TaxTMI 
TaxTMI 
1961 (10) TMI 108
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.... view expressed by the Full Bench in the aforesaid case and made a request for referring the question to another Full Bench for a re-consideration of the matter. It was held by the Full Bench of this Court in the aforesaid case of (1960) 1 Guj LR 82 : (AIR 1960 Gujarat 40) that the judicial precedents of the Bombay High Court prior to the 1st of May, 1960, i. e., the day on which the State of Gujarat came into being fell within the ambit of the words "the law in force immediately before the appointed day" in Section 87 of the Bombay Reorganisation Act of 1960, and were binding on this High Court. Section 87 of the aforesaid Act runs as follows : "Territorial extent of laws. -- The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial references in any such law to the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day." By the provisions of Part II of the aforesaid Act the State of Gujara....
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.... a situation arising, the legislature, by the first part of Section 87, has provided that in considering the territorial extent or application of the law in force no change should be deemed to have taken place in the territories of the pre-existing State of Bombay in spite of the fact that some territories have been carved out of such pre-existing State and a new State of Gujarat has been formed. Ordinarily when a law is enacted and in that law there is a territorial reference to a particular State, the reference it to the territories forming part of that State. If any new territories are included within that State, such a reference would cover such new territories. If any territories are excluded from that State, then the reference would not extend to such excluded territories. In order to provide for the continued operation of the laws in force within the territories of the pre-existing State of Bombay, in spite of the territories of the new State of Gujarat being excluded therefrom, it has been provided by the second part of Section 87 that the territorial reference in such law to the State of Bombay should be construed as meaning the territories which were within the State of B....
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....nterpretations of express laws, by Courts of justice may well be said to from part of the law, and so to be law in the abstract sense, we cannot say of any such declaration or interpretation the it is a law." "When We are using the term in this concrete sense it is not only correct enough for ordinary political purposes, but correct without qualification, to say that 'Laws are general rules made by the State for its subjects'." The expression "law" is often used in an extended sense even in non-judicial matters. As observed by Sir Frederick Pollock, clubs and societies have their laws. There are laws of cricket and laws of whist, and as might be expected, the distinction between the concrete and the abstract sense is not always exactly observed in popular usage. 3. We have to consider the meaning of the word "law" as used in the expression "law in force immediately before the appointed day" appearing in Section 87 and consider the intention of the legislature when so legislating. As the language of the section indicates it must be a law in force, that is, it must be a law in operation as such and it must extend or apply to the territories referred to in....
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....or common law rule by which one Court is bound to abide by the decision of another court of coordinate jurisdiction. If is further staled that the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decisions of another Judge of first instance unless he is convinced that the judgment was wrong. The decisions, however, of subordinate courts are not recognised as being authoritative where there is another Court which is subordinate to that Court, It is stated in Salmonds Jurisprudence, 11th Edition at page 169 that the true rule of law was that one High Court Judge could not bind another. It is however further stated that such refusals to follow precedent were unusual for on the principle of judicial comity a Court would usually follow the decisions of its predecessors, so as to avoid conflicts of authority and to secure certainty and uniformity in the administration of justice. 4. In India, some High Courts have both Original and Appellate jurisdiction and an appeal lies in certain matters from a decision of a single Judge of a High Court to a Division Bench of that Court. A decision of a High Court Judge of a State is regarded....
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....on that a decision of a Full Bench could only be reversed by the Privy Council or by a bench specially constituted by, the Chief Justice." The principles of judicial comity and legal propriety require, in order to avoid conflict of authority and to secure certainty, uniformity and continuity in the administration of justice, that one Judge of a High Court sitting singly should follow the decision of another Judge of the same High Court sitting singly, and that a Division Bench of a High Court should follow another Division Bench of the same High Court, that a decision of a Full Bench consisting of the same number of Judges should follow the decision of a Full Bench of equal number of Judges and that a decision of a larger Full Bench should be considered authoritative and binding on all other benches constituted of a lesser number of judges. 5. The Supreme Court has dealt with the question relating to decisions of two different Full Benches in the case of Atma Ram v. State of Punjab, reported in AIR1959SC519 . In that case, the Supreme Court observes at page 527 as under: "...... the better course would have been to constitute a larger Bench, when it was found t....
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....Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench.". 7. In the case of Jai Kaur v. Sher Singh, reported in [1960]3SCR975 , the Supreme Court has laid down that a decision of a Full Bench should be regarded as binding on a Division Bench of the same High Court. In that case, the Supreme Court, at p. 1122 observes as under; "When a Full Bench decides a question in a particular way every previous decision which had answered the same question in a different way cannot but be held to have been wrongly decided. We had recently occasion to disapprove of the action of a Division Bench in another High Court taking it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance op the well-recognised judicial practice that when a Division Bench differs from the decision of a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision. If, as we pointed out there, considerations of judicial decorum and legal propriety require that Division Benches should not themselves pronounce ....
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....h is liable to be followed by another judge of the same High Court sitting singly only on the basis of judicial comity and which is not binding on a Division Bench of the same High Court and which is liable to be overruled by such Division Bench and by the Supreme Court cannot be regarded as a 'law in force'. Similarly the decision of a Division Bench of a High Court which is liable to be followed by another Division Bench of the same High Court only on the basis of judicial Comity and which is liable to be rendered ineffective by a Full Bench of the same High Court and which is liable to be overruled by the Supreme Court cannot be regarded as "law in force". In Our view, it would be straining the language of the legislature to regard the same as law in force'. 9 Judicial precedents are, often referred to as case law. It may with propriety be said that in England principles of equity have emanated from the Court of Chancery and the theory that judicial precedents are merely declaratory of the law would not be applicable thereto. In the context however of Section 87 of the Bombay Re-organisation Act, we cannot hold that the Indian Legislature intended, when dealing wi....
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....ate of Gujarat comprises territories which at one time formed part not merely of the State of Bombay prior to the States Re-organisation Act, 1956, but of the States of Saurashtra and Kutch. If by virtue of the provisions of Section 119 of the States Re-organisation Act, 1956, judicial interpretations given by the High Court of Saurashtra and the highest Court in Kutch Were preserved as "law in force" in the territories of the former States of Saurashtra and Kutch the same would continue in Operation in those territories as law in Force' under Section 87 of the Bombay Re-organisstion Act of 1960, unless the same were lawfully set aside or had ceased to operate by reason of legislative changes effected between 1st November, 1956, when the new State of Bombay was created and the 1st of May, 1960 when the new State of Gujarat was formed. Each newly created State has its own High Court under which various subordinate Courts function. There would be considerable confusion if Courts put different interpretations on the same enactment in different territories of the same State. We do not contemplate that the legislature could ever have had such an intention when, enacting Section 119 ....
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....ken the view that the High Court of the State of Madras, out of which the State of Andhra was carved out, was a Court of co-ordinate jurisdiction with the High Court of Andhra. The previous Full Bench of this Court in dealing with the decision of the Full Bench of the Andhra High Court on this point has observed at (1960) 1 Guj LR 88 : (at page 4S of AIR) as follows:- "We find considerable difficulty in agreeing with that view. We say this with some hesitation, Co-ordinate jurisdiction in the ordinary connotation of that expression is that which is exercised by different Courts of equal rank and status over the same subject-matter and within the same territory and ordinarily at the same time. Each Court muss have jurisdiction to deal with the same subject-matter. We do not Intend to suggest that for all purposes co-ordinate jurisdiction is to be equated with concurrent jurisdiction or simultaneous jurisdiction but we are unable to see our way to the conclusion that simply because this Court is in a sense a successor to the High Court of Bombay in respect of the territories which now form part of the State of Gujarat, it is a Court of co-ordinate jurisdiction with tha....
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....isions of "courts of equal and exercising the same jurisdiction", a view which seems to us to be sound. In the Full Bench case of the Andhra High, Court, Sub-barayudu v. State, Chief Justice Subba Rao, as he then was, has observed in his judgment at p. 92 that he would apply the following test to ascertain whether two High Courts were of coordinate jurisdiction or not: "Whether the two Courts are of equal rank and status or of equal authority and exercise similar jurisdiction." 17. A Court of co-ordinate jurisdiction must be a Court of equal rank and of equal status. That test is satisfied in the present case. The Gujarat High Court is a Court of the same rank and of the same status as the High Court of Bombay immediately prior to the appointed day. By Section 28 of the Bombay Re-organisation Act, 1960, it is provided that as from the appointed day, there shall be a separate High Court for the State of Gujarat and the High Court of Bombay shall become the High Court for the State of Maharashtra. By Section 29 It is provided that such of the Judges of the High Court of Bombay holding office immediately before the appointed day as may be determined by the President shall on that d....
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....ed immediately before the appointed day by the High Court of Bombay in respect of territories forming part of the new State of Gujarat. Both the Courts are courts of Record. The Gujarat High Court has succeeded to all power, authority and jurisdiction which the High Court of Bombay had until 1st May, 1960, in and in relation to the territories now forming part of the State of Gujarat if the exercise of the same jurisdiction is the test it is satisfied only to the extent that the jurisdiction exercised by the Gujarat High Court in respect of the territories forming part of the State of Gajarat was wholly exercised by the Bombay High Court prior to the appointed, day in the same territories. The Bombay High Court has however exercised jurisdiction over other areas. It has also exercised ordinary original civil jurisdiction under Clauses 11 and 12 of the Letters Patent. The Gujarat High Court does not exercise similar jurisdiction in respect of any territory. 18. It is urged that the continued simultaneous existence of both the Courts constitute a test for considering whether they are Courts of co-ordinate jurisdiction. That, however, does not appear to us to be a test. A Court whi....
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....f the aforesaid Courts was in the former State of Bombay and the other is in the new State of Gujarat, both the Courts are Courts in the same country. The larger territories over which the High Court of Bombay prior to 1st. May, 1960 exercised jurisdiction are not situate within the State of Gujarat. The Gujarat High Court being a successor Court, the question of reciprocity does not arise. Though strictly speaking, the Gujarat High Court may not be regarded 35 a Court of co-ordinate jurisdictions with the Bombay High Court as it existed prior to 1st May, 1960, the principles which govern the decisions of Courts, of co-ordinate jurisdiction, would apply. The aforesaid principles were evolved by the Courts themselves with a view to secure uniformity, certainty and continuity of judicial decisions and there is no reason why the same should not be extended to a court which is a successor to another Court of the same rank and status, when the successor Court is invested with all the jurisdiction, power and authority of the-other Court in respect of all the territories in respect whereof the successor Court exercises jurisdiction. 22. Taking all the circumstances into account, we are....
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.... by its Letters Patent is the creation of the King Emperor and is declared to be a Court of Record. It is in fact the King's Court which the Chief Court never was. Its jurisdiction in certain respects, such us contempt and mandamus is greater than that of the Chief Court. I am therefore of opinion that the Chief Court cannot be held to be a Court of co-ordinate jurisdiction with the High Court." This decision is distinguishable as the two courts were not regarded as being Courts of equal rank or status. The Full Bench even in that case has observed that the decisions of the Chief Court were conditional authorities of the highest value to which the greatest weight and respect must be attached and that the Judges of the High Court of Rangoon should not consider themselves free to set those decisions at naught except for the best and most urgent reasons. It further observed that the principle of stare decisis should be applied to those decisions in no narrow or technical spirit. 25. Our attention was also drawn to a decision of a Full Bench of the High Court of Madhya Bharat in the case of Chandulal v. Babulal, reported in Ala 1952 MP. 171. The view taken in that case was th....
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....d continuity in, the administration of justice the principles applicable to decisions of courts of co-ordinate jurisdiction in our view must be extended to the decisions of the Bombay High Court given prior to 1st May 1960. 28. Our answer to the question referred to this Special Full Bench is that the decisions of the Bombay High Court given prior to the appointed day, i.e., to 1st May 1960, do not constitute "any law in force immediately before the appointed day' within the meaning of Section 87 of the Bombay Re-organisation Act, 1960. We hold that the decisions of the High Court of Bombay given prior to 1st May 1960 have as much binding force and effect as if 'they were-the decisions given by the Gujarat High Court itself. A decision of a single Judge of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a single Judge of the Gujarat High Court; a decision of a Division Bench of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a Division Bench of the Gujarat High Court and a decision of a Full Bench of the Bombay High Court given prior to 1st May ....
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....eserved under Section 53 of the Andhra State Act (30 of 1953). We then found some difficulty in agreeing with some of the reasons on which the Andhra decision was found. The question which was raised before the Division Bench of this Court was of considerable Importance and its answer was bound to have far-reaching consequences on the system of judicial administration in the State -of Gujarat. Consequently, the Division Bench referred the matter to a Full Bench and the then learned Chief Justice constituted a Full Bench consisting of himself, my learned brother Bhagwati, J. and myself. The matter was argued from the same three aspects which were discussed in the Full Bench decision of the Andhra High Court. The learned counsel who appeared before that Full Bench did not seem to support the decision of the Andhra High Court on the principle of 'stare decisis'. The learned Advocate General who appeared for the respondent, however, supported the decision on the other two grounds and Mr. V. B. Patel, who a powared for the petitioner in AIR1960Guj40 , resisted both those grounds. The Full Bench unanimously decided that the correct interpretation of Section 87 of The Bombay Reorg....
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....ich applied to the problem was the principle of coordinate jurisdiction as held by the Full Bench of the Andhra High Court and that that was the only ground on which the former Full Bench decision of this Court should be sustained. Several learned counsel have also appeared before this Full Bench and. Mr. S. B. Vakil was good enough to appear amicus curiae. There was a distinct cleavage of submissions made by those counsel. Mr. M. K. Joshi and Mr. N. C. Trivedi went to the extreme length of contending that no decision of the High Court of Bombay is binding upon this Court, and that, on the creation of the High Court of Gujarat, the true legal position was that it started with a clean state. Mr. I. N. Nanavaty agreed with the learned Advocate General that Section 87 of The Bombay Reorganisation Act, 1960, did not apply. However, he did not agree with him that the High Court of Bombay and the High Court of Gujarat were also Courts of, co-ordinate jurisdiction. His submission was that the High Court of Gujarat was the successor of the High Court of Bombay and the decisions of the latter Court were binding on this Court on the principle of succession. Mr. S. B. Vakil, on the other hand....
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....hese two States were created from out of the former State of Bombay. Parliament has power to do this under Articles 2 and 3 of the Constitution, Article 2 provides, inter alia, that Parliament may, by law establish new States on such terms and conditions as it thinks fit. Article 2 provides the various modes by which a new State may be created and by which the area of an existing State may be either increased, diminished or the boundaries thereof altered. From the Act, it is quite clear that the Parliament was creating the two new States under Clause (a) of Article 3 which provides that Parliament may, by law, form a new State by separation of territory from any State-Section 3 of the Act specifies the territories of the State of Gujarat and assigns the residuary territories of the State of Bombay to the State of Maharashtra. Article 4 provides that any law referred to in Article 2 or Article 3 shall contain, inter alia, such provisions as may be necessary to give effect to the provisions of that law and may also contain such supplemental, incidental and consequential provisions as the Parliament may deem necessary. The Act created for the State of Gujarat a number of institutions ....
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....y such Jaw to the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day". Section 88 confers power upon appropriate Governments to make such adaptations and modifications of law, whether by way of repeal or amendment, as may be necessary or expedient for the purpose of facilitating the application in relation to the two new States of any law made before 1st May 1960. Section 89 confers a power upon the authorities mentioned therein, including courts of law, to construe the law in such manner without affecting the substance as may be necessary or proper in regard to the matters be fore such authorities notwithstanding that no provision or insufficient provision may have been made by the appropriate Government under Section 88 of the Act. 34. Section 2 of the Act is the defining section. Clause (a) thereof defines "appointed day" as meaning 1st day of May, 1960. Section 2(d) defines the term "law" and that definition deserves to be stated in full. It is as follows: "2(d): 'Law' includes any enactment, ordinance, re....
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....law", but it is intended to extend it by Including therein things which otherwise may not have been taken as Included in the term "law". 37. An analysis of the various sections or the Act, already quoted, discloses that the Legislature has used a number of expressions in those sections in relation to the term "law". The expressions are "law", "force of law", "law in force before the appointed day", and "law made before the appointed day". It is in the context or these different expressions that the first question relating to the construction of Section 87 wilt have to be decided. 38. AS the term "law" has not been defined exhaustively, learned arguments were advanced at the bar as to what is the true meaning of that term. Reference was made to Salmond's Jurisprudence as to the correct definition of this term. From that book, it appears that there are two main theories propounded by the jurists as to the correct connotation of the term "law". One theory defines law as "general command issued, by the State to its subjects and enforced through the agency of courts of law by the sanction or physical force", (vide Jurisprudence by Salmond, Eleventh Edition, page 53). The secon....
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....nstitutes a judicial precedent. When a Court answers a point of law in the form of a general principle, then judicial precedent is created. "When a question of law is answered by way of abstraction and after elimination of the immaterial elements, it becomes a judicial precedent. When such a general principle is enunciated. It is applicable not merely to the particular case in which it is enunciated, hut it is applicable to all other cases which resemble that particular case in its essential features. This is known as the ratio decidendi of the case and it is this ratio which constitutes the judicial precedent. 41. Judicial precedents have different force and effect to different Courts depending upon the Court in which they are created, in which they are sought to be used, and the relationship existing between the Court in which the precedent is created and the one in which it is intended to be Used, it is, therefore, necessary first to know the hierarchy of Courts in the territories over which the composite High Court of Bombay exercised jurisdiction including the territory assigned to the State of Gujarat. In the State of Bombay, the Courts were divided into two bred categorie....
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....ate jurisdiction with a Division Bench A Full Bench of the Bombay High Court stood on the same footing as a Division Bench, br-oouse no appeal lay from a decision of a Division-Bench to a Full Bench and thus there was no relationship of subordination or superiority of one Bench over the other. Thus. Division and Full Benches were Courts of co-ordinate jurisdiction with one another. 44. Judges exercising jurisdiction in the subordinate Courts were subordinate to the High Court. They were subordinate not only to Division Benches and Full Benches, but also to single Judges of the High Court. A judicial precedent created in the High Court of Bombay, whether by a single Judge or a Division Bench or a Full Bench, was binding on all the subordinate Courts on the ground that these Courts were under the appellate and revisional jurisdiction of the High Court and thus the relationship existing between the two sets of Courts was one of subordination and superiority. When a judicial precedent of the High Court of Bombay was cited in a subordinate Court, the latter Count was bound to follow it A failure to follow it was an error of law and was bound to be corrected by a Court of superior jur....
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....t, then, both the precedents hold the field and a subsequent Division Bench can follow the precedent of any of the two Division Benches. Such a practice was not recognized by the Bombay High Court. In that Court, as a general rule, a Division Bench followed the precedent of another Division Bench. If any conflict between the decisions of two Division Benches was brought to the notice of another Division Bench, then, the practice was to get the matter referred to the Chief Justice. Such a practice was also prevalent in the High Court of Calcutta as appeals from the observations made in [1960]3SCR578 . This practice appears to have been approved by the Supreme Court in two recent judgments reported in [1960]3SCR578 (supra) and 1960CriLJ126 .118 at p. 1122. A precedent created by a Full Bench, did not perhaps have the effect of over-ruling a Precedent created by a Division Bench of a Full Bench of smaller size. But, the logical consequence of the observations made by the Supreme Court in the aforesaid two cases is that, when a Full Bench differs from a Division Bench on a point of law, apart from the fact that the subordinate Courts are bound by the decision of the Full Bench, the Div....
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....n of a smaller Full Bench. 46. From the aforesaid practice, it is possible to get a proper view as to the piece which the judicial precedents enjoyed in the composite High Court of Bombay before 1st of May 1960. I may not be understood to say that the practice in that High Court has changed since then. I am using the expression before the 1st of May 1960 be- cause it as necessary to do so in order to decide the point in hand. 47. Before I say anything further on the same subject, it is necessary to make a few observations on a topic which is of a controversial (nature and over, which different submissions were made in this Court. The question is whether a judicial precedent declares or creates law or whether it at all declares or creates anything. Two principal theories hold the field. One theory is known as the declaratory theory, according to which all precedents are merely declaratory and they do not make any law. This theory is based on the view that the Court administers justice according to law and that, when It decides a point! of law, it does not create new law, but only decides what the law is According to this theory, when a judicial precedent is created in the fiel....
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.... exercised-Original precedents are the outcome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it". 47a Clause 19 of the Letters Patent of the High Court of Bombay is as follows : "And we do further ordain that, with respect to the law or equity to be applied to each case coming before the said High Court of Judicature at Bombay, in the exercise of its ordinary original Civil jurisdiction, such law or equity shall be the law or equity which would have been applied by the said High Court to such case if these Letters Patent had not issued". The heading for this and the next two clauses is as follows : "Law to be administered by the High Court.". From this clause, it is quite clear that the High Court of Bombay administered not merely law, but, also exercised equity jurisdiction. It was contended at the bar that the equity jurisdiction which the High Court of Bombay exercised was to be exercised on the same principles which" were exercised by the Court of Chancery of the High Court of England and that no new principles could have been recognised by the High Court of Bombay. In other words, t....
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....dance with the rule of justice, equity and good conscience. When the High Court does this there cannot be any doubt that it does create law in the sense used by Salmond in the above passage. 48. Apart from this, it is not correct to say that a Judge does not create law at any time. Statute law is comparatively a modern development. The purpose of this law is, as a general rule to restrict the exercise of judicial discretion in the administration of justice. Though the statute law has recently encroached upon a very vide field of judicial discretion, it cannot be denied that there is still a considerable area in which judicial discretion has not been tied down. In fact, in several matters modern tendency is to invest the judiciary with discretion in the administration, of laws. The Legislature in such matters contents itself by only laying down broad principles on the basis of which the law is to be administered. The law of procedure and the law of evidence are instances in point. Although the legislature has prescribed a number of laws on those subjects, it has left a number of other matters to be decided by Courts of law. In this field, which is left to the discretion of the Ju....
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....in the absence of a decision of that Court, the High Court operating in the territory in when the case arises. No other authority in India is invested with the authority of deciding this question. Therefore, in the constitutional field, the judicial precedents have a place of their own. Nobody can know what the law on a particular subject is unless and until he tests that law on the anvil of constitutionality. The final answer as to what the law on a subject is can be found not merely by reading statute law or text On personal law, but, by knowing what the Judge have said on the subject if they have said anything at all or by reasonably anticipating what they are likely to say on it. 50. 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. Apart from the question as to whether the Supreme Court does Or does not create any law, having regard to Article 141, it cannot be doubted that it is that Court which settles what the law for the Indian Courts is and whatever may be the view of any jurist as to what the law is in certain branches, if the Supreme Court gives a decision on that subject,....
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....w been assigned to the State of Gujarat and whether that law in force' is or is not preserved after the creation of the new State of Gujarat. 52. This brings me to the interpretation of Section 87 of the Act, which section has been already reproduced by me above. The section divides itself into two limbs. The first limb of the section states that the provisions of Part II of the Act shall not be deemed to have effected any change in the. tern tries to which any law in force immediately before the appointed day exists or applies. The second limb states that the territorial references in any such law to the State of Bombay shall, until otherwise provided by a comp tent legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. There is some force in the view that the fist limb of the section has been inelegantly worded. It was pointed out by the former Full Bench that the idea which was sought to be conveyed by this first limb could have been more elegantly expressed. However, in the course of the arguments at the bar in the present Full Bench, there was no dispute as to the correct meaning to be at....
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....n substance the argument is that the term 'law' as used in Section 87 is not used in the wide t sense as taking within its ambit the full cannot of that term, hut, that it is essentially co fined to the term 'law' 93 defined limitedly in Section 2(d) of the Act. Mr. Nanayaly Peinforces the aforesaid argument by contending that the form law in the Section is used in a concrete sense and not in its abstract sense. In support of the rival contentions the expression "any law in force immediately before the appointed dry" is either split up info various parts or retained intact. According to one submission, the adjective 'any' gives a clue to the intention of the Legislature. According to another submission, the main term -is 'law' and the words 'in force' only quality that term. Mr. Nanavaty contends that the expression 'any-law in force' should be cut no into two parts, viz. 'any law' and 'in force', and that the expression 'in force' is an expression of abridgment and not of extension. On the other hard. Mr. Vakil con-tends that it is improper to cut up the expression -into different parts. He contend that the tr....
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....slature an intention which, I have no doubt, the Legislature never intended to entertain. The assumption is that, on the creation of the two new States, by splitting up the existing State of Bombay, the Legislature assumed that the Jaws existing in the territories before the creation of the new States would automatically lapse and would not enure for the benefit of the new States. I am unable to find any justification for this assumption. In the first instance, we have be remember that the two new States are not being brought into existence by an act of State. They are being brought into existence, by a valid law. What is being brought into existence is not two independent States, but two new units in one and the same sovereign State. Therefore, unless the Legislature can be attributed an indention to create- not only new States, but also to wipe off laws existing in the old State, it would not be proper to attribute the letter intention to the Legislature. The argument may be tested in another way. Though the residuum of the former Bombay State has been called the State of Maharashtra, there is no doubt that that State retains all that which is not separated from the State of Bomb....
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....tes with the creation of a fiction, actually, the structure of the sentence shows that it was not enacted to create any fiction, but, it was enacted only for the purpose of clarification of that the position would be relating to the continuity of laws. In spite of the aforesaid clear legal position that the laws in the transferred territory would not change with the creation of a new State, it is not improbable that some one may be induced to advance an argument to the contrary and, therefore, to baulk such an argument, the Legislature seems to have made the provision found in Section 87. Thc Legislature has enacted Section 87. to prevent anyone from arguing that my change in law had taken place. On the other hand, if the view which has appealed to the majority were to be accepted is the correct view, then, with due respect, it may be pointed out that that view implies that, whereas the Legislature knew or assumed that a change of law was taking place, it made a provision only for written laws and not for non-written laws which, as is well-known. Includes a substantial proportion, of the law in force. There is no reason for supposition as to why the Legislature should have wade suc....
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....ral wants it to be read, the Legislature will be guilty of creating a fiction in favour of statute or written law only and not in respect of these other branches of law. In respect of those benches, the position will be that, whereas the Legislature by enacting Section 87 preserved the statute or written laws, it left the personal and the customary laws hanging In the air. There is no sound reason why the Legislature should have done so. 54. In my judgment, therefore, Section 87 does not create any fiction, but it enacts a prohibition which prohibition has been Introduced for the sake of clarification. If somebody is minded to argue that a change of law has taken place, then, it is enacted to prevent him from so arguing and that, in my judgment, is the true scope and object of Section 87. 55. The next argument is that the language of the second limb can apply only to statute laws and to no other. The argument is that the expression "territorial references in any such law to the State of Bombay" can only apply to statute laws inasmuch as such territorial references are to be found in statute laws and no other, I am unable to agree with this contention. In my judgment "such law....
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..... The marginal note speaks of laws' and not of written or Statute laws'. Moreover, I do not find any difficulty in interpreting the first or the second limb of the section which would justify resort to the marginal note for the purpose of construing both or any of the two limbs. 57. The argument that the expression 'any law in force' must be split up into different parts, does not appeal to me at all. In my judgment, the expression is a composite One and must be read and construed as a whole. 58. The argument that the adjective 'any' before the word 'law' shows that it is used in the concrete sense of the term law and not in its abstract sense, does not appeal to me. It is con. tended by Mr. Nanavaty that the adjective 'any' can be used only with reference to concrete law and not with reference to abstract law and he contends that the expression 'concrete law' is used only in respect of statute law and no other kind of law. In support of this argument, Mr. Nanavaty relies upon a passage from Salmond's Jurisprudence, Eleventh Edition, page 37, which is as follows :- "The term law is used in two senses, which ma....
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..... Such laws are derived from the holy texts. Though such laws may be written laws, they will not be so under Section 2(d) of the Act 60. The learned Advocate-General contends that the use of the words 'extends' and 'applies' in the first limb of Section 87 suggests that the first limb is applicable only to statute laws and to no other. Though, usually, the term 'extends' is used with reference to statute laws, I cannot agree with, the bald proposition that it must necessarily be confined to such laws. In any case, the term 'applies' is of welder ambit and applies not merely to statute laws but to other laws as well, (For example, we say that Sunni Bohras of Gujarat are governed by the Hindu Law or that Hindu Law applies to the Sunni JJohras of Gujarat.) 61. The learned Advocate-General also contends that Section 87 embodies a rule of construction and, therefore, it can apply only to statute laws and not to others. I am unable to agree with this submission. So far as the first limb of Section 87 is concerned, there is no doubt that it does not embody a rules of construction at all. The Legislature does not say so either expressly or impliedly. I....
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....14, 366(10) and 372. There is no doubt whatsoever that the Constituent Assembly has made a distinction between these two expressions. But, it is noteworthy that, in some of the Articles, where the expressions have been used, special definitions have been given to clarify the legal position. In my judgment, it will not serve any useful purpose if a task is undertaken to ascertain the exact meaning of the aforesaid expressions as used in the aforesaid Articles. As and when the question will arise for interpretation of these expressions, the task will have to be undertaken in the context in which the expression has come to be used. I may only observe that o"r attention was drawn to the fact that the High Courts of Calcutta and Bombay have taken two different views regarding the expression 'law in force' used in Article 13 of the Indian Constitution. In Naresh Chandra Bose v. Sachindra Nath Deb, reported in AIR1956Cal222 , the view is taken that that expression extends even to customary law, personal law like the Hindu and the Mohammedan Law and is thus more comprehensive than the expression 'existing law' as defined in Article 366(10). In the State of Bombay v. Narasu ....
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....he Legislature, the law in force is that which is settled or determined by case-law. For 'example, when the question arose for the first time as to whether a customs officer was or was not a police officer within the meaning of Section 25 of the Indian Evidence Act, it was open, to anyone to speculate on reading that section whether such an officer was or was not a police officer within the meaning of the Act, The question arose before the High Court of 'Bombay in Nanoo Sheikh v. Emperor, reported in AIR1927Bom4 , and it was decided therein that the Excise Officer was a police officer within the meaning of Section 25 of the Indian Evidence Act. The moment this decision was given, it was no longer open to anyone to speculate 'as to what the law on the subject was. It is true the question was one of fact when it arose for the first time, but, it became a question of law aper the decision was given. It is quite clear to me that, if any counsel were to express an opinion on the above subject by merely reading the Act alone, he would be guilty of negligence if his answer does not coincide with the Bombay cafe if the question was to be answered with reference to the Bombay te....
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....a. 69. Therefore, even so far as the statute law is concerned, the true position is that the counsel must know, not merely what the statute is but, he must also know how that statute has been interpreted, Therefore, a knowledge of enforceable statute law is not acquired merely by knowing what the statute is, but, by knowing what the statute is and how it has been interpreted by the Court of law. If this is so in the matter of the statute law, then, it is much more so in other branches of law. 70. Moreover; in the matter of the statute law, a mere knowledge of the statute is not the same thing as the knowledge of the law in force. If the statute has been challenged on constitutional grounds and if the statute has been held to be void as offending the fundamental rights or as beyond the competence of the Legislature, then, a knowledge of the statute will not give a counsel knowledge of the enforceable law, but, on the contrary, is likely to give him an Incorrect information on the subject. The counsel must necessarily knew whether a Court of Justice has or has not held that particular piece of statute law to be void or incompetent and the knowledge of the latter subject can by ....
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.... used in Sections 88 and 89 of the Act. It is a salutary rule of construction to follow that if Legislature uses two different expressions in one and the same statute, then, the Legislature ordinarily intends to express two different concepts thereby, especially when the Legislature deliberately uses two expressions in two different places where one expression will have been enough to meet both the situations. In the latter case, in my opinion, it is legitimate to inter that the Legislature intended to give two different meanings to the two expressions used by it. There cannot be doubt that the expression "law made before the appointed day" used in Sections 88 and 89 refers only to statute laws and to no other. In, my judgment, if the Legislature intended that Section 87 should refer only to statute or written laws and not to other kinds of laws, the Legislature would have used the expression "law made before the appointed day" in preference to the expression ''law in force immediately before the appointed day". The fact that the Legislature has not done, this, which was the obvious thing to do if such was its intention, is a strong argument against the construction sought ....
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....jarat, impressed with the same strength and infirmity which it possessed in Bombay at the time when the two new States were created. The precedent of the High Court of Bombay was liable to be displaced in that Court in one of the ways which I have already indicated above. Just as that precedent could have been displaced by the composite High Court of Bombay in one of those ways, similarly, it could be displaced by the High Court of Gujarat in the same manner in so far as ft was operative in the territory of Gujarat Moreover, in my judgment, Section 32 of the Act has conferred this power upon this Court. That section preserves for this Court the law in force as regards the practice of the High Court of Bombay. It is true that Section 82 does not preserve the practice of the High Court of Bombay as such, but, what it preserves is the law in force' with respect to practice. But, in my judgment, in this connection, the maxim 'Cursus curiae est lex curiae' applies. Broom on Legal Maxims, Ninth Edition, at p. 94, states as follows: "Every Court is the guardian of its own records and master of its own practice; and where a practice has existed it is convenient, ....
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.... argument is closely analysed, it will be found that, at least in respect of those territories where new High Courts are created, an opposite view will create a greater chaos and the interpretation, which I am placing upon the expression law in force' will not only save the territories from chaos, but will be in consonance with the ordinary principles of justice, equity and good conscience, and with a principle analogous to the principle of "stare decisis'. For example, if the majority view is the correct law, if in the States of Kerala, Mysore and Rajasthan, a point of law arises before a subordinate Court that Court will be completely at large and will be in a position to decide it on is Own view of the matter, untrammelled by anything whatsoever and the point will remain res integra until the matter comes before the reliant High Court, The High Courts created in these three territories are separate and independent. The Mysore High Court took this view in AIR 1959 Mys 1 (FB). Therefore, that High Court immediately after its establishment did not have precedents which could have guided its subordinate Courts. The result of this is that, whereas a territory which formerly b....
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....jority view, Section 119 applies to statute laws and these Jaws are completely preserved. Now, there is no doubt whatsoever that, on a number of subjects. the statute laws prevailing in the merged territories were different from those prevailing in the State of Bombay. There cannot be any doubt that those statute laws are preserved in spite of the change of territories. If the Legislature did this with respect to statute laws, I am unable to discover any reason why they should have entertained a different intention with respect to other laws. On the contrary, in my judgment, the presumption should be that the Legislature did not intend to create a partial change of this kind, and thereby to shock the conscience of the people by suddenly breaking, them away from a legal system, to which they were used till then. It is true that the Legislature has now brought some of those laws in harmony with the laws of the former Bombay State. But, that appears to have beep done by subse-quent legislation and as a matter of policy and, after due deliberation. If the Legislature applied this niethod for change in the statute law, it is legitimate to think that it intended the same method to he use....
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....but was also interfering with laws which were outside its competence except when it was exercising emergency powers. There is nothing whatsoever in the Act to suggest that the Parliament intended to exercise emergency powers. 77. This brings me to the case-law on the subject. Section 53 of the Andhra State Act, which is in the same terms as Section 87 of the Act, came up for construction before the Full Bench of the Andhra High Court in the case reported in (S) AIR 1955 Andhra 87 (FB), already referred to. At page 93, in paragraph 28, after stating that that Section can only mean that the change of territories provided for by Part II of the Act will not make any change in the law obtaining in that territory before the change, till otherwise provided by a competent Legislature, the learned Chief Justice Subba Rao proceeded to observe. "If there was a law obtaining in the Andhra area before the Constitution of the Andhra State to the effect that the Madras High Court deci-sions would be binding on the Andhra High Court, this provision can legitimately be invoked. But, obviously, there could not have been any such law, for the simple reason that there was no High ....
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....nsider whether the term in the context in which it was used in-cluded the case-law or not and reached the conclusion that it did not, and the reasons given by the learned Judge are to be found at page 6 of the report, which are as follows:- "While an appeal lay from the Recorder's Court to the Calcutta High Court, the decisions of that Court were followed when, they differed from those of other High Courts, vide: Peth per-mall Chetty v. Phillips (1891) SJ 555. The Lower Burma Courts Act, which established the Chief Court, took away the right of appeal from Rangoon to Calcutta, and during the 22 years that the Chief Court of Lower Burma was in existence I have been unable to remember any occasjon where the decisions of the Calcutta High Court were considered of greater authority than those of Madras or Bombay by reason of the Burma Laws Act, Section 13 (2). This is of considerable importance for if the word "law" in that sub-section included the judicial decisions binding on the Original Side of the Calcutta High Court, it would clearly have been otherwise. Several learned Judges have construed the word "law" as covering not merely legislative enactments but also ....
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....Court of Mysore delivered upto 1-11-1958 were binding upon the new High Court. The answer was in the negative. S. R. Das Gupta C. J. based his decision on the ground that a new & an independent High Court had been created and that the former Courts and the new Court were not Courts of co-ordinate jurisdiction. There is no reference to Section 119 of the States Reorganisation Act, 1958, in the judgment of the learned Chief Justice. However, there is a reference to that section in the judgment of Nittoor Sreenivasa Rau, J., and on p. 4, the learned Judge observes as follows: "It is no doubt true that by virtue of Section 119 of the States Reorganisation Act, 1956, the taws operative in the respective areas continue to be operative until otherwise provided by a competent legislature or other competent authority. It should, however, be stated that such laws do not include what is called Judge-made law as has been held in AIR 1927 Rang 4 in similar circumstances''. The learned Judge follows the judgment of the Rangoon Court and does not give any independent reasons for holding that the Judge-made law is not 'law' within the meaning of Sec....
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....a Bharat High Court was a new High Court and that it was not a Court of co-ordinate jurisdiction with the High Courts of the former covenanted States. In the principal judgment of the Court, no reference is made to Clauses 3 and 5 of Ordinance II of 1948 which were relevant for the purpose of considering the question in hand. In the judgment of Kaul, C. J., reference is made to Clause 5 of Ordinance II of 1948. By that clause, it was provided that the High Court of Madhya Bharat "shall apply the laws and the usages prevailing in any State forming part of the United States of Madhya Bharat to Civil, Criminal and other proceedings in that State till such time as a duly constituted authority modifies them". The learned Chief Justice disposed of the question as to whether the expression "laws and the usages" includes case-law or not in the following words : "The Full Bench (referring to a former Full Bench of the High Court), if I may say so without disrespect, rightly held that the term ''Laws and usages" as used in these two clauses "cannot be held strictly speaking to cover judicial decisions". There is no further discussion On the subject on this point at ....
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.... to the conclusion that the view taken by the former Full Bench that Section 87 of the Act saves the precedents of the High Court of Bombay for the territory of Gujarat was the correct view. 86. The second question to be considered by the Full Bench is whether the precedents created in the High Court of Bombay before 1-5-1960 are binding on the High Court of Gujarat on the principle that the two High Courts are Courts of co-ordinate jurisdiction. The question was raised, for the first time before the Division Bench in the case of Anand Municipality v. Union of India and others and, as has been stated by the learned Chief Justice S. T. Desai in AIR1960Guj40 , both he and I felb difficulty in accepting that contention. The contention was based mainly upon the decision in. The principle that, when two Courts are of co-ordinate jurisdiction, the precedents of one are binding on the other on the principle of judicial comity was never in dispute. That principle has also not been challenged by any side before the present Full Bench. The main question for consideration is as to what is the exact connotation of the expression "a Court of co-ordinate jurisdiction". The test which was laid....
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....the course of the discussion, have lent edge to some of these doubts. With this preliminary observation, I now proceed to deal with the points which were argued at the bar. 87. The supporters of the theory of co-ordinate jurisdiction are not unanimous in stating the ground on which they supported the theory. The learned Advocate-General contends that the composite High Court of Bombay and the High Court of Gujarat are Courts of co-ordinate jurisdiction in its fullest sense. Mr. Nanavaty and Mr. Trivedi on the other hand, contend that the two Courts are not Courts of co-ordinate jurisdiction, but, that the true legal position is that the composite High Court of Bombay is now extinct and that two new Courts have come into existence -- the High Court of Maharashtra and the High Court of Gujarat, --that, both these Courts are co-inheritors of the jurisdiction of the composite High Court in their respective territories and that the precedents of the composite High Court are binding on the High Court of Gujarat as the successor Court of the composite High Court of Bombay. 88. I am not in agreement with the submission, of Mr. Nanavaty and Mr. Trivedi that the High Court of Bombay is....
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.... conferring on it jurisdiction, power and authority in respect of the matters dealt with by Sections 30 31, 32, 33, 34, 55, 36 and 38 for the High Court at Bombay as they have been made for the High Court of Gujarat. There would have been also some provision either for the appointment Or the continuance of the Judges for the High Court at Bombay other than those who came to be transferred by the President under Section 29. The. power conferred upon the learned Chief Justice of the Bombay High Court in respect of pending litigation and the jurisdiction conferred upon the High Court at Bombay in respect of litigation pending in that Court, all suggest that the High Court at Bombay was the same High Court but with a truncated territorial jurisdiction. It is hardly probable that the Legislature would not have made the aforesaid provisions for the High Court at Bombay if it had intended to create a new High Court for the State of Maharashtra. Under the circumstances, I cannot agree with the submissions of Mr. Nanavaty and Mr. Trivedi. Mr. Nanavaty alternatively contends that, even if the High Court of Bombay is not extinct, the High Court of Gujarat must be considered to be a successor ....
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....ed and the reasons therefore in a situation of the aforesaid type. During the course of the arguments, there was a persistent assumption that there was no difference in law between Courts of co-ordinate jurisdiction and a set of Courts, one of which was exercising jurisdiction over a whole territory at one time and the other is now exercising jurisdiction over a part thereof only, the result of the latter process being that the territorial jurisdiction of the first Court has become truncated. 89. Before I consider the question whether the principle of co-ordinate jurisdiction can apply to a situation of the above kind and examine the question of the tests to be applied for determining which are Courts of co-ordinate jurisdiction, I may first dispose of a few general submissions which were made by Mr. Vakil on this point. 90. Mr. Vakil contends that the principle of co-ordinate jurisdiction is a principle peculiar to British jurisprudence and that the basis for the application of that principle to the Indian jurisprudence is completely lacking. The contention is that the principle of co-ordinate jurisdiction can apply only to Courts situated in one and the same realm and follo....
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....egal system is not a necessary concomitant of the principle of co-ordination can be illustrated by a practice which was prevalent in the composite State of Bombay amongst its subordinate Courts and must be now prevalent in the Courts subordinate to this High Court. Judges in the mofussil exercising jurisdiction in one and the same civil Court will be Judges exercising co-ordinate jurisdiction. The successors of each of the Civil Judges will also be Judges of the Same category if the principle of succession is recognized in the application of the principle of co-ordination. The system of Jaws which each of the Judges exercises within his jurisdiction is the same. Still, the principle of co-ordinate jurisdiction has never been applied at the level of subordinate Courts. No one has ever argued that a decision given by one District Judge was binding upon his joint or successor District Judge, or that the decision of a Judge of the Senior Division was binding on his joint or successor Civil Judge or the decision of a Judge of the Junior Division was binding on his joint or successor Civil Judge. This is a good illustration to show that the principle of co-ordination is not brought in....
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....cedents created or brought into existence after the 1st of May 1960. The precedents which will be binding will be those which were created before that date. Therefore, when this High Court follows a precedent of the composite High Court of Bom-bay, it will not be by way of subordination, but on the same principle of co-ordinate jurisdiction on which the Judges of the composite Court acted. The result will be that just as the High Court of Bombay had power of revising its own precedent in accordance with the practice in vogue in that Court, the High Court of Gujarat will have the same power of revising that precedent in so far as it applies to the territory of Gujarat. 95. Mr. Vakil then contends that the whole principle is self-stultifying. He says that, in the ultimate analysis, the principle of co-ordinate jurisdiction has its root of authority only in the precedents of the two Counts of co-ordinate authority and the root can be cut off by one of the two Courts at any moment. He says that if the High Court of Gujarat accepts this principle to-day, it can on the very next day create a precedent to the contrary and there will be no certainty that the principle will be applied at....
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.... It is quite clear that the above test alone cannot bring the principle into play. The second test has been described in the Andhra Full Bench case as She test of similar jurisdiction. The controversy centres round this second test. Is the test of similar jurisdiction enough? Is it not necessary that jurisdiction should be the same? probably, the concept of similar jurisdiction is emphasised because otherwise there will be no distinction between co-ordinate jurisdiction and concurrent jurisdiction or simultaneous jurisdiction. If two Courts are of equal rank and if they exercise the same jurisdiction, then, they will be Courts of concurrent jurisdiction and not Courts of co-ordinate jurisdiction alone. Therefore, a test must be found which will distinguish between a concurrent Court and a co-ordinate Court. It is for this reason that, in the former Full Bench the test was not com-plelely rejected. But, the controversy is as to what is the test which is to be applied for the purpose of distinguishing a Court of concurrent jurisdiction from a Court of co-ordinate jurisdiction. One of the arguments is that concurrent Courts are also Courts of co-ordinate jurisdiction; but, the latter ....
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....wed in Mills v. Jennings (1880) 13 Ch D 639. It is stated by Salmond that the Court of Appeal refused to follow the decision of its predecessor the Lords Justices of Appeal in Chancery. This is not quite an accurate reading of (1880) 13 Ch D 639. The aforesaid principle was not only not denied, but, was actually affirmed by that decision. The ground on which the former decision of the Lords Justices of Appeal in Chancery was not followed in (1880) 13 Ch D 639, was that the former Court itself did not consider its own decisions to be binding, so that this case does not deny, but actually affirms the principle that a successor Court of co-ordinate jurisdiction was bound, by the decision of a predecessor Court of the same jurisdiction. It is true that in none of the above English cases, any reasoning is given in support of the proposition aforesaid. But. it cannot be denied that the Courts which decided the point were composed of Judges of great eminence and learning, such as Lord Herschell. Lord Scrutton, Lord Davy, Lord Lindley and Reading, C. J. I would require very strong ground to differ from a proposition laid down by such eminent and learned Judges. Therefore I accept it as a c....
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....se. The same observations can be made about the cases AIR1958Ker111 . The case of AIR 1927 Rang 4, however, is of some assistance On this topic. In that case, the majority judgment was based, inter alia, on the ground that the territory over which the Chief Court of Lower Burma exercised jurisdiction did not extend over the whole territory over which the High Court of Rangoon exercised its jurisdiction. 100. One of the grounds which was urged in support of the application of the principle of co-ordination was that the test of territorial jurisdiction must be applied with reference to the time when the High Court of Gujarat came into existence. If was contended that, before 1st of May 1960, the composite Bombay High Court had the same kind of jurisdiction over the territory of Gujarat which the High Court of Cujarat exercises after that date over the same territory. It was contended that, therefore, the test of territorial jurisdiction ought not to be applied with reference to two different points of time. It was contended that the jurisdiction of the two Courts over the territory of Gufarat being identical at different points of time, one Court would be co-ordinate with the othe....
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....risdiction. But, even if there was any justification for this contention, in my judgment, Mr. Vakil is right in pointing out that the test of mutuality is not altogether inapplicable even in respect of Courts which have become extinct or whose jurisdictions have become divided. In such cases, it may be said that the test remains dormant. However, on an examination of the same issue, If it is found that in case of the re-merger of the territory of Gujarat with the territory over which the present High Court of Bombay exercises its jurisdiction, the present High Court of Bombay will not, on the principle of judicial comity, respect the decisions of the High Court of Gujarat, then, the latter Court cannot extend the principle of comity to the former Court. In my judgment, having regard to the view taken in AIR 1927 Rang 4 in a contingency of the aforesaid type, there is no doubt whatsoever that the High Court of Bombay is not likely to respect the decisions of the High Court of Gujarat. In that view of the matter also, in my judgment, the principle of co-ordination is inapplicable in the present case. 101. In my judgment, there is also some substance in the argument of Mr. Vakil th....
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....ble in the Court. After the hearing, I have had access to the two authorities on which the aforesaid passage is based, On reading the judgments delivered in the two cases, I find that the passage is not an accurate reproduction of the decisions in the two cases. No such principle as is enunciated in the paragraph has been laid down in any of the two English cases on which the passage is based. Moreover, it is important to notice that Halsbury has put the principle not under the heading of "principle of co-ordinate jurisdiction", but under that of the principle or "stare decisis", which is a totally different principle on which, as I have already stated, none of the members of the bar relied, either before the former Full Bench or before the present Full Bench. 104. For the aforesaid reasons, I have come to the conclusion that the proponents of the principle of co-ordinate jurisdiction are not right in contending that this Court is a Court of co-ordinate jurisdiction with the High Court of Bombay as it existed before 1st May 1960 and, consequently, in my judgment, the precedents created in that Court cannot be held to be binding on the principle of judicial comity. 105. For th....
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....onstituting the Full Bench of the composite High Court of Bombay and I do not wish to be understood to say that, in such a contingency, this High Court will have no power of displacing a precedent of a Full Bench of the composite High Court of Bombay of the above kind. III. The precedents of the composite High Court of Bombay will be binding subject to the following rules : (i) If any precedent happens to be displaced by the Privy Council or the Federal Court, then, the precedent of the latter two Courts will be followed by this Court and not the precedent of the composite High Court of Bombay so displaced. (ii) If any of the precedents mentioned in the previous sub-part is displaced or overruled by a decision of the Supreme Court, then, the decision of the Supreme Court will be followed by this Court. (iii) A precedent, though not expressly overruled by a decision of Privy Council, Federal Court or Supreme Court, which is inconsistent with the decision of any of these bodies or Courts will not be binding on this Court. (iv) A precedent which is given per incuriam or a decision which is given sub silentio wi....
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....agwati, J. 107. I have had the advantage of reading the judgment just delivered by my Lord the Chief Justice and I am in entire agreement with the conclusion reached, in that judgment but inasmuch as I was a party to the judgment of the Full Bench in AIR1960Guj40 it is but proper that I should give my reasons for doing so. 108. Soon after the constitution of this High Court under the Bombay Reorganisation Act, 1960 the question arose whether this High Court was bound by the decisions of the High Court of Bombay given prior to 1st May 1960. The question being a question of considerable importance and consequence, was referred for decision to a Full Bench of this High Court. The question came to be considered by a Full Bench consisting of S. T. Desai, C. J., as he then was and my brother Miabhoy and myself. The learned Advocate General who appeared on behalf of the Union of India submitted that the decisions given by the High Court of Bombay prior to 1st May 1960 should be considered binding on this High Court and he advanced three contentions in support of this submission. The first contention was--and it was this contention which found favour with us then--that the decisions ....
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....of the Andhra High Court reported in AIR1955AP87 . Much argument was not advanced before us on this contention since we indicated to the parties that we were inclined to accept the first contention based on the construction and meaning of Section 87 of the Bombay Reorganisation Act, 1960. We did not, therefore, examine this con-tention in any detail but on the arguments advanced before us we felt some difficulty in reach, ing the conclusion that this High Court could be regarded as a Court of co-ordinate jurisdiction with the High Court of Bombay prior to 1st May 1960. S. T. Desai, C. J., as he then was, again speaking on behalf of the Full Bench, expressed our difficulty in accepting this contention in the following terms: "We turn to the second argument pressed for our acceptance by the learned Advocate-General. It is said that this High Court is in a real sense an off-spring of the pre-reorganisation High Court of Bombay. We contemplate the pedigree with filial sentiment and gratitude. Then it is said that we are a Court of co-ordinating jurisdiction with the High Court of Bombay as regards citation of decisions of the High Court of Bombay prior to the appointed d....
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....ere derived from the parent State of Bombay of which each formed a part This contention was also not pursued since we reached the conclusion that the decisions given by the High Court of Bombay prior to 1st May 1960 were binding on this High Court as "law in force" under 5. 87 of the Bombay Reorganisation Act, 1960. S. T. Desai, C. J. as he then was, delivering the judgment of the Full Bench observed as follows in regard to this contention: "It is lastly argued by the learned Advocate-General that decisions of the Bombay High Court prior to the appointed date are binding on this Court because the systems Chief law in the new States of Maharashtra and Gujarat are derived from the parent State of Bombay of which each formed a part. That decisions of the predecessor Court of the parent Court in any such situation should be accepted with all the respect due to them is not in doubt or dispute. The question is whether the decisions of that Court are binding as precedent. We should have pursued the matter but since we have already reached our conclusion on a reading of the sections of the Reorganisation Act and particularly that of Section 87, we need not burden this judgme....
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.... than the Previous Full Bench, the Special Bench was not bound by the decision of the previous Full Bench and it was open to the Special Bench to reconsider the question whether the decisions given by the High Court of Bombay prior to 1st May 1960 were binding on this High Court and to pronounce upon the correctness of the decision of the Previous Full Bench. This contention of the learned Advocate-General was based on the acceptance of the principle of superiority of numerical strength amongst Benches of co-ordinate jurisdiction in the same court -- a principle which, as I shall presently point out, has been rejected in England in its application to the Divisional Court and the Court of Appeal. The learned Advocate-General, however urged that this principle has been consistent-ly adopted in Indian High Courts and has received the approval of the highest Court of the country namely, the Supreme Court, and that the Spe-cial Bench should, therefore, consider itself free to disregard the decision of the previous Full Bench by reason of the superiority of numerical strength of the Judges composing the Special Bench. This preliminary question raises a point of considerable importance....
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.... judicial precedents in a strict and more technical sense. The prior, case, being directly in point, is no longer one which may be used as a pattern; it is one which must be followed in the subsequent case. It is treated as something more than a model; it is regarded as a fixed and binding rule. The doctrine of judicial Precedents so understood, does not owe its existence to any statute or common law rule but has been evolved by the. English Judges in course of time as at matter of judicial comity. This origin of the doctrine of judicial precedents has been emphasized in various cases and no better statement of it can be found than in the case of The Vera Cruz, reported in (1884) 9 P. D. 96, where Brett, M. R., has observed: "It was the custom for each of the Courts in Westminster Hall tq hold itself bound by a previous decision of itself or of a Court of co-ordinate jurisdiction. But there is no statute or common law rule by which one Court is bound to abide by the decision of another of equal rank; it does so simply from what may be called the comity among Judges. In the same way there is no common law or statutory rule to oblige a Court to bow to its own decisions....
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....stringency. But the importance of substantive precedents is well established. In the latter half of the seventeenth century, Vaughan C. J., C. P., lays down certain principles concerning the relative values of different kinds of precedents. While fully conscious of the importance of case-law, he is clear that 'if a Court gives judgment judicially, another Court is not bound to give like judgment, unless it thinly that judgment first given was according to law'. He even denies the force of procedural precedents unless they are according to law'. Sir Matthew Hale was of much the same opinion. Nevertheless, throughout this period the influence and authority of precedent are steadily growing. In the eighteenth century, precedent forms a regular and integral part of judicial technique. In the time of Lord Mansfield, the duty of judicial 'loyalty' was fully recognized and repeatedly asserted, though Lord Mansfield himself, while remaining a firm believer in stare decisis, did not himself always adhere faithlully to it. By the end of the eighteenth century, all the foundations of the modern doctrine of precedent were laid but it could not reach its final development un....
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....uisne Judge. The Divisional Court cannot, however, overrule such decision; and another individual judge may prefer the judgment of his brother to that of the Divisional Court, for the Divisional Court is not superior to an individual Judge in the judicial hierarchy. A High Court Judge sitting as a Judge of first instance is strictly not bound by the decisions of the Divisional Court for his relation to his brother judges in the Divisional Court is one of equality and not of subjection. So far as the Divisional Court itself is concerned, it is now well-settled as a result of two decisions namely, Police Authority for Huddersfield v. Waston (1947 KB 842) and Younghusband v. Luftig 1949) (2) KB 354 that the Divisional Court is bound by its own decisions, and that a full Divisional Court has no greater powers of overruling itself than a Court of three or even of two Judges. The principle of superiority of numerical strength has been rejected by the Divisional Court. Lord Coddard C.J., in the latter case of 1949 2 KB 354 observed as follows in this connection:-- "Before considering the law applicable to the case, we think it well to emphasize that a Divisional Court of fi....
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....the Court cannot be done by the full Court." It is thus clear that in England the practice so far as the application of precedents is concerned is widely divergent between Judges of the High Court exercising original jurisdiction on the one hand and the Divisional Court and the Court of Appeal on the other. While the doctrine of judicial precedents in the sense in which we understand it to-day -- the sense which attaches absolute binding character to individual precedent--does not apply to the former, it applies in all its rigour to the latter and the rigour is so severe and unmitigated that even a Bench or Division consisting of a larger number of Judges is not permitted to disregard the decision of another Bench or Division consisting of a smaller number of Judges. The principle of course is that each Bench or Division has co-ordinate jurisdiction with the other irrespective of the number of Judges constituting the Bench or Division and there is, therefore, no reason why one Bench or Division should be permitted to disregard the decision of another bench or Division merely on the ground that the former consists of a larger number of Judges than the latter. The jurisdiction or ....
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....precedents in terms which have been accepted as a locus classicus, and which may be reproduced as follows:-- "Our Common Law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the partricular case, but for the interests of law as a science.'' A little reflection would show that certainty to the rules of law by which men have to guide themselves is of greater importance than arriving at the rule which is best in itself or most logically harmonious as part of a system. It may be that a principle which is once estab....
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....of the law." It is axiomatic that the law cannot at the same time be certain and still be flexible. When a rule has once become decided, even though wrongly the law becomes to that extent rigid and it is difficult Or impossible to depart from it The binding force of precedent acts as a fetter on the discretion of the Judge for the Judge is bound to follow the precedent even if he is satisfied that the precedent is erroneous. The Judge thus becomes "a slave to the past and a despot for the future, bound by the decisions of his dead predecessors and binding for generations to come the judgments of those who will succeed him." The doctrine of judicial precedents eliminates the opportunity for judicial locus penitentiae and once a rule is established by a precedent, the Judge in a subsequent case is obliged to accept the rule and to follow it even though the result of doing so might be to reproduce and perpetuate the error. It is because of this rigidity produced by the doctrine of judicial precedents that cases occur when the Court finds itself bound by its own prior decisions of which it now disapproves hut which nevertheless it is forced to follow. A good illustration of this may be....
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.... Court of Appeal can only be corrected by the House of Lords provided the litigants are prepared to face the costs of the appeal to the House of Lords. Speaking of the House of Lords, its errors are beyond judicial recall and the extremely difficult and expensive process of legislation has to be resorted to if the law is to be rectified. The position in India is, however, different in so far as the doctrine of binding nature of judicial precedents is concerned. The doctrine of judicial precedents as it prevails in India achieves a certain amount of balance between the opposing points of view and without sacrificing the merit of certainty if removes to a large ex-tent the vice of rigidity in law. There are various States in India and the High Court is at the apex of the judicial hierarchy in each State. The decisions of the High Court whether they are given by a Bench of a single Judge or by a Bench of two or more Judges are binding on all Subordinate Courts within the State. Within the High Court itself the decisions may be rendered by a single Judge or by a Division Bench of two Judges or by a Full Bench of three or more Judges. Now Clause 36 of the Letters Patent of the High C....
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.... of precedents to single Judges of the High Court has been recognized in various decisions of the High Court of Bombay and other High Courts and I shall only refer to one such decision namely, Tyabji Dayabhai and Co. v. Jetha Devji and Co. 29 Bom LR 1196: (AIR 1927 Bom 342) where Sir Amberson Marten observed: "The proper course, I think, for the learned Chamber Judge would have been to have followed, that decision without expressing, if he liked, any opinion of his own, and leaving it to the parties to appeal if they thought that that decision was wrong. That is the undoubted practice which prevails in the English Courts, and. the observations of Sir Lawrence Jenkins in Hafizaboo v. Mahomed Cassum 8 Bom LR, 734 approving of a similar course taken by Mr. Justice Batty in the Court below, show incidentally that they should be adopted here, and for this very good reason. The English system of law and procedure is different from that obtaining in continental countries. One essential element of it is that the Courts should deem themselves bound by decisions of Courts of co-ordinate jurisdiction, and that it should not be left in cases precisely on all fours for Judge A to....
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....ench of this High Court would not be bound, by the decision of a single Judge of the High Court and would be free to consider the correctness of such decision and to declare if it so found that the law was not correctly laid down in such decision. Here one finds the first manifestation of the principle of superiority of numerical strength. A Division Bench of two Judges of the High Court can disregard the previous decision of a stogie Judge of the High Court even though the single Judge is a Judge of co-ordinate jurisdiction with the Judges constituting the Division Bench. The principle which requires that a Court should hold itself bound by the previous decision of another of co-ordinate jurisdiction is thus departed from IN favour of the principle of superiority of numerical strength. The origin of this practice may perhaps be traceable to the fact that an appeal lies to the High Court under Clause 15 of the Letters Patent from the decision of a single Judge of the High Court and that such appeal is under the rules made by the High Court almost always heard by a Division Bench constituted of two Judges of the High Court. In England also the decision of the Divisional Court in res....
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....rruled by the decision of the Division Bench. (116) A Division Bench of the High Court is of course bound to follow the previous decision of another Division Bench of the High Court. When I refer to a Division Bench of the High Court I mean, a Division Bench constituted of two Judges of the High Court. But here again another inroad in made on the principle which compels a Court to abide by the decision of another of co-ordinate jurisdiction. A Full Bench consisting of three or more Judges of the High Court can disregard the previous decision of :a Division Bench of the High Court and declare that the law was not correctly laid down in such decision even though the Division Bench and the Full Bench are Benches of co-ordinate jurisdiction. This rule also recognises the principle of superiority of numerical strength amongst Benches of co-ordinate jurisdiction. If a Division Bench of the High Court is of opinion that the previous decision of another Division Bench of the High Court is erroneous, the subsequent Division Bench should not pronounce upon the correctness of the decision of the previous Division Bench but should refer the matter to a Full Bench so that the Full Bench can rec....
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....rvations that this rule governing the application of precedents to Division Benches of the High Court rests not on any requirement of law but on considerations of judicial comity and judicial decorum. 117. This takes me to a consideration of the question as to how far and in what manner the doctrine of judicial precedents applies in relation to Full Benches of the High Court. The rule which requires a Court to abide by the decision of another of co-ordinate Jurisdiction is sacrificed in favour of the principle of-superiority of numerical strength in the case of single Judges and Division Benches of the High Court. A Division Bench of the High Court is, as I have al-veady pointed Out above, not bound by the previous decision of a Single Judge of the High Court and can in effect overrule such decision by pro. nouncing it to be incorrect and similarly a Full Bench of the High Court is not bound by the previous decision of a Division Bench of the High Court and can examine the correctness of such decision and declare that the law is not correctly laid down in such decision. In these cases the principle of superiority of numerical strength amongst Benches of co-ordinate jurisdiction ....
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.... authority on the powers and constitution of a Full Bench. There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench, merely because the later bench consists of more Judges than the earlier. If that Were the rule, it would mean that a Bench of seven Judges by a majority of four to three, could overrule a unanimous decision of a Bench of six Judges, though all the Judges were of co-ordinate jurisdiction.'' The question which arose before the Court in that case was considered in 1894 by a Full Bench of the High Court of Bombay consisting of four Judges (Sargent C. J., Telang, Candy and Fulton, JJ.), in Queen Empress v. Mugapa ILR 18 Bom 377 and a particular conclusion was reached by the Full Bench on that question. This decision of the Full Bench of four Judges was reconsidered in 1921 by another Full Bench of five Judges (Macleod, C. J., Shah, Pratt, Faw-cett and Setalvad, JJ.) in Emperor v. Purshot-tam. Four out of the five Judges who constituted the later Full Bench came to the conclusion that the decisio....
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....cutta High Court in. But apart from the authority of the Madras and Calcutta High Courts, there is the high authority of the Supreme Court in AIR1959SC519 which has finally settled the question beyond any controversy. In that case a Full Bench of three Judges of the High Court of Punjab did not fol-low the previous decision of another Full Bench of three Judges and took a view different from that reached in the previous decision and this course was disapproved by the Supreme Court in the following words: "....Perhaps, the better course would have been: to constitute a larger Bench, when it was found that a Full Bench of three Judges was inclined to take a view, contrary to that of another Full Bench of equal strength. 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...." In this passage is implicit the proposition that a Full Bench consisting of a larger number of Judges can. override the decision of another Full Bench consisting of a lesser number of Judges and declare that the law was not correctly laid down in such decisi....
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....the question again in the light of the full and detailed arguments advanced before the Special Bench, I find that the view taken by me as a member of the previous Full Bench was erroneous. The true position in law appears to be that the decisions given by the High Court of Bombay prior to 1st May 1960 cannot be regarded as "law in force" within the meaning of Section 87 and their binding character as judicial precedents cannot be said to be continued under the previsions of that Section as held by the preview Full Bench. There are several reasons which have induced me to come to this conclusion and I shall now proceed to discuss those reason. 119. The Bombay Reorganisation Act, 1960, received the assent of the President and became law on 25th April 1960. By the provisions contained in Part II, the State of Bombay was reorganised by the formation of a new State known as the State of Gujarat. Part II was made up of three Sections namely, Sections 3, 4 and 5. Section 3(i) provided that as from the appointed day which was defined to mean 1st May 1960, there should be formed a new State to be known as the State of Gujarat comprising some of the territories of the State of Bombay ther....
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....urt of Gujarat and Section 41 provided for the setting up of a permanent Bench of the High Court for the State of Maharashtra at Nagpur. I shall have occasion later in the course of this judgment to refer to some of the provisions contained in these Sections when I examine the question whether the High Court of Bombay prior to 1st May 1960 could be said to be a Court co-ordinate in jurisdiction with this High Court but it is sufficient to state at this stage that this High Court by Virtue of the provisions contained in these Sections succeeded to the entire jurisdiction, powers and authority of the High Court of Bombay in respect of the territories now forming part of the State of Gujarat and took the place of the High Court of Bombay completely in relation to such territories. Part IX contained, as its very heading suggests, various legal and "miscellaneous provisions. Section 87 which is the Section on which the previous Full Bench relied for the purpose of coming to the conclusion that the decisions given by the High Court of Bombay prior to 1st May 1960 are binding" on this High Court was one of the provisions contained in this Part and it was in the following terms: &....
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.... they are used. Language is rarely so free from ambiguity as to be incapable of being used in more sense than one and to adhere strictly to its literal and primary meaning in all cases would be to miss its real meaning in many. The words must, therefore, be construed having regard to the subject and the Occasion and the object of the enactment. It is also an established rule of construction that the Intention of the Legislature must be gathered from the language used and the Court's function is not to say what the Legislature meant but to ascertain what the Legislature has said it meant. The Court should not speculate upon the intention of the Legislature in enacting any particular provision of the statute and then construe the provision in a manner which would effectuate such intention. The Court must ascertain the legislative intent from the words used and not bend the words of the statute to accord with pre-conceived intention. It must also be remembered that where the words of a statute are sufficiently flexible, it must not be construed in a sense which attributes to the Legislature an intention to bring about an absurd or mischievous result. The construction put by ....
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....itorial reference in any such law to the State of Bombay should until otherwise provided by a competent Legislature or other competent authority, be construed to mean the territories within that State immediately before the appointed day. The object of Section 87 was clearly to provide that the bifurcation of the territories of tile State of Bombay should not affect the teerritorial extent or application of the laws in force immediately before the appointed day so that notwithstanding the taking out of certain territories from the State of Bombay and the constitution of the said territories into the State of Gujarat, the laws in force immediately before the appointed day, if they applied to the said territories at that point of time, should continue to apply to the sajd territories. The provisions of Part II effected the bifurcation of the territories of the State of Bombay but the effect of the bifurcation was sought to be nullified by Section 87 in so far as the territorial extent or application of the laws in force immediately before the appointed day was concerned. Section 87 therefore, provided that the laws in force immediately before the appointed day should continue to appl....
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....e of construction that the Words of an enactment must be construed having regard Jo the subject and the occasion and the object of the enactment and that meaning must be given to the words which would best harmonise with the subject of the enactment and the object oGBP the Legislature. So construed, the words "law in force" in Section 87 must refer not to any and every law but only to such law which being in force immediately before the appointed day extended or applied to the territories affected by the bifurcation made by the provisions of Part II and which as a result of such bifurcation would have ceased to apply to the portion of the territories which went out of the State of Bombay to constitute the State of Gujarat). This meaning would be obviously more restricted than that attached by the previous Full Bench and would exclude from the scope and ambit of Section 87 judicial decisions even it they could be regarded as law in its broadest and widest sense. 122. Before I proceed further I must refer to a distinction which was sought to be made by the learned Advocate General in regard to the use of the word "Jaw" in different Sections of the Act. The learned Advocate Gene....
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....y be limited by the context to statute law and non-statute law may be excluded from its scope and ambit; but whatever be the meaning of the word "law" having regard to the context, whether it includes statute law or non-statute law, the addition of the words "in force" has no other effect except res-tricting such law to that which was in force immediately before the appointed day. By no process of reasoning can the words ''in force" possibly affect the meaning of the word "law" except by cutting out of the circle of what is comprised within the meaning of the word "law" --which ordinarily includes every law, whether statute law or non-statute law, in the absence of anything on the context to limit its meaning--a segment which comprises law which was in force immediately before the appointed day. The correct approach to the interpretation of the words "law in force" is, therefore, to ascertain first of all the true scope and ambit of the word "law" having regard to the subject and the occasion and the object of the Section and then to take a cross-section by reference to the guestion whether it was or was not in force immediately before the appointed day. That part of the la....
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....are "law in force", it can be legitimately urged that a different meaning was sought to be conveyed by the Legislature by using the latter words. But from this it does not follow that the words ''law in force" in Section 87 include not only statute law but also non-statute law. The words "law in force" in Section 87 must undoubtedly, bear a meaning different from that attaching to the words "law made" in Section 88 but the difference is not that the words "law made" refer only to statute law and the words "law in force" refer both to statute law and to non-statute law. The difference lies in this namely that while the words "law made" refer only to statute law, the words, "law in force" refer to all law, whether statute or non-statute law, which was in force, immediately before the appointed day. Of course the meaning of the term "law" in the expression "law in force" may vary with the context and the context may limit the meaning to any particular class or classes of law but whatever be the meaning of the term "law", the ex-pression "law in force" refers to such part of the law as was immediately in force before the appointed day. The words "law in force" have been used....
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....e in even judicial precedents, that these words were words of widest amplitude and included not only statute law, but also non-statute law such as personal law, customary law, common law and what is commonly known as "case law". Now it is no doubt true as pointed out by me above that the term "law" is a term of wide import and it's use is not confined to statute law or enacted law and that whether or not what is commonly known as "case law" is included within the term "law", it is indisputable that the term "law" ordinarily includes law other than codified law or statute law unless there is anything in the context to limit its meaning. The words "law in force" in Section 87 would, therefore, according to their plain and natural connotation include both statute law and non-statute law. The same words also occurred in Section 292 of the Government of India Act, 1935, and were judicially interpreted by the Federal Court in United Provinces v. Atiqa Begum, as including net only statute law but also non-statute law. Sulaiman, J., in that case, while dealing with Section 292 of the Government of India Act, 1935, observed that that Section "applies not only to statutory enactments ....
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.... law is concerned, it cannot with any reason be contended that the Judge makes law when he interprets the statute and applies it to the facts of the case before him. The law is to be found in the Statute made by the Legislature and the Judge merely ascertains the law by construing the statute according to the intent of the legislature. The Judge does no more than to gather from the language used, the intention of the Legislate and to declare what is the law enacted by the Legislature. The Judge's function is to ascertain the legislative will by interpreting the words used in the statute and not to legislate. When the Judge interprets the statute, the Judge does net make law but merely declaims what is the law made by the Legislature and gives effect to it. The law exists in the Statute independently of the decision of the Judge and is not the product of judicial reasoning. It is therefore, entirely in appropriate in, the case of statute law to say that the Judge makes law when he interprets a statute enacted by the Legislature. Even in the case of non-statute law, the Judge's function is essentially interpretative and not legislative. His whole effort is to find the law and....
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....ight to consider it because it is new as one for which the law has not provided at all; and because it has not yet been decided to decide it for ourselves, according to our judgment of what is right and expedient. Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents, and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules where they are not plainly unreasonable and inconvenient to all cases which arise; and we are not at liberty to reject them and abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we Ourselves could have devised. It appears to us to be of great importance to keep this principle steadily in view, not merely for the determination of this particular case, but for the interests of law as a science". It is, therefore, no 'childish fiction' -- as Bentham called it--to say that the judge does not and cannot 'make' law- The Judge's powers are quite different in this respect from those of the ....
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....ion of the true operation of judicial decisions even in regard to non-statutel law. In Balwant Rao v. Baji Rao 47 Ind App 213: (AIR 1921 PC 59) a question arose relating to Hindu Law of Succession which required the Judicial Committee of the Privy Council to consider whether decisions given by Courts in regard to doctrines of Hindu Law made law or were merely declaratory of law. One Bapuji, whose ancestors live in Maharashtra in Bombay presidency, immigrated to a place called Chikni in the Central Provinces. He lived in Chikni and when his end was near, he started on a pilgrimage in the course of which he died leaving a daughter behind him. The daughter succeeded to the immovable property of the deceased which was situate in the Central Provinces. During her lifetime, the daughter alienated various portions of the immovable Property to different persons. After her death her sons brought suits to recover the alienated portions, and cross-suits were brought by the purchasers. All the suits depended on the determination of the question whether the daughter had an absolute right in the immovable property inherited by her, or had she only the same class of limited interest as is possess....
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....pra) made for the first time the law that the daughter succeeds to her father in an absolute inheritance and was not declaratory of the law as it always ousted. This argument found favour with the Judicial Commissioner from whose decision the Judicial Committee of the Privy Council was hearing the appeal but it was rejected by the Judicial Committee of the Privy Council in the following words :- "...............Now, Mr. Drakc-Brockman, reading the text for himself, and following the decision of Mr. Neill, Judicial Commissioner in 1886, came to the conclusion that there was no difference on the point at issue between the Mayukha and the Mitakshara and that the proper interpretation was that given by the Courts other than Bombay. In so doing, he was necessarily going in the teeth of the decision of the High Court of Bombay in the case of 9 Ind App 528 (Note) (Bom). He, however, was sitting in a Court not subject to the High Court of Bombay; and he thought to avoid the question of whether that decision applied to the family with which he was dealing, by pointing out that the family had emigrated from Berar in 1800, and the date of the High Court decision was 1859. In th....
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....at great length in the earlier portion of this judgment and pointed out that binding character attaches to judicial decisions not by reason of any common law or statutory rule but by reason of what may be called comity among judges, It is only on the principle of judicial comity and judicial decorum that judicial decisions are under certain circumstances and qua certain Courts invested with binding authority, There is no rule founded either in statute or in common law which requires implicit and unquestioning obedience to the individual precedent of another Court under any circumstances. When a Court regards itself as bound by the individual precedent of another Court, it does so only on grounds of judicial comity and propriety. The decisions of the Supreme Court in [1960]3SCR578 to which I have already made reference while considering the question relating to the powers of the Special Bench, also emphasize that the true principle explaining the binding character of judicial precedents is the principle of judicial comity and judicial decorum. The history of the evolution of the doctrine of judicial Precedents which I have traced earlier while dealing with the same question also poi....
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.... illustration emphasizes the true principle on which binding character attaches to judicial precedents. That principle is based not on any rule Chief common Jaw or on any statutory rule but on considerations of judicial comity and judicial decorum. If this is the position it is difficult to see how judicial decisions ,can be regarded as law. If judicial decisions are law, they must be binding on Courts as law and their binding effect should not depend on the insecure foundation of judicial comity and judicial decorum. The Courts are constituted to administer law and under their constitution, they are bound to administer law as a matter of legal obligation and not as a matter of judicial propriety or comity. If, therefore, judicial decisions are law, Courts would be bound by judicial decisions and would have to give effect to the law as found in judicial decisions as a matter of legal obligation and not on considerations of judicial propriety and docurum. Law for its binding effect, cannot depend on considerations of judicial comity and decorum; its compulsive effect must depend on the sanction of the State. The absolute binding character of judicial precedents, however, rests as I ....
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.... and the Supreme Court. It is under these circumstances impossible to regard a judicial decision of the High Court as law. How can a judicial decision be law for one Court and not be law for another Court? Law cannot vary from Court to Court; there cannot be one law for one Court and another law for another Court. Law cannot change at different stages in the course of the litigation merely because progressively superior Courts are approached at such stages. Take for example a judicial decision of a single Judge of the High Court. Such judicial decision would he binding on the subordinate Courts and would, therefore, be, if the argument which found favour with the previous Full Bench were accepted, law for the subordinate Courts. The litigation would have to be decided by the subordinate Courts in accordance with such judicial decision. When the litigation reaches the stage of appeal before the High Court and the appeal comes up for hearing before a Division Bench consisting of two Judges of the High Court, such judicial decision would cease to be law because it would not be binding on the Division Benches of the High Court. The Division Bench of the High Court would be free to deci....
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....ting of three or more Judges -- can be regarded as law. If such judicial decision is law, it must be administered and given effect to in all Courts and no Court can set it at naught. I cannot conceive how if such judicial decision is law, a larger Bench of the High Court or the Supreme Court can in effect alter the law by overruling such judicial decision. The effect of declaring erroneous Or overruling such judicial decision would be to alter the law -- if such judicial decision were regarded as law -- and I do not think it has yet been given to Courts of law to alter the law. The Courts exist for the purpose of administering the law and not for the purpose of creating it or altering it. The result of the acceptance of the argument which invests judicial decisions with the character of law would be to recognize a distinct law making machinery apart from the Legislature with its own bierarchy capable at each stage of altering the law created by such machinery. This would indeed be a startling result contrary not only to all accepted notions but also to the Constitution which vests all the law-making power in the Legislature and does not entrust any part of it to the Courts. This ar....
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.... Division Bench would, according to the present argument, be law because of its binding authority and the rule laid down in the earlier decision and accepted by the Division Bench would, therefore, have the force of law. The result would be that the rule which was law while the earlier decision held the field and which ceased to be law on the later decision being given, would again become law by reason of the decision of the Division Bench. Though the same rule when laid down in the earlier decision was not law during the period when the two decisions of single Judge stood side by side with each other, it would be law from the date of the decision of the Division Bench. This would indeed be a highly anomalous situation. Then again suppose a Full Bench of the High Court takes a different view and accepts the later decision of the single Judge as correct find rejects the earlier decision of 'the single Judge and the decision of the Division Bench as erroneous. Until the Full Bench decision was given, the decision of the Division Bench was binding and was, therefore, law and the effect of the decision of the Full Bench would, therefore, be to change the law. Another consequence of....
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....at judicial decisions cannot be regarded as law and it really follows upon the previous argument. That argument can best be illustrated by an example. Suppose there is a decision of a Full Bench of the High Court which lays down a particular rule relating to a point of Hindu Law. If the argument which found favour with the previous Full Bench were to be accepted, the rule laid down by the decision of the Full Bench would be law and would govern the rights and liabilities of the parties. Now suppose the Supreme Court overrules the decision of the Full Bench and lays down another rule on the particular point different from the rule laid down by the decision of the full Bench. When the Supreme Court overrules the decision of the Full Bench and lays down a different rule, the Supreme Court in effect says that the law was erroneously declared in the decision of the Full Bench and that the rule laid down by the Supreme Court was always the law. Once the Supreme Court gives its decision, the rule laid down by the Supreme Court represents the law as it always existed even before the decision of the Supreme Court. It must, therefore, follow that the rule laid, down by the Supreme Court was ....
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....y before the appointed day and which as a result of such bifurcation would have ceased to apply to the portion of the territories which went out of the State of Bombay to constitute the State of Gujarat. If there was any law in force immediately before the appointed day which had no territorial extent or application in the territories affected by the bifurcation or which, extended or applied to the said territories but the extent or application of which to any part of the said territories was not liable to be affected by the bifurcation, such law would obviously not be within the scope and ambit of the words "law in force'' in Section 87 for it would not be necessary in the case of such law to make any provision for preserving and continuing the extent or application of such law to the said territories It is, therefore, necessary that the law in order to fall within the meaning and intendment of the words "law in force" should satisfy two requirements. Firstly, the law must have had immediately before the appointed day territorial extent or application in the territories affected by the bifurcation and secondly, the law must be such that but for Section 87 it would have, as....
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....e said to have any territorial extent or application. If is the case given above the suit is brought in Calcutta, the rights and liabilities of the parties would be determined in accordance With the judicial precedents of the High Court of Calcutta and since the parties are resident in Calcutta and the contract is made in Calcutta and is to be substantially performed, in Calcutta, it may be possible in such a case to regard the judicial precedents of the High Court of Calcutta as having some nexus with the territories within the jurisdiction of the High Court of Calcutta. But if the suit is brought in Madras then even though the parties are resident in Calcutta and the contract is made in Calcutta and is to be substantially performed in Calcutta, the rights and liabilities of the parties would be determined in accordance with the judicial precedents of the High Court of Madras and not in accordance with the judicial precedents of the High Court of Calcutta. The result would be that the rights and liabilities of the parties resident in Calcutta in respect of a contract entered into in Calcutta and to be substantially performed in Calcutta would be adjudicated upon not in accordance ....
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....h Court of Bombay and would be powerless to ignore it or to overrule it. The anomalous situation would arise that even though a division Bench of the High Court for the State of Maharashtra would be entitled to overrule a decision of a single Judge of the High Court of Bombay and declare that the law was erroneously laid down in such decision, a Division Bench or a Full Bench of this High Court or even the Supreme Court in relation to appeals from this High, Court, would have no power to set at naught or to overrule such decision even though the law was erroneously laid down by such decision. This result surely could not have been intended by the Legislature. If the legislature intended to include within the scope and ambit of the words "law in force" in Section 87, judicial decisions given by the High Court of Bombay prior to the appointed day, the Legislature would have certainly provided the machinery for setting at naught or overruling such judicial decisions in the same manner in, which it could be done by the High Court for the State of Maharashtra. The Legislature would have created a legal fiction that the decisions given by the High Court of Bombay prior to the appointed d....
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....continue as the law in force. This contention, in any opinion, suffers from two defects. The first defect is that it assumes the existence of a power in this High Court to alter, amend or repeal the law which power is obviously not found in any provision of the Act. If the decisions given by the High Court of Bombay prior to the appointed, day were law in force And continued in their application to the territories now forming part of the State of Gujarat as law in force, I do not see how such law could be changed by this High Court unless express power in that behalf was conferred on this High Court. The second defect is that if it is conceded that it is open to this High Court to declare that the law was not correctly laid down in any, decision of the High Court of Bombay given prior to the appointed day. It would prove the argument against the acceptance of judicial decisions as law in force rather than refute it. If this High Court can question the correctness of any decision of the High Court of Bombay and decide for itself what the law really is, it must follow that the decisions of the High Court of Bombay given prior to the appointed day are not law in force for the existenc....
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....itories to which any law in force immediately before the appoint ed day extends or applies and territorial references in any such law Jo an existing State shall, until otherwise Provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day." Now it is Obvious that the words "law in force" in Section 119 of the States Reorganisation Act, 1956, must bear the same meaning as those words in Section 87 of She Bombay Reorganisation Act, 1960, for both the Sections were enacted for the same purpose namely, preserving the territorial extent and application, of laws which were in forces immediately before the appointed day. The legislature did not want the territorial extent and application of laws in force immediately before the appointed day to be in any way disturbed or affected by the transfer of territories from one State to another or by the creation of new States. The political map of India was redrawn due to various political exigencies but the continuity of laws in force immediately before the appointed day was not intended to be interrupted or broken so that notwithstanding the tr....
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....e doctrine of judicial precedents is intended to achieve--there would be chaos and confusion. The High Court of the Reorganised State of Bombay would be placed in the most embarrassing and inconsistent position in which it would have to uphold different interpretations of the same or similar enactments as correct expositions of the Legislative will depending upon the territories from which the matter comes before it. I do not see how the High Court of the Reorganised State of Bombay could say in a matter coming from one territory within the State that a particular interpretation is the correct interpretation of an enactment and at the same time declare in a matter coming from another territory within the State of Bombay that a different interpretation is the correct interpretation of the game enactment. The same position would also obtain in regard to non-statute law. The High Court of the reorganised State of Bombay in a matter coming from one territory within the State would have Jo declare that a particular rule is the correct law and at the same time declare in a matter coming from another territory within the State that that rule is not the correct law but that a different rul....
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....xpression as used in Section 87 of the Bombay Reorganisation Act, 1960. 136. These are the reasons which have induced me to take a different view from that reached by me as a member of the previous Full Bench on this important question whether judicial decisions are within the scope and meaning of the words ''law in force" in Section 87. Section 87 provides that the bifurcation of the territories of the State of Bombay shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extended or applied. This High Court must, therefore, in order to find out what is the law in force in the territories forming part of the State of Gujarat, ascertain what was the law in force immediately before the appointed day which extended or applied to the territories affected by the bifurcation, for Section 87 declares that the territorial extent or application of such law shall not be affected by the bifurcation and such law shall continue to apply to the territories comprised in the State of Gujarat. This High Court must ascertain the law for itself unfettered by any decision of any other High Court for there is no prov....
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....udicial precedents can be regarded as law in force within the meaning of Section 87 so as to be binding on this High Court. 138. I must next consider whether apart from Section 87 there is any principle of law on which decisions given by the High Court of Bombay prior to the appointed day can be regarded as binding on this High Court. It was contended by the learned Advocate General relying on the decision of the Full Bench of the Andhra Pradesh High Court in (supra), that the High Court of Bombay prior to the appointed day was a Court of cc-ordinate jurisdiction with this High Court and that the decisions given by the High Court of Bombay prior to the appointed day were, therefore, binding on this High Court on the well-known and well-established principle of judicial comity which requires that a Count should regard itself bound by the decisions of another of co-ordinate jurisdiction. The same contention was advanced before the previous Full Bench by the learned Advocate General who then appeared on behalf of She Union of India. But S. T. Desai, C. J., as he then was and my brother Miabhoy and myself, who constituted the Full Bench, found some difficulty in accepting the conten....
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....dinate jurisdiction. The same characteristic is also emphasized by Sir Frederick Pollock in his First Book of Jurisprudence, 5th Edition, at page 324 where he has referred to decisions of "co-ordinate authority" as decisions of "Courts of equal rank and exercising the same jurisdictions". This statement of Sir Frederick Pollock also emphasizes another important characteristic which must be present in order that two Courts can be said to be Courts of co-ordinate jurisdiction. That characteristic is that the two Courts must exercise the same jurisdiction. The two characteristics of co-ordinate jurisdiction thus are that the two Courts should be of equal rank and equal status and should exercise the same jurisdiction. If either of these characteristics is absent, the two Courts cannot be said to be Courts of co-ordinate jurisdiction. The first characteristic was accepted by the full Bench decision of the Andhra Pradesh High Court in (supra), as a valid test for ascertaining whether two Courts are Courts of co-ordinate jurisdiction but so far as the second characteristic is concerned, the Full Bench decision of the Andhra Pradesh High Court did net accept it in the form suggested by Si....
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.... rank and status as the High Court of Bombay prior to the appointed day and the jurisdiction exercised by this High Court is the same as that exercised by the High Court of Bombay prior to the appointed day. 140. Before, however, I consider this question, I must refer to a contention which was urged in the course of the arguments and it was that the continued simultaneous existence of two Courts is necessary before they can be considered Courts of co-ordinate jurisdiction. The contention was that two Courts cannot be said to be Courts of co-ordinate jurisdiction unless they are functioning at the Gama time; if one Court has ceased to exist it cannot be regarded is a Court Of co-ordinate jurisdiction with another which is functioning. The contention sought to equate co-ordinate jurisdiction with concurrent or simultaneous jurisdiction. The contention is, in my opinion, not well founded, and cannot be supported either on principle or on authority. I have already referred to the dictionary meaning of the word "co-ordinate" and I have also quoted the relevant statement from Sir Frederick Pollock's First Book of Jurisprudence and it will be clear from the aforesaid discussion tha....
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.... continuity and certainty in the administration of justice be advanced by regarding the decisions of the abolished Court as binding on the other Court upto a certain time and thereafter treating them as without any binding authority on that Court? It is obvious that the decisions of the abolished Court must continue to bind the other Court even after the abolition in the same manner as they bound the other Court prior to the abolition and the only ground on which this conclusion can be founded is that the abolished Count was a Court co-ordinate in jurisdiction with the other Court. If it could be said of the abolished Court prior to the abolition that it was a Court of co-ordinate jurisdiction with the other Court, I fail to see what difference could the abolition make to the relative position of the two Courts. If the constant of the jurisdiction of the two Courts was the same prior to the abolition and that is why they were regarded as Courts of co-ordinate jurisdiction, the abolition could not affect the content of the jurisdiction of either Court and if the abolished Court was a Court of co-ordinate jurisdiction with the ether Court prior to the abolition, it would equally be a....
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....from the Supreme Court of New Brunswick also regarded the decision of the Court of Exchequer Chamber in Merchant Shipping Co. v. Armitage (1873) 9 Q. B. 99 as an authority binding the English Courts upto and including the Court of Appeal (vide Maine and New Brunswick Electrical Power Co. v. Hart 1939 A. C. 631). Of course the Judicial Committee of the Privy Council did not state that the decision of the Court of Exchequer Chamber which, had coated to exist by reason of the Supreme Court of Judicature Act, 1873, was binding on the Count of Appeal because the Court of Exchequer Chamber was a Court co-ordinate in jurisdiction with the Court of Appeal. But having regard to the decision of the Court of Appeal in (1895) 1 Ch. 51 (supra), ore can safely assume that that must have been the ground on which the Judicial Committee of the Privy Council regarded the decision of the Court of Exchequer Chamber as binding on the Court of Appeal. The decision of the Court of Criminal Appeal in (1914) 2 K. B. 209 may also be referred to in this connection though it is not clear from the decision whether in treating the decision of the Court for the consideration of the Crown Cases Reserved in (18....
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....Full Bench of the High Court of Rangoon did not hold that the Old Chief Court of Lower Burma could not be regarded as a Court of co-ordinate jurisdiction with the High Court of Rangoon because the two Courts were net simultaneously in existence. The Full Bench of the Rangoon High Court clearly understood the concept of co-ordinate jurisdiction in the sense accepted by me, for otherwise, the entire discussion in the various judgments of the Full Bench would have been unnecessary and the Full Bench could have easily disposed of the matter on the basis that the High Court of Rangoon could not be a Court of co-ordinate jurisdiction with the Chief Court of Lower Burma which had ceased to exist. I am, therefore, of the opinion that two Courts need not exist simultaneously in order to be Courts of co-ordinate jurisdiction and that even if one of the Courts has ceased to exist, it can be regarded as a Court co-ordinate in jurisdiction with the existing Court provided the other conditions are satisfied. 141. The question which I must, therefore, consider is whether this High Court has the same rank and status as that possessed by the High Court of Bombay prior to the appointed day and wh....
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....n it be said under these circumstances that the jurisdiction exercised by this High Court is the same as that exercised by the High Court of Bombay prior to the appointed day? The answer must obviously be in the negative and if that is so, I do not see how the High Court of Bombay prior to the appointed day could be regarded as a Court co-ordinate in jurisdiction with this High Court. 142. It was contended in the course of the arguments that the High Court of Bombay prior to the appointed day was a Court of co-ordinate jurisdiction with this High Court since the jurisdiction exercised by this High Court in respect of the territories forming part of the State of Gujarat was wholly exercised by the High Court of Bombay prior to the appointed day in the said territories. It was immaterial -- so the argument ran -- that this High Court did not enjoy the same territorial jurisdiction as the High Court of Bombay prior to the appointed day and that the territorial jurisdiction of the High Court of Bombay prior to the appointed day was larger than that of this High Court. It was sufficient that the High Court of Bombay prior to the appointed day enjoyed the whole of the jurisdiction exe....
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....esent is also apparent from the requirement of sameness of jurisdiction. If the jurisdiction of one Court is the same as the jurisdiction of another Court, it is axiomatic that the jurisdiction of the other Court must be the same as the jurisdiction of the first Court. If, therefore, one Court has co-ordinate Jurisdiction with another Court because it enjoys the same rank and status and exercises the same jurisdiction as the other Court, the other Court must equally for the same reason he a Court co-ordinate in jurisdiction with the first Court. I cannot possibly conceive of any case where one Court is co-ordinate in jurisdiction with another Court without that other Court being co-ordinate in jurisdiction with the first Court. The very words "co-ordinate jurisdiction" themselves import the idea of mutuality and if one Court is co- ordinate in jurisdiction with another Court, the other Court must equally be a Court co-ordinate in jurisdiction with the first Court. If therefore, the High Court of Bombay prior to the appointed day could be said to be a Court co-ordinate in jurisdiction with this High Court; this High Court must also be regarded as a Court co-ordinate in Jurisdiction ....
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.... Jurisdiction with this High Court because the jurisdiction exercised by this High Court in respect of the territories forming part of the State of Gujarat was wholly exercised by the High Court of Bombay prior to the appointed day in the said territories. A little scrutiny would, however, reveal that this contention must break when applied in relation to the High Court of Bombay prior to 1st November 1956 which was the appointed day under the States Reorganisation Act, 1956. Prior to 1st November 1956, the Jurisdiction of the High Court of Bombay did not extend to the former States of Saurashtra and kutch and it could not, therefore be said that, the jurisdiction exercised by this High Court in respect of the territories forming part of the State of Gujarat was wholly exercised by the High Court of Bombay prior to 1st November 1956 though it was certainly exercised in its entirety by the High Court of Bombay during the period 1st November 1956, upto 1st May 1960. If the High Court of Bombay prior to 1st November 1956 did not enjoy the whole of the jurisdiction exercised by this High Court in respect of the territories forming part of the State of Gujarat, it is obvious that even a....
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.... with this High Court and even the decisions of the High Court of Bombay given during the period 1st November 1956 upto 1st May 1960 would cease to be binding on this High Court. These results which logically flow from the acceptance of the present contention urged before us are irrational and illogical and provide the most complete answer against the validity of that contention. I cannot, therefore persuade myself to take the view that though this High Court could not be considered to be a Court co-ordinate in jurisdiction with the High Court of Bombay period to the appointed day, the High Court of Bombay prior to the appointed day could be regarded as a Court co-ordinate in jurisdiction with this High Court so as to render the decisions given by the High Court of Bombay prior to the appointed day binding on this High Court as decisions given by a Court of co-ordinate jurisdiction. 143. There is one other aspect of the matter which I must mention before I leave this subject. It was stressed before us in the course of the arguments that two Courts cannot be said to be Courts of co-ordinate jurisdiction if they are situate in different States. This proposition standing by itself ....
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.... If this High Court has taken the place of the High Court of Bombay in its entirety in and in relation to the territories forming part of the State of Gujarat and has inherited, the entire jurisdiction, power and authority possessed by the High Court of Bombay immediately prior to the appointed day in respect of the said territories, I do not see any reason why the decisions of the High Court of Bombay given prior, to the appointed day should not be regarded as binding on this High Court in the interests of certainly, uniformity and continuity in the administration of Justice. The principle which obliges a Court to abide by the decisions of another Court must apply not only when two Courts are Courts of co-ordinate jurisdiction but also when one Court is the successor of the other Court. It judicial comity requires that when there are two Courts of co-ordinate jurisdiction one should abide by the decisions of the other, I do not see why the same judicial comity should not require that when one Court has succeeded entirely to the jurisdiction, power and authority of another Court in respect of a part of the territories over which the other Court exercised jurisdiction, the decisions....
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.... Court of the former State of Indore were binding on the High Court of Madhya Bharat Chaturvedi, J., examined the question from the angle whether the High Court of Madhya Bharat could be considered as the successor of the High Court of the former State of Indore and observed as follows: "By no stretch of imagination Madhya Bharat High Court can be looked upon as successor to Indore High Court or any High Court of any Covenanting States". The learned Judge also observed a little later in the course of his judgment: "It is not a case where a High Court had succeeded either a Chief Court or a Court of Judicial Commissioner and so the ratio decidendi in AIR 1927 Rang. 4, Gurbhaj v. Lachhman ILR 6 Lah 87: (AIR 1925 Lah 341); Sherkhan v. Muzaffer Khan ILR 1 Lah 25: (AIR 1920 Lah 321) or Lachhman Singh v. Naman AIR 1929 Lah 174, cannot be made applicable to the case before us." These observations clearly show that according to the learned Judge if the High Court of Madhya Bharat could be regarded as a successor of the High Court of the former State of Indore, the decisions of the High Court of the former State of Indore would have been binding on the Hi....
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....ed as follows; "The Kerala State was constituted taking portions of the territories of the former State of Travancore-Cochin and the former State of Madras and the Kerala High Court was constituted for this new State. Therefore the Kerala High Court is not a successor of either the Travancore Cochin High Court or the Madras High Court and in that view the Judges of the Kerala High Court are not bound by the decisions of either of the said High Courts." It follows as a necessary corollary from these observations that the learned Judge would have considered the decisions of the Travancore-Cochin High Court as binding on the High Court of Kerala if the High Court of Kerala Could be regarded as a successor of the former Travancore-Cochin High Court. These decisions to which I have referred proceed upon the view that the decisions of the predecessor Court are binding on the successor Court provided of course the entire jurisdiction, power and authority possessed by the successor Court can be traced to the predecessor Court. In such a case the successor Court can almost be regarded as a continuation of the predecessor Court and the decisions of the predecessor Court mus....