STATE OF ASSAMversusRIPA SARMA

                   [2013] 4 S.C.R. 151


                   STATE OF ASSAM                            A
                            V.
                     RIPA SARMA
     {Special Leave Petition (Civil) No. 2671 of 2011)

                  FEBRUARY 20, 2013
                                                             B
   [SURINDER SINGH NIJJAR AND M.Y. EQBAL, JJ.]

     Constitution of India, 1950 - Article 136 - Special Leave
Pettion - Against the judgment of High Court dismissing the
review petition - Held: In absence of challenge to the main C
judgment of High Court, the SLP filed challenging only the
 subsequent order rejecting the review petition, is not
 maintainable.

     Shanker Motiram Nale vs. Shiolalsing Gannusing Rajput 0
  (1994) 2 SCC 753; Suseel Finance and Leasing Company
. vs. M. Lata and Ors. (2004) 13 SCC 675; M.N. Haider and
  Ors. vs. Kendriya Vidyalaya Sangathan and Ors. (2004) 13
  sec 677 - relied on.
   Eastern Coalfields Limited vs. Dugal Kumar (2008) 14      E
SCC 295: (2008) 11 SCR 369 - held per incuriam.

                    Case Law Reference:

     (1994) 2 sec 753        relied on           Para 5
                                                             F
     c2004) 13 sec 675       relied on           Para 5
     (2004) 13 sec 677       relied on           Para 5

     (2008) 11 SCR 369       held per incurium Para 7

      CIVIL APPELLATE JURISDICTION : Special Leave . G
 Petition (C) No. 2671 of 2011.

     From the Judgment & Order dated 26.02.2010 of the

                            151                              H
    152       SUPREME COURT REPORTS              [2013] 4 S.C.R.


A Gauhati High Court in Review Petition No. 8 of 2010.

      Jayant Bhushan, Avijit Roy (for Corporate Law Group),
  Parthiv K. Goswami, S. Hari Haran, Charu Mathur, J.M.
  Sharma, Raka B. Phookan, Neha Tandon Phookan, Shailesh
B Madiyal for the Appearing parties.

          The following Order of the Court was delivered

                              ORDER

C         1. We have heard Mr. Avijit Roy, learned counsel for the
    petitioner-State of Assam as well as Mr. Jayant Bhushan,
    learned senior counsel appearing for the respondent at length.

         2. Mr. Jayant Bhushan has raised a preliminary objection
    to the maintainability of the special leave petition.
D
        3. The petitioner herein has challenged the order passed
  by the Division Bench of the Gauhati High Court dated 26th
  February, 2010 dismissing the review petition filed by the
  petitioner seeking review of the judgment and order dated 20th
E November, 2007 rendered in Writ Appeal No. 279 of 2007. The
  Division Bench has dismissed the review petition on the ground
  that in substance, the applicant seeks rehearing of Writ Appeal
  No. 279 of 2007 on the basis of certain facts, which were not
  brought to the notice of the Court at the time of hearing of the
F appeal.

       4. It is not disputed before us that judgment and order
  dated 20th November, 2007 passed in Writ Appeal No. 279
  of 2007 was not challenged by way of a special leave petition
  before this Court. In fact, the aforesaid judgment and order is
G not even challenged in the present special leave petition.
  Therefore, the special leave petition is restricted in its
  challenge, to the order passed by the Division Bench
  dismissing the review petition on 26th February, 2010.

          5. In support of the submission that the present special
H
         STATE OF ASSAM v. RIPA SARMA                        153


leave petition is not maintainable, Mr. Bhushan has relied on A
three judgments of this Court. In Shanker Motiram Nale versus
Shiolalsing Gannusing Rajput reported in (1994) 2 SCC 753,
it has been held that the special leave petition which has been ·
filed against the order rejecting the review petition would be
barred under Order 47 Rule 7 of the Civil Procedure Code, B
1908. The aforesaid judgment has been followed by this Court
 in Suseel Finance and Leasing Company versus M. Lata and
 Others reported ·in (2004) 13 SCC 675. This Court held that
 not only was it bound by the aforesaid judgment in Shanker
 Motiram Nale case, but was also in agreement with it. The law c
 laid down in both the aforesaid judgments was further reiterated
 in the case of M.N. Haider and Others versus Kendriya
  Vidyalaya Sangathan and Others reported in (2004) 13 SCC
 677.

     6. In view of the above, the law seems to be well settled       D
that in the absence of a challenge to the main judgment, the
special leave petition filed challenging only the subsequent
order rejecting the review petition, would not be maintainable.

     7. Faced with this situation, Mr. Avijit Roy, learned counsel   E
appearing for the State of Assam seeks to rely on a subsequent
judgment of this Court in Eastern Coalfields Limited versus
Dugal Kumar reported in (2008) 14 SCC 295. He has made
a specific reference to paragraphs 22 and 23 of the judgment.
In paragraph 23 of the judgment, it is observed as follows :-        F

           "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      G
     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."
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    154        SUPREME COURT REPORTS                [2013] 4 S.C.R.


A       8. A perusal of the aforesaid paragraph would clearly show
  that the judgments noticed by us in the earlier part of the order
  were not brought to the notice of the Court in Eastern Coalfields
  Limited case. This apart, the submission with regard to the
  merger of the main order with the order in review has been
B 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.

       9. In the present case, the preliminary objection has been
C raised at the threshold. In adqition, it is an inescapable fact that
  the judgment rendered in Eastern Coalfields Limited has been
  rendered in ignorance of the earlier judgments of the Benches
  of coequal strength, rendering the same per incuriam.
  Therefore, it cannot be elevated to the status of precedent. In
D view of the above, we accept the preliminary objection raised
  by Mr. Jayant Bhushan, learned senior counsel.

          10. The special leave petition is, accordingly, dismissed.

E        11. Since the special leave petition has been dismissed,
    no orders are required to be passed on the application for
    impleadment as party respondent.

    K.K.T.                                         SLP Dismissed.