Page 1

REPORTABLE

IN THE SUPREMECOURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7208 OF 2012

State of Gujarat & Anr. … Appellants

Versus

Gujarat Revenue Tribunal Bar Association & Anr. … Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.:

1. This appeal has been preferred against the impugned judgment  

and order dated 14.9.2009, passed by the High Court of Gujarat at  

Ahmedabad in Special Civil Application No.8209 of 1988, by way of  

which  the  High  Court  has  allowed  the  writ  petition  filed  by  the  

respondents  striking down Rule 3(1)(iii)(a)  of  the Gujarat  Revenue  

Tribunal Rules 1982 (hereinafter referred to as ‘Rules 1982’), which  

conferred power upon the State Government to appoint the Secretary  

to the Government of Gujarat, as President of the Revenue Tribunal  

(hereinafter referred to as ‘Tribunal’) constituted under the Bombay

Page 2

Revenue  Tribunal  Act,  1957  (hereinafter  referred  to  as  the  ‘Act,  

1957’).

2. The  facts  and  circumstances  giving  rise  to  this  appeal  are  

mentioned hereunder :

A. The Government of Gujarat, in exercise of its power under the  

Act  of  1957  and  the  Rules,  1982  appointed  appellant  no.2  as  the  

President of the Gujarat Revenue Tribunal vide order dated 16.4.1988.  

His appointment  was challenged by the respondents  herein,  on the  

ground that the office of the Chairman, being a “judicial office” could  

not be usurped by a person who had been an Administrative Officer  

all his life.  The validity of Sections 4 and 20 of the Act 1957 and  

Rule 3(1)(iii)(a) of the Rules 1982 was challenged.  The appellants  

contested the writ petition, submitting that in exercise of the power  

conferred under Section 20 of the Act 1957 and the Rules 1982, a  

notification  was  issued  on  8.2.1983,  making  the  Secretary  to  the  

Government eligible for appointment as  Chairman of the Revenue  

Tribunal, and as he had acted as a Revenue Officer while holding the  

posts  of  Sub  Divisional  Officer,  District  Collector,  and  Divisional  

2

Page 3

Commissioner, it could not be held that he was ineligible to hold the  

said post of President of the Tribunal.

B. During the pendency of the aforementioned writ petition before  

the High Court, the Government of Gujarat made the appointment of  

Shri A.D. Desai, a retired I.A.S. Officer on 27.2.2007 to the post of  

President of the Tribunal, however, the operation of his appointment  

order was stayed by the High Court.  This Court, while entertaining  

Special  Leave  Petition  (C)  No.4924  of  2007,  vide  order  dated  

26.3.2007, stayed the operation of the order of the High Court.  The  

said  S.L.P.  was  finally  disposed  of  vide  order  dated  16.4.2008  

observing that,  the petition had been filed only against  the interim  

order   passed by the High Court.  However,  the said interim order  

dated 26.3.2007 passed by this Court, by which it stayed the order of  

the High Court, as mentioned earlier, would continue till the disposal  

of the Special Civil Application No.8209 of 1988 by the Gujarat High  

Court.   Subsequently,  State  of  Gujarat  vide order  dated 29.7.2009,  

appointed Mr. A.J. Shukla as the President of the Tribunal.   

C. The High Court then, vide impugned judgment and order dated  

14.9.2009 held that the Tribunal was in the strict sense, a “court” and  

3

Page 4

that the President, who presides over such Tribunal could therefore,  

only  be  a  “Judicial  Officer”,  a  District  Judge  etc.,  for  which,  

concurrence of the High Court is necessary under Article 234 of the  

Constitution of India.  Hence, the present appeal.

3. Shri  Preetesh Kapur,  learned counsel  appearing on behalf  of  

the appellants, submitted that the High Court committed an error by  

striking  down the  aforesaid  rule,  holding  that  the  Secretary  to  the  

Government  of  Gujarat  cannot  be  appointed  as  President  of  the  

Tribunal.  It erred in holding that the Tribunal was a court and only a  

“Judicial Officer”, i.e., a Judicial Officer holding such equivalent post  

as is referred to in Rule 3(iii) of the Rules 1982 can be appointed as  

President of the said Tribunal.  The Secretary to the Government had  

already worked as a Revenue Officer for a prolonged period of time  

and, hence, has acquired the requisite experience to deal with all types  

of  revenue  matters,  in  spite  of  the  fact  that  the  Tribunal  has  the  

trappings  of  a  court,  he  is  eligible  for  the  said  post  in  terms  of  

qualifications.  An Administrative  Officer,  who is  a  member  of  the  

Tribunal under Rule 3(1)(iii)(g) can still be appointed as the President  

of the Tribunal as the validity of clause (g) was not under challenge.  

But on that count there will be no illegality.  The Tribunal cannot be  

4

Page 5

held  to  be  a  ‘court’  within  the  meaning  of  the  Constitutional  

provisions.   The  Act  1957  and  Rules  1982,  do  not  even  suggest  

consultation with the High Court, while appointing the President of  

the Tribunal.  Therefore, the appeal deserves to be allowed.

4. On the contrary, Shri Yashank Pravin Adhyaru, learned Senior  

counsel  appearing  on  behalf  of  the  respondents  has  vehemently  

opposed the appeal contending that, no error can be found with the  

impugned judgment and order of the High Court.  This is because the  

earlier Acts, which stood repealed by the Act of 1957, did not contain  

any  provision  enabling  the  State  Government  to  appoint  an  

Administrative Officer as the President of the Tribunal.  Under the old  

Act, the person who is eligible to hold such post was a retired Judge  

of the High Court.  Moreover,  Rule 3(iii) of the Rules 1982 enables  

the State Government to appoint a Judicial Officer, a District Judge,  

the President of the Court of Small Causes, Bombay  and the Principal  

Judge of the City Civil Court to the aforementioned post. In case they  

are still in service, the question of their appointment as President of  

the  Revenue  Tribunal,  would  never  arise,  without  the  effective  

consultation/concurrence  of  the  High  Court.   The  provisions  of  

Articles 233 to 236 of the Constitution of India are attracted.  In fact,  

5

Page 6

this  is  the  ratio  of  the  impugned  judgment.   In  the  facts  and  

circumstances of the case,  no interference is warranted. The appeal  

lacks merit and is liable to be dismissed.

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

6. The High Court itself has taken note of the previous statutory  

provisions, observing that the Bombay Revenue Tribunal Act, 1939  

(hereinafter referred to the ‘Act 1939’), did not provide for the post of  

President as such, and that this power was conferred upon the rule  

making authority. Rule 4(1) of the Bombay Revenue Tribunal Rules  

1939,  (hereinafter  referred  to  ‘Rules  1939’)  prescribed  the  

qualifications for the post of President, as a person who has officiated  

as a Judge of the High Court, or has served as such, or has exercised  

the powers of, a District Judge, or the Chief Judge of the Court of  

Small Causes, Bombay, for a period of not less than 10 years and has  

retired from service of the Crown in India.   

7. In the year 1941, Rule 4(1) of the Rules 1939 was amended  

vide  Notifications  dated  5.12.1940  and  22.9.1941.   As  per  the  

amended  Rules,  the  President  could  be  a  person  who  had  either  

6

Page 7

officiated as a Judge of the High Court, or had served as, or exercised  

the powers of a District Judge, or of the Chief Judge of the Court of  

Small Causes, Bombay, for a period of not less than 10 years, and had  

retired  from  the  service  of  the  Government  of  India  or  the  

Government  of  any  State.   In  1957,  Rule  4(1)  was  substituted,  

enabling the rule making authority, inter-alia, to appoint the Secretary  

to  the  Government  of  Bombay,  Legal  Department  and  the  Legal  

Remembrancer of Legal Affairs as President of the Tribunal.  Later,  

the Act of 1939 was substituted by the Act, 1957.

Relevant Statutory Provisions :

8. Section 3(2) of the Act 1957, provides for the appointment of  

the  President  and  Members  of  the  Tribunal.   Section  9  thereof,  

provides for the jurisdiction of the Tribunal to entertain and decide  

appeals  from,  and  revise  decisions  and  orders  in  respect  of  cases  

arising under the provisions of the enactments specified in the First  

Schedule.   Schedule  1  includes  the  Bombay  Land  Revenue  Code,  

1879,  the  Bombay  Land  Revenue  Code,  1874  as  extended  to  the  

Kutch area of State of Bombay, the Indian Forest Act, 1927 etc.  

Section 9(4) of the Act reads as under:

7

Page 8

“Notwithstanding anything contained in any other  law for the time being in force, when the Tribunal  has  jurisdiction  to  entertain  and  decide  appeals  from  and  revise  decisions  and  orders  of,  any  person, officer or authority to any matter aforesaid,  no  other  person,  officer  or  authority  shall  have  jurisdiction  to  entertain and decide  appeals  from  and  revise  decisions  or  orders  of  such  person,  officer or authority in that matter.”

Section 13(1) of the Act reads as under:

“In exercising the jurisdiction conferred upon it by  or under this Act, the Tribunal shall have all the  powers of a Civil Court for the purpose of taking  evidence  on  oath,  affirmation  or  affidavit,  of  summoning  and  enforcing  the  attendance  of  witnesses,  of  compelling  discovery  and  the  production  of  documents  and  material  objects,  requisitioning  any  public  record  or  any  copy  thereof  from  any  Court  or  office,  issuing  commissions for the examination of witnesses or  documents, and for such other purposes as may be  prescribed and the Tribunal shall be deemed to be  a Civil Court for all the purposes of sections 195,  480 and 482 of the Code of Criminal Procedure,  1898, and its  proceedings shall  be deemed to be  judicial  proceedings  within  the  meaning  of  sections  193,  219  and  229  of  the  Indian  Penal  Code.”  

Section  15  empowers  the  Tribunal  to  entertain  question  of  

interpretation regarding laws of public importance which can only be  

decided after hearing the State Government on the matter.  Section 16  

provides that no appeal shall lie to the State Government against the  

8

Page 9

order passed by the Tribunal.  Section 17 of the Act confers upon the  

Tribunal the power to review its own decision, on grounds similar to  

the ones mentioned in Order 47 Rule 1 CPC.  Such review application  

may be filed before it within a period of 90 days from the date of the  

said decision of the Tribunal.  The Tribunal has further been given the  

power to condone delay in making applications for review.

Section 20 reads as under:

“20(1) The State Government may, by notification  in the Official Gazette, make rules consistent with  the provisions of this Act for carrying into effect  the purposes of this Act. (2)  In  particular  and  without  prejudice  to  the  generality  of  the  foregoing  provision,  such  rules  may provide for the following matters, namely:- (a) the qualifications of the President and other  members of the Tribunal; (b)  the  period  of  office  and  the  terms  and  conditions  of  service  of  the  President  and  other  members of the Tribunal; (c) the qualifications of the Registrar and Deputy  Registrars; (d) any other powers of a Civil Court which may  be vested in the Tribunal.”                                                      (Emphasis added)

Rule 3 of the Rules 1982 reads as under :

“3. Qualification of President and members of  Tribunal-

9

Page 10

(1)  The  President  shall  be  a  person  who has  not  attained the age of 65 years, and (i) Who is or has been a judge of a High Court, or (ii)Who is an advocate qualified to be a judge of a  High Court, or

(iii) Who has, for a period of not less than three  years, held the office, or as the case may be,  exercised the powers of –

(a) The  Secretary  to  the  Government  of  Gujarat;

(b) The  Principal  Judge  of  the  City  Civil  Court,  Ahmedabad;

(c) A District Judge; (d) The  Chief  Judge,  Small  Cause  Court,  

Ahmedabad; (e) A member  of  the Industrial  Court  constituted  

under  the  Bombay  Industrial  Relations  Act,  1946;

(f) A member of the Industrial Tribunal constituted  under the Industrial Disputes Act, 1957; or

(g) A  member  of  the  Gujarat  Revenue  Tribunal  constituted  under  the  Bombay  Revenue  Tribunal Act, 1957.”  (Emphasis added)

(2) A member shall be a person who has not attained the age of 65  years and-

(a) Who is holding or has held an office not lower in rank than  that of -

(i)  A Collector; (ii) A Deputy Secretary to the Government of Gujarat; (iii) A District Judge; (iv)  An Assistant Judge, or a Civil Judge (Senior Division)  appointed under the Bombay Civil Courts Act, 1869, or a  Civil Judge holding an equivalent office under any other  law for the time being in force; or  

(b) Who is an advocate or attorney of the High Court, or a  legal  practitioner entitled to practice before courts other  than  

10

Page 11

the High Court under any law relating to legal practitioners for  the time being in force in this State, has practiced for not less  than five years in any Civil Courts or before the Tribunal, and  is,  in  the  opinion  of  the  State  Government,  well  versed  in  revenue and tenancy laws.”  

9. Although, term ‘court’ has not been defined under the Act, it is  

indisputable that courts belong to the judicial hierarchy and constitute  

the country’s  judiciary as distinct  from the executive or  legislative  

branches of the State. Judicial functions involve the decision of rights  

and liabilities of the parties. An enquiry and investigation into facts is  

a material part of judicial function. The legislature, in its wisdom has  

created tribunals and transferred the work which was regularly done  

by the civil courts to them, as it was found necessary to do so in order  

to provide efficacious remedy and also to reduce the burden on the  

civil  courts  and  further,  also  to  save  the  aggrieved  person  from  

bearing  the  burden  of  heavy  court  fees  etc.   Thus,  the  system of  

tribunals was created as a machinery for the speedy disposal of claims  

arising under a particular Statute/Act. Most of the Tribunals have been  

given the power to lay down their own procedure. In some cases, the  

procedure may be adopted by the Tribunal and the same may require  

the  approval  of  the  competent  authority/government.  However,  in  

each case, the principles of natural justice are required to be observed.  

11

Page 12

Such tribunals  therefore,  basically  perform quasi-judicial  functions.  

The  system  of  tribunals  is  hence,  unlike  that  of  the  regularly  

constituted courts under the hierarchy of judicial system, which are  

not authorised to devise their own procedure for dealing with cases.  

Under  certain  statutes  Tribunals  have  been  authorised  to  exercise  

certain powers conferred under some provisions of the Code of Civil  

Procedure  (hereinafter  referred  to  as  the  ‘CPC’)  or  the  Code  of  

Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’), but not  

under the whole Code, be it Civil or Criminal. However, in a regular  

court, the said Codes, in their entirety, civil as well as criminal, must  

be strictly adhered to.  Therefore, from the above, it is evident that the  

terms ‘court’ and ‘Tribunal’ are not inter-changeable.  

A Tribunal may not necessarily be a court, in spite of the fact  

that it may be presided over by a judicial officer, as other qualified  

persons may also possibly be appointed to perform such duty. One of  

the tests to determine whether a tribunal is a court or not, is to check  

whether  the  High  Court  has  revisional  jurisdiction  so  far  as  the  

judgments  and  orders  passed  by  the  Tribunal  are  concerned.  

Supervisory  or  revisional  jurisdiction  is  considered  to  be  a  power  

vesting in any superior court or Tribunal, enabling it to satisfy itself as  

12

Page 13

regards the correctness of the orders of the inferior Tribunal. This is  

the basic  difference between appellate  and supervisory jurisdiction.  

Appellate jurisdiction  confers a right upon the aggrieved person to  

complain  in  the  prescribed  manner,  to  a   higher  forum  whereas,  

supervisory/revisional  power   has  a  different  object  and  purpose  

altogether as it confers the right and responsibility upon the higher  

forum to keep the subordinate Tribunals within the limits of the law. It  

is  for  this  reason  that  revisional  power  can  be  exercised  by  the  

competent authority/court  suo motu, in order to see that subordinate  

Tribunals do not transgress the rules of law and are kept within the  

framework of powers conferred upon them.  Such revisional powers  

have to be exercised sparingly, only as a discretion in order to prevent  

gross injustice and the same cannot be claimed, as a matter of right by  

any party.  Even if  the person heading  the Tribunal  is  otherwise a  

“judicial  officer”,  he  may merely  be  persona  designata, but  not  a  

court,  despite the fact  that  he is expected to act in a quasi-judicial  

manner.  In the generic sense,  a court is also a Tribunal, however,  

courts are only such Tribunals as have been created by the concerned  

statute and belong to the judicial department of the State as opposed to  

the  executive  branch  of  the  said  State.   The  expression  ‘court’  is  

13

Page 14

understood in the context of its normally accepted connotation, as an  

adjudicating  body,  which  performs  judicial  functions  of  rendering  

definitive judgments having a sense of finality and authoritativeness  

to bind the parties litigating before it.  Secondly, it should be in the  

course of exercise of the sovereign judicial power transferred to it by  

the State.  Any Tribunal or authority therefore, that possesses these  

attributes, may be categorized as a court.  

10. Tribunals  have  primarily  been constituted  to  deal  with  cases  

under special laws and to hence provide for specialised adjudication  

alongside  the  courts.   Therefore,  a  particular  Act/set  of  Rules  will  

determine whether the functions of a particular Tribunal are akin to  

those  of  the  courts,  which  provide  for  the  basic  administration  of  

justice.   Where there is a lis  between two contesting parties  and a  

statutory authority is required to decide such dispute between them,  

such an authority may be called as a quasi-judicial authority, i.e., a  

situation where, (a) a statutory authority is empowered under a statute  

to do any act (b) the order of such authority would adversely affect the  

subject and (c) although there is no lis or two contending parties, and  

the  contest  is  between  the  authority  and  the  subject  and  (d)  the  

statutory authority is required to act judicially under the statute, the  

14

Page 15

decision  of  the  said  authority  is  a  quasi  judicial  decision.    

An authority may be described as a quasi-judicial authority when it  

possesses certain attributes or trappings of a ‘court’, but not all.  In  

case certain powers under C.P.C. or Cr.P.C. have been conferred upon  

an authority, but it has not been entrusted with the judicial powers of  

the State, it cannot be held to be a court.

(See  : The Bharat Bank Ltd., Delhi v. The Employees of Bharat  

Bank & Anr., AIR 1950 SC 188;  Virindar Kumar Satyawadi v.  

The  State  of  Punjab,  AIR 1956 SC 153;  Engineering  Mazdoor  

Sabha & Anr. v. Hind Cycles Ltd., AIR 1963 SC 874; Associated  

Cement Companies Ltd. v.  P.N. Sharma & Anr., AIR 1965 SC  

1595; Ramrao & Anr. v. Narayan & Anr., AIR 1969 SC 724; State  

of  Himachal  Pradesh & Ors.  v.  Raja Mahendra  Pal  &  Anr.,  

AIR 1999 SC 1786; Keshab Narayan Banerjee v. State of Bihar &  

Ors.,  AIR  2000  SC  485;  Indian  National  Congress  (I)  v.  

Institute  of  Social  Welfare  &  Ors.,  AIR  2002  SC  2158;  K.  

Shamrao & Ors. v. Assistant Charity Commissioner, (2003) 3 SCC  

563;  Trans Mediterranean Airways v. Universal Exports, (2011)  

15

Page 16

10 SCC 316 at page 338; and Namit Sharma v. Union of India, JT  

2012 (9) SC 166).

11. In  Harinagar  Sugar  Mills  Ltd.  v.   Shyam  Sundar  

Jhunjunwala & Ors.,  AIR 1961 SC  1669, Hidayatullah, J. (as His  

Lordship  then  was)  made  a  distinction  between  a  “court”  and  a  

“Tribunal” as is explained hereunder:

“…….These Tribunals have the authority of   law to pronounce upon valuable rights; they   act  in  a  judicial  manner  and  even  on   evidence on oath,  but they are not part of   the  ordinary  Courts  of  Civil  Judicature.  They  share  the  exercise  of  the  judicial   power of the State, but they are brought into   existence to implement some administrative   policy or to determine controversies arising   out  of  some  administrative  law.  They  are   very similar to Courts, but are not Courts.  When the Constitution speaks of ' Courts' in   Art. 136, 227 or 228 or in Arts. 233 to 237   or  in  the  Lists,  it  contemplates  Courts  of   Civil  Judicature  but  not  Tribunals  other   than  such  Courts.  This  is  the  reason  for   using both the expressions in Arts. 136 and  227. By "Courts" is meant Courts of Civil   Judicature and by "Tribunals", those bodies   of  men  who  are  appointed  to  decide   controversies arising under certain special   laws.  Among  the  powers  of  the  State  is   included  the  power  to  decide  such   controversies.  This  is  undoubtedly  one  of   the  attributes  of  the  State,  and  is  aptly   called the judicial power of the State. In the   exercise  of  this  power,  a  clear  division  is   

16

Page 17

thus  noticeable.  Broadly  speaking,  certain   special matters go before Tribunals, and the   residue goes before the ordinary Courts of   Civil Judicature.”  

                                                                (Emphasis added)

To explain the distinction between a Court and Tribunal, His  

Lordship further relied upon the judgment in the case of  Shell Co. of  

Australia v. Federal Commissioner of Taxation,  (1931) A.C. 275,  

wherein it has been observed as under:  

“…..In that connection it may be useful to   enumerate  some  negative  propositions  on  this subject: 1. A Tribunal is not necessarily   a Court in this strict sense because it gives a   final  decision.  2.  Nor  because  it  hears   witnesses  on oath.  3.  Nor  because  two or   more  contending  parties  appear  before  it   between  whom  it  has  to  decide.  4.  Nor   because it gives decisions which affect the   rights of subjects. 5. Nor because there is an   appeal  to  a Court.  6.  Nor because  it  is  a   body  to  which  a  matter  is  referred  by   another body……”

12. The present case is also required to be examined in the context  

of Article 227 of the Constitution of India, with specific reference to  

the 42nd Constitutional Amendment Act 1976, where the expression  

‘court’  stood  by  itself,  and  not  in  juxtaposition  with  the   other  

expression used therein, namely, ‘Tribunal’. The power of the High  

17

Page 18

Court  of  judicial  superintendence  over  the  Tribunals,  under  the  

amended Article 227 stood obliterated. By way of the amendment in  

the  sub-article,  the  words,  “and  Tribunals”  stood  deleted  and  the  

words “subject to its appellate jurisdiction” have been substituted after  

the words, “all courts”. In other words, this amendment purports to  

take away the High Court’s power of superintendence over Tribunals.  

Moreover, the High Court’s power has been restricted to have judicial  

superintendence only over judgments of inferior courts, i.e. judgments  

in cases where against the same, appeal or revision lies with the High  

Court.   A  question  does  arise  as  regards  whether  the  expression  

‘courts’ as it appears in the amended Article 227, is confined only to  

the regular civil or criminal courts that have been  constituted under  

the hierarchy of courts and whether all Tribunals have in fact been  

excluded  from  the  purview  of  the  High  Court’s  superintendence.  

Undoubtedly, all courts are Tribunals but all Tribunals are not courts.  

13. The  High  Court’s  power  of  judicial  superintendence,  even  

under the amended provisions of Article 227 is applicable, provided  

that  two  conditions  are  fulfilled;  firstly,  such  Tribunal,  body  or  

authority  must  perform  judicial  functions  of  rendering  definitive  

judgments having finality, which bind the parties in respect of their  

18

Page 19

rights, in the exercise of the sovereign judicial power transferred to it  

by the State, and secondly such Tribunal, body or authority should be  

the subject to the High Court’s appellate or revisional jurisdiction.

14. In  S.P. Sampath Kumar v. Union of India,  AIR 1987 SC  

346,  this  Court  held  that,  in  the  Central  Administrative  Tribunal  

(hereinafter  referred  to  as  the  ‘CAT’),  the  presence  of  a  judicial  

member was in fact a requirement of fair procedure of law, and that  

the administrative Tribunal must be presided over in such a manner,  

so as to inspire confidence in the minds of the people, to the effect  

that it is highly competent and an expert body, with judicial approach  

and objectivity and, thus, this Court held that the persons who preside  

over the CAT, which is intended to supplant  the High Court must  

have adequate legal training and experience.   

This Court further observed that it was desirable that a high-

powered committee, headed by a sitting Judge of the Supreme Court  

who  has  been  nominated  by  the  Chief  Justice  of  India  to  be  its  

Chairman, should select  the persons who preside over the CAT, to  

ensure the selection of proper and competent people to the office of  

trust  and  help  to  build  up  its  reputation  and  accountability.   The  

19

Page 20

Tribunal  should  consist  of  one  Judicial  Member  and  one  

Administrative Member on any Bench.  

15. In L. Chandra Kumar v. Union of India & Ors., AIR 1997  

SC 1125, this Court held that the power of judicial review of the High  

Court under Article 226 of the Constitution of India, being a basic  

feature of the Constitution cannot be excluded.  In this context, the  

Court held:   

“….It must  not be forgotten that  what is   permissible  to  be  supplanted  by  another   equally  effective  and  efficacious   institutional mechanism is the High Courts   and not the judicial review itself…….”  

The Court further observed that the creation of this Tribunal is  

founded on the premise that, specialised bodies comprising of both,  

well  trained  administrative  members  and  those  with  judicial  

experience, would by virtue of their specialised knowledge, be better  

equipped to dispense speedy and efficient justice.  The contention that  

the  said  Tribunal  should  consist  only  of  a  judicial  member  was  

rejected,  and  it  was  held  that  such  a  direction  would  attack  the  

primary grounds of the theory, pursuant to which such Tribunals were  

constituted.

20

Page 21

16. In V.K. Majotra & Ors. v. Union of India & Ors., AIR 2003  

SC 3909,  this  Court  reversed the  judgment  of  the  Allahabad High  

Court wherein, direction had been issued that the Vice-Chairman of  

the  CAT could  be  only  a  retired  Judge  of  the  High  Court,  i.e.,  a  

Judicial Member and that such a post could not be held by a Member  

of the Administrative Service, observing that such a direction had put  

at naught/obliterated from the statute book, certain provisions without  

striking them down.   

17-18.  A  Constitution  Bench  of  this  Court  in  Statesman  

(Private) Ltd. v. H.R. Deb & Ors., AIR 1968 SC 1495, examined  

the provisions of Sections 7(3)(d) and g(1) of the Industrial Disputes  

Act, 1947, which contain the expression ‘judicial office’, and held that  

a person holds ‘judicial office’ if he is performing judicial functions.  

The  scheme  of  Chapters  V  and  VI  of  the  Constitution  deal  with  

judicial  office  and  judicial  service.   Judicial  service  means  a  

separation of the judiciary from the executive in public services.  The  

functions of the labour court are of great public importance and are  

quasi-judicial  in  nature,  therefore,  a  man having experience  of  the  

21

Page 22

civil side of the law is more suitable to preside over it, as compared to  

a person working on the criminal side.  Persons employed performing  

multifarious  duties  and,  in  addition,  performing  some  judicial  

functions, may not truly fulfil the requirement   of the statute.  Judicial  

office  thus  means,  a  fixed  position  for  the  performance  of  duties,  

which are primarily judicial in nature.  

19. In  Shri  Kumar Padma Prasad v.  Union of  India & Ors.,  

(1992) 2 SCC 428, this Court held that the expression, `judicial office’  

in the generic sense, may include a wide variety of offices which are  

connected with the administration of justice in one way or another.  

The holder of a judicial office under Article 217(2)(a), means a person  

who  exercises  only  judicial  functions, determines  cases  inter-se  

parties  and renders decisions  in purely judicial  capacity.   He must  

belong to the judicial services which is a class in itself, is free from  

executive control, and is disciplined to hold the dignity, integrity and  

independence of the judiciary.  The Court held that `judicial office’  

means a subsisting office with a substantive position, which has an  

existence independence from its holder.   

22

Page 23

20. The  instant  case  is  required  to  be  examined  in  light  of  the  

aforesaid settled legal propositions.  

21. The present Writ Petition was filed on the premise, that the post  

of the President of the Gujarat Revenue Tribunal was covered by the  

expression `District Judge, as has been defined under Article 236 of  

the Constitution, the definition being an exclusive one, and thus, in  

view  of  the  provisions  of  Article  233  of  the  Constitution,  the  

appointment of the President of the Tribunal can be made only upon  

consultation with the High Court.  In the alternative it was suggested,  

that the said Tribunal is a court and that the post of the President is  

one of judicial service, and in view of the provisions of Article 234 of  

the Constitution, the appointment of the President can be made only  

upon consultation with the High Court, as well as the Gujarat Public  

Services  Commission.   Even  otherwise,  having  regard  to  the  

functions, powers and duties vested in the President,  a person with  

legal  qualification  and  long  judicial  experience  should  alone  be  

appointed  as  President.   Reference  to  the  Bombay  Legislative  

Assembly debate dated 18.4.1939, as expressed by the then Revenue  

Minister, revealed that the intention of the legislature  had been that  

the post be filled  by a retired High Court Judge, or a District Judge of  

23

Page 24

not less than ten years standing.  Further, the Tribunal dealing with  

various cases  under the Gujarat  Agriculture and Land Ceiling Act,  

1961, Gujarat Private Forest Act, Bombay Public Trust Act, Bombay  

Tenancy and Agricultural  Lands Act,  Bombay Jagirdari  and Other  

Tenure Abolition Act, and with questions of title under Section 37(2)  

of the Bombay Land Revenue Court has to deal with large number of  

civil  disputes  between  the  citizens,  as  well  as  between  the  

Government and citizens and, it is pertinent to note that at the relevant  

time of filing of  this Writ Petition, 6500 cases were pending before  

the  Tribunal.  With  these  assertions,  the  prayers  made  by  the  writ  

petitioners were mainly to declare Sections 4 and 20 of the Act, 1958  

as  ultra-vires  and  unconstitutional  on  the  grounds  that  they  gave  

absolute unguided power to the State Government  in relation to the  

appointment of the President, and further, to declare Rule 3(1) so far  

as it authorises the appointment of the Secretary, as ultra-vires and  

void,  and  also  to  quash  the  appointment  of  the  respondent  as  the  

President.  

The State Government contested the case, contending that the  

provisions  of  Article  236  of  the  Constitution  have  no  application.  

Further, the Act as well as the Rules provide that a person having long  

24

Page 25

standing experience in the area of revenue law, and under Rule 3(2)  

an  advocate  who is  qualified  to  be  a  Judge  of  the  High Court,  is  

eligible  for  the  post  of  the  President  of  the  Tribunal.   The  

Administrative  Officer  has  long  and  vast  experience  in  revenue  

matters,  being  posted  as  Special  Divisional  Magistrate,  Collector,  

Deputy  Secretary  and  Secretary  dealing  with  laws  pertaining  to  

revenue and was hence, competent enough to deal with any subject  

assigned under the said Act and the Rules.  Thus, the Secretary to the  

Government of Gujarat was competent/eligible to be selected to the  

post of the President of the Tribunal.  

22. The  High  Court  examined  the  functions  and  powers  of  the  

Tribunal.  Section  117KK  of  the  Bombay  Land  Revenue  Code  

provides  for  reference  of  certain  matters  to  the  Tribunal  for  its  

opinion. Section 117L provides that the opinion of the Tribunal, along  

with settlement report, be laid on the table of the State Legislature and  

a copy thereof,  be sent to every Member and the said report is liable  

to be discussed by way of a resolution moved in the State Legislature .  

23. The  Tribunal   has  also  been  conferred  with  the  power  to  

adjudicate  disputes,  which  may  arise  from  the  provisions  of  the  

25

Page 26

Bombay Tenancy and Agricultural Lands Act, 1948.  Section 75(1) of  

the  said  Act  provides  that  an  appeal  against  the  award  of  the  

Collector, made under Section 66 may be filed before the Tribunal.  

Sub-section  (2)  of  Section  75,  provides  that  in  deciding  appeals  

preferred  under  sub-section  (1),  the  Tribunal  shall  exercise  all  the  

powers which a court has and subject to the regulations framed by the  

Tribunal under the  Act 1957, follow the same procedure  which a  

court follows in deciding appeals from the decree or order of an  

original court under the CPC. Section 76(1) of the Act provides that  

notwithstanding anything contained in the Act, 1957, an application  

for  revision may be made to the Tribunal against  any order of  the  

Collector, except an order under Section 32P, or an order in appeal  

against an order under sub-section (4) of Section 32G.  Section  80  

provides that all inquiries and proceedings before the Tribunal  shall  

be  deemed  to  be  judicial  proceedings within  the  meaning  of  

Sections 193, 219 and 228 of the IPC.  Section 85 deals with bar of  

jurisdiction.  It  further  provides  that  no  Civil  Court  shall  have  the  

jurisdiction to settle, decide or deal with, any question which is by or  

under this Act, required to be settled, decided or dealt with, by the  

Tribunal in appeal or revision. It is also provided in sub-section (2) of  

26

Page 27

Section 85 that no order of the Tribunal shall be questioned in any  

civil or criminal court.  

24. The Gujarat Agricultural Lands Ceiling Act, 1960, was enacted  

to fix a ceiling on holdings of agricultural lands, and to provide for the  

acquisition and disposal of surplus agricultural lands. Chapter VI of  

the said Act deals with procedure, appeals and revision. Section 36  

provides that any person aggrieved by an award made by the Tribunal  

under Section 24, or by the Collector under Section 28, may appeal to  

the Tribunal. Sub-section (3) of Section 36 provides that in deciding  

such  appeal  the  Tribunal  shall  exercise  all  the  powers  which  a  

Court has and follow the same procedure which the Court follows  

in deciding appeals from the decree or order of the original court  

under the CPC.  Section 38 provides that notwithstanding anything  

contained in the Act, 1957, an application for revision may be made to  

the  Tribunal constituted under the said Act, against any order passed  

by  the  Collector.  Section  47  deals  with  bar  of  jurisdiction,  as  it  

provides  that no civil court shall have the jurisdiction to settle, decide  

or deal with any question which is by or under this Act required to be  

settled, decided or dealt with by the Tribunal. Section 48 provides that  

all inquiries and proceedings before the Tribunal shall be deemed to  

27

Page 28

be ‘judicial proceedings’, within the meaning of Sections 193, 219  

and 228 of the IPC.   

25. The  Bombay  Public  Trust  Act,  l950,  has  been  enacted  to  

regulate, and to make better provision for the administration of public  

religious  and charitable  trusts  in  the  State  of  Bombay,  which  also  

extends to the State of Gujarat. 1n exercise of powers conferred under  

Section 84 of the said Act, the Government of Bombay has framed the  

Bombay Public Trusts (Gujarat) Rules, 1961. Section 51 of the Act  

provides for consent of the Charity Commissioner for the institution  

of  a  suit.  Sub-section  (2)  of  Section  51  says  that  if  the  Charity  

Commissioner refuses his consent for the institution of a suit under  

sub-section (1) of Section 51, the concerned person may file an appeal  

to the Tribunal. References made to the Tribunal have been dealt with  

in  Chapter  Xl  of  the  Act.  Section  71  deals  with  appeals  to  the  

Tribunal,  and  provides  that  an  appeal  to  the  Tribunal  under  Sub-

section  (2)  of  Section  51,  against  the  decision  of  the  Charity  

Commissioner, refusing consent for the institution of a suit, shall be  

filed within 60 days from the date of such decision, in such form and  

shall be accompanied by such fee, as may be prescribed, and that the  

decision  of  the  Tribunal  shall  be  final  and  conclusive.  Section  74  

28

Page 29

provides that all inquiries and appeals shall be deemed to be judicial  

proceedings within the meaning of Sections 193, 219 and 228 of the  

IPC.  Section  76  provides  that,  save,  in  so  far  as  they  may  be  

inconsistent with anything contained in the Act, the provisions of the  

CPC will apply to all proceedings before the court under this Act.  

Section 80 deals with bar of jurisdiction of civil courts, as it provides  

that no civil court can deal with any question which is by, or under the  

Act, to be decided or dealt with, by any officer or authority under the  

Act  in  respect  of  which,  the  decision  or  order  of  such  officer  or  

authority has been made final and conclusive.  

26. Section 13(1) of the Act, 1957, provides that in exercising the  

jurisdiction conferred upon the Tribunal, the Tribunal shall have all  

the powers of a civil court as enumerated therein and shall be deemed  

to be a civil court for the purposes of Sections 195, 480 and 482 of  

the Cr.P.C., and that its proceedings shall be deemed to be judicial  

proceedings, within the meaning of Sections 193, 219 and 228 of the  

IPC.   

27. The aforesaid observations made by the High Court, taking into  

consideration  various  statutes  dealing  with  not  only  the  revenue  

29

Page 30

matters, but also covering other subjects, make it crystal clear that the  

Tribunal does not deal only with revenue matters provided under the  

Schedule I,  but has also been conferred appellate/revisional powers  

under various other statutes. Most of those statutes provide that the  

Tribunal, while dealing with appeals, references, revisions, would act  

giving strict adherence to the procedure prescribed in the CPC, for  

deciding a matter as followed by the Civil Court and certain powers  

have also been conferred upon it, as provided in the Cr.P.C. and IPC.  

Thus, we do not have any hesitation in concurring with the finding  

recorded by the High Court that the Tribunal is akin to a court and  

performs similar functions.  

During the course of arguments before the High Court, learned  

Additional  Advocate General had conceded that  the judgments and  

orders passed by the Tribunal can be challenged under Article 227 of  

the Constitution. Thus, it has been conceded before the High Court  

that the High Court has supervisory control over the Tribunal, to the  

extent that it can revise and correct the judgments and orders passed  

by it. In such a fact-situation, the consultation/concurrence of the High  

Court, in the matter of making the appointment of the President of the  

Tribunal is required.  

30

Page 31

28. The  object  of  consultation  is  to  render  the  consultation  

meaningful to serve the intended purpose. It requires the meeting of  

minds between the parties involved in the process of consultation on  

the basis of material facts and points, to evolve a correct or at least  

satisfactory  solution.  If  the  power  can  be  exercised  only  after  

consultation,  consultation  must  be  conscious,  effective,  meaningful  

and purposeful. It means that the party must disclose all the facts to  

other  party  for  due  deliberation.   The  consultee  must  express  his  

opinion after full consideration of the matter upon the relevant facts  

and quintessence.  (Vide: UOI v. Sankalchand Himatlal Sheth, AIR  

1977 SC 2328; Subhash Sharma & Ors. v. UOI,  AIR 1991 SC 631;  

Justice  K.P  Mohapatra  v.  Sri  Ram Chandra  Nayak  and  Ors.,  

(2002) 8 SCC 1; Gauhati High Court & Anr. v. Kuladhar Phukan  

&  Anr.,  AIR  2002  SC  1589;  High  Court  of  Judicature  for  

Rajasthan v.  P.P  Singh,  AIR 2003  SC 1029;  UOI v.  Kali  Dass  

Batish,  AIR  2006  SC  789;  and  Andhra  Bank  v.  Andhra  Bank  

Officers, AIR 2008 SC 2936).

31

Page 32

29. Thus,  it  is  evident  from the  above  that  the  procedure  to  be  

observed under Article 234 of the Constitution goes to the extent of  

the true meaning of consultative process and not an empty formality.   

30. In view of the above, we do not see any cogent reason to take a  

view contrary to the view taken by the High Court. The appeal lacks  

merit and is, therefore, accordingly dismissed.     

       ………………………………..……………………..J.

 (Dr. B.S. CHAUHAN)

    ……………………………….……………………..J.                      (FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,  October 16, 2012   

32