Allahabad High Court
Murali Singh Son Of Sheonath Singh And ... vs The Deputy Director Of Consolidation, ... on 9 May, 2007
Author: B.S. Chauhan
Bench: B.S. Chauhan, Rajes Kumar
JUDGMENT B.S. Chauhan, J.
1. This matter is cognizable by the learned Single Judge as the writ petition has been filed against the judgment of the Deputy Director of Consolidation exercising his revisional powers under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter called the 'Act'). The learned Single Judge while hearing the matter, expressed opinion that the matter is required to be hear by the Division Bench as it involved an important question of law. The learned Single Judge vide dated 11.01.1995 framed the question of law as to whether the Consolidation Officer was competent to decide the question of title in the grove land and the question of its partition amongst the co sharers. The Hon'ble the Chief Justice vide order dated 15th March, 1995 directed the matter to be placed before the Division Bench.
2. The issue involved herein regarding the competence of the Consolidation Officer to adjudicate upon the title in land or grove or partition of shares amongst the co sharers was dealt with by the learned Single Judge in Kaushar v. Ahmad Khan 1962 ALJ 564 wherein it was observed as under:
The Consolidation of Holdings Act, 1953, was placed on the statute book for providing for the consolidation of agricultural holding in Uttar Pradesh. The scheme of consolidation could not possibly be successful unless all disputes relating to title in respect of different holdings in a village were first adjudicated upon, and decided finally between the parties. If that were not so, even after the consolidation of holdings has taken place, rival claimants would continue to agitate matters in respect of their rights and there was likely to be fragmentation of the holdings again as the disputes may be decided one way or the other. That is the main reason why the Act makes specific provision for the disposal of all disputes relating to 1 questions of title in the course of the consolidation proceedings themselves.
(Emphasis added).
3. At a subsequent stage, the matter was referred to the Full Bench in Dalel and Anr. v. Baroo and Ore. AIR 1967 Add. 59, wherein the majority of the Hon'ble Judges considered the scheme of the Act and held as under:
Section 4 to 12, some of which have been summarised above, figures in Chapter II, which is headed "Revision and Correction of Maps and Records". The said sections must therefore, be held to provide a complete code for the disposal of objections arising at various stages in connection with the correction of maps and records of the local area concerned. There is nothing in these sections to exclude grove-lands from their operation. On the contrary, the facts (1) that consolidation proceedings are in respect of a local area without exclusion of any land there from, and (2) that the word 'land' - which under section 3(5) also means land used for horticulture, i.e. grove land - is used in Sub-section (5) of Section 12, it is clear that an objection regarding title to grove land has also to be made under Section 12, and it is for that reason that all suits or proceedings in which a question of title of that nature is pending are required to be stayed.
(Emphasis added).
4. Such a view was found necessary in view of the fact that Section 49 of the Act bars the jurisdiction of the Civil Court to take cognizance of a suit involving the question of title to land as that would be a matter in regard to which an application could be filed before the Consolidation Officer and if the Civil Court is granted power to deal with the matter, a long time may be taken and such issues may not be finalized which would frustrate the very purpose of consolidation.
5. The question does arise as to whether in such a fact situation where the case is squarley covered by the Full Bench judgment of this Court, the reference is required to be answered or it is desirable to decide the issue by the Division Bench.
6. There can be no dispute that the judgment of the larger Bench is binding on a smaller Bench. It is so required by judicial propriety and judicial discipline. Vide Union of India and Anr. v. K.S. Subramanian ; State of U.P. and Ors. v. Ram Chandra Trivedi ; Assistant Collector of Central Excise, Chandan Nagar, W.B. v. Dunlop India Ltd. and Ors. ; Union of India and Anr. v. Raghubir Singh (dead) by L.Rs. etc ; N Meera Rani v. Govt. of Tamil Nadu and Anr. ; General Manager Telecom v. A. Srinivasa Rao and Ors. ; Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangh ; N.S. Giri v. Corporation of City of Manglore and Ors. ; Sub Inspector Roop Lal and Anr. v. Lt. Governor Delhi and Ors. ; S.H. Rangappa v. State of Karnataka and Ors. ; P. Ramachandra Rao v. State of Karnataka ; Union of India and Anr. v. Hapsoli Devi and Ors. ; Babu Parasu Kaikadi (dead) by L.Rs. V. Babu (dead) by L.Rs. AIR 2004 SC 754; and Commissioner of Central Excise, Ahmedabad v. Orient Fabrics Pvt. Ltd. AIR 2004 SC 956.
7. A Constitution Bench of the Hon'ble Supreme Court in Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. laid down certain guidelines in this regard summarizing the legal position in this regard as under:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions : (i) the above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down herein above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness if the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing.
8. A Division Bench of this Court in Indian Oil Corporation Ltd. v. State of U.P. and Ors. has held that if the subsequent smaller Bench of the Hon'ble Supreme Court has referred to a larger Bench judgment of the Hon'ble Supreme Court, the subsequent judgment of the smaller Bench cannot be ignored. However, Court has to interpret the smaller Bench judgment in a manner so as to make it consistent with the larger Bench decision of the Supreme Court for the reason that smaller Bench cannot overrule the larger Bench.
9. The use of precedent is an indispensable foundation upon which to decide what is the law and its application in individual case. It provides a basis for orderly development of legal rules. Vide Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors. .
10. The Hon'ble Apex Court deprecated the practice not following the settled legal proposition and unsettling the legal issues using very strong words in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering works (P) Ltd. and Anr. , observing as under:
When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.
11. Similar view has been reiterated in State of Punjab and Ors. v. Satnam Kaur and Ors. 2006 AIR SCW 103.
12. While dealing with a similar issue, the Hon'ble Supreme Court in T.P. Thakkar v. R.M. Patell , observed as under:
Precedents which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his 1Court and of this Court. The reason for the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.
13. In Union of India v. Prithpal Singh , the Hon'ble Supreme Court held that the binding precedent is necessary to be followed in order to maintain consistency in judicial decision and enable an organic development of the law. It also provides an assurance to an individual as to the consequence of transactions forming part of his daily affairs.
14. In Mamleshwar Prasad and Anr. v. Kanahaiya Lal (Dead) through LRs. , the Hon'ble Supreme Court held as under:
Certainty of the 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. We do not intend to detract from the rule that, in exceptional instances where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.
15. In Sundarjas Kanyalal Bhathija and Ors. v. The Collector, Thane, Maharashtra and Ors. , the Hon'ble Supreme Court held as under:
One must remember that 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.
16. A Constitution Bench of this Court in Rana Pratap Singh and Ors. v. State of U.P. and Ors. 1995 AO 200, deprecated the practice of making reference by theBench and not following the binding decisions. The Full Bench of this Court while dealing with a similar issue in Radhey Shyam and Anr. v. State of U.P. 1984 ALJ 666, observed as under:
Before concluding it may be mentioned that it was contended by the learned Counsel for the applicants that the learned single Judge was not competent to make this reference as the Division Bench decision of this Court in State v. Gyan Chand (supra) was binding on him. This contention is without force. It was open to the learned single Judge to refer the question framed by him to a Full Bench for decision as he was not in agreement with the view taken in State v. Gyan Chand Criminal Misc. Case No. 747 of 1971 decided on 17.09.1974, "We are, with respect, unable to concur or accept as correct these observation, in so far as, they imply that a single Judge can seek, by reference, reconsideration of a binding decision of the Division Bench and much less that the question framed by him, doubting the correctness of a Division Bench, be referred for decision to a Full Bench.
17. The Constitution Bench also referred to and relied upon the provisions contained in Rule 6 of Chapter V of the Allahabad High Court Rules which reads as under:
6. Reference to a larger Bench.- The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein.
18. The Bench further held as under:
Seen in the light of what has been discussed it must inevitably follow that the ratio of the two Full Bench decisions, namely, Chhanga Prasad Sahu v. State of U.P. and Ors. 1984 AWC 145; and Kailash Nath and Ors. v. State U.P. and Ors. 1985 ACJ 393, was clearly binding upon the learned Single Judge find it was thus incumbent upon him to follow it. No occasion for its reconsideration arose. Having arrived at this conclusion, we have no option but to send the matter back to the learned Single Judge for decision on merits in accordance with law.
(Emphasis added).
19. In Coir Board Ernakulam and Anr. v. Indira Devai P.S. and Ors. , the Hon'ble Supreme Court, while dealing with a similar reference by a Bench of two Hon'ble Judges doubting the correctness of seven Judges' Bench judgment in Bangalore Water Supply & Sewerage Board v. A. Rajappa , held as under:
The judgment delivered by the seven learned Judges of this Court in Bangalore Water Supply case, does not, in our opinion, require any reconsideration on a reference being made by a two Judge Bench of this Court, which is bound by the judgment of the larger Bench. The appeals shall, therefore, be listed before the appropriate Bench for further proceedings.
20. In Government of A.P. and Anr. v. B. Satyanarayana Rao (dead) by L.Rs. and Ors. AIR 2000 SC 1729, the Apex Court observed that a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another Bench of 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.
21. In Lily Thomas, etc. etc. v. Union of India and Ors. AIR 2000 SC 1650, the Hon'ble Supreme Court held as under:
The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinate jurisdiction of equal strength has to be followed and practiced. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view, notwithstanding the earlier judgment.
22. A Constitution Bench of the Hon'ble Supreme Court in Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. AIR 2002 SC 296, while dealing with a similar situation held that judgment of a co-ordinate Bench or larger Bench is binding. However, if a Bench of two Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances it can be followed, the proper course for it to adopt is to refer the matter to a Bench of three learned Judges setting out, 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.
23. In Union of India and Anr. v. Hansoli Devi , the Hon'ble Supreme Court reiterated the same view placing reliance upon its earlier, judgment in Pradip Chandra Parija (supra).
24. In view of the above, the law on the issue can be summarised that a judgment of a larger or even co-ordinate Bench is binding. The question of reference to a larger Bench would arise only in exceptional circumstances that the judgment of the earlier Bench is so very wrong that it cannot be held to be a good law under no circumstance and different view is permissible provided the Court is satisfied that by accepting the earlier judgment, the party to the lis may be deprived of his fundamental or statutory rights. Where the Bench doubts the correctness of a judgment of a larger Bench, the Bench of equal numbers of Hon'ble judges is required to make the reference.
25. The instant case requires to be considered in the light of the aforesaid settled legal proposition.
26. The learned Single Judge has taken note of the larger Bench judgment in Dalel and Anr. (supra) in paragraph six of the reference order. In paragraph 7, the learned Single Judge observed as under:
Frankly speaking, prima facie, I am of the view that if the Consolidation Officer has got authority to decide the question of title of the parties, it is not understandable as to how he cannot decide the question of its partition amongst the co-sharers, inasmuch as the question of title is implicit in every claim of a co-sharer for partition.
27. The aforesaid order does not reveal anywhere that the learned Single Judge was having any doubt regarding the correctness of the Full Bench judgment in Dalel and Anr. (supra). Therefore, the question referring the issue to a larger Bench or expressing the desire that the matter required to be heard by the, Division Bench was unwarranted. Even the Division Bench is bound by the Full Bench judgment and the Full Bench has decided the question of law giving authoritative pronouncement. In such a fact situation, the order of reference - "the case required to be heard by the Division Bench" itself is unwarranted and uncalled for and in such a fact situation, we do not consider it proper to proceed with the case.
28. The matter may be placed before the learned Single Judge for hearing and as the matter is pending for the last three decades, we request the learned, Single Judge to decide the matter at the earliest.