K. Ganesan Vs. the Special Officer, Salem Co-operative Sugar Mills Ltd. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/813050
SubjectTrusts and Soieties
CourtChennai High Court
Decided OnNov-22-1993
Reported in(1994)2MLJ234
AppellantK. Ganesan
RespondentThe Special Officer, Salem Co-operative Sugar Mills Ltd. and ors.
Cases ReferredRamasami Reddi v. Thalawdsal Marudai Reddi I.L.R.
Excerpt:
- srinivasan, j.1. writ petition nos. 11853 of 1983 and 8442 of 1984 were heard by mr. justice mishra. he passed an order on 20.2.1992 in which he expressed the view that the judgment of a full bench of this court in r. tamilarasan v. the director of handlooms and textiles, madras : (1992)1mlj54 is per incuriam and obiter dicta and a judgment of a subsequent full bench of this court in w. philip jeyasingh v. the joint registrar co-operative societies (1992) 1 m.l.j. 130 : (1992) 1 l.w. 216, which was expressly constituted to consider whether the judgment in tamilarasan's case is per incuriam and obiter dicta is also per incuriam and not binding on him. the order made by the learned single judge is reported in (1992) 2 l.w. 406. in paragraph 44, the learned judge said as follows:on the basis of my conclusions as above, the only course that the court should adopt is to issue a writ, quash the order and direct the respondents to reinstate the petitioner and treat the petitioner in continuous service with all consequential benefits. this i should do ignoring the firman of the full bench judgment in w.p. no. 6191 of 1990 and without being inhibited by the observations in the judgment of the full bench in tamilarasan's case : (1992)1mlj54 .after having categorically declared that a writ should be issued and the order challenged in the writ petition should be quashed, he proceeded to refer the case to a larger bench for deciding the question whether a writ petition is maintainable as against the co-operative society particularly when it is represented by a special officer. in the last paragraph of the order, the learned judge observed as follows:keeping this only in mind, i refer this case to a larger bench with a request to the hon'ble the chief justice to constitute a larger bench which can go into the correctness or otherwise of the pronouncements of the full bench in tamilarasan s case (1989) 1 l.l.j. 588 as well as in w.p. no. 6191 of 1990. until that is done, judges of this court shall be free, as i have felt free, of the shackles of the firman of the full bench judgment in w.p. no. 6191 of 1990 and the precedent in tamilarasan's case : (1992)1mlj54 .2. obviously the order of reference is unsustainable, inasmuch as the judgment of a full bench is binding on a learned single judge, he is not entitled to take the view that it is not correct. moreover, a single judge or a division bench of this court is not entitled to make a reference to a full bench taking the view that an earlier judgment of a full bench is not correct. the proper procedure is only to place the papers before the hon'ble the chief justice, who must decide whether a reference should be made to a full bench at all. the question had been considered in rajah of mandassa v. jagannayakulu a.i.r. 1932 mad 612. the chief justice beasley said:it being a question referred to that full bench, it seems to me that it was not open to the referring judges to regard the answer to it either as obiter dictum or to refer the matter to a larger bench because they doubted its correctness. the proper procedure in such eases, in my opinion, is to refer the matter to the chief justice and it is then for him to consider whether the question should be reconsidered by a larger bench.justice reilly, who was also a party to the full bench opined as follows:but, when a question of law has been referred to a full bench and the chief justice has constituted a pull bench to answer that question and the bench or the majority of the bench has answered the question, in my opinion no judge sitting alone and no bench of two judges is at liberty to disregard that answer or to treat it as not binding on them as if it was an opinion expressed obiter in disposing of an ordinary case and unnecessary for the disposal of that case. and perhaps i may also venture to say that the very unusual procedure adopted in this case, by which a bench of two judges has referred a question already decided by a full bench to a 'larger bench' than the previous full bench because they do not agree with the decision, does not appear to me to be correct. i have no doubt that the chief justice of his own motion or on the suggestion of another judge has power to constitute a larger full bench to answer a question already answered by a full bench. but it is obvious that there will be something more than inconvenience if a bench of two judges can refer a question already decided by a full bench to larger and larger full benches because they do not agree with the answers already given. however, this perhaps is a matter which would be more properly dealt with by lord the chief justice.with respect, we agree.3. in this case the learned single judge, who has made the reference was a party to a division bench, which expressed the view that the judgment of the full bench of this court in tamilarasan's case : (1992)1mlj54 is per incuriam and obiter dicta. hence, a necessity arose to decide whether that full bench judgment is obiter dicta and per incuriam. the matter was referred to a full bench and it was decided in w. philip jeyasingh v. the joint registrar co-operative societies (1992) 1 m.lj. 130 : (1992) 1 l.w. 216, that the view expressed by the division bench was wrong. even thereafter, the learned single judge has expressed the opinion that neither of the full bench judgments is binding on him and just like him all other judges of this court are not bound by the said judgment. that observation made by the learned judge in the last sentence of his order is, to say the least, wholly unwarranted. it has been repeatedly pointed out in several cases by the supreme court that a judgment of a division bench or a full bench is binding on a single judge of the court and it cannot be ignored. the question has been considered at length by the supreme court in sundarajas kanyalal bhathija v. collector, thane : [1990]183itr130(sc) . it is worthwhile referring to the relevant passages in the judgment.paragraph 17 : it would be difficult for us to appreciate the judgment of the high court. one must remember that pursuit of the law, however glamorous it is, has its own limitation on the bench. in a multi-judge court, the judges are bound by precedents and procedure. they could use their discretion only when there is no declared principle to be found, no rule and no authority. the judicial decorum and legal propriety demand that where a learned single judge or a division bench does not agree with the decision of a bench of co-ordinate jurisdiction, the matter shall be referred to a larger bench. it is a subversion of judicial process not to follow this procedure.the court proceeded to refer to the earlier judgments on the subject and observed as follows:in our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more predictable. the question of law directly arising in the case should not be dealt with apologietic approaches. the law must be made more effective as a guide to behaviour. it must be determined with reasons which carry convictions within the courts, profession and public. otherwise, the lawyers would be in a predicament and would not know how to advise their clients. subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinions. the general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute.4. obviously the chief justice has not considered fit to refer this matter to a bench larger than a full bench of three judges. hence, the matter is referred to this full bench comprising of three of us.5. the respondents in the writ petition have challenged the order of the single judge in so far as he has given a finding on the merits of the case and directed issue of a writ challenging the impugned order. those appeals viz. writ appeal nos. 1192 and 1193 of 1992 have also been referred to us by a division bench comprising of hon'ble the chief justice somasundaram, in view of the fact that the question of maintainability has already been referred to this full bench.6. it is argued by learned counsel for the petitioner in the writ petitions that the finding of the learned single judge on the merits should be left undisturbed. according to him, only a question of law is referred to the full bench as to whether a writ will lie against the co-operative society. we are unable to accept this contention. the learned single judge has himself said that the entire case is to be referred to a larger bench. in fact, in the passage extracted already, the learned single judge has chosen to refer the case itself to the full bench. in any event the writ appeals having been referred to us this bench can consider the finding on the merits also. even otherwise we exercise our discretion under order 1, rule 7, appellate side rules and decide the case itself.7. we have held that the decision in tamilarasan's case : (1992)1mlj54 is binding on single judges and division benches of this court as it is a valid precedent. consequently, the single judge in the present case is not entitled to take a different view when there is a binding precedent. following the judgment in tamikirasan's case : (1992)1mlj54 , the only course open to the learned single judge was to dismiss the writ petition as not maintainable. if a case is not maintainable before a court, then it is not open to the court to go into the merits of the case and give a finding. even if such a finding is given, the same will not be res judicata in subsequent proceedings, nor will it be binding in subsequent proceedings. in the present case, the writ petition is not maintainable. hence no finding can be given on the merits that the order impugned in the writ petition is not sustainable. it has been held by a division bench of this court in ramasami reddi v. thalawdsal marudai reddi i.l.r. 47 mad. 453, thatwhen a suit has been dismissed as not maintainable on the ground of want of notice, the finding given in that judgment is not res judicata in a subsequent suit, which was instituted after issue of notice.the same principle will apply in this case. hence, the finding of the learned judge on the merits has to be vacated and it is hereby vacated.8. the writ appeals are allowed and the writ petitions are dismissed as not maintainable. the ruling given by the learned single judge in the order of reference that the judges of this court are not bound by the judgment of the full bench in tamilarasan's case : (1992)1mlj54 or in w.p. no. 6191 of 1990 is unsustainable and hereby set aside. the judges of this court are bound very much by the valid precedent in tamilarasan's case, as well as the subsequent full bench judgment in w.p. no. 6191 of 1990.9. hence we answer the reference made to us in w.p. nos. 11853 of 1983 and 8442 of 1984 that the writ petitions are not maintainable having been filed against a co-operative society. the writ petitions are consequently dismissed. the writ appeals are allowed as stated earlier. in the circumstances of the case there will be no order as to costs.
Judgment:

Srinivasan, J.

1. Writ Petition Nos. 11853 of 1983 and 8442 of 1984 were heard by Mr. Justice Mishra. He passed an order on 20.2.1992 in which he expressed the view that the judgment of a Full Bench of this Court in R. Tamilarasan v. The Director of Handlooms and Textiles, Madras : (1992)1MLJ54 is per incuriam and obiter dicta and a judgment of a subsequent Full Bench of this Court in W. Philip Jeyasingh v. The Joint Registrar Co-operative Societies (1992) 1 M.L.J. 130 : (1992) 1 L.W. 216, which was expressly constituted to consider whether the judgment in Tamilarasan's case is per incuriam and obiter dicta is also per incuriam and not binding on him. The order made by the learned single Judge is reported in (1992) 2 L.W. 406. In paragraph 44, the learned Judge said as follows:

On the basis of my conclusions as above, the only course that the court should adopt is to issue a writ, quash the order and direct the respondents to reinstate the petitioner and treat the petitioner in continuous service with all consequential benefits. This I should do ignoring the firman of the Full Bench judgment in W.P. No. 6191 of 1990 and without being inhibited by the observations in the judgment of the Full Bench in Tamilarasan's case : (1992)1MLJ54 .

After having categorically declared that a writ should be issued and the order challenged in the writ petition should be quashed, he proceeded to refer the case to a larger bench for deciding the question whether a writ petition is maintainable as against the Co-operative Society particularly when it is represented by a Special officer. In the last paragraph of the order, the learned Judge observed as follows:

Keeping this only in mind, I refer this case to a larger bench with a request to the Hon'ble the Chief Justice to constitute a larger Bench which can go into the correctness or otherwise of the pronouncements of the Full Bench in Tamilarasan s case (1989) 1 L.L.J. 588 as well as in W.P. No. 6191 of 1990. Until that is done, Judges of this Court shall be free, as I have felt free, of the shackles of the firman of the Full Bench judgment in W.P. No. 6191 of 1990 and the precedent in Tamilarasan's case : (1992)1MLJ54 .

2. Obviously the order of reference is unsustainable, inasmuch as the judgment of a Full Bench is binding on a learned single Judge, he is not entitled to take the view that it is not correct. Moreover, a single Judge or a Division Bench of this Court is not entitled to make a reference to a Full Bench taking the view that an earlier judgment of a Full Bench is not correct. The proper procedure is only to place the papers before the Hon'ble the Chief Justice, who must decide whether a reference should be made to a Full Bench at all. The question had been considered in Rajah of Mandassa v. Jagannayakulu A.I.R. 1932 Mad 612. The Chief Justice Beasley said:

It being a question referred to that Full Bench, it seems to me that it was not open to the referring Judges to regard the answer to it either as obiter dictum or to refer the matter to a larger bench because they doubted its correctness. The proper procedure in such eases, in my opinion, is to refer the matter to the Chief Justice and it is then for him to consider whether the question should be reconsidered by a larger Bench.

Justice Reilly, who was also a party to the Full Bench opined as follows:

But, when a question of law has been referred to a Full Bench and the Chief Justice has constituted a Pull Bench to answer that question and the Bench or the majority of the Bench has answered the question, in my opinion no Judge sitting alone and no Bench of two Judges is at liberty to disregard that answer or to treat it as not binding on them as if it was an opinion expressed obiter in disposing of an ordinary case and unnecessary for the disposal of that case. And perhaps I may also venture to say that the very unusual procedure adopted in this case, by which a bench of two Judges has referred a question already decided by a Full bench to a 'larger bench' than the previous Full Bench because they do not agree with the decision, does not appear to me to be correct. I have no doubt that the Chief Justice of his own motion or on the suggestion of another Judge has power to constitute a larger Full Bench to answer a question already answered by a Full Bench. But it is obvious that there will be something more than inconvenience if a bench of two Judges can refer a question already decided by a Full bench to larger and larger Full Benches because they do not agree with the answers already given. However, this perhaps is a matter which would be more properly dealt with by Lord the Chief Justice.

with respect, we agree.

3. In this case the learned Single Judge, who has made the reference was a party to a Division Bench, which expressed the view that the Judgment of the Full Bench of this Court in Tamilarasan's case : (1992)1MLJ54 is per incuriam and obiter dicta. Hence, a necessity arose to decide whether that Full Bench judgment is obiter dicta and per incuriam. The matter was referred to a Full Bench and it was decided in W. Philip Jeyasingh v. The Joint Registrar Co-operative Societies (1992) 1 M.LJ. 130 : (1992) 1 L.W. 216, that the view expressed by the Division Bench was wrong. Even thereafter, the learned Single Judge has expressed the opinion that neither of the Full Bench Judgments is binding on him and just like him all other Judges of this Court are not bound by the said judgment. That observation made by the learned Judge in the last sentence of his order is, to say the least, wholly unwarranted. It has been repeatedly pointed out in several cases by the Supreme Court that a judgment of a Division Bench or a Full Bench is binding on a single Judge of the Court and it cannot be ignored. The question has been considered at length by the Supreme Court in Sundarajas Kanyalal Bhathija v. Collector, Thane : [1990]183ITR130(SC) . It is worthwhile referring to the relevant passages in the judgment.

Paragraph 17 : It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger bench. It is a subversion of judicial process not to follow this procedure.

The court proceeded to refer to the earlier judgments on the subject and observed as follows:

In our system of judicial review which is a part of our Constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologietic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute.

4. Obviously the Chief Justice has not considered fit to refer this matter to a Bench larger than a Full Bench of three Judges. Hence, the matter is referred to this Full Bench comprising of three of us.

5. The respondents in the writ petition have challenged the order of the single Judge in so far as he has given a finding on the merits of the case and directed issue of a writ challenging the impugned order. Those appeals viz. Writ Appeal Nos. 1192 and 1193 of 1992 have also been referred to us by a Division Bench comprising of Hon'ble the Chief Justice Somasundaram, in view of the fact that the question of maintainability has already been referred to this Full Bench.

6. It is argued by learned Counsel for the petitioner in the writ petitions that the finding of the learned single Judge on the merits should be left undisturbed. According to him, only a question of law is referred to the Full Bench as to whether a writ will lie against the co-operative society. We are unable to accept this contention. The learned single Judge has himself said that the entire case is to be referred to a larger Bench. In fact, in the passage extracted already, the learned single Judge has chosen to refer the case itself to the Full Bench. In any event the writ appeals having been referred to us this bench can consider the finding on the merits also. Even otherwise we exercise our discretion under Order 1, Rule 7, Appellate Side Rules and decide the case itself.

7. We have held that the decision in Tamilarasan's case : (1992)1MLJ54 is binding on single Judges and Division benches of this Court as it is a valid precedent. Consequently, the single Judge in the present case is not entitled to take a different view when there is a binding precedent. Following the Judgment in Tamikirasan's case : (1992)1MLJ54 , the only course open to the learned single Judge was to dismiss the writ petition as not maintainable. If a case is not maintainable before a court, then it is not open to the court to go into the merits of the case and give a finding. Even if such a finding is given, the same will not be res judicata in subsequent proceedings, nor will it be binding in subsequent proceedings. In the present case, the writ petition is not maintainable. Hence no finding can be given on the merits that the order impugned in the writ petition is not sustainable. It has been held by a Division Bench of this Court in Ramasami Reddi v. Thalawdsal Marudai Reddi I.L.R. 47 Mad. 453, that

When a suit has been dismissed as not maintainable on the ground of want of notice, the finding given in that judgment is not res judicata in a subsequent suit, which was instituted after issue of notice.

The same principle will apply in this case. Hence, the finding of the learned Judge on the merits has to be vacated and it is hereby vacated.

8. The writ appeals are allowed and the writ petitions are dismissed as not maintainable. The ruling given by the learned single Judge in the order of reference that the Judges of this Court are not bound by the judgment of the Full Bench in Tamilarasan's case : (1992)1MLJ54 or in W.P. No. 6191 of 1990 is unsustainable and hereby set aside. The Judges of this Court are bound very much by the valid precedent in Tamilarasan's case, as well as the subsequent Full Bench judgment in W.P. No. 6191 of 1990.

9. Hence we answer the reference made to us in W.P. Nos. 11853 of 1983 and 8442 of 1984 that the writ petitions are not maintainable having been filed against a co-operative society. The writ petitions are consequently dismissed. The writ appeals are allowed as stated earlier. In the circumstances of the case there will be no order as to costs.