IMPORTANT POINT
It is the speech, express or necessarily implied, which only is the declaration of law by Supreme Court within the meaning of Article 141 of the Constitution. Thus an appeal dismissed on technical ground of non-joinder of necessary party does not mean merger of the remaining part of the High Court order in Supreme Court order.

Headnote:Constitution of India-Articles 136 and 141-Constitutional validity of the Madras City Tenants Protection (Amendment) Act, 1994-Full Bench of Madras High Court formed an opinion that in view of the appeals against the D.B. decision in M. Vardaraja Pillai s case 85 LW 760 having being dismissed by Supreme Court though on technical ground of non-joinder of necessary party, nevertheless the DB decision of Madras High Court stood merged in Supreme Court order dated 10.9.86 therefore, it was not open to FB to examine the correctness of M. Vardaraja Pillai s case which was impliedly affirmed by Supreme Court in view of dismissal of appeal, though on a technical ground-Whether correct? (No)-Jurisprudential aspect explained-Appeals allowed-Writ petitions restored for re-decision by High Court-Case law discussed on law of precedent.
       Held : Having heard the learned counsel for the parties, we are of the opinion that these appeals deserve to be allowed and the decision of the Full Bench dated 30-8-2000 deserves to be set aside as erroneous for the reasons more than one as stated hereinafter. (Para 9)
       Held (after review of cases) : It follows from a review of several decisions of this Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution. (Para 14)
       Held also : A situation, near similar to the one posed before us, has been dealt in Salmond s Jurisprudence (Twelfth Edition, at pp.149-150) under the caption-"Circumstances destroying or weakening the binding force of precedent: (perhaps) affirmation or reversal on a different ground". It sometimes happens that a decision is affirmed or reversed on appeal on a different point. As an example, suppose that a case is decided in the Court of Appeal on ground A, and then goes on appeal to the House of Lords, which decides it on ground B, nothing being said upon A. What, in such circumstances, is the authority of the decision on ground A in the Court of Appeal? Is the decision binding on the High Court, and on the Court of Appeal itself in subsequent cases? The learned author notes the difficulty in the question being positively answered and then states: (i) the High Court may, for example, shift the ground of its decision because it thinks that this is the easiest way to decide the case, the point decided in the court below being of some complexity. It is certainly possible to find cases in the reports where judgments affirmed on a different point have been regarded as authoritative for what they decided; (ii) the true view is that a decision either affirmed or reversed on another point is deprived of any absolute binding force it might otherwise have had; but it remains an authority which may be followed by a court that thinks that particular point to have been rightly decided. In the present case, the order dated 10.9.1986 passed by this Court can be said to be a declaration of law limited only to two points - (i) that in a petition putting in issue the constitutional validity of any State Legislation the State is a necessary party and in its absence the issue cannot be gone into, and (ii) that a belated prayer for impleading a necessary party may be declined by this Court exercising its jurisdiction under Article 136 of the Constitution if the granting of the prayer is considered by the Court neither necessary nor proper to allow at the given distance of time. By no stretch of imagination can it be said that the reasoning or view of the law contained in the decision of the Division of the High Court in M. Varadaraja Pillai s case had stood merged in the order of this court dated 10.9.1986 in such sense as to amount to declaration of law under Article 141 by this Court or that the order of this Court had affirmed the statement of law contained in the decision of High Court. (Paras 15 and 16)
       Held finally : We are clearly of the opinion that in spite of the dismissal of the appeals on 10.9.1986 by this Court on the ground of non-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this Court, the remaining part of the order of the Division Bench of the High Court cannot be said to have merged in the order of this Court dated 10.9.1986 nor did the order of this Court make any declaration of law within the meaning of Article 141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M. Varadaraja Pillai s case would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent benches of coordinate or lesser strength but open to reconsideration by any bench of the same High Court with a coram of judges more than two. The Full Bench was not dealing with a prayer for review of the earlier decision of the Division Bench in M. Varadaraja Pillai s case and for setting it aside. Had it been so, a different question would have arisen, namely, whether another Division Bench or a Full Bench had jurisdiction or competence to review an earlier Division Bench decision of that particular Court and whether it could be treated as affirmed, for whatsoever reasons, by the Supreme Court on a plea that in view of the decision having been dealt with by the Supreme Court the decision of the High Court was no longer available to be reviewed. We need not here go into the question, whether it was a case of review, or whether the review application should have been filed in the High Court or Supreme Court. Such a question is not arising before us. Under Article 141 of the Constitution, it is the law declared by the Supreme Court, which is binding on all Courts within the territory of India. Inasmuch as no law was declared by this Court, the Full Bench was not precluded from going into the question of law arising for decision before it and in that context entering into and examining the correctness or otherwise of the law stated by the Division Bench in M. Varadaraja Pillai s case and either affirming or overruling the view of law taken therein leaving the operative part untouched so as to remain binding on parties thereto. Inasmuch as in the impugned judgment, the Full Bench has not adjudicated upon the issues arising for decision before it, we do not deem it proper to enter into the merits of the controversy for the first time in exercise of the jurisdiction of this Court under Article 136 of the Constitution. We must have the benefit of the opinion of the Full Bench of the High Court as to the vires of the State legislation involved. For the foregoing reasons, the appeals are allowed. The impugned judgment of the High Court is set aside. All the appeals shall stand restored before the Full Bench of the High Court and shall be heard and decided in accordance with law. The Full Bench while doing so, shall not feel inhibited by the fact that the appeals against the decision in M. Varadaraja Pillai s case were dismissed by this Court which, as we have already stated, were dismissed only on the technical ground without any law being laid down by this Court. We also clarify that in view of the time that has already been lost, the Full Bench may proceed to hear and decide all the controversies arising for decision in the writ petitions in the High Court, that is, the Full Bench may obviate the need of sending the matter back to the Division Bench for hearing on such other issues as are not decided by it. Instead it may decide all the issues raised in the writ petitions fully and finally so far as the High Court is concerned. The hearing before the Full Bench shall be expedited as there are a number of writ petitions and a large number of cases are likely to be affected by the view that the Full Bench may ultimately take. In view of the writ petitions having been restored for hearing on the file of the High Court, we also clarify that all the interim orders, which were passed by the High Court shall also stand restored. Needless to say the High Court shall have the liberty of reconsidering the interim orders passed by it if any such occasion arises. (Paras 17 to 21)

ORDER

Leave granted.

2. Looking at the nature of the controversy arising for decision and the view which we propose to take of the matter before us, a detailed statement of the facts is not called for. We will briefly notice bare essential facts. The Madras City Tenants Protection (Amendment) Act, 1994 (Tamil Nadu Act 2 of 1996) was enacted by the State Legislature and came into force w.e.f. 11th January, 1996. The constitutional validity of this Act was put in issue by several writ petitions filed in the High Court. When the matter came up for hearing before the Division Bench reliance on behalf of the respondents in the High Court was placed on Division Bench decision of the High Court dated 25th January, 1972 reported as M. Varadaraja Pillai v. Salem Municipal Council, 85 Law Weekly 760.

3. Diverting a little in narration of facts it is necessary to note that at an earlier point of time the State Legislature had enacted the Madras City Tenants Protection (Amendment) Act, 1960 (Act No. 13 of 1960) whereby certain amendments were incorporated in the Madras City Tenants Protection Act, 1921. Constitutional validity of Act No. 13 of 1960 was challenged by filing several writ petitions which came up to be heard and disposed of by M. Varadaraja Pillai s case (supra). The constitutional validity of Act No. 13 of 1960 was upheld.

4. Appeals by special leave were filed before this Court against the Division Bench decision in M. Varadaraja Pillai s case. This Court dismissed the appeals vide its order dated 10.9.1986. It will be useful to extract and reproduce the brief order of this Court in its entirety for it will have a material bearing on the issue arising for decision before us in the present appeals. This Court held:-

"The Constitutional validity of Act 13 of 1960 amending the Madras City Tenants Protection Act, 1921 is under challenge in these appeals. The State of Tamil Nadu was not made a party before the Trial Court. However, the State was impleaded as a supplemental respondent in appeal as per orders of the High Court. When the appellants lost the appeal, they sought leave to appeal to this Court. The State of Tamil Nadu was not made a party in the said leave petition. In the S.L.P. before this Court also the State of Tamil Nadu was not made a party. A challenge to the constitutional validity of the Act cannot be considered or determined, in the absence of the concerned State. The learned counsel now prays for time to implead the State of Tamil Nadu. This appeal is of the year 1973. In our view it is neither necessary nor proper to allow this prayer at this distance of time. No other point survives in these appeals. Therefore, we dismiss these appeals, but without any order as to costs."

5. It is clear that this Court did not go into the question of constitutional validity of Act 13 of 1960 nor did this Court apply its mind to the correctness or otherwise of the view taken by the High Court in M. Varadaraja Pillai s case. This Court simply dismissed the appeals as not properly constituted, and hence incompetent, in view of the State of Tamil Nadu, a necessary party, having not been impleaded in the special leave petitions and the appeals. Thus, briefly stated, the appeals were disposed of without any adjudication on merits.

6. Now, as stated in opening para of this judgment, when the matter as to the constitutional validity of Act 2 of 1996 came up for hearing before a Division Bench of the High Court, the decision in M. Varadaraja Pillai s case was cited as a precedent and reliance was placed on behalf of the respondents on the law laid down therein. The Division Bench entertained some doubt about the correctness of the view of the law taken by the earlier Division Bench in M. Varadaraja Pillai s case. However, consistently with the rules of judicial discipline and decorum, the Division Bench thought it fit to refer the matter to a Bench of three Judges (Full Bench) for reconsidering the decision of Madras High Court in M. Var

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2002 Supreme(SC) 951

Cases Referred (9)