TMI Blog2021 (4) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue is to be protected as the matter is sub-judice before the Supreme Court. Accordingly, the following interim orders are passed: A. The reference referred to in Section 24(5) of the 1988 Act shall not be treated as final and shall only be treated as provisional during the whole period, the writ applications are pending before this Court. B. Subject to its result, the reference will be treated as final. Thereafter, time to pass the adjudication order under Section 26(7) of the 1988 Act will start to run. Hence, it follows that the respondent authorities will not take any further steps in the matter till the disposal of these writ applications. C. The writ petitioners shall not sell, otherwise transfer, deal with, encumber or part with possession of the subject properties till the disposal of these writ applications. The respondent authorities are granted a period of six weeks to file their affidavits-in-opposition from date. Affidavits-in-reply, if desired to be submitted by the writ petitioners, be submitted within a period of two weeks thereafter. - WPA 11123 of 2020, WPA 11127 of 2020, WPA 11132 of 2020, WPA 11135 of 2020, WPA 11136 of 2020, WPA 7880 of 2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate any proceedings in respect of the same. In other words, what was to be noted was the fact that while the 1988 Act entered the statute books, no procedural rules were framed under Section 8 of the 1988 Act for the declaration of the benami property, rendering the 1988 Act effective, merely on paper. As a result, in spite of the amendment Act of 2016 which introduced the definitions of benami property and benami transaction , in sub-sections of (8) and (9) of Section (2) of the 1988 Act, such amendment would not be applicable in respect of transactions pertaining to immovable properties, which predated the implementation of the amendment Act of 2016. 6. Mr. Khaitan had also placed his reliance on the judgment rendered by the Bombay High Court in Joseph Isharat v. Rozy Nishikant Gaikwad reported in 2017 (5) ABR 706 as well as the judgment rendered by the Rajasthan High Court in Niharika Jain v. Union of India Ors., reported in 2019 SCC Online Raj 1640 to buttress that both these High Courts had returned similar findings of law as laid down in M/s. Ganpati Dealcom Pvt. Ltd (supra), in so far as the operation of the amendment Act of 2016 to the 1988 Act was concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending (Emphasis supplied) 11. Subsequently, a Division Bench of this Court in Pijush Kanti Chowdhury (supra), while framing the following question of law - simply because in an application for grant of special leave, the Supreme Court has stayed the operation of an order passed by the Division Bench of this Court declaring a statutory provision as ultra vires the Constitution of India as an interim measure imposin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be operative. (Emphasis supplied) 15. From the above discussion what becomes abundantly clear is that while the law laid down by the Division Bench of this Court in Pijush Kanti Chowdhury (supra) has been followed by the Madras High Court in Viswapriya (India) Limited (supra), the Delhi High Court had differed with the same in Alka Gupta (supra). Needless to state that while both these High Courts were not bound by the law laid down by the Division Bench ruling of this Court as they were persuasive in nature considering the jurisdictions of both these constitutional courts and the operability of their judgments, the same does not apply to this Court, as the doctrine of precedent strict sensu, applies herein. 16. In Bijon Mukherjee v. State of West Bengal, reported in (2018) 4 CHN 454, I had the occasion to examine in detail the doctrine of precedent and therefore, based on the same, I have no hesitation in stating that I am bound by the decision of the Division Bench rendered in Pijush Kanti Chowdhury (supra) and subsequently reiterated in Niranjan Chatterjee (supra). In pursuance of the decision of Pijush Kanti Chowdhury (supra), notwithstanding the operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present amendment to the Benami Act. The amendments introduced by the Legislature affect substantive rights of the parties and must be applied prospectively. (Emphasis supplied) 19. The decision of the Bombay High Court was assailed by way of a Special Leave Petition bearing SLP (C) No. 12328/2017 wherein by an order dated April 28, 2017, such SLP was dismissed at the threshold. Be that as it may, it does not mean that the judgment rendered in Joseph Isharat (supra), has been affirmed as a result of such dismissal. It is axiomatic to state that such an order passed in a SLP at the threshold without detailed reasons does not constitute any declaration of law or constitute as a binding precedent. If any precedent be needed for such enunciation of law, one may refer to paragraph 4 of the Supreme Court s judgment rendered in Union of India v. Jaipal Singh reported in (2004) 1 SCC 121. 20. Subsequently, the ruling rendered in Joseph Isharat (supra) was also considered by the learned Single Judge in Niharika Jain (supra). The Rajasthan High Court was also seized of a similar case as this Court wherein proceedings were initiated under Section 24 of the 1988 Act as amended b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court could be made a binding precedent on the Madras High Court on the basis of the principle of stare decisis. The Apex Court had ruled definitively that such a decision can at best have persuasive value and such a decision does not enjoy the force of a binding precedent on the Madras High Court. 24. The Bombay High Court in Commissioner of Income Tax v. Thana Electric Supply Ltd., reported in (1994) 206 ITR 727 had considered an important question in the interpretation of the Income Tax Act, 1961 which is worth consideration. The Division Bench, in Thana Electric Supply Ltd. (supra) was seized of with the question of interpreting if one High Court (in this case, the Bombay High Court), while interpreting an All-India Statute, was bound to follow the decision of any other High Court and to decide the question accordingly, even if its own view is considered contrary thereto, in view of the practice followed by the Court in such matters. The Division Bench had also relied on Valliama Champaka Pillai (supra), and laid down some emerging propositions post analyzing some leading precedents dealing with the concept of ratio decidendi and obiter dicta as follows: 20. From the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y persuasive effect. By no amount of stretching of the doctrine of stare decisis, can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Courts or Tribunals within their territorial jurisdiction are concerned. Any such attempt will go counter to the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. The fact that there is only one decision of any one High Court on a particular point or that a number of different High Courts have taken identical views in that regard is not at all relevant for that purpose. Whatever may be the conclusion, the decisions cannot have the force of binding precedent on other High Courts or on any subordinate courts or Tribunals within their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all courts in the country by virtue of article 141 of the Constitution. (Emphasis supplied) 25. Therefore, the decisions rendered in Joseph Isharat (supra), and Niharika Jain (supra) by the Bombay High Court and Rajasthan High Court respectively, based on proposition (d) laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the law enunciated in Valliama Champaka Pillai (supra), the decision of one High Court is not a binding precedent on another High Court. vii. As per the law laid down in Thana Electric Supply Ltd. (supra), the decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well-settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have only persuasive effect. By no amount of stretching of the doctrine of stare decisis, can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Courts or Tribunals within their territorial jurisdiction are concerned. Any such attempt will go counter to the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. 27. Based on the above principles that emerge, I am of the view that the Bombay High Court judgment in Joseph Isharat (supra) an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
