Govt. of NCT of Delhi Through Its Secretary, Land and Building Department & Another v. M/s K.L. Rathi Steels Limited and Others

Judgment / Order of the Supreme Court Judgment TABLE OF CONTENTS*

A. PREFACE

1Copy pinpoint1. Day in and day out, as Judges of this Court, we are majorly addressed by learned counsel for the parties that the High Courts are either * Ed. Note: Pagination as per the original Judgment.

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Govt. of NCT of Delhi Through Its Secretary, Land and Building Department & Another v. M/s K.L. Rathi Steels Limited and Others

right or wrong; here, in view of a split verdict rendered by an Hon’ble Division Bench (“said Division Bench”, hereafter) comprising two Hon’ble Judges of this Court, we have been addressed by the parties that our distinguished colleagues on the Bench have been right and wrong at the same time. To complete the task that has been entrusted to us, one of the opinions of the Hon’ble Judges comprising the said Division Bench has to be held incorrect unless, of course, harmonization of the two opinions, in any manner, is possible. In the process of considering the rival claims, the exercise of declaring one view as correct and the other incorrect or to harmonize the two views, have necessarily taken us back to the basics of the substantive and procedural laws regulating review jurisdiction of this Court. The effort, we have no hesitation to say, has been really educative as well as rewarding because the erudite arguments advanced from the Bar opened up a new vista of thinking to appreciate points of debate that emerged not only from the facts of the petitions before us but also points arising from certain connected matters, decided by this Court. We record our sincere appreciation for the valuable assistance rendered by the members of the Bar who had the occasion to address this larger Bench. B. THE REFERENCE

2Copy pinpoint2. The two Hon’ble Judges comprising the said Division Bench were considering a clutch of review petitions (“RPs”, hereafter), presented either by the Delhi Development Authority or the Government of NCT, Delhi, or the Land and Building Department, etc. (“review petitioners”, hereafter). The RPs urged review of the judgments/ orders passed by this Court on either Civil Appeals or Special Leave Petitions carried by the review petitioners from judgments and orders of the High Court of Delhi (“High Court”, hereafter), declaring land acquisition proceedings initiated under the Land Acquisition Act, 1894 (“1894 Act”, hereafter) as deemed to have lapsed under section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (“2013 Act”, hereafter). By the judgments/orders under review, the said Civil Appeals/Special Leave Petitions stood dismissed. The RPs having been listed before the said Division Bench, the respondents therein (i.e., landowners) had questioned the maintainability of the same by referring to the Explanation to Rule 1 of Order XLVII, Code of Civil Procedure (“CPC”, hereafter). As noted earlier, a split verdict

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emerged in Govt. of NCT of Delhi v. K.L. Rathi Steels Limited and ors.,1 being the lead matter. Briefly put, the Hon’ble Judge presiding over the Bench ruled in favour of maintainability of the RPs whereas the Hon’ble companion Judge on the Bench disagreed and held that the RPs were not maintainable. An order was, thus, made by the Bench on 17th March, 2023 requiring the papers of the RPs to be placed before the Hon’ble the Chief Justice. Such order has been the immediate reason for His Lordship to constitute this larger Bench and refer the RPs to resolve which of the two views on maintainability of the RPs is the correct view; hence, all such RPs are now before this larger Bench. C. JUDICIAL TRAJECTORY

3Copy pinpoint3. Before delving deep into the intricacies presented by the reference, it would be apposite to trace the judicial trajectory of proceedings in this Court on interpretation of section 24(2) of the 2013 Act that preceded the split verdict.

4Copy pinpoint4. The 2013 Act was enforced with effect from 1st January, 2014. Soon thereafter, the interpretation of section 24(2) of the 2013 Act fell for consideration before this Court. A three-Judge Bench (cor. Hon’ble R.M. Lodha, Hon’ble Madan B. Lokur and Hon’ble Kurian Joseph, JJ.) in Pune Municipal Corporation v. Harakchand Misirimal Solanki 2 explained, in the light of section 31 of the 2013 Act what the expression “compensation has not been paid” occurring in section 24(2) meant. The verb “paid” in the same sub-section was also explained. Perhaps, since no argument was advanced, the Bench did not have the occasion to consider whether the conjunction “or” between the expressions “compensation has not been paid” and “possession has not been taken” in sub-section (2) should be read as “or” as it is, or read as “and”.

5Copy pinpoint5. However, Pune Municipal Corporation (supra) was doubted by a two-Judge Bench (cor. Hon’ble Arun Mishra and Hon’ble Amitava Roy, JJ.) in Indore Development Authority v. Shailendra [2-Judge] 3 wherein it was of the opinion that the issue should be considered by a larger Bench.

1 [2023] 6 SCR 209 : 2023 SCC OnLine SC 288 2 (2014) 3 SCC 183 3 (2018) 1 SCC 733

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6Copy pinpoint6. Consequently, a Bench of three-Judges (cor. Hon’ble Arun Mishra, Hon’ble A.K. Goel and Hon’ble M. Shantanagoudar, JJ.) was constituted. The majority speaking through Hon’ble Arun Mishra, J. in Indore Development Authority v. Shailendra [3-Judge] 4 held Pune Municipal Corporation (supra) per incuriam but deemed it not necessary to refer to a larger Bench. Relevant excerpts from such decision are set out hereunder:

216. With respect to the decision of this Court in Pune Municipal Corpn. we have given deep thinking whether to refer it to further larger Bench but it was not considered necessary as we are of the opinion that Pune Municipal Corpn. has to be held per incuriam, inter alia, for the following reasons: ***

217. The decision rendered in Pune Municipal Corpn., which is related to Question (i) and other decisions following, the view taken in Pune Municipal Corpn. are per incuriam. … The decisions rendered on the basis of Pune Municipal Corpn. are open to be reviewed in appropriate cases on the basis of this decision.”

7Copy pinpoint7. It is relevant to highlight that one of the Judges (Hon’ble M. Shantanagoudar, J.) partly dissented by recording the following observations: “295.2. …However, according to me the judgment in Pune Municipal Corpn. is not rendered per incuriam. In view of the above, the judgment in Pune Municipal Corpn. may have to be reconsidered by a larger Bench, inasmuch as Pune Municipal Corpn. was decided by a Bench of three Judges.”

8Copy pinpoint8. The aforesaid decision, as it was destined, gave rise to uncertainty rendered by two contradictory decisions by Benches of co-equal strength. Hence, a three-Judge Bench (cor. Hon’ble Madan B. Lokur, Hon’ble Kurian Joseph and Hon’ble Deepak Gupta, JJ.) in

4 (2018) 3 SCC 412

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State of Haryana v. G.D. Goenka Tourism Corporation Limited5 while deferring a hearing as to whether the matter should at all be referred to a larger Bench directed that pending decision on the question of reference, the High Courts may not deal with any case relating to the interpretation of or concerning section 24 of the 2013 Act.

9Copy pinpoint9. Two orders dated 22nd February, 2018 passed by different Benches of co-equal strength followed. While a Bench (cor. Hon’ble A.K. Goel and Hon’ble U.U. Lalit, JJ.) by an order passed in Indore Development Authority v. Shyam Verma 6 directed the matters to be placed before an appropriate Bench the next day as per orders of the Hon’ble the Chief Justice of India, a similar order was passed by a coordinate Bench (cor. Hon’ble Arun Mishra and Hon’ble Amitava Roy, JJ.) vide its order in State of Haryana v. Maharana Pratap Charitable Trust (Regd).7

10Copy pinpoint10. A five-Judge Constitution Bench (cor. Hon’ble Arun Mishra, Hon’ble Indira Banerjee, Hon’ble Vineet Saran, Hon’ble M.R. Shah and Hon’ble S. Ravindra Bhat, JJ.) was thereafter constituted.

11Copy pinpoint11. Ultimately, vide the judgment in Indore Development Authority v. Manoharlal [5-Judge, lapse],8 the controversy was finally put to rest. The conclusions in Manoharlal [5-Judge, lapse] (supra) are recorded in paragraphs 365 and 366. However, paragraph 365 being relevant for a decision here, is quoted hereunder: “365. Resultantly, the decision rendered in Pune Municipal Corpn. is hereby overruled and all other decisions in which Pune Municipal Corpn. has been followed, are also overruled. The decision in Sree Balaji Nagar Residential Assn. cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra [3-judge], the aspect with respect to the proviso to Section 24(2) and whether ‘or’ has to be read as ‘nor’ or as ‘and’ was not placed for consideration. Therefore, that decision

5 (2018) 3 SCC 585 6 (2020) 15 SCC 342 7 Civil Appeal No. 4835/2015 8 [2020] 3 SCR 1 : (2020) 8 SCC 129

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too cannot prevail, in the light of the discussion in the present judgment.”

12Copy pinpoint12. Ironically, during the hearing, a controversy was raised by the respondents therein regarding the composition of the Bench in Manoharlal [5-Judge, lapse] (supra). A preliminary objection for recusal of the presiding Judge of the said Constitution Bench was sought on the ground that His Lordship was a part of the three-Judge Bench in Shailendra [3-Judge] (supra) wherein the correctness of the three-Judge Bench decision in Pune Municipal Corporation (supra) was doubted and by 2:1 majority, held to be per incuriam. It was contended that in Shailendra [3-Judge] (supra), His Lordship did not merely express reservations about the precedent i.e., Pune Municipal Corporation (supra), instead, His Lordship effectively annulled the judgment by asserting that it held no legal value, departing thereby from established principles of stare decisis and judicial discipline. Rejecting the aforesaid arguments, a detailed order was rendered by His Lordship in Indore Development Authority v. Manoharlal [5-Judge, recusal].9 The plea of recusal was declined, and it was observed that “accepting the plea of recusal would sound a death knell to the independent system of justice delivery where litigants would dictate participation of judges of their liking in particular cases or causes”.10 While the lead opinion was delivered by the concerned Judge, the four other member Judges on the Bench delivered a joint concurring opinion.

13Copy pinpoint13. For completing the narrative, it is to be noted that the ball did not stop rolling with Manoharlal [5-Judge, lapse] (supra). By an order dated 16th July, 2020 in Pune Municipal Corporation v. Harakchand Misirimal Solanki [Recall Order] ,11 a three-Judge Bench (cor. Hon’ble Arun Mishra, Hon’ble Vineet Saran and Hon’ble M.R. Shah, JJ.) allowed several applications, thereby recalling the judgment in Pune Municipal Corporation (supra).

14Copy pinpoint14. What is, therefore, laid bare by these facts is that firstly, Pune Municipal Corporation (supra) was doubted in Shailendra [2-Judge] (supra), whereafter it was declared per incuriam

9 [2019] 15 SCR 1085 : (2020) 6 SCC 304 10 (2020) 6 SCC 304, Para 45 11 2020 SCC OnLine SC 1471

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in Shailendra [3-Judge] (supra), followed by its overruling in Manoharlal [5-Judge, lapse] (supra) and ultimately recalled on 16th July, 2020 in Harakchand Misirimal Solanki [Recall Order] (supra). D. FACTS GIVING RISE TO THE REVIEW PETITIONS

15Copy pinpoint15. Immediately after Pune Municipal Corporation (supra) was decided, several writ petitions came to be instituted not only in the High Court but also in different high courts across the country seeking similar declaration, viz. owing to the requisite conditions mentioned in Section 24(2) of the 2013 Act being met, land acquisition proceedings initiated under the 1894 Act stood lapsed. These RPs arise out of writ proceedings on the file of the High Court, which have since attained finality by reason of the judgments and orders under review.

16Copy pinpoint16. The facts are noticed from the Review Petition arising out of the Writ Petition12 instituted by the first respondent, K.L. Rathi Steels Limited, which is the lead matter. Relying upon the decision of this Court in Pune Municipal Corporation (supra) and similar line of decisions, the High Court vide its judgment and order dated 7th July, 2015, allowed the writ petition taking a view that the necessary ingredients of section 24(2), as interpreted by this Court, having been met, the acquisition proceedings under challenge therein are deemed to have lapsed. Aggrieved, the first respondent carried such judgment and order in a Civil Appeal13 praying for it to be set aside. This Court, vide a common judgment and order dated 29th November, 2016 concerning various civil appeals, dismissed the appeals and granted a period of one year to the appellants (review petitioners herein) to exercise liberty granted under section 24(2) of the 2013 Act for initiation of acquisition proceedings afresh.

17Copy pinpoint17. Availing what they call is a ‘liberty’ granted by this Court in Shailendra [3-Judge] (supra), the appellants in the Civil Appeal (review petitioners herein) approached this Court seeking a review of the aforesaid judgment and order dated 29th November, 2016. Although the review petition suffered from substantial delay, the same stood condoned by the said Division Bench after the split verdict.

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18Copy pinpoint18. It is relevant to mention at this stage that during the entire period of controversy, the observation in paragraph 217 of Shailendra [3-Judge] (supra) was construed as ‘liberty’ by not only the appellants in the Civil Appeal but also by other similarly placed appellants/ special leave petitioners leading them to approach this Court seeking review of all those decisions whereby, relying upon Pune Municipal Corporation (supra) and similar line of cases, it was declared that land acquisition proceedings were deemed to have lapsed under section 24(2) of the 2013 Act. E. THE SPLIT VERDICT

19Copy pinpoint19. Heavy reliance was placed by the review petitioners before the said Division Bench on paragraphs 365 and 366 of Manoharlal [5-Judge, lapse] (supra) and paragraph 217 of Shailendra [3-Judge] (supra). They also relied on Board of Control for Cricket in India v. Netaji Cricket Club14 in support of the contention that a party for sufficient reason could urge the court to exercise its review jurisdiction. On behalf of the respondent landowners, various decisions were cited to contend that the Explanation to Rule 1 of Order XLVII, CPC would not permit a review of the judgments/orders under review.

20Copy pinpoint20. The presiding Judge allowed the review/recall petitions. Noting the specific overruling of Pune Municipal Corporation (supra) and all the decisions which were rendered following it by Manoharlal [5-Judge, lapse] (supra), and referring to paragraph 217 of the decision in Shailendra [3-Judge] (supra), the Hon’ble Judge felt that “some meaning” had to be given to such observations. The contention of the respondents that the case falls under Rule 1 of Order XLVII, CPC and the subsequent overruling of Pune Municipal Corporation (supra) cannot be a ground to review the earlier judgments and orders was rejected by reasoning that “here is a peculiar case where the earlier decision in Pune Municipal Corporation (supra), upon which reliance has been placed earlier, was itself doubted in the subsequent decision in the case of … and that the matter was referred to the Constitution Bench and thereafter the Constitution Bench has declared the law as above, more particularly paragraphs 365 and 366 of the judgment in the case of …”.

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21Copy pinpoint21. Lastly, it was noted that in most of the cases that were sought to be reviewed, the lands had already been utilised by the beneficiaries of acquisition and in view of the orders passed declaring the deemed lapse of acquisition, “(T)he resultant effect would be to return the possession of the land/s which might have been used by the beneficiary authorities”. It was, therefore held that the RPs should be allowed in the larger public interest and the authorities should be given an opportunity to put forward their case afresh, “which shall be in the larger public interest”.

22Copy pinpoint22. In contrast, the Hon’ble companion Judge while dissenting with the Hon’ble presiding Judge proceeded to examine the RPs on the basis of their very maintainability, in the light of the Explanation to Rule 1 of Order XLVII, CPC. Multiple decisions of this Court, on the parameters on which a review petition could be entertained by this Court, were examined and it was held that in view of the specific bar that the Explanation creates on taking into consideration the subsequent overruling of a determinative judgment, the RPs could not be held to be maintainable. Pune Municipal Corporation (supra) being good law as on date when the impugned judgments were rendered, it was held that the said impugned judgments could not be reviewed on the ground of Pune Municipal Corporation (supra) being overruled, the course of action being expressly prohibited by the Explanation to Rule 1 of Order XLVII. It was further held that the decisions relying on Pune Municipal Corporation (supra) had attained finality and were binding on the parties, and that the decision to review such final decisions would fly in the face of the public policy underlining the Explanation i.e., interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation). In thus rejecting the RPs on the ground of maintainability, the Hon’ble Judge was guided, inter alia, by decisions of this Court in Chajju Ram v. Neki15 and Haridas Das v. Usha Rani Banik16 wherein this Court had held that the grounds for review laid down by Rule 1 of Order XLVII, CPC do not include within their ambit, the rehearing of a dispute solely on the ground that the judgment on which the decision in the dispute had been relied upon, was overruled. Netaji Cricket Club (supra) was distinguished by observing that “exercise

15 AIR 1922 PC 112 16 [2006] 3 SCR 87 : (2006) 4 SCC 78

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of review jurisdiction in that case, based on a subsequent event was confined to purely the facts of the said case involving a controversy between rival Cricket Associations” and hence could not be applied as a general ratio. F. SUBMISSIONS

23Copy pinpoint23. It is as a consequence of the split-verdict that the RPs were heard by the present three-Judge Bench to decide the point of maintainability of the RPs and to settle the ancillary issues raised in K.L. Rathi Steels Limited (supra).

24Copy pinpoint24. Though it may not be absolutely necessary to note the elaborate submissions advanced from the Bar by learned senior counsel/counsel for the parties since such submissions have been captured in the minutest detail in the split-verdict, for the sake of completeness, we shall briefly refer to the same.

25Copy pinpoint25. Ms. Bhati, learned Additional Solicitor General, appearing on behalf of the review petitioners (the Govt. of NCT, Delhi), with all the passion at her command, argued that the RPs are maintainable and advanced, in support of maintainability, the following submissions: a) The specific and categoric overruling of Pune Municipal Corporation (supra), and all other decisions in which Pune Municipal Corporation (supra) was followed, leads to the conclusion, in absolute terms, that land acquisition proceedings cannot be deemed to have lapsed under section 24(2) unless the conditions enumerated in paragraph 366 of Manoharlal [5-Judge, lapse] (supra) are satisfied. b) Vide order dated 16th July, 2020 in Pune Municipal Corporation [Recall Order] (supra), the decision in Pune Municipal Corporation (supra) has been recalled and the position of law, as expounded therein, stands erased, leading the findings operating inter se the parties to cease. c) To dismiss the review/recall petitions at the threshold as not being maintainable will lead to a great injustice and undermine the public interest, particularly in the light of the ‘liberty’ granted by this Court in Shailendra [3-Judge] (supra). The RPs deserve to be decided on merits on a case-to-case basis on various parameters including the stage of litigation, the reason for

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incomplete acquisition by the State, stage of acquisition, status of possession and compensation, reasons for the delay in filing review/recall petitions, and the purpose of the acquisition. d) Urging this Court to equally weigh equitable considerations involved in the matter, Ms. Bhati prayed that the RPs may not be dismissed at the threshold.

26Copy pinpoint26. Mr. Kailash Vasdev, learned senior counsel, representing the Delhi Development Authority contended that having regard to the peculiar facts and circumstances that have emerged since overruling of Pune Municipal Corporation (supra) by Manoharlal [5-Judge, lapse] (supra), public interest indeed is one of the factors requiring paramount consideration and, on the anvil thereof, the opinion of the Hon’ble presiding Judge of the said Division Bench ought to be accepted. According to him, it is justice that the courts are duty bound to dispense and it would not amount to dispensing justice if the respondent landowners’ objection to the maintainability of the RPs, based on an overruled judgment, were upheld.

27Copy pinpoint27. Mr. Sen, learned senior counsel, also appearing on behalf of the Delhi Development Authority, apart from adopting the submissions of Ms. Bhati and Mr. Vasdev, asserted the maintainability of the RPs by submitting as follows: a) Maintainability of the RPs ought not to be decided by a blanket order as the RPs have been filed not on the solitary ground of overruling of Pune Municipal Corporation (supra) but in terms of the ‘liberty’ granted by this Court in Shailendra [3-Judge] (supra), which has the force of law under Article 141 of the Constitution. In arguendo, Article 137 comes to the rescue of the review petitioners granting them the liberty to file a review. b) Public interest must be given precedence over private interest in case of a conflict. The present lands are required for implementing residential schemes for low-income groups and significant construction had already been carried out in other acquired portions. c) The jurisdiction under Article 142 of the Constitution ought to be invoked to ensure substantial justice considering the threat to public good involved in the matter.

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28Copy pinpoint28. Urging that the RPs are maintainable and deserve a hearing on merits, Mr. Sen urged that the RPs be held maintainable and heard on its own merits.

29Copy pinpoint29. The landowner respondents, represented by Mr. Divan, Mr. Giri, Mr. Chib and Mr. Jain, learned senior counsel and by Ms. Swaraj, learned counsel, supported the opinion expressed by the Hon’ble companion Judge on the said Division Bench and urged this Bench to take the same recourse. The following submissions were advanced by them: a) The decision in Manoharlal [5-Judge, lapse] (supra) does not come to the rescue of the review petitioners, it must operate prospectively and cannot reopen claims which have attained finality. b) BSNL v. Union of India17 and Neelima Srivastava v. State of U.P.18 were relied upon to support the contention that overruling of Pune Municipal Corporation (supra) merely takes away the precedential value; it, however, does not affect the binding nature of a decision that has attained finality inter se the parties. c) This Court has limited jurisdiction available in review and in terms of the Explanation to Rule 1 of Order XLVII, CPC, overruling of earlier judgments would not constitute a ground for review. d) Further, the decision in Manoharlal [5-Judge, lapse] (supra) did not, in any manner whatsoever, endorse the purported liberty granted by Shailendra [3-Judge] (supra) in paragraph 217 to the review petitioners to file the present RPs; on the contrary, it has been overruled. Moreover, Shailendra [3-Judge], having been decided by a Bench of co-equal strength, could neither have granted liberty to file the RPs, nor could have declared Pune Municipal Corporation (supra) per incuriam. e) Most of the RPs had been filed after periods of inordinate delay where no sufficient explanation had been provided for the same by the review petitioners. In any event, the present RPs were also filed belatedly after the purported liberty granted by this Court in Shailendra [3-Judge] (supra).

17 (2006) 3 SCC 1 18 [2021] 8 SCR 167 : 2021 SCC OnLine SC 610

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30Copy pinpoint30. Praying that the RPs are not maintainable, the learned counsel urged this Court to dismiss them in limine. G. QUESTIONS BEFORE US

31Copy pinpoint31. The parties have been heard and the materials on record perused, in the light of the law regulating exercise of power by the Supreme Court to review its earlier judgment/order under the extant laws. We are of the opinion that on the rival contentions, the following questions arise for answers on the facts of these RPs: a) Can the review petitioners, on the basis of the pleadings in the RPs, be considered persons aggrieved? b) Whether the last sentence of paragraph 217 of Shailendra [3-Judge] (supra) grants ‘liberty’ to any party to seek a review of Pune Municipal Corporation (supra)? c) If the answer to (b) is in the affirmative, did such ‘liberty’ survive after the decision in Manoharlal [5-Judge, lapse] (supra)? d) Can the RPs be held to be maintainable, giving due regard to the Explanation in Rule 1 of Order XLVII, CPC vis-à-vis Manoharlal [5-Judge, lapse] (supra)? e) If the answer to (d) is in the negative, do the RPs still deserve to be entertained on the other grounds urged therein? f) Are the miscellaneous applications maintainable?

32Copy pinpoint32. While answering the aforesaid questions, we feel obliged and, hence, intend to address certain ancillary issues too. H. LAW ON REVIEW JURISDICTION

33Copy pinpoint33. The law regulating exercise of review jurisdiction by the Supreme Court is so well-settled that any detailed discussion would, in the first place, seem to be unnecessary. However, we cannot overlook the vociferous arguments on behalf of both the review petitioners and the respondents that the Hon’ble Judges of the said Division Bench have erred in their respective appreciation of the law relating to exercise of review jurisdiction by the Supreme Court. In view thereof and particularly in the light of the authorities considered in the split verdict and those which have been cited in course of the debate that unfolded before us, calls for a relook at the relevant provisions

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and the precedents bearing in mind the respective approaches of the Hon’ble Judges in the split verdict: one of them has given public interest paramount importance, no matter what the law ordains; while the other has stuck to the law, no matter what public interest demands.

34Copy pinpoint34. Power of the Supreme Court to review its own judgment and/or order has its genesis in Articles 137 and 145 of the Constitution read with Order XLVII of the Supreme Court Rules, 2013 (“2013 Rules”, hereafter). Rule 1 of Order XLVII of the 2013 Rules, in no uncertain terms, lays down that no application for review in a civil proceeding will be entertained by this Court except on the ground mentioned in Rule 1 Order XLVII, CPC. Review in civil proceedings is governed by section 114 of the CPC read with Order XLVII thereof. It would, therefore, not be inapt to read section 114 and Rule 1 of Order XLVII, CPC once again:

114. Review.— Subject as aforesaid, any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. ORDER XLVII

1. Application for review of judgment.— (1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not

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within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order.

35Copy pinpoint35. Read in conjunction with section 114 of the CPC, Order XLVII Rule 1 thereof has three broad components which need to be satisfied to set the ball for a review in motion – (i) ‘who’, means the person applying must demonstrate that he is a person aggrieved; (ii) ‘when’, means the circumstances a review could be sought; and (iii) ‘why’, means the grounds on which a review of the order/decree ought to be made. Finally, comes the ‘what’, meaning thereby the order the Court may make if it thinks fit. Not much attention is generally required to be paid to components (i) and (ii), because of the overarching difficulties posed by component (iii). However, in deciding this reference, component (i) would also have a significant role apart from the Explanation inserted by way of an amendment of the CPC.

36Copy pinpoint36. Let us now briefly attempt a deeper analysis of the provision. We are conscious that the provisions relating to review have been considered in a catena of decisions, but the special features of these RPs coupled with the fact that two Hon’ble Judges of this Court have delivered a split verdict make it imperative for us not to miss any significant aspect.

37Copy pinpoint37. A peep into the legislative history would reveal that Rule 1 of Order XLVII, CPC, which is part of the First Schedule appended thereto, bears very close resemblance to its predecessor statutes, i.e., Section 623 of the Codes of Civil Procedure of 1877 and 1882. The solitary legislative change brought about in 1976 in Order XLVII, CPC resulted in insertion of an Explanation at the foot of Rule 1, which is at the heart of the controversy here.

38Copy pinpoint38. The first and foremost condition that is required to be satisfied by a party to invoke the review jurisdiction of the court, whose order or decree, as the case may be, is sought to be reviewed, is that the said party must be someone who is aggrieved by the order/decree. The

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words “person aggrieved” are found in several statutes; however, the meaning thereof has to be ascertained with reference to the purpose and provisions of the statute. In one sense, the said words could correspond to the requirement of ‘locus standi’ in relation to judicial remedies. The need to ascertain the ‘locus standi’ of a review petitioner could arise, if he is not a party to the proceedings but claims the order or decree to have adversely affected his interest. In terms of Order XLVII of the 2013 Rules read with Order XLVII, CPC, a petition for review at the instance of a third party to the proceedings too is maintainable, the quintessence being that he must be aggrieved by a judgment/order passed by this Court. This is what has been held in Union of India v. Nareshkumar Badrikumar Jagad.19 That is, of course, not the case here. Normally, in the context of Rule 1 of Order XLVII, CPC, it is that person (being a party to the proceedings) suffering an adverse order and/or decree who, feeling aggrieved thereby, usually seeks a review of the order/decree on any of the grounds outlined therein. The circumstances where a review would lie are spelt out in clauses (a) to (c).

39Copy pinpoint39. Order XVLII does not end with the circumstances as section 114, CPC, the substantive provision, does. Review power under section 114 read with Order XLVII, CPC is available to be exercised, subject to fulfilment of the above conditions, on setting up by the review petitioner any of the following grounds: (i) discovery of new and important matter or evidence; or (ii) mistake or error apparent on the face of the record; or (iii) any other sufficient reason.

40Copy pinpoint40. Insofar as (i) (supra) is concerned, the review petitioner has to show that such evidence (a) was actually available on the date the court made the order/decree, (b) with reasonable care and diligence, it could not be brought by him before the court at the time of the order/ decree, (c) it was relevant and material for a decision, and (d) by reason of its absence, a miscarriage of justice has been caused in the sense that had it been produced and considered by the court, the ultimate decision would have been otherwise.

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41Copy pinpoint41. Regarding (ii) (supra), the review petitioner has to satisfy the court that the mistake or error committed by it is self-evident and such mistake or error can be pointed out without any long-drawn process of reasoning; and, if such mistake or error is not corrected and is permitted to stand, the same will lead to a failure of justice. There cannot be a fit-in-all definition of “mistake or error apparent on the face of the record” and it has been considered prudent by the courts to determine whether any mistake or error does exist considering the facts of each individual case coming before it.

42Copy pinpoint42. With regard to (iii) (supra), we can do no better than refer to the traditional view in Chhajju Ram (supra), a decision of a Bench of seven Law Lords of the Judicial Committee of the Privy Council. It was held there that the words “any other sufficient reason” means “a reason sufficient on grounds at least analogous to those specified immediately previously”, meaning thereby (i) and (ii) (supra). Notably, Chhajju Ram (supra) has been consistently followed by this Court in a number of decisions starting with Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius.20

43Copy pinpoint43. There are recent decisions of this Court which have viewed ‘mistake’ as an independent ground to seek a review. Whether or not such decisions express the correct view need not detain us since the review here is basically prayed in view of the subsequent event.

44Copy pinpoint44. As noted above, the Explanation in Rule 1 Order XLVII was inserted in 1976. It reads: “Explanation.— The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.”

45Copy pinpoint45. The above insertion was preceded by a recommendation contained in the 54th report of the Law Commission. The decisions in Syed Liaqat Husain v. Mohd. Razi,21 Lachhmi Narain Balu v. Ghisa Bihari 22 and Patel Naranbhai Jinabhai v. Patel Gopaldas

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Venidas 23 held that the fact that the view of the law taken in a judgment has been altered by a subsequent decision of a superior court in another case, is not a ground for review of such judgment. On the contrary, in Thadikulangara Pylee’s Son Pathrose v. Ayyazhiveettil Lakshmi Amma’s son Kuttan 24 law was laid down that the fact that a subsequent binding authority took a different view of the law from what had been taken in the decision sought to be reviewed, was a good ground for review. Upon consideration of these decisions, the Law Commission had recommended as follows: “Recommendation It is felt that the position should be settled on this point. If the law is altered by judicial pronouncement of a higher court, the party affected should not, in our opinion, have a right to get the judgment reviewed. An amendment adopting the Kerala view will create a serious practical problem. It will keep alive the possibility of review indefinitely. Under the Limitation Act, the period of limitation for an application for review has been prescribed, but the delay can, ‘for sufficient cause’, be condoned by the Court under that Act. Where an application for review is made on the ground of a later binding authority, the party applying for review will usually be able to plead ‘sufficient cause’, because it is only when the superior court has made a pronouncement that he will have a ground for review; and he can, therefore, argue with considerable force that there was ‘sufficient cause’ for his not making the application earlier. Recommendation We, therefore, recommend that the following Explanation should be added below Order 47/XLVII Rule 1.” 25

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46Copy pinpoint46. A comparative study of the terms of the Explanation recommended by the Law Commission and the Explanation, which ultimately had the approval of the Parliament and came to be inserted in Order XLVII are not in variance except alteration of some words.

47Copy pinpoint47. It is of some worth to note that even prior to the decisions of the Oudh, Punjab and Gujarat High Courts considered by the Law Commission in its 54th report, two chartered high courts of the country had taken the same view. The High Court at Calcutta way back on 15th February, 1927 in Sudananda Moral v. Rakhal Sana ,26 considering the decision of the Privy Council in Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatrama Rao ,27 opined that reversal of a relied-on decision subsequent to the decree in the suit was not a ground for review of the judgment. Also, the High Court of Madras in Ravella Krishnamurthy v. Yarlagadda 28 observed that for review on the ground of discovery of new and important matter, such matter must be in existence at the date of the decree. The exposition of law on the point, therefore, dates back to almost a quarter and a century back. I. PRECEDENTS CONSIDERING THE EXPLANATION

48Copy pinpoint48. There are a few decisions of this Court where the Explanation to Rule 1 of Order XLVII, CPC has since been considered.

49Copy pinpoint49. The earliest decision is Shanti Devi v. State of Haryana 29 where the Court rejected the review petition by holding that the contention that the judgment sought to be reviewed was overruled in another case subsequently is no ground for reviewing the said decision. Explanation to Order XLVII Rule 1 of the Code of Civil Procedure clearly rules out such type of review proceedings.

50Copy pinpoint50. Reference may next be made to the decision in Union of India v. Mohd Nayyar Khalil.30 There, the impugned order had followed a three-Judge Bench judgment of this Court. Such judgment was admittedly pending consideration before a Constitution Bench. Taking note of such facts, it was held that:

26 XXXI CWN 822 : AIR 1927 Cal 920 27 LR (1899-1900) 27 IA 197 28 AIR 1933 Madras 485 29 (1999) 5 SCC 703 30 (2000) 9 SCC 252

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“2. *** Even if the question regarding the legality of the said three-Judge Bench decision is pending scrutiny before the Constitution Bench the same is not relevant for deciding the review petition for two obvious reasons — firstly, this was not pointed out to the Bench which decided the civil appeal; and secondly, by the time the impugned order was passed the three-Judge Bench judgment had not been upset and even in future if the Constitution Bench takes a contrary view it would be a subsequent event which cannot be a ground for review as is clear from the explanation to Order 47 Rule 1(2) of the Code of Civil Procedure ***”. (emphasis supplied) The principle, thus, laid down is that a decision being upset in the future would be a subsequent event which could not be a ground to seek review.

51Copy pinpoint51. In Nand Kishore Ahirwar v. Haridas Parsedia,31 a Bench of three Hon’ble Judges, while dismissing the review petitions before it, made pertinent observations reaching out to the very core of the said Explanation. This Court observed that simply because there has been a Constitution Bench decision, passed in the aftermath of the judgment impugned, would be no ground for a review of the said judgment. It also went on to observe that a reference to a Constitution Bench would stand on a still weaker footing (emphasis supplied).

52Copy pinpoint52. The question arising for decision in State of West Bengal v. Kamal Sengupta 32 was whether a tribunal established under section 4 of the Administrative Tribunals Act, 1985 can review its decision on the basis of a subsequent order/decision/judgment rendered by a coordinate or larger Bench or any superior court or on the basis of subsequent event/development. It was contended on behalf of the State that any subsequent decision on an identical or similar point by a coordinate or larger Bench or even change of law cannot be made the basis for recording a finding that the order sought to be reviewed suffers from an error apparent on the face of the record. After considering a host of decisions with a fine-tooth comb, the

31 (2001) 9 SCC 325 32 [2008] 10 SCR 4 : (2008) 8 SCC 612

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Court went on to cull out the principles of review in paragraph 35 of the decision which is extracted hereunder: “35. The principles which can be culled out from the abovenoted judgments are: (i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise. (iii) The expression ‘any other sufficient reason’ appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds. (iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f). (v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court. (vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/ decision as vitiated by an error apparent. (viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.” (emphasis supplied)

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53Copy pinpoint53. This Court, in Subramanian Swamy v. State of Tamil Nadu,33 has read the Explanation as follows: “52. *** The Explanation to Order XLVII, Rule 1 of Code of Civil Procedure 1908 provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed.”

54Copy pinpoint54. The final one is a decision of the Constitution Bench in Beghar Foundation v. K.S. Puttaswamy.34 The majority was of the following view: “2. The present review petitions have been filed against the final judgment and order dated 26-9-2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26-9-2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed.” J. OTHER PRECEDENTS ON REVIEW

55Copy pinpoint55. Precedents on the aspect of review are legion and we do not wish to burden this judgment by tracing all the decisions. However, only a few that were considered in the split verdict, some which were cited by the parties before us and some that have emerged on our research on the subject and considered relevant, are discussed/ referred to here.

33 [2014] 1 SCR 308 : (2014) 5 SCC 75 34 [2021] 1 SCR 681 : (2021) 3 SCC 1

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56Copy pinpoint56. Two of these decisions, viz. A.C. Estates v. Serajuddin 35 and Raja Shatrunji v. Mohd. Azmat Azim Khan 36 were rendered prior to introduction of the Explanation in Rule 1 of Order XLVII, CPC. Significantly, even without the Explanation, substantially the same view was expressed.

57Copy pinpoint57. In A.C. Estates (supra), a bench of three Hon’ble Judges of this Court, while dismissing the civil appeal and upholding the order of the High Court at Calcutta, held as follows: “Our attention in this connection is drawn to Section 29(5) of the Act which gives power to the Controller to review his orders and the conditions laid down under Order 47 of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which exist at the date of the order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatrama Rao 37). (emphasis supplied)

58Copy pinpoint58. The next is the decision of a Bench of two Hon’ble Judges of this Court in Raja Shatrunji (supra). While dismissing an appeal and upholding the order of the Allahabad High Court, reference was made to “any other sufficient reason” in Rule 1 of Order XLVII, CPC and the decision in Rajah Kotagiri Venkata Subbamma Rao (supra) whereupon it was held: “13. *** the principles of review are defined by the Code and the words ‘any other sufficient reason’ in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be

35 [1966] 1 SCR 235 36 [1971] Supp. 1 SCR 433 : (1971) 2 SCC 200 37 LR (1899-1900) 27 IA 197

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produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao Lord Davey at p. 205 of the Report said that ‘the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event’.” (emphasis supplied)

59Copy pinpoint59. What was laid down in Netaji Cricket Club (supra), upon reading Order XLVII, CPC, can be better understood in the words of the Hon’ble Judge authoring the judgment. The relevant passages are quoted hereunder: “88. *** Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.

89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words ‘sufficient reason’ in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’.”

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In the next paragraph, Their Lordships quoted a portion of paragraph 32 from the Larger Bench decision in Moran Mar Basselios Catholics (supra) but held that “the said rule is not universal”.

60Copy pinpoint60. Netaji Cricket Club (supra) was followed in Jagmohan Singh v. State of Punjab.38 It was held there that Rule 1 of Order XLVII, CPC does not preclude the High Court or a court to take into consideration any subsequent event and that if imparting of justice in a given situation is the goal of the judiciary, the court may take into consideration (of course on rare occasions) the subsequent events.

61Copy pinpoint61. This Court, in paragraph 20 of the decision in Kamlesh Verma v. Mayawati,39 after surveying previous authorities and following Chhajju Ram (supra) and Moran Mar Basselios Catholics (supra) summarized the principles of review and illustrated when a review would be and would not be maintainable. Despite the observation in Netaji Cricket Club (supra) limiting Moran Mar Basselios Catholics (supra), Kamlesh Verma (supra) thought it fit to agree with the latter decision.

62Copy pinpoint62. Recently, in S. Madhusudhan Reddy v. V. Narayana Reddy,40 a Bench of three Hon’ble Judges has accepted the meaning of the ground “for any other sufficient reason” as explained in Chhajju Ram (supra), Moran Mar Basselios Catholics (supra) and Kamlesh Verma (supra). K. ANALYSIS

63Copy pinpoint63. Before answering question (a), we take up questions (b), (c) and (d) first with (b) and (c) together for answers.

64Copy pinpoint64. It was with more than sufficient intensity, force, vehemence and seriousness that learned senior counsel appearing on behalf of the review petitioners argued, based on their understanding of paragraph 217 of Shailendra [3-Judge] (supra) that, irrespective of anything else, the same did grant them ‘liberty’ to apply for review, that availing such ‘liberty’ granted by this Court the RPs were filed, and that this Bench being of co-equal strength, instead of taking a different view, ought to read the last sentence of paragraph 217 in the manner they

38 [2008] 7 SCR 117 : (2008) 7 SCC 38 39 [2013] 11 SCR 25 : (2013) 8 SCC 320 40 [2022] 11 SCR 42 : 2022 SCC OnLine SC 1034

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(learned senior counsel) understood it, and to accept the same for holding the RPs maintainable.

65Copy pinpoint65. For reasons more than one, the decision in Shailendra [3-Judge] (supra) cannot come to the rescue of the review petitioners.

66Copy pinpoint66. The first reason is that the submission of a ‘liberty’ being granted by Shailendra [3-Judge] (supra) makes it abundantly clear that but for such ‘liberty’, the review petitioners would not have even thought of applying for review since the law on the point was no longer res integra. It is, therefore, an admission on their part that the judgments and orders under review, as on the dates they were delivered/made, were neither erroneous (which is a possible ground for appeal, if an appeal were allowed by law) nor suffering from any error apparent on the face of the record (a possible ground for review). Therefore, merely based on Shailendra [3-Judge] (supra), a subsequent event, the review jurisdiction of this Court which is a limited jurisdiction could not have been invoked.

67Copy pinpoint67. Next, we need to consider whether the last sentence of paragraph 217 of Shailendra [3-Judge] (supra) can at all be read and understood to have granted a ‘liberty’ of the nature claimed by the review petitioners.

68Copy pinpoint68. This Court sitting in a combination of five-Hon’ble Judges in Vikramjit Singh v. State of Madhya Pradesh 41 had the occasion to consider an appeal where the facts were quite alike. A learned Judge (Varma, J.) of the Madhya Pradesh High Court had granted bail to the appellant. While the appellant was enjoying the concession of bail and such order had not been challenged, a co-accused moved for bail. Noticing the earlier order granting bail in favour of the appellant, another learned Judge (Gupta, J.) in his order observed that the appellant did not deserve to be enlarged on bail, and that it was “a fit case where the State should apply for cancellation of bail of all the accused persons”. In view of this observation, the State filed a petition for cancellation of the bail order passed by Varma, J. In this application, neither any additional fact was stated nor any allegation was made against the appellant which could be relevant for cancellation of the earlier bail order. The prayer for cancellation was founded only on the observations in the order of Gupta, J.,

41 1992 Supp (3) SCC 62

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which was verbatim quoted in the application. The same was listed before Gupta, J. who by the impugned order cancelled the earlier order of Varma, J. and while so doing made strong remarks against grant of bail in cases like the one under consideration. This order of cancellation was carried in appeal before this Court. The Constitution Bench observed that no bench can comment on the functioning of a co-ordinate bench of the same court, much less sit in judgment as an appellate court over its decision (emphasis supplied). While allowing the appeal, it was further observed that the State not having filed any appeal against the order of Varma, J. granting bail to the appellant, the same had become final so far as the high court was concerned and that in the absence of any allegation of misuse of the concession of bail by the appellant, Gupta, J. had no authority to upset the earlier order of Varma, J (emphasis supplied). In conclusion, it was also observed as follows: “2. *** That which could not be done directly could also not be done indirectly. Otherwise a party aggrieved by an order passed by one bench of the High Court would be tempted to attempt to get the matter reopened before another bench, and there would not be any end to such attempts. Besides, it was not consistent with the judicial discipline which must be maintained by courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary ***.”

69Copy pinpoint69. We do believe that what was said of a high court in this decision, would squarely apply to this Court. The Supreme Court of India, a revered institution, is one Court which operates through separate Benches owing to administrative exigency and practical expedience. These Benches are essential to efficiently manage the diverse and voluminous cases that come before the Court and to discharge the solemn judicial duty for which the Court exists. It would be an erroneous perception to regard this division as a cause for din within the Court. When faced with a peculiar circumstance as before us presently, one might just be compelled to ask whether one voice of this Court is louder than another? The answer to this is that this Court, as one, might speak through a singular voice or several voices as the occasion might demand. In any event, these voices, though marked by their individual tone(s), enjoin to form a collective melody,

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akin to a choir of justice. It cannot be forgotten that no matter the strength, all these voices bear the symbol of the Supreme Court of India. While we may have our specific functions and jurisdictions, the collective objective is to find our bearings towards धर्मम (duty) and न्यााय (justice). In this sense, it can be said that each Bench speaks for the Court as a whole, contributing to the intricate symphony of justice that defines the Supreme Court of India.

70Copy pinpoint70. It is here that the need arises for a Bench to be careful, cautious, and circumspect while being critical of a precedent of a previous Bench. Every Bench is supposed to bear in mind two overriding considerations. The first is that of deference to the views expressed by a Bench in a primary decision and the other is maintaining judicial discipline and propriety if, upon threadbare consideration, it is found difficult to assent to the justification for such primary decision. In such an eventuality, dignity and decency would demand disagreement voiced by the subsequent Bench and reference of the matter to the Hon’ble the Chief Justice for constitution of a larger Bench in a tone that does not sound like critical observations and adverse comments in respect of the primary decision rendered by a coordinate Bench.

71Copy pinpoint71. Here too, the grounds of the RPs refer to the ‘liberty’ granted by the decision in Shailendra [3-Judge] (supra). The question, as noted above, is whether the Bench while deciding Shailendra [3-Judge] (supra) could have granted any ‘liberty’ to the review petitioners to apply for review, assuming that the words “open to be reviewed in appropriate cases” did mean ‘liberty to apply’.

72Copy pinpoint72. Prior to attempting an answer to that question, it would also be apposite to note what the dicta in Central Board of Dawoodi Bohra Community v. State of Maharashtra 42 is, as laid down by another Constitution Bench of this Court. The legal position summed up in paragraph 12 reads as follows: “12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:

42 [2004] Supp. 6 SCR 1054 : (2005) 2 SCC 673

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(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. ***” (emphasis supplied)

73Copy pinpoint73. Although the larger Bench in Shailendra [3-Judge] (supra) appears to have considered in excess of 250 decisions, the above opinions of the Constitution Benches do not seem to have been presented before it. It is, thus, clear as crystal from the majority opinion delivered by Hon’ble Arun Mishra and Hon’ble A.K. Goel, JJ. that recourse was taken to declare Pune Municipal Corporation (supra) per incuriam

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without having the benefit of the caution sounded by this Court in Vikramjit Singh (supra) and Central Board of Dawoodi Bohra Community (supra).

74Copy pinpoint74. Having regard to the opinions expressed by Constitution Bench decisions of this Court, there is absolutely no scope for a Bench of three-Hon’ble Judges to declare a previous decision of a Bench of co-equal strength per incuriam. Shailendra [3-Judge] (supra), at the highest, could have doubted Pune Municipal Corporation (supra) and referred it for decision by a yet larger Bench but could not have, by any stretch of reasoning, declared it per incuriam. But, the same logic applies to this Bench too. Respectfully following the binding dictum in Central Board of Dawoodi Bohra Community (supra) and also having regard to our sense of judicial discipline and propriety, we restrain ourselves from declaring Shailendra [3-Judge] (supra) as per incuriam notwithstanding our firm conviction in this behalf.

75Copy pinpoint75. However, nothing much turns on our restraint for there are weightier reasons to reject the contention of the review petitioners; and this, we say, to specifically answer question (c).

76Copy pinpoint76. In paragraph 365 of Manoharlal [5-Judge, lapse] (supra) itself, it has been held by the Constitution Bench that Shailendra [3-Judge] (supra) did not have the occasion to consider certain aspects for which that decision cannot prevail. Learned senior counsel for the respondents, based on such statement, contended that Shailendra [3-Judge] (supra) stands overruled. This submission has been disputed by learned senior counsel for the review petitioners. According to them, Shailendra [3-Judge] (supra) has not been expressly overruled; only because of aspects referred to in paragraph 365 and the discussion preceding, it ceases to be a precedent.

77Copy pinpoint77. We have not held Shailendra [3-Judge] (supra) to be per incuriam for the reason indicated above but the statement in paragraph 365 of Manoharlal [5-Judge, lapse] (supra) has to be given some meaning. Although it is true that Shailendra [3-Judge] (supra) was not expressly overruled by Manoharlal [5-Judge, lapse] (supra), what stands out as a direct impact of paragraph 365 thereof is that Shailendra [3-Judge] (supra), not having considered certain vital aspects and more particularly as to how the conjunction ‘or’ in sub- section (2) of section 24 of the 2013 Act has to be read as well as the proviso thereto, the very basis for Shailendra [3-Judge] (supra)

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