Shri Arjun Prasad Dubey (In Person) Age - 77 Years 11 v. President, Priyadarshini Grih Nirman Sahakari Samiti

Hon'ble Mr. Parth Prateem Sahu, J Order On Board

21.4.2025

1. Petitioner has filed this petition seeking review of the CAV Order dated 3.9.2024 passed in WPC No.3803/2023 by which writ petition filed by petitioner has been dismissed.

2. This review petition has been filed inter alia on the grounds that: 2 • the District Consumer Disputes Redressal Forum Raipur has wrongly held that suit should have been filed within two years from notice dated 14.8.2010 and the cause of action has not arisen from the notice dated 24.2.2014. Cause of action firstly arisen when allotment of plot was cancelled and secondly, when notice regarding allotment of land was not replied. Claim of petitioner cannot be held to be barred by limitation because possession of plot has not been delivered to him till date, hence there was continuing cause of action in favour of petitioner. Thus, the orders of the District Forum and National Forum rejecting claim of petitioner being barred by limitation are liable to be set aside. • the High Court has not considered permission letter dated

22.4.1991 (Annexure P-20 to writ petition) in its proper perspective. Further, the High Court erred in holding that petitioner ought to have presented the matter within two years from 1.2.1993. • It was wrongly concluded that petitioner ought to have filed the matter within two years of 1.2.1993, the date on which petitioner made complaint to the Collector regarding demand of Rs.40/- per sq. ft. by respondent Society and for allotment of plot @ Rs.2/- per sq. ft. 3 • Petitioner has only demanded refund of development amount but it is wrongly mentioned that petitioner has demanded entire amount including cost of land. • While dealing with aspect of limitation, provisions of the Act of 2019 have been taken into consideration instead of the Act of 1986, which was repealed on 20.7.2020.

3. Heard learned counsel for the respective parties and perused the order which is sought to be reviewed.

4. Indisputably, the order which is sought to be reviewed in this petition, was unsuccessfully challenged by review petitioner before the appellate Court in WA No.788/2024 which came to be dismissed on 27.11.2024. This review petition is filed after dismissal of writ appeal on merits and thus the order under review stood merged in the order of the Division Bench. A review is not entertainable when during pendency of or prior to filing of review petition, the appellate court upheld the order under review and it stood merged in the order of appellate court.

5. In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 Hon’ble Supreme Court has held : “There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or 4 reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmation of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.”

6. In case of Tamil Nadu Electricity Board and another vs. N. Raju Reddiar and another, reported in (1997) 9 SCC 736, Hon’ble Supreme Court has observed that when an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed.

7. In Review Petition No.9/2012, parties being Anup Kumar Roy & ors vs State of Tripura & ors and decided on 20.6.2012, the High Court of Guahati (Agartala Bench), the question for consideration was whether after dismissal of appeal against the order under review, it is still open to the appellants of said appeal to seek review of not the judgment and order passed in writ appeal but of the judgment and order passed in petition against which intra-Court appeal had been preferred and dismissed. While answering said question, the High Court dismissed review petition recording that the order passed by 5 the Court in writ petition stood merged into the appellate Court and hence, review, if any, has to be sought of the appellate judgment and not the original order passed in writ petition. Relevant paras of the said decision are extracted herein below:- “3.The question, therefore, which arises for consideration, at the very threshold of this review petition, is: having already preferred an appeal and the appeal having been dismissed, whether it is still open to the appellants of the said appeal to seek review of not the judgment and order, dated 14-11- 2011, passed in W.A. No. 66/2006, but of the judgment and order, dated 15-9-2006, passed in Civil Rule 400/1996, against which intra-Court appeal, as mentioned above, had been preferred and dismissed?

14.The above aspect of the law has been succinctly and authoritatively laid down by the Supreme Court, in Kunhayammed and others v. State of Kerala & Anr. (MANU/SC/0432/2000MANU/SC/0432/2000 : AIR 2000 SC 2587), in the following words :-- “…….(i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter, which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by 6 the superior forum and the content or subject- matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing modified or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising it appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order, refusing leave to appeal, is a speaking order, i.e. gives reasons for refusing the grant of leave, then, the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Supreme Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract 7 the doctrine of merger; the order may be of reversal, modification or merely affirmation, (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 of the C.P.C. (Emphasis added)”

15.What emerges from the law laid down, in Kunhayammed (MANU/SC/ 0432/ 2000MANU/ SC / 0432 /2000 : AIR 2000 SC 2587) (supra), is that where an appeal is provided against an order passed by a Court and the appeal is preferred, then, the decision of the lower Court merges into the decision of the appellate Court and it is the latter's decision, which subsists, remains operative and is capable of enforcement in the eyes of law. 21…….following observations of the Supreme Court, in State of Maharashtra v. Prabhakar Bhikaji Ingle, reported in MANU/SC/0804/ 1996MANU / SC / 0804 /