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APPLICATION OF DOCTRINE OF MERGER: UNDERSTANDING ITS VARIABILITY
The Supreme Court of India has declared that Article 142 of the Indian Constitution, 1949 (the “Constitution”) is an exception to the theory of merger and stare decisis in the case of Government of NCT of Delhi & Anr. v. M/s BSK Realtors LLP & Anr. (and connected matters).
The court adopted the test established in the landmark decision of the Constitution Bench of 5 judges in Indore Development Authority v/s Manoharlal and Others (2020 SC) to the landowners’ arguments. The extraordinary constitutional powers granted to the court under Article 142 of the Constitution, the concept of separation of power remains intact and are always regarded as an exception to the theory of merger and the norm of stare decisis.
WHAT IS THE DOCTRINE OF MERGER?
It is a common law notion based on the principle of maintaining decorum and propriety in the conduct of courts and tribunals. The doctrine of merger in the Supreme Court states that when an appellate court issues an order, the order issued by the lower court is merged with it. The basic rationale is that at any given time, only one decree or effective order can regulate the same subject area. The theory resolves the question of which order should be enforced and given priority if both subordinates issue multiple orders on the same topic and superior courts.
It clarifies and stipulates that in this circumstance, the superior court’s order or the subsequent ruling will take precedence, and the lower court’s order will be combined with the superior court’s order. The idea is not legally recognized, but it is a declaration of judicial propriety that aims to establish discipline in the operations of subordinate adjudicating bodies, whether judicial, quasi-judicial, or administrative.
WHAT IS THE STARE DECISIS DOCTRINE?
The notion of Stare Decisis states that courts must follow previously issued judicial decisions in circumstances where identical legal problems are raised in future proceedings. It indicates that courts use precedents to make decisions about similar legal issues. Such decisions serve as authority or an example for courts for future decisions on similar legal cases/issues.
FACTS OF THE CASE
The land acquisition to purchase the lands of M/s BSK Realtors began, and the Delhi High Court granted the writ petition based on Pune Municipal Corporation and Anr. v. Harakchand Misrimal Solanki and Ors. (2014 SC) (“Pune Municipal Corporation”). In Pune Municipal Corporation case, it was held that if either of the two ingredients of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013, (“2013 Act”) were met, i.e., either physical possession of the land was not taken or compensation was not paid, the acquisition proceedings under challenge would be deemed to have lapsed.
In Indore Development Authority v. Manoharlal and others, on March 6, 2020, a constitution bench of five judges overruled the decision in Pune Municipal Corporation case, saying that land acquisition proceedings lapse only when the dual pre-requisites of non-payment of compensation to landowners and non-acquisition of physical possession of the land are met. Government of National Capital Territory of Delhi (GNCTD) submitted the matter, and after noticing that the problem required more investigation, a bench of two Hon’ble judges directed that a three-judge bench to hear it.
DECISION OF COURT
The Court emphasized the importance of maintaining consistency, clarity, and coherence through harmonious resolutions, despite the chaos caused by inconsistent judicial opinions on section 24(2) of the 2013 Act. It is purely coincidental that one Special Leave Petition (SLP), arising from the same acquisition, could have been converted into a civil appeal and subsequently dismissed by this Court. Meanwhile, other SLPs related to the same acquisition might have been dismissed outright or await resolution. The practical outcome of this scenario is that one piece of land, acquired and vested in the state, is free from all encumbrances, whereas another adjacent parcel of land is released due to the acquisition lapsing under section 24(2) of the 2013 Act.
The Court further stated that the merger theory cannot be applied mechanically in circumstances where it results in irreversible consequences and the general public has developed an interest in public infrastructure.
In cases of disparity between groups, the court was able to do complete justice between expropriated landowners, the state, and its developing agencies, and, most importantly, the general public who had acquired a vested right in the public infrastructure projects, using the extraordinary powers granted by Article 142 of the Constitution.
OBSERVATION
After hearing the parties and going through the decision in Kunhayammed and Others v. State of Kerala and Another, the Court noted that if doctrine of merger was applied mechanically to certain category of cases, it would lead to irreversible consequences. Most appeals filed by the Delhi government were allowed and directions were passed. Separate orders were passed in other cases.
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