9911796707
TMI Blog2020 (6) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... ch road to the proposed new petrol/diesel retail outlet mentioned in the writ petition falls along State Highway. Therefore, it is contended by the 10th respondent in the writ petition that it is the respective State Government, which is responsible for issuing any guideline and granting access permission to the fuel station along the State Highways. The powers conferred under Article 226 of the Constitution of India on each High Court is independent, and each High Court under Article 226 of the Constitution of India is empowered to decide independently notwithstanding the interim order granted by a High Court in India, and even when a final decision is rendered interpreting a Central law on the grounds of competence of legislation. Whether it be legislation, delegated or subordinate legislation, it is trite law considering the difference in the views expressed by different High Courts, on a particular subject or subjects, the Hon ble Supreme Court has approved the views expressed by some High Courts and disapproved the contrary views expressed by other High Courts. On this proposition, we do not propose to burden the instant judgment with the decisions of the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "5. It is submitted by the learned counsel on all sides that the Writ Appeal has been finally heard and disposed of in terms of the interim order. In the instant case, there was an interim order granted on 10.01.2020 on the basis of the directions contained in the judgment of the learned Single Judge. 6. However, in view of the interim order of the Division Bench, I am of the opinion that this case is also liable to be governed by the interim orders and the judgment of the Division Bench in the above case. Though the learned senior counsel appearing for the respondents submits that the withdrawal of the IRC Guidelines has been stayed by the Madras High Court, I am of the opinion that this Court would primarily be bound by the judgment of the Division Bench in the Writ Appeal. In the above view of the matter, this writ petition is disposed of. The judgment of the Division Bench in W.A. No. 27 of 2020 and connected cases will govern this writ petition also. Appropriate steps shall be taken by the respondents to comply with the directions contained in the said judgment." 4. According to Mr. T. Sethumadhavan, learned Senior Counsel for the appellant, the learned single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition that it is the respective State Government, which is responsible for issuing any guideline and granting access permission to the fuel station along the State Highways. 7. Ministry of Road Transport and Highways issued Ext. P1 guidelines/norms for access permission to fuel stations, private properties, rest area complexes and such other facilities along National Highways only. 8. In Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others reported in (1976) 1 SCC 671 the Hon'ble Apex Court held thus: "48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a "person aggrieved" and has no locus standi to challenge the grant of the no-objection certificate. 49. It is true that in the ultimate analysis, the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed nor should there be any variation with that kind of interim order passed. It is submitted at the Bar that such variance creates discrimination. This is an unfortunate approach. Every Bench hearing a matter on the facts and circumstances of each case should have the right to grant interim orders on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have the right to vary or alter such interim orders. We venture to suggest, however, that a consensus should be developed in the matter of interim orders. (ii) In Vishnu Traders v. State of Haryana 1995 Suppl (1) SCC 461, the Supreme Court has observed as under:- "In the matters of interlocutory orders, principle of binding precedent cannot be said to apply. However, the need for consistency approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievance of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is an assurance of consistency, uniformity, predictability and certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, extends, but that principle, does not mean that a High Court is bound by the decision of another High Court, whether it is of the same strength or of a higher composition. No doubt, Judicial Precedents, across the country should maintain uniformity, and that there should be harmony in deciding a point of law, to be followed, but that does not mean that a High Court cannot decide a question of law, on its own, but have to simply follow the decision, decided by another High Court. In a given case, when a Central law is interpreted, every High Court is empowered to independently consider, the question of law, dehors the decisions of other High Court." 14. Let us also consider few decisions on precedents- "(i) Halsbury's Laws of England sets out only three exceptions to the rule of precedents and the following passage is found in paragraph 578 of Vol. 26, Fourth Edition. "...There are, however, three and only three, exceptions to this rule; thus (1) the Court of Appeal is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) it is bound to refuse to follow a decision of its own which although not expressly overr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision of a Division Bench of the same High Court.... The rule that a court should follow the decision of another Court of coordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmond's jurisprudence, 11th Edn. at page 199 to 217. (1) A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court. (2) A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. (3) A precedent loses its binding force if court that decided it overlooked an inconsistent decision of higher court. (4) xx xx xx xx xx (5) Precedents sub silentio are not regarded as authoritative.A decision passed sub silentio when the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave got to be respected and the procedure for developing the law has to be one of evolution. (ix) The Hon'ble Chief Justice Pathak, speaking for the Constitution Bench, in Union of India v. Raghubir Singh reported in AIR 1989 SC 1933, said: "The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court. (x) In Sundaradas Kanyalal Bhathija v. The Collector, Thane reported in AIR 1991 SC 1893, 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 demand that where a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question (see Food Corporation of India v. Yadav Engineer and Contractor AIR 1982 SC 1302). (ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench. (iii) Where there are conflicting decisions of courts of coordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions. (d) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act ratio decidendi. ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been the law at the time, has ceased to have that character owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 146-47.)" 336. It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes. 339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in (2003) 7 SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in 2002 (7) SCC 01, SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores v. State of Orissa and Others, reported in AIR 1966 SC 1686 and Krishan Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
