What should be position of law pronounced by a Division Bench in relation to a case raising same point subsequently before a Division Bench of a smaller number of Judges

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 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 Vs. State of West Bengal, a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha Vs. The State of West Bengal and Others, decided by a Division Bench of five Judges, in preference to Bhut Nath Mete Vs. The State of West Bengal, decided by a Division Bench of two Judges. Again in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, Beg, J held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, In Ganapati Sitaram Balvalkar and another Vs. Waman Shripad Mage (Since Dead) through Lrs, 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 Vs. Radhe Lal, 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 and Others Vs. The State of Gujarat and Others, 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 (UOI) and Others Vs. Godfrey Philips India Ltd., which noted that a Division Bench of two Judges of this Court in Jit Ram Shiv Kumar and Others Vs. State of Haryana and Others, had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, 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.

In Krishena Kumar and Others Vs. Union of India and others, , the Apex Court relied on Raghubir Singh which was applied once again by the Constitution Bench in Chandra Prakash -vs- State of U.P., AIR 2002 SC 1652 and their Lordships explained these concepts in this manner – “policy of courts is to stand by precedents and not to disturb settled point”.

 Almost similar is the view expressed by a recent judgment of a five-Judge Bench of this Court in Parija’s case (supra). In that case, a Bench of two learned Judges doubted the correctness of the decision of a Bench of three learned Judges, hence, directly referred the matter to a Bench of five learned Judges for reconsideration. In such a situation, the five-Judge Bench held that judicial discipline and propriety demanded that a Bench of two learned Judges should follow the decision of a Bench of three learned Judges. On this basis, the five-Judge Bench found fault with the reference made by the two-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 because in doing so they embody a declaration of law operating as a binding principle in future cases. The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court. It is in the above context, this Court in the case of Raghubir Singh held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or smaller number of Judges. It is in furtherance of this enunciation of law, this Court in the latter judgment of Parija (supra) held that-

But if a Bench of two learned Judges concludes that an 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.

 In order to avoid prolixity we shall go no further than mention Union of India (UOI) and Another Vs. K.S. Subramanian, and M/s. Indian Petrochemicals Corporation Ltd. and Another Vs. Shramik Sena, An entire and complete discussion on this subject is now to be found in Shanker Raju Vs. Union of India (UOI), In this analysis, the principle of precedents, of stare decisis and of per incuriam, is that when a Bench is faced with a decision of a previous Bench of equal strength it is expected to follow the previous decision and apply its ratio. Mamleshwar Prasad and Another Vs. Kanhaiya Lal (Dead) through L. Rs., followed in M/s. Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd., cogitated on the principle of per incuriam. Their Lordships held that “Certainty of law, consistency of rulings and comity of courts – all flowering from the same principle – converge to the conclusion that a decision once rendered must later bind like cases…..a prior decision of this Court on identical facts and law binds the court on the same points in a later case. Here we have a decision admittedly rendered on facts and law indistinguishably identical, and that ruling must bind”. The same maxim has been considered in detail in the decision reported as State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, . We think that the following paragraphs call for reproduction:

 Incuria’ literally means ‘carelessness’. In practice ‘per incuriam’ appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. 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 -vs- Rajdewan 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 out an exception to the rule of precedents. It has been explained as rule of sub-silentio. “A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.” (Salmond on Jurisprudence 12th Edn., P. 153). In Lancaster Motor Company (London) Ltd. -vs- Bremith Ltd. the Court did not feel bound earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi -vs- Gurnam Kaur. The bench held that, ‘precedents sub-silentio and and without argument are of no moment’. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article-141. Uniformity and consistence are core of judicial discipline. But that which escapes in the Judgment without any occasion is not ratio decidendi. In B. Shama Rao -vs- Union Territory of Pondicherry it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein’. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.

 If the freedom to pick and choose between two decisions of the Supreme Court of India is bestowed on subordinate courts, it would run counter to Article 141 of the Constitution of India which simply and concisely states that – “the law declared by the Supreme Court shall be binding on all Courts within the territory of India”. In Government of Andhra Pradesh -vs- A.P. Jaiswal, AIR 2001 SC 499 it has been enunciated that “consistency is the corner stone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedence, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice”. S.I. Rooplal and Another Vs. Lt. Governor Through Chief Secretary, Delhi and Others, reminds and reiterates that a “coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement.”

 Union of India (UOI) and Another Vs. Major Bahadur Singh, concerned the question of whether the decision of the Apex Court in U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and others, established a binding precedent. Their Lordships clarified that the Court should abjure expounding the law without any discussion on the subject. The passages extracted above were once again reiterated. In U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, the Court opined that where a decision is rendered merely on the factual matrix of the case it would not constitute a declaration of the law and would therefore not form a precedent. So very often the difference between an Order and a Judgment is lost sight of by us. Orders are restricted to the facts obtaining in that case alone and unlike Judgments have no significance in rem. Quite recently the three Judge Bench has condensed law on the subject succinctly in Pyare Mohan Lal Vs. State of Jharkhand and Others, to be that “in case there is a conflict between two judgments of this Court, the judgment of the larger Bench is to be followed.” While so doing their Lordships had harkened back to the observations in the Seven Judge Bench decision reported as A.R. Antulay Vs. R.S. Nayak and Another, wherein the term “per incuriam” was explained to be those “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”.

 In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, , the Constitution Bench has yet again clarified that non-reference to decisions of earlier Benches renders the decision per incuriam if they are in conflict with each other. This enunciation is also to be found in V. Kishan Rao Vs. Nikhil Super Speciality Hospital and Another,

 In Official Liquidator Vs. Dayanand and Others, , the three Judge Bench had to contend with the observations in U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others, to the effect that the ratio in Secretary, State of Karnataka and Others Vs. Umadevi and Others, (Constitution Bench) “should not be applied by Courts mechanically as if it were an Euclid’s formula without seeing the facts of a particular case….. as a little difference in facts can make Umadevi’s case inapplicable to the facts of that case.” In Dayanand, the Bench thereafter analysed several judgments of the Apex Court and eventually scathingly stated that the two Judge decision in Pooran Chandra Pandey “should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench.” This homily is sufficient for disregarding the opinions of Benches which have not given due regard to decisions of larger Benches. It is in these circumstances that the decision in Ningappa has relevance and application to the facts of that case alone.

 Reverting back, we are unable to appreciate the reliance on the decision of the Supreme Court in State of Rajasthan and Others Vs. D.R. Laxmi and Others, and B.K. Muniraju Vs. State of Karnataka and Others, In D.R. Laxmi, a writ petition came to be filed assailing the acquisition of land which had become final. It was in that context that the Court felt that there was inordinate delay in filing of the writ petition. Therefore, their Lordships observed that “After the possession of the land was taken…… the land stands vested in the State Government free from all encumbrances. Thereafter, there is no provision under the Act to divest the title which was validly vested in the State.” These observations in fact militate against the case of the Appellants, inasmuch as, it is they who have failed to take legal recourse asserting their title or that they are immune to dispossess because of benefits of adverse possession. The ratio in Muniraju is the simpler that the terms of Grant must be looked at to determine alienability and it would be fallacious to raise only on the nomenclature adopted in the title. In this somewhat detailed discussion, which has relevance to the several appeals before us, we shall now consider and decide each of them.