JUDGMENT
Ramesh Madhav Bapat, J.
1. A.S.No.1848 of 1993 was filed by the beneficiary i.e., A.P. Housing Board, represented by its Executive Engineer. The said appeal was dismissed by the Bench presided over by the Hon’ble Mr. Justice N.Y. Hanumanthappa (as he then was) whereas the cross-objections filed by the claimants was allowed granting compensation at the rate of Rs. 67,000/- per acre plus 30% solatium and interest at the rate of 9% p.a. for one year from the date of taking possession of the land and at 15% p.a. thereafter and 12% additional market value per annum.
2. It appears from the record that the land admeasuring about 149.18 guntas in different survey numbers i.e., Sy. Nos. 607/2, 611, 617 to 620, 734, 767, 769 and 781 of Mamillaguda village. Hamlet of Nalgonda village and Mandal, Nalgonda District was acquired by the Government. The entire land was classified by the Land Acquisition Officer in two categories. The first category was called as class A and the 2nd category was called as class B. The Land Acquisition Officer awarded compensation at the rate of Rs. 10,000/- per acre for class A lands which
admeasures Ac. 144.04 guntas and for the remaining land of Class B, the Land Acquisition Officer awarded compensation at the rate of Rs.5,000/- per acre.
3. The claimants were not satisfied with the award passed by the Land Acquisition Officer, therefore, they sought reference to the civil Court under Section 18 of the Land Acquisition Act. The reference was numbered as OP No.37 of 1987, which was filed before the Subordinate Judge, Nalgonda. The said OP, was disposed of by the learned Subordinate Judge, Nalgonda enhancing compensation at the rate of Rs.50,000/- per acre insofar as the Class A lands are concerned and Rs. 15,000/- per acre insofar as the Class B lands are concerned. The judgment and decree is dated 26-3-1993.
4. Being aggrieved by the enhancement made by the learned Subordinate Judge, the A.P. Housing Board, who is the beneficiary under the land acquisition, filed AS No. 1848 of 1993 in this Court. The respondents 2, 8, 12 and 24 to 29 in AS No. 1848 of 1993 filed cross-objections in the appeal. The extent of the land covered by the cross-objections is Ac.66-34-174 guntas in Sy. Nos.607, 611, 618, 619, 734, 735 and 767 and the Class “B” lands comprised of Ac.5-11 guntas in Sy. No. 617. This appeal was disposed of by this Court on 13-11-1997 in which this Court enhanced compensation from Rs. 50,000/- to Rs. 67,000/- in respect of the lands in other survey numbers except Sy. No. 617 and confirmed the compensation as awarded by the Reference Court in respect of other amounts.
5. Aggrieved by the said judgment, the A.P. Housing Board filed SLP No.9908 of 1998 against the judgment and decree passed by this Court in AS No. 1848 of 1993 before the Hon’ble Supreme Court. The SLP was rejected by the Hon’ble Supreme Court on 18-1-1999.
6. The claimants filed CC No.444 of 1989 in the Hon’ble Supreme Court and it was contended by the A.P. Housing Board before the Supreme Court in CMP No.444 of 1999 that the entire amount as per the decree was deposited while the claimants in the said C.C. claimed that certain further amounts are required to be deposited. The Hon’ble Supreme Court closed the C.C. by the judgment dated 17-4-2000 permitting the claimants to approach the executing Court for appropriate relief for difference of the amounts, if any.
7. The claimants filed EP No. 2 of 2001 in OP No.37 of 1987 before the Executing Court seeking realisation of Rs.46.47 lakhs contending that they are entitled for compensation at the rate of Rs.67,000/- per acre.
8. The A.P. Housing Board filed counter in the said E.P. and also filed CMP No. 16316 of 2001 in AS No.1848 of 1993 under Section 152 CPC to amend/modify the decree in A.S. No. 1848 of 1993.
9. CMP No. 7148 of 2002 is filed under Order 47, Rule 1 CPC to review the judgment and decree passed in AS No.1848 of 1993 with a contention that enhanced compensation is payable only to the cross-objectors and not to the claimants, who did not file cross-objections in the appeal. This is the background as to how this review petition came before us for adjudication.
10. Before the learned Counsel for the review petitioner made his submissions, the learned Counsel for the respondents Mr. Ella Reddy raised a preliminary objection that the S.L.P. filed by the review petitioner before the Hon’ble Supreme Court was dismissed and hence the review petition is not maintainable.
11. While rebutting the aforesaid arguments, the learned Counsel Mr. J.
Prabhakar appearing on behalf of the review petitioner submitted that the review petition is maintainable though the SLP was dismissed by the Hon’ble Supreme Court. The learned Counsel placed reliance on a ruling reported in Kunhayammed and Ors. v. State of Kerala and Anr., . Their Lordships after elaborately discussing the above issue as to whether after dismissal of SLP, the review petition is maintainable. In para (43) of the judgment their Lordships concluded as under:
“43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified sat the SLP stage obviously that order cannot also be affirmed at the SLP stage.
To sum up our conclusions are:-
(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 subordinate 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 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, modifying 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 its 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) Any 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 Apex 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 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 Rule 1 of Order 47 of the C.P.C.”
Whereas the learned Counsel Mr. Ella Reddy appearing for the respondents relied upon a ruling reported in K. Rajamouli v. A.V.K.N. Swamy, , in which their Lordships were pleased to observe as under:
“A. Constitution of India – Article 136 – SLP – Res judicata -Where High Court having dismissed a revision petition, a review petition was filed before it and during pendency of the same, an SLP was filed against the main judgment of High Court dismissing the revision petition but SLP was dismissed summarily without assigning any reasons by Supreme Court and thereafter, the review petition having been dismissed by High Court, an SLP was again filed before Supreme Court against that judgment of High Court, held, the subsequent SLP would not be barred by res judicata.”
12. The learned Counsel Mr. Ella Reddy has relied upon a ruling reported in Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors., . The learned Counsel Mr. Ella Reddy also relied upon a ruling reported in Abbai Maligai Partnership Firm and Anr. v. K. Santhakumaran and Ors., , in which their Lordships were pleased to hold as under:
“Civil Procedure Code, 1908 – Order 47 Rules 1, 4- Review – Abuse of process of Court – Appellate authority setting asides
eviction order passed by Rent Controller holding that there was a bona fide dispute with regard to title of the property which could be decided by civil Court – Revision petition against the appellate order dismissed by High Court – SLP preferred by respondents against High Court’s order- SLP dismissed by Supreme Court after hearing Counsel for the parties – Review petition filed by respondents before the High Court after delay of 221 days – High Court condoning the delay, reversing the order made by it in revision and ordering eviction of tenant-appellants – Held filing of the review petition after dismissal of the SLP by Supreme Court against the self same revisional order amounted to abuse of process of the Court and entertainment of the review petition, in the circumstances, was an affront to the order of the Supreme Court -Judicial propriety -High Court hearing review petition after dismissal of SLP – Is an affront to order of Supreme Court and against judicial discipline.”
13. It can be seen from the rulings of the Apex Court cited by the learned Counsel Mr. J. Prabhakar that their Lordships of the Supreme Court were pleased to draw the line of distinction between the rejection of SLP at the admission stage and rejection of SLP on hearing both the parties. Therefore, we are of the considered view that the review petition is maintainable.
14. The learned Counsel Mr. J. Prabhakar appearing on behalf of the review petitioner submitted at the Bar that the review petitioner had deposited the entire amount by way of compensation as per the order of this Court. The review petitioner had deposited the enhanced compensation in respect of the claimants, who had filed cross-objections, but the review petitioner did not deposit the enhanced compensation to the claimants, who did not file the cross-objections in the appeal before the High Court in A.S. No. 1848 of 1993 as they are not entitled for
enhanced compensation. It was further submitted by the learned Counsel Mr. J. Prabhakar that the claimants, who did not file cross-objections, were satisfied with the award passed by the Reference Court though they were made party respondents in the appeal before this Court.
15. While rebutting the aforesaid arguments, the learned Counsel Mr. Ella Reddy appearing for the respondents, who did not file cross-objections, submitted at the Bar that though some of the claimants did not file cross-objections, they are entitled for enhanced compensation.
16. Now the point arises for our consideration as to whether the claimants, who did not file cross-objections in the appeal, are entitled to the benefit given to the persons, who filed the cross-objections?
17. The learned Counsel Mr. J. Prabhakar appearing for the review petitioner relied upon a ruling reported in Superintending Engineer and Ors. v. B. Subba Reddy, , in which their Lordships were pleased to observe that under Order 41, Rule 22 and 1 CPC the cross-objection is nothing but an appeal, in fact a cross-appeal. It has all the trappings of an appeal and is filed is the form of a memorandum. The provisions of Order 41, Rule 1 CPC are applicable thereto. Even where the appeal is withdrawn or is dismissed for default, the cross-objections may still be heard decided. Their Lordships were further pleased to observe that the appeal is a substantive right. It is a creation of statute. Right to appeal does not exist unless it is specifically conferred. Cross-objections is like an appeal. It has all the trappings of the appeal. It is filed in the form of memorandum and the provisions of Order 41, Rule 1 CPC. In other words, it means that if the claimants are not satisfied with the award passed by the Reference Court and if the Government or the
beneficiary filed an appeal, they have to file cross-objections with appropriate Court fee, which is in other words, it is an appeal as contemplated under Order 41, Rule 1 CPC. Let us assume a case where the appeal in the High Court is not filed by the Government or the beneficiaries under the Land Acquisition Act, the claimants thereto can maintain an appeal independently under Order 41, Rule 1 CPC by paying appropriate Court fee. The appellate jurisdiction of the high Court can only be invoked by the claimants or the beneficiaries under the Land Acquisition Act under Order 41, Rule 1 CPC and if no appeal cross-objection is filed by the claimants in the appeal, no relevancy can be given to them.
18. The learned Counsel Mr. Ella Reddy appearing for the respondents submitted at the Bar that when AS No. 1848 of 1993 was heard by the Division Bench of this Court, the Division Bench of this Court had made it clear and it was also understood by the beneficiaries that the claimants, who have not filed cross-objections, are also entitled for the relief if granted by the appellate Court.
19. We are not prepared to accept the submission made by the learned Counsel Mr. Ella Reddy appearing for the respondents because the judgment of this Court in AS No. 1848 of 1993 does not disclose the aforesaid facts. For that purpose, we will have to go through the judgments once again. The Division Bench of this Court while delivering the judgment at para (8) had observed as under:
“8. Under the circumstances we feel that 50% deduction is a just one. By giving 50% margin for deduction, taking the rates at Rs. 25/- to Rs. 30/- per square yard, the average rate per square yard comes to Rs. 13.75, since we said 50% deserves to be deducted for developmental purposes in other words, per acre it works out to Rs.66,500/-which, we will be rounding off to Rs.67,000/-per acre, in addition to which, the cross-
objectors/claimants are entitled for all statutory benefits, namely, 3.0% solatium, interest at 9% per annum for one year from the date of taking possession and at 15% per annum thereafter and 12% additional market value per annum.”
It means the Division Bench of this Court gave the benefit of enhanced compensation only to cross-objections/claimants and not to the other claimants, who did not file any cross-objections. The learned Counsel Mr. Ella Reddy further submitted that in a decree drawn the benefit is given to all the claimants in the OP and therefore all the claimants in the OP though they have not filed cross-objections are entitled for the enhanced compensation, We do not find any substance in the arguments of Mr. Etta Reddy. The decree has to be drawn inconsonance with the judgment. Drawing a decree is held to be a ministerial act and if any mistake is committed in drawing of the decree, it has to be corrected under Section 152 CPC. Therefore, we direct that the decree be corrected accordingly if under the decree, benefit is given to the claimants, who did not fife cross-objections. Only the claimants, who have filed cross-objections, are entitled for the benefit of enhanced compensation given by the earlier Division Bench of this Court.
20. On going through the entire material on record, we have come to the conclusion that, in fact, it is not a review petition at all, which is filed by the A.P. Housing Board. This petition has to be called as “Clarification Petition”. We made enquiries with the learned Counsel Mr. J. Prabhakar appearing for the review petitioner as to why there was an inordinate delay in filing the review petition/clarification petition. It was submitted by the learned Counsel Mr. J. Prabhakar that when no benefit was given by the Division Bench of this Court in appeal, the review petitioner understood from the judgment that the claimants, who did not file cross-objections,
were not entitled for the benefit and excluding the said amount, the remaining amount as directed by the Division Bench of this Court was deposited before the Reference Court to the credit of the said OP. But it is for the first time when the claimants, who did not file cross-objections, filed execution proceedings against the review petitioner, it is for the first time that the review petitioner came to know that the claimants, who did not file cross-objections, are taken the disadvantage of the decree wrongly drawn up and therefore was a delay in filing the review/clarification petition. We hold that though the petition is filed by the beneficiaries is styled as review petition, we treat it as a “clarification petition.”
21. By going through the entire judgment, it appears to us that the earlier Division Bench never intended to give benefit of enhanced compensation to the claimants, who did not file cross-objections. Therefore, we clarify that the claimants, who did not file cross-objections, are not entitled for the benefit of enhanced compensation. We clarify accordingly.
22. We allow the petition filed by the petitioner herein with the above modifications. A decree be drawn up accordingly. No costs.