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2013 DIGILAW 618 (MP)

Nagar Panchayat Akoda, Bhind v. R. B. Dubey

2013-05-09

G.D.SAXENA, S.K.GANGELE

body2013
JUDGMENT : S.K. Gangele, J.:- Petitioner – Nagar Panchayat Akoda, District Bhind has filed this petition for review of the order dt. 5.3.2010 passed in W.P.No.5981/2009. Against the order dt. 5.3.2010, an SLP was filed before the Hon'ble Supreme Court and that has also been dismissed. 2. The petitioner pleaded in this petition that respondent No.1 played a fraud with the court with the connivance of the officers of the Nagar Panchayat and the respondent No.1 obtained a favourable order in his favour. 3. Looking to the pleading of the petitioner of fraud, review petition has been heard on merits. 4. There is delay in filing the review petition, hence, the petitioner filed an application for condonation of delay (I.A.No.1173/2013). 5. We have heard on I.A.No.1173/2013 as well as on merits of the review petition. 6. The petitioner pleaded in the application filed under Section 5 of Limitation Act for condonation of delay (I.A.No.1173/2013) that this court passed the order under review on the basis of admissions made by respondents No.2 and 3 in the return. However, the persons, who filed the affidavits in support of the return, were not competent to swear the affidavits. It is further submitted that when the contempt petition was filed and directions were issued by the court to make payment. A detailed inquiry was conducted and it was found that the respondent No.1 had not made any construction in accordance with the terms of contract neither invited tenders for the purpose of contract in accordance with law. The Chief Municipal Officer received notice from the Court in December 2012 and he collected the material in January 2013. Thereafter, the review petition has been filed. 7. Respondent No.1 in his reply to the application for condonation of delay denied the facts. It is pleaded by the respondent No.1 that the order dt.5.3.2010 was challenged by the petitioner before the Hon'ble Supreme Court in SLP (Civil) CC 11641 and the Hon'ble Supreme Court dismissed the SLP after condoning the delay. The petitioner had knowledge of the order passed by this Court. The contempt Petition No.801/2000 was filed for non compliance of the order. It was disposed of on 20.6.2012 and thereafter the review petition has been filed. 8. We have perused the record. The petitioner had knowledge of the order passed by this Court. The contempt Petition No.801/2000 was filed for non compliance of the order. It was disposed of on 20.6.2012 and thereafter the review petition has been filed. 8. We have perused the record. The petitioner in this review petition pleaded that the respondent No.1 played fraud with the court in connivance with certain persons and a favourable reply was filed before the court and on the basis of the reply, the court passed the order. 9. Looking to the aforesaid facts of the case, in our opinion, delay in filing the review petition deserves to be condoned because it is well settled principle of law that fraud vitiates everything and if a fraud has been played, then the court can take notice of the fact even at the time of execution of a decree, as held by the Hon'ble Supreme Court in the case of A.V.Pappyya Sastry and others Vs. Govt. of A.P. and others, (2007) 4 SCC 221 . 10. In this view of the matter, the application for condonation of delay (I.A.No.1173/2013) is allowed and the delay in filing the review petition is hereby condoned. 11. The respondent No.1 filed a writ petition before this court on 10.12.2009. He pleaded that Nagar Panchayat Akoda District Bhind invited tenders for construction of CC road. The tender of the respondent No.1 was found lowest and consequently work order was issued to him on 14.12.2007. The respondent No.1 executed the contract of construction of CC roads in Ward Nos.5, 6 and 10 at Nagar Panchayat Akoda. He submitted following bills to the Nagar Panchayat for payment :- (i) C.C. Road Shankar Mandir to Pulia Ward No.10 Security Deposit20,09,192.00 2,35,937.00 (ii) C.C. Road to School Mata Mandir and Hanuman Jagga Mandir Ward 10 Security Deposit14,82,179.00 1,98,792.00 (iii) C.C. Road in between Ward No.5-6 Mahua Wali Road. Security Deposit15,12,885.00 1,77,656.00 (iv) C.C. Road Bhadouria's house to Yadav's house ward No.6 Security Deposit7,12,157.00 83,627.00 12. The Chief Municipal Officer and the President of the Nagar Panchayat inspected the site along with the Executive Engineer and submitted their report in regard to completion of work, however, the amount was not paid to the respondent No.1. The Division Bench of this court issued notice on 16.12.2009. The Chief Municipal Officer and the President of the Nagar Panchayat inspected the site along with the Executive Engineer and submitted their report in regard to completion of work, however, the amount was not paid to the respondent No.1. The Division Bench of this court issued notice on 16.12.2009. The court sought some information from respondents No.2 and 3 and observed as under :- “The respondents nos.2 and 3 shall inform this court that before issuing tender notice, they ever informed anybody that the amount of bill shall be paid after money is received from Government or whether there was any understanding or agreement between respondent no.1 on one side and respondent nos.2 and 3 on the other that the amount involved in the said work order shall be paid by the Government. Put up immediately after notices are received back.” 13. Thereafter, the respondent No.3 – President Nagar Panchayat Akoda prepared the return on 18.12.2009 and filed the same on 12.1.2010. He had sworn affidavit on 18.12.2009. It means that respondent No.3 filed return within two days from the date of issuance of notice. It is pleaded in the return that the amount due to the respondent No.1 (petitioner in the writ petition) could not be paid because the State Government had not allotted budget to the Nagar Panchayat. He further pleaded that after availability of fund, the amount as claimed by the petitioner shall be paid to him. Along with the return, a letter written by the CMO to the respondent No.1 was also filed. Mr.Chunte Dohre, claimed himself as President of Nagar Panchayat sworn the affidavit in support of the return on behalf of respondent No.3 in the writ petition. On behalf of respondent No.2, the return was prepared on 5.1.2010. Mr.Suresh Chandra Sharma mentioning himself as C.M.O., had sworn the affidavit on 5.1.2010. The respondent No.2 also pleaded the facts that the fund was not available in the Nagar Panchayat and after receiving the fund from the State Government and budget the amount claimed by the petitioner shall be paid to the petitioner. Respondent No.2 further pleaded that a direction be issued to the State Government to make fund available to the Nagar Panchayat so the amount claimed by the petitioner be paid to him. The returns of respondents No.2 and 3 were drafted by the same counsel and both the respondents engaged one counsel. Respondent No.2 further pleaded that a direction be issued to the State Government to make fund available to the Nagar Panchayat so the amount claimed by the petitioner be paid to him. The returns of respondents No.2 and 3 were drafted by the same counsel and both the respondents engaged one counsel. The return of respondent No.3 was filed before the court on 19.2.2010. The case was listed before the court on 5.3.2010 and thereafter the court passed the following order : “Heard. 1. The petitioner has filed this petition against the order of allocation to the State of Chhattisgarh and also against the order of rejection of his representation. 2. The Union of India enacted an Act, named as State Reorganization Act, 2000, herein after referred to as the 2000 Act'. Consequently, a new State of Chhattisgarh has been carved out in pursuance to the 2000 Act. The Union of India also decided to allocate the employees, who were working in the State of Madhya Pradesh between the newly carved out State of Chhattisgarh and the State of Madhya Pradesh. Consequently, under Section 71 of the 2000 Act a tentative list in regard to allocation of the employees was published. In the aforesaid list, the petitioner was allocated to the State of Chhattisgarh. The petitioner submitted a representation before the Authority objecting his allocation mentioning in detail that he is senior person and junior persons to the petitioner were retained in the State of Madhya Pradesh, however, the representation of the petitioner was rejected and the petitioner was finally allocated to the State of Chhattisgarh. 3. Against his order of allocation to the State of Chhattisgarh the petitioner filed an application before the M.P. State Administrative Tribunal. The Tribunal granted stay in favour of the petitioner and after abolition of the Tribunal the application was transferred to this Court as registered as Writ Petition No. 5981/03.(S). 4. The rejection of the representation of the petitioner is contrary to the para-meters and guidelines issued by the Central Government. It has been mentioned in the order that the representation of the petitioner is hereby rejected. No reasons have been assigned in rejecting the representation. Hence, the order is contrary to law. 4. The rejection of the representation of the petitioner is contrary to the para-meters and guidelines issued by the Central Government. It has been mentioned in the order that the representation of the petitioner is hereby rejected. No reasons have been assigned in rejecting the representation. Hence, the order is contrary to law. Because petitioner has been serving in the State of Madhya Pradesh after his allocation to the State of Chhattisgarh for last 10 years in pursuance to the stay order, in such circumstances, in my opinion, it would not be just and proper to again refer the matter to the appropriate Government for deciding the representation of the petitioner. 5. Consequently, the petition of the petitioner is allowed. Impugned order Annexure A-1 and the orders Annexure P-5 and P-6 in regard to allocation of the petitioner to the State of Chhattisgarh are hereby quashed. Looking to the facts of the case, there shall be no order as to costs.” 14. Thereafter, MCC No.150/10 was filed for correction of some typing error, that was allowed. Against the aforesaid order, Nagar Panchayat filed SLP before the Hon'ble Supreme Court. Mr.Babu Dohre, sworn the affidavit in support of the SLP as President of the Nagar Panchayat. Hon'ble Supreme Court vide order dt.13.8.2010 dismissed the SLP after condoning the delay. 15. When the order passed by this court was not complied with, the respondent No.1 filed contempt petition on 25.4.2011, it was registered as Cont. Petition No.557/2010 and this court disposed of the contempt petition with directions to make payment within six months. Then another contempt petition was filed, which was registered as Cont. Petition No.801/2011. The Division Bench of this court vide order dt.20.6.2012 disposed of the contempt petition with the following directions : “In the facts and circumstances of the case, contempt petition is disposed of with directions that either the respondents shall get the decision modified passed in W.P.No.5981/2009 within a period of 6 weeks or shall comply with the order passed by this Court within a period of 3 months positively without fail. In case, the order is not complied with, the respondent shall be personally liable for the amount, if any, is payable to the petitioner along with the interest @ 8% pa. A copy of this order be placed in the record of Contempt Petition No.802/11. Petition stands disposed of with the aforesaid.” 16. In case, the order is not complied with, the respondent shall be personally liable for the amount, if any, is payable to the petitioner along with the interest @ 8% pa. A copy of this order be placed in the record of Contempt Petition No.802/11. Petition stands disposed of with the aforesaid.” 16. The Chief Municipal Officer of Nagar Panchayat was transferred and new Chief Municipal Officer joined in the month of July 2010. When the payment was not made again a contempt petition was filed on 20.9.2012. The court issued bailable warrants and thereafter on 18.2.2013, the present review petition has been filed. 17. The petitioner in review petition pleaded that the respondent No.1 did not execute any work on his part. The tender was also not issued in accordance with law and after following the proper procedure. On 23.7.2007 on the instructions of the then President of Nagar Panchayat, a note sheet was put up in regard to construction of CC road at various places of Nagar Panchayat. The aforesaid note sheet was signed by one clerk namely Bhagwan Das Jha mentioning the fact that because at that time CMO was not available at the headquarter and under his signatures, the orders were issued for publishing advertisement in the news papers. At that time, the fund was not available in the Nagar Panchayat and in accordance with the rules, the Nagar Panchayat had power only upto 25 lacs and the technical sanction was also not obtained. The advertisement inviting tenders was issued in three local news papers namely; Dainik Nirmohi, Samarth Lok and Dainik Udgar. Those news papers had no proper circulation in the area. In the advertisement an amount of security of Rs.10,000/- was mentioned and cost of the work was mentioned as Rs.2,50,000/-. The bills were submitted by the respondent contractor on 9.6.2008 and the measurement was conducted by Mr.M.L.Sharma, Sub Engineer who had dubuous character. The respondent No.1 submitted the bills of an amount of Rs.61,17,988/-. The aforesaid amount was not mentioned in tender notice and there was no such agreement. 18. It is further pleaded by the petitioner that the election of Nagar Panchayat was held on 11.12.2009. Mr.Babu Dohre was elected as President of the Nagar Panchayat. Reply was prepared on 18.2.2009 on behalf of President of Nagar Panchayat. The aforesaid amount was not mentioned in tender notice and there was no such agreement. 18. It is further pleaded by the petitioner that the election of Nagar Panchayat was held on 11.12.2009. Mr.Babu Dohre was elected as President of the Nagar Panchayat. Reply was prepared on 18.2.2009 on behalf of President of Nagar Panchayat. The affidavit in support of the reply was signed by Chunte Dohare S/o Mansukh Dohare, however, Chunte Dohare was not the President of the Nagar Panchayat at that time because Mr.Babu Dohre was elected as President of Nagar Panchayat on 15.12.2009. The petitioner further pleaded that the Chief Municipal Officer of Nagar Panchayat namely Mr.Suresh Chandra Sharma was retired on 31.1.2010. On his signature, the return was prepared on 5.1.2010 and it was filed before the court on 19.2.2010, on the aforesaid date, Mr.Suresh Chandra Sharma was not competent to swear the affidavit in support of the return because he had already retired from service and Mr. Ramji Singh Bhadoria was posted as In charge CMO. On the basis of the aforesaid pleadings, the petitioner has pleaded that fraud has been played by the respondent No.1 and he obtained favourable order in connivance with the office bearers of Nagar Panchayat. Hence, the order is liable to be reviewed. 19. The respondent No.1 in its return pleaded that the review petition is not maintainable because against the order passed by this court, an SLP was filed before the Hon'ble Supreme Court and that SLP has been dismissed by Hon'ble Supreme Court. Respondent No.1 further pleaded that after passing of the order, two contempt petitions were filed before this court and one SLP was filed before the Hon'ble Supreme Court but in all the cases there is no pleading of fraud by the officers of the Nagar Panchayat or the State Government, hence, the pleadings of fraud in the present review petition are afterthought. The petitioner has made pleading of fraud to avoid the payment as ordered earlier. Respondent No.1 further pleaded that a PIL (W.P.No.7920/2011) was also filed before this court in regard to irregularities in granting contract. That petition has been dismissed by this court vide order dt. 17.4.2012. In the aforesaid order, the State Government pleaded that there was no irregularity in the contract. Respondent No.1 further pleaded that a PIL (W.P.No.7920/2011) was also filed before this court in regard to irregularities in granting contract. That petition has been dismissed by this court vide order dt. 17.4.2012. In the aforesaid order, the State Government pleaded that there was no irregularity in the contract. This court has also observed the fact in the order, which is as under :- “From the perusal of the enquiry report, it is clear that authorities have conducted a detailed enquiry and found the allegations baseless. Same allegations have been leveled in this petition by the petitioners. Learned counsel for the respondents have contended that this petition has been filed at the behest of the Chief Municipal Officer. After perusal of the allegations levelled in this petition, we came to the conclusion that this Public Interest Litigation has been filed on the Chief Municipal Officer Nagar Panchayat Akoda district Bhind. The two members committee has already considered the allegations and found the allegations baseless in the enquiry report dt.21.11.2011. In such circumstances, in our opinion, there is no merit in this writ petition. It is hereby dismissed. No order as to costs.” 20. The respondent No.1 also pleaded that a test report in regard to construction made by the respondent No.1 was conducted and it was found in accordance with law by Madhav Institute of Technology and Science Gwalior (M.P.). Thereafter, E.E., Water Resources Department, also conducted an inquiry and he submitted the inquiry report on 31.12.2009. In the aforesaid enquiry report, the Executive Engineer specifically mentioned that the complaints submitted against the construction were false. A Panchnama was also prepared to this effect by the authority. Another committee was constituted on 9.11.2010. The committee submitted its report on 21.11.2011 and found the allegations baseless. Hence, the pleading of the petitioner that a fraud was played is baseless. 21. Learned counsel for the petitioner has contended that respondent No.1 played a fraud and obtained a favourable order from the court, hence, the review petition is maintainable and the order is liable to be recalled. 22. Contrary to this, learned senior counsel appearing on behalf of the respondent No.1 has contended that the pleadings of fraud are afterthought. The petitioner has made the ground in order to save itself from making payment. 22. Contrary to this, learned senior counsel appearing on behalf of the respondent No.1 has contended that the pleadings of fraud are afterthought. The petitioner has made the ground in order to save itself from making payment. He further submitted that in earlier proceedings or in SLP before the Hon'ble Supreme Court, Nagar Panchayat has not pleaded commission of any fraud. He further submitted that the officers inquired the allegation and found the allegation baseless, hence, the review petition is liable to be dismissed because it has been filed belatedly. 23. It is an admitted fact that against the order passed by this court, an SLP was filed before the Hon'ble Supreme Court and that has been dismissed. In the SLP or in the reply of the contempt petitions or in reply of the PIL, the fact of fraud has not been pleaded by the Nagar Panchayat. 24. Hon'ble Supreme Court in the SLP passed the following order while dismissing the SLP :- “Delay condoned. The Special Leave Petition is dismissed.” 25. Hon'ble Supreme Court in the case of Kunhayammed and others Vs. State of Kerala and another – (2000) 6 SCC 359 has held as under in regard to maintainability of review petition if an SLP against the order has been dismissed by the Supreme Court by non speaking order :- 34. The doctrine of merger and the right of review are concepts which are closely interlinked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed — there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But where the special leave petition is dismissed — there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits — in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave — the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it. 35. It will be useful to refer to Order 47 Rule 1 of the Code of Civil Procedure 1908. It reads as follows: “1. Application for review of judgment.—(1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. Explanation.—The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.” 36. For our purpose it is clause (a) sub-rule (1) which is relevant. It contemplates a situation where “an appeal is allowed” but “no appeal has been preferred”. The Rule came up for consideration of this Court in Thungabhadra Industries Ltd. v. Govt. of A.P. in the context of Article 136 of the Constitution of India. The applicant had filed an application for review of the order of the High Court refusing to grant a certificate under Article 133 of the Constitution. The applicant also filed an application for special leave to appeal in respect of the same matter under Article 136 along with an application for condonation of delay. The Supreme Court refused to condone the delay and rejected the application under Article 136. When the application for review came up for consideration before the High Court, it was dismissed on the ground that the special leave petition had been dismissed by the Supreme Court. This Court held that the crucial date for determining whether or not the terms of Order 47 Rule 1(1) CPC are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end. On the date when the application for review was filed the applicant had not filed an appeal to this Court and therefore there was no bar to the petition for review being entertained. 37. Let us assume that the review is filed firstand the delay in SLP is condoned and the special leave is ultimately granted and the appeal is pending in this Court. The position then, under Order 47 Rule 1 CPC is that still the review can be disposed of by the High Court. 37. Let us assume that the review is filed firstand the delay in SLP is condoned and the special leave is ultimately granted and the appeal is pending in this Court. The position 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. An appeal cannot be preferred against a decree after a review against the decree has been granted. This is 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. 38. The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1(a). Thus the words “no appeal” has been preferred in Order 47 Rule 1(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, the 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 thereafter, unless such a review application was preferred in the High Court before special leave was granted. 26. Hon'ble Supreme Court in the case of Bakshi Dev Raj (2) and another Vs. Sudheer Kumar – (2011) 8 SCC 679 has held as under :- 33. Now, let us consider the maintainability of the review petition filed before the High Court after dismissal of SLP (C) No. 10939 of 2008 before this Court. It is not in dispute that the High Court, by order dated 18-3-2008, based on the statement of both the counsel disposed of Second Appeal No. 19 of 2005 by modifying the decree as stated therein. Against the said order of the High Court, the appellants preferred the abovesaid SLP before this Court. By order dated 14-5-2008, this Court after hearing the counsel for the appellants passed the following order:“ 1. Against the said order of the High Court, the appellants preferred the abovesaid SLP before this Court. By order dated 14-5-2008, this Court after hearing the counsel for the appellants passed the following order:“ 1. The learned counsel for the petitioner prays to withdraw the petition. Prayer made is accepted. 2. The special leave petition is dismissed as withdrawn.” 34. A reading of the above order makes it clear that based on the request of the counsel, the SLP came to be dismissed as withdrawn. It is also clear that there is no permission or reservation or liberty for taking further action. However, dismissal of SLP is not a bar for filing review before the same Court. This aspect was considered by a three-Judge Bench of this Court in Kunhayammed v. State of Kerala. The above aspect was dealt with elaborately in paras 38, 40 and 44: (SCC pp.381-84) “38. The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1(1)(a). Thus the words ‘no appeal’ has been preferred in Order 47 Rule 1(1)(a)would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of the law before the superior court. Therefore, the 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 thereafter, unless such a review application was preferred in the High Court before special leave was granted. * * * 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 defective 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, (v) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt withby the Apex Court of the country and so on.The expression often employed by this Court while disposing of such petitions are—‘heard and dismissed’, ‘dismissed’, ‘dismissed as barred by time’ and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition.The court may apply its mind to the merit-worthiness of the petitioner’s prayer seeking leave to file an appeal and having formed an opinion may say ‘dismissed on merits’. Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the 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 in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 CPC act asguidelines) 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. 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 the 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. 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. 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 aspeaking 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 the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or apetition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.” (emphasis in original) 35. (vii) On an appeal having been preferred or apetition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.” (emphasis in original) 35. In view of the principle laid down above by this Court, even after the dismissal of SLP, the aggrieved parties are entitled to move the court concerned by way of review. In the case on hand, though the appellants moved an SLP in this Court against the order of the High Court in the second appeal, admittedly, the SLP was dismissed as withdrawn without the leave of the Court. 27. On the basis of principle of law laid down by the Hon'ble Supreme Court, in our opinion, the arguments advanced by the senior counsel for respondent No.1 that this review petition is not maintainable because an SLP filed by Nagar Panchayat before the Hon'ble Supreme Court has been dismissed by the Hon'ble Supreme Court could not be accepted. Apart from this, in the present case, the petitioner has pleaded that a fraud has been played by the respondent No.1 in obtaining the order and it is well settled principle of law that the fraud vitiates everything and even at the execution stage, the court has power to investigate the allegation of fraud. 28. In the present case, the court issued notices on the petition on 16.12.2009. The return was prepared on behalf of the respondent No.3 President Nagar Panchayat on 18.12.2009, means without receiving the notice of the petition because the process fee was paid on 17.12.2009. It means that the respondent No.3 was ready to submit its reply in favour of the petitioner before the receipt of the notice. The return was filed on behalf of the President of Nagar Panchayat and the affidavit was sworn by Chunte Dohre S/o Shri Mansukh Dohare. The election of the Nagar Panchayat was held on 15.12.2009. In the aforesaid election Mr.Babu Dhore was elected as President of Nagar Panchayat, hence, Mr. Chunte Dohre had no right to swear affidavit and submit return on behalf of Nagar Panchayat before the court on 18.12.2009. The return was filed on 12.1.2010. It means that the return was filed by incompetent person. In the aforesaid election Mr.Babu Dhore was elected as President of Nagar Panchayat, hence, Mr. Chunte Dohre had no right to swear affidavit and submit return on behalf of Nagar Panchayat before the court on 18.12.2009. The return was filed on 12.1.2010. It means that the return was filed by incompetent person. Similarly, the return on behalf of respondent No.2 Chief Municipal Officer was drafted on 5.1.2010. Mr.Suresh Chandra Sharma sworn the affidavit. It was filed before the court on 19.2.2010. Mr.Suresh Chandra Sharma retired on 31.1.2010 and Mr. Ramji Singh Bhadoria was posted as In charge Chief Municipal Officer. Hence, the return, which was supported by an affidavit of Mr.Suresh Chandra Sharma, is an incompetent document because Mr. Sharma was retired on 31.10.2010. Apart from this, after perusal of the note sheets, as mentioned earlier, it is clear that in the note sheet, the details of amount has also not been mentioned. Nagar Panchayat issued advertisement for the construction work. In the aforesaid advertisement, security amount was mentioned as Rs.10,000/- each against four heads, however, in the aforesaid advertisement, the total cost of the construction was not mentioned. The respondent No.1 submitted the bills of near about Rs.80 lacs. Since he had received Rs.20 lacs, he had claimed an amount of Rs.61 lacs. It is not on record that whether the President of the Nagar Panchayat was competent to sanction the aforesaid amount. As per the pleadings of the petitioner, in accordance with the provisions of Rule Madhya Pradesh Nagar Palika (Mayor in council/President in Council) Ke Kamkaj Ka Sanchalan Tatha Pradhikaran Ke Prakriya Evam Kartavya) Rules, 1998, the Municipal Council or the President was not competent to sanction that much amount because they were competent to sanction upto Rs.25 lac only. Apart from this, there was no budget available in the Nagar Panchayat at that time. 29. Section 17 of the Contract Act defines the fraud, which is as under :- “17. Apart from this, there was no budget available in the Nagar Panchayat at that time. 29. Section 17 of the Contract Act defines the fraud, which is as under :- “17. Fraud defined.- 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.” 30. Hon'ble Supreme Court in the case of MCD vs. State of Delhi and another, (2005) 4 SCC 605 has held as under in regard to effect of fraud - 19. The trial court heard the respondent on sentence also and passed the following order: “Convict in person with counsel. Heard on sentence. It is contended that he is first offender. He is not a previous convict nor habitual offender. He has faced trial since 1991. He is aged about 57 years. He is not doing any business due to his bad health. Considering the above facts and circumstances, and gravity of the nature of the offence i.e. extent of construction raised by the accused for commercial (sic purposes) as 11 shops at ground floor and 11 shops at first floor, I am not inclined to release the accused/convict on probation. Hence request declined. In the interest of justice, sentence of six months' SI, with fine of Rs 5000, ID one-month SI is imposed upon the convict for offence under Sections 332/461, DMC Act. Fine deposited. Convict remained for sentence.” 20.The Additional Sessions Judge, New Delhi also in Civil Appeal No. 7 of 2002 (Annexure P-2) dismissed the appeal as there is no infirmity in the order of the trial court and upheld the conviction order passed by the trial court on the point of sentence. The appellate court held that no interference is required in the order passed by the trial court regarding point of sentence. The appellate court held that no interference is required in the order passed by the trial court regarding point of sentence. Since the appellant MCD was not given any opportunity by the High Court to file conduct report of the respondent, the order impugned in this appeal is liable to be set aside. 31. Hon'ble Supreme Court in the case of A.V.Papayya Sastry and others Vs. Govt. of A.P. And others, (2007) 4 SCC 221 has held as under in regard to fraud :- 21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed: “Fraud avoids all judicial acts, ecclesiastical or temporal.” 22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order—by the first court or by the final court—has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. 23. In the leading case of Lazarus Estates Ltd.v. Beasley Lord Denning observed: (All ER p.345 C) “No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.” 24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment. 25. 25. It has been said: fraud and justice never dwell together ( fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none ( fraus et dolus nemini patrocinari debent). 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants. 27. In S.P. Chengalvaraya Naidu v. Jagannath this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. B approached this Court. 28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as “wholly perverse”, Kuldip Singh, J. stated: (SCC p. 5, para 5) “The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” (emphasis supplied) 29. The Court proceeded to state: (SCC p. 5, para 6) “A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” 30. The Court concluded: (SCC p. 5, para 5) “The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.” 31. In Indian Bank v. Satyam Fibres (India) (P) Ltd. referring to Lazarus Estates and Smith v.East Elloe Rural Distt. Council this Court stated: (SCC pp. 562-63, para 22) “22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.” 32. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.” 32. In the present case, astonishing facts have come to the knowledge of the court right from the stage of inviting tenders upto the completion of the work and the order under review obtained by the respondent No.1 from this court on the basis of return filed by respondents No.2 and 3. The returns were prepared just immediately after issuance of orders of issuance of notice by this court. Another person was elected as President of Nagar Panchayat when the return was filed on behalf of the President. Mr.Suresh Chandra Sharma, CMO was also retired, who sworn the affidavit when the return was field by the Nagar Panchayat. Unfortunately, the aforesaid facts had not been pleaded by any person earlier in the proceedings filed before the Hon'ble Supreme Court or before this court. But this does not preclude this court to order an inquiry in regard to conduct of the parties. The court of law could not function if doctored documents are prepared to file before the court or the parties were permitted to obtain favourable order from the court by collusion. 33. From the facts of the case, we have come to the conclusion that the respondent No.1 and also office bearers of Nagar Panchayat have played fraud with the court in filing reply and also obtaining the order from the court. Respondent No.1 pleaded that subsequently officers inspected the spot and found that there was construction made by the respondent No.1. However, prima facie we are of the opinion, that the aforesaid claim could not be accepted looking to the facts of the case. Apart from this, there was hanky panky in issuing tender also. In the notification, the quantity of work was also not mentioned. Apart from this, Nagar Panchayat had no fund. Looking to the aforesaid facts of the case, in our opinion, an inquiry is necessary so the persons, who are guilty may be punished. 34. Consequently, the review petition filed by the petitioner is hereby allowed. In the notification, the quantity of work was also not mentioned. Apart from this, Nagar Panchayat had no fund. Looking to the aforesaid facts of the case, in our opinion, an inquiry is necessary so the persons, who are guilty may be punished. 34. Consequently, the review petition filed by the petitioner is hereby allowed. The order dt.5.3.2010 passed in W.P.No. 5981/2009 is hereby recalled. The writ petition is restored to its original number. The Lokayukta organization is directed to conduct an investigation in the matter. The order passed by this court be sent to the Lokayukt and it be treated as a complaint as required to be filed before the organization in accordance with law. We request the Lokayukt Establishment to conduct the investigation as early as possible and submit its report before this court. No order as to costs.