KUNHAYAMMED AND ORS versus STATE OF KERALA AND ANR.

Citation: [2000] SUPP. 1 S.C.R. 538 · Decided: 19-07-2000 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed
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Judgment (excerpt)

A 
KUNHA YAMMED AND ORS. 
v. 
ST A TE OF KERALA AND ANR. 
'I 
JULY 19, 2000 
B 
[K.T. THOMAS, D.P. MOHAPATRA AND R.C. LAHOTI, JJ.] 
Constitution of India, 1950: Articles 136 and 141. 
Special Leave Petition-Dismissal-Thereafter Review Petition filed in 
t 
c High Court-Permissibility of 
Special Leave Petition-Power of Supreme Court-Nature and scope 
of jurisdiction of Supreme Court-Pendency of Special leave Petition-Grant 
of Special Leave-Effect of 
D 
Kera/a Forest Tribunal-Order passed by-Appeal Preferred against 
order-Dismissal by High Court-No statutory remedy of appeal, Revision or 
review available against said order-Special Leave Petition filed in Supreme 
Court against said order-Dismissal of Special Leave petition on merits-
Thereafter Review Petition filed in the High Court-Held maintainable. 
E 
Code of Civil Procedure, 1908: 
Order 47-Rule I-Expression 'no appeal has been preferred' Scope 
of 
F 
Kera/a Private Forests (Vesting and Assignment) Act. 1971: Section 
8-C (as inserted by Amendment Act No. 36 of 1986)-Scope of 
Doctrine of Merger-Nature and scope of-Applicability of the 
Doctrine-Held it is not a Doctrine of Unlimited Application-Its applicability 
depends on the nature <?(Jurisdiction exercised by the superior forum and the 
G subject matter of challenge. 
Practice and procedure-Appeal-Raising fresh plea-Permissibility 
of 
The Forest Tribunal constituted under the provisions of the Kerala 
H Private Forests (Vesting and Assignment) Act, 1971 passed an order dated 
.,__ 
538 
KUN HAY AMMED v. STA TE 
539 
. 
11.8.1982 holding that the land in question did not vest in the Government. A 
Appeal preferred by the State of Keral:i before the High Court was dismissed 
on 17.12.1982. As there was no statutory remedy of appeal, revision or review 
provided against the order of the High Court the State filed a special leave 
·1 
petition before the Supreme Court. By its order dated 18.7.1983 Supreme 
Court dismissed the petition on merits. By Amendment Act No. 36of1986 
Section SC was inserted in the 1971 Act giving it a retrospective effect from B 
19.11.1983. This Section empowered the Government to file appeal or 
application for review in certain cases. In January, 1984 State of Kerala filed 
an application before the Kerala High Court ~king review of the order dated 
17.12.1982. On behalfofthe petitioners a preliminary objection was raised 
as to the maintainability of the review petition. By its order dated 14.12.1995 C 
the High Court rejected the preliminary objection and directed the review 
petition to be posted for hearing on merits. Against the said order petitioners 
sought for leave to appeal to this Court which was granted on 16.9.1996. 
On behalf of the applicant it was contended that (i) the order of the High 
Court dated 17.12.1982 having merged into the order of this Court dated D 
18.7.1983, the order of the High Court had ceased to exist in the eye of law 
and therefore an application seeking review of the order dated 17.12.1982 
before the High Court is entirely misconceived; (ii) the order dated 18.7.1983 
passed by this Court amounts to affirmation of the order dated 17.12.1982 
passed by the High Court and therefore the High Court cannot entertain a E 
prayer for review of its onler much less disturb the order in exercise of review 
jurisdiction. 
Dismissing the appeal, this Court 
HELD : 1. No fault can be found with the approach of the High Court In F 
the instant case the earlier order of the High Court was sought to be subjected 
to exercise of appellate jurisdiction of Supreme Court by the State ofKerala 
wherein it did not succeed. The prayer contained in the petition seeking leave 
to appeal to this Court was found devoid of any merits and hence dismissed. 
The order is a non-speaking and unreasoned order. All that can be spelled G 
out is that the Court was not convinced of the need for exercising its appellate 
jurisdiction. The order of the High Court dated 17.12.1982 did not merge in 
the onlerdated 18.7.1983 passed by this Court. So it is available to be reviewed 
by the High Court. Moreover such a right of review is now statutorily 
conferred on the High Court by sub-Section (2) of Section SC of the Kerala 
Act. [566-D-El 
H 
540 
SUPREME COURT REPORTS [2000) SUPP. I S.C.R. 
A 
2. Article 136 of the Constitution is a special jurisdiction conferred on 
the Supreme Court which is sweeping in its nature. It is a residuary power 
in the sense that it confers ad\llpp
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