DEEPAK SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) THESE two review applications have been filed by Sri Deo Datta in Writ Petition No.48287 of 2005 (Deepak Sharma Vs. State of U.P. and Ors.) and Writ Petition No.50418 of 2005 (Manav Seva Samiti and 26 Ors. Vs. NOIDA and Ors.) with a prayer to review the common judgment and order dated 4th October, 2005 passed by this Court in these two petitions so far as it relates his functioning as the Chairman-cum- Chief Executive Officer, New Okhla Industrial Development Authority, NOIDA (hereinafter referred to as NOIDA) during the period 29th May, 2004 to 10th July, 2005. The basic ground taken in these review applications is that the observations and findings recorded by the Court in the aforesaid judgment regarding the functioning of the applicant as the Chief Executive Officer, NOIDA should be deleted as the applicant was not impleaded by name in either of the aforesaid two writ petitions. The dispute in the two writ petitions referred to above was in connection with the advertisement issued by NOIDA for inviting applications for allotment of residential plots for the General Category applicants and for the Prescribed Reserved Category applicants in the ''Residential Plots Scheme 2004(1)' (hereinafter referred to as the Scheme). While Writ Petition No.48287 of 2005 was filed by Deepak Sharma for a direction upon NOIDA to execute the lease deed in his favour on the basis of the draw of lots held on 2nd July, 2005 and for quashing of the order dated 4th July, 2005 by which the draw of lots held on 2nd July, 2005 was cancelled, Writ Petition No.50418 of 2005 was filed by Manav Seva Samiti and 26 others for prohibiting NOIDA from approving the draw of lots held on 2nd July, 2005 and for causing an investigation to be done by a suitable agency to determine the liability of individual officers and for holding a fresh draw of lots. It needs to be mentioned that NOIDA through its Chief Executive Officer was a respondent in both these petitions. It had filed counter affidavit and was heard. Both these petitions were decided by a common judgment and order dated 4th October, 2005 and the Court had issued directions for holding fresh draw of lots by a Committee headed by Sri G.B. Patnaik, Principal Secretary, Agriculture State of U.P. with Sri Himanshu Kumar Vice-Chairman, Varanasi Development Authority as the other member and for investigation by CBI to find out the officials/employees of NOIDA, UPDESCO and the State Government responsible for manipulation in the draw of lots held by NOIDA on 2nd July, 2005 for the aforesaid Scheme. NOIDA filed Special Leave Petition Nos. 21612 and 21613 of 2005 against the aforesaid judgment in which leave was granted and an interim order was passed. The Special Leave Petitions were thereafter numbered as Civil Appeal Nos. 6794-6795 of 2005. Deepak Sharma also filed Special Leave Petitions in which leave was also granted and they were subsequently numbered as Civil Appeal Nos.6800-6801 of 2005. A number of other Special Leave Petitions including that by UPDESCO (which was subsequently numbered as Civil Appeal Nos.6802 and 6803 of 2005) were also filed against the judgment and order dated 4th October, 2005 and leave was granted. The Appeals filed by NOIDA were disposed of as not pressed by the Supreme Court by the judgment and order dated 22nd November, 2007 with a direction that the appellant-NOIDA shall implement the directions of the High Court. The order is quoted below:- "THESE appeals have been preferred by the New Okhla Industrial Development Authority (NOIDA) being aggrieved by the judgment and order dated 4/10/2005. At the outset, Mr. K.P. Pathak, learned ASG appearing for the appellant contended that after application of mind and after careful consideration of the directions issued by the High Court, the appellant has taken a decision to implement the directions of the High Court. Accordingly, learned ASG contended that he has received instructions not to press these appeals. On this submission, the appeals are disposed of as not pressed with a direction that the appellant shall implement the directions of the High Court." The Appeals filed by Deepak Sharma were also dismissed by the Supreme Court by the judgment and order dated 22nd November, 2007 as they were devoid of merit and the order is quoted below:- "THESE appeals are directed against the judgment and order dated 4/10/2005 passed by the High Court of Allahabad in CMWP No.48287/2005 and CMWP No.50418/2005. We have heard Mr. Ravindra Shrivastava, learned senior counsel for the appellant at length. Briefly stated that facts are as follows. The NOIDA Authority held draw of lots on 2/7/2007 for 1250 residential plots at NOIDA. As hue and cry has been raised against the procedure of the draw of lots, a conscious decision has been taken on 3/7/2005 by the NOIDA Authority for not approving the draw of lots on 2/7/2005. Thereafter, by an order dated 4/7/2005, the draw of lots has been cancelled. The appellants are aggrieved by the cancellation of draw of lots. Draw of lots is only for the identification of the plots. By conducting draw of lots, no indefeasible rights whatsoever has been accrued to the appellants. That no vested right has been accrued to the appellants by draw of lots has been held by this Court in Delhi Development Authority Vs. Pushpendra Kumar Jain, 1994 Suppl (3) SCC 494. In view thereof, these appeals are devoid of merit and are, accordingly, dismissed." The Civil Appeals filed by UPDESCO and the other Civil Appeals were also dismissed on merits by the judgment and order dated 22nd November, 2007. After the aforesaid judgment and order was passed by the Supreme Court on 22nd November, 2007 in the aforesaid Civil Appeals arising out of the judgment and order dated 4th October, 2005, the applicant approached the High Court by filing Review Application No.24029 of 2008 in Writ Petition No.48287 of 2005 on 22nd January, 2008 for review of the aforesaid judgment. The applicant also filed an application to condone the delay in filing the said review application. Review Application No.117409 of 2008 was also subsequently filed by the applicant in the High Court in Writ Petition No.50418 of 2005 on 11th May, 2008 to review the judgment and order dated 4th October, 2005. It needs to be mentioned that in the affidavits filed in support of both these review petitions, it has been stated that though the applicant was aware that some writ petitions had been filed in the High Court in connection with the draw of lots which were decided by a common judgment and order and subsequently Special Leave Petitions/Civil Appeals were filed which have also been decided, but the applicant was not aware that some observations had been made against him in the said judgment as he had not read the judgment since he was not posted at NOIDA at that time. We first propose to deal with the application filed for condonation of the delay in filing the review application. In the affidavit filed in support of the delay condonation application, it has been stated that the applicant was aware of the judgment and order dated 4th October, 2005 through the News Papers but was actually not aware of the details. It has also been stated that the applicant was aware of the orders passed by the Supreme Court on 11th November, 2005, 24th July, 2006, 31st July, 2007 and 22nd November, 2007 through the News Papers but was not aware of the details and it is only after the order dated 22nd November, 2007 was passed by the Supreme Court that the applicant obtained a photostat copy of the judgment and order dated 4th October, 2005 passed by the High Court to make preparations for replying to the queries, if any, to be made by the CBI in compliance of the directions given by the High Court. It is further stated that after reading the judgment, the applicant became aware of certain observations in the judgment and so the delay in filing the review applications may be condoned. The applicant does not dispute that he was aware of the filing of the writ petitions in the High Court relating to the draw of lots held by NOIDA and its subsequent cancellation and also the filing of the Special Leave Petitions by NOIDA as well as by Deepak Sharma against the judgment and order of the High Court. Indeed, in the affidavit filed in support of the delay condonation application, the applicant has stated that he was aware of the various orders passed by the High Court and the Supreme Court through the News Papers. What he contends, however, is that he was not aware of the details of the judgment since he had read the judgment only after he obtained its photostat copy after the dismissal of the Civil Appeals by the Supreme Court on 22nd November, 2007. He also states that he obtained the aforesaid copy of the judgment so as to facilitate him in filing the reply to the queries that may be made by the CBI pursuant to the directions issued by the High Court in the judgment and order dated 4th October, 2005. It is, therefore, clear that the applicant was aware of the fact that the High Court had directed investigation by CBI. We find it extremely difficult to believe that the applicant, who was the Chief Executive Officer, NOIDA when the draw of lots were held and were cancelled, would not have read the judgment and order of the High Court directing for investigation by CBI. On the other hand, the facts and the circumstances of the case persuade us to believe that the applicant kept quiet after the judgment of the High Court since an interim order had been passed by the Supreme Court in the Special Leave Petitions that had been filed against the judgment and order dated 4th October, 2005 and it is only after the dismissal of the Civil Appeals by the Supreme Court that the applicant filed the review applications in January, 2008 and May, 2008. We are, therefore, not satisfied with the explanation given by the applicant for condoning the delay in filing the review application and so the application filed for condoning the delay in filing the review application deserves to be rejected. We, however, propose to examine the maintainability of these review applications also as much stress has been laid by the learned Senior Counsel appearing for the applicant that they should be allowed. It has first to be seen whether these review applications can be entertained when the judgment and order of which review is sought had been challenged in the Supreme Court by the petitioner Deepak Sharma as well as by NOIDA and some others and the Civil Appeals filed by Deepak Sharma were dismissed on merit and the other Civil Appeals filed by NOIDA were disposed of as not pressed with a direction that the judgment of the High Court shall be implemented. In this connection, two issues arise for consideration. Firstly, whether the judgment and order dated 4th October, 2005 passed by the High Court stood merged with the judgment and order dated 22nd November, 2007 of the Supreme Court? Secondly, whether the order dated 22nd November, 2007 passed by the Supreme Court in the Civil Appeals amounts to affirmation of the judgment and order dated 4th October, 2005 passed by the High Court taking away the jurisdiction of the High Court to entertain a prayer for review of its order, much less disturb the order in the exercise of review jurisdiction. It is the contention of Sri Navin Sinha, learned Senior Counsel appearing for the applicant that the observations made against the applicant deserve to be deleted as the same had been made without hearing him since the applicant was not a respondent in the writ petition or the Special Leave Petitions. He contends that, in such circumstances, the review applications are maintainable even though they have been filed after the dismissal of the Civil Appeals. In Kunhayammed and Ors. Vs. State of Kerala and Anr., JT 2009 (9) SC 110, the Supreme Court examined the doctrine of merger when a Special Leave Petition is dismissed either by a non-speaking order or a speaking order and when a Civil Appeal is dismissed with a speaking order or a non-speaking order. In respect of the doctrine of merger and the right of review, it was observed by the Supreme Court :- "The doctrine of merger and the right of review are concepts which are closely inter-linked. 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. 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." The conclusions of the Supreme Court are contained in paragraph 34 of the judgment and are as follows:- "(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. 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 special leave petition is converted into an appeal. (iii) 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 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 order does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of Supreme Court rejecting 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 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 of the C.P.C." (emphasis supplied) It is, therefore, clear from the aforesaid decision of the Supreme Court that the doctrine of merger and the right of review are concepts which are closely inter-linked and if after grant of Special Leave, the Civil Appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of the Supreme Court and in that case it is not permissible to move the High Court for review of the judgment. In the present case, what we find is that the prayer for Special Leave to file an Appeal was granted by the Supreme Court both to NOIDA and Deepak Sharma and also to some others and ultimately the Civil Appeals were decided on 22nd November, 2007. The Civil Appeals filed by Deepak Sharma were dismissed on merit while the Civil Appeals filed by NOIDA were disposed of as not pressed with a direction that the appellant shall implement the directions of the High Court. It is, therefore, clearly a case of merger referred to in category (i), (vi) and (vii) of the aforesaid judgment of the Supreme Court in Kunhayammed (supra) and so the High Court does not have the jurisdiction to entertain the review petitions. Reference also needs to be made to the decision of the Supreme Court in Abbai Maligai Partnership Firm and Anr. Vs. K. Santhakumaran and Ors., (1998) 7 SCC 386, wherein the Supreme Court disapproved the exercise of review jurisdiction by the High Court after the dismissal of the Special Leave Petitions on contest. This decision was noticed by the Supreme Court in Kunhayammed (supra) and it was pointed out that though the doctrine of merger was not relied upon in Abbai Maligai Partnership Firm (supra) since the Special Leave Petition had been dismissed, but at the same time, the Supreme Court also pointed out that a careful reading of the decision brings out the correct statement of the law. The relevant observations of the Supreme Court in the decision of Abbai Maligai Partnership Firm (supra) is quoted below:- "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 the 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..........." (emphasis supplied) The contention of Sri Navin Sinha, learned Senior Counsel for the applicant that the review applications would be maintainable since the applicants were not party in the writ petition or in the Civil Appeals in the Supreme Court cannot also be accepted in view of the decision of the Supreme Court in Gopabandhu Biswal Vs. Krishna Chandra Mohanty and Ors., AIR 1998 SC 1872 and the relevant observations are as follow :- "In the present case, however, it is urged that the four applicants who filed the two review petitions before the Tribunal were not parties to the main petition. They were also not parties to the special leave petition filed before this Court which was dismissed. However they are parties aggrieved and hence are entitled to apply for a review of the main judgment of the Tribunal.....................We will assume for the time being that the applicants are persons aggrieved. Even so, the question is whether they can have a judgment which has attained finality by virtue of an order of this Court, set aside in review. There is no doubt that as between the parties to the main judgment, the judgment is final and binding. The respondents, State of Orissa and Union of India, are, therefore, bound to give effect to the judgment of the Tribunal in T.A. No.1 of 1989 in the case of Gopabandhu Biswal. If this is so, can a third party by filing a review petition get that same judgment reviewed and obtain an order that Gopabandhu Biswal is not entitled to the benefits of the directions contained in the main judgment since that judgment is now set aside? In our view this is wholly impermissible. It will lead to re-opening a matter which has attained finality by virtue of an order of this Court. The applicants, even if they are persons aggrieved, do not have, in the present case, a right of review under any part of Order 47 Rule 1........" (emphasis supplied) It is, therefore, clear that once the Civil Appeal is decided by the Supreme Court, the party cannot go back to the High Court and file a review petition. This would also be the position in respect of a person aggrieved who was not a party in the High Court or in the Civil Appeals. 0 Thus, for the reasons stated above, the Delay Condonation Application and the Review Applications are rejected. 1