Jharkhand High Court
Izhar Hussain vs The State Of Jharkhand Through The ... on 10 August, 2021
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cont. Case (Civil) No. 214 of 2021
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Izhar Hussain, aged about 50 years, son of Late Bara
Babu Ansari, resident of Village-Ukrid, P.O. and P.S.-
Sector 12, District-Bokaro ... ... ... Petitioner
Versus
1. The State of Jharkhand through the Secretary,
Department of Forest, Environment & Climate
Change, Govt. of Jharkhand, having office at
Secretariat Building, Nepal House, P.O. & P.S.-
Doranda, Ranchi-834002
2. The Deputy Commissioner, Bokaro, having office at
District Collectorate, Sector-1, P.O.-Head Post
Office, Bokaro, P.S.-City Police Station, District-
Bokaro, Pin Code-827001
3. The Divisional Forest Officer, Environment and
Climate Change, Block A, Van Bhawan, Purulia
Road, Chas, P.O. & P.S.-Chas, District-Bokaro, Pin
Code-827013
4. The District Sub-Registrar-Registration, having
office at Chas, P.O. & P.S.-Chas, District-Bokaro,
Pin Code-827013
5. State of Jharkhand ......... Opp. Parties
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Vimal Kirti Singh, Advocate
: Ms. Stuti Sinha, Advocate
: Mr. Sidharth Singh, Advocate
: Mr. Rahul Kumar, Advocate
For the State : Mr. Rajiv Ranjan, Advocate General
: Mr. Piyush Chitresh, AC to AG
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ORAL ORDER
11/Dated: 10th August, 2021 Matter has been heard through video conferencing and there is no complaint whatsoever regarding audio and/or visual quality.
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2. The instant contempt case has been filed before the Division Bench for initiating contempt case under Sections 11 and 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India for alleged, willful and deliberate disobedience of the order dated 05.11.2020 passed by the Division Bench of this Court in L.P.A. No.786 of 2018, affirming the order passed by the learned Single Judge dated 14.06.2018 passed in W.P.(C) No.593 of 2017.
3. The matter was heard on 14.06.2021 and the issue of maintainability of the instant contempt case has been raised and therefore, the issue has been framed as to whether in a case where the order passed by the learned Single Judge has been considered by the Division Bench and the view of the learned Single Judge has been affirmed, in such a case when there is non-compliance of the direction passed by the learned Single Judge, whether the petition for initiation of proceeding of contempt would lie before the Division Bench or before the Single Bench who has passed the order which has been affirmed by the Division Bench?
4. Mr. Vimal Kiriti Singh, learned counsel appearing for the petitioner has submitted that the writ petition has been filed before this Court in exercise of power conferred under Article 226 of the Constitution of India being W.P.(C) No.593 of 2017 which was disposed of vide order dated 14.06.2018. 3
He submits that the respondent State of Jharkhand has preferred an appeal against the order passed by the learned Single Judge of this Court in W.P.(C) No.593 of 2017 under Clause-10 of Letters Patent being L.P.A. No.786 of 2018 and this Court has dismissed the aforesaid appeal vide order dated 05.11.2020 on consideration of various issues raised by the learned counsel for the parties and as such, once the order passed by the learned Single Judge has been affirmed by the Division Bench of this Court in exercise of power conferred under Clause10 of Letters Patent, the order passed by the learned Single Judge will merge with the order passed by the Division Bench and thereby, it will be construed that the order passed by the learned Single Judge is not subsisting due to the effect of the principle of merger.
According to him, the principle of merger reflects that once the order passed by the Appellate Court affirming the order, the order passed by the original Court will merge to the order passed by the Court of appeal and thereby, the order passed by the learned Single Judge will be said to not subsisting and in view thereof, in case of any disobedience of the order passed by the learned Single Judge which merges on affirmation of the aforesaid order by the Division Bench, the contempt will lie before the Division Bench of this Court.
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Learned counsel has relied upon the judgments rendered by the Hon'ble Apex Court in Kunhayammed & Ors. Vrs. State of Kerala and Anr., (2000) 6 SCC 359, Dineshan K.K. Vrs. R.K. Singh & Ors., (Contempt Petition (C) No.422 of 2012 in Civil Appeal No.25 of 2008 decided on 11.03.2014 as also the judgment rendered by the Patna High Court in Rajesh Kumar & Ors. Vrs. State of Bihar & Ors., (2014) 4 BBCJ 424.
5. Per Contra, Mr. Rajiv Ranjan, learned Advocate General, appearing for the respondent State of Jharkhand has submitted that since the learned Single Judge has passed the order in exercise of power conferred under Article 226 of the Constitution of India, although has been affirmed by the Division Bench but since the alleged violation of the order passed by the learned Single Judge is involved herein, therefore, the contempt case will lie before the learned Single Judge who has passed the original order in W.P.(C) No.593 of 2017.
In support of his argument, he has relied upon the provision of Rule 392 of the High Court of Jharkhand Rules, 2001, wherein it has been stated that every petition for initiating a contempt proceeding shall be posted before a Bench of the Court for preliminary hearing and for orders as to issues notices, except petitions in respect of civil contempt which relates to orders or directions passed by a Judge of this Court which shall be listed for preliminary 5 hearing and orders as to issue of notice before a Judge of this Court. Upon such preliminary hearing the Court which clarifies the position of contempt case will lie before the Judge who has passed the order and direction and herein since the order/direction has been passed by the learned Single Judge of this Court, however, which has been affirmed by the Division Bench of this Court in an intra- court appeal, therefore, the word "Judge" has been referred in the aforesaid provision suggests that the contempt case will lie before the Single Judge and not before the Division Bench.
He has also relied upon the judgment passed by the Andhra Pradesh High Court in the case of K.K.R. Nair Vrs. Mohan Das & Anr., 1989 SCC ONLINE AP 241.
By referring to the aforesaid judgment, it has been submitted that despite of principle of doctrine of merger, proceeding for contempt has been initiated before the learned Single Judge.
6. We have heard the learned counsel for the parties on the issue and gone across the various judgments, reference of which have been made by them but before considering the proposition laid down therein it requires to refer the admitted facts in this case.
7. The petitioner has filed the writ petition invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India for quashing the order dated 6 09.09.2016 passed in Misc.(4h) Case No.110/2016-17, whereby and whereunder, the long running Jamabandi No.1665, appertaining to Mouja Tetulia, Thana No.38 of District Bokaro, Khata No.59, Plot No.326, 450, Area 103 acres of the land has been declared as illegal and as such, the same has been cancelled and thereafter, the same has been sent to the Commissioner, North Chhotanagpur Division, Hazaribag for its approval as also for quashing of the order dated 15.12.2016 passed by the Joint Secretary, Department of Revenue, Registration and Land Reforms, Government of Jharkhand, whereby and whereunder, the approval has been granted by the Government for cancellation of Jamabandi of the petitioner with a further order that the aforesaid land to be taken into possession of the State and subsequent thereto, the order has been passed by the Deputy Commissioner, Bokaro on 18.01.2017 directing the concerned Circle Officer to cancel the jamabandi and take possession of the land.
The writ Court, on deliberation of the issue, has quashed and set aside the orders impugned vide order dated 14.06.2018 (Order No.08 to the writ petition).
The order passed by the learned Single Judge dated 14.06.2018 in W.P.(C) No.593 of 2017 has been assailed before this Court under its intra-court appellate jurisdiction being L.P.A. No.786 of 2018, preferred by the State of 7 Jharkhand which has been dismissed vide order dated 05.11.2020 by entering into the merit of the issue in detail.
The petitioner has filed a case for initiating proceeding for contempt by invoking the jurisdiction conferred under Sections 11 and 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India, wherein the issue of maintainability has been raised for maintaining the instant contempt case before the Division Bench or it will go to the learned Single Judge.
8. The argument has been advanced on behalf of the learned counsel appearing for the petitioner by taking aid of the principle of merger, according to him, when a decree or order passed by an inferior court, tribunal or authority is subjected to a remedy available under the 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 and once the superior court disposes of the lis before it either by affirming the decree or order or by setting aside or by modifying the same and the superior court affirms the order by dealing all the issues on merit, the order passed thereafter impugned would be an appellate order and would attract the applicability of doctrine of merger and in that situation, 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 8 difference in the order is a speaking or non-speaking one and would merge 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.
Learned counsel, in support of his argument, has relied upon the judgment rendered by the Hon'ble Apex Court in Kunhayammed & Ors. Vrs. State of Kerala and Anr. (supra).
He has also relied upon the judgment rendered by the Hon'ble Apex Court in Dineshan K.K. Vrs. R.K. Singh & Ors. (supra).
9. While on the other hand, learned Advocate General appearing for the respondent State of Jharkhand has relied upon the judgment passed by the Andhra Pradesh High Court in the case of K.K.R. Nair Vrs. Mohan Das & Anr. (supra).
10. We, in order to answer the issue have gone across the judgment rendered by the Hon'ble Apex Court in Kunhayammed & Ors. Vrs. State of Kerala and Anr. (supra), wherefrom, it is evident that the Hon'ble Apex Court has delved upon the issue on doctrine of merger and after taking aid of the judgment rendered in U.J.S. Chopra 9 Vrs. State of Bombay, AIR 1955 SC 633, wherein it has been held:
"A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties... would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below.'' Further reference of the judgment has been made rendered in the case of S.S. Rathore Vrs. State of M.P., (1989) 4 SCC 582, wherein, a larger Bench of the Hon'ble Apex Court (Seven Judges) has been pleased to hold that the distinction made between courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed.
It has further been held at paragraphs-12, 14, 15, 17, 34, 40, 41, 43 and 44 thereof to the effect which read hereunder as:-
"12. The logic underlying the doctrine of merger 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 was subjected to a remedy available under the law before a superior forum then, though the 10 decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way -- whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the 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 shall have to be kept in view.
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 11 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 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 12 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.
Dismissal at stage of special leave -- without reasons
-- no res judicata, no merger
15. Having so analysed and defined the two stages of the jurisdiction conferred by Article 136, now we proceed to deal with a number of decisions cited at the Bar during the course of hearing and dealing with the legal tenor of an order of the Supreme Court dismissing a special leave petition. In Workmen v. Board of Trustees of the Cochin Port Trust [(1978) 3 SCC 119 : 1978 SCC (L&S) 438] a three-Judge Bench of this Court has held that dismissal of special leave petition by the Supreme Court by a non- speaking order of dismissal where no reasons were given does not constitute res judicata. All that can be said to have been decided by the Court is that it was not a fit case where special leave should be granted. That may be due to various reasons. During the course of the judgment, their Lordships have observed that dismissal of a special leave petition under Article 136 against the order of a tribunal did not necessarily bar the entertainment of a writ petition under Article 226 against the order of the tribunal. The decision of the Madras High Court in Western India Match Co. Ltd. v. Industrial Tribunal [AIR 1958 Mad 398, 403 :
(1958) 2 MLJ 74 : (1958) 2 LLJ 315] was cited before their Lordships. The High Court had taken the view that the right to apply for leave to appeal to the Supreme Court under Article 136, if it could be called a "right" at all, cannot be equated to a right to appeal and that a High Court could not refuse to entertain an application under Article 226 of the Constitution on the ground that the aggrieved party could move the Supreme Court under Article 136 of the Constitution. Their Lordships observed that such a broad statement of law is not quite accurate, although substantially it is correct.
17. Thereafter the employer approached the High Court by preferring a petition under Article 226 of the Constitution seeking quashing of the award of the Labour 13 Court. On behalf of the employee the principal contention raised was that in view of the order of the Supreme Court dismissing the special leave petition preferred against the award of the Labour Court it was not legally open to the employer to approach the High Court under Article 226 of the Constitution challenging the very same award. The plea prevailed with the High Court forming an opinion that the doctrine of election was applicable and the employer having chosen the remedy of approaching a superior court and having failed therein he could not thereafter resort to the alternative remedy of approaching the High Court. This decision of the High Court was put in issue before the Supreme Court. This Court held that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition. Referring to two earlier decisions of this Court, it was further held: (SCC pp. 148-50, paras 6 & 8) "The effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be reopened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an 14 uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.
It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court to grant special leave in cases where the party cannot claim effective relief by approaching the High Court concerned under Article 226 of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rulings already given by this Court in the two decisions aforecited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition."
34. The doctrine of merger and the right of review are concepts which are closely interlinked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that 15 of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed -- there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits -- in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave -- the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it.
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 16 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 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 17 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.
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, 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.18
(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.19
(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."
It is evident from the aforesaid judgment that doctrine of merger is not a doctrine of universal or unlimited application rather it will depend upon 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 of India, 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.
Further, in the case of Dineshan K.K. Vrs. R.K. Singh & Ors.(supra), the same issue has been cropped up before the Hon'ble Apex Court. In the backdrop of the facts, 20 writ petition filed by the petitioner before the High Court was allowed by passing order in favour of the petitioner, against which, an appeal has been filed before the Hon'ble Apex Court questioning the judgment and order passed by the Gauhati High Court in Writ Petition No.497 of 2001 which was dismissed by the Hon'ble Apex Court and thereafter, contempt case has been filed.
The Hon'ble Apex Court has formulated the issue firstly, whether the contempt petition filed by the petitioner is maintainable before this Court and secondly, whether the petitioner could approach High Court which has disposed of the writ petition and issued certain directions to the alleged contemnors for the grant of prayer sought in the petition.
Thus, it has been laid down by the Hon'ble Apex Court that the judgment and order passed by the High Court has not merged with the judgment and order passed by this Court when the civil appeal filed by the complainant/Petitioner was dismissed.
Thereafter, the second issue would arise for consideration i.e., whether the contempt petition requires to be entertained by the Hon'ble Apex Court or could the Hon'ble Apex Court request the High Court whose directions are said to have been disobeyed by the respondents to consider and decide the matter.
The Hon'ble Apex Court in exercise of power conferred under Article 142 of the Constitution of India has 21 directed the complainant/Petitioner to approach the High Court and bring to its notice and knowledge that the orders and directions have been disobeyed by the respondents/contemnors.
Thus, it is evident that in the said case, the Hon'ble Apex Court has laid down the proposition that on the basis of the principle of merger, the contempt would lie before the Hon'ble Apex Court but in exercising the power conferred under Article 142 of the Constitution of India and in order to avoid overburdening, the High Court has been requested to entertain the contempt case, therefore, herein, the issue about maintainability of the contempt petition has well been answered applying the same in the given facts even by the High Court the order passed in the writ petition will merge to the order passed in the Division Bench and therefore, the contempt would lie before the Division Bench.
11. We have also gone through the judgment rendered by the Patna High Court in Rajesh Kumar & Ors. Vrs. The State of Bihar (supra), although, the judgment rendered by the Patna High Court is having no binding precedence on or after 15.11.2000 but the principle laid down therein well can be considered and accordingly, we have considered the same.
Wherein, also it has been laid down that once the order passed by the writ Court merges with the order passed by the Division Bench, the contempt petition will be 22 maintainable only before the Division Bench and not before the learned Single Judge, for ready reference, para-129 of the said judgment reads hereunder as:-
"129. For the reasons aforementioned, the order of writ Court, dated 15.02.2001, merged with the order, dated 16.12.2004, of the Division Bench. The contempt petitions were, thus, maintainable only before the Division Bench and not before the learned Single Judge. Had contempt, in the circumstances of the present case, been established, the contempt would have been of the Division Bench and not of the Single Bench. The learned Single Judge was, therefore, in error in entertaining the contempt applications."
12. So far as the argument advanced on behalf of the learned Advocate General by putting reliance upon the provision of Rule 392 of the High Court of Jharkhand Rules, 2001 is concerned, we are of the view that the provision laid down under Rule 392 of the High Court of Jharkhand Rules, 2001 is not coming in the way in answering the issue about maintainability of the contempt petition before the Division Bench in the factual circumstances as available in the given case as because under the provision of Rule 392, reference of Judge has been made and the Judge can be Single Judge or the Division Bench which will depend upon the situation and circumstances leading to the factual aspect.
So far as the judgment relied upon by the learned Advocate General in the case of K.K.R. Nair Vrs. Mohan Das & Anr. (supra), the said judgment will not be 23 applicable, firstly for the reason that after the rule having been laid down by the Hon'ble Apex Court in the case of Dineshan K.K. Vrs. R.K. Singh & Ors.(supra), the same will have the binding precedence in view of the provision of Articles 141 and 144 of the Constitution of India thereof and secondly, for the reason that as also the law as has been held by the Andhra Pradesh High Court in the case of K.K.R. Nair Vrs. Mohan Das & Anr. (supra) has subsequently been clarified by the Hon'ble Apex Court in the case of Kunhayammed & Ors. Vrs. State of Kerala & Anr.(supra) dealing with the principle of merger and therefore, the judgment rendered by the Andhra Pradesh High Court cannot be said to be a good law.
13. Before parting with the order, it requires to refer herein that the order passed by the Division Bench in L.P.A. No.786 of 2018 has been assailed by the State of Jharkhand in Special Leave to Appeal (C) No(s).8108 of 2021 but the same has been dismissed on 06.07.2021 in limine.
It has been held by the Hon'ble Apex Court in the case of Kunhayammed & Ors. Vrs. State of Kerala & Anr. (supra) by interpreting the principle of merger, it will only be applied if the superior court has exercised its mind on merit. Herein, the Hon'ble Apex Court has dismissed the Special Leave to Appeal (C) No(s).8108 of 2021 on 06.07.2021 in limine, meaning thereby, the leave has not 24 been granted, therefore, the order passed by the Division Bench of this Court in L.P.A. No.786 of 2018 will not be merged upon the order passed by the Hon'ble Apex Court, therefore, according to our considered view, the contempt will not lie before the Hon'ble Apex Court rather on the basis of the principle of merger, it will lie before the Division Bench of this Court.
14. In view of the discussion made hereinabove and in view of the law laid down in the case of Kunhayammed & Ors. Vrs. State of Kerala & Anr.(supra), this Court is of the considered view that in the given facts of this case since the order passed by the learned Single Judge has been affirmed by the Division Bench, as such, on the basis of the principle of merger, the contempt will lie before the Division Bench.
15. Accordingly, the issue has been answered.
16. Let the Divisional Forest Officer, Bokaro Forest Division, Bokaro who is the author of Annexure-5 in this petition be present in-person before this Court through Video Conferencing on the next date of hearing along with his explanation as to under what authority after the orders having been passed by the learned Single Judge and having been affirmed by the Division Bench of this Court and the Special Leave to Appeal (C) No(s).8108 of 2021 filed by the State Government having been dismissed in limine by the Hon'ble Supreme Court, how he could have issued such 25 type of letters and also how he could have proceeded to some other act also in continuation of the act as alleged against him by the petitioner.
17. Post this case on 13.08.2021.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) rohit/ -