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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