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Judgment
By a virtue of the reference made by the Division Bench, writpetitions were taken up for hearing. Before touching the merits of the case, at the
very outset, learned Advocate General representing the respondents contended to canvass the maintainability of the reference made by the Division
Bench of this court for hearing and deciding the petitions by a larger bench in presence of the law laid down by a full bench of this court in Girdhari
Lal Anand Saraf Vs. State of J&K (AIR 1969 J&K 113), wherein the legality and constitutional validity of Section 3 of the Levy of Tolls Act,
Samvat 1995 (hereinafter to be referred to as the Act) has been held to be intravires which is also the subject matter of challenge in the present
writ petition.
The matrix of the case is that the petitioners in this bunch of petitions, have invoked the extraordinary writ jurisdiction of this court under Article
226 of the Constitution of India projecting an issue with regard to the legality and constitutional validity of Section 3 of the Act and SROs 348 arid
349 of 1982. Before the issuance of impugned SRO 348 of 1982, toll tax was levied on the goods at the rate of 6 paise per kg. By the issuance of
SRO 348 of 1982 dated 20.8.1982, additional toll tax at the rate of 00.60 paise per kg. and SRO 349 of 1982dated 20.8.1982 sales tax at the
rate of 8% per kg. respectively on dry fruits including almonds, walnuts and walnut kernals to be exported out of the State has been imposed. The
petitioners also seek to quash SRO 436 of 1983 dated 23.8,1983 whereby the State has withdrawn exemption from payment of toll tax by
various Small Scale Industrial Units (for short, SSIs) granted under SRO 484 of 1977.
The petitioners contended before the writ court that the impugned SROs are dis criminatory and violative of Articles 14, 19(1)(g), 265, 286(1)
and 301 of the Constitution. The learned Single Judge formulated five points for consideration and in view of the law laid down in AIR 1969 J&K
113 holding the levy of tax under Section 3 of the Act intra vires of Articles 301 and 304 of the Constitution, felt it necessary for reconsideration of
the law laid down by the Full Bench, by a larger bench to determine the. controversy by an authoritative pronouncement. The learned Single Judge
referred the writ petitions by an order dated 6.2.1987 for consideration of a larger bench.
Pursuant to the said reference Division Bench proceeded to hear the petitions. Upon hearing the learned counsel for the parties, the Division'
Bench was persuaded to form a view that prima facie there is merit in the contention of the writ petitioners. The Division Bench in view of the law
laid down by the Full bench of this court similarly, felt the necessity 7n the interest of justice to refer the petitions to be heard and decided by a
larger bench becuase decision in Girdhari Lal Anand's case (supra) had been delivered by a Full Bench consisting of three learned Judges. This is
how this reference has come up before the Full Bench.
While the matter was taken up, as pointed out earlier, a controversy has been generaied by learned counsel for the respondents with regard to
the maintainability of the reference made by the learned Single Judge as well, as by the Division Bench for reconsideration of the Full Bench
Judement on the plea that the law laid down by the Full bench of this court, having its binding character, the learned Single Judge .and the Division
Bench ought to have followed the law laid down by the Full Bench and maintained the judicial propriety and discipline. The plea of respondents
has been contested by the writ petitioners.
We have heard learned counsel for the parties on the issue of maintainability of the reference and considered the record of the cases.
Learned counsel representing the petitioners in support of the reference have placed reliance and on the force of the judgements reported in AIR
1960 SC 936, 1962(2) SCR 558,1969(3) SCC 156,1991 Sales Tax Cases (Vol. 80) page 263 and AIR 1991 SC 1893, want the court to
maintain the reference in affirmative.
In AIR 1960 SC 936 (Mahadeolal Kanmdia vs. Administrator General of West Bengal), the Apex Court pronounced that:
A Division bench should not take upon itself to say that an earlier Division Bench of difference of opinion with an earlier decision of referring the
question to a larger bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. Similarly, a single Judge differing
from a decision of another Single Judge in a previous case on a question of law should refer the case to a larger bench instead of deciding the case
in accordance with his own view"".
Similar view is taken in case titled Jaisri Sahu Vs. Raj Dewan Dubey & others, reported in 1962(2) SCR 558, holding that:
When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons
to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full bench. Where two conflicting
decisions are placed before a later bench, the better course for the latter is to refer the matter to a Full Bench without taking upon itself to decide
whether it should follow the one Bench decision or the other"".
In another judgement cited at the bar in support of the contention on the maintainability of the reference is (1969) 3 SCC 156 (State of Gujrat
versus Ram Parkash P. Puri and Others), wherein the Supreme Court has held :
It is improper for a Division Bench to bypass a Full Bench decision. Judicial decorum required a reference to a full bench; an earlier opinion
expressed by the Supreme Court in Mahadeolal Kamodia Vs. The Administrator General of West Bengal. (1960) 3 SCR 578, was cited ""If one
thing is more necessary in law than any other things, its is the quality of certainty. That quality would totally disappear if Judges of coordinate
jurisdiction in a High Court start overruling one another's decision"".
In Union of India Vs. Paras Laminated(P) Ltd. 1991 Sales Tax cases (Vol. 80),263 the Bench of two members of the tribunal while
determining the matter, doubted the correctness of the earlier decision of a Bench of three members of the Tribunal in Bakelite Hylama Ltd. Vs.
Collector of Customs (1986) 25 ELT 240 and directed that the case be placed before the President of the Tribunal for referring to a larger bench.
The President referred the case to a larger bench of five members. The High Court struck down the order of the bench of five members of the
tribunal, observing that the bench of two members ought to have followed the earlier decision of the larger bench of three members and reference
of the case to still larger bench was contrary to judicial precedent and judicial discipline. The Supreme Court while dealing with this proposition
held
It is true that a Bench of two members must not lightly disregard the decision of another bench of the same Tribunal on an identical question. This
is particularly true earlier decision is rendered by a when the larger bench. The rationale of this rule is the need for continuity, certainty and
predictability in the administration of justice. Person affected by decisions of tribunals or courts have a right to expect that those exercising judicial
functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters. Classification of particular goods adopted
in earlier. decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency should shake public confidence in the
administration of justice. It is, however equally true that it is vital to the administration of justice that those exercising judicial power must have the
necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings bring to light what is perceived by them as
an erroneous decision in the earlier case. In such circumstances, it is but natural and reasonable and indeed efficacious that the case is referred to a
larger bench. This is what was done by the bench of two members who in their reasoned order pointed out what they perceived to be an error of
law in the earlier decision and stated the points for the President to make a reference to a larger bench"".
In a similar proposition, the Supreme Court inAIR 1991 SC 1893 (Suderjas Kanyalal Bhathija's & Ors. Vs. Collector, Thane Maharashtra),
held :
The attention of the High Court in the present case was drawn to the decision in Chikalthane case. Counsel for the state and interveners seemed
to have argued that the present case really fell fairly and squarely within that was said there. They were indeed on terra firma since the decision in
Chikalthane case was a clear authority against every contention raised by the petitioner. Faced with this predicament counsel for the petitioners
urged before the High Court that their case should be referred to a larger bench to reconsider the decision in Chikalthane case. But learned Judges
(Dharmadhikari and Kantharia, JJ.) did not heed to that submission. They neither referred the case to a larger bench nor followed the view taken in
the Chikalthane case"".
The Supreme Court on consideration of this aspect of the case observed, in paras 17 to 19 of the judgement, as under:
it would be difficult for us to appreciate the judgement 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 multiJudge Court, the Judges are bound by precedents and procedure. They could use their discretion
only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a
learned Single Judge or a Division Bench does not agree with the decision of a bench of coordinate jurisdiction, the matter shall be referred to a
larger bench. It is a subversion of judicial process not to follow this procedure"". 18. Depreciating this kind of tendency of some Judges, Das
Gupta, J. in Mahadeolal Kanodia Vs. Administrator General of West Bengal, AIR 1960 SC 936 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, 53 Cal WN 64: AIR 1954 Cal 119 was cited
before the learned Judges who heard the present appeal they took on themselves to say that the previous decision waswrong, instead of following
the usual procedure in case of difference of opinion with an earlier decision, of referring. Judicial decorum 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 overruling one another's decision"". 19. The attitude of the Chief Justice,
Gajervdragadkar, in Lala Shri Bhagwan Vs Ram Chand, AIR 1966 SC 1767 was not quite different (at p. 1773):
It is hardly necessary to emphasize 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 reconsidered, he
should not embark upon that enquiry sitting as a 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 health principles of judicial decorum and propriety. It is to be regretted that the learned Judge
departed from the traditional way in the present case and chose to examine the question himself"".
Mr. Salaria, learned Advocate General in opposition of the reference has vehemently argued that if the reference is held to be maintainable, it
will give option to the Judges of different benches either to follow or not to follow the judgement rendered by the Division benches or the full
benches and develop a situation of uncertainty of principles of judicial decorum and judicial propriety. It will also create judicial indiscipline and its
maintainability in itself is negatory to law amounting to subversion of judicial process. In order to bring home his point he has relied upon (1998) .2
SCC 290 Commissioner of Income Tax Vs. Triloknath Mehrotra and Ors. wherein it is held :
We do not find any conflict in the law laid down in the case of R.M. Chidambaram Pillai with the law laid down in the earlier two cases. The
decision in the case of Rajkumar Singh Hukam Chand Ji was rendered by a Bench of three Judges. Therefore, even assuming that there was
conflict between that decision and the decision rendered in Chidambaram Pillai case which was rendered by a Bench of two Judges, the decision
of the larger Bench will prevail"".
He has also relied upon 1998(2) SCC 516 which deals with the proposition where two appeals were filed against a judgement of the Single
bench by different parties. The appeal came up for consideration before different benches. One bench dismissed the appeal, the other bench while
considering the other appeal, taking note of the Supreme Court decision, allowed the appeal on the ground that the matter is beyond the
jurisidiction of the High Court, therefore the writ petition adjudicated by the learned Single Judge was not maintainable. The Supreme Court held :
We would, however only like to say that the second division bench if it was of the opinion that it had to take a different view than that taken by the
first Division Bench the matter should as matter of propriety have been referred to a larger bench. It is certainly a question of selfdiscipline which
the court should observe"".
The contention of Mr. Salaria that the learned Single Judge and the Division bench are bound to follow the judgement delivered by the Full
Bench of this Court in Girdhari Lal Anand's case (supra) otherwise it will render a situation of an option either to follow or not to follow the
judgement of the larger bench causing judicial indiscipline and subversion of judicial process, though is much appealing, yet while the mistake
committed in the earlier decision is brought to the notice of the court seized of the matter and if the court is of the view that the earlier decision
rendered needs reconsideration, it is the duty of the court to correct the law as early as possible to determine it with reasons which carry
Conviction with provisions and orders to make it more effective otherwise it will create a situation of confusion for the bar and the courts to choose
between conflicting opinions. The apprehension of Mr. Salaria with regard to judicial indiscipline and option with the Judges is also misplaced. If
during the hearing of the matter, the court prima facie finds and is not covinced to follow the judgement of the coordinate bench or the larger
bench, the court need not halfheartedly and mutely follow it unless convinced that the law laid down in the judgement of the larger bench is the
correct law and its application to the case in hand shall do justice to the parties. If at this stage the Judge takes a different view ignoring the
judgement of the larger bench with whatever reasoning will no doubt be unhealthy for maintaining judicial discipline and decorum but, where the
matter is referred for decision of a larger bench, it cannot be said that the Judge has exceeded the limits and given rise to a case of apprehension of
judicial indiscipline or it can develop a practice of option.
Considering the facts of the case in hand, the contentions raised for and against the maintainability of the referece and the law cited at the bar
we need not to carry much for determination of the issue in hand for the reason that the law laid down by the Supreme Court in 1991 Sales Tax
Cases (Vol. 80) p. 263 and AIR 1991 S.C. 1893 that if a single bench or a bench of coordinate jurisdiction or by a larger bench requires
reconsideration though the decision rendered by the larger bench is required to be followed for maintaining the judicial discipline and quality of
certainty, the best course is to refer the matter either to a Division bench or to a larger bench, is applicable to this case.
Applying this text of law pronounced by the Supreme Court to the present case, it can be said with no hesitation that the learned Single Judge
while examining the controversy in the writ petitions visavis the law laid down by the full bench of this court in Girdhari Lal Anand's case, has not
exceeded his jurisdiction or limitation in referring the matter for constitution of a larger bench and subsequently the Division Bench also committed
no mistake of judicial propriety or judicial discipline, having noticed that the judgement of the full bench needs reconsideration, by referring the
matter for reconsideration by a larger bench.
For the aforesaid reasons the reference made by the Division Bench under the circumstances is held maintainable. The reference be posted for
hearing.