SAFIYA BEEversusMOHD. VAJAHATH HUSSAIN ALIAS FASI

                [201 O] 15 (ADDL.) S.C.R. 1253


                         SAFIYA BEE                              A
                               v.
         MOHD. VAJAHATH HUSSAIN ALIAS FAS/
            (Civil Appeal No. 10664 of 2010)
                    DECEMBER 16, 2010
                                                                  B
      [V.S. SIRPURKAR AND CYRIAC JOSEPH, JJ.]

     Andhra Pradesh Land Grabbing (Prohibition) Act, 1982:

     ss. 7A, 2(e) and 2(c) - Land grabbing - Application u/s. . c
 7A before Special Tribunal seeking possession of building
 along with its appurtenant land - Maintainability of - Held:
 Subject matter of the dispute was the building and the
 appurtenant open land - When land along with the building
 existing thereon is occupied, it would amount to land grabbing D
 - Thus, application uls. 7A before the Special Tribunal was
 maintainable - High Court erred in holding that only
 occupation of the open land and construction of a building
 thereon can be treated as land grabbing and that occupation
 of a building along with open land cannot be treated as land E
 graf?bing under the Act - Land grabbing - Jurisdiction .

     . s. 2(c) - 'Land' - Meaning of

       Precedent - Principle of - Held: Statement of the law by
  a Bench is. considered binding on a Bench of the same or F
  lesser number of judges - In case of doubt or disagreement
  about the decision of the earlier Bench, well accepted and
  desirable practice is that the later Bench would refer the case
. to a larger Bench - On facts, the Division Bench of the High
  Court was not right in over-ruling the statement of law by a co- G
  ordinate Bench of equal strength - Judicial discipline and
  practice required them to refer the issue to a larger Bench -
  Judicial discipline.

      The appellant had purchased a building alongwith
                          1253                                    H
    1254 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A the appurtenant lands from by a sale deed. The building
  was forcibly occupied by the respondent. The appellant
  filed an application under Section 7-A of the Andhra
  Pradesh Land Grabbing (Prohibition) Act, 1982 against
  the respondent seeking possession of the property. The
B Special Tribunal allowed the application directing the
  respondent to deliver the property to the appellant. The
  respondent filed an appeal before the Special Court
  which held that the application before the Special
  Tribunal was not maintainable as it was in respect of a
c house property with its appurtenant land and set aside
  the order of the Special Tribunal. The appellant filed writ
  petition. The High Court remitted back the matter to the
  Special Court for hearing afresh and disposal as to
  whether the property was grabbed by the respondent
  and whether he was liable to be evicted. As regards the
0
  maintainability of the application before the Special
  Tribunal, the High Court held that the Act was applicable
  not only to lands but also to lands with the building. The
  judgment in the writ petition became final. Pursuant
E thereto, the Special Court upheld the order of the Special
  Tribunal and directed the respondent to deliver the
  property to the appellant. Aggrieved, the respondent filed
  a writ petition. The High Court holding that since the
  dispute in the case was in respect of a bJ..lilding with its
  appurtenant land, the matter would not come squarely
F within the jurisdiction of the Special Tribunal, and allowed
  the writ petition and set aside the judgment qf the Special
  Court as well as the order of the Special Tribunal.
  Therefore, the appellant filed the instant appeal.

G       Allowing the appeal, the Court

         HELD: 1.1 The Andhra Pradesh Land Grabbing
    (Prohibition) Act, 1982 was enacted to prohibit the activity
    of land grabbing in the State of Andhra Pradesh and to
    provide for matters connected therewith. The definition
H
    SAFIYA BEE v. MOHD. VAJAHATH HUSSAIN ALIAS 1255
                        FASI

  of 'land' under section 2(c) makes it clear that the A
  expression 'land' includes "buildings, structures and
  other things attached to the earth". In view of such
  inclusive definition of 'land', grabbing a building attached
  to the earth amounts to land grabbing for the purposes
  of the Act. Hence, the High Court erred in holding that the B
  Act was applicable to the land but not to the buildings.
  The High Court was. clearly wrong in holding that "if an
  application is filed seeking possession of building along
  with its appurtenant land, because the building in
. question is in existence on the land and is surrounded c
  by the vacant land, it cannot be said that it is a case of
  grabbing of land". If a building along with the land on
  which it stands is the subject matter of the application
  under Section 7-A of the Act, such application is
  maintainable before the Special Tribunal. The distinction
                                                                0
  drawn by the High Court between "building with
  appurtenant land" and "land along w_ith building" is
  artificial and hyper-technical and it defeats the very
  purpose of the legislation. In the light of the definition of
  'land' under Section 2(c) of the Act, both the descriptions
  practically mean the same thing vis-a-vis 'land grabbing' E
  and there is no logic or justification for drawing a
  distinction between them. Hence, the High Court erred in
  holding that the application filed by the appellant was not
  maintainable before the Special Tribunal. [Para 11) [1263-
  G-H· 1264-A" G-H· 1265-A-C)                                   F
       '        '     '
        1.2 The registered Sale Deed was in respect of not
  only the building but also the courtyard and backyard.
  From the entries in the application filed by the appellant,
  it is clear that the subject matter of the dispute was not G
1
  only the building having plinth area of 1114 sq.ft. but also
  the open land comprising an area of 9341 sq.ft. In the
  summary of claim, the appellant's application raised the
  claim specifically in respect of 'house and appurtenant
  land'. It was specifically alleged that the respondent H
   1256 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R


A forcibly occupied the house and since then he is in the
  occupation of the said house and open land. In such
  circumstances, it cannot be said that the subject matter
  of the dispute was only the building. The subject matter
  of the dispute was the building and the appurtenant open
B land. [Para 12] [1266-C-E]

       1.3 The High Court erred in holding that only
  occupation of the open land and construction of a
  building thereon can be treated as land grabbing and that
C occupation of a building along with open land cannot be
  treated as land grabbing under the Act. When the land
  along with the building existing thereon is occupied, it
  would amount to land grabbing. [Para 13] [1266-F]

       1.4 The application filed by the appellant under
D Section 7-A of the Act before the Special Tribunal was
  maintainable and the Special Tribunal had necessary
  jurisdiction to adjudicate the dispute raised therein. In
  view of, the said finding, the impugned order of the High
  Court is liable to be set aside and the order of the Special
E Tribunal and judgment of the Special Court are liable to
  be restored. [Paras 14] [1266-G; 1267-A-B]

       1.5 It is not necessary to examine the correctness of
  the finding of the High Court that the decision of the High
F Court in the earlier writ petition (filed by the appellant) did
  not operate as res judicata for considering the
  maintainability of the application and the jurisdiction of
  the Special Tribunal in the later writ petition (filed by the
  respondent). However, even assuming that the decision
  in the earlier writ petition did not operate as res judicata,
G even if the judges who decided the subsequent writ
  petition did not agree with the view taken by a Co-
  ordinate Bench of equal strength in the earlier writ
  petition regarding the interpretation of Section 2(c) of the
  Act and its application to the petition schedule property,
H judicial discipline and practice required them to refer the
SAFIYA BEE v. MOHD. VAJAHATH HUSSAIN AL/AS 1257
                    FASI

issue to a larger Bench. The judges were not right in over- A
ru!ing the statementof the law by a Co-ordinate Bench
of equal strength. It is an accepted rule or principle that
the statement of the law by a Bench is considered binding
on a Bench of the same or lesser number of Judges. In·
case of doubt or disagreement about the decision of the B
earlier Bench, the well accepted and desirable practice
is that the later Bench would refer the case to a larger
Bench. [Paras 15 and· 16] [1267-B-F]

     Union of India and Anr. v. Raghubir Singh (Dead) by LRs. C
Etc. (1989) 2 SCC 754; Central Board of Dawoodi Bohra
Community and Anr. v. State of Maharashtra and Anr. (2005)
2 sec 673 - referred to.

      1.6 The order passed by the Special Tribunal and the
judgment passed by of the Special Court are upheld. The D
respondent is directed to deliver the petition schedule
property to the appellant within the stipulated period
failing which the Revenue Divisional Officer would deliver
the petition schedule property to the appellant. [Para 18]
[1271-C-E]                                                 E
                     Case Law Reference:
    (1989) 2 sec 754            Referred to         Para 17
    (2005) 2 sec 673            Referred to         Para 17
                                                                 F
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10664 of 2010.
    From the Judgment & Order dated 18.04.2007 of the High
Court of Judicature Andhra Pradesh at Hyderabad in W.P. No.      G
304 of 2001.
    K. Swami, Prabha for the Appellant.

     Bina Madhavan, Tarun Satija (for Lawyer's Knit & Co.) for
the Respondent.                                                  H
    1258 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.


A       The Judgment of the Court was delivered by

        CYRIAC JOSEPH, J. 1. Leave granted.

       2. According to the appellant Safiya Bee, vide a registered
  Sale Deed dated 5th February, 1969, she had purchased from
B one Mohd. Hussain houses bearing Nos. 2-5-254, 2-5-255 and
  2-5-256 along with the appurtenant lands. The respondent
  Mohd. Vajahath Hussain alias Fasi forcibly occupied the house
  bearing No. 2-5-256 (re-numbered as 4-3-65). The building has
  a plinth area of 1114 sq.ft. and the appurtenant vacant land has
C an area of 9341 sq.ft. Alleging that the respondent is a 'land
  grabber', the appellant filed L.G.O.P. No. 5 of 1990 under
  Section 7-A of the Andhra Pradesh Land Grabbing (Prohibition)
  Act, 1982 (hereinafter referred to as "the Act") before the
  Special Tribunal, Adilabad seeking possession of the house
D and the appurtenant land from the respondent. The respondent
  contested L.G.O.P. No. 5 of 1990 and contended that he was
  not a land grabber, that he, his mother and his brothers were
  in possession of the disputed property in their own rights under
  law and that they were the owners of the disputed property. He
E also disputed the claim of the appellant that she had purchased
  the property as per registered Sale Deed dated 5th February, ·
  1969. He alleged that the registered Sale Deed was a
  fabricated and concocted document and that late Mohd.
  Hussain was not in a position to sell the property as he was
F not of sound mind at the relevant time. According to the
  respondent, the appellant did not have the financial capacity to
  purchase the house and there was no need for Mohd. Hussain
  to sell the house.

        3. After considering the pleadings in the case and the
G evidence adduced, the Special Tribunal allowed the application
  on 13th June, 1997 and directed the respondent to deliver the ·
  property to the appellant. In its order dated 13th June, 1997
  passed in L.G.O.P. No. 5 of 1990, the Special Tribunal held
  that:
H
SAFIYA BEE v. MOHD. VAJAHATH HUSSAIN ALIAS 1259
          FASI [CYRIAC JOSEPH, J.]

     (a) Mohd. Hussain executed the registered Sale Deed             A
dated 5th February, 1969 in respect of the disputed property
in favour of the appellant after receiving the consideration;

     (b) The appellant is the owner of the disputed property;

     (c) Mohd. Hussain was in sound state of mind till his death;    B

     (d} The respondent could not establish that Mohd. Hussain
had gifted the northern portion of the house to his younger son
Mohd. Zafar Hussain and the southern portion with its open land
to his elder son Shaukat Hussain;                                    c
    (e) The respondent has grabbed the disputed property and
being a 'land grabber' he is liable to be evicted from the
disputed land; and

     (f) The mother and the brothers of the respondent are not D
in possession of the disputed property and the respondent
alone has been in possession of the property after grabbing it.

     4. Aggrieved by the order dated 13th June, 1997 of the
Special Tribunal in L.G.O.P. No. 5 of 1990, the respondent filed     E
an appeal being LG.A. No. 30 of 1997 in the Special Court
constituted under the Act. By its judgment dated 30th October,
1998, the Special Court allowed the appeal holding that the
application was not maintainable before the Special Tribunal.
Accordingly, the Special Court set aside the order of the            F
Special Tribunal in L.G.O.P. No. 5 of 1990 and directed the
Special Tribunal to return the application to the appellant herein
for presentation to a proper court if so advised. In the judgment
dated 30th October, 1998, the Special Court held that since
the application of the appellant was in respect of a house           G
property which was alleged to have been grabbed by the
respondent, it was not maintainable before the Special Tribunal.
According to the Special Court, if an existing building itself is
grabbed, the same will not fall within the jurisdiction of the
Special Tribunal or the Special Court and if land is grabbed
                                                                     H
    1260 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A   and thereafter structures are raised, it may fall within the
    jurisdiction of the Special Tribunal or the Special Court. It was
    also made clear by the Special Court that in view of its decision
    that L.G.O.P. No. 5 of 1990 was not maintainable before the
    Special Tribunal, it was not going into the merits of the case.
B
       5. Challenging the judgment dated 30th October, 1998 of
  the Special Court, the appellant herein filed W.P. No. 35561
  of 1998 in the High Court of Andhra Pradesh. By its judgment
  dated 4th July, 2000, the High Court allowed the writ petition,
  set aside the judgment of the Special Court and remitted the
C matter back to the Special Court for fresh hearing and disposal
  as to whether property has been grabbed by the respondent
  and whether he is liable to be evicted delivering possession
  of the property to the appellant. To hold that L.G.O.P. No. 5 of
  1990 was maintainable before the Special Tribunal, the High
D Court relied on Section 2(c) of the Act which states that land
  includes rights in or over land, benefits to arise out of land and
  buildings, structures and other things attached to the earth or
  permanently fastened to anything attached to the earth. The
  High Court also pointed out that the word 'land', as defined in
E other statutes and as decided by the High Court and the
  Supreme Court in similar matters, includes super-structure,
  building etc. unless they are excluded from the definition of 'land'
  by a Special Act. The High Court accepted the contention of
  the appellant that the Act applies not only to lands but also to
F lands with building.

      6. The above judgment in W.P. No. 35561 of 1998 was
  accepted by the respondent as it was not challenged by him
  before any higher forum. Thus, the said judgment became final
G and binding on the respondent.

         7. On the basis of the remand of the matter by the High
    Court, LG.A. No. 30 of 1997 was again heard and disposed
    of by the Special Court on 16th November, 2000. As per the
    judgment dated 16th November, 2000, the appeal was
H
 SAFIYA BEE v. MOHD. VAJAHATH HUSSAIN ALIAS 1261
           FASI [CYRIAC JOSEPH, J.]

dismissed, the order of the Special Tribunal was upheld and          A I
the respondent herein wa~ directed to deliver possession of
the petition schedule property to the appellant herein within a
period of two months. While dismissing the appeal, the Special
Court held that the Sale Deed dated 5th February, 1969 relied
upon by the appellant was true and valid and was binding on          B
the respondent. The Special Court also rejected the contention
of the respondent that there was an oral gift of the property in
the year 1954. Though the learned counsel for the respondent
tried to contend that the respondent had perfected his title by
adverse possession, the said contention was not entertained          c
by the Special Court on the ground that the respondent had not
raised any plea or led any evidence in that regard and such a
point was not argued before the Special Tribunal and no finding
was recorded by the Special Tribunal.

      8. Thereupon the respondent herein filed W.P. No. 304 of       D
2001 in the High Court of Andhra Pradesh challenging the
judgment dated 16th November, 2000 of the Special Court in
LG.A. No. 30of1997. When the writ petition was heard by the
High Court, the main question raised related to the jurisdiction           .. -· '·-··-
of the Special Tribunal to consider the application in L.G.O.P.      E
 No. 5 of 1990 filed by the appellant herein as it was in respect
of a house property with its appurtenant land. It was contended
on behalf of the writ petitioner that the Special Tribunal had no
jurisdiction to deal with the house property and, therefore, the
impugned orders were without jurisdiction. It was also               F
contended that the remand order passed by the High Court in
the earlier W.P. No. 35561 of 1998 was in the nature of an
interlocutory order and was passed without considering the
relevant provisions of the Act and hence the order was without
jurisdiction, a nullity and would not operate as a bar. However,     G
on behalf of the respondent in the writ petition (appellant
herein), it was contended that the remand order which had
become final and binding would operate as res judicata and
that the buildings and structures existing on the land would be
covered by the definition of 'land' in Section 2(c) of the Act. It   H
    1262 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A was also pointed out that the extent of the open land was much
  more than the extent of the area covered by the building. After
  noticing the contentions of the parties, the High Court
  proceeded to consider the following questions :

B       (i) Whether the property in question is a building or land?
        and

        (ii) Whether the Special Tribunal has jurisdiction to
        entertain an application in respect of a house property with
        its appurtenant open land?
c
        9. In its judgment dated 18th April, 2007, the High Court
  found that the conclusions reached by the Special Tribunal were
  well founded upon the oral and documentary evidence, that the
  Special Court too, on re-appraisal of the evidence, concurred
o with the conclusions reached by the Special Tribunal and that
  there were concurrent findings of the Special Tribunal and the
  Special Court on the contentious issues between the parties.
  After considering the particulars furnishe~ by the appellant in
  the different columns of the application filed before the Special
E Tribunal, the High Court observed that the property in dispute
  was the house bearing Municipal No. 4-3-65 with its
  appurtenant open land. Even though the question of jurisdiction
  of the Special Tribunal to consider and decide the application
  in L.G.O.P. No. 5 of 1990 had already been considered and
F decided in the earlier W.P. No. 35561 of 1998, the High Court
  proceeded to again consider the question of maintainability of
  the said application before the Special Tribunal. By way of
  justification for such consideration, the High Court has stated
  in the judgment that "since the decision of the court while
  remitting the matter to the Special Court for fresh disposal was
G mainly dependant upon the interpretation of a provision of the
  Act, which is a pure question of law involving the interpretation
  process, such a decision will not operate as res judicata". The
  High Court has held that "if an application is filed seeking
  possession of building along with its appurtenant land because
H
 SAFIYA BEE v. MOHD. VAJAHATH HUSSAIN ALIAS 1263
           FASI [CYRIAC JOSEPH, J.]

the building in question is in existence on the land and is              A
surrounded by the vacant land, it cannot be said that it is a case
of grabbing of land, but it is certainly a case of occupation of a
building". According to the High Court, the Act applies to the
lands but not to the buildings and when it is alleged that the lanEl .
is grabbed, the land along with the existing super-structure or          B
building thereon can together reflect as property in dispute and
in such a case the Special Tribunal or the Special Court has
jurisdiction to adjudicate. But if the ·application is for seeking
possession of building along with its appurtenant land, the
Special Tribunal or the Special Court has no jurisdiction to             c
adjudicate the dispute. The High Court has drawn a distinction
between "building with its appurtenant land" and "land along with
building". Based on such reasoning, the High Court has held
that since the dispute in the case was in respect of a building
with its appurtenant land, the matter would not come squarely            D
within the jurisdiction of the Special Tribunal. The High Court
'ias also observed that even though the applicant seemed to
have a good case on the factual aspect, unfortunately the
applicant approached a wrong forum which had no jurisdiction
to adjudicate. As per the judgment dated 18th April 2007, the
                                                                         E
High Court allowed the writ petition and set aside the judgment
dated 16th November, 2000 of the Special Court as well as
the order dated 13th June, 1997 of the Special Tribunal.

    10. The appellant has filed this appeal against the said
judgment dated 18th April, 2007 of the High Court in W.P. No.            F
304 of 2001. We have heard the learned counsel for the parties
and have considered the materials placed on record.

     11. The basic question to be considered is whether the
High Court was correct in holding that the appellant's                   G
application under Section 7-A of the Act was not maintainable
before the Special Tribunal "as the property in dispute was a
building with its appurtenant land". The Andhra Pradesh Land
Grabbing (Prohibition) Act, 1982 was enacted to prohibit the
activity of land grabbing in the State of Andhra Pradesh and to
                                                                         H
    1264 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A provide for matters connected therewith. As per Section 1(3),
  the Act applies to all lands situated within the limits of urban
  agglomeration as defined in Clause (n) of Section 2 of the
  Urban Land (Ceiling and Regulation) Act, 1976 and a
  Municipality. As per Section 1(3-A), the Act applies also to any
B other lands situated in such areas as the Government may, by
  notification, specify. Section 2(e) defines 'land grabbing' as
  hereunder:

        " 'land grabbing' means every activity of grabbing of any
        land (whether belonging to the Government, a local
c       authority, a religious or charitable institution or endowment,
        including a wakf, or any other private person) by a person
        or group of persons, without any lawful entitlement and with
        a view to illegally taking possession of such lands, or enter
        into or create illegal tenancies or lease and licences
D       agreements or any other illegal agreements in respect of
        such lands, or to construct unauthorised structures thereon
        for sale or hire, or give such lands to any person on rental
        or lease and licence basis for construction, or use and
        occupation, of unauthorized structures; and the term 'to
E       grab land' shall be construed accordingly."

        Section 2(c) defines 'land' as hereunder:

        " 'land' includes rights in or over land, benefits to arise out
        of land and buildings, structures and other things attached
F
        to the earth or permanently fastened to anything attached
        to the earth"

  The above definition of 'land' makes it clear that the expression
  'land' includes "buildings, structures and other things attached
G to the earth". In view of such inclusive definition of 'land',
  grabbing a building attached to the earth amounts to land
  grabbing for the purposes of this Act. Hence, the High Court
  erred in holding that the Act applies to the land but not to the
  buildings. The High Court was clearly wrong in holding that "if
H an application is filed seeking possession of building along with
 SAFIYA BEE v. MOHD. VAJAHATH HUSSAIN AL/AS1265
           FASI [CYRIAC JOSEPH, J.]

its appurtenant land, because the building in question is in           A
existence on the land and is surrounded by the vacant land, it
cannot be said that it is a case of grabbing of land". In our vie)N.
if a building along with the land on which it stands is the subject
matter of the application under Section 7-A of the Act, such
application is maintainable before the Special Tribunal. The           B
distinction drawn by the High Court between "building with
appurtenant land" and "land along with building" is artificial and
hyper-tech'nical and it defeats. the very purpose of the
legislation. In the light of the definition of 'land' under Section
2(c) of the Act, both the above descriptions practically mean          c
the same thing vis-a-vis 'land grabbing' and there is no logic
or justification for drawing a di_stinction between them. Hence,
the High Court erred in holding that the application filed by the
appellant was not maintainable before the Special Tribunal.

    12. It is to be noted that in Column 10 of the application         D
submitted by the appellant, Survey Number and Sub-Division
Number of the land were given as:

     "House No.4-3-65, 2-5-256 (old) and open land
     comprising of 9341 square feet."                                  E

     In Column 11, the extent of land was stated as:

     "Open land 9341 square feet, Plinth area of the house
     1114 square feet. "
        '                                                              F
Against Column 14 relating to summary of claim made and the
provision of law under which it is preferred, the entry was as
follows:

    'The house and appurtenant iand i.e. house bearing No.4-
    3"65 corresponding to old No.2-5-256 belongs to the G
    petitioner. The petitioner purchased the said house under
    registered sale deed dated 5.2.1969. The respondent
    forcibly occupied the house and since then he is in the .
    occupation of the said house and open land. The
                                                                       H
    1266 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A       registered sale deed was attested by the following two
        witnesses:

        1. Syed Afzal, s/o Syed Shabbir Hussain, r/o Adilabad

        2. Late Shaikh Ahmed s/o Shaikh Abdulla r/o Adilabad.
B
        Late Ameerulla Khan was the scribe to the document."

  It is also to be noted that the registered Sale Deed -referred to
  above w2 in respect of not only the building but also the
C courtyard and backyard. From the above-mentioned entries in
  the application filed by the appellant, it is clear that the subject
  matter of the dispute was not only the building having plinth area
  of 1114 sq.ft. but also the open land comprising an area of
  9341 sq.ft. In the summary of claim, the appellant's application
  had raised the claim specifically in respect of "house and
D appurtenant land". It was specifically alleged that the respondent
  forcibly occupied the house and since then he is in the
  occupation of the said house and open land. In such
  circumstances, it cannot be said that the subject matter of the
  dispute was only the building. The subject matter of the dispute
E was the building and the appurtenant open land.

         13. The High Court also erred in holding that only
    occupation of the open land and construction of a building
    thereon can be treated as land grabbing and that occupation
F   of a building along with open land cannot be treated as land
    grabbing under the Act. When the land along with the building
    existing thereon is occupied, it will amount to land grabbing.

         14. In the light of the above discussion, we hold that the
  application filed by the appellant under Section 7-A of the Act
G before the Special Tribunal was maintainable and that the
  Special Tribunal had necessary jurisdiction to adjudicate the
  dispute raised therein.

         15. In view of our finding that the application filed by the
H
 SAFIY~ BEE v. MOHD. VAJAHATH HUSSAIN ALIAS 1267
               FAS! [CYRIAC JOSEPH, J.]

appellant before the Special Tribunal was maintainable and that      A
the Special Tribunal had jurisdiction to adjudicate the dispute
raised therein, the impugned order of the High Court is liable
to be set aside and the order of the Special Tribunal and
judgment of the Special Court are liable to be restored.
Therefore, we consider it unnecessary to examine the                 B
correctness of the finding of the High Court that the decision
of the High Court in the earlier W.P. No. 35561 of 1998 did
not operate as res judicata for considering the maintainability
of the application and the jurisdiction of the Special Tribunal in
the later W.P. No. 304 of 2001.                                      c
     16. However, even assuming that the decision in W.P. No.
35561 of 1998 did not operate as res judicata, we are
constrained to observe that even if the learned Judges who
decided W.P. No. 304 of 2001 did not agree with the view
taken by a Co-ordinate Bench of equal strength in the earlier        D
W.P. No. 35561 of 1998 regarding the interpretation of Section
2(c) of the Act and its application to the petition schedule
property, judicial discipline and practice required them to refer
the issue to a larger Bench. The learned Judges were not right
in over-ruling the statement of the law by a Co-ordinate Bench       E
of equal strength. It is an accepted rule or principle that the
statement of the law by a Bench is considered binding on a
Bench of the same or lesser number of Judges. In case of
doubt or disagreement about the decision of the earlier Bench,
the well accepted and desirable practice is that the later Bench     F
would refer the case to a larger Bench.

    17. In Union of India and Anr. v. Raghubir Singh (Dead)
by LRs. Etc. [(1989) 2 SCC 754], (paras 27 and 28), a
Constitution Bench of this Court held:                               G
     "27. What then should be the position in regard to the effect
     of the law pronounced by a Division Bench in relation to a
     case realising the same point subsequently before a
     Division Bench of a smaller number of Judges? There is
                                                                     H
    1268 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A      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
B      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 havinp ·egard to the volume of work demanding
       the attention .Jf the Court, it has been found necessary in
c      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
D
       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
E      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
F      the recent cases on the point. In John Martin v. State of
        West Bengal, (1975) 3 SCC 836, a Division Bench of
       three Judges found it right to follow the law declared in
       Haradhan Saha v. State of West Bengal, (1975) 3 SCC
        198, decided by a Division Bench of five Judges, in
G       preference to Bhut Nath Mate v. State of West Bengal,
       (1974) 1 SCC 645 decided by a Division Bench of two
       Judges. Again in Indira Nehru Gandhi v. Raj Narain, 1975
       Supp. SCC 1, Beg J held that the Constitution Bench of
       five Judges was bound by the Constitution Bench of
H      thirteen Judges in Kesavananda Bharati v. State of Kera/a,
SAFIYA BEE v. MOHD. VAJAHATH HUSSAIN AL/AS 1269
          FASI [CYRIAC JOSEPH, J.]

   (1973) 4 SCC 225. In Ganapati Sitaram Balvalkar v. A
   Waman Shripad Mage, (1981) 4 SCC 143, 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
   Mattu/a/ v. Radhe Lal, (1974) 2 SCC 365, this Court B
   specifically 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         c
   Judges. This Court also laid down in Acharya Maharajshri
   Narandraprasadji Anandprasadji Maharaj v. State of
   Gujarat, (1975) 1 SCC 11 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 D
   to decide the correctness or otherwise of the views of the
   other. The principle was reaffirmed in Union of India v.
   Godfrey Philips India Ltd., (1985) 4 SCC 369 which noted
   that a Division Bench of two Judges of this Court in Jit Ram
   Shiv Kumar v. State of Haryana, (1981) 1 SCC 11 had
   differed from the view taken by an earlier Division Bench E
   of two Judges in Motilal Padampat Sugar Mills v. State
   of U.P., (1979) 2 SCC 409 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 F
   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.
                                                                G
   28. We are of opinion that a pronouncement of law by a
   Division Bench of this Court is binding on a Division Bench
   of the same or a smaller number of Judges, and in order
   that such decision he binding, it is not necessary that it
   should be a dechior. rendered by the Full Court or a H
    1270 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A       Constitution Bench of the Court ...... "

  In Central Board of Dawoodi Bohra Community and Anr. v.
  State of Maharashtra and Anr. [(2005) 2 SCC 673], (para 12),
  a Constitution Bench of this Court summed up the legal position
B in the following terms :

        "(1) The law laid down by this Court in a decision delivered
        by a Bench of larger strength is binding on any subsequent
        Be.nch of lesser or co-equal strength.

c       (2) A Bench of lesser quorum cannot disagree or dissent
        from the view of the law taken by a Bench of larger quorum.
        In case of doubt all that the Bench of lesser quorum can
        do is to invite the attention of the Chief Ju::.tice and request
        for the matter being placed for hearing before a Bench of
D       larger quorum than the Bench whose decision has come
        up for consideration. It will be open only for a Bench of co-
        equal strength to express an opinion doubting the
        correctness of the view taken by the earlier Bench of co-
        equal strength, whereupon the matter may be placed for
        hearing before a Bench consisting of a quorum larger than
E
        the one which pronounced the decision laying down the law
        the correctness of which is doubted.

        (3) The above rules are subject to two exceptions :

F               (i) The abovesaid rules do not bind the discretion
                of the Chief Justice in whom vests the power of
                framing the roster and who can direct any particular
                matter to be placed for hearing before any particular
                Bench of any strength; and
G               (ii) In spite of the rules laid down hereinabove, if the
                matter has already come up for hearing before a
                Bench of larger quorum and that Bench itself feels
                that the view of the law taken by a Bench of lesser
                quorum, which view is in doubt, needs correction
H
SAFIYA BEE v. MOHD. VAJAHATH HUSSAIN ALIAS 1271
          FASI [CYRIAC JOSEPH, J.]

           or reconsideration then by way of exception (and        A
           not as a rule) and for reasons given by it, it may
           proceed to hear the case and examine the
           correctness of the previous decision in question
           dispensing with the need of a specific reference or
           the order of Chief Justice constituting the Bench and   B
           such listing."

The above principles and norms stated with reference to the
Supreme Court are equally relevant and applicable to the High
Court also.                                      ·
                                                                   c
     18. For the reasons stated above, we allow the appeal and
set aside the impugned judgment dated 18th April, 2007 in
W.P. No. 304 of 2001. The order dated 13th June, 1997 of the
Special Tribunal in L.G.O.P. No. 5 of 1990 and the judgment
dated 16th November, 2000 of the Special Court in LG.A. No.        D
30 of 1997 are upheld. The respondent is directed to deliver
the petition schedule property to the appellant within a period
of two months from today, failing which, the Revenue Divisional
Officer concerned shall deliver the petition schedule property
to the appellant within a period of two months after the expiry    E
of the period of two months mentioned above.

N.J.                                          Appeal allowed.