9911796707
TMI Blog1992 (1) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by a Full Bench of a High Court was not sufficient to take away their authority until the Privy Council expressed a definite disagreement with them. Vide Anant Ram and others v. Khushal Singh and Ors. AIR1927All244 . In Gundavarapu Seshamma v. Kornepati Venkata Narasimha Rao and Ors. (1940)1MLJ400 a Full Bench is a final court of Appeal in an Indian High Court, unless the case, is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law and if the later Bench does not accept as correct the decision of the earlier Bench, the only right and proper course to adopt is to refer the matter to a Full Bench. The Full Bench pointed out that if the said course was not adopted, the courts subordinate will be left without guidance and there would be loss of money and waste of judicial time. in Ningappa v. Emperor A.I.R. 1941 Bom. 408, Beamont C.J., observed that a later Full Bench cannot overrule an earlier Full Bench merely because the later Bench comprised of more Judges. He expressed himself thus: There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court. (20) As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by courts in such matters. 4. In Jai Kaur v. Sher Singh [1960]3SCR975 , the Supreme Court held that a subsequent Division Bench cannot disagree with a previous decision of the Full Bench of the same Court. Referring to the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur AIR1970SC1002 , it is held that the decision of the Supreme Court was binding on the High Court and the latter could not ignore it because they thought that relevant provisions were not brought to the notice of the Supreme Court. 10. In Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Company, etc. v. The State of A.P. and Ors. [1972]1SCR346 , it was observed: It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. 11. In Punjab University v. Vijay Singh Lamba AIR1976SC1441 , though the Court recognised that judicial consistency was not the highest state of legal bliss, law must grow and it cannot afford to be static, observed that precedents should be stepping stones and not halting places; but at the same time cautioned that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings. 12. In Eknath Shankarrao Mukhawar v. State of Maharashtra 1977CriLJ964 , it was held that judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the law in a ferment afresh. The ratios of the Full Benches are and should be arrested on surer foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest, that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a larger Bench of the, same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid the law directly contrary to the same. And, thirdly, where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear-cut statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a smaller Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well-accepted ones in which an otherwise binding precedent may be suggested for reconsideration. (Emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation and preference given by the Full Bench of this Court. This will be in consonance with the decorum of our, judicial functioning. It is well settled that an interpretation (and equally a misinterpretation) by a larger Bench of the High Court, of a decision or decisions of the Supreme Court is binding on a smaller Bench of the same Court, and the latter cannot refuse to follow the decision of larger Bench, on the ground that the larger Bench has wrongly understood or construed the decisions of the Supreme Court. Taking note of this principle, we are obliged to hold that the appellants could not be held to have locus standi to prefer and prosecute these writ appeals. 18. In Sundaradas Kanyalal Bhathija v. The Collector, Thane [1990]183ITR130(SC) , the law is stated thus: 17. It would be difficult for us to appreciate the judgment of the High Court. One must remember the pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 certainty and consistency does not mean that there should be no word of new content. 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 Union of India v. Raghubir Singh [1989]178ITR548(SC) , learned Chief Justice Pathak had this to say [1989]178ITR548(SC) : 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer, it shall refer the matter to the Full Bench (d) A fortiori a Division Bench is bound by the decision of a Full Bench and if it wants to differ, it shall place the papers before the Chief Justice to consider whether a larger Bench should be constituted for reconsidering the question (e) the decision of a Full Bench is binding on the court including a subsequent Full Bench until it is overruled by a higher Court or a larger Bench, (f) A decision of a Full Bench can be reconsidered only by a larger Bench specially constituted by the Chief Justice for deciding the question, (g) Even the obiter dictum of a Full Bench is entitled to great weight, (h) The binding effect of a prior decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided (i) the decision of the Supreme.Court is binding on the High Court and the latter cannot ignore it on the ground that some relevant provisions of law were not brought to the notice of the Supreme Court or some aspects of the matter in question were not considered by the Supreme Court. 20. The law in England ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , with limited exceptions in criminal cases, subject always to the per incuriam rule. Faced with conflicting earlier decisions the court is free to decide which to follow. Divisional Court decisions bind judges of first instance, even of a different division, but not the Employment Appeal Tribunal. (Paragraph 579) There is no statute or common law rule by which one court is bound to abide by the decision of another court of co-ordinate jurisdiction. Where, however, a judge of first instance after consideration has come to a definite decision on a matter arising out of a complicated and difficult enactment, the opinion has been expressed that a second judge of first instance of co-ordinate jurisdiction should follow that decision; and the modern practice is that a judge of first instance as a matter of Judicial Comity usually follows the decision of another judge of first instance unless he is convinced that that judgment was wrong. Where there are conflicting decisions of courts of co-ordinate jurisdiction the later decision is to be preferred if reached after full consideration of earlier decisions. (Paragraph 580). IV. Exceptions. 21. Halsbury's Laws of England sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. The corollary of this is, we think, clearly true, namely, that what cannot be done by a division of the Court cannot be done by the full court. In considering the question whether or not this Court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this Court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it, and there is no conflicting decision of this Court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is. where this Court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this Court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement (Note (1966) 3 All E.R 77) (1966)1 W.L.R. 1234, was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by a majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it. My lords, that guidance should, in my view, be followed and acted on in the present case. I express no opinion one way or another as to the conclusion which I might have reached if I had been a member of the committee which decided the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this country have followed the same principles and recognised the same three exceptions to the rule of precedent. Vide: 1. Jaisri Sahu v. Rajdewan Dubey and Ors. [1962]2SCR558 ; 2. Ramashrey Roy and Ors. v. Pashupati Kumar Pathak and Ors. AIR1968Pat1 ; 3. Yeshbai and Anr. v. Ganpat Irappa Jangam and Anr. AIR1975Bom20 ; 4. Panjumal Hasomal Advani v. Harpal Singh Abnashi Singh Sawhney and Ors. AIR1975Bom120 ; 5.Mamleshwar v. Kanhaiya Lal [1975]3SCR834 ; 6. Rama Rao and Ors. v. Shantibai and Ors. AIR1977MP222 ; 7. Sitaram Hari Shankhe v. Laxman Rambodh Dubey and Anr. AIR1980Bom55 ; 8. Thuraka Onnuramma and Anr. v. Tahsildar, Kadiri and Ors. AIR1980AP267 ; 9,Pritam Kaur v. Surjit Singh 10. Syed Mohideen v. Government of Tamil Nadu and Anr. (1985)IILLJ348Mad ; W.A.RAntulay v. R.S.Nayak and Anr. 1988CriLJ1661 ; 12. Municipal Corporation of Delhi v. Gurnam Kaur AIR1989SC38 ; 13. Punjab Land Development and Reclaim Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh and Ors. (1990)IILLJ70SC ; 14. Krishnakumar v. Union of India and Ors. (1990)4 S.C.C. 270; 15. State of U.P. and Anr. v. Synthetics and Chemicals Ltd and Anr. 1993(41)ECC326 . V. Per incuriam 25. We are here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll outside the scope of our enquiry, namely (i) those where the court of co-ordinate jurisdiction which covers the case before it in such a case a subsequent court must decide which of the two decisions it ought to follow; and (ii) those where it has acted in ignorance of a decision of the House of Lords which covers the point in such a case a subsequent court is bound by the decision of the House of Lords. (Underlining ours) 26. But during the last three decades, Courts have found it convenient very often to throw away earlier rulings with the label per incuriam. We notice with anguish that at times the meaning of the expression had not been understood properly, which has led to the misuse of the same, if not abuse. One such instance is found in Abdul Malick v. The Collector of Dharmapuri and Ors. (1968)1MLJ9 , where a single Judge of this Court held that a judgment rendered at the admission stage without notice to the opposite party was per incuriam. That is obviously based on a wrong understanding of the term per incuriam. 27. The literal meaning of the expression per incuriam is through want of care (Vide: Mozley and Whitley's Law Dictionary, 7th Edition, page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it: Here was a manifest slip or error . In our judgment, acceptance of the Attorney-General's argument would necessary involve the proposition that it is open to this Court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction(at least in any case of significance or complexity) whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of counsel could provide. Such a proposition would, as it seems to us open the way to numerous and costly attempts to re-open questions now held to be authoritatively decided. Although, as was pointed out in Young v. Bristol Aeroplane Company Ltd., 1944 K.B. 718, a full court of five Judges of the Court of Appeal has no greater jurisdiction or higher authority than a normal division of the court consisting of three judges, we cannot help thinking that, if the Attorney-General's argument were accepted, there would be a strong tendency in cases of public interest and importance, to invite a full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they stood. None could have reached finality short of the House of Lords, and, in the meantime, the task of their professional advisers of advising them either as to their rights, or as to the probable cost of obtaining or defending them, would have been quite literally, impossible. Whatever the merits, chaos would have reigned until the dispute was settled, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection. The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decision of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co. Ltd. (1944)2 All E.R. 293, offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question consider decisions in the upper tiers with the same freedom. Even this House, since it has taken freedom to review its own decisions, will do so cautiously. Lord Reid at page 835 said, It seems to me obvious that the Court of Appeal failed to under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Court. Scarman, L.J. dealt with the question more elaborately and observed as follows: But Zimmerman v. Grosswan (1972)1 Q.B. 167, is authority binding on this Court, unless we can truly say that the judgment was per incuriam. But was it per incuriam? To say that the careful Judgment of Widgery L.J. reviewing as it did the history of the relevant legislation, was per incuriam a phrase in a foreign tongue which I translate as Homer nodded smacks of absurdity. I do not know, and would not dream of inquiring, whether Sees. 13 to 15 were present to his mind: they could not have been decisive in any event. Equally, Sections 86 to 89, whether or not he had them in mind, were relevant only as part of the context, and could not have been decisive. Can one, however, extend the per incuriam exception so as to include a case where the only indication that Homer nodded is that one thinks the court put upon the words of the statute a meaning which they cannot bear, and one which leads to a result that appears to be contrary to the purpose of the statute? For myself I would agree with Lord Denning M.R. that one can, in a proper case. But to do so we must be prepared to say not merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and pointing out the necessity for maintaining a state of certainty in the law, observed as follows: It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in Seshamma v. Venkata Narasimharao (1940)1MLJ400 , that the decision of a Court of Appeal is considered as a general rule to be binding on it. 'There are exceptions to it, and one of them is thus stated in Halsbury's Laws of England, third edition, Vol.22, para 1687, pp. 799-800: The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a co-ordinate jurisdiction which covered the case before it, or when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the ruling in Young v. Bristol Aeroplane Company Ltd. (1944)2 All E.R. 293, and declared the law thus: 27. Now, a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier court knew of the statute in question. If it did not refer to and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuriam as to vitiate the decision. These are the commonest illustrations of decision being given per incuriam. In order that a case can be decided per incuriam, it is not enough that it was inadequately argued. It must have been decided in ignorance of a rule of law binding on the court, such as a statute. (See the observations in Salmond on Jurisprudence Twelfth Edition, pages 150 and 169). The Bench also referred to an argument advanced before it on the principle of sub silentio and observed thus: 30. Mr. Diwan, however, is on stronger grounds in his submission that the said decisions were precedents sub silentio, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... went on to hold that normally one Division Bench of a High Court cannot take a view contrary to the decision given by another Division Bench of that court and relied on Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractor Company v. The State of Andhra Pradesh [1972]1SCR346 . Then it referred to the proposition laid down by the Master of Rolls in Young v. Bristol Aeroplane Company Ltd. (1944)1 K.B. 718. Referring to the expression per incuriam the Bench observed. ...A decision cannot be treated as given per incuriam merely because the Court had not the benefit of a full and exhaustive argument, and as a general rule the only cases in which decisions should be held to be given as per incuriam are those given in ignorance of some inconsistent statutory provision or binding authorities. In the matter before us it cannot be said that the Division Bench in Kalavati's case C.A. No. 1699 of 1969, dt.26.4.1973 (Bom.), has given its decision either in ignorance of the provisions of any statute or binding authorities i.e. the judgment of the Supreme Court. It was, however, contended that the Division Bench in Kalavati's case C.A. No. 1699, dt.26.4.1973 (Bom.) had w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot noticed. The learned Judge observed that a judgment rendered in ignorance of a statute or a rule having the force of a statute was decided per incuriam. He quoted from the rulings in Yeshabiv. Ganpat Irappa Jangani AIR1975Bom20 and Young v. Bristol Aeroplane Company Ltd. (1944) 2 All E.R. 293. 39. In Thuraka Onnuramma and Anr. v. Tahsildar, Kadiri and Ors. AIR1980AP267 , a single Judge of Andhra Pradesh High Court gave a similar ruling that a decision rendered overlooking a statutory provision shall be treated as per incuriam. He has extracted a passage from Salmond on Jurisprudence. It is worthwhile repeating the same here. It is now well settled that a decision rendered overlooking a statutory provision shall be treated as perincuriam and cannot be regarded a binding precedent. Salmond on Jurisprudence, Twelfth Edition, page 150, says, A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of a statute i.e., delegated legislation . Salmond cites in support of this proposition High authority of Lord Halsbury in the House of Lords in London Street Tramways v. London County Council, 1898 A.C. 375 and of Lord Greene M.R. in Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4)2 All E.R. 293. Also see the observation of Lord Goddard in Moore v. Hewitt (1947)2 All E.R. 270 and Penny v. Nicholas (1950) 2 All E.R. 89, 92A. Per incuriam are 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. See Morelle Ltd v. Wake-ling (1955)1 All E.R 708. Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. [1985]3SCR26 . We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Arts. 14 and 21 of the Constitution these directions were legally wrong. 43. In Municipal Corporation of Delhi v. Gurnam Kaur AIR1989SC38 , the Supreme Court observed thus: 11. pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamuna Das case (W.P.Nos.981-82 of 1984) and the learned Judge who agreed with him, we cannot concede that this Court is bound to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided without argument, without reference to the crucial words, of the rule, and without any citation of authority , it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment, This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority. 44. In Punjab Land Devt. Reclamation Corporation Ltd. Chandigarh, etc., and several others v. Presiding Officer, Labour Court, Chandigarh etc., and several others (1990)IILLJ70SC , the Supreme Court considered the meaning of the expression 'per incuriam' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases will the House reconsider questions of construction of statutes or other documents. The House is not bound to follow a previous case merely because it is indistinguishable on the facts. The position and experience in this Court could not be much different keeping in view the need for proper development of law and justice. 45. Recently, in State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. 1993(41)ECC326 , a Bench of two Judges held that a previous decision rendered by severn Judges was per incuriam. In the earlier judgment of seven Judges, a reference was made to Entry 52 of List II in the Seventh Schedule of the Constitution of India and it was observed that the States had no power to charge sales tax on industrial alcohol. It was pointed out by the later Bench that the question which arose before the earlier Bench related only to the power of the State to levy excise duty and vend fee or transport fee by recourse to Entry 51 or Entry 8 in List II in respect of industrial alcohol and it had nothing to do with the levy of sales tax under Entry 52. It was also pointed out that Entry 52 of List II had no application to the fees or charges, the validity of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plane Company Ltd. (1944)1 KB. 718. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedence as a matter of law. In Jaisri Sahu v. Rajdewan Dubey [1962]2SCR558 , 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. 41. 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 Co. (London) Ltd. v. Bremith Ltd. (1941) 2 All E.R 11, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or principle on which a case is decided. An interesting and instructive passage is found in the judgment of a Full Bench of this Court in M.Shaikh Dawood v. Collector of Central Excise, Madras AIR1961Mad1 , expounding the difference between obiter dictum and ratio decidendi. It reads as follows: It is occasionally helpful to remind oneself of basic principles and we therefore make no apology for quoting the following passages from Salmond on Jurisprudence. On pages 223 and 224 of the 11h Edn. The following passages appear; A precedent, therefore, is a judicial decision which contains in itself, a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. The only use of authorities or decided cases says Sri George Jessel, is the establishment of some principle which the Judge can follow out in deciding the case before him. The only thing says the same distinguished judge in another case, in a Judge's decision binding as an authority upon a subsequent judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether F.A. A.B. Ltd. v. Lupton, (Inspector of Taxes), 1972 A.C. 634, fell within the precedent established by the one or the other case, said: What constitutes binding precedent is the ratio decidendi of a case and this is almost always to be ascertained by an analysis of the material facts of the case that is, generally, those facts which the tribunal whose facts which the tribunal whose decision is in question itself holds, expressly or implicitly, to be material. It has also been analysed: A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllogism, with the major premise consisting of a pre-existing rule of law (either statutory or judge-made) and with the minor premise consisting of the material facts of the case under immediate consideration. The conclusion is the decision of the case, which may or may not establish new law in the vast majority of cases it will be merely the application of existing law to the facts judicially ascertained. Where the decision does constitute new law, this may or may not be expressly stated as a proposition of law; frequently the new law will appear only from subsequent compari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's Trustees (1882)7 App. Cas. 259, and Lord Halsbury in Quinn v. Leathern, 1901 A.C. 495. Sir Frederick Pollock has also said; Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision. 20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it In the Words of Halsbury, 4th edn., Vol.26, par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in those judgments were quoted by the Full Bench with emphasis supplied by itself. We will not be guilty of tautology if we extract therefrom as herein: The Nayagarh Co-operative Central Bank Ltd. v. Narayan Rath AIR1977SC112 . The High Court has dealt with the question whether a writ petition can be maintained against a co-operative society, but are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are not strictly in accordance with the decision of this Court. (Emphasis supplied). We should like to observe that the judgment of the High Court should not be treated as an authority for the proposition that a writ petition is maintainable against a co-operative society. S.S. Dhanoa v. Municipal Corporation Delhi 1981CriLJ871 , Whatever has been said with regard to the Council of Scientific and Industrial Research which was a society registered under the Societies Registration Act, equally applies to the Co-operative Store Limited, which is a society registered under the Bombay Co-operative Societies Act, 1925. It is not a statutory body because it is not created by a statute. It is a body created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under the effective control of a committee elected by the members of the Societies. The statutory regulations or restriction in the functioning of the Societies is not an imprint of State under Article 12 . Hence no writ will lie against a Co-operative Society governed by the Kerala Co-operative Societies Act. 24. The issue can be looked from another angle. The Supreme Court in Co-operative Central Bank Ltd. v. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad (1969)IILLJ698SC , has held that the Bye-laws of a cooperative society framed in pursuance of the provisions of the Act cannot be held to the law or to have the force of law. This also supports the view that a co-operative society is not a statutory functionary. The fact that whenever the governing body is superseded and in its place a Special Officer or other Government official is appointed to administer the affairs of the society makes any difference has to be considered now. We are of the view that having regard to the decision of the Supreme Court in S.S.Dhanoa v. Municipal Corporation Delhi 1981CriLJ871 , the position is that it does not make any difference. Any officer appointed in the place of the governi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 871 , (the Board of Management was not superseded as such, but a member of the Indian Administrative Service was appointed as General Manager of the Co-operative Society in question, which fact would, accordingly to learned Counsel, make all the difference and that such a society whose Board of Management was a superseded by Tamil Nadu Act XXV of 1976. A careful perusal of the judgment in Dhanoa's case 1981CriLJ871 , does not warrant such distinction. The basic principle on which S.S.Dhanoa was decided was that a Co-operative Society was not a statutory body as it was not created by a statute. The change in the management of the society by supersession of the entire Board of Management, statutorily or otherwise, or placing the management in the hands of a Government servant without superseding the Board of Management would not make any difference in the eye of law in view of the basic principles that a society is not a statutory body as it is not a creature of a statute. We do not find any error in the reasoning of the Full Bench in Tamilarasan v. Director of Handlooms and Textiles (1981) I L.L.J. 588. Even assuming for the sake of argument without admitting, that the reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ij Bihari Singh's case (1989)37 (2) B.L.J.R. 219. That was a judgment of a Division Bench of the Patna High Court, to which the Senior Judge in the Division Bench of this Court was a party when he was a Judge of that Court. Unfortunately, the learned Judge in his anxiety to get over the binding authority of the Full Bench, failed to note that the judgment of the Patna High Court was delivered on a later date and the Full Bench of this Court could not have had an inkling that a Division Bench of the Patna High Court would later take a different view on the question which was being decided by them. The judgment in Tamilarasan v. Director of Handlooms and Textiles (1991)2 L.W. 409 : (1981) I L.L.J. 588, was delivered on 29.3.1989 by the Full Bench while Brij Bihari Singh's case 1989(37)BLJR219 , was decided on 18.4.1989, i.e., 19 days after the judgment of the Full Bench. Even if the Division Bench judgment of Patna High Court had been earlier, it was certainly not binding on the Full Bench of this Court and the latter was entitled to ignore it. Naturally, there is no attempt on the part of counsel for the petitioner to support that part of the reasoning of the Division Bench. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute. It should be noted that the judgment of the Division Bench suffers from a fundamental fallacy in that it equates the supersession of the board of Management of a society to the supersession of the society itself. In paragraph 25, a reference is made to S.S. Dhanoa's case 1981CriLJ871 , and it is observed that it was not a case of a society which had been superseded by the State Government. It is seen that in the judgment in Brij Bihari Singh's case 1989(37)BLJR219 , the Division Bench of the Patna High Court proceeded on the footing that the relevant Bihar Act had superseded the societies themselves. It is also noted that the management of the society had been vested in the Government under the Bihar Act and administrators were appointed pursuant thereto. But, under the Tamil Nadu Act XXV of 1976, the management of the society has not vested in the Government. We have already noted that the said Act has substituted only the Board of Management by the Special Officer and has not changed the character or status of a co-operative society. Section 5 of the Act keeps intact the applicability of the provisions of the Co-operative Societies Act and the Rules made thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
