Gangadhara Palo vs The Revenue Divisional Officer & Anr

Gangadhara Palo ..Appellant

versus

The Revenue Divisional Officer & Another ..Respondents

O R D E R

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, a

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.

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 19th June,

2001 dismissing the writ petition of the appellant herein,

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the appellant herein filed a 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 a decision of this Court in the

case of K. Ajamouli vs. A.V.K.N. Swamy (2001) 5 SCC 37 and

has submitted that there is a distinction between a case

where the review petition was filed in the High Court

before the dismissal of the special leave petition by this

Court, and a 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 merger or not.

When this Court dismisses a special leave petition

by giving some reasons, however meagre ( 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

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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 a judgment which does not even exist.

The situation is totally different where a special

leave petition is dismissed without giving any reasons

whatsoever. It is well settled that special leave under

Article 136 of the Constitution of India is a discretionary

remedy, and hence a special leave petition can be dismissed

for a 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 a 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, a special leave petition is

dismissed with reasons, however meagre (it can be even of

just one sentence), there is a 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 &

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Others vs. State of Kerala & 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 U.P.State Road Transport

Corporation vs. Omaditya Verma and others AIR 2005 SC

2250).

A 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:

"Following the decision in the case of Kunhayammed (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 a 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 a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a 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

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dismissed after condoning the delay, it would 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 a precedent at all. We are not afraid of

affronts. What has to be seen is whether a legal principle

is laid down or not. It is totally irrelevant whether we

have been affronted or not.

A precedent is a decision which lays down some

principle of law. In our view, the observations made in

para 4 of the aforesaid judgment, quoted above, that "if a

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 a precedent at all. A

mere stray observation of this Court, in our opinion, would

not amount to a precedent. The above observation of this

Court is, in our opinion, a mere stray observation and

hence not a precedent.

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By a 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.

............................J. [MARKANDEY KATJU]

NEW DELHI; ............................J. MARCH 08, 2011 [GYAN SUDHA MISRA]