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Judgment
The following are the brief facts leading to the filing of the above review application and the subsequent events: The review applicant has filed appeal No.8 of 2011 challenging the Environmental Clearance (EC) granted by the MoEF dated 12-02-2010 to the Damwe Lower HEP (1750 MW) Project in Lohit District of Arunachal Pradesh undertaken by M/s. Athena Damwe Power Private Limited. On conclusion of the arguments on 13-01-2015 the Tribunal has passed the following order in the open Court.
"We have heard the learned Counsel appearing for appellant as well as respondents in detail. We are satisfied that there are absolutely no merits on all the grounds raised by the learned Counsel appearing for appellant. Accordingly, appeal No.8 of 2011 stands dismissed. There is no order as to cost. Reasons for judgement to follow".
On the same day, namely 13-01-2015 elaborate reasoned judgement came to be passed. In fact, originally the said appeal was filed before the National Environmental Appellate Authority (NEAA), New Delhi, later transferred to the National Green Tribunal (NGT) and numbered as appeal No. 08 of 2011. The review applicant has filed review application No. 4 of 2015 against the said judgement dated 13-01-2015 in which the applicant has taken a preliminary objection that the Judgement dated 13-01-2015 was not a judgment in the eye of law for various reasons and therefore it is a nullity. Even though he has raised various other points for review, as the applicant has taken up the above said preliminary issue, we have heard the learned Counsel appearing for both sides on the preliminary issue in the review application and by an order dated 26-05-2015 rejected the preliminary submission and directed the review application to be posted for hearing on merit on 14th July 2015. On 14th July 2015, with the consent of the respective Counsel, the review application was adjourned to 12-08-2015 with the understanding that the matter will be continued on 13-08-2015 also, if required.
In the meantime, the applicant appears to have filed a regular Civil Appeal before the Hon'ble Supreme Court of India u/s. 22 of National Green Tribunal Act, 2010 on 30-07-2015 with the prayer "allow the appeal and set aside the judgement/order dated 13-01-2015 in Appeal No.08 of 2011 passed by the NGT, New Delhi and the Order dated 26-05-2015 in R.A No. 04 of 2015 passed by the NGT, Chennai on the preliminary question of maintainability of the order/Judgement dated 13-01-2015. He has filed an interlocutory application in CA (Diary) No. 25000/2015 praying for condonation of delay of 108 days in filing the Civil Appeal against the order of NGT dated 13-01-2015 passed in Appeal No.08 of 2011.
The Hon'ble Supreme Court of India while condoning the delay has dismissed the Civil appeals with certain observations. The order of the Hon'ble Supreme Court dated 28-08-2015 is as follows:
" 1. Delay condoned.
2.These appeals are directed against the judgements and orders passed by the National Green Tribunal, Principal Bench, New Delhi in Appeal No.8/2011, dated 13.01.2015 and review application No.04/2015, dated 26.05.2015.
3.Heard Shri. Sanjay Parikh, learned Counsel appearing for the appellants .
4.The civil appeals are dismissed.
5.However, the orders passed by the National Green Tribunal, Southern Zone, Chennai in Appeal No. 08/2011 and Review Application No.04/2015 in Appeal No. 08/2011 shall not be treated as precedent in any other case. 6.Certain observations made by the Tribunal, in our view, are contrary to the settled legal principles.
The question of law raised in the civil appeals are kept open to be agitated in an appropriate case".
It is the contention of the learned Counsel appearing for the review applicant, Mr. Ritwik Dutta that even though the prayer before the Hon'ble Supreme Court by the applicant as extracted above includes the challenge of Judgement/order dated 13-01- 2015, the challenge in respect of the order of the Tribunal dated 26-05-2015 in R. A No. 4 of 2015 only relates to the preliminary objection of maintainability of the order/ Judgement and therefore the Tribunal which has earlier adjourned the case for review after rejecting the maintainability should hear the review on merit. He has also submitted that even in the grounds of appeal, the applicant has restricted himself to the preliminary question of the legality or otherwise of the Judgement/order dated 13-01-2015 in appeal No. 8 of 2011 an therefore the dismissal of civil appeals by the Hon'ble Supreme Court should be construed as dismissal in respect of preliminary issue alone and therefore there is no bar on the part of this Tribunal in taking of the review application on merit.
Per Contra, it is the contention of Mr. ADN Rao, the learned Counsel appearing for the State of Arunachal Pradesh and also Mr. Taru Johri, learned Counsel appearing for the project proponent that when once the applicant has preferred appeals against the main judgement/order dated 13-01-2015 passed in appeal No.8 of 2011 and order dated 26-05-2015 passed in R.A.No. 4 of 2015 regarding the maintainability of the Judgement with a clear prayer for setting aside the order/judgement dated 13-01-2015 in appeal No. 8 of 2011 and the Hon'ble Supreme Court has dismissed both the appeals after condoning delay, there is no question of taking up the review again. According to Mr. A. D. N. Rao who would submit that propriety requires that when once the Appellate or Revisional forum takes a decision, the decision of the Subordinate Forum merges with that and it cannot be said that the matter is still pending before the Subordinate Forum. To substantiate his contention he would rely upon the Judgement of Hon'ble Supreme Court in Kunhayammaed and Ors. V. State of Kerala and Another, (2000) 6 SCC 359. It is his further submission that once the Superior Court has disposed of the list, it is the decree/ order of the superior Court which becomes final and thereafter there is no question of the Court's subordinate to pass any order either on review or otherwise. He also would rely upon various Judgement of the Hon'ble Supreme Court including Gobbandhu Bswal v. Krishna Chandra Mohanti and Ors, (1998) 4 SCC 447, State of Maharshtra and Another v. Prabhakar Bhikaji Ingle (1993) 3 SCC 463, and Sree Narayana Dharma Sanghom Trust v. Swami Prakasanandha and Ors. (1997) 6SCC 78, to substantiate his contention that when once a Special Leave Petition is filed and rejected, the party cannot go back to the Tribunal.
In the light of the above factual matrix and the rival contentions made by the learned Counsel, the point to be decided is as to whether the review application No. 4 of 2015 has to be proceeded with merit in spite of the dismissal of civil appeal by the Hon'ble Supreme Court dated 28-08-2015 against the Judgement/order dated 13-01-2015 in appeal No. 8 of 2011 and order dated 26-05-2015 in R.A. No 4 of 2015 on maintainability of the order by the NGT.
On the factual matrix, one more aspect that has to be considered is that both the brief orders narrated above as well as the detailed Judgement/order dated 13-01-2015 passed in appeal No. 8 of 2011 as against the EC granted to the project by the MoEF dated 12-02-2010, the applicant herein has filed an appeal No. 9 of 2010 before the NEAA at that time. By virtue of the Section 38(5) of NGT Act, after the constitution of NGT, the said appeal before the NEAA came to be transferred to the NGT on 18-10-2010 and numbered as appeal No. 08 of 2011 which was disposed on 13-01-2015 by dismissing the appeal. It is not in dispute that after dismissal of the said appeal, Review applicant has filed R.A No. 12 0f 2015 before the Principal Bench of NGT at New Delhi and there was a judicial order on 22-04-2015 to the effect that as the challenge relating to Forest Clearance (FC) in respect of the same project is pending before the South Zone Bench at Chennai it was submitted by the parties that the said appeals and review application can be decided by Southern Zone, hence this Tribunal heard the Review Application. By a subsequent order dated 24th April 2015, the Hon'ble first Bench of NGT, Principal Bench, New Delhi on the basis of joint request made by the learned Counsel appearing for the parties has directed to list the review application before the Southern Zone Bench observing that the matter was heard by one of us (Justice Dr. P. Jyothimani) who is presently presiding the Chennai Bench second Court. On such transfer, the review application came to be renumbered as R.A. No. 4 of 2015.
It is also not is dispute that when the review application No. 4 was taken up for hearing it was decided to hear the preliminary submission on behalf of the review applicant as to whether the Judgement/order dated 13-01-2015 is a judgement in the eye of law. After hearing the preliminary submission, this Tribunal by an order dated 26-05-2015 rejected the said preliminary submission and directed the review application to be heard on merit. In the mean time, as stated above, the review applicant has moved the Hon'ble Supreme Court by way of regular appeals against both the final judgement dated 13-01-2015 and order passed in R.A. No. 4 of 2015 dated 26-05-2015 and both appeals came to be dismissed on 28-08-2015 by the Hon'ble Supreme Court as elicited above.
It may be the case of the review applicant that the question of law that he has raised by filing the said appeals is relating to the preliminary issue predominantly, but the fact remains that his prayer before the Hon'ble Supreme Court was to set aside the judgement/order dated 13-01-2015 in appeal No. 8 of 2011 and the order passed in R.A.No.04of 2015 dated 26-05-2015 which of course relates to the preliminary question of maintainability of the order/judgement. It was in those circumstances the Hon'ble Supreme Court has dismissed both the Civil appeals specifically stating the order in appeal No. 8 of 2011 and R.A.No. 4 of 2015 shall not be treated as precedent in any other case. In such a categoric situation, we are of the view that as a Tribunal we cannot proceed with the review application as correctly submitted by the learned Counsel appearing for the State of Arunachal Pradesh that when once the Hon'ble Supreme Court has passed the final order, any order/judgement of the Tribunal dated 13-01-2015 or 26-05-2015 merge with the same and therefore one cannot presume that R.A.No. 4 of 2015 is still pending and the same has to proceed on merits.
If really it is the case of the review applicant that in both the appeals before the Hon'ble Supreme Court it was only the maintainability of the judgement/order dated 13-01-2015 was urged, it is for the applicant to have the same clarified. On a plain reading of the order of Hon'ble Supreme Court as elicited above it is clear that Hon'ble Supreme Court has confirmed the Judgement/order dated 13-01-2015 passed in appeal No. 8 of 2011 by the NGT, New Delhi.
The doctrine of merger and principles of propriety came to be enunciated by the Hon'ble Supreme Court in Kunhayammed and Ors. v. State of Kerala and Another, (2000) 6 SCC 359.That was the case where the Forest Tribunal held that the disputed land does not vest in the Government as per the provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971, the High Court had dismissed the State's appeal and as there was no statutory remedy, the State filed Special Leave Petition under Article 136 of the Constitution and the Hon'ble Supreme Court passed an order stating "Special Leave Petition is dismissed on merits". Thereafter, the Government filed an application for review in the High Court. The petitioner had raised maintainability of the review before the High Court which was rejected and directed the review to be posted for hearing on merits. It was against the said order that a special leave to appeal was moved before the Hon'ble Supreme Court on the ground that on the order by the Hon'ble Supreme Court in dismissing the SLP, the earlier order of the High Court dismissing the State's appeal got merged into the Supreme Court order and the High Court order ceased to exist and the petition for review thereof was misconceived and that the subsequent Supreme Court order dismissing SLP on merits amounts to affirmation of earlier order which cannot be reviewed by the High Court. Tracing the judicial opinion on the doctrine of merger the Supreme Court held:
"7.The doctrine of merger:
The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times".
The logic underlying the doctrine of merger was explained to be that there cannot be more than one decree governing the same subject matter at a given point of time. The Supreme Court held as follows:
"The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject- matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below".
While concluding, the Hon'ble Supreme Court has narrated as to how the order of the Hon'ble Supreme Court under Article 136 of the Constitution is different from exercising discretionary jurisdiction disposing of petition for special leave to appeal holding that the doctrine of merger will apply only in former case. The following conclusion part of the order of the Supreme Court is relevant.
"44.To sum up our conclusions are:-
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) ........
(iii) (iii) Doctrine of merger is not a doctrine of universal or unlimite application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution, the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter".
In this case, against the final judgement/order dated 13-01-2015 and order in Review application No.04 dated 26-05-2015, the Review petitioner has filed a regular appeal before the Hon'ble Supreme Court under Section 22 of NGT Act, 2010 which is as follows:
"22. Appeal to Supreme Court:-
Any person aggrieved by any award, decision or order of the Tribunal, may, file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision or order of the Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908:
Provided that the Supreme Court may entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal".
It is in that appeals the Hon'ble Supreme Court while dismissing, passed the above said order and therefore in our considered view by applying the dictum laid down by the Hon'ble Supreme Court in the judgement rendered in Kunhayammed case stated supra, the doctrine of merger will apply and there is nothing for this Tribunal to proceed with the review. In State of Maharashtra and Another v. Prabhakar Bhikaji Ingle reported in (1996) 3 SCC 463 it was held that the Tribunal under the Administrative Tribunal Act, 1985 cannot exercise its power of review after dismissal of the SLP by the Hon'ble Supreme Court even if the dismissal was by a non speaking order holding that such exercise of review power by the Tribunal would be deleterious to the Judicial discipline. The Hon'ble Supreme Court has held as follows:
"4.But in this case, when the self-same main order was confirmed by this Court, the question arises whether the Tribunal has had power under Order 47, Rule 1 CPC or any other appropriate provision under the Tribunals Act to review the orders passed by it and confirmed by this Court by refusing to grant leave. We find that the exercise of the review power is deleterious to the judicial discipline. Once this Court has confirmed the order passed by the Tribunal, that becomes final. Therefore, the Tribunal cannot have any power to review the previous order which stands merged with the order passed by this Court.
5.It is next contended by the learned counsel for the respondent that though the Tribunal was communicated with the order of this Court dated 25.8.95, it has thereafter passed the order. It would mean that though it had the knowledge of dismissal of the order passed by this Court, the Tribunal has exercised the power of review and that, therefore, it cannot be said to be illegal. We are wholly unable to appreciate the contention of the learned counsel. We could appreciate that if the Tribunal had no knowledge of dismissal of the SLP it might, in certain circumstances, review its earlier order, e.g., if it was found that the order was vitiated by any manifest error of law apparent on the face of the record. But having received the communication that this Court has already upheld its order, the Tribunal's exercise of power can be said to be audacious and without any judicial discipline. Under those circumstances, we do not think that the Tribunal is justified in reviewing its own order when this Court had confirmed the order passed earlier".
That was also the view expressed by the Hon'ble Supreme Court in Sree Narayana Dharama Sanghom trust v. Swami Prakasananda and Ors., reported in (1997) 6 SCC 78. The Hon'ble Supreme Court while referring to the power of review has held as follows;
"5.Therefore, once this Court has passed an order, the order passed by the High Court stands merged with the order passed by this Court. Thereafter, the High Court/Tribunal is devoid of the jurisdiction to a review the order. This question also was reiterated in Yogendra Narayan Choudhary V. Union of India [(1996) 7 SSC 1] thus:
"It is settled law that even the dismissal of special leave petition in limine without assigning reasons does not operate as res judicata. Under these circumstances, we are of the view that the view or the latter Bench of the CAT, Calcutta and of the Cuttack Bench are clearly consistent with the above reasoning. Therefore we do not find that these are fit cases warranting interferences".
6.Thus it is settled law that even the dismissal of special leave petition in limine operates as a final order between the parties and any order passed by the High Court/ Tribunal subsequently operates as a res judicata as far as the parties thereto. are concerned. It is true that in Indian Oil Corpn. Ltd. v. State of Bihar [(1386) 3 SCR at 558] this Court had pointed out that when the writ petition was dismissed by this Court in limine, the jurisdiction of the High Court under Article 226 is not precluded. The dismissal of the writ Petition under Article 32 does not operate as res judicata. That principle is entirely different from the review of an order under Order 47 Rule 1. Under these circumstances. we are of the view that the High Court is well justified in refusing to review the order passed in the revision. However, since the records have been called by the High Court and the matter is pending, the trial Court could not dispose of the matter within the time limit, specified earlier, by this Court.' Therefore, we cannot find fault with the trial Court for non-disposal of the matter. However, the civil court is directed to dispose of the suit as indicated earlier within six months from now".
Holding that the power of review granted to an Administrative Tribunal is similar to the power given to Civil Court under Order 47, Rule 1 of Code of Civil Procedure, 1908, the Hon'ble Supreme Court has reiterated that when once special leave petition is rejected, the party cannot go back to the Tribunal for review. The relevant portion of the order of Hon'ble supreme Court in Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors., reported in (1998) 4SCC 447 is as follows:
"8.The power of review which is granted to an Administrative Tribunal is similar to power given to a civil court under Order 47 Rule 1 of the Code of Civil procedure. Therefore, any person (inter alia) who considers himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred can apply for review under Order 47 Rule 1(1) (a). An appeal lies to this Court from a decision of the Administrative Tribunal. If an appeal is preferred, the power to review cannot be exercised. In the present case, a special leave petition to file an appeal was preferred from the judgment of the Tribunal in T.A.No. 1 of 1989 to this Court, and the special leave petition was rejected. As a result the order of the Tribunal in T.A.No. 1 of 1989 became final and binding. The rejection of a petition for leave to appeal under Article 136 of the petition for leave to appeal under Article 136 of the Constitution, in effect, amounts to declining to entertain an appeal, thus making the judgment and order appealed against final and binding. Once a special leave petition is filed and rejected, the party cannot go back to the Tribunal to apply for review. In the case of State of Maharashtra & Anr. v. Prabhakar Bhikaji Ingle ([1993] 3 S.C.C. 463) this Court held that when a special leave petition from the order of the Tribunal was dismissed by a non-speaking order, the main order was confirmed by the Supreme Court. Thereafter the power of review cannot be exercised by the tribunal. The Court said that the exercise of power of review by the Tribunal in such circumstances would be "deleterious to judicial discipline". Once the Supreme Court has confirmed the order passed by the Tribunal , that becomes final. In Sree Narayana Dharmasanghom Trust v. Swami Prakasananda & Ors. ([1997] 6. S.C.C. 78) the above decision was reaffirmed. This Court held that after an order of this Court dismissing the S.L.P. in limine from a judgment of the High Court, the High Court cannot review it. The Court followed the earlier judgment in State of Maharashtra & Anr. v. Prabhakar Bhikaji Ingle".
Therefore, considering the above said factual scenario in the light of established judicial precedent, we are unable to accept the contention of the learned Counsel appearing for the review applicant Mr. Ritwik Dutta and looking into any angle we are of the considered view that the review applicant is not entitled for hearing of the review on merits. Accordingly, the review application stands rejected.
There shall be no order as to coast.
Dated 10th February 2016