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Miabhoy, J.

29. With the greatest respect, I regret I am unable to agree with the view taken by the majority as to the correct interpretation of Section 87 of The Bombay Reorganisation Act, 1960. and the application of the principle of co-ordinate jurisdiction.

30. The question which arises for determination by this Full Bench is whether the High Court of Gujarat is bound by the judicial precedents created . before 1st of May 1960 in the composite High Court of Bombay. This question arose, for the first time, before a Division Bench of this High Court consisting of the learned the then Chief Justice S. T. Desai and myself in the Anand Municipality v. Union of India, Special Civil Application No. 119 of 1960. At that time, our attention was drawn to a Full Bench decision of the High Court of Andhra reported in (S) AIR 1955 Andh 87 (FB). The question that was considered by that Court was identical with the question which arose be-fore the Division Bench of this High Court. The question before the Andhra High Court, which came to be established under almost the same circumstances in which the High Court of Gujarat came to be established with only one exception, was the same which arose before the Division Bench of this High Court. The question was considered by the Andhra High Court from three aspects, viz. (i) whether the composits High Court of Madras was a Court of co-ordinate jurisdiction with the newly created High Court of Andhra, and, if so, whether the decisions of the composite Madras High Court were binding on the Andhra High Court on the principle of judicial comity; (ii) whether the decisions of the composite Court were binding on the principle of 'stare decisis'; and (iii) whether the precedents of the composite Madras High Court were binding under Section 53 of the Andhra State Act (30 of 1953), which corresponds to Section 87 of the Bombay Reorganisation Act, 1960. The Full Bench of the Andhra High Court decided that the above two Courts were Courts of co-ordinate jurisdiction, that the decisions of the composite High Court were binding on the newly created Court on the principle of judicial comity, and that these decisions were also binding on the principle of 'stare decisis.' The Full Bench, however, took the view that those precedents were not preserved under Section 53 of the Andhra State Act (30 of 1953). We then found some difficulty in agreeing with some of the reasons on which the Andhra decision was found. The question which was raised before the Division Bench of this Court was of considerable Importance and its answer was bound to have far-reaching consequences on the system of judicial administration in the State -of Gujarat.

44. Judges exercising jurisdiction in the subordinate Courts were subordinate to the High Court. They were subordinate not only to Division Benches and Full Benches, but also to single Judges of the High Court. A judicial precedent created in the High Court of Bombay, whether by a single Judge or a Division Bench or a Full Bench, was binding on all the subordinate Courts on the ground that these Courts were under the appellate and revisional jurisdiction of the High Court and thus the relationship existing between the two sets of Courts was one of subordination and superiority. When a judicial precedent of the High Court of Bombay was cited in a subordinate Court, the latter Count was bound to follow it A failure to follow it was an error of law and was bound to be corrected by a Court of superior jurisdiction. Exactly for the same reason, a judicial precedent created by a Division Bench of the High Court was binding on a single Judge of the High Court. But, as. Division Benches and Full Benches were Courts of co-ordinate jurisdiction, the judicial precedents created by any one of them were not binding On the other on the ground of subordination. However, the Division Benches considered themselves bound by the judicial precedents of other Division Bencles on the principle of judicial comity. The practice which was followed by the High Court of Bombay in this respect was the same which was followed by the High Court of England and the Court of Appeal Cases. The principles which guided the latter Court in the mailer of judicial precedents have been set out by that Court in (1944) 1 KB 718. All Division Benches considered themselves to be bound by the judicial precedents created by Full Benches not only on the ground of judicial comity but also on the ground that a Full Bench consisted of more number of Judges than a Division Bench. If a judicial precedent created by a Full Bench required to be reconsidered, the the usual practice was to refer the matter to a Full Bench consisting of a more number of Judges than the number which constituted the former Full Bench whose decision was sought to he revised. The practice was to regard the precedent of a larger Full Bench as having greater efficacy and binding authority than the precedent of a Full Bench consisting of a smaller number of Judges. This practice was criticised by Beaumont, C. J-in 43 Bom LR 864 M p. 868: (AIR 1941 Bom 408 at P. 409). It is not necessary to express any opinion, in this case as to whether this criticism was or was not justified. However, the observations made by the learned Chief Justice in the above case ignores the important fact that, when a Full Bench consists of a larger number of Judges, then, the decision is not merely of a greater number of Judges, but it is one arising from out of the joint deliberations and discussions of a greater number of Judges and that this fact may give to the decision of a Full Bench consisting of a larger number of Judges a greater binding authority than that of a Full Bench consisting of a smaller number of Judges. In Young's case, (1944) 1 KR 718 it was observed that, when two Division Benches of the Court of Appeal Cases create different precedents on the same subject, then, both the precedents hold the field and a subsequent Division Bench can follow the precedent of any of the two Division Benches. Such a practice was not recognized by the Bombay High Court. In that Court, as a general rule, a Division Bench followed the precedent of another Division Bench. If any conflict between the decisions of two Division Benches was brought to the notice of another Division Bench, then, the practice was to get the matter referred to the Chief Justice. Such a practice was also prevalent in the High Court of Calcutta as appeals from the observations made in AIR 1960 SC 936. This practice appears to have been approved by the Supreme Court in two recent judgments reported in AIR 1960 SC 936 (supra) and AIR 1960 SC 1.118 at p. 1122. A precedent created by a Full Bench, did not perhaps have the effect of over-ruling a Precedent created by a Division Bench of a Full Bench of smaller size. But, the logical consequence of the observations made by the Supreme Court in the aforesaid two cases is that, when a Full Bench differs from a Division Bench on a point of law, apart from the fact that the subordinate Courts are bound by the decision of the Full Bench, the Division Benches also are bound to follow the decision of the Full Bench on account of the operation of the principle of judicial comity. As already observed, the practice in the Bombay High Court was to follow the precedent of a larger Full Bench in preference to the precedent of a smaller Full Bench. However, according to Young's case, (1944) 1 KB 718 both the decisions would hold the field. In view of the observations made by Their Lordships of the Supreme Court in the aforesaid two cases, the view that should prevail in India is the view that the decision of a larger Full Bench should be followed in preference to the decision of a smaller Full Bench.

45. From the aforesaid observations, it is quite clear that, in the composite High Court of Bombay (i) a judicial precedent, whether created by a single Judge or by a Division Bench, was binding on all the subordinate Courts on the-ground that the latter Courts were subject to the appellate and revisional jurisdictions of that for mere Court; (ii) that a judicial precedent created by a single Judge of the High Court was binding on all other single Judges of that Court on the principle of judicial comity, now approved by the Supreme Court; (iii) that a judicial precedent created by a Division Bench was binding on a Judge sitting singly in the High Court on the principle that the latter was subordinate to the former; (iv) that a judicial precedent created by a Division Bench was binding on another Division Bench on the principle of judicial comity; (v) that the decision of a Full Bench was binding on a Division Bench on the same principle of judicial comity and perhaps because of the greater-number of Judges participating jointly in the decision; and (vi) that a decision of a Full Bench consisting of a smaller number of Judges was liable to be displaced by a decision of another Full Bench consisting of a larger number of Judges. The principle on which the decision of a larger Full Bench displaced, the decision of a smaller Full Bench is not clearly stated anywhere. but, perhaps it is founded both on the principle of judicial comity and the greater number of Judges participating jointly in the decision. In any case, there is no doubt that the composite High Court of Bombay considered the precedent created by a larger Full Bench as binding on all Division Benches of the High Court in preference to the decision of a smaller Full Bench.

V. I may make the following observations on a point which is connected but which does not directly arise for decision. In Young's case, (1944) 1 KB 718, it has been laid down that when there are two conflicting decisions of the same Court, then, the Court is entitled and bound to decide which of the two conflicting decisions of its own, it will follow. I have given my anxious thought to this principle and, on the whole, I have come to the conclusion that this principle is not consistent with the principle of judicial comity on which the principle of co-ordination is based. In my judgment, if it is found that a subsequent decision has not followed a former decision, then, in my judgment, on the principle of judicial comity, it must be held that the subsequent Court committed a breach of that principle and it is improper to evolve another principle which will perpetuate the breach for ever. If a Court has committed a breach of the principle, then, its decision is not entitled to respect and it is the duty of the co-ordinate Court to set the matter right and to follow the first precedent which did not happen to be followed by the second precedent. If, however, it disagrees with the precedent created by the first decision, then, the proper course is to. refer it to a Full Bench.