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2012 DIGILAW 263 (AP)

A. Abdul Ghani v. Government of Andhra Pradesh

2012-03-13

ASHUTOSH MOHUNTA

body2012
Judgment :- Ashutosh Mohunta, J. One Gandluru Veera Pratap Reddy and B.V.Karunkumar Reddy, 6th and 9th respondents herein, are claimed to be the Village Revenue Officer and Sarpanch respectively of Kokatam Village of Kamalapuram Mandal in YSR District, Kadapa. Complaining that their names as well as the names of their family members names were not restored/included in the Voters’ List of Kokatam Village of Kamalapuram Mandal in YSR District, Kadapa, filed an application under Rule 6 of the Registration of Electoral Rules, 1960 (hereinafter referred to as ‘the Rules’) in Form-VI before the Assistant Electoral Registration Officer-cum-Tahsildar, Kamalapuram Mandal, YSR District, Kadapa, 5th respondent herein, on 25.01.2011 (Voters Day) in regard thereto. The 5th respondent after conducting an enquiry in to the claim of the unofficial respondents submitted a report to the Electoral Registration Officer-cum-Revenue Divisional Officer, 249-Kamlapuram Assembly Constituency YSR District, Kadapa, 4th respondent herein, who passed an order rejecting the Form-VI application submitted by the unofficial respondents for inclusion of their names in the Voters List on the ground that they were not residing in Kokatam village. 2. Feeling aggrieved, the unofficial respondents herein, instituted complaints before the Chief Electoral Officer and Ex-Officio Principal Secretary, Government of Andhra Pradesh, Hyderabad, the second respondent herein, who in turn requested the District Election Officer and District Collector, YSR District, Kadapa, the third respondent herein, to treat the said complaints as appeal and pass appropriate orders thereon on the basis of the enquiry report together with the material brought on record. Accordingly, the third respondent considered the said appeal and dismissed the same by his order dated 20.04.2011 passed in Ref.No.A4/401/09. 3. Assailing the said order dated 20.04.2011, the unofficial respondents preferred an appeal on 24.4.2011 before the second respondent. During the pendency of this appeal, the unofficial respondents knocked on the doors of this Court by way of Writ Petition No.12053 of 2011 seeking a declaration that the order dated 20.04.2011 passed by the third respondent as well as the inaction on the part of the second respondent in disposing of their appeal dated 24.04.2011 as illegal and arbitrary and consequently sought a direction to the respondents therein to restore/include their names in the Voters List of Kokatam Village and permit them to exercise their franchise in the ensuing bye-elections scheduled to be held on 08.05.2011. While admitting the said writ petition this Court, by order dated 30.04.2011 passed in WPMP No.14724 of 2011 in W.P.No.12053 of 2011, directed the first respondent therein to dispose of the appeal pending on his file on or before 05.05.2011 without fail. Pursuant thereto, keeping in mind that the notification for the bye-elections to 38-Kadapa Parliamentary Constituency was issued by the Election Commission of India and placing reliance on the Judgment of the Supreme Court in P.T.RAJAN Vs. T.P.M.SAHIR [ AIR 2003 SC 4603 ] as to the impediment in taking a decision on the appeal when the election process was already on, the appeal was rejected without going into the merits of the case by the second respondent by his order dated 05.05.2011 passed in proceedings No.2197/Elecs.E/A2/2011-6. 4. Having been dissatisfied by the said order dated 05.05.2011, the unofficial respondents filed review application/ appeal before the second respondent after the aforestated bye-elections were over. The second respondent after affording a personal hearing to produce necessary documents to substantiate their claim and considering the material brought on record before him came to the conclusion the unofficial respondents are the presently the residents of Kokatam Village. Accordingly, the appeal was allowed by his order dated 24.08.2011 passed in Proceedings No.2197/Elecs.E/A2/2011-11 directing the fourth respondent herein to accept the Form-VI submitted by the unofficial respondents herein and include their names in the appropriate part of Photo Electoral Roll of 249-Kamalapuram Assembly Constituency. 5. Feeling aggrieved by the said order dated 24.08.2011 passed by the second respondent herein, the petitioners herein claiming to be the elected Ward Members of Kokatam Gram Panchayat filed the present writ petition seeking a declaration that the impugned order is illegal and non-est in the eye of law and the same is liable to be set aside. 6. It is the case of the petitioners that they have submitted several representation to the third respondent seeking deletion of the names of non-residents of the village from the Voters List and pursuant thereto the respondent authorities conducted door to door survey and removed all the nonresidents of the village from the Voters List of Kokatam after duly following the statutory procedure prescribed there for. Thereafter, the Voters List was published in the official Gazette in February, 2011 which became final. Thereafter, the Voters List was published in the official Gazette in February, 2011 which became final. Earlier thereto, the unofficial respondents appeared to have filed an application in Form-VI under Rule 6 of the Rules on 25.01.2011 (Voters Day) before the fifth respondent seeking inclusion of their names in the Voters List of Kokatam Village which was considered and rejected by the fourth respondent. What happened thereafter till the passing of the impugned order has been succinctly narrated hereinabove. 7. The complaint of the petitioners is that the appeal dated 24.04.2011 preferred by the unofficial respondents before the second respondent was considered and rejected by his order dated 05.05.2011 which became final. It is therefore the case of the petitioners that the representations filed by the unofficial respondents after the bye-elections were over which are nothing but review petitions, are not maintainable as the second respondent became functus officio and that the second respondent has no power to review the order passed by him under the provisions of the Representation of People Act, 1950 or under the Rules framed thereunder, namely, the Registration of Electoral Rules, 1960. It is thus stated that impugned order passed by the second respondent is illegal and non est in the eye of law and is accordingly liable to be set aside. 8. This Court, while ordering notice before admission, on 28.09.2011 granted stay of the impugned proceedings. 9. The second respondent filed a counter affidavit along with vacate stay petition denying the averments and allegations made by the petitioners. It is stated that the petitioners were not a party to the appeal filed by the unofficial respondents and therefore they have no locus standi to file the present writ petition challenging the impugned order and therefore the same is not maintainable in as much as no objections were filed by them before the official respondents. It is also stated that a right to vote is constitutional right as contemplated under Articles 325 and 326 of the Constitution of India and the same cannot be denied to the unofficial respondent without any valid reason. It is also stated that a right to vote is constitutional right as contemplated under Articles 325 and 326 of the Constitution of India and the same cannot be denied to the unofficial respondent without any valid reason. On considering the documentary evidence produced by the unofficial respondents before the second respondent in their representation submitted after the bye-elections were over, he came to a conclusion that they are ordinary residents of Kokatam Village and at the request made by the unofficial respondents, the earlier order dated 05.05.2011 which had been passed without going into the merits of the case in view of the election process was on by then, was reviewed and the impugned order has been passed and the appeal was allowed directing the fourth respondent to accept the Form-VI submitted by the unofficial respondents herein and include their names in the appropriate part of Photo Electoral Roll of 249-Kamalapuram Assembly Constituency. It is further stated that in view of the amendments made to the Act by way of Representation of the People (Amendment) Act, 2009 which came into force from 23.12.2009, an appeal against the orders of the Electoral Registration Officer (during continuous updation) under Sections 22 and 23 of the Act shall lie before the District Collector and a second appeal against the first appellate authority shall lie before the Chief Electoral Officer. It is thus stated that the order dated 05.05.2011 was passed in compliance with the order dated 30.04.2011 rejecting the appeal preferred by the unofficial respondent without going into the merits of the matter in view of the bye-election process was on by then. After the bye-elections were over, the unofficial respondents filed review petition and brought on record the necessary documentary evidence to substantiate their claim that they are the residents of Kokatam Village. The second respondent after going through the connected records and additional material placed on record coupled with the averments made in their petition allowed the appeal as stated hereinabove. It was therefore prayed that the interim order granted by this Court on 28.09.2011 in this writ petition may be vacated. 10. The unofficial respondents have also filed a counter affidavit gainsaying the various averments and contentions made by the petitioners. It was therefore prayed that the interim order granted by this Court on 28.09.2011 in this writ petition may be vacated. 10. The unofficial respondents have also filed a counter affidavit gainsaying the various averments and contentions made by the petitioners. It is averred that the present writ petition is not maintainable either in law or on facts as the petitioners do not come under the ambit and scope of either ‘aggrieved party’ or ‘affected party’. It is stated that the second respondent had categorically mentioned in his order dated 05.05.2011 that in view of the specific embargo under Section 23(3) of the Act as well as the law laid down by the Supreme Court the appeal was rejected without going into the merits of the case and therefore the subsequent representation made by the unofficial respondents and consideration thereof in the light of the documentary evidence produced by them cannot be construed as reviewing the earlier decision which was not at all on the basis of merits and that the doctrine of merger has no application to the facts of the present case. They sought to place reliance on the Judgment of the Supreme Court in KUNHAYAMMED Vs. STATE OF KERALA, [ (2000) 6 SCC 359 ].It is therefore stated that there was no illegality, irregularity or usurping the powers and that the writ petition is liable to be dismissed. 11. The petitioners have also filed a reply affidavit supporting their case reiterating their pleas raised in the affidavit filed in support of the writ petition while denying the various averments and contentions raised by the respondents in their counter affidavits. It is stated that the power conferred on the second respondent under Section 24(b) of the Act is only the second appellate authority against the orders of the District Election Officer passed under Section 24(a) thereof. It is averred that the second respondent cannot receive additional evidence which was not on record before the fourth and the third respondents, namely, the original and the first appellate authorities respectively in the light of the fact that the Code of Civil Procedure has no application to the Act or the Rules framed thereunder. It is averred that the second respondent cannot receive additional evidence which was not on record before the fourth and the third respondents, namely, the original and the first appellate authorities respectively in the light of the fact that the Code of Civil Procedure has no application to the Act or the Rules framed thereunder. It is further stated that the preparation of valid Electoral Rolls in the village is the beginning of the democratic rights of the citizens of that village and as such they are vitally interested in the preparation of valid Voters List of Kokatam Village and therefore they have locus standi to challenge the impugned order passed by the second respondent which has far reaching consequences on the peace and public order in the village. It is thus stated that the second respondent has become functus officio once the order dated 05.05.2011 was passed and therefore the impugned order dated 24.08.2011 is liable to be set aside. 12. Heard Sri N.Siva Reddy, learned counsel appearing on behalf of the petitioners; learned Government Pleader for GAD appearing on behalf of the official respondents and Sri K.Rathangapani Reddy, learned counsel appearing on behalf of the unofficial respondents. 13. The learned counsel for the petitioners vehemently contended that the impugned order dated 24.08.2011 passed by the second respondent is beyond the jurisdiction conferred on him under the provisions of the Act. He pointed out that as the unofficial respondents are not the ordinary residents of Kokatam Village, the primary, first appellate and second appellate authorities (in the first instance) rightly held that the unofficial respondents are not entitled to include their names in the Voters List of Kokatam Village. He asserted that the second respondent being a statutory authority under the Act cannot have the power to review his own order unless such power is vested in him by the Act. He therefore sought that the impugned order may be set aside by allowing the writ petition. 14. Per contra, the learned Government Pleader for GAD appearing for the official respondents, while reiterating the averments made in the counter affidavit, submitted that in as much as the petitioners were not the parties to the proceedings before the official respondents and no objections have been filed by them at any point of time, the petitioners have no locus standi to challenge the impugned order. He submitted that considering the documentary evidence including the residence certificates dated 10.08.2011 and 19.08.201 issued by the Tahsildar I/c and Deputy Tahsildar, Kamalapuram, respectively, the second respondent came to the conclusion that the unofficial respondents are presently residing in Kokatam Village. He fairly conceded that the order dated 05.05.2011 was passed only pursuant to the order dated 30.04.2011 passed by this Court in WPMP No.14724 of 2011 in WP No.12053 of 2011 rejecting the appeal without going into the merits of the case in view of the bye-elections process was on by then and to circumvent the contempt proceedings that may have been initiated for infraction of the order passed by this Court. He therefore submitted that after the bye-elections were over, the representation/appeal was taken on file and the impugned order was passed which does not warrant interference by this Court in the present writ petition which is liable to be dismissed. 15. The learned counsel for the unofficial respondents while reiterating the averments made in the counter affidavit raised similar arguments that were advanced by the learned Government Pleader appearing for the official respondents. He submitted that in view of the specific prohibition contemplated under Section 23(3) of the Act, the second appeal preferred by the unofficial respondents was not disposed of on merits by way of the order dated 05.05.2011 and therefore considering the review representations in the light of the documentary evidence cannot be termed as reviewing the earlier decision which was manifestly not passed on merits of the case but for the compliance of the order dated 30.04.2011 passed by this Court in WPMP No.14724 of 2011 in WP No.12053 of 2011 and thus the doctrine of merger does not apply to the facts of the present case as enunciated by the Supreme Court in Kunhayammed Vs. State of kerala (referred supra). 16. Perused the case file scrupulously. 17. As can be seen from the material placed on record, it is axiomatic that the petitioners were not the parties to the proceedings initiated by the unofficial respondents before the official respondents at any stage. State of kerala (referred supra). 16. Perused the case file scrupulously. 17. As can be seen from the material placed on record, it is axiomatic that the petitioners were not the parties to the proceedings initiated by the unofficial respondents before the official respondents at any stage. Though the petitioners have sufficient knowledge about the conduct of enquiry by the official respondents to find out as to whether the unofficial respondents are the ‘ordinary residents’ of Kokatam Village and the initiation of necessary proceedings in regard thereto, for the reasons best known to them the petitioners being Ward Members of Kokatam Gram Panchayat did not choose to file any objections before the official respondents denying the claim of the unofficial respondents while the proceedings initiated by the unofficial respondents were on. On the other hand, the petitioners allowed the proceedings initiated by the unofficial respondents before the official respondents to reach their logical end and thereafter instituted the present writ petition before this Court assailing the impugned order. In this regard, a reference may be made to the Judgment of the Supreme Court in Simranjit singh mann Vs. Union of india [ (1992) 4 SCC 653 ] wherein it was illuminatingly held thus: “7. Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which the law recognises as sufficient to permit another person, e.g. next friend, to move the Court on his behalf. If a guardian or a next friend initiates proceedings for and on behalf of such a disabled aggrieved party, it is in effect proceedings initiated by the party aggrieved and not by a total stranger who has no direct personal stake in the outcome thereof. In the present case no fundamental right of the petitioner before us is violated; if at all the case sought to be made out is that the fundamental rights of the two convicts have been violated. ……… Unless an aggrieved party is under some disability recognised by law, it would be unsafe and hazardous to allow any third party to question the decision against him. Take for example a case where a person accused under Section 302, IPC is convicted for a lesser offence under Section 324, IPC. ……… Unless an aggrieved party is under some disability recognised by law, it would be unsafe and hazardous to allow any third party to question the decision against him. Take for example a case where a person accused under Section 302, IPC is convicted for a lesser offence under Section 324, IPC. The accused is quite satisfied with the decision but a third party questions it under Article 32 and succeeds. The conviction is set aside and a fresh trial commenced ends up in the conviction of the accused under Section 302, IPC. The person to suffer for the unilateral act of the third party would be the accused! Many such situations can be pointed out to emphasise the hazard involved if such third party’s unsolicited action is entertained. Cases which have ended in conviction by the Apex Court after a full gamut of litigation are not comparable with preventive detention cases where a friend or next of kin is permitted to seek a writ of habeas corpus. We are, therefore, satisfied that neither under the provisions of the Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial. On first principles we find it difficult to accept Mr Sodhi’s contention that such a public interest litigation commenced by a leader of a recognised political party who has a genuine interest in the future of the convicts should be entertained. In S.P. Gupta v. Union of India [1981 Supp SCC 87] Bhagwati, J. observed: (SCC p. 219, para 24) “But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others ....” These observations were made while discussing the question of ‘locus standi’ in public interest litigation. These words of caution were uttered while expanding the scope of the ‘locus standi’ rule. These words should deter us from entertaining this petition. This accords with the view expressed by this Court in Krishna Swami v. Union of India [ (1992) 4 SCC 605 ].” [Emphasis is mine] 18. These words of caution were uttered while expanding the scope of the ‘locus standi’ rule. These words should deter us from entertaining this petition. This accords with the view expressed by this Court in Krishna Swami v. Union of India [ (1992) 4 SCC 605 ].” [Emphasis is mine] 18. In the backdrop of the above law laid down by the Supreme Court it is not unsafe to say that the petitioners are not the ‘aggrieved party’ or ‘affected party’ and they have therefore no locus standi to challenge impugned order. 19. Further, on facts it may be noticed that the appeal was preferred by the unofficial respondents to the second respondent on 24.04.2011 challenging the order dated 20.04.2011 passed by the third respondent rejecting their appeal whereby restoration/ inclusion of their names in Voters List of Kokatam Village was denied. Immediately thereafter, the unofficial respondents also approached this Court by way of Writ Petition No.12053 of 2011 seeking a declaration that the order passed by the third respondent on 20.04.2011 and the failure on the part of the second respondent in disposing of their appeal dated 24.04.2011 as illegal and arbitrary and consequently they sought a direction to the respondents therein to restore/include their names in the Voters List of Kokatam Village and also permit them to exercise their franchise in the ensuing bye-elections scheduled to be held on 08.05.2011. Thereupon, this Court while issuing notice before admission, by order dated 30.04.2011 passed in WPMP No.14724 of 2011 in W.P.No.12053 of 2011, directed the first respondent therein to dispose of the appeal pending on his file on or before 05.05.2011 without fail. To comply with the said order of this Court and thereby to evade the contempt proceedings that may have been initiated in case of failure to do so, and also keeping in mind that the notification for the bye-elections was already issued by that time by the Election Commission of India and the appeal was simply rejected without going into the merits of the case by the second respondent by his order dated 05.05.2011 relying on the Judgment of the Supreme Court in P.T.RAJAN Vs. T.P.M.SAHIR [referred supra] as to the hindrance in arriving at a decision on the appeal on merits when the election process was already on, wherein the Supreme Court while explaining the object of preparation of an electoral roll pithily held thus: “37. T.P.M.SAHIR [referred supra] as to the hindrance in arriving at a decision on the appeal on merits when the election process was already on, wherein the Supreme Court while explaining the object of preparation of an electoral roll pithily held thus: “37. The purport and object of preparation of an electoral roll cannot be underestimated in view of the fact that thereby the persons included therein make the persons to decide as to whether they can contest election where for an enlistment of a voter is necessary. Electoral roll is also helpful for the candidates to assess their chance of success. For reference to the final electoral roll, it is also required by the candidates to enable them to canvass amongst the voters. Availability of a final electoral roll with the candidate is, thus, a matter of great importance for him. There cannot further be any doubt whatsoever that the right to vote having regard to Section 62 of the 1951 Act vis-à-vis Article 326 of the Constitution of India is a valuable right. A person in terms of Section 62 of the 1951 Act is entitled to exercise his right of franchise or is disabled there from if his name does or does not find place in the electoral roll. [Emphasis is mine] 20. From a perusal of the above decision of the Supreme Court, it is clear that right to vote is a valuable right as enunciated under the provisions of Article 326 of the Constitution of India and that a person is entitled to exercise such right if his name does find place in the electoral roll. 21. [Emphasis is mine] 20. From a perusal of the above decision of the Supreme Court, it is clear that right to vote is a valuable right as enunciated under the provisions of Article 326 of the Constitution of India and that a person is entitled to exercise such right if his name does find place in the electoral roll. 21. Trite to state, the Election Commission is created by the Constitution and vested with the superintendence direction and control of the preparation of the of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice President held under the Constitution which elections to the Parliament and to the Legislature of every State are envisaged under Article 326 of the Constitution of India on the basis of adult suffrage, that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under the Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsound ness of mind, crime or corrupt or illegal practice. A law contemporaneous to the Constitution which has been amended from time to time is available as the Representation of the People Act, 1951 and some additional legislations including orders issued by the Election Commission in exercise of its power of control, power to provide for the preparation of the electoral roll, determination of electoral colleges and the constituencies including delimitations, as and when necessary and the conduct of elections by and under a notification issued by the Election Commission and such directions for conducting the elections by the Election Commission. 22. Inasmuch as the order dated 05.05.2011 passed by the second respondent was not on merits and after the bye-elections were over, the unofficial respondents have preferred another representation/appeal before the second respondent and produced before him the necessary documentary evidence in support of their claim for inclusion of their names in Voters List of Kokatam Village. 22. Inasmuch as the order dated 05.05.2011 passed by the second respondent was not on merits and after the bye-elections were over, the unofficial respondents have preferred another representation/appeal before the second respondent and produced before him the necessary documentary evidence in support of their claim for inclusion of their names in Voters List of Kokatam Village. The second respondent keeping in mind the fact that the earlier order dated 05.05.2011 was passed in view of the specific direction of this Court to do so, considered the entire documentary evidence produced before him by the unofficial respondents and after going through the connected record, he opined that the appellants are presently residing in Kokatam Village. Accordingly, the second respondent allowed the representation/appeal directing the fourth respondent herein to accept the Form-VI submitted by the unofficial respondents herein and include their names in the appropriate part of Photo Electoral Roll of 249-Kamalapuram Assembly Constituency. 23. It is the grievance of the petitioners that the second respondent has no power to review the order dated 05.05.2011 passed by him pursuant to the order dated 30.04.2011 passed by this Court in WPMP No.14724 of 2011 in WP No.12053 of 2011 as the Code of Civil Procedure has no application to the provisions of the Act and the Rules framed thereunder. It may be relevant to notice that the order dated 05.05.2011 was passed without going into the merits of the matter. Under the circumstances, it cannot be said that the provisions of the Code of Civil Procedure has no application to the facts of the present case which involves a constitutional right of the parties. It cannot also be said that additional evidence cannot be permitted to be received by the second appellate authority while disposing of the appeal pending before him. In fact, what has been decided in the impugned order is only the valuable right of vote, which is also a constitutional right as contemplated under the provisions of Article 326 of the Constitution to enable the unofficial respondent to exercise their franchise as and when elections take place in their constituency. In arriving at a definite conclusion as to the constitutional right of the parties, there is nothing wrong for the second appellate authority to receive and consider any documentary evidence in the proper perspective in the interest of justice. In arriving at a definite conclusion as to the constitutional right of the parties, there is nothing wrong for the second appellate authority to receive and consider any documentary evidence in the proper perspective in the interest of justice. However, this exercise could not be made by the second respondent in considering the merits of the appeal in his order dated 05.05.2011 as the notification in respect of the bye-elections was already issued and the election process was on by then and the such order was required to be passed in light of the direction by this Court to dispose of the appeal preferred by the unofficial respondent within a timeframe. Therefore, the impugned order dated 24.08.2011 passed by the second respondent cannot be construed as an order reviewing the earlier order dated 05.05.2011. In this view of the matter, the doctrine of merger has no application to the facts of the case as the order dated 20.04.2011 passed by the third respondent had not merged in the order dated 05.05.2011 in view of the fact that the order dated 05.05.2011 was not passed on merits. 24. n this regard, it is useful to refer the Judgment of the Supreme Court in Kunhayammed Vs. State of kerala, [2 supra]. Therein, the Supreme Court while dealing with the doctrine of merger extensively held thus: 41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 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 as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp.1067-68.) 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 can 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 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 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 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 appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before 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 of Order 47 CPC.” 25. As the doctrine of merger has no application to the facts of the present case, it cannot be safely said that the second respondent became fucntus officio in passing the impugned order. On the other hand, it shall be the endeavour of the authority concerned to see that all the eligible citizens of this country be included in the electoral list to enable them to exercise their franchise. Further, it is not the case of the petitioners that the names of the unofficial respondents have been included in Voters List of other village so as to deny the inclusion of their names in Voters List of Kokatam Village, nor did they demonstrate so. 26. Viewed from any angle, I find no merit in the writ petition which is liable to be dismissed. 27. In the result, the writ petition is dismissed. In sequel thereto, the interim order dated 28.09.2011 passed by this Court stands vacated. All other miscellaneous applications are disposed of. No order as to costs.