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Hence, the first question has to be answered in the affirmative. Re:

Question No. (ii)

11.1 The binding nature of precedent is, of course, subject to several well-known exceptions. Some of the recognised exceptions to the rule of stare deems, where a decision will not be binding as a precedent are: (a) when there is a subsequent statutory modification at variance with the decision; (b) a different view being taken by Courts in higher tiers, subsequently; (c) where a decision is found to have been rendered per incuriam, that is, in ignorance or oversight of relevant statutory provisions, or binding decisions of Courts in higher tiers; (d) where a decision which passes sub-silentio, that is when the particular point of law involved in the decision is not perceived by the Court or present to its mind. In this case, we are concerned with the exception falling under the category of decisions given per incuriam. In Hundgund's case, supra, the learned Single Judge has relied on two decisions in this behalf and I will refer to them.

11.3 In the case of Municipal Corporation of Delhi v Gurnam Kaur, the Supreme Court held that a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. In regard to concept of sub-silentio, the Court cited the following passage from Salmond on Jurisprudence (12th Edition, page 153) with approval, after observing decisions "sub-silentio" were those which are decided without argument, without reference to the crucial words of the rule, and without citation of authority and were not binding as precedents:

"A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour, but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B, point B is said to pass sub-silentio".