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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: RAGHUBIR SINGH (DEAD) BY LRS. ETC.

DATE OF JUDGMENT16/05/1989

BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) VENKATARAMIAH, E.S. (J) MUKHARJI, SABYASACHI (J) MISRA RANGNATH NATRAJAN, S. (J)

CITATION:  1989 AIR 1933            1989 SCR  (3) 316  1989 SCC  (2) 754        JT 1989 (2)   427  1989 SCALE  (1)1337  CITATOR INFO :  RF         1990 SC 261  (20,21)  E          1990 SC 981  (9,24)  D          1991 SC 730  (7)  RF         1991 SC1893  (20,22)  F          1991 SC2027  (9)  RF         1992 SC1488  (8,14)  RF         1992 SC2219  (92)

ACT:     Land  Acquisition (Amendment) Act, 1894: Sections  30(2) and 15--Solatium payable under Section 23(2) increased to 30 per cent-Amending Section--Whether applicable to awards made prior to April 30, 1982. Held applies to awards made by  the Collector or Court between April 30, 1982 and Sept. 1984 and not  before--Benefit  extends  to appeals  taken  from  such awards only.     Constitution of India--Articles 145, 137 and  141--Deci- sion  of  a  Division Bench rendered  earlier  in  point  of time----Whether  binding  on  a  subsequent  Division  Bench comprised of equal number of Judges or of more Judges.

HEADNOTE:     A common question of law having arisen in this group  of cases  for  determination  by this Court,  they  were  heard together.     Lands  of  Respondents in Civil Appeal Nos.  2839-40  of 1989  were  acquired  under the Land  Acquisition  Act.  The Collector made the award for compensation on March 30,  1963 and on a reference, being made under Section 18 of the  Act, the  Additional District Judge enhanced the compensation  by his  order dated June 10, 1968. The Respondents appealed  to the  High  Court  seeking further  enhancement.  During  the pendency  of the appeal, Land Acquisition  (Amendment)  Bill 1982  was introduced on April 30, 1982 and became an Act  on Sept.  24,  1984. The High Court disposed of the  appeal  on Dec. 4, 1984 and apart from raising the quantum of compensa- tion, also awarded a solatium at 30 per cent in terms of the Amendment Act 1984. The State appealed to this Court.

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   The matter initially came up before a Division Bench  on September 23, 1985. The Bench had before it two decisions of this  Court wherein divergent views were expressed. The  two decisions were: In K. Kamalajammanniavaru’s (dead) by Lrs. v. Special Land 317 Acquisition Officer,, [1985] 1 SCC 582.     This  Court (composed of.two Judges) took the view  that award  of  30 per cent solatium under  the  amended  Section 23(2) by the High Court or the Supreme Court were applicable only  where the award appealed against was made by the  Col- lector  or  the Court between April 30, 1982 and  Sept.  24, 1984.  In  the second decision, Bhag Singh & Ors.  v.  Union Territory  of  Chandigarh,  [1985] 3  SCC  737,  this  Court (comprised  of three Judges) took a contrary view and  ruled that even if an award was made by the Collector or the Court on or before April 1982 and an appeal against such award was pending before the High Court or this Court on 30.4.1982  or was filed subsequent to that date, the provisions of amended Section  23(2) and 28 of the Land Acquisition Act  would  be applicable as the appeal was a continuation of the reference made  under Section 18 and as such the appellate Court  must apply  the amended provision on the date of the decision  of the  appeal. In this way the decision in  Kamalajammanniava- ru’s  case was overruled by this Court in Bhag Singh’s  case and  the Court approved another decision of  Division  Bench comprised of three Judges in Mohinder Singh’s case (1986) 1, SCC  365 which merely directed payment of enhanced  solatium and interest without giving any reasons.     In view of the conflicting decisions on the point of two Judges Bench before, whom these cases come up for considera- tion,  referred to this Larger Bench the  question:  whether under the Amended Section 23(2), the claimants were entitled to solatium at 30 per cent of the market value  irrespective of the dates on which the land acquisition proceedings  were initiated  or  on  the dates on which  the  award  had  been passed.     Overruling the preliminary objection as to the maintain- ability of the reference of matters to a larger Bench,  this Court  disposing  of the reference and  directing  that  the appeals be now listed for hearing on merits,     HELD:  Solatium  is  awarded under  sub-section  (2)  of Section 23 of the Land Acquisition Act. Before the Amendment Act was enacted, the Sub-section provided for solatium at 15 per  cent of the market value. By the change  introduced  by the Amendment Act the amount has been raised to 30 per  cent of  the market value. Sub-section (2) of Section 30  of  the Amendment  Act specifies the category of cases to which  the amended rate of solatium is attracted. [322D] 318     What  Parliament intends to say is that the  benefit  of Section 30(2) will be available to an award by the Collector or the Court made between 30th April 1982 and 24th September 1984  or to an appellate order of the High Court or  of  the Supreme Court which arises out of an award of the  Collector or the Court made between the two said dates. The word ’or’, is used with reference to the stage at which the  proceeding rests  at the time when the benefit under Section  30(2)  is sought to be extended. If the proceeding has terminated with the award of the Collector or of the Court made between  the aforesaid  two dates, the benefit of Section 30(2)  will  be applied to such award made between the aforesaid two  dates. If  the proceeding has passed to the stage of appeal  before the  High  Court or the Supreme Court, it is at  that  stage when  the benefit of Section 30(2) will be applied.  But  in

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every  case the award of the Collector or of the Court  must have  been  made between April 30, 1982  and  September  24, 1984. [339D-G]     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 be  bind- ing,  it is not necessary that it should be a decision  ren- dered  by  the  full Court or a Constitution  Bench  of  the Court.  For the purpose of imparting certainty and  endowing due authority, decisions of this Court in the future  should be  rendered  by Division Benches of at least  three  Judges unless,  for  compelling reasons that  is  not  conveniently possible. [337C-D]     The  Land Acquisition Bill 1982, was introduced  in  the House  of the People on 30th April, 1982 and upon  enactment the  Land  Acquisition Act, 1984, commenced  operation  with effect from 24th Sept. 1984. Section 15 of the Amendment Act amended Section 23(2) of the parent Act and substituted  the words  "30  per cent" in place of the words "15  per  cent". Parliament intended that the benefit of the enhanced solati- um should be made available albeit to a limited degree  even in respect of acquisition proceedings taken before the date. It  sought to effectuate that intention by enacting  Section 30(2) in the Amendment Act. [337G-H; 338A]     There  can be no doubt that the benefit of the  enhanced solatium is intended by Section 30(2) in respect of an award made  by  the  Collector between 30th April  1982  and  24th September 1984. Likewise the benefit of the enhanced solati- um is extended by Section 30(2) to the case of an award made by the Court between April 30, 1982 and September 24,  1984, even  though it be upon reference from an award made  before April 30, 1982. [338E] 319     One of the functions of the Superior Judiciary in  India is  to  examine the competence and validity  of  legislation both  in  point  of legislative competence as  well  as  its consistency with the Fundamental Rights. In this regard  the Courts  in  India possess a power not known to  the  English Courts. [323G-H]     Exp.  Canon Selwyn, [1872] 36 JP 54 and Cheney v.  Conn, [1968] 1, All ER 779, referred to.     The range of judicial review recognised in the  Superior Judiciary of India is perhaps the widest and the most exten- sive known to the world of law. The power extends to examin- ing  the validity of even an amendment to  the  Constitution for  now it has been repeatedly held that no  Constitutional amendment  can be sustained which violates the basic  struc- ture of the Constitution. [324B]     His Holiness Kesavananda Bharti Sripadagalavaru v. State of Kerala, [1973] Suppl. SCR 1; Smt. Indira Nehru Gandhi  v. Shri  Raj Narain, [1976] 2 SCR 347; Minerva Mills  Ltd.  and others v. Union of India and others, [1980] 2 SCC 591;  S.P. Sampath Kumar etc. v. Union of India and Ors., [1987] 1  SCR 435.     The  Court overruled the statement of the law laid  down in the cases of State of Punjab v. Mohinder Singh & Anr. and Bhag  Singh and Others v. Union Territory of Chandigarh  and preferred the interpretation of Section 30(2) of the  Amend- ment  Act rendered in K. Kamalajammanniavaru (dead) by  Lrs. v. Special Land Acquisition Officer.     Oliver  Wendell Holmes, "The Common Law", p.  5;  Oliver Wendell Homes, "Common Carriers and the Common Law",  [1943] 9  Curr. L.T. 387, 388; Julius Stone, "Legal Systems &  Law- yers Reasoning", p. 58-59; Roscoe Pound, "An Introduction to the Philosophy of Law", p. 19; "The Judge as Law Maker", pp.

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25-6.     Myers v. Director of Public Prosecutions, L.R. 1965 A.C. 1001  &  1021; The Bengal Immunity Company  Limited  v.  The State of Bihar and Others, [1955] 2 SCR 603; Street Tramways v. London County Council, 1898 A.C. 375; Radcliffe v. Ribble Motor Services Ltd., 1939 A.C. 215; 245; Dr. Alan Paterson’s "Law Lords", [1982] pp. 156-157; Jones v. Secretary of State for  Social  Services,  [1972] A.C. at  966;  Ross-Smith  v. Ross-Smith, [1963] A.C. 280, 303; Indyka v. Indyka, [1969] I A.C.  33,  69; Construction by Jones, at  966;  Steadman  v. Steadman,  [1976] A.C. 536, 542; DPP v. Myers,  [1965]  A.C. 1001, 320 1022; Cassell v. Broome,/1972] A.C. 1027, 1086; Haughton  v. Smith,  [1975]  A.C.  476,500; Knullerv.  DPP,  [1973]  A.C. 435,455;  Conway v. Rimmer, [1968] A.C. 910,  938;  Tramways case,  [1914] 18 C.L.R. 54; State of Washington v. Dawson  & Co.,  264 U.S. 646, 68 L. Ed. 219; David Burnel v.  Coronado Oil  &  Gas  Company, 285 U.S. 393, 76  L.Ed.  815;  Compare National  Bank  v. Whitney, 103 U.S. 99, 26  L.Ed.  443-444; Compensation  to Civil Servants, L.R. 1929 A.C. 242,  A.I.R. 1929 P.C. 84, 87; Attorney-General of Ontario v. The  Canada Temperance  Federation, L.R. 78 I.A. 10;  Phanindra  Chandra Neogy  v. The King, [1953] S.C.R. 1069; State of  Bombay  v. The United Motors (India) Ltd., [1953] S.C.R. 1069; Maganlal Chhagganlal  (P)  Ltd. v. Municipal Corporation  of  Greater Bombay & Ors., [1975] 1 SCR 1; Lt. Col. Khajoor Singh v. The Union of India & Anr., [1961] 2 SCR 828; Keshav Mills Compa- ny  v.  Commissioner of Income Tax, [1965] 2 SCR  908,  921; Sajjan  Singh  v.  State of Rajasthan,  [1965]  1  SCR  933, 947948;  Girdhari Lal Gupta v.D.H. Mill, [1971] 3  SCR  748; Pillani  Investment  Corporation  Ltd.  v.I.T.O.  ’A’  Ward, Calcutta  & Ant., [1972] 2 SCR 502; Ganga Sugar  Company  v. State  of Uttar Pradesh, [1980] 1 SCR 769, 782; Javed  Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 231; T.V.  Vatheeswaran v. The State of Tamii Nadu, AIR  1983  SC 361; Sher Singh & Ors. v. State of Punjab, AIR 1983 SC  465; Triveniben v. State of Gujarat, AIR 1989 SC 142; John Martin v. The State of West Bengal, [1975] 3 SCR 211; Haradhan Saha v. State of West Bengal, [1975] 1 SCR 778; Bhut Nath Mate v. State  of  West Bengal, AIR 1974 SC 806; Mattulal  v.  Radhe Lal, [1975] 1 SCR 127; Acharaya Maharajshri Narandraprasadji Anandprasadji  Maharaj etc. etc. v. The State of  Gujarat  & Ors.,  [1975]  2 SCR 317; Union of India & Ors.  v.  Godfrey Philips  India Ltd., [1985] 4 SCC 369; Jit Ram v.  State  of Haryana, [1980] 3 SCR 689; Motilal. Padampat Sugar Mills  v. State of U. P., [1979] 2 SCR 641.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  2839-40 of 1989 etc.     From  the  Judgment and Order dated 6.12.  1984  of  the Delhi High Court in R.F.A. Nos. 113 and 114 of 1968.     K. Parasaran, Attorney General, T.S. Krishnamurthy Iyer, B.R.L. Iyengar, M.S. Gujaral, F.S. Nariman, A.K. Ganguli, K. Swamy, C.V. Subba Rao, R.D. Agrawala, P. Parmeshwaran,  O.P. Sharma, R.C. Gubrele, K.R. Gupta, R.K. Sharma, K.L.  Rathee, Chandulal  Verma,  Subhash  Mittal,  S.  Balakrishnan,  N.B. Sinha,  K.K.  Gupta,  Sanjiv B. Sinha,  M.M.  Kashyap,  P.C. Khunger, Swaraj 321 Kaushal,  Pankaj Kalra, S.K. Bagga, Ravinder Narain,  Sumeet Kachwala, S. Sukumaran, K.R. Nagaraja, S.S. Javali, Ms. Lira

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Goswami, D.K. Das, B.P. Singh, Ranjit Kumar, Santosh  Hegde, M.N. Shroff, P.N. Misra, D.C. Taneja, P.K. Jena, A.K. Sanghi and M. Veerappa for the appearing parties. The Judgment of the Court was delivered by     PATHAK,  CJ.  The  question of law referred  to  us  for decision in these cases is:               "Whether under the Land Acquisition Act,  1894               as amended by the Land Acquisition (Amendment)               Act, 1984 the claimants are entitled to  sola-               tium at 30 per cent of the market value  irre-               spective of the dates on which the acquisition               proceedings  were  initiated or the  dates  on               which the award had been passed"?     It would suffice if we briefly refer to the facts in the Civil  Appeals arising out of Special Leave  Petitions  Nos. 8194-8195  of  1985: Union of India &  Another  v.  Raghubir Singh.     The  land belonging to the respondents in village  Dhaka was taken by compulsory acquisition initiated by a notifica- tion under-s. 4 of the Land Acquisition Act, 1894 issued  on 13 November, 1959. The award with regard to compensation was made by the Collector on 30 March, 1963. A reference  under- s. 18 of the Act was disposed of by the Additional  District Judge  on 10 June, 1968. He enhanced the  compensation.  The respondents  preferred an appeal to the High Court  claiming further compensation. During the pendency of the appeal  the Land  Acquisition  (Amendment) Bill 1982 was  introduced  in Parliament  on  30 April, 1982, and became law as  the  Land Acquisition  (Amendment)  Act,  1984 when  it  received  the assent  of  the President on 24 September,  1984.  The  High Court disposed of the appeal by its Judgment and Order dated 6 December, 1984. While it raised the rate of  compensation, it also raised the rate of interest payable on the compensa- tion, and taking into account the change in the law effected by  the Land Acquisition (Amendment) Act, 1984 (referred  to hereinafter  as "the Amendment Act") it awarded solatium  at 30  per cent of the market value. The Judgment and Order  of the High Court is the subject of these appeals. When  these  cases  came up before a Bench  of  two  learned Judges 322 (E.S.  Venkataramiah and R.B. Misra, JJ.) on  23  September, 1985,  they referred to two earlier decisions of this  Court and  expressed  the view that the question set  forth  above required re-examination by a larger Bench of five Judges. It was  further directed that the other questions  involved  in the petitions would be considered after the aforesaid  ques- tion  had been resolved by the larger Bench. The  two  deci- sions referred to in the Order of the learned Judges are  K. Kamalajammanniavaru (dead) by Lrs. v. Special Land  Acquisi- tion  Officer, [1985] 1 S.C.C. 582 decided by  O.  Chinnappa Reddy and Sabyasachi Mukharji, JJ. on 14 February, 1985  and Bhag Singh and Ors. v. Union Territory of Chandigarh, [1985] 3  S.C.C. 737 decided by P.N. Bhagwati, C.J., A.N.  Sen  and D.P. Madon, JJ. on 14 August, 1985.     Solatium  is  awarded under sub-s. (2) of s. 23  of  the Land  Acquisition Act. Before the Amendment Act was  enacted the sub-section provided for solatium at 15 per cent of  the market value. By the change introduced by the Amendment  Act the  amount  has been raised to 30 per cent  of  the  market value.  Sub-s. (2) of s. 30 of the Amendment  Act  specifies the category of cases to which the amended rate of  solatium is  attracted. In K. Kamalajammanniavaru, (supra),  the  two learned  Judges  held that sub-s. (2) of s. 30  referred  to orders  made by the High Court or the Supreme Court  in  ap-

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peals  against an award made between 30 April, 1982  and  22 September, 1984, and that therefore solatium at 30 per  cent alone  pursuant to sub-s. (2) of s. 30 had to be awarded  in such  cases only. In Bhag Singh (supra), however, the  three learned  Judges  held that sub-s. (2) of s. 30  referred  to proceedings  relating to compensation pending on  30  April, 1982  or filed subsequent to that date, whether  before  the Collector  or  before  the Court or the High  Court  or  the Supreme  Court, even if they had finally  terminated  before the enactment of the Amending Act. In taking that view  they overruled  K. Kamalajammanniavaru, (supra) and  approved  of the  opinion expressed in another case, State of  Punjab  v. Mohinder  Singh and another, [1986] 1 S.C.C. 365 decided  by S.  Murtaza Fazal Ali, A. Varadarajan and  Ranganath  Misra, JJ. on 1 May, 1985.     At  the outset, a preliminary objection has been  raised by  Shri B.R.L. Iyengar to the validity of the reference  of these  cases  to a larger Bench. He contends that  the  mere circumstance that a Bench of two learned Judges finds itself in doubt about the correctness of the view taken by a  Bench of three learned Judges should not provide reason for refer- ring the matter to a larger Bench. The preliminary objection raised by Shri Iyengar has been vigorously resisted by the 323 appellants. Having regard to the submissions made before us, we think it necessary to lay down the law on the point.     India  is governed by a judicial system identified by  a hierarchy of courts, where the doctrine of binding precedent is  a cardinal feature of its jurisprudence. It used  to  be disputed  that  Judges make law. Today, it is  no  longer  a matter of doubt that a substantial volume of the law govern- ing  the lives of citizens and regulating the  functions  of the  State flows from the decisions of the superior  courts. "There was a time:’ observed Lord Reid, "when it was thought almost  indecent to suggest that Judges make law--They  only declare  it  ........  But we do not believe in fairy  tales any more "The Judge as law Maker" p. 22." In countries  such as  the United Kingdom, where Parliament as the  legislative organ is supreme and stands at the apex of the constitution- al structure of the State, the role played by judicial  law- making  is limited. In the first place the function  of  the courts  is restricted to the interpretation of laws made  by Parliament,  and  the courts have no power to  question  the validity  of  Parliamentary  statutes,  the  Diceyan  dictum holding  true that the British Parliament is  paramount  and all  powerful.  In the second place, the law  enunciated  in every decision of the courts in England can be superseded by an Act of Parliament. As Cockburn CJ. observed in Exp. Canon Selwyn, [1872] 36 JP 54.               "There  is no judicial body in the country  by               which  the  validity of an Act  of  Parliament               could be questioned. An act of the Legislature               is superior in authority to any Court of Law". And Ungoed Thomas J., in Cheney v. Conn, [1968] 1 All ER 779 referred to a Parliamentary statute as "the highest form  of law  .....which prevails over every other form, of law." The position is substantially different under a written  Consti- tution such as the one which governs us. The Constitution of India, which represents the Supreme Law of the land,  envis- ages  three distinct organs of the State, each with its  own distinctive functions, each a pillar of the State.  Broadly, while  Parliament and the State Legislature in  India  enact the  law  and the Executive government  implements  it,  the judiciary sits in judgment not only on the implementation of the  law  by the Executive but also on the validity  of  the

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Legislation  sought to be implemented. One of the  functions of the superior judiciary in India is to examine the  compe- tence and validity of legislation, both in point of legisla- tive  competence as well as its consistency with the  Funda- mental Rights. In this regard, the courts in India possess a power not known to the English 324 Courts.  Where  a statute is declared invalid  in  India  it cannot  be  reinstated  unless  constitutional  sanction  is obtained  therefore  by  a constitutional  amendment  or  an appropriately  modified  version of the statute  is  enacted which accords with constitutional prescription. The range of judicial  review  recognised in the  superior  judiciary  of India is perhaps the widest and the most extensive known  to the world of law. The power extends to examining the validi- ty of even an amendment to the Constitution, for now it  has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the  Consti- tution. (See His Holiness Kesavananda Bharati Sripadagalava- ru  v.  State of Kerala, [1973] Suppl. SCR  1;  Smt.  Indira Nehru  Gandhi v. Shri Raj Narain, [1976] 2 SCR 347;  Minerva Mills Ltd. and others v. Union of India and others, [1980] 2 SCC 591 and recently in S.P. Sampath Kumar etc. v. Union  of India  and  Ors.,  [1987] 1 SCR 435.  With  this  impressive expanse of judicial power, it is only right that the superi- or  courts  in  India should be conscious  of  the  enormous responsibility  which rests on them. This is specially  true of the Supreme Court, for as the highest Court in the entire judicial  system the law declared it is, by Article  141  of the Constitution, binding on all courts within the territory of India.     Taking  note of the hierarchical character of the  judi- cial system in India, it is of paramount importance that the law  declared  by this Court should be  certain,  clear  and consistent. It is commonly known that most decisions of  the courts  are of significance not merely because they  consti- tute  an adjudication on the rights of the parties  and  re- solve the dispute between them, but also because in doing so they  embody  a declaration of law operating  as  a  binding principle in future cases. In this latter aspect lies  their particular value in developing the jurisprudence of the law.     The  doctrine  of  binding precedent has  the  merit  of promoting a certainty and consistency in judicial decisions, and  enables  an  organic development of  the  law,  besides providing assurance to the individual as to the  consequence of  transaction  forming  part of his  daily  affairs.  And, therefore,  the need for a clear and consistent  enunciation of legal principle in the decisions of a Court.     But  like all principles evolved by man for the  regula- tion of the social order, the doctrine of binding  precedent is  circumscribed in its governance by  perceptible  limita- tions, limitations arising by reference to the need for  re- adjustment  in a changing society, a re-adjustment of  legal norms demanded by a changed social context. This need for 325 adapting  the  law to new urges in society brings  home  the truth  of the Holmesian aphorism that "the life of  the  law has  not been logic it has been experience". Oliver  Wendell Holmes, "The Common Law" p. 5 and again when he declared  in another  study that Oliver Wendell Holmes, "Common  Carriers and  the Common Law", (1943) 9 Curr. L.T. 387, 388 "the  law is  forever adopting new principles from life at  one  end," and  "sloughing off" old ones at the other.  Explaining  the conceptual  import  of what Holmes had  said,  Julius  Stone elaborated that it is by the introduction of new extra-legal

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propositions emerging from experience to serve as  premises, or  by  experience-guided  choice  between  competing  legal propositions,  rather  than by the operation of  logic  upon existing legal propositions, that the growth of law tends to be  determined. Julius Stone, "Legal Systems & Lawyers  Rea- soning", pp. 58-59.     Legal  compulsions cannot be limited by  existing  legal propositions,  because  there  will always  be,  beyond  the frontiers  of the existing law, new areas inviting  judicial scrutiny and judicial choice-making which could well  affect the  validity of existing legal dogma. The search for  solu- tions  responsive to a changed social era involves a  search not  only among competing propositions of law, or  competing versions  of  a legal proposition, or the modalities  of  an indeterminacy  such as "fairness" or  "reasonableness",  but also among propositions from outside the ruling law,  corre- sponding  to the empirical knowledge or accepted  values  of present  time and place, relevant to the dispensing of  jus- tice within the new parameters.     The universe of problems presented for judicial  choice- making  at  the growing points of the law  is  an  expanding universe. The areas brought under control by accumulation of past  judicial  choice  may be large. Yet  the  areas  newly presented  for  still further choice,  because  of  changing social,  economic and technological conditions are far  from inconsiderable.  It  has also to be  remembered,  that  many occasions  for  new options arise by the mere fact  that  no generation  looks out on the world from quite the same  van- tage-point  as its predecessor, nor for the matter with  the same  perception. A different vantage point or  a  different quality  of  perception often reveals the need  for  choice- making  where formerly no alternatives, and no  problems  at all,  were  Perceived. The extensiveness of  the  areas  for judicial choice at a particular time is a function not  only of  the accumulation of past decisions, not only of  changes in  the environment, but also of new insights  and  perspec- tives both on old problems and on the new problems thrown up by changes entering the cultural and social heritage. 326     Not  infrequently,  in the nature of things there  is  a gravity-heavy inclination to follow the groove set by prece- dential  law.  Yet  a sensitive  judicial  conscience  often persuades  the mind to search for a different set  of  norms more  responsive to the changed social context. The  dilemma before the Judge poses the task of finding a new  equilibri- um, prompted not seldom by the desire to reconcile  opposing mobilities.  The competing goals, according to  Dean  Roscoe Pound, invest the Judge with the responsibility "of  proving to  mankind  that the law was something fixed  and  settled, whose authority was beyond question, while at the same  time enabling  it to make constant readjustments  and  occasional radical changes under the pressure of infinite and  variable human  desires." Roscoe Pound, "an Introduction to the  Phi- losophy of Law" p. 19. The reconciliation suggested by  Lord Reid  in "The Judges as Law Maker" pp. 25-6 lies in  keeping both objectives in view, "that the law shall be certain, and that  it shall be just move with the times." An  elaboration of  his opinion is contained in Myers v. Director of  Public Prosecutions,  L.R. 1965 A.C. 1001, where he  expressed  the need  for  change  in the law by the court  and  the  limits within  which such change could be brought about.  He  said: ibid at p. 1021.               "I  have  never  taken a narrow  view  of  the               functions of this House as an appellate tribu-               nal. The common law must be developed to  meet

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             changing  economic  conditions and  habits  of               thought,  and I would not be deterred  by  ex-               pressions  of  opinion in this  House  in  old               cases. But there are limits to what we can  or               should do. If we are to extend the law it must               be  by  the  development  and  application  of               fundamental  principles. We  cannot  introduce               arbitrary conditions or limitations: that must               be left to legislation. And if we do in effect               change the law, we ought in my opinion only to               do  that  in  cases where  our  decision  will               produce some finality or certainty." Whatever the degree of success in resolving the dilemma, the Court  would do well to ensure that although the  new  legal norm chosen in response to the changed social climate repre- sents a departure from the previously ruling norm, it  must, nevertheless. carry within it the same principle of certain- ty, clarity and stability.      The  profound  responsibility which  is.borne  by  this Court  in its choice between earlier  established  standards and  the formulation of a new code of norms is all the  more sensitive and significant because the 327 response  lies in relation to a rapidly changing social  and economic society. In a developing society such as India  the law  does  not assume its true function when  it  follows  a groove  chased amidst a context which has long  since  crum- bled. There will be found among some of the areas of the law norms selected by a judicial choice educated in the  experi- ence  and values of a world which passed away 40 years  ago. The social forces which demand attention in the cauldron  of change  from which a new society is emerging appear to  call for  new perceptions and new perspectives.  The  recognition that the times are changing and that there is occasion for a new  jurisprudence to take birth is evidenced by  what  this Court  said  in The Bengal Immunity Company Limited  v.  The State  of  Bihar and Others, [1955] 2 SCR 603, when  it  ob- served  that it was not bound by its earlier  judgments  and possessed  the  freedom to overrule its  judgments  when  it thought fit to do so to keep pace with the needs of changing times. The acceptance of this principle ensured the  preser- vation and legitimation provided to the doctrine of  binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society.     The  question then is not whether the Supreme  Court  is bound by its own previous decisions. It is not. The question is  under what circumstances and within what limits  and  in what  manner  should  the highest Court  over-turn  its  own pronouncements.     In the examination of this question it would perhaps  be appropriate to refer to the response of other jurisdictions, specially those with which the judicial system in India  has borne  an  historical relationship. The House  of  Lords  in England  provides  the extreme example of  a  judicial  body which  until recently disclaimed the power to  overrule  it- self.  It used to be said that the House of Lords did  never overrule  itself  but only distinguished its  earlier  deci- sions. An erroneous decision of the House of Lords could  be set right only by an Act of Parliament. (See Street Tramways v.  London County Council, [1898] A.C. 375 and Radcliffe  v. Ribble Motor Services Ltd., [1939] A.C. 215,245. ) Apparent- ly  bowing  to the pressure of a reality forced upon  it  by reason  of  a  rapidly gathering change  in  the  prevailing socio-economic  structure, on 26 July, 1966, Lord  Gardiner,

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L.C., made the following statement on behalf of himself  and the Lords of Appeal in Ordinary:               "Their lordship regard the use of precedent as               an  indispensable  foundation  upon  which  to               decide what is the law and its application  to               individual cases. It provides at least               328               some degree of certainty upon which  individu-               als can rely in the conduct of their  affairs,               as well as a basis for orderly development  of               legal rules.                        Their  lordships nevertheless  recog-               nise that too rigid adherence to precedent may               lead  to  injustice in a particular  case  and               also unduly restrict the proper development of               the  law.  They propose  therefore  to  modify               their  present  practice and,  while  treating               former  decisions  of this House  as  normally               binding,  to depart from a  previous  decision               when it appears right to do so.                         In this connection they will bear in               mind the danger of disturbing  retrospectively               the  basis on which contracts, settlements  of               property  and  fiscal arrangements  have  been               entered  into and also the especial  need  for               certainty as to the criminal Law." Since  then  the House of Lords has framed guidelines  in  a series of cases decided upto to 1975 and the guidelines have been summarised in Dr. Alan Paterson’s "Law Lords" 1982: pp. 156-157.  He refers to several criteria articulated by  Lord Reid in those cases.     1.  The freedom granted by the 1966  Practice  Statement ought to be exercised sparingly (the ’use sparingly’  crite- rion)  (Jones  v. Secretary of  State for  Social  Services, [1972] A.C. at 966.     2.  A  decision ought not to be overruled if  to  do  so would  upset the legitimate expectations of people who  have entered into contracts or settlements or otherwise regulated their  affairs in reliance on the validity of that  decision (the  ’legitimate  expectations’ criterion) (Ross  Smith  v. Ross-Smith,  [1963]  A.C.  280, 303 and  Indyka  v.  Indyka, [1969] I A.C. 33, 69.)     3.  A decision concerning questions of  construction  of statute or other documents ought not to be overruled  except in rare and exceptional cases (the ’Construction’ criterion) Jones, at 966.     4(a) A decision ought not to be overruled if it would be impracticable  for the Lords to foresee the consequences  of departing  from it (the ’unforseeable  consequences’  crite- rion)  (Steadman  v. Steadman, [1976] A.C.  536,542.  (b)  A decision ought not to be overruled if to do so would involve a change that ought to be part of a 329 comprehensive reform of the law. Such changes are best  done ’by  legislation  following on a wide survey  of  the  whole field’ (the ’need for comprehensive reform’ criterion)  (DPP v. Myers, [1965] A.C. 1001, 1022; Cassell v. Broome,  [1972] A.C.  1027,  11086  and  Haughton  v.  Smith,  [1975]   A.C. 476,500).     5. In the interest of certainty, a decision ought not to be  overruled merely because the Law Lords consider that  it was  wrongly decided. There must be some additional  reasons to justify such a step (the ’precedent merely wrong’  crite- rion) Knuller v. DPP, [1973] A .C. 435,455;     6.  A decision ought to be overruled if it  causes  such

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great uncertainty in practice that the Parties’ advisers are unable  to give any clear indication as to what  the  courts will hold the law to be (the ’rectification of  uncertainty’ criterion) Jones, at 966; Oldendroll & Co. v. Tradex Export, S.A. 1974 479,533,535.     7.  A decision ought to be overruled if .in relation  to some  broad issue or principle it is not considered just  or in  keeping  with contemporary social conditions  or  modern conceptions  of  public  policy (the  ’unjust  or  outmoded’ criterion) ibid Conway v. Rimmer, [1968] A.C. 910,938.     Dr. Paterson noted that between the years 1966 and  1988 there were twenty nine cases in which the House of Lords was invited  to  overrule one of its own  precedents,  that  the House  of Lords did so in eight of them, while in a  further ten  cases  at  least one of the Law Lords  was  willing  to overrule the previous House of Lords precedent. In a consid- erable number of other cases, however, the Law Lords  seemed to  prefer to distinguish the earlier decisions rather  than overrule them.     The  High Court of Australia, the highest Court  in  the Commonwealth, has reserved to itself the power to reconsider its  own decision, but has laid down that the  power  should not be exercised upon a mere suggestion that some or all the member  of the later Court would arrive at a different  con- clusion  if  the matter were res integra.  In  the  Tramways case,  [1914] 18 C.L.R. 54, Griffith, C.J., while  doing  so administered the following caution:               "In  my opinion, it is impossible to  maintain               as  an  abstract  proposition  that  Court  is               either legally or technically bound by  previ-               ous  decisions.  Indeed, it may, in  a  proper               case, be               330               its  duty  to  disregard them.  But  the  rule               should be applied with great caution, and only               when  the  previous  decision  is   manifestly               wrong, as, for instance, if it proceeded  upon               the mistaken assumption of the continuance  of               a repealed or expired Statute, or is  contrary               to  a  decision of another  Court  which  this               Court is bound to follow; not, I think, upon a               mere  suggestion,  that  some or  all  of  the               members  of the later Court might arrive at  a               different  conclusion  if the matter  was  res               integra. Otherwise there would be grate danger               of want of continuity in the interpretation of               law." In the same case, Barton, J. observed at p. 69:               "   .....   I would say that I  never  thought               that  it was not open to this Court to  review               its  previous decisions upon good  cause.  The               question  is not whether the Court can do  so,               but whether it will, having due regard to  the               need  for  continuity and consistency  in  the               judicial  decision. Changes in the  number  of               appointed  Justices can, I take it,  never  of               themselves furnish a reason for review   .....               But the Court can always listen to argument as               to  whether  it ought to review  a  particular               decision,  and  the strongest  reason  for  an               overruling  is that a decision  is  manifestly               wrong and its continuance is injurious to  the               public interest".     In  the United States of America the Supreme  Court  has explicitly overruled its prior decision in a number of cases

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and  reference  will  be found to them in  the  judgment  of Brandeis,  J.  in State of Washington v. Dawson &  Co.,  264 U.S. 646; 68 L.Ed. 219 where he said:               "The  doctrine  of Stare  decisis  should  not               deter  us from overruling that case and  those               which  follow  it. The  decisions  are  recent               ones.  They have not been acquiesced in.  They               have  not  created a rule of  property  around               which  vested interests have  clustered.  They               affect solely matters of a transitory  nature.               On  the other hand, they affect seriously  the               lives  of  men, women and  children,  and  the               general welfare. Stare decisis is  ordinarily,               a wise rule of action. But it is not a univer-               sal,  inexorable  command.  The  instances  in               which the Courts have disregarded its  admonition  a re many." 331 Elaborating  his point in his dissenting judgment  in  David Burnel v. Coronado Oil & Gas Company, 285 U.S. 393; 76 L.Ed. 815, Brandeis, J. observed: "Stare  decisis  usually the wise policy,  because  in  most matters it is more important that the applicable rule of law be settled right. Compare National Bank v. Whitney, 103 U.S. 99;  26 L.Ed. 443-444. This is commonly true even where  the error  is a matter of serious concern,  provided  correction can be had by legislation. But in cases involving the Feder- al Constitution, where correction through legislative action is  practically impossible, this Court has  often  overruled its  earlier  decisions. The Court bows to  the  lessons  of experience  and  the force of better  reasoning  recognising that  the  process of trial and error, so  fruitful  in  the physical  sciences,  is  appropriate also  in  the  judicial function."     The  Judicial. Committee of the Privy Council also  took the  view that it was not bound in law by its earlier  deci- sions,  but  in In re Compensation to Civil  Servants,  L.R. 1929  A.C. 242; A.I.R. 1929 P.C. 84, 87 it declared that  it "would hesitate long before disturbing a solemn decision  by a previous Board, which raised an identical or even a  simi- lar issue for determination" and reiterated that reservation in the Attorney-General of Ontario v. The Canada  Temperance Federation,  L.R. 76 Q.A. 10 and Phanindra Chandra Neogy  v. The King, [1953] SCR 1069.     These  cases  from  England, Australia  and  the  United States were considered by this Court in The Bengal  Immunity Company  Limited v. The State of Bihar and others,  (supra), perhaps the first recorded instance of the Supreme Court  in this country being called upon to consider whether it  could overrule  an  earlier decision rendered by it.  A  Bench  of seven  Judges  assembled to consider  whether  the  majority decision of a Constitution Bench of five Judges in State  of Bombay v. The United Motors (India) Ltd., [1953] S.C.R. 1069 should  be reconsidered. Four Judges of the Bench  of  seven said  it should and voted to overrule the majority  decision in the United Motors, (supra). The remaining three voted  to the contrary. Das, Acting C.J., speaking for himself and  on behalf  of Bose, Bhagwati and Jafar Imam, JJ, preferred  the approach  adopted by the United States Supreme Court  since, in  the  view of that learned Judge, the position  in  India approximated  more closely to that obtaining in  the  United states rather than to the position in England, where Parlia- ment  could rectify the situation by a simple majority,  and to that in Australia, where the mistake could be

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332 corrected in appeal to the Privy Council. The learned  Judge observed:  "There is nothing in our Constitution which  pre- vents  us from departing from a previous decision if we  are convinced of its error and its baneful effect on the general interests  of  the public." And reference was  made  to  the circumstance  that Article 141 of the Constitution made  the law  declared by this Court binding on all Courts in  India. Speaking  with  reference to the specific  case  before  the Court, the learned Judge referred to the far-reaching effect of the earlier decision in the United Motors (supra) on  the general  body  of the consuming public, and that  the  error committed in the earlier decision would result in perpetuat- ing  a tax burden erroneously imposed on the people,  giving rise to a consequence "manifestly and wholly unauthorised." The learned Judge observed:     "It  is  not  an ordinary  pronouncement  declaring  the rights  of two private individuals inter se. It involves  an adjudication  on the taxing power of the States  as  against the  consuming public generally. If the decision is  errone- ous, as indeed we conceive it to be, we owe it to the public to  protect them against the illegal tax burdens  which  the States are seeking to impose on the strength of that errone- ous  recentdecision".  Cautioned that the Court  should  not differ  merely because a contrary view appeared  preferable, the  learned  Judge  affirmed that "we  should  not  lightly dissent from a previous pronouncement of this Court." But if the previous decision was plainly erroneous, he pointed out, there  was a duty on the Court to say so and not  perpetuate the  mistake. The appeal to the principle of  stare  decisis was rejected on the ground that (a) the decision intended to be  overruled  was  a very recent decision and  it  did  not involve  overruling a series of decisions, and (b) the  doc- trine of stare decisis was not an inflexible rule, and must, in  any  event,  yield where following it  would  result  in perpetuating  an error to the detriment of the general  wel- fare of the public or a considerable section thereof.     Since  then the question as to when should  the  Supreme Court  overrule  its  own decision has  been  considered  in several cases. Relying on the Bengal Immunity case,  Khanna, J.  remarked that certainly in the law, which was an  essen- tial  ingredient of the Rule of Law, would  be  considerably eroded  if the highest court of the land  lightly  overruled the  view  expressed by it in earlier  cases.  One  instance where  such overruling could be permissible was a  situation where contextual values giving birth to the earlier view had altered substantially since. 333 In Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay & Ors., [1975] 1 SCR 1 he explained: "Some new aspects may come to light and it may become essen- tial to cover fresh grounds to meet the new situations or to overcome  difficulties which did not manifest themselves  or were  not taken into account when the earlier view was  pro- pounded. Precedents have a value and the ratio decidendi  of a  case  can no doubt be of assistance in  the  decision  of future  cases. At the same time we have to, as  observed  by Cardozo,  guard against the notion that because a  principle has been formulated as the ratio decidendi of a given  prob- lem,  it  is therefore to be applied as a solvent  of  other problems, regardless of consequences, regardless of deflect- ing  factors,  inflexibly.  and automatically,  in  all  its pristine  generality (see Selected Writings, p. 31).  As  in life so in law things are not static."     In Lt. Col. Khajoor Singh v. The Union of India & Anoth-

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er,  [1961] 2 SCR 828 the majority of this court  emphasised that  the  court, should not depart from  an  interpretation given in an earlier judgment of the court unless there was a fair  amount  of  unanimity that the  earlier  decision  was manifestly wrong. In Keshav Mills Company v. Commissioner of Income Tax, [1965] 2 SCR 908,921 this court observed that  a revision of its earlier decision would be justified if there were compelling and substantial reasons to do so. In  Sajjan Singh  v. State of Rajasthan, [1965] 1 SCR  933,947-948  the court  laid down the test: ’Is it absolutely  necessary  and essential  that the question already decided should be  reo- pened?’,  and went on to observe: ’the answer to this  ques- tion would depend on the nature of the infirmity alleged  in the  earlier  decision, its impact on public  good  and  the validity  and  compelling character  of  the  considerations urged  in  support of the contrary view.’ There  can  be  no doubt,  as was observed in Girdhari Lal Gupta v. D.H.  Mill, [1971]  3 SCR 748 that where an earlier  relevant  statutory provision  has not been brought to the notice of the  court, the  decision may be reviewed, or as in  Pillani  Investment Corporation Ltd. v. I.T.O. ’A’ Ward, Calcutta & Anr., [1972] 2  SCR  502,  if a vital point was not  considered.  A  more compendious  examination  of the problem was  undertaken  in Keshav Mills Company v. Commissioner of Income Tax,  (supra) where the Court pointed out: "It  is not possible or desirable, and in any case it  would be inexpedient to lay down any principles which should 334 govern  the approach of the Court in dealing with the  ques- tion  of  reviewing and revising its earlier  decisions.  It would     always     depend    upon     several     relevant considerations:--What  is  the nature of  the  infirmity  or error  on  which  a plea for a review and  revision  of  the earlier  view  is based? On the earlier occasion,  did  some patent aspects of the question remain unnoticed, or was  the attention of the Court not drawn to any relevant and materi- al statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the court hearing such  plea fairly unanimous that there is such an  error  in the  earlier view? What would be the impact of the error  on the general administration of law or on public good? Has the earlier  decision  been  followed  on  subsequent  occasions either  by this Court or by the High Courts? And, would  the reversal  of the earlier decision lead to  public  inconven- ience,  hardship or mischief? These and other relevant  con- siderations  must be carefully borne in mind  whenever  this Court is called upon to exercise its jurisdiction to  review and  revise  its  earlier  decisions.  These  considerations become  still  more significant when  the  earlier  decision happens  to  be a unanimous decision of the  Bench  of  five learned Judges of this Court."     Much importance has been laid on observing the  finality of  decisions  rendered by the Constitution  Bench  of  this Court, and in Ganga Sugar Company v. State of Uttar Pradesh, [1980]  1 SCR 769, 782 the Court held against  the  finality only  where the subject was ’of such fundamental  importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong’.     It  is  not necessary to refer to all the cases  on  the point.  The broad guidelines are easily deducible from  what has  gone before. The possibility of further defining  these guiding  principles can be envisaged with further  juridical experience,  and when common jurisprudential values  linking different  national  systems of law may  make  a  consensual

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pattern possible. But that lies in the future.     There was some debate on the question whether a Division Bench of Judges is obliged to follow the law laid down by  a Division  Bench  of  a larger number of  Judges.  Doubt  has arisen on the point because of certain observations made  by O. Chinnappa Reddy, J. in 335 Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra,  AIR 1985  SC 23 1. Earlier, a Division Bench of two  Judges,  of whom he was one, had expressed the view in T.V. Vatheeswaran v.  The  State  of Tamil Nadu, AIR 1983 SC  361  that  delay exceeding two years in the execution of a sentence of  death should  be considered sufficient to entitle a  person  under sentence  of death to invoke Article 21 of the  Constitution and demand the quashing of the sentence of death. This would be  so, he observed, even if the delay in the execution  was occasioned by the time necessary for filing an appeal or for considering the reprieve of the accused or some other  cause for which the accused himself may be responsible. This  view was  found unacceptable by a Bench of three Judges  in  Sher Singh  & Ors. v. State of Punjab, AIR 1983 SC 465 where  the learned Judges observed that no hard and fast rule could  be laid  down  in the matter. In direct disagreement  with  the view in T.V. Vatheeswaran, (supra), the learned Judges  said that  account had to be taken of the time occupied  by  pro- ceedings  in  the High Court and in the  Supreme  Court  and before  the  executive authorities, and it was  relevant  to consider  whether the delay was attributable to the  conduct of the accused. As a member of another Bench of two  Judges, in  Javed  Ahmed Abdul Hamid Pawala,  (supra)  O.  Chinnappa Reddy,  J. questioned the validity of the observations  made in Sher Singh, (supra) and went on to note, without express- ing any concluded opinion on the point, that it was a  seri- ous question "whether a Division Bench of three Judges could purport to overrule the judgment of a Division Bench of  two Judges  merely because there is larger than two.  The  Court sits  in Divisions of two and three Judges for the  sake  of convenience and it may be inappropriate for a Division Bench of  three  Judges to purport to overrule the decision  of  a Division  Bench of two Judges. Vide Young v.  Bristol  Aero- plane  Co.  Ltd., [1944] 2 All ER 293. It may  be  otherwise where  a Full Bench or a Constitution Bench does so." It  is pertinent  to record here that because of the doubt cast  on the  validity  of the opinion in Sher  Singh,  (supra),  the question of the effect of delay on the execution of a  death sentence  was referred to a Division Bench of  five  Judges, and  in Triveniben v. State of Gujarat, AIR 1989 SC 142  the Constitution Bench overruled T.V. Vatheeswaran, (supra).     What then should be the position in regard to the effect of  the law pronounced by a Division Bench in relation to  a case  raising the same point subsequently before a  Division Bench  of a smaller number of Judges? There is no  constitu- tional  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 consist- ency and certainty 336 in  the law laid down by a superior Court, the ideal  condi- tion 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 having regard to the volume of work demanding the attention of the Court, it  has been found necessary in India as a general rule of  practice and convenience that the Court should sit in Divisions, each

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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  there- to,  and by such other considerations which the  Chief  Jus- tice,  in  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  devel- opment  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 the  recent cases  on  the point. In John Martin v. The  State  of  West Bengal,  [1975] 3 SCR 211 a Division Bench of  three  Judges found  it right to follow the law declared in Haradhan  Saha v.  State  of  West Bengal, [1975] 1 SCR 778  decided  by  a Division  Bench of five Judges, in preference to  Bhut  Nath Mate  v. State of West Bengal, AIR 1974 SC 806 decided by  a Division  Bench  of two Judges. Again in  Smt.  India  Nehru Gandhi  v.  Shri Raj Narain, [1976] 2 SCR 347 Beg,  J.  held that the Constitution Bench of five Judges was bound by  the Constitution  Bench  01’  thirteen Judges  in  His  Holiness Kesavananda  Bharati  Sripadagalavaru v.  State  of  Kerala, [1973] Suppl. 1 SCR. In Ganapati Sitaram Balvalkar & Anr. v. Waman  Shripad Mage (Since Dead) Through Lrs., [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 Mattulal v. Radhe Lal, [1975] 1 SCR 127  this Court 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  deci- sion of a Division Bench of a smaller number of Judges. This Court  also laid down in Acharaya  Maharajshri  Narandrapra- sadji AnandprasadjiMaharaj etc. etc. v. The State of Gujarat & Ors., [1975] 2 SCR 317 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 to decide  the correctness  or  other-wise of the views of the  other.  The principle was reaffirmed in Union of India & Ors. v. Godfrey Philips India Ltd., [1985] 4 337 SCC  369 which noted that a Division Bench of two Judges  of this Court in Jit Ram v. State of Haryana, [1980] 3 SCR  689 had  differed  from the view taken by  an  earlier  Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P., [1979] 2 SCR 641 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 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.     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 be binding, it is not necessary that it should be  a decision rendered by the Full Court or a  Constitution Bench  of the Court. We would, however, like to  think  that for  the  purpose of imparting certainty  and  endowing  due authority  decisions of this Court in the future  should  be rendered  by Division Benches of at least three  Judges  un-

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less, for compelling reasons that is not conveniently possi- ble.     Upon  the aforesaid considerations, and in view  of  the nature and potential of the questions raised in these  cases we  are of the view that there was sufficient  justification for the order dated 23 September, 1985 made by the Bench  of two  learned judges referring these cases to a larger  Bench for reconsideration of the question decided in K. Kamalajam- mannivaru  (dead) by Lrs., (supra) and Bhag Singh and  Ors., (supra). The preliminary objection raised by learned counsel for  the  respondents to the validity of  the  reference  is overrruled.     We  now come to the merits of the reference. The  refer- ence  is  limited to the interpretation of s. 30(2)  of  the Land Acquisition (Amendment) Act of 1984. Before the  enact- ment  of the Amendment Act, solatium was provided  under  s. 23(2)  of  the Land Acquisition Act  (shortly,  "the  parent Act")  at  15% on the market value of the Land  computed  in accordance  with  s. 23(1) of the Act,  the  solatium  being provided  in consideration of the compulsory nature  of  the acquisition.  The Land Acquisition Amendment Bill, 1982  was introduced in the House of the People on 30 April, 1982  and upon  enactment  the  Land Acquisition  Amendment  Act  1984 commenced operation with effect from 24 September, 1984.  S. 15  of the Amendment Act amended s. 23(2) of the parent  Act and  substituted the words ’30 per centum’ in place  of  the words ’15 per centum’. Parliament intended that the be- 338 nefit  of  the enhanced solatium should  be  made  available albeit  to a limited degree, even in respect of  acquisition proceedings taken before that date. It sought to  effectuate that intention by enacting s. 30(2) in the Amendment Act, S. 30(2) of the Amendment Act provides:      "(2)  the provisions of sub-s. (2) of s.  23   ......of the   principal  Act,  as  amended  by  clause  (b)  of   s. 15   ........of this Act  .......  shall apply and shall  be deemed  to  have applied, also to, and in relation  to,  any award made by the Collector or Court or to any order  passed by  the  High Court or Supreme Court in appeal  against  any such  award under the provisions of the principal Act  after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act." In construing s. 30(2), it is just as well to be clear  that the  award  made by the Collector referred to  here  is  the award  made by the Collector under s. 11 of the parent  Act, and  the  award made by the Court is the award made  by  the Principal  Civil Court of Original Jurisdiction under s.  23 of the parent Act on a reference made to it by the Collector under  s. 19 of the parent Act. There can be no  doubt  that the benefit of the enhanced solatium is intended by s. 30(2) in  respect  of an award made by the  Collector  between  30 April  1982 and 24 September, 1984. Likewise the benefit  of the enhanced solatium is extended by s. 30(2) to the case of an  award  made by the Court between 30 April 1982  and  .24 September  1984,  even though it be upon reference  from  an award made before 30 April, 1982.     The question is: what is the meaning of the words "or to any  order  passed  by the High Court or  Supreme  Court  on appeal  against any such award?" Are they limited,  as  con- tended by the appellants, to appeals against an award of the Collector  or  the Court made between 30 April 1982  and  24 September 1984, or do they include also, as contended by the respondents, appeals disposed of between 30 April, 1982  and 24  September 1984 even though arising out of awards of  the

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Collector or the Court made before 30 April, 1982. We are of opinion  that  the interpretation placed by  the  appellants should be preferred over that suggested by the  respondents. Parliament  has identified the appeal before the High  Court and the appeal before the Supreme Court by describing it  as an appeal against ’any such award’. The submission on behalf of  the respondents is that the words ’any such award’  mean the award made by the Collector or Court, and carry no 339 greater  limiting sense; and that in this context, upon  the language  of s. 30(2), the order in appeal is  an  appellate order  made between 30 April 1982 and 24-September  1984--in which  case  the related award of the Collector  or  of  the Court may have been made before 30 April 1982. To our  mind, the  words  ’any such award’ cannot bear the  broad  meaning suggested  by learned counsel for the respondents.  No  such words  of  description by way of identifying  the  appellate order of the High Court or of the Supreme Court were  neces- sary.  Plainly, having regard to the  existing  hierarchical structure  of  for a contemplated in the  parent  Act  those appellate  orders  could only be orders  arising  in  appeal against  the  award of the Collector or of  the  Court.  The words ’any such award’ are intended to have deeper  signifi- cance, and in the context in which those words appear in  s. 30(2) it is clear that they are intended to refer to  awards made by the Collector or Court between 30 April, 1982 and 24 September,  1984. In other words s. 30(2) of  the  Amendment Act  extends the benefit of the enhanced solatium  to  cases where  the  award by the Collector or by the Court  is  made between 30 April, 1982 and 24 September, 1984 or to  appeals against  such awards decided by the High Court and  the  Su- preme  Court whether the decisions of the High Court or  the Supreme  Court  are rendered before 24  September,  1984  or after  that date. All that is material is that the award  by the Collector or by the Court should have been made  between 30 April, 1982 and 24 September, 1984. We find ourselves  in agreement  with the conclusion reached by this Court  in  K. Kamalajammanniavaru (dead) by Lrs. v. Special Land  Acquisi- tion  Officer, (supra), and find ourselves unable  to  agree with the view taken in Bhag Singh and Others v. Union Terri- tory  of Chandigarh, (supra). The expanded meaning given  to s.  30(2) in the latter case does not, in our opinion,  flow reasonably  from the language of that sub-section. It  seems to  us that the learned judges in that case missed the  sig- nificance  of the word ’such’ in the collocation  ’any  such award’  in  s. 30(2). Due significance must be  attached  to that  word, and to our mind it must necessarily intend  that the appeal to the High Court or the Supreme Court, in  which the benefit of the enhanced solatium is to be given, must be confined  to an appeal against an award of the Collector  or of the Court rendered between 30 April, 1982 and 24  Septem- ber, 1984.     We  find  substance  in the contention  of  the  learned Attorney  General that if Parliament had intended  that  the benefit  of  enhanced  solatium should be  extended  to  all pending proceedings it would have said so in clear language. On the contrary, as he says, the terms in which s. 30(2)  is couched  indicate  a limited extension of the  benefit.  The Amendment Act has not been made generally retrospective with 340 effect from any particular date, and such retrospectivity as appears is restricted to certain areas covered by the parent Act  and must be discovered from the specific terms  of  the provision concerned. Since it is necessary to spell out  the degree of retrospectivity from the language of the  relevant

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provision itself, close attention must be paid to the provi- sions of s. 30(2) for determining the scope of retrospective relief  intended  by Parliament in the  matter  of  enhanced solatium. The learned Attorney General is also right when he points out that it was never intended to define the scope of the  enhanced solatium on the mere accident of the  disposal of a case in appeal on a certain date. Delays in the superi- or Courts extend now to limits which were never  anticipated when  the right to approach them for relief was  granted  by statute.  If it was intended that s. 30(2) should  refer  to appeals  pending before the High Court or the Supreme  Court between  30 April, 1982 and 24 September, 1984,  they  could well refer to proceedings in which an award had been made by the  Collector from anything between 10 to 20 years  before. It could never have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so  long ago should now enjoy the benefit of  statutory  en- hancement. It must be remembered that the value of the  land is  taken under s. 11(1) and s. 23(1) with reference to  the date of publication of the notification under-s.4(1), and it is  that date which is usually material for the  purpose  of determining  the quantum of compensation and solatium.  Both s. 11(1) and s. 23(1) speak of compensation being determined on the basis, inter alia, of the market value of the land on that  date, and solatium by s. 23(2), is computed as a  per- centage on such market value.     Our  attention was drawn to the order made in  State  of Punjab  v. Mohinder Singh, (supra), but in the absence of  a statement of the reasons which persuaded the learned  Judges to  take the view they did we find it difficult  to  endorse that  decision.  It  received the approval  of  the  learned Judges  who decided Bhag Singh (supra), but the judgment  in Bhag Singh, (supra) as we have said earlier, has omitted  to give  due significance to all the material provisions of  s. 30(2),  and consequently we find ourselves at variance  with it. The learned Judges proceeded to apply the principle that an  appeal  is a continuation of  the  proceeding  initiated before the Court by way of reference under-s. 18 but, in our opinion,  the application of a general principle must  yield to  the  limiting terms of the statutory  provision  itself. Learned  counsel for the respondents has strenuously  relied on the general principle that the appeal is a re-hearing  of the original matter, but we are not satisfied that he is  on good ground in invoking that principle. Learned counsel 341 for  the respondents points out that the word ’or’ has  been used in s. 30(2), as a disjunctive between the reference  to the  award made by the Collector or the Court and  an  order passed by the High Court or the Supreme Court in appeal and, he says, properly understood it must mean that the period 30 April,  1982 to 24 September, 1984 is as much applicable  to the  appellate  order of the High Court or  of  the  Supreme Court  as  it is to the award made by the Collector  or  the Court. We think that what Parliament intends to say is  that the benefit of s. 30(2) will be available to an award by the Collector or the Court made between the aforesaid two  dates or to an appellate order of the High Court or of the Supreme Court  which arises out of an award of the Collector or  the Court made between the said two dates. The word ’or’ is used with reference to the stage at which the proceeding rests at the  time  when the benefit under-s. 30(2) is sought  to  be extended. If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of s. 30(2) will be applied to such award made between the aforesaid two dates. If the proceeding  has

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passed  to the stage of appeal before the High Court or  the Supreme  Court, it is at that stage when the benefit  of  s. 30(2)  will be applied. But in every case, the award of  the Collector  or  of the Court must have been made  between  30 April, 1982 and 24 September, 1984.     In the result we overrule the statement of the law  laid down in Mohinder Singh, (supra) and in Bhag Singh and Anoth- er,  (supra)  and prefer instead the  interpretation  of  s. 30(2) of the Amendment Act rendered in K. Kamalajammanniava- ru (dead) by Lrs. (supra).     The cases will now be listed before a Division Bench  of three learned Judges for hearing on the merits of the  other points raised in the cases. Y.Lal 342