MUNICIPAL CORPORATION OF DELHIversusYASHWANT SINGH NEGI

                        [2013] 2 S.C.R. 550


A            MUNICIPAL CORPORATION OF DELHI
                                 v.
                    YASHWANT SINGH NEGI
         (Special Leave Petition (Civil} No. 4616 of 2010)
                          APRIL 08, 2013
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        CONSTITUTION OF IND/A, 1950:

c        Art. 136 - SLP challenging the order passed by High
    Court in review petition and not the main judgment - Held: Not
    maintainable - Once the High Court has refused to entertain
    the review petition and the same was dismissed confirming
    the main order, there is no question of any merger and the
0   aggrieved person has to challenge the main order and not
    the order dismissing the review petition because on the
    dismissal of the review petition the principle of merger does
    not apply - Principle of merger.

       In the instant petition for special leave to appeal
E against the order passed by the High Court in a review
  petition, the respondent raised a preliminary objection
  that since the main judgment rendered by the High Court
  was not challenged, the SLP was not maintainable.

F       Dismissing the petition, the Court

       HELD: Once the High Court has refused to entertain
  the review petition and the same was dismissed
  confirming the main order, there is no question of any
  merger and the aggrieved person has to challenge the
G main order and not the order dismissing the review
  petition because on the dismissal of the review petition
  the principle of merger does not apply. Therefore, the
  instant SLP is not maintainable, since the main order was

H                                550
MUNICIPAL CORPORATION OF DELHI v. YASHWANT 551
                SINGH NEGI
not challenged but the order passed in the review petition       A
alone was challenged. [para 3-4) [553-A-B; 554-G-H]

   Eastern Coalfields Limited v. Dugal Kumar 2008 (11)
          =
SCR 369 (2008) 14 SCC 295 - held inapplicable.

      Manohar S/o Shankar Nale and Others v. Jaipalsing          B
S/o Shiv/a/sing Rajput and Others 2007 (12) SCR 364          =
(2008) 1 SCC 520 DSR Steel (Private) Limited v. State of
                                           =
Rajasthan and Others 2012 (5) SCR 583 (2012) 6 SCC 782
- relied on.
                                                                 c
                     Case Law Reference:
    2008 (11) SCR 369           held inapplicable para 2
     2007 (12) SCR 364         relied on            Para 3
    2012 (5) SCR 583           relied on            Para 3       D

     CIVIL APPELLATE JURISDICTION : Special Leave
Petition (Civil) No. 4616 of 2010
    From the Judgment and Order dated 11.09.2009 of the
High Court of Delhi at New Delhi in Review Petition No. 79 of    E
2009.
     Sanjiv Sen, Anirudh Gupta, P. Parmeswaran for the
Petitioner.
     Nidesh Gupta, Tarun Gupta, S. Janani for the Respondent.    F
    The Judgment of the Court was delivered by
     K.S. RADHAKRISHNAN, J. 1. This special leave petition
has been preferred against the order dated 11.09.2009 passed
by the High Court of Delhi in Review Petition No.79 of 2009 in   G
LPA No.1233 of 2006. Mr. Nidhesh Gupta, learned senior
counsel appearing for the respondent raised a preliminary
objection that the special leave petition is not maintainable
since the main judgment rendered by the High Court on
5.11.2008 in LPA No.1233 of 2006 was not challenged.
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    552       SUPREME COURT REPORTS                    [2013] 2 S.C.R.


A       2. Mr. Sanjiv Sen, learned counsel appearing for the
  petitioner placed considerable reliance on the judgment of this
  Court in Eastern Coalfields Limited v. Dugal Kumar (2008)
  14 sec 295 and submitted that the said judgment would apply
  to the facts of this case and the SLP is perfectly maintainable,
B even though the petitioner had not challenged the original order
  passed by the High Court on 5.11.2008. Learned counsel
  submitted that on dismissal of the review petition, the earlier
  order stood merged, in the order passed in the review petition,
  consequently, the SLP is perfectly maintainable. Considerable
c reliance was placed on paragraphs 21 and 22 of the above
  Judgment, which read as under:
          "21. Having heard the learned counsel for the parties, in
          our opinion, the appeal deserves to be partly allowed. So
          far as the technical objection raised by the Company with
D         regard to territorial jurisdiction of the High Court of Calcutta
          is· concerned, in our opinion, it would not be appropriate
          to set aside the order passed in favour of the writ
          petitioner on that ground. It is clear from the record that the
          writ petition came up for admission hearing on 6-9-1999
E         and the counsel for the appellant Company was present.
          Not only that he did not raise any objection as to territorial
          jurisdiction of the court, he expressly made a statement
          before the court to pass "usual order''. Accordingly, an
          order was passed directing the Company to allot "balance
          quantity of 1008 Mr' of coal to the writ petitioner, We are,
F
          therefore, unable to uphold the contention of the learned
          counsel for the appellant Company that the High Court of
          Calcutta had no territorial jurisdiction to entertain the y.trit
          petition.
G         22. But we are also unable to uphold the contention of the
          writ petitioner that the appeal is not maintainable since the
          Company had challenged the order passed in review
          petition dated 28-1-2002 and not the main order dated 17-
          2-2000 dismissing intra".court appeal."
H
MUNICIPAL CORPORATION OF DELHI v. YASHWANT 553
     SINGH NEGI [K.S. RADHAKRISHNAN, J.]
     3. We find ourselves unable to agree with the views            A
expressed by this Court in Eastern Coalfields Limited (supra).
In our view, once the High Court has refused to entertain the
review petition and the same was dismissed confirming the
main order, there is no question of any merger and the
aggrieved person has to challenge the main order and not the        8
order dismissing the review petition because on the dismissal
of the review petition the principle of merger does not apply. In
this connection reference may be made to the Judgment of this
Court in Manohar Slo Shankar Nale and others v. Jaipalsing
S/o Shiv/a/sing Rajput and Others (2008) 1 SCC 520 wherein          C
this Court has taken the view that once the review petition is
dismissed the doctrine of merger will have no application
whatsoever. This Court in DSR Steel (Private) Limited v. State
of Rajasthan and Others (2012) 6 sec 782 also examined the
various situations which might arise in relation to the orders
passed in review petitions. Reference to paragraphs 25, 25.1,       D
25.2 and 25.3 is made, which are extracted below for ready
reference:
     "25. Different situations may arise in relation to review
     petitions filed before a court or tribunal.
                                                                    E
    25.1. One of the situations could be where the review
    application is allowed, the decree or order passed by the
    court or tribunal is vacated and the appeal/proceedings in
    which the same is made are reheard and a fresh decree
    or order passed in the same. It is manifest that in such a      F
    situation the subsequent decree alone is appealable not
    because it is an order in review but because it is a decree
    that is passed in a proceeding after the earlier decree
    passed in the very same proceedings has been vacated
    by the court hearing the review petition.                       G
    25.2. The second situation that one can conceive of is
    where a court or tribunal makes an order in a review
    petition by which the review petition is allowed and the
    decree/order under review is reversed or modified. Such
    an order shall then be a composite order whereby the court      H
    554        SUPREME COURT REPORTS                    [2013] 2 S.C.R.


A          not only vacates the earlier decree or order but
           simultaneous with such vacation of the earlier decree or
           order, passes another decree or order or modifies the one
           made earlier. The decree so vacated reversed or modified
           is then the decree that is effective for the purposes of a
8          further appeal, if any, maintainable under law.
           25.3. The third situation with which we are concerned in
           the instant case is where the revision petition is filed before
           the Tribunal but the Tribunal refuses to interfere with the
           decree or order earlier made. It simply dismisses the
C          review petition. The decree in such a case suffers neither
           any reversal nor an alteration or modification. It is an order
           by which the review petition is dismissed thereby affirming
           the decree or order. In such a contingency there is no
           question of any merger and anyone aggrieved by the
o          decree or order of the Tribunal or .court shall have to
           challenge within the time $tipulated by law, the original
           decree and not the order dismissing the review petition.
           Time taken by a party in diligently pursing the remedy by
           way of review may in appropriate cases be excluded from
E          consideration while condoning the delay in the filing of the
           appeal, but such exclusion or condonation would not imply
           that there is a merger of the original decree and the order
           dismissing the review petition."
       4. We are in complete agreement with the principle laid
F down by this Court in DSR Steel (Private) Limited (supra) and
  applying the 3rd situation referred !o therein in paragraph 25.3,
  we are inclined to dismiss this special leave petition. We find
  force in the contention made by the learned senior counsel
  appearing for the respondent that this SLP is not maintainable,
G since the main order was not challenged but only the order
  passed in the review petition alone was challenged in this SLP.
  Hence, the SLP is, therefore, not maintainable and the same
  is dismissed.
    R.P.                                               SLP dismissed.
H