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Nongpok Sekmai Collective Farming Co-operative Society Ltd. and ors. Vs. Sekmai Khunbi Joint Farming Co-operative Society Ltd. and ors. - Court Judgment

LegalCrystal Citation
Subject;Property;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. Nos. 65 of 1977 and 5 of 1978
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Manipur Land Revenue and Land Reforms Act, 1960 - Sections 95 and 159; Constitution of India - Article 227; Constitution of India (42nd Amendment) Act, 1976; Constitution of India (44th Amendment) Act, 1976;
AppellantNongpok Sekmai Collective Farming Co-operative Society Ltd. and ors.
RespondentSekmai Khunbi Joint Farming Co-operative Society Ltd. and ors.
Appellant AdvocateA. Nilamani Singh, Adv.
Respondent AdvocateY. Imo Singh, Adv. and Th. Munindrakumar Singh, Govt. Adv.
DispositionApplication rejected
Prior history
K.N. Saikia, J.
1. This civil revision under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India, impugns the judgment dated 2-5-77 of the Revenue Tribunal, Manipur, dismissing the petitioner-Society's revision petition under Section 95 of the Manipur Land Revenue and Land Reforms Act, 1960, hereinafter referred to as 'the Act'.
2. The Deputy Commissioner, Central District, Manipur, by his order dated 17-4-76 allotted to the respondent-Society, namel
Excerpt:
- - , empowered the high court to call for the records of any case which has been decided by any court subordinate to such high court and in which no appeal lies thereto, and if such subordinate court appears--(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. this being so, it is clearly not a revenue court as envisaged in the c. analysed the nature of the duties and functions of the industrial tribunal and observed it to be very much like a body discharging judicial functions, although it is not a court (at p. it is also well-settled that all the tests laid down may not be present in a given case. their lordships were..... k.n. saikia, j. 1. this civil revision under section 115 of the code of civil procedure read with article 227 of the constitution of india, impugns the judgment dated 2-5-77 of the revenue tribunal, manipur, dismissing the petitioner-society's revision petition under section 95 of the manipur land revenue and land reforms act, 1960, hereinafter referred to as 'the act'.2. the deputy commissioner, central district, manipur, by his order dated 17-4-76 allotted to the respondent-society, namely, sekmai khunbi joint farming co-operative society ltd., registered no. 59 of 1969, 46.29 acres of land under c. s. dag nos. 259, 287, 359 and 371 of village no. 116 within thoubalsub-division. from that order, the petitioner society, namely, nongpok sekmai collective farming co-operative society.....
Judgment:

K.N. Saikia, J.

1. This civil revision under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India, impugns the judgment dated 2-5-77 of the Revenue Tribunal, Manipur, dismissing the petitioner-Society's revision petition under Section 95 of the Manipur Land Revenue and Land Reforms Act, 1960, hereinafter referred to as 'the Act'.

2. The Deputy Commissioner, Central District, Manipur, by his order dated 17-4-76 allotted to the respondent-Society, namely, Sekmai Khunbi Joint Farming Co-operative Society Ltd., Registered No. 59 of 1969, 46.29 acres of land under C. S. Dag Nos. 259, 287, 359 and 371 of Village No. 116 within Thoubal

Sub-division. From that order, the petitioner Society, namely, Nongpok Sekmai Collective Farming Co-operative Society Ltd., Registered No. 11 of 1975-76, filed a revenue revision application under Section 95 of the Act, urging, inter alia, that the petitioner-Society reclaimed and improved the disputed land in 1967 and had ever since been in cultivating possession and expected to obtain allotment thereof; but, to their surprise, the disputed land was allotted to the respondent Society, and on a revision application, the Hon'ble Lt. Governor/Administrator set aside the said allotment order holding that the respondent Society consisted of imposters, vide Order dated 9-7-70; thereafter, the respondent Society eliminated some of their members so as to claim preference under Rule 8 (ii) of the Manipur Land Revenue and Land Reforms (Allotment of Land) Rules, 1962, hereinafter referred to as 'the Rules'; the petitioner Society also applied for allotment of the same claiming similar preference under Rule 8 (ii), but the Deputy Commissioner passed order on 17-4-76 allotting 46.29 acres of the disputed land to the respondent Society.

3. Being moved in revision under Section 95 of the Act the Revenue Tribunal Manipur, hereinafter referred to as 'the Tribunal', in its judgment dated 2-5-77 observed, inter alia, that while the allotment order was passed by the Deputy Commissioner on 17-4-76, the revision petition before it was filed on 8-9-76; i.e., after 4 1/2 months of the date of the order; that Section 95 of the Act prescribed no period of limitation for revision, but that it was open to the Tribunal to decline interference in revision if it considered that such interference would defeat the ends of justice; that the petitioner Society did not substantiate its statement of having made diligent efforts to obtain certified copy of the impugned order without any result by furnishing any copy of the application so made; that the petitioner Society approached the Tribunal rather belatedly and that interference under those conditions would result in endless litigation and in that view of the matter the revision petition was dismissed. Hence this application.

4. Mr. Y. Imo Singh, the learned counsel for the respondent Society takes a preliminary objection contending that no revision application under Section 115, C.P.C. or Article 227 of the Constitution against the order of the Tribunal passed in revision under Section 95 of the Act is

maintainable, inasmuch as the impugned order is not of a Civil Court and it was passed by the Tribunal while Article 227, as amended by the Forty-Second Amendment was in force, which excluded Tribunals from the superintending jurisdiction of the High Courts.

5. Mr. A. Nilamani Singh, the learned counsel for the petitioners refutes the preliminary objection asserting that the Tribunal is a Court and the revision under Section 115, C.P.C. is maintainable before the High Court; and the Tribunal as a Court did not fall outside the superintendence of the High Court under Article 227 of the Constitution, as amended by the Forty-Second Amendment.

6. Two preliminary questions are required to be determined, namely, (i) whether from the order of the Tribunal dated 2-5-77 passed under Section 95 of the Act a revision application under Section 115, C.P.C. is maintainable before the High Court? (ii) whether the High Court can interfere with the order of the Tribunal dated 2-5-77 in exercise of its superintendence under Article 227 of the Constitution of India?

7. Section 115, C.P.C., empowered the High Court to call for the records of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.

8. To decide whether this revision application is maintainable or not, it is necessary therefore, to decide first whether the Tribunal is a Court subordinate to the High Court? This requires analysis of the functions and jurisdiction of the Tribunal.

Section 95 of the Act, originally stood as under:--

'95. Revision. The Administrator or the Deputy Commissioner may at any time, either on his own motion or on the application of any party, call for the records of any proceedings before any revenue officer subordinate to him for the purpose of satisfying himself as to the legality or the propriety of any order passed by such revenue officer, and may pass such order in reference thereto as he thinks fit:

Provided that he shall not vary or reverse any order affecting any right between private persons without having given to the parties interested notice to appear and be heard.'

9. The above provision has to be examined in the context of other provisions and the entire scheme of the Act. Section 2 of the Act defined 'Administrator' to mean the Administrator of the Union territory of Manipur, Section 4 enabled the Government to appoint the following classes of Revenue Officers, namely,--

(a) Deputy Commissioner;

(b) Additional Deputy Commissioner;

(c) Director of Settlement and Land Records;

(d) Sub-Divisional Officers;

(e) Extra-Assistant Commissioners;

(f) Survey and Settlement Officers;

(g) Assistant Survey and Settlement Officers;

(h) Sub-Deputy Collectors;

(i) Revenue Inspectors;

(j) Amins;

(k) such other village officers and servants as may be specified by rules made Under this Act.

Under Section 7, all the Revenue Officers shall be subordinate to the Administrator and all Revenue Officers in the district or a sub-division shall be subordinate to the Deputy Commissioner or the Sub-divisional Officer as the case may be, Thus, the Act as originally passed did not envisage the Administrator as a Revenue Officer. All Revenue Officers were subordinated to him. The Manipur Land Revenue and Land Reforms Rules, 1961, hereinafter referred to as the 'Rules', were framed under the Act and were made effective from 1st June, 1961. Rules 4, 5 and 6 dealt with General Powers of Revenue Officers. In these Rules also the Administrator is not envisaged as a Revenue Officer. It was the Administrator who appointed 1st June, 1961 as a date for the 'Rules' coming into force. By subsequent amendment of Section 95, the 'Commissioner', and still later the 'Tribunal', was substituted for the 'Administrator' so that now the Tribunal may exercise jurisdiction under Section 95 of the Act. This was by the Manipur (Adaptation of Laws) Order, 1972. By Manipur Act 13 of 1976, the Revenue Commissioner was placed above the Deputy Commissioner; but, there was no mention of the Tribunal in the list of Revenue Officers. Under Section 7, all Revenue Officers shall be subordinate to the Revenue Commissioner. Under Section 81, a Revenue Officer, while exercising power under the

Act or any other law for the time being in force to inquire into or to decide any question arising for determination between the Government and any person or between parties to any proceedings, shall be a Revenue Court. Chapter VII (Sections 81 to 98) deals with the procedure of Revenue Officers : Appeals and Revisions. Section 95 is included in this Chapter. Under Section 159, no suit or proceedings shall, unless otherwise expressly provided for in the Act or in any other law for the time being in force, lie or be instituted in any Civil Court with respect to any matter arising under and provided for by the Act; provided however that if in a dispute between the parties a question of title is involved, a civil suit may be brought for the adjudication of such question; provided further that the civil Court shall have jurisdiction to decide any dispute to which the Government is not a party relating to any right or entry which is recorded in the record of rights. Under Section 160 of the Act, save as otherwise provided, the provision of the Act shall have effect notwithstanding anything to the contrary contained in any other law, custom or usage or agreement or order of Court. The Tribunal, therefore, is not a Revenue Officer. The Tribunal having not been included in the list of Revenue Officers who are to be treated as Courts, his Court has not been termed as a Revenue Court under the provisions of the Act. The Tribunal, however, revises decisions of the other Officers who are Courts.

10. The word 'Court' has not been defined in the Act. It has not also been defined in the Code of Civil Procedure. Under Section 3 of the Indian Evidence Act, 'Court' includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. Section 3 of the Code of Civil Procedure, dealing with subordination of Courts provides that for the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. Thus, in the hierarchy of the Civil Courts, there is no room for a tribunal. Section 5 of the C.P.C, deals with the application of the Code to Revenue Courts and provides:

'5 (1). Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them

is silent, the State Government may, by notification in the Official Gazette, declare that any portion of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe.'

Under Sub-section (2) of that section 'Revenue Court' in Sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature. Thus, all the Revenue Courts are not Civil Courts having original jurisdiction under the Code of Civil Procedure to try such suits or proceedings of a civil nature.

11. According to the above definitions the Tribunal cannot be called a Revenue Court. The Act in Section 159 envisages Civil Suits to be filed in the ordinary Civil Courts if a question of title is involved. The Act, however, excluded the jurisdiction of Civil Courts in all other matters under the Act. From this point of view, it can be said that the revenue jurisdiction exercised by the Tribunal is exclusive jurisdiction not in any way subordinate to any Civil Court. Further, while exercising jurisdiction under Section 95 of the Act, the tribunal does not revise a decision of a Civil Court or in a suit or proceeding before a Civil Court. This being so, it is clearly not a Revenue Court as envisaged in the C.P.C

12. In the New English Dictionary the meaning of Court is : Assembly of Judges or other persons legally appointed and acting as tribunal to hear and determine any causes -- civil, criminal, military or naval. According to the Webster's Twentieth Century Dictionary, one of the meanings of Court is the persons or Judges assembled for hearing and deciding cases, civil, criminal, naval or ecclesiastical as distinguished from the counsel or jury.

13. Under Article 136 of the Constitution of India, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. But this shall not apply to any judgment, determination, sentence or order passed or made by any Court or tribunal constituted by or under any law relating to the Armed Forces.

14. In Bharat Bank Ltd. v. The Employees of the Bharat Bank Ltd., AIR 1950 SC 188, Kania C. J. analysed the nature of the duties and functions of the Industrial Tribunal and observed it to be very much like a body discharging judicial functions, although it is not a Court (at p. 189):

'The rules framed by the Tribunal require evidence to be taken and witnesses to be examined, cross-examined and re-examined. The Act constituting the Tribunal imposes penalties for incorrect statements made before the Tribunal. While the powers of the Industrial Tribunal in some respects are different from those of an ordinary civil Court and it has jurisdiction and powers to give reliefs which a civil Court administering the law of the land (for instance, ordering the reinstatement of a workman) does not possess in the discharge of its duties it is essentially working as a judicial body. The fact that its determination has to be followed by an order of the Government which makes the award binding, or that in cases where Government is a party the Legislature is permitted to revise the decision, or that the Government is empowered to fix the period of the operation of the award do not, to my mind, alter the nature and character of the functions of the Tribunal. Having considered all the provisions of the Act, it seems to me clear that the Tribunal is discharging functions very near those of a Court, although it is not a Court in the technical sense of the word.'

15. In Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66, the Supreme Court held that in the Contempt of Courts Act, the expression 'Courts subordinate to the High Courts' would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union. According to Stephen 'In every Court, there must be at least three constituent parts--the actor, reus and judex; the actor or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy.'

16. Sections 19 and 20, I.P.C. define the words 'Judge' and the 'Court of Justice' as under:

'Section 19. The word 'Judge' denotes not only every person who is officially designated as a Judge, but also every person -- who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or

who is one of a body of persons, which body of persons is empowered by law to give such a judgment.

Section 20. The words 'Court of Justice' denote a Judge who is empowered by law to act judicially alone, or a body of Judges who is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.' The Court further observed in Bharat Bank's case (AIR 1950 SC 188) (supra)

'It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.'

Their Lordships concluded the position in the following passage from Halsbury's Laws of England, Hailsham Edition, Volume 8, page 526:

'Many bodies are not Courts, although they have to decide questions and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardian committees, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Courts when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man.' Their Lordships, applying the above test, came to the conclusion that the Commissioner appointed under that Act, was not a Court within the meaning of Contempt of Courts Act, 1952.

17. In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669, the then Hon'ble Hidayatullah, J. observed (at p. 1680):

'With the growth of civilisation and the problems of modern life, a large number of administrative tribunals have come into existence. 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 Articles 136, 227 or 228 or in Articles 233 to 237 or in the Lists, it contemplates Court of Civil Judicature but not tribunal other than such Courts. This is the reason, for using both the expressions in Articles 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, Their procedures may differ, but the functions are not essentially different. What distinguishes then has never been successfully established.'

18. In Associated Cement Companies Ltd. v. P. N. Sharma, AIR 1965 SC 1595, the Supreme Court examined the meaning of the word 'Tribunal'. Gajendra-gadkar, C. J., Hidayatullah, Shah and Sikri, JJ., held that judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on consideration of policy, the State transfers its judicial functions and powers mainly to the Courts established by the Constitution, but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to tribunals by entrusting to them the task of adjudicating upon special matters and disputes between parties. It is really not possible or even expedient to attempt to describe exhaustively the features which are common to the tribunals and the Courts, and features which are distinct and separate.

The basic and the fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State. In considering the question about the status of any body or authority as a tribunal under Article 136(1) the main test to be applied is whether the body or authority has been constituted by the State and has been clothed with the State's inherent judicial power to deal with disputes between parties and determine them on the merits fairly and objectively. Their Lordships expressed that the consideration about the presence of all or some of the trappings of a Court is not really decisive though they may assist the determination of the question as to whether the power exercised by the authority which possesses of the said trappings, is the judicial power of the State or not. The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise has been conferred on it by a statute and can be described a? a part of the State's inherent power exercised in discharging its judicial function.

19. In All Party Hill Leaders' Conference v. Captain W. A. Sangma, AIR 1977 SC 2155, their Lordships referred to the decisions in AIR 1950 SC 188, AIR 1956 SC 231, AIR 1961 SC 1653, AIR 1963 SC 677, AIR 1963 SC 874 and AIR 1965 SC 1595, and from a conspectus of the above decisions concluded that several tests have been laid down by the Supreme Court to determine whether a particular body or authority is a tribunal within the ambit of Article 136. The tests are not exhaustive in all cases. It is also well-settled that all the tests laid down may not be present in a given case. While some tests may be present others may be lacking. It is, however, absolutely necessary that the authority in order to come within the ambit of Article 136(1) as tribunal must be constituted by the State and invested with some function of judicial power of the State. This particular test is an unfailing one while some of the other tests may or may not be present at the same time. It further observed that the principal test which must necessarily be present in detremining the character of the authority as tribunal is whether that authority is empowered to exercise any adjudicating power of the State and whether the same has been conferred oil it by any statute or a statutory rule. The

Election Tribunal, while taking a decision of derecognising APHLC is created under the Constitution and is invested under the Law with not only administrative powers but also with certain judicial power of the State, however, fractional it may be. The Commission exclusively resolved disputes, inter alia, between rival parties with regard to claims for being a recognised political party for the purpose of the electoral symbol. Their Lordships were clearly of the opinion that the Commission fulfilled the essential tests of the tribunal and clearly within the ambit of Article 136 (1) of the Constitution,

20. In Commr. of Income-tax v. B. N. Bhattacharjee, AIR 1979 SC 1725, the Supreme Court observed that the amplitude of Article 136 is wide enough to bring within its jurisdiction orders passed by the Income-tax Settlement Commission under Section 245M of the Income-tax Act.

21. Applying the above tests we find that the Tribunal created by the Act is not a part of the hierarchy of Civil Courts. It is a Tribunal to decide controversies arising out of orders passed under the Act. It has authority to pronounce upon valuable rights, involved in implementation of administrative policy of the State relating to land revenue and land reforms. It hears appeals from and revises decisions of the Revenue Officers But itself is not a Revenue Officer. It does not discharge any judicial power of the sovereign. Under Section 84 of the Act it can transfer cases from one Revenue Officer to another. Under Section 93 of the Act the Tribunal can hear appeals from original orders of the Deputy Commissioner and also second appeals as provided in Section 93 (2) (b) & (d). Under Section 95 it can call for the records of any proceedings before any Revenue Officer subordinate to it and may pass such order in reference thereto as it thinks fit. There are no rules as to the procedure to be followed by the Tribunal. The Rules of procedure provided in the Act and the Rules are meant for the Revenue Officers and not expressly for the Tribunal. It is stated at the Bar that a Judicial Officer is being appointed as the Tribunal and it follows the usual Civil Court procedure. It examines witnesses on oath and it has all the trappings of a Court. But there are no Rules as to who may be appointed and what procedures are to be followed by it.

22. To determine whether a particular body is a Court subordinate to the High Court, it is also important to scrutinise what type of right it is dealing with. If it deals with a pre-existing civil right so that it is the duty of sovereign to decide judicially, it may properly fall within the description of Court. On the other hand, if it deals with a right created by a particular statute dealing with administrative matters under which the body has been created, it may be regarded not as a Court but as a tribunal. Even if it possesses the trappings of the Court or follows the Code of Civil Procedure as regards the 'procedure before it, it may not amount to a Court. In the instant case the dispute arises out of a settlement order, a function of the State Executive.

23. In Balkrishna Daji Gupte v. The Collector, Bombay Suburban, AIR 1923 Bom 290, dealing with an order of the Collector, refusing to make a reference under Section 18 of the Land Acquisition Act, MacLeod, C. J. held that the Collector acting under Section 18 of the Act was not clothed with judicial function and could not be held to be a 'Court' and it necessarily followed that the High Court had no power of interference.

24. In Khetsidas Gangaram v. First Land Acquisition Collector, AIR 1946 Cal 508 (FB), it was held that the Collector making or refusing to make reference under Section 18 of the Land Acquisition Act is not a Court and observed as follows (at pp. 515 & 516):

'It is often overlooked that judicial acting, such as will make the actor a Court, is not merely acting judicially in the popular sense, that is to say, acting with fairness and impartiality, on a proper consideration of all relevant materials and on giving a proper opportutnity to all the contending parties to present their respective cases..... Acting judicially in order to be a sign of acting as a Court, must be acting as a part of judicial machinery of the State, charged with the duty of determining the rights of one subject against another or questions of right between the subject and the State and discharging its functions according to the established form of judicial procedure. When a tribunal acts in a manner similar to that of a Court of justice, one has to look to its (1) constitution, (2) functions and (3) procedure in order to determine if it is a tribunal of a judicial character. It is one of the fundamental characteristics of a Court that its proceedings shall be public and the parties shall be heard.'

25. In Raghunadha Patro v. Govinda Patro, AIR 1928 Mad 1032 (FB), it was similarly held by Phillips & Odgers, JJ., that the power under Section 115, C.P.C. was inconsistent with that under Section 205, Madras Estate Land Act and the High Court could not revise orders of the Board of Revenue passed under Chapter 11 or under Section 205, Madras Estate Land Act. Their Lordships observed that the Board of Revenue exercised judical powers and was in that sense a Court as pointed out in (1883) ILR 9 Cal 295 (PC), but that did not make it necessarily an inferior Court subject to the High Court as the superior Court. In the absence of any provisions declaring the Board of Revenue to be subject to the appellate jurisdiction of the High Court it must be held that it was not so subject. Phillips, J. went on to observe that if the application of Section 115, C.P.C., gives rise to an anomalous position, it must be inconsistent with the provisions of the Act. The very fact that two Courts would have co-ordinate jurisdiction and would be in a position to pass conflicting orders, both of which would be final, was sufficient to show that the importation of Section 115 was inconsistent with the Act so far as the provisions of Section 205 were concerned. Odgers, J, also observed that the Board of Revenue was not a Court with regard to Chapter 11 and its proceedings were not open to revision by the High Court. It could not have been the intention of the Legislature that the Board of Revenue which was itself invested with certain revisional power over the proceedings of its own officers under the Act should be subject in its turn to the revisional jurisdiction of the High Court.

26. In Bishambhar Nath v. Achal Singh, AIR 1932 All 651, Iqbal Ahmad, J., sitting singly, while holding that the officers or District Magistrate hearing an appeal under Section 318 of U. P. Municipalities Act, 1916, was a Court observed that a Court can be said to be subordinate to another Court only if the latter Court has appellate or revisional jurisdiction or power of superintendence given to it by some statutory provision over the former Court and that the mere authority to decide a reference does not necessarily make the Court making a reference subordinate to the Court deciding the same. Section 115 can only have reference to Courts over which the High Court has a

judicial and not a purely administrative power and the District Magistrate while deciding an appeal under Section 318, Municipalities Act was not a Court subordinate to the High Court and as such application for revision under Section 115, C.P.C. against an order passed by him under Section 318 was not competent. Where however the procedings before a body are Civil Proceedings and the body is a Civil Court, the decision of such a body in respect of such orders may be subject to revision under Section 115, C.P.C.

27. A Full Bench of the Punjab High Court in Sultan Ali Nanghiana v. Nur Hussain, AIR 1949 Lah 131, examined the question whether the Election Commissioners are Courts subordinate to the High Court within the meaning of Section 115, C.P.C. and Section 44, Punjab Courts Act, and referring to Section 3, C.P.C. held that it cannot be taken to mean that the Courts established under any other enactment for the time being in force are all subordinate to the High Court. The broad and unqualified proposition that once it is held that an officer, authority or functionary is exercising the functions of a Court in relation to rights that may be called 'Civil' that officer, authority or functionary must be held to be subordinate to the High Court was rejected. The result of any such finding would be that all Courts which adjudicated upon the civil rights of subjects whether in cases between the subject themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere of subordination not only the revenue Courts which admittedly decide civil disputes between the parties but also the income-tax authorities which determine the subject's liability to the State. One clear indication of subordination has always been held to be that the Court whose subordination is in question is subject to the appellate jurisdiction of the High Court. A Court may also be subordinate to the High Court even qua matters which are not subject to the High Court's appellate power if these matters had been entrusted for adjudication to an admittedly subordinate Court as a Court and not to the presiding officer of such Court as a persona designata. Their Lordships divided the cases into three categories: (1) those in which the special Court was held to be subordinate to the High Court because a limited right of appeal to the High Court existed from the decision of that Court; (2) where a

Court, whose subordination to the High Court could not be doubted, was given some additional jurisdiction; and (3) those in which the High Court interfered with the decisions of the inferior Court under Section 107 of the Government of India Act, 1915. The existence of a right of appeal from the decisions of a Court to a superior Court is a well-recognised test of subordination even qua cases in which no appeal lies and a Court may be held to be subordinate to another Court in cases in which there is no right of appeal to that Court. The other well-recognised rule is that where the jurisdiction of a Court is enlarged by entrusting for adjudication to it and not to its Presiding Officer as a persona designata certain new matters, the incident of the subordination of that Court to the superior Court remained unaffected even in respect of such new matters. The third category of cases are now obsolete in view of the amended Section 224, Government of India Act, which has been substituted for Section 107, Government of India Act, 1915 and which expressly provides that the administrative functions of the High Court are the same as the power of superintendence under the replaced section shall not be construed as giving to the High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision. On the above analysis, it was held that the Election Petitions Commissioners are not a Court subordinate to the High Court and are an independent and special Tribunal exercising exclusive jurisdiction in a defined class of cases.

28. Section 115, C.P.C. can have application in respect of the Courts mentioned in Section 3, but not in respect of those Courts which have been given exclusive jurisdiction by express provision of law or by necessary implication. In such cases, the High Court has no jurisdiction under Section 115 over the Nagpur Improvement Trust Tribunal, as was decided in Shridhar Atmaram Ghadgay v. Collector of Nagpur, reported in AIR 1951 Nag 90. In Union of India v. Triloki Nath Bhasin, AIR 1961 Punj 154, Dua, J. held that the authority under the Payment of Wages Act not being a Court subordinate to the High Court, Section 115 of the Code of Civil Procedure or Section 44 of the Punjab Courts Act cannot apply. In Reddi China Paidayya v. Rudrabhatla Muralidhar, AIR 1961 Andh Pra 498, a Single Bench held that the Tribunal constituted under Madras Estates (Abolition

and Conversion into Ryotwari) Act, 1948, Section 8, was not a Court but persona designata and its orders were not revisable by the High Court under Section 115. When it is not the Court, but only a Presiding Judge that is constituted a tribunal for the purposes of some special Act, the tribunal cannot, in any way, be construed as a Court. In AIR 1927 Mad 93 (FB), it was further held that if a District Judge is appointed as the Tribunal, he is only a persona designata and his orders are not subject to revisional jurisdiction of the High Court, AIR I960 Andh Pra 49 was followed. The mere fact that the procedure contained in the Code of Civil Procedure is also to be followed by a Tribunal cannot be considered as the postulate for conferring upon a Tribunal the position or status of Court subordinate to the High Court. In Sovana Maitra v. Bakijai Officer and Senior E.A.C., reported in 1971 Assam LR 207, a Full Bench of the High Court of Assam and Nagaland, decided that the Assam Board of Revenue is a Court and that in respect of a petition under Section 81 of the Assam Land Revenue Regulation, Section 5 of the Limitation Act is applicable. Their Lordships, however, were not required to decide whether the Assam Board of Revenue is a Court subordinate to the High Court. It is, however, a common knowledge that no revision lies under Section 115, C.P.C. from any decision of the Assam Board of Revenue.

29. The Assam Board of Revenue differs in material particulars from the Tribunal. While the constitution, functions, jurisdiction and procedure of the former is determined by the Assam Board of Revenue Act, 1962 and the Regulation framed thereunder, there is no separate enactment for the Tribunal. The Act also does not make the Tribunal a Revenue Officer. The procedures prescribed under the Act and the Rules are expressly meant for Revenue Officers who are Courts.

30. In AIR 1974 Raj 55 (Laxminarain Misra v. Kailash Narain Gupta), it was held that the 'Claims Tribunal' constituted under Section 110 of the Act (1939) is a mere Tribunal and not a Court, In the generic sense a Court is also Tribunal but Courts are such Tribunals as are created by statute and belong to the Judicial Department of the State in contradistinction to the Executive Branch of the State.

31. In AIR 1976 Raj 173 (United India Fire and General Insurance Co. Ltd. v.

Mst. Sayar Kanwar). a Division Bench relying on AIR 1974 Raj 55, held that a Claims Tribunal is not a Court subordinate to the High Court and the revision under Section 115 against an order of the Claims Tribunal is not maintainable,

32. On a conspectus of the above decisions, it can safely be held that the Tribunal is not a Court subordinate to the High Court. It was not the intention of the legislature to make the Tribunal a Civil Court and to make its decisions subject to revisional jurisdiction of the High Court. A conflict may arise if the Tribunal which itself revises the decisions of the Revenue Officers subordinate to it is also made subject to revisional jurisdiction of the High Court. The Tribunal cannot, therefore, be held to be a Court subordinate to the High Court for the purpose of Section 115, C.P.C. The instant application accordingly is not maintainable. There is no doubt chat the High Court has superintending jurisdiction over the Tribunal, but that by itself will not make its decisions revisable by the High Court. It is not necessary in the instant case to decide whether it is a Tribunal for the purpose of Article 136 of the Constitution.

33. Counsel for the petitioners submits that the High Court having inherited the jurisdiction of the Judicial Commissioner of Manipur, who had revisional jurisdiction over the decision of the tribunal, it continues to possess that revisional jurisdiction and the present revision petition is maintainable.

34. The Manipur (Courts) Act, 1955 (56 of 1955) was an Act to provide for the establishment of Judicial Commissioner's Court and other Courts in Manipur. Section 2 of the Act defined 'Chief Commissioner' to mean the Chief Commissioner of Manipur; 'civil suit' to include every suit of a civil nature not expressly or impliedly classed otherwise by any law for the time being in force; 'District Court' to mean the Court of the District Judge and includes the Court of the Additional District Judge. Under Section 3 there was to be established for the State of Manipur a Court to be known as the Court of the Judicial Commissioner for Manipur. Under Section 14, the Court of the Judicial Commissioner to be a Court of record and shall have all powers of such Court including the power to punish for contempt of itself. Section 16 enumerated the classes of subordinate Civil Courts,

but those classes did not include the tribunal, but included the District Court, the Court of Subordinate Judge and the Court of a Munsiff. Under Section 33 a second appeal would lie to the Court of the Judicial Commissioner from an appellate decree or order of a District Court on any ground on which a second appeal would lie under Section 100 of the Code of Civil Procedure, 1908. Section 34 dealt with revisional powers of the Court of the Judicial Commissioner and it provided:

'In addition to the powers conferred by Section 115 of the Code of Civil Procedure, 1908, the Court of the Judicial Commissioner may, on application made to it, call for the record of any case which has been decided by a Civil Court subordinate to it and in which no appeal lies to it and if the Court of the Judicial Commissioner is of opinion that there is an important question of law or custom and the question requires further consideration, the Court of the Judicial Commissioner may make such order in the case as it thinks fit,'

The proviso to section prescribed a limitation of 90 days and restricted it only to the extent that such decision involved a question of law or custom in respect of which the application had been admitted and once the application was admitted the same was to be treated as if it were an appeal. Under Section 46, the Court of the Judicial Commissioner was declared to be a High Court for the purpose of Articles 132, 133 and 134 of the Constitution and the provisions of the Judicial Commissioners' Courts (Declaration as High Courts) Act, 1950 was applied to the judicial Commissioner's Court. Under Section 28 of the North-Eastern Areas (Reorganisation) Act, 1971, a common High Court for Assam, Nagaland, Meghalaya, Manipur and Tripura to be called the Gauhati High Court (the High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura), was established. Under Section 29 of that Act, all such jurisdiction, powers and authority as under the law in force immediately before the appointed day, in respect of the territories comprising in the States of Assam, Nagaland, Meghalaya, Manipur and Tripura became exercisable in respect of those territories by the common High Court. Under Section 30, on and from the appointed day, the Courts of the Judicial Commissioner for Manipur and Tripura were abolished. The result was that if all these Jurisdictions hitherto exercised by the Court of

the Judicial Commissioner for Manipur became exercisable by the common High Court and if the Court of Judicial Commissioner for Manipur had, under the law, the revisional jurisdiction in respect of orders passed by the Revenue Tribunal or its predecessor which existed at that time, that jurisdiction would have been inherited by the common High Court. Section 34 of the Manipur Courts Act, no doubt, vested in the Court of the Judicial Commissioner powers of revision in addition to those conferred by Section 115 of the Code of Civil Procedure, 1908, in respect of orders from which no appeal lay to it and if the Judicial Commissioner was of the opinion that there was an important question of law or custom and the question required further consideration.

35. The case before us arises out of a land settlement order and does not. involve any such question of law or custom and as such the High Court in respect of the order has no powers otherwise than under Section 115, C.P.C. The result is that the High Court cannot interfere with the impugned order under Section 115, C.P.C. The submission is accordingly rejected. The application being not maintainable under Section 115, C.P.C., let us examine whether it is maintainable under Article 227 of the Constitution of India?

36. There is no doubt that Article 227 of the Constitution, as amended by the Forty-second Amendment excluded from its purview the tribunate. The relevant provisions of the Constitution before, during and after the Forty-second Amendment, may conveniently be quoted here. Article 227(1) before the Forty-second Amendment.

'227. Power of superintendence over all Courts by the High Court.--(1) Every High Court shall have superintendence over all Courts and tribunals throughout, the territories in relation to which it exercises jurisdiction.'

Section 40 of the Constitution (Forty-second Amendment) Act, 1976, amended Article 227(1) and (5) as follows:

'(1) Every High Court shall have superintendence over all Courts subject to its appellate jurisdiction.

XXXXX

(5) Nothing in this Article shall be construed as giving a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision, This amendment was with effect, from 1-2-1977.

37. The Constitution (Forty-second) Amendment Act, 1978, by its Section 31 again amended Article 227 (1) as follows:

'(1) Every High Court shall bave superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.'

By this amendment, Sub-article (5) of

Article 227 was also omitted. The amendment was with effect from 20-6-1979. Thus, it is seen that during the period of the Forty-second Amendment, tribunals were excluded from the purview of Article 227; and the High Court also could not question any judgment of any inferior Court which was not otherwise subject to appeal or revision,

38. In AIR 1967 SC 1494, it was ruled that Article 227 is of wider ambit (than Article 228); it does not limit the jurisdiction of the High Court to the hierarchy of Courts functioning directly under it under the Civil Procedure Code and Criminal Procedure Code, but it gives the High Court power to correct errors of various kinds of all Courts and tribunals in appropriate cases.

39. Counsel for the petitioners while not disputing this position, submits that the Tribunal having been a Court, it was within the purview of Article 227 as a Court, though not as a Tribunal. It is difficult to accept the submission as made. The word 'Tribunal', for the purpose of the Article included all Tribunals which did not fall within the hierarchy of Courts.

40. In Chandrasekhar Singh v. Siya Ram Singh, AIR 1979 SC 1, the Supreme Court discussed the scope of Article 227 of. the Constitution of India prior to 42nd Amendment in relation to Section 146 of the Code of Criminal Procedure, 1898. Discussing the question as to whether an order under Section 146 (IB) can he interfered with by the High Court in exercise of its powers under Article 227 of the Constitution, the Supreme Court observed that the powers conferred on the High Court under Article 227 of the Constitution cannot in any way be curtailed by the provisions of the Criminal Procedure Code. But, the Court observed that the scope of interference by the High Court under Article 227 is restricted, and that 'the power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors.' (AIR 1954 SC 215). In AIR 1958 SC 398,

this view was reiterated and it was further held that the powers of judicial interference under Article 227 of the Constitution are not greater than the power under Article 226 of the Constitution, and that under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. In Babhutmal Raichand v. Laxmibai, AIR 1975 SC 1297. the Supreme Court reiterated the view stated in the earlier decisions referred to and held that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal and that the High Court cannot in exercise of its jurisdiction under Article 227 convert itself into a Court of Appeal.

41. The amendment of Article 227 by the 42nd Amendment was with the object of restricting the jurisdiction only to superintendence over all Courts subject to its appellate jurisdiction and it was not to be exercised to question any judgment of any inferior Court which was otherwise not subject to appeal or revision.

42. Admittedly, the impugned judgment of the Tribunal passed under Section 95 of the Act, was not subject to any appeal or revision before the High Court under the provisions of that Act. Nor, was the Revenue Tribunal subject to appellate jurisdiction of the High Court, The appellate jurisdiction mentioned in Sub-article (1) and the appeal or revision in Sub-article (5) of Article 227 could be reasonably interpreted to have been confined to statutory provisions in the respective Acts. There having been no clear provisions for appeal or revision to the High Court in the Act, the impugned order could not be interfered with by the High Court under Article 227 of the Constitution, as it stood after the 42nd Amendment and before the 44th Amendment.

43. Counsel for the petitioners, however, submits that revision mentioned in Sub-article (5) was not confined to statutorily provided appeals or revision but it should be extended to revisions that otherwise lay under law. The submission cannot be accepted because that would open up a wide vista for Courts or Tribunals who were not subject to appeal but might be said to be subject to the superintending jurisdiction of the High Court. Considering the purpose of the

42nd Amendment the submission appears to be unreasonable and hence cannot be accepted.

44. Though this revision petition was filed when the 42nd Amendment of the Constitution was in force, the amendment has since been repealed by the 44th Amendment and the pre-amendment position has now been restored. As the position stands at present, the High Court has superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. There is no doubt that the High Court can exercise superintending jurisdiction over the Revenue Tribunal, after the 44th Amendment.

45. This leads us to the question as to whether while exercising jurisdiction under Article 227, this Court should act under the old provisions (as amended by 42nd Amendment) which prevailed when the petition was filed or after the 44th Amendment which prevails at present while the petition is being decided. The jurisdiction under the Article being one of superintendence no question of exercising jurisdiction under it as it was in the past may, perhaps arise. The Court under this principle has perhaps to exercise jurisdiction as it stands at the time of decision.

46. In Jagir Singh v. Ranbir Singh, AIR 1979 SC 381, where a Criminal Revision was barred under Section 397(3) of the Code of Criminal Procedure, 1973, and the revision application was filed before the 42nd Amendment of the Constitution, the order of the High Court could not be sustained under Article 227 of the Constitution as amended by the 42nd Amendment. The Supreme Court observed that it was doubtful if the High Court could exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed. Clause (5) of Article 227 introduced a verbatim reproduction of Sub-section (2) of Section 224 of the Government of India Act, 1935, which conferred powers of administrative superintendence only and not the power of judicial superintendence. It was further observed that an application invoking the High Court's power of superintendence did not create any vested right in the suitor. There could, therefore, be no question of any vested right being taken away or not being taken away by the amendment. It was just a question whether the High Court possessed the power of superintendence on the date of

the High Court's order. Following this principle, the jurisdiction has to be exercised as the law stands on the date of the order of the High Court.

47. Counsel submits that if his petition cannot be entertained under Section 115, C.P.C., it should be treated as one under Article 227 of the Constitution of India. However, if a petition is clearly not maintainable under Section 115 C.P.C., it will not be permissible to con-vert it into one under Article 227 of the Constitution.

48. In Vishesh Kumar v. Shanti Prasad, AIR 1980 SC 892, where under Section 115, C.P.C. as amended in U. P. in

1978, revisional order of the District

Court passed under Section 115 was held

not maintainable, the Supreme Court

observed that a revision petition under

Section 115, C.P.C. is a separate and distinct proceeding from a petition under

Article 227 of the Constitution, and one

cannot be identified with the other. Considered from this point of view, the petitioners' prayer for treating the application as one under Article 227 of the Constitution may not be accepted.

49. Even if it is considered that Article 227 can be invoked, interference may not be justified in the instant case. In Annexure A/3, of their petition, the petitioners have annexed a copy of the resolution passed by the Chairman, Sub-divisional Verification Committee, Thoubal. The Resolution No. 5 says:

'It is resolved that the above lands be distributed equally amongst the following Co-operative Societies:

No. 1 is the respondent-Society, which has been allotted 46.29 acres and No. 2 is the petitioner-Society, which has been allotted 45.46 acres.'

It appears from this resolution that the respondent-Society was registered in 1969, while the petitioners' Society was registered in 1975-76. Mr. Y. Imo Singh, the learned counsel for the respondent-Society, submits that justice between the two Societies has been done by dividing the disputed land into almost equal shares as above. Mr. A. Nilamani Singh, the learned counsel for the petitioners, admits that the petitioners' Society has been allotted 45.46 acres of land. He, however, apprehends that their allotment may be revised by the Tribunal at any time.

50. It is an accepted principle that interference under Article 227 should be sparingly done in exceptional cases for

the ends of justice. When substantial justice has already been done, no such interference is called for. In the instant case, it is clear that the State has done distributive justice between the parties. There is no reason why this distributive justice should be disturbed by this Court under Article 227. Mere errors of fact are not liable to be interfered with. The result is that this application is not maintainable under Section 115 of the Code of Civil Procedure as the Tribunal is not a Court subordinate to the High Court. The jurisdiction under Article 227 being different from that under Section 115, C.P.C., it is not permissible to convert the application into one under that Article. Even if that Article is allowed to be invoked, it is discretionary for this High Court to exercise or, not to exercise jurisdiction. Article 227 as amended after the 44th Amendment confers jurisdiction and even though this application was filed when the 42nd Amendment was in force, it is open for this Court to exercise jurisdiction under Article 227 as it stands today. But that jurisdiction will be sparingly exercised to keep the Tribunal within the bounds of its jurisdiction and will not be exercised when there is no miscarriage of justice. The Tribunal in this case though cannot be said to have properly approached the question of limitation, yet distributive justice between the parties has been done. It is, therefore, not a fit case where this Court should intervene under Article 227 of the Constitution of India.

51. This Court has no jurisdiction to entertain the instant application even as successor to the Court of the Judicial Commissioner, Manipur.

52. This Court finds no reason for the apprehension of the petitioners' Society that the allotment of land made to it may be cancelled in revision by the Tribunal, inasumch as, the respondent-Society will also be bound by this decision and need not object to the allotment made to the petitioners Society by the orders of the Deputy Commissioner, Manipur.

53. In the result, this application is not maintainable and hence it is rejected. The rule is discharged. The stay order stands vacated. Under the facts and circumstances of the case, the parties are left to bear their own costs.


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