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2015 DIGILAW 479 (UTT)

UTTARAKHAND POWER CORPORATION LTD. v. JAI PRAKASH INDUSTRIES LTD.

2015-09-29

SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Servesh Kumar Gupta, J. The afore-numbered MCCs have been moved seeking review of the judgment and order dated passed by this Court on 29.9.2015 in both the above-titled appeals. The delay condonation applications, in the respective files, have also been moved seeking condonation of 203 days delay in preferring these review applications. 2. Learned counsel for the review applicant at the very outset has placed reliance on the following judgments of the Hon’ble Apex Court: - 1. Kunhayammed & others v. State of Kerala & others, (2000) 6 SCC 359 (Constitutional Bench); 2. Gangadhara Palo v. Revenue Divisional Office & another, (2011) 4 SCC 602 . 3. I have perused both the judgments of the Hon’ble Apex Court which, in sum and substance, deal with the doctrine of merger of the judgments of the Courts passed in hierarchy. It has been said that the doctrine of merger is neither a constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one, this Court had an opportunity of dealing with the doctrine of merger. It has been held that if the special leave petition is dismissed by the Apex Court citing the reasons, then the provisions of Order 47 Rule 1 CPC are not attracted. However, if such an SLP is dismissed without citing any reason, then the party which looses the case in the Court, will still have a liberty to seek recourse for invoking the provisions of review. 4. On the other hand, learned Senior Counsel on behalf of the Power Corporation has taken this Court to an other judgment of the Apex Court rendered in the case of Khoday Distilleries Ltd. v. Mahadeswara SSK Ltd’ (2012) 12 SCC 291 : 2013 (1) UAD 190, wherein, it was held that when the Apex Court dismisses a special leave petition by giving some reasons, however meager (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the high court. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the high court. Hence, if some reasons, however meager, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist. 5. While dismissing the special leave petitions, the Hon’ble Apex Court, vide order dated 12.1.2016, passed the following order: - ‘We find no infirmity in the orders impugned herein. The Special Leave Petitions are dismissed.’ 6. So, the contention of learned Senior Counsel for the Power Corporation is that after application of reasoned mind, the Hon’ble Judges of the Apex Court did not find any infirmity in the order impugned. 7. The Court finds that the said order passed by the Supreme Court was not the simplicitor dismissal of SLP without assigning any reason. So, the impugned judgment dated 29.9.2015 has been merged into the order of the Apex Court dated 12.1.2016. 8. Even further, M/s J.P. Associates (hereinafter to be referred as ‘J.P.A.’) again moved an interlocutory application calling the attention of the Apex Court on few more other papers which was also heard and dismissed on 18.4.2016. 9. Thereafter, these review applications have been presented before this Court on 20.5.2016 on the ground that the Apex Court had permitted ‘J.P.A.’ orally to move a review application before this Court. 10. To my mind, it is difficult to agree with the argument put forth on behalf of ‘J.P.A.’, rather, the argument advanced on behalf of Power Corporation appears to be more convincing to this Court because a prima facie perusal of the order dated 12.1.2016 would reveal that the Apex Court, while hearing the arguments of ‘J.P.A.’, did not find any infirmity (as afore-stated) in the impugned judgment dated 29.9.2015 passed by this Court, which was self-speaking and an elaborate verdict, running in as many as 19 pages, citing the whole provisions of the Rate Schedules LMV-1, LMV-2 and LMV-9, promulgated by the State Electricity Board. So, the basic foundation of the judgment, in question, was that the rights which had been settled by way of passing the Resolution by the Electricity Board, then making deviation from them at the discretion of the Executive Engineer or the Deputy General Manager of the Board, was at all not warranted. The allegation of the UPCL was that the ‘J.P.A.’ could successfully managed those officers in order to shift their case from the applicability of LMV-2 to LMV-1 for the electricity supply to hundreds of labours indulged in the foundation and construction of the project. Since, it was a big project and in the process of its setting up, it took more than two years, therefore, the connection which was initially taken for 50 kilowatts was kept on being increased up to 250 kilowatts for the use of labourers as well as the officers of ‘J.P.A.’ even. Thus, the connection could not be termed in perpetuity because after the establishment of the Project, such multitude of labourers and the officials/officers of the ‘J.P.A.’ certainly could not have been maintaining their dwelling units at the site. After completion of venture which was all machine based, such large number of dwelling units were not needed at all. So, considering this aspect, in special and peculiar circumstances, the connection taken for the domestic use was treated to be in the rate schedule of LMV-2, nonetheless, it was stretched for more than two years. 11. Needless to say that this ‘J.P.A.’ could not have been on the equal footing with the other hydro electro power projects established by the Electricity Departments of the State itself like UPCL etc. because the motto of ‘J.P.A.’ in founding this project was profit hunting and even after giving meager lease rent or 12.5 percent of the total electricity generation for the consumption of the State Government, the remaining lion’s share remains with the ‘J.P.A.’ itself to sell it at the profitable rates. So, sparing 12.5 percent electricity of the total generation is in lieu of the heavy water stream which is owned by the State Government. 12. So, sparing 12.5 percent electricity of the total generation is in lieu of the heavy water stream which is owned by the State Government. 12. Here, it would be quite apposite to mention the authority of the Apex Court in the case of ‘Kamlesh Verma v. Mayawati & others’ (2013) 8 SCC 320 , wherein it was held that Order 47 Rule 1 of Code of Civil Procedure, contemplating the review, is not maintainable when the contentions/ arguments are again put forth before the Court; the matter already concluded cannot be re-opened in such a manner. 13. That apart, these review applications have been moved with the delay of 203 days wherefor no cogent or plausible explanation, to my view, has been given. 14. In view of what has been set forth above, I do not find any good ground to review my judgment dated 29.9.2015. All the review as well as delay condonation applications, being devoid of any merit, are hereby dismissed.