SC's power to grant special leave is discretionary

HP Ranina Under article 136 of the Constitution of India, the Supreme Court may, in its discretion, grant special leave to appeal from any udgment, decree or order made !y any court or tri!unal in India" #here are several recent pronouncements of the ape$ court on the circumstances in %hich a special leave petition may !e admitted or dismissed" &rticle 136 of the Constitution of India confers a special urisdiction on the Supreme Court %hich is s%eeping in nature" It is a residuary po%er in the sense that it confers an appellate urisdiction on the Supreme Court su! ect to special leave !eing granted in such matters as may not !e covered !y the preceding articles" 'ven in the field covered !y the preceding articles, urisdiction conferred !y article 136 is availa!le to !e e$ercised in an appropriate case" It is an untrammelled reservoir of po%er incapa!le of !eing confined to definitional !ounds( the discretion conferred on the Supreme Court !eing su! ected to only one limitation, that is, the %isdom and sense of ustice of the udges" )o right of appeal is conferred upon any party( only a discretion is vested in the Supreme Court to interfere !y granting leave to an applicant" #he urisdiction conferred !y article 136 is divisi!le into t%o stages * the first stage is upto the disposal of the prayer for special leave to appeal( the second stage commences if and %hen the leave to appeal is granted and the petition for special leave to appeal is converted into an appeal"+hile hearing the petition for special leave to appeal, the Supreme Court is called upon to see %hether the petitioner should !e granted such leave or not" +hile hearing such petition it does not e$ercise its appellate urisdiction( it merely e$ercises its discretionary urisdiction to grant or not to grant leave to appeal" If the petition see,ing grant of special leave is dismissed, it is an e$pression of opinion !y the Supreme Court that a case for invo,ing the appellate urisdiction of the Court %as not made out" +hatever !e the phraseology employed in the order of dismissal, if it is a non-spea,ing order, ie", it does not assign reasons for dismissing the special leave petition, it %ould neither attract the doctrine of merger so as to stand su!stituted in the place of the order put in issue !efore it, nor !e a declaration of la% !y the Supreme Court under article 1.1 of the Constitution for there is no la% %hich has !een declared" If the order refusing special leave to appeal is a spea,ing order, ie", it gives reasons for refusing the grant of leave, then the order has t%o implications" /irstly, the statement of la% contained in the order is a declaration of la% !y the Supreme Court %ithin the meaning of article 1.1 %hich %ill o!viously !e !inding on all courts and tri!unals in India and certainly the parties thereto"

Secondly, other than the declaration of la%, %hatever is stated in the order are the findings recorded !y the Supreme Court %hich %ould !e !inding on the parties and the court, tri!unal or authority %hose order %as under challenge, in any proceedings su!se0uent thereto, on the principle of udicial discipline, the Supreme Court !eing the ape$ court of the country" #he declaration of la% %ill !e governed !y &rticle 1.1 !ut, the case not !eing one %here leave is granted, the doctrine of merger does not apply"Inspite of a petition for special leave to appeal having !een filed, the udgment, decree or order against %hich leave to appeal has !een sought for, continues to !e final, effective and !inding as !et%een the parties" If at the stage %hen special leave is granted, the respondent or caveator appears and resists the grant of special leave and the ground urged in support of resisting the grant of special leave is re ected on merits, then it %ould not !e open to the respondent to raise the same point over again at the time of final hearing of the appeal" Ho%ever, if the respondent or caveator does not appear, or having appeared does not raise a point, or even if he raised a point the court does not decide it !efore grant of special leave, the same point can !e raised at the time of final hearing" #here %ould !e no technical !ar of res udicata" 1nce leave has !een granted, the finality of the udgment, decree or order appealed against is put in eopardy though it continues to !e !inding and effective !et%een the parties unless it is a nullity or unless the court passes a specific order staying or suspending the operation or e$ecution of the udgment, decree or order under challenge" If leave to appeal is granted, the appellate urisdiction of the Supreme Court stands invo,ed( the gate for entry in the appellate arena is opened" #he petitioner is in and the respondent may also !e called upon to face him, though in an appropriate case, inspite of having granted leave to appeal, the court may dismiss the appeal %ithout noticing the respondent" +hen an appeal is dismissed !y the court, though !y a non-spea,ing order, the Supreme Court upholds the decision of the high court or of the tri!unal" #o such a case the doctrine of merger applies" 1nce special leave to appeal from an order has !een granted !y the Supreme Court, the order impugned !efore the Supreme Court !ecomes an order appealed against" &ny order passed thereafter !y the Supreme Court %ould !e an appellate order and %ould attract the applica!ility of the doctrine of merger" It %ould not ma,e any difference %hether the order is one of reversal or of modification or of dismissal, affirming the order appealed against" It %ould not also ma,e any difference if the order is a spea,ing or nonspea,ing one"

In 2unhayammed v State of 2erala 34.5 I#R 3667 a three-mem!er !ench of the Supreme Court approved its earlier decision in the case of 89 Salgaocar and :ros Pvt ;td v CI# 34.3 I#R 3<37" #he larger !ench e$plained its earlier decision in the case of &!!ai 9aligai Partnership /irm v 2 Santha,umaran 331==<7 > SCC 3<67" #he Supreme Court in 2unhayammed?s case held that the doctrine of merger is neither a doctrine of constitutional la% nor a doctrine statutorily recognised" It is a common la% doctrine founded on principles of propriety in the hierarchy of the ustice delivery system" #he logic underlying thedoctrine is that there cannot !e more than one decree or operative order governing the same su! ect-matter at a given point of time" +hen a decree or order passed !y a lo%er court, tri!unal or authority is su! ected to a remedy availa!le under the la% !efore a superior forum, then though the decree or order under challenge continues to !e effective and !inding, its finality is put in eopardy" 1nce the superior court has disposed of the case !efore it either %ay - %hether the decree or order under appeal is set aside or modified or simply confirmed - it is the decree or order of the superior court, tri!unal or authority %hich is the final, !inding and operative decree or order %herein merges the decree or order passed !y the court, tri!unal or authority !elo%" Ho%ever, the doctrine is not of universal or unlimited application"