TMI Blog2002 (9) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... he Full Bench has not adjudicated upon the issues arising for decision before it, we do not deem it .proper to enter into the merits of the controversy for the first time in exercise of the jurisdiction of this court under article 136 of the Constitution. We must have the benefit of the opinion of the Full Bench of the High Court as to the vires of the State legislation involved. Appeal allowed. The impugned judgment of the High Court is set aside. All the appeals shall stand restored before the Full Bench of the High Court and shall be heard and decided in accordance with law. - Civil Appeal No. 2480 of 2001, 2479, 2481, 3770, 4074, 4477 of 2001, 137, 6370, 6371, 6372 of 2002, W.P. No. 10708 of 1996, C.A. Nos. 2779 of 2001 - - - Dated:- 18-9-2002 - Judge(s) : R. C. LAHOTI., BRIJESH KUMAR R. Sundaravardan, Senior Advocate (S. Prasad, Ram Lal Roy and Ramesh N. Keshwani, Advocates, with him), for the appellants in C.A. Nos. 2481 and 2779 of 2001 and 137 of 2002. E.M.S. Natchiappan, S. Ravi Shankar and S. Jayashima, Advocates, for the appellant in C.A. No. 4477 of 2001. R. Nedumaran and S. Vallinayagam, Advocates, for the appellant in C.A. No. 2480 of 2001. K.V. Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The constitutional validity of Act 13 of 1960 amending the Madras City Tenants' Protection Act, 1921, is under challenge in these appeals. The State of Tamil Nadu was not made a party before the trial court. However, the State was impleaded as a supplemental respondent in appeal as per orders of the High Court. When the appellants lost the appeal, they sought leave to appeal to this court. The State of Tamil Nadu was not made a party in the said leave petition. In the S.L.P. before this court also the State of Tamil Nadu was not made a party. A challenge to the constitutional validity of the Act cannot be considered or determined, in the absence of the concerned State. The learned counsel now prays for time to implead the State of Tamil Nadu. This appeal is of the year 1973. In our view it is neither necessary nor proper to allow this prayer at this distance of time. No other point survives in these appeals. Therefore, we dismiss these appeals, but without any order as to costs." It is clear that this court did not go into the question of constitutional validity of Act 13 of 1960 nor did this court apply its mind to the correctness or otherwise of the view taken by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erger and, therefore, it was no more open for the Full Bench to examine and consider the correctness of the law laid down by the Division Bench in M. Varadaraja Pillai's case [1972] 85 Mad LW 760, which the Full Bench thought, would be deemed to have been affirmed by the Supreme Court in view of dismissal of the appeals thereagainst. Feeling aggrieved by the above said decision of the Full Bench, these appeals have been filed by special leave. Having heard learned counsel for the parties, we are of the opinion that these appeals deserve to be allowed and the decision of the Full Bench dated August 30, 2000, deserves to be set aside as erroneous for the reasons, more than one, as stated hereinafter. Firstly, the doctrine of merger. Though loosely an expression merger of judgment, order or decision of a court or forum into the judgment, order or decision of a superior forum is often employed, as a general rule the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part, i.e., the mandate or decree issued by the court which may have been expressed in positive or negative form. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view. In this view of the law, it cannot be said that the decision of this court dated September 10, 1986, had the effect of resulting in merger into the order of this court as regards the statement of law or the reasons recorded by the Division Bench of the High Court in its impugned order. The contents of the order of this court clearly reveal that neither the merits of the order of the High Court nor the reasons recorded therein nor the law laid down thereby were gone into nor they could have been gone into. Thirdly, as we have already indicated, in the present round of litigation, the decision in M. Varadaraja Pillai's case [1972] 85 Mad LW 760 was cited only as a precedent and not as res judicata. The issue ought to have been examined by the Full Bench in the light of article 141 of the Constitution and not by applying the doctrine of merger. Article 141 speaks of declaration of law by the Supreme Court. For a declaration of law there should be a speech, i.e., a speaking order. In Krishena Kumar v. Union of India [1990] 4 SCC 207, this court has held that the doctrine of precedents, that is being bound by a previous decision, is limited to the decision itself and as to what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared by the Supreme Court shall be binding on all the courts within the territory of India. When no reasons are given, a dismissal simpliciter is not a declaration of law by the Supreme Court under article 141 of the Constitution. In Indian Oil Corporation Ltd. v. State of Bihar [1987] 167 ITR 897; AIR 1986 SC 1780, this court observed that the questions which can be said to have been decided by this court expressly, implicitly or even constructively, cannot be reopened in subsequent proceedings; but neither on the principle of res judicata nor on any principle of public policy analogus thereto, would the order of this court bar the trial of identical issue in separate proceedings merely on the basis of an uncertain assumption that the issues must have been decided by this court at least by implication. It follows from a review of several decisions of this court that it is the speech, express or necessarily implied, which only is the declaration of law by this court within the meaning of article 141 of the Constitution. A situation, near similar to the one posed before us, has been dealt with in Salmond's Jurisprudence under the caption--"Circumstances destroying or weakening t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that in spite of the dismissal of the appeals on September 10, 1986, by this court on the ground of non-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this court, the remaining part of the order of the Division Bench of the High Court cannot be said to have merged in the order of this court dated September 10, 1986; nor did the order of this court make any declaration of law within the meaning of article 141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M. Varadaraja Pillai's case [1972] 85 Mad LW 760 would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent Benches of co-ordinate or lesser strength but open to reconsideration by any Bench of the same High Court with a coram of judges more than two. The Full Bench was not dealing with a prayer for review of the earlier decision of the Division Bench in M. Varadaraja Pillai's case [1972] 85 Mad LW 760 and for setting it aside. Had it been so, a different question would have arisen, namely, whether anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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