IMPORTANT POINT
Only where a case or statute had not been brought to Court s attention and Court gave the decision in ignorance or forgetfulness of existence of case or statute that it would be a decision rendered in per incuriam.

Headnote:(i) Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956-Section 3 r/w 4(b) and 4(c) and 15(1)-Provisions declared ultra vires by Full Bench High Court-Earlier Full Bench decision of High Court in Ramkrit Singh s case was held per incuriam-Appeal -Circumstances where a decision could be considered to have been rendered per incuriam-Only ground to hold decision in Ramkrit Singh s case per incuriam was that question whether consolidation authorities were Courts of limited jurisdiction or not was not considered-Doctrine of per incuriam was misapplied by High Court-Impugned judgment was liable to be set aside and matter remanded for decision afresh.
       Held : Looking at the matter, in view of what has been held to mean by per incuriam, we find that such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature, is not the reason indicated by the Full Bench in the impugned judgment, while saying that decision in the case of Ramkrit Singh (supra) was rendered per incuriam. On the other hand, it was observed that in the case of Ramkrit Singh (supra) the Court did not consider the question as to whether the consolidation authorities are courts of limited jurisdiction or not. In connection with this observation, we would like to say that an earlier decision may seems to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the latter bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways - either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits. Though hardly necessary, we may however, refer to a few decisions on the above proposition. (Para 8)
       (ii) Words and Phrases-Doctrine of per incuriam-Circumstances where a decision could be considered to have been rendered per incuriam-Where a case or statute had not been brought to Court s attention and Court gave decision in ignorance or forgetfulness of existence of case or statute, it would be a decision rendered in per incuriam -Earlier judgment may seem to be not correct yet it will have binding effect on latter bench of co-ordinate jurisdiction. (Paras 5 to 7, 9 and 10)

JUDGMENT

Brijesh Kumar, J.-This is an appeal preferred by the State of Bihar against the judgment and order dated 29-9-1989 passed by the Patna High Court declaring. Sections 15 (1) and 15 (2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short the Act ), ultra vires of Articles 13 and 14 of the Constitution. It appears that the question of vires, interpretation and scope of various provisions of the Act came to be considered by a Full Bench consisting of three Hon ble judges of the Patna High Court and considering the points raised and some decisions rendered earlier, the Full Bench held Section 15 of the Act ultra vires and further held that certain categories of disputes and matters could be entertained and decided by the civil court despite the restrictions placed under section 4(b) and 4(c) of the Act and bar of jurisdiction of Civil Court u/s 37 of the Act. The first and the foremost submission put forward by learned counsel for the appellant for consideration of this Court is that in an earlier Full Bench decision of the Patna High Court reported in AIR 1979 Patna 250, Ramkrit Singh and Others versus State of Bihar and Ors., the same questions have been considered and decided inter alia the question of the validity of Section 15 and the impact of Sec. 4(b), Sec. 4(c) and Section 37 of the Act. The vires of Section 15 of the Act has been upheld in the case of Ramkrit Singh (supra) by the Full Bench, including the bar of jurisdiction of the Civil Court in respect of matters covered by notification u/s 3 read with Section 4(b) and 4(c) of the Act.

2. The provision contained under Section 4 (b) provides that after a Notification is published under Section 3(1) of the Act, no suit or other legal proceeding falling in the area notified, shall be entertained by any Court and Section 4(c) provides that every proceeding for correction of records and for declaration of rights or interest in any land or any other right, pending before any other Court or authority shall stand abated. Section 15 of the Act provides that the Consolidation Officer shall grant to every raiyat to whom holding has been allotted under the Scheme of Consolidation, a Certificate which shall be a conclusive proof of the title of such raiyat and similar certificate is provided to every under-raiyat having a right of occupancy or not but having been allotted a land under the Consolidation Scheme. It is also considered to be a conclusive proof of the title of the under-raiyat. Section 37 attaches finality to the decisions and orders passed under the Act and the jurisdiction of the civil court is barred to entertain any suit or proceedings in respect thereof. The impugned judgment besides declaring Section 15 ultra vires has also diluted the effect of the provisions contained under Section 4 (b), 4(c) and 37 of the Act, while holding that pending suits shall not abate unless specific order of abatement is passed by the civil court and that the suit would revive and proceeded with in accordance with law, in the event of cancellation of Consolidation Scheme or on its completion. And where the claim in respect of declaration of rights or interest in the land is incidental, such suits pending before the civil court or other authorities shall not abate. Bar of Section 37 has also been curtailed.

3. It has been submitted on behalf of the appellant that the Full Bench decision, impugned herein, is in direct conflict with the decision in the case of Ramkrit Singh (

Judge concurring with it, holding that the decision in the case of Ramkrit Singh (supra) is not binding, having been rendered per incuriam. We quote the relevant paragraph 78A which reads as follows:

"78A. As noticed hereinbefore, the Special Bench in Ram Kirat Singh s case did not consider the question as to whether the consolidation authorities are courts of limited jurisdiction or not and thus it made an observation that the civil court while disposing of the suits aft

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2003 Supreme(SC) 511

IMPORTANT POINTOnly where a case or statute had not been brought to Court s attention and Court gave the decision in ignorance or forgetfulness of existence of case or statute that it would be a decision rendered in per incuriam.

Cases Referred (4)

IMPORTANT POINT
Only where a case or statute had not been brought to Court s attention and Court gave the decision in ignorance or forgetfulness of existence of case or statute that it would be a decision rendered in per incuriam.