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CASE NO.:

Appeal (civil) 2517 of 1999

PETITIONER:

DIR. OF SETTLEMENTS, A.P. & ORS.

Vs.

RESPONDENT:

M.R. APPARAO & ANR.

DATE OF JUDGMENT: 20/03/2002

BENCH:

G.B. Pattanaik, S.N. Phukan & S.N. Variava

JUDGMENT:

PATTANAIK,J.

This appeal by the State of Andhra Pradesh is directed

against the impugned Judgment of the Division Bench of the

Andhra Pradesh High Court dated 4.11.93 in Writ Appeal

No. 511 of 1993. The Division Bench of the Andhra Pradesh

High Court has come to the conclusion that the rights accrued

in favour of the respondents to receive interim payments

under Section 39 of the Andhra Pradesh Estates (Abolition

and Conversion into Ryotwari) Act, 1948, which has already

become final, the earlier Judgments of the High Court, not

being assailed, the decision of the Supreme Court in the

Venkatagiri's case, would not take away that right and,

therefore, the respondents would be entitled to receive

interim payments in accordance with the judgments in their

favour.

A brief facts are that the two estates called Vuyyur and

Meduru, were notified under the provisions of the Estates

Abolition Act, 1948 and the State Government took over the

two estates. The compensation due for the estates was

notified on 20.6.1961. The State Government realising its

mistake in notifying the two estates together, issued two

separate notifications under the Estates Abolition Act, on

1.10.1963 and compensation for the two estates were

determined separately, one on 21.11.64 for Meduru and

another on 5.4.1966 for Vuyyur. The State Government

issued an administrative instruction in G.O.Ms. No. 645

dated 28.5.66, indicating the procedure for determining the

final compensation. Section 39 of the Act indicates the

manner in which the compensation is to be determined. The

scheme of the aforesaid provision is that the Director shall

determine the compensation under sub-section (1) of Section

39 and a person aggrieved could put-forth his grievances to

the Director, in the matter of proposed determination of the

basic annual sum and also the total compensation payable.

The Director is required to determine the compensation

payable under sub-section (1) of Section 39, after giving the

applicant an opportunity of making his representation, either

in writing or orally. The order passed under sub-section (1)

of Section 39 on being communicated to the concerned land-

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holder as well as to any other applicant, the person aggrieved

within three months could approach the Board of Revenue by

filing an appeal, as provided under sub-section (5) of Section

39. Sub-section (6) of Section 39 confers suo motu powers

on the Board, who in its discretion at any time call for and

examine the record of any order passed by the Director. The

Board of Revenue is thus entitled to modify or cancel the

order passed by the Director under sub-section (1). Sub-

section (2) of Section 50, casts an obligation on the

Government to make interim payments every fasli year to the

principal landholder and to other persons referred to in

Section 44, sub-section (1) for the period, after the

notification issued for vesting the estate and before the

compensation is determined under Section 39 and deposited

under Section 41. On 6.11.1970, Ordinance 6 of 1970 was

promulgated to restrict the interim payments payable to the

estate-holder till the determination by the Director of

Settlement. The aforesaid Ordinance was replaced by Act 3

of 1971 on 16.1.1971, amending Sections 41, 44, 50 and 54

of the Estates Abolition Act, with retrospective effect. It

may be stated that Section 41, prior to its amendment by Act

3/1971 read thus:

"41(1). The Government shall deposit in the

office of the Tribunal, the compensation in

respect of each estate as finally determined under

Section 39, in such form and manner, and at such

time or times and in one or more instalments, as

may be prescribed by rules made under Section

40."

Under the amended provision, the expression "as finally

determined under Section 39" was substituted by the

expression "determined by the Director under Section 39".

A writ petition was filed in the Andhra Pradesh High Court

by Raja of Venkatagiri, questioning the validity of the

ordinance as well as the amendment Act and by Judgment

dated 22.9.1971, the High Court declared that Act 3/1971 to

the extent it extinguished the vested right of the estate

holders to receive interim compensation till the date of

commencement of the Act was ultra vires of Article 31(2)

and not protected by Article 31A or 31B. It further held that

interim payments were payable upto the date of the

ordinance but not thereafter. Thus the amended Act was

held to be valid prospectively. The present respondents

along with several others filed writ petitions before the

Andhra Pradesh High Court, seeking interim payments,

which were registered as Writ Petition Nos. 3293 and 3294

of 1975. A learned Single Judge of the High Court disposed

of the two writ petitions by Judgment dated 17.6.1977 and

following the earlier Judgment in Venkatagiri's case, issued

a writ of mandamus to make interim payments to the

respondents herein in accordance with law laid down in

Venkatagiri's case. Against this direction of the learned

Single Judge, the State Government filed an application for

leave to appeal under Article 133(a) & (b) of the

Constitution, but the same on being dismissed, the State

Government did not approach the Supreme Court and

allowed the matter to rest therein. Notwithstanding the

finality attached to the order of the learned Single Judge in

favour of the respondents, the same not being complied with,

a fresh writ petition was filed, which was registered as Writ

Petition No. 730 of 1978, praying therein that the earlier

order be commanded to be implemented by a writ of

mandamus. That application was disposed of on

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28.3.1978 and the Court issued the direction to implement

the earlier order dated 7.6.1977 within one month from the

date of the order. The Judgment of the Andhra Pradesh

High Court in Venkatagiri's case had been assailed in the

Supreme Court in Civil Appeal Nos. 398 and 1385 of 1972.

Those two appeals were disposed of by order dated

6.2.1986. In this Court the counsel appearing for the

respondents, who were the original writ petitioners before

the High Court consented to the Judgments and orders of the

High Court under appeal being set aside, leaving it open to

the land-holders and others to get the compensation and

interim payments in accordance with the amended

provisions of the Andhra Pradesh (Andhra Area) Estates

(Abolition and Conversion into Ryotwari) Act, 1948. The

Court also itself expressed its opinion and held that the

amendments made to the Act are constitutionally valid and

the view expressed in the writ petition No. 496 of 1965 is

erroneous. The Court, therefore, set aside the judgments and

orders passed by the Andhra Pradesh High Court, leaving

the question of computation of interim payments payable to

the respondents therein open, to be decided by the

authorities concerned in accordance with law and the orders

passed by the Director. The Court hastened to add that the

interim payments payable under the Act ends with the date

of the original determination made by the Director under

Section 39(1) thereof before the filing of the appeal, if any,

and of the deposit of the amount so determined. On

3.7.1986, the State of Andhra Pradesh in the Department of

Revenue (J) issued a memorandum, Memo No. 609/J-2/81-

27, stating therein that the land-holders of Vuyyur and

Meduru estates cannot contend that the decision of the

Supreme Court in Venkatagiri's case, does not bind them

merely because appeals were not filed against the judgment

in their favour and the law declared by the Supreme Court is

binding on the land-holders whether they were parties to the

Judgment or not. The authorities concerned were directed to

act in accordance with the judgment of the Supreme Court in

Venkatagiri's case. The respondents herein filed a writ

petition, which was registered as Writ Petition No. 16737 of

1990, claiming interim payments from 1.7.64 to 31.11.1970

and to implement the earlier order in their favour passed by

the High Court. The learned Single Judge by Judgment

dated 30th of January, 1993, dismissed the writ petition on

the ground that the very basis namely the judgment in

Venkatagiri's case, having been set aside by the Supreme

Court, the earlier decision in favour of the respondents

would not constitute an enforceable right and as such a writ

of mandamus cannot be issued. The respondents however

assailed the aforesaid judgment of the learned Single Judge

in writ appeal No. 511 of 1993 and the said writ appeal

having been allowed, the present appeal has been preferred

by the State Government by grant of special leave.

When this appeal had been listed before a Bench of

two learned Judges of this Court on 7.2.2002, the Court felt

that the decision of this Court in the case of M/s Shenoy &

Co. & Ors vs. Commercial Tax Officer Circle II,

Bangalore & Ors., on which the counsel for the State relied

upon and the decision of this Court in the case of

Authorised Officer (Land Reforms) vs. M.M.

Krishnamurthy Chetty, 1998(9) SCC 138, on which Mr.

Rao for the respondents relied upon, perhaps run counter to

each other and as such to resolve the said conflict, the appeal

should be decided by a Bench of three learned Judges, and

that is how the appeal has been placed before us.

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Mr. Guntur Prabhakar, the learned counsel appearing

for the State, contended that the law declared by the Supreme

Court in the appeal in the case of State of Andhra Pradesh &

Ors. vs. Venkatagiri & Ors. is the law of the land and

binding on all persons throughout the country in view of

Article 141 of the Constitution. By the said Judgment, this

Court having held that the amendment of 1971 Act is valid

and it having further held that the period during which the

interim payment are payable under the Act ends with the date

of original determination made by the Director under Section

39(1) of the Act, the Division Bench of the High Court

committed serious error in issuing a mandamus contrary to

the aforesaid declaration of law on the basis of finality

attached to the Judgment in favour of the respondents.

According to Mr. Prabhakar, the very Judgment in favour of

the respondents having emanated, because of the Judgment of

Andhra Pradesh High Court in Venkatagiri's case and the

judgment of Venkatagiri, having been set aside, the

respondents cannot make any claim on the basis of the earlier

judgment in their favour. High Court, therefore, was in error

in issuing the impugned directions in the Judgment under

challenge. Relying upon the Judgment of this Court in M/s

Shenoy and Co. vs. Commercial Tax Officer, Circle II,

Bangalore, 1985(2) S.C.C. 512, Mr. Prabhakar contends that

the effect of the Judgment of this Court in C.A. No. 1743 of

1973 is that the said Judgment would be a binding law, not

only for the parties in that appeal but also those, who had

approached the High Court under Article 226 and in whose

favour, a mandamus had been issued, following the Judgment

in Venkatagiri's case. The law declared by the High Court in

Venkatagiri's case, having been set aside and the amendment

Act having been held to be constitutionally valid and

effective, the mandamus that had been issued in favour of the

respondents, must be held to have been rendered ineffective

and unenforceable and, therefore, the High Court could not

have issued the impugned directions. According to Mr.

Prabhakar, the three Judge Bench Judgment of this Court in

Shenoy's case referred to supra, apply with full force to the

case in hand and in this view of the matter, the impugned

judgment must be held to be unsustainable in law. Mr.

Prabhakar also relied upon the Judgment of this Court in U.P.

Pollution Control Board and Ors. vs. Kanoria Industrial

Ltd. and Anr., 2001(2) S.C.C. 549, and urged that to apply

the law laid down by this Court in Venkatagiri's case only to

the parties to the said appeal, would tantamount to ignore the

binding nature of a judgment of this Court under Article 141

of the Constitution. According to him, such an interpretation

would make the mandate of Article 141 illusory and the High

Court, therefore, committed serious error in not examining

the effect of Article 141 of the Constitution in its true

perspective. Mr. Prabhakar also relied upon the Constitution

Bench decision of this Court in E.S.P. Rajaram and ors. vs.

Union of India and Ors., 2001(2) S.C.C. 186, and

contended that the very approach adopted by this Court in the

aforesaid case to have a uniformity of law in respect of all

concern leads to the only conclusion that the High Court was

not justified in issuing a mandamus on the ground of finality

to the earlier Judgment in favour of the respondents, as that

would go against the provisions of Article 141 of the

Constitution.

Mr. P.P. Rao, the learned senior counsel, appearing for

the respondents on the other hand contended that the

judgment of this Court in C.A. Nos. 398 & 1385 of 1972

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(State of Andhra Pradesh & Ors. vs. Venkatagiri) proceeded

on the basis of a concession of the counsel appearing for said

Venkatagiri. Neither the Court examined the different

contentions or adjudicated upon the same and as such, it

cannot be held to be a law declared within the ambit of

Article 141 of the Constitution. According to Mr. Rao, the

so called observation of this Court in Venkatgiri's case in its

judgment dated 6th February, 1986, in the appeals preferred

by the State of Andhra Pradesh are per incurium inasmuch as

the judgment of the High Court in Writ Petition No. 496 of

1965 was not under appeal before this Court and the Court

did not advert to the reasons given by the High Court.

Further the Bench of this Court did not consider the relevant

provisions of the Act wherein the expression 'final

determination' had been used by the legislature in contrast to

the word 'determination' used in Section 39(1). Even the

Bench did not consider the earlier decision of this Court in

S.R.Y. Sivaram Prasad Bahadur .vs. Commissioner of

Income Tax 1971 (3) SCC 726 wherein it was held that the

interim payment is different from the compensation payable.

Mr. Rao contends that the expression 'determination' and

'final determination' connotes two distinct meaning and

cannot be one and the same. According to Mr. Rao when the

two expression of different import are used in a statute they

convey different meaning applicable to different situations.

With reference to the judgment of this Court in M/s. Shenoy

and Co. vs. Commercial Tax Officer, Circle II, Bangalore

1985 (2) SCC 512, on which decision the learned counsel for

the State heavily relied upon, Mr. Rao contends that the

aforesaid decision requires re-consideration inasmuch as it

has not taken into account the binding precedents on the

principle of res judicata in the realm of public law.

According to Mr. Rao, the decision of this Court in the case

of Authorised Officer (Land Reforms) vs. MM

Krishnamurthy Chetty 1998 (9) SCC 138 represents the

correct position and the order of the Court which may not be

strictly legal if has become final, the same not being

challenged before a superior Court, it would have the binding

effect as between the parties. In this view of the matter the

mandamus issued in favour of the respondents in Writ

Petition Nos. 3293 and 3294 of 1975 directing the State to

make interim payments cannot be disobeyed or nullified

merely because the judgment of the High Court in

Venkatgiri's case was reversed by the Supreme Court, and

more particularly, because the reversal of the judgment in the

Supreme Court was on the basis of the concession of the

counsel appearing for Venkatgiri. According to Mr. Rao, the

rights accrued to the respondents in terms of the earlier

judgment are not affected by the order and judgment of the

Supreme Court dated 6.2.1986 in Venkatgiri's case and as

such, the Division Bench of the High Court was fully

justified in issuing the impugned order and direction.

In view of the rival submissions following

questions arise for our consideration:

(a) Can the decision of this Court dated 6th February,

1986, upholding the constitutional validity of the

Amendment Act of 1971 reversing the judgment

of Andhra Pradesh High Court in C.A. Nos. 398

and 1385 of 1972 (State of Andhra Pradesh vs.

Venkatagiri and batch), and further indicating that

the period during which interim payments are

payable under the Act ends with the date of the

original determination made by the Director under

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Section 39(1) of the Act, be held to be a law

declared by the Supreme Court under Article 141

of the Constitution, or it can be said to be per

incurium, as contended by Mr. Rao, learned

counsel appearing for the respondents?

(b) The judgment of the Andhra Pradesh High Court

in favour of the respondents passed in Writ

Petition Nos. 3293 and 3294 of 1975 not being

challenged by way of appeal to the Supreme

Court even though it merely followed the earlier

decision of the High Court in Venkatgiri's case,

whether has conferred an indefeasible right on the

respondents notwithstanding the reversal of the

judgment of the High Court in Venkatgiri.s case

by the Supreme Court?

(c) Whether the High Court would be justified in

issuing a mandamus in the changed

circumstances, namely, Supreme Court reversing

the judgment of the High Court in Venkatgiri's

case inasmuch as for issuance of a mandamus one

of the condition precedent, which is required to be

established is that the right subsisted on the date

of the petition?

(d) Whether the judgment of this Court in Shenoy's

case 1985 (2) Supreme Court Cases 512

requires any re-consideration?

So far as the first question is concerned, Article

141 of the Constitution unequivocally indicates that the

law declared by the Supreme Court shall be binding on

all Courts within the territory of India. The aforesaid

Article empowers the Supreme Court to declare the

law. It is, therefore, an essential function of the Court

to interpret a legislation. The statements of the Court

on matters other than law like facts may have no

binding force as the facts of two cases may not be

similar. But what is binding is the ratio of the decision

and not any finding of facts. It is the principle found

out upon a reading of a judgment as a whole, in the

light of the questions before the Court that forms the

ratio and not any particular word or sentence. To

determine whether a decision has 'declared law' it

cannot be said to be a law when a point is disposed of

on concession and what is binding is the principle

underlying a decision. A judgment of the Court has to

be read in the context of questions which arose for

consideration in the case in which the judgment was

delivered. An 'obiter dictum' as distinguished from a

ratio decidendi is an observation by Court on a legal

question suggested in a case before it but not arising in

such manner as to require a decision. Such an obiter

may not have a binding precedent as the observation

was unnecessary for the decision pronounced, but even

though an obiter may not have a bind effect as a

precedent, but it cannot be denied that it is of

considerable weight. The law which will be binding

under Article 141 would, therefore, extend to all

observations of points raised and decided by the Court

in a given case. So far as constitutional matters are

concerned, it is a practice of the Court not to make any

pronouncement on points not directly raised for its

decision. The decision in a judgment of the Supreme

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Court cannot be assailed on the ground that certain

aspects were not considered or the relevant provisions

were not brought to the notice of the Court (see AIR

1970 SC 1002 and AIR 1973 SC 794). When Supreme

Court decides a principle it would be the duty of the

High Court or a subordinate Court to follow the

decision of the Supreme Court. A judgment of the

High Court which refuses to follow the decision and

directions of the Supreme Court or seeks to revive a

decision of the High Court which had been set aside by

the Supreme Court is a nullity. (See 1984(2) SCC 402

and 1984 (2) SCC 324). We have to answer the first

question bearing in mind the aforesaid guiding

principles. We may refer to some of the decisions cited

by Mr. Rao in elaborating his arguments contending

that the judgment of this Court dated 6th February, 1986

cannot be held to be a law declared by the Court within

the ambit of Article 141 of the Constitution. Mr. Rao

relied upon the judgment of this Court in the case of

Pandit M.S.M. Sharma vs. Shri Sri Krishna Sinha

and Others 1959 Suppl.(1) Supreme Court Reports

806, wherein the power and privilege of the State

Legislature and the fundamental right of freedom of

speech and expression including the freedom of the

press was the subject matter of consideration. In the

aforesaid judgment it has been observed by the Court

that the decision in Gunupati Keshavram Reddy vs.

Nafisul Hasan - AIR 1954 SC 636, relied upon by the

counsel for the petitioner which entirely proceeded on a

concession of the counsel cannot be regarded as a

considered opinion on the subject. There is no dispute

with the aforesaid proposition of law.

The next decision relied upon by Mr. Rao is the case of

Supdt. & Legal Remembrancer, State of West

Bengal vs. Corporation of Calcutta - 1967 (2)

Supreme Court Reports 170. The observation of Subba

Rao, J. in the aforesaid case, in relation to the decision

of the Privy Council in the case of Province of Bombay

vs. Municipal Corporation of the City of Bombay (73

Indian Appeals 271) which had been pressed into

service by the learned Advocate General of State of

West Bengal, has been pressed into service by Mr. Rao.

After quoting a passage from the judgment of the Privy

Council this Court held "the decision made on

concession made by the parties even though the

principle consisted was accepted by the Privy Council

without discussion cannot be given the same value as

one given upon a careful consideration of the pros and

cons of the question raised. The aforesaid observation

indicates the care and caution taken by the Court in the

matter and therefore, merely because the pros and cons

of the question raised had not been discussed the

judgment of this Court cannot be held to be not a law

declared, as contended by Mr. Rao.

The next decision relied upon by Mr. Rao is the case of

Krishena Kumar and Anr. Etc. etc. vs. Union of

India and ors. 1990 (3) Supreme Court Reports 352.

In the aforesaid case the Constitution Bench was

considering the ratio decidendi in Nakara's case 1983

(2) SCR 165, when the question before the Court was

whether the States' obligation is the same towards the

Pension retirees as well as the Provident Fund retirees

and ultimately the Court came to the conclusion that the

Pension Scheme and Provident Fund Scheme are

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structurally different and, as such, the observation of

the Court in Nakara may be a moral obligation of the

State but cannot be construed a ratio decidendi for

being enforceable and applicable in all cases. It is in

this context, it was observed in Krishena Kumar that the

enunciation of the reason or principle upon which a

question before a Court has been decided is alone

binding as a precedent, and the ratio decidendi is the

underlying principle, namely, the general reasons or the

general grounds upon which the decision is based on

the test or abstract the specific pecularities of the

particular case which gives rise to the decision. Having

examined Nakara's case it was stated in Krishena

Kumar that it was never required to be decided that all

the retirees formed a class and no further classification

was permissible. At the same time it was never held in

Nakaras' case that both the Pension retirees and

Provident Fund retirees formed a homogeneous class

and that any further classification among them could be

violative of Article 14. We fail to understand as to how

the aforesaid observations made in Krishena Kumar

can have any application to the case in hand where

directly the issue was whether the Amendment Act is

constitutionally valid or not and the Andhra Pradesh

High Court was of the opinion that the said Act is ultra

virus and had struck down the amendment and against

that decision State had come up in appeal. When this

Court ultimately held the Amendment Act to be

constitutionally valid which was the subject matter

directly in issue, it is difficult for us to hold that it was

not law declared.

The next case relied upon is the case of State of U.P.

and another vs. Synthetics and Chemicals Ltd. and

another (1991) 4 Supreme Court Cases, 139,.

Hon'ble Justice Sahai in his concurring judgment held

that a decision which is not expressed and is not

founded on reasons, nor it proceeded on consideration

of issue, cannot be deemed to be a law declared to have

binding effect as is contemplated by Article 141. The

learned Judge further observed that any declaration or

conclusion arrived at without application of mind or

proceeded without any reason cannot be deemed to be

declaration of law or authority of a general nature

binding as a precedent. We are afraid, that the

aforesaid observations cannot be held to be applicable

to the case in hand when before the Court the

constitutionality of the Act was directly under

consideration and, notwithstanding the concession of

the counsel appearing for the party, the Court

independently on examining the amendments in

question held the same to be constitutionally valid, and

further it went on to hold the period for which interim

payment would be payable.

A recent decision of this Court in ArnitDas vs. State of

Bihar 2000 (5) Supreme Court Cases, 488, was also

pressed into service by Mr. Rao. In the aforesaid case

this Court had observed that a decision not expressed

and accompanied by reasons and not proceeded on a

conscious consideration of issue cannot be deemed to

be a law declared to have a binding effect as

contemplated under Article 141 of the Constitution.

Applying the test to the case in hand is it possible for us

to hold that the question of constitutionality of the

Amendment Act of 1970 was not an issue before this

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Court in Civil Appeal No. 398 of 1972 or that the

conclusion of the Court was not of a conscious

consideration and the answer would be in the negative.

In our considered opinion, therefore, the aforesaid

decision is of no assistance to support Mr. Rao's

contention.

Mr. Rao then placed reliance on yet another decision of

this Court in the case of A-One Granites vs. State of

U.P. and Others (2001) 2 Supreme Court Cases 537,

to which one of us (Pattanaik, J.) was a party. In that

particular case the applicability of Rule 72 of the U.P.

Minor Minerals (Concession) Rules, 1963 was one of

the bone of the contention before this Court, and when

the earlier decision of the Court in Prem Nath Sharma

vs. State of U.P. (1997) 4 Supreme Court Cases 552,

was pressed into service, it was found out that in Prem

Nath Sharma's case the applicability of Rule 72 had

never been canvassed and the only question that had

been canvassed was the violation of the said Rules. It is

in this context, it was held by this Court in Granite's

case "as the question regarding applicability of Rule 72

of the Rules having not been even referred to, much

less considered by Supreme Court in the earlier appeals,

it cannot be said that the point is concluded by the same

and no longer res integra". This dictum will have no

application to the case in hand on the question whether

the judgment of this Court in Civil Appeal No. 398 of

1972 can be held to be a law declared under Article

141.

Yet another decision of this Court relied upon by Mr.

Rao is Kulwant Kaur and others vs. Gurdial Singh

Mann (dead) by Lrs. (2001) 4 Supreme Court Cases

262. In that case what was observed by this Court is

that when the Court proceeds on the basis of a

concession then the decision cannot have a binding

precedent in as much as it cannot be held to be a law

declared under Article 141. As we have already stated,

the question therefore requires an answer is whether the

judgment of this Court in Civil Appeal No. 398 of 1972

is based only upon a concession of the counsel for the

parties or is a conclusion of the Court on an

independent application of mind as the constitutionality

of the Amendment Act of 1971 which was the only

issue in the appeal.

Mr. Rao relied upon the judgment of this Court in

Lakshmi Shanker Srivastava vs. State (Delhi

Administration) (1979) 1 Supreme Court Cases 229,

which was an appeal against conviction under Section

5(2) of the Prevention of Corruption Act, 1947 read

with Section 161. In that particular case the attention of

the Court had been drawn to an earlier decision in the

case of R.J. Singh Ahluwalia vs. State of Delhi

(1970) 3 Supreme Court Cases 451, on the question of

validity of sanction, and the Court observed that the

judgment proceeds on concession and not on any

analysis or examination of the relevant provisions, and

as such will be of no help. In our considered opinion,

the aforesaid decision is of no assistance to the point in

issue. Mr. Rao also relied upon the observations of this

Court in Raval & Co. vs. K.C. Ramachandran &

Ors. - (1974) 2 Supreme Court Reports 629. In this

case, on behalf of the appellant reliance had been upon

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two earlier decisions (1963 (3) SCR 312, and 1967(1)

SCR 475). Both the cases were dealing with the

eviction. The Court, however, observed that the

general observations in those two decisions upon which

reliance was placed to contend that they apply to cases

for fixation of rent also will not apply. It was held that

the general observations therein should be confined to

the facts of those cases and any general observation

cannot apply in interpreting provisions of the Act

unless the Court had applied its mind to analyse its

decision to that particular Act. While there is no

dispute with the aforesaid proposition, but in our view

the same will be of no assistance in deciding the

question for consideration inasmuch as the decision as

to the constitutionality of the Amendment Act of 1971

is neither a general observation nor can it be held to be

an observation without application of mind. The only

other case which may be noticed in this connection, is

the case of Municipal Corporation of Delhi vs.

Gurnam Kaur (1989) 1 Supreme Court Cases 101.

In the aforesaid case the Court examined the provisions

of Article 141, elaborated the meaning of the

expression 'obiter dicta, per incuriam and sub silentio

decisions and ultimately held that the orders made with

the consent of the parties and with the reservation that

the same should not be treated as precedent, cannot

have a binding effect as law declared. We are unable to

persuade ourselves with the contention of Mr. Rao that

a judgment of this Court in Civil Appeal No. 398 of

1972 is merely a judgment on concession and not a

decision on merits. Consequently, this decision also

will be of no application.

Bearing in mind the host of decisions cited by Mr.

Rao and on examining the judgment of this Court dated

6.2.1986 in Civil Appeal No. 398 of 1972 we have no

doubt in our mind that the conclusion of the Court that

the amendments are constitutionally valid and the view

expressed by the Andhra Pradesh High Court is

erroneous is a concious decision of the Court itself on

application of mind to the provisions of the Act. It is

no doubt true that the counsel for the respondent

Venkatgiri had indicated that the respondent will have

no objection to the judgments and orders of the High

Court under appeal, being set aside. But that by itself

would not tantamount to hold that the judgment is a

judgment on concession. Even after recording the stand

of the counsel appearing for Venkatgiri when the Court

observed "we are also of the view that the two

amendments referred to above, are constitutionally

valid", the same is unequivocal determination of the

constitutional validity of the Amended Act, it cannot be

dubbed as a conclusion on concession, nor can it be

held to be a conclusion without application of mind,

particularly when the very constitutionality of the

Amendment Act was the core question before the

Court. It is also apparent from the further direction

when the Court holds 'we further make it clear that the

period during which interim payments are payable

under the above said Act ends with the date of the

original determination by the Director under Section

39(1) thereof'. This conclusion is possible only after

application of mind to the provisions of Section 39 as

well as other provisions and the Amendment that was

brought into the statute book. In the aforesaid premises,

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our answer to the first question is that the decision of

this Court dated 6.2.1986 must be held to be a 'law

declared' within the ambit of Article 141 of the

Constitution and the constitutional validity of the

Amendment Act 1971 is not open to be re-agitated and

that the judgment of Andhra Pradesh High Court

holding the Amendment Act to be constitutionally

invalid had been set aside by this Court.

So far as the second question is concerned, it is no

doubt true that the Judgment of the Andhra Pradesh

High Court in favour of the respondents, not having

been challenged, has reached finality. The High Court

in the aforesaid two cases, following the reasoning and

conclusion of the earlier decision in Venkatagiri's case

in Writ Petition No. 4709/70 dated 22.9.71 issued a writ

of mandamus to make payments to the petitioners in

accordance with law laid down in Writ Petition No.

4709 of 1970 dated 22.9.71. Notwithstanding the

aforesaid direction in favour of the respondents in writ

petition Nos. 3293 and 3294 of 1975, interim payments

not having been made, the respondents approached the

High Court again, by filing a fresh writ petition, which

was registered as writ petition No. 730 of 1978. The

High Court disposed of the matter on 28.3.78, directing

the State to implement the earlier order dated 7.6.77

within a month from the date of the said order. Yet, no

interim payments had been made and in the meantime,

Supreme Court reversed the Judgment of the Andhra

Pradesh High Court in Venkatagiri's case in C.A. Nos.

398 and 1385 of 1972 by Judgment dated 6.2.1986.

While reversing the Judgment of the Andhra Pradesh

High Court in Venkatagiri's case, independent of the

concession made by the counsel for the said

Venkatagiri, the Court also held that the amended

provision is constitutionally valid and further directed

that interim payments would be payable only till the

date of the original determination made by the Director

under Section 39(1) of the Act and on the deposit of the

amount by the State, so determined. The original

mandamus in favour of the respondents having been

based upon the sole ground of the decision of the

Andhra Pradesh High Court in Venkatagiri's case and

that decision of Venkatagiri, having been reversed by

the Supreme Court, the question of right of the

respondents emanating from the Judgment in their

favour, requires to be decided. Mr. P.P.Rao, in this

connection argued with vehemence that the mandamus

in favour of the respondents, could not have been ipso

facto nullified on account of reversal of the decision of

the High Court in Venkatagiri's case and, therefore, the

same would be enforceable even now, and in fact the

Division Bench of the High Court has allowed such

relief. Mr. Rao relies upon the decision of this Court in

the case of Satyadhyan Ghosal and Ors. vs. Smt.

Deorajin Debi and another, 1960(3) S.C.R. 590,

wherein, the Court was considering the principle of res

judicata. The Court in that case came to the conclusion

that the principle of res judicata applies as between the

past litigation and future litigation and when a matter,

whether on a question of fact or on a question of law

has been decided between two parties in one suit or

proceeding and the decision is final, either because no

appeal was taken to a higher court or because the appeal

was dismissed, neither party will be allowed in a future

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suit or proceeding between the same parties to canvass

the matter again. It was further held that the principle

of res judicata applies as between two stages in the

same litigation. Mr. Rao also relied upon the decision

of this Court in the case of State of West Bengal vs.

Hemant Kumar Bhattacharjee and Ors., 1963 Supp

(2) S.C.R. 542, where-under the question for

consideration was whether the earlier decision of the

high Court regarding the unconstitutionality of Section

4(1) of the West Bengal Criminal Law Amendment

Act, would be binding between the parties and the

correctness could not be collaterally or incidentally

challenged ? The Court held that it would not be

permissible for the State Government to challenge the

correctness of the earlier Judgment either collaterally or

incidentally, no appeal having been taken from the

earlier decision. Mr. Rao further relied upon the

decision of this Court in the case of B.N. Nagarajan

and Ors. vs. State of Mysore and Ors, 1966(3) S.C.R.

682, whereunder while allowing the appeals filed by the

State as well as private persons and setting aside the

Judgment of the High Court, the Court also observed

that those who have not prosecuted their appeals, they

would also have the benefit of the Judgment and this

the Supreme Court could do in exercise of its power

under Article 142 of the Constitution. We really fail to

understand as to how the aforesaid decision is of any

application. According to Mr. Rao, since in

Venkatagiri's case there has been no such observation

notwithstanding the reversing the Judgment of the High

Court, those of the persons against whom, the State did

not come up in appeal, their rights are concluded by the

earlier judgment of the High Court and that must be

allowed to operate. It is however difficult for us to

accept this contention in the facts of the present case,

particularly in the context of the issuance of mandamus

by the Court. Mr. Rao also strongly relied upon the

Judgment of this Court in the case of Authorised

Officer (Land Reforms) vs. M.M. Krishnamurthy

Chetty, 1998(9) SCC 138. In this case, this Court held

that the order of the High Court, directing the

Authorised Officer to examine the dispute in the light

of the Judgment of the High Court in the case of

Naganatha Ayyar vs. Authorised Officer, became final

although the very Judgment on which the grievance

had to be examined itself was reversed later by the

Supreme Court and, therefore, the orders which may

not be strictly legal, having become final and binding

between the parties, if they are not challenged before

the superior courts, the same has to be followed. The

aforesaid Judgment of a two Judge Bench of this Court,

undoubtedly supports Mr. Rao's contention but it had

not taken into consideration a three Judge Bench

decision in M/s Shenoy and Co. vs. Commercial Tax

Officer, Circle II, Bangalore and Ors., 1985(2) SCC

512, wherein under identical circumstances, this Court

had held that when large number of writ petitions were

filed challenging the Act and all those writ petitions

were grouped together, heard together, and were

disposed of by the High Court by a common Judgment

and the dispute in the cause between the State and each

of the petitioner had no personal or individual element

in it, and on the other hand, challenge was to the

constitutional validity of 1979 Act, when the Supreme

Court held that the Act is constitutionally valid, it

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would be difficult to contend that the law laid down in

the Judgment would bind only Hansa Corporation, who

has approached the Supreme Court and not the other

petitioners against whom the State of Karnataka had not

filed any appeal. According to the aforesaid Judgment

to do so, would be to ignore the binding nature of a

Judgment of this Court under Article 141 of the

Constitution. The Court further held that if the law

which was declared invalid by the High Court is held

constitutionally valid, effective and binding by the

Supreme Court, then 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 it would, therefore be futile to

contend that the mandamus would still survive in

favour of those parties against whom appeals were not

filed. In our considered opinion, the ratio in the

aforesaid case fully applies to the case in hand,

particularly, when the Court is examining the question

whether while issuing a mandamus, the earlier

Judgment notwithstanding having been held to be

invalid, can still be held to be operative. Mr. Rao also

relied upon the Judgment of this Court in Ram Bai vs.

Commissioner of Income Tax, 1999(3) S.C.C. 30,

which was a case arising from an assessment made

under the Income-tax Act . Having examined the

aforesaid decision at length, we do not find anything

stated therein which will be of any assistance to the

respondents in the present case. Mr. Rao, no doubt

submitted with force that in Shenoy's case, the Court

never focussed its attention as to the finality of the

earlier Judgment and the principle of res judicata and

accordingly, the said decision require a consideration

by a larger Bench. But we are not persuaded to accept

this submission inasmuch as when the Court is

examining the question of any right having emanated

from a Judgment of the High Court and the said

Judgment squarely having emanated, on following an

earlier Judgment of the said Court, without any further

reasoning advanced and no question of facts involved

but purely a question of constitutionality of an Act, the

moment the earlier Judgment of the High Court is

reversed by the Supreme Court, that becomes the law of

the land, binding on all parties. In other words, the

Judgment of the Andhra Pradesh High Court in

Venkatagiri's case, holding the amendment Act to be

constitutionally invalid, on being reversed by the

Supreme Court on a conclusion that the said

amendment is constitutionally valid, the said dictum

would be valid throughout the country and for all

persons, including the respondents, even though the

Judgment in their favour had not been assailed. It

would in fact lead to an anomalous situation, if in the

case of the respondents, the earlier conclusion that the

amendment act is constitutionally invalid is allowed to

operate notwithstanding the reversal of that conclusion

in Venkatagiri's case and only in Venkatagiri's case or

where the parties have never approached the Court to

hold that the same is constitutionally valid. This being

the position, notwithstanding the enunciation of the

principle of res judicata and its applicability to the

litigation between the parties at different stages, it is

difficult for us to sustain the argument of Mr. Rao that

an indefeasible right has accrued to the respondents on

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the basis of the Judgment in their favour which had not

been challenged and that right could be enforced by

issuance of a fresh mandamus. On the other hand, to

have the uniformity of the law and to have universal

application of the law laid down by this Court in

Venkatagiri's case, it would be reasonable to hold that

the so-called direction in favour of the respondents

became futile inasmuch as the direction was on the

basis that the amendment Act is constitutionally invalid,

the moment the Supreme Court holds the Act to be

constitutionally valid. We are, therefore, of the

considered opinion that no indefeasible right on the

respondents could be said to have accrued on account

of the earlier Judgment in their favour notwithstanding

the reversal of the Judgment of the High court in

Venkatagiri's case.

Coming to the third question, which is more

important from the point of consideration of High

Court's power for issuance of mandamus, it appears

that the constitution empowers the High Court to issue

writs, directions or orders in the nature of habeas

corpus, mandamus, prohibition, quo warranto and

certiorari for the enforcement of any of the rights

conferred by Part III and for any other purpose under

Article 226 of the Constitution of India. It is, therefore

essentially, a power upon the High Court for issuance

of high prerogative writs for enforcement of

fundamental rights as well as non-fundamental or

ordinary legal rights, which may come within the

expression 'for any other purpose'. The powers of the

High Courts under Article 226 though are discretionary

and no limits can be placed upon their discretion, it

must be exercised along recognised lines and subject to

certain self-imposed limitations. The expression 'for

any other purpose' in Article 226, makes the

jurisdiction of the High Courts more extensive but yet

the Court must exercise the same with certain restraints

and within some parameters. One of the conditions for

exercising power under Article 226 for issuance of a

mandamus is that the Court must come to the

conclusion that the aggrieved person has a legal right,

which entitles him to any of the rights and that such

right has been infringed. In other words, existence of a

legal right of a citizen and performance of any

corresponding legal duty by the State or any public

authority, could be enforced by issuance of a writ of

mandamus. "Mandamus" means a command. It

differs from the writs of prohibition or certiorari in its

demand for some activity on the part of the body or

person to whom it is addressed. Mandamus is a

command issued to direct any person, corporation,

inferior Courts or Government, requiring him or them

to do some particular thing therein specified which

appertains to his or their office and is in the nature of a

public duty. A mandamus is available against any

public authority including administrative and local

bodies, and it would lie to any person who is under a

duty imposed by statute or by the common law to do a

particular act. In order to obtain a writ or order in the

nature of mandamus, the applicant has to satisfy that he

has a legal right to the performance of a legal duty by

the party against whom the mandamus is sought and

such right must be subsisting on the date of the

petition.{Kalyan Singh vs. State of U.P., AIR 1962 SC

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1183}. The duty that may be enjoined by mandamus

may be one imposed by the Constitution, a statute,

common law or by rules or orders having the force of

law. When the aforesaid principle are applied to the

case in hand, the so-called right of the respondents,

depending upon the conclusion that the amendment Act

is constitutionally invalid and, therefore, the right to get

interim payment will continue till the final decision of

the Board of Revenue cannot be sustained when the

Supreme Court itself has upheld the constitutional

validity of the amendment Act in Venkatagiri's case on

4th of February, 1986 in Civil Appeal No. 398 & 1385

of 1972 and further declared in the said appeal that

interim payments are payable till determination is made

by the Director under Section 39(1). The High Court in

exercise of power of issuance of mandamus could not

have said anything contrary to that on the ground that

the earlier judgment in favour of the respondents

became final, not being challenged. The impugned

mandamus issued by the Division Bench of the Andhra

Pradesh High Court in the teeth of the declaration made

by the Supreme Court as to the constitutionality of the

amendment Act would be an exercise of power and

jurisdiction when the respondents did not have the

subsisting legally enforceable right under the very Act

itself. In the aforesaid circumstances, we have no

hesitation to come to the conclusion that the High Court

committed serious error in issuing the mandamus in

question for enforcement of the so-called right which

never subsisted on the date, the Court issued the

mandamus in view of the decision of this Court in

Venkatagiri's case. In our view, therefore, the said

conclusion of the High Court must be held to be

erroneous.

Coming to the last question, Mr. Rao vehemently

urged that the Shenoy's case requires reconsideration

inasmuch it had not taken into account the various

principles including the principle of res judicata. But

on examining the Judgment of this Court, more

particularly, the conclusion in relation to the provisions

of Article 141 of the Constitution, and applying the

same to the facts and circumstances to the present case,

we do not think that a case has been made out for

referring the Shenoy's case to a larger Bench for

reconsideration. On the other hand, we respectfully

agree with the conclusion arrived at by the three Judge

Bench of this Court in Shenoy's case. In Shenoy the

Court was considering the applicability of Article 141

of the Constitution and its effect on cases, against

which no appeals had been filed. A law of the land

would govern everybody, and the non-consideration of

the principle of res judicata will not be a ground to

reconsider the said judgment.

In the aforesaid premises, the judgment of the

Division Bench of Andhra Pradesh High Court is set

aside and this appeal is allowed.

..........J.

(G.B. PATTANAIK)

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J.

(S.N. PHUKAN)

J.

(S.N. VARIAVA)

March 20, 2002.