Madras High Court
The Principal Chief Conservator Of ... vs M/S.Gupta Exports on 13 October, 2015
Author: T.S.Sivagnanam
Bench: Sanjay Kishan Kaul, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.08.2015
Pronounced on : 13 .10.2015
CORAM
THE HON'BLE MR.SANJAY KISHAN KAUL, CHIF JUSTICE
AND
THE HON'BLE MR.JUSTICE T.S.SIVAGNANAM
M.P.Nos.1 of 2015 (4 Nos.)
and
Review Application Nos. 293 to 296 of 2015
(Review Application Nos.SR. 63778, 63780, 63782 and 63784 of 2015)
1.The Principal Chief Conservator of Forests
Tamil Nadu Forest Department
Panagal Maaligai, Saidapet,
Chennai 600015. .. 1st Petitioner in M.P.No.1 of 2015
in Review Application SR.No.63778 of 2015
2.The State of Tamil Nadu
represented by the Secretary to Government,
Environment and Forest Department,
Fort St.George, Chennai 600 009. .. 1st Petitioner in M.P.No.1 of 2015
in Review Application SR.Nos.63780,
63782 and 63784
The District Forest Officer
Tirupattur Division
Tirupattur. ..2nd Petitioner/Review Applicant inM.P.Nos.1 (3 Nos.) of 2015
in Review Application SR.No.63778,63780 and 63782 of 2015
The District Forest Officer
Salem Division, Salem-7..2nd Petitioner/Review Applicant in M.P.No.1 of 2015
in Review Application No.63784
Versus
M/s.Gupta Exports
represented by its Partner
M.M.Gupta
P.B.No.44, Eastern Street,
Eluru, Andra Pradesh 534 001 ... Respondents/respondents in M.P.No.1 of 2015
in Rev.Appn.SR.Nos.63778, 63780, and 63784 of 2015
M/s.Lavanya Enterprises
represented by its Partner
M.M.Gupta
P.B.No.44, Eastern Street,
Eluru, Andhra Pradesh 534 001 ...Respondent/Rsepondent in M.P.No.1 of 2015
in Rev.Appln.SR.No.63784 of 2015
Petitions to condone the delay of 2805 days in filing the above Review Applications against order of this Court dated 25.10.2007 in W.A.Nos.405, 412, 413 of 2003 and W.A.No.3513 of 2004.
For Petitioner : Mr.K.T.S.Thulsi - Senior Counsel
for Mr.P.H.Arvind Pandian AAG
assisted by Mr.M.K.Subramanian
Special Government Pleader
For Respondents: Dr.Rajeev Dhawan - Senior Counsel
Mr.AR.L.Sundresan Senior Counsel
Mr.Nikhil Nayyar
Mr.TVS.Raghavendra Sreyas
assisted by
Mr.K.S.Natarajan
Mr.T.Saikrishnan
COMMON ORDER
The original petitioners in the writ proceedings claim to be large exporters of 'Sandalwood products' and participated in the auction conducted by the Department of Forest, Government of Tamil Nadu, and were the successful bidders. It is the case of the original petitioners that as per the conditions of auction, they had to pay the entire bid amount together with interest to the District Forest Officer, within 50 days from the date of confirmation of auction, and thereafter, within 75 days, the delivery of sandalwood was to be made to the auction purchaser. The petitioners claims that since the auction purchase was pursuant to an export order, there was no liability to pay sales tax and thus sought tax exemption from the concerned department. There was however insistence of the DFO to deposit the total amount within the stipulated time failing which the EMD would be forfeited. This consequence followed as the original petitioners did not deposit the amount. The original petitioners thus approached the court for quashing the forfeiture order.
2. The petitions were resisted on behalf of the Forest Department alleging that the original petitioners had paid only the EMD of 1/5th of the sale price and despite confirmation, balance was not paid and delivery not taken. A reminder was sent, followed by a show cause notice, but to no avail. The original petitioners were declared defaulters and the EMD was forfeited. Being part of the trade, it was contended that the original petitioners could not profess ignorance about the purchase terms and liabilities towards various tax/surcharge.
3. The original petitioners pleaded to the contrary, referring to the exemptions sought, documents submitted, all of which material is stated to be absent in the recital of the show cause notices.
4. Learned Single Judge was persuaded by the plea of orders passed in similar matters earlier, even though the plea of the department was that there were subsequent writ petitions filed by other individuals, which were dismissed as that could not be a ground to overlook the Judgment of the Division Bench in appeal in respect of same issue. A direction was thus issued quashing the forfeiture orders with a direction to the original petitioners to keep the bank guarantee alive, the goods were directed to be released without claiming any demurrage or penalty and the original petitioners were directed to establish before the concerned authorities that they were entitled to the benefit of sales tax exemption and certain other consequential directions were also issued. However, in this process, the writ petitions stated to be filed in May, 1997, were finally allowed on 06.08.2004 and thus, seven years period had elapsed.
5. The Forest Department took up the matter in appeal to the Division Bench and the appeals came to be finally decided only on 25.10.2007 by dismissal orders. The Division Bench order noticed that while the order of the learned Single Judge had directed the department to release the goods on obtaining bank guarantee for the disputed amount and bank guarantee was also furnished, the goods were not still released.
6. The Forest Department aggrieved by the orders of the learned single Judge and the Division Bench, preferred a Special Leave Petition and while issuing notice, an order of status quo was granted in the Special Leave Petition on 07.03.2008.
7. The matter rested at the SLP stage in the Hon'ble Supreme Court for six years and it was disclosed that this so happened as it was awaiting the decision in some other matter. The SLP was listed on 24.11.2014, when it was dismissed after condoning delay.
8. The orders were still not implemented and the original petitioners took recourse to file contempt petitions. Despite succeeding before three successive forums, the original petitioners were not getting the fruits of success, and there was no satisfactory explanation before us at that time and thus notice was issued on 15.04.2015 by the Division Bench.
9. It is at the aforesaid stage that the department filed a review application on 27.04.2015 before the Hon'ble Supreme Court. When the matter was listed before us on 14.07.2015, we were informed of the aforesaid fact. We recorded that we had issued notice as to why contempt proceedings should not be initiated against the respondent for the wilful disobedience of the orders of the court and he be not punished in accordance with law as it prima facie appeared that the endeavour of the department was only a counter-blast to the contempt petition. We found that as on 14.07.2015, clearly the department was in breach of the orders.
10. The matters were adjourned to 04.08.2015 directing the respondent to be present in Court, but at the request of the Additional Advocate General, the Court granted two weeks' time to comply with the order of course subject to the possibility of any order which they may be able to obtain from the Hon'ble Supreme court before that date.
11. The department suffered another reverse when the review filed before the Hon'ble Supreme Court was also dismissed on 23.07.2015. The review order reads as under:
''Delay condoned.
Applications for hearing in open Court are rejected.
We have gone through the Review Petitions and the connected papers. We see no reason to interfere with the order impugned. The Review Petitions are, accordingly, dismissed.''
12. The department thereafter filed a review application before this Court on 31.07.2015 with an application for condonation of delay stated to be of 2305 days, in which notice was issued on 05.08.2015.
13. In the mean time, the original petitioners decided to approach the Hon'ble Supreme Court in Transfer Petition Nos.1222 to 1225 of 2015. These petitions were however dismissed on 21.08.2015, but in the following terms:
''Dismissed.
However, we request the High Court to decide the preliminary objection with regard to the maintainability and also the delay in filing the Review Petition at the first instance.''
14. The result of the aforesaid is that the issue of condonation of delay in filing the review applications as well as the preliminary objections to the maintainability is required to be decided first by this Court before getting into the merits of the review application.
15. Learned Senior Counsel for the petitioner in the review applications (the Department) sought to contend that though at the first blush, the time period for which condonation of delay is sought may look enormous, the fact is that a status quo order was operating when the SLP was pending. The delay in filing the SLP was condoned and it is only on the dismissal of the SLP on 24.11.2014, could really the cause for moving the review application before this Court arise. The review petition was filed on 27.04.2015 before the Hon'ble Supreme Court and thus it was stated that the delay of five months will not be of such a nature as to deny consideration of the review application on merits, keeping in mind the time taken to obtain requisite permission from the departmental authorities. In this behalf, an order issued by the Principal Secretary to the Government of Tamil Nadu dated 23.01.2015 has been produced before us which records that after obtaining the opinion of the Additional Advocate General, a decision was taken to first file the review application in respect of the order dated 24.11.2014.
16. It appears that what inter alia weighed with the department in preferring the application for review was the huge loss to the Exchequer of Rs.131,27,18,340/- arising from the substantial cost increase in sandalwood, which was stated to be a scarce commodity. We may also note that in the course of hearing, one of the aspects which was repeatedly urged on behalf of the department was that by the passage of time, only 15% amount having been paid, the original petitioners sought to obtain sandalwood of the market value to the extent of Rs.131,27,18,340/- which is also keeping in mind the scarcity of the availability of sandalwood and the orders issued, of course after the auction, dealing with the restriction of export of sandalwood. In that context, it was the contention of the department that the Division Bench had granted relief enforcing specific performance of the contract, something which had not even been prayed for, and the ground reality had undergone a vast change in terms of non availability of matured trees of sandalwood, the world-wide ban on exports and the market price and thus , the review was also sought in large public interest. The plea was that a liberal interpretation while construing sufficient cause for the delay was to be adopted, especially where the Government is concerned and also where a public interest issue was sought to be raised. To substantiate this plea, reliance was placed on the following Judgments with the ratio as set out:
''a) DSR Steel vs. State of Rajasthan (2012) 6 SCC 782
b) State of Tamil Nadu vs. Anbai Kingston Philips 2015(5) SCALE 41) (Delay of 3412 days, though inordinate, was condoned even when two officials did not act diligently)
c) Revenue Divisional Officer vs. MSA Ibrahim 2011 (3) CTC 337 (For the mistake of erring officials, public exchequer cannot be made to suffer)
d)Antiyur Town Panchayat vs. G.Arumugam (2015) 3 SCC 569 (The Court must always take a justice-oriented approach (even) if the court is convinced of an attempt on part of Government officials to defeat justice by causing delay, the Court, in view of the larger public interest, should take a lenient view, condone the delay, and have the matter decided on merits) The period from 25.10.2007 to 24.11.2014 deserves to be excluded as the State was diligently pursuing its remedy in the Hon'ble Supreme Court, which having condoned the delay, entertained the same and granted an order of status quo.''
17. In the aforesaid context, it was thus submitted that the period from 25.10.2007 to 24.11.2014 in any case was liable to be excluded as the department was diligently pursuing the remedy before the Hon'ble Supreme Court and the delay in reaching the Hon'ble Supreme Court had been condoned and the department was enjoying the benefits of the order of status quo. The Judgment in State of Kerela and Others vs. M.G.Presanna reported in (2011) 15 SCC 203) was relied for the proposition that the time spent in pursuing other remedies should be excluded. In the aforesaid context, it was thus submitted that a similar time period from 27.04.2015 to 23.10.2015, when the department was pursuing the remedy of review before the Hon'ble Supreme Court, also deserves to be excluded.
18. The endeavour in moving the review by the department was pleaded to be bonafide and in public interest, in order to enforce the conditions of auction sale which required the purchaser to satisfy the Department of Sales Tax. An action to forfeit can be taken in pursuance to the show cause notice on persistent failure of the original petitioners to pay the entire sale price.
19. The department also contended by relying upon Manohar vs. Jaipalsingh and Others reported in (2008(1) SCC 520), that while considering the aspect of limitation, in the context of filing a review petition and its subsequent dismissal without any stay, the Doctrine of Merger would have no application whatsoever.
20. On the other hand, learned counsel for the original petitioners seriously dispute the aforesaid position inter alia alleging that the endeavour of the department could hardly be said to be bona fide and as noticed by this Court, was only a counter blast to escape from the rigours of the contempt proceedings. The principle to be applied, it was submitted, was that each day's delay must be explained, provided such delay is bona fide and not fraudulent, without suppression of material fact, certainly not as an endeavour to prolong the litigation for evasive and dubious reasons. It was submitted that there could not be unnecessary latitude given to Government departments as per the following observations in the case of Postmaster General vs. Living Media Ltd., (2012) 3 SCC 563:
28.Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
21. The Judgments referred to by the learned Senior Counsel for the Department were sought to be distinguished by stating that in State of Kerela and others vs. M.G.Presanna cited supra, the finding was that the delay has been satisfactorily explained and was bona fide. The submission was that in the facts of the present case, the principles of law stood settled in view of the other proceedings/orders which were the basis for the order under review to be passed. The Judgement cited, it was stated, were on the own facts of the case.
22. Learned counsel for the original petitioners sought to plead that fraud would vitiate all reasons (Meghmala and Others vs. G.Narasimha Reddy and Others reported in (2010(8) SCC 683), while contending that misrepresentation and fraud were manifest in the case of the department. The department was alleged to have not acted bona fide, acted surreptitiously and not brought to the attention of the court that the question of law had already been decided by the Hon'ble Supreme Court. This was in the context when a finality had already been put to the legal proposition, in view of the Hon'ble Supreme Court having refused to interfere in the first round of proceedings, albeit of forfeiture qua another auction. Against the order in W.A.Nos.94 to 96 of 2000 in favour of M/s.Lavanya Enterprises (stated to be relied upon in the present proceedings), a Special Leave Petition preferred was registered as Civil Appeal Nos.826 to 829 of 2001 and vide detailed Judgment dated 02.05.2006 was dismissed. One of the review applications at present is also a case of M/s.Lavanya Enterprises, while three of them are of M/s.Gupta Exports. Despite the order of the learned Single Judge of the High Court directing release of goods on accepting 50% sales tax with bank guarantee to be furnished for the remaining amount, the goods were not released. The goods in that case had been exported in respect of purchase of 33 tons of sandalwood and the bank guarantee was released by the DFO on 22.02.2002 and the factum of export was also established before the Commercial Sales Tax Officer, who had passed an order dated 10.03.2003 accepting the fact. The liability to pay sales tax thus stood absolved and the only aspect pressed was payment of demurrage charges for non-removal of the goods, but that plea was rejected on account of the same having not found favour with the High Court , there being no delay on the part of the private party.
23. The pleadings in the counter affidavit have been relied upon to show the discrepancies and to plead that there have been incorrect references.
24. We have given considerable thought to the matter in issue as elaborate arguments were addressed in respect of the plea of bar of limitation itself. In our view, the principles laid down in different judicial pronouncements have to be examined, though the facts in different cases may not be identical, thus, those facts cannot be ipso facto imported into the factual scenario of the present case.
25. The lis inter se the parties crystallised in favour of the original petitioners in terms of the order of the learned Single Judge dated 06.08.2004 the terms and conditions imposed by the learned Single Judge permitting the original petitioners to take delivery of the goods on furnishing of bank guarantee. Though bank guarantee is stated to have been submitted, the goods were not released in view of the pendency of the appeal. The appeal finally came to be decided on 25.10.2007. It is this order of which the review is sought.
26. It may be noticed that the department exercised its legitimate legal right to move the Hon'ble Supreme Court by filing a Special Leave Petition, albeit with some delay. The department was granted the order of status quo on 07.03.2008. Though, no doubt, the filing of a review application itself was not precluded, the department did not obtain any leave from the Hon'ble Supreme Court nor made any endeavour to file the review application. This was in the context of the protective umbrella at that stage for actually more than 6= years and as informed, there were stated to be other matters pending, which was the reason for the matter not being taken up.
27. We may note that in so far as the reliance on the orders passed in Civil Appeal Nos.826 to 829 of 2001 (as referred to aforesaid) is concerned, the orders were passed by the Hon'ble Supreme Court on 02.05.2006 prior to the appeal, decided on 25.10.2007. That being the position, the department cannot be really faulted for not taking any steps having the protective umbrella of the status quo order dated 07.03.2008 of the Hon'ble Supreme Court. However, when the matter was ultimately listed on 24.11.2014, no leave was granted and the SLP was rejected after the condonation of delay by merely stating ''Dismissed''. The natural corollary thus is that Hon'ble Supreme Court did not think that the matter required detailed examination even qua the Judgment of the Division Bench and thus practically dismissed it in limine. The department, on the basis of material placed before us, did take steps thereafter for purposes of determining whether any further steps were to be taken and in January, 2015, had come to the conclusion that a review application had to be filed before the Hon'ble Supreme Court. No doubt, thereafter, the review application was filed only on 27.04.2015 a hiatus period of little over three months and in between, contempt proceedings were also initiated by the original petitioners. The period taken cannot be really said to be such an enlarged period of time where the principles in the case of Postmaster General vs. Living Media Ltd. cited supra would come into operation. The various judicial pronouncements referred to on behalf of the department thus show that there has to be a little more lenient view taken on account of the nature of working of the department, and the enormity of litigation implies that such a lenient view becomes a routine affair. This is what has been emphasised in Postmaster General's Case.
28. The recent pronouncement of the Honourable Supreme Court in State of Tamil Nadu vs. Ambai Kingston Philips and Others reported in (2015(5) SCALE 41), has also been referred to, which is of a three Judges Bench and it is contended that the inordinate delay stretching over nearly 10 years, taking into consideration that the State functions in an impersonal fashion and that the ordinary standards applicable to a litigant pursuing his own case do not at times apply stricto sensu to the action or inaction of the State. In that sense, one may say, these observations are reiteration of the general principles adopted by the Hon'ble Supreme Court, though the Judgment in Postmaster General case sought to emphasise the importance of not condoning the delay even for departmental matters as a matter of routine and that such condonation of delay should be an exception and not to be used as an anticipated benefit for Government departments with law sheltering everyone under the same light.
29. The review application was dismissed only on 23.07.2015 and the review before us was filed on 31.07.2015. At this stage, we are not commenting on the aspect of the two review applications being almost identical as that would be an issue on the merits of the review application, while we are only concerned with the aspect of bar of limitation as also the maintainability of the review applications, on which ground summary rejection is sought by the original petitioners.
30. We do find that there is reasonable and sufficient cause shown insofar as the delay in filing of the review application is concerned and it is not a case which ought to be rejected summarily only on the aspect of delay.
31. We, however, do believe that the decision having been taken on 23.01.2015, it should not have taken another three months time to take steps thereafter to file the review application before the Hon'ble Supreme Court and to that extent, the conduct of the department is somewhat blameworthy, but that aspect can be compensated with costs.
32. We are thus of the view that the applications for condonation of delay are liable to be allowed subject to payment of Rs.5000/- as costs per application, totalling to Rs.20,000/-. The applications are accordingly allowed and the review applications are directed to be numbered. The costs be payable to the respondents, within three weeks of the receipt of the order.
Question of Maintainability of Review Applications
33. Now coming to the applications filed for review of the order dated 25.10.2007, in view of the orders passed by the Hon'ble Supreme Court on 21.08.2015 in Transfer Petitions (Civil) Nos.1222 to 1225 of 2015, the question of preliminary objection to the maintainability is required to be examined at the first instance. Thus, the consideration of the review applications on merit was deferred and arguments have been heard only on the applications for condonation of delay which have been ordered as aforesaid as well on the issue of maintainability.
34. The question of maintainability really arises from the following two broad aspects :
(i) The effect of dismissal of the Special Leave Petition on 24.11.2014 against the Division Bench order sought to be reviewed dated 25.10.2007.
(ii)The consequence of having filed a review application before the Honourable Supreme Court in respect of its order dated 24.11.2014 and its dismissal on 23.07.2015.
35. Mr.K.T.S.Tulsi, learned Senior Counsel for the petitioners sought to base his submissions on the principles of requirement of finality in the adjudicatory process and the same being inherent to the Doctrine of Merger. In the factual context of the present case, it was contended that once the Special Leave Petition was dismissed on 24.11.2014, a quietus ought to be put to the matter in issue. In this context, it was submitted that even if it is a dismissal in limine, the Doctrine of Merger would apply. In the facts of the present case, an order of status quo was passed while entertaining the Special Leave Petition on 07.03.2008 with both parties having been heard and the SLP came to be dismissed on 24.11.2014, albeit with only the word ''dismissal''. A distinction was thus sought to be culled out in respect of cases which on the first instance are dismissed without entertaining the SLP, as compared to cases in which notices are issued and even interim orders are granted, but ultimately met the fate of dismissal.
36. The additional factor in the present case, it was submitted, was that the department chose to even file a review application before the Hon'ble Supreme Court with identical pleadings as before this Court, but that was dismissed on 23.07.2015. The order dated 23.07.2015 could not be said to be just a dismissal in limine as the court had clearly observed that it had gone through the pleadings and records and it is not necessary to sketch out a detailed order. Thus, any endeavour now by this Court to exercise review jurisdiction would be a review of the order of the Hon'ble Supreme Court, which judicial discipline of hierarchy of courts would not permit.
37. A number of judicial precedents were referred to in support of this contention as follows:
a) Indian Council for Enviro-Legal vs. Union of India (2011) 8 SCC 161, wherein in paragraphs-103 and 104 are read as under:
103. The maxim interest Republicae ut sit finis litium says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights.
104. It should be presumed that every proceeding has gone through infiltration several times before the decision of the Apex Court. In the instant case, even after final judgment of this court, the review petition was also dismissed. Thereafter, even the curative petition has also been dismissed in this case. The controversy between the parties must come to an end at some stage and the judgment of this court must be permitted to acquire finality. It would hardly be proper to permit the parties to file application after application endlessly. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice.
b) In Kunhyammed vs. State of Kerala (2000) 6 SCC 359, reference has been made to paragraph-38 of the Judgment as under:
''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 Courts 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''
38. The aforesaid Judgments had been placed before this Court against the bedrock of the submission on behalf of the department, but without appreciating it appropriately as per the original petitioner. The said Judgments also emphasised the principle of finality. The observation of the Hon'ble Supreme Court, if truly appreciated, would imply that the Doctrine of Merger would not apply if the SLP is dismissed in limine without a speaking order and also not apply if leave is granted and the court is thus seized of the matter. It is submitted that this principle would also not apply, if review is filed before the SLP is filed, not after leave is granted.
39. In a nutshell, the submission was that in the given facts of the case, both the SLP and the review application were dismissed.
c) In Abbai Maligai Partnership Firm v. K.Santhakumaran, (1998) 7 SCC 386 in paragraph-4, it has been held as follows:
4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the self-same order had been dismissed by this court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned single Judge at that stage is subversive of judicial discipline. The High Court was aware that SLPs against the orders dated 7.1.87 had already been dismissed by this court. This High Court, therefore, had no power or jurisdiction to review the self same order, which was the subject matter of challenge in the SLPs in this court after the challenge had failed. By passing the impugned order on 7.4.1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case was an affront to the order of this Court, We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this court, abused the process of the court and indulged in vexatious litigation. We strongly depricate the manner in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this court. The appeals deserve to succeed on that short ground. The appeals are consequently, allowed and the impugned order dated 07.04.1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs.10,000/- as costs.''
40. We may note the submission of Dr. Rajeev Dhawan, learned Senior Counsel, that this judgment and of Kunhyammed vs. State of Kerala case cited supra are judgments of three judges bench and can be read consistently with each other. We may however add that this Judgment is really an order as it is apparent from its perusal.
41. K. Rajmouli vs. A.V.K.N. Swamy reported in (2001) 5 SCC 37 wherein in paragraph-4 reads as under:
''4.Following the decision in the case of Kunhayammed & Ors, (supra) 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 as abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm (supra) that if High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as affront to the order of the Supreme Court. But this is not the case here. In the present case, 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, over- rule the preliminary objection of the counsel for the respondent and hold that this Appeal arising out of special leave petition is maintainable.
42. In Meghamala and others vs. G.Narasimha Reddy and Others (2010) 8 SCC 383, in paragraphs-25 and 26, it has been observed as follows:
25. Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petition before filing the Special Leave Petition before this Court and it remains pending till the Special Leave Petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the Special Leave Petition, the process of filing review application amounts to abuse of process of the court.
26. In view of the above, we are of the considered opinion that filing of such a review application by the respondents at a belated stage amounts to abuse of process of the Court and such an application is not maintainable. Thus, the High Court ought not to have entertained the writ petition against the order of dismissal of the review application by the Special Court and the order of the High Court to that extent is liable to be set aside.
43. In J. Alex Ponseelan vs. Director General of Police, Tamil Nadu reported in 2014-2 CTC 337 rendered by a bench of five Judges, the order on reference really arose out of the question whether a learned Single Judge could have made a reference to a larger bench when the Judgment of the Division Bench already had considered the principles of finality, which is achieved by the Doctrine of Merger. In the course of examination of various principles, the Judgement in Gangadhar Palo vs. Revenue Divisional Officer and another reported in 2011 (4) SCC 602, was relied on account of the observations made in that Judgment in paragraph-14 which reads as under:
''14. The Apex Court held that once Special Leave Petition is dismissed, the doctrine of merger applies and the judgment of the High Court merges with the order of the Supreme Court and the emphasis is that even if the dismissal of the Special Leave Petition is by giving some reason, even if it be just one sentence, the doctrine of merger will apply. Therefore, even by the view taken by the Apex Court in Gangadhara Palo vs. Revenue Divisional Officer case, the Special Leave Petitions filed against the Full Bench decision of this Court in Manikandan's case having been dismissed holding that no ground is made out for interference with the impugned judgment, there can be no review of the issue decided by way of reference.
44. In the Judgment in Young vs. British Aeroplane Company reported in (1948) KB 731, it has been held that in India, we do not follow the principle that the court of appeal can distinguish a decision of the House of Lords which is per incuriam. The Judgment of review sought reliance upon the earlier Judgment of the Division Bench in W.A.No.94 to 96 of 2000 and that Judgment in turn had been affirmed by an order of the Hon'ble Supreme Court in Civil Appeal Nos.826 to 829 of 2001 dated 02.05.2006 and one of the parties in the present application was also a party in that matter.
45. Mr. AR.L. Sundresan, learned Senior Counsel appearing for another original petitioner drew our attention to the views of the Division Bench of this Court in various matters :
a) S.A.R.Somasundaram vs. Minor Cibiraj reported in (2010 3 MWN Civil 241)
b) G.Irudayasamy vs. The Correspondent and Head Master, St. Joseph's College Hr.Sec.School repored in ( 2011(2) MWN 391)
c) The Administrator, Kancheepuram Kamakshiamman Co-operative Spinning Mills Ltd., reported in (2013 (4) CTC 788)
d) A.Muniappan and others vs. The Tahsildar, Tambaram Taluk (2014 (5) CTC 241 FB).
46. On the other hand, learned Senior Counsel appearing for the department contended that the review petition is maintainable as the order of the Hon'ble Supreme Court dated 24.11.2014 was a dismissal in limine with one word ''dismissed.'' 'No reasons were specified. The fact that notice was issued and status quo order was granted initially and that the matter was kept pending for a number of years would not, in his submission, make a difference to the fundamental principles that the order rejecting the SLP was a non-speaking order and thus, neither the Doctrine of Merger nor the Principle of res judicata would be applicable.
47. Insofar as the dismissal of the review application by the Hon'ble Supreme Court is concerned, the same was stated to be in the context of the order passed to contend that the rejection of the review application would only imply that the Hon'ble Supreme Court did not find any error apparent in the in limine dismissal of the SLP and that could not shut out the option of the department to file a review application before this Court, albeit on identical terms.
48. Learned counsel for the department also referred to a number of judicial pronouncements for the aforesaid proposition a) CIT vs. Amritlal Bhogilal & Co., reported in AIR 1958 SC 868
b) Workmen vs. Board of Trustees of Cochin Port Trust non-speaking order of dismissal where no reason are given, does not constitute res judicata ...... does not bar a writ)
c) Indian Oil Corporation vs. State of Bihar reported in (1986) 4 SCC 146) (dismissal of SLP in limine by a non-speaking order High Court not justified in closing its doors and refusing relief under Article 226)
d) Kunhayammed vs. State of Kerla (3 Judge Bench) reported in (2000) 6 SCC 359 (Pr.18: SLP dismissed in limine by non-speaking order unjust to deprive statutory right of review of the High Court) (Pr.27: Order dismissing SLP without reasons, neither attracts doctrine of merger nor a declaration of law under Article 141) (Pr:38:review can be filed even after the SLP is dismissed)
e)Palani Roman Catholic Mission vs. S.Bagirathi Ammal (2009)16 SCC 657) (Pr:5: review can be preferred in High Court even after SLP is dismissed)
f) Bhakra Beas management Board vs. Krishnan Kumar Vij reported in (2010) 8 SCC 701) (Pr.19: dismissal of SLP order of High Court can still be challenged by way of review)
g) Fuljit Kaur vs. State of Punjab reported in (2010) 11 SCC 701 (Pr.7: dismissal of SLP in lilmine does not mean that reasoning of the High Court is affirmed, nor such order merges with the order of the Supreme Court no bar for further re-consideration of the case)
h)Bakshi Devi Raj (2l) and Another v Sudheer Kumar reported in (2011) 8 SCC 679.
49. If we examine the plethora of Judgments cited before us, we have little doubt that there has been a divergence of opinion on these crucial issues.
50. We do appreciate the endeavour made on behalf of the original petitioners to reconcile the judicial views expressed in In Abbai Maligai Partnership Firm's case cited supra and the subsequent Judgment in Kunhyammed vs. State of Kerala case supra seeking to plead that they can be read consistently. The different judgments referred to, apart from that, had followed one line or the other. The existence of conflicting judicial views is in fact quite apparent and recognised by the Hon'ble Supreme Court itself. For this purpose, we would refer to the order of reference in Khoday Distilleries Limited and others vs. Mahadeswara S.S.K.Limited reported in (2012) 12 SCC 291. The bench itself has opined about the conflicting views emanating from these two Judgments, as also the conflict between K.Rajmouli's case supra and Gangadhar palo's case cited supra. In the said context, paragraphs 25 and 26 are extracted from the Judgments in Meghamala and others vs. G.Narasimha Reddy's case supra after referring to Abbai Maligai Parnership Firm vs. K.Santhakumaran's case supra and Kunhyammed vs. State of Kerala case supra :
25. Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petition before filing the Special Leave Petition before this Court and it remains pending till the Special Leave Petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the Special Leave Petition, the process of filing review application amounts to abuse of process of the court.
26. In view of the above, we are of the considered opinion that filing of such a review application by the respondents at a belated stage amounts to abuse of process of the Court and such an application is not maintainable. Thus, the High Court ought not to have entertained the writ petition against the order of dismissal of the review application by the Special Court and the order of the High Court to that extent is liable to be set aside.
51. On one side are cases opining that in case a review application is filed subsequent to the dismissal of SLP, the process of filing review application would amount to abuse of process of court, while on the other hand is the opinion that if no leave has been granted, there is no appeal in the eyes of law in the Superior Court and thus, review can be preferred before the High Court under Order 47 Rule 1 of the CPC. A mere dismissal of SLP at a preliminary stage would not constitute a binding precedent, and accordingly, any order passed by the High Court placing reliance on an earlier order can still be challenged subsequently.
52. In Gangadhar Palo vs. Revenue Divisional Officer case supra, a dissent was expressed qua the view expressed in K.Rajmouli case supra stating that it will make no difference whether the review petition was filed in the High Court before dismissal of the SLP or after dismissal of the SLP. The Hon'ble Supreme Court thus observed in paragraph-14 as under:
''14.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.''
53. In a recent Judgment dated 08.09.2015 in Review Application No.195 of 2015 (Tamil Nadu Arasu Kooturuvuthurai Paniyalargal Sangam vs. The District Collector, Chennai and 6 others), a Division Bench of this Court was faced with a somewhat similar situation of a review application being filed after dismissal of two Special Leave Petitions arising out of dismissal of two writ appeals, petition to review the order passed in Writ Appeals, as also after dismissal of two review petitions by the Honourable Supreme Court itself. The order passed by the Hon'ble Supreme Court on the review applications read as under :
''1. Delay condoned.
2. The application for oral hearing is rejected.
3.These petitions have been filed for review of order dated 15.07.2013 passed in the special leave petitions.
4.We have gone through the review petitions and the record of the Special leave petitions and are convinced that the order of which review has been sought does not suffer from any error apparent warranting its reconsideration.
5. Hence, the review petitions are dismissed.''
54. Thus, if we may say so, the review order in that case passed by the Hon'ble Supreme Court is almost identical to the order passed qua the present proceedings. Once again, on behalf of the original petitioners therein, a similar plea was raised that there had been application of mind over merits of the case at least while dismissing the review applications, and thus, once again a review petition could not be maintained before this Court.
55. The aforesaid plea was, however, negatived by the Court relying primarily on Kunhayammed's case (supra). It was observed that the doctrine of merger is neither founded upon the Constitution nor statutorily recognised. It is a common law doctrine founded on the principles of propriety in the hierarchy of justice delivery system. The underlying principles behind the doctrine of merger are that there cannot be more than one decree. The principles crystallised in Kunhayammed's case (supra) and other cases of similar view are set out hereunder :
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before a 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. First stage is upto 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 doctrine. 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 with the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in any subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and the 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 the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C. The Division Bench opined that the view taken in Kunhayammed's case supra had not been doubted or diluted or whittled down as it has been observed that the doctrine of merger and the right of review are concepts which are closely inter-linked. No merger of decree takes place where a review application is simply dismissed (DSR Steel Private Limited vs. State of Rajasthan (2012 (6) SCC 782). It was opined by the Division Bench that the answer to the question as to whether the order of the Division Bench of the Court merged with the order of dismissal of SLP had to be answered in the negative, in view of the judgment of the three judges Bench of the Hon'ble Supreme Court in Kunhayammed case supra and the question really was not whether the order of dismissal of the SLPs merged with the order of dismissal of the review petitions before the Honourable Supreme Court.
56. We are thus faced with the situation, whether to follow one line of thought or the other and both emanating from the Hon'ble Supreme Court. The matter is not really of divergence of view qua two Judgements, but a plethora Judgments which opined one way or other which has also resulted in similar situation before this Court. We are thus of the view that it is not advisable to add to the Judgments of the High Court by seeking to pick and choose one view point, but consider it appropriate to await the result of the reference made in Khoday Distilleries Limited case supra. We are conscious of the fact that this may delay the final adjudication in the present case, but then that is a necessary consequence arising from not only divergence of opinion, but even the opinion of the Hon'ble Supreme Court in Khoday Distilleries Limited case supra making a reference and requiring the crucial points to be answered, which has undoubtedly a ramification in the present case.
57. We thus direct that the final adjudication on the maintainability issue in the present case would have to await the decision of Khoday Distilleries Limited case cited supra and the matter be listed after the opinion is available of the Hon'ble Supreme Court in the reference arising from Khoday Distilleries' case.
(S.K.K., CJ.) (T.S.S., J.)
Index:yes
ksr 13.10.2015
The Hon'ble the Chief Justice
and
T.S.Sivagnanam, J.
Common Order in
M.P.Nos.1 of 2015 (4 Nos.) in
Rev.Appl.Nos.
(SR.Nos.63778, 63780,
63782 and 63784 of 2015)
13.10.2015