Holding

The earlier Full Bench decision in Ramkrit Singh is not per incuriam and remains binding; consequently, the High Court’s declaration of unconstitutionality of Section 15 is set aside.

Summary

The State of Bihar appealed a Patna High Court judgment that held Sections 15(1) and 15(2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 to be ultra‑vires Articles 13 and 14 of the Constitution and diluted the effect of Sections 4(b), 4(c) and 37. The High Court also declared the earlier Full Bench decision in Ramkrit Singh v. State of Bihar (AIR 1979 Patna 250) to be per incuriam and therefore not binding. The Supreme Court examined whether the doctrine of per incuriam could be invoked to disregard a coordinate‑bench decision and held that a decision is per incuriam only when it ignores a binding statutory provision or precedent, which was not the case here. Consequently, the earlier Ramkrit Singh judgment remains binding, and the High Court’s declaration of unconstitutionality of Section 15 cannot stand. The appeal was allowed, the High Court judgment set aside, and the matter remanded to the High Court for disposal consistent with this ruling.

Issues considered

Whether Sections 15(1) and 15(2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 are ultra vires Articles 13 and 14 of the Constitution of India.
Whether the earlier Full Bench decision in Ramkrit Singh v. State of Bihar is per incuriam and thus not binding on a coordinate bench.
Interpretation of Sections 4(b), 4(c) and 37 of the Act concerning the jurisdiction of civil courts.
Scope and applicability of the doctrine of per incuriam in Indian jurisprudence.

Legislation cited

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956s. 15(1), s. 15(2), s. 3, s. 37, s. 4(b), s. 4(c)
Constitution of Indias. 13, s. 14

Subjects

Constitutionalityper incuriambinding precedentBihar Consolidation ActCivil court jurisdictionArticles 13 and 14Section 15coordinate bench

Judgment

'

- STATE OF BIHAR
V.

KALIKA KUER @ KALIKA SINGH AND ORS.
A

APRIL 25, 2003

[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] B

Constitution of India, 1950; Articles 13 and 14/Bihar Consolidation of
Holdings and Prevention of Fragmentation Act, 1956; Sections 3, 4(b) and
(c), 15(/) and (2) and Section 37:
c
? Provision of the Bihar Consolidation of Holdings and Prevention of
Fragmentation Act-Constitutionality of-Full Bench/three Judge Bench of
High Court holding Section 15 of the Act ultra vires Articles 13 and 14 of the
Constitution of India-It also diluted the effect of the provisions of Section
4(b)(c) and Section 37 by enlarging jurisdiction of Civil Court under the Act,
D
ignoring an earlier decision of the Full Bench of the High Court on the same
issue as having been rendered per incuriam-On appeal, Held: Earlier decision
may seem to be incorrect to a subsequent Bench of co-ordinate jurisdiction on
ground of non-consideration of possible aspects of the matter-However, it
would not be reasonable to ignore the same as rendered per incuriam-Hence
not permissible-Such earlier decision would have binding effect-It would be E
appropriate either to follow it or refer it to a larger Bench when decision
appears to be incorrect on merit-Matter remanded to the High Court to
dispose it of accordingly-Directions issued.

Words and Phrases:
F
'per incuriam '-MeC'ning and scope of
'
~

A Full Bench consisting of three Judges of the High Court considered
\
the questions relating to vires, interpretation and scope of provisions of
the Bihar Consolidation of Holdings and Prevention of Fragmentation Act
and held Section 15 of the Act ultra vires Articles 13 and 14 of the
G
Constitution of India and the Bench has also diluted the effect of the
provision under Sections 4(b), 4(c) and 37 of the Act holding the earlier
decision by a Full Bench of the same High Court in the case of Ramkrit
Singh and Ors. v. State ofBihar and Ors., AIR (1979) Patna 250 not binding

919
H
I

920 SUPREME COURT REPORTS [2003) 3 S.C.R.

A as having beeri rendered per incuriam. Hence, this appeal by the State.

Allowing the appeal and remanding the matter to the High Court,
the Court

HELD: 1.1. The reason which has been indicated to hold that the
B decision in the case of Ramkrit Singh was per incuriam is that it did not
consider the question as to whether the consolidation authorities are courts
of limited jurisdiction or not. Hence, an observation was made that civil
court while disposing of suits after revival of their jurisdiction at the end
of consolidation proceedings would merely pass a decree in terms of
C decision of the consolidation authority. It is. observed that cases where
jurisdiction of civil court is not barred in terms of Section 4(b) or Section
37 of the Act, "the civil court cannot pass a decree only in terms of decision
of the consolidation authorities" after revival of the suit. Whatever has been
held or observed in the case of Ramkrit Singh may not appear to be correct
or may seem to be against the provision of the Act but that would not be
D a valid ground to hold that the earlier judgment was rendered per incuriam
or that the decision would not be binding on the Bench of a coordinate
jurisdiction. (923-E-Gl

Ramkrit Singh and Ors. v. State of Bihar and Ors., AIR (1979) Patna
E 250, referred to.

1.2. The element of rendering a decision in ignorance of any provision
of the statute or the judicial authority of binding nature, is not the reason
indicated by the Full Bench of the High Court in the impugned judgment,
while holding that decision in the case of Ramkrit Singh was rendered per
F incuriam. On the other hand, it.was observed that in the case of Ramkrit
Singh the High Court did not consider the question as to whether the
consolidation authorities are courts of limited jurisdiction or not. In
connection with. this observation, an earlier decision may seem to be
incorrect to a Bench of a coordinate jurisdiction considering the question
G later, on the ground that a possible aspect of the matter was, not considered
or not raised before the Court or more aspects should have been gone into
by the Court deciding the matter earlier but it would not be a reason to
say that the decision was rendered per incuriam and liable to be ignored.
The earlier judgment may seem to be not correct, yet it will have the
binding effect on the latter Bench of coordinate jurisdiction. Easy course
H of saying that earlier decision was rendered per incuriam is not permissible
STATE v. KALIKA KUER [ B.RIJESH KUMAR, J.) 921
and the matter will have to be resolved only in two ways-either to follow A
the earlier decision or refer the matter to a larger Bench to examine the
issue, in case it is felt that earlier decision is not correct on merits.
1926-B-EI

Govt. of Andhra Pradesh and Anr. v. B. Satyanarayana Rao (Dead) by
Lrs., 120001 4 SCC 262; State of U.P. and Anr. v. Synthetics and Chemicals B
Ltd. and Anr., 1199114 SCC 139; Furest Day Lawson Ltd. v. Shivaraj V. Patil,
12001 I 6 SCC 356; Dr. Vijay laxmi Sadho v. Jagdish, 120011 2 SCC and
Pradip Chandra Parija and Ors. v. Pramod Cha~dra Patnaik and Ors., 120021
1 SCC 1, relied on.

Ramkrit Singh and Ors. v. State of Bihar and Ors., AIR (1979) Patna
c
250, referred to.

Halsbw·IJ' 's Laws of England (Fourth Edition) Vol. 26, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5654 of D
1990.

From the Judgment and Order dated 25.9. 1989 of the Patna High Court
in C.W.J.C. No. 2502 of 1988.

Akhilesh Kumar Pandey, Ashok Pandey, Mrs Ritu Jalali, Ms. Ranjana E
Narayan for Rajesh Prasad Singh for the Appellant.

S. Balakrishnan, for the Respondent.

Syed Ali Ahmad, Syed Tanweer Ahmad and Mohan Pandey for the
Respondent Nos. 2 & 3. F

The Judgment of the Court was delivered by

BRIJESH KUMAR, J. Thi~ is an appeal preferred by the State of
Bihar against the judgment and order dated 25.9. I 989 passed by the Patna
High Court declaring, Sections I 5 (I) and I 5 (2) of the Bihar Consolidation G
of Holdings and Prevention ofFragmentation Act, I 956 (for short 'the Act'),
ultra vires of Articles 13 and 14 of the Constitution. It appears that the
question of vires, interpretation and scope of various provisions of the Act
came to be considered by a Full Bench consisting of three Hon 'ble judges of
the Patna High Court and considering the points raised and some decisions H
922 SUPREME COURT REPORTS (2003) 3 S.C.R.
·-";.
A rendered earlier, the Full Bench held Section 15 of the Act u/ti'a vires and
further held that certain categories of disputes and matters could be entertained
and decided by the civil court despite the restrictions placed under section
4(b) and 4(c) of the Act and bar of jurisdiction of Civil Court u/s 37 of the
Act. The first and the foremost submission put forward by learned counsel
for the appellant for consideration of this Court is that in an earlier Full
B Bench decision of the Patna High Court reported in AIR 1979 Patna 250,
Ramkrit Singh and Ors. v. State of Bihar and Ors, the same questions have
been considered and decided inter a/ia the question of the validity of Section
15 and the impact of Sec. 4(b), Sec. 4(c) and Section 37 of the Act. The vires
of Section 15 of the Act has been upheld in the case of Ramkrit Singh (supra)
C by the Full Bench, including the bar of jurisdiction of the Civil Court in
respect of matters covered by notification u/s 3 read with Section 4(b) and
4( c) of the Act.

The provision contained under Section 4 (b) provides that after a
Notification is published under Section 3(1) of the Act, no suit or other legal
D proceeding falling in the area notified, shall be entertained by any Court and
Section 4(c) provides that every proceeding for con-ection of records and for
declaration of rights or interest in any land or any other right, pending before
any other Court"or authority shall stand abated. Section 15 of the Act provides
that the Consolidation Officer shall grant to every raiyat to whom holding has
E been allotted under the Scheme of Consolidation, a Certificate which shall be
a conclusive proof of the title of such raiyat and similar certificate is provided
to every under-raiyat having a right of occupancy or not but having been
allotted a land under the Consolidation Scheme. It is also considered to be a
conclusive proof of the title of the under-raiyat. Section 37 attaches finality
to the decisions and orders passed under the Act and the jurisdiction of the
F civil court is ban-ed to entertain any suit or proceedings in respect thereof.
The impugned judgment besides declaring Section 15 ultra vires has also
diluted the effect of the provisions contained under Section 4 (b), 4(c) and
37 of the Act, while holding that pending suits shall not abate unless specific
order of abatement is passed by the civil court and that the suit would revive
and proceeded with in accordance with law, in the event of cancellation of
G Consolidation Scheme or on its completion. And where the claim in respect
of declaration of rights or interest in the land is incidental, such suits pending
before the civil court or other authorities shall not abate. Bar of Section 37
has also been curtailed.

H It has been submitted on behalf of the appellant that the Full Bench
STATEv. KALIKA KUER [ BRIJESH KUMAR, J.) 923
decision, impugned herein, is in direct conflict with the decision in the case A

'· of Ramkril Singh (supra), in which case also same or similar arguments and
grounds were raised. Our attention has been drawn to Paragraph 78A of the
impugned Judgment, delivered on behalf of two Hon 'ble Judges and third
Hon'ble Judge concurring with it, holding that the decision in the case of
Ramkrit Singh (supra) is not binding, having been rendered per incuriam .
We quote the relevant paragraph 78A which reads as follows: B
"78A. As noticed hereinbefore, the Special Bench in Ram Kiral Singh's
case did not consider the question as to whether the consolidation
authorities are courts of limited jurisdiction or not and thus it made
an observation that the civil court while disposing of the suits after C
revival thereof at the end of the consolidation proceedings, would
merely pass a decree in tenns of the decision of the consolidation
authorities. The said observations must be held to have been rendered
per incuriam in as much as in the cases where the jurisdiction of the
civil court is not barred in terms of Section 4(b) or Section 37 of the
Act, the civil court cannot pass a decree only in terms of the decision D
of the consolidation authorities after revival of the suit. The said
observations, therefore, are not binding upon this court. In such a
situation the civil court will have jurisdiction to decide suits relating
to such matter in respect whereof its jurisdiction is not barred either
in terms of section 4(b) or Section 37 of the said Act"
E
The reason which has been indicated to hold that the decision in the
case of Ramkril Singh (supra) was per incuriam is that it did not consider the
question as to whether the comolidation authorities are courts of limited
jurisdiction or not. Hence, an observation was made that civil court while
disposing of suits after revival of their jurisdiction at the end of consolidation F
proceedings would merely pass a decree in terms of decision of the
consolidation authority. It is observed that cases where jurisdiction of civil
court is not barred in terms of Section 4(b) or Section 37 of the Act, "the civil
court cannot pass a decree only in terms of decision of the consolidation
authorities" after revival of the suit. Whatever has been held or observed in
the case of Ramkrit Singh (supra) may not appear to be correct or may seem G
to be against the provisions of the Act but that would not be a valid ground
to hold that the earlier judgment was rendered per incuriam or that decision
would not be binding on the Bench of a coordinate jurisdiction. In respect of
other points no reference has been made to the Full Bench decision of Ramkril
Singh (Supra).
H
924 SUPREME COURT REPORTS (2003] 3 S.C.R.

A At this juncture we may examine as to in what circumstances a decision
can be considered to have been rendered per incuriam. In Halsburry 's Laws
of England (Fourth Edition) Vol.26: Judgment and Orders Judicial Decisions
as Authorities (pages 297-298, Para 578) we find it observed about per
incuriam as follows:

B "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 coordinate
jurisdiction while covered the case before it, in which case it must
decide which case to follow 1 or 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
c or rule having statutory force.' A decision should not be treated as
given per incuriam, however, simply because of a deficiency of
parties, 3 or because the court had not the benefit of the best argument,•
and, as a general rule, the only cases in which decisions should be
held to be given per incuriam are those given in ignorance of some
D inconsistent statute or binding authority. 5 Even if a decision of the
Court of Appeal has misinterpreted a previous decision of the House
of Lords, the Court of Appeal must follow its previous decision and
leave the House of Lords to rectify the mistake."6

Lord Godard CJ in Huddersfield Police Authorities case observed that where
E
I. Young v. Bristol Aeroplane Co. Ltd., ( 1944) I KB 718 at 729 ( 1944) 2 All ER 293 at 300.
In Hudderfield Police Authority v. Waton. (1947) KB 842 ( 1947) 2 All ER 193.

2. Young v. Bristol Aeroplane Co. Ltd.. (1944) I KB 718 at 729 ( 1944) 2 All ER 293 at 300.
See also Lancaster Motor Co. (London ltd. v. Bremith ltd, (1941) I KB 675 For a Divisional
Court decision disregarded by that court as being per incuriam, See Nicholas v. Penny. ( 1950)
F 2KB 466, 1950 2 All ER 89.

3. Aforvelle ltd. v. Wakeling. (1955) 2 QB 379 (1955) 1 Ail ER 708 C.

4. Dryers v. Canadian Pacific Streamships ltd.. ( 1957) I QB 134, (1956) 3 All ER 560 CA
Per Singleton LJ. afTd. Sub nom. Canadian Pacific Streamship ltd. v. Dryers, (1958) AC
485, (1957) 3 All ER 572.

G 5. A. and J. Mucklo11' Ltd. v. /RC. (1954) Ch. 615. (1954) 2 All ER; 508 CA, Morelle ltd. v.
Wakeling(1955) 2 QB 379, (1955) I All ER 708 CA. See also Bonsorv. Musicians Union,
(1954) Ch.479. (1954) I All ER 822 CA. where the per incuriam contention was rejected
and, on appeal lo the house of Lords although the House overruled the case which bound
the Court of Appeal, the House agreed that that court had been bound by it; sec ( 1956) AC
104, (1955) 3 All ER 518 HL.

H 6. Williams v. Glasbrook Bros Ltd. (1947) 2 All ER 884 CA.
~
I

STATE v. KALIKA KUER [ BRIJESH KUMAR, .I.] 925
a case or statute had not been brought to the Court's attention and the court A
gave the decision in ignorance or forgetfulness of the existence of the case
or statute, it would be a decision rendered in per incuriam.

In a decision of this Court reported in [2000] 4 S.C.C. 262 Govt. of
Andhra Pradesh and Anr. v. B. Satyanarayana Rao (Dead) by Lrs., it has
been held as follows: B
"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. We therefore find that the rule of per incuriam
cannot be invoked in the present case. Moreover a case cannot be C
referred to a larger Bench on mere asking of a party. A decision by
two judges, unless it is demonstrated that the said decision by any
subsequent change in law or decision ceases to laying down a correct
law"

According to the above decision, a decision of the coordinate Bench
D
may be said to be ceased to be good law only if it is shown that it is due to
any subsequent change in law.

In State of U.P. and Anr. v. Synthetics and chemicals ltd. and Anr.
[1991] 4 sec 139, this court observed: E
'"lncuria' literally means 'carelessness'. In practice per incuriam appears
to mean per ignoratium. English Courts have developed this principle in
relaxation of the rule of stare decisis. The 'quotable in law' is avoided and
ignored if it is rendered, 'in ignoratium of a statute or other binding authority'.
(Young versus Bristol Aeroplane Co. Ltd.). Same has been accepted, approved F
and adopted by this Court while interpreting Article 141 of the Constitution
which embodies the doctrine of precedents as a matter of law"'

In Fuerst Day Lawson ltd. v. Shivaraj V. Patil, [2001] 6 SCC. 356, this
Court observed:
G
"A prior decision of the Supreme Court on identical facts and law
binds the Court on the same points of law in a latter case. In exceptional
instances, where obvious inadvertence or oversight a judgment fails

7. (1944)1 KB718;('1944)2AllER293. H
926 SUPREME COURT REPORTS (2003] 3 S.C.R.

A to notice a plain statutory provision or obligatory authority running
counter to the reasoning and result reached, the principle of per
incuriam may apply. Unless it is a glaring case of obtrusive omission,
it is not desirable to depend on the principle of judgment "per
incuriam". It has to be shown that some part of the decision was
based on a reasoning which was demonstrably wrong, for applying
B the principle of per incuriam."

Looking at the matter, in view of what has been held to mean by per
incuriam, we find that such element of rendering a decision in ignorance of
any provision of the statute or the judicial authority of binding nature, is not
C the reason indicated by the Full Bench in the impugned judgment, while
saying that decision in the case of Ramkrit Singh (supra) was rendered per
incuriam. On the other hand, it was observed that in the case of Ramkrit
Singh (supra) the Court did not consider the question as to whether the
consolidation authorities are courts of limited jurisdiction or not. In connection
, .... )
with this observation, we would like to say that an earlier decision may
D seems to be incorrect to a Bench of a coordinate jurisdiction considering the
question later, on the ground that a possible aspect of the matter was not
considered or not raised before the Court or more aspects should have been
gone into by the Court deciding the matter earlier but it would not be a
reason to say that the decision was rendered per incuriam and liable to be
E ignored. The earlier judgment may seem to be not correct yet it will have the
binding effect on the latter Bench of coordinate jurisdiction. Easy course of
saying that earlier decision was rendered per incuriam is not permissible and
the matter will have to be resolved only in two ways either to follow the
earlier decision or refer the matter to a larger Bench to examine the issue, in
case it is felt that earlier decision is not correct on merits. Though hardly
F necessary, we may however, refer to a few decisions on the above proposition.

In Dr. Vijay Laxmi Sadho v. Jagdish. [2001] 2 SCC it has been observed
as follows:

"As the learned Single Judge was not in agreement with the view
G expressed in Devi/al Case' it would have been proper, to maintain
judicial discipline, to refer the matter to a larger Bench rather than to
take a different view. We note it with regret and distress that the said
course was not followed. It is well-settled that if a Bench of coordinate
jurisdiction whether on the basis of"different arguments" or otherwise,
H 8.• AIR(l960)SC936:(1960)3SCR378.
STATE v. KALIKA KUER [ BRIJESH KUMAR. J.] 927
on a question of law, it is appropriate that the matter be referred to A
a larger Bench for resolution of the issue rather than to leave two
conflicting judgments to operate, creating confusion. It is not proper
to sacrifice certainty of law. Judicial decorum, no less than legal
propriety forms the basis of judicial procedure and it must be respected
at all costs".
B
In Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and
others, (2002] I SCC I, it has been held that where a Bench consisting of
two Judges does not agree with the Judgment rendered by a Bench of three
Judges, the only appropriate course available is to place the matter before
another Bench of three Judge and in case three Judge Bench also concludes C
that the judgment concerned is incorrect then the matter can be referred to a
larger Bench of five Judges.

The decision and reasoning in the two judgments of the Full Benches
i.e. in the case of Ramkrit Singh, (Supra) and one impugned in this appeal
run contrary to each other on almost all points. In our view the doctrine of D
per incuriam has been misapplied by the High Court to the earlier decision
in the case of Ramkrit Singh, (supra).

Hence the case is liable to be remanded to the High Court to consider
it in the light of this judgment and to dispose it of, in accordance with law.
We order accordingly while allowing the appeal and setting aside the judgment E
of the High Court. Costs easy.

S.K.S. Appeal allowed.