- (1.) THIS is an application for review of an order dated August 24, 2007 passed by a Division Bench of this Court in M. A. T. No. 739 of 2007 heard analogously with M. A. T. No. 849 of 2007 by which the said Division Bench allowed those two appeals by setting aside the order passed by the learned Single judge and dismissing the writ application filed by the respondent No. 1. It appears from record that being dissatisfied with the aforesaid order dated August 24, 2007 passed by the said Division Bench, the writ-petitioner preferred an application for special leave to appeal before the Supreme Court of india being Special Leave to Appeal (Civil) No. 23769 of 2007 which was, however, dismissed by the Supreme Court on 4th January, 2008 by passing the following order: upon hearing counsel the Court made the following o R D E R delay condoned. We do not find any ground to interfere with the impugned order. The special leave petitions are, accordingly, dismissed. After dismissal of the said application for special leave to appeal, the applicant before us filed the present application for review along with an application for condonation of delay. The said Division Bench of this Court, however, dismissed the application for condonation of delay. Being dissatisfied, the present applicant for review filed another special leave application being SLP (Civil) No. 9486 of 2009 and the Apex Court has set aside the said order rejecting the application for condonation of delay and has directed this Court to dispose of the review application in accordance with law. Consequently, the application for review has come up for hearing before this Bench.
(2.) AT the very outset, Mr. Partha Sarathi Sengupta, the learned advocate appearing on behalf of the Food Corporation of India, has taken a preliminary objection as regards the maintainability of the present application for review on the ground that in view of the fact that the applicant before us in the past filed an application for special leave to appeal before the Supreme Court and the supreme Court after hearing the learned counsel for the parties decided not to interfere with the order passed by this Court, the application for review of the selfsame order is not maintainable. In support of such contention Mr. Sengupta relies upon a decision of the three-Judge-Bench of the Supreme Court in the case of Abbai Maligai Partnership Firm vs. K. Santhakumaran reported in AIR 1998 scw 4061. Mr. Sengupta further submits that the view taken by the Supreme court in the aforesaid case of Abbai Maligai Partnership Firm (supra) has been reaffirmed by a subsequent three-Judge-Bench of the Supreme Court in the case of Kunhayammed vs. State of Kerala reported in AIR 2000 SC 2587 as would appear from the last sentence of paragraph 27 of the judgment. Mr. Sengupta, therefore, prays for dismissal of the application for review on the aforesaid preliminary ground alone without entering into the merit.
(3.) MR. Chatterjee, the learned senior advocate appearing on behalf of the writ-petitioner/applicant for review has, however, opposed the aforesaid contention of Mr. Sengupta and has contended that so long the special leave to appeal is not granted, the appeal preferred against the original judgment of the division Bench was non est in the eye of law. According to Mr. Chatterjee, since in the previous occasion, the Supreme Court did not grant any special leave but dismissed the same without granting any leave, it should be presumed that his client had not preferred any appeal against the original judgment passed by the division Bench and as such, his clients application for review is quite maintainable. Mr. Chatterjee points out that if the appeal is dismissed on merit, in that event only, an application for review is barred; otherwise, Mr. Chatterjee contends, there is no merger of the original decision of this Court with the order of the Supreme Court dismissing the application for special leave. He, therefore, submits that the present application for review is not at all barred. In support of his contention that mere rejection of an application for grant of special leave does not amount to merger. Mr. Chatterjee relied upon various decisions of the supreme Court including the three-Judge-Bench decision in the case of kunhayammed vs. State of Kerala (supra) relied upon by Mr. Sengupta. He, therefore, prays for overruling the preliminary objection taken by Mr. Sengupta. Therefore, the preliminary point that arises for consideration in this appeal is whether the present application for review is barred in view of dismissal of the special leave application against the original order.;