BUSSA OVERSEAS & PROPERTIES (P) LTD. & ANR.versusUNION OF INDIA & ANR.

                             [2016) l S.C.R. 266


A            BUSSA OVERSEAS & PROPERTIES (P) LTD. & ANR.
                                      v.
                        UNION OF INDIA & ANR.
                       (Civil Appeal No. 2687 of2006)
                            JANUARY 22, 2016
B
            [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ]
          Review: Scope of - Refund claim - Custom duty - Department
    dismissed the claim on the ground that same was filed u/s.27 of
    Customs Act and the appellant had not complied with the formalities
    envisaged under the said provision - Writ petition - Dismissed by
c   High Court - Review petition - Dismissal of - Special leave petition
    against order passed in review petition - Maintainability of - Held:
    Not maintainable - Code of Civil Procedure, 1908 - Or.47 r. 7 -
    Constitution of India, 1950 - Article 136 - Customs Act, 1962 -
    s.27.
D        Dismissing the appeal, the Court
         HELD: 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
E   order, for it is the order in review that affects the aggrieved party.
    Though the decisions in Shanker Motiram Nale, 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
F   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
G   principle has gained the authoritative status and has been treated
    as a precedential principle for more than two decades and there
    is hardly any necessity not to be guided by the said precedent.
    [Para 26] [281-C-F]
          Shanker Motiram Nale v. Shiolalsing Gannusing Rajput
          (1994) 2 SCC 753; State of Assam v. Ripa Sarma 2013
H         (4) SCR 151 : (2013) 3 SCC 63 - relied on.
                                      266
BUSSA OVERSEAS & PROPERTIES (P) LTD. v. UNION OF              267
                    INDIA

   Durga Shankar Mehta v. Thakur Raghuraj Singh and           A
   others (1955) 1 SCR 267 : AIR 1954 SC 520 - held
   inapplicable.
   Thungabhadra Industries Ltd. v. Government of Andhra
   Pradesh (1964) 5 SCR 174 : AIR 1964 SC 1372 -
   Distinguished                                              B
   Collector of Central Excise v. India Tyre and Rubber
   Co. Ltd. 1997. (94) ELT 495 (Mad.); Hindustan Metal
   Pressing Works v. Commissioner of Central Excise 2003
   (153) ELT 15 (S.C.); Mafatlal Industries Ltd. v. Union
   of India 89 ELT 247 (S.C.); Union of India v. Jain         c
   Spinners Ltd. 1992 (61) ELT 321 (S.C.); Alcatel Modi
   Net Works Systems v. Commissioner of Customs 2000
   (117) ELT 522 (Tribunal); Kunhyammed v. State of
   Kerala 2001 (129) ELT 11 (S.C.); Suseel Finance &
   Leasing Co. v. M. Lata and others (2004) 13 SCC 675;
   M.N. Haider and others v. Kendriya Vidyalaya               D
   Sangathan and others (2004) 13 SCC 677; Shiv
   Charan Singh v. State of Punjab and others 2006 (9)
   Suppl. SCR 143 : (2007) 15 SCC 370; Ravi alias
   Ravichandran v. State represented by Inspector of Police
    2007 (5 ) SCR 766 : (2007) 15 SCC 372; Vinod              E
   Kapoor v. State of Goa and others 2012 (8) SCR 1089
   : (2012) 12 SCC 378; Sandhya Educational Society
   and another v. Union of India and others (2014) 7 SCC
   701; Mahendra Saree Emporium (II) v. G V Srinivasa
   Murthy 2004 (3) Suppl. SCR 931 : (2005) 1 SCC 481;
   Green View Tea & Industries v. Collector (2004) 4 SCC      F
   122; K. Rajamouli v. A. VK.N. Swamy 2001 (3) SCR
   473 : (2001) 5 SCC 37; Eastern Coalfields Limited v.
   Dugal Kumar 2008 (11) SCR 369 : (2008) 14 SCC
   295; Krishena Kumar v. Union of India and others 1990
   (3) SCR 352 : (1990) 4 SCC 207; Government of              G
   Andhra Pradesh and others v. A.P. Jaiswal and others
   AIR 2001 SC 499 - referred to.
   Quinn v. Leathern (1901) AC 495; Caledonian Railway
   Co. v. Walkers Trustees (1882) 7 App Cas 259 : 46 LT
   826 (HL) - referred to.
                                                              H
268              SUPREME COURT REPORTS                      [2016] 1 S.C.R.


A                            Case Law Reference
      1997 (94) ELT 495 (Mad.)           referred to.         Para4
      2003 (153) ELT 15 (S.C.)           referred to.         Para4
      S9 ELT 247 (S.C.)                  referred to.         Para7
B     1992 (61) ELT 321 (S.C.)           referred to.         Para7
      2000 (117) ELT 522 (Tribunal) referred to.              Para7
      2001 (129) ELT 11 (S.C.)           referred to.         Para7
      (1994) 2 sec 753                   relied on.           Paras
c     (2004) 13 sec 675                  referred to.         Paras
      (2004) 13 sec 677                  referred to.         Paras
      2006 (9) Suppl. SCR 143            referred to.         Paras
      2007 (5) SCR 766                   referred to.         Paras
D
      2012 (S) SCR 10S9                  referred to.         Paras
      2013 (4) SCR 151                   relied on.           Paras
      (2014) 1 sec 101                   referred to.         Paras
      (1955) 1 SCR 267                   held inapplicable. Paras
E
      (1964) 5 SCR 174                   Distinguished        Paras
      2004 (3) Suppl. SCR 931            referred to.         Paras
      (2004) 4 sec 122                   referred to.         Para 15

 F    2001 (3) SCR 473                   referred to.         Para 16
      200S (11) SCR 369                  referred to.         Para 19
      1990 (3) SCR 352                   referred to.         Para 24
      AIR 2001 SC 499                    referred to.         Para 26
G          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2687 of
      2006.
           From the Judgment and Final Order dated 14-09-2004 by the High
      Court of Judicature at Bombay in Notice of Motion No. 62 of 2004 in
      Review Petition (LOO) No. 6 of2004 in Writ Petition No. 71of1993.
H          Kavin Gulati, Ruby Singh Ahuja, Utsav Trivedi, Manik Karanjawala,
  BUSSA OVERSEAS & PROPERTIES (P) LTD. v. UNION OF                             269
                      INDIA

Anisha Mitra for the Appellants.                                               A
     Yashank Adhyaru, Tara Chandra Sharma, B.V. Niren, B. Krishna
Prasad for the Respondents.
     The Judgment of the Court was delivered by
     DIPAK MISRA, J. l. The present appeal is directed against the             B
judgment and order dated 14.09.2004 passed by the Division Bench of
the High Court of Judicature at Bombay in Notice of Motion No. 62 of
2004 in Review Petition (Lod) No. 6 of 2004 in Writ Petition No. 71 of
1993 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         C
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           D
Act, 1962 (for brevity, "the Act"). After the application was submitted,
the 2•d respondent i.e., Assistant Collector of customs by letter dated
01.06.1992 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        E
reiterated their stand that Section 27(2) was not applicable and prayed
for refund of the amount alongwith 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 letter dated 01.06.1992 which had required the appellants to apply
for refund under Section 27(2) of the Act. During the pendency of the          F
writ petition the 2"d respondent passed an ex-parte order dated 04.12.1992
dismissing the claim of the refund under Section 27 of the Act and opined
that the claim was inadmissible.
     3. In the mean time, as the factual matrix would undrape, the Act
was amended and Explanations were added to Section 27 of the Act.              G
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.
                                                                               H
270                SUPREME COURT REPORTS                          [2016J 1 S.C.R.


A           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
B
      placed on Collector of Central Excise v. India Tyre and Rubber Co.
      Ltd.' and Hindustan Metal Pressing Works v. Commissioner of
      Central Excise'.
          5. The High Court appreciating the factual matrix and the legal
      submissions came to hold as follows:-
c
             " ... 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
D            decision of this Court in the case of New India Industries vs.
             Union of India reported in 1990 (!) B.C.R. 315, as well as the
             decision of the Apex Court in the case of Mafatlal Industries Ltd.
             (supra at para 95). In the present case, admittedly, the Petitioners
             have passed on the incidence of duty to the customers and have
E            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.
F          6. Mr. YashankAdhyaru, 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.
G          7. It is also contented 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 required to be made
      under Section 27 for refund including the refund of duty paid under the
H     I 1997 (94) ELT 495 (Mad.)
      2 2003 (153) ELT 15 (S.C.)
  BUSSA OVERSEAS & PROPERTIES (P) LTD. v. UNION OF                            271
              INDIA [DIPAK MISRA, J.]

provisional assessment. On that basis it is canvassed that the authorities    A
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',
Union of India v. Jain Spinners Ltd.4, Alcatel Modi Net WSorks
Systems v. Commissioner of Customs 5 and Kunhyammed v. State of B
Kerala 6 •
     8. 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 Rajput1 ,
Suseel Finance & Leasing Co. v. M. Lata and others', M.N. Haider
and others v. Kendriya Vidyalaya Sangathan and others 9, Shiv                 C
Charan Singh v. State of Punjab and others 10, Ravi alias
Ravichandran v. State represented by Inspector of Police 11, Vinod
Kapoor v. State of Goa and others 12, State of Assam v. Ripa Sarma 13,
and Sandhya Educational Society and another v. Union of India
and others 14 , the stance set forth by the respondents may deserve           D
acceptation, but the aforesaid authorities have ignored the earlier larger
Bench decisions rendered in Durga Shankar Mehta v. Thakur
Raghuraj Singh and others" and Thungabhadra Industries Ltd. v.
Government of Andhra Pradesh 16 and hence, they are not binding
precedents. Learned senior counsel has also drawn inspiration from
Mahendra Saree Emporium (II) v. G V. Srinivasa Murthy" to bolster             E
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   F
therein cannot control the exercise of the jurisdiction under Article 136
of the Constitution.

 3 89 ELT 247 (S.C)                11 (2001) 15 sec 372

 4 1992 (61) ELT 321 (S.C.)        12 (2012112 sec 378
 5 2000 (117) ELT 522 (Tribunal)   l3 (2013)3SCC63
                                                                              G
 6 2001 (129) ELT 11 (S.C)         14 (2014) 7 sec 101

 7 (1994) 2SCC753                  IS (1955) I SCR 267 = AIR 1954 SC.520
 8 (2004) ll sec 675               16 (1964) 5 SCR 174 =AIR 1964SC1372
 9 (2004) ll sec 677               17
                                        12005) 1 sec 481
 10 (2007) 15 sec 370                                                         H
272               SUPREME COURT REPORTS                           [2016] l S.C.R.


A           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. lnDurga Shankar Mehta (supra), the Constitution Bench was
      dealing with a legal acceptability of the order passed by the Election
B     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
c     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
D     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. Dealing with
E     the said preliminary objection, the Constitution Bench opined thus:-
             " ... 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
F            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
G            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
H
  BUSSA OVERSEAS & PROPERTIES (P) LTD. v. UNION OF                             273
              INDIA [DIPAK MISRA, J.]

       any further appeal but that cannot in any way cut down or affect        A
       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        B
or determination of an Election Tribunal which like all other Judicial
Tribunals comes within the purview of the said article.
      11. The aforesaid decision, 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     c
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     D
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 plenary           E
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.
       12. In Thungabhadra Industries Ltd. (supra), the question arose
whether the common order passed by the High Court of Andhra Pradesh F
rejecting the applications to review an earlier order 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 G
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 H
274               SUPREME COURT REPORTS                          [2016] I S.C.R.


A     the respondent did not disclose any ground upon which the leave granted
      should be revoked. The three-Judge Bench in that context observed
      thus:-
            " ... any ground in relation to these matters should have been urged
            at that stage and except possibly in some extraordinary cases
B           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
c           object of issuing notice to the respondent before the grant ofleave
            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
D           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
E           revoked; nor, of course, does it make any prayer seeking such
            relief. ... "
            13. Relying on the aforesaid passage, it is submitted by Mr. Gulati
      that stage for raising the issue as to maintainability is over. Before we
      anaylse the ratio of the said decision, it is desirable to take note of
 F    judgments that have come into existence in the meantime.
            14. In Shanker Motiram Nale (supra}, 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
G     said conclusion, the Court has referred to Order XLVII Rule 7 of the
      Code of Civil Procedure, 1908 that bars an appeal against the order of
      the court rejecting the review.
            15. In Suseel Finance & Leasing Co. (supra), while dealing with
      the special leave petition preferred against the rejection of review petition
H     without assailing the main judgment, the Court referred to the decision in
 BUSSA OVERSEAS & PROPERTIES (P) LTD. v. UNION OF                               275
             INDIA [DIPAK MISRA, J.]

Shanker Motiram Nale (supra) and concurred with the said view. In               A
that context, the two-Judge Bench referred to the decisions in Green
View Tea & Industries v. Collector'' and K. Rajamouli v. A. V.K.N.
Swamy" and opined that:-
      "We find that in these two cases the question whether a special
      leave petition was maintainable against an order rejecting a review       B
      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. In both those cases it has been                c
      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."                          D
     16. In M.N. Haider (supra), 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.
      17. In Shiv Charan Singh (supra), a two-Judge Bench was dealing
with an appeal challenging an order of review. Relying on the decision in       E
Shanker Motiram Nale (supra), this Court dismissed the appeal.
     18. In Vinod Kapoor (supra), 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           F
      Rule 7 CPC. In Shanker Motiram Nale v. Shiolalsing
      Gannusing Rajput, Suseel Finance & Leasing Co. v. M. Lata
      and M.N. Haider v. Kendriya Vidyalaya Sangathan cited by
      the learned counsel for Respondent 8, this Court has consistently
      held that an appeal by way of special leave petition under Article        G
      136 of the Constitution is not maintainable against the order rejecting
      an application for review in view of the provisions of Order 4 7
      Rule 7 CPC.

 1s (2004) 4 sec 122
 19 (2001) s sec 37                                                             H
276               SUPREME COURT REPORTS                          [2016] I S.C.R.



A           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 20 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
B
            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
c           maintainable."
            19. In Ripa Sarma (supra), the main judgment and order was not
      challenged before this Court. The challenge was to the order passed in
      the review petition. On behalf of the respondent, a preliminary objection
      was raised with regard to maintainability of the special leave petition.
D     On behalf of the petitioner, reliance was placed on Eastern Coalfields
      Limited v. Dugal Kumar' 1 wherein it has been observed:-
            "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
E           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."
           20. The two-Judge Bench in Ripa Sarma (supra), while dealing
F
      with the said observations, opined that the decisions of this Court in
      Shanker Motiram Nale (supra), Suseel Finance & Leasing Co. (supra)
      and M.N. Haider (supra) were not brought to the notice of the Court
      and, on that foundation proceeded to state as follows:-
            " ... This apart, the submission with regard to the merger of the
G
            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

      20 \2008J 3 sec 108
H     21 \2008J 14 sec 295
  BUSSA OVERSEAS & PROPERTIES (P) LTD. v. UNION OF                               277
              INDIA [DIPAK MISRA, J.]

       special leave petition, it would not be proper to dismiss the same        A
       without hearing the parties."
       Andagain:-
       "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. has been rendered in                  B
       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. ... "
     21. Recently in Sandhya Educational Society and another
(supra), the Court referred to the decision in Vinod Kapoor (supra) and          c
opined thus:-
       "This Court in Vinod Kapoor v. State of Goa 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             D
       review petition before the High Court, the same is not
       maintainable."
      22. Having noticed the aforesaid pronouncements, we may now
advert to the authority in Thungabhadra Industries Ltd. (supra). The
reasons ascribed therein are two-fold, namely, no objection had been             E
taken at the initial stage as a consequence of which cost 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
                                                                                 F
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:-
                                                                                 G
      " ... 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 TRC 120 of 1953 had
      been brought to the notice of the High Court, but that this statement
      must be erroneous or untrue for two reasons: (J) This is not
      referred to in the order now under appeal, and (2) the decision of         H
278               SUPREME COURT REPORTS                         [2016] I S.C.R.



A           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
B
            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 Order47. Rule 1 of 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
c           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
D
            leave granted is therefore rejected as entirely devoid of substance."
            23. The aforesaid decision 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
 E    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 the case of
 F    Quinn v. Leathem 22 :-
            ..... 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
 G          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

 H    22 (1901) AC 495
  BUSSA OVERSEAS & PROPERTIES (P) LTD. v. UNION OF                               279
              INDIA [DIPAK MISRA, J.]

       proposition that may seem to follow logically from it. Such a mode        A
       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."
24. In Krishena Kumar v. Union of India and others 23 the
Constitution Bench, while appreciating the concept of ratio decidendi,           B
adverted to the principles stated in Ca/edonian Railway Co. v. Walker's
Trustees 24 and Quinn (supra) and observations made by Sir Frederick
Pollock and thereafter laid down thus:-
      "The ratio decidendi is the underlying principle, namely, the general
      reasons or the general grounds upon which the decision is based            c
      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           D
      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) "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         E
      judgment in relation to the subject matter of the decision, which
      alone has the force oflaw and which when it is clear it is not part
      of a tribunal's duty to spell out with difficulty a ratio decidendi in
      order to 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              F
      given by a tribunal for its judgment, all are taken as forming the
      ratio decidendi."
     Viewed in the backdrop of the factual score in entirety, we are of
the considered opinion that decision in Thungabhadra Industries Ud.
(supra) has to be confined to the facts of the said case.                        G

     25. Earlier we have stated that we will refer to the principles stated
in Durga Shankar Mehta's case (supra). The said authority deals
with width of power conferred under Article 136. It is submitted by Mr.
23 (1990) 4 sec 201
24 (1882) 7 App Cas 259: 46 LT 826 (HL)                                          H
280                 SUPREME COURT REPORTS                       f2016] l S.C.R.



A     Gulati that the said power is of great magnitude and cannot be controlled
      by any stature. It has been held in Durga Shankar Mehta (supra) that
      it is a plenary jurisdiction. In Mahendra Saree Emporium (JI) (supra),
      a three-Judge Bench, in the context of power under Article 136, has
      held thus:-
B           '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
c           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. Thakur Raghuraj Singh and Union Carbide
D           Corpn. v. Union of India". In Durga Shankar Mehta case 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
E           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
 F          v. Union of India" and the recent decision of this Court in Surya
            Dev Rai v. Ram Chander Rai"- In Surya Dev Rai case 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
 G           constitutional courts of the country."
           26. The aforequoted passage has to be appositely understood. The
      three-Judge Bench has held that any legislation subordinate to the

      25 (1991) 4 sec 584 cscc para 58)
      26 (1987) 1sec124
 H    21(2003)6 sec 675
  BUSSA OVERSEAS & PROPERTIES (P) LTD. v. UNION OF                              281
              INDIA [OIPAK MISRA, J.]

Constitution cannot whittle down or take away the jurisdiction and powers       A
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 even if the order passed in review is set aside, the order
that is not challenged cannot be set aside. The decision in Eastern
                                                                                B
Coalfields Limited (supra) has been rightly opined in Ripa Sarma's
case, 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 (supra) 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 Limited (supra) and not               c
accepted. 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. The decisions
                                                                                D
pertaining to maintainability of special leave petition or for that matter
appeal have to be seemly understood. Though the decisions in Shanker
Motiram Nale (supra) 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 I 36 of the Constitution   E
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
                                                                                F
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. In this context, we may profitably reproduce
a passage from Government of Andhra Pradesh and others v. A.P.
Jaiswal and others" wherein a three-Judge Bench has observed thus:-
       "Consistency is the cornerstone of the administration of justice. It     G
       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

28 AIR 200 I SC 499
                                                                                H
282                   SUPREME COURT REPORTS                    [2016] 1 S.C.R.



A            pronouncements, the Courts have evolved the rule of precedents,
             principle of stare decisis etc. These rules and principle are based
             on public policy..."
            27. In view of the aforesaid analysis, the submission of Mr. Gulati
      that all the subsequent judgments are per incuriam as they have not
B     taken into consideration the decision rendered in Thungabhadra
      Industries Ltd. (supra) is not correct. Consequently, the appeal, being
      not maintainable, stands dismissed. There shall be no order as to costs.
      Devika Gujral                                           Appeal dismissed.

                                                                                   •