TaxTMI 
TaxTMI 
2002 (9) TMI 102
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.... Mrs. Revathy Raghavan, S. Aravindh, R.K. Sharma, K.V. Ramkumar, K.V. Vijaykumar, P. Narasimhan, Anil Kumar Sinha, K. Ramkumar, B. Sridhar, Balaji Srinivasan, V. Sudder, M.B. Rama Suba Raju, Sooriya Kumeren and Rakesh K. Sharma, Advocates, with him) for the respondents. ORDER Leave granted. Looking at the nature of the controversy arising for decision and the view which we propose to take of the matter before us, a detailed statement of the facts is not called for. We will briefly notice the bare essential facts. The Madras City Tenants Protection (Amendment) Act, 1994 (Tamil Nadu Act 2 of 1996), was enacted by the State Legislature and came into force with effect from January 11, 1996. The constitutional validity of this Act was put in issue by several writ petitions filed in the High Court. When the matter came up for hearing before the Division Bench reliance on behalf of the respondent in the High Court was placed on the Division Bench decision of the High Court dated January 25, 1972, reported as M. Varadaraja Pillai v. Salem Municipal Council [1972] 85 Law Weekly 760. Diverting a little in narration of facts it is necessary to note that at an earlier point of time....
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....s were disposed of without any adjudication on the merits. Now, as stated in the opening paragraph of this judgment, when the matter as to the constitutional validity of Act 2 of 1996 came up for hearing before a Division Bench of the High Court, the decision in M. Varadaraja Pillai's case [1972] 85 Mad LW 760 was cited as a precedent and reliance was placed on behalf of the respondents on the law laid down therein. The Division Bench entertained some doubt about the correctness of the view of the law taken by the earlier Division Bench in M. Varadaraja Pillai's case [1972] 85 Mad LW 760. However, consistently with the rules of judicial discipline and decorum, the Division Bench thought it fit to refer the matter to a Bench of three judges (Full Bench) for reconsidering the decision of the Madras High Court in M. Varadaraja Pillai's case [1972] 85 Mad LW 760, assigning the reasons in support of the opinion formed by it. The Division Bench in the operative part of its order concluded as under: "The aforesaid decision in Swami Motor Transport's case, AIR 1963 SC 864, of the Supreme Court, was heavily relied upon by this court in deciding Varadaraja Pillai's case [1972] 85 LW....
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....not the reasoning of the subordinate forum; otherwise there would be an apparent contradiction. However, in certain cases, the reasons for the decision can also be said to have merged in the order of the superior court if the superior court has, while formulating its own judgment or order, either adopted or reiterated the reasoning, or recorded an express approval of the reasoning, incorporated in the judgment or order of the subordinate forum. Secondly, the doctrine of merger has a limited application. In State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, the Constitution Bench by its majority speaking through S.R. Das C.J., so expressed itself, "while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree". A three-Judge Bench in State of Madras v. Madurai Mills Co. Ltd., AIR 1967 SC 681, held "the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior auth....
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....pellate court on a conclusion of law which was neither raised nor preceded by any consideration or in other words can such conclusions be considered as declaration of law? His Lordship held that the rule of sub silentio is an exception to the rule of precedents. "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." A court is not bound by an earlier decision if it was rendered "without any argument, without reference to the crucial words of the rule and without any citation of the authority". A decision which is not express and is not founded on reasons, nor which proceeds on consideration of the issues, cannot be deemed to be a law declared, to have a binding effect as is contemplated by article 141. His Lordship quoted the observation from B. Shama Rao v. Union Territory of Pondicherry [1967] 2 SCR 650 flit is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principle laid down therein". His Lordship tendered an advice of wisdom--"restraint in dissenting or overrulin....
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....the House of Lords, which decides it on ground B, nothing being said upon A. What, in such circumstances, is the authority of the decision on ground A in the Court of Appeal? Is the decision binding on the High Court, and on the Court of Appeal itself in subsequent cases? The learned author notes the difficulty in the question being positively answered and then states: (i) the higher court may, for example, shift the ground of its decision because it thinks that this is the easiest way to decide the case, the point decided in the court below being of some complexity. It is certainly possible to find cases in the reports where judgments affirmed on a different point have been regarded as authoritative for what they decided; (ii) the true view is that a decision either affirmed or reversed on another point is deprived of any absolute binding force it might otherwise have had; but it remains an authority which may be followed by a court that thinks that particular point to have been rightly decided. In the present case, the order dated September 10, 1986, passed by this court can be said to be a declaration of law limited only to two points-(i) that in a petition putting in issue t....
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....he Supreme Court the decision of the High Court was no longer available to be reviewed. We need not here go into the question, whether it was a case of review, or whether the review application should have been filed in the High Court or the Supreme Court. Such a question is not arising before us. Under article 141 of the Constitution, it is the law declared by the Supreme Court, which is binding on all courts within the territory of India. Inasmuch as no law was declared by this court, the Full Bench was not precluded from going into the question of law arising for decision before it and in that context entering into and examining the correctness or otherwise of the law stated by the Division Bench in M. Varadaraja Pillai's case [1972] Mad LW 760 and either affirming or overruling the view of law taken therein leaving the operative part untouched so as to remain binding on the parties thereto. Inasmuch as in the impugned judgment, the Full Bench has not adjudicated upon the issues arising for decision before it, we do not deem it .proper to enter into the merits of the controversy for the first time in exercise of the jurisdiction of this court under article 136 of the Const....