TaxTMI 
TaxTMI 
2002 (12) TMI 652
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 6 of the Motor Vehicles Taxation Act, 1947 which imposes bar on any local authority to impose tax in respect of the motor vehicles in question. Contention is that tax is being paid by the petitioners for use of roads maintained by the State, therefore, they can bring in and take out the buses from the bus-stand since they pay tax for it. Petitioners depend on the decision in Madhya Pradesh State Road Transport Corporation v. Municipal Council, Mansa and Anr. (M.P. No. 1540 of 1975). Municipal Corporation, Jabalpur maintains that Sub-section (6) of Section 132 of the Act of 1956 authorises it to levy tax on entry of vehicles within its territorial limits. It seeks sustenance on the decision in Cantonment Board, Mhow v. Madhya Pradesh State Road Transport Corporation (AIR 1997 SC 2013). Shri B.K. Rawat contended that decision of Apex Court in Municipal Council, Mansa (supra) is a later decision, therefore, it should be followed while Shri Sanjay K. Agrawal submitted that since this decision does not consider the effect of earlier decision in Cantonment Board, Mhow (supra), earlier decision should prevail as against the later. Therefore, learned Counsel for both sides submitted ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ay or the other on the point. In my opinion, if the majority of Judges of the Supreme Court in a particular case express a view on a proposition of law then that view of the majority of the Judges would be the law declared by the Supreme Court. That being my view, the opinion expressed by the majority of the Judges in the said case shall be held to be the law declared by the Supreme Court and binding on this Court." Thereafter, it is said in Paragraph 11- "11. The next question which arises for consideration is which of the two views--one expressed in : (1958 SCJ 459 AIR 1958 SC 468) and the other in AIR 1959 SC 648--will be binding on us. On this point again there is no doubt some difficulty. But in my opinion, it is the latest pronouncement of the Supreme Court which would be binding on us. When, in my opinion, the Supreme Court expressed its view on any particular point of law such expression of view shall be considered as over-riding all contrary views expressed on the point in earlier decisions of the same Court. That being my conclusion on these questions the contention of Mr. T. Krishna Rao fails." Full Bench decision of Madras High Court in R. Rama Subbara....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in U.P. State Road Transport Corporation v. State Transport Appellate Tribunal, U.P., Lucknow and Ors., it is said- "12. It is noteworthy that the Supreme Court's decision in Mysore State Transport Corporation is later in time. Even if there is some conflict in the two Supreme Court decisions, we have to follow the law as declared in the later case of Mysore State Transport Corporation." In Full Bench decision of Allahabad High Court in Gopal Krishna v. 5th Additional District Judge, Kanpur, the Court said in Paragraphs 15 to 23 that- "15. Article 141 of the Constitution provides that- The law declared by the Supreme Court shall be binding on all Courts within the territory of India." "16. This Article gives a constitutional status to the theory of the precedent in respect of the law declared by the Supreme Court which is essential for a proper administration of justice. It is a basic principle of administration of justice that like cases should be decided alike. For this reason, a Judge tends to decide a case in the same way in which a similar case had been decided by another Judge. Every Court is bound to follow any case decided by a Court ab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oad Transport Tribunal, U.P., Lucknow (AIR 1977 All. 1) : (1976 All LJ 683) where the Full Bench held :-- 'Even if there is some conflict in the two Supreme Court's decisions, we have to follow the law as declared in the latter case of Mysore State Transport Corporation'. To the same effect is the view taken by a Full Bench of Karnataka High Court in Govindanaik G. Kalghatagi v. West Patent Press Co. Ltd. (AIR 1980 Kant. 92) and by Calcutta High Court in Sovachand Mulchand v. Collector of Central Excise and Land Customs (AIR 1968 Cal 174). Thus, what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us." Further the Court said in Paragraphs 24 to 27 that- "24. Counsel appearing for the petitioner submitted that since in Ram Swarup Rai's case (1980 All LJ 651 SC) the earlier decision given in Ratan Lal Singhal's case (AIR 1980 SC 635) had not been cited, the decision being in ignorance of a case which was binding on the Court is per incuriam. Counsel urged that Ram Swarup Rai's decision does not have a binding authority. We are unable to agree with the submission of the learned Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Supreme Court, each consisting of equal number of Judges, later decision prevails. However, learned Judges do not record any reasons for taking this line. Full Bench of Karnataka High Court, Five Judge Bench in Govindanaik G. Kalaghatigi v. West Patent Press Company Limited and Anr. (AIR 1980 Kar 92), said by majority, speaking through learned Chief Justice D.M. Chandrashekhar, in Paragraph 5 that- "5. In the light of pronouncements of the Supreme Court in Mattulal's case (supra) and Subramanyam's case (supra), we hold that the Full Bench of three Judges in Aramha's case (supra) did not lay down the law correctly and, we over-rule that decision. The answer to the question referred to this Bench, should in our opinion, be as follows :-- 'If two decisions of the Supreme Court on a question of law can not be reconciled and one of them is by a Larger Bench while the other is by a Smaller Bench, it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Court'.&quo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of a Larger Bench than the latter. Moreover, on principle, the view taken in Sarvate T.B. 's case commends itself to us and we think that is the right view.' In Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455 at p. 1467 para 38, Krishna Iyer, J., said : 'Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of subordinate Court's casual observations, generalisations and sub-silentio determinations must be judiciously read by Courts of coordinate jurisdiction......' In Union of India v. K.S. Subramaniam, AIR 1976 SC 2433 at p. 2437 para 12, Beg, J. (as he then was) advised the High Courts to follow the practice that has been followed by the Supreme Court whenever there is a conflict between the views expressed by a Larger Bench and a Smaller Bench of the Supreme Court. The learned Judge said : 'But we do not think that the High Court acted correctly in skirting the views expressed by Larger Benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roach to any of these, may deny justice in a given case or series of cases and those clients may not be in a position to approach the Supreme Court for the redressal of their grievances. When confronted with two inconsistent coordinate authorities, Kay, J., in Miles v. Jarvis (1883) 24 Ch D 633 at p. 636 said : '...... The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being, the better in point of law." Jessel M.R. in a like circumstance said in Baker v. White (1877) 5 Ch D 183 at p. 190 that he was left with liberty to say which was not sound law. It seems to us, therefore, the High Court would be well advised to consider which of two conflicting decisions it will follow in the interest of the administration of justice and it ought to follow that which is better in point of law than in point of time." Full Bench of Punjab High Court in Indo Swiss Time Limited, Dundahera v. Umrao and Ors. (AIR 1981 Punjab & Haryana 213) expresses the view similar to the minority view in Govindnaik's case (Karnataka) (supra). Pertinent it is to quote the following paragraphs from the judgm....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Again in Miles v. Jams (1833) 24 Ch D 633, Kay, J., was similarly faced with two judgments of equal weight which were in conflict. He observed as follows :-- '......... The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law.' Reference in this context may in particular be made to the celebrated case of Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718. Therein in a similar context of the Court of appeal being bound by its previous decisions it was held that it was not only entitled but indeed duty bound to decide which of the two conflicting decisions of its own will it follow in case of a clear divergence of the opinion in the earlier precedents. I am conscious of the fact that a narrowly divided Bench in Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd., AIR 1980 Kant 92 (FB) has taken the view by a majority of three to two that in such a situation the later of the two decisions should be followed. A perusal of the judgment, however, would show that in fact there were two questions before the Full Bench--. Firstly, that where there was confl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inly in contradiction of what was said by this Court earlier in Sarvate T.B.'s case 1966 MPLJ 26. It is obvious that the decision in Sarvate T.B, 's case was not brought to the notice of this Court while deciding Smt. Kamla Soni's case or else this Court would not have landed itself in such patent contradiction. But whatever be the reason, it can not be gain said that it is not possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T.B. 's case as against the decision in Smt. Kamla Soni's case, as the former is a decision of a Larger Bench than the latter. Moreover, on principle, the view taken in Sarvate T.B.'s case commends itself to us and we think that is the right view.' It would be evident from the underlined observations above that even in such a situation their Lordships conceded the principle and the correctness of the view to be a relevant factor again in Union of India v. K.S. Subramanian, AIR 1976 SC 2433, a similar issue arose and Beg, J., speaking for the Bench held as follows :-- '.........But, we do not think that the High Court acted correctly in skirting the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nefit the land is acquired, can be impleaded as a party in the Court of the District Judge, in a reference preferred that as observed in the earlier paras 15 and 16 of this judgment, such an impleading would be within the confines spelled out in Section 50 Sub-section (2) of the Act aforesaid'. P.C. Jain, J., concurring with views of Chief Justice S.S. Sandhwalia on this point said in Paragraphs 38 and 39 that- "38. On a careful consideration of the respective contentions of the learned Counsel for the parties, in the light of various decisions cited by them, it transpires that the view taken in the judgment of the Supreme Court in Himalaya Tiles and Marbles (P) Ltd. (AIR 1980 SC 1118) (supra), on which reliance has been placed by Mr. Sarin, is in conflict with the view taken in the earlier judgment in Municipal Corporation of the City of Ahmedabad's case (supra). As observed by my Lord the Chief Justice, a perusal of the two judgments plainly indicates that there is a direct conflict on the point which needs our decision. Both the judgments have been rendered by a Bench consisting of two Hon'ble Judges and cannot possibly be reconciled. In this situation, a so....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ration of justice. Where there is conflict two decisions of the Supreme Court given by Judges of equal strength, the question of the later would be binding. If that be so, the decision in Damadilal's case (supra) will prevail over the ruling in J.C. Chatterji's case (supra) which was rendered by a Bench of two Judges, the ruling in Damadilal's case prevails." Special Bench of Calcutta High Court in Bholanath Karmakar and Ors. v. Madanmohan Karmakar and Ors. (AIR 1988 Cal. 1) has discussed this question and the view taken by it falls in line with the minority view of Govindanaik's case (supra) and Full Bench of Punjab & Haryana High Court in M/s. Indo Swiss Time Limited (supra). Since detailed reasonings have been offered, it would be necessary to quote Paragraphs 10 to 18 as under :-- "10. When faced with contrary decisions of the Supreme Court, the first course to be adopted by the High Court is to ascertain which one of them is decided by a Larger Bench and to govern itself by such Larger Bench decision, if any. This has been laid down by the Supreme Court itself in a series of decisions and must be taken to be the settled law and reference may be mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Sovachand Mulchand v. Collector, Central Excise, AIR 1968 Cal 174 at p. 186, para 56. To the same effect is the decision of a Division Bench of the Mysore High Court in New Krishna Bhavan v. Commercial Tax Officer, AIR 1961 Mys. 3 at page 7 and the decision of the Division Bench of the Bombay High Court in Vasant v. Dikkaya, AIR 1980 Bom. 341 at p. 345. A Full Bench of the Allahabad High Court in U.P. State Road Transport Corporation v. Trade Transport Tribunal, AIR 1977 All. 1 at p. 5 has also ruled to that effect. The view appears to be that in case of conflicting decisions by Benches of matching authority, the law is the latest pronouncement made by the latest Bench and the old law shall change yielding place to new. The other view is that in such a case the High Court is not necessarily bound to follow the one which is later in point of time, but may follow the one which, in its view, is better in point of law. Sandhawalia, C.J., in the Full Bench decision of the Punjab & Haryana High Court in Indo Swiss Time Limited v. Umarao took this view with the concurrence of the other two learned Judges, though as to the actual decision, the other learned Judges differed from the lear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te Court after a careful examination of the decisions came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one'. According to the Nagpur High Court also, as would appear from its Full Bench decision in D.D. Bilimoria v. Central Bank of India, AIR 1943 Nag 340 at p. 343, in such case of conflicting authorities, "the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other", thereby indicating that the subordinate Courts would have to prefer one to the other and, therefore, would be at liberty to follow the one or the other. Needless to say that it would be highly embarrassing for the High Court to declare one out of two or more decisions of the Supreme Court to be more reasonable implying thereby that the other or others is or are less reasonable. But if such a task calls upon the High Court because of irreconciliable contrary decisions of the Supreme Court emanating from Benches of coordinate jurisdiction, the task, however, uncomfor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e later decision and, as indicated hereinbefore, and as has also been indicated by the Supreme Court om Atmaram (supra), the subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter of course, to follow either the former or the later in point of time, but must follow that one, which according to it, is better in point of law. As old may not always be the gold, the new is also not necessarily golden and ringing out the old and bringing in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of coordinate jurisdiction." (See also Ram Chandra Verma v. Manmal Singhi and Anr., AIR 1983 Sikkim 1 and D.D. Bilimoria, Electric Contractor v. Central Bench of India Ltd., Bombay (AIR 1943 Nag. 340) Full Bench of Gujarat High Court in Gujarat Housing Board, Ahmedabad v. Nagajibhai Laxmanbhai and Ors. (AIR 1986 Guj. 81) examined this question and said in Paragraph 11 that-- "11...... Now we have to consider as to whether the decision in Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel, : (1971) 3 SCC 821, prevails or that the decision in Himalaya Tiles and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....followed by High Courts and other Courts. We are in complete agreement with the principle laid down by the Bombay and Karnataka High Courts in Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari, AIR 1980 Bom 341 and Govindanaik G. Kalaghatigi v. West Patent Press Company Ltd., AIR 1980 Kant. 92 (FB) respectively. In this view we hold that the decision, reported in Himalaya Tiles and Marble (P) Ltd. v. Francis Victor Coutinho, AIR 1980 SC 1118 holds the field......" Finally in Paragraph 12, the Court said : "12.......... We also declare that when there are two conflicting decisions of the Supreme Court consisting of equal number of Judges, the later of the two decisions should be followed by the High Courts and other Courts......" Single Bench decision of Delhi High Court in Pandit Munshi Ram and Associates (Pvt.) Limited v. Delhi Development Authority and Anr. (AIR 2001 Delhi 82) is brought to our notice. It holds that when two decisions of Supreme Court on same question of law by equal number of Judges do not reconcile, later of the two should be followed and in case of decision by Larger Bench and that of Smaller Bench, decision of Larger Bench whether it is ear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the Hon'ble Supreme Court in its co-equal Benches, the High Court has to follow the judgment, which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act. The date of delivery of the judgment cannot be a guiding factor. This was so indicated by a Division Bench of this Court in its decision in the case of Municipal Corporation, Indore and Ors. v. Smt. Ratnaprabha Dhanda, Indore and Ors., reported in 1989 MPLJ 20. The observations to the aforesaid effect were also made by the Patna High Court in its decision in the case of Amar Singh Yadav and Anr. v. Shanti Devi and Ors., reported in, rendered by a Full Bench. It may also be noticed that in its decision in the case of Mattulal v. Radhe Lal, reported in AIR 1974 SC 1596, as well as in its decision in the case of The State of U.P. v. Ram Chandra Trivedi, reported in AIR 1976 SC 2547, the Apex Court had clearly observed that its former decision of the Larger Bench should be followed." Some other decisions of this Court may be mentioned. In Sukhlal Kachhi v. State (1960 JLJ 1078 CN 265), it is held that unless a Single Judge decides to refer the matter to a La....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ussed the views expressed by some of the High Courts, we advert to the decisions of Apex Court on this question. In Atmaram v. State of Punjab (AIR 1959 SC 519), Apex Court said in Paragraph 12 that- "Where a Full Bench of three Judges is inclined to take a view contrary to that of another Full Bench of equal strength, the better course would be to constitute a Larger Bench. Such a course becomes necessary in view of the fact that otherwise the subordinate Courts are placed under the embarrassment of preferring one view to another, both equally binding upon them." The decision does not hold that in a case of conflict amongst two decisions given by equal number of Judges the later decision should be followed. In Acharya Maharajshri Narendraprasadji Anandprasadji Maharaj and Ors. v. The State of Gujarat and Ors. [ (1975) 1 SCC 11] Apex Court said in Paragraph 28 that-- "28. It is submitted by Mr. Tarkunde that the above observations of this Court are inconsistent with the ratio of the decision in Rustam Cavasjee Cooper's case (supra), popularly known as the Bank of Nationalisation case, which was decided by a Larger Bench. It is difficult to accept the submiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... v. Raghubir Singh (dead) by L.Rs. etc. (AIR 1989 SC 1933), Supreme Court has said in Paragraphs 28 and 29 that-- "28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges ? There is no Constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a Superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....firmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 : (AIR 1986 SC 806) which noted that a Division Bench of two Judges of this Court in Jit Ram v. State of Haryana, ( (1980) 3 SCR 689 AIR 1980 SC 1285) had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mitts v. State of U.P., ( (1979) 2 SCR 641 :AIR 1979 SC 621), on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a Larger Bench when the learned Judges found that the situation called for such reference. We are of the opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n a proper case, place the relevant papers before the Chief Justice to enable him to constitute a Larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself.' The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions of a Court. Speaking for Constitution Bench [Union of India v. Raghubir Singh, (1989) 2 SCC 754 : (AIR 1989 SC 1933)] learned Chief Justice said (at page 766) (of Supreme Court Cases); (at page 1939 of AIR) : 'The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.' Cardozo pronounced....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an not be limited by existing legal propositions, because, there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminancy such as "fairness" or "reasonableness", but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted valued of present time and place, relevant to the dispensing of justice within the new parameters. And he continued : The universe of problems presented for judicial choice making at the growing points of the law is an expanding universe. The areas brought under control by the accumulation of past judicial choice may be large. Yet the areas newly presented for still further choice because of changing social, economic and technological conditions are far from inconsiderable. It has also to be remembered, that many occasions for new options arise by the mere fact....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lentio. "A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gumam Kaur. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Unfirmity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....il on being directed, then it has to be held that the accused has availed his indefeasible right even though the Court has not considered the said application and has not communicated the terms and conditions of the bail and the accused has not furnished the same, meaning thereby accused must file application for release on bail before the expiry of 180 days or the extended period and filing of challan before his application is considered and allowed by the Court, would not defeat his right which is indefeasible. However, minority decision by B.N. Agrawal, J., holds that the right of accused can not be enforced after the challan is filed since it is extinguished the moment challan is filed, thus, following Sanjay Dutt's case (supra) as against Hitendra Vishnu Thakur's case (supra). In Commissioner of Sales Tax, J & K and Ors. v. Pine Chemicals Ltd. and Ors. [ (1995) 1 SCC 58], Apex Court in Paragraphs 10 and 13 said that-- "10. In International Cotton Corporation (P) Ltd. v. C.T.O., a Bench of this Court comprising four Judges observed that "the object of Sub-section (2-A) of Section 8 is to exempt transaction of sale of any goods if they are wholly exempt fro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on Corpn. In the light of the said binding decisions, it was not open, with great respect, to the Bench deciding Pine Chemicals to place the interpretation it did on the sub-section." In Indian Oil Corporation Limited v. Municipal Corporation and Anr. (AIR 1995 SC 1480), Supreme Court has held that High Court is bound by the decision of the Supreme Court, even co-equal Bench of Supreme Court can not take different view. In Paragraph 8, the Apex Court has said that-- "8. It is thus clear that the decision of this Court in Ratna Prabha (AIR 1977 SC 308) (supra), on the construction of Section 138 (b) of the M.P. Act has all along been understood and justified on the basis of the presence of then on obstante clause in Section 138 (b) of the M.P. Act and the later decisions have distinguished it on that ground. That is the basis on which the decision in Padma Debi (AIR 1962 SC 151) (supra) was distinguished in Ratna Prabha (supra), itself. It is also obvious that a Bench of three Judges only in the later decisions could not over-rule the decision of this Court in Ratna Prabha (supra), and therefore, none of the later decisions could be so read to have that effect. The Div....
X X X X Extracts X X X X
X X X X Extracts X X X X
....other Bench of coordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a Larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs. Before parting with this aspect of the case, we wish to recall what was opined in Mahadeolal Kanodia v. Administrator General of W.B. : 'If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in High Court is of opinion that the previous decision of anot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal, ( (1975) 3 SCR 211 : AIR 1975 SC 775), a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal ( (1975) 1 SCR 778 :AIR 1974 SC 2154) decided by a Division Bench of five Judges in preference to Bhutnath Mate v. State of West Bengal, AIR 1974 SC 806, decided by a Division Bench of two Judges. Ag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es for reconsideration. In such a situation, the 5 Judge Bench held that judicial discipline and propriety demanded that a Bench of 2 learned Judges should follow the decision of a Bench of 3 learned Judges. On this basis, the 5-Judge Bench found fault with the reference made by the 2-Judge Bench based on the doctrine of binding precedent. A careful perusal of the above judgment shows that this Court took note of the hierarchical character of the judicial system in India. It also held that it is of paramount importance that the law declared by this Court should be certain, clear and consistent. As stated in the above judgments, it is of common knowledge that most of the decisions of this Court are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the disputes between them but also because in doing so they embody a declaration of law operating as a binding principle in future cases. The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam. Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Courts on the same points in a later case. Here we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind.' This Court in A.R. Antulay v. R.S. Nayak, in para 42 has quoted the observations of Lord Goddard in Moore v. Hewit and Penny v. Nicholas to the following effect : (SCC p. 652) ' "Per incuriam" are those decisions given in ignorance or for-getfulness of some inconsistent (sic) statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....6 giving the retrospective effect from 25-1-1996. Thus the Ordinance has now become an Act. All the provisions of the Ordinance as well as the Act are same. Therefore, the use of the words 'the Ordinance' shall also mean the Act and vice versa.' It appears in the portion extracted above that there is a mistake as to the date of promulgation of the second Ordinance as 26-3-1991. But the correct date is 26-3-1996." [See Lily Thomas and Ors. v. Union of India and Ors., (2000) 6 SCC 224] Again, the Supreme Court considered the theory of precedent in Union of India and Anr. v. Hansoli Devi and Ors. (2002 AIR SCW 3755) and said that-- "Judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is, to refer the matter be forfeit to a Bench of three Judges setting out the reasons why it could not agree with the earlier judgment and then if the Bench of three learned Judges also comes to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iven case if the quantum of time consumed upto a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted, as inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A.R, Antulay (supra). In Kartar Singh case the Constitution Bench while recognising the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state : '92. Of course, no length of time isperse too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the Court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by he accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as man-datorily obliging the Court to terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent Trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482, Cr.PC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and State Governments of their Constitutional obligation to strengthen the judiciary quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Government shall act." Raju, J., comprising the Bench and concurring on question said in Paragraph 36 that- "36. The declaration of law made by the Constitution Bench of five learned Judges of this....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Commissioner of the District and the Deputy Commissioner could allot or direct the landlord to let the house to any person. The provisions were more or less identical to the provisions of the said Act. This authority has directly dealt with the questions under consideration and answered them. The majority judgment takes note of this authority and holds as follows :-- 'With utmost humility and reverence it is stated that above observations are not compatible with provisions of Sections 10 and 23 of the Contract Act. Otherwise also, it is most respectfully pointed that the statement of law contained in the said observation is, perhaps, in conflict with the law declared in the decisions of the Hon'ble Supreme Court in Waman Shrintwas Kini v. Rati Lal Bhagwan Das and Co.; Shrikrishna Khanna v. Additional District Magistrate, Kanpur and Ors., and Manna Lal Khetan v. Kedar Nath Khetan: Thus it is to be seen that the majority judgment, with a pretense of humility and reverence refuse to follow a binding authority of this Court. It was not open for the Full Bench to comment that the authority was not compatible with provisions of Sections 10 and 23 of the Contract Act. The Ful....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce of the Apex Court decision, similar difficulty may arise with regard to the High Court decisions. The normal rule is that in the absence of any decision of the Apex Court, subordinate Courts are bound to follow the decisions of High Court to which they are subordinate, and where conflict is between the judgments of a Single Bench and Division Bench, Division Bench decision will have to be followed and where there is conflict between Division Bench and Larger Bench, the decision of Larger Bench has to be followed. But where the conflict is between two decisions pronounced by Benches consisting of same number of Judges, difficulty arises which decision is to be followed when after careful examinations of the decisions, conclusion is that both of them directly apply to the case before the Court. High Courts have expressed different views, we have found, some taking the line that the Court will be at liberty to follow that decision which seems to it more correct irrespective of the fact it is earlier or later in point of time while others hold that the earlier decision should be followed. By now the Supreme Court has dealt with the binding nature of its pronouncements in catena of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent of the law and it is necessary, therefore that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges and law laid down in Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj (supra), is that even where the strength of two different differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Godfrey Philips India Limited (supra), and found the well accepted and desirable practice of the latter Bench referring the case to a Larger Bench justified. Deprecating the tendency of some Judges violating the principle, desirable it would be to quote Paragraphs 17 to 19 again to emphasise the point as under :-- "17. It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by the precedents and procedure. They could use th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate efficacy of binding effect contemplated by Article 141 of the Constitution of India. Uniformity and consistency being the core of the judicial discipline. Again, it is necessary to re-emphasise what the Apex Court said in Paragraphs 20 to 23 of Chandra Prakash's case (supra) : "20. The principles of the doctrine of binding precedent are no more in doubt. This is reflected in a large number of cases decided by this Court. For the purpose of deciding the issue before us, we intend referring to the following two judgments of this Court. In the case of Union of India v. Raghubir Singh (supra), a 5-Judge Bench of this Court speaking through Pathak, C.J., held that pronouncement of a law by a Division Bench of this Court is binding on another Division Bench of the same or small number of Judges, The judgment further states that in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. To avoid a repetition of the discussion on this subject, we think it appropriate to reproduce the following paragraph of that judgment which reads as follows :-- '28. What then should be th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....:AIR 1973 SC 1461). In Ganapati Sitaram Belvalkar v. Waman Shripad Mage (since dead) through L.Rs., (1981) 4 SCC 143 : (AIR 1981 SC 1956), this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. RadheLal, ( (1975) 1 SCR 127 :AIR 1974 SC 1596) this Court specially observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narendraprasadji Anandprasadji Maharaj v. State of Gujarat, : ( (1975) 2 SCR 317 AIR 1974 SC 2098), that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 : (AIR 1986 SC 806) which noted that a Division Bench of two Judges of this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Division Bench of the Division Bench of the same or similar number of Judges. It is in furtherance of this enunciation of law, this Court in the latter judgment of Parija (supra) held that- 'But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges stating out the reasons why it could not agree with the earlier judgment, If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified'." Therefore, the well settled principle of precedent which has crystallised into the rule of law, a Bench of lesser strength is bound by the view expressed by a Bench of larger strength and can not take a view in departure or in conflict therefrom. Otherwise, the Apex Court and High Courts would be called upon to decide such question time and again despite repeated assertion of law on the subject and this seems to have happened in recent decisi....