w w w . L a w y e r S e r v i c e s . i n



EHVEES, Hindustan Petroleum Corporation Limited Dealer, Manjeri, Represented by M. Muhammed Gadhafi, Power of Attorney Holder, Shoukathali v/s The District Collector, Malappuram & Others


Company & Directors' Information:- U. P. POWER CORPORATION LIMITED [Active] CIN = U32201UP1999SGC024928

Company & Directors' Information:- D B POWER LIMITED [Active] CIN = U40109MP2006PLC019008

Company & Directors' Information:- HINDUSTAN PETROLEUM CORPORATION LIMITED [Active] CIN = L23201MH1952GOI008858

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Active] CIN = L40105WB1919PLC003263

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Amalgamated] CIN = U40101WB2003PLC097340

Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

Company & Directors' Information:- S L S POWER CORPORATION LIMITED [Active] CIN = U40109AP2005PLC047008

Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- S. E. POWER LIMITED [Active] CIN = L40106GJ2010PLC091880

Company & Directors' Information:- E O S POWER INDIA PRIVATE LIMITED [Active] CIN = U32109MH1985PTC037094

Company & Directors' Information:- D C POWER LIMITED [Strike Off] CIN = U40109TG1996PLC025996

Company & Directors' Information:- A R C INDIA PETROLEUM PRIVATE LIMITED [Active] CIN = U11202TG2009PTC063249

Company & Directors' Information:- POWER CORPORATION OF INDIA LIMITED [Amalgamated] CIN = U50101WB1997PLC084060

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

Company & Directors' Information:- N M S POWER PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089747

Company & Directors' Information:- P R B POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG1995PTC020647

Company & Directors' Information:- S V G POWER PRIVATE LIMITED [Active] CIN = U40300AP2012PTC084435

Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- K S DEALER PRIVATE LIMITED [Active] CIN = U51909WB2009PTC134541

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- S R PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U23200MH1999PTC122909

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- POWER AND POWER PVT LTD [Active] CIN = U31300AS1989PTC003282

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- S B S POWER PRIVATE LIMITED [Strike Off] CIN = U40100AP2012PTC083965

Company & Directors' Information:- N. P. PETROLEUM LIMITED [Strike Off] CIN = U23201UP1995PLC018153

Company & Directors' Information:- B & G POWER LIMITED [Active] CIN = U40105PB2010PLC033765

Company & Directors' Information:- R H PETROLEUM PRIVATE LIMITED [Active] CIN = U23209MH1996PTC101701

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- N. K. DEALER PVT. LTD. [Strike Off] CIN = U51109WB1994PTC064119

Company & Directors' Information:- POWER INDIA PVT LTD [Strike Off] CIN = U31102WB1983PTC036315

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- U S POWER PRIVATE LIMITED [Under Process of Striking Off] CIN = U40103MH2009PTC189364

Company & Directors' Information:- K P M POWER PRIVATE LIMITED [Strike Off] CIN = U40102KA2008PTC046804

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- S K POWER INDIA PRIVATE LIMITED [Strike Off] CIN = U31101KA2006PTC039172

Company & Directors' Information:- K S M PETROLEUM PRIVATE LIMITED [Active] CIN = U01120TZ1978PTC000800

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- G M DEALER PRIVATE LIMITED [Active] CIN = U51909WB2011PTC163629

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- T C POWER PRIVATE LIMITED [Strike Off] CIN = U40101PB2009PTC033405

Company & Directors' Information:- A. M. PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U51524MH2014PTC255581

Company & Directors' Information:- H. & T. POWER PRIVATE LIMITED [Active] CIN = U40106MH2016PTC287646

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- A C R POWER PRIVATE LIMITED [Strike Off] CIN = U74900UP2010PTC040987

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- S V S PETROLEUM PRIVATE LIMITED [Active] CIN = U51909DL2002PTC116940

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

Company & Directors' Information:- A. R. POWER PRIVATE LIMITED [Strike Off] CIN = U74999DL2007PTC161616

Company & Directors' Information:- HINDUSTAN CORPORATION PRIVATE LIMITED [Dissolved] CIN = U74900KL1901PTC000424

Company & Directors' Information:- HINDUSTAN LTD. [Active] CIN = U99999MH1917PTC000472

Company & Directors' Information:- INDIA PETROLEUM COMPANY LIMITED [Dissolved] CIN = U99999MH1936PTC002453

Company & Directors' Information:- HINDUSTAN CORPORATION LIMITED [Dissolved] CIN = U99999MH1949PLC007790

    W.A. No. 706 of 2020

    Decided On, 08 June 2020

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Appellant: T. Sethumadhavan, Sr. Advocate, P.V. Preethi, M.V. Balagopal, Advocates. For the Respondents: R1 to R8, N. Manoj Kumar, Spl. G.P., R9, R. Ranjith, SC, R10, Johnson Gomez, O.M. R11 & R12, Shalina, CGC.



Judgment Text


S. Manikumar, C.J.

1. Instant writ appeal is filed challenging the judgment in W.P.(C)No.32956 of 2019 dated 18th March, 2020 by which a learned Single Judge disposed of the writ petition following the judgment in W.A.No.27 of 2020 and connected cases, holding that the No Objection Certificate issued in favour of 10th respondent and the commencement of the outlet will be subject to the direction contained in the judgment of the Division Bench.

2. Writ petition has been filed challenging the proposal to open a petroleum retail outlet by the 10th respondent. The challenge is mainly made on the two grounds (1) proposal is against Ext.P1 guidelines issued by the Indian Road Congress with regard to the distance (2) the challenge is made based on the violation on the conditions stipulated under Ext.P3 order passed by the District Collector while permitting to reclaim and fill up the land by the predecessor in interest of the 10th respondent. Reliefs sought for in the writ petition are as hereunder:

“a) Issue a writ of mandamus or other appropriate writ or order, directing the respondents 1 to 9 to take up and consider Ext.P4 objection filed by the petitioner before issuing a No Objection Certificate to the 10th respondent for commencement of a petroleum fuel station in Old Survey No.11/2 and 12/1, new Resurvey No.6/7, Block No.52 of Manjeri Village along the side of Kozhikode-Ooty State Highway at Rajeev Gandhi Bye Pass Road, Manjeri;

b) To direct the respondents 1 to 9 to strictly comply with the guidelines issued under Ext.P1 before granting No Objection Certificate to the 10th respondent;

c) To declare that the proposed petroleum fuel outlet by the 10th respondent is located within the prohibited distance under Ext.P1 guidelines and to pass consequential orders.”

3. Learned Single Judge, after considering the contentions raised by both sides disposed of the writ petition as hereunder:

“5. It is submitted by the learned counsel on all sides that the Writ Appeal has been finally heard and disposed of in terms of the interim order. In the instant case, there was an interim order granted on 10.01.2020 on the basis of the directions contained in the judgment of the learned Single Judge.

6. However, in view of the interim order of the Division Bench, I am of the opinion that this case is also liable to be governed by the interim orders and the judgment of the Division Bench in the above case. Though the learned senior counsel appearing for the respondents submits that the withdrawal of the IRC Guidelines has been stayed by the Madras High Court, I am of the opinion that this Court would primarily be bound by the judgment of the Division Bench in the Writ Appeal.

In the above view of the matter, this writ petition is disposed of. The judgment of the Division Bench in W.A No.27 of 2020 and connected cases will govern this writ petition also. Appropriate steps shall be taken by the respondents to comply with the directions contained in the said judgment.”

4. According to Mr.T.Sethumadhavan, learned Senior Counsel for the appellant, the learned single judge failed to consider the second ground on which issuance of no objection certificate was challenged by the appellant. At this juncture, we deem it fit to extract what is the second ground of challenge.

“D. Learned Single Judge failed to consider the second ground on which the issuance of No Objection Certificate was challenged by the appellant. As can be seen from Ext.P3 proceedings of the 1st respondent a restriction was imposed against the grantee not to reclaim or fill up the land further. This is not considered by the 3rd respondent before issuing the N.O.C.”

He further contended that it is evident from Ext.P3 proceedings of the 1st respondent, a restriction was imposed against the grantee not to reclaim or fill up the land further. According to the appellant, this is not considered by the third respondent before issuing the NOC. Learned counsel for the appellant also submitted that the learned Single Judge has failed to notice that the decision of the Division Bench in the Writ Appeal was solely based on withdrawal of IRC guidelines. The notification No.28 came into effect from 1.12.2019. Material fact that the above notification has been stayed by the Hon'ble High Court of Madras in two writ petitions namely, W.P.(C)No.4976/2020 and W.P.M.P.No.5876/2020. Eventhough the interim order was placed before the learned Single Judge, there is no consideration to the effect of the interim order. Therefore, the appellant submits that the matter requires reconsideration, since the learned Single Judge did not go into the merits of the case.

5. Heard learned counsel for the parties and perused the materials available on record.

6. In the affidavit filed on behalf of Essar Oil Limited, Kochi (10th respondent in the writ petition), it is averred that the NOC was issued on the basis of the consent by the land owner. Thereafter, the owner of the property has also submitted an appropriate application under the Municipality Building Rules for making constructions in the proposed site. In the writ petition, a statement has also been filed on behalf of the Central Government, wherein, it is stated that the proposal for access permission for construction of an approach road to the proposed new petrol/diesel retail outlet mentioned in the writ petition falls along State Highway. Therefore, it is contended by the 10th respondent in the writ petition that it is the respective State Government, which is responsible for issuing any guideline and granting access permission to the fuel station along the State Highways.

7. Ministry of Road Transport and Highways issued Ext.P1 guidelines/ norms for access permission to fuel stations, private properties, rest area complexes and such other facilities along National Highways only.

8. In Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others reported in (1976) 1 SCC 671 the Hon'ble Apex Court held thus:

“48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a “person aggrieved” and has no locus standi to challenge the grant of the no-objection certificate.

49. It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well-established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.”

9. Appellant is a dealer of Hindustan Petroleum Corporation Limited, Malappuram district and the above judgment applies to the case on hand. Reliance has been placed on an interim order passed by the Hon'ble Madras High Court in W.P.No.4976 of 2020 and W.M.P.No.5876 of 2020 dated 27.2.2020 to contend that the writ court has failed to consider the same.

10. Reliance has also been placed on Kusum Ingots and Alloys Ltd v. Union of India and Ors reported in (2004) 6 SCC 254 to contend that when a decision has been taken by a court in India, relating to a law on central subject, the same is binding on all the courts in India.

11. Heard the learned counsel for the parties and perused the material on record.

12. On the first submission regarding an interim order passed by a High Court, whether it has any precedential value, we deem it fit to consider few decisions –

“(i) In Empire Industries Vs. UOI AIR 1986 SC 662, the Hon'ble Supreme Court has made it clear that interim orders passed by the Courts are not precedent within the meaning of Article 141.

58. Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different Courts sometimes pass different interim orders as the Courts think fit. It is a matter of common knowledge that the interim orders passed by particular Courts on certain considerations are not precedents for other cases which may be on similar facts. An argument is being built up now-a-days that once an interim order has been passed by this Court on certain factors specially in fiscal matters, in subsequent matters on more or less similar facts, there should not be a different order passed nor should there be any variation with that kind of interim order passed. It is submitted at the Bar that such variance creates discrimination. This is an unfortunate approach. Every Bench hearing a matter on the facts and circumstances of each case should have the right to grant interim orders on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have the right to vary or alter such interim orders. We venture to suggest, however, that a consensus should be developed in the matter of interim orders.

(ii) In Vishnu Traders v. State of Haryana 1995 Suppl (1) SCC 461, the Supreme Court has observed as under:-

"In the matters of interlocutory orders, principle of binding precedent cannot be said to apply. However, the need for consistency approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievance of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is an assurance of consistency, uniformity, predictability and certainty of judicial approach."

(iii) The Hon'ble Supreme Court in the case of State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha, (2009) 5 SCC 694. The Hon'ble Supreme Court held that

“interim directions based on tentative reasons, restricted to peculiar facts of the case involving extraordinary situation have no value of precedent and the interim order which does not finally and conclusively decide an issue cannot be a precedent. Apart from above, it is also settled law that the interim order and direction issued in a case binds the parties to that case only and that too, till the final decision of the matter by final judgment. Not only this but what is binding in the interim order is the ultimate direction and order which has been passed by the Court and any finding recorded in the interim order on any issue is not binding on even the parties in the same suit or litigation, what to say it be binding upon stranger to the litigation. Any decision on any issue in interim order is also not binding upon the same Court which has passed it. Because of this reason only the Court can decide and is required to decide the issues finally in final judgment uninfluenced by any prima facie finding given in interim order. Therefore, not only that, the interim order is not precedent for stranger to the litigation in which such order has been passed but also is not a precedent for the party to litigation in whose litigation such order has been passed. To that extent, there may be force in the submissions of the learned counsel for the petitioners and the counsels for the students who have been given admission by the petitioners but in the present facts of the case, it is no end of the controversy.”

13. As regards reliance on Kusum Ingots's case, under the Constitutional Scheme, each High Court established under Article 215 of the Constitution of India, exercise powers under Articles 226 and 227 of the Constitution of India. Under the Constitutional Scheme, every High Court is empowered to decide, a question of law, independently of what the other High Courts, have decided and for that matter, the decisions of the other High Courts, may have a persuasive value and they do not a binding precedent. It is true that there must be certain degree of certainty in the law, to be interpreted and applied to all the persons, to which, the Constitution of India, extends, but that principle, does not mean that a High Court is bound by the decision of another High Court, whether it is of the same strength or of a higher composition. No doubt, Judicial Precedents, across the country should maintain uniformity, and that there should be harmony in deciding a point of law, to be followed, but that does not mean that a High Court cannot decide a question of law, on its own, but have to simply follow the decision, decided by another High Court. In a given case, when a Central law is interpreted, every High Court is empowered to independently consider, the question of law, dehors the decisions of other High Court.”

14. Let us also consider few decisions on precedents –

“(i) Halsbury's Laws of England sets out only three exceptions to the rule of precedents and the following passage is found in paragraph 578 of Vol. 26, Fourth Edition.

“...There are, however, three and only three, exceptions to this rule; thus (1) the Court of Appeal is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) it is bound to refuse to follow a decision of its own which although not expressly overruled, cannot, in its opinion stand with a decision of the House of Lords and (3) the Court of Appeal is not bound to follow a decision of its own if given per incuriam.”

(ii) In M. Subbarayudu v. State reported in AIR 1955 Andhra 87, a Hon'ble Full Bench of the Andhra Pradesh High Court held that,- the binding nature of the precedents of one Court on another depends upon the fact whether such Courts are Courts of co-ordinate jurisdiction or not and co-ordinate Jurisdiction does not connote the same idea as concurrent jurisdiction or simultaneous jurisdiction. The connotation of the word 'co-ordination' is not the same as that of the words 'concurrence or simultaneity'. Simultaneity or coexistence is not a necessary ingredient of coordination. Co-ordination is more comprehensive and takes in successive acts of the same status or level.

(iii) In Anand Municipality v. Union of India reported in AIR 1960 Guj. 40, a Hon'ble Full Bench of the Gujarat High Court applied the principles of binding effect, declared in M. Subbarayudu's case (cited supra).

(iv) A Full Bench of the Gujarat High Court in State of Gujarat v. Gordhandas Keshavji Gandhi reported in AIR 1962 Guj. 128, has considered the question as to binding nature of judicial precedents. K. T. Desai, CJ., in his judgment, observed:

“Judicial precedents are divisible into two classes, those which are authoritative and those which are persuasive. An authoritative precedents is one which judges must follow whether they approve of it or not. It is binding upon them. A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration and to which they will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits.... A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i. e. a Bench of at least 3 Judges of a High Court is considered binding on all Division Benches of the same High Court.... A decision of a High Court Judge sitting singly is not legally binding on another Judge of the same High Court sitting singly. So also a decision of a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision of a Division Bench of the same High Court.... The rule that a court should follow the decision of another Court of coordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmond's jurisprudence, 11th Edn. at page 199 to 217.

(1) A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.

(2) A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute.

(3) A precedent loses its binding force if court that decided it overlooked an inconsistent decision of higher court.

(4) xx xx xx xx xx

(5) Precedents sub silentio are not regarded as authoritative.

A decision passed sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind.”

(v) In State of Orissa v. Sudhansu Sekar Misra, reported in AIR 1968 SC 647, the Hon'ble Supreme Court explained as to when a decision can be taken as a precedent, and held as follows:-

"A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem, reported in 901 AC 495.

"Now before discussing the case of Allen v. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.

It is not profitable task to extract a sentence here and there from a judgment and to build upon it....."

(vi) In Eknath Shankarrao Mukhawar v. State of Maharashtra reported in AIR 1977 SC 1177, it was held that judicial discipline as well as decorum suggested only one course when a Bench wanted to differ from the decision of a co-ordinate court and that was to refer to a larger Bench.

(vii) In Ayyaswami Gounder v. Munuswamy Gounder reported in (1984) 4 SCC 376, it was held that a single Judge of a High Court not agreeing with earlier decision of single Judge of the same Court, should refer the matter to a Larger Bench and propriety and decorum do not warrant his taking a contrary view.

(viii) In Sonal Sihimappa v. State of Karnataka and Ors., reported in AIR 1987 SC 2359, it was observed, In a precedent-bound judicial system, binding authorities have got to be respected and the procedure for developing the law has to be one of evolution.

(ix) The Hon'ble Chief Justice Pathak, speaking for the Constitution Bench, in Union of India v. Raghubir Singh reported in AIR 1989 SC 1933, said:

“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 principle in the decisions of a court.”

(x) In Sundaradas Knyalal Bhathija v. The Collector, Thane reported in AIR 1991 SC 1893, the law is stated thus:

“17. It would be difficult for us to appreciate the judgment of the High Court. One must remember the 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. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is subversion of judicial process not to follow this procedure.”

(xi) In Philip Jeyasingh v. The Jt. Regr. of Co-op. Societies reported in 1992 (2) MLJ 309, a Full Bench of the Hon'ble Madras High Court, held as follows:

“49. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process the ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges. This is because Judges, while deciding a case will give their own reasons but may not distinguish their remarks in a right way between what they thought to be the ratio decidendi and what were their obiter dicta, things said in passing having no binding force, though of some persuasive power. It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case". A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application.”

(xii) A Hon'ble Division Bench of Bombay High Court in CIT v. Thana Electricity Supply Ltd., reported in (1994) 206 ITR 727 (Bombay), held as follows:

“(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein.

(b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction.

(c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court may be summed up as follows:

(i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question (see Food Corporation of India v. Yadav Engineer and Contractor AIR 1982 SC 1302).

(ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench.

(iii) Where there are conflicting decisions of courts of coordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions.

(d) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have only persuasive effect.”

(xiii) In Union of India v. Dhanwanti Devi, reported in (1996) 6 SCC 44, the Hon'ble Supreme Court has explained, what constitutes a precedent, and held as follows:-

"Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla reported in (1993) Suppl. 2 SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. T he only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi. ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.

Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents.”

(xiv) In Government of W.B v. Tarun Roy and others, reported in (2004) 1 SCC 347, as regards binding precedent of a judgment, the Hon'ble Supreme Court at paragraph 26, observed as follows:-

“26.......... If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.

(xv) In State of Punjab v. Devans Modern Breweries Ltd., reported in (2004) 11 SCC 26, the Hon'ble Supreme Court explained the doctrine of precedents and when a judgment becomes per incuriam. Paragraphs 334 to 336, 339 and 343 of the judgment are relevant and they are as follows:-

“334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a smaller bench structure:

"A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and 'malleable'... No word has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-ended. (See Dias Jurisprudence, 5th Edn., p. 136.)"

335. However, although a decision has neither been reversed nor overruled, it may cease to be "law" owing to changed conditions and changed law. This is reflected by the principle "cessante ratione cessat ipsa lex".

"... It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 146- 47.)"

336. It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes.

339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree

Please Login To View The Full Judgment!

with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in (2003) 7 SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in 2002 (7) SCC 01, SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores v. State of Orissa and Others, reported in AIR 1966 SC 1686 and Krishan Kumar Narula v. State of J. and K. reported in AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority. 343. It is also trite that the binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub silentio or per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores (cited supra) and K.K. Narula (cited supra) read together can be said to have been passed sub silentio or rendered per incuriam.” (xvi) In Raman Gopi v. Kunju Raman Uthaman reported in 2011 (4) KLT 458, a Hon'ble Full Bench of the Kerala High Court held that,- “when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co-equal judges or lesser number of judges of that court. Further, it is settled law that, if a decision has been rendered by the same High Court , then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value.” 15. Giving due consideration to the pronouncements of the Hon'ble High Court and the Full Bench decisions on precedents, we are of the view that powers conferred under Article 226 of the Constitution of India on each High Court is independent, and each High Court under Article 226 of the Constitution of India is empowered to decide independently notwithstanding the interim order granted by a High Court in India, and even when a final decision is rendered interpreting a Central law on the grounds of competence of legislation. Whether it be legislation, delegated or subordinate legislation, it is trite law considering the difference in the views expressed by different High Courts, on a particular subject or subjects, the Hon'ble Supreme Court has approved the views expressed by some High Courts and disapproved the contrary views expressed by other High Courts. On this proposition, we do not propose to burden the instant judgment with the decisions of the Hon'ble Supreme Court. 16. Giving due consideration to the decisions, we are of the view that the interim order of the Madras High Court in W.P.No.4976 of 2020 and W.M.P.No.5876 of 2020 dated 27.2.2020 has no binding effect on this court. Per contra, decisions of Hon'ble Division Bench of this court in W.A.No.27 of 2020 is binding on the writ court. 17. Considering the entire facts and circumstances of the case, we are of the view that there is no illegality or irregularity in the view taken by the learned Single Judge in the impugned judgment. Therefore, no interference of this court is required in the matter. Writ appeal fails and it is accordingly dismissed. Pending interlocutory applications, if any, shall stand closed.
O R