The Madhya Pradesh High Court recently comprising of a bench of Justice Vivek Agarwal has reiterated that mere issuance of notice on a plea does not create a 'binding precedent' on courts, as it does not lay down any proposition of law to be followed in future.(Keshav Kanshankar versus Principal Secretary, Department of Energy, Bhopal & Ors)
Facts of the case
In the present case the Petitioner an Electrical Contractor has filed the writ petition under Article 226 of the Constitution of India claiming issuance of writ in the nature of mandamus directing the respondents especially respondent No.3 to release the payment of the petitioner for the work carried out by the petitioner under 'Sobhagya Yojna Scheme' under which he had carried out work of supply of material, survey, installation, testing and commissioning of 11 KV line, 11/4 KV distribution transformers and LT line for un-electrified household in terms of the NIT.
Contention of the Parties
It was submitted that as per Clause 6 of the NIT defect liability period was 12 months from the date of taking over/completion of facilities or any part thereof in case of 11 KV line and LT line and 24 months for distribution transformers but instead of making payment respondents have issued recovery notice dated 13.12.2021 beyond the period of defect liability.
Learned counsel for the petitioner took the Court through order passed in the writ petition in which as an interim measure, the effect and operation of the order dated 13.12.2021 was stayed.
It was also submitted that under similar facts and circumstances a Coordinate Bench has issued notices and as interim relief has been granted in four similar matters, he is entitled to the same.
Courts Observation and order
The bench at the very outset explained that 'Precedent', refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar issues. 'Precedent', is incorporated into the doctrine of 'stare decisis', and requires courts to apply the law in the same manner to cases with the same facts.
Whereas, 'Judicial precedent', is the source of law where past decisions create law for Judges to refer back to for guidance in future cases. Meaning of doctrine of "stare decisis" to "stand by decided matters.
The bench taking note of the same observed, "Thus, I am not in a position to agree that merely issuance of a notice by a Coordinate Bench, under which provision of law, can be considered to be a binding precedent as it does not lay down any proposition of law to be followed in future."
The bench dismissing the petition remarked, "Thus in view of settled legal position, I am of the view that the petitioner is not even entitled to admission of this petition as issuance of notice being not a binding precedent applicable to invoke doctrine of 'stare decisis', and the order passed by the Hon'ble Division Bench being in different arena, no indulgence is required as petitioner has an alternative remedy of approaching the civil court if there is no arbitration clause in the agreement and if there is an arbitration clause then he has a duty to approach the arbitrator in terms of the arbitration clause in the agreement.
Accordingly, this petition fails and is hereby dismissed."
Read Judgment @Latestlaws.com
Picture Source :
