Full Judgment Text
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CASE NO.:
Appeal (civil) 5654 of 1990
PETITIONER:
State of Bihar
RESPONDENT:
Kalika Kuer @Kalika Singh & Ors.
DATE OF JUDGMENT: 25/04/2003
BENCH:
R.C. Lahoti & Brijesh Kumar.
JUDGMENT:
JUDGMENT
BRIJESH KUMAR, J.
This is an appeal preferred by the State of Bihar against the
judgment and order dated 25.9.1989 passed by the Patna High Court
declaring, Sections 15 (1) and 15 (2) of the Bihar Consolidation of
Holdings and Prevention of Fragmentation Act, 1956 (for short ‘the
Act’), ultra vires of Articles 13 and 14 of the Constitution. It appears
that the question of vires, interpretation and scope of various
provisions of the Act came to be considered by a Full Bench
consisting of three Hon’ble judges of the Patna High Court and
considering the points raised and some decisions rendered earlier,
the Full Bench held Section 15 of the Act ultra vires and further held
that certain categories of disputes and matters could be entertained
and decided by the civil court despite the restrictions placed under
section 4(b) and 4(c) of the Act and bar of jurisdiction of Civil Court
u/s 37 of the Act. The first and the foremost submission put forward
by learned counsel for the appellant for consideration of this Court is
that in an earlier Full Bench decision of the Patna High Court reported
in AIR 1979 Patna 250, Ramkrit Singh and Others versus State of
Bihar and Ors, the same questions have been considered and
decided inter alia the question of the validity of Section 15 and the
impact of Sec. 4(b), Sec. 4(c) and Section 37 of the Act. The vires
of Section 15 of the Act has been upheld in the case of Ramkrit
Singh (supra) by the Full Bench, including the bar of jurisdiction of
the Civil Court in respect of matters covered by notification u/s 3
read with Section 4(b) and 4(c) of the Act.
The provision contained under Section 4 (b) provides that after
a Notification is published under Section 3(1) of the Act, no suit or
other legal proceeding falling in the area notified, shall be
entertained by any Court and Section 4(c) provides that every
proceeding for correction of records and for declaration of rights or
interest in any land or any other right, pending before any other Court
or authority shall stand abated. Section 15 of the Act provides that the
Consolidation Officer shall grant to every raiyat to whom holding has
been allotted under the Scheme of Consolidation, a Certificate which
shall be a conclusive proof of the title of such raiyat and similar
certificate is provided to every under-raiyat having a right of
occupancy or not but having been allotted a land under the
Consolidation Scheme. It is also considered to be a conclusive proof
of the title of the under-raiyat . Section 37 attaches finality to the
decisions and orders passed under the Act and the jurisdiction of the
civil court is barred to entertain any suit or proceedings in respect
thereof. The impugned judgment besides declaring Section 15 ultra
vires has also diluted the effect of the provisions contained under
Section 4 (b), 4(c) and 37 of the Act, while holding that pending
suits shall not abate unless specific order of abatement is passed by
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the civil court and that the suit would revive and proceeded with in
accordance with law, in the event of cancellation of Consolidation
Scheme or on its completion. And where the claim in respect of
declaration of rights or interest in the land is incidental, such suits
pending before the civil court or other authorities shall not abate. Bar
of Section 37 has also been curtailed.
It has been submitted on behalf of the appellant that the Full
Bench decision, impugned herein, is in direct conflict with the
decision in the case of Ramkrit Singh (supra), in which case also
same or similar arguments and grounds were raised. Our attention
has been drawn to Paragraph 78A of the impugned Judgment,
delivered on behalf of two Hon’ble Judges and third Hon’ble Judge
concurring with it, holding that the decision in the case of Ramkrit
Singh (supra) is not binding, having been rendered per incuriam .
We quote the relevant paragraph 78A which reads as follows:
"78A. As noticed hereinbefore, the Special Bench
in Ram Kirat Singh’s case did not consider the
question as to whether the consolidation authorities
are courts of limited jurisdiction or not and thus it
made an observation that the civil court while
disposing of the suits after revival thereof at the
end of the consolidation proceedings, would
merely pass a decree in terms of the decision of the
consolidation authorities. The said observations
must be held to have been rendered per incuriam
in as much as in the cases where the jurisdiction of
the civil court is not barred in terms of Section
4(b) or Section 37 of the Act, the civil court
cannot pass a decree only in terms of the decision
of the consolidation authorities after revival of the
suit. The said observations, therefore, are not
binding upon this court. In such a situation the
civil court will have jurisdiction to decide suits
relating to such matter in respect whereof its
jurisdiction is not barred either in terms of section
4(b) or Section 37 of the said Act"
The reasons which has been indicated to hold that the decision
in the case of Ramkrit Singh (supra) was per incuriam is that it did
not consider the question as to whether the consolidation authorities
are courts of limited jurisdiction or not. Hence, an observation was
made that civil court while disposing of suits after revival of their
jurisdiction at the end of consolidation proceedings would merely pass
a decree in terms of decision of the consolidation authority. It is
observed that cases where jurisdiction of civil court is not barred in
terms of Section 4(b) or Section 37 of the Act, "the civil court cannot
pass a decree only in terms of decision of the consolidation
authorities" after revival of the suit. Whatever has been held or
observed in the case of Ramkrit Singh (supra) may not appear to be
correct or may seem to be against the provisions of the Act but that
would not be a valid ground to hold that the earlier judgment was
rendered per incuriam or that decision would not be binding on the
Bench of a coordinate jurisdiction. In respect of other points no
reference has been made to the Full Bench decision of Ramkrit
Singh (Supra).
At this juncture we may examine as to in what circumstances a
decision can be considered to have been rendered per incuriam. In
Halsburry’s Laws of England (Fourth Edition) Vol.26: Judgment
and Orders Judicial Decisions as Authorities (pages 297-298, Para
578) we find it observed about per incuriam as follows:
"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 coordinate jurisdiction while
covered the case before it, in which case it must
decide which case to follow or when it has acted
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in ignorance of a House of Lords decision, in
which case it must follow that decision; or when
the decision is given in ignorance of the terms of
a statute or rule having statutory force . A
decision should not be treated as given per
incuriam, however, simply because of a deficiency
of parties , or because the court had not the
benefit of the best argument, and, as a general
rule, the only cases in which decisions should be
held to be given per incuriam are those given in
ignorance of some inconsistent statute or binding
authority . Even if a decision of the Court of
Appeal has misinterpreted a previous decision of
the House of lords, the Court of Appeal must
follow its previous decision and leave the House of
Lords to rectify the mistake."
Lord Godard CJ in Huddersfield Police Authorities case observed
that where a case or statute had not been brought to the Court’s
attention and the court gave the decision in ignorance or forgetfulness
of the existence of the case or statute, it would be a decision rendered
in per incuriam.
In a decision of this Court reported in 2000 (4) S.C.C. 262
Govt. of Andhra Pradesh and Anr. Vs B. Satyanarayana Rao
(Dead) by Lrs., it has been held as follows:
"Rule of Per Incuriam can be applied where a Court
omits to consider a binding precedent of the same
court or the superior court rendered on the same issue
or where a court omits to consider any statute while
deciding that issue. We therefore find that the rule of
per incuriam cannot be invoked in the present case.
Moreover a case cannot be referred to a larger Bench
on mere asking of a party. A decision by two judges,
unless it is demonstrated that the said decision by any
subsequent change in law or decision ceases to laying
down a correct law"
According to the above decision, a decision of the coordinate
Bench may be said to be ceased to be good law only if it is shown that
it is due to any subsequent change in law.
In State of U.P. and Another Vs. Synthetics and chemicals
Ltd. & Anr. 1991 (4) S.C.C. 139, this court observed:
" ‘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’. (Young versus
Bristol Aeroplane Co. Ltd.) . 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 Fuerst Day Lawson Ltd. Vs Shivaraj V. Patil (2001) 6 SCC.
356, this Court observed:
" A prior decision of the Supreme Court on identical
facts and law binds the Court on the same points of
law in a latter case. In exceptional instances, where
obvious inadvertence or oversight a judgment fails to
notice a plain statutory provision or obligatory
authority running counter to the reasoning and result
reached, the principle of per incuriam may apply.
Unless it is a glaring case of obtrusive omission, it is
not desirable to depend on the principle of judgment
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"per incuriam". It has to be shown that some part of
the decision was based on a reasoning which was
demonstrably wrong, for applying the principle of per
incuriam."
Looking at the matter, in view of what has been held to mean
by per incuriam, we find that such element of rendering a decision in
ignorance of any provision of the statute or the judicial authority of
binding nature, is not the reason indicated by the Full Bench in the
impugned judgment, while saying that decision in the case of
Ramkrit Singh (supra) was rendered per incuriam. On the other
hand, it was observed that in the case of Ramkrit Singh (supra) the
Court did not consider the question as to whether the consolidation
authorities are courts of limited jurisdiction or not. In connection
with this observation, we would like to say that an earlier decision
may seems to be incorrect to a Bench of a coordinate jurisdiction
considering the question later, on the ground that a possible aspect of
the matter was not considered or not raised before the Court or more
aspects should have been gone into by the Court deciding the matter
earlier but it would not be a reason to say that the decision was
rendered per incuriam and liable to be ignored. The earlier judgment
may seem to be not correct yet it will have the binding effect on the
latter bench of coordinate jurisdiction. Easy course of saying that
earlier decision was rendered per incuriam is not permissible and the
matter will have to be resolved only in two ways either to follow
the earlier decision or refer the matter to a larger Bench to examine
the issue, in case it is felt that earlier decision is not correct on merits.
Though hardly necessary, we may however, refer to a few decisions
on the above proposition.
In Dr. Vijay Laxmi Sadho versus Jagdish 2001 (2) S.C.C. it
has been observed as follows:
"As the learned Single Judge was not in
agreement with the view expressed in Devilal
Case it would have been proper, to maintain
judicial discipline, to refer the matter to a larger
Bench rather than to take a different view. We
note it with regret and distress that the said course
was not followed. It is well-settled that if a Bench
of coordinate jurisdiction whether on the basis of
"different arguments" or otherwise, on a question
of law, it is appropriate that the matter be referred
to a larger Bench for resolution of the issue rather
than to leave two conflicting judgments to
operate, creating confusion. It is not proper to
sacrifice certainty of law. Judicial decorum, no
less than legal propriety forms the basis of judicial
procedure and it must be respected at all costs".
In Pradip Chandra Parija and others Vs. Pramod Chandra
Patnaik and others 2002 (1) S.C.C. 1, it has been held that where a
Bench consisting of two Judges does not agree with the Judgment
rendered by a Bench of three Judges, the only appropriate course
available is to place the matter before another Bench of three Judge
and in case three Judge Bench also concludes that the judgment
concerned is incorrect then the matter can be referred to a larger
Bench of five Judges.
The decision and reasoning in the two judgments of the Full
Benches i.e. in the case of Ramkrit Singh (Supra) and one impugned
in this appeal run contrary to each other on almost all points. In our
view the doctrine of per incuriam has been misapplied by the High
Court to the earlier decision in the case of Ramkrit Singh (supra).
Hence the case is liable to be remanded to the High Court to
consider it in the light of this judgment and to dispose it of, in
accordance with law. We order accordingly while allowing the
appeal and setting aside the judgment of the High Court.
Costs easy.
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Young vs. Bristol Aeroplane Co. Ltd. (1944) I KB 718 at 729 (1944) 2 All ER 293 at 300.
In Hudderfield Police Authority vs. Waton (1947) KB 842 (1947) 2 All ER 193.
Young vs. Bristol Aeroplane Co. Ltd. (1944) 1 KB 718 at 729 (1944) 2 All ER 293 at 300. Se
e
also Lancaster Motor Co. (London Ltd. vs. Bremith Ltd. (1941) 1 KB 675 For a Divisional C
ourt
decision disregarded by that court as being per incuriam, See Nicholas vs. Penny (1950) 2KB
466, 1950 2
All ER 89.
Morvelle Ltd. vs. Wakeling (1955) 2 QB 379 (1955) 1 All ER 708 C.
Bryers vs. Canadian Pacific Streamships Ltd. (1957)
1 QB 134, (1956) 3 All ER 560 CA Per Singleton LJ, affd. Sub nom. Canadian Pacific Streamsh
ip Ltd. versus Bryers
(1958) AC 485, (1957) 3 All ER 572.
1. A. and J. Mucklow Ltd. vs. IRC (1954) Ch. 615,
(1954) 2 All ER ; 508 CA, morelle Ltd. versus Wakeling (1955) 2 QB 379, (1955) 1 All ER 7
08 CA, See also Bonsor
versus Musicians Union (1954) Ch.479, (1954) 1 All ER 822 CA, where the per incuriam conten
tion was rejected and,
on appeal to the house of Lords although the House overruled the case which bound the Court
of Appeal, the House
agreed that that court had been bound by it; see (1956) AC 104, (1955) 3 All ER 518 HL.
Williams versus Glasbrook Bros Ltd (1947) 2 All ER 884 CA
(1944) 1 KB 718; (‘1944) 2 All ER 293
AIR 1960 SC 936: (1960) 3 SCR 378
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