Full Judgment Text
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CASE NO.:
Appeal (civil) 2480 of 2001
PETITIONER:
S. SHANMUGAVEL NADAR
RESPONDENT:
STATE OF TAMIL NADU AND ANR.
DATE OF JUDGMENT: 18/09/2002
BENCH:
R.C. LAHOTI & BRUESH KUMAR
JUDGMENT:
JUDGMENT
2002 Supp(2) SCR 498
The following Order the Court was delivered : Leave granted.
Looking at the nature of the controversy arising for decision and the view
which we propose to take of the matter before us, a detailed statement of
the facts is not called for. We will briefly notice bare essential facts.
The Madras City Tenants Protection (Amendment) Act, 1994 (Tamil Nadu Act 2
of 1996) was enacted by the State Legislature and came into force w.e.f. l
1th January, 1996. The constitutional validity of this Act was put in issue
by several writ petitions filed in the High Court. When the matter came up
for hearing before the Division Bench reliance on behalf of the respondents
in the High Court was placed on Division Bench decision of the High Court
dated 25th January, 1972 reported as M. Vardaraja Pillai v. Salem Municipal
Council, 85 Law Weekly 760.
Diverting a little in narration of facts it is necessary to note that at an
earlier point of time the State Legislature had enacted the Madras City
Tenants Protection (Amendment) Act, 1960 (Act No. 13 of 1960) whereby
certain amendments were incorporated in the Madras City Tenants Protection
Act, 1921. Constitutional validity of Act No. 13 of 1960 was challenged by
filing several writ petitions which came up to be heard and disposed of by
M. Vardaraja Pillai’s (supra). The constitutional validity of Act No. 13 of
1960 was upheld.
Appeals by special leave were filed before this Court against the Division
Bench decision in M. Vardaraja Pillai’s case. This Court dismissed the
appeals vide its order dated 10.9.1986. It was useful to extract and
reproduce the brief order of this Court in its entirety for it will have a
material bearing on the issue arising for decision before us in the
presents appeals. This Court held :
"The Constitutional validity of Act 13 of 1960 amending the Madras City
Tenants’ Protection Act, 1921 is under challenge in these appeals. The
State of Tamil Nadu was not made a party before the Trial Court. However,
the State was impleaded as a supplemental respondent in appeal as per
orders of the High Court. When the appellants lost the appeal, they sought
leave to appeals to this Court. The State of Tamil Nadu was not made a
party in the said leave petition. In the S.L.P. before this Court also the
State of Tamil Nadu was not made a party. A challenge to the constitutional
validity of the Act cannot be considered or determined, in the absence of
the concerned State. The learned counsel now prays for time to implead the
State of Tamil Nadu. This appeal is of the year 1973. In our view it is
neither necessary nor proper to allow this prayer at this distance of time.
No other point survives in these appeals. Therefore, we dismiss these
appeals, but without any order as to costs."
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It is clear that this Court did not go into the question of constitutional
validity of Act 13 of 1960 nor did this Court apply its mind to the
correctness or otherwise of the view taken by the High Court in M.
Vardaraja Pillai" case. This Court simply dismissed the appeals as not
properly constituted, and hence incompetent, in view of the State of Tamil
Nadu, a necessary party, having not been impleaded in the special leave
petitions and the appeals. Thus briefly stated, the appeals were disposed
of without any adjudication on merits.
Now, as stated in opening para of this judgment, when the matter as to the
constitutional validity of Act 2 of 1996 came up for hearing before a
Division Bench of the High Court, the decision in M. Varadaraja Pillai’s
case was cited as a precedent and reliance was placed on behalf of the
respondents on the law laid down therein. The Division Bench entertained
some doubt about the correctness of the view of the law taken by the
earlier Division Bench in Varadaraja Pillai’s case. However, consistently
with the rules of judicial discipline and decoram, the Division Bench
thought it fit to refer the matter to a Bench of three Judges (Full Bench)
for reconsidering the decision of Madras High Court in Varadaraja Pillai’s
case, assigning the reasons in support of the opinion formed by it. The
Division Bench in the operative part of its order concluded as under:
"The aforesaid decision in S.M. Transport’s Case*, of the Supreme Court,
was heavily relied upon by this Court in deciding Varadaraja Pillai’s case
(68 L. W. 760). However, the aforesaid aspect of the case pointed out by
the Supreme Court does not appear to nave been taken note of. For all these
reasons, we are of the view that the decision in Varadaraja Pillai’s case
(85 L.W. 760) requires re-considerations. Therefore, we are of the opinion
that it is just and appropriate to refer these cases to a larger Bench."
[*AIR 1963 SC 384]
When the Full Bench took up the hearing of the case, the order of the
Supreme Court dated 10.9.1986, referred to hereinabove, was brought to its
notice. The Full Bench formed an opinion that in view of the appeals
against the Division Bench decision in Varadaraja Pillai’s case having been
dismissed by the Supreme Court, though on technical ground, nevertheless
the Division Bench decision of the Madras High Court stood merged into the
decision of the Supreme Court according to the doctrine of merger and,
therefore, it was . no more open for the Full Bench to examine and consider
the correctness of the law laid down by the Division Bench in Varadaraja
Pillai’s case which, the Full Bench thought, would be deemed to have been
affirmed by the Supreme Court in view of dismissal of the appeals there
against.
Feeling aggrieved by the abovesaid decision of the Full Bench, these
appeals have been filed by special leave.
Having heard the learned counsel for the parties, we are of the opinion
that these appeals deserve to be allowed and the decision of the Full Bench
dated 30.8.2000 deserves to be set aside as erroneous for the reasons more
than one as stated hereinafter.
Firstly, the doctrine of merger. Though loosely an expression merger of
judgment, order or decision of a court or forum into the judgment, order or
decision of a superior forum is often employed, as a general rule the
judgment or order having been dealt with by a superior forum and having
resulted in confirmation, reversal or modification, what merges is the
operative part, i.e. the mandate or decree issued by the Court which may
have been expressed in positive or negative forum. For example, take a case
where the subordinate forum passes an order and the same, having been dealt
with by a superior forum, is confirmed for reasons different from the one
assigned by the subordinate forum what would merge in the order of the
superior forum is the operative part of the order and not the reasoning of
the subordinate forum; otherwise there would be an apparent contradiction.
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However, in certain cases, the reasons for decision can also be said to
have merged in the order of the superior court if the superior court has,
while formulating its own judgment or order, either adopted or reiterated
the reasoning, or recorded an express approval of the reasoning,
incorporated in the judgment or order of the subordinate forum.
Secondly, the doctrine of merger has a limited application. In State of
U.P. v. Mohammad Nooh. AIR (1958) SC 86 the Constitution Bench by its
majority speaking through S.R. Das. CJ so expressed itself. "while it is
true that a decree of a court of first instance may be said to merge in the
decree passed on appeal there from or even in the order passed in revision,
it does so only for certain purposes, namely, for the purposes of computing
the period of limitation for execution of the decree". A three-Judge Bench
in State of Madras v. Madurai Mills Co. Ltd., AIR (1967) SC 681 held, "the
doctrine of merger is not a doctrine of rigid and universal application and
it cannot be said that wherever there are two orders, one by the inferior
authority and the other by a superior authority, passed in an appeal or
revision, there is a fusion or merger of two order irrespective of the
subject-matter of the appellate or revisional order and the scope of the
appeal or revision contemplated by the particular statute. The application
of the doctrine depends on the nature of the appellate or revisional order
in each case and the scope of the statutory provisions conferring the
appellate or revisional jurisdiction. (emphasis supplied). Recently a
three-Judge Bench of this Court had an occasion to deal with doctrine of
merger in Kunhayammed and Ors. v. State of Kerala and Anr., [2000] 6 SCC
359 and this Court reiterated that the doctrine of merger 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, (emphasis
supplied). In this view of the law, it cannot be said that the decision of
this Court dated 10.9.1986 had the effect of resulting in merger into the
order of this Court as regard the statement of law or the reasons recorded
by the Division Bench of the High Court in its impugned order. The contents
of the order of this Court clearly reveal that neither the merits of the
order of the High Court nor the reasons recorded therein nor the law laid
down thereby were gone into nor they could have been gone into.
Thirdly, as we have already indicated, in the present round of litigation,
the decision in Varadaraja Pillai ’s case was cited only as a precedent and
not as res judicata. The issue ought to have been examined by the Full
Bench in the light of Article 141 of the Constitution and not by applying
the doctrine of merger. Article 141 speaks of declaration of law by the
Supreme Court. For a declaration of law there should be a speech, i.e., a
speaking order. In Krishen Kumar v. Union of India and Ors., [1990] 4 SCC
207, this Court has held that the doctrine of precedents, that is being
bound by a previous decision, is limited to the decision itself and as to
what is necessarily involved in it. In State of U.P. and Anr. v. Synthetics
and Chemicals U.P. and Anr., [1991] 4 SCC 139, R.M. Sahai, J. (vide para
41) dealt with the issue in the light of the rule of sub-silentio. The
question posed was: can the decision of an Appellate Court be treated as a
binding decision of the Appellate Court on a conclusion of law which was
neither raised nor preceded by any consideration or in other words can such
conclusions be considered as declaration of law? His Lordship held that the
rule of sub-silentio, is an exception to the rule of precedents. "A
decision passes sub-silentio, in the technical sense that has come to be
attached to that phrase, when the particular point of law involved in the
decision is not perceived by the court or present to its mind." A court is
not bound by an earlier decision if it was rendered ’without any argument,
without reference to the crucial words of the rule and without any citation
of the authority’. A decision which is not express and is not founded on
reasons, nor which proceeds on consideration of the issues, cannot be
deemed to be a law declared, to have a binding effect as is contemplated by
Article 141. His Lordship quoted the observation from B. Shama Rao v. The
Union Territory of Pondicherry, [1967] 2 SCR 650 "it is trite to say that a
decision is binding not because of its conclusions but in regard to its
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ratio and the principles, laid down therein". His Lordship tendered an
advice of wisdom -"restraint in dissenting or overruling is for sake of
stability and uniformity but rigidity beyond reasonable limits is inimical
to the growth of law."
M/s. Rup Diamonds and Ors. v. Union of India and Ors., AIR (1989) SC 674 is
an authority for the proposition that apart altogether from the merits of
the grounds for rejection, the mere rejection by a superior forum,
resulting in refusal of exercise of its jurisdiction which was invoked,
could not by itself be construed as the imprimatur of the superior forum on
the correctness of the decisions sought to be appealed against. In Supreme
Court Employees Welfare Association v. Union of India and Ors.. AIR (1990)
SC 334 this Court observed that a summary dismissal, without laying down
any law, is not a declaration of law envisaged by Article 141 of the
Constitution. When reasons are given, the decision of the Supreme Court
becomes one which attracts Article 141 of the Constitution which provides
that the law declared by the Supreme Court shall be binding on all the
courts within the territory of India. When no reason are given, a dismissal
simpliciter is not a declaration of law by the Supreme Court under Article
141 of the Constitution. In Indian Oil Corporation Ltd. v. State of Bihar
and Ors., AIR (1986) SC 1780 this Court observed that the questions which
can be said to have been decided by this Court expressly, implicitly or
even constructively, cannot be re-opened in subsequent proceedings; but
neither on the principle of res judicata nor on any principle of public
policy analogous thereto, would the order of this Court bar the trial of
identical issue in separate proceedings merely on the basis of an uncertain
assumption that the issues must nave been decided by this Court at least by
implication.
It follows from a review of several decisions of this Court that it is the
speech, express or necessarily implied, which only is the declaration of
law by this Court within the meaning of Article 141 of the Constitution.
A situation, near similar to the one posed before us, has been dealt in
Salmond’ Jurisprudence (Twelfth Edition, at pp. 149-150) under the caption-
"Circumstances destroying or weakening the binding force of precedent
(perhaps) affirmation or reversal on a different ground". It sometimes
happens that a decision is affirmed or reversed on appeal on a different
point. As an example, suppose that a case is decided in the Court of Appeal
on ground A, and then goes on appeal to the House of Lords, which decides
it on ground B, nothing being said upon A. What, in such circumstances, is
the authority of the decision on ground A in the Court of Appeal? is the
decision binding on the High Court, and on the Court of Appeal itself in
subsequent cases? The learned author notes the difficulty in the question
being positively answered and then states; (i) the High Court may, for
example, shift the ground of its decision because it thinks that this is
the easiest way to decide the case, the point decided in the court below
being of some complexity. It is certainly possible to find cases in the
reports where judgments affirmed on a different point have been regarded as
authoritative for what they decided; (ii) the true view is that a decision
either affirmed or reversed on another point is deprived of any absolute
binding force it might otherwise have had; but it remains an authority
which may be followed by a court that thinks that particular point to have
been rightly decided.
In the present case, the order dated 10.9.1986 passed by this Court can be
said to be declaration of law limited only to two points - (i) that in a
petition putting in issue the constitutional validity of any State
Legislation the State is a necessary party and in its absence the issue
cannot be gone into, and (ii) that a belated prayer for impleading a
necessary party may be declined by this Court exercising its jurisdiction
under Article 136 of the Constitution if the granting of the prayer is
considered by the Court neither necessary nor proper to allow at the given
distance of time. By no stretch of imagination can it be said that the
reasoning or view of the law contained in the decision of the Division of
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the High Court in M. Varadaraja Pillai ’s case had stood merged in the
order of this court dated 10.9.1986 in such sense as to amount to
declaration of law under Article 141 by this Court or that the order of
this Court had affirmed the statement of law contained in the decision of
High Court.
We are clearly of the opinion that in spite of the dismissal of the appeals
on 10.9.1986 by this Court on the ground of non-joinder of necessary party,
though the operative part of the order of the Division Bench stood merged
in the decision of this Court, the remaining part of the order of Division
Bench of the High Court cannot be said to have merged in the order of this
Court dated 10.9.1986 nor did the order of this Court make any declaration
of law within the meaning of Article 141 of the Constitution either
expressly or by necessary implication. The statement of law as contained in
the Division Bench decision of the High Court in M. Varadaraja Pillai’s
case would therefore continue to remain the decision of the High Court,
binding as a precedent on subsequent benches of coordinate or lesser
strength but open to reconsideration by any bench of the same High Court
with a coram of judges more than two.
The Full Bench was not dealing with a prayer for review of the earlier
decision of the Division Bench in M. Varadaraja Pillai’s case and for
setting it aside. Had it been so, a different question would have arisen,
namely, whether another Division Bench or a Full Bench had jurisdiction or
competence to review an earlier Division Bench decision of that particular
Court and whether it could be treated as affirmed, for whatsoever reasons,
by the Supreme Court on a plea that in view of the decision having been
dealt with by the Supreme Court the decision of the High Court was no
longer available to be reviewed. We need not here go into the question,
whether it was a case of review, or whether the review application should
have been filed in the High Court or Supreme Court. Such a question is not
arising before us.
Under Article 141 of the Constitution, it is the law declared by the
Supreme Court, which is binding on all Courts within the territory of
India. Inasmuch as no law was declared by this Court, the Full Bench was
not precluded from going into the question of law arising for decision
before it and in that context entering into and examining the correctness
or otherwise of the law stated by the Division Bench in M. Varadaraja
Pillai’s case and either affirming or overruling the view of law taken
therein leaving the operative part untouched so as to remain binding on
parties thereto.
Inasmuch as in the impugned judgment, the Full Bench has not adjudicated
upon the issues for decision before it, we do not deem it proper to enter
into the merits of the controversy for the first time in exercise of the
jurisdiction of this Court under Article 136 of the Constitution. We must
have the benefit of the opinion of the Full Bench of the High Court as to
the vires of the State legislation involved.
For the foregoing reason, the appeals are allowed. The impugned judgment of
the High Court is set aside. All the appeals shall stand restored before
the Full Bench of the High Court and shall be heard and decided in
accordance with law. The Full Bench while doing so, shall not feel
inhibited by the fact that the appeals against the decision in M.
Varadaraja Pillai’s case were dismissed by this Court which, as we have
already stated, were dismissed only on the technical ground without any law
being laid down by this Court. We also clarify that in view of the time
that has already been lost, the Full Bench may proceed to hear and decide
all the controversies arising for decision in the writ petitions in the
High Court, that is, the Full Bench may obviate the need of sending the
matter bade to the Division Bench for hearing on such other issues as are
not decided by it Instead it may decide all the issues raised in the writ
petitions fully and finally so far as the High Court is concerned. The
hearing before the Full Bench shall be expedited as there are a number of
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writ petitions and a large number of cases are likely to be affected by the
view that the Full Bench may ultimately take. In view of the writ petitions
having been restored for hearing on the file of the High Court, we also
clarify that all the interim orders, which were passed by the High Court
shall also stand restored. Needless to say the High Court shall have the
liberty of reconsidering the interim orders passed by it if any such
occasion arises.