BHAWANI SINGH, C.J.

1. Petitioners in both the Writ Petitions (W. P. No. 177 of 2001 Jabalpur Bus Operators Association and others v. The State of M.P. and another and W. P. No. 1629 of 2001 Daya Chand Jain v. State of M.P. and another) have challenged the competence of Municipal corporation to impose toll on the entry of vehicles within the Municipal Limits under sub-sec. (6) of S. 132 of the M.P. Municipal Corporation Act, 1956 (for short the of 1956) and submit that the entry tax is being collected from the bus owners without any authority: more so when tax is being paid under S. 3 of the M.P. Motoryan Adhiniyam, 1991 (for short The Act of 1991). Section 6 of theof 1991 is similar to S. 6 of the Motor Vehicles Taxation Act, 1947 which imposes bar on any local authority to impose tax in respect of the motor vehicles in question. Contention is that tax is being paid by the petitioners for use of roads maintained by the State, therefore, they can bring in and take out the buses from the bus-stand since they pay tax for it. Petitioners depend on the decision in Madhya Pradesh State Road Transport Corporation v. Municipal Council, Mansa (M.P. No. 1540 of 1975). Municipal Corporation, Jabalpur maintains that sub-sec. (6) of S. 132 of the of 1956 authorises it to levy tax on entry of vehicles within its territorial limits. It seeks sustenance on the decision in Cantonment Board, Mhow v. Madhya Pradesh State Road Transport Corporation, AIR 1997 SC 2013 [LQ/SC/1997/695] .

2. Shri B. K. Rawat contended that decision of Apex Court in Municipal Council, Mansa (supra) is a later decision, therefore, it should be followed while Shri Sanjay K. Agrawal submitted that since this decision does not consider the effect of earlier decision in Cantonment Board. Mhow (supra), earlier decision should prevail as against the later. Therefore, learned Counsel for both sides submitted that there is a conflict between the two decisions of the Apex Court, both rendered by two Judge Bench seeking to follow one against the other. Besides, there is Full Bench decision of this court in State of M.P. v. Balveer Singh (2001)2 M.P.L.J. 644 holding that in case of conflict between decisions of co-equal Benches of Apex Court. High Court should follow the judgment which appears to it more elaborate and more accurate and in conformity with the scheme of the, following decision of this court in Municipal Corporation. Indore v. Smt. Ratnaprabha Dhanda, Indore, 1989 M.P. L.J. 20 and Amar Singh Yadav v. Shanti Devi, AIR 1987 Patna 191 (Full Bench). With this background and taking into consideration Apex Court decisions including Indian Oil Corporation Limited v. Municipal Corporation, AIR 1995 SC 1480 [LQ/SC/1995/508] , one of us (Dipak Misra, J.) thought it apposite that law laid down in Balveer Singh's case (supra) requires reconsideration, consequently, made reference to Larger Bench for consideration of the following question of law.

" In case of conflicting views between the decisions rendered by the co-equal Benches of the Apex Court, which view is to be followed by the High Court as a binding precedent"

Before considering the Apex Court decisions on this question, appropriate, it is to refer to the decisions of various High Courts since this question has confronted not only the High Courts but also the Apex Court from time to time, realising that theory of precedent and mandate of Article 141 of the Constitution of India requires exact approach by Courts to make the law clear, consistent and exact so that people and the Courts which are bound to follow them are not put to choice for following one or the other decisions and or be in a dilemma what to do.

3. In M/s New Krishna Bhavan, Malleswaram Bangalore-3 v. Commercial Tax Officer, No. IV Circle (Addl.) Bangalore AIR 1961 Mysore 3, it has been said in paragraph 10 that :

"10. In my opinion, the view expressed by the majority of the Judges on this point in the case reported in AIR 1959 SC 648 [LQ/SC/1959/3] is binding on this court, as the law declared by the Supreme Court to be binding on this Court that the actual decision of the case should proceed on that proposition. Nor is it necessary for such proposition to be the law declared by the Supreme Court that all the Judges shall express their views one way or the other on the point. In my opinion, if the majority of Judges of the Supreme Court in a particular case express a view on a proposition of law then that view of the majority of the Judges would be the law declared by the Supreme Court. That being my view, the opinion expressed by the majority of the Judges in the said case shall be held to be the law declared by the Supreme Court and binding on this Court."

Thereafter, it is said in paragraph 11 :

"11. The next question which arises for consideration is which of the two view - one expressed in 1958 SCJ 459 [LQ/SC/1958/21] : AIR 1958 SC 468 [LQ/SC/1958/21] and the other in AIR 1959 SC 648 [LQ/SC/1959/3] - will be binding on us. On this point again there is no doubt some difficulty. But in my opinion, it is the latest pronouncement of the Supreme Court which would be binding on us, when, in my opinion, the Supreme Court expressed its view on any particular point of law such expression of view shall be considered as overriding all contrary view expressed on the point in earlier decisions of the same Court. That being my conclusion on these questions the contention of Mr. T. Krishna Rao fails."

4. Full Bench decision of Madras High Court in R. Rama Subbarayalu Reddiar v. Rengammal (AIR 1962 Madras 450) examines the question with regard to High Court decisions. However, it is pertinent to quote, it being in line with some decisions of other High Courts holding that in case of conflict between two decisions by Bench consisting of same number of Judges, one which seems to be more correct, whether later or earlier, should be followed. In paragraph 4 of the judgment, it has been said that -

"4. Before we deal with the question, involved in the appeal, it is necessary to examine the propriety of the procedure adopted by the learned District Judge. The normal rule as to the precedents is that subordinate Courts are bound in the absence of any decision of the Supreme Court to follow the decision of the High Court to which they are subordinate. Where, however, there is a conflict between two decisions of the High Court, the rule to be adopted is as follows : where the conflict is between the judgment of a single Judge and a Bench or between a Bench and a larger Bench, the decision of the Bench or larger Bench as the case may be, will have to be followed. But where the conflict is between two decisions both pronounced by a Bench consisting of the same number of Judges and the subordinate court after a careful examination of the decision came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one. To enable the subordinate court to do so, the two apparently conflicting decisions must directly relate to and expressly decide the question that arises before the Court otherwise a subordinate court should follow that ruling which specially deals with the point. It will not be open to it for example to follow the other decision which only impliedly or indirectly or by way of a mere observation gave expression to a contrary view. It follows that the learned District Judge in the present case was not justified in refusing to follow the decision referred to in (1956) 2 Mad. LJ 288 : AIR 1956 Madras 680 for his preference a decision which impliedly decided the point as against the one that directly did so is neither consistent with established rules relating to precedents nor conducive to orderly administration of Justice."

5. In Full Bench decision of Allahabad High Court in U.P. State Road Transport Corporation v. State Transport Appellate Tribunal, U.P. Lucknow, AIR 1977 Allahabad 1, it is said

"12. It is noteworthy that the Supreme Court's decision in Mysore State Transport Corporation is later in time. Even if there is some conflict in the two Supreme Court decisions, we have to follow the law as declared in the later case of Mysore State Transport Corporation."

6. In Full Bench decision of Allahabad High Court in Gopal Krishna v. 5th Additional District Judge, Kanpur, AIR 1981 Allahabad 300, the court said in paragraphs 15 to 23 that -

"15. Article 141 of the Constitution provides that : "The law declared by the Supreme Court shall be binding on all Courts within the territory of India"

16. This Article gives a constitutional status to the theory of the precedent in respect of the law declared by the Supreme Court which is essential for a proper administration of justice. It is a basic principle of administration of justice that like cases should be decided alike. For this reason, a Judge tends to decide a case in the same way in which a similar case had been decided by another Judge. Every Court is bound to follow any case decided by a Court above it in the hierarchy and appellate Courts are bound by the previous decisions.

17. In Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661 [LQ/SC/1954/175] the Supreme Court observed :- " Article 141 which lays down that the law declared by this court shall be binding on all Courts shall be binding on all Courts within the territory of India quite obviously refers to Courts other than this Court."

18. Dealing with the utility of precedent, Lord Gardiner. L.C. observed in Davis v. Johnson, (1978)2 WLR 152 :- " Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules."

19. The Supreme Court has dealt with the binding nature of its pronouncements in a number of decisions. It is not necessary to refer to those cases. In a case where a High Court finds any conflict between views expressed by larger and smaller Benches of the Supreme Court, the Supreme Court said that proper course for such a High Court is to follow the opinion expressed by larger Benches of the Supreme Court in preference to those expressed by smaller Benches of the Court.

20. The difficulty, however, before us is slightly different and is not covered by the authority cited above. We are faced with a situation where there are conflicts between the two decisions of the Supreme Court given by Judges of equal strength. We are not concerned here with reasons which led to these conflicts.

21. Rupert Cross in his book on "Precedent in English Law" third edition page 133, has dealt with this matter in the following words :- "If there is an increasing tendency to recognise the possibility that previous decisions of the same Court may conflict, it is a tendency which is to be applauded. The Court's attention is frequently not drawn to all the relevant authorities, some cases are not particularly well argued, and unreserved Judgments are often delivered. It is useless to deplore these occurrences because they will continue as long as barristers, Judges and litigants remain human ........"

22. To meet a situation like the present reference may be made to a Full Bench decision of our Court in U. P. S. R. T. C. v. State Road Transport Tribunal, U.P. Lucknow, AIR 1977 All 1 [LQ/AllHC/1976/276] : 1976 All L.J. 683 where the Full Bench held : " Even if there is some conflict in the two Supreme Court's decisions, we have to follow the law as declared in the latter case of Mysore State Transport Corporation".

23. To the same effect is the view taken by a Full Bench of Karnataka High Court in Govindanaik G. Kalghatagi v. West Patent Press Co. Ltd., AIR 1980 Kant. 92 [LQ/KarHC/1979/57] and by Calcutta High Court in M/s Sovachand Mulchand v. Collector of Central Excise and Lands Customs, AIR 1968 Cal 174 [LQ/CalHC/1966/258] . Thus what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us."

Further the Court said in paragraphs 24 to 27 that :

"24. Counsel appearing for the petitioner submitted that since in Ram Swarup Rai's case, 1980 All LJ 651 the earlier decision given in Ratan Lal Singhals case, AIR 1980 SC 635 [LQ/SC/1979/342] had not been cited, the decision being in ignorance of a case which was binding on the court is per incuriam. Counsel urged that Ram Swarup Rai's decision does not have a binding authority. We are unable to agree with the submission of the learned Counsel for the petitioner. In Ballabhdas Mathuradas Lakhani v. Municipal Committee, Malkapur, AIR 1970 SC 1002 [LQ/SC/1970/173] , the Supreme Court held that a Supreme Court's judgment is binding on High Court and it can not be ignored on ground that relevant provision was not brought to the notice of the Supreme Court. To us, it appears that it is only in cases of decision of concurrent Courts that the doctrine of per incuriam can be applied. Thus, the law declared by the Supreme Court can not be ignored on that basis. A failure to cite authority of the earlier decision of the Supreme Court before it is not sufficient to render its latter decision per incuriam. Overruling a similar argument made in Ambika Prasad Misra v. State of U.P. 1980 RD 227 [LQ/SC/1980/264] : AIR 1980 SC 1762 [LQ/SC/1980/264] Krishna Iyer, J., agreed with the following observations made in Salmond 'Jurisprudence', page 215 (11th edition) :- " A decision does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned."

25. We, therefore, can not ignore the subsequent decision of the Supreme Court on the basis of the same being per incuriam.

26. Counsel appearing for the landlord contended that if there was any objection to the rule of law laid down in U. P. S. R. T. C. v. State Road Transport Tribunal, U.P. Lucknow, AIR 1977 All 1 [LQ/AllHC/1976/276] : 1976 All LJ 683, this Court should examine the merits of the contentions of the parties itself and follow the decision which may appear to be better in point of law. For the above proposition, reliance had been placed on a decision reported in Miles v. Jarvis (1983) 24 Ch. D. 633 at page 636, where Kay, J. observed :- "............The question is which of these two decisions I should follow and it seems to me that I ought to follow that of the Master of the Rolls, as being the better in point of law."

27. To the same effect is the law laid down by Jassel M. R. in Baker v. White (1877) 5 Ch. D. 183 (). We do not wish to express opinion on this aspect of the matter. We would only content ourselves by saying that since we are bound by the latter decision of the Supreme Court, we must follow the same. To us, it appears that the latter decision has impliedly overruled the earlier."

7. In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari, AIR 1980 Bombay 341, it is held that in case of conflict between earlier and later decisions of Supreme Court, each consisting of equal number of Judges, later decision prevails. However, learned Judges do not record any reasons for taking this line. Full Bench of Karnataka High court, Five Judge Bench in Govindanaik G. Kalghatagi v. West Patent Press Company Limited, AIR 1980 Kant. 92 , [LQ/KarHC/1979/57] said by majority, speaking through learned Chief Justice D. M. Chandrashekhar, in paragraph 5 that –

"5. In the light of pronouncements of the Supreme Court in Mattulal's case (AIR 1974 SC 1596 [LQ/SC/1974/162] ) (supra) and Subramanyam's case (AIR 1976 SC 2433 [LQ/SC/1976/247] ) (supra), Judges in Aramha's case (1974 (1) Kant LJ 344) (supra) did not lay down the law correctly and we overrule that decision. The answer to the question referred to this Bench, should in our opinion, be as follows : "If two decisions of the Supreme Court on a question of law can not be reconciled and one of them is by a larger Bench while the other is by a smaller Bench, it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Court."

While minority view by Jagannatha Shetty, J. holds otherwise. In paragraphs 7 to 10, it is said that :

"7. Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. On the same principle the law declared by the Supreme Court is also binding on all States and its officers. The principle underlined in this article is salutary in the interest of the administration of justice. The settled practice governing precedents has been given the force of a rule of law. It promotes consistency which is one of the great objectives of law.

8. In this context, it may not be out of place to mention that there should not be a tendency to read the observations of the Supreme Court as statutory enactments. Hidayatulla, J. (as he then was) speaking for the Supreme Court in Rajeshwar Prasad v. State of West Bengal, AIR 1965 SC 1887 [LQ/SC/1965/167] at p. 1891 para 8 observed : "............No doubt, the law declared by this Court binds Courts in India but it should always be remembered that this Court does not enact........"

8. In Sharma Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480 [LQ/SC/1967/39] , Shelat, J. speaking for the majority view observed :

"It is trite to say that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein." The question presented, therefore, has to be examined on these principles.

9. In Aramha's case, a Full Bench of three Judges of this court held that if several decisions of the Supreme Court are irreconcilable the latest pronouncement of the Supreme Court should be followed by the High Court. But in Rudrayya's case (AIR 1976 Kant 153 [LQ/KarHC/1976/54] ), a Division Bench of this Court held that where there are conflicting judgments, one of a larger Bench and another of a smaller Bench of the Supreme Court, the High Court must prefer to follow the decision of a larger Bench. This conclusion was based on the observation in Mattulal v. Radheylal AIR 1974 SC 1596 [LQ/SC/1974/162] at p. 1602 wherein, Bhagawati, J., speaking for the Supreme Court observed : " But whatever be the reason it can not be gainsaid that it is not possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T. B.'s case (1966 MPLJ 26) (SC) as against Kamala Soni's case (AIR 1969 NSC 186) as the former is a decision of a larger Bench than the latter. Moreover, on principle, the view taken in Sarvate T. B.'s case commends itself to us and we think that is the right view."

10. In Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455 [LQ/SC/1976/85] at p. 1467 para 38, Krishna Iyer, J. said :

"Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of subordinate Court's casual observations, generalisations and sub-silentio determinations must be judiciously read by Courts of co-ordinate jurisdiction. . . . . . ."

11. In Union of India v. K. S. Subramaniam, AIR 1976 SC 2433 [LQ/SC/1976/247] at p. 2437 para 12, Beg, J. (as he then was) advised the High Courts to follow the practice that has been followed by the Supreme Court whenever there is a conflict between the views expressed by a larger Bench and a smaller Bench of the Supreme Court. The learned Judge said :

"But we do not think that the High Court acted correctly in skirting the views expressed by larger Benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court. That is the practice followed by this Court itself, the practice has now crystallized into a rule of law declared by this Court."

12. It may now be said without contradiction that High Courts should follow the preference to that expressed by a larger Bench in preference to that expressed by a smaller Bench of the Supreme Court. Before adopting this rule, the High Court, if possible, should try to reconcile the diversity of decisions casting away any general observations. General observations do not decide an individual case. The Judges may not agree on general principles and yet reach the same conclusion on the issues before them. It has been said : "As against persons not parties to the suit, the only part of a case which is conclusive (with the exception of cases relating to status) is the general rule of law for which it is authority. This rule or proposition, the ratio decidendi, may be described roughly as the rule of law applied by and acted on by the Court, or the rule which the Court regarded as governing the case." Judged from these principles, Aramha's case can no longer be said to be valid and therefore, stands overruled."

13. Finally in paragraph 11, it is said that-

"11. But the difficulty may still arise for the High Court when confronted with two inconsistent decisions of the Supreme Court by Benches consisting of equal number of Judges. Both cannot be said to be binding on Courts. But the choice is still more difficult as there is no firm general rule on the principle of precedent. The learned Chief Justice has opined that in such a case the later of the two decisions should be followed by the High Court and other Courts. This practice, according to us, is neither a rule of propriety nor a rule to promote justice. It may be a convenient rule to promote consistency and avoid uncertainty. If it is meant to promote consistency in the administration of justice, we may as well ask the question, why not the High Court follow the former of the two rulings when both of them are of equal sanctity. Why alone the later caries the obligation and not the former The adherence to one practice would be as good or as bad as adherence to the other. In our view, a conservative approach to any of these, may deny justice in a given case or series of cases and those clients may not be in a position to approach the Supreme Court for the redressal of their grievances. When confronted with two inconsistent co-ordinate authorities, Kay, J., in Miles v. Jarvis, (1883) 24 Ch D 633 at p. 636 said : ". . . . . . . . . . . The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law."

14. Jessel M. R. in a like circumstance said in Baker v. White, (1877) 5 Ch D 183 at p. 190 that he was left with liberty to say which was not sound law. It seems to us, therefore, the High Court would be well advised to consider which of two conflicting decisions it will follow in the interest of the administration of justice and it ought to follow that which is better in point of law than in point of time." Full Bench of Punjab High Court in M/s. Indo Swiss Time Limited, Dundahera v. Umrao, AIR 1981 Punjab and Haryana 213 expresses the view similar to the minority view in Govindnaik's case (Karnataka) (supra). Pertinent it is to quote the following paragraphs from the judgment :

"22. A perusal of the judgments in Municipal Corporation of the City of Ahmedabad, (1970) 1 SCWR 183 and Himalaya Tiles, AIR 1980 SC 1118 [LQ/SC/1980/152] cases would plainly indicate that there is a direct conflict on the point therein. Both the judgments have been rendered by a Bench consisting of two Hon'ble Judges and can not possibly be reconciled. This situation at once brings to the fore the somewhat intricate question which is now not of infrequent occurrence, namely. . . . . . . "when there is a direct" conflict between two decisions of the Supreme Court rendered by co-equal Benches, which of them should be followed by the High Courts and the Courts below".

23. Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and therefore of matching authority than their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant than both of them cannot be binding on the Courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the superior Court are earlier or later is a consideration which appears to me as hardly relevant.

24. The view I am inclined to take has the support of the high authority of Jessel M. R. in Hampton v. Holman, (1877) 5 Ch D 183. Therein also the learned Master of the Rolls was faced with the difficult task of choosing between the two decisions of equal authority which were directly in conflict with each other. He observed as follows : "Now I take it that both the cases to which I have referred are not to be reconciled with Hayes v. Hayes, ((1828) 38 ER 822); at all events, they differ from it so far as to leave me at liberty now to say that Hayes v. Hayes is not sound law; indeed it appears that Sir John Leach himself was dissatisfied with decision."

15. Again in Miles v. Jarvis, (1883) 24 Ch D 633, Kay, J., was similarly faced with two judgments of equal weight which were in conflict. He observed as follows :- " The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law."

16. Reference in this context may in particular be made to the celebrated case of Young v. Bristol Aeroplane Co. Ltd., (1944) KB 718. Therein in a similar context of the Court of appeal being bound by its previous decisions it was held that it was not only entitled but indeed duty bound to decide which of the two conflicting decisions of its own will it follow in case of a clear divergence of the opinion in the earlier precedents.

17. I am conscious of the fact that a narrowly divided Bench in Govindanaik G. Kalghatagi v. West Patent Press Co. Ltd., AIR 1980 Kant 92 [LQ/KarHC/1979/57] (FB) has taken the view by a majority of three to two that in such a situation the later of the two decisions should be followed. A perusal of the judgment, however, would show that in fact there were two questions before the Full Bench - firstly, that where there was conflict of two decisions of the Supreme Court of unequal Benches which one is to be followed and secondly where these decisions were of co-equal Bench then which decision is to be followed, it is patent that the majority view adverted to the first of the two questions alone and there does not appear to be any discussion whatsoever on the second issue, minority view on the other hand whilst agreeing with the majority view on the first question specifically adverted to and discussed the second aspect of the matter in detail and concluded as follows- ". . . . . . It seems to us, therefore, the High Court would be well advised to consider which of the two conflicting decisions it will follow in the interest of the administration of justice and it sought to follow that which is better in point of law than in point of time."

18. With great respect I am inclined to wholly agree with the aforesaid view of the minority and it bears repetition that the majority view does not seem to have even adverted to the question in essence.

19. Even though it is perhaps unconventional to quote a living authority, it deserves recalling that Mr. Seervai in his latest edition of his authoritative work in the Constitutional Law of India has opined as follows :- " But judgments of the Supreme Court, which cannot stand together, present a serious problem to the High Court and to subordinate Courts. It is submitted that in such circumstances the correct thing is to follow that judgment which appears to the Court to state the law accurately or more accurately than the other conflicting judgment."

20. As a matter of recent legal history it may be noticed that it was earlier even advocated that the latest judgment of the final Court must be followed irrespective of the fact whether it was rendered by a larger or a smaller Bench. However this theory of pre-eminence by time alone has now been conclusively exploded. In Mattulal v. Radhelal, AIR 1974 SC 1596 [LQ/SC/1974/162] , the final Court itself was faced with two directly contradictory judgment and Bhagwati, J., speaking for the Bench in following the earlier judgment in preference to the later one observed as follows (at p. 1602) :- " Now there can be no doubt that these observations made in Smt. Kamla Soni's case, AIR 1969 NSC 186 are plainly in contradiction of what was said by this Court earlier in Sarvate T. B.'s case 1966 MPLJ 26. It is obvious that the decision in Sarvate T. B.'s case was not brought to the notice of this Court while deciding Smt. Kamla Soni's case or else this Court would not have landed itself in such patent contradiction. But whatever be the reason, it cannot be gain said that it is not possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T. B.'s case as against the decision in Smt. Kamla Soni's case, as the former is a decision of larger Bench than the latter. Moreover, on principle, the view taken in Sarvate T. B.'s case commends itself to us and we think that is the right view."

21. It would be evident from the underlined observations above that even in such a situation their Lordships conceded the principle and the correctness of the view to be a relevant factor again in Union of India v. K. S. Subramanian, AIR 1976 SC 2433 [LQ/SC/1976/247] , a similar issue arose and Beg, J. speaking for the Bench held as follows :-

" But, we do not think that the High Court acted correctly in skirting the views expressed by larger Benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court. That is the practice followed by this Court itself. The practice has now crystallised into a rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger Benches of this Court were not applicable to the facts of the instant case, it should have said so giving reasons supporting its point of view."

It seems manifest from the above that the theory of pre-eminence of a judgment by virtue of its time and being the latest alone has now been conclusively laid to rest.

22. It appears to me that in the present case the issue would be interestingly highlighted if one were to interchange the dates of the two judgments in Himalaya Tiles case (AIR 1980 SC 1118 [LQ/SC/1980/152] ) and Ahmedabad Municipal Corporation case (1970) 1 SCWR 183. If the judgment in Ahmedabad Municipal Corporation case had been rendered later on the time theory it would have to be followed even though no elaborate reasoning or principle or any authority had been cited on an intricase question of law whilst disposing of a preliminary point. With great respect, doing so in my view cannot be possibly justified.

23. I am keenly aware of the great difficulty of making a choice between the decisions of a superior Court when they are in direct conflict with each other. However, when such divergence arises and the litigants' fortune depends thereon the issue cannot possibly be evaded. Obviously in such a situation it is not the province of the High Courts or the subordinate Courts to comment on the judgments of a superior Court which are patently entitled to respect. Its plain duty in the interest of justice is to respectfully follow that which appears to it to state the law accurately or in any case more accurately than the other conflicting judgment.

24. Applying the aforesaid principle, I would with great respect prefer to follow Himalaya Tiles case, AIR 1980 SC 1118 [LQ/SC/1980/152] . Finally in paragraph 31, learned Chief Justice said :-

"31. To conclude, the answer to the question posed at the very outset is, therefore, rendered in the affirmative, viz., that a company, for whose benefit the land is acquired, can be impleaded as a party in the Court of the District Judge, in a reference preferred that as observed in the earlier paras 15 and 16 of this judgment, such an impleading would be within the confines spelled out in Section 50, sub-sec. (2) of the aforesaid."

P. C. Jain, J. concurring with views of Chief Justice S. S. Sandhwalia on this point said in paragraphs 38 and 39 that :-

"38. On a careful consideration of the respective contentions of the learned Counsel for the parties, in the light of various decisions cited by them, it transpires that the view taken in the judgment of the Supreme Court in Himalaya Tiles and Marbles (P) Ltd., AIR 1980 SC 1118 [LQ/SC/1980/152] (supra), on which reliance has been placed by Mr. Sarin, is in conflict with the view taken in the earlier judgment in Municipal Corporation of the City of Ahmedabad's case, (1970) 1 SCWR 183 (supra). As observed by my Lord the Chief Justice, a perusal of the two judgments plainly indicates that there is a direct conflict on the point which needs our decision. Both the judgments have been rendered by a Bench consisting of two Hon'ble Judges and cannot possibly be reconciled. In this situation, a somewhat interesting, though tricky question arises for determination, i.e. when there is a direct conflict between the two decisions of the Supreme Court rendered by co-equal Benches, which of them should be followed by the High Courts and the Courts below.

39. On this question, my Lord the Chief Justice in his elaborate judgment has held that the Courts may follow the judgment which appears to them to state the law accurately and that mere incidence of time whether the judgments of the co-equal Benches of the superior Court are earlier or later is a consideration which appears to be hardly relevant. I have also given my thoughtful consideration to the entire matter and find myself in respectful agreement with the aforesaid observations of my Lord the Chief Justice."

25. Andhra Pradesh High Court in R. Ramanujam v. D. Venkat Rao, AIR 1982 Andh Pra 227 said in paragraph 31 that :-

"31. We find it difficult to accept this contention in view of the proposition of law laid down by their Lordships in this case. In that case, as stated above the main controversy was the question of heritability of the tenancy after the death of the deceased tenant. In the earlier decision in Anand Niwas v. Anandji Kalyanji Pedhi, AIR 1965 SC 414 [LQ/SC/1963/213] (supra) and J. C. Chatterji v. Shri Krishna Tandon, AIR 1972 SC 2526 [LQ/SC/1972/359] (supra) their Lordships unequivocally held that the tenancy under rent Acts is not at all heritable and with the determination of the tenancy the estate disappears and the statute can preserve only his status of irremovability. But in Damadilal v. Parashram, AIR 1976 SC 2229 [LQ/SC/1976/231] (supra), their Lordships declined to follow the view taken in Anand Niwas v. Anandji Kalyanji Padhi (supra) and J. C. Chatterji v. Shri Krishna Tandon (supra) with regard to the heritability. Their Lordships, on the other hand, positively laid down that just as the contractual tenant, the statutory tenant also has an estate or property in the subject-matter of the tenancy and the heritability is an incident of the tenancy. Thus there is a conflict of view taken in Anand Niwas v. Anandji Kalyanji Pedhi (supra) and J. C. Chatterji v. Shri Krishna Tandon (supra) and the case in Damadilal v. Parashram (supra). It is now well settled that Article 141 gives a constitutional status to the theory of the precedents in respect of the law declared by the Supreme Court, which is essential for proper administration of justice. Where there is conflict in two decisions of the Supreme Court given by Judges of equal strength, the question of the later would be binding. If that be so, the decision in Damadilal's case (supra) will prevail over the ruling in J. C. Chatterji's case (supra) which was rendered by a Bench of two Judges, the ruling in Damadilal's case prevails."

26. Special Bench of Calcutta High Court in Bholanath Karmarkar v. Madanmohan Karmarkar, AIR 1988 Cal 15 [LQ/CalHC/1987/135] has discussed this question and the view taken by it falls in line with the minority view of Govindanaik's case (supra) and Full Bench of Punjab and Haryana High Court in M/s. Indo Swiss Time Limited (supra). Since detailed reasonings have been offered, it would be necessary to quote paragraphs 10 to 18 as under :

"10. When faced with contrary decisions of the Supreme Court, the first course to be adopted by the High Court is to ascertain which one of them is decided by a larger Bench and to govern itself by such larger Bench decision, if any. This has been laid down by the Supreme Court itself in a series of decisions and must be taken to be the settled law and reference may be made, among others, to the decision of the Supreme Court in Union of India v. K. S. Subramaniam, AIR 1976 SC 2433 [LQ/SC/1976/247] at p. 2437, even though, it may be noted, a two-Judge Bench of the Supreme Court in Javed Ahmad v. State of Maharashtra, AIR 1985 SC 231 [LQ/SC/1984/305] at p. 236 has thought that "it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges". But when such contrary decisions of the Supreme Court emanate from Benches of equal strength, the course to be adopted by the High Court is, firstly, to try to reconcile and to explain those contrary decisions by assuming, as far as possible, that they applied, to different sets of circumstances. This in fact is a course which was recommended by our ancient jurists "Srutirdwaibhe Smritirdwaidhe Sthalaveda Prakalpate" - in case there be two contrary precepts of the Sruties or the Smritis, different cases are to be assumed for their application. As Jurist Jaimini said, contradictions or inconsistencies are not to be readily assumed as they very often be not real but only apparent resulting from the application of the very same principle to different sets of facts - "Prayoge Hi Virodha Syat". But when such contrary decisions of co-ordinate Benches cannot be reconciled or explained in the manner as aforesaid, the question would arise as to which one of the High Court is obliged to follows.

11. One view is that in such a case the High Court has no option in the matter and it is not for the High Court to decide which one it would follow but it must follow the later one. According to this view, as in the case of two contrary orders issued by the same authority, the later would supersede the former and would bind the subordinate and as in the case of two contrary legislations by the same Legislature, the later would be the governing one, so also in the case of two contrary decisions of the Supreme Court rendered by the Benches of equal strength the later would rule and shall be deemed to have over ruled the former. P. B. Mukharji, J. (as his Lordship then was) in his separate, though concurring, judgment in the Special Bench decision of this Court in Pramatha Nath v. Chief Justice, AIR 1961 Cal 545 [LQ/CalHC/1961/114] at p. 551, para 26 took a similar view. S. P. Mitra, J. (as his Lordship then was) also took such a view in the Division Bench decision of this Court in Sovachand Mulchand v. Collector, Central Excise, AIR 1968 Cal 174 [LQ/CalHC/1966/258] at p. 186, para 56. To the same effect is the decision of a Division Bench of the Mysore High Court in New Krishna Bhavan v. Commercial Tax Officer, AIR 1961 Mys 3 and the decision of the Division Bench of the Bombay High Court in Vasant v. Dikkaya, AIR 1980 Bom 341 [LQ/BomHC/1979/366] at p. 345. A Full Bench of the Allahabad High Court in U.P. State Road Transport Corporation v. Trade Transport Tribunal, AIR 1977 All 1 [LQ/AllHC/1976/276] at p. 5 has also ruled to that effect. The view appears to be that in case of conflicting decisions by Benches of matching authority, the law is the latest pronouncement made by the latest Bench and the old law shall change yielding place to new.

12. The other view is that in such a case the High Court is not necessarily bound to follow the one which is later in point of time, but may follow the one which, in its view, is better in point of law. Sandhwalia, C. J., in the Full Bench decision of the Punjab and Haryana High Court in Indo-Swiss Time Limited v. Umarao, AIR 1981 Punj and Har 213 at Pp. 219-220 took this view with the concurrence of the other two learned Judges though as to the actual decision, the other learned Judges differed from the learned Chief Justice. In the Karnataka Full Bench decision in Govindanaik v. West Patent Press Co., AIR 1980 Kant 92 , [LQ/KarHC/1979/57] the minority consisting of two of the learned Judges speaking through Jagannatha Shetty, J., also took the same view (supra at p. 95) and in fact the same has been referred to with approval by Sandhwalia, C. J., in the Full Bench decision in Indo-Swiss Time (supra).

13. This later view appears to us to be in perfect consonance with what our ancient Jurist Narada declared, Dharmashastra Virodhe To Yuktiyukta Vidhe Smrita - that is, when the Dharmashastras or Law Codes of equal authority conflict with one another, the one appearing to be reasonable, or more reasonable is to be preferred and followed. A modern jurist, Seervai, has also advocated a similar view in his Constitutional Law of India, which has also been quoted with approval by Sandhwalia, C. J. in Indo-Swiss Time (supra at p. 220) and the learned Jurist has observed that "judgments of the Supreme Court, which cannot stand together, present a serious problem to the High Courts and subordinate Courts" and that "in such circumstances, the correct thing is to follow that judgment which appears to the Court to state the law accurately or more accurately than the other conflicting judgment."

14. I had also occasion to consider this question in Gopal Chandra Kalay v. State, 1981 Lab IC 422 at Pp. 423, 425 (Sikkim) and the Union of India v. Ashok, AIR 1983 Sikkim 19 [LQ/SikHC/1983/5] at Pp. 23, 25, 26 where, for the reasons stated therein, I accepted this view and agreed respectfully with the views of Sandhwalia, C. J. in the Punjab Full Bench decision in Indo-Swiss Time, AIR 1981 Punj and Har 213 (supra) and the minority view of Jagannatha Shetty, J., in the Karnataka Full Bench decision in Govindanaik, AIR 1980 Kant 92 [LQ/KarHC/1979/57] (supra). I held that where there are contrary decisions of the Supreme Court rendered by Benches of equal strength, the High Court, in theory, being bound by each one, is, in effect, bound by none and is not necessarily obliged to follow the later in point of time, but may follow the one which, according to it, is better in point of law.

15. It appears that the Full Bench decision of the Madras High Court in R. Rama Subbarayalu v. Rengammal, AIR 1962 Mad 450 , [LQ/MadHC/1962/33] would also support this later view where it has been observed (at p. 452) that "where the conflict is between two decisions pronounced by a Bench consisting of the same number of Judges, and the subordinate Court after a careful examination of the decisions came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one". According to the Nagpur High Court also, as would appear from its Full Bench decision in D. D. Bilimoria v. Central Bank of India, AIR 1943 Nagpur 340 at p. 343 in such case of conflicting authorities, "the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other", thereby indicating that the subordinate Courts would have to prefer one to the other and, therefore, would be at liberty to follow the one or the other.

16. Needless to say that it would be highly embarrassing for the High Court to declare one out of two or more decisions of the Supreme Court to be more reasonable implying thereby that the other or others is or are less reasonable. But if such a task calls upon the High Court because of irreconcilable contrary decisions of the Supreme Court emanating from Benches of co-ordinate jurisdiction, the task, however, uncomfortable, has got to be performed.

17. We are inclined to think that a Five Judge Bench of the Supreme Court in Atma Ram v. State of Punjab, AIR 1959 SC 519 [LQ/SC/1958/158] has also indicated (at p. 527) that such a task may fall on and may have to be pe performed by the High Court. After pointing out that "when a Full Bench of three Judges was inclined to take a view contrary to another Full Bench of equal strength", "perhaps the better course would have been to constitute a larger Bench", it has been observed that for "otherwise the subordinate Courts are placed under the embarrassment of preferring one view to another, both equally binding on them". According to the Supreme Court, therefore, when confronted with two contrary decisions of equal authority, the subordinate Court is not obliged to follow the later, but would have to perform the embarrassing task, "of preferring one view to another".

18. It is true that if there are two contrary legislations enacted by the same Legislature, the later would impliedly repeal the earlier and would be the binding law. But we do not think that this legislative analogy would at all be apposite and can help us in solving the question before us because the very same Legislature can always repeal or alter its own law, even impliedly, while overruling being an act of superior jurisdiction, one Bench cannot overrule expressly or by implication, a decision of a co-equal Bench. It is also true that the view that when there are conflicting decisions rendered by co-ordinate authorities, the later decision would govern us, would be conducive to certainty in the field of law. But the same certainty would also be achieved if it is also ruled that the later Bench being not competent to over-rule the earlier decision of a co-ordinate Bench, the earlier decision would still continue to be the good law. A similar view in favour of the earlier decision was in fact taken by a Division Bench of this Court in Bagala Sundari v. Prosanna Nath, 21 Cal WN 375 at page 377 : AIR 1917 Cal 668 at p. 669 where it was held that even though there might be later decisions not easy to reconcile since the earlier one was not or could not be overruled, it would be binding, "that being a decision of this Court and the earliest on the point". We are, however, inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision and, as indicated hereinbefore, and as has also been indicated by the Supreme Court in Atmaram (supra), the subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter of course, to follow either the former or the later in point of time, but must follow that one, which according to it, is better in point of law. As old may not always be the gold, the new is also not necessarily golden and ringing out the old and bringing in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of co-ordinate jurisdiction."

26. Now we have to consider as to whether the decision in Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel, (1971) 3 SCC 821 [LQ/SC/1970/3] prevails or that the decision in Himalaya Tiles and Marble (P.) Ltd. v. Francis Victor Coutinho, AIR 1980 SC 1118 [LQ/SC/1980/152] prevails. Mr. Trivedi, the learned Counsel appearing for the 1st respondent, submitted that the decision in Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel, (1971) 3 SCC 821 [LQ/SC/1970/3] is more accurate and as such the said decision has to prevail. In support of his contention, he prevail. In support of his contention, he cited the decision reported in Indo Swiss Time Limited, Dundahera v. Umrao, AIR 1981 Punj and Har 213. In that Full Bench decision the majority view is spoken to as follows :

'23. Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot be binding on the Courts below. Inevitably a choice though a difficult one, has to be made in such a situation. On principle it appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the superior Court are earlier or later is a consideration which appears to me as hardly relevant.'

27. In contradistinction to the abovesaid decision, we have catena of decisions which say that in respect of the decision of the Superior Court of co-equal Benches, the later one prevails over the former. In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari, AIR 1980 Bom 341 [LQ/BomHC/1979/366] a Bench of the Bombay High Court has held that in case of conflict between earlier and later decisions of Supreme Court where each Bench consists of equal number of Judges, the later decision should prevail. In Govindanaik G. Kalghatagi v. West Patent Press Co. Ltd., AIR 1980 Kant 92 [LQ/KarHC/1979/57] the Full Bench of the Karnataka High Court has definitely held that when there are two conflicting decision of the Supreme Court, one given by the larger Bench should be followed and that if both Benches of the Supreme Court consist of equal number of Judges, the later of the two decision should be followed by High Courts and other Courts. We are in complete agreement with the principle laid down by the Bombay and Karnataka High Courts in Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari, AIR 1980 Bombay 341 and Govindanaik G. Kalghatagi v. West Patent Press Company Ltd., AIR 1980 Kant 92 [LQ/KarHC/1979/57] (FB) respectively. In this view we hold that the decision reported in Himalaya Tiles and Marble (P.) Ltd. v. Francis Victor Coutinho, AIR 1980 SC 1118 [LQ/SC/1980/152] holds the field. . . . . . . . . ." Finally, in paragraph 12, the Court said-

"12. . . . . . . . . . We also declare that when there are two conflicting decisions of the Supreme Court consisting of equal number of Judges, the later of the two decisions should be followed by the High Courts and other Courts. . . . . . ."

28. Single Bench decision of Delhi High Court in M/s. Pandit Munshi Ram and Associates (Pvt.) Limited v. Delhi Development Authority, AIR 2001 Delhi 82 is brought to our notice. It holds that when two decisions of Supreme Court on same question of law by equal number of Judges do not reconcile, later of the two should be followed and in case of decision by larger Bench and that of smaller Bench, decision of larger Bench whether it is earlier or later in point of time should be followed. But why decision of later Bench of two Judges as against decision of earlier Bench of two Judges should be followed, reasons have not been recorded. Full Bench decision of this Court in State of M. P. v. Balveer Singh son of Babulal, (2001) 2 MPLJ 644 observes in paragraphs 45 to 50 that-

"45. It may be noticed that the doctrine of judicial precedent is to declare the law and not the facts and the declaration itself has to be taken to be binding upon all persons whether parties to the proceedings or not. The decision of the Supreme Court is binding not only under Article 141 of the Constitution of India but also under the doctrine of the binding precedent.

46. Where however various judgments of the Supreme Court cannot be reconciled in view of the fact that even if some inconsistency may be there this Court is, on the facts of the instant case, bound to follow the decision of the Supreme Court having been rendered by a Bench of larger number of Hon'ble Judges in preference to the decision in a case having been rendered by a Bench of lesser number of Hon'ble Judges. This is so in view of the decision of the Hon'ble Supreme Court in the case of State of U.P. v. Ram Chandra, reported in AIR 1976 SC 2547 [LQ/SC/1976/311] wherein it was observed as follows :-

"It is also to be borne in mind that even in mind that even in cases where a High Court finds any conflict between the view expressed by larger and small Benches of this Court, it cannot disregard to skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K. S. Subramaniam (Civil Appeal No. 212 of 1975 decided on 30/07/1976) to which one of us was a party, is to try to find out and follow the opinion expressed by larger Benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself."

47. In Mattulal v. Radhe Lal, reported in AIR 1974 SC 1596 [LQ/SC/1974/162] , it was held by the Supreme Court that where there are contradictory decisions of the Supreme Court the decision of the larger Bench has to be followed even if that decision was rendered earlier in point of time than the decision of the smaller Bench.

48. Further, where there is a direct conflict between the decision of the Hon'ble Supreme Court in its co-equal Benches, the High Court has to follow the judgment, which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the. The date of delivery of the judgment cannot be a guiding factor. This was so indicated by a Division Bench of this Court in its decision in the case of Municipal Corporation, Indore v. Smt. Ratnaprabha Dhanda, Indore reported in 1989 MPLJ 20. [LQ/MPHC/1988/307]

49. The observations to the aforesaid effect were also made by the Patna High Court in its decision in the case of Amar Singh Yadav v. Shanti Devi, reported in AIR 1987 Patna 191 rendered by a Full Bench.

50. It may also be noticed that in its decision in the case of Mattulal v. Radhe Lal reported in AIR 1974 SC 1596 [LQ/SC/1974/162] as well as in its decision in the case of the State of U.P. v. Ram Chandra Trivedi reported in AIR 1976 SC 2547 [LQ/SC/1976/311] , the Apex Court had clearly observed that its former decision of the larger Bench should be followed."

29. Some other decisions of this Court may be mentioned. In Sukhlal Kachhi v. State, 1960 Jab LJ 1078 CN 265, it is held that unless a single Judge decides to refer the matter to a larger Bench, he is bound to follow the decision given by a single Judge. These are matters of judicial etiquette which are always to be expected from Judges of co-ordinate jurisdiction and similar Benches. In State v. Narayan Prasad, 1963 Jab LJ 390 CN 81, relying on Mahadeolal v. Administrator General of W. B., AIR 1960 SC 936 [LQ/SC/1960/127] , it has been held that when a single Judge differs from a decision of another single Judge in a previous case, he should refer the case to a larger Bench instead of deciding the case in accordance with his own view, while Full Bench decision in Samaru Banjare v. State of M.P., 1985 Jab LJ 460 holds that in case of two conflicting decisions, latter view has to be accepted, thereby overruling the view in Full Bench case of Rana Natwar Singh v. State of M.P., 1980 Jab LJ 69 to the extent it holds that recording of reasons is necessary in case required by Statute, otherwise not, approving view in Suresh Seth v. State of M.P. 1969 Jab LJ 499 and the Full Bench held that "rule of reason" is integral part of principles of natural justice which a statutory authority is required to observe even in absence of provision in the statute in this behalf. In Bhagwandas Tiwari v. Gayaprasad, 1973 Jab LJ 469, it has been held that when in a case, view is expressed contrary to and in ignorance of the previous ruling, such view cannot be accepted. In Narbada Prasad v. Awadesh Narain, 1973 Jab LJ 641, it has been held that whenever a relevant prior decision is not cited before the Court or mentioned in the judgment, it must be assumed that the Court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and not binding on a latter Court. In Balkishan v. State of Madhya Pradesh, (1994) 1 MPJR 206 [LQ/MPHC/1993/328] , it is held that in case of conflict between Benches of equal strength the case which deals with the law more elaborately and accurately should be followed and it is immaterial whether it is earlier or later but in Union of India v. Raju Construction Company Bhopal, (2000) 3 MPLJ 27 [LQ/MPHC/1999/250] , Court holds that subsequent decisions of Apex Court would be per incuriam since its earlier decision in M/s. Harbans Singh Tuli and Sons Builders (P.) Ltd. v. Union of India, AIR 1992 SC 1124 [LQ/SC/1992/147] was not brought to its notice and also sub-silentio, therefore, later decision is not binding.

30. Having discussed the views expressed by some of the High Courts, we advert to the decisions of Apex Court on this question. In Atmaram v. State of Punjab, AIR 1959 SC 519 [LQ/SC/1958/158] , Apex Court said in paragraph 12 that-

"Where a Full Bench of three Judges is inclined to take a view contrary to that of another Full Bench of equal strength, the better course would be to constitute a larger Bench. Such a course becomes necessary in view of the fact that otherwise the subordinate Courts are placed under the embarrassment of preferring one view to another, both equally binding upon them."

31. This decision does not hold that in a case of conflict amongst two decisions given by equal number of Judges the later decision should be followed. In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. The State of Gujarat, ((1975) 1 SCC 11 [LQ/SC/1974/300] Apex Court said in paragraph 28 that-

"28. It is submitted by Mr. Tarkunde that the above observations of this Court are inconsistent with the ratio of the decision in Rustam Cavasjee Cooper's case (AIR 1974 SC 564) (supra), popularly known as the Bank of Nationalisation case, which was decided by a larger Bench. It is difficult to accept the submission that the view expressed in Khajamian Wakf Estates' case (AIR 1971 SC 161 [LQ/SC/1970/453] ) (supra) are contrary to Rustam Cavasjee Cooper's case. Apart from that this Bench cannot pass upon the correctness or otherwise of the views expressed in Khajamian Wakf Estates' case. Besides, we do not even think that the submission is well-founded even to merit re-consideration of the Khajamian Wakf Estates' case."

32. In State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 [LQ/SC/1976/311] , it is held that even in cases where High Court finds any conflict between the various views expressed by a larger Bench and Smaller Benches of this Court, it cannot disregard or skirt the views expressed by the Larger Bench. This practice has hardened into a rule of law being followed by the Supreme Court itself; and in Anugrah Narain Singh, v. State of U.P., (1996) 6 SCC 303 , [LQ/SC/1996/1450] it has been held that where one Division Bench disagrees with another Division Bench, proper course would be to refer the matter to a Larger Bench. In Superintendent and Remem-brancer of Legal Affairs, West Bengal v. Corporation of Calcutta, AIR 1967 SC 997 [LQ/SC/1966/303] , Apex Court said in paragraph 5 that-

"5. The third contention need not detain us, for it has been rejected by this Court in Bengal Immunity Company Limited v. State of Bihar, (1955) 2 SCR 603 [LQ/SC/1954/175] : AIR 1955 SC 661 [LQ/SC/1954/175] . There is a Bench of seven Judges unanimously held that there was nothing in the Constitution which prevented the Supreme Court from departing from a previous decision of its own if it was satisfied of its error and of its baneful effect on the general interests of the public. If the aforesaid rule of Constitution accepted by this Court is inconsistent with the legal philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule. In Constitutional matters which affect the evolution of our policy, we must more readily do so than in other branches of law, as perpetuation of a mistake will be harmful to public interests. While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy to set right deviations will retard its growth. In this case, as we are satisfied that the said rule of Constitution is inconsistent with our republican policy and, if accepted, bristles with anomalies, we have no hesitation to reconsider our earlier decision."

33. In Union of India v. Raghubir Singh (dead) by LRs etc., AIR 1989 SC 1933 [LQ/SC/1989/332] , Supreme Court has said in paragraphs 28 and 29 that-

"28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller numer of Judges There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on point of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal, (1975) 3 SCR 211 [LQ/SC/1975/25] : AIR 1975 SC 775 [LQ/SC/1975/25] , a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal, (1975) 1 SCR 778 [LQ/SC/1974/245] : AIR 1974 SC 2154 [LQ/SC/1974/245] decided by a Division Bench of five Judges in preference to Bhutnath Mate v. State of West Bengal, AIR 1974 SC 806 [LQ/SC/1974/31] decided by a Division Bench of two Judges. Again in Smt. Indira Nehru Gandhi v. Rajnarain, (1976) 2 SCR 347 [LQ/SC/1975/439] : AIR 1975 SC 2299 [LQ/SC/1975/439] , Beg, J. held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in His Holiness Kesavananda Bharati Sri Padagalavaru v. State of Kerala, 1973 Suppl SCR 1 [LQ/SC/1973/159] : AIR 1973 SC 1461 [LQ/SC/1973/159] . In Ganapati Sitaram Belvalkar v. Waman Shripad Mage (since dead) Through L.Rs., (1981) 4 SCC 143 [LQ/SC/1981/331] : AIR 1981 SC 1956 [LQ/SC/1981/331] , this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, (1975) 1 SCR 127 [LQ/SC/1974/162] : AIR 1974 SC 1596 [LQ/SC/1974/162] this Court specially observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat, (1975) 2 SCR 317 [LQ/SC/1974/300] : AIR 1974 SC 2098 [LQ/SC/1974/300] , that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 [LQ/SC/1985/315] : AIR 1986 SC 806 [LQ/SC/1985/315] which noted that a Division Bench of two Judges of this Court in Jit Ram v. State of Haryana, (1980) 3 SCR 689 [LQ/SC/1980/191] : AIR 1980 SC 1285 [LQ/SC/1980/191] had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P., (1979) 2 SCR 641 [LQ/SC/1978/389] : AIR 1979 SC 621 [LQ/SC/1978/389] , on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.

29. We are of the opinion that a pronouncement of law by a Division Bench of this Court in binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons that is not conveniently possible."

34. In Sundarraj Kanyalal Bhathija v. Collector, Thane, Maharashtra, AIR 1990 SC 261 [LQ/SC/1989/342] , it has been said in paragraphs 17 to 22 that- "17. It would be difficult for us to appreciate the judgment of the High Court. 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 the 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 co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow 0 this procedure. 18. Deprecating this kind of tendency of some Judges, Das Gupta, J. in Mahadev Lal Kanodia v. The Administrator General of West Bengal, AIR 1960 SC 936 [LQ/SC/1960/127] said (at p. 941) : "We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case, 58 Cal WN 64 : AIR 1954 Cal 119 [LQ/CalHC/1953/239] was cited before the learned Judges who heard the present appeal, they took on themselves to say that the previous decision was wrong, of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety form the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start over-ruling one another's decision.

35.The attitude of Chief Justice Gajendragadkar, in Lala Shri Bhagwan v. Ramchandra, AIR 1965 SC 1767 [LQ/SC/1965/66] was not quite different (at p. 1773) : "It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge need to be considered, he should not embark upon that enquiry sitting as single Judge but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself."

36. The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions of a Court. Speaking for Constitution Bench Union of India v. Raghubir Singh, (1989) 2 SCC 754 [LQ/SC/1989/332] : AIR 1989 SC 1933 [LQ/SC/1989/332] learned Chief Justice said (page 766) (of Supreme Court cases) "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 daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court."

Cardozo pronounded a similar thought with more emphasis :

"I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reasons, which will commonly by some consideration of history or custom or policy of justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another." (the nature of the Judicial Process by Benjamin N. Cardozo p. 33).

In our system of judicial review which is a part of our Constitutional scheme, we hold it to be the duty of judges of superior Courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advice their clients. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately fails into disrepute.

37. Judge learned Hand has referred to the tendency of some Judges "who win the game by sweeping all the chessmen off the table". (The Spirit of Liberty by Alfred A. Knopf, New York, (1953) p. 131). This is indeed to be deprecated. It is needless to state that the judgment of superior Courts and Tribunals must be written only after deep travail and positive vein. One should never let a decision go until he is absolutely sure it is right. The law must be made clear, certain and consistent. But certitude is not the test of certainty and consistency does not mean that there should be no word of new content. The principle of law may develop side by side with new content but not inconsistencies. There could be waxing and waning the principle depending upon the pragmatic needs and moral yearnings. Such development of law particularly, is inevitable in our developing country. In Raghubir Singh case, learned Chief Justice Pathak had this to say (1989) 2 SCC 754 [LQ/SC/1989/332] at p. 767 : AIR 1989 SC 1933 [LQ/SC/1989/332] at p. 1939 : "Legal compulsions cannot be limited by existing legal propositions, because, there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as "fairness" or "reasonableness", but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new para-meters. And he continued : The universe of problems presented for judicial choice making at the growing points of the law is an expanding universe. The areas brought under control by the accumulation of past judicial choice may be large. Yet the areas newly presented for still further choice because of changing social, economic and technological conditions are far from inconsiderable. It has also to be remembered, that many occasions for new options arise by the mere fact that no generation looks out on the world from quite the same vantage-point as its predecessor, nor for that matter with the same perception. A different vantage point or a different quality of perception often reveals the need for choice making where formerly no alternatives, and no problems at all, were perceived".

Holmes tells us :

"The Truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at the end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow." (Holmes The Common Law, p. 36 (1881)).

Apart from that the Judges with profound responsibility could ill-afford to take stolid satisfaction of a single postulate past or present in any case. We think, it was Cicero who said about someone "He saw life clearly and he saw it whole". The Judges have to have a little bit of that in every case while construing and applying the law."

39. In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , [LQ/SC/1991/320] Supreme Court said in paragraphs 40 and 41 that-

"40. "Incuria" 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 v. Bristol Aeroplane Co. Ltd., (1944 (1) KB 718)). 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. In Jaisri Sahu v. Rajdevan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate Court is not binding.

41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "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." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., (1941 (1) KB 675) the Court did not feel bound by earlier decision as it was rendered "without any argument, without reference to the crucial words of the rule and without any citation of the authority". It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur, (AIR 1989 SC 38 [LQ/SC/1988/456] ). The Bench held that, "precedents sub-silentio and without argument are of no moment". The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry (AIR 1967 SC 1480 [LQ/SC/1967/39] ) it was observd, "it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein". Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint indissenting or overruling is for sake of stability and uniformity but rigidity beyond unreasonable limits is inimical to the growth of law."

40. In Sanjay Dutt v. State through C.B.I., Bombay (II), (1994) 5 SCC 410 , [LQ/SC/1994/858] Constitution Bench of the Apex Court, examined the meaning of "indefeasible right" in light of decision in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 , [LQ/SC/1994/591] Apex Court held that right of accused for grant of bail on expiry of the initial period of 180 days for completing the investigation or the extended period prescribed by Section 20(4)(bb) of the TADA Act could be enforced only up to the filing of challan and did not survive for enforcement on the challan being filed in the Court against him. In Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 , [LQ/SC/2001/878] majority explained Sanjay Dutt's case (supra) on the ground that counsel for accused had conceded before the Court that individual's right for grant of bail on expiry of initial period of 180 days for completing the investigation or extended period prescribed by Section 20(4)(bb) of TADA Act could be enforced only up to the filing of the challan against him and decision of Division Bench in Hitendra Vishnu Thakur's case (supra) could not be read to confer on the accused an "indefeasible right" to be released on bail under this provision once the challan has been filed and the accused continues in custody. Therefore, the majority holds that expression "if not already availed of" in Sanjay Dutt's case (supra) must be understood to mean that when the accused files an application and is prepared to offer bail on being directed, in other words, on the expiry of the period under Clause (a) of Proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure, if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed his indefeasible right even though the Court has not considered the said application and has not communicated the terms and conditions of the bail and the accused has not furnished the same, meaning thereby accused must file application for release on bail before the expiry of 180 days or the extended period and filing of challan before his application is considered and allowed by the Court, would not defeat his right which is indefeasible. However, minority decision by B. N. Agrawal, J. holds that the right of accused cannot be enforced after the challan is filed since it is extinguished the moment challan is filed, thus, following Sanjay Dutt's case (supra) as against Hitendra Vishnu Thakur's case (supra).

In Commissioner of Sales Tax, J. and K. v. Pine Chemicals Ltd., (1995) 1 SCC 58 , [LQ/SC/1994/1007] Apex Court in Paragraphs 10 and 13 said that-

"10. In International Cotton Corpn. (P.) Ltd. v. C.T.O., (AIR 1975 SC 1826) a Bench of this Court comprising four Judges observed that "the object of sub-section (2-A) of Section 8 is to exempt transaction of sale of any goods if they are wholly exempt from tax under the sales tax law of the appropriate State and make the said sale chargeable at lower rates where under the Sales Tax Act of the State that sale transactions are chargeable to tax at a lower rate. . . . . . . .", though it is true, the point raised and determined in that case was a different one. In our respectful opinion, the decision in Indian Aluminium which was a decision rendered by a Bench of three learned Judges was binding upon the Bench which decided the Pine Chemicals. (This Bench too comprised three learned Judges). It is, however, interesting to notice that when the above two decisions were brought to the notice of the Bench, it referred to the ratio of the said decisions but neither followed it nor made any attempt to distinguish it but proceeded to make it a basis for their decision notwithstanding the fact that the said ratio ran exactly counter to the one adopted by the Bench. The two decisions did not certainly support the interpretation adopted in the judgment under review. On the contrary, they and in particular the decision in Indian Aluminium, militated against the said interpretation. It is for this reason, coupled with the fact that the interpretation placed in the judgment under review on Section 8 (2-A) may affect a large number of cases all over the country, that we agreed to re-examine the issue, which we would not have agreed to ordinarily.

. . . . . . . . . . xxx xxx xxx xxx xxx xxx

13. Shri K. K. Venugopal urged strongly that the error, if any, in the judgment under review is not an error apparent on the face of the record, that it is also a possible view and that, in any event, it cannot be said that the view taken in the judgment under review is a view which could not have been possibly taken. Learned counsel pointed out that a large number of High Courts have taken the same view and hence, the error, if any, in the judgment under review is not an error apparent on the face of the record. With respect, we cannot agree. To us, the language employed in the sub-section looks quite clear and unambiguous. It does not admit of any other interpretation than the one placed by us. More important, it was a already construed by a Bench of co-ordinate jurisdiction in Indian Aluminium earlier. Another Bench of four learned Judges had also understood the purport of the said sub-section in the same manner - vide International Cotton Corpn. In the light of the said binding decisions, it was not open, with great respect, to the Bench deciding Pine Chemicals to place the interpretation it did on the sub-section."

41. In Indian Oil Corporation Limited v. Municipal Corporation, AIR 1995 SC 1480 [LQ/SC/1995/508] , Supreme Court has held that High Court is bound by the decision of the Supreme Court, even co-equal Bench of Supreme Court cannot take different view. In paragraph 8, the Apex Court has said that-

"8. It is thus clear that the decision of this Court in Ratna Prabha (AIR 1977 SC 308 [LQ/SC/1976/407] ) (supra) on the construction of Section 138(b) of the M.P. Act has all along been understood and justified on the basis of the presence of the non obstante clause in Section 138(b) of the M.P. Act and the later decisions have distinguished it on that ground. That is the basis on which the decision in Padma Debi (AIR 1962 SC 151 [LQ/SC/1961/275] ) (supra) was distinguished in Ratna Prabha (supra) (AIR 1977 SC 308 [LQ/SC/1976/407] ) itself. It is also obvious that a Bench of 3-Judges only in the later decisions could not overrule the decision of this Court in Ratna Prabha (1977) 1 SCR 1017 [LQ/SC/1976/407] and, therefore, none of the later decisions could be so read to have that effect. The Division Bench of the High Court in 1989 MPLJ 20 [LQ/MPHC/1988/307] was clearly in error in taking the view that the decision of this Court in Ratna Prabha (AIR 1977 SC 308 [LQ/SC/1976/407] ) (supra) was not binding on it. In doing so, the Division Bench of the High Court did something which even a later co-equal Bench of this Court did not and could not do. The view taken by the Division Bench of the High Court in 1989 MPLJ 20 proceeds on a total misunderstanding of the law of precedents and Articles 141 of the Constitution of India, to which it referred. But for the fact that the view of the Division Bench of the High Court proceeds on a misapprehensions of the law of precedents and Articles 141 of the Constitution, it would be exposed to the criticism of an aberration in judicial discipline. The decision of the Division Bench of the High Court was, therefore, rightly overruled by the Full Bench in the impugned judgment."

In N. S. Giri v. Corporation of City of Manglalore (1999) 4 SCC 697 [LQ/SC/1999/585] , Apex Court said that-

"12. However, suffice it to observe that the Constitution Bench decision in New Maneck Chowk Spg. and Wvg. Co. Ltd. and also the decision of this Court in Hindustan Times Ltd. which is a four-Judge Bench decision, were not placed before the learned Judges deciding LIC of India case. A decision by the Constitution Bench and a decision by a Bench of more strength as of a biding authority; moreso, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available..................."

42. In District Manager, AP SRTC Vijaywada v. K. Sivaji, (2001) 2 SCC 135 , [LQ/SC/2000/1866] it is held that judicial discipline requires the single Judge either to follow the decision of another single Bench or refer the matter to a Larger Bench. Sitting singly, he cannot take a different view on the specious ground that the decision is based upon facts, even this conclusion is unsustainable. In Dr. Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCC 247 , [LQ/SC/2001/64] it has been said in paragraphs 33 and 34 that (paras 28 and 29) :

"33. As the learned single Judge was not in agreement with the view expressed in Devilal 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 that distress that the said course was not followed. It is well settled that if a Bench of co-ordinate jurisdiction disagrees with another Bench of co-ordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a Larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs. 34. Before parting with this aspect of the case, we wish to recall what was opined in Mahadeolal Kanodia v. Administrator General of W.B. (AIR 1960 SC 936 [LQ/SC/1960/127] ) : "If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case, lawyers would not know how to advise their clients and all Courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court."

43. Thereafter, the Apex Court in Chandra Prakash v. State of U.P., 2002 AIR SCW 1573 considered the some previous decisions of the Court on the question and said in paragraphs 20 to 23 that-

"20. The principles of the doctrine of binding precedent are no more in doubt. This is reflected in a large number of cases decided by this Court. For the purpose of deciding the issue before us, we intend referring to the following two judgments of this Court.

21. In the case of Union of India v. Raghubir Singh (AIR 1989 SC 1933 [LQ/SC/1989/332] ) (supra), a 5-Judge Bench of this Court speaking through Pathak, C.J., held that pronouncement of a law by a Division Bench of this Court is binding on another Division Bench of the same or small number of Judges. The judgment further states that in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. To avoid a repetition of the discussion on this subject, we think it appropriate to reproduce the following paragraph of that judgment which reads as follows :

"28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal (1975) 3 SCR 211 [LQ/SC/1975/25] : AIR 1975 SC 775 [LQ/SC/1975/25] , a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal (1975) 1 SCR 778 [LQ/SC/1974/245] : AIR 1974 SC 2154 [LQ/SC/1974/245] , decided by a Division Bench of five Judges in preference to Bhutnath Mate v. State of West Bengal, AIR 1974 SC 806 [LQ/SC/1974/31] : decided by a Division Bench of two Judges. Again in Smt. Indira Nehru Gandhi v. Rajnarain (1976) 2 SCR 347 [LQ/SC/1975/439] : AIR 1975 SC 2299 [LQ/SC/1975/439] , Beg, J. held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in His Holiness Kesavananda Bharati Sri Padagalavaru v. State of Kerala, 1973 Suppl. SCR 1 [LQ/SC/1973/159] : AIR 1973 SC 1461 [LQ/SC/1973/159] . In Ganapati Sitaram Belvalkar v. Waman Shripad Mage (Since Dead) Through LRs. (1981) 4 SCC 143 [LQ/SC/1981/331] : AIR 1981 SC 1956 [LQ/SC/1981/331] , this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, (1975) 1 SCR 127 [LQ/SC/1974/162] : AIR 1974 SC 1596 [LQ/SC/1974/162] , this Court specially observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat, (1975) 2 SCR 317 [LQ/SC/1974/300] : AIR 1974 SC 2098 [LQ/SC/1974/300] , that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 [LQ/SC/1985/315] : AIR 1986 SC 806 [LQ/SC/1985/315] , which noted that a Division Bench of two Judges of this Court in Jit Ram v. State of Haryana (1980) 3 SCR 689 [LQ/SC/1980/191] : AIR 1980 SC 1285 [LQ/SC/1980/191] , had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P., (1979) 2 SCR 641 [LQ/SC/1978/389] : AIR 1979 SC 621 [LQ/SC/1978/389] , on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.

44. Almost similar is the view expressed by a recent judgment of 5-Judge Bench of this Court in Parija's case (AIR 2002 SC 296 [LQ/SC/2001/2812 ;] ) (supra). In that case, a Bench of 2 learned Judges doubted the correctness of the decision of a Bench of 3 learned Judges, hence, directly referred the matter to a Bench of 5 learned Judges for re-consideration. In such a situation, the 5 Judge Bench held that judicial discipline and propriety demanded that a Bench of 2 learned Judges should follow the decision of a Bench of 3 learned Judges. On this basis, the 5-Judge Bench found fault with the reference made by the 2-Judge Bench based on the doctrine of binding precedent.

45. A careful perusal of the above judgments shows that this Court took note of the hierarchical character of the judicial system in India. It also held that it is of paramount importance that the law declared by this Court should be certain, clear and consistent. As stated in the above judgments, it is of common knowledge that most of the decisions of this Court are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the disputes between them but also because in doing so they embody a declaration of law operating as a binding principle in future cases. The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court. It is in the above context, this Court in the case of Raghubir Singh held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or similar number of Judges. It is in furtherance of this enunciation of law, this Court in the latter judgment of Parija (supra) held that- "But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges stating 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." It is held in paragraph 24 that-

"24. We are in respectful agreement with the enunciation of law made by this Court in the above noted judgments in Raghubir Singh and Parija (supra)."

Finally, the Court held in paragraph 25 that-

"25. Applying the principles laid down in the above said cases, we hold that the judgment of the 2-Judges Bench of this Court dated 23-3-1999 as modified by the subsequent order dated 26-7-1996 by the same Bench does not lay down the correct law, being in conflict with the larger Bench judgment. If that be so, the above writ petitions, from which this reference has arisen, will have to be decided dehors the law laid down by those two judgments of the Bench of two learned Judges. Therefore, having decided the issue that has arisen for our consideration, we think it just that these writ petitions should now be placed before a Bench of three learned Judges for final disposal."

In Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356 , [LQ/SC/2001/1236] the Apex Court said in paragraphs 19 to 22 that :

"19. In Mamleshwar Prasad v. Kanhaiya Lal (AIR 1975 SC 907 [LQ/SC/1975/98] ) reflecting on the principle of judgment per incuriam, in paras 7 and 8, this Court has stated thus (SCC p. 235) "7. 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. No such situation presents itself here and we do not embark on the principle of judgment per incuriam. 8. Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind."

20. This Court in A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531 [LQ/SC/1988/263] ) in para 42 has quoted the observations of Lord Goddard in Moore v. Hewitt and Penny v. Nicholas (1950 (2) All ER 89) to the following effect : (SCC p. 652) : (Para 44 Page 1548 of AIR) : " "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent (sic) statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."

21. This Court in State of U.P. v. Synthetic and Chemicals Ltd. (1991 (4) SCC 139 [LQ/SC/1991/320] ) in para 40 has observed thus (SCC p. 162) : "40. "Incuria" liberally 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 v. Bristol Aeroplane Co. Ltd. (1944 (2) All ER 293))."

22. The two judgments (1) Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, Chandi-garh (1990 (3) SCC 682 [LQ/SC/1990/312] ) and (2) State of U. P. v. Synthetics and Chemicals Ltd. (supra) were cited in support of the argument. Attention was drawn to paras 40, 41 and 43 in the first judgment and paras 39 and 40 in the second judgment. In these two judgments no view contrary to the views expressed in the aforesaid judgments touching the principle of judgment per incuriam is taken."

Thereafter, in paragraph 23, the Court held that-

"23. A prior decision of this Court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case by inadvertence or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment "per incuriam". It is also not shown that some part of the decision was based on a reasoning which was demonstrably wrong, hence the principle of per incuriam cannot be applied. It cannot also be said that while deciding Thyssen the promulgation of the first Ordinance, which was effective from 25-1-1996, or subsequent ordinances were not kept in mind moreso when the judgment of the Gujarat High Court in Western Shipbreaking Corpn. (1997 (3) Guj LR 1984) did clearly state in para 8 of the said judgment thus" : "8. We now come to the Arbitration and Conciliation Ordinance 1996 which was promulgated on 16-1-1996 and brought into force with effect from 25-1-1996. The second Ordinance, 1996. The was also promulgated on 26-3-1991 as a supplement to the main Ordinance giving retrospective effect from 25-1-1996. The Ordinance received assent of the President on 16-8-1996 giving the retrospective effect from 25-1-1996. Thus the Ordinance has now become an Act. All the provisions of the Ordinance as well as the are same. Therefore, the use of the words "the Ordinance" shall also mean the and vice versa."

It appears in the portion extracted above that there is a mistake as to the date of promulgation of the second Ordinance as 26-3-1991. But the correct date is 26-3-1996."

46. Again, the Supreme Court considered the theory of precedent in Union of India v. Hansoli Devi, 2002 AIR SCW 3755 and said that-

"Judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier Judgement of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is, to refer the matter be forfeit to a Bench of three Judges setting out the reasons why it could not agree with the earlier judgment and then if the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a bench of three learned Judges is incorrect, then a reference could be made to a Bench of five learned Judges."

47. Five-Judges Bench of Supreme Court in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 [LQ/SC/2002/496] holds that the two and three-Judges Bench decisions in common cause cases (1996) 4 SCC 33 , [LQ/SC/1996/919 ;] (1996) 6 SCC 775 Raj Deo Sharma, (1998) 7 SCC 507 [LQ/SC/1998/1013] Raj Deo Sharma and (1999) 7 SCC 604 [LQ/SC/1999/920 ;] Raj Deo Sharma run counter to the dictum of the Constitution Bench in A.R. Antulay's case (1992) 1 SCC 225 , [LQ/SC/1991/691] therefore, could not be said to be good law to the extent they are in breach of the doctrine of precedents which has crystallised the rule of law that a Bench of lesser strength is bound by the view expressed by a Bench of larger strength and cannot take a view in departure or in conflict therefrom. In paragraphs 28 and 29, the Apex Court said that-

"28. The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained is that these decisions, though two or three-Judge Bench decisions, run counter to that extent to the dictum of the Constitution Bench in A.R. Antulay case and therefore cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well-settled principle of precedent which has crystallised into a rule of law is that a Bench of lesser strength is bound by the view expressed by a Bench of larger strength and cannot take a view in departure or in conflict therefrom. We have in the earlier part of this judgment extracted and reproduced passages from A.R. Antulay case. The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal proceeding or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix any time-limit for trial of offences. Having placed on record the exposition of law as to right to speedy trial flowing from Article 21 of the Constittion, this Court held that it was necessary to leave the rule as elastic and not to fix it in the frame of defined and rigid rules. It must be left to the judicious discretion of the Court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead, the test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted, as inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A.R. Antulay. In Kartar Singh case the Constitution Bench while recognising the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state : "92. Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the Court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors - (1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial and (4) prejudice caused to the accused by such delay."

29. For all the foregoing reasons, we are of the opinion that in Common Cause case (I) [as modified in common Cause (II)] and Raj Deo Sharma (I) and (II) the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion, we hold : "(1) The dictum in A. R. Antulay case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A. R. Antulay case are not exhaustive but only illustrative, they are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most of periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind on the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A. R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused. (5) The criminal Courts should exercise their available powers, such as those under Ss. 309, 311 and 258 of the Code of criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under S. 482 Cr PC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Government shall act."

Raju, J. comprising the Bench and concurring on question said in paragraph 36 that :

"36. The declaration of law made by the Constitution Bench of five learned Judges of this Court in the decision reported in A. R. Antulay case still holds the field and its binding force and authority has not been undermined or whittled down or altered in any manner by any other decision of a larger Bench. Consequently, the Benches of lesser number of constitution of Judges which dealt with the cases reported in "Common Cause A. Regd. Society v. Union of India, "Common Cause" A Regd. Society v. Union of India, Raj Deo Sharma v. State of Bihar and Raj Deo Sharma (II) v. State of Bihar could not have laid down any principles in derogation of the ratio laid down in A. R. Antulay case either by way of elaboration, expansion. clarification or in the process trying to distinguish the same with reference to either the nature of causes considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted. Even where necessities or justification, if any, were found therefor, there could not have been scope for such liberties being taken to transgress the doctrine of binding precedents, which has come to stay firmly in our method of administration of justice and what is permissible even under such circumstances being only to have had the matter referred to for reconsideration by a larger Bench of this Court and not to deviate by any descisions. The correctness of which stands referred to for consideration by this Bench. All the moreso, when there is no reason to doubt the correctness of the decision in A. R. Antulay case and the Bench concurs with the principles laid down therein."

48. In Nutan Kumar v. 2nd Additional District Judge 2002 AIR SCW 4040, the Apex Court said in paragraph 7 that -

"7. In the case of Nanakram v. Kundalrat, reported in (1986) 3 SCC 83 [LQ/SC/1986/159] the question was whether a lease in violation of statutory provisions was void. It was held that in the absence of any mandatory provision obliging eviction in case of contravention of the provisions of the the lease would not be void and the parties would be bound, as between themselves, to observe the conditions of lease. It was held that neither of them could assail the lease in a proceeding between themselves. This authority was in respect of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, whereunder also the landlord was obliged to intimate a vacancy to the Deputy Commissioner of the District and the Deputy Commissioner could allot or direct the landlord to let the house to any person. The provisions were more or less identical to the provisions of the said Act. This authority has directly dealt with the questions under consideration and answered them. The majority judgment takes note of this authority and holds as follows : "With utmost humility and reverence it is stated that above observations are not compatible with provisions of Ss. 10 and 23 of the Contract Act. Otherwise also, it is most respectfully pointed that the statement of law contained in the said observation is, perhaps, in conflict with the law declared in the decisions of the Hon'ble Supreme Court in Waman Shriniwas Kini v. Rati Lal Bhagwan Das and Co; Shrikrishna Khanna v. Additional District Magistrate, Kanpur, and Manna Lal Khetan v. Kedar Nath Khetan." Thus it is to be seen that the majority judgment, with a pretence of humility and reverence refuse to follow a binding authority of this Court. It was not open for the Full Bench to comment that the authority was not compatible with provisions of Ss. 10 and 23 of the Contract Act. The Full Bench also realised that there are no conflicting authorities. They therefore say that this authority is "perhaps in conflict with" the decisions in Waman Srintwas Kini, Shri Krishna Khanna and Manna Lal Khetan. One must therefore see whether there is any conflict of decisions. If there is no conflict then judicial discipline and propriety required that the majority of the Full Bench followed the binding authority of this Court."

49. Article 141 of the Constitution of India envisages that : "The law declared by the Supreme Court shall be binding on all Courts within the territory of India." Therefore, all Courts in India are bound to follow the decision of the Apex Court, exception being doctrine of "per incuriam" and "sub-silentio". This article empowers the Apex Court to declare the law which becomes the law of the land which is essential for a proper administration of justice with the expectation that like cases should be decided alike. Every Court is bound to follow any case decided by a Court above it in the hierarchy and Court is bound by precedents. A case is regarded as a precedent when it furnishes rules which may be applied in settling the rights of the parties. The doctrine "Stare-decisis", commonly called "The doctrine of precedent" means adherence to decide cases on settled principles and not to disturb matters which have been established by judicial decisions. The precedent should serve as a rule for future guidance in deciding analogous cases (Words and Phrases, Permanent Edition Vol. 33 pp. 372-373). It cannot be doubted that in the development of law, promotion of consistency and certainty in decisions on all the law is maintained and inconsistency avoided. However, perusal of various decisions demonstrates that the Apex Court and High Courts have been called upon to consider the question of binding precedents from time to time. Indisputable question is that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. There seems no dispute to the proposition that decision of Larger Bench of the Apex Court is binding on Smaller Bench of the same court and the High Courts. The difficulty arises in case of conflict between the two decisions by Benches consisting of same number of Judges, whether to follow the earlier or later and in absence of the Apex Court decision, similar difficulty may arise with regard to the High Court decisions. The normal rule is that in the absence of any decision of the Apex Court, subordinate Courts are bound to follow the decisions of High Court to which they are subordinate, and where conflict is between the judgments of a single Bench and Division Bench. Division Bench decision will have to be followed and where there is conflict between Division Bench and larger Bench, the decision of Larger Bench has to be followed. But where the conflict is between two decisions pronounced by Benches consisting of same number of Judges, difficulty arises which decision is to be followed when after careful examinations of the decisions, conclusion is that both of them directly apply to the case before the Court. High Courts have expressed different views, we have found, some taking the line that the Court will be at liberty to follow that decision which seems to it more correct irrespective of the fact it is earlier or later in point of time while others hold that the earlier decision should be followed.

50. By now the Supreme Court has dealt with the binding nature of its pronouncements in catena of cases, some of which have been discussed in this judgment. The common thread passing through the judgments seems to be that where High Courts find any conflict between the views expressed by Larger and Smaller Benches of the Supreme Court, the proper course for the High Court is to follow the opinion expressed by Larger Bench in preference to those expressed by similar Benches of the Court. With respect to a situation where there are conflicts between the two decisions of the Court given by Judges of equal strength, one view is that latter decision of the Apex court must be followed since it impliedly overrules the earlier and other view is that this practice is neither a rule of propriety nor a rule to promote justice. It may be a convenient rule to promote a consistency and avoid uncertainty. If it is meant to promote consistency in the administration of justice, why not follow the former of the two decisions when both of them are of equal sanctity. The adherence to one practice would be as good or as bad as adherence to the other. However, when the Apex Court was faced with two directly contradictory judgments, Bhagwati, J., speaking for the Bench, followed the earlier judgment in preference to the latter for two reasons, namely earlier decision of Court in Sarvate T. B's case (1966 MPLJ 26) was not brought to the notice of the Court while deciding Smt. Kamla Soni's case (AIR 1969 NSC 186) resulting in patent contradiction, former being a decision by Larger Bench than the latter and on principle the view taken in Sarvate T. B.'s case commended to the Court to be the right view. This decision and K. S. Subramaniam's case (AIR 1976 SC 2433 [LQ/SC/1976/247] ) led to rest the opinion to follow later decision. Moreover, doing so would be clear manifestation of violating precedents and defeat the principle that the High Courts lack competence to sit over the judgments of the Apex Court and give them interpretation they may choose, result of which may cause violence to theory of precedents and hierarchy and the supremacy of Courts. It is well settled that Article 141 gives a constitutional status to the theory of the precedents in respect of the law declared by the Supreme Court which is essential for proper administration of justice. 7A. In Raghubir Singh's case (AIR 1989 SC 1933 [LQ/SC/1989/332] ), the Apex Court said that the rule has been evolved in order to promote consistency and certainty in the development of the law and it is necessary, therefore that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges and law laid down in Acharya Maharajshri Narandra Prasadji Anandprasadji Maharaj AIR 1974 SC 2098 [LQ/SC/1974/300] is that even where the strength of two different differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Godfrey Philips India Limited (1985) 4 SCC 369 [LQ/SC/1985/315] and found the well accepted and desirable practice of the latter Bench referring the case to a Larger Bench justified. Deprecating the tendency of some Judges violating the principle, desirable it would be to quote paragraphs 17 to 19 again the emphasise the point as under :

"17. It would be difficult for us to appreciate the judgment of the High Court. 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 the 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 co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.

18. Deprecating this kind of tendency of some Judges, Das Gupta, J. in Mahadev Lal Kanodia v. The Administrator General of West Bengal, AIR 1960 SC 936 [LQ/SC/1960/127] said (at P. 941) :- "We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case 58 Cal WN 64 : AIR 1954 Cal 119 [LQ/CalHC/1953/239] was cited before the learned Judges who heard the present appeal, they took on themselves to say that the previous decision was wrong, of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety from the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co-ordinate jurisdiction in a High Court start overruling one another's decision.

19. The attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan v. Ramchandra, AIR 1965 SC 1767 [LQ/SC/1965/66] was not quite different (at p. 1773) : "it is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge need to be considered, he should not embark upon that enquiry sitting as single Judge but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and properiety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself." Unless the Bench can explain the earlier decision on sound reasonings as in Sanjay Dutt's case (1994 AIR SCW 3857) artificial and casual attempt may violate efficacy of binding effect contemplated by Art. 141 of the Constitution of India. Uniformity and consistency being the core of the judicial discipline. Again, it is necessary to re-emphasise what the Apex court said in paragraphs 20 to 23 of Chandra Prakash's case (AIR 2002 SC 1652 [LQ/SC/2002/437] ) (supra) :

"20. The principles of the doctrine of binding precedent are no more in doubt. This is reflected in a large number of cases decided by this Court. For the purpose of deciding the issue before us, we intend referring to the following two judgments of this Court.

21. In the case of Union of India v. Raghubir Singh (supra), a 5-Judge Bench of this Court speaking through Pathak, C. J., held that pronouncement of a law by a Division Bench of this Court is binding on another Division Bench of the same or small number of Judges. The judgment further states that in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the court. To avoid a repetition of the discussion on this subject, we think it appropriate to reproduce the following paragraph of that judgment which reads as follows : "28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exisgencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bangal (1975) 3 SCR 211 [LQ/SC/1975/25] : AIR 1975 SC 775 [LQ/SC/1975/25] , a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal (1975)1 SCR 778 [LQ/SC/1961/230] : AIR 1974 SC 2154 [LQ/SC/1974/245] decided by a Division Bench of five Judges in preference to Bhutnath Mate v. State of West Bengal AIR 1974 SC 806 [LQ/SC/1974/31] decided by a Division Bench of two Judges. Again in Smt. Indira Nehru Gandhi v. Rajnarain (1976) 2 SCR 347 [LQ/SC/1975/439] : AIR 1975 SC 2299 [LQ/SC/1975/439] Beg. J. held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in His Holiness Kesavananda Bharati Sri Padagalavaru v. State of Kerala, 1973 Suppl. SCR 1 [LQ/SC/1973/159] : AIR 1973 SC 1461 [LQ/SC/1973/159] . In Ganapati Sitaram Belvalkar v. Waman Shripad Mage (Since Dead) Through LRs. (1981) 4 SCC 143 [LQ/SC/1981/331] : AIR 1981 SC 1956 [LQ/SC/1981/331] , this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal (1975)1 SCR 127 [LQ/SC/1951/54] : AIR 1974 SC 1596 [LQ/SC/1974/162] this court specially observed that where the view expressed by two different Division Benches of this court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat (1975)2 SCR 317 [LQ/SC/1965/274] : AIR 1974 SC 2098 [LQ/SC/1974/300] , that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India v. Godfrey Philips India Ltd. (1985)4 SCC 369 [LQ/SC/2018/30] : AIR 1986 SC 806 [LQ/SC/1985/315] which noted that a Division Bench of two Judges of this Court in Jit Ram v. State of Haryana (1980)3 SCR 689 [LQ/SC/1980/191] : AIR 1980 SC 1285 [LQ/SC/1980/191] had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P. (1979) 2 SCR 641 [LQ/SC/1978/389] : AIR 1979 SC 621 [LQ/SC/1978/389] , on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.

22. Almost similar is the view expressed by a recent judgment of 5-Judge bench of this Court in Parija's case (AIR 2002 SC 296 [LQ/SC/2001/2812 ;] ) (supra). In that case, a Bench of 2 learned Judges doubted the correctness of the decision of a Bench of 3 learned Judges, hence, directly referred the matter to a Bench of 5 learned Judges for reconsideration. In such a situation, the 5 Judge Bench held that judicial discipline and propriety demanded that a Bench of 2 learned Judges should follow the decision of a Bench of 3 learned Judges. On this basis, the 5-Judge Bench found fault with the reference made by the 2-Judge Bench based on the doctrine of binding precedent.

23. A careful perusal of the above judgments shows that this Court took note of the hierarchical character of the judicial system in India. It also held that it is of paramount importance that the law declared by this Court should be certain, clear and consistent. As stated in the above judgments, it is of common knowledge that most of the decisions of this Court are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the disputes between them but also because in doing so they embody a declaration of law operating as a binding principle in future cases. The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court. It is in the above context, this Court in the case of Raghubir Singh held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the Division Bench of the same or similar number of Judges. It is in furtherance of this enunciation of law, this Court in the latter judgment of Parija (supra) held that - "But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges stating 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."

Therefore, the well settled principle of precedent which has cristallised into the rule of law, a Bench of lesser strength is bound by the view expressed by a Bench of larger strength and cannot take a view in departure or in conflict therefrom. Otherwise, the Apex Court and High Courts would be called upon to decide such question time and again despite repeated assertion of law on the subject and this seems to have happened in recent decision when the three-Judge Bench of the Apex Court overruled decision in United India Assurance Company Limited v. Bhushan Sachdeva, AIR 2002 SC 662 [LQ/SC/2002/75] for taking stand inconsistent to the stand taken by co-ordinate Bench in Chinnama George v. N. K. Raju (2000)4 SCC 130 [LQ/SC/1977/207] , Narendra Kumar v. Yorenissa (1998)9 SCC 202 [LQ/SC/2000/427] and Rita Devi (Smt) v. New India Assurance Company Limited (2000) 5 SCC 113 [LQ/SC/2000/807] .

51. Having considered the matter with broader dimensions, we find that various High Courts have given different opinion on the question involved. Some hold that in case of conflict between two judgments on a point of law, later decision should be followed; while others say that the Court should follow the decision which is correct and accurate whether it is earlier or later. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding precedent and Article 141 of the Constitution of India. There are also decisions which hold that single Judge differing from another single Judge decision should refer the case to Larger Bench, otherwise he is bound by it. Decisions which are rendered without considering the decisions expressing contrary view have no value as a precedent. But in our considered opinion, the position may be stated thus - with regard to the High Court, a single Bench is bound by the decision of another single Bench. In case, he does not agree with the view of the other single Bench, he should refer the matter to the Larger Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding. The decision of Larger Bench is binding on smaller Benches. In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balveer Singh's case (AIR 2001 Madh Pra 268) (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over ruled on this point.

52. After having answered the reference, writ petitions be placed before the single Judge for decision on merits. Order accordingly.