Doctrine of Merger - Explained--Doctrine of Merger is neither a doctrine of constitutional law nor a statutorily recognized doctrine--It is a common law doctrine founded on the principles of propriety, in the hierarchy of justice delivery system--The doctrine of merger would not take away the right of appeal conferred on a party to a proceedings from challenging an order, merely for the reason that the appeal preferred by another party was dismissed.
Coming to the contention based on the doctrine of merger, it must be remembered that the doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. In State of Madras v. Madurai Mills Co. Ltd. (A.I.R. 1967 S.C. 681) the Apex Court held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a fusion or merger of two orders, irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. It has also been held by the Apex Court that the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. We have perused the records in R.C.R. No. 418 of 2012 and R.C.R. No. 80 of 2013. The records of R.C.R. No. 418 of 2012 indicate that urgent notice before admission was ordered and the Revision Petition was dismissed later at the admission stage itself. Likewise, R.C.R. No. 80 of 2013 was also dismissed at the admission stage itself, after hearing one of the landlords appeared through caveat also. Under Section 20 of the Act, a right of revision is provided for both the landlord and the tenant. In a case of instant nature, if the doctrine of merger is applied, this Court may not be able to exercise its revisional jurisdiction at the admission stage itself, in a case where the order impugned is partly against the respondent in the revision, without issuing notice to him and ascertaining from him as to whether he intends to challenge the decision, as otherwise act of court would prejudice him. In Commissioner of Sales Tax, U.P., Lucknow v. Vijai Int. Udyog, G.T. Road, Sikandrarao, Hathras [(1984) 4 S.C.C. 543], the Apex Court has held that the doctrine of merger would not take away the right of appeal conferred on a party to a proceeding to challenge an order merely for the reason that the appeal preferred by the other was dismissed.
IN THE HIGH COURT OF KERALA
R.C.R. Nos. 296, 306 and 330 of 2013
Decided On: 06.06.2014
Mohammed Abdullah Vs. M.P. Ashique
Hon'ble Judges/Coram:
T.B. Radhakrishnan and P.B. Suresh Kumar, JJ.
Citation:2014 (2) KLT 1069
1. Does the dismissal of a tenant's revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short, against a judgment of the Appellate Authority, deprive the landlord of the right to challenge the very same judgment of the Appellate Authority in revision, in all cases? What is the extent of effect of the doctrine of merger, if any? These are pithily, the questions raised for decision in these Rent Control Revisions. The relevant facts are not in dispute. RCP Nos. 34 of 2003, 36 of 2003 and 38 of 2003 on the file of the Additional Rent Control Court, Kannur have been instituted in respect of different portions of a building occupied by three tenants. The landlord sought eviction of the tenants under Sections 11(2)(b), 11(3) and 11(4)(iv) of the Act. In the course of the proceedings, the landlord died. On her death, her legal representatives continued the lis as additional landlords. The case set up in the Eviction Petition was that the building is in a dilapidated condition and that it needs to be reconstructed for the occupation of one of additional landlords. The Rent Control Court, by a common order, allowed RCP No. 36 of 2003 and RCP No. 38 of 2003, upholding all the grounds and dismissed RCP No. 34 of 2003. Even though, the claim for eviction under Section 11(4)(iv) of the Act was upheld, the tenants were not extended the benefit of first option to have the reconstructed building allotted to them as provided for under the third proviso to Section 11(4)(iv) of the Act.
2. The common order of the Rent Control Court in RCP Nos. 36 of 2003 and 38 of 2003 was challenged by the tenants concerned before the Appellate Authority in R.C.A. No. 157 of 2004 and R.C.A. No. 4 of 2005. One of the landlords also challenged the decision in RCP No. 34 of 2003 before the Appellate Authority in R.C.A. No. 117 of 2005. The Appellate Authority, by a common order, dismissed R.C.A. Nos. 157 of 2004 and 4 of 2005 preferred by the tenants and allowed R.C.A. No. 177 of 2005 preferred by the landlord, ordering eviction in RCP No. 34 of 2003 also under Section 11(3) and 11(4)(iv) of the Act. Further, the Appellate Authority directed the landlords to reconstruct the building within six months and extended to the tenants the benefit of first option to have the reconstructed building allotted to them, as provided for under the third proviso to Section 11(4)(iv) of the Act. The operative portion of the decision of the Appellate Authority dealing with the said direction reads as follows:
The landlords will reconstruct the building within 6(six) months from the date of this judgment and the tenants shall have the first option to have the reconstructed buildings allotted to them with the liability to pay fair rent.
This direction of the Appellate Authority is under challenge in these Rent Control Revisions.
3. The learned counsel for the revision petitioner contended that in a case where the bona fide need for reconstruction of the building goes along with the bona fide need for own occupation, the tenants are not entitled to the benefit of the third proviso to Section 11(4)(iv) of the Act, as no question of letting out to anybody including the evicted tenant arises in such cases.
4. The learned counsel for the respondents, on the other hand, pointed out that two of them had challenged the impugned decision of the Appellate Authority, in R.C.R. No. 418 of 2012 and R.C.R. No. 80 of 2013 before this Court and both the Revision Petitions have been dismissed, after hearing the landlords. According to the learned counsel, the impugned judgment, in the circumstances, merged with the decisions in R.C.R. No. 418 of 2012 and R.C.R. No. 80 of 2013 and therefore, interference would result in interference with the judgments of this Court in the aforesaid Revision Petitions. In other words, according to them, the Revision Petitions, in the circumstances, are not maintainable.
5. It is now settled that the grounds available to a landlord under Section 11(3) and 11(4)(iv) of the Act are not mutually exclusive and nothing stands in the way of a landlord claiming eviction under both the said sub-sections. If the grounds are not mutually exclusive, the requirements of the Section have to be understood in such a way as to avoid any conflict. If one interprets the provisions contained in Section 11(3) and 11(4)(iv) of the Act in such a way as to avoid any conflict, the only conclusion possible is to hold that the third proviso to Section 11(4)(iv) of the Act will not have any application, when the bona fide need for reconstruction goes along with the bona fide need for own occupation, as otherwise, the order upholding the ground under Section 11(4)(iv) would defeat the order upholding the ground under Section 11(3) of the Act. The above interpretation to the provisions contained in Section 11(3) and 11(4)(iv) of the Act is in accordance with the general principle that an author must be supposed not to have intended to contradict himself. This view has been taken by this Court in Narayana Panicker and Another v. Daveed Sait 1968 KHC 309: 1968 KLJ 478 Das Naik v. Narayanan MANU/KE/0208/1980 : 1980 KHC 264 : 1980 KLT 951 : ILR 1981 (1) Ker. 617 : 1980 KLN 628 and Achamma v. Sankaran Nair 1990 (1) KLT SN 27. The direction of the Appellate Authority extending the benefits of the third proviso to Section 11(4)(iv) of the Act to the tenants, in the circumstances, is illegal and unwarranted.
6. Coming to the contention based on the doctrine of merger, it must be remembered that the doctrine of merger is neither a doctrine of Constitutional Law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. In State of Madras v. Madurai Mills Co. Ltd. MANU/SC/0225/1966 : 1967 KHC 556 : AIR 1967 SC 681 : 1967 (1) SCR 732 : 11 Law Rep. 601 : 19 STC 144 the Apex Court held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a fusion or merger of two orders, irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular Statute. It has also been held by the Apex Court that the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. We have perused the records in R.C.R. No. 418 of 2012 and R.C.R. No. 80 of 2013. The records of R.C.R. No. 418 of 2012 indicate that urgent notice before admission was ordered and the Revision Petition was dismissed later at the admission stage itself. Likewise, R.C.R. No. 80 of 2013 was also dismissed at the admission stage itself, after hearing one of the landlords appeared through caveat also.
7. Under Section 20 of the Act, a right of revision is provided for both the landlord and the tenant. In a case of instant nature, if the doctrine of merger is applied, this Court may not be able to exercise its revisional jurisdiction at the admission stage itself, in a case where the order impugned is partly against the respondent in the revision, without issuing notice to him and ascertaining from him as to whether he intends to challenge the decision, as otherwise act of Court would prejudice him. In Commissioner of Sales Tax, U.P., Lucknow v. Vijai Int. Udyog, G.T. Road, Sikandrarao, Hathras MANU/SC/0253/1984 : 1984 KHC 752 : 1984 (4) SCC 543 : AIR 1985 SC 109, the Apex Court has held that the doctrine of merger would not take away the right of appeal conferred on a party to a proceeding to challenge an order merely for the reason that the appeal preferred by the other was dismissed. The relevant portion of the judgment reads as follows:
On the facts of the case, we do not accept the view of the High Court that the doctrine of merger applied. Both the assessee and the Commissioner had a statutory right of appeal to the Tribunal against the decision of the Assistant Commissioner and in exercise of that right two separate appeals had been filed. On account of the mistake of the Tribunal in not clubbing the two appeals the statutory right of appeal of one party would not be negatived. It is a well-settled proposition of law that no party should suffer on account of the mistake of the Court or the Tribunal. That apart in a situation like this, the doctrine of merger has no application and the High Court was in error in throwing out the Commissioner's appeal by applying the doctrine of merger.
8. For the aforesaid reasons, we are of the view that the doctrine of merger does not take away the right of revision conferred on the landlord, merely for the reason that the revision preferred by the tenant has been dismissed at the admission stage. The Revision Petitions are therefore maintainable. In the result, the direction contained in the impugned judgment, conferring the tenants the first option to have the reconstructed building allotted to them, is set aside and the Revision Petitions are allowed to that extent.
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