Per Incuriam: Supreme Court Explains Entire Law
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In the latest judgement of the Supreme Court reported as INDORE DEVELOPMENT AUTHORITY vs. SHAILENDRA CIVIL APPEAL No.20982 OF 2017, the entire law on the principle of Per Incuriam has been explained in great detail after referring to all earlier judgements of the Supreme Court and High Courts on the subject.
Justice Arun Mishra, who has authored the judgement of the Supreme Court, has explained that a judgement can be said to be “per incuriam” if it has been delivered in ignorance of the statutory provisions.
The Supreme Court has laid down that a judgement can be said to “per incuriam” if another binding judgement has been disregarded by the Court.
In order words, the concept of “per incuriam” means that a given decision is in disregard of the previous decisions of the Court itself, or that it was rendered in ignorance of the terms of an applicable statute or of a rule having the force of law, the Supreme Court has laid down in the latest judgement.
PRINCIPLE OF PER INCURIAM:
146. The concept of “per incuriam” signifies those decisions rendered in ignorance or forgetfulness of some inconsistent statutory provisions, or of some authority binding on the Court concerned. In order words, the concept means that a given decision is in disregard of the previous decisions of the Court itself, or that it was rendered in ignorance of the terms of an applicable statute or of a rule having the force of law.
147(a). In practice, per incuriam, is taken to mean per ignoratium, as observed by this Court in Mamleshwar Prasad v. Kanahaiya Lal, (1975) 2 SCC 232, thus:
“5. A litigant cannot play fast and loose with the Court. His word to the Court is as good as his bond and we must, without more ado, negative the present shift in stand by an astute discovery of a plea that the earlier judgment was rendered per incuriam.
6. The wisdom which has fallen from Bowen, L.J. in Ex Parte Pratt 52 Q.B. 334, though delivered in a different context, has wider relevance to include the present position. The learned Lord Justice observed :
“There is a good old-fashioned rule that no one has a right to conduct himself before a tribunal as if he accepted its jurisdiction, and then afterwards, when he finds that it has decided against him, to turn round and say, "You have no jurisdiction".
7. Certainty of the law, consistency of rulings and comity of courts- all flowering from the same principle-coverage 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, whereby 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.”
147(b). In A.R. Anutulay v. R.S. Nayak, (1988) 2 SCC 602, this Court has observed:
“42. It appears that when this Court gave the aforesaid directions on 16th February 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar’s case (supra). See Halsbury’s Laws of England, 4th End, Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. [1944] 2 AER 293. Also see the observations of Lord Goddard in Moore v. Hewitt [1947] 2 A.E.R. 270-A and Penny v. Nicholas [1950] 2 A.E.R. 89. "per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent 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. See Morelle v. Wakeling [1955] 1 All E.R. 708. Also, see State of Orissa v. The Titaghur Paper Mills Co. Ltd. [1985]3SCR26 . We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.”
47. In support of the contention that a direction to delete wholly the impugned direction of this Court be given, reliance was placed on Satyadhvan Ghoshal v. Deorajini Devi [1960] 3 SCR 590 . The ratio of the decision as it appears from pages 601 to 603 is that the judgment which does not terminate the proceedings, can be challenged in an appeal from final proceedings. It may be otherwise if subsequent proceedings were independent ones.” (emphasis supplied)
147(c). In State of Uttar Pradesh v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, as to per incuriam this court has observed:
“40. ‘Incuria literally means ‘carelessness’. In practice per in curium 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’. 1944 1KB 718 Young v. Bristol Aeroplane Ltd.. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey AIR (1962) SC 83 this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passed from Halsbury’s Laws of England incorporating one of the exceptions when the decisions of an appellate court is not binding.”
147(d). In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101, it was held that decision of ignorance of rule is per incuriam,the court has observed:
“11. ….A decision should be treated as given per incur am when it is given in ignorance of the terms of a statute or of a rule having the force of a statute……”
147(e). In Narmada Bachao Andolan (III) v. State of Madhya Pradesh, AIR 2011 SC 1989, this court has observed: “61. Thus, "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case 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.” (emphasis supplied)
148. To refer the case to larger Bench, reliance was placed by the landowners on Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010 13 SCC 336 laying down thus:
“17. A coordinate bench cannot comment upon the discretion exercised or judgment rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciate rules of law form the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed. (Vide: Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and Ors. AIR 1968 SC 372; Sub-Committee of Judicial Accountability v. Union of India and Ors. (1992) 4 SCC 97; and State of Tripura v. Tripura Bar Association and Ors. (1998) 5 SCC 637).
18. In Rajasthan Public Service Commission and Anr. v. Harish Kumar Purohit and Ors. (2003) 5 SCC 480, this Court held that a bench must follow the decision of a coordinate bench and take the same view as has been taken earlier. The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues. If the latter bench wants to take a different view than that taken by the earlier bench, the proper course is for it to refer the matter to a larger bench.”
149. It was contended on behalf of the landowners that since the decisions of Pune Municipal Corporation as well as of Shivraj case (supra) are of Three Judges bench then propriety requires that the case should be referred to a Larger Bench. With respect to Shivraj (supra) it is apparent that no view has been expressed by the Division Bench making reference itself, as observed that upon reading the decision of this court in Union of India & Ors. v. Shivraj & Ors. (2014) 6 SCC 564, they have not found any view on the question arising namely whether the period during which interim stay has been enjoyed should be extended while considering the provisions of Section 24(2) of the Act of 2013. Division Bench of this court in order dated 12.1.2016, while making reference has rightly observed thus:
“We have considered the views expressed in Sree Balaji Nagar Residential Association (supra) and Union of India &Ors. v. Shiv Raj and others (supra). At the outset, we clarify that upon reading the decision of the three Judge Bench of this Court in Union of India and other versus Shiv Raj and others, we do not find any view of the bench on the question arising, namely, whether the period during which the award had remained stayed should be excluded for the purposes of consideration of the provisions of Section 24(2) of the Act of 2013. Insofar as the decision of the coordinate bench of this Court in Sree Balaji Nagar Residential Association (supra) is concerned, having read and considered paragraphs 11 and 12 thereof, as extracted above, it is our considered view that the legal effect of the absence of any specific exclusion of the period covered by an interim order in Section 24(2) of the Act of 2013 requires serious reconsideration having regard to the fact that it is an established principle of law that the act of the court cannot be understood to cause prejudice to any of the contesting parties in a litigation which is expressed in the maxim “actus curiae neminem gravabit”.
150. In Pune Municipal Corporation (supra) the land acquisition had been quashed by the High Court in the year 2008. Most of the special leave petitions were filed in this court in the year 2008. The High Court has quashed the acquisition proceedings and has directed restoration of the possession. When the High Court has quashed the acquisition, there was no room for this court to entertain the submissions based upon section 24(2) of the Act of 2013. There was no question of payment of compensation to the owners or depositing it in the court as land acquisition itself had been quashed in 2008. There was no subsisting acquisition and award. When Act of 2013 came into force thus no question could have been raised as to non-compliance with section 24 for five years or more. Thus, there was no question of taking possession or payment of compensation as per provisions contained in section 24(2). The provisions contained in section 24 could not be said to be applicable after quashing/lapse of the proceedings. Thus, when the provisions of section 24 were not attracted to the fact situation of the case in Pune Municipal Corporation (supra), the decision cannot be said to be an authority on a question which, in fact, did not arise for consideration of this court. Thus, the decision rendered on a question which was not germane to the case cannot be said to be a binding precedent it is obiter dicta and thus has to be ignored.
151. When the High Court has quashed the land acquisition in Pune Municipal Corporation (supra), as we have held that period of interim stay has to be excluded once the High Court has quashed the land acquisition in case it was illegally quashed, the maxim actus curiae neminem gravabit would come to the rescue for the acquiring body and it could not have said that acquisition had lapsed, thus there was no lapse under section 24(2). There was no question of taking possession or payment of compensation once the acquisition had been quashed. This court in Pune Municipal Corporation (supra) had not dwelled upon the merit of the decision of the High Court quashing the land acquisition and has outrightly decided the case on the basis of section 24(2). It obviously had no application to the fact situation of the case. As such a decision cannot be said to be an authority on the aforesaid.
152. With respect to the decision of this court in Pune Municipal Corporation (supra) we have given deep thinking whether to refer it to further Larger Bench but it was not considered necessary as we are of the opinion that Pune Municipal Corporation (supra) has to be held per incuriam, inter alia for the following reasons:
1. The High Court has quashed land acquisition, in Pune Municipal Corporation case (supra), as such provisions of section 24(2) of the Act of 2013 could not be said to be applicable. It was not surviving acquisition then compliance of section 24(2) by taking possession or by payment of compensation for five years or more did not arise as acquisition had been quashed by the High Court in 2008.
2. It was not held in Pune Municipal Corporation (supra) that High Court has illegally set aside the acquisition. In case, High Court had set aside the acquisition in an illegal manner then also maxim ‘actus curiae neminum gravabit’ would have come to the rescue to save acquisition from being lapsed and a period spent in appeal in this Court was to be excluded.
3. The provisions of Section 24(2) could not be said to be applicable to the case once acquisition stood quashed in 2008 by the High Court. Thus, there was no occasion for this court to decide the case on aforesaid aspect envisaged under section 24(2) of the Act of 2013.
4. That statutory rules framed under section 55 of Act of 1894 and orders having statutory force issued under, constitutional provisions or otherwise by various State Governments were not placed for consideration before this court in Pune Municipal Corporation case (supra)
5. Provisions of section 34 prevailing practice of deposit, and binding decisions thereunder section 34 of the Act of 1894 were not placed for consideration of this court while deciding the case.
6. The proviso to section 24(2) was not placed for consideration which uses different expression ‘deposited’ than ‘paid’ in main section 24(2) which carry a different meaning.
7. What is the meaning of expression ‘paid’ as per various binding decisions of this court when the obligation to pay is complete as held in Straw Board Manufacturing Co. Ltd., Saharanpur v. Gobind (supra), Management of Delhi Transport Undertaking v. The Industrial Tribunal, Delhi & Anr. (supra), Indian Oxygen Ltd. v. Narayan Bhoumik (supra) and the Benares State Bank Ltd. v. The Commissioner of Income Tax, Lucknow, (supra) and other decisions were not placed for consideration.
8. The binding decisions of the court as to the consequence of non-deposit in Hissar Improvement v. Smt. Rukmani Devi & Anr. (supra), Kishan Das & Ors. v. State of U.P. & Ors. (supra) and Seshan & Ors. v. Special Tehsildar & Land Acquisition Officer, SPICOT, Pudukkottai (supra) etc. were not placed for consideration while deciding the case.
9. The maxim “nullus commodum capere potest de injuria sua propria” i.e. no man can take advantage of his own wrong of filing litigation and effect of refusal to receive compensation was not placed for consideration while deciding the aforesaid case.
10. There is no lapse of acquisition due to the non deposit of amount under the provisions of Act of 1894 or Act of 2013. In this regard, the provision of section 77 and 80 relating to payment and deposit under Act of 2013 which corresponds to section 31 and 34 were not placed for consideration of this court while rendering the aforesaid decision.
11. The past practice for more than a century, of deposit in treasury, as per rules/ orders and decisions were not placed for consideration. It was not open to invalidate such deposits made in treasury without consideration of the provisions, prevailing practice, and decisions under the Act of 1894.
The decision rendered in Pune Municipal Corporation (supra), which is related to Question No.1 and other decisions following, the view taken in Pune Municipal Corporation (supra) are per incuriam. The decision in Shree Balaji (supra) cannot be said to be laying down good law, is overruled and other decisions following the said decision to the extent they are in conflict with this decision, stand overruled. The decision in DDA v. Sukhbir Singh (supra) is partially overruled to the extent it is contrary to this decision. The decisions rendered on the basis of Pune Municipal Corporation (supra) are open to be reviewed in appropriate cases on the basis of this decision.