Bussa Overseas And Properties Private Limited And Another v. Union Of India And Another

Dipak Misra, J.— The present appeal is directed against the judgment and order dated 14-9-2004 passed by the Division Bench of the High Court of Judicature at Bombay in Bussa Overseas & Properties (P) Ltd. v. Union of India whereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review.

2. The facts lie in a narrow compass: the appellants filed an application for refund of excess provisional customs duty amounting to Rs 39,71,412 which was claimed under Section 18(2) of the Customs Act, 1962 (for brevity “the Act”). After the application was submitted, the second respondent i.e. Assistant Collector of Customs by the letter dated 1-6-1992 communicated that the claim of the appellants was filed under the provisions of Section 27(2) of the Act and it was required to comply with the formalities envisaged under the said provision. The appellants reiterated their stand that Section 27(2) was not applicable and prayed for refund of the amount along with interest. However, as nothing effective ensued, the appellants, left with no option, filed a writ petition before the High Court of Bombay assailing the memo dated 23-12-1991 and the letter dated 1-6-1992 which had required the appellants to apply for refund under Section 27(2) of the Act. During the pendency of the writ petition, the second respondent passed an ex parte order dated 4-12-1992 dismissing the claim of the refund under Section 27 of the Act and opined that the claim was inadmissible.

3. In the meantime, as the factual matrix would undrape, the Act was amended and Explanations were added to Section 27 of the Act. Placing reliance on the various aspects it was highlighted before the Division Bench of the High Court that the rejection of the application for refund was absolutely unsustainable. It was also urged that the refund was rightly claimed under Section 18(2)(a) of the Act inasmuch as Section 27 was remotely not applicable.

4. The main plank of submission before the High Court was that the assessment was provisional and hence, it remained provisional for all purposes and on finalisation of assessment under Section 18(2) of the Act if refund is due, then it was obligatory on the part of the Customs Authorities to refund the amount without applying the provisions contained in Section 27 of the Act. To buttress the said submission, reliance was placed on CCE v. India Tyre and Rubber Co. Ltd. (1997) 94 ELT 495 (Mad) and Hindustan Metal Pressing Works v. CCE (2003) 3 SCC 559, (2003) 153 ELT 11.

5. The High Court appreciating the factual matrix and the legal submissions came 2003 SCC OnLine Bom 896, (2004) 2 Bom CR 123 to hold as follows: (Bussa Overseas and Properties case 2003 SCC OnLine Bom 896, (2004) 2 Bom CR 123, SCC OnLine Bom para 43)

“43. … while exercising the writ jurisdiction, if the writ court finds that any direction to refund results in unjust enrichment to the petitioners, then it is open to the writ court to decline to exercise its writ jurisdiction, even though the petitioner has a right to obtain refund. This reasoning of ours is supported by the Full Bench decision of this Court in New India Industries Ltd. v. Union of India 1989 SCC OnLine Bom 272, (1990) 1 Bom CR 515 as well as the decision of the Apex Court in Mafatlal Industries Ltd. (1997) 5 SCC 536, (1997) 89 ELT 247 (supra at para 95). In the present case, admittedly, the petitioners have passed on the incidence of duty to the customers and have recovered the amount due to them. In this view of the matter, we decline to issue writ in favour of the petitioners.”

Being of the aforesaid view, the High Court dismissed the writ petition. An application for review was filed which met with its Waterloo being barred by limitation and also being devoid of substance.

6. Mr Yashank Adhyaru, learned Senior Counsel for the respondents has raised a preliminary objection that the main order, that is, the order passed in the writ petition having not been assailed, the challenge only to the order passed in review is not tenable; and, therefore, the appeal deserves to be dismissed as not maintainable. It is also contended by him that Section 27 of the Act refers to refund of duty paid pursuant to an order of assessment and the term “assessment” is defined under Section 2(2) of the Act to include provisional assessment and, therefore, the application is required to be made under Section 27 for refund including the refund of duty paid under the provisional assessment. On that basis it is canvassed that the authorities were justified in insisting upon the appellants to apply for refund under Section 27 of the Act. On behalf of the Revenue reliance has been placed on the decisions in Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, (1997) 89 ELT 247, Union of India v. Jain Spinners Ltd. (1992) 4 SCC 389, (1992) 61 ELT 321, Alcatel Modi Net Works Systems v. Commr. of Customs (2000) 117 ELT 522 (Tri) and Kunhayammed v. State of Kerala (2000) 6 SCC 359, (2001) 129 ELT 11.

7. Mr Kavin Gulati, learned Senior Counsel appearing for the appellants would submit that in view of the trend of recent decisions, namely, Shanker Motiram Nale v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753, Suseel Finance & Leasing Co. v. M. Lata (2004) 13 SCC 675, M.N. Haider v. Kendriya Vidyalaya Sangathan (2004) 13 SCC 677, Shiv Charan Singh v. State of Punjab (2007) 15 SCC 370, Ravi v. State (2007) 15 SCC 372, Vinod Kapoor v. State of Goa (2012) 12 SCC 378, State of Assam v. Ripa Sarma (2013) 3 SCC 63 and Sandhya Educational Society v. Union of India (2014) 7 SCC 701, the stance set forth by the respondents may deserve acceptation, but the aforesaid authorities have ignored the earlier larger Bench decisions rendered in Durga Shankar Mehta v. Raghuraj Singh AIR 1954 SC 520, (1955) 1 SCR 267 and Thungabhadra Industries Ltd. v. State of A.P. AIR 1964 SC 1372, (1964) 5 SCR 174 and hence, they are not binding precedents.

8. The learned Senior Counsel has also drawn inspiration from Mahendra Saree Emporium (2) v. G.V. Srinivasa Murthy (2005) 1 SCC 481 to bolster the stand that the power under Article 136 of the Constitution of India being relatable to plenary jurisdiction conferred under the Constitution cannot be curtailed by the ordinary legislation. It is the submission of Mr Gulati that the subsequent decisions have been guided by the provisions contained in the Code of Civil Procedure though the stipulations therein cannot control the exercise of the jurisdiction under Article 136 of the Constitution.

9. First, we shall deal with the preliminary objection, for if we accept the same, the appeal would fail on the ground of maintainability and there will be no necessity to advert to the controversy on merits.

10. In Durga Shankar Mehta AIR 1954 SC 520, (1955) 1 SCR 267, the Constitution Bench was dealing with the legal acceptability of the order passed by the Election Tribunal under Section 100(1)(c) of the Representation of the People Act, 1951. A preliminary objection was raised challenging the competency of the appeal. It was contended by the learned counsel for the respondent therein that Article 329(b) of the Constitution ousts the jurisdiction of all the ordinary courts in election disputes and provides expressly that no election to either House of Parliament or to either House of the Legislature of a State shall be called in question, except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature, and therefore, there can be no challenge to the validity of an election except by way of an election petition. It was further urged that the jurisdiction that was created in the Election Tribunal was a special jurisdiction which could be invoked by an aggrieved party only by means of an election petition and the decision of the Tribunal was final and conclusive, and, therefore, this Court could not interfere with the said final decision by exercising power under Article 136 of the Constitution. Thus, emphasis was placed on the finality of the decision rendered by the Election Tribunal.

11. Dealing with the said preliminary objection, the Constitution Bench opined thus: (Durga Shankar Mehta case AIR 1954 SC 520, (1955) 1 SCR 267, AIR p. 522, para 4)

“4. … The powers given by Article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way.

Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this Court can exercise in the matter of granting special leave under Article 136 of the Constitution.”

Elaborating further, the larger Bench proceeded to state that there was no prohibition of the exercise of powers by the Supreme Court in proper cases under Article 136 of the Constitution against the decision or determination of an Election Tribunal which like all other judicial tribunals comes within the purview of the said Article.

12. The aforesaid decision in Durga Shankar Mehta case AIR 1954 SC 520, (1955) 1 SCR 267, as is evident, deals with the ambit and sweep of the power exercised by this Court under Article 136 of the Constitution. The larger Bench has expressed the view that it is a plenary jurisdiction and it cannot be taken away or abridged by the Representation of the People Act, 1951. The preliminary objection raised therein has to be carefully appreciated. The submission was that the Supreme Court did not have jurisdiction to hear an appeal against the order of an Election Tribunal. In our considered opinion, the said authority does not lend any assistance to the principle which is sought to be canvassed by the learned counsel for the appellants, for there is discussion with regard to the plenary jurisdiction of this Court and ouster of jurisdiction by ordinary law. That apart, it has to be kept in mind that the subsequent decisions have opined that the special leave petition under Section 136 is not maintainable and they have not ignored the fundamental facet of the plenary jurisdiction of this Court. We will be dwelling upon the said aspect at a later stage while we will be adverting to the principle stated in the subsequent authorities.

13. In Thungabhadra Industries Ltd. AIR 1964 SC 1372, (1964) 5 SCR 174, the question arose whether the common order passed by the High Court of Andhra Pradesh rejecting the applications to review an earlier order 1955 SCC OnLine AP 29, AIR 1955 AP 257 passed by that Court was correct on the facts of the case. The three-Judge Bench stated the facts, adverted to the concept of review jurisdiction as envisaged under Order 47 Rule 1 of the Civil Procedure Code and thereafter took note of the objection raised by the learned counsel for the respondent therein urging that leave granted by this Court should be revoked. The Court did not permit the respondent to raise the preliminary objection primarily on two reasons, namely, the special leave was granted after notice to the respondent and therefore after hearing the respondent as to any objection to the maintainability of the appeal or to the granting of special leave. It was further observed that the statement of the case filed on behalf of the respondent did not disclose any ground upon which the leave granted should be revoked. The three-Judge Bench in that context observed thus: (Thungabhadra Industries Ltd. case AIR 1964 SC 1372, (1964) 5 SCR 174, AIR p. 1375, para 6)

“6. … any ground in relation to these matters should have been urged at that stage and except possibly in some extraordinary cases where the ground urged happens to arise subsequent to the grant of the special leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care; except in such circumstances this Court will not permit the respondent to urge any argument regarding the correctness of the order of the Court granting special leave. Indeed, the very object of issuing notice to the respondent before the grant of leave is to ensure that the latter is afforded an opportunity to bring to the notice of the Court any grounds upon which leave should be refused and the purpose of the rule would be frustrated if the respondent were permitted to urge at a later stage—at the stage of the hearing of the appeal and long after the appellant has incurred all the costs—that the leave granted after notice to him should be revoked on a ground which was available to him when the application for special leave was heard. This apart, even the statement of the case filed on behalf of the respondent does not disclose any ground upon which the leave granted should be revoked; nor, of course, does it make any prayer seeking such relief.”

14. Relying on the aforesaid passage in Thungabhadra Industries Ltd. case AIR 1964 SC 1372, (1964) 5 SCR 174, it is submitted by Mr Gulati that stage for raising the issue as to maintainability is over. Before we analyse the ratio of the said decision, it is desirable to take note of the judgments that have come into existence in the meantime.

15. In Shanker Motiram Nale (1994) 2 SCC 753, a two-Judge Bench has opined that an appeal against the order rejecting the application for review of a judgment and decree passed by the learned Single Judge is not appealable as appeal is not against the basic judgment. To arrive at the said conclusion, the Court has referred to Order 47 Rule 7 of the Code of Civil Procedure, 1908 that bars an appeal against the order of the Court rejecting the review.

16. In Suseel Finance & Leasing Co. (2004) 13 SCC 675, while dealing with the special leave petition preferred against the rejection of review petition without assailing the main judgment, the Court referred to the decision in Shanker Motiram Nale (1994) 2 SCC 753 and concurred with the said view. In that context, the two-Judge Bench referred to the decisions in Green View Tea & Industries v. Collector (2004) 4 SCC 122 and K. Rajamouli v. A.V.K.N. Swamy (2001) 5 SCC 37 and opined that: (Suseel Finance & Leasing Co. case (2004) 13 SCC 675)

“3. … We find that in these two cases the question whether a special leave petition was maintainable against an order rejecting a review petition, was not considered at all. In these cases, the question was whether special leave petition was barred by principles of res judicata. It was held that special leave petition was not barred by principles of res judicata. In neither of these cases has reference been made to the abovementioned judgment of this Court in Shanker Motiram Nale case (1994) 2 SCC 753. In both those cases it has been held that a special leave petition is maintainable only in the context of it not being barred on principles of res judicata. In both these cases the question whether a special leave petition is against an order disposing of a review petition was not considered at all. These cases therefore have no relevance at all.”

17. In M.N. Haider (2004) 13 SCC 677, relying on earlier decisions, it has been held that once the special leave petition is not maintainable no orders/judgments can be passed thereon except to dismiss the same.

18. In Shiv Charan Singh (2007) 15 SCC 370, a two-Judge Bench was dealing with an appeal challenging an order of review. Relying on the decision in Shanker Motiram Nale (1994) 2 SCC 753, this Court dismissed the appeal.

19. In Vinod Kapoor (2012) 12 SCC 378, it has been held thus:

“11. Moreover, on the High Court rejecting the application for review of the appellant, the order rejecting the application for review is not appealable by virtue of the principle in Order 47 Rule 7 CPC. In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753, Suseel Finance & Leasing Co. v. M. Lata (2004) 13 SCC 675 and M.N. Haider v. Kendriya Vidyalaya Sangathan (2004) 13 SCC 677 cited by the learned counsel for Respondent 8, this Court has consistently held that an appeal by way of special leave petition under Article 136 of the Constitution is not maintainable against the order rejecting an application for review in view of the provisions of Order 47 Rule 7 CPC.

12. There is nothing in the decisions cited by the appellant to show that this Court has taken a view different from the view taken in Abhishek Malviya v. Welfare Commr. (2008) 3 SCC 108 with regard to maintainability of an appeal by way of special leave under Article 136 of the Constitution against an order of the High Court after an earlier special leave petition against the same order had been withdrawn without any liberty to file a fresh special leave petition. Similarly, there is nothing in the decisions cited by the appellant to show that this Court has taken a view that against the order of the High Court rejecting an application for review, an appeal by way of special leave under Article 136 of the Constitution is maintainable.”

20. In Ripa Sarma (2013) 3 SCC 63, the main judgment and order was not challenged before this Court. The challenge was to the order 2010 SCC OnLine Gau 326 passed in the review petition. On behalf of the respondent, a preliminary objection was raised with regard to maintainability of the special leave petition. On behalf of the petitioner, reliance was placed on Eastern Coalfields Ltd. v. Dugal Kumar (2008) 14 SCC 295 wherein it has been observed: (Ripa Sarma case (2013) 3 SCC 63)

“6. … ‘23. 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.’ (Dugal Kumar case (2008) 14 SCC 295)”

21. The two-Judge Bench in Ripa Sarma (2013) 3 SCC 63, while dealing with the said observations, opined that the decisions of this Court in Shanker Motiram Nale (1994) 2 SCC 753, Suseel Finance & Leasing Co. (2004) 13 SCC 675 and M.N. Haider (2004) 13 SCC 677 were not brought to the notice of the Court and, on that foundation proceeded to state as follows: (Ripa Sarma case (2013) 3 SCC 63)

“6. … This apart, the submission with regard to the merger of the main order with the order in review has been merely 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.”

And again: (Ripa Sarma case (2013) 3 SCC 63)

“7. 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 Ltd. (2008) 14 SCC 295 has been rendered in ignorance of the earlier judgments of the Benches of co-equal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent.”

22. Recently in Sandhya Educational Society (2014) 7 SCC 701, the Court referred to the decision in Vinod Kapoor (2012) 12 SCC 378 and opined thus:

“16. This Court in Vinod Kapoor v. State of Goa (2012) 12 SCC 378, has categorically observed that once the special leave petition is dismissed as withdrawn without obtaining appropriate permission to file a special leave petition once over again after exhausting the remedy of review petition before the High Court, the same is not maintainable.”

23. Having noticed the aforesaid pronouncements, we may now advert to the authority in Thungabhadra Industries Ltd. AIR 1964 SC 1372, (1964) 5 SCR 174 The reasons ascribed therein are twofold, namely, no objection had been taken at the initial stage as a consequence of which costs had been incurred by the appellant; and further no stand had been taken in the statement of the case. In our view, the decision has to be read in entirety to appreciate why the three-Judge Bench expressed the said view. The Court itself had made it clear that it might add that the matter mentioned by the learned counsel for the respondent in the said respect, even if urged at the hearing of the special leave petition would not have materially assisted him in resisting the grant of special leave. To appreciate the said observation in proper perspective, we may reproduce the factual backdrop and the analysis made therein: (AIR pp. 1375-76, para 6)

“6. … The point he desired to urge was that in the petition for special leave the appellant had averred that the decision of this Court reversing the judgment of the High Court in Tungabhadra Industries Ltd. v. CTO 1955 SCC OnLine AP 29, AIR 1955 AP 257 had been brought to the notice of the High Court, but that this statement must be erroneous or untrue for two reasons: (1) this is not referred to in the order now under appeal, and (2) the decision of this Court was not reported in any of the law reports—official or unofficial—till long after January 1961 when the petition for review was heard. It is manifest that neither of the two circumstances would by itself prove the untruth of the averment in the special leave petition. The learned Judges might well have thought that the decision had no material bearing on the only point that arose for consideration before them viz. whether their order of September 1959 was or was not vitiated by error of the sort which brought it within Order 47 Rule 1 of the Civil Procedure Code. It is obvious that so viewed, it would not have any relevance. As regards the other point, the appellant did not have need to wait for a report of the case in the Law Reports but might very well have produced a copy of the judgment of this Court—and being a party to the proceeding here it is improbable that it had not a copy, so that its statement that it drew the attention of the Court to the decision is not proved to be false by the decision not being reported till long after January 1961. The oral application for revoking the leave granted is therefore rejected as entirely devoid of substance.”

24. The aforesaid decision in Thungabhadra Industries Ltd. case AIR 1964 SC 1372, (1964) 5 SCR 174 when properly appreciated clearly reveals that it pertains to the stage when objection is to be taken. It does not lay down that a special leave petition against a review petition is maintainable or not. The focus on the stage of taking objection is fact-centric but not principle-oriented. To elaborate, the said decision does not lay down as a principle that the Court is bereft of power to hear on maintainability. If we understand the view expressed therein, it can be said that the Court has been guided by the concept of propriety. In this regard, we may reproduce the statement of law made by Lord Halsbury in Quinn v. Leathem 1901 AC 495, (1900-03) All ER Rep 1 (HL): (AC p. 506)

“… there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”

25. In Krishena Kumar v. Union of India (1990) 4 SCC 207, (1990) 14 ATC 846 the Constitution Bench, while appreciating the concept of ratio decidendi, adverted to the principles stated in Caledonian Railway Co. v. Walker's Trustees (1882) LR 7 AC 259, (1881-85) All ER Rep 592 and Quinn 1901 AC 495, (1900-03) All ER Rep 1 (HL) and observations made by Sir Frederick Pollock and thereafter laid down thus: (Krishena Kumar case (1990) 4 SCC 207, (1990) 14 ATC 846)

“20. … The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or Judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn., Vol. 26, Para 573):

‘573. Ratio decidendi.— … The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding, but, if it is not clear, it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.’”

26. Viewed in the backdrop of the factual score in entirety, we are of the considered opinion that the decision in Thungabhadra Industries Ltd. AIR 1964 SC 1372, (1964) 5 SCR 174 has to be confined to the facts of the said case.

27. Earlier we have stated that we will refer to the principles stated in Durga Shankar Mehta case AIR 1954 SC 520, (1955) 1 SCR 267. The said authority deals with width of power conferred under Article 136. It is submitted by Mr Gulati that the said power is of great magnitude and cannot be controlled by any statute. It has been held in Durga Shankar Mehta AIR 1954 SC 520, (1955) 1 SCR 267 that it is a plenary jurisdiction. In Mahendra Saree Emporium (2) (2005) 1 SCC 481, a three-Judge Bench, in the context of power under Article 136, has held thus:

“9. The jurisdiction conferred on this Court by Article 136 of the Constitution is a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by court or tribunal in any case or matter and the jurisdiction can be exercised in spite of other specific provisions for appeal contained in the Constitution or other laws. This Article confers on the Supreme Court special or residuary powers which are exercisable outside the purview of the ordinary laws in cases where the needs of justice demand interference by the Supreme Court [see Constitution Bench decisions in Durga Shankar Mehta v. Raghuraj Singh AIR 1954 SC 520, (1955) 1 SCR 267 and Union Carbide Corpn. v. Union of India (1991) 4 SCC 584 (SCC para 58)]. In Durga Shankar Mehta case AIR 1954 SC 520, (1955) 1 SCR 267 the Constitution Bench held that Section 105 of the Representation of the People Act, 1951 which gives finality to the decision of the Election Tribunal has the effect of giving finality so far as that Act is concerned and the fact that it does not provide for any further appeal cannot cut down, or have an overriding effect on, the powers which the Supreme Court can exercise by virtue of Article 136 of the Constitution. The constitutional jurisdiction conferred by Article 136 cannot be limited or taken away by any legislation subordinate to the Constitution. This view finds support from the Constitution Bench decision of this Court in S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124, (1987) 2 ATC 82 and the recent decision of this Court in Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675. In Surya Dev Rai case (2003) 6 SCC 675 this Court has on a review of several authorities held that any legislation subordinate to the Constitution cannot whittle down, much less take away, the jurisdiction and powers conferred on the constitutional courts of the country.”

28. The aforequoted passage in Mahendra Saree Emporium (2) case (2005) 1 SCC 481 has to be appositely understood. The three-Judge Bench has held that any legislation subordinate to the Constitution cannot whittle down or take away the jurisdiction and powers conferred on the constitutional courts of the country. The decisions which we have referred to earlier deal about the maintainability of the challenge to the order of review when the main order is not assailed. The real test is that even if the order passed in review is set aside, the order that is not challenged cannot be set aside. The decision in Eastern Coalfields Ltd. (2008) 14 SCC 295 as has been rightly opined in Ripa Sarma case (2013) 3 SCC 63, has been rendered in ignorance of the earlier judgments of co-equal strength. That apart, we are inclined to agree with the view in Ripa Sarma (2013) 3 SCC 63 wherein it has been observed that the submission with regard to the merger of the main order with the order in review has been merely noticed in Eastern Coalfields Ltd. (2008) 14 SCC 295 and not accepted.

29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party.

30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the decision in Shanker Motiram Nale (1994) 2 SCC 753 the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent.

31. In this context, we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal (2001) 1 SCC 748, AIR 2001 SC 499 wherein a three-Judge Bench has observed thus:

“24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy….”

32. In view of the aforesaid analysis, the submission of Mr Gulati that all the subsequent judgments are per incuriam as they have not taken into consideration the decision rendered in Thungabhadra Industries Ltd. AIR 1964 SC 1372, (1964) 5 SCR 174 is not correct. Consequently, the appeal, being not maintainable, stands dismissed. There shall be no order as to costs.