STATE OF GUJARAT Vs GUJARAT REV.TRBL. BAR ASSOCN
Bench: B.S. CHAUHAN,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: C.A. No.-007208-007208 / 2012
Diary number: 31104 / 2009
Advocates: HEMANTIKA WAHI Vs
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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
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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
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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
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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
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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,
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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
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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:
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“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
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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-
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(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
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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.
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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
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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
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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
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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)
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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).
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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
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