JUDGMENT B.S. Chauhan, J.
1. This special appeal has been preferred against the Judgment and order of the learned Single Judge dated 07/10/2005 by which the writ petition seeking employment in lieu of the land acquired under the provisions of Land Acquisition Act, 1894 (hereinafter called the Act) has been dismissed In view of the judgement of the Full Bench of this Court in Ravindra Kumar v. District Magistrate, Agra and Ors. (2005) 1 UPLBEC 118.
2. The facts and circumstances giving rise to the case as narrated by the appellants are that in 1978, notification under Section 4(1) of the Act was Issued in respect of the land measuring 9.921 Acres including the land of the appellants in Plot No. 23 measuring 0.13.3, Plot No. 39 measuring 0.17.17 and Plot No, 15/2 measuring 1.12.14. The land at that time was owned and possessed by one Sri Swaroop the grand father of appellants. At the time of acquisition of plots, appellants were minor and after attaining the majority they first filed an application on 11/6/2004 claiming compassionate employment in pursuance of the Government Orders dated 15/6/1985 (Annex-2), 12/5/1988 (Annex-3), 22/10/1992 (Annex-4) and 29/2/1995 (Annex-5) which provide that in certain cases a member of the family whose land has been acquired can be given employment. As the same was denied, they approached this Court by filing the writ petition in September, 2005 which has been dismissed In view of the aforesaid Full Bench judgment. Hence this appeal,
3. Shri S.K. Verma, learned Senior Counsel assisted by Shri Siddhartha Varma submitted that the said Government Orders had been Issued for the benefit of those persons, who were deprived of their livelihood by virtue of acquisition of their land under the Act and the said judgment of the Full Bench does not lay down the correct law in view of the fad: that certain arguments particularly, the effectiveness of Government Order issued under Article 162 of the Constitution of India has not been considered therein. He, therefore, submitted that the appeal deserves to be allowed and the judgment and order dated of the learned Single Judge should be set-aside.
4. On the contrary, the learned Standing Counsel has submitted that Section 4 notification under the Act annexed by the appellants does not reveal that their land situated in two plots i.e. 23 and 39 had been acquired. The land of the appellants was acquired only in Plot No. 15/2 measuring only 1 bigha. The appellants submitted application for the first time in 2004 I.e. after expiry of 26 years. The law of compassionate employment does pot permit ' entertaining an application at such a belated stage. The Government Orders on which the reliance have been placed by the appellants have not been Issued under Article 162 of the Constitution nor any of them have retrospective effect The first Government Order was issued in 1985, though the land of the appellants were acquired in 1978 and the appeal is devoid of any force and is liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and have perused the record including the record of the writ petition.
6. Admittedly, Section 4 notification as filed by the appellants reveal that the land of the appellants measuring only 1 Bigha was acquired along with the land of large number of persons and appellants have not narrated the correct facts.
7. The issue Involved herein is no more res-integrea.
8. Acquisition of the land is one of the modes of sale and purchase of the land under the Act. Acquisitions have been made compulsory, i.e., against the wishes of the land owners, for public purpose in larger public interest, the provision of providing solatium etc. had been made. Acquisition of land Is also permissible on agreed terms between the parties as provided under the proviso of Section 11 of the Act. Such acquisition would amount to sale by private negotiations as the Award is to be made in the terms of that agreement The person interested cannot claim the benefit of the provision for solatium or making the Reference under Section 18 of the Act or approaching the further appellate forum In such an eventuality, being the acquisition by private negotiation. (Vide State of Gujarat and Ors. v. Daya Shamji Bhai and Ors. ; and Ishwarlal Premchand Shah and Ors. v. State of Gujarat and Ors. ). When the land is acquired for the purpose of an industrial unit for a private or government company, Section 41 of the Act enables the government to enter into an agreement imposing certain conditions. However, that agreement has to be entered into before the Declaration under Section 6 is made. The Agreement is required to be published In the official Gazette in view of the provisions of Section 42 of the Act. Without publishing the said agreement in the Gazette, the terms of the agreement cannot be enforced. Such a publication is not an empty formality. However, it applies only in a case where the land is acquired for a Company.
9. The case of the appellants requires to be examined in the aforesaid settled legal propositions. The Government Order dated 15th June, 1985 provides for an agreement giving employment to those who are dispossessed of their land. It clearly provides that there will be preference to the dependants of persons whose land is acquired who have to be rehabilitated. However, it will apply only in case of class C and D employments In the industrial establishment for which the land had been acquired. It further provides for preference among the dependants of those persons. The relevant part of the same reads as under:--
Where the land for establishment of an industrial unit has been acquired, the preference shall be given for employment In the following sequence:-
(a) those whose total land had been acquired;
(b) those whose land had been acquired partly; and I
(c) those whose small part of the land had been acquired.
10. In view of the above, it simply provides for preference in employment depending upon the area of land acquired.
11. The Government Order dated 29th February, 1995 provides for a similar provision for employment of those persons who required rehabilitation because of their dispossession from the land because of acquisition. It further provides for giving preference, other things being equal.
12. In the application filed by the appellants it has been mentioned that their land had been taken for establishment of the godown. Therefore, one of them was entitled for employment. The aforesaid Government Order provides for preference, other things being equal. Even otherwise, law Is well settled that preference can be given to a person when other things are equal. (Vide Government of Andhra Pradesh v. P. Dilip Kumar and Anr. ; Executive Officer v. E. Tirupalu and Ors. ; and Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Ors. ).
13. Even otherwise, the purpose of giving employment to those persons whose land had been acquired is to rehabilitate those persons who have been deprived of right of their livelihood. Such a rehabilitation is required to be done immediately. As such an employment can be compared with compassionate employment in service jurisprudence, no relief can be claimed at such a belated stage, i.e. after 26 years of acquisition.
14. The Hon'ble Apex Court In Butu Prasad Kumbhar and Ors. v. Steel Authority of India Ltd. and Ors. has held that the displaced persons due to acquisition of their land cannot claim preferential treatment for employment as a matter of right as there had been no violation of the fundamental rights of the tenure holders and their land had been acquired in accordance with the procedure prescribed by law and they have received compensation for the same.
15. Similar view has been reiterated in Gas Authority of India v. State of U.P. and Ors. (2004) 1 UPLBEC 731.
16. A Full Bench of this Court in Ravindra Kumar v. District Magistrate, Agra and Ors. (2005) 1 UPLBEC 118 has also given reply to the said question after placing the reliance upon large number of judgments of the Hon'ble Supreme
17. Court Including Butu Prasad Kumbhar (supra), and in view thereof appointment cannot be claimed as a matter of right.
18. In appeal an application for amendment has been filed taking the grounds based on Article 162 of the Constitution. We fail to understand how the amendment application can be moved if such an argument was available to the appellants before the learned Single Judge. The principles enshrined under the provisions of Order VI Rule XVII C.P.C. can be applied. The proviso thereto provides that the applicant must show as to why such pleadings could not be taken by him inspite of due diligence. No attempt has been made to furnish any explanation In this regard.
19. "Due" means just and proper according to the circumstances of a particular case (Vide A.K. Gopalan v. State of Madras and Ors. ).
20. "Due diligence" means such watchful caution and foresight as the circumstances of a particular case demand. Thus application is not worth acceptance.
21. In the instant case, no material has been placed before us to show that the orders relied upon by the appellants had been issued In exercise of the power under Article 162 of the Constitution. Such order can be issued on the subject which the State has the power to legislate either being in the List II or List III to the VII Schedule to the Constitution and the State legislature has not framed the rules etc. Such an order being legislative in nature, has to be issued In the name of the Governor for the reason that the power to Issue such order is co-extensive to the State Legislature itself. The executive power of the State under Article 162 is to be exercised in accordance with the provisions of Article 166. Undoubtedly, the provisions of Article 166(2) are not mandatory in nature, the party has to plead properly and substantiate the pleadings. No attempt has been made to show that the said order had been passed in exercise of the powers under Article 162 of the Constitution. The mere statement in the amendment application that the Full Bench did not consider the binding effect of the orders passed under Article 162 does not meet the requirement of law in this regard.
22. Be that as it may, there can be no dispute that the Judgment of the larger Bench is binding on a smaller Bench. It is so required by judicial propriety and judicial discipline. (Vide Rameshwar Shaw v. Distt. Magistrate Burdwan and Anr. ; Union of India and Anr. v. K.S. Subramanian ; State of U.P. and Ors. v. Ram Chandra Trivedi ; Union of India and Anr v. Raghubir Singh (dead) by L.Rs. etc. ; N. Meera Rani v. Govt. of Tamil Nadu and Anr. ; General Manager Telecom v. A. Srinivasa Rao and Ors. ; Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangh ; N.S. Giri v. Corporation of City of Manglore and Ors. ; Coir Board Ernakulam and Anr. v. Indira Devai P.S. and Ors. ; Sub Inspector Roop Lal and Anr. v. Lt. Governor Delhi and Ors. ; Lily Thomas and Ors. v. Union of India and Ors. AIR 2000 SC 1650; S.H. Rangappa v. State of Karnataka and Ors. ; P. Ramachandra Rao v. State of Karnataka ; Union of India and Anr. v. Hansoli Devi and Ors. ; Babu Parasu Kaikadi (dead) by L.Rs. v. Babu (dead) by LRs. AIR 2004 SC 754; and Commissioner of Central Excise, Ahmedabad v. Orient Fabrics Pvt. Ltd. AIR 2004 SC 956).
23. A Constitution Bench of the Hon'ble Supreme Court in Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. laid down certain guidelines in this regard summarizing the legal position in this regard as under:
(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 above said 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 matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules -laid down herein above, 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 if 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.
24. A Division Bench of this Court in Indian Oil Corporation Ltd. v. State of U.P. and Ors. has held that if the subsequent smaller Bench of the Hon'ble Supreme Court has referred to a larger Bench judgment of the Hon'ble Supreme Court, the subsequent Judgment of the smaller Bench cannot be Ignored. However, Court has to interpret the smaller Bench judgment In a manner so as to make it consistent with the larger Bench decision of the Supreme Court for the reason that smaller Bench cannot overrule the larger Bench.
25. The use of precedent is an indispensable foundation upon which to decide what is the law and its application in individual case. It provides a basis for orderly development of legal rules. (Vide Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors. ).
26. The Hon'ble Apex Court deprecated the practice not following the settled legal proposition and unsettling the legal issues using very strong words in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Anr. , observing as under:--
When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions arid then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.
27. Similar view has been reiterated in State of Punjab and Ors. v. Satnam Kaur and Ors. 2006 AIRSCW 103.
28. Undoubtedly, a decision on a question not argued cannot be recognised as a precedent. (Vide Municipal Corporation of Delhi v. Gurnam Kaur ; and Goodyear India Ltd. and Ors. v. State of Haryana and Anr. (1990) 2 SCC 71),
29. A judgment is to be read and considered in the light of the questions which were before the Court. (Vide Mehboob Dawood Sheikh v. State of Maharashtra and Ors. .
30. In view of the above, the law can be summarised that Judicial discipline and decorum determines that even in case there is a conflict of two judgments of the Hon'ble Supreme Court, the judgment rendered by the larger Bench Is to be followed. However, in exceptional circumstances, if the smaller bench decision is based on proper consideration of the larger Bench Judgment the smaller Bench decision may be followed maintaining the consistency with the larger Bench.
31. We do not find any force in the submissions made by Shri Verma that as the scope of binding effect of the order passed under Article 162 of the Constitution has not been considered by the Full Bench, the said judgment Is not binding on us.
32. The concept of "per incuriam" are those decisions given in Ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned i.e. previous decisions of the Court i.e. its own Court or by a Court of co-ordinate or higher jurisdiction or in ignorance of a term of a statute or by a rule having the force of law. "Incuria", literally means "carelessness". In practice, per Incuriam is taken to mean per ignoratium, (Vide Mamleshwar Prasad and Anr v. Kanhaiya Lal (1975) 2 SCC 232; A.R. Antule v. R.S. Nayak ; State of U.P. and Ors. v. Synthetics and Chemicals Ltd. ; B. Shama Rao v. Union territory of Pondichery ; Municipal Corporation of Delhi v. Gurnam Kaur ; Ram Gopal Baheti v. Girdharilal Soni and Ors. ; Sarnam Singh v. Dy. Director of Consolidation and Ors. ; Government of Andhra Pradesh v. B. Satyanarayana Rao, (dead) by LRs. and Ors. AIR 2000 SC 1729; Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. ; Suganthi Suresh Kumar v. Jagdeeshan ; State of Bihar v. Kalika Kuer ; Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. ; Manda Jaganath v. K.S. Rathnam and Ors. ; Sunita Devi v. State of Bihar and Ors. 2004 AIRSCW 7116; and Central Board of Dawoodi Bohra Community and Anr (supra). It is not the appellants' case that the said orders had been taken Into consideration by the Full Bench, rather the issues before the Full Bench had been the same as before us. The appellants' grievance is only to the extent that the scope of effectiveness of the order, issued under Article 162 of the Constitution, had neither been raised nor considered therein.
33. It is settled legal proposition that judgment of a larger Bench of the Court is binding on the Smaller Bench even on an issue which had not been properly argued and considered in the earlier case, though the issue has been decided. A Constitution Bench of the Hon'ble Apex Court in Smt. Sonawati v. State of Punjab and Ors. , repelled the submission that while deciding the earlier case on issue, a particular argument had not been advanced observing as under:--
The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced, was actually decided.
34. Similarly, a Constitution Bench of the Hon'ble Apex Court in Mohd. Ayub Khan v. Commissioner of Police and Ors. held that even if certain aspects of a question were not brought to the notice of the Court, it would decline to enter upon re-examination of the question since the decision has been followed in other cases and it is not desirable to disturb the settled legal proposition.
35. In Ambika Prasad v. State of U.P. , the issue Involved herein was considered and the Court reached the following conclusion:--
Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent In this view, other submissions sparkling with creative Ingenuity and presented with high-pressure advocacy, cannot persuade us to re-open what was laid down for the guidance of the nation as a solemn proposition by the epic fundamental rights case.... It is fundamental that the nations 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 destabilisation 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. [Salmond Jurisprudence p. 215 (11th edition)].
36. Similar view has been reiterated in Mahesh Kumar Saharia v. State of Nagaland , observing that a judgment which has an effect of binding precedent on a Court should not be re-opened merely on the ground that a particular aspect has not been expressly considered therein.
37. In view of the above, we are of the considered opinion that as the land was acquired in 1978 there was no occasion for the appellants to ask for employment for the first time in 2004 after expiry of 26 years. This kind of employment is provided to rehabilitate the family whose land had been acquired and because of that the family has been deprived of earning his livelihood. More so, the employment cannot be claimed as a matter of right
38. The Government Orders issued from time to time provided only for preference and preference can be given if other things are equal. Appellants have not laid down any factual foundation In comparison to those persons whose land had been acquired. For the said purpose, this Bench is bound by the judgment by the Full Bench.
39. Special appeal is devoid of any merit and it is, accordingly, dismissed.