If SLP is dismissed by Supreme Court without granting leave, High Court will not be precluded from exercising review: Jammu & Kashmir High Court

If a Special Leave Petition (SLP) is dismissed by the Supreme Court in limine without granting leave to appeal and without observing anything on the merits of the case, the concerned High Court will not be precluded from exercising its review jurisdiction, the Jammu & Kashmir High Court ruled (Gagan Gupta and Others v. Union Territory of J&K and Others)..The Court placed reliance on the Supreme Court judgment in Kunhayammed and others v State of Kerala [(2000) 6 SCC 359] to hold that an order of the Supreme Court refusing special leave to appeal under Article 136 of the Constitution 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 SLP or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.Thus, when Supreme Court dismisses an SLP without granting leave to appeal by way of a non-speaking order, such an order would not stand substituted in place of the order under challenge, a Bench of Justices Tashi Rabstan and Sanjay Dhar held..Therefore, the doctrine of merger as enunciated by the Supreme Court in Kunhayammed’s case (supra) would not come into play, it added.“The order of the Supreme Court (in the instant case) refusing Special Leave Petition is a non-speaking order and, as such, it would not stand substituted in place of the order under challenge. Thus, review jurisdiction of this Court is not effected by the dismissal of Special Leave Petitions of some of the review petitioners. The same are, therefore, required to be considered on their own merit,” it ruled..The High Court was hearing a review petition filed against an order of a Division Bench. The review petition was filed after the Supreme Court had dismissed the SLP against the order of the Division Bench.The matter concerned several writ petitioners who had challenged a notice for the cancellation of temporary liquor licenses from the Excise Commissioner dated December 14, 2005. A single-judge decided the matter by a common judgment dated February 6, 2017. By this decision, the writ petitions were disposed of while granting the government liberty to review its Excise Policy..The single-judge verdict was challenged before a Division Bench, which confirmed the said decision in December 2020. This decision was sought to be reviewed by various petitioners. Meanwhile, an SLP, which was filed by some of the review petitioners against the judgment under review, was dismissed by the Supreme Court.When the review petition came up for hearing before the High Court, it was the contention of the government that once SLP is dismissed, a review petition is not maintainable before the High Court..The counsel for the review petitioners, however, submitted that since the Supreme Court’s order dismissing the SLP was passed in limine without granting leave to appeal and not on merits, the High Court would not be precluded from deciding the review petitions on merits.The Court adverted to Kunhayammed’s case in this regard. That judgment laid down the following propositions:.- 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.- 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.- An order refusing special leave to appeal may be a non[1]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.- 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 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.- Once leave to appeal has been granted and appellate jurisdiction of the 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.- 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..Therefore, the doctrine of merger as enunciated by the Supreme Court in Kunhayammed’s case would not come into play in this case since the SLP was dismissed in limine without granting leave to appeal, the High Court held.Hence, the review petitions were held maintainable.On the merits of the review, the Court said that simply because a judge has gone wrong in law, it would not be a ground for a review of such judgment by the High Court although it may be a ground for appeal.As per Rule 65 of the Jammu and Kashmir High Court Rules, 1999 and Order XLVII Rule 1 of the Code of Civil Procedure (CPC) review petition before the High Court is permissible only on limited grounds, it held. The review petitions were, therefore, dismissed. Read more here..[Read Judgment]