[Gangadhara Palo v. Revenue Divisional Officer, (2011) (266) ELT 3 (SC)]
The main judgment of the High Court was dated 19th June, 2001 dismissing the writ petition of the appellant herein, the appellant thereafter filed a special leave petition to the Apex Court which was dismissed on 17th September, 2001.
The order of the Apex Court dismissing the special leave petition simply states “The special leave petition is dismissed”. Thus, the order gives no reasons.
Thereafter a review petition was filed before the High Court. The question arose as regards the maintainability of the review petition. The review petition was dismissed by the High Court.
On appeal to Supreme Court it was observed that it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really was whether the judgment of the High Court has merged into the judgment of the Supreme Court by the doctrine of merger or not.
When the Apex Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the Lower Court merges in to the judgment of the Higher Court. Hence, if some reasons, however meager, are given by the Apex Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of the Apex Court and after merger there is no judgment of the High Court. Hence, there can be no review of a judgment which does not even exist.
The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. One cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court.
A judgment which continues to exist can obviously be reviewed, though of course the scope of the review is limited to errors apparent on the face of the record, but it cannot be said that the review petition is not maintainable at all.
A precedent is a decision which lays down some principle of law. A mere stray observation of the Court, would not amount to a precedent. Thus, a stray observation of the Court while dismissing the SLP was not a precedent.
The power of review cannot be taken away as that has been conferred by the statute or the Constitution. The review petition was remanded back to the High Court to decide on merits in accordance with law.
