Kunhayammed v. State of Kerala

Supreme Court of India · 19 July 2000 · 3 judges

The Court held that dismissal of a special leave petition, whether by a speaking or non-speaking order, does not attract the doctrine of merger, so the High Court's order remained open to review by the High Court.

Facts

Under the Kerala Private Forests (Vesting and Assignment) Act, 1971, the Forest Tribunal held in 1982 that 1020 acres claimed by a family of 71 members did not vest in the Government. The Kerala High Court dismissed the State's appeal on 17.12.1982. The State's special leave petition was dismissed on 18.7.1983 by the order 'Special leave petition is dismissed on merits.' In 1986 Section 8C(2) was inserted with retrospective effect, allowing the Government to seek review in the High Court of orders in appeals under Section 8A, including orders against which an appeal to the Supreme Court had not been admitted. The State filed a review petition in 1984. The High Court rejected the preliminary objection to its maintainability, and the landholders appealed. A two-Judge Bench referred the matter to three Judges.

Questions before the Court

Whether the High Court's order merged in the Supreme Court's order dismissing the special leave petition, so that it could no longer be reviewed by the High Court.
What is the legal effect of an order dismissing a special leave petition under Article 136, by a speaking or a non-speaking order, as compared with an order passed after leave is granted.

What the Court held

Where an appeal or revision lies to a superior forum and that forum reverses, modifies or affirms the decision, the lower decision merges in the superior one. But merger is not of universal application; it depends on the nature of the superior jurisdiction and the subject-matter of the challenge.
Jurisdiction under Article 136 has two stages: the special leave stage and, once leave is granted, the appellate stage. At the special leave stage the Court is not exercising appellate jurisdiction and cannot reverse, modify or affirm the order, so merger applies only after leave is granted.
An order refusing special leave, whether speaking or non-speaking, does not attract merger. If it gives reasons, any law declared binds all courts under Article 141, and its other findings bind the parties and the court below by judicial discipline, but the order below does not merge.
Once leave is granted, any order in the appeal, whether reversal, modification or affirmance, speaking or not, attracts merger. After an appeal is preferred or leave granted, the High Court loses jurisdiction to entertain a review under Order XLVII Rule 1 CPC.
Here the special leave petition was dismissed by a non-speaking order. The High Court's order did not merge and could be reviewed, a right also conferred by Section 8C(2) of the Kerala Act. The appeal was dismissed.

Why it matters

The judgment resolves a conflict among two-Judge Bench decisions on the effect of dismissing a special leave petition. It sets out seven conclusions on the doctrine of merger under Article 136, distinguishing the special leave stage from the appellate stage, explaining the role of Article 141 and judicial discipline for reasoned orders, and holding that a review in the High Court remains available until leave is granted. It disagrees with the broader statements in Prabhakar Bhikaji Ingle and Sree Narayana Dharmasanghom Trust.

In the Court's words

Copied from the official judgment; each passage links to its page.

“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.”

R.C. Lahoti, J.Page 16 of the judgment

“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 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.”

R.C. Lahoti, J.Page 12 of the judgment

“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.”

R.C. Lahoti, J.Page 15 of the judgment

“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.”

R.C. Lahoti, J.Page 4 of the judgment

Provisions interpreted

Article 136, Constitution
Article 141, Constitution
Order XLVII Rule 1, Code of Civil Procedure, 1908
Section 8C(2), Kerala Private Forests (Vesting and Assignment) Act, 1971

Case and bench

Parties: Kunhayammed v. State of Kerala
Case: Civil appeal by special leave from the Kerala High Court order dated 14.12.1995 in RP No. 14 of 1984 (appeal number not printed in the file)
Decided: 19 July 2000
Bench: K.T. Thomas, D.P. Mohapatra, R.C. Lahoti
Opinions: Unanimous. Judgment of the Court delivered by R.C. Lahoti, J.

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