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TMI Blog1989 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... vil) Nos. 10180 of 1985 decided on May 16, 1989 Senior Advocates: T.S. Krishnamoorthy Iyer, B.R.L. Iyengar, B.R.L. Iyengar, M.S. Gujaral, F.S. Nariman and A.K. Ganguli, for the parties K. Parasan, Attorney-General of india for the parties. Other Advocates: K. Swamy, C.V. Subba Rao, R.D. Agrawala, P.Parameswaran, O.P. Sharma, R.C. Gubrele, K.R. Gupta, R.K. Sharma, K.L. Rathee, Chandulal Verma, Subhash Mittal, S. Balakrishnan, N.B. Sinha, K.K. Gupta, Sanjiv B. Sinha, M.M. Kashyap, P.C. Khunger, Swaraj Kaushal, Pankraj Kalra, S.K. Bagga, Ravinder Narain, Sumeet Kachwala, S. Sukumaran, K.R. Nagaraja, S.S. Javali, ms. Lira Goswami, D.K. Das, B.P. Singh, Ranjit Kumar, Santosh Hegde, M.N. Shroff, P.N. Mishra, D.C. Taneja, P.K. Jena, A.K. Sanghi and M. Veerappa. for the parties JUDGMENT The judgment of the court was delivered by R. S. PATHAK CJ 1. -The question of law referred to us for decision in these cases is : "Whether, Under the Land Acquisition Act, 1894, as amended by the Land Acquisition (Amendment) Act, 1984, the claimants are entitled to solatium at 30 per cent. of the market value irrespective of the dates oil which the acquisition proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acquisition Act. Before the Amendment Act was enacted, the sub-section provided for solatium at 15 per cent. of the market value. By the change introduced by the Amendment Act, the amount has been raised to 30 per cent. of the market value. Sub-section (2) of section 30 of the Amendment Act specifies the category of cases to which the amended rate of solatium is attracted. In K. Kamalajammanniavaru [1985] 1 SCC 582 (SC), the two learned judges held that sub-section (2) of section 30 referred to orders made by the High Court or the Supreme Court in appeals against an award made between April 30, 1982, and September 24, 1984, and that, therefore, solatium at 30 percent. alone pursuant to sub-section (2) of section. 30 had to be awarded in such cases. In Bhag Singh, [1985] 3 SCC 737, however, the three learned judges held that sub-section (2) of section 30 referred to proceedings relating to compensation pending on April 30, 1982, of filed subsequent to that date, whether before the Collector or before the court or the High Court or the Supreme Court, even if they had finally terminated before the enactment of the Amending Act. In taking that view, they overruled K. Kamalajammanniava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of law. . . which prevails over every other form of law". The position is substantially different under a written Constitution such as the one which governs us. The Constitution of India, which represents the supreme law the land, envisages three distinct organs of the State, each with its own distinctive functions, each a pillar of the State. Broadly, while Parliament and the State Legislature in India enact the law and the executive Government implements it, the judiciary sits in judgment not only on the implementation of the law by the executive but also on validity of the legislation sought to be implemented. One of the functions of the superior judiciary in India is to examine the competence and validity of legislation, both in point of legislative competence as well as its consistency with fundamental rights. In this regard, the courts in India possess a power not given to the English courts. Where a statute is declared invalid in India, it cannot be reinstated unless constitutional sanction is obtained therefor by a constitutional amendment or an appropriately modified version of the statute is enacted which accords with constitutional prescription. The range of judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e truth of the Holmesian aphorism that "the life of the law has not been logic, it has been experience", and again when he declared in another study that "the law is forever adopting new principles from life at one end," and "sloughing off" old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined. Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogmas. The search for solutions responsive to a changing social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as "fairness" or "reasonableness" but also among propositions from outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law by the court and the limits within which such change could be brought about. He said "I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law, it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations : that must be left to legislation. And if we do in effect change the law, we ought; in my opinion, only to do that in cases where our decision will produce some finality or certainty." Whatever the degree of success in resolving the dilemma, the court would do well to ensure that although the new legal norm chosen in response to the changed social climate represents a departure from the previously ruling norm it must, nevertheless, carry within it the same principle of certainty, clarity and stability. The profound responsibility which is borne by this court in its choice between earlier established standards and the formul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gathering change in the prevailing socioeconomic structure, on July 26, 1966, Lord Gardiner L. C., made the following statement on behalf of himself and the Lords of Appeal in Ordinary (see [1966] 3 All ER 77 (Note)) : "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection, they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law." Since then, the House of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the years 1966 and 1988, there were twenty-nine cases in which the House of Lords was invited to overrule one of its own precedents, that the House of Lords did so in eight of them, while in a further ten cases, at least one of the Law Lords was willing to overrule the previous House of Lords precedent. In a considerable number of other cases, however, the Law Lords seemed to prefer to distinguish the earlier decisions rather than overrule them. The High Court of Australia, the highest court in the Commonwealth, has reserved to itself the power to reconsider its own decision, but has laid down that the power should not be exercised upon a mere suggestion that some or all the members of the later court would arrive at a different conclusion if the matter were res integra. In the Tramways case [1914] 18 CLR 54, Griffith C. J., while doing so, administered the following caution (see AIR 1955 SC 697) : "In my opinion, it is impossible to maintain as an abstract proposition that the court is either legally or technically bound by previous decisions. Indeed, it may, in a proper case, be its duty to disregard them. But, the rule should be applied with great caution, and only when the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e -National Bank of Genesee v. Whitney [1881] 103 US 99 ; 26 L. Ed. 443-444. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning recognising that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." The Judicial Committee of the Privy Council also took the view that it was not bound in law by its earlier decisions, but in In re Compensation to Civil Servants [1929] AC 242 ; AIR 1929 PC 84, 87, it is declared that it "would hesitate long before disturbing a solemn decision by a previous Board, which raised an identical or even a similar issue for determination" and reiterated that reservation in Attorney-General of Ontario v. Canada Temperance Federation, AIR 1946 PC 88, and Phanindra Chandra Neogy v. The King, AIR 1949 PC 117; 76 IA 10. These cases from England, Australia and the United States were co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cautioned that the court should not differ merely because a contrary view appeared preferable, the learned judge affirmed that "we should not lightly dissent from a previous pronouncement of this court." But if the previous decision was plainly erroneous, he pointed out, there was a duty on the court to say so and not perpetuate the mistake. The appeal to the principle of stare decisis was rejected on the ground that (a) the decision intended to be overruled was a very recent decision and it did not involve overruling a series of decisions, and (b) the doctrine of stare decisis was not an inflexible rule,and must, in any event, yield where following it would result in perpetuating an error to the detriment of the general welfare of the public or a considerable section thereof. Since then, the question as to when the Supreme Court should overrule its own decision has been considered in several cases. Relying on the Bengal Immunity case, AIR 1955 SC 661, Khanna J. remarked that certainty in the law, which was an essential ingredient of the rule of law, would be considerably eroded if the highest court of the land lightly overruled the view expressed by it in earlier cases. One ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not considered. A more compendious examination of the problem was undertaken in Keshav Mills Co. V. CIT [1965] 56 ITR 365; 377; [1965] 2 SCR 908, where the court pointed out : "It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based ? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the court not drawn to any relevant and material statutory provision, or was any previous decision of this court bearing on the point not noticed ? Is the court hearing such plea fairly unanimous that there is such an error in the earlier view ? What would be the impact of the error on the general administration of law or on public good ? Has the earlier decision been followed on subsequent occasions either by this court or by the High Courts ? And, would the reversal of the earlier decision lead to publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be laid down in the matter. In direct disagreement with the view in T. V. Vatheeswaran, AIR 1983 SC 361, the learned judges said that account had to be taken of the time occupied by proceedings in the High Court and in the Supreme Court and before the executive authorities, and it was relevant to consider whether the delay was attributable to the conduct of the accused. As member of another Bench of two judges, in Javed Ahmed Abdul Hamid Pawala, AIR 1985 SC 231, 0. Chinnappa Reddy J. questioned the validity of the observations made in Sher Singh, AIR 1983 SC 465, and went on to note, without expressing any concluded opinion on the point, that it was serious question (AIR 1985 SC 231, 236) "Whether a Division Bench of three judges could purport to overrule the judgment of a Division Bench of two judges merely because three is larger than two. The court sits in Divisions of two and three judges for the sake of convenience and it may be inappropriate for a Division Bench of three judges to purport to overrule the decision of a Division Bench of two judges. Vide Young v., Bristol Aeroplane Co. Ltd. [1944] 2 All ER 293 (CA). It may be otherwise where a Full Bench or a Constitution Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of West Bengal, AIR 1974 SC 806, decided by a Division Bench of two judges. Again, in Smt. Indira Nehru Gandhi v. Shri Rai Narain [1976] 2 SCR 347, Beg J. held that the Constitution Bench of five judges was bound by the Constitution Bench of thirteen judges in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Suppl. SCR 1. In Ganapati Sitaram Balvalkar v. Waman Shripad Mage (Decd. through Lrs.) [1981] 4 SCC 143, this court expressly stated that the view taken on a point of law by 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, this court specifically 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 Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat [1975] 2 SCR 317, that even where the strength of two differing Division Benches consisted of the same number of judges, it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in consideration of the compulsory nature of the acquisition. The Land Acquisition (Amendment) Bill, 1982, was introduced in the House of the People on April 30, 1982, and upon enactment the Land Acquisition (Amendment) Act 1984, commenced operation with effect from September 24, 1984. Section 15 of the Amendment Act amended section 23(2) of the parent Act and substituted the words "30 per centum" in place of the words "15 per centum". Parliament intended that the benefit of the enhanced solatium should be made available albeit to a limited degree, even in respect of acquisition proceedings taken before that date. It sought to effectuate that intention by enacting section 30(2) in the Amendment Act. Section 30 (2) of the Amendment Act provides "(2) The provisions of sub-section (2) of section 23 . . ...of the principal Act, as amended by clause (b) of section 15 ... of this Act ... shall apply and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 [the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court or of the Supreme Court were necessary. Plainly, having regard to the existing hierarchical structure of for a contemplated in the parent Act, those appellate orders could only be orders arising in appeal against the award of the Collector or of the court. The words "any such award" are intended to have deeper significance, and in the context in which those words appear in section 30 (2), it is clear that they are intended to refer to awards made by the Collector or court between April 30, 1982, and September 24, 1984. In other words, section 30(2) of the Amendment Act extends the benefit of the enhanced solatium to cases where the award by the Collector or by the court is made between April 30, 1982, and September 24, 1984, or to appeals against such awards decided by the High Court and the Supreme Court as to whether the decisions of the High Court or the Supreme Court are rendered before September 24, 1984, or after that date. All that is material is that the award by the Collector or by the court should have been made between April 30, 1982, and September 24, 1984. We find ourselves in agreement with the conclusion reached by this court in K. Kamalajammanniavaru (dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory enhancement. It must be remembered that the value of the land is taken under section 11(1) and section 23(1) with reference to the date of publication of the notification under section 4(1), and it is that date which is usually material for the purpose of determining the quantum of compensation and solatium. Both section 11(1) and section 23(1) speak of compensation being determined on the basis, inter alia, of the market value of the land on that date and solatium by section 23(2) is computed as a percentage on such market value. Our attention was drawn to the order made in State of Punjab v. Mohinder Singh [1986] 1 SCC 365, but in the absence of a statement of the reasons which persuaded the learned judges to take the view they did, we find it difficult to endorse that decision. It received the approval of the learned judges who decided Bhag Singh's case [1985] 3 SCC 737, but the judgment in Bhag Singh's case [1985] 3 SCC 737, as we have said earlier, has omitted to give due significance to all the material provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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