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
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
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 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 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, 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 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:
“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
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-
(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
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. 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 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 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 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) 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 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
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 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 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.
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 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.
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 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 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 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 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 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
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
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.
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).
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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