National Green Tribunal
Goa Foundation Through Its Secretary ... vs State Of Goa Through Its Chief Secretary on 14 July, 2023
Item No.1 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Misc. Application No. 07/2023(WZ)
In
Original Application No. 479/2018
Mahendra P. Gaunekar
.....Applicant
Versus
The Goa Foundation
....Respondent
Date of hearing: 14.07.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr. Shivshankar Swaminathan, Advocate
Respondent(s) : Mr. Om D'Costa, Advocate for R-1
Ms. Supriya Dangare, Advocate for R-5
ORDER
1. This application has been filed with the following prayers:-
" a. The Judgment and order dated 18/08/2020 passed by this Hon'ble Tribunal in Original Application Number 479 of 2018 (earlier O.A. No.18/2013) (THC) (WZ) be modified/ corrected/ reviewed, vis-à-vis the applicant and to the extent it confirms, accepts and includes the area of 1.15 Ha. of applicant property under Sy. No. 136 and 138 of Ella Village Tiswadi taluka Goa, as private forest in Goa in its directions and/or to the extent it accepts and confirms the demarcation and identification of applicant property under Sy no. 136 and 138 of Ella Village Tiswadi taluka Goa as private forest in terms of the demarcation report of the Forest Department Goa and the report of the review committee (Sharma Committee) and for further orders to exclude the applicant's aforesaid land/property from such directions of the tribunal as regards private forests in Goa.
b. For appropriate directions to the Forest Department Government of Goa, Original Respondents No. 2 to exclude and/or delete the applicant's land/property Surveyed under no. 136 and 138 of Ella Village Tiswadi taluka Goa from list of the properties identified and demarcated as private forests in Goa and from the notification as regards private forests published in terms of Judgment and order dated 18/08/2020 passed by this Hon'ble tribunal in Original Page 1 of 18 Application Number 479 of 2018 (earlier O. A.No.18/2013) (THC) (WZ).For a direction, directing Original Respondent No. 2 to furnish to the applicant the exact areas of each Sy. Nos. of Applicant's land/property at Ella Village Tiswadi taluka Goa identified and demarcated as private forests.
c. For a direction, directing Respondents to furnish to the applicant the exact areas of each Sy. Nos. of Applicant's land/property at Ella Village Tiswadi taluka Goa identified and demarcated as private Forests, in terms of the field verification of Survey holdings carried out by the forest department Goa and the Review Committee (Sharma Committee).
d. For a stay on the execution, implementation and / or operation of impugned Judgment and Order dated 18/08/2026 passed by this Hon'ble Tribunal (Western Zone) in Original Application Number 479 OF 2018 (earlier O. A.No.18/2013) (THC) (WZ) at "ANNEXIJRE G" vis-a-vis the applicant and in respect of 1.15Ha of applicant's property under Sy No. 136 arnd 138 of Ella Village, Tiswadi Taluka Goa and all further actions on basis of the consequent notification dated 13¬09-2022 issued by through its Forest Department Government of Goa vis-à-vis the Applicant and in respect of the 1.15Ha of the applicant's property under Sy. 136 and 138 of village Ella, Tiswadi Taluka, Goa.
e. For an ad-interim stay in terms of prayer clause (d); f. For an ex-parte ad-interim stay in terms of prayer clause (e); g. For such other and further reliefs as deemed fit and proper."
2. Our attention is drawn by the learned Counsel for the applicant to the memo of Civil Appeal No. 01 of 2021, which was filed by the State of Goa through its Chief Secretary and Forest Department through the Chief Conservator of Forests, Panaji, Goa, seeking the final order dated 18.08.2020 passed by the Tribunal in Original Application No. 479/2018 [Earlier Original Application No. 18/2013(THC)(WZ)] be set aside on the grounds that the Tribunal had committed error in accepting the Review Committee Report dated 20.06.2019, which was rejected by the appellant (State of Goa) in June, 2019 itself; proper methodology for field verification was not followed; parties were not notified; principles of natural justice are violated; and the report submitted by the JS (Revenue) Committee dated 13.03.2020 should be considered as final report on the review of private forest areas identified by earlier Sawant and Karapurkar Page 2 of 18 Committee and accordingly, Original Application No. 479/2018 be disposed of, bringing the two decade long pending issue of finalization of private forest areas identified by earlier Sawant and Karapurkar Committees to a finality.
3. After consideration of the matter, the Hon'ble Apex Court dismissed the said Civil Appeal vide Judgment/Order dated 01.02.2021, a copy of which is annexed at page no. 373 of the paper book.
4. The Judgment/Order, which was passed by the Tribunal dated 18.08.2020, which was appealed against contains following directions:-
"(i) 41.20 sq. km. demarcated by the Forest Department and 4.91 sq. km. identified by Sharma Committee totaling 46.11 sq km. is confirmed and accepted as private forest; and
(ii) The Chief Secretary of State Government of Goa is directed to notify the same and make suitable entries in the revenue records in accordance with rules immediately as soon as possible".
5. Pursuant to the said Judgment/Order of this Tribunal having been upheld by the Hon'ble Apex Court, the Government of Goa has notified private forest as directed, vide Notification dated 22.09.2022, which is annexed as Annexure- 'J' at page nos. 204-211 of the paper book, where-
in, in para no. 2, it is also recorded that appeals have been preferred against the order dated 18.08.2020 of the Tribunal before the Hon'ble Supreme Court of India, details of which are recorded therein. It is also recorded that the Hon'ble Supreme Court vide its orders dated 01.02.2021, 08.10.2021 and 11.02.2022 respectively has directed to maintain the status quo, hence notification of the private forests in respect of the area comprising the said survey numbers, which are subject matters of the said Civil Appeals, shall be subject to outcome of the said Civil Appeals.
Page 3 of 186. Our attention is also drawn by the learned Counsel for the applicant to para nos. 15 to 18 of the Judgment of the Tribunal dated 18.08.2020 as well as para no. 7 and it is argued by him that the criteria, which was laid down by the Sawant Committee, was upheld by the Hon'ble High Court of Bombay in the Judgment in Writ Petition No. 162/1987 (Shivanand Salgaonkar vs. Tree Officer & Ors.), in which following is contained:-
"i) 75 % of the tree Composition of such lands should be of Forestry species;
ii) The area should be either contiguous to the Government Forest lands or if in insolation, the minimum area identified should be 5 ha; and
iii) Canopy density should not be less than 0.4."
7. The main emphasis has been laid by the learned Counsel for the applicant that the criteria no. (ii) of the above-mentioned Writ Petition, said that the area should be either contiguous to the Government forest lands or if in isolation, the minimum area identified should be 5 ha. The learned Counsel the applicant submits that in the case in hand in which his Survey Nos. 136 (part) and 138 (part) of Ella Village, Tiswadi Taluka, Goa, which has been identified to be the private forest, was less than 5 ha., therefore, it did not qualify to be identified as the private forest and therefore, the same has been wrongly categorized as private forest by the impugned Judgment/Order. In this regard, he has also drawn our attention to the information obtained by him under RTI from the Public Information Officer, Dy. Conservator of Forests, North Goa, Division, Ponda, Goa dated 03.11.2020, which is annexed at Annexure - 'E' at page nos. 74-75 of the paper book, where-in, in column no. 6, it is stated that since the area of Survey Nos. 136/1 and 138/1 of Ella Village, Tiswadi is less than 5 Ha. and there is no adjacent government forest as well as Page 4 of 18 identified Private forest adjacent to these survey numbers, it does not fulfill the criteria of Private forest.
8. Thereafter, the learned Counsel for the applicant has drawn our attention to the Report of the Review Committee on Review of Private Forest Areas identified by Sawant and Karapurkar Committee, where-in at page no. 95 of the paper book, our attention is drawn to entry no. 1 of the said report regarding Ella Village, in which it is mentioned that the area 11.38 Ha. of Survey No. 136 and the area 3.52 Ha. of Survey No. 138 are belonging to the applicant, out of which only 1.15 Ha. is found to be forest area. These Survey Numbers are not contiguous to forest land.
9. Based on these documentary evidences, it is argued by the learned Counsel for the applicant that the Judgment dated 18.08.2020, passed by the Tribunal in Original Application No. 479 of 2018, needs to be modified/corrected/ reviewed to the extent that the area of 1.15 Ha. of the Survey Nos. 136 and 138 of Ella Village should be excluded from the forest land from being identified as private land.
10. The admission of this application is being vehemently opposed by the learned Counsel for the respondent No. 1/Goa Foundation by filing counter affidavit dated 11.07.2023, where-in it is submitted that by the present Misc. application, the Judgment/Order dated 18.08.2020 of the Tribunal is being sought to be reviewed, which is time barred because the applicant had come to know about it, as the same was uploaded on the website of this Tribunal on 18.08.2020. There is no error on the face of record warranting review. The learned Counsel has relied upon several case laws, which is cited in para nos. 8 & 9 of the counter affidavit, where-in it is recorded that "an order or decision or Judgment cannot be corrected merely because it is erroneous in law or on the ground that a Page 5 of 18 different view could have been taken by the court/tribunal on a point of fact or law".
11. Thereafter, the learned Counsel for the respondent No. 1 has drawn our attention to an order passed by the Tribunal, which is reported in Goa Foundation vs State of Goa & Ors. [(2021) SCC OnLine NGT 1052], where-in following is held:-
"
1. These miscellaneous applications have been filed by Trinitas Estate India LLP, Pune - 16 in a decided matter for modification of order of this Tribunal dated 18.08.2020. The matter was originally filed before the Bombay High Court and was transferred to the Tribunal. Prayer in the main case was to ensure demarcation of forest area in the State of Goa in pursuance of orders of the Hon'ble Supreme Court in T.N. Godavarman Thirumulkpad v. Union of India, (1997) 2 SCC 267.
2. The State of Goa constituted Expert Committees for the purpose which identified 46.11 sq. Kms area as private forest to be regulated as a 'deemed forest' in terms of the directions of the Hon'ble Supreme Court. The identification was done by the Committee after following due process. The Tribunal disposed of the matter accordingly. The report of the Expert Committee was not under challenge. The Tribunal has not, thus, undertaken the exercise of adjudicating upon any individual parcel of area being forest or not. Thus, exercise of inclusion or exclusion cannot be undertaken by this Tribunal. If there is any deficiency in the report of the expert Committee, challenge thereto can be in any appropriate proceedings and not by way of modification of order of the Tribunal.
3. In view of above, learned Counsel for the applicant seeks permission to withdraw the applications to take any other remedy at any other appropriate forum, in accordance with law. The applications are accordingly disposed of. We do not express any opinion about availability of any other remedy."
12. Thereafter, the learned Counsel for the applicant has relied upon the Judgment passed by the Hon'ble Supreme Court in the matter of Khoday Distilleries Ltd. (Now known as Khoday India Ltd.) & Ors. vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. [(2019) 4 SCC 376], where-in reliance is placed on following para nos. 16 to 29:-
16. Abbai Maligai Partnership Firm was a case under the Rent Control Act and the appeal came from the High Court of Madras. In an eviction Page 6 of 18 petition filed by respondent Nos. 1 and 2 in the said case, the Rent Controller had ordered eviction of the appellants therein on the ground of wilful default in payment of rent as well as on the ground of bona fide requirement of the premises by respondent Nos. 1 and 2 for their own business. In appeal, the order of the Rent Controller was set aside as it was found that there was a bona fide dispute with regard to the title of the property which could be decided by the Civil Court. The respondents preferred review petitions there against, which were dismissed. They approached this Court by way of special leave petitions which were also dismissed. After the dismissal of these special leave petitions, the respondents therein filed review petition in the High Court with a delay of 221 days. The High Court condoned the delay and also entertained the review petition on merits and not only allowed those review petitions but even reversed the orders made earlier in the civil revision petitions by allowing those petitions and ordering eviction of the appellants/ tenants. In appeal against this order passed in review and revision petitions, this Court held that the jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. Entire discussion in this behalf is contained in one paragraph, which we reproduce below:
"4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame 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 the SLPs against the orders dated 7-1-1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame 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 deprecate the matter 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 7-4-1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs 10,000 as costs."
17. In Kunhayammed's case, on the other hand, the Forest Tribunal had held that land in dispute did not vest in the Government under the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Against this order the appeal of the State of Kerala was Page 7 of 18 dismissed by the High Court on December 17, 1982. Thereagainst special leave petition was filed by the State, which was dismissed in limine stating - 'Special Leave Petition is dismissed on merits'. Thereafter, the Estate filed an application in the High Court for review of its earlier order whereby appeal of the State had been dismissed upholding the order of the Forest Tribunal. It may be noted that during the pendency of this review petition, Section 8(c) was inserted in the Kerala Private Forests (Vesting and Assignment) Act, 1971 by amendment made in the year 1986 enabling the Government to file appeal or review in certain cases. This provision was introduced with retrospective effect, i.e. from November 19, 1983. Review petition was filed in January 1984. On these facts, the High Court passed orders dated December 14, 1995 overruling the objection to the maintainability of the review petition holding that review was maintainable and posted the case for hearing on merits. This order was challenged which became the subject matter of the appeal in the aforesaid cases. The contention of the petitioner before this Court was two fold:
(a) the High Court's order dated December 17, 1982 was merged with order dated July 18, 1983 whereby the special leave petition was dismissed and, therefore, no review petition was maintainable; and
(b) order of this Court in the special leave petition amounted to affirmation of the High Court's order and, therefore, could not be reviewed by the High Court.
This Court rejected the contention of the petitioner holding that review was maintainable as the doctrine of merger was not applicable in the aforesaid circumstances. However, what is important is that the Court deliberated on the doctrine of merger and handed out well reasoned and lucid judgment explaining the situations where review would be maintainable as well as the situations where it would not be maintainable on the aforesaid doctrine.
18. Explaining the doctrine of merger, the Court held that logic behind this doctrine is that there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree or order passed by an inferior Court, Tribunal or Authority is subjected to a remedy available under law before a superior forum, then, though the decree or order under challenge continues to be effective and binding, nevertheless, this finality is to put in jeopardy. Once the superior court disposes of the dispute before it in any manner, i.e. either by affirming the decree or order or by settings aside or by modifying the same, it is the decree of the superior Court, Tribunal or Authority which is the final binding and operative decree and the decree or order of the lower Court, Tribunal or authority gets merged into the order passed by the superior forum. The Court also clarified that this doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or which could have been laid will have to be kept in view. The Court thereafter discussed the provision pertaining to the appellate jurisdiction that is exercised by the Supreme Court conferred upon it by Articles 132 to 136 of the Constitution of India. Insofar as jurisdiction under Article 136 is Page 8 of 18 concerned, it explained that Article 136 opens with a non- obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred by Article 136 is available to be exercised in an appropriate case. It is an untrammelled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon any party; only a discretion is vested in the Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right.
19. Exercise of jurisdiction under Article 136 and the manner in which it is dealt with is clarified as under:
"14. The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps: (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order 16 of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in Form No. 28. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex parte unless there be a caveat. The court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the SLP. On hearing, the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under:
(1) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is Page 9 of 18 merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave; (2) If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out;
(3) If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in the appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent.
(4) In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge."
20. The Court thereafter analysed number of cases where orders of different nature were passed and dealt with these judgments by classifying them in the following categories:
(i) Dismissal at the stage of special leave petition - without reasons - no res judicata, no merger.
(ii) Dismissal of the special leave petition by speaking or reasoned order - no merger, but rule of discipline and Article 141 attracted.
(iii) Leave granted - dismissal without reasons - merger results.
21. It may be pertinent to mention here that while laying down the second principle mentioned above, the Court took note of the judgment in Abbai Maligai Partnership Firm and discussed it in the following manner:
"26. The underlying logic attaching efficacy to an order of the Supreme Court dismissing SLP after hearing counsel for the parties is discernible from a recent three-Judge Bench decision of this Court in Abbai Maligai Partnership Firm v. K. Santhakumaran [(1998) 7 SCC 386] . In the matter of eviction proceeding initiated before the Rent Controller, the order passed therein was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. Both the sides were heard through the Senior Advocates representing them. The special leave Page 10 of 18 petitions were dismissed. The High Court thereafter entertained review petitions which were highly belated and having condoned the delay reversed the orders made earlier in civil revision petitions. The orders in review were challenged by filing appeals under leave granted on special leave petitions.
This Court observed that what was done by the learned Single Judge was "subversive of judicial discipline". The facts and circumstances of the case persuaded this Court to form an opinion that the tenants were indulging in vexatious litigations, abusing the process of the Court by approaching the High Court and the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the order of this Court. However the learned Judges deciding the case have nowhere in the course of their judgment relied on doctrine of merger for taking the view they have done. A careful reading of this decision brings out the correct statement of law and fortifies us in taking the view as under." 10 Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372.
22. It may also be of interest to note that the Court dealt with the situation where the review is filed earlier in point of time and the special leave petition is filed thereafter, and dealt with the situation in the following manner:
"37. Let us assume that the review is filed first and 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."
23. After elaborate discourse on almost all the aspects, the Court gave its conclusions and also summed up the legal position from paragraphs 39 to 44. We reproduce the same hereunder:
"39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judge Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) rule of discipline flowing from this Court being the highest court of the land.Page 11 of 18
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, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by 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 meritworthiness 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 as guidelines) 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 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 Page 12 of 18 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.
41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.)
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.
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, Page 13 of 18 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. The 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. 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 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 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.
Page 14 of 18(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 High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."
24. Having noted the aforesaid two judgments and particularly the fact that the earlier judgment in the case of Abbai Maligai Partnership Firm is duly taken cognisance of and explained in the latter judgment, we are of the view that there is no conflict insofar as ratio of the two cases is concerned. Moreover, Abbai Maligai Partnership Firm was decided on its peculiar facts, with no discussion on any principle of law, whereas Kunhayammed is an elaborate discourse based on well accepted propositions of law which are applicable for such an issue. We are, therefore, of the view that detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench, as was contended by the counsel for the appellant.
25. While taking this view, we may also point out that even in K. Rajamouli this Court took note of both these judgments and explained the principle of res judicata in the following manner:
"4. Following the decision in 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 dismissed after condoning the delay, it would be treated 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."
26. From a cumulative reading of the various judgments, we sum up the legal position as under:
26.1 The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated.Page 15 of 18
26.2 We reiterate the conclusions relevant for these cases as under:
"(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 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 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 High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."
26.3 Once we hold that law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case.
27. Applying the aforesaid principles, the outcome of these appeals would be as under:
Civil Appeal arising out of Special Leave Petition (Civil) No. 490 of 2012:
28. In the instant case, since special leave petition was dismissed in limine without giving any reasons, the review petition filed by the appellant in the High Court would be maintainable and should have been decided on merits. Order dated November 12, 2008 passed by the High Court is accordingly set aside and matter is remanded back to the High Page 16 of 18 Court for deciding the review petition on merits. Civil Appeal disposed of accordingly.
Civil Appeal arising out of Special Leave Petition (Civil) No. 13792 of 2013:
29. In this case, we find that the special leave petition was dismissed with the following order passed on January 05, 2012:
"We find no ground to interfere with the impugned order. The special leave petition is dismissed."
Here also, special leave petition was dismissed in limine and without any speaking order. After the dismissal of the special leave petition, the respondent in this appeal had approached the High Court with review petition. Said review petition is allowed by passing order dated December 12, 2012 on the ground of suppression of material facts by the appellant herein and commission of fraud on the Court. Such a review petition was maintainable. Therefore, the High Court was empowered to entertain the same on merits. Insofar as appeal of the appellant challenging the order dated December 12, 2012 on merits is concerned, the matter shall be placed before the regular Board to decide the same."
13. Based on this, it is argued by the learned Counsel for the applicant that this Judgment holds that if the petition is dismissed in limine by the Hon'ble Supreme Court, it would mean that the Hon'ble Supreme Court has not gone into the merits of this case and therefore, in the Judgment of dismissal passed by the Hon'ble Apex Court, the order of lower Court would not stand merged.
14. We do not want to get into this aspect of the matter as to whether the Judgment passed by the Hon'ble Apex Court in Civil Appeal No. 01 of 2021 dismissing the same, which was preferred against the order of the Tribunal dated 18.08.2020, was dismissed in limine without application of mind and hence the Judgment of this Tribunal did not stand merged in that. We believe that at the time of consideration, the Hon'ble Apex Court must have gone through the entire Judgment and then only, the impugned Judgment/order would have been passed. In our view, we cannot entertain the present application because that would result into Page 17 of 18 alteration of the Judgment, which was passed by this Tribunal and which has already been upheld by the Hon'ble Supreme Court.
15. After having heard the arguments of learned Counsel for the parties and having perused the documentary evidence on record and the Judgments cited by the respective learned Counsels, we are of the view that by the present Misc. Application, the learned Counsel for the applicant is seeking review/correction of the Judgment passed by the Tribunal dated 18.08.2020 in Original Application No. 479/2018, which is being said to be erroneous on the ground that it has wrongly held that 1.15 Ha. area of the Survey Nos. 136 & 138 of Ella Village, Tiswadi Taluka, Goa are also part of the private forest and hence the same needs to be excluded.
16. We are of the view that since the said Judgment has already been upheld up to the Hon'ble Apex Court and considering the facts mentioned by us above, no interference is required to be made by us, as the same stands approved up to the Hon'ble Apex Court. The learned Counsel for the applicant may move appropriate forum for seeking correction, as desired by him.
17. We dispose of this application accordingly.
18. All pending applications, if any, also stand disposed of.
19. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM July 14, 2023 Misc. Application No. 07/2023(WZ) In Original Application No. 479/2018(WZ) P.Kr Page 18 of 18