RAJASTHAN HIGH COURT

                 Nirbhay Singh

                 Vs.

                 State of Rajasthan

D.B. Civil Misc. Application No. 68 of 1999 in S.B. Civil Writ Petition No. 4522 of
                                                1993

                             (N.N. Mathur and Jagat Singh, JJ.)

                 30.07.2001

                 JUDGMENT

N.N. Mathur, J.

1. The applicants, 66 in number are tenants in the shops belonging to the third
respondent Gurdwara Shri Singh Saheb, Hanumangarh Town and Junction by way of
joint application seeks leave to special appeal against the judgment of the learned
Single Judge dated 07.10.1996 rendered in S.B. Civil Writ Petition No. 4522/1993
Gurdwara Shri Singh Saheb, Hanumangar Town and Junction v. State. The applicants
have also filed a joint writ petition seeking direction to quash notification of the State
Government dated September 15, 1998 and June 3, 1999 in exercise of powers
conferred by sub- section (3) of Section 2 of the Rajasthan Premises (Control of Rent
and Eviction) Act, 1950 (hereinafter referred to as "the Act of 1950") issued in
compliance of the order of the learned Single Judge dated 07.10.1996. The effect of
the notification is that third respondent has been exempted from the application of the
provisions of the Act of 1950.

2. We have heard Shri D.S. Sishodia, Senior Advocate with Shri Vijay Kumar
Aggarwal at length. Before averting to the contentions advanced by the learned
counsel, we consider it necessary to give a prelude to the controversy involved. The
third respondent Gurdwara Shri Guru Singh Saheb, Hanumangarh Town and Junction
(hereinafter referred to as "the trust") is a registered body. It claims to be an education
and charitable trust. According to the trust, its entire income is utilised for the purpose
of running of its educational institutions. It is running a Guru Harikishan Public
School upto 8th standard with English medium and also provides free facilities of
boarding and lodging to the passengers. Its only source of income is rent from the
shops. About 100 shops were constructed 40 years ago and rented out on a meagre
rent. The trust approached the State for granting exemption to them under the Act of
1950. Section 2(3) of the Act, reads as follows :-

       (3) The State Government if it is satisfied that it is necessary or expedient so to
       do in public interest may, by notification in the official Gazette, exempt from all
       or any of the provisions of this Act any premises owned by any educational,
       religious or charitable institution the whole of the income derived from which is
       utilised for the purpose of that institution.

In identical matter, the learned Single Judge in S.B. Civil Writ Petition No. 55 of 1981
after thread bare discussion of the controversy directed the State to issue notification
under sub-section (3) of Section 2 of the Act of 1950 giving exemption to the trust
from the application of the Act of 1950, by judgment dated 29.08.1991. The learned
Single Judge following the judgment in said case allowed the writ petition in the same
terms. The effect of the writ is that State was required to issue a notification under
sub-section (3) of Section 2 of the Act of 1950 exempting the third respondent
Gurdwara Shri Guru Singh Saheb, Hanumangarh Town and Junction from the
application of the Act of 1950. The State preferred a Special Appeal against the
judgment of the learned Single Judge dated 07.10.1996 being D.B. Civil Special
Appeal No. 140 of 1998 (Defect) State of Rajasthan and Others v. Gurdwara Shri
Guru Singh Saheb, Hanumangarh Town and Junction. Alongwith this special appeal,
an application under Section 5 of the Limitation Act for the condonation of delay in
filing the special appeal was also filed. The said application was rejected by the order
of the Division Bench dated 04.05.1999. The State preferred a S.L.P. before the
Supreme Court against the order of the Division Bench but it was rejected by the order
of the Apex Court dated 01.11.1999. After rejection of the S.L.P., the judgment of the
learned Single Judge dated 07.10.1996 become final. Thus, State in compliance of the
order of the learned Single Judge dated 07.10.1996 issued impugned notification
under Section 2(3) of the Act of 1950 giving exemption to the third respondent
Gurdwara Shri Guru Singh Saheb, Hanumangarh Town and Junction from the
provisions of application of the Act of 1950.

3. The application for leave to special appeal against the judgment of the learned
Single Judge dated 07.10.1996 deserves to be rejected for the simple reason that after
dismissal of the special appeal filed by the State against the order of the learned Single
Judge, though on the ground of delay and not merit, a second special appeal is not
maintainable. In any case it cannot be maintained at the instance of third party. It is
true that the order rejecting the special appeal on the ground of delay or rejection of
S.L.P. are not order of affirmation or a binding precedent of the Division Bench or
Supreme Court, but is final and effective as between the parties and binding precedent
as a judgment of the Single Judge. Similarly, the writ petition also deserves to be
rejected for the reason that as the impugned notification has been issued in compliance
of the judicial order which has attained finality.

4. It is contended by Mr. D.S. Sishodia, Senior Advocate for the applicants that the
special appeal against the judgment of learned Single Judge is maintainable as the
dismissal of the special appeal filed by the State was not on merit but on the ground of
delay. It is also submitted that the rejection of the special leave to appeal filed by the
State against the order of the Division Bench will not come in way in maintaining the
special appeal before the Division Bench as the Supreme Court has also not decided
the matter on merit. It is submitted that the order of the learned Single Judge has not
attained finality as it has not merged in the order of the Division Bench and
subsequently the order of the Supreme Court. In support of the contention, learned
counsel has placed reliance on the decisions in Kunhayammed and others v. State of
Kerala and Another reported in 1 and Ratan Singh v. Vijay Singh and others reported
in 2

5. We have carefully gone through both the binding decisions of the Apex Court. The
ratio laid down in both the cases does not advance the case of the applicants, on the
contrary the views expressed by us in preceding para gets sustenance from both the
said judgments. In Kunhayammed's case (supra) the High Court dismissed a writ
petition against the order of the Forest Tribunal by an elaborate order. The special
leave to appeal filed by the State under Article 136 of the Constitution of India before
the Apex Court was also dismissed. Subsequently, a review was sought of the order of
the High Court. A preliminary objection was raised to the effect that after the rejection
of the special leave to appeal by the Supreme Court, the order of the High Court
merged therein and as such the review application was not maintainable. The
objection was overruled by the High Court. The Apex Court surveyed almost all its
earlier decisions on the point. While dealing with theory of doctrine of merger under
the heading of stage of S.L.P. and post leave stage, it is held that in spite of a petition
for special leave to appeal having been filed, the judgment, decree or order against
which leave to appeal has been sought for, continues to be final, effective and binding
as between the parties. The Court held that once leave to appeal has been granted, the
finality of the judgment, decree or order appealed against is put in jeopardy though it
continues to be binding and effective between parties unless it is a nullity or unless the
court may pass a specific order staying or suspending the operation or execution of the
judgment, decree or order under challenge. The Apex Court explained its earlier
decision in Sree Narayana Dharmasanghom Trust v. Swami Prakasananda reported
in3 , as follows :-

       "In our opinion, the order is final in the sense that once a special leave petition
       is dismissed, whether by a speaking or non-speaking order or whether in limine
       or on contest, second special leave petition would not lie. However, this
       statement cannot be stretched and applied to hold that such an order attracts
       applicability of doctrine of merger and excludes the jurisdiction of the Court or
       authority passing the order to review the same."
       "Thus, the Apex Court made it clear that as far as the rejection of the special
       leave is concerned, it is final whether it has been disposed of by a speaking or
       non-speaking order in limine or on contesting and no second special leave
       petition will lie. Secondly rejection of such a special leave to appeal will not
       attract the applicability of doctrine of merger and as such the court will have a
       jurisdiction to review the order against which the S.L.P. has been rejected by
       the Apex Court. In Ratan's case (supra) the appellant obtained a decree for
       possession on 14.12.1970. The appeal filed by the respondent against the said
       judgment was dismissed on 01.08.1973. The second appeal was rejected by the
       order of the High Court dated 31.03.1976 on the ground of delay. The execution
       petition was filed on 24th March, 1988. The question arose as to whether the
       limitation of 12 years is to be computed from the date of dismissal of first
       appeal by judgment and decree dated 01.08.1973 or the dismissal of second
       appeal only on the ground of delay by order dated 31.03.1976. The Apex Court
       held that when the first appellate court dismissed the appeal on 01.08.1973, the
       order of the trial court merged therein. However, when the second appeal was
       dismissed by the High Court only on the ground of delay, it was only an
       incidental order and that could not be a decree. Therefore, the court held that
       the limitation was to be computed from the date when first appeal was rejected
       on 01.08.1973. The Apex Court after referring a Full Bench decision of the
       Calcutta High Court in the case of Mamuda Khateen v. Beniyan Bibi observed
       as under :-
       "if the application under Section 5 of the Limitation Act was rejected the
       resultant order cannot be a decree and the order rejecting the memorandum of
       appeal is merely an incidented order."

7. In the instant case as the special appeal filed by the State before the Division Bench
of this Court was dismissed only on the ground of delay, the order of the learned
Single Judge cannot said to have merged in the order of the Division Bench.
Therefore, the order of the learned Single Judge cannot be substituted as a binding
precedent as a judgment of the Division Bench. The another effect is that review of
the order of the learned Single Judge cannot be declined solely on the ground that a
special appeal against the said judgment has been rejected. The order of the learned
Single Judge shall continue to be final, effective and binding as between the parties. It
is also a binding precedent as a judgment of the Single Judge. The same is the
consequence of the rejection of the special leave to appeal by the Apex Court. As no
second appeal can be maintained against the same judgment of the learned Single
Judge, the question of leave to special appeal does not arise.

8. The learned counsel has also challenged the notification of State Government dated
15.09.1998 and 03.06.1999 on various grounds. As the impugned notifications have
been issued in compliance of a judicial order, it is not open to examine the legality of
the notification so long as the judgment of the learned Single Judge continues to be
final, effective and binding.

9. Consequently, leave to special appeal is declined and the application filed by the
applicants is rejected. The writ petition challenging the notifications dated 15.09.1998
and 03.06.1999 is also dismissed in limine.

Application rejected.

Cases Referred.

1. 2000(6) SCC 359
2. 2001(1) RCR (Civil) 495 : 2001(1) SCC469
3. 1997(6) SCC 78, in para 6