AJN v. State of Maharashtra

- (Per Smt. Ranjana Desai, J.)

These petitions challenge validity : 3 : Maharashtra Land Revenue Code (Amendment) Act, 2002 (Maharashtra Act No.25) (for short, "the Amending Act"). PIL No.56 2002 senior advocates, practicing Pune, public interest, Writ Petition No.841 2003 Gopal Narayan Dikshit, a revision application section 76 Bombay Tenancy Agricultural Lands Act, 1948 (for short, "the Tenancy Act") before Maharashtra Revenue Tribunal (for short, "the Tribunal"). The said revision application is admitted on 24/7/2000 and is pending. On

As 3/7/2002, Rule issued PIL No.56

2002. interim arrangement, Divisional Commissioner directed entertain appeals/revisions/other proceedings accordance law. This observed Divisional Commissioner appropriate interim/interlocutory orders/directions without finally deciding them.

On 29/7/2003, directed State affidavit stating whether Divisional Commissioner contemplated Amending Act, I.A.S. Officer a senior cadre, decide matters transferred state; whether officer whether nomenclature a person having specialised knowledge revenue matters knowledge law; Government continuing Divisional Commissioner whether a : 4 : judicial officer presently working retired appointed transfer judicial authority to judicial authority. No such affidavit is filed by the State.

The submission Mr. Anthurkar Mr. Rege, appearing petitioners Intervener respectively PIL Mr. Sabnis petitioners Writ Petition No.841 2003 Amending Act override principle separation powers. They contended Tribunal invested important powers. Insofar Tenancy Act concerned, finality orders judgments finality penetrated filing a petition court. To replace Tribunal Divisional Commissioner, Executive Officer, result giving a go-bye principle separation judiciary executive. That affect inviolable structure of the Constitution and, therefore, the Amending Act must be struck down.

The learned counsel contended abolishing Revenue Tribunal investing Divisional Commissioner judicial powers, State ignored pursuance section 296(2) Act 1935, sought prevent entrusting judicial powers executive officers, Tribunal assuming entrusted Tribunal.

: 5 : created. By Amending Act, State reversed arrangement. The learned counsel contended Divisional Commissioners work, account workload proper infrastructure, entrusted them. They be in a position to cope up with the judicial work of the The learned counsel contended appointments Presiding Officers Tribunal consultation High Court. The Amending Act powers High Court. conferred judicial powers officer, It appointed Entrusting consultation powers High Court. Divisional Commissioner not appointed in consultation with the High Court is illegal.

The learned counsel decision abolish Tribunal without consultation High Court. Under Article 235 Constitution India, responsibility High Court subordinate Courts Tribunals. Prior consultation High Court necessary Government wanted abolish Tribunal. The learned counsel contended reduction a ground : 6 : entrust judicial Executive Officers. In support submissions, learned counsel relied on the judgments of the Supreme Court as well as this court to which we shall soon advert.

Revenue In response petitions, Section Officer, Forests Department, Mantralaya separate affidavits petitions. In affidavits, Section Officer, Revenue Forests Department, Mantralaya, Mumbai, denied contentions raised petitioners justified abolition Tribunal. According him, Amending Act perfectly legal. The submission the State is found in paragraph 7 of the affidavit dated 13/8/2002, which reads thus: "With reference Para No.14(i) Petition, I powers Tribunal strictly judicial powers because formation Tribunal powers vested quasi-judicial authorities. It further submitted Modalities/Guidelines appointment President Members The Maharashtra Revenue Tribunal framed Respondent No.1 consultation Hon’ble Court, hereto annexed marked : 7 : Exhibit-4, Tribunal members required appointed. members, member category ’Revenue Officer’ ‘Judicial Officer/Advocates’ required appointed. Thus, position Tribunal consisted of Revenue Officers and Judicial Officers in equal proportion. "

It stated affidavit constitute a Tribunal conferred virtue Article 323B Constitution India State Legislature create a Tribunal vested State Legislature, carries abolish same. It exclusive domain State Legislature laws. We that the Tribunal was not constituted under Article 323B of the Constitution as wrongly stated in the affidavit.

The same submissions have been reiterated by the learned A.P.P. appearing for the State.

Before submissions, necessary a history Tribunal. It advantageous origin, stages evolution functions carried it. Tribunal

constituted 1/4/1937 The : 8 : Governor Bombay powers conferred section 29 Government India Act, 1935 short, 1935 "the Act 1935"). Section 296(2) Act provided province, jurisdiction (for entertain appeals revise decisions revenue immediately before commencement Part III Act 1935 vested Government, Governor constitute a Tribunal exercise jurisdiction provision behalf Act Provincial Legislature. In accordance provision, Bombay Legislature passed On Bombay Revenue Tribunal Act, 1939 (for short, "the Act 1939") providing constitution Revenue Tribunal province Bombay. By section 3 thereof, conferred State Government constitute a Tribunal. Section 4 thereof defined powers functions Tribunal. The Tribunal exercise jurisdiction entertain appeals revision applications revenue vested Government immediately before 1/4/1937. It appears object create a separate independent Tribunal causes between State subject State become arbiter cause. commencement Bombay Revenue Tribunal Act, 1957 (for short, "the Act 1957"), the Act 1937 repealed. The Act 1957 intended constitute a Tribunal State Bombay invest jurisdiction entertain appeals revise decisions : 9 : certain cases; abolish corresponding bodies State provide matters connected therewith. By Bombay Re-organisation Act, 1960, Bombay State States i.e. State Maharashtra State Gujarat. By Maharashtra Adoption (State Concurrent & Subjects) Order 1960, Act 1957 amended Bombay Revenue Tribunal Maharashtra Revenue Tribunal. The Act 1957 repealed section 336(d) Maharashtra Land Revenue Code, 1966 (for short, "the Code") existing provisions of the Act of 1957 were incorporated in Chapter 15 of the Code.

Chapter 15 the Code, which sought deleted Amending Act, pertains Tribunal. Section 315 thereof demarcates jurisdiction Tribunal. Section 318 states Tribunal have powers of civil court. Section 313 lays down the practice and the procedure of the Tribunal.

The effect deletion Chapter 15 Code Amending Act abolish Tribunal, dealing appeals revisions section 315 Code arising certain Acts. It stated Tribunal exercises appellate revisional jurisdiction various statutes Tenancy Act, Bombay Public Trusts Act, etc. While deleting : 10 : Chapter 15 Code, Amending Act consequential changes Code. It necessary provisions Amending Act consequential changes Code because result provisions replace Tribunal Divisional Commissioner Divisional Commissioner primacy Tribunal matters relating revenue respect section reference 14 certain Acts. We may Amending Act states Tribunal State enactments specified Schedule appended construed reference Divisional Commissioner concerned Division appointed section 5 Code. In effect, therefore, Amending Act amends State enactments also. The challenge entrustment of powers in the hands of executive officers.

The Amending Act is preceded by the following: "WHEREAS observed number appeals State before Maharashtra Revenue Tribunal Maharashtra Land Revenue Code, 1966 and other State enactments, is reduced to a considerable extent; AND WHEREAS, having regard : 11 : fact, Government Maharashtra considers expedient abolish Maharashtra Revenue Tribunal confer powers dispose appeals before Tribunal Code various enactments to the concerned Divisional Commissioner; AND WHEREAS expedient further Maharashtra Land Revenue Code, 1966 purposes aforesaid; hereby enacted in the Fifty-third Year of the Republic of India as follows:-" Therefore, reason taking drastic abolishing Tribunal alleged considerable reduction appeals State, before Tribunal. That, reduction Tribunal disputed petitioners Writ Petition No.841 2003 giving pending matters. That controverted State affidavit. It necessary factual aspect concerned with it. The question assuming reduction work, whether reason, Tribunal abolished powers adjudication entrusted Executive Officers. For that, necessary decide whether Tribunal a Judicial

: 12 : Tribunal. If a Judicial Tribunal, Amending Act violate principle separation powers? The task of this court is to find answers for these questions.

Article 50 of the Constitution reads thus: "Article 50: Separation judiciary executive: The State separate the judiciary from the executive in the public service of the State. " Concept separation powers a feature Constitution. There debate this. enactment which tries to violate it can withstand the scrutiny of the court.

While tracing origin Tribunal, already referred section 296(2) Act This section, so far as it is relevant for the present purpose, reads thus: No

1935. "296-(1). No member Federal Provincial Legislature a member a Tribunal British India having jurisdiction to entertain appeals or revise decisions in revenue cases. : 13 : (2) If Province jurisdiction aforesaid was, immediately before commencement Part III Act, vested Local Government, Governor constitute a Tribunal, consisting person persons he, exercising individual judgment, fit, exercise jurisdiction provision behalf is made by Act of the Provincial Legislature. "

The Statement Objects Reasons Act 1939 by which the Tribunal was constituted refers to this section. The relevant paragraph reads thus: a "Under sub-section (1) section 296 Government India Act, 1935, member member a Provincial Legislature Tribunal having jurisdiction entertain appeals revise decisions "revenue cases". Under sub-section (2) section 296 Act a temporary Tribunal constituted 1st April 1937 exercise jurisdiction. The object present Bill replace temporary Tribunal by a permanent Tribunal. " : 14 :

It paragraph Tribunal created prevent judicial entrusted members Provincial Legislatures. Section 296(2) reference specifically states Province jurisdiction vested Local Government before commencement Part III Act, Governor constitute a Tribunal exercise jurisdiction provision behalf. Thus, Tribunal intended prevent entrustment judicial powers officers Government/executive officers. The Amending Act intends reversing this. This, opinion, is not permissible for reasons which we shall now state.

In Bhagwandas Motiram Marwari v. The Bombay Revenue Tribunal, Nagpur, B.L.R. LXI 1406, dealing a petition Articles 226 227 Constitution, quashing Revenue Tribunal, Nagpur, transferring preferred petitioner pending before Commissioner, Nagpur, disposal. According Bombay appeal Tribunal, virtue section 8 Bombay Commissioners Divisions Act, appeal The transferred Commissioner disposal. appeal question Sub-Divisional Officer application : 15 : section 19 Berar Regulation Agricultural Leases Act, 1951. Section 8 of the Bombay Commissioners of Divisions Act, read as under: "All proceedings including proceedings appeals, revision review pending existing before State Government Director a Divisional Officer Local Authorities officer authority immediately before commencement Act shall, disposal proceedings within purview powers duties Commissioner, transferred Commissioner for disposal according to law". The Revenue Tribunal specifically mentioned section 8 but, Tribunal relying earlier decision Vishweshar Rao vs. State Bombay "authority" occurring section includes a Revenue Tribunal. While dealing question, a conclusion "authority" cannot deemed include a Court judicial tribunal. This expressed term, section 8, include a Tribunal Bombay Revenue Tribunal, entrusted adjudicating rights persons judicially. : 16 : The following observations of this court are material for the purposes of the present case: "The is, quasi-judicial tribunal (that administrative executive tribunal entrusted judicial functions) certainly within "authority". But, function tribunal adminster justice judicially, cannot within expression "authority. " The Bombay Revenue Tribunal entrusted administrative solely entrusted deciding matters judicially, whether between individual individual between State individual. It cannot deemed performing quasi-judicial functions must be regarded as performing purely judicial functions. " In matter, concluded appeal Revenue Tribunal itself transfer Commissioner erroneous. This judgment makes it clear that the Tribunal performs purely judicial functions.

The Maharashtra Land Revenue (Revenue Tribunal) : 17 : Rules, 1967, provide qualifications President Tribunal. It, alia, states President a person who a a High Court. post. Vast The This requirement indicates importance Implicit requirement person disciplined uphold dignity, integrity a case, independence judiciary. Equally implicit competence, expertise knowledge person. If Tribunal abolished, a appointee Divisional Commissioner a graduate. He may acumen. experience cannot a substitute acumen. decision State replace Tribunal, required headed, alia, a person who a a High Court, executive officer violates principle separation powers enshrined Article 50 Constitution, feature Constitution but also dilutes the importance of the work the Tribunal has so far been carrying out.

The Bombay Revenue Tribunal Regulations, 1958 Act 1958 continued remain virtue section 329(2) section 336 Code. These detailed provisions presentation, registration admissions appeals applications, hearing adjournment thereof decisions orders thereon. They contemplate notice parties, procedure : 18 : non-appearance parties, restoration appeals applications, limitation, procedure taking evidence, provision adjournment, procedure appellants applicants abatement inspection, search, service respondents, notices. Regulation 55 requires Tribunal follow provisions Civil Procedure Code matters provided regulations. This procedure leaves the Tribunal is entrusted with the duty of adjudicating rights of persons judicially.

In In connection, a judgment court, confirmed Supreme Court. State vs. Labour Law Practitioners Association, 1987 Mh.L.J. 91, concerned validity notification State Government appointing respondents, Assistant Commissioners Labour judges Labour Court. A declaration sought amended provisions Industrial Disputes Act Bombay Industrial Relations Act adding Assistant Commissioners Labour persons, appointed categories presiding officers labour contrary Article 234 Constitution India. A direction sought State Government comply provision Article 234 appointing judges Labour Court. A learned single Labour Court judicial : 19 : inferior District Judge Article 234 attracted. The appointments respondents quashed State directed comply provisions Article 234 matter appointment Labour Court judges. In appeal carried Division Bench, Division Bench referred judgment Supreme Court Bharat Bank Ltd. v. Employees the Bharat Bank Limited, Delhi, AIR 1950 SC 459, a passage Cooper vs. Wilson 1937 2 KB 309 quoted Industrial Tribunal had all the necessary attributes of a court of justice. We may quote the said paragraph. "A judicial decision presupposes existing dispute between parties, requisites:- (1) involves The presentation necessarily orally) (not parties dispute; (2) dispute between a question fact, ascertainment evidence adduced parties dispute assistance argument behalf parties evidence; (3) dispute between a question law, submission argument parties, (4) a decision disposes matter : 20 : finding dispute application ruling A found, including required a disputed question law. quasijudicial decision equally presupposes existing dispute between parties involves (1) necessarily involve (3) (2), involves (4). The (4) administrative action, character of which is determined by the Minister’s free choice. " It Industrial Tribunal Bharat Bank’s (supra) measure Labour Court. The appointments judges Labour Courts must, therefore, under the provisions of Article 234. In the circumstances, the Division Bench dismissed the appeal.

The Special Leave Petition against decision dismissed Supreme Court State Maharashtra v. Labour Law Practitioners Association Ors. (1998) 2 SCC

The Supreme Court referred & judgment Chandra Mohan v. State U.P., AIR 1966 SC

1987. In case, U.P. Higher Judicial Service Rules, "judicial officers" eligible appointment District Judges expression : 21 : members executive department discharged revenue magisterial duties also. Supreme Court Governor appoint District Judges persons service The judicial service. A person, police, excise, revenue services cannot appointed defined a District Judge. "Judicial service" Article 236 consists persons intended District Judges judicial exclusive service consisting observed judicial officers. The Supreme acceptance Government Court across pre-independence well-knit scheme Constitution providing independence judiciary. ‘Judicial service’ defined exclusive consisting judicial officers, discharging entirely judicial duties. It observed having provided appointment service having entrusted control service High Court, makers Constitution conferred a blanket the Governor to appoint any person from any service as a District Judge.

In ultimate analysis, Supreme Court observed Constitutional Scheme Chapter 6 Part VI dealing anxiety "subordinate courts" framers Constitution preserve : 22 : independence judiciary executive. No doubt, case, concerned judicial service Article 234 Constitution but, concept separation powers independence judiciary was stressed and the Supreme Court dismissed the Special Leave Petition.

If Tribunal performing purely judicial functions, trappings a court, opinion, decision State Government abolish entrust powers Divisional Commissioner, executive officer clearly violative principle separation powers independence of judiciary emphasised by the Supreme Court in Labour Law Practitioners’ case (supra).

Court within The Amending Act liable struck another ground. Under Article 227(1), High superintendence courts Tribunals territorial jurisdiction, except constituted a relating forces. This includes returns courts, general prescribe regulating practice proceedings courts prescribe books, entries accounts officers courts. The superintendence extends administrative judicial superintendence courts : 23 : tribunals. The High Court Article 227 Constitution essentially ensure Courts Tribunals, inferior Court, required do. High This jurisdiction intended ensure subordinate Courts Tribunals within limits authority according law. This purpose keeping subordinate Courts Tribunals within bounds authority. A person assail Tribunal’s decision Article 227 Constitution, Tribunal arbitrarily declined legally incumbent refused exercise jurisdiction vested Tribunal exceeded jurisdiction, assumed erroneous jurisdiction. The Tribunal challenged grounds Tribunal against principles natural justice; findings evidence, otherwise perverse, apparent record. The rights parties determined Divisional Commissioner, amenable High Court’s superintendence Article 227 Constitution. The abolition Tribunal superintendence High Court Article 227 the Constitution. The validity of the Amending Act can successfully be challenged on this ground. Act : 24 :

We substance submissions learned counsel petitioners Amending consultation High Court matters appointments. We already referred rules, require President Tribunal a person, who a High Court. This requirement indicates a person, a person calibre. He competent, versed integrity. Looking onerous important entrusted Tribunal, sought entrusted Divisional Commissioner, control the High Court matter appointments will have a deleterious effect on the administration of justice.

The affidavit behalf State satisfactorily contentions raised petitioners. The formation Tribunal powers vested quasi-judicial authority answer entrustment judicial powers Tribunal Divisional Commissioner. If alleged respondents, reduction work, abolition Tribunal cannot a solution it. At most, Benches be withdrawn purpose. The submissions of the learned counsel for the State fail to impress us. : 25 :

In ultimate analysis, therefore, record Amending Act violative principle separation powers independence judiciary enshrined Article 50 Constitution, structure. The Amending Act superintendence High Court Article 227 Constitution. In circumstances, Amending Act declared illegal ultravires Constitution India. In taken, the Maharashtra Land Revenue (Amendment) Act, 2002 declared illegal ultravires Constitution India. The State Code Maharashtra is directed to activate the Tribunal within a period of one month from today.