STATE OF ASSAM Vs RIPA SARMA
Bench: SURINDER SINGH NIJJAR,M.Y. EQBAL
Case number: SLP(C) No.-002671-002671 / 2011
Diary number: 41883 / 2010
Advocates: CORPORATE LAW GROUP Vs
CHARU MATHUR
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ITEM NO.2 COURT NO.10 SECTION XIV
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil) No(s).2671/2011
(From the judgement and order dated 26/02/2010 in RP No.8/2010 of The HIGH COURT OF GUWAHATI ,ASSAM)
STATE OF ASSAM Petitioner(s)
VERSUS
RIPA SARMA Respondent(s)
(With appln(s) for c/delay in filing SLP,impleadment as party respondent and prayer for interim relief and office report )
Date: 20/02/2013 This Petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR HON'BLE MR. JUSTICE M.Y. EQBAL
For Petitioner(s) Mr. Avijit Roy, Adv.
for M/S Corporate Law Group,Adv. For Respondent(s)
Mr. Jayant Bhushan, Sr.Adv. Mr. Parthiv K. Goswami, Adv. Mr. S. Hari Haran, Adv.
Ms. Charu Mathur,Adv.
For the applicant Mr. J.M. Sharma, Adv. Mr. Raka B. Phookan, Adv. Ms. Neha Tandon Phookan, Adv.
Mr. Shailesh Madiyal ,Adv
UPON hearing counsel the Court made the following O R D E R
The special leave petition is dismissed in
terms of the signed order.
Since the special leave petition has been
dismissed, no orders are required to be passed on the
application for impleadment as party respondent.
(Sukhbir Paul Kaur) (Indu Bala Kapur) Court Master Court Master
(Signed reportable order is placed on the file)
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(CIVIL) NO. 2671 OF 2011
STATE OF ASSAM Appellant(s)
Versus
RIPA SARMA Respondent(s)
O R D E R
We have heard Mr. Avijit Roy, learned
counsel for the petitioner-State of Assam as well as
Mr. Jayant Bhushan, learned senior counsel appearing
for the respondent at length.
Mr. Jayant Bhushan has raised a preliminary
objection to the maintainability of the special leave
petition.
The petitioner herein has challenged the
order passed by the Division Bench of the Gauhati High
Court dated 26th February, 2010 dismissing the review
petition filed by the petitioner seeking review of the
judgment and order dated 20th November, 2007 rendered in
Writ Appeal No. 279 of 2007. The Division Bench has
dismissed the review petition on the ground that in
substance, the applicant seeks rehearing of Writ Appeal
No. 279 of 2007 on the basis of certain facts, which
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were not brought to the notice of the Court at the time
of hearing of the appeal.
It is not disputed before us that judgment
and order dated 20th November, 2007 passed in Writ Appeal
No. 279 of 2007 was not challenged by way of a special
leave petition before this Court. In fact, the
aforesaid judgment and order is not even challenged in
the present special leave petition. Therefore, the
special leave petition is restricted in its challenge,
to the order passed by the Division Bench dismissing the
review petition on 26th February, 2010.
In support of the submission that the
present special leave petition is not maintainable, Mr.
Bhushan has relied on three judgments of this Court. In
Shanker Motiram Nale versus Shiolalsing Gannusing Rajput
reported in (1994) 2 SCC 753, it has been held that the
special leave petition which has been filed against the
order rejecting the review petition would be barred
under Order 47 Rule 7 of the Civil Procedure Code, 1908.
The aforesaid judgment has been followed by this Court
in Suseel Finance and Leasing Company versus M. Lata and
others reported in (2004) 13 SCC 675. This Court held
that not only was it bound by the aforesaid judgment in
Shanker Motiram Nale case, but was also in agreement
with it. The law laid down in both the aforesaid
judgments was further reiterated in the case of M.N.
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Haider and others versus Kendriya Vidyalaya Sangathan
and others reported in (2004) 13 SCC 677.
In view of the above, the law seems to be
well settled that in the absence of a challenge to the
main judgment, the special leave petition filed
challenging only the subsequent order rejecting the
review petition, would not be maintainable.
Faced with this situation, Mr. Avijit Roy,
learned counsel appearing for the State of Assam seeks
to rely on a subsequent judgment of this Court in
Eastern Coalfields Limited versus Dugal Kumar reported
in (2008) 14 SCC 295. He has made a specific reference
to paragraphs 22 and 23 of the judgment. In paragraph
23 of the judgment, it is observed as follows :-
“It was submitted by the learned counsel for the appellant that when the review petition was dismissed, the order passed by the Division Bench in intra-court appeal got merged in the order of review petition. But even otherwise, when the order passed in the review petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writ petitioner.”
A perusal of the aforesaid paragraph would
clearly show that the judgments noticed by us in the
earlier part of the order were not brought to the notice
of the Court in Eastern Coalfields Limited case. This
apart, the submission with regard to the merger of the
main order with the order in review has been merely
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noticed, and not accepted. The preliminary objection
seems to have been rejected on the ground that since
leave has been granted in the special leave petition, it
would not be proper to dismiss the same without hearing
the parties.
In the present case, the preliminary
objection has been raised at the threshold. In
addition, it is an inescapable fact that the judgment
rendered in Eastern Coalfields Limited has been rendered
in ignorance of the earlier judgments of the Benches of
coequal strength, rendering the same per incuriam.
Therefore, it cannot be elevated to the status of
precedent. In view of the above, we accept the
preliminary objection raised by Mr. Jayant Bhushan,
learned senior counsel.
The special leave petition is, accordingly,
dismissed.
Since the special leave petition has been
dismissed, no orders are required to be passed on the
application for impleadment as party respondent.
...........................J. (SURINDER SINGH NIJJAR)
...........................J. (M.Y.EQBAL) New Delhi, February 20, 2013