TMI Blog2009 (9) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... of power on the Judicial Magistrates to entertain applications for interim custody confirmed. - W.P.(C) Nos.26073, 15151, 15247, 15580, 17171, 17172, 17187, 18189, 22425, 25730, 25750, 25763, 25867, 25879, 25882, 25950, 25952, 25962, 26191, 26243, 26255 and 26478 of 2009 - - - Dated:- 29-9-2009 - K. BALAKRISHNAN NAIR AND P.BHAVADASAN, JJ. For Petitioner: SRI.BABU S. NAIR ORDER Balakrishnan Nair, J. The above Writ Petitions were posted before the Division Bench, based on an order of reference made by the learned Single Judge, noticing the apparent conflict between the decisions of this Court in Ahammed Kutty v. State of Kerala, 2008 (1) KLT 1068 and Shoukathali v. Tahsildar, 2009 (1) KLT 640. 2. Before referring to the legal contentions raised for our resolution, we will briefly refer to the facts of W.P.(Civil) No.26073 of 2009, which is treated as the main case, for the purpose of referring to the Exhibits and facts. The petitioner is the owner of a goods autorickshaw, KL-10Z/7736. The said vehicle was seized by the Tahsildar, Ernad Taluk on 7.7.2009. The vehicle was, at the relevant time, transporting river sand from one work site to another work site. The T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Shoukathali v. Tahsildar, (supra), which follows Abdul Samad (supra) and Moosakoya (supra), does not lay down the correct legal position, it is pointed out. 4. But, we notice that, after referring to Section 24, which makes the offences under the Act cognizable and also adverting to Section 25, which deals with cognizance of offences, the Division Bench in Moosakoya v. State of Kerala, (supra) elaborately considered all the aspects of the matter and issued the following directions: 3. A plain reading of the above provision will show that even though by S.24 all offences under the Act are made cognizable, no court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology. A 'complaint in writing' by the authorised officer etc. is the only condition for taking cognizance as provided in S.25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the court may take cognizance. But, the court cannot take cognizance of any offence punishable under the Sand Act on a police report filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter deducting the expenditure of auction. R.27 and 28 clearly lay down the procedure to be complied with by the police officer or revenue officer who seizes the vehicle for illegal transport of sand. The police officers and revenue officials shall seize the vehicle used for illegal transportation of sand under R.27 of the Rules. Under S.23 not only police officers, but also revenue officers may seize such vehicles. After seizure what is to be done with the vehicle and procedure to be adopted by the officers are clearly laid down in Rr.27 and 28. The seizure is, therefore, to be effected under the provisions contained in the Sand Act and Rules and not under S.102 Cr.P.C. On seizure, the following procedures have to be complied with: 1. The officer who is seizing the vehicle should prepare a mahazar. 2. The said mahazar should be signed by two witnesses. 3. A copy of the mahazar should be given to the person possessing the vehicle at the time of seizure. 4. A copy of the mahazar should be given to the District Collector. 5. The owner of the vehicle or the person from whom the vehicle was seized can file objection. 6. The District Collector is bound to consider the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h decisions on the ground that in the appeal filed against one of the said decisions before the Apex Court, there was a stay against it. Even when a decision of Division Bench of this Court is stayed by the Apex Court, the learned Single Judges of this Court are bound to follow the decision of the Division Bench, as it continues to be a binding precedent for them. The interim order of stay only relieves the concerned parties from obeying the judgment under appeal. 6. In this context, we would refer to a Division Bench decision of this Court in Kannappan v. R.T.O., 1988 (1) KLT 902, wherein a learned Single Judge of this Court declined to follow the decision of a Division Bench, which was directly in point and ordered to refer the matter to the Full Bench. In that context, the Division Bench in Kannappan (supra) has held as follows: quot;2. There can be no 'hesitation' for a single Judge to follow a Division Bench ruling binding on the single Bench for, he is bound in law to follow the Division Bench decision. The fact that the views of the learned Judge did not find acceptance at the hands of the Division Bench does not mean that whenever the identical question is raised before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 19) '19. . . . If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court'. 79. In Lala Shri Bhagwan v. Ram Chand (AIR 1965 SC 1767), Gajendragadkar, C.J. observed: (AIR p.1773, para 18) '18. .... It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Single Judge of the Madhya Pradesh High Court could ignore the judgment of a coordinate Bench on the same issue and held: (SCC p.256, para 33) '33. As the learned Single Judge was not in agreement with the view expressed in Devilal case [Election Petition No.9 of 1980 (MP)] it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of 'different arguments' or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs.' 83. In Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1, the Constitution Bench noted that the two learned Judges denuded the correctness of an ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two Judges is so very incorrect that in no earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified. quot; 84. In State of Bihar v. Kalika Kuer, (2003) 5 SCC 448, the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incurium and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench. 85. In State of Punjab v. Devans Modern Breweries Ltd.,(2004) 11 SCC 26, the Court reiterated that if a coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as permanent employees with same service conditions as far as possible and observed: (SCC p.149, para 26) '26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity.' 89. It is interesting to note that in Coir Board v. Indira Devi P.S., (1998) 3 SCC 259, a two-Judge Bench doubted the correctness of the seven-Judge Bench judgment in Bangalore Water Supply amp; Sewerage Board v. A.Rajappa, (1978) 2 SCC 213, and directed the matter to be placed before Hon'ble the Chief Justice of India for constituting a larger Bench. However, a three-Judge Bench headed by Dr.A.S.Anand, C.J., refused to entertain the reference and observed that the two-Judge Bench is bound by the judgment of the larger Bench - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid precedent. An intelligent lawyer can perceive some flaw in any decision and may canvass for reconsideration of it. But, the law has to be clear, specific and consistent. When this Court declares a law, many people will be regulating their affairs according to it. Unless there are compelling grounds, a precedent should not be upset so lightly. In the hierarchical system of Courts, as held by the Apex Court, there should be someone who should say the last word and when the last word is said, the same should be followed by everyone in the lower tiers. In view of the above position, the learned Single Judge should have followed the decisions of the Division Bench in Abdul Samad (supra) and Moosakoya (supra). We agree with the unsatisfactory position of law prevailing because of the lacunae in the Statute which was designed to protect the environment. But, this Court can interpret only what is before it. We are fully aware of the fact that various loopholes can be picked up in the decisions of the Division Bench, because of the loopholes in the enactment. In this context, we notice the submission of the learned Advocate General that the State is conscious of the loopholes in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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