GANGADHARA PALO versus THE REVENUE DIVISIONAL OFFICER & ANOTHER

[2011] 3 S.C.R. 746

GANGADHARA PALO

THE REVENUE DIVISIONAL OFFICER & ANOTHER (Civil Appeal No. 5280 of 2006)

MARCH 08, 2011

[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

--Review petition Maintainability of Writ petition by the --appellant Dismissed by High Court SLP thereagainst also -C dismissed Review petition filed by the appellant before the High Court alongwith an application for condonation of delay --in filing the review petition Dismissed by the High Court -Appeal before this Court Plea of respondent that review petition was not maintainable because against the main judgment of the High Court dismissing the writ petition of the -appellant, the appellant filed SLP which was dismissed Held: There was delay of 71 days in filing the revie -petition High Court should have taken liberal view and -condoned the delay Thus, the delay in filing the review petition before the High Court is condoned - As regards the maintainability of the review petition, it would make no difference whether the review petition was filed in the High Court before or after the dismissal of SLP - It is important whether the judgment of the High Court has merged into the judgment of Supreme Court by the doctrine of merger or not - Where SLP is dismissed by giving some reasons, however, meager (it can be even of just one sentence), there would be merger of the judgment of the High Court into the judgment of Supreme Court and after merger there is no judgment of -the High Court Thus, there can be no review of judgment -G which does not even exist When SLP is dismissed without giving any reasons, there is no merger of the judgment of the -High Court with the order of Supreme Court The judgment of the High Court can be reviewed since it continues to exist,

GANGADHARA PALO v. REVENUE DIVISIONAL OFFICER & ANR.

though the scope of the review petition is limited to errors apparent on the face of the record - In the instant case, SLP was dismissed without giving any reasons, thus, there was no merger of the judgment of the High Court with the order of -Supreme Court The judgment of the High Court could be reviewed - Matter therefore, remitted to the High Court to -decide review petition on merits Doctrine of merger- Delay/ -Laches Limitation.

Kunhay Ammed and Ors vs. State of Kera/a and Anr (2002) 6 SCC 359; S. Shanmugavel Nadar vs. State of Tamil Nadu and Anr. JT 2002 (7) SCC 568; State of Manipur vs. Thingujam Brojen Meetei AIR 1996 SC 2124; U.P. State Road Transport Corporation vs. Omaditya Verma and Ors. AIR 2005 SC 2250 - Relied on.

K. Ajamou/i vs. A. V.K.N Swamy (2001) 5 SCC 37 -

Referred to.

--Review Power of Held: Cannot be taken away by judicial order as that has been conferred by the statute or the -Constitution By judicial order, the statute or the Constitutio'l cannot be amended.

--Doctrines Doctrine of merger Held: By the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court.

-Precedent precedent is decision which lays down -, some principle of law Mere stray observation by Supreme Court would not amount to precedent-" Constitution of India, 1950 - Article 141.

Case Law Reference:

[2011) 3 S.C.R.

AIR 1996 SC 2124 Relied on AIR 2005 SC 2250 Relied on

Para 9

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5280 of 2006.

From the Judgment & Order dated 28.01.2005 of the High

Court of Judicature, Andhra Pradesh at Hyderabad, W.P.M.P. No. 29346 of 2004 in Review W.P.M.P. SR. 108493 of 2001 and Review WPMP. SR. 108493 of 2001 in W.P. No. 18933 of 1988.

P.S. Mishra, Tathagat H. Vardhan, Dhruv Kumar Jha, Ritu

Raj Chaudhary (for Manu Shankar Mishra) for the Appellant.

Sanjay Kapur, Abhishek Kumar, A. Nanda, V. Pattabhiram (for G.N. Reddy) for the Respondents.

The following order of the Court was delivered

ORDER

Heard learned counsel for the parties.

This Appeal has been filed against the impugned

judgment/order dated 28th January, 2005 passed by the High Court of Andhra Pradesh at Hyderabad.

By that order, the review petition as well as the application

for condonation of delay in filing the review petition have been dismissed.

The delay was only of 71 days and, in our opinion, liberal

view should have been taken by the High Court and delay of 71 days in filing the review petition should have been condoned and the review petition should have been decided on merits. Hence, we condone the delay of 71 days in filing the review petition before the High Court.

GANGADHARA PALO v. REVENUE DIVISIONAL OFFICER & ANR.

As regards the maintainability of the review petition, Mr. Sanjay Kapur, learned counsel for the respondent submitted that it was not maintainable because against the main judgment of the High Court dated 19 th June, 2001 dismissing the writ petition of the appellant herein, the appellant herein filed special leave petition in this Court which was dismissed on 17th September, 2001.

The aforesaid order of this Court dismissing the special leave petition simply states "The Special Leave Petition is dismissed". Thus, this order gives no reasons. In support of his submission, learned counsel for the respondent has relied upon decision of this Court in the case ofK. Ajamou/i vs. A. V.K.N. Swamy (2001) 5 SCC 37 and has submitted that there is distinction between case where the review petition was filed in the High Court before the dismissal of the special leave petition by this Court, and case where the review petition was filed after the dismissal of the special leave petition by this Court.

We regret, we cannot agree. In our opinion, it will make

no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of me~erorn~

. When this Court dismisses special leave petition by

giving some reasons, however meagre ( it can be even of just one sentence), there will be 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 higher court. Hence, if some reasons, however meagre, 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 judgment which does not even exist.

The situation is totally different where special leave petition is dismissed without giving any reasons whatsoever. It 8 [is ][well settled that special leave under Article 136 of the ]Constitution of India is discretionary remedy, and hence special leave petition can be dismissed for variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in the cases of Kunhay Ammed & Others vs. State of Kera/a & Another (2000) 6 SCC 359; S. Shanmugavel Nadar vs. State of Tamil Nadu & Another JT 2002 (7) SCC 568; State of Manipur vs. Thingujam Brojen Meetei AIR 1996 SC 2124; and UP.State Road Transport Corporation vs. Omaditya Verma and others AIR 2005 SC 2250).

judgment which continues to exist can obviously be reviewed, though of course the scope of the review is limited to errors apparent on the face of the record but it cannot be said that the review petition is not maintainable at all.

Learned counsel for the respondent Mr. Sanjay Kapur has, however, invited our attention to paragraph 4 of the judgment of this Court in the case of K.Rajamouli (supra), wherein it was observed:

"FoUowing the decision in the case of Kunhayammed

GANGADHARA PALO v. REVENUE DIVISIONAL OFFICER & ANR.

(2000) 6 SCC 359, we are of the view that the dismissal

of the special leave petition against the main judgment of the High Court would not constitute res judicata when special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment party files review petition after long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm (1998) 7 SCC 386 that if the High Court allows .the review petition filed after the special leave petition was dismissed after condoning the delay, it would 0 betreated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable."

We have carefully perused paragraph 4 of the aforesaid

judgment. What has been observed therein is that if the review petition is filed in the High Court after the dismissal of the special leave petition, 'it would be treated as an affront to the order of the Supreme Court'.

In our opinion, the above observations cannot be treated

as precedent at all. We are not afraid of affronts. What has to be seen is whether legal principle is laid down or not. It is totally irrelevant whether we have been affronted or not.

precedent is decision which lays down some principle

(2011] 3 S.C.R.

of law. In our view, the observations made in para 4 of the aforesaid judgment, quoted above, that "if review petition is filed after the dismissal of the special leave petition, it would be treated as an affront to the order of the Supreme Court" is not precedent at all. mere stray observation of this Court,

s in our opinion, would not amount to precedent. The above observation of this Court is, in our opinion, mere stray observation and hence not precedent.

By judicial order, the power of review cannot be taken

away as that has been conferred by the statute or the Constitution. This Court by judicial orders cannot amend the statute or the Constitution.

For the reasons given above·, we allow this appeal, set

aside the impugned order of the High Court, condone the delay

in filing the review petition before the High Court and remand the matter to the High Court to decide the review petition on merits in accordance with law expeditiously after hearing the parties concerned.

Appeal allowed.