2002 Supreme(SC) 381

2002(2) Supreme 584
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
G.B. Pattanaik, S.N. Phukan, and S.N. Variava, JJ.
Director of Settlements, A.P. & Ors. -Appellants
versus
M.R. Apparao & Anr. -Respondents
Civil Appeal No. 2517 of 1999
Decided on 20-3-2002
Counsel for the Parties :
For the Appellants : Guntur Prabhakar and Ms. T. Anamika, Advocates.
For the Respondents : P.P. Rao, Sr. Advocate, Mrs. C.K. Sucharita and Ashok Kumar Pandey, Advocates.

IMPORTANT POINT
The decision of the Supreme Court dated 6.2.1986, upholding the constitutional validity of the Amendment Act of 1971 indicating that the period during which interim payments are payable under the Andhra Pradesh Estates (Abolition and Conversion into Ryotwari) Act, 1948, be held to be a law declared by the Supreme Court under Article 141 of the Constitution.

Headnote:(i) Constitution of India-Article 141-Law declared by the Supreme Court-Binding on all Courts within the territory of India-Guiding principles.

       Held : Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has declared law it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see AIR 1970 SC 1002 and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (Para 7)

       (ii) Andhra Pradesh Estates (Abolition and Conversion into Ryotwari) Act, 1948-Section 39-Interim payments under-Entitlement-Supreme Court held that in view of amendments of 1971 made to the Act, interim payments payable under the Act ends with date of original determination made by the Director u/s. 39(1)-Whether it can be held as a law declared by the Supreme Court, or it can be said to be per incurium-Held, decision must be held to be a law declared within ambit of Article 141 of the Constitution-Constitutional validity of Amendment Act 1971 is not open to be re-agitated-Venkatagiri case : overruled.

       Held : The conclusion of the Court that the amendments are constitutionally valid and the view expressed by the Andhra Pradesh High Court is erroneous is a concious decision of the Court itself on application of mind to the provisions of the Act. It is no doubt true that the counsel for the respondent Venkatgiri had indicated that the respondent will have no objection to the judgments and orders of the High Court under appeal, being set aside. But that by itself would not tantamount to hold that the judgment is a judgment on concession. Even after recording the stand of the counsel appearing for Venkatgiri when the Court observed "we are also of the view that the two amendments referred to above, are constitutionally valid", the same is unequivocal determination of the constitutional validity of the Amended Act, it cannot be dubbed as a conclusion on concession, nor can it be held to be a conclusion without application of mind, particularly when the very constitutionality of the Amendment Act was the core question before the Court. It is also apparent from the further direction when the Court holds we further make it clear that the period during which interim payments are payable under the above said Act ends with the date of the original determination by the Director under Section 39(1) thereof. This conclusion is possible only after application of mind to the provisions of Section 39 as well as other provisions and the Amendment that was brought into the statute book. In the aforesaid premises, our answer to the first question is that the decision of this Court dated 6.2.1986 must be held to be a law declared within the ambit of Article 141 of the Constitution and the constitutional validity of the Amendment Act 1971 is not open to be re-agitated and that the judgment of Andhra Pradesh High Court holding the Amendment Act to be constitutionally invalid had been set aside by this Court. (Para 8)

       Notwithstanding the enunciation of the principle of res judicata and its applicability to the litigation between the parties at different stages, it is difficult for us to sustain the argument of Mr. Rao that an indefeasible right has accrued to the respondents on the basis of the Judgment in their favour which had not been challenged and that right could be enforced by issuance of a fresh mandamus. On the other hand, to have the uniformity of the law and to have universal application of the law laid down by this Court in Venkatagiri s case, it would be reasonable to hold that the so-called direction in favour of the respondents became futile inasmuch as the direction was on the basis that the amendment Act is constitutionally invalid, the moment the Supreme Court holds the Act to be constitutionally valid. We are, therefore, of the considered opinion that no indefeasible right on the respondents could be said to have accrued on account of the earlier Judgment in their favour notwithstanding the reversal of the Judgment of the High court in Venkatagiri s case. (Para 9)

       (iii) Constitution of India-Article 226-Writ of mandamus-Condition precedent for issue of-Applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom mandamus is sought.

       Held : A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. [Kalyan Singh v. State of U.P., AIR 1962 SC 1183]. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. When the aforesaid principle are applied to the case in hand, the so-called right of the respondents, depending upon the conclusion that the amendment Act is constitutionally invalid and, therefore, the right to get interim payment will continue till the final decision of the Board of Revenue cannot be sustained when the Supreme Court itself has upheld the constitutional validity of the amendment Act in Venkatagiri s case on 4th of February, 1986 in Civil Appeal No. 398 & 1385 of 1972 and further declared in the said appeal that interim payments are payable till determination is made by the Director under Section 39(1). The High Court in exercise of power of issuance of mandamus could not have said anything contrary to that on the ground that the earlier judgment in favour of the respondents became final, not being challenged. The impugned mandamus issued by the Division Bench of the Andhra Pradesh High Court in the teeth of the declaration made by the Supreme Court as to the constitutionality of the amendment Act would be an exercise of power and jurisdiction when the respondents did not have the subsisting legally enforceable right under the very Act itself. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court committed serious error in issuing the mandamus in question for enforcement of the so-called right which never subsisted on the date, the Court issued the mandamus in view of the decision of this Court in Venkatagiri s case. In our view, therefore, the said conclusion of the High Court must be held to be erroneous. (Para 10)

       (iv) Constitution of India-Article 141-Judgment of the Supreme Court in Shenoy s case, 1985(2) SCC 512, requires any re-consideration-(No)-Non-consideration of principle of res judicata will not be a ground to reconsider that judgment.

       Held : On examining the Judgment of this Court, more particularly, the conclusion in relation to the provisions of Article 141 of the Constitution, and applying the same to the facts and circumstances to the present case, we do not think that a case has been made out for referring the Shenoy s case to a larger Bench for reconsideration. On the other hand, we respectfully agree with the conclusion arrived at by the three Judge Bench of this Court in Shenoy s case. In Shenoy the Court was considering the applicability of Article 141 of the Constitution and its effect on cases, against which no appeals had been filed. A law of the land would govern everybody, and the non-consideration of the principle of res judicata will not be a ground to reconsider the said judgment. (Para 11)