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CHANDRA BHAN & ANOTHER versus D.D.C.GORAKHPUR & OTHERS

High Court of Judicature at Allahabad

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Chandra Bhan & Another v. D.D.C.Gorakhpur & Others - WRIT - B No. 53754 of 2002 [2007] RD-AH 1151 (18 January 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 23

Civil Misc. Review Application No. 63852 of 2006

(On behalf of State of U.P. and others)

IN

Civil Misc. Writ petition No. 53754 of 2002

Chandra Bhan and others............................................Petitioners

Versus

Deputy Director, Consolidation and others.......................Respondents.

And

2. Civil Misc. Writ petition No. 43882 of 2002

3. Civil Misc. Writ petition No. 63741 of 2005

4. Civil Misc. Writ petition No.13384 of 2003

5. Civil Misc. Writ petition No. 4647 of 2003

6. Civil Misc. Writ petition No. 63949 of 2005

Hon. S.N.Srivastava, J.

This review petition has been preferred on behalf of the State of U.P. seeking reconsideration of certain points considered and decided by this Court by means of judgment and order dated Dec 13,2005.

After the review petition had been filed by the State on 24.3.2006 alongwith an accompanying application to condone the delay, the same was presented before the Court on 18.5.2006 alongwith office report dated 17.5.2006 on which date learned Standing counsel prayed for adjournment on the ground that learned Advocate General would appear to argue the case. On the request aforesaid the case was adjourned to 22.5.2006 on which date on further request made by learned Standing counsel, the case was adjourned to 25.5.2006. Learned Advocate General was heard on 25.5.2006 but on his request, the case was adjourned to 14th July 2006. On 14.7.2006, the case was directed to be put up on 17.7.2006 on the request made by learned Standing counsel. On 17.7.2006, Chairman Board of Revenue appeared in person and prayed for permission to seek clarification and also to discuss the nitty gritty of the consequences flowing from the main decision aforesaid. Thereafter, on 28.7.2006, judgment was reserved in the review petition. On 2.8.2006, learned Advocate General appeared and prayed for rehearing of the matter on certain points claiming the same to be of pivotal significance and in deference to the request, the matter was directed to be put up on 3.8.2006. On 3.8.2006, the learned Advocate General stated across the bar that the matter was under active consideration of the Government and on this ground sought adjournment and again in deference to the request, the case was directed to be put up on 18.8.2006. On 18.8.2006, again the case was adjourned to 11th Sept 2006 on the request of learned Advocate General. Thereafter, the matter stood de-listed and has come up today for hearing.

It may be aptly mentioned here that learned Advocate General was heard at prolix length on earlier occasion who was then assisted by Sri Sanjai Goswami learned Standing counsel and the learned Advocate General assisted by Sri Sanjai Goswami had then pressed into service two arguments cloaking the same as the basis for review of the judgment of this Court but today Sri Sanjai Goswami learned Standing counsel appeared and argued only those two points. The first argument brought to bear was that this Court framed certain issues for determination including issue whether the qualification and training as conceived in the relevant service Rules of the consolidation authorities dealing with consolidation cases is sufficient training to meet the essentials required of a judicial officer performing judicial functions but no specific issue was formulated regarding creation of separate revenue judicial cadre for the purpose and by this reckoning, it is further argued, the Court was precluded from issuing writ of mandamus commanding the State to create separate judicial cadre for trial of consolidation cases as also the suit arising out of U.P.Z.A. & L.R. Act.

The specific argument advanced across the bar on behalf of the State was that order to create revenue cadre should not have been made and further that the power to be exercised by the Authorities dealing with consolidation cases as well as cases arising out of U.P.Z.A. & L.R. Act were strictly in accordance with law the same having been conferred by the provisions of the statute i.e. the U.P. Consolidation of Holdings Act and also of the U.P. Zamindari Abolition and Land Reforms Act and by this reckoning, were intra-vires the Constitution of India. It is significant to mention here that Sri Sudhir Agarwal, learned Addl. Advocate General (as he then was) was called upon to argue on the question of creation of separate judicial revenue cadre and consequently, he made elaborate submissions on this point and judgment was pronounced after hearing both the parties on this question. The case laws were profusely cited on behalf of the State, which were duly noticed and discussed in the judgment of the Court itself. No precise ground then was raised opposing creation of separate judicial cadre for revenue/consolidation cases. Come what may, one very import aspect may be referred to here. At page 20 of the judgment of this Court, the objects embodied in Amending Act XXXVIII of 1958 were excerpted and cited from a perusal of which it would appear that while conferring power on consolidation authorities through U.P. Act No. XXXVIII of 1958, the State had enlisted the basis to the effect that "Since the jurisdiction for Bhumidhari suits is being transferred to revenue courts, it has become necessary to do away with the provisions for arbitration, which used to cause great delay." It is also worthy of mention herein this connection that after coming into force the Constitution of India, the power to deal with all revenue suit pertaining to title of Bhumidhari rights in agricultural land vested in the civil court and it was subsequently that the power to decide title  was transferred to revenue courts. In proceeding for consolidation on notification under section 4 of the U.P. Consolidation of Holdings Act , the power to decide title in the land in consolidation area stands transferred to the Consolidation authorities to decide title but after notification under section 52 i.e. after closure of the consolidation operation, the power stands revived for being exercised by the revenue authorities for deciding the title. The Court has already dilated upon the matter in detail in its judgment dated 13.12.2005 the quintessence of which is that consolidation as well as revenue authorities decide that right of a tenure holder i.e. Bhumidhar with transferable rights and bhumidhar with non-transferable rights and other rights of the tenure holder relating to agricultural land conferred by the State under the U.P.Z.A. & L.R. Act and further that both the courts decide the title in the matter emanating from U.P.Z. A & L.R. Act only. In this perspective, considering that had there been no such direction for creating separate revenue judicial cadre for trying revenue suit or other title matters, relating to land by the revenue authorities and also by the consolidation authorities, it would have amounted to invidious discrimination and therefore regard being had to the intendment of the legislature while conferring powers on the consolidation authorities on the ground that jurisdiction has been conferred to decide the revenue suits to the revenue courts, direction was rightly given by this Court to create a separate judicial cadre for trial of revenue as well as consolidation cases. The direction to create separate revenue judicial cadre was given for determination of the title in the agricultural land  in the light of the fact that prior to it the power had vested in civil courts under section 9 of the C.P.C. and that power was taken away from the civil court and it was conferred by various amendments to revenue authorities under the U.P.Z.A. & L.R. Act and subsequently to consolidation authorities presided over by such authorities wholly incompetent to decide the issues on law. The Court has elaborately discussed all these issues in the judgment in all its ramifications and by this reckoning, the first ground of review as urged on behalf of the State is devoid of force and falls to the ground.

The second ground urged on behalf of the State is that State of U.P. by a Government order dated 29th Sept 1967 has already taken a decision for separation of judiciary from executive and further urged that by this Govt order, judicial officer who were then had the appellation "Addl. District Magistrate (Judicial)" and were earlier members of judicial officers Services were included in a separate judicial cadre under the policy of separation of judiciary from executive but all the suits and proceedings under the U.P.Z.A. & L.R. Act were transferred to S.D.Os. The learned counsel further urged that the G.O. aforesaid was issued after eliciting the concurrence of the High Court in its administrative side vide reference at page 75 of the judgment of this Court. From a perusal of the aforesaid Government order particularly para 3 of the said G.O. it would crystallize that the High Court had merely concurred to create a separate judicial services comprising officers  who were empowered to deal exclusively with the criminal works under the control of the High Court the necessary consequence of which was that revenue works pending before these judicial officers were transferred to S.D.Os or Judicial officers who were posted for revenue cases. It is significant to mention here that under this Government order, all the members belonging to earlier judicial officers services were included in a separate judicial serfvice hedged with certain condition. It would further appear that this Government order was considered by a Division Bench of this Court in Dinesh Chand Srivastava v. State of U.P. AIR 1977 Alld 310 which matter journeyed upto the Apex Court and the decision of the Apex Court is reported in 1995 (1) JT SC 180. The ratio flowing from the decision rendered by the Apex Court was that a separate judicial cadre could be created other than U.P. Civil Services (Judicial) and in view of the above, this Court following the ratio of the Apex Court issued mandamus to create a separate revenue judicial cadre. This Government Order issued by the State Govt does not confer any power on the State to act against the mandate of Article 50 of the Constitution. In my considered view, after coming into force the Constitution, that power cannot be taken away and conferred on such Administrative authorities who are neither equipped with qualification of law or have training for judicial work to deal with important issue like adjudication of title in land which is the very backbone of India economy. There is yet another aspect to be reckoned with and it is that all the land has already vested in the State by virtue of Section 4 of the U.P.Z.A. & L.R. Act and the State in turn has conferred different kind of rights on various tenure holders namely, Bhumidhari, Sirdari, Asami rights or other rights. It appears that the State has not carefully gone through its own Government order dated 29th Sept 1967 quoted in the main judgment of this Court dated 13.12.2005 by which accepting policy of separation of judiciary from executive, the State placed all judicial officers under the control of the High Court. The State has further mentioned in the G.O. that revenue matters may be decided by the Sub Divisional Officer, Deputy Collectors or such judicial officers obtained on deputation from the High Court from time to time for the purpose and the High Court agreed to lend service of judicial officers for revenue work vide D.O. letter dated 7th Sept 1967. It was further mentioned in paragraph 4 that those judicial officers who will work and dispose of revenue cases on deputation from High Court will not be assigned any duties relating to maintenance of law and order.

There is nothing in the Government relied upon by the standing counsel to show that members of earlier judicial officer cadre transferred to the High Court will not try and dispose of revenue cases. The effect of the Government order was that all judicial officers may work thereafter on deputation and may also try and dispose of revenue cases with the permission of the High Court on deputation only.

In view of the above, the argument of learned Standing counsel that this Government order supports the case of the State that the revenue cases may be decided by the Deputy Collector/Sub Divisional officer only and direction to create separate judicial cadre for revenue cases is against policy decision taken by the Government in the G.O. mentioned above, is not loaded with any substances. Rather, it would appear that the Government order aforesaid lends affirmance to the view taken by this Court that there should be separation of judiciary from executive.  Moreover, the question involved in the writ petition was not the question akin to one referred to the High Court on administrative side before the G.O. dated 29.9.1967 and the State rightly took decision permitting to constitute separate judicial cadre of judicial officers working in the revenue side under the supervision of the High Court. Further it is clear that by the aforesaid G.O. all the judicial officers who became member of a separate judicial service were permitted to decide the revenue cases with the permission of the High Court on deputation. Since the government order dated 29.9.1967 issued by the State specifically mentions that revenue cases could be disposed of even after creation of separate judicial service of judicial offices on deputation with the permission of the High Court, it is clarified that the State can create revenue judicial service by direct recruitment or by way of getting members of the U.P. Civil Services (Judicial Branch) appointed on deputation till regular separate judicial revenue cadre is created as is clear from the Government order dated 29.9.1967. Such deputation can be granted with the permission of the High Court to dispose of revenue cases as was done under the Government order dated 29th Sept 1967.

In view of the above discussion, the second ground too has no force and falls to the ground.

No other point of any consequence was raised capable of interference with the main judgment of the Court.

In the result, the review application is rejected being bereft of any merit.

M.H.

18.1.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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