STATE OF BIHAR versus KALIKA KUER @ KALIKA SINGH AND ORS.

BRIJESH KUMAR, J. Thi~ is an appeal preferred by the State of Bihar against the judgment and order dated 25.9. I 989 passed by the Patna High Court declaring, Sections I 5 (I) and I 5 (2) of the Bihar Consolidation of Holdings and Prevention ofFragmentation Act, I 956 (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 u/ti'a 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 Ors. v. State of Bihar and Ors, the same questions have been considered and decided inter a/ia 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.

pp. 921–922, margin F

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 con-ection 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 ban-ed 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 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.

p. 922, margin C

It has been submitted on behalf of the appellant that the Full Bench decision, impugned herein, is in direct conflict with the decision in of Ramkril Singh (supra), in which case also same or similar arguments grounds were raised. Our attention has been drawn to Paragraph 78A impugned Judgment, delivered on behalf of two Hon 'ble Judges Hon'ble Judge concurring with it, holding that the decision in the Ramkrit Singh (supra) is not binding, having been rendered per We quote the relevant paragraph 78A which reads as follows:

pp. 922–923, margin H

"78A. As noticed hereinbefore, the Special Bench in Ram Kiral case did not consider the question as to whether the consolidation authorities are courts of limited jurisdiction or not and thus an observation that the civil court while disposing of the revival thereof at the end of the consolidation proceedings, merely pass a decree in tenns of the decision of the consolidation authorities. The said observations must be held to have been per incuriam in as much as in the cases where the jurisdiction civil court is not barred in terms of Section 4(b) or Section Act, the civil court cannot pass a decree only in terms of the of the consolidation authorities after revival of the suit. observations, therefore, are not binding upon this court. situation the civil court will have jurisdiction to decide suits relating to such matter in respect whereof its jurisdiction is not barred

p. 923, margin B

in terms of section 4(b) or Section 37 of the said Act"

p. 923, margin A

The reason which has been indicated to hold that the decision case of Ramkril Singh (supra) was per incuriam is that it did not consider question as to whether the comolidation authorities are courts 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 consolidation authority. It is observed that cases where jurisdiction court is not barred in terms of Section 4(b) or Section 37 of the Act, 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 the case of Ramkrit Singh (supra) may not appear to be correct or to be against the provisions of the Act but that would not be a valid to hold that the earlier judgment was rendered per incuriam or that would not be binding on the Bench of a coordinate jurisdiction. In other points no reference has been made to the Full Bench decision of Singh (Supra).

p. 923, margin E

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:

p. 924, margin A

"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 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

p. 924, margin B

leave the House of Lords to rectify the mistake." Lord Godard CJ in Huddersfield Police Authorities case observed that where I ( 2 at

p. 924, margin D

( 2 (1944) I ( 2 at 300.

p. 924, margin E

ltd, I a Court that 466, 2 (1955) 2 1

p. 924, margin E

ltd I (1956) 3

p. 924, margin F

Singleton (1958) 485, (1957) 3

p. 924, margin F

(1954) (1954) 2 ER;

p. 924, margin G

2 (1955) I (1954) Ch.479. I incuriam contention rejected

p. 924, margin G

of although overruled Court of court ( (1955) 3 (1947) 2 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.

pp. 924–925, margin G

In a decision of this Court reported in [2000] 4 S.C.C. 262 Govt. of Andhra Pradesh and Anr. v. B. Satyanarayana Rao (Dead) by Lrs., it has been held as follows:

p. 925, margin A

"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

p. 925, margin B

law"

p. 925, margin C

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.

p. 925, margin D

In State of U.P. and Anr. v. Synthetics and chemicals ltd. and Anr. [1991] 4 sec 139, this court observed:

p. 925, margin D

'"lncuria' 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"'

p. 925, margin E

In Fuerst Day Lawson ltd. v. Shivaraj Patil, [2001] 6 SCC. 356, this Court observed:

p. 925, margin F

"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 "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."

pp. 925–926, margin G

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.

p. 926, margin B

In Dr. Vijay Laxmi Sadho v. Jagdish. [2001] 2 SCC it has been observed as follows:

p. 926, margin F

"As the learned Single Judge was not in agreement with the view expressed in Devi/al 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

p. 926, margin F

jurisdiction whether on the basis of"different arguments" or otherwise, .•

p. 926, margin G

v. KALIKA on a question of law, it is a larger Bench for resolution conflicting judgments to operate, to sacrifice certainty of law. propriety forms the basis of at all costs".

p. 927

In Pradip Chandra Parija and others, (2002] I SCC I, it has been two Judges does not agree with the Judges, the only appropriate course another Bench of three Judge and that the judgment concerned is incorrect larger Bench of five Judges.

p. 927, margin B

The decision and reasoning i.e. in the case of Ramkrit Singh, run contrary to each other on almost per incuriam has been misapplied in the case of Ramkrit Singh, (supra).

p. 927, margin A

Hence the case is liable to be it in the light of this judgment and We order accordingly while allowing of the High Court. Costs easy. S.K.S.

p. 927, margin D