Case-1-Meaning of the term “vest”- Howrah Municipal Corpn. & Others vs Ganges Rope Co. Ltd. & Others on 19 December, 2003 (SC)

The word ‘vest’ is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word ‘vest’ has also acquired a meaning as “an absolute or indefeasible right” [See K.J. Aiyer’s ‘Judicial Dictionary’ (A complete Law Lexicon), Thirteenth Edition].

Emphasis Supplied

Case-2-Mening of Term “Vested”-Mosammat Bibi Sayeeda & Ors. Etc vs The State Of Bihar & Ors. Etc on 25 April, 1996 Equivalent citations: 1996 AIR 1936, JT 1996 (4) 637

The word ‘vested” is defined in Black’s Law Dictionary [6th Edn.] at page 1563 as “Vested. Fixed; accrued; settled; absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent” Rights are “vested” when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing law, does not constitute vested rights. In Webster’s Comprehensive Dictionary, [International Edn.] at Page 1397 ‘vested” is defined as “[L]aw held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interests”.

Emphasis Supplied

Case-3-Vested right is a right independent of any contingency-J.S.Yadav vs State Of U.P & Anr on 18 April, 2011

Thus, “vested right” is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law.

The Supreme Court further observed that

In Union of India & Ors. V. Tushar Ranjan Mohanty & Ors., (1994) 5 SCC 450, this Court declared the amendment with retrospective operation as ultra vires as it takes away the vested rights of the petitioners therein and thus, was unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution. While deciding the said case, this Court placed very heavy reliance on the judgment in P.D. Aggarwal & Ors. v. State of U.P. & Ors., AIR 1987 SC 1676, wherein this Court has held as under:

“…the Government has power to make retrospective amendments to the Rules but if the Rules purport to take away the vested rights and are arbitrary and not reasonable then such retrospective amendments are subject to judicial scrutiny if they have infringed Articles 14 and 16 of the Constitution.”

Emphasis Supplied

Case-4- Right to take advantage of an enactment is not a vested right- Thyssen Stahlunion Gmbh Etc vs Steel Authority Of India Ltd on 7 October, 1999 (SC)

Right to take advantage of an enactment is not a vested right. One cannot have mere abstract right but only accrued right. Until award is made no party has an accrued right. Till the award is made nobody knows his rights.

The Supreme Court further held that

In Abbott v. The Minister for Lands, (1895) AC 425 PC the Court said that “the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a `right accrued’ within the meaning of the usual saving clause.” The appellant had contended that under the repealed enactment he had a right to make the additional conditional purchase, and this was a “accrued right” at the time the Crown Lands Act of 1884 was passed and that notwithstanding the repeal it remained unaffected by such repeal. The 1884 Act had repealed earlier Crown Lands Act of 1861. The Board observed :

“It has been very common in the case of repealing statute to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far- reaching.

It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a “right”. But the question is whether it is a “right accrued” within the meaning of the enactment which has to be construed.

Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words “obligations incurred or imposed”. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a “right accrued” within the meaning of the enactment. Even if the appellant could establish that the language of sec. 2(b) was sufficient’ to reserve to him the right for which he contends, he would have to overcome further difficulties. That enactment only render’s “rights accrued” unaffected by the repeal “subject to any express provisions of this Act in relation thereto”.

Emphasis Supplied

Case-5- The mere right to take advantage of the provisions of an Act is not accrued right –Hungerford Investment Trust … vs Haridas Mundhra & Others on 9 March, 1972 Equivalent citations: 1972 AIR 1826, 1972 SCR (3) 690

The mere right to take advantage of the provisions of an Act is not accrued right.

Case-6- The provisions of a repealed statute cannot be relied upon after it has been repealed. But what has been acquired under the Repealed Act cannot be disturbed-D.C. Bhatia And Ors. vs Union Of India (Uoi) And Anr. on 19 October, 1994 Equivalent citations: JT 1994 (7) SC 114, 1994 (4) SCALE 613, (1995) 1 SCC 104, 1994 Supp 4 SCR 539

It was observed by Tindal, C.J., in the case of Kay v. Goodwin (1830) 6 Bing. 576, 582:

The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.

53. The provisions of a repealed statute cannot be relied upon after it has been repealed. But, what has been acquired under the Repealed Act cannot be disturbed. But, if any new or further step is needed to be taken under the Act, that cannot be taken even after the Act is repealed.

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Case-7- If legislature considered in its wisdom to confer certain rights or facilities on the tenants, it could due to changed circumstances curtail, modify, alter or even take away such rights -Kewal Singh vs Lajwanti on 4 October, 1979 Equivalent citations: 1980 AIR 161, 1980 SCR (1) 854

Thus any right that the tenant possessed after the expiry of the lease was conferred on him only by virtue of the Rent Control Act. It is, therefore, manifest that if the legislature considered in its wisdom to confer certain rights or facilities on the tenants, it could due to changed circumstances curtail, modify, alter or even take away such rights or the procedure enacted for the purpose of eviction and leave the tenants to seek their remedy under the common law.

Emphasis Supplied

Case-8-Vested Right or Settled Expectation vis-a-vis-Public Interest Or right of Particular Person- Howrah Municipal Corpn. & Others vs Ganges Rope Co. Ltd. & Others on 19 December, 2003 (SC)

What we can understand from the claim of a ‘vested right’ set up by the respondent-company is that on the basis of Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the court for its consideration, it had a ‘legitimate’ or ‘settled expectation’ to obtain the sanction. In our considered opinion, such ‘settled expectation’, if any, did not create any vested right to obtain sanction. True it is that the respondent-company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such ‘settled expectation’ has been rendered impossible of fulfillment due to change in law. The claim based on the alleged ‘vested right’ or ‘settled expectation’ cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such ‘vested right’ or ‘settled expectation’ is being sought to be enforced. The ‘vested right’ or ‘settled expectation’ has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a ‘settled expectation’ or so-called ‘vested right’ cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon.

In the matter of sanction of buildings for construction and restricting their height, the paramount consideration is public interest and convenience and not the interest of a particular person or a party.

Emphasis Supplied

Case-1- If a person has set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than he in his turn got the statute declared unconstitutional, and got a favorable decision-Tilokchand Motichand & Ors vs H.B. Munshi & Anr on 22 November, 1968 Equivalent citations: 1970 AIR 898

The question is: can the petitioner in this case take advantage, after a lapse of a number of years, of the decision of this Court? He moved the High Court but did not come up in appeal to this Court. His contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within his knowledge and therefore he did not know of it and pursue it in this Court. To that I answer that law will presume that he knew the exact ground of unconstitutionality. Everybody is presumed to know the law. It was his duty to have brought the matter before this Court for consideration. In any event, having set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than he in his turn got the statute declared unconstitutional, and got a favorable decision. If I were to hold otherwise, then the decision of the High Court in any case once adjudicated upon and acquiesced it may be questioned in a fresh litigation revived only with the ‘argument, that the correct position was not known to the petitioner at the time when he abandoned his own litigation. I ,agree with the opinion of my brethren Bachawat and Mitter, JJ. that there is no question here of a mistake of law entitling the petitioner to invoke analogy of the Article in the Limitation Act. The grounds on which he moved the Court might well have impressed this Court which might have also have decided the question of the unconstitutionality of the Act as was done in the subsequent litigation by another party. The present petitioner should have taken the right ground in the High Court and taken it in appeal to this Court after the High Court decided against it. Not having done so and having abandoned his own litigation years ago, I do not think that this Court should apply the analogy of the Article in the Limitation Act and give him the relief now.

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Case-2-Can an order passed earlier by an authority be rectified on the basis of subsequent decision of Jurisdictional High Court or Supreme Court- M/S Mepco Industries Ltd.Madurai vs Commr.Of Income Tax & Anr on 19 November, 2009

The Supreme Court dealt with the decision in the matter of Kil Kotagiri Tea and Coffee Estates Company Limited vs. Income Tax Appellate Tribunal & Ors., reported in [1988] 174 I.T.R.579

In Kil Kotagiri Tea and Coffee Estates Company Limited vs. Income Tax Appellate Tribunal & Ors., reported in [1988] 174 I.T.R.579, the facts were as follows: the assessee claimed interest on advance tax paid by it in excess but beyond the due dates. The Income Tax Officer disallowed the claim of the assessee. The Commissioner of Income Tax upheld the claim of the assessee. Following the decision of a learned Single Judge of the Kerala High Court in A. Sethumadhavan vs. Commissioner of Income Tax [1980] 122 I.T.R.587, the Tribunal held that belated payments were not to be taken into account as advance tax for the purpose of Section 214 of the Income Tax Act, and, therefore, interest was not admissible for such belated payments. However, subsequently, a Division Bench of the same High Court in Santha S. Shenoy vs. Union of India [1982] 135 I.T.R.39, reversed the decision of the learned Single Judge in A. Sethumadhavan (supra) and held that payment of tax made within the financial year, though not within specified dates, should be treated as advance tax and, consequently, the assessee was entitled to interest on excess tax paid. The assessee filed an application under Section 154 of the Act for rectification of the order of the Tribunal in view of the later decision in Santha S. Shenoy (supra). On the facts of that case, the Kerala High Court came to the conclusion that the rectification contemplated under Section 154 must be a `rectifiable mistake’ which is a mistake in the light of the law in force at the time when the order sought to be rectified was passed.

The Supreme Court held that Kerala High Court in the above decision laid down a principle of law-

The Kerala High Court also examined the judgement of the Calcutta High Court in Jiyajeerao Cotton Mills Limited (supra) and held that the said decision was distinguishable. The High Court laid down a principle of law, which was applicable across the board, namely, payment of advance tax made within the financial year, though not within the specified dates, should be treated as advance tax and, therefore, the assessee was entitled to interest on excess tax paid. The judgement in Kil Kotagiri Tea and Coffee Estates Company Limited (supra) is not applicable to the facts of the present case, as stated above.

The Supreme Court dealt with the decision in the matter of Jiyajeerao Cotton Mills Limited vs. Income Tax Officer, Calcutta & Ors., reported in [1981] 130 I.T.R. 710

Calcutta High Court in the case of Jiyajeerao Cotton Mills Limited vs. Income Tax Officer, Calcutta & Ors., reported in [1981] 130 I.T.R. 710. In that case, the appellant- assessee derived profits from three industries, one of which qualified for special rebate under Part-I of Schedule-I to the Finance Act, 1965, for the Assessment Year 1966-1967. In granting this special rebate, the Income Tax Officer computed the profits attributable to that industry without deducting development rebate granted to the appellant. The Income Tax Officer sought to rectify the mistake under Section 154 of the Act by re- computing the profits by deducting the development rebate. The appellant filed a writ petition for setting aside the notice of rectification. It was held by the Calcutta High Court that since there was conflict of opinion on computation of profits of priority industry for granting tax relief which conflict was resolved by the Supreme Court later on for the subsequent Assessment Year 1967- 1968, such subsequent decision of the Supreme Court did not obliterate the conflict of opinion prior to it. It was held that, under Section 154 of the Act, rectification was not permissible on debatable issue.

It was finally held by the Supreme Court-

On the facts of the present case, we are of the view that the present case involves change of opinion. In this connection, it must be noted that Government grants different types of subsidies to the entrepreneurs. The subsidy in Sahney Steel and Press Works Limited (supra) was an incentive subsidy linked to production. In fact, in Sahney Steel and Press Works Limited (supra) [at page 257], this Court categorically stated that the Scheme in hand was an incentive Scheme and it was not a Scheme for setting up the industries. In the said case, the salient features of the Scheme were examined and it was noticed that the Scheme formulated by the Government of Andhra Pradesh was admissible only after the commencement of production. In Income Tax matters, one has to examine the nature of the item in question, which would depend on the facts of each case. In the present case, we are concerned with power subsidy whereas in the case of Commissioner of Income Tax vs. Ponni Sugars and Chemicals Limited, reported in [2008] 306 I.T.R.392, the subsidy given by the Government was for re-paying loans. Therefore, in each case, one as to examine the nature of subsidy. This exercise cannot be undertaken under Section 154 of the Act. There is one more reason why Section 154 in the present case was not invokable by the Department. Originally, the Commissioner of Income Tax, while passing orders under Section 264 of the Act on 30th April, 1997, had taken the view that the subsidy in question was a capital receipt not taxable under the Act. After the judgement of this Court in Sahney Steel and Press Works Limited (supra), the Commissioner of Income Tax has taken the view that the subsidy in question was a revenue receipt. Therefore, in our view, the present case is a classic illustration of change of opinion.

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Case-3- Subsequent to the order, the jurisdictional High Court or their Lordships of the Supreme Court interpret the same provision and take a contrary view. The apparent effect of the judgment interpreting the provision is that the view taken by the authority is rendered erroneous. It is not in conformity with the provision of the statute. Thus, there is a mistake-CIT v. Smt.Aruna Luthra, (2001) 252 ITR 76 (P & H)

In a given case, on interpretation of a provision, an authority can take a view in favour of one of the parties. Subsequent to the order, the jurisdictional High Court or their Lordships of the Supreme Court interpret the same provision and take a contrary view. The apparent effect of the judgment interpreting the provision is that the view taken by the authority is rendered erroneous. It is not in conformity with the provision of the statute. Thus, there is a mistake. Should it still be perpetuated? If the contention raised on behalf of the assessee were accepted, the result would be that even though the order of the authority is contrary to the law declared by the highest Court in the state or the country, still the mistake couldn’t be rectified for the reason that the decision is subsequent to the date of the order.”

The Full Bench of Punjab and Haryana High Court Held that

“If the issue of error in the order is to be examined only with reference to the date on which it was passed, it may be possible to legitimately contend that it was legal on the date on which it was passed. The subsequent decision has only rendered it erroneous or illegal. However, there was no error much less than an apparent error on the date of its passing. Thus, provision of s. 154 is not applicable. However, such a view shall be possible only if the provision were to provide that the error has to be seen in the order with reference to the date on which it was passed. Such words are not there is the statute. Resultantly, such a restriction cannot be introduced by the Court. Thus, the contention raised by the counsel for the assessee cannot be accepted”.

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Case-1-The mere fact that order is a subject a matter of further appeal can furnish no ground for not following it unless its operation has been suspended by a competent court-Union Of India And Others vs Kamlakshi Finance Corporation … on 24 September, 1991-Equivalent citations: AIR 1992 SC 711, 1994 (46) ECC 129, 1991 ECR 486 SC, 1991 (55) ELT 433 SC, JT 1992 (1) SC 85, 1991 (2) SCALE 635, (1992) 1 SCC 648, 1992 Supp (1) SCC 443, 1991 (2) UJ 617 SC

The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not “acceptable” to the department – in itself an objectionable phrase – and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws.

                                                                                                            Emphasis Supplied

Case-2- As is well-known, mere filing of an appeal does not operate as a stay or suspension of the order appealed against-Collector Of Customs, Bombay vs M/S. Krishna Sales (P) Ltd. on 9 September, 1993 Equivalent citations: AIR 1994 SC 1239, 1994 (73) ELT 519 SC, 1993 (4) SCALE 228, 1994 Supp (3) SCC 73

According to the said para 4, the goods will not be released even where the party succeeds in cases where the customs authorities decide to go in appeal before the Tribunal or the Supreme Court. They will consider the issuance of such certificate only after the decision of the Tribunal or the Supreme Court, as the case may be. The learned Counsel for the respondent characterises the said direction as arbitrary and contrary to law. We see the force in his submission. If the authorities are of the opinion that the goods ought not to be released pending the appeal, the straight-forward course for them is to obtain an order of stay or other appropriate direction from the Tribunal or the Supreme Court, as the case may be. Without obtaining such an order they cannot refuse to implement the order under appeal. As is well-known, mere filing of an appeal does not operate as a stay or suspension of the order appealed against. Moreover, such detention is likely to create several complications relating to the demurrage charges besides the possible deterioration of the machinery and goods. We hope and trust that the Collector of Customs, Bombay shall appropriately revise the said public notice in the light of the observations made herein. If he does not do so, there is a likelihood of the customs authorities being themselves made liable for demurrage charges in appropriate cases.

Emphasis Supplied

Case-3-The mere filing of an appeal against the order of the appellate authority, and the pendency of the said appeal, cannot be shown as sufficient grounds for not giving effect to the order of the Commissioner of Customs (Appeals), dated 16.9.2011. M/S. Supra Bio-Tech vs 3 The Additional Commissioner on 24 January, 2012-(Mad HC)

17. The mere filing of an appeal against the order of the appellate authority, and the pendency of the said appeal, cannot be shown as sufficient grounds for not giving effect to the order of the Commissioner of Customs (Appeals), dated 16.9.2011. Even though the National Centre for Mass Spectrometry, Indian Institute of Chemical Technology, Hyderabad, had by its communication, dated 9.12.2010, had opined that the samples of the goods imported sent to it, did not show any presence of pesticides or Oxymatrine, the refusal of the respondents to release the goods in question cannot be held to be valid in the eye of law.

Emphasis Supplied

Case-4-Order of CESTAT to be followed unless stay obtained by the Department against the order-Pushpanjali Silks Private Ltd., Vs. CC of Customs and another- W.P.No.9284 of 2006 (Mad HC)

Considering the above submissions made by the learned counsel for the petitioner as well as the Additional Solicitor General, I am of the view that the third respondent is duty bound to implement the orders passed by the Appellate Authority and he cannot flout the orders by not releasing the goods covered by the Bill of Entry in question. As laid down by the Hon’ble Supreme Court in 1991 (55) E.L.T. 433 judicial discipline would require that the authorities are bound by the decision of the Tribunal or the Appellate Authority. Admittedly, though the CESTAT pronounced Final Order No.174/2006 dated 20.3.2006, the Revenue has not so far obtained any order from the CESTAT suspending the operation of the said order. It is not the case of the Revenue that the order of the CESTAT has been stayed by the Hon’ble Supreme Court of India. Therefore, I am of the view that the principle laid down by the Apex Court of the land in 1991 (55) E.L.T. 433 has to be applied and the third respondent should follow unreservedly the orders of the CESTAT, Chennai.

Emphasis Supplied

Case- Question of applicability of provisions struck down by another High Court unless the Supreme Court upsets the order or stays the operation of Order-Dr.T.Rajakumari vs The Government Of Tamil Nadu on 3 August, 2016-(Mad HC)

The accepted undisputed position is that the Hon’ble Supreme Court has not stayed the operation of the Delhi High Court order dated 17.02.2016 striking down Section 2(p) of Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Act (hereinafter called ”PNDT Act”). Consequently, Rule 3(3)(1)(b) of the PNDT Act have also been struck down as ultra vires the Act.

3.In view of the aforesaid position, it is accepted that the law would be finally laid down by the Hon’ble Supreme Court and thus there is no point in keeping this petition pending and whatever the declaration of law by the Hon’ble Supreme Court would be equally applied. The only question is as to what would happen till the Hon’ble Supreme Court examines the issue. In this behalf, if the Hon’ble Supreme Court had stayed or would stay the operation of the Judgment, then only could those provisions struck down again come in force.

4. It is trite to say that once a High Court has struck down the provisions of the Central Act, it cannot be said that it would be selectively applied in other States. Thus, there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon’ble Supreme Court upsets the Judgment or stays the operation of the Judgment.

Emphasis Supplied

Case-1- Decision of one High Court is not binding on the Other High Court but has a persuasive value-Pradip J. Mehta vs Commissioner Of Income … on 11 April, 2008

Judicial decorum, propriety and discipline required that the High Court should, especially in the event of its contra view or dissent, have discussed the aforesaid judgments of the different High Courts and recorded its own reasons for its contra view. We quite see the fact that the judgments given by a High Court are not binding on the other High Court(s), but all the same, they have persuasive value. Another High Court would be within its right to differ with the view taken by the other High Courts but, in all fairness, the High Court should record its dissent with reasons therefor. The judgment of the other High Court, though not binding, have persuasive value which should be taken note of and dissented from by recording its own reasons.

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Case-2-There is nothing in the law which exalts the ratio of the decisions of the another High Court to the status of a binding law, nor could the ratio decidendi of those decisions be perpetuated by invoking the doctrine of Stare decisis-Valliamma Champaka Pillai vs Sivathanu Pillai And Ors on 24 August, 1979 Equivalent citations: 1979 AIR 1937, 1980 SCR (1) 354

There is nothing in the States Reorganisation Act, 1956 or any other law which exalts the ratio of the decisions of the Travancore High Court to the status of a binding law, nor could the ratio decidendi of those decisions be perpetuated by invoking the doctrine of Stare decisis. At best, they have a persuasive effect and not the force of binding precedents on the Madras High Court.

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Case-3-Whether Income Tax Officer refuse to modify its order of in light of decision of another high court -Consolidated Pneumatic Tool Co. … vs Commissioner Of Income-Tax on 15 September, 1993 Equivalent citations: 1994 209 ITR 277 Bom

In view of the above decision of this court, we are of the clear opinion that the Income-tax Officer was justified in holding that the decision of the Calcutta High Court is not a binding precedent for courts, authorities or tribunals outside its territorial jurisdiction and on that basis the Income-tax Officer was right in refusing to modify its order in the light of the decision of the Calcutta High Court.

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Case-4-There is no binding precedent of decision of one high court on other High Courts or on any subordinate Courts or tribunals falling within the jurisdiction of other high court- CIT vs. Thana Electricity Supply Co. Ltd. (1994) 206 ITR 727 (Bom)

The decision of one High Court is neither binding precedent for another High Court nor for Courts or tribunals outside its own territorial jurisdiction. It is well-settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the Court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court, it may, at best, have only persuasive effect. By no amount of stretching of the doctrine of stare decisis, can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Courts or tribunals within their territorial jurisdiction are concerned. Any such attempt will go counter to the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. The fact that there is only one decision of any one High Court on a particular point or that a number of different High Courts have taken identical views in that regard is not at all relevant for that purpose. Whatever may be the conclusion, the decisions cannot have the force of binding precedent on other High Courts or on any subordinate Courts or tribunals within their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all Courts in the country by virtue of Art. 141 of the Constitution.

Emphasis Supplied

Case-5-Statement of the law by a Division Bench of a High Court is considered binding on a Division Bench of the same or lesser number of Judges of the same High Court-Union Of India & Anr vs Raghubir Singh (Dead) By Lrs. Etc on 16 May, 1989 Equivalent citations: 1989 AIR 1933, 1989 SCR (3) 316

There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative there to, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.

The Hon’ble Court further observed that

And in Mattulal v. Radhe Lal, [1975] 1 SCR 127 this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be, preferred over the deci- sion of a Division Bench of a smaller number of Judges. This Court also laid down in Acharaya Maharajshri Narandrapra- sadji AnandprasadjiMaharaj etc. etc. v. The State of Gujarat & Ors., [1975] 2 SCR 317 that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or other-wise of the views of the other. The principle was reaffirmed in Union of India & Ors. v. Godfrey Philips India Ltd., [1985] 4 SCC 369..

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Case-6-Law declared by highest court in the State is binding on authorities or tribunals under its superintendence-East India Commercial Co. Ltd. v. Collector of Customs (AIR 1962(SC) 1893 (at p.1905)

We, therefore, hold that the law declared by the highest court in the State is binding on authorities or Tribunals under its superintendence, and they cannot ignore it…….

Case-7-It is implicit in the power of supervision conferred on a superior Tribunal that all the Tribunal subject to its supervision should conform to the law laid down by it- Baradakanta Mishra v. Bhimsen Dixit (AIR 1972 SC 2466)

It would be anomalous to suggest that a Tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a Tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior Tribunal that all the Tribunal subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer.

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Case-8-Requirement of Judicial Decorum-Mahadeolal Kanodia v. Administrator General of West Bengal(AIR 1960 SC 936) (at p.941)

“Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another’s decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view, the result would be utter confusion. The position would be equally bad where a judge sitting singly in the High Court is of opinion that the previous decision of another single judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench.”

Case-9-Binding Precedent of Judgement of another high court in case of provisional assessment rather than regular assessment-Siemens India Ltd. And Another vs K. Subramanian, Ito, Companies … on 30 March, 1982 Equivalent citations: (1983) 34 CTR Bom 23, 1983 143 ITR 120 Bom, 1983 13 TAXMAN 146 Bom

Where a High Court of another State has decided a point and the same point arises in the making of a provisional assessment, in my opinion, it is not open to the ITO to ignore that decision, whatever may be the position in the making of a regular assessment, for, in a provisional assessment, an assessee has no opportunity to satisfy the ITO about the correctness of that decision.

The High Court further observed that

The question is of the extent and nature of the powers of an ITO while making a provisional assessment in a summary manner. If the Tribunal has decided a case in a particular way and the same point arises in a provisional assessment, it is implicit from the nature of a provisional assessment that the ITO should not take a different view, because there is no opportunity to the assessee to convince the ITO why he should not take a view different from that taken by the Tribunal and no remedy is open to him to correct the view taken by the ITO. Whether what has been stated in Salmond on Jurisprudence would apply to regular assessments is not a question with which I am concerned, but it is not open to the ITO while making a provisional assessment to depart from the view taken by the Tribunal and strike out on a line of his own to the prejudice of the assessee.

                                                                                                            Emphasis Supplied

Case-10-Where section was already declared ultra vires by a competent High Court in the country and an authority like an Income-tax Tribunal acting anywhere in the country has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision of any other High Court on that question-

In view of this clear pronouncement of the Supreme Court, it is not controverted by Mr. Joshi on behalf of the revenue that an Income-tax Tribunal sitting at Madras is bound to proceed on the footing that section 140A(3) of the Act is non-existent in view of the pronouncement of the Madras High Court in the case of A.M. Sali Maricar [1973] 90 ITR 116. Actually, the question of authoritative or persuasive decision does not arise in the present case because a Tribunal constituted under the Act has no jurisdiction to go into the question of constitutionality of the provisions of that statute. It should not be overlooked that the Income-tax Act is an All-India statute and if an Income-tax Tribunal in Madras, in view of the decision of the Madras High Court, has no proceed on the footing that section 140A(3) was non-existent, the order of penalty thereunder cannot be imposed by the authority under the Act. Until contrary decision is given by any other competent High Court, which is binding on a Tribunal in the State of Bombay, it has to proceed on the footing that the law declared by the High Court, though of another State, is the final law of the land. When the Tribunal set aside the order of penalty it did not go into the question of intra vires or ultra vires. It did not go into the question of constitutionality of section 140A(3). That section was already declared ultra vires by a competent High Court in the country and an authority like an Income-tax Tribunal acting anywhere in the country has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision of any other High Court on that question. It is admitted before us that at the time when the Tribunal decided the question, no other High Court in the country had taken a contrary view on the question of constitutionality of section 140A(3). That being the position, it is not possible for us to take the view that the Tribunal in Bombay, when it set aside the order of penalty, went into the question of the constitutionality of that section and gave a finding that it is ultra vires following the decision of the Madras High Court. What the Tribunal really did was that in view of the law pronounced by the Madras High Court it proceeded on the footing that section 140A(3) was non-existent and so the order of penalty passed thereunder cannot be sustained.

                                                                                                            Emphasis Supplied

Definition from Nolo’s Plain-English Law Dictionary

A doctrine of interpretation by which a court finds that qualifying words or phrases refer to the language immediately preceding the qualifier, unless common sense shows that it was meant to apply to something more distant or less obvious.

For example, in the phrase “the commercial vehicular license shall not apply to boats, tractors, and trucks under three tons,”

The qualifier “under three tons” applies only to trucks and not to boats or tractors.

How the Rule of Last Antecedent has been applied under various Judgements

Case-1-The Irrawaddy Flotilla Company vs Bugwandas (1891) ILR 18CAL620

“But nothing herein contained shall affect the provisions of any Statute, Act, or Regulation not hereby expressly repealed, nor any usage or custom of trade, nor any incident of any contract not inconsistent with the provisions of tins Act.”

Their Lordships may observe in passing, and indeed it was admitted by the learned Counsel for the appellants, that the words “not inconsistent with the provisions of this Act” are not to be connected with the clause “nor any usage or custom of trade.” Both the reason of the thing and the grammatical construction of the sentence, if such a sentence is to be tried by any rules of grammar, seem to require that the application of those words should be confined to the subject which immediately precedes them.

                                                                                                  Emphasis Supplied

Case-2-Mahadeolal Kanodia vs The Administrator-General … on 20 April, 1960 Equivalent citations: 1960 AIR 936, 1960 SCR (3) 578

Relevant Extract of the Provision is as follows:

Provided that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the provisions of s. 9, also apply and be deemed to have always applied to all suits, appeals and proceedings pending-

The Supreme Court held that

We are unable to see how it is possible, unless rules of grammar are totally disregarded to read the words as amended by this Act ” as to qualify the word provisions.” If ordinary grammatical rules are applied there is no escape from the conclusion that the adjectival phrase ” as amended by this Act ” qualifies the proximate substantive, viz., the Calcutta, Thika Tenancy Act, 1949. There is no escape from the conclusion therefore that what the Legislature was saying by this was nothing more or less than that the provisions of the amended Thika Tenancy Act shall apply.

Emphasis Supplied

Case-3- Aswini … vs Arabinda Bose And Another on 27 October, 1952 Equivalent citations: 1952 AIR 369, 1953 SCR 1

Section 2 of Supreme Court Advocates (Practice in High Courts) Act, 1951, provided that

“Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may, be permitted to practise in that High Court every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court

The Supreme Court held that

Much ado was made an both sides ;about the coma occurring just before the word ” or ” in the non obstante clause, the petitioner stressing its importance as showing that the adjectival clause ” regulating the conditions etc.” does not qualify the words ” Indian Bar Councils Act ” which are separated by the comma and that, therefore, the whole of that Act is superseded, while learned counsel for the respondents insisted that in construing a statute punctuation marks should be left out of consideration. Nothing much we think, turns the comma, as it seems I grammatically more correct to take the adjectival clause as qualifying ” law “. Having ‘regard to the words anything contained” and the preposition “in” used after the disjunctive “or”, the qualifying clause cannot reach back to the words ” Bar Councils Act “.

                                                                                                 Emphasis Supplied

Case-4-The Governor General In Council vs Shiromani Sugar Mills Limited (In … on 11 March, 1946 Equivalent citations: (1946) 48 BOMLR 483

Section 226 must however be considered in the light of decided cases and of the facts of this case. The section runs as follows:-

• Until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage arid practice of the country or the law for the time being in force.

The Supreme Court observed that

if so, do the last words of the sub-section “according to the usage and practice of the country or the law for the time being in force ” qualify ” original jurisdiction in any matter concerning the revenue ” as well as ” concerning any act ordered or done in the collection thereof ?

The Supreme Court held that

we are satisfied that grammatically the last words of the subsection in question can only qualify the words immediately preceding “concerning any act done or ordered in the collection thereof

                                                                                      Emphasis Supplied

Case-5-Siemens Engineering & … vs Union Of India & Anr on 30 April, 1976 Equivalent citations: 1976 AIR 1785, 1976 SCR 489

“72(3) Component parts of machinery as defined in Item Nos. 72, 72 ( 1 ) and 72 (2) and not otherwise specified, essential for the working of the machine or apparatus and have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose but excluding small tools like twist drills and reamers, dies and taps, gear cutters and hacksaw blades:

The Supreme Court held that

 It seeks to read the words “not otherwise specified” as qualifying “component parts” but that is plainly incorrect as a matter of both grammar and language. Structurally, the conjunction ‘and’ joins the two clauses “as defined in Item Nos. 72, 72(1) and 72(2)” and “not otherwise specified” and since the former qualifies ‘machinery’, the latter also must be read as doing the same duty. What Item 72(3) contemplates are component parts of that machinery which is defined in Item Nos. 72, 72(1) and 72(2) and which is `not otherwise specified. The words ‘not otherwise specified’ do not qualify “component parts”: they qualify machinery’. Otherwise, the conjunction ‘and’ would have no meaning. In fact, the sentence would become ungrammatical if the words “not otherwise specified” were read to govern “component parts”.

Emphasis Supplied

Case-1-The right to carry away the fish is a benefit arising out of land because it is a right to take some profit of the soil for the use of the owner of the right- Ananda Behera And Another vs The State Of Orissa And Another on 27 October, 1955 Equivalent citations: 1956 AIR 17, 1955 SCR (2) 919

The facts disclosed in paragraph 3 of the petition make it clear that what was sold was the right to catch and carry away fish in specific sections of the lake over a specified future period. That amounts to a license to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre: see 11 Halsbury’s Laws of England, (Hailsham Edition), pages 382 and 383. In England this is regarded as an interest in land (11 Halsbury’s Laws of England, page 387) because it is a right to take some profit of the soil for the use of the owner of the right (page 382). In India it is regarded as a benefit that arises out of the land and as such is immoveable property

                                                                                                             Emphasis Supplied

Case-2-Benefits to arise out of land means profits a prendre, rights of fishery and the like-Paresh Nath Singha vs Nabogopal Chattopadhya on 31 July, 1901 Equivalent citations: (1902) ILR 29 Cal 1

“By the expression “benefits to arise out of land” in Section 3(5) of the General Clauses Act are meant profits a prendre, rights of fishery and the like”.

                                                                                                            Emphasis Supplied

Case-3-FSI/TDR being a benefit arising from the land, consequently must be held to be immovable property-Sadoday Builders Private Ltd vs The Jt.Charity Commissioner on 23 June, 2011

Can FSI/TDR be said to be a benefit arising from the land. Before answering that issue We may refer to some judgments for that purpose. In Sikandar and Ors. v. Bahadur and Ors. XXVII Indian Law Reporter, 462, a Division Bench of the Allahabad High Court held that right to collect market dues upon a given piece of land is a benefit arising out of land within the meaning of Section 3 of the Indian Registration Act, 1877. A lease, therefore, of such right for a period of more than one year must be made by registered instrument. A Division Bench of the Oudh High Court in Ram Jiawan and Anr. v. Hanuman Prasad and Ors. AIR 1940 Oudh 409 also held, that bazar dues, constitute a benefit arising out of the land and therefore a lease of bazar dues is a lease of immovable property. A similar view has been taken by another Division Bench of the Allahabad High Court in Smt. Dropadi Devi v. Ram Das and Ors. on a consideration of Section 3(26) of General Clauses Act. From these judgments what appears is that a benefit arising from the land is immovable property. FSI/TDR being a benefit arising from the land, consequently must be held to be immovable property and an Agreement for use of TDR consequently can be specifically enforced, unless it is established that compensation in money would be an adequate relief.

                                                                                                                         Emphasis Supplied

Case-4- The authorization given to a “Developer” to develop the land and sell super-structure in perpetuity shall undisputedly fall within the words “benefit arising out of the land”-Chheda Housing Development Corpn Vs. Bibijan Shaikh 2007 (2) Bom CR 587 (xvii)

The authorization given to a “Developer” to develop the land and sell super-structure in perpetuity shall undisputedly fall within the words “benefit arising out of the land” and shall, therefore, be held to be “immovable property”.

                                                                                                  Emphasis Supplied

Case-5- In a profit a prendre one has a licence to enter on the land, not for the purpose of enjoying it, but for removing something from it, namely, a part of the produce of the soil.-Shrimati Shantabai vs State Of Bombay & Others on 24 March, 1958 Equivalent citations: 1958 AIR 532, 1959 SCR 265

In my opinion, the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood. To that extent the matter is covered by the decision in Chhotabhai Jethabhai Patel & Co. v. The State of Madhya Pradesh (1), and by the later decision in Ananda Behera v. The State of Orissa (2), where it was held that a transaction of this kind amounts to a licence to enter on the land coupled with a grant to out certain trees on it and carry away the wood. In England it is a profit a prendre because it is a grant of the produce of the soil ” like grass, or turves or trees “. See 12 Halsbury’s Laws of England (Simonds Edition) page 522, Note (m). (2) [1953]S.C.R.476,483. (2) [1955] 2 S.C.R. 919, 922, 923.It is not a ” transfer of a right to enjoy the immoveable property ” itself (s. 105 of the Transfer of Property Act), but a grant of a right to enter upon the land and take away a part of the produce of the soil from it. In a lease, one enjoys the property but has no right to take it away. In a profit a prendre one has a licence to enter on the land, not for the purpose of enjoying it, but for removing something from it, namely, a part of the produce of the soil.

                                                                                                            Emphasis Supplied

Case-6-“A ‘benefit to arise out of land’ is an interest in land and therefore immovable propert-State Of Orissa & Other vs The Tltaghur Paper Mills Company … on 1 March, 1985 Equivalent citations: 1985 AIR 1293, 1985 SCR (3) 26

The meaning and nature of a profit a prendre have been thus described in Halsbury’s Laws of England, Fourth Edition, Volume 14, paragraphs 240 to 242 at pages 115 to 117:

“240. Meaning of ‘profit a prendre’ A profit a prendre is a right to take something off another person’s land. It may be more fully defined as a right to enter another’s land to take some profit of the soil, or a portion of the soil itself, for the use of the owner of the right The term ‘profit a prendre’ is used in contradistinction to the term ‘profit a prendre’, which signified a benefit which had’ to be rendered by the possessor of land after it had come into his possession.A profit a prendre is a servitude.

“241. Profit a prendre as an interest in land. A profit a prendre is an interest in land and for this reason any disposition of it must be in writing.A profit a prendre which gives a right to participate in a portion only of some specified produce of the land is just as much an interest in the land as a right to take the whole of that produce. . .

“242. What may be taken as a profit a prendre. The subject matter of a profit a prendre, namely the substance which the owner of the right is by virtue of the right entitled to take, may consist of animals, including fish and fowl, which are on the land, or of vegetable matter growing or deposited on the land by some agency other than that of man, or of any part of the soil itself, including mineral accretions to the soil by natural forces. The right may extend to the taking of the whole of such animal or vegetable matters or merely a part of them. Rights have been established as profits a prendre to take acorns and beech mast, brakes, fern, heather and litter, thorns, turf and peat, boughs and branches of growing trees, rushes, freshwater fish, stone, sand and shingle from the seashore A and ice from a canal; also the right of pasture and of shooting pheasants. There is, however, no right to take seacoal from the foreshore. The right to take animals ferae naturae while they are upon the soil belongs to the owner of the soil, who may grant to others as a profit a prendre a right to come and take them by a grant of hunting, shooting, fowling and so forth.”

The Supreme Court further referred that

The earlier decisions showing what constitutes benefits arising out of land have been summarized in Mulla on The Transfer of Property Act, 1882″, and it would be pertinent to reproduce the whole of that passage. That passage (at pages 16-17 of the Fifth Edition) is as follows:

“A ‘benefit to arise out of land’ is an interest in land and therefore immovable property. The first Indian Law Commissioners in their report of 1879 said that they had ‘abstained from the almost impracticable task of defining the various kinds of interests in immovable things which are considered immovable property. The Registration Act, however, expressly includes as immovable property benefits to arise out of land, here diary allowances, rights of way lights, ferries and fisheries’. The definition of immovable property in the General Clauses Act applies to this Act. The following have been held to be immovable (1) 11955] 2 S. C. R. 919 property:-varashasan or annual allowance charged on land; a right to collect dues at a fair held on a plot of land; a hat or market; a right to possession and management of a saranjam; a malikana; a right to collect rent or jana: a life interest in the income of immovable property; a right of way; a ferry; and a fishery; a lease of land”.

Emphasis Supplied