TaxTMI 
TaxTMI 
2002 (12) TMI 652
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....6 of the Act of 1991 is similar to Section 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, l....
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.... the Judges shall express their views one way 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....
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....ull Bench decision of Allahabad High Court 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 i....
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....ike the present reference may be made to a Full Bench decision of our Court in U.P.S.R.T.C v. State Road 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 Ra....
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....Tatoba Hargude and Ors. v. Dikkaya Muttaya Pujari (AIR 1980 Bom. 341), it is held that in case of conflict between earlier and later decisions of 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 B....
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....sible 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 Kamala 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.' 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 sa....
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.... the former of the two rulings when both of them are of equal sanctity. Why alone the later carries the obligation and not the former ? The adherence to one practice would be as good or as bad as adherence to the other. In our view, a conservative approach 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 o....
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....hich I have referred are not to be reconciled with Hayes v. Hayes [(1828) 38 ER 822]; at all events, they differ from it so far as to leave me at liberty now to say that Hayes v. Hayes is not sound law; indeed it appears that Sir John Leach himself was dissatisfied with his decision.' 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. Wes....
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....C 1596, the Final Court itself was faced with two directly contradictory judgments and Bhagwati, J., speaking for the Bench in following the earlier judgment in preference to the later one observed as follows (at p. 1602):-- '......... Now there can be no doubt that these observations made in Smt. Kamla Soni's case AIR 1969 NSC 186, are plainly 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 observa....
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.... in any case more accurately than the other conflicting judgment. Applying the aforesaid principle, I would with great respect prefer to follow Himalaya Tiles case (AIR 1980 SC 1118). Finally in Paragraph 31, learned Chief Justice said ; '31. To conclude, the answer to the question posed at the very outset is, therefore, rendered in the affirmative, viz., that a company, for whose benefit 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 wit....
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....lity is an incident of the tenancy. Thus there is a conflict of view taken \nAnand Niwas v. Anandji Kafyanji Pedhi (supra) and J.C. Chatterji v. Shri Krishna Tandon (supra) and the case in Damadi Lal v. Parashram (supra). It is now well settled that Article 141 gives a Constitutional status to the theory of the precedents in respect of the law declared by the Supreme Court, which is essential for proper administration 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 ....
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....ual strength the later would rule and shall be deemed to have over-ruled the former. P.B. Mukharji, J. (as his Lordship then was), in his separate, though concurring, judgment in the Special Bench decision of this Court in Pramatha Nath v. Chief Justice, AIR 1961 Cal 545 at p. 551, para 26 took a similar view. S.P. Mitra, J. (as his Lordship then was), also took such a view in the Division Bench decision of this Court in 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 cas....
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.... to follow the latter in point of time, but may follow the one which, according to it, is bettor in point of law. It appears that the Full Bench decision of the Madras High Court in R. Rama Subbarayalu v. Rengammal, AIR 1962 Mad 450, would also support this later view where it has been observed (at. p. 452) that 'where the conflict is between two decisions pronounced by a Bench consisting of the same number of Judges, and the subordinate 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 ....
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....y a Division Bench of this Court in Bagala Sundari v. Prosanna Nath 21 Cal WN 375 : (AIR 1917 WB 668) where it was held that even though there might be later decisions not easy to reconcile since the earlier one was not or could not be over-ruled, it would be binding, 'that being a decision of-this Court and the earliest on the point'. We are, however, inclined to think that no blanket proposition can be laid down either in favour of the earlier or the 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 Cont....
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....ns of Supreme Court where each Bench consists of equal number of Judges, the later decision should prevail In Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd., AIR 1980 Kant 92, the Full Bench of the Karnataka High Court has definitely held that when there are two conflicting decisions of the Supreme Court, one given by the Larger Bench should be followed and that if both 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 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 ....
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....ce to those expressed by Smaller Benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.' In Mattulal v. Radhe Lal, reported in AIR 1974 SC 1596, it was held by the Supreme Court that where there are contradictory decisions of the Supreme Court the decision of the Larger Bench has to be followed even if that decision rendered earlier in point of time than the decision of the Smaller Bench. Further, where there is a direct conflict between the decision 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, re....
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....tween Benches of equal strength the case which deals with the law more elaborately and accurately should be followed and it is immaterial whether it is earlier or later but in Union of India and Ors. v. Raju Construction Company, Bhopal [2000 (3) MPLJ 27], Court holds that subsequent decisions of Apex Court would be per incuriam since its earlier decision in Harbans Singh Tuli and Sons Builders (P) Ltd. v. Union of India (AIR 1992 SC 1124) was not brought to its notice and also sub-silentio, therefore, later decision is not binding. Having discussed 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 tw....
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....fect the evolution of our policy, we must more readily do so than in other branches of law, as perpetuation of a mistake will be harmful to public interests. While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy to set right deviations will retard its growth. In this case, as we are satisfied that the said rule of Constitution is inconsistent with our republican polity and, if accepted, bristles with anomalies, we have no hesitation to reconsider our earlier decision." In Union of India and Anr. 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 C....
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....t 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 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 referri....
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....ision.' The attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan v. Ramchandra, AIR 1965 SC 1767, was not quite different (at. p. 1773) : 'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge need to be considered, he should not embark upon that enquiry sitting as Single Judge but should refer the matter to a Division Bench or, in 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 Constituti....
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....ure it is right. The law must be made clear, certain and consistent. But certitude is not the test of certainty and consistency does not mean that there should be no word of new contents. 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 Raghubir Singh case, learned Chief Justice Pathak had this to say [(1989) 2 SCC 754 at p. 767 : (AIR 1989 SC 1933, at p. 1939)] : 'Legal compulsions can 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 ....
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....aw. In Jaisri Sahu v. Rajdevan Dubey, 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. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law ? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "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 Municipa....
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....d to confer on the accused an 'indefeasible right' to be released on bail under this provision once the challan has been filed and the accused continues in custody. Therefore, the majority holds that expression "if not already availed of" in Sanjay Dutt's case (supra) must be understood to mean that when the accused files an application and is prepared to offer bail on being directed, in other words, on the expiry of the period under Clause (a) of Proviso to Sub-section (2) of Section 16 of the Code of Criminal Procedure, if the accused files an application for bail and offers also to furnish the bail 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 ....
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....arned Counsel pointed out that a larger number of High Courts have taken the same view and hence, the error, if any, in the judgment under review is not an error apparent on the face of the record. With respect, we can not agree. To us, the language employed in the sub-section looks quite clear and unambiguous. It does not admit of any other interpretation than the one placed by us. More important, it was already construed by a Bench of coordinate jurisdiction in Indian Aluminium earlier. Another Bench of four learned Judges had also understood the purport of the said sub-section in the same manner - vide International Cotton 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 S....
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.... singly, he can not take a different view on the specious ground that the decision is based upon facts, even this conclusion is unsustainable. In Dr. Vijay Laxmi Sadho v. Jagdish, [ (2001) 2 SCC 247], it has been said in Paragraphs 33 and 34 that-- "33. As the learned Single Judge was not in agreement with the view expressed in Devilal case it would have been proper, to maintain judicial discipline, to refer the matter to a Larger Bench rather than to take a different view. We note it with regret that distress that the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another 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 Ma....
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....ion 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 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 contempo....
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.... 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.' Almost similar is the view expressed by a recent judgment of 5-Judge Bench of this Court in Parija's case (supra). In that case, a Bench of 2 learned Judges doubted the correctness of the decision of a Bench of 3 learned Judges, hence, directly referred the matter to a Bench of 5 learned Judges 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 impor....
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....h of two learned Judges. Therefore, having decided the issue that has arisen for our consideration, we think it just that these writ petitions should now be placed before a Bench of three learned Judges for final disposal." In Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., 2001 Arb.W.LJ. 354 (SC) :(2001) 6 SCC 356, the Apex Court said in Paragraphs 19 to 22 that- "19. In Mamleshwar Prasad v. Kanhaiya Lal, reflecting on the principle of judgment per incuriam, in paras 7 and 8, this Court has stated thus :--(SCC p. 235) '7. Certainty of the law, consistency of rulings and comity of Courts all flowering from the same principle - converge to the conclusion that a decision 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. ....
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....e of per incuriam can not be applied. It cannot also be said that while deciding Thyssen the promulgation of the first Ordinance, which was effective from 25-1-1996, or subsequent Ordinances were not kept in mind more so when the judgment of the Gujarat High Court in Western Shipbreaking Corpn. did clearly state in para 8 of the said judgment thus ;-- '8. We now come to the Arbitration and Conciliation Ordinance, 1996 which was promulgated on 16-1-1996 and brought into force with effect from 25-1-1996. The second Ordinance, 1996 was also promulgated on 26-3-1991 as a supplement to the main Ordinance giving retrospective effect from 25-1-1996. The Ordinance received assent of the President on 16-8-1996 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. Un....
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.... Antulay case. The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal proceeding or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix any time-limit for trial of offences. Having placed on record the exposition of law as to right to speedy trial flowing from Article 12 of the Constitution, this Court held that it was necessary to leave the rule as elastic and not to fix it in the frame of defined and rigid rules. It must be left to the judicious discretion of the Court seized of an individual case to find out from the totality of circumstances of a given 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,....
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....Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The Criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Dev Sharma case (I) and (II). At the most of periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind on the facts and circumstances of the case before them and determine by taking into consideration the several relevant-factors as pointed out in A.R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. 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 t....
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....ar v. 2nd Additional District Judge and Ors. (AIR 2002 SCW4040), the Apex Court said in Paragraph 7 that- "7. In the case of Nanakram v. Kundalrat, reported in (1986) 3 SCC 83, the question was whether a lease in violation of statutory provisions was void. It was held that in the absence of any mandatory provision obliging eviction in case of contravention of the provisions of the Act the lease would not be void and the parties would be bound, as between themselves, to observe the conditions of lease. It was held that neither of them could assail the lease in a proceeding between themselves. This authority was in respect of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, where under also the landlord was obliged to intimate a vacancy to the Deputy 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 humil....
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....cannot be doubted that in the development of law, promotion of consistency and certainty in decisions on all the law is maintained and inconsistency avoided. However, perusal of various decisions demonstrates that the Apex Court and High Courts have been called upon to consider the question of binding precedents from time to time. Indisputable question is that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. There seems no dispute to the proposition that decision of Larger Bench of the Apex Court is binding on Smaller Bench of the same Court and the High Courts. The difficulty arises in case of conflict between the two decisions by Benches consisting of same number of Judges, whether to follow the earlier or later and in absence 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....
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.... This decision and K.S. Subramaniam's case (supra) led to rest the opinion to follow later decision. Moreover, doing so would be clear manifestation of violating precedents and defeat the principle that the High Courts lack competence to sit over the judgments of the Apex Court and give them interpretation they may choose, result of which may cause violence to theory of precedents and hierarchy and the supremacy of Courts. It is well settled that Article 141 gives a Constitutional status to the theory of the precedents in respect of the law declared by the Supreme Court which is essential for proper administration of justice. In Raghubir Singh's case (supra), the Apex Court said that the rule has been evolved in order to promote consistency and certainty in the development 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 Divisio....
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....e view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge need to be considered, he should not embark upon that enquiry sitting as Single Judge but should refer the matter to a Division Bench or, in 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." Unless the Bench can explain the earlier decision on sound reasonings as in Sanjay Dutt's case (supra), artificial and casual attempt may violate 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. Thi....
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....esser 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. Again in Smt. Indira Nehru Gandhi v. Rajnarain, ( (1976) 2 SCR 347 :AIR 1975 SC 2299), Beg, J., held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in His Holiness Kesavananda Bharati Sri Padagalavaru v. State of Kerala, (1973 Suppl. SCR 1 :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 1....
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...., 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 need for consistency in the enunciation of legal principles in the decisions of this Court. It is in the above context, this Court in the case of Raghubir Singh held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of this Court is binding on a 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 ....
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....Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of later Division Bench shall be binding. The decision of Larger Bench is binding on Smaller Benches. In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the Subordinate Courts. No decision of Apex Court has been brought to....