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TMI Blog2012 (10) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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. Thus it is evident that the procedure to be observed under Article 234 of the Constitution goes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ministrative 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 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 definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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, agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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