TMI Blog2002 (12) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... r to Section 6 of the Motor Vehicles Taxation Act, 1947 which imposes bar on any local authority to impose tax in respect of the motor vehicles in question. Contention is that tax is being paid by the petitioners for use of roads maintained by the State, therefore, they can bring in and take out the buses from the bus-stand since they pay tax for it. Petitioners depend on the decision in Madhya Pradesh State Road Transport Corporation v. Municipal Council, Mansa and Anr. (M.P. No. 1540 of 1975). Municipal Corporation, Jabalpur maintains that Sub-section (6) of Section 132 of the Act of 1956 authorises it to levy tax on entry of vehicles within its territorial limits. It seeks sustenance on the decision in Cantonment Board, Mhow v. Madhya Pradesh State Road Transport Corporation (AIR 1997 SC 2013). Shri B.K. Rawat contended that decision of Apex Court in Municipal Council, Mansa (supra) is a later decision, therefore, it should be followed while Shri Sanjay K. Agrawal submitted that since this decision does not consider the effect of earlier decision in Cantonment Board, Mhow (supra), earlier decision should prevail as against the later. Therefore, learned Counsel for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the Judges shall express their views one way or the other on the point. In my opinion, if the majority of Judges of the Supreme Court in a particular case express a view on a proposition of law then that view of the majority of the Judges would be the law declared by the Supreme Court. That being my view, the opinion expressed by the majority of the Judges in the said case shall be held to be the law declared by the Supreme Court and binding on this Court. Thereafter, it is said in Paragraph 11- 11. The next question which arises for consideration is which of the two views--one expressed in : (1958 SCJ 459 AIR 1958 SC 468) and the other in AIR 1959 SC 648--will be binding on us. On this point again there is no doubt some difficulty. But in my opinion, it is the latest pronouncement of the Supreme Court which would be binding on us. When, in my opinion, the Supreme Court expressed its view on any particular point of law such expression of view shall be considered as over-riding all contrary views expressed on the point in earlier decisions of the same Court. That being my conclusion on these questions the contention of Mr. T. Krishna Rao fails. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration of justice. In Full Bench decision of Allahabad High Court in U.P. State Road Transport Corporation v. State Transport Appellate Tribunal, U.P., Lucknow and Ors., it is said- 12. It is noteworthy that the Supreme Court's decision in Mysore State Transport Corporation is later in time. Even if there is some conflict in the two Supreme Court decisions, we have to follow the law as declared in the later case of Mysore State Transport Corporation. In Full Bench decision of Allahabad High Court in Gopal Krishna v. 5th Additional District Judge, Kanpur, the Court said in Paragraphs 15 to 23 that- 15. 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. 16. This Article gives a constitutional status to the theory of the precedent in respect of the law declared by the Supreme Court which is essential for a proper administration of justice. It is a basic principle of administration of justice that like cases should be decided alike. For this reason, a Judge tends to decide a case in the same way in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as long as barristers, Judges and litigants remain human.....' To meet a situation like the present reference may be made to a Full Bench decision of our Court in U.P.S.R.T.C v. State Road Transport Tribunal, U.P., Lucknow (AIR 1977 All. 1) : (1976 All LJ 683) where the Full Bench held :-- 'Even if there is some conflict in the two Supreme Court's decisions, we have to follow the law as declared in the latter case of Mysore State Transport Corporation'. To the same effect is the view taken by a Full Bench of Karnataka High Court in Govindanaik G. Kalghatagi v. West Patent Press Co. Ltd. (AIR 1980 Kant. 92) and by Calcutta High Court in Sovachand Mulchand v. Collector of Central Excise and Land Customs (AIR 1968 Cal 174). Thus, what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us. Further the Court said in Paragraphs 24 to 27 that- 24. Counsel appearing for the petitioner submitted that since in Ram Swarup Rai's case (1980 All LJ 651 SC) the earlier decision given in Ratan Lal Singhal's case (AIR 1980 SC 635) had not been cited, the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court, we must follow the same. To us, it appears that the latter decision has impliedly overruled the earlier. In Vasant Tatoba Hargude and Ors. v. Dikkaya Muttaya Pujari (AIR 1980 Bom. 341), it is held that in case of conflict between earlier and later decisions of Supreme Court, each consisting of equal number of Judges, later decision prevails. However, learned Judges do not record any reasons for taking this line. Full Bench of Karnataka High Court, Five Judge Bench in Govindanaik G. Kalaghatigi v. West Patent Press Company Limited and Anr. (AIR 1980 Kar 92), said by majority, speaking through learned Chief Justice D.M. Chandrashekhar, in Paragraph 5 that- 5. In the light of pronouncements of the Supreme Court in Mattulal's case (supra) and Subramanyam's case (supra), we hold that the Full Bench of three Judges in Aramha's case (supra) did not lay down the law correctly and, we over-rule that decision. The answer to the question referred to this Bench, should in our opinion, be as follows :-- 'If two decisions of the Supreme Court on a question of law can not be reconciled and one of them is by a Larger Bench whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Radheylal, AIR 1974 SC 1596 at p. 1602, wherein, Bhagawati, J., speaking for the Supreme Court observed- 'But whatever be the reason it can not be gainsaid that it is not possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T.B.'s case as against Kamala Soni's case as the former is a decision of a Larger Bench than the latter. Moreover, on principle, the view taken in Sarvate T.B. 's case commends itself to us and we think that is the right view.' In Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455 at p. 1467 para 38, Krishna Iyer, J., said : 'Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of subordinate Court's casual observations, generalisations and sub-silentio determinations must be judiciously read by Courts of coordinate jurisdiction......' In Union of India v. K.S. Subramaniam, AIR 1976 SC 2433 at p. 2437 para 12, Beg, J. (as he then was) advised the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to promote justice. It may be a convenient rule to promote consistency and avoid uncertainty. If it is meant to promote consistency in the administration of justice, we may as well ask the question, why not the High Court follow the former of the two rulings when both of them are of equal sanctity. Why alone the later carries the obligation and not the former ? The adherence to one practice would be as good or as bad as adherence to the other. In our view, a conservative approach to any of these, may deny justice in a given case or series of cases and those clients may not be in a position to approach the Supreme Court for the redressal of their grievances. When confronted with two inconsistent coordinate authorities, Kay, J., in Miles v. Jarvis (1883) 24 Ch D 633 at p. 636 said : '...... The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being, the better in point of law. Jessel M.R. in a like circumstance said in Baker v. White (1877) 5 Ch D 183 at p. 190 that he was left with liberty to say which was not sound law. It seems to us, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therein also the learned Master of the Rolls was faced with the difficult task of choosing between the two decisions of equal authority which were directly in conflict with each other. He observed as follows :-- 'Now I take it that both the cases to which I have referred are not to be reconciled with Hayes v. Hayes [(1828) 38 ER 822]; at all events, they differ from it so far as to leave me at liberty now to say that Hayes v. Hayes is not sound law; indeed it appears that Sir John Leach himself was dissatisfied with his decision.' Again in Miles v. Jams (1833) 24 Ch D 633, Kay, J., was similarly faced with two judgments of equal weight which were in conflict. He observed as follows :-- '......... The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law.' Reference in this context may in particular be made to the celebrated case of Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718. Therein in a similar context of the Court of appeal being bound by its previous decisions it was held that it was not only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Court must be followed irrespective of the fact whether it was rendered by a Larger or a Smaller Bench [See A.J. Aramha v. Mysore Road Transport Corporation (1974) 1 Kant LJ 344]. However this theory of pre-eminence by time along has now been conclusively exploded. In Mattulal v. Radhelal, AIR 1974 SC 1596, the Final Court itself was faced with two directly contradictory judgments and Bhagwati, J., speaking for the Bench in following the earlier judgment in preference to the later one observed as follows (at p. 1602):-- '......... Now there can be no doubt that these observations made in Smt. Kamla Soni's case AIR 1969 NSC 186, are plainly in contradiction of what was said by this Court earlier in Sarvate T.B.'s case 1966 MPLJ 26. It is obvious that the decision in Sarvate T.B, 's case was not brought to the notice of this Court while deciding Smt. Kamla Soni's case or else this Court would not have landed itself in such patent contradiction. But whatever be the reason, it can not be gain said that it is not possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T.B. 's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possibly be evaded. Obviously in such a situation it is not the province of the High Courts or the subordinate Courts to comment on the judgments of a Superior Court which are patently entitled to respect. Its plain duty in the interest of justice is to respectfully follow that which appears to it to state the law accurately or in any case more accurately than the other conflicting judgment. Applying the aforesaid principle, I would with great respect prefer to follow Himalaya Tiles case (AIR 1980 SC 1118). Finally in Paragraph 31, learned Chief Justice said ; '31. To conclude, the answer to the question posed at the very outset is, therefore, rendered in the affirmative, viz., that a company, for whose benefit the land is acquired, can be impleaded as a party in the Court of the District Judge, in a reference preferred that as observed in the earlier paras 15 and 16 of this judgment, such an impleading would be within the confines spelled out in Section 50 Sub-section (2) of the Act aforesaid'. P.C. Jain, J., concurring with views of Chief Justice S.S. Sandhwalia on this point said in Paragraphs 38 and 39 that- 38. On a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to follow the view taken in Anand Niwas v. Anandji Kalyanji Pedhi (supra) and J.C. Chatterji v. Shri Krishna Tandon (supra) with regard to the heritability. Their Lordships, on the other hand, positively laid down that just as the contractual tenant, the statutory tenant also has an estate or property in the subject matter of the tenancy and the heritability is an incident of the tenancy. Thus there is a conflict of view taken \nAnand Niwas v. Anandji Kafyanji Pedhi (supra) and J.C. Chatterji v. Shri Krishna Tandon (supra) and the case in Damadi Lal v. Parashram (supra). It is now well settled that Article 141 gives a Constitutional status to the theory of the precedents in respect of the law declared by the Supreme Court, which is essential for proper administration of justice. Where there is conflict two decisions of the Supreme Court given by Judges of equal strength, the question of the later would be binding. If that be so, the decision in Damadilal's case (supra) will prevail over the ruling in J.C. Chatterji's case (supra) which was rendered by a Bench of two Judges, the ruling in Damadilal's case prevails. Special Bench of Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow the later one. According to this view, as in the case of two contrary orders issued by the same authority, the later would supersede the former and would bind the subordinate and as in the case of two contrary legislations by the same Legislature, the later would be the governing one, so also in the case of two contrary decisions of the Supreme Court rendered by the Benches of equal strength the later would rule and shall be deemed to have over-ruled the former. P.B. Mukharji, J. (as his Lordship then was), in his separate, though concurring, judgment in the Special Bench decision of this Court in Pramatha Nath v. Chief Justice, AIR 1961 Cal 545 at p. 551, para 26 took a similar view. S.P. Mitra, J. (as his Lordship then was), also took such a view in the Division Bench decision of this Court in Sovachand Mulchand v. Collector, Central Excise, AIR 1968 Cal 174 at p. 186, para 56. To the same effect is the decision of a Division Bench of the Mysore High Court in New Krishna Bhavan v. Commercial Tax Officer, AIR 1961 Mys. 3 at page 7 and the decision of the Division Bench of the Bombay High Court in Vasant v. Dikkaya, AIR 1980 Bom. 341 at p. 345. A Full Bench of the Allahabad Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia, C.J., in the Punjab Full Bench decision in Indo Swiss Time (supra) and the minority view of Jagannatha Shetty, J., in the Karnataka Full Bench decision in Govindnaik (supra). I held that where there are contrary decisions of the Supreme Court rendered by Benches of equal strength, the High Court, in theory, being bound by each one, is, in effect, bound by none and is not necessarily obliged to follow the latter in point of time, but may follow the one which, according to it, is bettor in point of law. It appears that the Full Bench decision of the Madras High Court in R. Rama Subbarayalu v. Rengammal, AIR 1962 Mad 450, would also support this later view where it has been observed (at. p. 452) that 'where the conflict is between two decisions pronounced by a Bench consisting of the same number of Judges, and the subordinate Court after a careful examination of the decisions came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one'. According to the Nagpur High Court also, as would appear from its Ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by coordinate authorities, the later decision would govern us, would be conducive to certainty in the field of law. But the same certainty would also be achieved if it is also ruled that the later Bench being not competent to over-rule the earlier decision of a coordinate Bench, the earlier decision would still continue to be the good law. A similar view in favour of the earlier decision was in fact taken by a Division Bench of this Court in Bagala Sundari v. Prosanna Nath 21 Cal WN 375 : (AIR 1917 WB 668) where it was held that even though there might be later decisions not easy to reconcile since the earlier one was not or could not be over-ruled, it would be binding, 'that being a decision of-this Court and the earliest on the point'. We are, however, inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision and, as indicated hereinbefore, and as has also been indicated by the Supreme Court om Atmaram (supra), the subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter of course, to follow either the former or the later in point of time, but must follow that one, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which appears to me as hardly relevant.' In contra-distinction to the abovesaid decision, we have catena of decisions which say that in respect of the decision of the Superior Court of co-equal Benches, the later one prevails over the former. In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari, AIR 1980 Bom 341, a Bench of the Bombay High Court has held that in case of conflict between earlier and later decisions of Supreme Court where each Bench consists of equal number of Judges, the later decision should prevail In Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd., AIR 1980 Kant 92, the Full Bench of the Karnataka High Court has definitely held that when there are two conflicting decisions of the Supreme Court, one given by the Larger Bench should be followed and that if both Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Courts. We are in complete agreement with the principle laid down by the Bombay and Karnataka High Courts in Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari, AIR 1980 Bom 341 and Govindanaik G. Kalaghatigi v. West Patent Press Company Ltd., AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew expressed by larger and small Benches of this Court, it cannot disregard to skirt the views expressed by the Larger Benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramaniam (Civil Appeal No. 212 of 1975, decided on July 30, 1976) : (reported in AIR 1976 SC 2433) to which one of us was a party, is to try to find out and follow the opinion expressed by Larger Benches of this Court in preference to those expressed by Smaller Benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.' In Mattulal v. Radhe Lal, reported in AIR 1974 SC 1596, it was held by the Supreme Court that where there are contradictory decisions of the Supreme Court the decision of the Larger Bench has to be followed even if that decision rendered earlier in point of time than the decision of the Smaller Bench. Further, where there is a direct conflict between the decision of the Hon'ble Supreme Court in its co-equal Benches, the High Court has to follow the judgment, which appears to it to state the law more elaborately and more accurately and in conformity with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view can not be accepted. In Narbada Prasad v. Awadesh Narain (1973 JLJ 641), it has been held that whenever a relevant prior decision is not cited before the Court or mentioned in the judgment, it must be assumed that the Court acts in ignorance of forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and not binding on a latter Court. In Balkishan v. State of Madhya Pradesh 1994 (1) MPJR 206], it is held that in case of conflict between Benches of equal strength the case which deals with the law more elaborately and accurately should be followed and it is immaterial whether it is earlier or later but in Union of India and Ors. v. Raju Construction Company, Bhopal [2000 (3) MPLJ 27], Court holds that subsequent decisions of Apex Court would be per incuriam since its earlier decision in Harbans Singh Tuli and Sons Builders (P) Ltd. v. Union of India (AIR 1992 SC 1124) was not brought to its notice and also sub-silentio, therefore, later decision is not binding. Having discussed the views expressed by some of the High Courts, we advert to the decisions of Apex Court on this question. In Atmaram v. State of Punjab (AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 955) 2 SCR 603 :AIR 1955 SC 661). There is a Bench of seven Judges unanimously held that there was nothing in the Constitution which prevented the Supreme Court from departing from a previous decision of its own if it was satisfied of its error and of its baneful effect on the general interests of the public. If the aforesaid rule of Constitution accepted by this Court is inconsistent with the legal philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule. In Constitutional matters which affect the evolution of our policy, we must more readily do so than in other branches of law, as perpetuation of a mistake will be harmful to public interests. While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy to set right deviations will retard its growth. In this case, as we are satisfied that the said rule of Constitution is inconsistent with our republican polity and, if accepted, bristles with anomalies, we have no hesitation to reconsider our earlier decision. In Union of India and Anr. v. Raghubir Singh (dead) by L.Rs. etc. (AIR 1989 SC 1933), Supreme Court has said in Paragraphs 28 and 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alavaru v. State of Kerala, (1973 Suppl. SCR 1 :AIR 1973 SC 1461). In Ganapati Sitaram Belvalkar v. Waman Shripad Mage (since dead) through L.Rs., (1981) 4 SCC 143.: (AIR 1981 SC 1956), this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, ( (1975) 1 SCR 127 :AIR 1974 SC 1596), this Court specially observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narendraprasadji Anandprasadji Maharaj v. State of Gujarat, ( (1975) 2 SCR 317 :AIR 1974 SC 2098), that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 : (AIR 1986 SC 806) which no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s case, 58 Cal WN 64 : AIR 1954 Cal. 119, was cited before the learned Judges who heard the present appeal, they took on themselves to say that the previous decision was wrong, of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety form the basis of judicial procedure. 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 over-ruling one another's decision.' The attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan v. Ramchandra, AIR 1965 SC 1767, was not quite different (at. p. 1773) : 'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge need to be considered, he should not embark upon that enquiry sitting as Single Judge but should refer the matter to a Division Bench or, in a proper case, place the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately fails into disrepute. Judge learned Hand has referred to the tendency of some Judges who win the game by sweeping all the chessmen off the table . [The Spirit of Liberty by Alfred A. Knopf, New York, (1953) p. 131]. This is indeed to be deprecated. It is needless to state that the judgment of Superior Courts and Tribunals must be written only after deep travail and positive vein. One should never let a decision go until he is absolutely sure it is right. The law must be made clear, certain and consistent. But certitude is not the test of certainty and consistency does not mean that there should be no word of new contents. The principle of law may develop side by side with new content but not inconsistencies. There could be waxing and waning the principle depending upon the pragmatic needs and moral yearnings. Such development of law particularly, is inevitable in our developing country. In Raghubir Singh case, learned Chief Justice Pathak had this to say [(1989) 2 SCC 754 at p. 767 : (AIR 1989 SC 1933, at p. 1939)] : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nr. [1991 (4) SCC 139], Supreme Court said in Paragraphs 40 and 41 that-- 40. 'Incuria' literally means 'carelessness'. In practice per in-curiam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare deems. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.), Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdevan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an Appellate Court is not binding. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law ? Here again the English Courts and jurists have carved o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only upto the filing of challan and did not survive for enforcement on the challan being filed in the Court against him. In Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453], majority explained Sanjay Dutt's case (supra) on the ground that Counsel for accused had conceded before the Court that individual's right for grant of bail on expiry of initial period of 180 days for completing the investigation or extended period prescribed by Section 20(4)(bb) of TADA Act could be enforced only up to the filing of the challan against him and decision of Division Bench in Hitendra Vishnu Thakur's case (supra) could not be read to confer on the accused an 'indefeasible right' to be released on bail under this provision once the challan has been filed and the accused continues in custody. Therefore, the majority holds that expression if not already availed of in Sanjay Dutt's case (supra) must be understood to mean that when the accused files an application and is prepared to offer bail on being directed, in other words, on the expiry of the period under Clause (a) of Proviso to Sub-section (2) of Section 16 of the Code of Criminal Procedure, if the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation. It is for this reason, coupled with the fact that the interpretation placed in the judgment under review on Section 8 (2-A) may affect a large number of cases all over the country, that we agreed to re-examine the issue, which we would not have agreed to ordinarily. *** *** *** *** *** *** *** *** *** *** *** *** Shri K.K. Venugopal urged strongly that the error, if any, in the judgment under review is not an error apparent on the face of the record, that it is also a possible view and that, in any event, it can not be said that the view taken in the judgment under review is a view which could not have been possibly taken. Learned Counsel pointed out that a larger number of High Courts have taken the same view and hence, the error, if any, in the judgment under review is not an error apparent on the face of the record. With respect, we can not agree. To us, the language employed in the sub-section looks quite clear and unambiguous. It does not admit of any other interpretation than the one placed by us. More important, it was already construed by a Bench of coordinate jurisdiction in Indian Aluminium earlier. Another Bench of four learned Judges ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chowk Spg. and Wvg. Co. Ltd., and also the decision of this Court in Hindustan Times Ltd., which is a four-Judge Bench decision, were not placed before the learned Judges deciding LIC of India case. A decision by the Constitution Bench and a decision by a Bench of more strength as of a binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available...... In District Manager, APSRTC, Vijaywada v. K. Sivaji and Ors. [(2001) 2 SCC 135], it is held that judicial discipline requires the Single Judge either to follow the decision of another Single Bench or refer the matter to a Larger Bench. Sitting singly, he can not take a different view on the specious ground that the decision is based upon facts, even this conclusion is unsustainable. In Dr. Vijay Laxmi Sadho v. Jagdish, [ (2001) 2 SCC 247], it has been said in Paragraphs 33 and 34 that-- 33. As the learned Single Judge was not in agreement with the view expressed in Devilal case 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 regre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is binding on another Division Bench of the same or small number of Judges. The judgment further states that in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. To avoid a repetition of the discussion on this subject, we think it appropriate to reproduce the following paragraph of that judgment which reads as follows :-- '28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges ? There is no Constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a Superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasadji Anandprasadji Maharaj v. State of Gujarat, ( (1975) 2 SCR 317 :AIR 1974 SC 2098), that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 : (AIR 1986 SC 806) which noted that a Division Bench of two Judges of this Court in Jit Ram v. State of Haryana, ( (1980) 3 SCR 689 :AIR 1980 SC 1285), had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P., ((1979) 2 SCR 641 :AIR 1979 SC 621), on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a Larger Bench when the learned Judges found that the situation called for such reference.' Almost similar is the view expressed by a recent judgment of 5-Judge Bench of this Court in Parija's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is held in Paragraph 24 that-- 24. We are in respectful agreement with the enunciation of law made by this Court in the above noted judgments in Raghubir Singh and Parija (supra). Finally, the Court held in Paragraph 25 that-- 25. Applying the principles laid down in the above said cases, we hold that the judgment of the 2-Judge Bench of this Court dated 23-3-1996 as modified by the subsequent order dated 26-7-1996 by the same Bench does not lay down the correct law, being in conflict with the Larger Bench judgment. If that be so, the above writ petitions, from which this reference has arisen, will have to be decided dehors the law laid down by those two judgments of the Bench of two learned Judges. Therefore, having decided the issue that has arisen for our consideration, we think it just that these writ petitions should now be placed before a Bench of three learned Judges for final disposal. In Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., 2001 Arb.W.LJ. 354 (SC) :(2001) 6 SCC 356, the Apex Court said in Paragraphs 19 to 22 that- 19. In Mamleshwar Prasad v. Kanhaiya Lal, reflecting on the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39 and 40 in the second judgment. In these two judgments no view contrary to the views expressed in the aforesaid judgments touching the principle of judgment per incuriam is taken. Thereafter, in Paragraph 23, the Court held that-- 23. A prior decision of this Court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case by inadvertence or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment 'per incuriam'. It is also not shown that some part of the decision was based on a reasoning which was demonstrably wrong, hence the principle of per incuriam can not be applied. It cannot also be said that while deciding Thyssen the promulgation of the first Ordinance, which was effective from 25-1-1996, or subsequent Ordinances were not kept in mind more so when the judgment of the Gujarat High Court in Western Shipbreaking Corpn. did clearly state in para 8 of the said judgment thus ;-- '8. We now come to the Arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t therefrom. In Paragraphs 28 and 29, the Apex Court said that-- 28. The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II) can not be sustained is that these decisions, though two or three-Judge Bench decisions, run counter to that extent to the dictum of the Constitution Bench inA.R. Antulay case and therefore can not be said to be good law to the extent they are in breach of the doctrine of precedents. The well-settled principle of precedent which has crystallised into a rule of law is that a Bench of lesser strength is bound by the view expressed by a Bench of larger strength and cannot take a view in departure or in conflict therefrom. We have in the earlier part of this judgment extracted and reproduced passages from A.R, Antulay case. The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal proceeding or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix any time-limit for trial of offences. Having placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay (supra) case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The Criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Dev Sharma case (I) and (II). At the most of periods of time prescribed in thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to either the nature of causes considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted. Even where necessities or justification, if any, were found therefor, there could not have been scope for such liberties being taken to transgress the doctrine of binding precedents, which has come to stay firmly in our method of administration of justice and what is permissible even under such circumstances being only to have had the matter referred to for reconsideration by a Larger Bench of this Court and not to deviate by any decisions. The correctness of which stands referred to for consideration by this Bench. All the more so, when there is no reason to doubt the correctness of the decision in A.R. Antulay case (supra) and the Bench concurs with the principles laid down therein. In Nutan Kumar v. 2nd Additional District Judge and Ors. (AIR 2002 SCW4040), the Apex Court said in Paragraph 7 that- 7. In the case of Nanakram v. Kundalrat, reported in (1986) 3 SCC 83, the question was whether a lease in violation of statutory provisions was void. It was held that in the absence of any mandatory pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow the decision of the Apex Court, exception being doctrine of 'per incuriam' and 'sub-silentio'. This article empowers the Apex Court to declare the law which becomes the law of the land which is essential for a proper administration of justice with the expectation that like cases should be decided alike. Every Court is bound to follow any case decided by a Court above it in the hierarchy and Court is bound by precedents. A case is regarded as a precedent when it furnishes rules which may be applied in settling the rights of the parties. The doctrine Stare-dedsis , commonly called The doctrine of precedent means adherence to decide cases on settled principles and not to disturb matters which have been established by judicial decisions. The precedent should serve as a rule for future guidance in deciding analogous cases (Words and Phrases, Permanent Edition Vol. 33 P, 372-373). It cannot be doubted that in the development of law, promotion of consistency and certainty in decisions on all the law is maintained and inconsistency avoided. However, perusal of various decisions demonstrates that the Apex Court and High Courts have been called upon to consider the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of propriety nor a rule to promote justice. It may be a convenient rule to promote a consistency and avoid uncertainty. If it is meant to promote consistency in the administration of justice, why not follow the former of the two decisions when both of them are of equal sanctity. The adherence to one practice would be as good or as bad as adherence to the other. However, when the Apex Court was faced with two directly contradictory judgments, Bhagwati, J., speaking for the Bench, followed the earlier judgment in preference to the latter for two reasons, namely earlier decision of Court in Sarvate T.B. 's case (supra) was not brought to the notice of the Court while deciding Smt. Kamla Soni's case (supra) resulting in patent contradiction, former being a decision by Larger Bench than the latter and on principle the view taken in Sarvate T.B. 's case (supra) commended to the Court to be the right view. This decision and K.S. Subramaniam's case (supra) led to rest the opinion to follow later decision. Moreover, doing so would be clear manifestation of violating precedents and defeat the principle that the High Courts lack competence to sit over the judgments of the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same High Court in Deorajin's case, 58 Cal. WN 64 : AIR 1954 Cal 119 was cited before the learned Judges who heard the present appeal, they took on themselves to say that the previous decision was wrong, of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety form the basis of judicial procedure. 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 over-ruling one another's decision.' The attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan v. Ramchandra, AIR 1965 SC 1767, was not quite different (at p. 1773) : 'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge need to be considered, he should not embark upon that enquiry sitting as Single Judge but should refer the matter to a Division Bench or, in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal, ( (1975) 3 SCR 211 :AIR 1975 SC 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such reference.' Almost similar is the view expressed by a recent judgment of 5-Judge Bench of this Court in Parija's case (supra). In that case, a Bench of 2 learned Judges doubted the correctness of the decision of a Bench of 3 learned Judges, hence, directly referred the matter to a Bench of 5 learned Judges for reconsideration. In such a situation, the 5-Judge Bench held that judicial discipline and propriety demanded that a Bench of 2 learned Judges should follow the decision of a Bench of 3 learned Judges. On this basis, the 5-Judge Bench found fault with the reference made by the 2-Judge Bench based on the doctrine of binding precedent. A careful perusal of the above judgments shows that this Court took note of the hierarchical character of the judicial system in India. It also held that it is of paramount importance that the law declared by this Court should be certain, clear and consistent. As stated in the above judgments, it is of common knowledge that most of the decisions of this Court are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the disputes between them but also becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different opinion on the question involved. Some hold that in case of conflict between two judgments on a point of law, later decision should be followed; while others say that the Court should follow the decision which is correct and accurate whether it is earlier or later. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding precedent and Article 141 of the Constitution of India. There are also decisions which hold that Single Judge differing from another Single Judge decision should refer the case to Larger Bench, otherwise he is bound by it. Decisions which are rendered without considering the decisions expressing contrary view have no value as a precedent. But in our considered opinion, the position may be stated thus- With regard to the High Court, a Single Bench is bound by the decision of another Single Bench. In case, he does not agree with the view of the other Single Bench, he should refer the matter to the Larger Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger ..... X X X X Extracts X X X X X X X X Extracts X X X X
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