Judgment :- Ramachandran Nair, J. The case has come up before the Full Bench as per Reference Order of the Division Bench dated 21.5.2010. The learned Single Judge referred the matter as per Reference Order dated 10.7.2009. The question referred before the Full Bench for its opinion, is the following: “Where the judgments of the Supreme Court rendered by coequal benches express conflicting principles of law, which cannot stand together and, thus, present a serious problem to the High Courts and Subordinate Courts, what are the principles to be followed in choosing one or other of the conflicting judgments by the High Court when in a case the applicability of the conflicting decisions rendered by the apex court has decisive impact in its disposal.” 2. The factual matrix is in a narrow compass. The Civil Revision Petition is filed by the judgment debtors in E.P.No.14/2005 in O.S.No.184/1986 of the Munsiff’s Court, Punalur. The suit was one for declaration of title of the plaintiffs over the plaint schedule property measuring 30 cents in Sy.No.962/1/2/6,1 of Kulathupuzha Village and for recovery of possession with mesne profits. The same was decreed on 14.2.1990. The defendants filed A.S.No.49/1990 before the Sub Court, Kottarakkara against the judgment and decree, along with a petition to condone the delay, filed as I.A.No.1290/1990. The delay petition was dismissed and consequently the appeal was also dismissed. Annexure I is the copy of the decree, in A.S.No.49/1990. 3. When E.P.No.14/2005 was filed by the decree holder, the revision petitioners contended, in the objection filed, that the execution petition is barred by limitation. The learned Munsiff ordered delivery of the property, against which the revision petitioner filed W.P.(C).No.24765/2005. This Court set aside the order of the court below and directed the court below to pass fresh order. The petitioners thereafter filed an additional objection to the execution petition and the court below ordered delivery, against which the present Civil Revision Petition is filed. 4. In the detailed reference order, the learned Single Judge has referred to the decision relied upon by both parties. The petitioners relied upon the decisions of the Apex Court in Ratansingh v. Vijaysingh ((2001) (1) SCC 469) = 2001 (1) KLT 327 – SC), Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 – SC = ((2004) 8 SCC 724) and State of Kerala and another v. Kodottyparamban Moosa and others (ILR 2008 (4) Ker. 11). The petitioners relied upon the decisions of the Apex Court in Ratansingh v. Vijaysingh ((2001) (1) SCC 469) = 2001 (1) KLT 327 – SC), Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 – SC = ((2004) 8 SCC 724) and State of Kerala and another v. Kodottyparamban Moosa and others (ILR 2008 (4) Ker. 11). The decision relied upon by the learned counsel for the respondent in which a contrary view was taken, is the one in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 – SC). The decision in Ratnansingh’s case ((2001) 1 SCC 469) = 2001 (1) KLT 327 – SC) is by a Bench of two Judges, the decision in Chandi Prasad’s case ((2004 (3) KLT 654 – SC) is of a Bench of three Judges, the decision in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 – SC) is of a three Judges Bench and the decision in Kondottyparamban Moosa and other’s case (ILR 2008 (4) Ker. 11) is by a Bench of two Judges. The legal points decided in these cases are therefore to be analysed to appreciate the arguments raised by both sides. 5. In Ratansingh’s case (supra), the question considered was under Article 136 of the Limitation Act, 1963, viz. “Decree when becomes enforceable”. Therein, the decree passed in the suit was appealed against and the first appeal was dismissed. After 15 years of the dismissal of the appeal, an execution petition was filed. The decree holder relied upon an order passed by the High Court rejecting a Second Appeal by which the petition for condoning the delay in filing the Second Appeal was dismissed. In para 9 of the judgment, the Supreme Court observed as follows: “Filing of an appeal would not affect the enforceability of the decree, unless the Appellate Court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court and it is the Appellate Court decree which will become enforceable. In para 9 of the judgment, the Supreme Court observed as follows: “Filing of an appeal would not affect the enforceability of the decree, unless the Appellate Court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court and it is the Appellate Court decree which will become enforceable. When the appellate order does not amount to a decree, there would be no suspension and hence the lower court decree continue to be enforceable.” With regard to the effect of the rejection of an application for condonation of delay and whether it amounts to a decree, it was held thus in para 11: “In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied, then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree.” Finally, it was held that “as no decree was passed by the High Court in the Second Appeal the decree of the First Appellate Court remained unaffected and the enforceability once commenced remained undisturbed for a period of 12 years therefrom. The execution process initiated by the appellant long after the expiry of 12 years from 1.8.1973 is thus irretrievably barred. 6. The next decision relied upon in Chandi Prasad’s case (2004 (3) KLT 654 – SC). The matter was considered by a three Judge Bench on a reference, when the correctness of the decision in Ratansingh’s case (2001 (1) KLT 327 – SC) was doubted by a two Judge Bench. The facts of the case therein show that after the dismissal of the appeal by the First Appellate Court on 4.1.1974, the appellant preferred a Second Appeal before the High Court and after the dismissal of the appeal, a formal decree was drawn on 30.10.1986. The application for execution of the decree was filed on 26.3.1997. It was contended that in the absence of a stay order the date of decree of the trial court/First Appellate Court would be the enforceable date for the purpose of Article 136. The application for execution of the decree was filed on 26.3.1997. It was contended that in the absence of a stay order the date of decree of the trial court/First Appellate Court would be the enforceable date for the purpose of Article 136. The contention by the petitioners, against whom the decree was passed, was that the execution petition is hence barred by limitation and the same was rejected by the execution court and thereafter the First Appellate Court as well as the High Court dismissed the challenge against the same. The Apex Court examined the doctrine of merger and after analyzing the various decisions, held in para 24 as follows: “24. It is trite that when an Appellate Court passes a decree, the decree of the Trial Court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the Trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the Trial Court. When a Special Leave Petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. (See V.M. Salgaocar and brs. Pvt. Ltd. V. Commissioner of Income Tax (JT 2000 (40 SC 473 : AIR 2000 SC 1623). In para 28, it was further held as follows: “However, when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply.” In para 29 onwards, the decision in Ratansingh’s case (2001 (1) KLT 327) was considered and distinguished. It was noticed that in the said case no decree was passed when the appeal was dismissed on the ground of it being time barred and finally it was held in para 31 thus: “Ratan Singh (supra), therefore, has no application in this case as admittedly herein the High Court upon dismissal of the second appeal, had drawn up a formal decree on 30 th October, 1986.” The Judgment in Chandi Prasad’s case (supra) is dated 1.10.2004. It was a case where the appeals were dismissed on the merits and not on ground like delay or default, as evident from para 3 of the judgment. 7. It was a case where the appeals were dismissed on the merits and not on ground like delay or default, as evident from para 3 of the judgment. 7. By judgment dated 4.11.2004 another three Judge Bench considered the whole concept of “an appeal”, in Syam Sundar Sarma’s case (2005 (1) KLT 198 – SC). Therein, the facts show that the suit was decree ex-parte and the first defendant filed a petition under Order IX Rule 13 C.P.C. with a petition under Section 5 of the Limitation Act for condoning the delay in filing the petition to set aside the ex-parte decree. Subsequently, an appeal was also filed against the ex-parte decree with a petition to condone the delay. The trial court, in the meanwhile, condoned the delay in filing the petition for setting aside the ex-parte decree. The said order was challenged by the decree holder/plaintiff in a revision petition which was dismissed. Thereafter, both the application for condoning the delay as well as the appeal filed by the first defendant, were dismissed for default. Subsequently, before the trial court, the plaintiff raised an objection regarding the maintainability of the application to set aside the ex-parte decree, as an appeal was filed against the decree. The defendant contended that since the appeal was dismissed for default, the Explanation to Order IX Rule 13 of the Code of Civil Procedure will not create a bar. Ultimately, the matter reached the Apex Court at the instance of the first defendant against whom the orders were passed by the trial court, the first appellate court and the High Court. 8. The Apex Court considered the question whether an appeal accompanied by an application for condoning the delay in filing the appeal, is “an appeal” in the eye of law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time barred by limitation. 8. The Apex Court considered the question whether an appeal accompanied by an application for condoning the delay in filing the appeal, is “an appeal” in the eye of law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time barred by limitation. The decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (59 I.A. 283), and those of the Supreme Court in Raja Kulkarni and others v. The State of Bombay (1954 SCR 384), Messrs Mela Ram and Sons v. The Commissioner of Income Tax, Punjab (1956 SCR 166), K.K. Porbunderwalla v. Commissioner of Income Tax ((1952) 21 ITR 63), Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) and the Board of Revenue v. M/s. Raj Borthers Agencies etc. (1973 (3) SCR 492) were relied upon by the Apex Court. The decision of a Full Bench of this Court in Thambi v. Mathew (1987 (2) KLT 848) in which it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a Second Appeal, was also referred to, approvingly. Finally, it was held thus in para 10: “An appeal registered under R.9 of O.XLI of the Code had to be disposed of accordingly to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissal on the refusal to condone the delay is never the less a decision in the appeal.” The decision of the Apex Court in Ratansingh’s case (2001 (1) KLT 327) was overruled after finding that the various decisions of the Apex Court in Mela Ram & Son’s case (1956 SCR 166) and Sheodan Singh’s case (AIR 1966 SC 1332) were not brought to the notice of the Bench. The view taken by the Apex Court in Syam Sundar Sarma’s case (2005 (1) KLT 198 – SC) is that the dismissal of an appeal after dismissing the application for condoning the delay in filing the same, is a decision in the appeal. Thus, it was held that the Explanation to Order IX Rule 13 C.P.C. will be attracted and a petition under Order IX Rule 13 will not lie. 9. In Kondottyparamban Moosa’s case (ILR 2008 (4) Ker.11) a two Judge Bench of the Apex Court considered the question of applicability of the doctrine of merger. It was held that the doctrine of merger will apply only in a case where a higher forum entertains an appeal or revision and passes an order on merit and not when the appeal or revision is dismissed on the ground that delay in filing the same is not condoned. Therein, the proceedings of the Land Board was challenged before this Court by the State in a revision along with an application for condoning the delay. The application for condoning the delay was dismissed and accordingly the revision was also dismissed. When the State Land Board directed to reopen the matter the respondents challenged the same before this Court. The revision petition was allowed and the State challenged the decision of this Court before the Apex Court. The effect of the same was considered. The Apex Court considered the principles laid down in various decisions and it was held that since the earlier revision petition was not decided on merits, the doctrine of merger cannot be applied to the facts and circumstances of the present case. The observation in Chandi Prasad’s case ((2004) 8 SCC 724) and other decisions holding the view that “when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply” was also relied upon. The argument thus raised herein is that the decision of the Apex Court in Chandi Prasad’s (supra) and Shyam Sundar Sarma’s case (2005 (1) KLT 198 – SC) are of co-equal Benches and there is real conflict. 10. Therefore, the conflicting decisions rendered in Chandi Prasad’s case (2004 (3) KLT 654 – SC) and Shyam Sunder Sarma’s case (2005 (1) KLT 198 – SC) are by coequal Benches. 10. Therefore, the conflicting decisions rendered in Chandi Prasad’s case (2004 (3) KLT 654 – SC) and Shyam Sunder Sarma’s case (2005 (1) KLT 198 – SC) are by coequal Benches. What shall be the principle to be followed by this Court and the subordinate courts in such circumstances, is the question that has arisen for consideration herein, especially in the light of Article 141 of the Constitution of India. 11. We heard the learned counsel for the petitioners, Shri S. Sreekumar and learned counsel for the respondent Shri Subhash Cyriac. On the request from the Bench, learned Advocate General Shri C.P. Sudhakara Prasad appeared and argued about the legal principles to be followed in such situations. When the case was posted for further hearing, we heard the learned Advocate General Shri K.P. Dandapani also. 12. No direct decision of the Apex Court is brought to our notice covering the specific circumstances arising herein. But the Apex Court has laid down various general principles applicable to different situations. There are series of decisions of various High Courts wherein the view taken is that in such circumstances, the later decision of the Apex Court will have to be followed, in the light of Article 141 of the Constitution. The opposite view reflected in various other decisions of different High Courts is that the High Court and subordinate courts can choose to follow a decision which lays down the legal principles more explicitly and correctly, than the other one. 13. Therefore, apart from the main question that is raised, as to which among the decisions has to be followed by the High Court and Subordinate Courts in case of a conflict between the decisions of coequal Benches, another important question that arises for consideration is the impact of Article 141 of the Constitution and the principles to be followed. The principles with regard to rule of “subsilentio” and meaning of the words “per incuriam” were also brought to our notice by the respective counsel, which according to them, may have an application while the courts are confronted with such a peculiar situation. 14. The principles with regard to rule of “subsilentio” and meaning of the words “per incuriam” were also brought to our notice by the respective counsel, which according to them, may have an application while the courts are confronted with such a peculiar situation. 14. The decisions of the various High Courts relied on by Shri Sreekumar, learned counsel for the petitioners where such courts have taken the view that the High Court has got freedom to follow the judgment which appears to be better on point of law, are the following: Smt. Kalabai Choubey and others v. Rajabahadur Yadav and another (AIR 2002 M.P. 8), A.M. Bholanath Karmakar and others v. Madanmohan Karmakar and others (AIR 1988 Calcutta 1), M/s. Indo Swiss Time Limited, Dundahera, v. Umrao and others (AIR 1981 P & H 213) and M/s. Boards & Boards Pvt. Ltd., Jaipur v. M/s. Himalaya Papeer (Machinery) Pvt. Ltd., New Delhi (AIR 1990 Raj. 120). Shri Sreekumar also referred to a Full Bench decisions of the Gujarat High Court in Gujarat Housing Board, Ahmedabad v. Nagajibhai (AIR 1986 Gujarat 81) and that of the Allahabad High Court in Gopal Krishna Indley v. 5th Addl. District Judge, Kanpur and others (AIR 1981 All. 300) and Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. (AIR 1980 Karnataka 92) wherein the view taken is that in the case of conflict between two decisions of the Apex Court presided over by Judges of equal strength, the decision of the later Bench would be binding on the High Court and other courts. Learned counsel tried to distinguish these decisions by referring to various principles laid down in certain other decisions by the Apex Court. 15. Incidentally, we find that the decision of a Division Bench of this Court in Deputy Commissioner v. Anandan (1987 (1) KLT 192) took the view that the High Court is bound to follow the later decision in such cases. The same is the view taken by another learned Single Judge of this Court in Krishnan Namboodiri v. Padmanabhan Namboodiri (1992 (2) KLT 803). 16. The same is the view taken by another learned Single Judge of this Court in Krishnan Namboodiri v. Padmanabhan Namboodiri (1992 (2) KLT 803). 16. Shri S. Sreekumar, in his submissions, argued that going by various decisions of the Apex court especially Subhash Chandra and another v. Delkhi Subordinate Services Selection Board and others ((2009) 15 SCC 458), Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another ((2005) 2 SCC 673) and Union of India and another v. Raghubir Singh (Dead) by Lrs. Etc. ((1989) 2 SCC 754) and other decisions, it can be seen that the decision of a three Judge Bench is binding on a subsequent Bench having equal or lesser number of Judges. Learned counsel submitted that the Apex Court has laid down that a decision rendered in violation of the statutory provisions or without following an earlier binding judgment, is per incuriam and therefore in the light of the above principle, the decision o the later coequal Bench rendered in like circumstances will have to be declared as per incuriam. It is therefore pointed out that the decision of the Apex Court in Chandi Prasad’s case (supra) was binding on the Bench which decided Shyam Sundar Sarma’s case (supra). 17. Per contra, learned Advocate General, Shri C.P. Sudhakara Prasad and Shri Subhash Cyriac, learned counsel appearing for the respondent submitted that the decision in Shyam Sundar Sarma’s case (supra) was rendered in the light of the two earlier binding decisions of the Apex Court by a three Judge Bench in Messrs Mela Ram and sons v. The Commissioner of Income Tax, Punjab (1956 SCR 66) and a four Judge Bench in Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332). The two Judge Bench decision in Ratansingh’s case (supra) was overruled by the three Judge Bench in Shyam Sundar Sarma’s case (supra). It is submitted that the decision of the Full Bench of this Court in Thambi’s case (1987 (2) KLT 848 – FB) was affirmed by the Apex Court in Syam Sundar Sarma’s case (2005 (1) KLT 198 – SC). It is submitted that the decision of the Full Bench of this Court in Thambi’s case (1987 (2) KLT 848 – FB) was affirmed by the Apex Court in Syam Sundar Sarma’s case (2005 (1) KLT 198 – SC). The principles to be followed under Article 141 of the Constitution were placed before us in the light of the Constitution Bench decision of the Apex Court in central Board of Dawoodi Bohra Community’s case ((2005) 2 SCC 673), Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and others ((1990) 3 SCC 682), Govt. of A.P. and another v. B. Satyanarayana Rao (Dead) by LRs. And others ((2000) 4 SCC 262), Babu Parasu Kaikadi’s case ((2004) 1 SCC 681) and the recent decisions of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others (2010 (12) Scale 691) and Safia Bee v. Mohd. Vajahath Hussain alias Fasi (2011 (1) KLT SN 10). It was pointed out by the learned Advocate General that the decision of the Apex Court in Ratansingh’s case (supra) did not refer to the binding decisions of the Apex Court, especially in Messrs Mela Ram’s case (AIR 1956 SC 367) and Sheodan Singh’s case (AIR 1966 SC 1332). They were also biding on the decision of the later Bench which decided Chandi Prasad’s case (supra). It is therefore submitted that the decision of the Apex Court in Ratansingh’s case (supra), Chandi Prasad’s case (supra) and the last of the decision in Kondottiparamban Moosa’s case (ILR 2008 (4) Ker. 11) will be per incuriam. Our attention was invited to the principles stated in Chandi Prasad’s case ((2004) 8 SCC 724) and Shyam Sundar Sarma’s case (2005 (1) KLT 198). It was submitted that on the point of law, the decision of the Apex Court in Shyam Sundar Sarma’s case (supra) is the correct one. 18. Various decisions of the Apex Court and this Court were relied upon in this context. A catena of decisions which have taken the view that the later decision of the Apex Court will have to be followed, were relied upon by the learned counsel for the respondent, including, U.P. State Road Transport Corporation v. The State Transport Appellate (Tribunal), UP, Lucknow & Others (AIR 1977 All. 1). Gopal Krishna Indley’s case (AIR 1981 All. 300) and Gujarat Housing Board’s case (AIR 1986 Guj. 1). Gopal Krishna Indley’s case (AIR 1981 All. 300) and Gujarat Housing Board’s case (AIR 1986 Guj. 81), Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341), Govindanaik G. Kalaghatigi’s case (AIR 1980 Karnataka 92), etc. Various other decisions of the Apex Court and this Court were relied upon Shri Subhash Cyriac, to contend for the position that even in cases where the appeal is dismissed on the ground of the delay petition being dismissed, there will be a decree and therefore the principle of merger will come into play. 19. In fact, as far as this Court is concerned, the very same legal issue is concluded by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958 – FB), wherein it was held that in a case of conflict between two decisions of Benches of equal strength of Judges of the Apex Court, the decision later in time will be binding. The matter went before the Full Bench in the following circumstances: - The provision under consideration was Section 18 of the Land Acquisition Act, 1894. A Division Bench of this Court, in W.A.No.599/1994, by relying upon the judgments of the Apex Court in Wardington Lyngdoh v. Collector, Mawkyrwat ((1995) 4 SCC 428) (Wardington’s case) and Land Acquisition Officer v. Shivabai ((1997) 9 SCC 710), took the view that an oral protest was necessary before the claimant could make an application under Section 18 of the Act. Another Division Bench, in a later case which is reported in Kannan v. Land Acquisition Officer (1999 (2) KLT 643) relied upon an earlier decision of the Apex Court in Ajit Singh v. State of Punjab ((1994) 4 SCC 67) wherein a contrary view was taken and accordingly the matter was referred to the Full Bench. The Division Bench in Kannan’s case (1999 (2) KLT 643) took the view that “as the appellant had sent the application for reference on the very next day itself amply proves that he would not have received the amount of compensation without any protest.” 20. The Full Bench elaborately considered the views of the Apex Court in the three decisions, viz. Ajit Singh’s case ((1994) 4 SCC 67), Wardington’s case ((1995) 4 SCC 428) and Shivabai’s case ((1997) 9 SCC 710). The Full Bench elaborately considered the views of the Apex Court in the three decisions, viz. Ajit Singh’s case ((1994) 4 SCC 67), Wardington’s case ((1995) 4 SCC 428) and Shivabai’s case ((1997) 9 SCC 710). It was considered whether the observations in Ajit Singh’s case (supra) will be a ratio decidendi having binding force. In that context, the Full Bench considered the true interpretation of Article 141 of the Constitution of India and relied upon an earlier decision of a Full Bench of this Court in United India Insurance Co. Ltd. V. Alavi (1998 (1) KLT 951 FB) and it was held thus in paragraphs 58 to 61: “58. It is true that the Division Bench in Kannan’s (1999 (2) KLT 643) case has made a reference to Ajit Singh’s ((1994) 4 SCC 67), case in preference to Wardington’s case ((1995) 4 SCC 428). A perusal of the decision in Ajit Singh’s case shows that in para 5 an observation has been made to the following effect:- “5. …… Inasmuch as the appellants have filed an application for reference under S.18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation”. With great respect, the above quoted observation can neither be construed as the ratio or even an obiter in that case.Mr. Philip Mathew, the learned counsel for the petitioners contended that since the decision in Ajit Singh’s case is also a two Judge Bench decision, it should be preferred to the subsequent two decisions of equal strength, namely, Wardington’s case and Shivabai’s ((1997) 9 SCC 710) case each of which was decided by two learned Judges. Our attention was invited by Mr. Philip Mathew to a decision in Indian Oil Corporation Ltd. V. Municipal Corporation ((1995) 4 SCC 96). The facts of that case are clearly distinguishable and hence its ratio can have no application to the question raised before us. Under Art.141 of the Constitution, it is the law declared by the Apex Court which would undoubtedly be binding on all courts within the territory of India. Art.141 reads as under:- 141. The facts of that case are clearly distinguishable and hence its ratio can have no application to the question raised before us. Under Art.141 of the Constitution, it is the law declared by the Apex Court which would undoubtedly be binding on all courts within the territory of India. Art.141 reads as under:- 141. Law declared by Supreme Court to be binding on all courts.- The law declared by the Supreme court shall be binding on all the courts within the territory of India.” Para 3 of the decision in Indian Oil Corporation’s ((1995) 4 SCC 96) case would show that an earlier of the Three Judge Bench decision of the Apex Court was rendered under the M.P. Municipal Corporation Act and was directly on the point involved between the parties. When the same parties agitated a similar contention before a Division Bench of the Madhya Pradesh High Court Municipal Corporation v. Ratnaprabha, ((1976) 4 SCC 622) the Division Bench took the view that the earlier Apex Court decision of the Three Judge Bench was not binding since that Three Judge Bench decision of the Apex Court was explained by the Apex Court in later decisions of equal strength of Judges in Dewan Daulat Rai Kapoor’s case ((1980) 1 SCC 685) and Balbir Singh’s case ((1985) 1 SCC 167). This view of the Division Bench was disapproved and overruled by the Full Bench of the Madhya Pradesh High Court. The decision of the Full Bench was challenged before the Apex Court in the Indian Oil Corporation’s case ((1995) 4 SCC 96) and the Special Leave Petition was dismissed. Paras 3 and 8 of the Judgment in Indian Oil Corporation’s case make it clear that the contention of Mr. Philip Mathew is clearly misconceived. It is not possible to hold that the observation made in Ajit Singh’s case which we have reproduced in para 58 above is its ratio or the law declared by the Apex Court within the meaning of Art.141 so as to be binding on this Court. 59. In this behalf, we may refer to a decision of a Full Bench of this Court, to which one of us K.S. Radhakrishnan, J. was a party. In United India Insurance Co. Ltd. V. Alavi ((1998 (1) KLT 951) this Court dealt with the question of a precedent of the Apex Court binding on this court by virtue of Art.141. In this behalf, we may refer to a decision of a Full Bench of this Court, to which one of us K.S. Radhakrishnan, J. was a party. In United India Insurance Co. Ltd. V. Alavi ((1998 (1) KLT 951) this Court dealt with the question of a precedent of the Apex Court binding on this court by virtue of Art.141. A reference was made to the decision in Delhi Transport Corporation v. D.T.C. Mazdoor Congress ((1991) Supp. SCC 600) dealing with the expression ‘declared’ as against the words ‘found’ or ‘made’. The Apex Court held that a decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution. Reference was then made to the decision in State of U.P. v. Synthetics & Chemicals Ltd. ((1991) 4 SCC 139) where it was held: “Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidly beyond reasonable limits is inimical to the growth of law ……. Law declared is not that can be culled out, but that which is stated as law to be accepted and applied. A conclusion without reference to relevant provision of law is weaker than even casual observation”. (emphasis ours) 60. Law declared is not that can be culled out, but that which is stated as law to be accepted and applied. A conclusion without reference to relevant provision of law is weaker than even casual observation”. (emphasis ours) 60. K.S. Radhakrishnan, J. speaking for the Court in Alavi’s case then observed: “It is therefore well settled that what is the essence of a decision is its ratio and not every observation, nor what logically follows from various observations made in it.” Reference was made to the decision in Quinn v. Leathem ((1901) AC 495), where the observations of Lord Halsbury, L.C. appeared to the following effect: “…..there are two observations of a general character which I wish to make and one is to repeat what I have every often said before, that every Judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expression which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what is actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” (emphasis supplied) Reference was then made to the decision of the Apex Court in M/s. Orient Paper & Industries Ltd. V. State of Orissa (AIR 1991 SC 672) and it was held that any conclusion without any reference to the relevant portions of law is weaker than even casual observation. Such a casual observation cannot be treated as declaration of law much less as an authority which was a binding precedent. 61. We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision. 61. We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision. Applying this principle we must follow the ratio of a decision in Wardington’s ((1995) 4 SCC 428) case decided on 17th April, 1995 and Shivabai’s ((1997) 9 SCC 710) case decided on 4th April, 1997 in preference to the observation made in Ajit Singh’s ((1994) 4 SCC 67), case decided on 18th March, 1994. The decisions of the High Court are as under: (i) In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341), a Division Bench of the Bombay High Court was dealing with a similar question under Article 141. It was held that in case of a clear conflict between two decisions of the Apex Court of equal number of Judges, the later decision would be binding on the High Court. (ii) In Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. (AIR 1980 Karnataka 92) a Full Bench of five learned Judges of the Karnataka High Court held that if two decisions of the Apex Court on a question of law cannot be reconciled and one of them was by a larger Bench while the other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by the High Courts and other Courts. However, if both such Benches of the Apex Court consists of equal number of Judges, the later of the two decision should be followed by the High Courts and other Courts. This opinion of the Full Bench is to be found in para 12 at page 95. (iii) In Amar Singh Yadav v. Shanti Devi (AIR 1987 Patna 191 (F.B.)), a Full Bench of the Patna High Court held that where there is a direct conflict between two decisions of the Apex Court rendered by Benches of equal strength, the High Court must follow that judgment which appears to it to state the law more elaborately and accurately. The said observations are to be found in para 24 of the judgment at page 201.” 21. The said observations are to be found in para 24 of the judgment at page 201.” 21. The decisions of other High Courts relied upon by the Full Bench in Joseph’s case (supra) are: Vasant Tataba Hargude v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341) and Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. (AIR 1980 Karnataka 92 – FB). Finally, in para 62, after considering the observations in Ajit Singh’s case (supra), the Full Bench held that the observation therein is not the ratio which is binding and accordingly the decision of the Division Bench in Kannan’s case (supra) was overruled. It was held thus in para 62: “62. Applying the above principles we have no hesitation in coming to the conclusion that the observation in Ajit Singh;s case decided by the Apex Court on 18th March, 1994 namely: “Inasmuch as the appellants have filed an application for reference under S.18 of the Act, that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation” cannot be taken to be the law declared by the Apex Court so as to be binding on us by virtue of Art.141. It appears to us to be an observation and not the ratio of the judgment.” Therefore, it is evident from the above decision of the Full Bench in Joseph’s case (supra) that in case of conflict between the two judgments of co-equal Benches, the later one has to be followed and what is binding is the ratio of a decision, going by Article 141 of the Constitution. 22. In fact, in Alavi’s case (1998 (1) KLT 951 – FB), the Full Bench examined the scope of Article 141 of the Constitution of India and held in para 20 as follows: “A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution of India.” The Full Bench in the said case followed the dictum laid down in by the Apex Court in State of U.P. v. Synthetics & Chemicals Ltd. ((1991) 4 SCC 139). From para 22 onwards the Full Bench discussed the decisions of the Apex Court explaining the meaning of the words “per incuriam” and the rule of “subsilentio”. From para 22 onwards the Full Bench discussed the decisions of the Apex Court explaining the meaning of the words “per incuriam” and the rule of “subsilentio”. Paragraphs 22 and 23 are extracted below: “22. Supreme Court noted that the problem has arisen due to the conclusion in the case of Synthetic and Chemicals (1990) 1 SCC 109). Question that arose in that case was as to whether State Legislature could levy vend fee or excise duty on industrial alcohol. The Bench answered the question in the negative as industrial alcohol being unfit for human consumption, the State Legislation was incompetent to levy and duty of excise either under Entry 51 of Entry 8 of List II of the Seventh Schedule. While doing so, it was not preceded by any discussion. No reason or rationale could be found in the order. This gave rise to an important question, if the conclusion is law declared under Art. 141 of the Constitution, or it is per incuriam and is liable to be ignored. Supreme Court explained the meaning of the words ‘per incuriam’ and dealt with the rule of sub-silentio. Supreme Court in the above mentioned decision held: “’incuria” literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’: Young v. Bristol Aeroplane Co. Ltd., (1944) 1 KB 718. Same has been accepted, approved and adopted by this Court while interpreting Art.141 of the Constitution which embodies the doctrine of precedents as a matter of law”. After examining various principles, the Supreme Court concluded: “The Bench further was not apprised of earlier Constitution Bench decisions in Hoechst Chemicals v. State of Bihar, AIR 1983 SC 1019, and Ganga Sugar Mill v. State of U.P., (1980) 1 SCC 223, which specifically dealt with the legislative competence of levying sales tax in respect of any industry which had been declared to be of public importance. Therefore, the conclusion of law by the Constitution Bench that no sales or purchase tax could be levied on industrial alcohol with utmost respect fell in both the exceptions, namely, rule of subsilentio and being in per incuriam, to the binding authority of the precedents.” 23. Therefore, the conclusion of law by the Constitution Bench that no sales or purchase tax could be levied on industrial alcohol with utmost respect fell in both the exceptions, namely, rule of subsilentio and being in per incuriam, to the binding authority of the precedents.” 23. It is therefore well settled that what is the essence of a decision is its ratio and not every observation, nor what logically follows from various observations made in it. In this connection it is profitable to refer to the dictum laid down by Lord Halsbury, L.C. in Quinn v. Leathern, (1901) AC 495, 506: “….. there are two observations of a general character which I wish to make and one is to repeat what I have every often said before, that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what is actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” The above dictum was quoted with approval by the Supreme Court in M/s. Orient Paper & Industries Ltd. V. State of Orissa, AIR 1991 SC 672, 680. As held by the Supreme Court any conclusion without any reference to the relevant provisions of law is weaker than even causal observation. It is also held by the Supreme Court that any declaration made or conclusion arrived at without application of mind or preceded without any reason cannot be a declaration of law, or authority, as a binding precedent.” Therefore, the Bench was of the view that what is relevant is the declaration of law by the Apex Court and any declaration made or conclusion arrived at without application of mind or proceeded without any reason, cannot be a declaration of law or authority as a binding precedent. Hence, this will act as a binding principle whenever a Court is confronted with the question of analyzing the decisions to find out the law declared in them. 23. In Union of India and others v. Dhanwanti Devi and others ((1996) 6 SCC 44), which is relied upon by Shri Sreekumar, learned counsel for the petitioners, the relevant principles were restated. It was held that what is binding is the ratio and not every observation therein. Para 9 laid down the principle thus: “It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates – (i) findings of material facts, direct and inferential. An inferential finding of the facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.” 24. A Constitution Bench in B. Shama Rao v. Union Territory of Pondicherry (AIR 1967 SC 1480) held in para 5 that “a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.” We are of the view that the emphasis given to find out the abstract ratio decidendi is quite important while considering the question posed herein. In that manner, the question whether a decision is a binding one or not will have to be addressed by a Court, whenever such issues are posed before it. 25. As already noticed, a Division Bench of this Court in Deputy Commissioner v. Anandon (1987 (1) KLT192) had taken the view that the later one will have to be followed and that a learned Single Judge in Krishnan Namboodiri’s case (1992 (2) KLT 803) also held that the later one will have to be followed, when both decisions are rendered by Benches of co-equal strength. 26. Unfortunately, the binding decisions of the two Full Benches of this Court in Alavi’s case (supra) and Joseph’s case (supra) were not brought to the notice of the learned Single Judge before whom the various questions were argued. 26. Unfortunately, the binding decisions of the two Full Benches of this Court in Alavi’s case (supra) and Joseph’s case (supra) were not brought to the notice of the learned Single Judge before whom the various questions were argued. In the reference order, in para 7, after referring to the decision of a Division Bench in Deputy Commissioner v. Anandan (1987 (1) KLT 192), that of a Full Bench of the Allahabad High Court in Gopal Krishna Indley v. 5th Additional District Judge, Kanpur and others (AIR 1981 All. 300) and also that of the Full Bench of Gujarat High Court in Gujarat Housing Board, Ahmedabad v. Nagajibhai Laxmanbhai and others (AIR 1986 Gujarat 81), the learned Judge was of the view that “So much so, if there are conflicting judgments of the Supreme Court on the same question of law, the High Court has to follow the later and it cannot have a choice of selection by examining the reasonableness and acceptance of one among the two judgments on its assessment of its reasonableness and accuracy of the law stated in such judgments.” 27. After we noticed the decision of the Full Bench in Joseph’s case (2001 (1) KLT 958 – FB), the matter was reposted for hearing and we heard learned counsel for the parties and learned Advocate General, Shri K.P. Dandapani. Evidently, the decision of the Full Bench above, is binding on us, but the learned counsel appearing for the petitioners, Shri S. Sreekumar tried to distinguish the said decision of the Full Bench in Joseph’s case (supra) in the light of the principles concerning the meaning of the words “per incuriam” laid down in various decisions of the Apex Court. According to Shri S. Sreekumar, the question as now raised, was not the one, which arose for consideration before the Full Bench in Joseph’s case (supra). 28. Learned Advocate General Shri K.P. Dandapani invited our attention to the principles stated in Baby Parasu Kaikadi’s case ((2004) 1 SCC 681) wherein the meaning of the expression ‘per incuriam’ has been discussed after relying upon the earlier decisions of the Apex Court. Paragraphs 16 and 17 therein are reproduced below: “16. In State of U.P. V. Synthetics and Chemicals Ltd. ((1991) 4 SCC 139) this Court observed: (SCC pp. 162-63 para 40) “40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. Paragraphs 16 and 17 therein are reproduced below: “16. In State of U.P. V. Synthetics and Chemicals Ltd. ((1991) 4 SCC 139) this Court observed: (SCC pp. 162-63 para 40) “40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd. – (1944) 2 All ER 298 (CA)). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.” 17. In Govt. A.P. v. B. Satyanarayana Rao – ((2000) 4 SCC 262) it has been held as follows: (SCC p. 264, para 8) “The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue,” The next decision relied upon by the learned Advocate General is Central Board of Dawoodi Bohra – Community and another v. State of Maharashtra and another ((2005) 2 SCC 673). We will be discussing in detail the said judgment in the later part. 29. In this context, we will have to necessarily consider the various principles governing the interpretation of Article 141 of the Constitution. The said Article reads as follows: “141. Law declared by Supreme Court to be binding on all courts—The law declared by the Supreme Court shall be binding on all courts within the territory of India.” Evidently, in the light of the same, the declaration of the Apex Court on legal issues are binding on all Courts in India. As held in Delhi Transport Corporation’s case (1991 (Supp) SCC 600), the expression ‘declared’ is wider than the words ‘found’ or ‘made’ and ‘law declared by the Supreme Court is the law of the land’. Incidentally, it is profitable to notice that questions have arisen as to the binding nature of precedents as far as the Supreme Court and other Courts are concerned. 30. We may now refer to the decision of a Constitution Bench of the Apex Court in Bengal Immunity Co. Incidentally, it is profitable to notice that questions have arisen as to the binding nature of precedents as far as the Supreme Court and other Courts are concerned. 30. We may now refer to the decision of a Constitution Bench of the Apex Court in Bengal Immunity Co. Ltd. V. State of Bihar (AIR 1955 SC 661). Their Lordships considered the question whether the power of the Supreme Court to overrule a previous decision is restricted by Article 141 of the Constitution of India or not, after surveying in detail the situation in other countries. The Bench delineated the principles thus in para 15: “15. In considering the applicability of the principles laid down in the decisions herein before mentioned, it should be borne in mind that the English decisions may well have been influenced by considerations which can no longer apply to the circumstances prevailing in India. The error, if any, of the Court of Appeal in England, may be corrected by the House of Lords or eventually by Parliament by a Simple majority. The mistakes, if any, made by the High Court of Australia, if not corrected” by itself in a subsequent case, could be set right by the Privy Council when appeals were taken there or by the appropriate legislative authority. An error made by the House of Lords or the Privy Council can easily be rectified by Parliament by a simple majority by an amending statute. But in a country governed by a federal Constitution, such as the United States of America and the Union of India are it is by no means easy to amend the Constitution if an erroneous interpretation is put upon by this Court. (See Art. 368 of our Constitution). An erroneous, interpretation of the Constitution may quite conceivable be perpetuated or may at any rate remain uncertified for a considerable time to the great detriment to public well being. The considerations adverted to in the decisions of the Supreme Court of America quoted above are, therefore, apposite and apply in full force in determining whether a previous decision of this Court should or should not be disregarded or overruled. There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public. There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public. Article 141 which lays down that the law declared by this Court shall be binding on all Courts within the territory of India quite obviously refers to Courts other than this Court.The corresponding provision of the Government of India Act, 1935 also makes it clear that the Courts contemplated are the Subordinate Courts.” (Emphasis supplied) 31. Learned counsel for the petitioners relied upon the following decisions of the Apex Court in the context of highlighting the meaning of the words “per incuriam”. They are: Union of India and another v. Raghubir Singh (dead) by Lrs. Etc. ((1989) 2 SCC 754), Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another ((2005) 2 SCC 673) and Subhash Chandra and another v. Delhi Subordinate Service Selection Board and others ((2009) 15 SCC 458). The decision of the Apex Court in Raghubir Singh’s case ((1989) 2 SCC 754) is by a Constitution Bench which elaborately considered the law on precedents and the importance of the same and the various circumstances under which the Apex Court will be justified in overruling its own decisions. After referring to Bengal Immunity Company Ltd’s case (AIR 1955 SC 661), the Apex Court held thus in para 15: “The question then is not whether the Supreme Court is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest Court over-turn its own pronouncements.” After surveying the position in various countries, viz. England, Australia and United States of America, their Lordships relied upon the principles stated by the Apex Court in Bengal Immunity Company Ltd’s case (AIR 1955 SC 661), and referred to the views of Das, Acting C.J. speaking for the majority. England, Australia and United States of America, their Lordships relied upon the principles stated by the Apex Court in Bengal Immunity Company Ltd’s case (AIR 1955 SC 661), and referred to the views of Das, Acting C.J. speaking for the majority. It was observed thus in para 21: “The appeal to the principle of stare decisis was rejected on the ground that (a) the decision intended to be overruled was a very recent decision and it did not involve overruling a series of decisions, and (b) the doctrine of stare decisis was not an inflexible rule, and must, in any event, yield where following it should result in perpetuating an error to the detriment of the general welfare of the public or a considerable section thereof.” Finally, in paragraphs 27 and 28 the relevant principles were laid down on the question whether a Division Bench of Judges is obliged to follow the law laid down by a Division Bench of larger number of Judges, thus: “27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case realizing the same point subsequently before a Division Bench of a smaller number of Judges? 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 certainly 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 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 thereto, 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. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal ((1975) 3 SCC 836), a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal ((1975) 3 SCC 198), decided by a Division Bench of two Judges. Again in Indira Nehru Gandhi v. Raj Narain (1975 Supp. SCC 1), Beg J held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in Kesavananda Bharativ State of Kerala ((1973) 4 SCC 225). In GanapatiSitaram Balvalkar v. Waman Shripad Mage, (1981 (4) SCC 143) this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, (1974 (2) SCC 365), 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 decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat (1975 (1) SCC 11) that even where the strength of two different Division benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat (1975 (1) SCC 11) that even where the strength of two different Division benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was reaffirmed in Union of India v. Godfrey Philips India Ltd. (1985 (4) SCC 369) which noted that a Division Bench of two Judges of this Court in Jit Ram Shiv Kumar v. State of Haryana (1981 (1) SCC 11) had differed from the view taken by an earlier Division Bench of two Judges in Motilal Paampat Sugar Mills v. State of U.P. (1979 (2) SCC 409) on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference. 28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of this Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible.” 32. This decision was followed by a later Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (2005 (2) SCC 673). Their Lordships considered the procedure to be adopted by a Bench of lesser strength, which may have a doubt about the view taken by a larger Bench earlier and the meaning of the words “per incuriam” was also examined. After elaborately considering the decision in Raghubir Singh’s case (1989 (2) SCC 754), the legal position was summed up in paragraphs 7 and 12 thus: “7. After elaborately considering the decision in Raghubir Singh’s case (1989 (2) SCC 754), the legal position was summed up in paragraphs 7 and 12 thus: “7. Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam. (emphasis supplied) 12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms: (1) The law laid down by this court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh (1989 (2) SCC 754) and Hansoli Devi (2002 (7) SCC 273). 33. In fact, in both the above decisions, the legal position as above, was analysed by the Apex Court in the light of the objections raised in the respective cases, that reference to the larger Bench itself was not correct. In Raghubir Singh’s case (1989 (2) SCC 754) a two Judge Bench referred the matter to a larger Bench after examining the decisions of the Apex Court of a two Judge Bench in K. Kamalajammanniavaru v. Special Land Acquisition Officer (1985 (1) SCC 582) and of a three Judge Bench in Bhag Singh v. Union Territory of Chandigarh (1985 (3) SCC 737). The preliminary objection raised was that “the mere circumstance that a Bench of two learned Judges finds itself in doubt about the correctness of the view taken by a Bench of three learned Judges should not provide reason for referring the matter to a larger Bench.” The whole matter arose on the interpretation of certain provisions of the Land Acquisition Act, 1894. 34. In the latter decision in Central Board of Dawoodi Bohra Community’s case (2005 (2) SCC 673) also, a two Judge Bench placed the matter before a seven Judge Bench for considering the view taken by a five Judge Bench in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962 Supp. (2) SCC 496 = AIR 1962 SC 853). 34. In the latter decision in Central Board of Dawoodi Bohra Community’s case (2005 (2) SCC 673) also, a two Judge Bench placed the matter before a seven Judge Bench for considering the view taken by a five Judge Bench in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962 Supp. (2) SCC 496 = AIR 1962 SC 853). An objection was raised in the matter later when it was being heard by a larger Bench. Therefore, the relevant principles were laid down in Reghubir Singh’s case (supra) and in Dawoodi Bohra Community’s case (supra) while considering the objection regarding the validity of the reference made to the larger Bench. 35. In fact, in Raghubir Singh’s case (1989 (2) SCC 754) itself the Apex Court while considering the binding nature of declaration of law by Article 141 of the Constitution of India, has emphasized the principles relating to the doctrine of binding precedents and the limitations of it which require a re-adjustment at a later point of time. R.S. Pathak, C.J. who spoke for the Bench, declared the position in illuminating passages at pages 766 and 767 (paragraphs 7 to 11), thus: “7 …. The range of judicial review recognized in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. The power extends to examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the Constitution. (See Kesavananda Bharati v. State of Kerala – (1973 (4) SCC 225), Indira Nehru Gandhi v. Raj Narain – (1975 Supp. SCC 1), Minerva Mills Ltd. v. Union of India – (1980 (2) SCC 591) and recently in S.P. Sampath Kumar v. Union of India – (1987 (1) SCC 124). With this impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rest on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on all courts within the territory of India. 8. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on all courts within the territory of India. 8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law. 9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court. 10. But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for re-adjustment in a changing society, a re-adjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that “the life of the law has not been logic it has been experience” , (Oliver Wendell Holmes: The Common Law, p. 5) and again when he declared in another study (Oliver Wendell Holmes: Common Carriers and the Common Law, (1973 (9) Curr LT – 387, 388) that “the law is forever adopting new principles from life at one end” and “sloughing off” old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined. (Julius Stone: Legal Systems and Lawyers Reasoning, pp.58-59). 11. Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition or the modalities of an indeterminacy such as “fairness” or “reasonableness”, but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters.” 36. The next decision relied upon by Shri S. Sreekumar, learned counsel for the petitioners, is Subhash Chandra’s case (2009 (15) SCC 458), wherein the above two decisions were relied upon. We quote paragraphs 96, 98 and 100 herein: “96. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. In S. Pushpa (2005 (3) SCC 1), decisions of the Constitution Benches of this Court in Milind (2001 (1) SCC 4) had not been taken into consideration. Although Chinnaiah (2005 (1) SCC 394) was decided later on, we are bound by the same. It is now a well settled principle of law that a Division Bench in case of conflict between a decision of a Division Bench of two Judges and a decision of a larger Bench and in particular Constitution Bench, would be bound by the later. (See Sardar Associates v. Punjab & Sind Bank – (2009 (8) SCC 257). 98. It is also well known that a decision rendered in ignorance of a binding precedent and/or in ignorance of a constitutional provision, would be held to have been rendered per incuriam. 100. In Black’s Law Dictionary, 8th Edn. 2004 it is stated: “There is at least one exception to the rule of stare decisis. I refer to judgments rendered per incuriam. 100. In Black’s Law Dictionary, 8th Edn. 2004 it is stated: “There is at least one exception to the rule of stare decisis. I refer to judgments rendered per incuriam. A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind: first where the Judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with which attorneys and Judges may comb the case law, errare humanum est, and sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; thus, it has no authority …. The same applies to judgments rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that the legislation was not invoked’. Louis-Philippe Pigeon, Drafting and Interpreting Legislation 60 (1988). ‘As a general rule the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence’. Rupert Cross & J.W. Harris, Precedent in English Law 149 (4th Edn. 1991)” 37. The argument raised by the learned counsel hence is that the decision of an earlier three Judge Bench is binding on a later Bench of equal or smaller strength and a decision rendered without noticing the same, is per incuriam. Our attention was then invited to a decision of a Division Bench of Delhi High Court in Wee Aar Constructive Builders v. Simplex Concrete Piles (India) Ltd. (167 (2010) DLT 723). Our attention was then invited to a decision of a Division Bench of Delhi High Court in Wee Aar Constructive Builders v. Simplex Concrete Piles (India) Ltd. (167 (2010) DLT 723). Therein, two conflicting decisions of the Apex Court in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti (AIR 1962 SC 666) and Essar Constructions v. N.P. Rama Krishna Reddy (2000 (6) SCC 94) arose for consideration. In fact, the Apex Court in Essar Constructions’ case (supra) had distinguished the former decision. The Division Bench had to deliberate a like question as it was of the view that the views taken by the later Bench in Essar Constructions’ case (supra) are irreconcilable with the earlier judgment in Nilkantha Sidramappa Ningashetti’s case (supra). But, herein we notice that the earlier decision in Nilkantha Sidramappa Ningashetti’s case (supra) is by a larger Bench of four Judges and the later one was by a Bench of two Judges. Therefore, the situation that was examined by the Delhi High Court is not identical to the one arising here. The Delhi High Court examined the question in para 7 onwards relying upon the judgments of the Apex Court in Raghubir Singh’s case (1989 (2) SCC 754) and the later decision of a Constitution Bench in Chandra Prakash v. State of U.P. (AIR 2002 SC 1652). It was held in para 11 that if a later co-ordinate Bench finds it impossible to follow the existing ratio, it can do no more than refer the matter to a larger Bench. It was also held in para 13 with reference to the decisions of the Apex Court in Nilkantha Sidramappa Ningashetti’s case (AIR 1962 SC 666) and Essar Construction’s case (2006 (6) SCC 94) that the smaller and the later Bench had no freedom other than to apply the law laid down by the earlier and larger Bench. In fact, the question considered therein is not one identical to the one arising herein. 38. Another decision relied upon is that of the Apex Court in Safiya Bee v. Mohd. Vajahath Hussain alias Fasi (2011 (2) SCC 94), wherein also the question considered is the validity of the decision of a later co-ordinate Bench overruling the earlier decision of a co-ordinate Bench of equal strength. 38. Another decision relied upon is that of the Apex Court in Safiya Bee v. Mohd. Vajahath Hussain alias Fasi (2011 (2) SCC 94), wherein also the question considered is the validity of the decision of a later co-ordinate Bench overruling the earlier decision of a co-ordinate Bench of equal strength. It was held in para 15 thus: “It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well accepted and desirable practice is that the later Bench would refer the case to a larger Bench.” The Apex Court relied upon the decision of the Constitution Bench in Raghubir Singh’s case (1989 (2) SCC 754). In fact, the said principle was reiterated while considering the conflicting judgments of two Benches of the High Court. What is emphasized is that the course open to a Bench in such a situation is to refer the matter to be heard by a larger Bench. It was a case where the latter Bench overruled the decision, on a point of law, by an earlier Bench. 39. In a recent decision of the Apex Court in Sidharam Satlingappa Mhetre v. State of Maharashtra and others (2011 (1) SCC 694) also, the very same principles were reiterated in the light of Raghubir Singh’s case (1989 (2) SCC 754) and other subsequent decisions and in paragraphs 149 and 150 the principle was laid down thus: “149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three Judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbia’s case (1980 (2) SCC 565) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam. 150. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbia’s case (1980 (2) SCC 565) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam. 150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon’ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.” 40. The decision of the Apex Court in Union of India and others v. S.K. Kapoor (2011 (4) SCC 589) also reiterates the same principle that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench. 41. A learned Single Judge of this Court, (R. Basant, J.) in Ganga v. Lakshmi Ammal (2008 (2) KLT 306), after referring to various decisions of the Apex Court including Central Board of Dawoodi Bohra Community’s case (2005 (2) SCC 673), summed up the practice to be followed as laid down in various decisions, in para 32 thus: 32. The law of precedents appears to be clear. I may only attempt to reiterate the same from principle and precedent. The following principles appear to be settled beyond controversy. (i) The law declared by the Supreme Court, under Art.141 of the Constitution of India, is binding on all other courts. (ii) Conflict between two decisions cannot be lightly inferred or assumed. Every attempt must be made by the courts to harmonize the various binding precedents. It will have to be assumed and presumed that, though not specifically referred to, the court was aware of all binding precedental dicta and statutory provisions. (iii) If there be, and if only there be, unavoidable and irreconcilable and inescapable conflict, the question of which decision to follow and which to be reckoned as binding would arise. Then the decision of the larger bench must be followed. The position is the same whether the larger bench is prior or later in point of time. In such a situation the fact that the larger bench does not refer to the earlier decision of the smaller bench is irrelevant. Then the decision of the larger bench must be followed. The position is the same whether the larger bench is prior or later in point of time. In such a situation the fact that the larger bench does not refer to the earlier decision of the smaller bench is irrelevant. (iv) A smaller bench or a co-ordinate bench cannot lay down a legal proposition different from an earlier binding decision of a larger or co-ordinate bench. If there be disagreement, the smaller bench must follow the earlier binding decision and a co-ordinate bench is bound to refer the matter to a larger bench for its decision. The smaller bench if it disagrees can at best only request the Chief Justice to invoke his powers to place the matter before a larger bench. Consequently it must be assumed and presumed that no smaller or coordinate bench ever lays down or intends to lay down a principle contrary to the binding decision of an earlier larger or co-ordinate bench. (v) If a smaller or co-ordinate bench refers to the decision of an earlier larger bench or co-ordinate bench and takes a decision explaining the same, such explanation/understanding of the larger/coordinate bench decision by such smaller or co-ordinate bench shall be followed later by all smaller or co-ordinate benches unless they resort to the course of reference as indicated in (iv) above. (vi) If any smaller or co-ordinate bench unfortunately overlooks or omits to refer to an earlier binding precedent of a larger or co-ordinate bench and a conflict of the nature referred to in proposition (i) exists, such later decision has no binding sway and must be reckoned as rendered per incuriam. Such decisions per incuriam cannot be followed. Subordinate courts with respect must choose to follow the earlier binding precedents notwithstanding the later per incuriam decision of the smaller or co-ordinate bench.” 42. Shri S. Sreekumar, learned counsel for the petitioners in this context relied upon a decision of the Apex Court in Haryana Financial Corporation and another v. Jagdamba Oil Mills and another (2002 (3) SCC 496) wherein the Apex Court cautioned the courts that the judgments of courts cannot be considered as statutes and the fact situation will have to be assessed before applying the legal principles. The relevant paragraph wherein the said principle was laid down in para 19, which is extracted below: “19. The relevant paragraph wherein the said principle was laid down in para 19, which is extracted below: “19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are not to be read as Euclid’s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (at p. 761) Lord MacDermot observed: (All ER p. 14C-D) “The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.” In fact, in para 21 their Lordships further held as follows: “Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.” (emphasis supplied) Therefore, the fact situation should be born in mind before applying the legal principles. Blindly relying on a decision, was held as not proper. Hence, endeavour should always be on analyzing the facts of the decisions relied on, law laid down therein and the facts of the case in hand. 43. An earlier decision of the Apex Court in Jaisri Sabu v. Rajdewan Dubey and others (AIR 1962 SC 83) is one concerning the method to be adopted by a later Bench of the High Court which does not agree with an earlier Bench decision. Paragraphs 9 and 10 of the judgment are important in this context. Their Lordships considered a case where two conflicting decisions are placed before a later Bench. Paragraphs 9 and 10 of the judgment are important in this context. Their Lordships considered a case where two conflicting decisions are placed before a later Bench. It was held that the correct procedure to be followed by the Bench would be refer the question for the decision of a Full Bench. Thus, it is a case where the earlier judgment was brought to the notice of the latter Bench, unlike the situation herein. 44. The decision of the Apex Court in Kunhayammed and others v. State of Kerala and another (2000 (6) SCC 359) relied upon herein by both sides, was one considering the scope of doctrine of merger. Mainly it was one considering the effect of dismissal of a Special Leave Petition in limine and by reasoned orders. The relevant principles are stated in Paragraphs 32, 34, 40, 41, 42, 44(vi), which are as follows: “It may be that in spite of having granted leave in appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of the Supreme Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with the Supreme Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal. (para 32) The doctrine of merger and the right of review are concepts which are closely interlinked. If the judgment of the High Court has come up to the Supreme Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of the Supreme Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of the Supreme Court. But, where the special leave petition is dismissed – there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. But, where the special leave petition is dismissed – there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere or it may not interfere depending upon the law and principles applicable to interference in the review.” (para 34 & 40) Once a special leave petition has been granted, the doors for the exercise of the appellate jurisdiction of this Court have been left open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. (para 41) “To merge” means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up, Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser cease to exist, but the greater is not increased, an absorption or swallowing up so as to involve a loss of identity and individuality (para 42) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.” (para 44(vi). 45. We will now come to certain other decisions, referred to by the learned counsel, which also reiterate the principles applicable in different situations. 45. We will now come to certain other decisions, referred to by the learned counsel, which also reiterate the principles applicable in different situations. In State of U.P. v. Ram Chandra Trivedi (AIR 1976 SC 2547) their Lordships held that the High Court will be justified in following the opinion expressed by larger benches in preference to those expressed by smaller benches. It was held that the same principle was followed by the Apex Court as a rule of law. Their Lordships laid down the principle in para 22. The same is the view expressed in Union of India and another v. K.S. Subramanian (AIR 1976 SC 2433). 46. A Full Bench of this Court in Peter v. Sara (2006 (4) KLT 219 – FB), following some of the decisions of the Apex Court, held in para 5 that “ordinarily, a court of coordinate jurisdiction is expected to follow the decision of a coequal Bench.” 47. Another decision pointed out before us is that of a Full Bench of this Court in Mayilvahanam Marketing, Shoranur and others v. Addl. Sales Tax Officer, Ottappalam and others (2007 (3) KHC 360). After referring to various decisions of the Apex Court and this Court, the Bench noted the situation wherein the precedents cease to be binding and the principle was explained thus in para 9: “On Law of Precedents, it is time and again noticed by the Apex Court in several decisions, that the precedents cease to be binding if it is reversed or over-ruled by a Higher Court, when it is affirmed or reversed on a different ground, when it is inconsistent with the earlier decisions of the same rank, when it is sub-silentio; and when it is rendered per curiam. Such a situation does not exist in these cases.” 48. We have already noticed the various decisions of the Full Benches of different High Courts which were relied upon by the learned counsel for the respondent Shri Subhash Cyriac, to contend for the position that the decision which is rendered at a later point of time, will be binding under Article 141 of the Constitution of India. Since we have already referred to those decisions which were relied upon by a Full Bench of this Court in Joseph’s case (2001 (1) KLT 958 – FB), we are not elaborately considering the effect of the same. 49. Since we have already referred to those decisions which were relied upon by a Full Bench of this Court in Joseph’s case (2001 (1) KLT 958 – FB), we are not elaborately considering the effect of the same. 49. Shri Subhash Cyriac argued that the decision of the Apex Court in Shyam Sundar Sarma’s case (2005 (1) KLT 198 – SC) really followed the decision of a three Judge Bench in Mela Ram and Sons v. The Commissioner of Income Tax (1956 SCR 166) and Sheodan Singh’s case (AIR 1966 SC 1332). We are not considering these contentions on the merits, since it will have to be considered while hearing the Civil Revision Petition by the appropriate Bench. 50. Several other decisions also were relied upon by Shri Subhash Cyriac, learned counsel for the respondent, with regard to the doctrine of merger. We are not referring to all those decisions since the legal point referred to the Full Bench is not one concerning the doctrine of merger. 51. The this context, we feel it apposite to examine certain decisions of the Apex Court which have laid down a binding principle that High Courts cannot ignore a decision of the Apex Court and charter a different course. The judicial discipline to be exercised when there is a clear pronouncement of the law by the Apex Court, in the light of Article 141 of the Constitution of India, was highlighted in many of these decisions. In this regard, one of the earlier decisions of the Apex Court in Ballabhdas Mathuradas Lakhani and others v. Municipal Committee, Malkapur (AIR 1970 SC 1002) is relevant. In para 4 of the judgment, their Lordships held as follows: “The decision was binding on the High Court and the High Court could not ignore it because they thought that “relevant provisions were not brought to the notice of the Court.” 52. In Ganga Sugar Corporation Ltd. v. The State of U.P. and others (AIR 1980 SC 286), another Constitution Bench held that the decisions of the Apex Court are declaratory for the nation. In Ganga Sugar Corporation Ltd. v. The State of U.P. and others (AIR 1980 SC 286), another Constitution Bench held that the decisions of the Apex Court are declaratory for the nation. In para 29, their Lordships declared the legal position thus: “Enlightened litigative policy in the country must accept as final the pronouncements of the Supreme Court by a Constitution Bench unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions. Pronouncements by Constitution Benches should not be treated so cavalierly as to be revised frequently. The decisions of the Supreme Court cannot be devalued to brief ephemerality.” 53. Another Constitution Bench of the Apex Court in Ambika Prasad Mishra v. State of U.P. and others (AIR 1980 SC 1762) again put a caution while considering the binding nature of a decision of the Apex Court. It was held thus in paragraphs 5 and 6. “Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It is fundamental that the nation’s constitution is not kept in constant uncertainty by judicial review every season because it paralyses by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding threat of forensic blow-up. This, if permitted, may well be a kind of judicial destabilization of State action too dangerous to be indulged in save where national crises of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of the nation itself is in peril of a shake-up. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority “merely because it was badly argued, inadequately considered and fallaciously reasoned.” 54. In Sher Singh and others v. State of Punjab (1983 (2) SCC 344) in para 14 their Lordships held that “But the decisions rendered by this Court after a full debate have to be accepted without mental reservation until they are set aside.” 55. The principles were again reiterated in C.N. Rudramurthy v. K. Barkathulla Khan and others (1998 (8) SCC 275). The principles were again reiterated in C.N. Rudramurthy v. K. Barkathulla Khan and others (1998 (8) SCC 275). In para 6 the relevant principle was laid down thus: “In D.C. Bhatia case, (1995 (1) SCC 104) this Court was concerned with a provision under the Delhi Rent Control Act and Section 3(c) made it clear that the Act was not applicable to any premises whether residential or non-residential whose monthly rent exceeds three thousand rupees which is akin to the provision under Section 31 of the Karnataka Rent Control Act. In Shobha Surendar case, (C.A.No.13754 of 1996) the High Court had proceeded to rely upon Padmanabha Rao case, (ILR 1986 Karnataka 2480) when the matter was brought to this Court though no specific reference was made to Padmanabha Rao case, this Court stated that the law laid down in D.C. Bhatia case would be applicable, it was not open to the High Court to state that it would prefer to follow the decision in Rattan Arya case (1986 (3) SCC 385). Indeed it is a matter of judicial discipline that requires that when this Court states as to what the law on the matter is, the same shall be binding on all the courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all courts that the law declared by this Court is binding on them. If that is so, it was not open to the High Court to consider the effect of the decisions in Rattan Arya case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D.C. Bhatia case. The clear pronouncement made by this Court in Shobha Surendar case was that D.C. Bhatia case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision the High Court’s decision was upset in another matter where the High Court had followed the Padmanabha Rao case (supra). In effect, Padmanabha Rao case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. In effect, Padmanabha Rao case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that D.C. Bhatia case (1995 (1) SCC 104) was applicable to the provisions of the Karnataka Rent Control Act. So it was not open to the learned Judge to take any other view in the matter. Thus we are of the view that the direction issued by the High Court to the parties to work out their remedies under the Rent Control Act is not at all correct.” (emphasis supplied) The view taken by the High Court was not accepted. 56. Another important decision of the Apex Court in this context is Suganthi Suresh Kumar v. Jagdeeshan (2002 (2) SCC 420). The said decision was rendered in the context of a decision of this Court in Rajendran v. Jose (2001 (3) KLT 431) wherein this Court took the view that a decision of the Apex Court in Hari Singh v. Sukhbir Singh (1988 (4) SCC 551) is not to be followed by holding that Section 431 Cr.P.C. was not adverted to by the Apex Court. After laying down the legal position in the matter, the Apex Court paragraphs 9 and 10 held that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court. For easy reference, we will re-produce the discussions in paragraphs 5 to 11 which are as follows: “5. In the said decision this Court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decision of this Court in Hari Singh v. Sukhbir Singh. (1988 (4) SCC 551). In the said decision this Court held as follows:- “The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default.” (Emphasis supplied) 6. Our attention has been brought to a decision rendered by a single Judge of the High Court of Kerala vide Rajendran v. Jose (2001 (3) K.L.T. 431). Learned Judge has directed that the decision of this Court in Hari Singh v. Sukhbir Sing (1988 (4) SCC 551) is not to be followed as this Court laid down the said legal proposition without adverting to Section 431 of the Code. The single Judge of the High Court of Kerala by-passed the legal proposition made by the Apex Court in the following manner:- (K.L.T. page 432, para 4) “The learned Sessions Judge imposed sentence in default on the basis of the observation made by the Apex Court in Hari Kishan and State of Haryana v. Sukhbir Singh, (AIR 1988 SC 2127), that Court may enforce the order by imposing sentence in default. It appears that while disposing of that appeal attention of Apex Court was not drawn specifically to the provisions of S. 431, Cr.P.C. providing for recovery of money (other than fine) payable by virtue of any order made under the Criminal Procedure Code.” 7. Saying so, learned single Judge set aside “that part of the order passed by the Sessions Court directing an accused to undergo simple imprisonment for a period of six months in case of his committing default in payment of the compensation awarded. (KLT page 433, para 5” 8. Thereafter learned single Judge cited another decision of this Court in Balraj v. State of U.P. (1994 (4) SCC 29). It related to a murder case. Apart from the sentence of imprisonment this Court awarded compensation and directed the amount to be collected under Section 431 of the Code. But there is not even a remote hint in the said decision doubting the correctness of the legal proposition adopted in Hari Singh v. Sukhbir Singh (1988 (4) SCC 551). In other words the said legal position remains in force as no other bench of this Court has even chosen to depart from it. 9. But there is not even a remote hint in the said decision doubting the correctness of the legal proposition adopted in Hari Singh v. Sukhbir Singh (1988 (4) SCC 551). In other words the said legal position remains in force as no other bench of this Court has even chosen to depart from it. 9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India, (AIR 1988 SC 1353) that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court. (emphasis supplied) 10. That apart, Section 431 of the Code has only prescribed that any money (other than fine) payable by virtue of an order made under the Code shall be recoverable “as if it were a fine”. Two modes of recovery of the fine have been indicated in Section 421 (1) of the Code. The proviso to the sub-section says that if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant for levy of the amount. 11. When this Court pronounced in Hari Singh v. Sukhbir Singh (supra) that a Court may enforce an order to pay compensation “by imposing a sentence in default” it is open to all courts in India to follow the said course. The said legal position would continue to hold good until it is overruled by a larger Bench of this Court. Hence learned single Judge of the High Court of Kerala has committed an impropriety by expressing that the said legal direction of this Court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose (2001 (3) K.L.T. 431). Hence learned single Judge of the High Court of Kerala has committed an impropriety by expressing that the said legal direction of this Court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose (2001 (3) K.L.T. 431). It is unfortunate that when the Sessions Judge has correctly done a course in accordance with the discipline the single Judge of the High Court has incorrectly reversed it. The judicial discipline to be maintained by the High Courts and Subordinate Courts, and the practice to be followed have been emphatically laid down therein. 57. Another important decision of the Apex Court is one in Director of Settlements A.P. and others v. M.R. Apparao and another (2002 (4)SCC 638) wherein also it was held that what is binding under Article 141 is the ratio decidendi and not a finding of fact. It was noticed that the obiter dictum may not be a binding precedent but it is of considerable weight and that a decision of the Apex Court cannot be assailed on the ground that certain aspects were not considered or that relevant facts were not considered by the Supreme Court. This question was considered in the context of considering the circumstances wherein a decision can be stated as per incuriam. It was also held that the decision of the High Court refusing to follow a binding decision of the Apex Court will be a nullity. In para 7 of the judgment which lays down the principle is extracted below: “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 empower 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. 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 the 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 binding 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 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 Ballabhadas Mathrdas Lakhani v. Municipal committee, Kalkapur – (1970 (2) SCC 267) and (AIR 1973 SC 794). When the 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 to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity.” (Emphasis supplied) 58. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity.” (Emphasis supplied) 58. Even though learned counsel for the petitioner Shri S. Sreekumar submitted that the decision of the Full Bench in Joseph’s case (2001 (1) KLT 958 – FB) requires reconsideration by a larger Bench, we are not impressed by the said argument. In fact, as we have already noticed in the said decision, which was one arising under Section 18 of the Land Acquisition Act, 1894, this Court analyzed three decisions of the Apex Court on the point. It was held that the observation made on the interpretation of Section 18 of the Act is the earliest of the one, viz. Ajith Singh’s case (1994 (4) SCC 67) cannot be construed as a ratio. Therefore, the said decision was not followed obviously for the absence of a ratio decidendi. In the decision of the Full Bench of this Court in Alavi’s case (1998 (1) KLT 951 – FB) also, the Full Bench has laid down the principle that ratio decidendi of a decision is the binding factor. Their Lordships analyzed the decision of the Apex Court in Civil Appeal Nos.16904 to 16909 of 1996 to find out whether it is a binding precedent. (in para 24). After finding that the said decision does not analyze or consider the scope of any provisions of law, it was held in para 26 that the dictum laid down by the Supreme Court therein, cannot be a binding precedent so as to have general application. Therefore, the learned counsel is not right in submitting that in all cases where a co-equal Bench did not notice an earlier decision of another Bench, it will be per incuriam and hence need not be followed by the High Courts and Subordinate Courts. That is not the only test laid down by the Apex Court in various decisions, we have discussed above. Therefore, we do not find any reason to refer the matter to a larger Bench. 59. That is not the only test laid down by the Apex Court in various decisions, we have discussed above. Therefore, we do not find any reason to refer the matter to a larger Bench. 59. It is worthy to notice that in Rapti Commission Agency v. State of U.P. and others (2006 (6) SCC 522) while in different context, the Apex Court adversely commented upon the approach of the High Court thus in paragraphs 7 and 10: “The decisions in Steel Authority of India Ltd, (2000 (3) SCC 200) and Nathpa Jhakri Joint Venture, (2000 (3) SCC 319) related to legislative competence in the matter of deduction of tax under a State statute in respect of an inter-State transaction. The High Court commented upon the correctness of the judgments observing that several larger Benches’ decisions were not considered. To say the least the High Court’s approach is inappropriate. The said two decisions related to issues on which there appears to be no contrary view taken by any larger Bench. The High Court could not have sat in judgment over the correctness of the judgments of the Supreme Court. The High Court appears to have proceeded on the basis that the Supreme Court should have read down the provisions under consideration to uphold them. What is the basic fallacy in that approach is illuminatingly analyzed in paras 64 and 65 of Minerva Mills Ltd. (1980 (3) SCC 625). The rule of reading down applies only where two views are possible as to the meaning of the statutory language. In neither of the said two cases that was the position. The basic issue related to power to provide for any deduction of tax in respect of inter-State transactions. There was no issue relating to intra-State transactions. Therefore, the question of any reading down was of no relevant.” 60. The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarized below:- (i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one; (ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides. (iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent; (iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it. (v) The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. (vi) A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. (Salmond on Jurisprudence 15th Edn. P. 153). (vii) A Division Bench, in case of conflict between the decision of a Division Bench of two Judges and the decision of a larger Bench and in particular, a Constitution Bench, would be bound by the latter decision. (viii) Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct, but cannot be said to be per incuriam. 61. A ruling making a specific reference to an earlier binding precedent may or may not be correct, but cannot be said to be per incuriam. 61. Therefore, when confronted with a like situation wherein the decisions of coequal benches are of conflicting nature on a legal issue, the law laid down by the Full Bench in Joseph’s case (2001 (1) KLT 958) will have to be followed. The later decision will prevail. A decision of the Apex Court on a declaration of law is binding on all High Courts and subordinate courts, in the light of Article 141 of the Constitution. Of course, what is relevant is the ratio decidendi. The judgments of the Apex Court which have followed the binding decisions of the Constitution Bench or other Benches will thus be binding on other courts. The only exception pointed out is wherein a Bench of smaller strength did not follow an earlier binding decision, in a situation wherein the binding decisions of the earlier benches of the Apex Court are not brought to its notice. It is apparent that in such cases the decision of the Bench of smaller strength will be without the colour of a binding precedent under Article 141 of the Constitution. It may not be proper for the High Courts or subordinate courts to criticize and characterize a decision of the Apex Court which has laid down a point of law as per incuriam. Such is not the function of the High Court or subordinate courts. In the light of the decision of the Supreme Court in Bengal Immunity Co. Ltd.’s (AIR 1955 SC 661) the law declared by the Supreme Court is binding in all courts in India except the Supreme Court. The decisions of the Apex Court in Raghubir Singh’s case (1989 (2) SCC 754) and Central Board of Dawoodi Bohra Community’s case (2005 (2) SCC 673) have laid down the circumstances wherein the decisions of larger Benches will have to be followed by Benches of lesser strength. Therefore, those guidelines will act as a pointer for the High Courts and subordinate courts while examining the binding nature of a decision of the Apex Court, under Article 141 of the Constitution whenever there are conflicting decisions. Therefore, those guidelines will act as a pointer for the High Courts and subordinate courts while examining the binding nature of a decision of the Apex Court, under Article 141 of the Constitution whenever there are conflicting decisions. The caution expressed by the Apex Court in various cases mentioned above, that the High Court cannot refuse to follow a binding decision of the Apex Court, is important in this context. The application of the rule of subsilentio and that of per incuriam should be guarded and the courts cannot criticize the decisions of the Apex Court merely on the assumption that an earlier binding decision of the Apex Court was not brought to the notice of a later Bench. We, therefore, answer the reference accordingly. The matter will be placed before the appropriate Bench for hearing of the Civil Revision Petition. We record our appreciation of the assistance rendered by the learned former Advocate General Shri C.P. Sudhakara Prasad and learned Advocate General Shri K.P. Dandapani, Shri S. Sreekumar, learned counsel for the petitioner and Shri Subhash Cyriac, learned counsel appearing for the respondent.