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TaxTMI 
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TaxTMI 
2020 (6) TMI 726
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....to the distance (2) the challenge is made based on the violation on the conditions stipulated under Ext. P3 order passed by the District Collector while permitting to reclaim and fill up the land by the predecessor in interest of the 10th respondent. Reliefs sought for in the writ petition are as hereunder: "a) Issue a writ of mandamus or other appropriate writ or order, directing the respondents 1 to 9 to take up and consider Ext. P4 objection filed by the petitioner before issuing a No Objection Certificate to the 10th respondent for commencement of a petroleum fuel station in Old Survey No. 11/2 and 12/1, new Resurvey No. 6/7, Block No. 52 of Manjeri Village along the side of Kozhikode-Ooty State Highway at Rajeev Gandhi Bye Pass Road, Manjeri; b) To direct the respondents 1 to 9 to strictly comply with the guidelines issued under Ext. P1 before granting No Objection Certificate to the 10th respondent; c) To declare that the proposed petroleum fuel outlet by the 10th respondent is located within the prohibited distance under Ext. P1 guidelines and to pass consequential orders." 3. Learned Single Judge, after considering the content....
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..... 28 came into effect from 1.12.2019. Material fact that the above notification has been stayed by the Hon'ble High Court of Madras in two writ petitions namely, W.P.(C) No. 4976/2020 and W.P.M.P. No. 5876/2020. Eventhough the interim order was placed before the learned Single Judge, there is no consideration to the effect of the interim order. Therefore, the appellant submits that the matter requires reconsideration, since the learned Single Judge did not go into the merits of the case. 5. Heard learned counsel for the parties and perused the materials available on record. 6. In the affidavit filed on behalf of Essar Oil Limited, Kochi (10th respondent in the writ petition), it is averred that the NOC was issued on the basis of the consent by the land owner. Thereafter, the owner of the property has also submitted an appropriate application under the Municipality Building Rules for making constructions in the proposed site. In the writ petition, a statement has also been filed on behalf of the Central Government, wherein, it is stated that the proposal for access permission for construction of an approach road to the proposed new petrol/diesel retail outlet mentioned in ....
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....lso been placed on Kusum Ingots and Alloys Ltd. v. Union of India and Ors reported in (2004) 6 SCC 254 to contend that when a decision has been taken by a court in India, relating to a law on central subject, the same is binding on all the courts in India. 11. Heard the learned counsel for the parties and perused the material on record. 12. On the first submission regarding an interim order passed by a High Court, whether it has any precedential value, we deem it fit to consider few decisions- "(i) In Empire Industries Vs. UOI AIR 1986 SC 662, the Hon'ble Supreme Court has made it clear that interim orders passed by the Courts are not precedent within the meaning of Article 141. 58. Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different Courts sometimes pass different interim orders as the Courts think fit. It is a matter of common knowledge that the interim orders passed by particular Courts on certain considerations are not precedents for other cases which may be on similar facts. An argument is being built up now-a-days that once an interim order has been passed by t....
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.... is also not binding upon the same Court which has passed it. Because of this reason only the Court can decide and is required to decide the issues finally in final judgment uninfluenced by any prima facie finding given in interim order. Therefore, not only that, the interim order is not precedent for stranger to the litigation in which such order has been passed but also is not a precedent for the party to litigation in whose litigation such order has been passed. To that extent, there may be force in the submissions of the learned counsel for the petitioners and the counsels for the students who have been given admission by the petitioners but in the present facts of the case, it is no end of the controversy." 13. As regards reliance on Kusum Ingots's case, under the Constitutional Scheme, each High Court established under Article 215 of the Constitution of India, exercise powers under Articles 226 and 227 of the Constitution of India. Under the Constitutional Scheme, every High Court is empowered to decide, a question of law, independently of what the other High Courts, have decided and for that matter, the decisions of the other High Courts, may have a persuasive value a....
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....Gujarat High Court applied the principles of binding effect, declared in M. Subbarayudu's case (cited supra). (iv) A Full Bench of the Gujarat High Court in State of Gujarat v. Gordhandas Keshavji Gandhi reported in AIR 1962 Guj. 128, has considered the question as to binding nature of judicial precedents. K. T. Desai, CJ., in his judgment, observed: "Judicial precedents are divisible into two classes, those which are authoritative and those which are persuasive. An authoritative precedents is one which judges must follow whether they approve of it or not. It is binding upon them. A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration and to which they will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits.... A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i. e. a Bench of at least 3 Judges ....
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....ry judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. It is not profitable task to extract a sentence here and there from a judgment and to build upon it..... " (vi) In Eknath Shankarrao Mukhawar v. State of Maharashtra reported in AIR 1977 SC 1177, it was held that judicial discipline as well as decorum suggested only one course when a Bench wanted to differ from the decision of a co-ordinate court and that was to refer to a larger Bench. (vii) In Ayyaswami Gounder v. Munuswamy Gounder reported in (1984) 4 SCC 376, it was held that a single Judge of....
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....n reasons but may not distinguish their remarks in a right way between what they thought to be the ratio decidendi and what were their obiter dicta, things said in passing having no binding force, though of some persuasive power. It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case". A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application." (xii) A Hon'ble Division Bench of Bombay High Court in CIT v. Thana Electricity Supply Ltd., reported in (1994) 206 ITR 727 (Bombay), held as follows: "(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the terri....
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....lowed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. T he only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of th....
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....curiam. (xv) In State of Punjab v. Devans Modern Breweries Ltd., reported in (2004) 11 SCC 26, the Hon'ble Supreme Court explained the doctrine of precedents and when a judgment becomes per incuriam. Paragraphs 334 to 336, 339 and 343 of the judgment are relevant and they are as follows:- "334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a smaller bench structure: "A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and 'malleable'... No word has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-ended. (See Dias Jurisprudence, 5th Edn., p. 136.)" 335. However, althoug....
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.... Kalyani Stores (cited supra) and K.K. Narula (cited supra) read together can be said to have been passed sub silentio or rendered per incuriam." (xvi) In Raman Gopi v. Kunju Raman Uthaman reported in 2011 (4) KLT 458, a Hon'ble Full Bench of the Kerala High Court held that,-"when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co-equal judges or lesser number of judges of that court. Further, it is settled law that, if a decision has been rendered by the same High Court, then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value." 15. Giving due consideration to the pronouncements of the Hon'ble High Court and the Full Bench decisions on precedents, we are of the view that powers conferred under Article 226 of the Constitution of India on each High Court is independent, and each High Court under Article 226 of the Constitution of India is empowered to decide independently notwithstanding the interim order granted by a High Court in India, and even when a final decision is rendered interpreting a Central law ....