Sunday, 8 January 2017

Whether special leave petition is maintainable if basic judgment is not challenged?

 The aforequoted passage has to be appositely understood. The three-Judge Bench has held that any legislation subordinate to the Constitution cannot whittle down or take away the jurisdiction and powers conferred on the constitutional courts of the country. The decisions which we have referred to earlier deal about the maintainability of the challenge to the order of review when the main order is not assailed. The real test is even if the order passed in review is set aside, the order that is not challenged cannot be set aside. The decision in Eastern Coalfields Limited (supra) has been rightly opined in Ripa Sarma's case, has been rendered in ignorance of the earlier judgments of co-equal strength. That apart, we are inclined to agree with the view in Ripa Sarma(supra) wherein it has been observed that the submission with regard to the merger of the main order with the order in review has been merely noticed in Eastern Coalfields Limited (supra) and not accepted. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though the decisions in Shanker Motiram Nale (supra) the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the court has curtailed the plenary jurisdiction Under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition.The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hard ly any necessity not to be guided by the said precedent.
Civil Appeal No. 2687 of 2006
Decided On: 22.01.2016
 Bussa Overseas and Properties (P) Ltd. and Ors.
 Union of India (UOI) and Ors.
Coram:Dipak Misra and Shiva Kirti Singh, JJ.
Citation:(2016) 4 SCC 696,2016(6) MHLJ694
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