TaxTMI 
TaxTMI 
1992 (1) TMI 354
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....ression of dissatisfaction by their Lordships of the Privy Council about the principles decided by a Full Bench of a High Court was not sufficient to take away their authority until the Privy Council expressed a definite disagreement with them. Vide Anant Ram and others v. Khushal Singh and Ors. AIR1927All244 . In Gundavarapu Seshamma v. Kornepati Venkata Narasimha Rao and Ors. (1940)1MLJ400 a Full Bench is a final court of Appeal in an Indian High Court, unless the case, is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law and if the later Bench does not accept as correct the decision of the earlier Bench, the only right and proper course to adopt is to refer the matter to a Full Bench. The Full Bench pointed out that if the said course was not adopted, the courts subordinate will be left without guidance and there would be loss of money and waste of judicial time. in Ningappa v. Emperor A.I.R. 1941 Bom. 408, Beamont C.J., observed that a later Full Bench cannot overrule an earlier Full Bench merely because the later Bench comprised of more Judges. He expressed himself thus: There can....
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.... to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court. (20) As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by courts in such matters. 4. In Jai Kaur v. Sher Singh [1960]3SCR975 , the Supreme Court held that a subsequent Division ....
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.... same is overruled by the Supreme Court. 9. In Ballabhdas Mathuradas Lakani and Ors. v. Municipal Committee, Malkapur AIR1970SC1002 , it is held that the decision of the Supreme Court was binding on the High Court and the latter could not ignore it because they thought that relevant provisions were not brought to the notice of the Supreme Court. 10. In Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Company, etc. v. The State of A.P. and Ors. [1972]1SCR346 , it was observed: It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. 11. In Punjab University v. Vijay Singh Lamba AIR1976SC1441 , though the Court recognised that judicial consistency was not the highest state of legal bliss, law must grow and it cannot afford to be static, observed that precedents should be stepping stones and not halting places; but at the same time cautioned that the weekly change in the composition of the court ought not to be accompanied by ch....
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.... which it is rendered and any and every veiled doubt with regard thereto does not justify the reconsideration thereof by a larger Bench and thus put the law in a ferment afresh. The ratios of the Full Benches are and should be arrested on surer foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest, that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a larger Bench of the, same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid the law directly contrary to the same. And, thirdly, where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear-cut statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a smaller Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid cat....
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....terated the law of precedents in the following words: In such a contingency, sitting as we do, as Judges of a Division Bench of this Court, we are bound by the interpretation and preference given by the Full Bench of this Court. This will be in consonance with the decorum of our, judicial functioning. It is well settled that an interpretation (and equally a misinterpretation) by a larger Bench of the High Court, of a decision or decisions of the Supreme Court is binding on a smaller Bench of the same Court, and the latter cannot refuse to follow the decision of larger Bench, on the ground that the larger Bench has wrongly understood or construed the decisions of the Supreme Court. Taking note of this principle, we are obliged to hold that the appellants could not be held to have locus standi to prefer and prosecute these writ appeals. 18. In Sundaradas Kanyalal Bhathija v. The Collector, Thane [1990]183ITR130(SC) , the law is stated thus: 17. It would be difficult for us to appreciate the judgment of the High Court. One must remember the pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are boun....
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....etween the conflicting opinions. The general public would be in dilemma whether to obey or not to obey such law and it ultimately falls into disrepute. 22. Judge Learned Hand has referred to the tendency of some judges who win the game by sweeping all the chessmen off the table. (The Spirit of Liberty by Alfred A Knopf, New York (1953) p.131). This is indeed to be deprecated. It is needless to state that the judgment of superior courts and Tribunals must be written only after deep travail and positive vein. One should never let a decision go until he is absolutely sure it is right. The law must be made clear, certain and consistent. But certitude is not the test certainty and consistency does not mean that there should be no word of new content. The principle of law may develop side by side with new content but not inconsistencies. There could be waxing and waning the principle depending upon the pragmatic needs and moral yearnings. Such development of law particularly, is inevitable in our developing country. In Union of India v. Raghubir Singh [1989]178ITR548(SC) , learned Chief Justice Pathak had this to say [1989]178ITR548(SC) : Legal compulsions cannot be lim....
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....t agree with its ratio, he shall place the papers before the Chief Justice to consider whether a larger Bench should be constituted for considering the question (c) A Division Bench is bound by the decision of another Division Bench and if it wants to differ, it shall refer the matter to the Full Bench (d) A fortiori a Division Bench is bound by the decision of a Full Bench and if it wants to differ, it shall place the papers before the Chief Justice to consider whether a larger Bench should be constituted for reconsidering the question (e) the decision of a Full Bench is binding on the court including a subsequent Full Bench until it is overruled by a higher Court or a larger Bench, (f) A decision of a Full Bench can be reconsidered only by a larger Bench specially constituted by the Chief Justice for deciding the question, (g) Even the obiter dictum of a Full Bench is entitled to great weight, (h) The binding effect of a prior decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided (i) the decision of the Supreme.Court is binding on the Hig....
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.... decisions of the court, it is not uncommon for the matter to be argued before a full court as the decision of such a court carries greater weight. (Paragraph 578) A Divisional Court is bound by its own previous decisions, regardless of how many judges are sitting, with limited exceptions in criminal cases, subject always to the per incuriam rule. Faced with conflicting earlier decisions the court is free to decide which to follow. Divisional Court decisions bind judges of first instance, even of a different division, but not the Employment Appeal Tribunal. (Paragraph 579) There is no statute or common law rule by which one court is bound to abide by the decision of another court of co-ordinate jurisdiction. Where, however, a judge of first instance after consideration has come to a definite decision on a matter arising out of a complicated and difficult enactment, the opinion has been expressed that a second judge of first instance of co-ordinate jurisdiction should follow that decision; and the modern practice is that a judge of first instance as a matter of Judicial Comity usually follows the decision of another judge of first instance unless he is convinced th....
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....s when sitting as a division with, three members. In this respect, although we are unable to agree with certain views expressed by Greer, L.N., as will presently appear, we think that he was right in saying that what can be done by a full court can equally well be done by a division of the Court. The corollary of this is, we think, clearly true, namely, that what cannot be done by a division of the Court cannot be done by the full court. In considering the question whether or not this Court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this Court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it, and there is no conflicting decision of this Court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is. where this Court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a s....
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.... the 1966 decision Chancery Lame Safe & Deposit and Offices Company Ltd. v. I.R.C. (1966)1 All E.R. 1: 1966 A.C. 85, is wrong. This contention means, when interpreted, that three or more of Your Lordships ought to take the view which appealed then to the minority. My lords, in my firm opinion, the 1966 Practice Statement (Note (1966) 3 All E.R 77) (1966)1 W.L.R. 1234, was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by a majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than....
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....htman said, I turn first to the sellers' invitation that this House should depart from the conclusion which it reached less than two years ago in Bremer Vulkan Schiffbau Und Maschinenfabrik v. South India Shipping Corporation (1981)1 All E.R. 289:1981 A.C. 909. That is an invitation which I would unhesitatingly decline. 24. Courts in this country have followed the same principles and recognised the same three exceptions to the rule of precedent. Vide: 1. Jaisri Sahu v. Rajdewan Dubey and Ors. [1962]2SCR558 ; 2. Ramashrey Roy and Ors. v. Pashupati Kumar Pathak and Ors. AIR1968Pat1 ; 3. Yeshbai and Anr. v. Ganpat Irappa Jangam and Anr. AIR1975Bom20 ; 4. Panjumal Hasomal Advani v. Harpal Singh Abnashi Singh Sawhney and Ors. AIR1975Bom120 ; 5.Mamleshwar v. Kanhaiya Lal [1975]3SCR834 ; 6. Rama Rao and Ors. v. Shantibai and Ors. AIR1977MP222 ; 7. Sitaram Hari Shankhe v. Laxman Rambodh Dubey and Anr. AIR1980Bom55 ; 8. Thuraka Onnuramma and Anr. v. Tahsildar, Kadiri and Ors. AIR1980AP267 ; 9,Pritam Kaur v. Surjit Singh 10. Syed Mohideen v. Government of Tamil Nadu and Anr. (1985)IILLJ348Mad ; W.A.RAntulay v. R.S.Nayak and Anr. 1988CriLJ1661 ; 12. Municipal Corporation of De....
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....t it would be right to say that there may not be other cases of decisions given per incuriam in which this Court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two classes of decisions per incuriam fall outside the scope of our enquiry, namely (i) those where the court of co-ordinate jurisdiction which covers the case before it in such a case a subsequent court must decide which of the two decisions it ought to follow; and (ii) those where it has acted in ignorance of a decision of the House of Lords which covers the point in such a case a subsequent court is bound by the decision of the House of Lords. (Underlining ours) 26. But during the last three decades, Courts have found it convenient very often to throw away earlier rulings with the label per incuriam." We notice with anguish that at times the meaning of the expression had not been understood properly, which has led to the misuse of the same, if not abuse. One such instance is found in Abdul Malick v. The Collector of Dharmapuri and Ors. (1968)1MLJ9 , where ....
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....rrence. In the present case it is not shown that any statutory provision or binding authority was overlooked, and while not excluding the possibility that in rare and exceptional cases a decision may properly be held to have been per incuriam on other grounds, we cannot regard this as such a case. As we have already said, it is in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it: "Here was a manifest slip or error". In our judgment, acceptance of the Attorney-General's argument would necessary involve the proposition that it is open to this Court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction(at least in any case of significance or complexity) whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of counsel could provide. Such a proposition would, as it seems to us open the way to numerous and costly attempts to re-open questions now held to be authoritatively decided. Although, as was pointed out in Young v. Bristol Aeroplan....
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....ould have put judges of first instance in an embarrassing position, as driving them to take sides in an unedifying dispute between the Court of Appeal or three members of it (for there is no guarantee that other Lords Justices would have followed them and no particular reason why they should) and the House of Lords. But, much worse than this, litigants would not have known where they stood. None could have reached finality short of the House of Lords, and, in the meantime, the task of their professional advisers of advising them either as to their rights, or as to the probable cost of obtaining or defending them, would have been quite literally, impossible. Whatever the merits, chaos would have reigned until the dispute was settled, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection. The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decision of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co. Ltd.....
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....Q.B. 167, was wrongly decided. But the other two learned Judges who sat with him viz., Lawton and Scarman, L. JJ. took a different view. Lawton, L.J. observed that Zimmerman v. Grosswan (1972)1 Q.B. 167, was not a case where the Court had construed a statute in ignorance of another relevant statutory provision and it was not per incuriam. He held that the judgment in the earlier case was binding on the Court. Scarman, L.J. dealt with the question more elaborately and observed as follows: But Zimmerman v. Grosswan (1972)1 Q.B. 167, is authority binding on this Court, unless we can truly say that the judgment was per incuriam. But was it per incuriam? To say that the careful Judgment of Widgery L.J. reviewing as it did the history of the relevant legislation, was per incuriam a phrase in a foreign tongue which I translate as Homer nodded smacks of absurdity. I do not know, and would not dream of inquiring, whether Sees. 13 to 15 were present to his mind: they could not have been decisive in any event. Equally, Sections 86 to 89, whether or not he had them in mind, were relevant only as part of the context, and could not have been decisive. Can one, however, extend the per in....
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....e Court of Appeal was reversed. We have already extracted the relevant passages from the speeches of the Law Lords. 32. In Jaisri Sahu v. Rajdewan Dubey and Ors. [1962]2SCR558 , Venkatarama Aiyar, J., after setting out the law of precedents as laid down by the Privy Council in Buddah Singh v. Laltu Singh A.I.R. 1915 P.C. 70, and by the Full Bench of this Court in Seshamma v. Venkata Narasimharao (1940)1MLJ400 , and pointing out the necessity for maintaining a state of certainty in the law, observed as follows: It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in Seshamma v. Venkata Narasimharao (1940)1MLJ400 , that the decision of a Court of Appeal is considered as a general rule to be binding on....
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....s Laws of England setting out the exceptions to the rule of precedents. On the facts of the case, the Full Bench held that Section 13 of the new Limitation Act did not apply to that case, but the two earlier decisions of the High Court should be deemed to have been overruled by a later Supreme Court decision. 35. In Yeshbhai and Anr. v. Ganpat Irappa Jangam and Anr. AIR1975Bom20 , a Division Bench of the Bombay High Court referred to the ruling in Young v. Bristol Aeroplane Company Ltd. (1944)2 All E.R. 293, and declared the law thus: 27. Now, a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier court knew of the statute in question. If it did not refer to and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuriam as to vitiate the decision. These are the commonest illustrations of decision being given per incuriam. In order that a case can be decided per incuriam, it is not enough that it was inadequ....
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....ct its plain meaning by construing the word "dispute" as a bona fide dispute". We do not find that any of the said decisions decided the point of law on argument. Another Division Bench of the same High Court held in Penjumal Hassomal Advani v. Harpal Singh Abnashi Singh Sawhney and Ors. AIR1975Bom120 , that even the obiter of the Supreme Court is entitled to the highest respect in the High Courts because of Article 141 of the Constitution of India. It went on to hold that normally one Division Bench of a High Court cannot take a view contrary to the decision given by another Division Bench of that court and relied on Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractor Company v. The State of Andhra Pradesh [1972]1SCR346 . Then it referred to the proposition laid down by the Master of Rolls in Young v. Bristol Aeroplane Company Ltd. (1944)1 K.B. 718. Referring to the expression per incuriam the Bench observed. ...A decision cannot be treated as given per incuriam merely because the Court had not the benefit of a full and exhaustive argument, and as a general rule the only cases in which decisions should be held to be given as per incuriam are those given in....
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....d Ors. AIR1977MP222 , a Full Bench of that court held that an earlier decision of a single Judge was given per incuriam, as it was contrary to the view taken by that court earlier in several cases ,which were not noticed by the single Judge. 38. In Sitaram Hari Shankhe v. Laxman Rambodh Dubey and Anr. AIR1980Bom55 , Dharmadhikari, J. held that the judgment of Joshi, J. in an earlier case was not binding on him as the specific provisions of a statute and the Rules were not noticed. The learned Judge observed that a judgment rendered in ignorance of a statute or a rule having the force of a statute was decided per incuriam. He quoted from the rulings in Yeshabiv. Ganpat Irappa Jangani AIR1975Bom20 and Young v. Bristol Aeroplane Company Ltd. (1944) 2 All E.R. 293. 39. In Thuraka Onnuramma and Anr. v. Tahsildar, Kadiri and Ors. AIR1980AP267 , a single Judge of Andhra Pradesh High Court gave a similar ruling that a decision rendered overlooking a statutory provision shall be treated as per incuriam. He has extracted a passage from "Salmond on Jurisprudence. It is worthwhile repeating the same here. It is now well settled that a decision rendered overlooking a statutory pr....
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....t appears that when this Court gave the aforesaid directions in 16th February, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar 's case 1952CriLJ510 . See Halsbury's Laws of England, 4th Edn. Vol.26 page 297, para 578 and page 300, the relevant notes 8,11 and 15, Dias on Jurisprudence, 5th Edn. pages 128 and 130, Young v. Bristol Aeroplane Company Ltd. (1944)2 All E.R. 293. Also see the observation of Lord Goddard in Moore v. Hewitt (1947)2 All E.R. 270 and Penny v. Nicholas (1950) 2 All E.R. 89, 92A. Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle Ltd v. Wake-ling (1955)1 All E.R 708. Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. [1985]3SCR26 . We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 195....
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....mant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd v. Bremith Ltd (1941)1 KB. 675, the court held itself not bound by its previous decision. Sri Wilfrid Greene, M.R. said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words, of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment, This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be re....
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....Appeal must follow its previous decision and leave and House to rectify the mistake. In Halsbury's Laws of England 4th Ed. Vol. 10 para 745 it has been said: While former decisions of the House are normally binding upon it, the House will depart from one of its own previous decisions when it appears right in the interests of justice and of the proper development of the law to do so. Cases where the House may reconsider its own previous decisions are those involving broad policy and questions of legal principle. Only in rare cases will the House reconsider questions of construction of statutes or other documents. The House is not bound to follow a previous case merely because it is indistinguishable on the facts. The position and experience in this Court could not be much different keeping in view the need for proper development of law and justice. 45. Recently, in State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. 1993(41)ECC326 , a Bench of two Judges held that a previous decision rendered by severn Judges was per incuriam. In the earlier judgment of seven Judges, a reference was made to Entry 52 of List II in the Seventh Schedule of the Constituti....
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....y any discussion. No reason or rationale could be found in the order. This gives rise to an important question if the conclusion is law declared under Article 141 of the Constitution or it is per incuriam and is liable to be ignored. 40. Incuria literally means carelessness. In practice per incuriam appears to mean per ignoratium. English codes have developed this principle in relaxation of the rule of stare decisis The quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority. Young v. Bristol Aeroplane Company Ltd. (1944)1 KB. 718. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedence as a matter of law. In Jaisri Sahu v. Rajdewan Dubey [1962]2SCR558 , this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding. 41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by a....
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.... and (4) A judgment is not per incuriam because the reasoning is wrong in the opinion of the subsequent Bench. VI. Obiter Dicta 47. The expression obiter dictum means "that which is said in passing". In Mozley and Whiteley's 'Law Dictionary', 7th Edition, at page 240, it is defined as 'a dictum of a judge on a point not directly relevant to the case before him." If a Court expresses its opinion on a point which has not arisen for consideration in the case, it is not binding as a precedent. What is binding in a judgment is only the ratio decidendi, which means, the reason or principle on which a case is decided. An interesting and instructive passage is found in the judgment of a Full Bench of this Court in M.Shaikh Dawood v. Collector of Central Excise, Madras AIR1961Mad1 , expounding the difference between obiter dictum and ratio decidendi. It reads as follows: It is occasionally helpful to remind oneself of basic principles and we therefore make no apology for quoting the following passages from Salmond on Jurisprudence. On pages 223 and 224 of the 11h Edn. The following passages appear; A precedent, therefore, is a judicial decisi....
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....arh etc., and several others v. Presiding Officer, Labour Court, Chandigarh etc., and several others (1990)IILLJ70SC , the Supreme Court analysed the principle of ratio decidendi and said thus: 47. An analysis of judicial precedent, ratio decidendi and the ambit of earlier and later decisions is be found in the House of Lords decision in F.A &A.B. Ltd. v. Lupton, (Inspector of Taxes), 1972 A.C. 634, Lord Simon concerned with the decision in Griffiths v. J.P.Harrison (Warford) Ltd., 1963 A.C. 1 and Finsbury Securities Ltd. v. Inland Revenue Commissioners (1966) 1 W.L.R. 1402, with their inter-relationship and with the question whether F.A. &A.B. Ltd. v. Lupton, (Inspector of Taxes), 1972 A.C. 634, fell within the precedent established by the one or the other case, said: What constitutes binding precedent is the ratio decidendi of a case and this is almost always to be ascertained by an analysis of the material facts of the case that is, generally, those facts which the tribunal whose facts which the tribunal whose decision is in question itself holds, expressly or implicitly, to be material. It has also been analysed: A judicial decision will often be reached by....
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....tution Bench itself thought it necessary to interpret Section 2(00) for arriving at the final decision has to be held to be untenable in this wide and rigid form. 49. In Krishnakumar v. Union of India and Ors. (1990) 4 S.C.C. 270, the Supreme Court observed: 19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain propositions wider than the case itself required. This -was what Lord Selborne said in Calendonian Railway Co. v. Walker's Trustees (1882)7 App. Cas. 259, and Lord Halsbury in Quinn v. Leathern, 1901 A.C. 495. Sir Frederick Pollock has also said; Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision. 20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying princi....
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.... a society managed by a Special Officer was amenable to the said jurisdiction. It can never be gainsaid that the Full Bench considered both questions and gave its opinion, though in form the question referred to it was a general one, whether a writ would lie against a Co-operative society under Article 226 of the Constitution of India? The Full Bench referred to all the judgments cited and the arguments advanced by counsel on both sides. It culled out the relevant principle mainly from the judgments of the Supreme Court in Nayagarh Co-operative Central Bank Ltd. v. Narayan Rath AIR1977SC112 and S.S. Dhanoa v. Municipal Corporation Delhi 1981CriLJ871 . Relevant passages in those judgments were quoted by the Full Bench with emphasis supplied by itself. We will not be guilty of tautology if we extract therefrom as herein: The Nayagarh Co-operative Central Bank Ltd. v. Narayan Rath AIR1977SC112 . The High Court has dealt with the question whether a writ petition can be maintained against a co-operative society, but are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are not strictly in accord....
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....said to be a statutory body. In this connection, the observations of the Full Bench Judgment of the Kerala High Court, at the risk of repetition can again be extracted." The Co-operative Societies are not created by the Co-operative Societies Act and they are not statutory bodies. They are only functioning in accordance with the provisions of the Act. These institutions would have legal existence even if the Co-operative Societies Act was not in force. Moreover the Government have no spars in the Co-operative Societies. There is no deep and pervasive State control. The management of the societies does not vest in the Government or in the representatives of the Government Bank. The management is under the effective control of a committee elected by the members of the Societies. The statutory regulations or restriction in the functioning of the Societies is not an imprint of State under Article 12". Hence no writ will lie against a Co-operative Society governed by the Kerala Co-operative Societies Act. 24. The issue can be looked from another angle. The Supreme Court in Co-operative Central Bank Ltd. v. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad (1969....
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.... has substituted only the Board of Management by the Special Officer and has not changed the character or status of a Co-operative Society. Thus, the question has been specifically considered and decided. The fact that the sections of the Act are not extracted and that they have not been referred to in paragraph 24 or any other part of the judgment, would not mean that the Full Bench acted in ignorance of the provisions of the said Act or forgot about the same. 55. It is now contended that the facts in Dhanoa's case 1981CriLJ871 , were distinguishable and the judgment of the Supreme Court was wrongly understood and invoked by the Full Bench. According to learned Counsel, in Dhanoa's case 1981CriLJ871 , (the Board of Management was not superseded as such, but a member of the Indian Administrative Service was appointed as General Manager of the Co-operative Society in question, which fact would, accordingly to learned Counsel, make all the difference and that such a society whose Board of Management was a superseded by Tamil Nadu Act XXV of 1976. A careful perusal of the judgment in Dhanoa's case 1981CriLJ871 , does not warrant such distinction. The basic principle on ....
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.... Registrar of Co-operative Societies, Chepauk and Ors. (1991)2 L.W. 420: (1989) II L.L.J. 296, is the immediate cause for this reference. Finding that the ruling in Tamilarasan v. Director of Handlooms and Textiles (1981) I L.L.J. 588, would bind them and prevent them from passing an order to their liking, the Division Bench chose the extraordinary course of characterising the Full Bench as per incuriam and obiter dicta. One of the reasons given by the Division Bench for labelling the Full Bench as per incuriam is so indefensible that learned Counsel for the petitioner could not say a word in support of it. That reason is, the Full Bench had not taken notice of the statement of law as found in the case of Brij Bihari Singh's case (1989)37 (2) B.L.J.R. 219. That was a judgment of a Division Bench of the Patna High Court, to which the Senior Judge in the Division Bench of this Court was a party when he was a Judge of that Court. Unfortunately, the learned Judge in his anxiety to get over the binding authority of the Full Bench, failed to note that the judgment of the Patna High Court was delivered on a later date and the Full Bench of this Court could not have had an inkling that....
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....ution of India. It is very strange that the Division Bench should refer to the dismissal of the special leave petition by the Supreme Court in the case of Brij Bihari Singh without making any reference to the ratio thereof. 59. The Division Bench has taken the view that the provision of the Tamil Nadu Act XXV of 1976 were not noticed by the Full Bench in Tamilarasan v. Director of Handlooms and Textiles (1991)2 L.W. 409: (1981) I L.L.J. 588. We have already adverted to the relevant facts and pointed out that the Full Bench was fully aware of the provisions of the Act and has given its ruling in the view that they did not make any difference in the basic position that a society is not the creature of a statute. It should be noted that the judgment of the Division Bench suffers from a fundamental fallacy in that it equates the supersession of the board of Management of a society to the supersession of the society itself. In paragraph 25, a reference is made to S.S. Dhanoa's case 1981CriLJ871 , and it is observed that it was not a case of a society which had been superseded by the State Government. It is seen that in the judgment in Brij Bihari Singh's case 1989(37)BLJR219 ....