This article is written by Avneet Kaur. It offers a comprehensive analysis of the landmark case of Kunhayammed v. State of Kerala. The article provides an exhaustive exploration of the legal points involved along with various aspects of the judgement in the case. It also attempts to analyse the aftermath of the judgement in succeeding cases. 

Introduction 

The Supreme Court holds the final authority in the Indian judicial system. There is no other supreme authority which can scrutinise the decisions of the Supreme Court. The Supreme Court is also empowered to hear appeals against decisions of High Courts. In doing so, some discretion is also placed upon the Supreme Court to ensure speedier disposal of justice. Therefore, the Supreme Court does not usually resort to providing explanations while dismissing special leave petitions. Accordingly, a large number of special leave petitions are dismissed at the very outset. Henceforth, the question regarding the consequences of dismissal of such petitions and the doctrine of merger becomes an issue of exploration. 

The landmark judgement in the case of Kunhayammed v. State of Kerala (2000) provides valuable insights into this topic. Eventually, the case went around to decide the question of applicability of the doctrine of merger in different situations and the relation between special leave petitions along with the right to file for review of an order. 

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Details of the case

Name of the case

Kunhayammed and Ors. V. State of Kerala and Anr. (2000)

Date of judgement

19.07.2000

Parties to the case

Petitioner

Kunhayammed and Ors.

Respondent

State of Kerala and Anr.

Equivalent citations

AIR 2000 SUPREME COURT 2587, 2000 AIR SCW 2608, (2000) 9 JT 110 (SC)

Type of case

Special Leave Petition

Statutes involved

Laws involved

Bench

Justice K.T. Thomas, Justice D.P. Mohapatra, Justice R C Lahoti

Facts of Kunhayammed and others vs. State of Kerala and another (2000) 

The state of Kerala enacted the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the Kerala Private Forest Act) which vested in the Government the private forests in Kerala and the power to assign such land to farmers for cultivation. The Act was given retrospective operation from 10. 05. 1971. A large family filed a case before the Forest Tribunal, Kozhikode regarding 1020 acres of land area. The Forest Tribunal, constituted under the Kerala Private Forest Act, 1971 gave its order on 11. 08. 1982, which stated that the land in question was not vested in the government. 

An appeal was filed by the state of Kerala against the order of the Forest Tribunal before the High Court of Kerala. The High Court of Kerala dismissed the appeal on 17. 12. 1982. There was also no remedy available for appeal, revision or review against the order of the High Court. The State of Kerala further filed a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court. This petition was also dismissed on 18. 07.1983. 

Thereafter, an amendment was introduced in 1986 in the Kerala Private Forest Act by virtue of which Section 8C was enacted by giving it retrospective effect from 19.11.1983. The special provision incorporated through Section 8C allowed the government to ask the High Court to review an order passed under Section 8A of the Act if they had reason to believe that it was based on concessions made without proper authority or due to failure to provide relevant information. This provision was in effect for a specific period of time, from the start of the Kerala Private Forest Amendment Act, 1986 until 31.03.1987. 

Accordingly, the state of Kerala filed an application for review before the High Court of Kerala of its order made on 17.12.1982. Aggrieved by the application for review, the petitioners filed a Special leave petition before the Supreme Court. 

Issues raised in the case 

  • Whether the High Court of Kerala can entertain a prayer for review of its order passed on 17.12.1982, even if such a review has the potential to disturb or change the order previously passed on 18.07.1983 by the Supreme Court dismissing the Special leave petition filed by the state of Kerala.
  • When the orders of the High Court and the Supreme Court have merged together through affirmation, is it still possible to file a review petition against the order made by the High Court?

Arguments of the parties to Kunhayammed and others vs. State of Kerala and another (2000)

Appellant 

  • The counsel for the appellants put forward that the order of the High Court of Kerala dated 17.12.1982 had merged with the Supreme Court’s order dismissing the Special Leave Petition dated 18.07.1983. Therefore, the High Court’s order no longer exists in the eyes of the law any application for review of such an order is completely misguided. 
  • Thus the counsel placed reliance on the doctrine of merger which states that when a higher court passes an order on an appeal or petition, the order of the lower court or tribunal gets merged or incorporated into the order of the higher court. This implies that the lower court’s order no longer exists independently and is considered superseded by the higher court’s order. 
  • The appellants contended that the order of the Supreme Court dated 18.07.1983 affirms the order passed by the High Court of Kerala on 17.12.1982. Therefore, the High Court of Kerala cannot entertain the application for review of its order much less disturb the order in the exercise of review jurisdiction. The arguments were based on the contention that the application for review of the High Court’s order is not maintainable.

Respondent  

  • The counsel on behalf of the respondents contended that the order given by the High Court of Kerala on 17.12.1982 was faulty and that the right to ask for a review of the High Court’s order was backed by Section 8C of the Kerala Private Forest Act. The section conferred a right on the state of Kerala to ask for a review of an order of the High Court if the State Government had reason to believe that the order was either based on concessions or was given without proper authority or there was a lack of relevant information. 

Judgement in Kunhayammed and others vs. State of Kerala and another (2000)

The Supreme Court in this case held that the Kerala High Court has the power to review cases under Section 8C of the Kerala Private Forests Act 1971. The Supreme Court dismissed the appeal made by the state government of Kerala against the order of the High Court, as they found no valid reason to grant permission for the appeal.

Applicability of doctrine of merger

The Supreme Court held that the idea behind the doctrine of merger is that multiple orders or rulings cannot coexist when they have the same subject. When the lower court’s order is taken to a higher court for review, the finality of the lower court’s decision becomes uncertain. However, it must be noted that this doctrine does not have universal application. The application of the doctrine depends upon the jurisdiction of the higher court and the specific matters being challenged. The Supreme Court also referred to the decision in the case of Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatraya Bapat (1969), wherein the court said that for the doctrine of merger to apply, three conditions need to be met:

  •  The court should be exercising appellate or revisional jurisdiction, 
  •  The court should have issued a notice, and 
  •  There should have been a full hearing with both parties present. 

The Court also referred to a previous decision of this court in the case of U.J.S. Chopra vs. State of Bombay (1955). In this case, it was held that when a High Court pronounces a judgement in the exercise of its appellate or revisional jurisdiction after providing notice and conducting a full hearing with the presence of both parties, then that judgement replaces the judgement of the lower court. Therefore, the judgement of the High Court becomes the final judgement to be enforced by the lower courts in accordance with the law.

Maintainability of review petition 

The court further held that the doctrine of merger and the right to seek review of an order are interconnected concepts. The Supreme Court clarified that in the case of the merger of the order of the High Court into the order of the Supreme Court, one cannot seek review from the High Court because its order or judgement no longer exists. This can be the situation when a judgement or order from the High Court is brought before the Supreme Court for appeal through a special leave petition and the Supreme Court dismisses the special leave to appeal. 

However, if there is no merger of orders, the right to seek a review can still be availed. The Supreme Court also placed reliance on the decision in the case of State of Madras v. Madurai Mills Co. Ltd. (1966), wherein it was held that the doctrine of merger is not applicable in all situations whenever there are two orders, one passed in appellate or revisionary jurisdiction by an inferior court and other passed in appellate or revisionary jurisdiction by a superior court or tribunal. The applicability of the doctrine of merger depends upon the nature of the order and the jurisdiction conferred upon the concerned court. 

In such a situation, the order or judgement of the High Court still exists in the eyes of law and it also has jurisdiction to review the orders made by it. Being a Court of record, the High Court can also review its decisions. However, the High Court only considers an application for review only on its merits. 

Review jurisdiction in light of Order 47 Rule 1 of the CPC 1908

The Supreme Court held that in such a situation Order 47 Rule 1 of the Code of Civil Procedure, 1908 should be considered. This rule states that a person can file for review of a judgement or order if he/she feels aggrieved in the following situations- 

  • Where an application for filing an appeal against a decree or order is permissible but has not been filed, or 
  • Where no appeal is allowed against a decree or order, or 
  • By a decision made by a Court of Small Causes

The review can be sought on other various grounds also, such as the discovery of new and important evidence that was not within prior knowledge or could not be presented during the original proceedings, or due to an apparent mistake or error on the face of the record, or for any other valid reason. The application for review must be made to the court that gave the decree or order. The Supreme Court also held that the availability of the option of filing an appeal against the judgement or order should not act as a bar on the right to apply for review except the grounds for review are the same as those of the appellant.  

The Supreme Court in this case delved into the first scenario where an appeal is permissible against a decree or order but has not been filed yet. The Supreme Court relied on the judgement in the case of Tungabhadra Industries Ltd. v. The Govt. of A.P. (1964) in relation to Article 136 of the Constitution of India. In this case, an application for review was filed after the Supreme Court had rejected an application for special leave to appeal. The High Court dismissed the review application in consonance with the rejection of the Special Leave Petition by the Supreme Court. However, it was held that the requirements under Order 47 Rule 1(1) of the Civil Procedure Code would be satisfied if, on the date of filing the review application, no appeal had been filed. In such a situation, the High Court hearing the review petition has the authority to decide the application on its merits, regardless of the pending appeal. However, if the appeal is disposed of before the review application is decided, the High Court’s jurisdiction over the review petition ceases.

The Supreme Court therefore held that since in the present case,  no appeal had been filed when the review application was filed, the High Court had the power to consider the review application. 

If the review is granted before the appeal against the decree is disposed of, the decree in question will no longer exist, and the appeal will become irrelevant and will lack competence. It is not possible to file an appeal against a decree after a review of that decree has been granted. Order 47 Rule 1 makes it clear that a review can be filed even after the Special leave petition is dismissed. Therefore, it also includes a situation where special leave is not granted. Until special leave is granted, there is no appeal in the eyes of the law before the superior court.  A review can only be filed in the High Court before special leave is granted. The reason is that once the special leave to appeal is granted, the authority to consider the validity of the High Court’s order lies with the Supreme Court, and not with the High Court. 

Scope of Article 136 of the Constitution of India

Articles 132 to 136 of the Constitution of India empowers the Supreme Court to exercise its appellate jurisdiction. These Articles lay down the different situations in which appeals can be made before the Supreme Court. However, Article 136 is a unique provision through which the Supreme Court derives its extraordinary and wide-ranging jurisdiction. These Articles can be referred to as the residuary power of the Supreme Court to hear appeals in cases which are not covered in other Articles. The Supreme Court explained that the purpose of Article 136 is to override the restrictions imposed by previous Articles. This helps in giving unrestricted discretionary power to the Supreme Court to allow appeals in appropriate cases. However, it must be taken into consideration that Article 136 in no way confers a right of appeal on people rather it empowers the Supreme Court to allow the appeal or not based on its discretion and the merits of the case. 

Dual stage of a special leave petition

The Supreme Court held that in every case of entertaining an application for special leave to appeal under Article 136,  two steps are involved 

  •  Firstly, grant of permission to appeal.
  •  Secondly, hearing of the appeal.

After taking into consideration the arguments and merits of the case, the Supreme Court may either refuse to grant permission and dismiss the petition, either without the presence of the opposite party or after issuing notice. If the Apex Court grants permission, the petition will move onto the stage of appeal. Therefore, the legal position can be summarised through the following points-

  • When a petition for special leave to appeal lies before the Supreme Court, the first step is to consider whether permission should be granted or not. 
  • The decision to grant permission or not falls within the discretionary jurisdiction of the Supreme Court and not within its appellate dominion. 
  • If the petition is dismissed, it implies that the Supreme Court is of the view that the case is unsuitable and lacks ground for appeal.  
  • If permission is granted, it implies the beginning of the Supreme Court’s appellate jurisdiction. After grant of permission, the petitioner can proceed with the appeal before the Supreme Court. This leads the way for the appellate jurisdiction, thereby allowing both the petitioner and the respondent to face each other.
  • Moreover, even if a petition for special leave to appeal is filed,  the original judgement, decree, or order remains final and binding between the parties. However, once leave to appeal is granted, the finality of the original decision becomes uncertain and is put in jeopardy. However, it still holds power and is binding unless it’s considered null or the court issues a specific order to suspend its execution.

Dismissal at the stage of permission to Special Leave Petition by a non-speaking order

The Supreme Court held that when the Special Leave Petition is dismissed at the stage of application for permission to appeal without reasons, do not constitute res judicata and also does not lead to merger. The Supreme Court also referred to the case of Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr. (1978), where the Supreme Court had held that when a Special Leave Petition is dismissed by a non-speaking order without reasons, it does not imply res judicata. Rather, what can be inferred is that the need for a Special leave to appeal was not required in the case. 

Furthermore, the Supreme Court explained that the dismissal of a special leave petition under Article 136 against a tribunal’s order does not automatically prevent the filing of a writ petition under Article 226 against the order in question. The Supreme Court referred to a decision by the Madras High Court in The Management of W. India Match Co. Ltd. Vs. Industrial Tribunal (1958), where the High Court held that the right to seek leave to appeal to the Supreme Court under Article 136 is not the same as the right to appeal, and a High Court cannot reject an application under Article 226 on the basis that the petitioner has another remedy for approaching the Supreme Court under Article 136. The Supreme Court clarified that the statement of the Madras High Court is not entirely accurate.

The Supreme Court further explained that it is customary to consider a special leave petition under Article 136 of the Constitution only when there is a substantial question of law or fact of general importance or apparent injustice from the challenged order or judgement. Dismissing a special leave petition without providing reasons doesn’t imply that the Court has rejected the arguments of the petitioner. The Supreme Court held that it must be realised that due to the heavy workload, the Court often grants special leave in cases where the party can’t obtain effective relief through a High Court under Article 226. In such cases, the special leave petition is dismissed without explanation, however, it doesn’t prevent the party from seeking relief under Article 226. It would be unfair if the High Court refused relief solely based on the dismissal of the special leave petition. The Supreme Court also referred to the judgement in the case of  M/s. Rup Diamonds and others Vs. Union of India and others (1989), where the Supreme Court clarified that the mere rejection of a special leave petition cannot be considered as the Court’s endorsement of acceptance of the correctness of the decision being appealed against.

The Supreme Court also placed reliance on the judgement in the case of  Supreme Court Employees Welfare Association v. Union of India and Anr (1989), wherein it was said that when the Supreme Court dismisses a special leave petition and provides reasons under Article 136, that decision becomes binding under Article 141. But if the special leave petition is summarily dismissed without any reasons given, it doesn’t establish any law under Article 141. Therefore, when a special leave petition is dismissed without reason, it implies that the Supreme Court simply decided that it wasn’t a suitable case to grant special leave. 

Dismissal of Special Leave Petition by a speaking order

The Supreme Court held that dismissal of a special leave petition by a speaking order does not result in a merger. However, it might attract the application of the Rule of Discipline and Article 141 of the Constitution. The Supreme Court explained when a petition for leave to appeal is dismissed by the court, it can be done through a non-speaking order (without stating reasons) or a speaking order (with reasons). In the case of a non-speaking order, the Supreme Court’s order or decision doesn’t replace the original order or declare any new law. If the dismissal is backed by reasons, it still doesn’t result in a merger because the court is exercising discretionary jurisdiction, not appellate jurisdiction. However, the reasons stated in the order can be considered a declaration of law under Article 141 of the Constitution, which is binding on all courts and parties involved. The parties and the court or tribunal whose order was challenged are bound by the statement in the order based on the principle of judicial discipline and uniformity. 

Henceforth, in the present case, the Supreme Court held that the current case did not present any problems for resolution. The state of Kerala appealed previously against the High Court order before the Supreme Court, but their appeal was unsuccessful. The Supreme Court found no sufficient reasons to grant permission for the appeal. The order itself did not provide detailed explanations for the decision and was a non-speaking order dismissed on the basis of merits, but it basically means that the Court did not see a need to review the case. Significantly, the Kerala High Court’s order from 17.12.1982, can still be reviewed because it didn’t merge with the Supreme Court’s order from 18.07.1983. The Supreme Court held that the High Court of Kerala has the power to review such cases as empowered by Section 8C of the Kerala Private Forests Act. It is also worth noting that the constitutionality of this provision hasn’t been challenged. The appellant counsel made an attempt to raise this argument during the hearing, but it wasn’t successful since it hadn’t been raised before the High Court or in the petition filed before the Supreme Court. The Supreme Court declared the Kerala High Court’s approach to be reasonable and ordered to dismiss the appeal without cost. 

Critical analysis of Kunhayammed and others vs. State of Kerala and another (2000)

The detailed analysis of the implications of the judgement in the case of Kunhayammed v. State of Kerala can be inferred through the following points-

  • The Supreme Court in this judgement held that when a superior authority modifies, reverses, or affirms a decision made by a lower court, tribunal, or authority, the decision of the lower authority merges with the decision of the superior authority. The decision of the superior authority is the one that is effective and enforceable by law. However, the concept of merger in the context of superior and lower courts can be a bit complex. While it is correct that a decision made by a superior court generally takes precedence over the decision of a lower court, there can be some exceptions as well depending on the jurisdiction and subject matter. The doctrine of merger has its flaws, uncertainties and exceptions, and its application can be influenced by specific laws, regulations, and the particular circumstances of each case. 
  • The Supreme Court also emphasised that the doctrine of merger is not universally applicable. Its applicability depends on the nature of jurisdiction exercised by the superior authority and the subject matter of the particular case. The superior authority should have the power to reverse, modify, or affirm the order in question. The doctrine of merger can be applied to the exercise of appellate jurisdiction, not discretionary jurisdiction in deciding the special leave petition. Furthermore, it’s important to note that the doctrine of merger does not replace the challenged order with the decision of the higher court. Instead, it signifies that the decision of the higher court becomes binding and authoritative, while the decision of the lower court remains intact.
  • In this case, the Supreme Court of India examined several significant matters, the most fundamental of them being whether a review petition under Article 226 could be filed against a previous order of a High Court after the dismissal of a special leave petition (SLP) before the Supreme Court under Article 136. The Supreme Court held that a review petition could be filed in such circumstances, overriding previous judgments that suggested otherwise. The rationale behind this judgement was to ensure fairness and justice. The Supreme Court recognized that dismissing a special leave petition should not be considered a final determination of the rights of the parties involved and neither as exhaustion of all remedies. By allowing a review petition after the dismissal of a special leave petition, it would provide an opportunity for parties to seek redress if they believed there was an error or injustice in the earlier decision. The Supreme Court also recognized the importance of preserving the integrity and authority of the Supreme Court.

Laws discussed in Kunhayammed and others vs. State of Kerala and another (2000)

Kerala Private Forests (Vesting and Assignment) Act, 1971

The Kerala Private Forests (Vesting and Assignment) Act, 1971 has several provisions aimed at the management and conservation of private forests in Kerala. These provisions related to matters around private forests such as their classification, rights and obligations of the government, forest owners and assignees. One of the main features of the Act was that ownership and control of private forests in the state of Kerala was to be with the state government.  

Section 8A: It confers power on the state government to file an appeal to the High Court within 60 days of the date of the order made by the Forest Tribunal if the state does not see eye to eye with the decision. Upon receiving such an appeal, the High Court can either confirm or cancel the Tribunal’s decision or send it back to the Tribunal or make any other appropriate order. Any decision made by the High Court in such an appeal preferred under Section 8A is considered final. 

Section 8C:  It also allows the state government to file for review in certain cases despite the existence of any limitations. The Government can file an appeal against the decision of the Forest Tribunal if they have reason to believe that the same has been based on concessions or without the proper information. Additionally, in case of delay in obtaining a certified copy of the decision, the government can file an appeal.  Similarly, the government is also entitled to file an appeal against an order made by the High Court on the basis of the above grounds.

The controversial aspect of this provision is that it came into effect just after the Supreme Court dismissed the Special Leave Petition filed by the Government of Kerala. 

Order 47, Rule 1 of the Code of Civil Procedure, 1908

Order 47 Rule 1 of the Code of Civil Procedure, 1908 deals with the provisions for filing an application for review of a decree or order. This provision lists down the process and the situations under which a person can file for review of a judgement. A person can file for review in the following situations- 

  • If an appeal though has been allowed but not yet preferred. 
  • If no appeal is allowed for a decree or order
  • If a decision has been made on reference from the Court of Small Causes.

Apart from that, it must also be shown that the reason behind filing for review is either the discovery of new evidence that is material to the case, or there is any prima facie mistake or error, or any other valid reason. It further provides that an application for review should be made to the same Court which made the order in the first stance.  Therefore, the objective is to allow a way to correct mistakes and consider any new evidence that may impact the decision of the case. It is worth noting that the grant or rejection of the application depends upon the discretion of the court. The application can only be filed within the time limit as may be prescribed. 

Constitution of India, 1950

Several provisions of the Constitution of India were discussed in the Kunhayammed case such as Articles 136, 141 and 226. These Articles are significant provisions that grant certain powers and jurisdiction to different entities within the Indian legal system.

  • Article 136: This article empowers the Supreme Court of India with the discretionary power to grant special leave to appeal in a matter if there is any exceptional circumstance or a substantial question of law or fact is involved. However, the Supreme Court holds discretion in granting or rejecting a special leave to appeal. The time limit specified for filing a special leave to appeal is 90 days from the date of judgement or order against which appeal is sought. But if an application is filed after that, the Supreme Court may allow it if there is any exceptional circumstance justifying the delay. There are certain matters which remain outside the purview of Article 136 such as judgments, orders, sentences, and determinations passed by a Court or tribunal related to the armed forces. 
  • Article 141: This article lays the foundation of the Doctrine of precedents also known as stare decisis in the Indian legal system. This article establishes that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It means that the decisions and interpretations made by the Supreme Court in cases set legal precedents that lower courts must follow. However, the entire judgement of the Supreme Court is not binding. It is the rationale behind the judgement which should be taken into consideration while deciding a question regarding similar circumstances. 
  • Article 226: This article confers the power to the High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. These writs are essential tools for the protection of fundamental rights and the enforcement of the rule of law. The High Courts can use these writs to ensure that the actions of the government and its authorities are in compliance with the law. 

These constitutional provisions play a crucial role in upholding the principles of justice, ensuring uniformity in the application of law, and safeguarding the rights of individuals in India.

Conclusion 

The judgement in the case of Kunhayammed v State of Kerala was a landmark decision that had a significant impact on the Indian legal system. By allowing the filing of review petitions even after the dismissal of a special leave petition, the Supreme Court of India demonstrated a promise to ensure fairness and justice. This decision recognized the importance of providing an opportunity for parties to seek redress if they believed there was an error or injustice in the previous judgement. By allowing review petitions in such cases, the court showed its willingness to adapt and evolve the legal framework to better serve the interests of justice.

Conclusively, the judgement in the Kunhayammed case stands as a commitment to the evolving nature of the law. It serves as a precedent for future cases and underpins the notion that justice should not only be done but should also be seen to be done.

Frequently Asked Questions (FAQs)

What is a special leave petition?

It is a legal remedy available in India that allows persons aggrieved by any order, decision or judgement of any Court or tribunal to seek permission before the Supreme Court to appeal against such order, decision or judgement. Article 136 of the Constitution of India lays down the provision in this regard. However, this opportunity of asking for appeal is not available in case of any judgement, order, decree or determination relating to the armed forces.

What is the doctrine of merger?

The Doctrine of Merger is a legal principle that provides that when an appeal is filed against a lower court’s decision and the higher court reviews and passes its own judgement on the matter, the lower court’s decision is considered “merged”  into the higher court’s decision. The higher court’s order is the only operative order and the order of the lower court ceases to exist.

What are the two stages of a special leave petition?

In a Special Leave Petition (SLP), there are two stages involved. The first stage is the filing of the application requesting for permission to appeal itself. This is when the petitioner submits the petition to the Supreme Court, seeking special permission to appeal against a judgement or order of a lower court or tribunal. The second stage is the hearing of the Special leave to appeal. If the Supreme Court grants permission to hear the appeal, it will then proceed to review the case and make a decision on whether to affirm or override the lower court’s decision. 

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