M/S Shenoy and Co. Vs. The Commercial
Tax Officer Bangalore & Ors [1985] INSC 82 (10 April 1985)
KHALID, V. (J) KHALID, V. (J) DESAI, D.A. ERADI,
V. BALAKRISHNA (J)
CITATION: 1985 AIR 621 1985 SCR (3) 659 1985
SCC (2) 512 1985 SCALE (1)779
CITATOR INFO: RF 1986 SC1440 (13) F 1988
SC1353 (17)
ACT:
Declarative Judgment , effect , and binding
nature of-construction of India , 1950 , Article 141 scope.
Writ of mandamus , meaning of-Several writ
petitions filed by. traders challenging the Constitutional validity of an Act
was allowed by the High Court by a common judgment but the said judgment was
set aside by the Supreme Court in the only one State appeal preferred-Whether
the said judgment of the Supreme Court will not be binding upon the writ
petitioners on the plea Or non-filing of appeals by the State against their
writ petitions.
HEADNOTE:
That Constitutional validity of the Karnataka
Tax on Entry of Goods into Local Areas for consumption , use or sale therein
Act , 1979 , which came into force with effect from 1 6.1979 was challenged in
the Karnataka High Court by a large number of traders though a batch of 1590
writ petitions including writ petition No. 7039/79 by M/s. Hansa corporation
Bangalore.A Division Bench of the Court, by a common judgment dated 24.8.79
reported in ILR 1980 (1) Karnataka 165 allowed all the writ petitions and
issued writs of mandamus against the State Government forbearing it from taking
any proceedings under the Act. The State took the matter in appeal in this
Court. However , only one appeal was filed , numbered as 3049 of 1979 against
writ petition No. 170 39 of 1979 filed by M/s Hansa Corporation , impleading
this Corporation alone as respondent. This Court by its judgment dated 25.9.80
which is reported in 1981 (1) SCR 823 , allowed the appeal , set aside the
judgment of the Karnataka High Court and upheld the validity of the Act.
During the pendency of the civil appeal No-
3049 of 1979 Governor of Karnataka enacted the Karnataka Tax on Entry of Goods
into a Local Area 660 for Consumption , use or sale therein (Act 21) , Act 1980
with retrospective effect from 8.6.80 removing the infirmities in the 1979 Act.
After the judgment of the Supreme Court in the Hansa Corporation's case the
Governor of Karnataka promulgated another ordinance , Ordinance No. 11 of 1980
on 25.10.1980 repealing the Entry Tax Act , 1980 from its inception with
certain other directions regarding adjustment of tax if any paid. This was
followed by Karnataka Tax on Entry of Goods into Local Areas , Use or Sale
therein Act , of 1981 , and Karnataka Act No. 10 of 1981 , repealing the 1980
Act. however , did not repeal ordinance No. 11 of 1980. In the meantime ,
Karnataka Ordinance No. 3 of 1981 came into force which was followed by
Karnataka Act 12 of 1981 I which repealed Ordnance No. II of 1980. As a result
of the combined operation of ordinance No. 3 of 1981 and Act No 12 of 1981 ,
the 1979 Act was made to be Operative but only from 1.10.80 and not from 1.6.79
as originally enacted After the judgment of the Hansa Corporation's case
upholding the validity of the 1979 Act , the authorities appointed under the
Act , issued notices under the Act to all the dealers including those who had
filed writ petition earlier , calling upon them to register themselves under
the Act , to file returns and to pay the amounts of tax due by them under the
original Act of 1979. Aggrieved by the said notices , the original writ
petitioners again filed writ petitions before the High Court of Karnataka
contending that the notices issued to them were bad in as much as the writ of
mandamus issued in their favour by the High Court in the earlier judgment
survived and was effective since no state appeals were performed against them
and that the judgment of the Supreme Court could rescue the State from taking
proceedings only against the Hansa Corporation and not against them. The
Statement this contention with the plea that the judgment of the Supreme Court
was binding on all and no one could escape from it. The writ petitions were dismissed
by a single judge holding among other things , that section 3 of the Act No 10
of 1981 revived the 1979 Act and that action taken against the petitioners in
the writ petitions was , therefore , valid. Appeals were filed against the
judgment and a Division Bench of the Karnataka High Court dismissed the
appellants holding that section 3 of the re pealing Act of 1981 re-enacted the
1979 Act and that , therefore , the appeals were not well founded i 1 their
challenge against the action taken by the State. Hence the appeals by special
leave and also writ petitions under Article 32 of the Constitution.
Dismissing the appeals and the writ petition
, the Court ^
HELD: 1.1 The judgment of the Supreme Court
in Hansa Corporations' case reported in [1981] 1 SCR 823 is binding on all
concerned whether they were parties to the judgment or not To contend that the
conclusion therein applies only to the partly before the Supreme Court is to
destroy the efficacy and integrity of the judgment and to make the mandate of
Article 141 illusory. By setting aside the common judgment of the High Court ,
the mandamus issued by the High Court is rendered ineffective not only in one
case but in all cases.[675; 673-H]
1.2 In the instant case , though a large
number of writ petitions were filed challenging the Act , all those writ
petitions were grouped together , heard 661 together and were disposed of by
the High Court by a common judgment. No petitioner advanced any contention
peculiar or individual to his petition , not common to others. To be precise ,
the dispute in the cause or controversy between the State and each petitioner
had no personal or individual element in it or anything personal or peculiar to
each petitioner. The challenge to the Constitutional validity of 1979 Act
proceeded on identical grounds common to all petitioners. This challenge was
accepted by the High Court by a common judgment that was the subject matter of
appeal before Supreme Court in Hansa Corporations' case. When the Supreme Court
repealed the challenge and held the Act constitutionally valid it in terms
disposed of not the appeal in Hansa Corporation's case alone , but all
petitioners in which the High Court issued mandamus on the non existent ground
that the 1979 Act was constitutionally invalid. Therefore , to contend that the
law laid down by Supreme Court in that judgment would bind only the Hansa
Corporation and not the other petitioners against whom the State of Karnataka
had not filed any appeal , is to ignore the binding nature of a judgment of
Supreme Court under Article 141 of the Constitution. [673B-C)
1.3 A mere reading of Article 141 bring into
sharp focus its expanse and its all pervasive nature. In cases like this ,
where numerous petitions are disposed of by a common judgment and only one
appeal is filed , the parties to the common judgment could very well have and
should have intervened and could have requested the court to hear them also.
They cannot be heard to say that the decision was taken by the Supreme Court
behind their back or profess ignorance of the fact that an appeal had been
filed by the State against the common judgment.[673B-C]
2. There is no inconsistency in the finding
of the Supreme Court in Joginder's case and Makhanlal Waza's case the ratio Is
the same and the appellants cannot take advantage of certain decisions made by
this Court in the earlier case. Both the decisions in Joginder's and Makhanlal
Waza's case lay down identical principles and there is nothing to distinguish
between the two. in the earlier case, the Supreme Court , on its facts ,
overruled the preliminary objection that absence of appeals against the three
petitioners let out. would not render the appeal before the Supreme Court
incompetent , holding thereby that the effect of decision in that appeal would
be binding on the appellant therein. In the latter case , the Supreme Court in
unmistakable terms laid down that the law laid down in the earlier case ,
namely , Triloknath's case, applied even to those who were not parties to the
case.
These two decisions were given by two
Constitution Benches of the Supreme Court , the fact that Joginder Singh's case
was not noted by the Bench that decided Makhanlal Waza's case does not create
any difficulty. The two decisions , on the principles laid down by them , speak
the same voice, that is the law laid down by the Supreme Court is binding on
all , notwithstanding the fact that it is against the State or a private party
and that it is binding on even those who were not parties before the court ,
State of Punjab v. Joginder Singh. [1963] 2 Suppl. SCR 169- Makhanlal Waza v. J
& K. State. [1971] 3 SCR 832 discussed and followed. 662 OBSERVATION:
In the fitness of things , it would be
desirable that the State Government also took out publication in such cases to
alert parties bound by the judgment , of the fact that an appeal had been
preferred before Supreme Court by them.
Here the State Government cannot be find
fault with for having filed only one appeal. It is , of course , an economising
procedure. [673C-D]
3.1 A writ or an order in the nature of
mandamus has always been understood to mean a command issuing from the Court ,
competent to do the same , to a Public servant amongst others , to perform
which leads to the initiation of action.
3.2 In this case , the petitioners-appellants
assert that the mandamus in their case was issued by the High Court commanding
the authority to desist or forbear from enforcing the provisions of an Act
which was not validity enacted. In other words , a writ of mandamus was
predicated upon the view that the High Court took that the 1979 Act was
constitutionally invalid. Consequently the Court directed the authorities under
the said Act to forbear from enforcing the provisions of the Act qua the
petitioners; The Act was subsequently declared constitutionally valid by the
Supreme Court. The Act , therefore , was under an eclipse , for a short
duration; but with the declaration of the law by the Supreme Court , the
temporary shadow cast on it by the mandamus disappeared and the Act revived
with its full the constitutional invalidity held by the High Court having been
removed by the judgment of the Supreme Court. If the law so declared invalid is
held constitutionally valid , effective and binding by the Supreme Court , the
mandamus forbearing the authorities from enforcing its provisions would become
ineffective and the authorities cannot be compelled to perform a negative duty.
The declaration of the law is binding on everyone. And therefore , the mandamus
would not survive in favour of those parties against whom appeals were not
filed. [774B-E]
3.3 Further , assuming that the mandamus in
favour of the appellants survived not withstanding the judgment of this Court ,
the normal procedure to enforce the mandamus is to move the court in contempt
when the parties against whom mandamus is issued disrespect it and if contempt
petitions are filed and notices are issued to the State, the States' obvious
answer will be a reference to Article 141 and taking protection thereunder. No
Court can punish a party for contempt under these circumstances , because the
mandamus issued by the High Court becomes ineffective and unenforceable when
the basis on which it has issued falls, by the declaration by the Supreme Court
of the validity of 1979 Act. [674E; G-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 2263 to 2268 of 1984.
From the Judgment and Order dated 2nd April ,
1982, of the High Court of Karnatka in Writ Appeal Nos. 662 to 667 of 1982.
663 Writ Petition Nos. 394-405 of 1984.
(under Article 32 of the constitution).
K. Srinivasan , Raghvendra Rao , V. Kumar for
the Appellants. in the C.A. Nos. 2263-68 of 1984.
R.P. Bhatt , Swaraj Kaushal for the
Respondents in C.A. Nos. 2263-68 of 1984. B Krishnamani , Lalit Kumar Gupta ,
Subash Dutt , K.K Pargal and Pankaj Kalra , for the Petitioner in W.P. No.
391-405/84.
K.L. Sharma , S.L. Benadikar and M. Veerappa
for the Respondents in W.P. No. 394-405/84. C The Judgment of the Court was
delivered by KHALID , J. The above appeals , by special leave, are directed
against the common Judgment rendered by a Division Bench of the Karnataka High
Court in writ appeal Nos. 662-668 of 1982. In the writ petitions , the prayer
is to strike down Section 7 of Karnataka Act No. 13 of 1982, Sections 2 and 3 of
Karnataka Act No. 10 of 1984 and for a writ of mandamus to restrain the State
of Karnataka from enforcing the said provisions against the Petitioners in the
writ petitions. This Judgment will dispose of the appeals and the writ
petitions.
2. The facts , in brief , necessary to
understand the genesis of the cases are as follows:
Consequent upon the abolition of octroi by
the State of Karnataka , which was the main source of revenue for the local
bodies , the said State enacted the Karnataka Tax on Entry of Goods into local
areas for Consumption , use or salt therein Act , 1979 (for short the 1979 Act)
in order to augment the resources of the local bodies. This Act came into force
with effect from 1.6.1979 on which date it was gazetted.
3.A batch of 1590 writ petitions were field
in the Karnataka High Court by a large number of traders challenging the
constitutional validity of this Act. Writ Petition No , 7039 of 1979 was one of
them which was by Messrs Hansa Corporation , Bangalore. These writ petitions,
on reference by a learned Single Judge , were heard by a Division Bench , which
by a common 664 Judgment dated 24.8.1979(T) struck down the Act , allowed the
writ petition and issued writs of mandamus against the State Government
forbearing it from taking any proceeding under the Act. The State took the
matter in appeal to this Court. However only one appeal was filed , numbered as
3049 of 1979 against writ petition No. 7039 of 1979 filed by Messrs Hansa
Corporation , in , pleading this Corporation alone as respondent , This Court
by its Judgment dated 25.9.1980 allowed the appeal , set aside the Judgment of
the Karnataka High Court and upheld the validity of the Act.
This decision is reported in 1981 (1) S.C.R.
823.
4. While Civil appeal No. 3049 of 1979 was
pending before this Court , the Governor of Karnataka promulgated the Karnataka
Tax on Entry of Goods into a Local Area for Consumption , use or Sale therein
Ordinance of 1980 (Karnataka Ordinance No. 5 of 1980) on 8.6.1980 providing for
levy of entry tax on registered dealers , removing the infirmities in the 1979
Act , that were pointed out by the High Court in its Judgment while striking
down the Act. This ordinance was replaced by Act No. 21 of 1980 giving it
retrospective effect from 8-6.1980 , the date of the ordinance .
5. After this Court rendered its Judgment in
the Hansa Corporation case , the Governor of Karnataka promulgated another
ordinance , Ordinance No. 11 of 1980 on 25.10.l980 re pealing the Entry Tax Act
, 1980 , from its inception with certain other directions regarding adjustment
of tax if any paid. This was followed by Karnataka Tax on Entry of Goods into
Local Areas , Use or Sale therein (repeal) Act, of 1981 , and Karnataka Act No.
10 of 1981 , repealing the 1980 Act. This Act , however , did not repeal
ordinance No. 11 of 1980. In the meantime , Karnataka Ordinance No. 3 of 1981 ,
came into force which was followed by Karnataka Act 12 of 1981 which repealed
Ordinance No. 11 of 1980. As a result of the combined operation of ordinance
No. 3 of 1981 and Act No. 12 of 1981. the 1979 Act was made to be operative but
only from 1-10.1980 and not from 1.6.1979 a originally enacted.
6 After the Judgment of this Court in the
Hansa Corporation ease , upholding the validity of the 1979 Act, the
authorities appointed under the Act , issued notices under the Act (1)- I.T.R.
1980 (1) Karnataka 165 665 to all the dealers including those who had filed
writ petitions earlier , calling upon them to register themselves under the Act
, to file returns and to pay the amounts of tax due by them under the original
Act of 1979.
Aggrieved by the said notices , the original
writ petitioners again filed writ petitions before the High Court of Karnataka
contending that the notices issued to them were bad inasmuch as the writ of
mandamus issued in their favour by the High Court in the earlier Judgment
survived and Was effective since the State had not filed appeals against them ,
and that the Judgment of this Court could rescue the State from taking
proceedings only against the Hansa Corporation and not against them. The State
met this contention with the plea that the Judgment of this Court was binding
on all and no one could escape from it. The writ petitions were heard by a
learned Single Judge. He dismissed them holding , among other things , that
Section 3 of the Act No. 10 of 1981 revived the 1979 Act and that action taken
against the petitioners in the writ petitions , was therefore , valid.
7. Appeals were filed against this Judgment.A
Division Bench of the Karnataka High Court dismissed the appeals holding that
Section 3 of the repealing Act of 1981 re- enacted the 1979 Act and that ,
therefore , the appellants were not well founded in their challenge against the
action taken by the State.
8. The learned Single Judge and the Division
Bench had to consider the effect of the two decisions of this Court for
deciding the questions argued before them. The decisions are the State of
Punjab v. Joginder Sinnh(1) and Makhanlal Waza v. J & K' State.(2) Strong
reliance was placed by the petitioners on Joginder Singh , s case and equally
strong reliance by the State on Makhanlal's case. The learned Single Judge and
the Division Bench understood the principle enunciated in the two decisions
differently. They were under the impression that the action taken by the State
would have been invalid , but for the saving provision contained in the
repealing Act , notwithstanding the Judgment in Hansa Corporation' case.
9. What falls for decision in these appeals
is the resolution of the conflict between the approach made by the learned
Single (l) [1963] 2 Suppl. S.C.R. 169.
(2) [l971] 3 S.C.R. 832.
666 Judge and the Division Bench to the two
cases referred to above and to examine the ratio of the two decisions , since ,
in our opinion , these appeals can be disposed of on the short ground whether
the Hansa Corporation Judgment validated the action taken by the State We will
now briefly set out the facts of the two cases:
In Juginder Singh's case , four employees who
were absorbed in Government service filed four separate writ petitions before
the High Court of Punjab challenging certain executive powers and rules as
being violative of Article 14 of the Constitution. All the four petitions were
allowed by the High Court by a common order by which the rules challenged were
struck down. The State of Punjab filed only one appeal before this Court
against this common order and that against Joginder Singh. At the hearing of
the appeal , a preliminary objection was raised on his behalf that the appeal
was incompetent since the State had not filed appeals against the three other
petitioners and that, therefore , any variation by this Court of the Judgment
in the appeal would result in inconsistent decisions in respect of the same
matter.
In Makhanlal's case , an order made by the
Government of Jammu and Kashmir providing for reservation of posts for certain
communities was challenged before this Court as violative of Article 16 of the
Constitution. This Court accepted the challenge and invalidated the promotions
of respondents 3 to 83 in that case. By its Judgment , this Court directed the
State Government to devise a scheme consistent with the constitutional
guarantee for reservation of appointment to posts and to pass appropriate orders.
The State Government instead of complying with the directions given by this
Court , attempted to circumvent the same by continuing those whose promotions
were invalidated , giving the posts a different name. The same petitioners
again moved this Court under Article 32 of the Constitution questioning the
action of the State Government. The State Government justified its action
contending that there were many persons who were not parties to the earlier
writ petitions and who had been promoted prior to and/or subsequent to this
Court's decision and that they were not bound by the earlier Judgment. This
contention was repelled by this Court. It was held that the law declared by
this Court was binding on the respondent State and its 667 Officers
irrespective of the fact whether those who would be affected by its
pronouncement were parties to the Judgment A or not.
10. Now we will see how the learned Single
Judge and the Division Bench understood the two Judgments of this Court.
The learned Single Judge extracted the
relevant portions from Joginder Singh's case and observed that the said
Judgment , according to him , settled two firm propositions which in his words
are as follows:
"(i) An appeal filed against only one
person, though his writ petition was disposed of by common order along with
other cases filed by others notwithstanding the fact that appeals arc not filed
against some cases , would be competent: and (ii) an order made by the Supreme
Court in such an a appeal would bind the parties to appeal and would not affect
the validity of the order made in the other cases." He , then ,
distinguished that case from the case before him by R stating thus:
"But that is not the position in these
cases. The precise question that arises for determination in these cases is
whether an Act of Legislature struck down by the High Court on certain grounds
is reversed by the Supreme Court and the Act declared to be constitutionally
valid , thereafter a validation Act is also passed rendering the Judgment of
the High Court in the other cases as ineffective , (sic). On that , the
enunciation made in Joginder Singh's case does not bear on the point and assist
the Petitioner.. " ,
11. After considering the facts of the Makhan
Lal's case , the learned Single Judge observed thus "This later
enunciation by a larger Bench however, without noticing the earlier decision in
Joginder Singh's 668 case , in unmistakable terms , has ruled that the
declaration made by it or enunciation made by it , is binding on all
authorities courts and persons whether they are parties or not.
Shri Srinivasan urged that the above
enunciation in Makhanlal Waza's case was made by the Supreme Court in the
context of a binding order made against Government and not against those who
were not parties to its earlier order and, therefore , the principles stated in
that case has no principles stated in that case has no application to the
question that arises for determination.
In my view the attempt made by Shri
Srinivasan to distinguish the enunciation made in Makhanlal Waza's case is
without a d difference and has no merit at all.
The enunciation made is not based on any such
distinction and difference.
On the application of the principles
enunciated in Makhanlal Waza's. case it follows that the declaration made by
the Supreme Court in Messrs Hansa Carporation's case upholding the validity of
the Act is binding on all Courts, authorities and persons in the State of
Karnataka notwithstanding the fact that the State had filed only one appeal and
had not filed appeals in the other cases.. " From the above discussion ,
it would appear that the learned Single Judge felt that Joginder Singh's case
indicated a different view.
12. Now we will see how the Division Bench
understood the above propositions. After considering the facts of the case and
extracting the relevant portions of this Court`s Judgments , the Division Bench
observed as follows:
"In our opinion , there is no conflict
between the aforesaid two decisions of the Supreme Court. As rightly pointed
out by Shri Srinivasan , in Makhanlal Waza's case, the decision. turned on the
fact that the direction in the earlier Judgment of the 669 Supreme Court was
made against the State Government and not against promotees who were not
parties in the earlier writ petition. The State Government which was a party in
the earlier writ petition , was bound by the Judgment of the Supreme Court
therein and could not disregard the direction of the Supreme Court on the
ground that the promotees were not parties in the earlier writ petition. Thus ,
the decision of the Supreme Court in Makhanlal Waza's case is distinguishable
on facts. As the material facts of the present cases are similar to those in
Joginder Singh's case, the law laid down by the Supreme Court in that case , is
squarely applicable to these cases." From the above conclusion , it
appears that the Division Bench felt that the law laid down in Joginder Singh's
case applied to the appeals before it and that the decision of the Supreme
Court in Makhanlal 's case was distinguishable on facts. As indicated above ,
the appeals were dismissed relying upon 1 Section 3 of the repealing Act of
1981.
13. We will now consider the submissions made
before us with reference to the above two decisions of this Court and examine
the correctness of the findings entered by the learned Single Judge and the
Division Bench.
The main thrust of the submission made by the
learned counsel for appellants in these appeals is that the writ of mandamus
issued by the High Court in their favour was effective since the Judgment in
their favour was not challenged by filing appeals before this court. It is
submitted that the law laid down by this Court would apply only against the
Hansa Corporation , against whom alone the State had filed an appeal- In support
of this contention the following passage at page 177 in Joginder Singh's case
was relied upon:
"All the four petitions were delt with
together and were disposed of by a common Judgment so that relief according to
Joginder Singh , the respondent before us , in Writ application No. 1559 of
1960 was also granted to the other three petitioners. The State , however , has
preferred no appeal against the orders in the other three 670 petitions , and
Mr. Agarwal , learned counsel for the respondent , raises the contention that
as the orders in the other three petitions have become final , any order passed
in this appeal at variance with the relief granted in the other three petitions
would create inconsistent degree in respect of the same matter and so we should
dismiss the present appeal as incompetent. We , however , consider that this
would not be the legal effect of any order passed by this Court in this appeal
and that there is no merit in this objection as a bar to the hearing of the
appeal. In our opinion , the true position arising , if the present appeal by
the State Government should succeed , would be that the finality of the orders
passed in the other three writ petitions by the Punjab High Court would not be
disturbed and that those three successful petitioners would be entitled to
retain the advantages which they had secured by the decisions in their favour ,
not being challenged by an appeal being filed. That however , would not help
the present respondent , The respondent would be bound by our Judgment in this
appeal and besides , so far as the general law is concerned as applicable to
everyone other than the three writ petitioners (who would be entitled to the
benefit of the decisions in their favour having attained finality), the law
will be as laid down by this Court. We , therefore, overrule the preliminary
objection. "
14. In our opinion , reliance on this passage
by the appellants in support of their contention is not justified.
The only question that fell to be decided in
Joginder Singh's case was whether the appeal filed by the State was competent
in the adsence of appeals against the other petitioners. This was answered by
the Court in the affirmative as follows:
".. We , however , consider that this
would not be the legal effect of any order passed by the Court in this appeal
and that there is no merit in this objection as a bar to the hearing of the
appeal." It is this observation that disposes of the preliminary objec-
671 tion and the finding of the Court on this objection is contained in the
above passage. The sentences that followed , relating to the effect of the
orders passed by the High Court in the other three writ petitions can only be
treated as obiter and therefore cannot be relied upon by the appellants to
press a case that the law declared by this Court in Hansa Corporation's case
did not bind them. B
15. The same principle is laid down in
Makhanlal Waza's case. In that case , the State of Jammu and Kashmir attempted
to circumvent the law declared by this Court in Trilok Nath and another v.
State of Jammu Kashmir and others(1) by which the State policy of reservation
to certain communities was declared bad by this Court with the plea that the
vice of that Judgment operated only so far as the parties to the Judgment was
concerned and not against those who were not parties thereto. This Court
repelled the contention and held as follows:
".. As regards the other respondent
teachers who did not figure in the earlier petition , they were all promoted to
the gazetted cadre prior and subsequent to the previous decision in complete
defiance of the law laid down by this Court. Such a course has been sought to
be justified on the tenuous ground that they were not parties to the previous
petition and therefore their cases would not be governed by the decision given
in that petition. It may be observed immediately that such a position is wholly
untenable and misconceived.
The Judgment which was delivered did not
merely declare the promotions granted to the respondents in the petition filed
at the previous Stage as unconstitutional but also laid down in clear and
unequivocal terms that the distribution of appointments , posts or promotions
made in implementation of the communal policy was contrary to the
constitutional guarantee of Articie 16. The law so declared by this Court was
binding on the respondent State and its officers and they were bound to follow
it whether a majority of the present respondents were parties or not to the
previous petition."
16. In our opinion , both these decisions lay
down identical (1) [1969] I S.C.R. 103.
672 principles and there is nothing to
distinguish between the two. In the earlier case , this Court , on its facts ,
overruled the preliminary objection that absence of appeals against the three
petitioners left out , would not render the appeal before this Court
incompetent , holding thereby that the effect of the decision in that appeal
would be binding on the appellant therein. In the latter case , this Court in
unmistakable terms laid down that the law laid down in the earlier case ,
namely , Triloknath's case , applied even to those who were not parties to the
case.
These two decision were given by two
Constitution Benches of this Court. We find that Joginder Singh's case was not
noted by the Bench that decided Makhanlal Waza's case. This does not create any
difficulty. As we have already held , the two decisions , on the principles
laid down by them , speak the same voice , i.e. that the law laid down by the
Supreme Court is binding on all , notwithstanding the fact that it is against
the State or a private party and that it is binding on even those who were not
parties before the Court. Since it is necessary to make the position of law
clear and free from ambiguity , we would set out our reasons for our conclusion
clearly.
17. Though a large number of writ petitions
were filed challenging the Act , all those writ petitions were grouped together
, heard together and were disposed of by the High Court by a common Judgment.
No petitioner advanced any contention peculiar or individual to his petition ,
not common to others. To be precise , the dispute in the cause or controversy
between the State and each petitioner had no personal or individual element in
it or anything personal on peculiar to each petitioner. The challenge to the
constitutional validity of 1979 Act proceeded on identical grounds common to
all petitioners. This challenge was accepted by the High Court by a common
Judgment and it was this common Judgment that was the subject matter of appeal before
this Court in Hansa Corporation's case. When the Supreme Court repelled the
challenge and held the Act constitutionally valid , it in terms disposed of not
the appeal in Hansa Corporation's case alone , but all petitions in which the
High Court issued mandamus on the none existent ground that the 1979 Act was
constitutionally invalid. It is , therefore , idle to contend that the law laid
down by this Court in that Judgment would bind only the Hansa Corporation and
not the other petitioners against whom the State of Karnataka had not filed any
appeal. To do so is to ignore the binding nature of a Judgment of this Court
under Article 141 of the Constitution.
673 Article 141 reads as follows: A "The
law declared by the Supreme Court shall be binding on all courts within the
territory of India " A mere reading of this Article brings into sharp
focus its expanse and its all pervasive nature. In cases like this , where
numerous petitions are disposed of by a common Judgment and only one appeal is
filed , the parties to the common Judgment could very well have and should have
intervened and could have requested the Court to hear them also. They cannot be
heard to say that the decision was taken by this Court behind their back or
profess a ignorance of the fact that an appeal had been filed by the State
against the common Judgment. We would like to observe that , in the fitness of
things , it would be desirable that the State Government also took out
publication in such cases to alert parties bound by the Judgment , of the fact
that an appeal had been preferred before this Court by them. We do not find
fault with the State for having filed only one appeal. It is , of course , an
economizing procedure.
18. The Judgment in the Hansa Corporation
case rendered by one of us (Desai , J.) concludes as follows "As we are
not able to uphold l the contentions which found favour with the High Court in
striking down the impugned Act and the notification issued thereunder and as we
find no merit in other contentions canvassed on behalf of the respondent for
sustaining the Judgment of the High Court , this appeal must succeed.
Accordingly , this appeal is allowed and the
Judgment of the High Court is quashed and set aside and the petition filed by
the respondent in the High Court is dismissed with costs throughout." To
contend that this conclusion applies only to the party before this Court is to
destroy the efficacy and integrity of the Judgment and to make the mandate of
Article 141 illusory. By setting aside the common Judgment of the High Court ,
the mandamus issued by the High Court is rendered ineffective not only in one
case but in all cases.
674 19.A writ or an order in the nature of
mandamus has always been understood to mean a command issuing from the Court ,
competent to do the same , to a public servant amongst others , to perform a
duty attaching to the office , failure to perform which leads to the initiation
of action. In this case , the petitioners-appellants assert that the mandamus
in their case was issued by the High Court commanding the authority to desist
or forbear from enforcing the provisions of an Act which was not validly
enacted. In other words, a writ of mandamus was predicated upon the view that
the High Court took that the 1979 Act was constitutionally invalid.
Consequently the court directed the authorities under the said Act to forbear
from enforcing the provisions of the Act qua the petitioners. The Act was
subsequently declared constitutionally valid by this Court.
The Act , therefore , was under an eclipse ,
for a short duration; but with the declaration of the law by this Court , the
temporary shadow cast on it by the mandamus disappeared and the Act revived
with its full figure , the constitutional invalidity held by the High Court
having been removed by the Judgment of this Court. If the law so declared
invalid is held constitutionally valid , effective and binding by the Supreme
Court , the mandamus for bearing the authorities from enforcing its provisions
would become ineffective and the authorities cannot be compelled to perform a
negative duty. The declaration of the law is binding on everyone and it is
therefore , futile to contend that the mandamus would survive in favour of
those parties against whom appeals were not filed.
20. The fallacy of the argument can be better
illustrated by looking at the submissions made from a slightly different angle.
Assume for arguments sake that the mandamus in favour of the appellants
survived notwithstanding the Judgment of this Court. How do they enforce the
mandamus ? The normal procedure is to move the Court in contempt when the
parties against whom man damus is issued disrespect it. Supposing contempt
petitions are filed and notices are issued to the State. The State's answer to
the Court will be: "Can I be punished for disrespecting the mandamus ,
when the law of the land has been laid down by the Supreme Court against the
mandamus issued , which law is equally binding on me and on you ?". Which
Court can punish a party for contempt under these circumstances ? The answer
can be only in the negative because the mandamus issued by the High Court
becomes ineffective 675 and unenforceable when the basis on which it was issued
falls , by the declaration by the Supreme Court , of the validity of 1979 Act.
21. In view of this conclusion of ours , we
do not think it necessary to refer to the other arguments raised before the
High Court and which the learned counsel for the appellants attempted to raise
before us also. The appeals can be disposed of on this short point stated
above. The Judgment of this Court in the Hansa Corporation's case is binding on
all concerned whether they were parties to the Judgment or not. We would like
to make it clear that there is no inconsistency in the finding of this Court in
Joginder Singh's case and Makhanlal Waza's case. The ratio is the same and the
appellants cannot take advantage of certain observations made by this Court in
Joginder Singh's case for the reasons indicated above.
22. In the writ petitions the challenge is
against Section 7 of Act No. 10 of 1981 and they contain certain other prayers
also. We do not think it necessary to deal with the contentions raised in them
since it would be an unnecessary exercise , in view of the revival of the
parent Act of 1979 by the Judgment of this Court.
23. In the result , the appeals and the writ
petitions are dismissed with costs; cost quantified at Rs. 2,000 in each case.
S.R. Appeals & Petitions dismissed.
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