9911796707
TMI Blog1989 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... two dates, the benefit of section 30(2) will be applied to such award made between the aforesaid two dates. If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage that the benefit of section 30(2) will be applied. But, in every case, the award of the Collector or of the court must have been made between April 30, 1982 and September 24, 1984. - Civil Appeal No. 2839, 2840 of 1989, 834, 835 of 1986, - - - Dated:- 16-5-1989 - Judge(s) : RANGANATH MISRA., S. NATARAJAN JJ. S.L.P. (Civil) No. 6477 of 1983, W.P. Nos. 204, W.P. Nos. 205, W.P. Nos. 206 of 1984, W.P. Nos. 12832 of 1985, Civil Appeal No. 6667, Civil Appeal No. 6668, Civil Appeal No. 6669, Civil Appeal No. 6670, Civil Appeal No. 6671, Civil Appeal No. 6672, Civil Appeal No. 6673, Civil Appeal No. 6674, Civil Appeal No. 6675, Civil Appeal No. 6676, Civil Appeal No. 6677, Civil Appeal No. 6678, Civil Appeal No. 6679, Civil Appeal No. 6680, Civil Appeal No. 6681, Civil Appeal No. 6682, Civil Appeal No. 6683, Civil Appeal No. 6684, Civil Appeal No. 6685 of 1983, Civil Appeal No. 4404 of 1985, S.L.P. (Civil) Nos. 8643, S.L.P. (Civil) Nos. 8661 of 1985, S.L.P. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation, it also raised the rate of interest payable on the compensation, and taking into account the change in the law effected by the Land Acquisition (Amendment) Act, 1984 (referred to hereinafter as "the Amendment Act"), it awarded solatium at 30 per cent. of the market value. The judgment and order of the High Court is the subject of these appeals. When these cases came up before a Bench of two learned judges (E. S. Venkataramiah and R. B. Misra JJ.) on September 23, 1985, they referred to two earlier decisions of this court and expressed the view that the question set forth above required re-examination by a larger Bench of five judges. It was further directed that the other questions involved in the petitions would be considered after the aforesaid question had been resolved by the larger Bench. The two decisions referred to in the order of the learned judges are K. Kamalajammanniavaru (decd. by Lrs.) v. Special Land Acquisition Officer [1985] 1 SCC 582 (SC) decided by 0. Chinnappa Reddy and Sabyasachi Mukharji JJ. on February 14, 1985, and Bhag Singh v. Union Territory of Chandigarh [1985] 3 SCC 737 (SC) decided by P. N. Bhagwati C. J., A. N. Sen and D. P. Madon JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of citizens and regulating the functions of the State flows from, the decisions of superior courts. "There was a time, " observed Lord Reid, "when it was thought almost indecent to suggest that judges make law they only declare it ... But we do not believe in fairy tales any more." In countries such as the United Kingdom where Parliament, as the legislative organ, is supreme and stands at the apex of the constitutional structure of the State, the role played by judicial law-making is limited. In the first place, the function of the courts is restricted to the interpretation of laws made by Parliament, and the courts have no power to question the validity of parliamentary statutes, the Diceyan dictum holding true that the British Parliament is paramount and all powerful. In the second place, the law enunciated in every decision of the courts in England can be superseded by an Act of Parliament. As Cockburn CJ. observed in Canon Selwyn, ex parte [1872] 36 J P 54 "There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An act of the Legislature is superior in authority to any court of law." And Ungoed-Thomas J. in Cheney V. Conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of paramount importance that the law declared by this court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so, they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law. 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 principles In the decisions of a court But, like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for readjustment in a changing society, a readjustment of legal norms demanded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... environment, but also of new insights and perspectives both on old problems and on the new problems thrown up by changes entering the cultural and social heritage. Not infrequently, in the nature of things, there is a gravity-heavy inclination to follow the groove set by precedential law. Yet, a sensitive judicial conscience often persuades the mind to search for a different set of norms more responsive to the changed social context. The dilemma before the judge poses the task of finding a new equilibrium, prompted not seldom by the desire to reconcile opposing mobilities. The competing goals, according to Dean Roscoe Pound, invest the judge with the responsibility "of proving to mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires." The reconciliation suggested by Lord Reid in "The Judge as Law-Maker" lies in keeping both objectives in view, "that the law shall be certain, and that it shall be just and shall move with the times." An elaboration of his opinion is contained in Myers v. Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ensured the preservation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society. The question then is not whether the Supreme Court is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest court overturn its own pronouncements. . In an examination of this question, it would perhaps be appropriate to refer to the response of other jurisdictions, specially those with which the judicial system in India has borne an historical relationship. The House of Lords in England provides the extreme example of a judicial body which until recently disclaimed the power to overrule itself. It used to be said that the House of Lords did never overrule itself but only distinguished its earlier decisions. An erroneous decision of the House of Lords could be set right only by an Act of Parliament. (See London Street Tramways Co. Ltd. v. London County Council [1898] AC 375 (HL) and Radcliffe v. Ribble Motor Services Ltd. [1939 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arting from it (the "unforeseeable consequences" criterion) (Steadman v. Steadman [1976] AC 536,542 (HL). (b) A decision ought not to be overruled if to do so would involve change that ought to be part of a comprehensive reform of the law. Such changes are best done "by legislation following a wide survey of the whole field" (the "need for comprehensive reform" criterion) (DPP v. Myers [1965] AC 1001, 1022 (HL) ; Cassell and Co. Ltd. v. Broome [1972] AC 1027, 1086 (HL) ; Haughton v. Smith [1975] AC 476, 500 (HL). 5. In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step (the "precedent merely wrong" criterion) (Knuller v. DPP [1973] AC 435,455). 6. A decision ought to be overruled if it causes such great uncertainty in practice that the parties' advisers are unable to give any clear indication as to what the courts will hold the law to be (the "rectification of uncertainty" criterion). 7. A decision ought to be overruled if, in relation to some broad issue or principle, it is not considered just or in keeping with contemporary social co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an overruling is that a decision is manifestly wrong and its maintenance is injurious to the public interest." In the United States of America, the Supreme Court has explicitly overruled its prior decision in a number of cases and reference will be found to them in the judgment of Brandeis J. in State of Washington v. Dawson and Co. [1924] 264 U. S. 219 ; 68 L. Ed. 646, where he said (see AIR 1955 SC 671 ). "The doctrine of stare decisis should not deter us from overruling that case and those which follow it. The decisions are recent ones. They have not been acquiesced in. They have not created a rule of property around which vested interests have clustered. They affect solely matters of a transitory nature. On the other hand, they affect seriously the lives of men, women and children, and the general welfare. Stare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command. The instances in which the courts have disregarded its admonition are many. " Elaborating his point in his dissenting judgment in David Burnel v. Coronado Oil and Gas Co. [1931] 285 US 393 ; 76 L. Ed. 815, Brandeis J. observed (see AIR 1955 SC 671 ) : "Stare decisis is us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be corrected in appeal to the Privy Council. The learned judge observed (at p. 672) : "There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." And reference was made to the circumstance that article 141 of the Constitution made the law declared by this court binding on all courts in India. Speaking with reference to the specific case before the court, the learned judge referred to the far-reaching effect of the earlier decision in United Motors' case [1953] SCR 1069, on the general body of the consuming public, and stated that the error committed in the earlier decision would result in perpetuating a tax burden erroneously imposed on the people, giving rise to a consequence "manifestly and wholly unauthorised." The learned judge observed (at p. 673): "It is not an ordinary pronouncement declaring the rights of two private individuals 'inter se'. It involves an adjudication on the taxing power of the States as against the consuming public generally. If the decision is erroneous, as indeed we conceive it to be, we owe it to the public to protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings are not static." In Lt. Col. Khajoor Singh v. Union of India [1961] 2 SCR 828, the majority of this court emphasised that the court should not depart from an interpretation given in an earlier judgment of the court unless there was fair amount of unanimity that the earlier decision was manifestly wrong. In Keshav Mills Co. Ltd. v. CIT [1965] 56 ITR 365 (SC) ; [1965] 2 SCR 908, 921, this court observed that a revision of its earlier decision would be justified if there were compelling and substantial reasons to do so. In Sajjan Singh v. State of Rajasthan [1965] SCR 933, 947 ; AIR 1965 SC 845, 855, the court laid down the test "Is it absolutely necessary and essential that the question already decided should be reopened ?", and went on to observe: "the answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good and the validity and compelling character of the considerations urged in support of the contrary view." There can be no doubt, as was observed in Girdhari Lal Gupta v. D. N. Mehta [1971] 3 SCR 748, that where an earlier relevant statutory provision has not been brought to the notice of the court, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be envisaged with further juridical experience, and when common jurisprudential values linking different national systems of law may make a consensual pattern possible. But that lies in the future. There was some debate on the question whether a Division Bench of two judges is obliged to follow the law laid down by a Division Bench of a larger number of judges. Doubt has arisen on the point because of certain observations made by 0. Chinnappa Reddy J. in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 231. Earlier, a Division Bench of two judges, of whom he was one, had expressed the view in T. V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361, that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle a person under sentence of death to invoke article 21 of the Constitution and demand the quashing of the sentence of death. This would be so, he observed, even if the delay in the execution was occasioned by the time necessary for filing an appeal or for considering the reprieve of the accused or some other cause for which the accused himself may be responsible. This view was found unacceptable by a Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for several generations by judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal [1975] 3 SCR 211, a Division Bench of three judges found it right to follow the law declared in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion be binding, it is not necessary that it should be a decision rendered by the Full Court or Constitution Bench of the court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority, decisions of this court in future should be rendered by Division Benches of at least three judges unless, for compelling reasons, that is not conveniently possible. Upon the aforesaid considerations and in view of the nature and potential of the questions raised in these cases, we are of the view that there was sufficient justification for the order dated September 23, 1985, made by the Bench of two learned judges referring these cases to a larger Bench for reconsideration of the question decided in K. Kamalajammanniavaru [1985] 1 SCC 582 and Bhag Singh [1985] 3 SCC 737. The preliminary objection raised by learned counsel for the respondents to the validity of the reference is overruled. We now come to the merits of the reference. The reference is limited to the interpretation of section 30(2) of the Land Acquisition (Amendment) Act, 1984. Before the enactment of the Amendment Act, solatium was provided under section 23(2) of the Land Acquisition A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or Supreme Court on appeal against any such award ?" Are they limited, as contended by the appellants, to appeals against an award of the Collector or the court made between April 30, 1982, and September 24, 1984, or do they include also, as contended by the respondents, appeals disposed of between April 30, 1982, and September 24, 1984, even though arising out of awards of the Collector or the court made before April 30, 1982. We are of opinion that the interpretation placed by the appellants should be preferred over that suggested by the respondents. Parliament has identified the appeal before the High Court and the appeal before the Supreme Court by describing it as an appeal against "any such award". The submission on behalf of the respondents is that the words "any such award" mean the award made by the Collector or court, and carry no greater limiting sense ; and that in this context, upon the language of section 30(2), the order in appeal is an appellate order made between April 30, 1982, and September 24, 1984, -in which case the related award of the Collector or of the court may have been made before April 30, 1982. To our mind, the words "any such award" cannot bear the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r language. On the contrary, as he says, the terms in which section 30(2) is couched indicate a limited extension of the benefit. The Amendment Act has not been made generally retrospective with effect from any particular date and such retrospectivity as appears is restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provision concerned. Since it is necessary to spell out the degree of retrospectivity from the language of the relevant provision itself, close attention must be paid to the provisions of section 30(2) for determining the scope of retrospective relief intended by Parliament in the matter of enhanced solatium. The learned Attorney-General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date. Delays in superior courts now extend to limits which were never anticipated when the right to approach them for relief was granted by the statute. If it was intended that section 30(2) should refer to appeals pending before the High Court or the Supreme Court between April 30, 1982, and September 24, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award made by the Collector or the court. We think that what Parliament intends to say is that the benefit of section 30(2) will be available to an award by the Collector or the court made between the aforesaid two dates or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the court made between the said two dates. The word 'or' is used with reference to the stage at which the proceeding rests at the time when the benefit under section 30(2) is sought to be extended. If the proceeding has terminated with the award of the Collector or of the court made between the aforesaid two dates, the benefit of section 30(2) will be applied to such award made between the aforesaid two dates. If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage that the benefit of section 30(2) will be applied. But, in every case, the award of the Collector or of the court must have been made between April 30, 1982 and September 24, 1984. In the result, we overrule the statement of the law laid down in Mohinder Singh's case [1986] 1 SCC 365 and in Bhag Singh's case [1985] 3 SCC 737 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
