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“Law laid down in the lead judgment in Express Newspaper (supra) is the law by three Hon’ble Judges who constituted the Bench.” Is a view on a legal issue expressed in a lead judgment delivered by one of the judges of a Supreme Court bench is a binding precedent if the other judges of the bench in their concurring opinions did not express any opinion on itt? The bench comprising Justice Abhay Manohar Sapre and Justice Dinesh Maheshwari answered this interesting question in a judgment delivered on Friday. One of the contentions of the appellant in Kaikhosrou (Chick) Kavasji Framji vs. Union of India, was that the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 Act are made applicable only to those properties which are admittedly belonging to the Central Government or the State Government as the case may be and therefore proceedings under the PP Act can be initiated against a person only when he is found to be in its unauthorized occupation without any lawful authority from its real owner i.e. the Central/State Government. It was also contended that, in a situation where there arises a bona fide dispute between the two rival claimants over a property about their ownership such as the one which has arisen in the case at hand, the remedy of the parties lies in filing a civil suit in the civil court and seek a declaration of their ownership over the property in accordance with law but not to take recourse to any summary remedy to evict a person.

Reliance was placed on Express Newspapers vs. U.O.I. in which Justice AP Sen had made such an observation in the lead judgment delivered by the bench, which also comprised of Justices E.S. Venkataramiah and R.B. Mishra. The other judges had, in this case, penned separate judgments, though concurring with Justice Sen.

The contention raised by the Additional Solicitor General Aman Lekhi was that the view expressed by Justice Sen in Paras 86-87 could at best be regarded as his own view but not the view of the Court by majority because other two Judges did not express any opinion on this question. The bench, rejecting the said contention, said: “It is for the reason that first, though the lead judgment was authored by A.P. Sen J., the other 3 two Judges concurred with the view and the reasoning of A.P. Sen J. Second, both the concurring Judges also expressed their individual views on the question on the same lines on which A.P. Sen J. expressed his view and the Third, there is no dissent inter se Lordships on any issue much less on the issue with which we are concerned in this appeal.” The bench relied on a House of Lords judgment in The Guardians of the Poor of the West Derby Union vs. The Guardians of the Poor of the Atcham Union to arrive at this conclusion.

The court further observed: “We are of the considered view that law laid down in the lead judgment in Express Newspaper (supra) is the law by three Hon’ble Judges who constituted the Bench and thus binds all the Courts in the country under Article 141 of the Constitution. It satisfies the test laid down by Lord Esher M.R. in the case of The Guardian (supra).” The bench further noted that in State of Rajasthan vs. Padavati Devi also, the Supreme court has followed this judgment to hold that the State Government cannot take recourse to a summary remedy of eviction of a person under the State Revenue Laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land.

 


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