The freedom of choice principle is invoked in several
decisions of the Courts in England. In Young v. Bristol Aeroplane
Company Limited 1944(2), Lord Greene M.R. speaking for the Court of appeal, considered the issue, albeit in the context of following the coordinate Bench decisions of the Court of Appeal, and observed that the Court is unquestionably entitled to choose between the two conflicting decisions.{Para 26}
27. In Atma Ram v. State of Punjab and others, AIR 1959 SC
519, His Lordship B.P. Sinha, who spoke for the Constitution Bench of the Apex Court, implicitly acknowledged the permissibility of the
subordinate Courts invoking the freedom of choice principle.
“We are inclined to think that a five-Judge Bench of the
Supreme Court in Atma Ram v. State of Punjab, AIR 1959 SC
519 has also indicated (at p. 527) that such a task may fall
on and may have to be performed by the High Court. After
pointing out that when a Full Bench of three Judges was inclined
to take a view contrary to another Full Bench of equal
strength, perhaps the better course would have been to constitute
a larger Bench, it has, however, been observed that
for otherwise the subordinate Courts are placed under the
embarrassment of preferring one view to another, both
equally binding on them. According to the Supreme Court,
therefore, when confronted with two contrary decisions of
equal authority, the subordinate Court is not necessarily
obliged to follow the later, but would have to perform the
embarrassing task “of preferring one view to another”.
“…. We are, however, inclined to think that no blanket
proposition can be laid down either in favour of the earlier or
the later decision and, as indicated hereinbefore, and as has
also been indicated by the Supreme Court in Atma Ram
(supra), the subordinate Court would have to prefer one to
the other and not necessarily obliged, as a matter, of course,
to follow either the former or the later in point of time, but
must follow that one, which according to it, is better in point
of law. As old may not always be the gold, the new is also
not necessarily golden and ringing out the old and bringing
in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of coordinate jurisdiction.”
The law as enunciated in that Special Bench decision, as
quoted hereinabove, has our unqualified concurrence.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 769 OF 2018
Vidarbha Irrigation Development Corporation Vs Shri Laxman Seetaram Neulkar,
CORAM : ROHIT B. DEO, J.
