amtd-I-Xpw, amtä-I-Xpw

(By B. Somasekharan Nair, Advocate, Punalur)

1988-- se tamt«mÀ hml\ \nb-a-¯nÂ 2019-þÂ 32-þmw \¼-dmbn \ne-hnÂ h¶ (32 of 2019) t`Z-KXn ]cs¡ NÀ¨ sN¿-s¸-Sp-I-bm-W-tÃm. A\p-Iq-e-am-bpw, {]Xn-Iq-e-ambpw \nc-h[n t]À cwK¯vh¶n-«pIv. cIp Iq«cpw X§-fpsS hmZ-ap-J-§Ä¡v Dt]m-Zv_-e-I-§-fmb \ym-bo-I-c-W-§fpw \S-¯p¶p-Iv. F¶mÂ hml-\-A-]-I-S-§sf \nb-{´n-¡m-\p-ff ASn-Øm-\-t`-Z-K-Xn-Isf Ipdn¨v \nb-a-ÚÀ t]mepw Nn´n¨p ImWp-¶n-Ã.

Ct¸mÄ sImIp h¶n-cn-¡p¶ t`Z-K-Xn-IÄ Hcp `mK¯v in£ AÀln-¡p¶ Ipä-§fpw, adp-`m-K¯v henb A]-I-S§Ä Hgn-hm-¡m-\p-ff {]Xn-tcm-[-hp-am-Wv. t`Z-K-Xn-bnÂ \nÀt±-in¨n«pff ]ng-XpI HcÀ°-¯nÂ P\-§Ä tNmZn¨p hm§n-b-Xm-Wv. slÂaäv [cn-¡m-¯-hÀ¡pw, koäv s_Âäv CSm-¯-hÀ¡pw hn[n-¨n-cp¶ 100 cq] ]ng ]pÃp-t]mse hen-s¨-dnªv _Ô-s¸« DtZ-ym-K-ØÀ¡v ap¼n-eqsS sImª-\w-Ip¯n Nodn ]mbp¶ AhØ \nb-a-s¯-t]mepw ]cn-l-kn-¡p-¶-Xm-bn-cp-¶p. F¶mÂ ]ng-XpI Iq«m³ Xocp-am-\n¨ tI{µ-kÀ¡mÀ “H¶p-InÂ Bimsâ s\©¯v AsÃ-¦nÂ If-cn¡v ]pd¯v"F¶ a«nÂ ]e \nbaewL-\-§Ä¡pw Iq«nb XpI SmIvkn HmSn-¨pw, sXmgnÂ sNbvXpw aäpw Pohn-¡p¶-hÀ¡v Xm§m³ Bhm¯ ØnXn-bp-am-bn. HmhÀ temUn\v \nÝ-bn-¨n-cn-¡p¶ ]ng-XpI Hc-Sn-Øm-\-hp-an-Ãm-¯-XmWv. CXv Nc¡v \o¡-s¯-t]mepw hfsc kmc-ambn _m[n-¨p. Nne-t¸mÄ Nc¡p hml-\-§-fnÂ Ib-än-bn-cn-¡p¶ km[-\-§-fpsS hne-tb-¡mÄ henb XpI "Npa-¡p¶ IgpX sImSp-t¡In hcpw".

tamt«mÀ hml\\nb-a-t`-Z-K-Xn-bnÂ \nÀt±-in-¡p¶-Xn-t\-¡mÄ henb ]ng-IÄ kam\ Ipä-§Ä¡v tIcf s]meokv BIvSv (Act 8 of 2011) hy-hØ sNbvXn-«pIv F¶p-ff kXyw Gsd Bfp-IÄ¡pw AÚm-X-am-Wv. Hcp ]t£ tamt«mÀ hml-\-\n-baw t]mse e£I-W-¡n\v P\-§sf s]mXp-hmbn _m[n-¡p¶ hnjbw AÃm-¯-Xp-sIm-Imhmw ]ecpw t]meokv BIvSnse t`Z-K-Xn-IÄ {i²n-¡msX t]mbXv. t]meokv BIvSnse 118 AA\p-k-cn¨v s]mXp-Ø-e¯v aZ-y-]n¨v Ie-l-k-z-`m-hn-bm-tbm, Xs¶¯m³ Icp-Xm³ \nhr-¯n-bn-Ãm-sXtbm \nÂ¡p¶ HcmÄ¡v 3 hÀj-tam, 10,000 cq]tbm cIpw IqSntbm in£ \ÂIm³ hy-h-Ø-bp-Iv. sXämb hmÀ¯-IÄ {]N-cn-¸n-¡p-¶-hÀ¡pw CXpXs¶-bmWv ]ng. CX-S¡w \nc-h[n in£-IÄ 118, 119 hIp-¸p-I-fnÂ DÄs¸-Sp-¯n-bn-«pIv.

t]meokv BIvSnse 120AA\p-k-cn¨v s]mXp-P-\-§Ä¡v ie-y-tam, Aku-I-c-ytam DIm-I-¯¡ Xc-¯nÂ hml-\-§Ä s]mXp-Ø-e-¯n«v Igp-In-bmÂ t]mepw Hcp hÀjtam, 5000 cq]tbm \ÂIm³ hy-h-Ø-bp-Iv. s]mXp-P-\-§Ä¡v XS-Ê-tam, Aku-I-c-ytam, A]-I-Stam DIm-I-¯¡ Xc-¯nÂ hml\§Ä ]mÀ¡v sNbvXmepw in£ CXp-X-s¶-bm-Wv. Section 120(a)apXÂ (q)hsc-bp-ff Ipä-§Ä¡v 5000/þ cq] hsc in£ \ÂImw. s]mXp-Ø-e¯v aq{X-sam-gn-¨mepw, que Bh-i-y-ap-f-fn-S¯v ewLn-¨mepw, in£ Hcp hÀj-hpw, 5000/= cq]-bp-amWv. F¶mÂ Cu \nb-a-§Ä A\p-k-cn¨v in£n-¡-s¸-Sp-¶-h-cp-sS-bpw, ]nSn-Iq-S-s¸-Sp-¶-h-cp-sSbpw F®w Xmc-X-ta-y\ hfsc Ipd-hm-Wv. t`Z-KXn sN¿p-¶Xn\p ap¼p-ff t]meokv BIvSv A\p-k-cn¨v s]mXp-Ø-e¯p \n¶pw Ak-`yw ]d-bp-¶-hÀ¡v 51AA\p-k-cn¨v shdpw 50/þ cq] am{X-am-bn-cp¶p in£.

C{Xbpw ]d-ª-Xp-sImIv tamt«mÀ hml\ \nb-a-¯nse ]pXnb in£ A¸msS AwKo-I-cn-¡p¶ F¶À°-an-Ã. ]Ww IImÂ ]nWhpw hm s]mfn¡pw F¶p ]d-bp-¶-Xp-t]m-se, ]Ww FhnsS IImepw sImIphm F¶v Iev]n-¡p¶ Ah-Ø-bn-se-¯nb tIc-f-kÀ¡mÀ bmsXmcp Nn´-tbm, Ah-[m-\-Xtbm CÃm-sX-bmWv \nbaw tIc-f-¯nÂ \S-¸m-¡n-b-Xv. AXnsâ A\-´-c-^-e-§-fmWv Ct¸mÄ \S-¡p¶ hnhmZ§Ä.

{]iv\w AXÃ Ct¸mÄ \nÝ-bn-¨n-«p-ff ]ng-IÄ Xmc-X-ta-y\ sNdp-Xpw, F¶mÂ henb A]-I-S-§Ä¡v Imc-W-hp-am-Ip¶ Ipä-§Ä¡m-Wv. A]-I-S-§Ä DIm-bmÂ Ct¸mÄ F´mWv AhØ? C´y³ in£m \nb-a-¯nse 279, 337, 338, 304 AhIp-¸p-IÄ A\p-k-cn-¨mWv km[m-cW KXn-bnÂ tamt«mÀ hml\ A]-I-S-§-fp-ambn _Ô-s¸« tIkv cPn-ÌÀ sN¿m-dp-f-f-Xv. Cu hIp-¸p-I-fpsS AhØ NÀ¨ sN¿-s¸-Sp-I-bpw, Ah ]cn-l-cn-¡-s¸-Sp-Ibpw sNbvXn-sÃ-¦nÂ tdmU-]-I-S-§Ä¡v Dt±-in-¡p¶ ]cn-lmcw DIm-hp-I-bn-Ã.

C´-y³ in£m \nb-a-¯nse 279 hIp¸v Fs´¶pw, “Rash driving or riding on a public way” in£ Fs´¶pw hn[n-¡p¶ t]meokv `mj-bntem, tImSXn `mj-bn-tem ]d-ªmÂ A]m-I-am-bpw, DZm-ko-\-ambpw AsÃ-¦nÂ AXn-th-K-X-bnepw A{i-²-bnepw a\pjyPoh\v B]¯v hc-¯¡ coXn-bnepw hml\w HmSn¨v ]cp¡p ]äp-I-tbm, ]cp¡p ]ä-¯¡ coXn-bnÂ hml-\-tam-Sn-¡p-Itbm sNbvXm-ep-ff in£ 1000 cq]-tbm, 6 amktam cIpw IqSntbm BWv.

A]-ISw aqew \nkmc ]cp-¡p-IÄ ]än-bmÂ 279-þmw hIp-¸n-t\m-sSm¸w 337-þmw hIp¸v IqSn tNÀ¯mWv Ipä-]{Xw \ÂIp-I. Cu hIp-¸nsâ in£ 6 amk-tam, 500 cq]tbm, cIpw IqSntbm BWv.

hml-\m-]-I-S-¯nÂ Cc-I-fm-Ip¶ Bfp-IÄ¡v Kpcp-X-c-amb ]cp-¡p-IÄ ]än-bmÂ 279, 337 hIp-¸p-IÄ¡v ]pdta 338-þmw hIp¸v A\p-k-cn¨v IqSn Ipä-]{Xw \ÂIpw. Cu hIp-¸nÂ hnh-cn-¨n-cn-¡p¶ in£ 1000/þ cq]-tbm, 2 hÀjtam cIpw IqSntbm BWv.

Ct¸mÄ \ne-hnÂ h¶ tamt«mÀ hml\ t`Z-KXn \nb-a-hp-ambn X«n¨p t\m¡p-t¼mÄ Cu sshcp²yw \nb-a-¯nse Hcp A\o-Xn-bm-Wv. Kpcp-Xc ]cp-¡p-IÄ Nne-t¸mÄ ac-W-t¯-¡mÄ `bm-\-I-am-Wv. icocw sam¯w tNX-\-bäv t]mIp¶hÀ, ssIIm-ep-IÄ tOZn-¡-s¸-Sp-¶hÀ, sshcq-]yw kw`-hn-¡p-¶-hÀ, \nX-y-tcm-Kn-I-fmbn amdp¶-hÀ, ImgvN-i-àn-bpw, kwkm-c-ti-jnbpw \jvS-s¸-Sp-¶hÀ CsXms¡ Kpcp-X-c-amb ]cp-¡p-I-fpsS KW-¯nÂ hcp-¶-Xm-Wv. acWw Hcp IpSpw-_s¯ Zp;-J-¯n-em-gv¯pw. F¶mÂ Pohn-¨n-cn-¡p¶ c£-km-£n-IÄ F{Xtbm hÀj-§Ä BWv AhÀ¡pw, IpSpw-_-¯n\pw `mc-ambn amdp-¶-Xv. \jvS-]-cn-lmcw sImIv Cu apdn-hp-IÄ DW-§p-¶-X-Ã.

Npcp-¡-¯nÂ 279, 337, 338 hIp-¸p-IÄ A\p-k-cn-¨p-ff Hcp tIknÂ {]Xn-bm-Ip¶ ss{UhÀ¡v ]c-am-h[n In«p¶ in£ 2500/þ cq]-bpsS ]ng-bm-Wv. AZm-e-¯nÂ XoÀ¯mÂ ]ng-kw-Jy ]Ip-Xn-bm-Ipw. {]Xn t\cn«v lmP-cm-I-W-sa-¶n-Ã. Hcp Pq\n-bÀ A`n-`m-j-I\v sNdn-sbmcp ^okv sImSp-¯v, tIkv Ipäw k½-Xn¨v XoÀ¡mw. tIknse {]Xn¡v sNbvX Ipä-¯nsâ Kuchw Hcn-¡epw t_m[-y-s¸-Sp-¶n-Ã. \nÊm-c-amb ]ng-b-S¨v hoIpw sXäp-I-fn-te¡v AhÀ hgpXn hogpw. bm{X-¡mÀ k©-cn-¡p¶ Hcp _kv aÕ-c-tbm«w \S¯n A]-I-S-¯nÂs¸«v 50 Bfp-IÄ¡p#w Kpcp-X-c-amb ]cp¡p ]än-bmepw ]ng 2500/þ cq] Xs¶. \nb-a-¯nse Cu ]gpXv ASt¨ aXn-bm-Iq. tamt«mÀ hml-\-\n-b-a-t`-Z-KXn sImIv C¯cw Ipä-hm-fn-IÄ¡v amXr-Im-]-c-amb in£ e`n-¡p-I-bn-Ã.

hml-\m-]-I-S-¯nÂ Cc-IÄ acn-¨mÂ Section 304 AA\p-k-cn¨v tIkv cPn-ÌÀ sN¿pw. Chn-sSbpw in£ cIv hÀj-tam, ]ng-tbm, cIpw IqSntbm BWv. thW-sa-¦nÂ hnth-N-\m-[n-Imcw D]-tbm-Kn¨v aXn-bmb Imc-W-§-fpsS ]n³_-e-¯nÂ ]ng in£-bnÂ HXp¡n \nI-¯m\pw tImS-Xn-IÄ¡v A[n-Im-c-ap-Iv. ]ng kwJy F{X-sb¶v Cu hIp¸v {]tX-y-I-ambn ]d-bp-¶n-sÃ-¦nepw Hcp PpUo-j-yÂ ^Ìv ¢mÊv aPn-kvt{S-än\v ]c-am-h[n \ÂIm³ Ign-bp¶ ]ng kwJy 10,000/þ cq]-bm-Wv.

At¸mÄ A]-I-S-§Ä XS-b-W-sa-¦nÂ IPC 279, 337, 338, 304AhIp-¸p-I-fnÂ in£bv¡v amäw hc-Ww. ]t£ ChnsS Hcp \nba {]iv\-apIv. taÂ kqNn-¸n¨ 337, 338, 304 AhIp-¸p-I-fnÂ “Any rash and negligent Act”F¶mWv Ipäs¯ \nÀh-Nn-¨n-«p-f-f-Xv. At¸mÄ tamt«mÀ hml-\ A]-I-S-§Ä am{X-aÃ Cu hIp-¸p-I-fpsS ]cn-[n-bnÂ hcp-¶Xv. A§-s\-sb-¦nÂ t`Z-KXn Cu hIp-¸nsâ ]cn-[n-bnÂ hcp¶ FÃm Ipä-Ir-X-y-§Ä¡pw Hcpt]mse _m[-I-am-Ip¶p. AXvv Bsc-sbms¡, F§-s\-sbms¡ _m[n¡pw F¶v \nco-£n¨v a\-Ên-em-t¡-IXv \nb-a-\nÀ½m-Xm-¡Ä BWv. taÂ ]dª hIp-¸p-I-fnÂ “Any Act”sâ N«-¡q-«nÂ \n¶v hml-\m-]-I-S-§sf tamNn-¸n¨v Ahbv¡v {]tX-yI hIp-¸p-IÄ t`Z-K-Xn-bn-eqsS sImIp hcm³ Ign-bptam F¶pw Btem-Nn-¡m-hp-¶-Xm-Wv. aäv ]e hIp-¸p-I-fnepw C¯cw t`Z-K-Xn-IÄ sImIp h¶n-«p-Iv.

C´-y³ in£m \nbaw 1860-þÂ \ne-hnÂ h¶-t¸mÄ \nÝ-bn¨ XpI-bmWv 500-þ-Dw, 1000-þDw Hs¡. Ct¸mgpw AXv amä-an-ÃmsX XpS-cp-¶p. hnP-\-amb hoYn-I-fpw, hnc-f-amb hml-\-§-fp-ap-ff Imf-hIn bpK-¯nse in£-IÄ Hcp amä-hp-an-ÃmsX apt¶m«p t]mIp-¶p. Xmc-X-ta-y\ eLp-hmb Ipä-§Ä¡v tamt«mÀ hml-\-\n-ba t`Z-K-Xn-bn-eqsS ]ng hÀ²n-¸n-¡p-¶p. bYmÀ° Ipä-§-fpw, Ipä-hm-fn-Ifpw kaq-l-¯nÂ s]cp-Ip¶p. Bcw-`-Im-e-L-«-¯nÂ Npa-¯n-bn-cp¶ 500, 1000 cq]-bpsS aqe-yhpw, hnebpw IW-¡m-¡n-bmÂ C¶s¯ e£-tam, e£-§tfm hcpw.

tamt«mÀ hml\ A]-I-S-§Ä bailable offence (Pm-ayw In«p-¶) Ipä-§-fmbn \ne-\nÀ¯p-¶-XnÂ sXän-Ã. ImcWw A]-cn-Nn-X-amb Hcp Øe¯v A\n-b-{´n-X-amb Imc-W-§Ä sImIv DIm-Im-hp¶ A]-I-S-¯nÂ {]Xn tNÀ¡-s¸-Sp¶ ss{UhÀ¡v s]s«¶v Pma-y-¡msc In«m-\pw, Pmayw Dd-¸m-¡m\pw ]e-t¸mgpw _p²n-ap«v DIm-hpw. F¶mÂ Pmayw \ÂIp-t¼mÄ Xs¶ Ipä-¯nsâ Kuchw in£-bpsS Ipd-hp-sImIv eLq-I-cn¨v In«m³ Ipä-hm-fn¡v Ah-kcw \ÂI-cp-Xv.

At¸mÄ amäw thIXv ISp¯ Ipä-§Ä¡mWv. Hcn-¡Â t]mepw Xm³ hcp¯n h¨ A]-ISw Cc-Isf _m[n-¨-Xns\ Ipdn¨v HmÀ¡m-t\m, Ipä-t_m[w tXm¶mt\m CS-bm-Im¯ kml-N-c-y-amWv C¶v \ne-\nÂ¡p-¶-Xv. {]Xn¡v tImS-Xn-bnÂ t]mtIIn hcp¶n-Ã. hnNm-cW t\cn-tSIn hcp¶n-Ã. XpSÀ Ipä-§Ä Hgn-hm-¡m³ {i²n-¡p-¶n-Ã.

CXv UnPn-äÂ Ime-L-«-am-Wv. A]-I-S-¯nÂs¸Sp¶ hml-\-§Ä HmSn-¡p¶ ss{UhÀam-cpsS tIkv hnh-c-§Ä tcJ-s¸-Sp¯n kq£n-¡p-¶-Xn\v kuI-c-y-§-fp-Iv. Ipä-§Ä BhÀ¯n-¨mÂ in£ ITn-\-am-Ipw, F¶v Dd¸p hcp-¯m³ Ign-b-Ww.

Ct¸mÄ \nÀt±-in-¡-s¸-«n-«p-ff tamt«mÀhm-l-\-t`-Z-KXn \nb-a-¯nÂ \nÀt±-in-¡-s¸-«n-«p-ff hÀ²n-¸n¨ ]ng-Isf kw_-Ôn¨v A`n-{]mb sFIyw DIm¡n ka-hm-b-¯nÂ F¯p-¶Xv \ÃXv Xs¶. H¸w C´-y³ in£m \nbaw 279,337, 338, 304AhIp-¸pIf-\p-k-cn-¨p-ff Ipä-Ir-X-y-§Ä \nÊm-c-hÂ¡-cn-¡-s¸«p t]mIp-¶Xv F§s\ XS-bm³ Ignbpw F¶m-tem-Nn-¨mÂ am{Xta bYmÀ° Ipä-Ir-X-y-§Ä Ipd-bp-I-bp-ffq AXn\v {ian-t¡-IXv \nb-a-\nÀ½m-Xm-¡-fpw.

Aftermath of A Per-incuriam Judgment

(By M.K.S. Menon, Advocate, Supreme Court of India)

“ Literal translation of Per-incuriam, means ‘through lack of care’, refers to a judgment of a Court which has been decided without reference to a statutory provision or earlier judgment which vitiates the judgment.

1. C.C.K.Alien in ‘Law in the Making’ (Page No.246) analysed the concept of ‘per incuriam’. According to him, ‘Incuria’ means literally ‘carelessness’ which apparently is considered less uncomplimentary than ignorantia; but in practice ‘per incuriam’ applies to mean ‘per ignorantiam’. It would almost seem that ‘ignorantia juris neminem excusat’ - except a Court of law, ignorance of what? Ignorance of a statute, or of a rule having statutory effect which would have affected the decision if the court had been aware of it.

In Young v. Bristol Aeroplane Company Limited(1994) All ER 293, the House of Lords observed that ‘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. The same has been accepted, approved and adopted by the Supreme Court of India while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

In Halsbury’s Laws of England (4th Edn.) Vol.26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:

“A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.

In Huddersfield Police Authority v. Watson,1947 KB 842 : (1947) 2 All ER 193 it was held that when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force it shall be ignored.

Lord Godard, C.J. in Huddersfield Police Authority v. Watson(1947) 2 All ER 193 observed that where a case or statute had not been brought to the court’s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

The Court of Appeal in Morelle Ltd v. Wakeling [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per incuriamare those of 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.

In Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All. ER 193 it was observed that: “Where a case or statute had not been brought to the court’s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.”

Sir John Salmond in his ‘Treatise on Jurisprudence’ has aptly stated the circumstances under which a precedent can be treated as ‘per incuriam’. It is stated that a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute or delegated legislation.

Hon’ble Supreme Court in Government of A.P. & Anr. v. B.Satyanarayana Rao (dead) by LRs. & Ors.(2000 (3) KLT OnLine 1013 (SC) = (2000) 4 SCC 262) observed as under:

“The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.”

The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent by a lower court. Ordinarily, in the common law, the ratio ofa judgment must be followed thereafter by lower courts while hearing similar cases. A lower court is free, however, to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam. Also, the said doctrine is an exception to Article 141 of the Constitution of India which embodies the doctrine of precedents as a matter of law. However, despite the law being loud and clear, mostly High Courts will tray to avoid a decision declaring the judgment of the Supreme Court as per incuriam.

The rule applies even though the earlier court aware of the statutes in question but it did not refer to and had not present to its mind, the precise terms of the statute (as in the case under discussion). Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand, such a mistake is again such ‘incuria’ has to vitiate the decision.Whether a lower court can impugn a precedent on such grounds? Judgment is a precedent for the court’s below normally and it never binds the Supreme Court. The question whether the Statute should prevail or a judgment retendered in ignorance of the Statute should prevail ? Only thing is that Supreme Court or High Court has to follow certain conventions to correct it’s own declaration of law under Article 141. The High Court has every right to ignore a previous judgment if it is convinced that it was rendered per incuriam. There is no violation of judicial discipline if a judgment rendered sub-silentio due to carelessness has been ignored.

2. Supreme Court is flooded with per-incuriam judgments:

There are ever so many judgments written per-incuriam both by the Hon’ble Supreme Court as well as all the High Courts in India because due to the pressure of work, some mistakes are bound to creep in. Supreme Court again and again re-writes its precedents by referring the matters to larger benches one after another. Classic example is the issue regarding legislative competence of the State Government to impose tax on minerals after the declaration under Section 2 of the Mines and Minerals Development and Regulation Act 1959. After so many conflicting judgments, in India Cements v. State of Tamil Nadu,
7 Judges of the Supreme Court reported in ((1990) 2 SCC 12) held that ‘Cess’ on Royalty imposed by State Government shall enhance the Royalty and hence unconstitutional because, under Section 9 of the 1958 Act only the Union Government can enhance the Rates of Royalty. The enactment made by the State was held to be beyond legislative competence. Later on in Kesoram’scase reported in ((2004) 10 SCC 201) a 5 Judges Constitution Bench headed by Justice Lahoti held that 7 Judges Bench judgment was the outcome of a typographical error but of course Justice Sinha dissented by stating that a 5 Judge Bench cannot read down a 7 Judges bench judgment. In Paragraph 71. Hon’ble Supreme Court in its majority judgment in Kesoram(supra)held as follows:

“71. We have clearly pointed out the said error, as we are fully convinced in that regard and feel ourselves obliged constitutionally, legally and morally to do so, lest the said error should cause any further harm to the trend of jurisprudential thought centering around the meaning of ‘royalty’. We hold that royalty is not tax. Royalty is paid to the owner of land who may be a private person and may not necessarily be State. A private person owning the land is entitled to charge royalty but not tax. The lessor receives royalty as his income and for the lessee the royalty paid is an expenditure incurred. Royalty cannot be tax. We declare that even in India Cement it was not the finding of the Court that royalty is a tax. A statement caused by an apparent typographical or inadvertent errorin a judgment of the Court should not be misunderstood as declaration of such law by the Court. We also record, our express dissent with that part of the judgment in Mahalaxmi Fabric Mills Ltd. and Ors. which says (vide para 12 of SCC report) that there was no ‘typographical error’ in India Cement and that the said conclusion that royalty is a tax logically flew from the earlier paragraphs of the judgment. “

It is trite to mention that the State of Tamil Nadu in India Cements(supra) was represented by none other than Shri T.S.Krishnamoorthy Iyyer, doyen of Kerala High Court but his submissions did not impress the court at that time. However the argument of Shri.F.S.Nariman, who appeared on behalf of the India Cements happened to be more convincing, but that led the 7 judges of the Hon’ble Supreme Court to write a judgment without conceiving the difference between a ‘prerogative right’ and a ‘proprietary right’. Most importantly Section 17-A of the MMRD Act 1959 is not even referred to anywhere in the judgment. Section 17A(3) of the MMRD Act 1959, provides that if the State requires Minerals belonging to a private person, the State will have to pay Royalty to the private person like any other lessee. Private Citizen cannot demand ‘prerogative right’ to impose tax; means ‘Royalty’ under the MMRD Act is not a ‘prerogative right’ but a ‘proprietary right’. Therefore ‘cess’ on Royalty being a ‘prerogative impost’ cannot enhance the ‘Royalty’ which is a ‘proprietary right’. The upshot of the finding in India Cement that due to the impost of cess on Royalty, ‘Royalty’ got enhanced is absolutely wrong and bound to be considered as per incuriam since delivered in ignorance of Section 17-A of the MMRD Act.

In 2011, again another 3 judges Bench headed by Chief Justice Kapadia in ‘Mineral Area Development Authority v. Steel Authority of India’ reported in ((2011) 4 SCC 450) again referred the issue to 9 Judge bench so as to iron out the creases. Most disappointing fact is that the court referred the matter to 9 Judge Bench, an unnecessary issue also was referred and it reads as follows:

“Whether Royalty is a tax’

Section 17A (3) of the MMRD Act specifically provides, that if the State or Central Government needs minerals belonging to a private person, State or the Central Government shall pay Royalty to the said private person. Private person cannot exercise prerogative right to impose tax. Therefore Royalty can only be a ‘proprietary right’ and never be a ‘prerogative right’ ‘. Section 17A is not under challenge in any of these proceedings. Consequence is that the reference of the matter to 9 judge bench on the ‘point’ happened to be passed
sub-silentio qua Section 17-A of MMRD Act 1957. Therefore both India Cements v. State of Tamil Nadu, 7 Judges of the Supreme Court reported in (1990) 2 SCC 12) as well as ‘Mineral Area Development Authority v. Steel Authority of India’reported in (2011) 4 SCC 450) referring the matter to 9 Judges will have to be considered as per incuriam and there was no necessity to refer the matter to the Constitution Bench of 9 judges on a point, as to ‘whether Royalty is Tax’.

In Thressiamma Jacob’scase reported in 2013 (3) KLT 275 larger bench of Justice R.M.Lodha, Justice Chalameshwar and Justice Madan B.Lokur held that owners of quarries in Malabar District in Kerala are owners of the minerals. However the question whether the Royalty can be collected by the State was left open to be decided until the controversy referred to 9 judge bench in (2011) 4 SCC 450) is finally resolved. In fact a per incuriam order ((2011) 4 SCC 450) is delaying dispensation of justice and valuable time of 9 Judges of the Hon’ble Supreme Court will be wasted on a point directly covered by the Statutory provision namely Section 17-A of the MMRD Act 1959.

3. LATEST DEVELOPMENTS:

I. Justice G.S.Patel in a recent Judgment held:

“I believe it is primarily my responsibility to rectify it’

Justice G.S.Patel rectified his ‘Per Incuriam’ order by a Suo Motu Review.

II. Justice A.M.Khanwilkar and Justice Ajay Rastogi, in a recent Judgment in Civil Appeal No(s.)5140 of 2019, Sunil Vasudeva & Ors. Sundar Gupta & Ors. (2019 (3) KLT OnLine 3008 (SC)observed as follows:

“ 26. That apart, Section 293 of the Income Tax Act, 1961 put a complete bar of filing suit in any civil court against the revenue/income tax authority and the mandate of law remain unnoticed when the order came to be passed by the Single Judge of the High Court in Writ Petition No.18500(W) of 1985 decided on 26th October, 1990 while relegatingthe parties to address in the alleged pending Civil Suit No. 471 of 1985 before the District Judge at Delhi although it was dismissed much prior to the pronouncement of the Judgment dated 26 October, 1990. Even in the L.P.A, the Division Bench of the High Court granted liberty to the respondents to file a fresh civil suit in respect of the subject property in Delhi and either party has not brought to the notice of the Court the mandate of law as envisaged under Section 293 of the Income Tax Act, 1961 that the civil suit against the Income tax Depart-ment is not maintainable under the law, which appears to be mistakenly omitted by the Court in arriving at the rival claims of the parties. “

31. In the given facts and circumstances, we are not inclined to dilate the issues on merits raised in the Writ Petition No.18500(w) of 1985 filed at the instance of the respondents before the High Court of Calcutta, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and this was the purported defence of the respondents and of the Income Tax Department and consequential effect to the Order dated 8th September, 1965 of which a reference has been made by us, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits.In our considered view, there appears no error being committed by the High Court in passing the impugned judgment dated 24th September, 2014 in exercise of its review jurisdiction and that needs no interference by this Court. “

Hon’ble Supreme Court in fact applied the principles

“If there is injustice there is always a remedy.’

4. Present discussion is as to how principles of res judicata can be dealt with in the case of a per-incuriam decision rendered earlier during the same proceedings:

a) These are judgments declaring that a per-incuriam judgment is not a precedent; means only as a guideline to do justice in future but the suffered litigant is still lurching in darkness, when the court who get a chance to correct it’s own mistake, when fails to do it.

b) In this article we are concerned with a celebrated judgment on last paragraph Section 60 of Transfer of Property Act, delivered sub-silentio in:

“State of Kerala v. Koliyot Estates reported in (1999 (3) KLT 553 (SC) = (1999) 8 SCC 419).”

Moot question is:

“Whether the carelessness of the lawyers who appeared or the judges who wrote the judgment can push a litigant to his peril under the principles of Res-judicata especially when the Court later on become convinced that the earlier judgment has been delivered per-incuriam (means ‘carelessness’ — ‘in ignorance’) and that also when the Court is getting the opportunity to correct the mistake, during the pendency of the same litigation’.

c) The above referred Supreme Court judgment led an agriculturist in Kerala to the brink of suicide. Once he owned several acres of agricultural property but devastated due to that judgment which reversed concurrent findings of Trial Court as well as the High Court of Kerala. Said judgment is not erased from the category of ‘PRECEDENT’ yet, may be because Hon’ble Supreme Court’s attention has not been drawn to its fallacy so far. That is one aspect of the matter but the discussion takes us to an altogether different ground reality.

d) Coming to the present controversy in hand, it is highly necessary to point out that there is no law or precedent in this country to wipe the tears of those who suffered due to the ignorance of law of someone else who was careless in discharging their duty, despite the fact that Indian law accepts the principle, ‘Ignorance of law is not an excuse’. Is that principle applies only to a litigant or it requires a special attention by the judges who’s attention has been drawn to the injustice that has been suffered by the litigant. In those cases the question is : Can the court subsequently when seized of the matter shall draw the rule of ‘res-judicata under Section 11 of C.P.C., especially when the court gets an opportunity to correct the flaw committed earlier may be by the Apex Court. Writing a judgement is an art. Without disturbing the tranquillity of judicial discipline, one can easily handle a judgment written in sub-silentio. Every judgment is written with good intention but it moves in to a slippery terrain when it is lacking its ulterior aim to provide justice to the needy.

e) I am constrained to write this Article, because I witnessed the pain an elderly woman in her 90s, who had to knock once again at the doors of the same temple of justice which denied her justice due to the ignorance of those who belong to the highest echelons. She is still hoping that our justice system may evolve a mechanism in cases in which a litigant is crucified due to the mistake of those whom they believed to be the guardians of justice. Only fault of that poor old woman was that she took birth to a father who happened to be a victim of a fraud perpetrated by a nationalised Bank and the executive of the Government. Her father had taken a loan by mortgaging all his properties, from a nationalised bank under a coveted agricultural programme promoted by the Govt. of Kerala, prior to the enactment of much applauded agrarian reforms of Kerala namely Kerala Land Reforms Act, 1970 and Kerala Private Forests Vesting and Assignment Act, 1971. Government stood as the guarantor but the intention was to recover it with the draconian weapons of revenue recovery. Agrarian Reforms enactments were perfectly enacted promoting public interest by the Kerala Legislature, where in there are specific provisions to protect the interests of those who took loans to cultivate the land. However, the ‘executive’ played a dirty trick since that was a period when hypocrisy regarding ‘socialism’ was at its peak. “Even though Sections 88 to 93 of the Kerala Land Reforms Act, 1970 as well as Section 3
of the Kerala Private Forests Vesting and Assignment Act, 1971 provided for splitting up of security and the wiping off the mortgage debt proportionately, executive jargons in connivance with the Bank, paid off the Bank ‘in full’, despite the fact that major portion of the debt had already extinguished. Most importantly the Government paid the Bank, clandestinely, without informing the mortgagor about the payment, whereby violated his fundamental right under Article 14 of the Constitution. The person who took the loan was burdened with the entire debt and the land developed by using the loan amount was taken away by the Government, pushing the borrower in to the debt trap. He had finally died in agony, believing that it was his fate to be a victim of a failed judicial system in which once he had tremendous faith. Now it is the turn of his daughter who also reached the age of 90, still expecting while sitting in her arm chair that the lady of justice having the cloth tied around her eyes may regain her inner vision during her life time.

f) Earlier during the Land Board proceedings, the advocates appearing for the Bank failed to appear and the claim of the Bank to retain the character and integrity of the mortgage stood rejected. The observation of the Land Board reads as follows:

“.....The Land Board cannot accept such vague claims, all the more in view of absence of the Advocates for the Bank and the Agricultural Refinance Corporation at the final hearing where they had an opportunity to elaborate their points further. Their objections over-ruled. “

g) However the same bank was complimented by our corrupt system by paying them in full, even though the benevolent legislations provides that both the mortgagor and the mortgagee shall shoulder the brunt of a welfare legislation in equal terms.

h) Armed with the weapon of ‘revenue recovery’, when the State barged into grab the properties of the Mortgagor, the poor citizen knocked at the doors of the temple of justice for the first time, and the High Court stayed the revenue recovery temporarily, and reckoned the mortgagor to approach the civil court. Accordingly, a suit for redemption was filed to redeem that portion of the mortgage which survived the vesting process.

i) In the suit, trial court correctly discussed the provisions of both the Agrarian Reform enactments and held that major part of the debt had already got extinguished and that the plaintiff needed to redeem only the part of the mortgage in existence and also to pay only the proportionate amount after deducting the mortgage debt proportionate to the area vested. This was appreciated by the High Court as well. In the Trial Court judgment, the Court held that after the vesting, the rights of both that of the Mortgagor as well as the mortgagee, already extinguished with respect to that portion of the land vested..

j) The Hon’ble High Court also concurred with the said judgment of the Trial Court and dismissed the appeal of the State.

k) However, when the matter reached at the Hon’ble Supreme Court as the Civil Appeal filed by the State, instead of discussing the law governing the vesting process under the relevant provisions of the vesting Acts, judgment delivered in per-incuriam discussed a point which was not involved in the case. Judgment directed the redemption of both the portions of the mortgage that was in existence as well as the part already got extinguished during vesting process. In a case where there is no scope for partial redemption because of extinguishment of part of the mortgage, detailed discussion on last para of Section 60 was made and the judgment in it’s tangent conclusion clarified the non-applicability of last para of Section 60, which has got nothing to do with the issue in hand. However the factual finding of two courts below remained intact and they were not touched or reversed. Thereafter, sufficient damage was done by adding one sentence, i.e., ‘therefore the plaintiff is not entitled for pro-tantoreduction of mortgage debt’ since it is not a case of ‘partial redemption’. However the judgment was very particular to declare that the mortgagor is not entitled to get what he is legally entitled to i.e., pro-tantoreduction of mortgage money. This has happened in a case where major share of the property belonging to the mortgagor was lost during the vesting process. Fallacy of the philosophy tried to be propounded in the Judgment is evident in one of the paragraph which reads as follows:

“The principle behind the exception to the prohibition clause in the last paragraph of Section 60 of the T.P. Act is, if the mortgagee is satisfied of a part of the mortgage debt by becoming the owner of a part of the mortgage property it is only equitable to allow the mortgagor to get pro-tanto reduction of the mortgage debt, otherwise it would be unjust to
allow the entire mortgage debt again to be borne by the remaining mortgage property.
Bybecoming the owner of part of the mortgage property it is not necessary that the mortgage money would have been discharged even proportionately. It depends upon how the
mortgagee got share in the mortgage property. “

1) Hon’ble Court at the same time failed to consider the plight of the person who lost his land and forced to shoulder the burden of debt in the entirety, despite the fact that
Section 90 to 93 of the 1970 Act and Section 3 of the 1971 Act specifically provides that the rights of both the Mortgagor as well as the mortgagee comes to an end. Judgment discriminated the mortgagor against the mortgagee, by delivering the judgment sub-silentio.

Is it not the duty of the court to investigate as to how the mortgagee (Bank and not the Government) become the owner during the vesting process as provided under
Sections 90(3) to 93 of the KLR Act. In fact the Trial court discussed this aspect sufficiently in detail in para 9 of its judgment. However it appears that the Supreme Court judgment failed to read/contain it and to hold as to whether it was correctly written. It is a classic case of an error apparent on the face of the record, and also a per-incuriam judgment. Look at the opening paragraph of the judgment which shows that the judgment is written in a vacuum and not on the factual background of the case but totally in tangent on a point which was not involved in the case. Apex Court’s judgment begins with the following preface:

“1.The moot question is this: When a mortgage property, or any portion of it, is vested in Government by operation of law, would it amount to government acquiring thesaid property as contemplated in the last paragraph ofSection 60 of the Transfer of Property Act (for short the T.P. Act)”

m) Look at the fallacy of the question framed, which demonstrates that the judgment failed to contain the facts of the case because the case of the Mortgagor was, that it is a case of ‘partial extinguishment’ under Section 90 to 93 of the Kerala Land Reforms Act, 1970 and Section 3 of the Kerala Private Forests (Vesting and Assignment Act, 1971’ and not ‘partial redemption’ under last para of Section 60 of the T.P. Act as framed in the judgment. Most importantly concurrent findings of two courts were made otiose by framing a wrong question and that also merely discussing a legal provision which had no application on the facts of the case. As already pointed out judgments of the Trial Court and High Court was not reversed but still it was declared that the mortgagor was not entitled for pro-tanto reduction of mortgage money. It is a clear case of error apparent on the face of the record. Most unfortunate part is that the fate of review petitions in the Hon’ble Supreme Court in not very encouraging. Then the question is as to whether it is the duty of the court to rectify its mistake, the moment it gets an opportunity. How can the litigant be made responsible for the ignorance of law of those who belong to the highest echelons,

n) Who is to be blamed? The litigant hired Senior Lawyers by looking at their proven track records and in many cases retired judges of those High Courts from where the matters are coming. The Trial Court and the High Court did their job exceptionally well but the judgment of Hon’ble Supreme Court failed. Even then often the courts put the blame on the litigant stating that he failed to take up the plea at the appropriate time. Is the litigant really the person to be blamed? Or is it the duty of the Court to undo the damage caused due to it’s own mistake because it delivered a per-incuriam judgment.

o) The High Court is now seized of the matter, since the correct legal position was once again raised during final decree proceedings. The Final Decree Court applied principles of res-judicata. Matter was taken to the High Court earlier. The Bench which heard the matter at the first instance set aside the judgment of the Final Decree Court, after appreciating the mistake on the part of the court, and decided to shoulder the responsibility. High Court held that even after the declaration by the Hon’ble Supreme Court on the question of Section 60
of the T.P.Act, still the Final Decree Court will have to look into pro-tantoreduction as permissible under law, i.e., Section 90 to 93 of the Kerala Land Reforms Act, 1970 and Section 3 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. This was done because pro-tantoreduction arises in two conditions i.e., (i) ‘when there is a situation where the mortgagee purchases part of the mortgaged property’[issue not involved in the present case] and the other (ii) ‘when there is partial extinguishment of mortgage debt’[as in the present case]. In the first case the entire Mortgage remains as it is but a portion of the mortgaged property is purchased by the mortgagee and a partial redemption is sought on the basis of last paragraph of Section 60 (the ‘act of parties’). In the second case, question of partial redemption never arises because in the said case part of the mortgage itself extinguished as an ‘Act of State’ (Special Statute governs). In the first case there is a merger of mortgagee’s right with mortgagor’s right, where as in the other, there is no such merger since it is an instance of partial extinguishment.

p) Even though the High Court set aside the final decree court’s finding and remanded the matter only to calculate the proportionate amount, the court below failed to appreciate that it was a limited remand. The agony of the mortgagor continued unabated. Court below once again gone into every aspect of the matter and reiterated that the case is barred by principles of Res judicata. This compelled the poor old lady to approach the High Court once again.

q) Unfortunately, this time the High Court felt that it’s hands are tied, since the Supreme Court judgment is a stumbling block. No doubt we will have to appreciate the limitations of the High Court despite being a constitutional court, because many times it feels that it is a subordinate court to the Apex Court, and judicial discipline demands that the High Court not to ignore a Supreme Court judgment, even if it was rendered sub-silentio. One most adorable thing reflected in the judgment is that while answering the first question framed as to whether the appellant is entitled for pro-tantoreduction under Section 90(3), 91 and 93 of the KLR Act and Section 3 of the Vesting Act of 1971, learned single judge answered it in the affirmative, whereby deemingly declaring that the judgment rendered by the Supreme Court earlier was wrong. However while dealing with the second question, the judgment is making an attempt to wriggle out of the situation already settled by the judgment rendered by his predecessor in the same matter. The previous judgment by his predecessor directing the court below to provide pro-tantoreduction now stands camouflaged. High Court earlier in R.F.A.No.760/2011 while setting aside the order of the Sub Court after considering the Supreme Court judgment had directed the final decree Court as follows:

“5................The encumbrance, to the extent it related to the land vested with the government by operation of statute, did not there after continue to lie in the vested area. If that would arise for determination in the Final decree proceedings in furtherance of the appellate judgment of the Hon’ble Supreme Court of India, among other things, the extent of liability which could be taken as covered by the land that went to the Government through the vesting processes and the proportionate reduction in the price that may have to be paid by the plaintiff to the Government, has also to be determined.In so far as the total liability that was wiped out by the Government and the accruals thereon is concerned, there can be no further dispute.”

In the second round High Court went in to a slippery terrain. It has quoted the following observation made by his predecessor :

“If that would arise for determination...“

and held that the said question does not arise for determination. Mistake committed by the High Court now is that it read those lines in isolation. Learned judge failed to read it along with the previous sentence which reads as follows:

“ The encumbrance, to the extent it related to the land vested with the government by operation of statute, did not there after continue to lie in the vested area.

What the High Court held in R.F.A.760/2011 was that, since the above question was considered and decided by the Supreme Court by applying Section 86 of the KLR Act, it is also necessary to decide an issue pertaining the Section 90(3), 91 and 93 of KLR Act. The limited remand was to decide that point i.e., “question based on Section 90(3), 91 and 93 of KLR Act”.

High Court in the second round in principle denied the relief already granted by the High Court earlier, wrongly interpreting the word to the word ‘if. The judgment failed reflect the old principle propounded by the Supreme Court:

“Law shall bend before Justice”.

Unfortunately in the present case, justice bend before the procedure namely ‘res judicata’.

Let us hope that the old lady may get justice finally, since there is some light at the end of the tunnel in view of the latest judgment of the Hon’ble Supreme Court written by Justice A.M. Khanwilkar and Justice Ajay Rastogi, in Civil Appeal No (s.) 5140 of 2019,
Sunil Vasudeva & Ors. v. Sundar Gupta & Ors.(2019 (3) KLT OnLine 3008 (SC)) discussed earlier.

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