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1998 (10) TMI 556
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....vil Revision Petition or by filing a Writ Petition. By order dated 16.6.1987, he held that such orders are revisable under Section 115 of the Civil Procedure Code and therefore Writ petitions to challenge such orders were not maintainable and directed the Registry to treat all such writ petitions as Civil Revision Petitions. The said order was challenged in WA No. 1101-03 of 1987. The Division Bench by order dated 5.9.1988 referred the matter to a Full Bench, having regard to the important question of law that arose for consideration. The question referred to the Full Bench was: "Whether a revision under Section 115 of the Code of Civil Procedure would lie against the order of a District Judge functioning as the Educational Appellate Tribunal under the Karnataka Private Educational Institutions (Discipline & Control) Act, 1975?" 4. The Full Bench after detailed consideration of the matter and reference to the relevant provisions of the Act, by order dated 30.5.1989, answered the question in the affirmative, by holding that the District Judge, functioning as the Educational Appellate Tribunal, under the proviso to Sub-section (3) of Section 10 of the Act does not cease t....
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....erson who is or has been a judicial officer not below the rank of District Judge; in this very sub-section it is specified, by way of a proviso, that pending constitution of the Educational Appellate Tribunal under Sub-section (1), the District Judge of each district shall function as the Educational Appellate Tribunal of the district. There is no dispute that as per Sub-section (1) of Section 10 of the Act, no Educational Appellate Tribunal has been constituted by the State Government and that in all cases it is the District Judge of each District who is functioning as the Educational Appellate Tribunal of the District. In view of this admitted fact, the controversy lies in a very narrow compass as we are not required to decide the status of a Tribunal which has, by a Notification, been constituted by the State Government under Sub-section (1). What is required to be seen is whether a District Judge functioning as the Educational Appellate Tribunal, is a Court subordinate to the High Court, so as to make his orders amenable to the revisional jurisdiction of the High Court under Section 115 CPC. On giving our thoughtful consideration to the entire matter, we find ....
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....airness morality and decency, without conforming to any uniform and settled standards or patterns, the resulting uncertainty and divergence may endanger the very foundation of Rule of law. Even under the French legal system, which does not recognise the Rule of precedents (where the statutes are supposed to cover every conceivable situation, where the law specifically bars a Judge from laying down any general principles while rendering a decision, and where a Judge is not bound by any single decision of any co-ordinate or Higher Court), the Judges ascertain the trend of decisions on a particular point of law and apply it to the case. Under Indian legal system, the Ratio Decidendi of every decision of the co-ordinate Benches and larger Benches of the same High Court and of the Supreme Court are binding on a Bench of the High Court, it is opposite to refer to what BENJAMIN N. CARDOZO stated in THE NATURE OF THE JUDICIAL PROCESS (pages 143, 149 and 150) to emphasize the need for adherence to precedents:- "No doubt the ideal system if it were attainable, would be a code, at once so flexible and so minute, as to supply in advance for every conceivable situation, the just and fi....
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....ncertainty by reason by conflicting decisions." 10.3. In KAMALAMMAL v. VENKATALAKSHMI AMMAL, AIR 1965 SC 1349 the Supreme Court while allowing an appeal against the judgment of a Learned Single Judge of the Madras High Court observed thus: "Before concluding, it is necessary to advert to one feature which would be apparent even from our narrative. There was a decision of the Full Bench which interpreted the texts and laid down the law on the topic and it is some what surprising that the learned Single Judge of the Court thought it proper to refuse to be bound by that judgment and proceeded on his own line of reasoning based on authorities, several of which were discussed by the Full Bench, relying merely on the statement by the Editor of Mayne's Hindu Law that the decision required reconsideration. We cannot but deprecate this practice as it destroys the certainty of the law which the theory of judicial precedent seeks to establish. Not merely convention but rules framed by several High Courts require that where a learned Single Judge or a Division Bench does not agree with a Full Bench decision he or they either make a reference to the Full Bench or place the paper....
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....ith approval the following statement of the principle relating to decisions rendered per incuriam from MORELLE LTD. v. WAKELING 1955(1) ALL ER 708:- "As a general rule, the only cases in which decisions shall be held have been given per incuriam' are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence." 11.3. In DELHI MUNICIPAL CORPORATION v. GURNAM KAUR, AIR 1989 SC 38 the Supreme Court held that a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. In regard to concept of sub-silentio, the Court cited the following passage from SALMOND ON JURISPRUDENCE (12t....
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....the relevant provisions were not brought to the notice of Supreme Court. 12.3. The following observations of the Supreme Court in ASST COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR, WEST BENGAL v. DUNLOP INDIA LTD AND ORS, 1985 ECR 4 (SC) are clinching: "We desire to add and as was said in Cases and Co., Ltd., v. Broome (1972) AC 1027) we hope it will never be necessary for ' us to say so again that in the hierarchical system of courts, which exists in our country, it is necessary for each lower tier' including the High Court, 'to accept loyally the decisions of the higher tiers.' 'It is inevitable in a hierarchical system of Courts that there are decisions of the Supreme Appellate Tribunal which do not attract the unanimous approval of all members of the judiciary.....But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted, (see observations of Lord Hailsham and Lord Diplock). The better wisdom of the Court below must yield to the higher wisdom of the Court above. That is the strength of the hierarchical judicial system. In Cassel v. Broome, commenting on the Court of appeals&#....
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....than two Judges of the High Court may, if it thinks fit, and shall if it differs from the view taken by a similar Bench of the High Court on the said question, refer to a Full Bench of the High Court, the question of law or usage having the force of law; and the decision of the majority of Judges comprising a Full Bench of the High Court shall be the decision of the High Court. A Full Bench can thus overrule, reverse or modify the decision or view of a single Judge or Division Bench. But, a single Judge cannot reverse or modify the decision of a Division Bench or a Full Bench. It is true that a single Judge, a Division Bench and a Full Bench are all constituents of the High Court and each is the 'High Court' and a single Judge is not 'sub-ordinate' to the Division Bench or Full Bench; nor is the Division Bench or Full bench a superior Court with reference to a single Judge. But the Bench of a single Judge is a Court below a Division Bench and a Division Bench is a Court below a Full Bench, in the ascending series of degrees of power and Authority, with the correlative subjection, each to the one next above in the hierarchical system contemplated under the Karnataka ....
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....rt or any hierarchical tiers or strata of Judges in the High Court. A Judge exercising the original jurisdiction in one case, may sit in a Division Bench exercising appellate jurisdiction in another case and may sit in a Full Bench in yet another case. Thus the appellate jurisdiction conferred by Section 4 of the High Court Act, 1961, does not bring about any alteration in the constitution or organisation of the High Court." 13.4. In A.R. ANTULAY v. R.S. NAYAK (Supra) the Supreme Court noticed the difference between the position in England and India in regard to co-ordinate Benches. In England, the size of the Bench does not matter and irrespective of the number of Judges constituting the Bench, all Benches of the same Court are co-ordinate Benches. But in India there is a hierarchy within the Court itself and larger Benches overrule or site in appeal over smaller Benches. 13.5. Hence, the term 'co-ordinate Bench' means, with reference to a High Court in India, Bench with equal number of Judges and not a larger Bench. Consequently hierarchically speaking, there are usually three tiers - Bench of the single Judge is below the Division Bench, which in turn is below the ....