pari Devi was pending consideration before Hon'ble Supreme Court and that came to be dismissed by order dated 18.02.1994. In these circumstance learned Single Judge ordered to place the matter before Hon'ble Chief Justice to refer the questions settled for having a decision from Larger Bench, accordingly those are before us for consideration. 6. Pertinent to note here that in case of Pari Devi (supra) a leave was granted by Hon'ble Supreme Court to appeal the judgment and the appeal came to be rejected on 18.2.1994. 7. Precisely, the issue before this Bench is the that what shall be the position after merger of the judgment of this Court in the case of Pari Devi with the order passed by Hon'ble Supreme Court in the appeal and whether such affirmance of the judgment impliedly overrules the judgment of Division Bench in the case of Ram Gopal. 8. Precisely, the issue before this Bench is the that what shall be the position after merger of the judgment of this Court in the case of Pari Devi with the order passed by Hon'ble Supreme Court in the appeal and whether such affirmance of the judgment impliedly overrules the judgment of Division Bench in the case of Ram Gopal. 8. The issue, pertaining to doctrine of merger with the order of appellate Court, as a matter of fact has been considered by Hon'ble the Apex Court in quite detail in Kunliayammed & Ors. v. State of Kerala & Ors., reported in (2000) 6 SCC 359 , holding therein as under:- "39. 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-judge 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. 40. 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 defecting 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 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. 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 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 CPC or any other statutory provision or allowing review of an order passed exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47, Rule 1 CPC 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 a 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 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. 41. Once a special leave petition has been granted, the doors for the exercise 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 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 appellate jurisdiction and therein the merits of to order impugned having been subjected to judicial scrutiny of this Court. 42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. 42. "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 Rule of 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. 1067-68) 43. 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 car be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. 44. 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 or 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 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 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. 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 be the Supreme Court within the meaning of Article 141 if 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 of the Supreme Court rejecting the special leave petition or that the order of Supreme Court is the only order binding as res judicata in subsequent proceedings between the parries. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme 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 to a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 or order - 47 CPC." 9. As per Hon'ble the Apex Court once leave to appeal has been granted and appellate jurisdiction of Supreme has been invoked, the order passed in appeal would attract the doctrine of merger. The reversal affirmance or modification as the case may be in such circumstances shall be determinative to the issue n question. 10. In the case of Pari Devi (supra) leave to appeal was granted and appellate jurisdiction of Supreme Court was invoked, thus, the order passed in appeal would certainly attract the doctrine of merger and that affirms the law laid down by this Court in the case of Pari Devi That being the position of law, the law laid down in the case of Ram Gopal is not a correct one, that stands impliedly overruled and the law laid down in Pari Devi's case (supra) holds the filed in the subject matter.The reference made is answered accordingly.Reference Answered. *******