Krishna Murari, J.@mdashThis is an application with a prayer to recall the judgment and order dated 1st May, 2007 passed by this Court dismissing the writ petition. The basic ground taken in the recall application is that since the dispute pertains to district Pratapgrah which falls within the territorial jurisdiction of Lucknow Bench of this Court as such the order passed is without jurisdiction and liable to be recalled.
2. Writ petition was filed for a writ of certiorari against the order of Deputy Director of Consolidation, Pratapgarh and was entertained at Allahabad and was finally decided.
3. It is contended that since there was no order as contemplated by second proviso to Article 14 of the U.P. High Courts (Amalgamation) Order 1948 hence writ petition pertaining to jurisdiction of Lucknow Bench of this Court could neither have been entertained muchless decided by this Court. In support of the contention, learned counsel for the petitioner has relied upon Full Bench decision of this Court in the case of
1. Can a case falling within the jurisdiction of the Lucknow Bench of this Court be presented at Allahabad?
2. Can the Judges sitting at Allahabad summarily dismiss a case presented at Allahabad pertaining to the jurisdiction of the Lucknow Bench.
3. Can a case pertaining to the jurisdiction of the Lucknow Bench, presented and entertained at Allahabad, be decided finally by the judges sitting at Allahabad, without there being an order as contemplated by the second proviso to Article 14 of the U.P. High Courts (Amalgamation) Order, 1948?
4. What is the meaning of the expression "in respect of cases arising in such areas in Oudh" used in the first provision to Article 14 of the High Courts (Amalgamation) Order, 1948? Has this expression reference to the place where the case originated or to the place of sitting of the last Court or authority whose decree or order is being challenged in the proceeding before the High Court?
5. Whether this writ petition can be entertained and heard by the Judges sitting at Lucknow?
4. The Full Bench by majority answered the aforesaid questions as follows:
Question No. 1. A case falling within the jurisdiction of the Judges at Lucknow should be presented at Lucknow and not at Allahabad.
Question No. 2. However, if such a case is presented at Allahabad the Judges at Allahabad cannot summarily dismiss it only for that reason. The case should be returned for filing before the Judges at Lucknow, and where the case has been mistakenly or inadvertently entertained at Allahabad a direction should be made to the High Court office to transmit the papers of the case to Lucknow.
Question No. 3. A case pertaining the jurisdiction of the Judges at Lucknow and presented before the Judges at Allahabad cannot be decided by the Judges at Allahabad in the absence of an order contemplated by the second proviso to Article 14 of the of the U.P. High Courts (Amalgamation) Order, 1948.
5. In so far as findings returned on question Nos. 4 and 5 are concerned, they are not relevant for the purpose of the present case.
6. The findings given by the Full Bench of this Court on three questions have been affirmed by the Hon''ble Apex Court in the case of
37. To sum up, our conclusions are as follows. First, there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third, the Chief Justice has power under the second proviso to paragraph 14 of the Order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh area shall be instituted or filed at Allahabad instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the Order be directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the case of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Code of Criminal Procedure. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place.
38. Applications under Article 226 will similarly lie either at Lucknow or at Allahabad as the applicant will allege that the whole of cause of action or part of the cause of action arose at Lucknow within the specified areas of Oudh or part of the cause of action arose at a place outside the specified Oudh area.
39. The answers given by the High Court to the first three questions are correct save as modified by our conclusions aforesaid.
40. The answer given by the High Court to the fourth question is set aside. The meaning of cases arising in Oudh areas will be found by appropriate Courts in the light of this judgment.
41. The answer to the fifth question is discharged. The matters are sent back to the High Court for disposal in accordance with this judgment.
7. Admittedly, in the present case the property in dispute is situate in district Pratapgarh which falls within the territorial jurisdiction of the Lucknow Bench of this Court.
8. Challenge has been made to the orders passed by the consolidation authorities i.e. Consolidation Officer, Deewanganj, Pratapgarh, Settlement Officer Consolidation, Rampur camp at Pratapgarh and Deputy Director of Consolidation, Pratapgarh. Thus, the entire dispute pertains to district Pratapgarh which, admittedly, falls within the territorial jurisdiction of Lucknow Bench of this Court and it cannot be even remotely said that any part of the cause of action arose at Allahabad so as to confer jurisdiction upon this Court to entertain and decide the petition.
9. In reply, it has been submitted that there was no lack of inherent jurisdiction and mere lack of jurisdiction would not vitiate final judgment passed by this Court particularly when the Petitioners themselves chose the forum to challenge the order of the consolidation authorities. It has further been submitted that the judgment and order of this Court, sought to be recalled by the present application, was challenged by filing SLP before the Hon''ble Apex Court which was dismissed on 31.8.2007 and as such judgment of this Court merged with the order passed by the Hon''ble Apex Court, hence the same cannot be recalled.
10. I have considered the arguments advanced by the learned Counsel for the parties and perused the record.
11. Undoubtedly, SLP filed against the judgment of this Court, sought to be recall, was dismissed vide order dated 31.8.2007. The order of the Hon''ble Supreme Court is quoted hereunder:
Heard.
No merit. The SLP is dismissed.
The issue which arises for consideration is that whether the order of the Hon''ble Apex Court dated 31.8.2007 amounts to affirmation of the judgment and order dated 1.5.2007 passed by this Court taking away the jurisdiction to entertain a prayer for recall of the order.
12. In Kunhayammed and Ors. v. State of Kerala and Anr. JT 2009 (9) SC 110, the Supreme Court examined the doctrine of merger when a SLP 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. Considering the doctrine or merger and the right of review, it was observed by the Supreme Court as under:
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 SLP 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.
13. In Paragraph 34 of the judgment, the Hon''ble Supreme Court sum up the conclusions 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 SLP 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 SLP 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.
14. The same view has again been reiterated by the Hon''ble Supreme Court in the case of
15. From the pronouncement of the Hon''ble Apex Court, it is clear that dismissal at the stage of special leave by non-speaking order does not constitute res judicata and does not culminate in merger of the impugned decision and hence it would not by itself preclude the aggrieved party from invoking review jurisdiction. The Hon''ble Apex Court has clarified that rejection of SLP without notice even if the order is reasoned or speaking also does not culminate in merger of the impugned decision. In the light of the above ratio laid down by the Hon''ble Apex Court, the order passed in SLP being an order of dismissal simplicitor in as much as the Hon''ble Apex Court simply refused to grant leave to convert petition into appeal hence the doctrine of merger is not attracted for application.
16. In view of the above facts and discussions and the settled law on the subject, the dispute in the present writ petition clearly falls within the territorial jurisdiction of Lucknow Bench of this Court hence the writ petition was wrongly entertained and disposed of by this Court.
17. In view of the above, the judgment and order dated 1.5.2007 is liable to be recalled and is hereby recalled. The writ petition stands restored to its original number. The office is directed to remit the record of this case to the Lucknow Bench of this Court for disposal.
