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Chandra Bhan & Another v. D.D.C.Gorakhpur & Others - WRIT - B No. 53754 of 2002  RD-AH 7396 (13 December 2005)
1.CIVIL MISC. WRIT PETITION NO. 53754 OF 2002
Chandra Bhan .......................................................................Petitioner
Deputy Director Consolidation and others........................Respondents.
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. 4674 OF 2003
6. CIVIL MISC.WRIT PETITION NO.63949 OF 2005
Counsels for Petitioners
Sri S.K.Verma, Sri Sidharth Verma, Sri S.N.Tripathi, Sri S.N.Tripathi, Sri Piyush Misra, Sri Pt Dharm Narain Dubey, Sri A.P.Tiwari Sri S.S.Tripathi, Sri Ramesh Chandra.
Counsels for Respondents
Sri H.P.Mishra, Standing Counsel Dr. R.G.Padia Sri Prakash Padia, Sri S.C.Pandey, Sri R.S.Misra, Sri N.D.Shukla, Sri Arun Kumar, Sri S.K.Srivastava.
Hon. S.N.Srivastava, J.
These cases have been knit together for being heard and decided as a composite case with the consensus amongst the counsel on a question common to all the cases under scrutiny before this Court and also that the challenge in all these cases is focused on orders passed by Deputy Director Consolidation.
Factual matrix of each writ petition may be noticed in brevity before proceeding ahead.
Writ Petition No. 53754 of 2002
Writ Petition No. 43882 of 2002
Orders impugned in these two writ petitions passed by Deputy Director, Consolidation i.e. orders dated 26, August 2002 are one and the same. These orders have been passed in exercise of power under section 48 of the U.P. Consolidation of Holdings Act and relate to allotment. The impugned orders as the record indicates, were subsequently reviewed by another order-dated 9.9.2002 and a fresh order was passed by Deputy Director Consolidation. The third order passed in the series by the Deputy Director Consolidation is dated 11th Sept 2002 by which schedule which formed part of the earlier order dated 9.9.2002 was again amended. In both the above petitions, notices were issued and counter affidavit was filed by the parties as well as by the State.
Writ Petition No. 63741 of 2005
The orders impugned in this writ petition are dated 12.9.2005 passed by Deputy Director Consolidation and dated 30.4.2005 passed by consolidation Officer. The writ petition has its genesis in proceeding under section 12 of the U.P. Consolidation of Holdings Act. It would transpire from the record that the petitioners claimed their rights on the basis of Will after the death of Ram Murti Pandey. The claims of the petitioners were allowed by consolidation officer by means of order dated 24.3.2005. Aggrieved by this order, Smt. Sharda Devi Opp. Party preferred an application for recall of said order claiming herself to be the widow of Ram Murti Pandey. The petitioners repudiated the claim of the Opp. Party. By means of order-dated 30.4.2005, the Consolidation Officer allowed the restoration application by a cryptic order without assigning any reasons for his conclusion. The revision preferred against the said order was also dismissed.
Writ Petition No. 63949 of 2005.
In this petition petitioner has canvassed the validity of order-dated 7.6.2005 passed by Deputy Director Consolidation in revision which had been filed impugning the orders of Settlement Officer Consolidation dated 5.7.2004 and 23.8.2004 passed on recall application arising out of proceeding under section 9-A of the U.P. Consolidation of Holdings Act. It would appear from the record that the appeal of Opp. Party was dismissed for default on 13.1.2004 and restoration application dated 30.7.2004 which was filed after lapse of about two years was allowed although without assigning any reasons for his conclusion and application of mind and without condoning delay. The application to recall the order was dismissed and revision was also dismissed.
Writ Petition No. 4674 of 2003
This matter relates to allotment of Chak. The orders impugned herein are order dated 23.12.2002 passed by Deputy Director Consolidation (annexure 6 to the writ petition) by which revision was allowed on the ground that the appellate court did not consider anything and allowed the appeal without application of mind.
Writ Petition No. 13384 of 2003
Orders impugned here is dated 11.2.2000 passed by Deputy Director Consolidation dismissing the petitioner's restoration application. The learned counsel for the petitioner urged that the original land of the petitioner was allotted to Gaon Sabha as Bachat Land and Pucca road was constructed thereon. It has been argued that the fact that number of persons has made their residential houses has not been taken into account. He further submitted that the effect of the impugned order that the petitioner will be restored to its original land which is now public property and cannot be made available to the petitioner has not been taken into account and by this reckoning, proceeds the submission, the impugned orders are highly arbitrary and vitiated in law besides being beyond jurisdiction.
On merits, learned counsel for the petitioner urged that the village fell within the jurisdiction of Nagar Panchayat by notification dated 6th Nov 2001 and the provisions of U.P.C.H.Act are not applicable. He further urged that as Pucca road was constructed on the land ear-marked as Bachat Land by order of Deputy Director Consolidation it cannot be restored to the petitioner under the impugned order. He also submitted that the petitioner was not made a party. It is next submitted that inspite of the fact that petitioner moved application for spot inspection it was not considered and subsequent events were not taken into account and by this reckoning, the impugned order is without jurisdiction, which amounts to review. Sri R.S.Misra, learned counsel for Opposite parties contended that restoration application of the petitioner was not maintainable. It is next contended that the petitioner himself sold certain plots allotted under the orders of the Deputy Director Consolidation dated 16.11.1983; that the pucca road was not constructed on petitioner's land; and that allotment was without jurisdiction.
In view of the arguments made above, it is clear that Deputy Director Consolidation has not reckoned with subsequent events, which may be very material for the purposes of present case. He also did not make spot inspection nor did he consider various pleadings and materials brought to the notice of Deputy Director consolidation on merits.
In view of the above, Deputy Director Consolidation did not record any reasons and all the pleadings of the parties and allowed the revision.
The main plank of the arguments advanced across the bar is that orders passed by the respective consolidation authorities are cryptic orders sans any reasons and without application of mind and that the consolidation authorities have no power to review and therefore, the impugned orders, proceeds the submission, are without jurisdiction.
The learned counsel for Opp. Parties supported the impugned and canvassed their case on merits.
When the case was admitted following questions were framed after hearing at prolix length the learned counsel for the parties. The same are being quoted below.
1.Whether the functions of consolidation authorities for adjudication of title, and declaration of right in relation to agricultural land in exercise of power under sections 9 A (2), 12 and 20 of the U.P. Consolidation of Holdings Act with a right of appeal under section 11 and revision under section 48 of the Act assigned to the authorities under the Act are the judicial functions for performance of which the necessary requirements are consultation with evidence Act, consideration of rule relating to proof of facts embodied in the Evidence Act, delving into law relating to testamentary succession, devolution of interest of a tenure holder, applicability or non 0applicability of the precedents to the given set of facts, applying precedents construction of judgment and its ratio and if so whether the judicial functions assigned to them can be said to be performed by judicial officer in judicial service within the scope and intent of Articles 235 and 236 of the Const. of India.
2.Whether the statute confers judicial powers on consolidation authorities in violation of the mandate of the Constitution.
3.Whether separation of the judiciary from the executive as contained in notification No. P-7479 /II C-54/1961 constitutes sufficient compliance of the mandate as contained in Article 50 of the Const. and if not, whether the process of separation of judiciary from executive is still half way through.
4.Whether the consolidation officers, Settlement Officer Consolidations and Deputy Director Consolidations are equipped with necessary qualifications of law and are being imparted requisite training to transact judicial business of a deemed court.
5.Whether the aims and objects as contained in the Amending Act XXXVIII of 1963 in so far as it invests C.O. S.O.C. and D.D.C. with the power to decide case appeal and revision respectively constitutes breach of Article 50 of the Constitution which envisages separation of judiciary from executive-independence of judiciary being one of the basic structures of the Constitution.
6.Whether the State could invest the Consolidation Authorities with the powers of a Judge under the Act for trial and adjudication of rights of the tenure holders under the Act.
7.Whether the High Court should exercise supervision and control over these Consolidation authorities treating them judicial officers performing judicial functions as contemplated in article 236 of the Const.
8.Whether the qualification and training as conceived in the relevant service Rules of these authorities is sufficient training to meet the essentials required of a judicial officer performing judicial functions.
As a prelude, it may be noticed that after receiving notice, Learned Standing counsel filed counter enclosing therewith the syllabus of judicial training being imparted to consolidation authorities (Annexure C.A.1), U.P. Consolidation Services Rules 1992 and amendment effected therein followed by supplementary counter propping up the case and urging that the U.P. Consolidation of Holdings Act was rightly enacted by the legislature and no question as framed by the Court can validly arise for consideration.
Submissions of the learned counsel for the petitioners
Sri S.K.Verma, Senior counsel, one of the Counsel appearing for the petitioners, assisted by Sidharth Verma, advanced submissions, which were structured to focus on lack of judicial training and qualification essential for a judicial officer in the matter of adjudicatory function of title to immovable agricultural land assigned to consolidation authorities under the U.P. Consolidation of Holdings Act. To begin with, he drew attention to Article 50 of the Constitution arguing that it mandated separation of judiciary from executive. Elaborating further, he argued that power to decide title pertaining to agricultural land is a judicial function and proceeding before the consolidation authorities are judicial proceedings. He also drew attention to the fact that in view of Article 50 of the constitution, the separation of judiciary from executive has since attained the status of being a basic feature of the Constitution. The learned counsel further enlarged upon the argument submitting that directive principles of the Constitution are supplementary and complementary to the fundamental rights and by reason of it being basic feature, the legislatures while amending the different Acts including U.P. Consolidation of Holdings Act and the U.P.Z.A. & L.R. Act and transferring power vesting in civil court initially to the cadre of executive officers having no qualification of law or judicial training simulating the standard of a judicial officer, has militated against the rubric of the Constitution and by this reckoning, proceeds the submission, the amending Acts effected in the U.P. Consolidation of Holdings Act are against the mandate of Constitution and are liable to be struck down. Descending to the next limb of argument, the learned counsel argued that since Article 50 of the Constitution is an inextricable constituent of the Constitution, any amendment effected by the legislature militating against Article 50 of the Constitution is unsustainable in law. Drawing attention to the service Rules, and also to the aspect of judicial training, the learned counsel argued that from a perusal of the services Rules and also from a close scrutiny of the training being imparted to consolidation authorities, it is pellucid that they are not equipped with qualification or training simulating the standard of judicial officers which required determination of title dispute involving (immovable property) agricultural land and the shallow training being imparted does not sub-serve the purpose of adjudicatory functions assigned to them. Enlarging upon his argument, the learned counsel submitted that though the basic qualification prescribed in the service Rules is graduation but 50% of the posts of Asstt. Consolidation officers are filled from amongst the consolidators and rectangulators who have received education upto High School standard or Intermediate which qualification according to the learned counsel, is ill-disposed to the requirements of the functions which entail decision on intricate and complex questions of title involving consideration of different statutes such as Evidence Act, provisions of testamentary and non-testamentary, Transfer of Property Act and their interpretation and therefore, authorities equipped with no knowledge of law is ill-equipped to deal with the questions of law and therefore are wholly incompetent to sit over judgments. It is next submitted that there is no direct recruitment on the post of Consolidation officer, Settlement Officer Consolidation and Deputy Director Consolidation under the Service Rules and promotions in the hierarchy are made from amongst Consolidator and Rectangulators upto the stage of Deputy Director Consolidation. The learned counsel next canvassed that while enacting U.P.Z.A. & L.R. Act it was clearly provided that in case of Bhumidhari rights, the matter was to be referred to civil court for adjudication of the title dispute but subsequently, the power of civil court in this regard was further truncated and vested in the officers of executive cadre by subsequent amendments. Similar is the position of the U.P. Consolidation of Holdings Act and according to learned counsel any such amendment which impinges upon the basic feature of the Constitution is liable to be struck down. The learned counsel also canvassed that by amendment made in Section 5 (2) of the U.P.C.H. Act, it is provided that all proceedings pending in civil or revenue courts relating to declaration of title etc., on notification under section 4 (1) of the U.P. Consolidation of Holdings Act would abate and is to be decided by the consolidation courts. This amendment encompassed in its fold the proceeding pending before the Apex Court. Magnifying his submissions, the learned counsel further argued that it was mandatory for the State of U.P. to have postulated a rider to the State Government to perpetuate jurisdiction of the civil court for adjudication and declaration of title in immovable properties for which it should have created a cadre composed of judicial officers earmarking them for deciding dispute in the revenue matter under the U.P. Z.A. & L.R. Act and also under the U.P. Consolidation of Holdings act so that the people of India enmeshed in litigious dispute may be dispensed justice by trained judicial mind equipped with qualification in law. All other counsel appearing for petitioners in the connected writ petitions have put weight to the arguments advanced above besides arguing on merit in their respective petitions and therefore the consolidation authorities have no power to review and the Deputy Director Consolidation has illegally reviewed its order. It is further argued that the consolidation authorities have not taken into account subsequent events, which should have been taken into account at the time of deciding the case finally.
Dr. R.G.Padia, Senior Advocate who earlier rendered his services to the Court as Amicus Curie, was not available on the date of hearing as has reportedly shifted elsewhere and hence in his place, Sri R.P.Gupta, Advocate proffered his services to act as Amicus curie in his place.
Submissions of Amicus curie.
Sri R.P.Gupta, Advocate, who has appeared before the court as Amicus curie enlightened the court with fuller details stating that consolidation authorities are under direction administrative control of the Government of U.P. that the initial qualification prescribed at the time of recruitment for Lekhpals is High School and likewise academic qualification prescribed for consolidator and rectangulators is High School and by reason of their qualification, they cannot grasp the nicety of questions of law posed to them and therefore, by amendment of the Act under U.P. Act 16 of 1957 and of sections 22, and 23 by U.P. Act no. 8 of 1963 by which all questions relating to declaration of title as Bhumidhar could be decided by the consolidation authorities under the U.P. C.H. Act was invalid. He further urged that declaration of title casts obligation to determine civil rights and therefore it is a judicial function. The learned counsel argued that as the separation of power is an old doctrine and recognized by the constitution though in part IV of the Constitution but as it is complementary to Part III, every citizen of India has a right to get decision or declaration of title from competent persons and not by a person with fragmentary knowledge in law who are not competent to grasp and understand the questions of law and further urged that original jurisdiction of the civil court should be restored by declaring relevant provision of the amending Act as ultra-vires. The learned counsel further submitted that entire estate vests in State as contained under the U.P.Z.A. & L.R.Act and the rights were given to citizens as well as Gaon Sabha and other local authorities and those charged with duties to adjudicate upon their rights and title being the persons belonging to executive cadre appointed by the State Government, they being prosecutor, can not work as Judge and as prosecutor for having at their hearts the interest of Gaon Sabha and Government Bodies while adjudicating upon the dispute and therefore their judicial independence tends to beget doubt in the minds of people that they are more prone to act as a willing tool in the hands of the Government and therefore, transaction of judicial business by them militates against the very basic feature of judicial norms. It is pointedly argued that the land vests in Gaon Sabha by notification under section 117 issued by the State Government subject to certain postulates and in case the administration of justice which now under the Act is delegated to officers of Executive cadre is not restored to judicial functionaries, it being a litigation between individual and the Government and its bodies, would affect the judicial independence inasmuch as the authorities being protector of Government property and Gaon Sabha cannot function as a judge of their own cause considering the principles that no man can be a judge of his own cause and justice should not only be done but should seem to have been done.
Submissions of Addl. Advocate General for State of U.P.
Per contra, learned Addl. Advocate General assisted by Sri Sanjai Goswami, learned Standing counsel, argued on the lines that the U.P. Consolidation of Holdings Act was enacted by State Legislature under the provisions of the Constitution and the authorities who have been assigned the adjudicatory function under the Act are fully competent to handle and deal with the cases of adjudication of rights and declaration of title. He also added that Article 50 of the Constitution of India being component of the directive principles of the Constitution, the same cannot be enforced under Article 37 of the Constitution attended with the submission that even if separation of judiciary from executive is basic feature of Constitution of India, the directive principles contained under Article 50 of the Constitution cannot be enforced by way of judicial fiat. It is further contended that consolidation authorities having trapping of tribunal are always under judicial review and superintendence of this Court under Article 226 and 227 of the Constitution. The learned Additional Advocate General did not scruple to state across the bar that the State is fully competent to create such forum under various entries under 7th Schedule of the Constitution and even if the jurisdiction of civil court has been excluded for the purposes of adjudication of title over the land it can be done by the State Legislature but at the same time he propped up the State action by framing rules for recruitment of Asstt. Consolidation officers, Consolidation officers, Settlement Officers Consolidation and Deputy Director Consolidation urging that though dispute relating to declaration of rights there, any person who is not equipped with qualification of law could be deputed or appointed for the purpose of determining the title by legislature. In support he further contended that 50% of the posts of Asstt. Consolidation officers are filled in by promotion from amongst the consolidators and rectangulators who are not graduate but they are chosen for the purpose by reason of the fact that with the passage of time, they acquire experience of the work under the U.P. C.H. Act and they are rightly appointed to perform the duties of Asstt. Consolidation officer and so on upto the stage of Settlement officer Consolidation. The learned Additional Advocate General also submitted that it is clearly borne out from Annexure C.A.1 that such promotees are imparted necessary training in various subjects before entering into the service to perform the function from the stage of Asstt. Consolidation Officer to the stage of Settlement Officer Consolidation and Deputy Director Consolidation. Coming to the definition of judicial service under Article 235 and 236 of the Constitution of India, the learned Addl. Advocate General canvassed that judicial service and Consolidation officers are not synonymous and have two different meaning inasmuch as a consolidation officer exercises judicial function but at the same time they cannot be treated to be part of judicial service. On this aspect, the learned Additional Advocate General further submitted that Constitution Bench of Apex Court in Indira Nehru Gandhi v. Raja Narain which decision was followed in a catena of latest decisions thereafter have clearly laid down that judicial power can be conferred on forums other than the members of judicial service and as such legislatures cannot be assailed on this ground. He further lent support to his argument arguing that legislature competence is countenanced by 7th Schedule Entry no. 18 & 41, List II of the Constitution and therefore, the entire labour put in by the learned counsel in challenging different amendments incorporated under the U.P.Z.A. & L.R. Act and U.P. Consolidation of Holdings Act by which jurisdiction of Civil Court was delegated to the officers of Executive cadre was within the legislative competence and cannot be challenged in law.
Learned counsels for Opp. Parties adopted the argument of learned Addl. Advocate General and supported the judgment of the consolidation authorities urging that the same have been passed in accordance with law.
The learned counsels for the petitioners were again called upon for reply to the above contentions of the learned Additional Advocate General and learned counsels for Opp. Parties.
Submissions of Learned Amicus curie
Attacking the U.P. C.H. Act, Sri Gupta further urged that originally U.P. Z.A. & L.R. Act No.1 of 1951 was enacted as a part of Schedule IX of the Constitution but subsequent amendments giving power to members of executive cadre are not part of 9th Schedule of the Constitution and therefore, competence of the legislature on this count is assailable. He further urged that as stated supra, the amendments in the Act by way of U.P. Act no. 28 of 1954, U.P. Act 15 of 1956, U.P. Act no. 37 of 1958 and U.P. Act no. 28 of 1961 by which jurisdiction of civil court was ousted and instead it was entrusted to officers of executive cadre for performing the functions of adjudication of title in land under the Act run counter to the principles of natural justice and basic feature of the judicial norms to a mockery and therefore, they fervently pleaded that the amendments aforestated may be declared ultra-vires and power be restored to the civil courts. Lastly, it has been urged that Articles 245 and 246 of the Constitution deal with the power of parliament as well as legislature and these Articles are always subject to mandate of Article 50 of the Constitution of India which is the basic feature of Constitution of India. The learned counsel also submitted that as amendments introduced in the Act have been effected in obtrusive antagonism of Article 50 of the Constitution, the same being one militating against the mandate of article 50 of the Constitution cannot be sustained and are liable to be struck down. He also quipped that section 49 of the U.P.C.H. Act should also be declared as ultra-vires prospectively. Learned counsel for the writ petitioners adopted the argument of Sri S.K.Verma, Learned Senior Advocate and further urged that impugned orders in the writ petition are vitiated in law and are liable to be quashed. They further urged that the matter may be sent back to be considered in accordance with law.
After careful consideration of the arguments advanced across the bar as well as the learned Amicus Curie and also learned Additional Government Advocate and also reckoning with the relevant provisions as well as the materials on record, I feel called to give a brief sketch of legislative history governing the declaration of rights and determination of title of the agricultural land covered under the U.P. Zamindari Abolition and Land Reforms Act, 1950 and U.P. Consolidation of Holdings Act, 1953 (U.P. Act No. V of 1954).
Approximately 70% population of the State of U.P. depends upon agricultural land for their livelihood. It is also significant to note that rural economy always plays an important role and by this reckoning, declaration of rights and title of a tenure holder to the agricultural land is a matter of vital and utmost importance in the present time. Prior to coming into force of the U.P.Z.A. & L.R.Act, under the U.P. Tenancy Act, 1939, superior rights including Sir Khudkasht, Proprietary rights or fixed rate tenancy, and other tenancies were governed by two distinct laws. While tenancies i.e. hereditary tenancy, occupancy tenancy, non-occupancy tenancy etc. other than the fixed rate tenancy were governed by law under U.P. Tenancy Act, 1939 in the matter of acquisition devolution inheritance and others rights. Sir Khudkasht, proprietary rights and fixed rate tenancy was governed by personal laws. After attaining independence, the legislatures enacted U.P. Zamindari Abolition and Land Reforms Act, 1950 (Hereinafter referred to as U.P.Z.A. & L.R. Act) which postulated that all the estates would vest in the State of U.P. The rights conferred by the State under the U.P.Z.A. & L.R.Act consisted of Bhumidhari rights, Sirdari rights and Asami rights. Certain actual tillers of the land were recognised as Adhivasi, who also acquired sirdari rights under the U.P.Z.A. & L.R. Act and its various amendments. The question of title was to be decided by court manned by members of judicial service under the U.P.Z.A.& L.R. Act 1951 after commencement of U.P.Z.A. & L.R.Act. But by subsequent amendments, the right to adjudicate upon title in the Agricultural (immoveable) land was transferred to officers who were not members of judicial service.
Legislative History of amendments in U.P.Z.A. & L.R.Act
In view of the controversy involved, there is need to wade through the legislative history of the U.P.Z.A. & L.R.Act ever-since its coming into force. The U.P. Zamindari Abolition and Land Reforms Act 1950 came into force on 26th Jan 1951. Under the U.P. Land Reforms (Amendment) Act, 1954 (U.P. Act No. XX of 1954), Sections 229 A to 229 D were inserted in the Principal Act. The amended Sections 229 A and 229 B of the Act are excerpted below.
"229 A. Trespass on a holding.- Where any person against whom a decree or order of ejectment from a holding or any portion thereof has been executed under the provisions of this Act or the U.P. Tenancy Act, 1939, re-enters or attempts to re-enter otherwise than under or in accordance with the provisions of law upon such holding he shall be presumed to have done so with the intent to intimidate or annoy the person in possession within the meaning of section 441 of the Indian Penal Code.
229-B. Suit by an asami for declaration of rights.- (1) Any person claiming to be an asami either exclusively or jointly with any other such person may sue the land-holder, for a declaration that he is an asami or for a declaration of his share as joint asami in the holding as the case may be.
(2) In any suit under this Section any person claiming to hold as an asami through the land-holder shall be joined as a party."
Again, by the self same amendment made by U.P. Act No. 20 of 1954, section 332 was amended and a new section 332 A was added therein which is quoted below.
"Adhivasi or asami rights in land not a question of title.- Wherein any suit or proceeding relating to land under this Act or under any other law, for the time being in force, a question is raised whether or person is or is not an adhivasi or asami of any land it shall not be deemed to raise a question of title."
It is worthy of notice that by this amendment, the revenue courts were competent to decide only Asami rights. Under the U.P. Land Reforms (Amendment) Act, 1956 (U.P. Act no. VIII of 1956), by amending section 13, Section 229 B of the Principal Act, was substituted with the following.
"229 B. (1) Any person claiming to be an asami of a holding whether exclusively or jointly with any other person may sue the landholder-
(a) for a declaration that he is an asami of the holding, or
(b) for a declaration of his share therein;
(2) In any suit under sub-section (1) any other person claiming to hold as asami under the land holder shall be impleaded as defendant.
(3) The provisions of sub-sections (1) and (2) shall mutates mutandis apply to a suit by a person claiming to be a sirdari with the amendment that for the word ''land-holder' the words '' the Sate Government and the Gaon Sabha' are substituted therein."
Under the U.P. Land Reforms (Amendment) Act, 1956 (U.P. Act no. VIII of 1956), Sections 332 A and 332 B of the Principal Act, were amended and for the words "an adhivasi or asami" the words ''a sirdar', adhivasi or asami" were substituted. By this amendment, sirdari asami rights were not held to be question of title. Section 19 of Amending Act VIII of 1956 is quoted below.
"19. Amendment of Sections 332 A and 332 b of U.P. Act I of 1951.- In sections 332 A and 332 B of the Principal Act for the words "an adhivasi or asami" wherever they occur, the words "a sirdari, adhivasi, or asami" shall be substituted."
For declaration of only asami rights before the revenue authorities i.e. Asstt. Collector, Ist Class, under section 229 B of the U.P.Z.A & L.R. Act was provided a forum when U.P.Z.A. & L.R. Act was promulgated. At that time only asami rights were to be adjudicated by the revenue authorities. So far as superior rights of Bhumidhar and Sirdari class of rights in the Land was concerned it was within the competence of the Civil Court. Section 229 B as amended by U.P. Act No. 37 of 1958 is quoted below.
"229-B. Declaratory suit by person claiming to be an asami of a holding or part thereof.- (1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person may sue the land holder for a declaration of his rights as asami in such holding or part as the case may be.
(2) In any suit under sub-section (1) any other person claiming to hold as asami under the landholder shall be impleaded as defendant.
(3) The provisions of sub-sections (1) land (2) shall mutates mutandis apply to a suit by a person claiming to be a Bhumidhar with the amendment that for the word "landholder" the words "the State Government and the Gaon Sabha" are substituted therein."
Thus it is clear that for the first time in 1958, officers belonging to executive cadre were conferred the jurisdiction to adjudicate upon the claims of ''sirdari rights' alongwith 'asami rights'. At the relevant time, adjudication pertaining to holders of Bhumidhari rights which were the only dispute of title in land under the U.P. Act No. 1 of 1952 was not within the jurisdiction of the officers of executive cadre and they could determine only asami rights prior to 1956. Subsequently by the amending Act 8 of 1956 the word "asami' was substituted by word "Sirdari" and thereafter, by the U.P. Amendment Act No. 37 of 1958, the officers belonging to executive cadre were conferred jurisdiction to adjudicate or declare the Bhumidhari rights also. In all such cases, State of U.P. and Gaon Sabha were arrayed as necessary parties. Subsequently, amendments were made in the U.P.Z.A. & L.R. Act and by means of Amendment Act 8 of 1977, the word ''Sirdari' was substituted by word ''Bhumidhari' with non-transferable rights, and the word sirdari was omitted.
From the above legislative changes, it is clear that after the Constitution of India had come into force on 26.1.1950, the legislature while enacting U.P.Z.A.& L.R. Act did assign jurisdiction to officers of judicial cadre of adjudicating the title or declaration of Bhumidhari or sirdari rights and by the subsequent amendments made by the U.P. Legislatures, the jurisdiction was gradually transferred from the civil courts to the officers of executive cadre. At the time when the U.P.Z.A. & L.R.Act was enforced as holding of tenure holder was divided into small segments/pieces and therefore in order to consolidate the agricultural holding for the purposes of development of agriculture, the U.P. Legislatures considered it appropriate to enact the U.P. Consolidation of Holdings Act 1953.
Legislative History of Amendments in the U.P. Consolidation of Holdings Act.
The object enshrined in the U.P. Consolidation of Holdings Act, 1953 is excerpted below.
"After the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, there was naturally a pressing demand for the consolidation of holdings in the State. Since the complicated and numerous types of tenures, both proprietary and cultivatory, the greatest stumbling block in the way of successful consolidation of holdings, have been abolished it is an opportune time to start this work. The advantages of having in compact blocks all the land farmed by one family need only be briefly mentioned. Boundary lines would be reduced in number and extent, saving land and diminishing boundary disputes, larger fields would be possible and time saved in making trips to the fields. Further, if land were all in one piece, barriers, such as fences, hedges or duches could be erected to obtain privacy and prevent trespassing thieving and gleaning. The control of irrigation and drainage water would be easier, control of pests, insects and disease would also be less difficult."
At the time of enforcement of the Act, the members of judicial service were competent to adjudicate upon the title over the land. In this connection, un-amended Section 12 (1) and 12 (4) may be quoted below.
"12 Objection on the statement.-(1) Any person may within 3 days of the publication of the statement prepared under section 11 file before the Assistant Consolidation Officer an objection disputing the correctness or nature of an entry in the statement or pointing out any omission there-from."
"(4) Where the objection filed under Sub-section (1) involves a question of title and such question has not already been determined by a competent court, the Consolidation Officer shall refer the question for determination to the Arbitrator."
Section 22 of the un-amended Act deals with objections relating to title in land. Section being relevant is also abstracted below.
"22. Objections relating to title in land.-(1) Where any objection filed under Section 20 involves a question of title in or over land and such question has not already been finally determined by a competent court, the Consolidation officer shall refer it for determination to the Arbitrator.
(2) All suits or proceedings in the court of the first instance or appeal in which a question of title in relation to same land has been raised shall be stayed.
(3) The decision of Arbitrator shall be final."
In Chapter V of the un-amended Act, section 37 deals with Arbitration and this section being relevant is also quoted below.
"37. Arbitration.-(1) Where any matter is, by or under this Act, directed to be referred to an Arbitrator for determination, the Arbitrator shall be appointed by the State Government from amongst Civil Judicial Officers or Assistant Collectors of the I class of not less than five years' standing and in all other respect the matter shall be determined in accordance with the provisions of the Arbitration Act, 1940.
(2) The appointment of an Arbitrator under Sub-section (1) may be made either generally or in respect of any particular case or class of cases or in respect of any specified area or areas."
By U.P. Act No. XXVI of 1954, the U.P. consolidation of Holdings Act as initially enacted was amended. Section 10 of the Amending At by which section 12 of the principal Act was amended is quoted below.
"10 Amendment of Section 12 of U.P. Act V of 1954.- In section 12 of the Principal Act-
in Sub-section (4) between the words "determination" and "to" the words "to the Civil Judge having jurisdiction who shall thereupon refer it" shall be inserted; and
for the existing sub-section (5) the following shall be substituted:
"(5) Upon the making of reference under sub-section (4) all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in relation to the same land has been raised, shall be stayed."
Section 36 of the Principal Act was also amended vide section 16 of the Amending Act No. 26 of 1954. The same being relevant is also quoted below.
"16. Amendment of Section 36 of U.P. Act V of 1954.- In section 36 of the Principal Act-
in Sub-section (1) between the words "determination" and "to" the words "to the Civil Judge having jurisdiction who shall thereupon refer it, shall be inserted; and
for sub section (2) the following shall be substituted-
"(2) Upon making a reference under sub-section (1) all suits and proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in relation to same land has been raised, shall be stayed."
By U.P. Amending Act No. XXIV of 1956, Principal Section 12 (1) (5) and (7) was amended and section 9 of the amending Act being relevant is quoted below.
"(5) Upon the publication of the statement under Section 11, all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in respect of any plot mentioned in the statement with reference to clause ( c) of Sub-section (1) of Section 11 has been raised shall be stayed to the extent it relates to such plot and shall thereafter be disposed of in the manner prescribed."
(7) A question of title in respect of any plot mentioned in the statement in Clause (c) of Sub-section (1) of Section 11, which might and ought to have been raised under Sub-section (1) but had not been raised, shall not be raised in any objection filed under Sub-section (2) of Section 20, or under Sub-section (1) of Section 34."
Further by amending Act No. XVI of 1957, section 36 of the Principal Act was amended and following sub section 36 A was inserted by which question of title has been defined. The newly inserted section 36 A is quoted below.
"36 A. Question of title.- Where in any proceeding under this Act, a question is raised whether a person is or , on any particular date, was a sirdari, adhivasi or asami of any land, it shall not be deemed to be a question of title."
By U.P. Act no. XXXVIII of 1958, there were major changes. Before dwelling on changes made by this Amending Act, it would be appropriate to refer to object enshrined in the amending Act.
"Object.- "The working of the Uttar Pradesh Consolidation of Holdings Act, 1953, has revealed certain shortcomings. It is necessary to simplify the procedure with a view to cut out avoidable delays in consolidation operations. There is a public demand in certain areas for recognition of the consolidation, which might have already been carried out by the tenure-holders voluntarily. 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. To inspire greater confidence in the people in the adjudication of rights of tenure holders by consolidation authorities it is proposed to provide for a second appeal and a revision against orders passed by the Consolidation Officers. The present method of valuation of plots on the basis of soil classification and rent rates has not been founded to be satisfactory. It is now proposed to provide for the valuation of plot on the basis of productivity, availability of irrigation facilities and location etc. in consultation with the Consolidation Committee. Until now there was no provision for the management of land contributed for public purpose. Exclusion of plots of special value having cultivation of Pan, Rose, Bela, Jasmine and Keora etc., from consolidation operations has also been found necessary. With a view to provide for the above and to remove a few other minor defects, the Bill is being introduced."
By this amending Act, sections 36, 36 A and 37 of the Principal Act were deleted by which there was provision for reference to the civil courts and further section 49 of the Principal Act as by this Amendment, section 42 of the Amending Act was comprehensively amended in the following manner.
"49. Bar to civil jurisdiction.- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a declaration has been issued under section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act land no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act."
By U.P. Amending Act No. 8 of 1963, the Consolidation authorities were conferred full jurisdiction to determine title. The said Act postulates that once the notification under section 4 of the U.P.C.H.Act is made, each and every person is competent to seek redress of the disputes before the consolidation authorities. Section 4 (1) of the U.P.C.H Act being germane is quoted below.
"4. Declaration and notification regarding consolidation.-
(1) (a) The State Government may, where it is of opinion that a district or part thereof may be brought under consolidation operations, make a declaration to that effect in the Gazette, whereupon it shall become lawful for any officer or authority who may be empowered in this behalf by the District Deputy Director of consolidation-
(i)to enter upon and survey, in connection with rectangulation or otherwise, and to take levels of any land in such area;
(ii)to fix pillars in connection with rectangulation, and
(iii)to do all acts necessary to ascertain the suitability of the area for consolidation operations.
(b) The District Deputy Director of Consolidation shall cause public notice of the declaration issued under Clause (a) to be given at convenient places in the said district or part thereof."
Section 5 (1) and (2) of the U.P. C.H. Act is also quoted below for ready reference:
"5. Effect of notification under section 4(2).- (1) Upon the publication of the notification under Sub-section (2) of Section 4 in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under section 52 or Sub-section (1) of Section 6, as the case may be, ensue in the area to which the notification under Section 4 (2) relates, namely-
(a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and the duty of maintaining the record of rights and preparing the village map, the field book and the annual register of each village shall be performed by the District Deputy Director of Consolidation, who shall maintain or prepare them, as the case may be, in manner prescribed;
(c) Notwithstanding anything contained in the U.P.Zamindari Abolition and Land Reforms Act, 1950, no tenure holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-
(i)use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisci-culture and poultry farming; or
Provided that a tenure holder may continue to use his holding, or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued under sub-section (2) of Section 4.
(2) Upon the said publication of the notification under Sub Section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely-
(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated.
Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard:
Provided further that on the issue of a notification under Sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated;
(b) Such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder."
Section 3 (11) now defines the words ''tenure holder' which means a Bhumidhar with transferable rights or Bhumidhar with non-transferable rights and includes an asami, a Government lessee or Government grantee, or a co-operative farming society satisfying such condition as may be prescribed. Initially when the U.P. Consolidation of Holdings Act 1953 was enacted on 8th March 1954, section 12 of the Act was the provision by which it was provided that in case a person was aggrieved about the correctness of the land record prepared by the consolidation authorities relating to the land, the Consolidation officers were competent to dispose of the same otherwise than in accordance with provisions of law. It was provided under section 12 (4) and (5) that if question of title arises unless already pre-determined by the competent court the same shall be referred to the Arbitrator and all suits or proceedings in the court of first instance or appeal in which question of title relating to the same land has been raised shall be stayed. Section 22 of the aforesaid un-amended Act is also necessary to be referred to which provides that where any objection filed under section 20 involves a question of title in or over land and such question has not already been finally determined by a competent court, the Consolidation officer shall refer it for determination to the Arbitrator. Section 37 of the un-amended Act postulates that where any matter is by or under this Act directed to be referred to an Arbitrator for determination, the Arbitrator shall be appointed from amongst civil judicial officer or Asstt. Collectors of the First Class of not less than five years' standing and in all other respect the matter shall be determined in accordance with the provisions of the Arbitration Act, 1940. Subsequently, section 12 was amended by U.P. Act XXVI of 1954 by which the phrase "to the Civil Judge hearing jurisdiction who shall thereupon refer it to Arbitrator" were added and only Civil Judge having jurisdiction was held to be competent authority. Similarly amendments were made in sections 22 and 36 as well. At that time any suit or appeal involving question of title was liable to be stayed. Sub section 5 of section 12 was amended and substituted to the extent that upon the publication of the statement under section 11, all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in respect of any plot mentioned in the statement with reference to clause (C) of Sub Section (1) of Section 11 has been raised shall be stayed to the extent it relates to such plot and shall thereafter be disposed of in the manner prescribed. It was further provided by adding sub-section (7) that a question of title in respect of any plot mentioned in the statement in Clause (C) of Sub-section (1) but had not been raised, shall not be raised in any objection filed under sub-section (2) of Section 20 or under Sub Section (1) of Section 34. Upto this stage, jurisdiction vested in the civil court. By the U.P. consolidation of Holdings (Amending Act) 1957, for the first time, jurisdiction was given to the consolidation authorities to adjudicate upon the sirdari, Advasi or asami rights by amending Section 36 and adding section 36 A which postulates that wherein any proceeding under this Act, a question is raised whether a person is or on any particular date, was a sirdari adhivasi or asami of any land it shall not be deemed to be a question of title. By U.P. Consolidation of Holdings (Amendment Act) 1958 (Act no. 38 of 1958), the U.P. Consolidation of Holdings Act was drastically amended by providing powers to the consolidation authorities to decide dispute relating to title on objections filed in accordance with the provisions of section 9 of the At by a tenure holder. It provides that in a matter in which no objection was filed, Asstt. Consolidation officer shall be deemed to be a court of competent jurisdiction in accordance with law. By U.P. Act No. 8 of 1963 U.P.C.H.Act was further amended and it was provided that all the claims of the land or partition of the joint family land shall be decided by the consolidation authorities in case of dispute. The consolidation authorities were given further jurisdiction to adjudicate the title in the land and declaration of rights. The subsequent amendments also provides power of civil courts as well as revenue courts relating to the declaration of title or adjudication of rights in the land situated in the consolidation area could only be exercised by consolidation authorities and the orders passed by the consolidation authorities were made conclusive under section 49 of the U.P. Consolidation of Holdings Act.
Adjudication of title in land- whether a dispute of civil nature
It may be noticed here that the dispute springing from consolidation is a state sponsored dispute as to title pertaining to agricultural land. Every tenure-holder is constrained to seek redress of their grievances in any matter pertaining to agricultural land, be it carvation of the chak, dispute pertaining to entries published in the record under section 9 of the U.P.C.H. Act, dispute relating to title, correction of entries, a dispute pertaining to area, valuation and parties' share in a plot or in a subsequent proceeding for creation/carvation of chaks. A tenure holder is also induced into litigation in the event the chak is not carved out strictly on principles embodied in section 19 of the U.P.C.H. Act. The dispute also arises if a tenure holder is allotted a chak which should not have been allotted under the U.P. consolidation of Holdings Act on the original holdings far away from the abadi or his original holding does not require to be interfered with, being compact and good holding, and the tenure holder is also induced into litigation which by all reckoning, is a state sponsored litigation having its origin in notification under section 4 of the U.P.C.H. Act to be published in the official gazette and after the notification is issued, no court other than the consolidation courts, not even the Apex court, can entertain any matter relating to cause of action arising out of consolidation area of such a litigation. Therefore, it leaves no manner of doubt the consolidation courts are the courts deciding the civil rights relating to agricultural land.
Under section 9 of the Civil Procedure Code, the Civil courts have jurisdiction to try all suits of civil nature except suits of which their cognisance is expressly or impliedly barred. Section 9 CPC being relevant is excerpted below.
"9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred.
Now the legislature by enacting U.P Amendment Act amending the U.P.Z.A & L.R. Act has excluded the jurisdiction of the civil courts for cognisance of the suits by civil courts and instead, has conferred jurisdiction on revenue courts. Section 331 of the U.P.Z.A. & L.R.Act being relevant, is abstracted below.
"331. Cognisance of suits, etc. under this Act.- (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognisance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application;
Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.
Explanation.- If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.
(1-A) Notwithstanding anything in sub-section *I), an objection that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(2) Except as hereinafter provided no appeal shall lie from an order or decree passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid:
(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in column no. 4 of Schedule II to this Act in proceedings mentioned in column No. 3 thereof to the court or authority mentioned in column No. 5 thereof.
(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid."
From a bare reading of Section 331 of the U.P.Z.A. & L.R.Act, it is eloquent that the legislature has provided that no court other than the "courts" mentioned in column (4) of Schedule II shall, notwithstanding anything contained in the C.P.C., take cognisance of any suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or proceeding. A perusal of Schedule II appended to the U.P.Z.A. & L.R.Act bespeaks that details of courts competent to decide the suits have been given in column (4) with the mention of courts of first appeal and second appeal and entry A-34 of Schedule II contains description of proceedings or suit under section 229 B for declaration of rights in the land. Similarly, other entries also relate to trying of the suit for a cause that arises out of the U.P.Z.A.& L.R.Act. The legislature has also mentioned word ''court' while excluding the powers of civil courts under section 331 of the U.P.Z.A. & L.R.Act meaning thereby that these rights could be determined by way of suit through the court only.
It is significant to mention here that the Asstt. Collectors were not competent to try the suits for declaration of title under the un-amended U.P.Z.A. & L.R.Act 1950. They were competent to decide only asami rights, which are not permanent rights. The jurisdiction was transferred by subsequent amendments but corresponding changes were not made in the Schedule II as regards the alternative qualification/judicial training of presiding officers who may be competent to try such suits as Revenue courts or the consolidation courts.
Entry No. 34 and other Entries of Schedule II of the U.P.Z.A. & L.R.Act, 1950 may also be referred to. It specifically mentions that the original jurisdiction in the matter of suit for declaration of rights under section 229 B of the U.P.Z.A. & L.R.Act vests in the Asstt. Collector, Ist Class. Likewise, first appeal lies in the court of Commissioner, second appeal to the Board of Revenue. ''Revenue court' is not defined under the U.P.Z.A. & L.R.Act but section 3 (27) of the U.P.Z.A. & L.R.Act refers to definition as embodied in Land Revenue Act.
Section 3 (27) of the U.P.Z.A. & L.R.Act may also be quoted below being relevant.
"(27) words and expressions, under-proprietor, sub-proprietor, revenue, mahal, Assistant Collector, Assistant Collector in charge of sub-division, Commissioner, Board, Tahsildar and miner, not defined in this Act and used in the United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901), shall have the meaning assigned to them in that Act."
Likewise Section 4 (8) of the U.P. Land Revenue Act which defines ''revenue court' may also be quoted below.
"(8) "Revenue Court" means all or any of the following authorities (that is to say), the Board and all members thereof, Commissioners, Additional Commissioners, Collectors, [Additional Collectors] assistant Collectors, Settlement Officers, Assistant Settlement Officers, Record Officers, and Assistant Record Officers and Tahsildars."
Chapter II deals with appointment and jurisdiction of the authorities constituting revenue courts. Section 5 envisages that "subject to the superintendence, direction and control of the State Government the Board shall be the chief controlling authority in the matters provided under the Act, excepting matters relating to disposal of cases, appeals, references and revisions." Section 6 of the U.P. Land Revenue Act, 1901 deals with appointment of members of the Board. Section 12 of the U.P. Land Revenue Act, 1901 deals with appointment of commissioners of the divisions. This section envisages that "The State Government shall appoint in each division a Commissioner, who shall within his division exercise the powers and discharge the duties conferred and imposed on a Commissioner under this Act, or under any other law for the time being in force, and who shall exercise authority over all the revenue officers in his division. Section 13 of the U.P. Land Revenue Act, 1901 deals with appointment, power and duties of Additional Commissioner. Section 14 of the U.P. Land Revenue Act, 1901 deals with the appointment of collector of the district and section 14 A and 15 deals with the appointment, powers and duties of Additional Collectors and Assistant Collectors. Section 18 of the U.P. Land Revenue Act, 1901 deals with the duties and appointment of the Sub Divisional officers and section 19 of the U.P. Land Revenue Act, 1901 deals with the subordination of revenue officers in the hierarchy.
In the above perspective, it is clear that all the revenue authorities are designated as revenue courts authorised and empowered to decide civil rights of citizens under the U.P.Z.A. & L.R. Act which could be determined only by the civil courts. Under section 40 A of the U.P.L.R. Act-all the orders of revenue courts arising from correction of record and mutation are subject to suit by competent court but under the U.P. Consolidation of Holdings Act any order of correction under section 9 and section 12 or any order under section 20 of the U.P. Consolidation Act are final and conclusive and civil courts or revenue courts are barred from entertaining any suits or proceeding to adjudicate upon the same. Section 40 A of the U.P. Land Revenue Act, 1901 being relevant is quoted below.
"40A. Saving as to title suits.- No order passed under Section 33, Section 35, Section 39, Section 40, Section 41 or Section 54 shall bar any suit in a competent court for relief on the basis of a right in a holding."
In connection with the above, Sri R.P.Gupta, learned Amicus curie, pointed out that the U.P. Consolidation of Holdings Act 1953 defines Asstt. Consolidation officer, Consolidation officer, Settlement Officer Consolidation and Deputy Director Consolidation as court of competent jurisdiction. Section 9 A (3) of the Act runs as under:
"9-A. (3) The Assistant Consolidation Officer, while acting under Sub-section (1) and the Consolidation Officer, while acting under sub section (2) shall be deemed to be a court of competent jurisdiction anything to the contrary contained in any other law for the time being in force notwithstanding."
Similarly Section 11 (2) of the Act is also quoted below.
"11 (2) - The Settlement Officer, Consolidation, hearing an appeal under Sub-section (1) shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any law for the time being in force notwithstanding."
Again similarly section 38 (1) of the U.P.C.H. Act envisages as under:
"38 (1)-The Director of Consolidation and Deputy Director Consolidation, Settlement Officer, Consolidation Officer and Assistant consolidation Officer shall have all such powers and rights, and privileges as are vested in a Civil Court on the occasion of any action, in respect of the following matters-
(a) the enforcing of the attendance of witnesses and examining them on oath, affirmation or otherwise and the issue of a commission or request to examine witnesses abroad;
(b) compelling any one for the production of any document;
(c) the punishing of person guilty of contempt.
And a summon signed by such officer may be substituted for and shall be equivalent to any formal process capable of being issued in any action by a Civil Court for enforcing the attendance of witnesses and compelling the production of document."
This Court agrees with the submissions of the learned counsel for the petitioner as well as learned Amicus Curie that Consolidation authorities and revenue courts are to decide number of complicated questions, which usually arise for consideration which includes adverse possession, estoppels or acquiescence, rights of minors, the effect of the compromise and the compromise decree, void and voidable nature of instruments, family arrangements, rights of co-sharers, properties of mutts, the rights and duties of Shebaits, question relating to the property being waqfs property, law of partition, question and effect of mortgages, the rights of mortgageees and mortgagors, question of validity of Wills right to evacuee property and various allied matters. The Consolidation authorities also decide the questions arising out of Transfer of Property Act, law of succession both testamentary and non-testamentary involving interpretation of statute under Indian Succession Act, Hindu Succession Act Muslim Personal laws etc and their decisions have the effect of binding and conclusiveness and cannot be questioned in civil or revenue courts under section 49 of the U.P. Consolidation of Holdings Act.
Under the U.P. Consolidation of Holdings Act, the jurisdiction to adjudicate rights and title of the parties has now been delegated to the consolidation authorities mentioned above and amendment to that effect was made in U.P. Consolidation of Holdings Act on the only ground that as revenue courts under the U.P.Z.A. & L.R.Act were conferred jurisdiction to decide the title dispute relating to Bhumidhari rights over the agricultural land and as such jurisdiction has been conferred on consolidation authorities under the U.P. Consolidation of Holdings Act making it amply clear that the legislature has enumerated consolidation authorities i.e. Asstt. Consolidation officer, or Consolidation officer or Settlement officer consolidation, Deputy Director Consolidation are deemed courts of competent jurisdiction. It is thus explicit that determination of title or declaration of rights in relation to land, has the complexion and element of dispute of civil nature and it could only be determined by the courts in appropriate suit or proceeding.
From a perusal of the U.P. Consolidation of Holdings Act, different powers under the Act were conferred on various authorities under section 44. Section 44 of the Act postulates that the State Government may by notification in the official Gazette, and subject to such restrictions and conditions as may be specified in the notification (i) delegate to any officer or authority any of the powers conferred upon it by this Act; and (ii) confer powers of the Director of Consolidation, Deputy Director, Consolidation, the Settlement officer, Consolidation, and the Consolidation Officer under this Act or the rules made thereunder, on any officer or authority. Section 42 the U.P. Consolidation of Holdings Act, also makes it clear that the State Government may appoint such authorities and officers and for such areas, as may necessary, to give effect to the provisions of the Act. Sub Section (2) of Section 42 of the U.P.C.H. Act envisages that the District Deputy Director of Consolidation may, subject to such directions as the Director of consolidation may issue, from time to time, demarcate the circles to be assigned to Consolidation Lekhpals, Consolidators and other authorities for the district under Sub-section (1). Section 42 of the U.P. C.H. Act which was amended by the U.P. Amending Act 38 of 1958 and Section 37 of the U.P. Amending Act 18 of 1963 reads as under:
"Officers and authorities.-(1) The State Government may for the purpose of this act appoint-
(ii)Assistant Consolidation officer;
(iv)Settlement Officer Consolidation);
(v)Assistant Director (Consolidation); and
(vi)Director of Consolidation.
(1)The Director of Consolidation and Assistant Director of Consolidation shall perform such duties and exercise such powers of supervision and superintendence over the works of the Settlement Officer (Consolidation), consolidation Officer, Assistant Consolidation Officer as may be prescribed.
(2)The Settlement Officer (Consolidation), the Consolidation Officer and Assistant Consolidation Officer shall exercise the power and perform the duties conferred or imposed upon them by or under this Act or the rules framed thereunder."
In exercise of power under section 42 read with section 44 of the U.P. Consolidation of Holdings Act, the State has delegated powers of district officers appointed as Asstt. Director to hear revision under section 48 of the Act by notification dated 6th August 1955. By a notification dated 22nd Nov 1956, published in the U.P. Official Gazette dated 8th Dec, 1956, all Deputy Directors Consolidation were authorised to discharge adjudicatory judicial functions under sections 26, 43 and 48 of the U.P.C.H. Act. By notification dated 21.11.1961, all Assistant Settlement Officers Consolidation were also empowered to perform functions of Settlement Officers Consolidation. By notification dated 29.1.1968, all the Addl. District Magistrates (Executive) of all the consolidation districts were delegated powers of Director Consolidation to exercise powers to decide revision under section 48 of the Act. By notification dated 21.11.1974, all Addl. District Magistrates were conferred powers of Deputy Director Consolidation to be exercised under section 48 of the U.P.C.H. Act. Similarly, the District Deputy Director Consolidation (District Magistrate) was also given powers to make appointment of Consolidation officer and Asstt. Consolidation officer in a vacancy not likely to exceed more than six weeks and Director Consolidation was given power to appoint these officers in case vacancy is likely to last for more than three months. Before coming into existence the Service Rules 1992, Director Consolidation of U.P. was the competent authority to make appointment of Asstt. Consolidation Officer. Thus from a survey of all notifications pertaining to delegation of judicial powers by the State Government to different officers of executive cadre, it is explicit that powers delegated to officers of executive cadre by the State i.e. revisional authorities which is the highest authority under the U.P.C.H. Act vests in the Addl. District Magistrates (Executives) who are also the members of the executive subordinate to political executive having no qualification of law or experience of law at par with members of judicial service. The State has conferred jurisdiction to decide revision under section 48 of the U.P.C.H.Act on Addl. District Magistrate. The Appellate authority under the U.P. Consolidation of Holdings Act is subordinate to Addl. District Magistrate and consolidation officers are much inferior in rank to all these three authorities. Under the U.P.Z.A. & L.R. Act, the power to try suits vests in Sub Divisional Officer/Asstt. Collector but in case of consolidation proceeding, the Settlement Officer Consolidation and appellate authority are in such rank and consolidation officer is subordinate to the same. The legislature has delegated powers of adjudication of title to such officers who are much inferior in rank so much so, even to the officers or authorities under the U.P.Z.A. & L.R.Act.
From a discussion made above pertaining to legislative history enumerated above, it is also clear that on the date the Constitution of India was enforced, it was the civil court, presided over by the members of judicial service, which had the jurisdiction to adjudicate upon the title to declare the rights of the parties. Even consolidation of Holdings Act was enacted in the year 1953 and the consolidation authorities were not competent to decide title in land and only the principal civil court was competent to adjudicate the matter. Similarly, while enforcing U.P.Z.A. & L.R.Act, the power to adjudicate upon title pertaining to Bhumidhari and Sirdari rights also vested in the civil courts. Only asami rights which was not of permanent tenure holders rights were to be decided by the Asstt. Collectors only but subsequently and gradually, the jurisdictions were conferred upon the officers of Executive cadre to decide title under the provisions of the U.P.Z.A. & L.R.Act and the U.P. Consolidation of Holdings Act. The officers including Asstt. Consolidation officers, Consolidation officers, Deputy Director Consolidation are officers performing various duties under the consolidation proceeding and are part of executive cadre. Asstt. Collector Ist Class In-charge of Sub Division is an officer taken on secondment from the executive cadre and their appointments were made mainly for the purposes of administrative work.
Recruitment/promotion and transfer of the officers working under the U.P.C.H. Act.
The State of U.P. has filed counter affidavit annexing therein the U.P.Rajasva Chakbandi Sewa Niyamawali 1992. From a perusal of the Niyamwali, it would appear that educational qualification for direct appointment in the post of Asstt. Consolidation officer is graduation only. The law degree is a preferential qualification only. Amended Rule 4 of the Niyamawali reveals that a person could be appointed as Asstt Consolidation officer by promotion to the extent of 50% by way of direct recruitment and 50% from amongst the Consolidators and Rectangulators having qualification of High School only. The promotion to the post of Asstt. Consolidation officer to the extent of 50% is made on the basis of seniority subject to rejection of unfit. As per amended Rules, the U.P.Rajsva Chakbandi Sewa Niyamawali (First Amendment) Rules, 1995 was made effective from Ist Jan 1994. It is worthy of notice that the qualifications of the consolidators and Rectangulators for being eligible for promotion is High School. The rule aforesaid further provides that the Consolidation officer shall be appointed only by 100% promotion from the cadre of Asstt. Consolidation officer. The rule also envisages training for a period of 4,1/2 months. It is further worthy of notice that all the Asstt. Consolidation officers are entitled to be promoted under the Rules as Consolidation officer and thereafter further as Settlement Officer Consolidation and Deputy Director of Consolidation in the hierarchical advancement. There is no direct recruitment to the cadre of consolidation officers and it could be filled by 100% promotion from the cadre of Asstt. Consolidation Officers who are competent authorities to decide title under the U.P. Consolidation of Holdings Act.
It clearly crystallises from the above discussion that none of the Consolidation authorities are having qualification of law nor are they trained at par with officers of judicial service to adjudicate such complicated matters mentioned above, while determining the title in land and declaration of rights of the parties. In connection with above, the State has also filed Annexure C.A. 1 by which details of training imparted to the Consolidation authorities have been divulged. The details of subjects taught in training mentioned in counter affidavit are as under:
1.Chain Survey and Plane Table Survey
2.Total Station Survey
3.C.P.C. 1908 in relation to sections 1,2,3,5,9,11,15 to 25, 27 to 33, 37 to 40, 51 to 64 and section 151 of the C.P.C. Order 6, Rule 17, Order 22, Rule 1,2,3, Order 32, Rule 1,3,13.
4.Criminal Procedure Code-Chapter I (definition), Chapter II (complete), Chapter 5, (Sections 41,44,46,56, 57), Chapter 6, Sections 62,66,70,79, 82, 83, Chapter 7, Section 93, chapter 9, Sections 125, 126, 127, 128. Chapter 10, Complete, Chapter 12 Sections 161 and 164.
5.Indian Penal Code- Chapter 4 section 82, 84, 96 to 106, chapter 6 section 121 and 124, Chapter 8, Section 9 Ka and section 10 complete. Chapter 11, Sections 217,218,219, 221, 332, 447.
6.Indian Limitation Act- Part 2 and 3.
7.Contempt of Court Act-sections 2,10,11,12,13,17,20 and 21.
8.Stamp and Registration Act- Chapter 1,24,6, and 7.
9.U.P. Land Revenue Act 1901- Chapter 1,2,3,4 and 9 (certain sections).
10.U.P.Z.A. & L.R.Act 1950- Chapter 1,7,8 and 10.
11.U.P.Z.A. & L.R. Rules- 115 (C), 115 (E)
12.Land Acquisition Act 1894- sections 4,6,9,10,11,17,18,23,28 and 30
13.U.P.C.H. Act 1953
14. Land Revenue Manual
15.Revenue Court Manual
17.Revenue Rules and certain Government Orders.
18. Constitution, Service Rules, Disciplinary proceedings
19.Finance and Audit etc.
It also transpires from the above that the basic law relating to adjudication of the title i.e. Evidence Act, Transfer of Property Act, Interpretation of statute etc. is conspicuous by absence in the syllabus of training being imparted to the Consolidation authorities. According to own showing of the State, 50% of the officers in the consolidation cadres are equipped with education upto only High School only. By this reckoning, it is amply clear that the officers charged with the duties of adjudicating the rights and titles of the parties have no qualification of law nor are being imparted any judicial training for exercising judicial functions for adjudication of title and rights.
From the above discussion, it can be squeezed that the appointments made by way of promotion from Consolidator and Rectangulators as Asstt. Consolidation officers for whom the qualification prescribed is High School as envisaged under the Service Rules, are not able to adjudicate the right in relation to complicated questions of title of immovable agricultural land and law relating to that. Even if a person who is appointed directly under 50% direct quota are also not having any qualification of law or judicial training simulating the standard of judicial training at par with the members of judicial service.
Whether consolidation/revenue courts are tribunals
Now I proceed to deal with the question what is ''Court', Tribunal and ''judicial function'.
Learned counsel for the petitioner canvassed that declaration or adjudication of title in the land (Agricultural land) is the function of the Court and court exercises judicial function in exercise of its sovereign power. The expressions ''Court' and ''judicial service' have been expounded in the Constitution of India. It was argued that by means of amendments made in the U.P.Z.A. & L.R.Act, the jurisdiction of civil court was assigned to officers of executive cadre who are not members of judicial service and their training and qualifications are also different from judicial officers and therefore, they cannot exercise sovereign judicial functions. The judicial power of adjudication of title must be exercised by the courts presided over by the members of judicial service and not by the members of executive cadre who are neither equipped with necessary qualification of law nor training or experience simulating the standard of training imparted to a judicial officer. Further the subsequent amendments made by the State Legislature by which the jurisdiction to decide title dispute was conferred to the executive officers exercising judicial powers of Revenue courts from civil courts who are wholly incompetent to decide the dispute be declared ultra-vires prospectively. Per contra, learned Addl. Advocate General quipped that the Consolidation authorities or authorities exercising the powers of adjudication of title in the agricultural land being presiding officers of the revenue courts cannot be deemed to be a court and instead, they shall be deemed to be tribunals and are subject to judicial review by the High Courts under Article 226/227 of the Constitution of India. He further urged that distinction between the powers of the Tribunal and the courts is very thin and State legislatures were fully competent in exercise of powers conferred by the Constitution to create tribunal by State Legislation separately other than the civil courts and those officers though are not having qualification of law and judicial training, exercise all judicial powers for adjudication of title as tribunals. He further urged that even though the officers are not having judicial qualification or training but since their orders are subject to judicial review under Article 226/227 of the Constitution, the Legislation enacted by the State Legislature was intra-vires and there cannot be any prospective or retrospective declaration of those Acts ultra-vires. It was further urged that the matter of creation of separate Revenue Judicial service was considered by the Government and it was decided that creation of separate cadre would entail huge amount of extra-budget and further creation of separate cadre for judicial work on consolidation side will consume much time in disposal of cases. He further urged that Consolidation officers are also imparted training of various branches of law matching the requirements of nature of duties and further the Government has contemplating refresher training programme for these officers with a view to reforming their judicial duties. He referred to paragraphs 4 and 5 of the supplementary affidavit of Mohd. Rafiq Siddiqui, Dy. Secretary, Revenue Department, U.P. Secretariat Lucknow. Learned Advocate General further referred to paragraph 6 of the affidavit and contended that, the matter was considered at prolix length and it was decided that instead of creating separate revenue judicial cadre, the cadre of officers already working in the department would be trained and groomed up for judicial work. It was further urged that the U.P. Consolidation of Holdings Act was enacted with a view to ensuring prompt and speedy disposal of such matters and to get over hardship and inconvenience of the General public in normal civil proceeding and if separate cadre is conceived or created for the purpose, the intention of the legislature in making enactment in the year 1953 would get defeated.
Now after coming to grips with the arguments of the counsel for the parties across the bar, it is expatiate upon whether the revenue courts established under the U.P.Z.A.& L.R.Act, could be treated as court or tribunal.
Article 227 of the Constitution of India runs as follows:
"227. (1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2)Without prejudice to the generality of the foregoing provision, the High Court may-
(a)call for returns from such courts;
(b)make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c)prescribed forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3)The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein;
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
It is explicit from a perusal of Article 227 of the Constitution that it uses both ''all courts" and ''Tribunals' implying there by that courts and tribunals are distinct. In order to consider this aspect as to what is court and what is tribunal, I feel called to refer to the first case dealing with the distinction between court and tribunal. The State of U.P. v. Ratan Shukla (AIR 1956 Alld page 258) is a decision in which this Court was seized of the question whether District Magistrate exercising executive powers conferred under Municipalities Act is a court or tribunal. This Court in paragraph 13 clinched the question in the following manner.
"Really there is a distinction between a court and a tribunal though some tribunals are also courts. A tribunal may be said to be an authority, which decides disputes while a court is a particular tribunal created as a court by a statute.
The criminal, civil and revenue courts are all created by statutes and they are the only courts. A tribunal deciding appeals under S. 160, Municipalities Act is a mere tribunal and is not a court. The Constitution distinguishes between courts and tribunals."
This matter was again considered by the Apex court in a decision in Hari Nagar Sugar Mills v. Shyam Sunder Rai, AIR 1961 SC 1669. In this Case, the Apex Court has laid down certain principles for creation of Tribunals which may be excerpted below.
"The word "Court" is not defined in the Companies Act, 1956. It is not defined in the Civil Procedure Code. The definition in the Indian Evidence Act is not exhaustive, and is for the purposes of that Act. In the New English Dictionary (Vol. II, pp.1090, 1091), the meaning given is:
"an assembly of judges or other persons legally appointed and acting as a tribunal to hear and determine any cause, civil, ecclesiastical, military or naval."
All tribunals are not Courts, though all Courts are tribunals. The word "Courts" is used to designate those tribunals which are set up in an organised State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which s disturbed. Judicial power according to Griffith, C.J. in Huddart, Parker & Co. Proprietary Ltd v. Moorehead means:-
"the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."
When rights are infringed or invaded, the aggrieved party can go and commence a querala before the ordinary Civil Courts. These Courts which are instrumentalities of Government, are invested with the judicial power of the State, and their authority is derived from the constitution or some Act of legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased, but they are almost always permanent and go under the compendious name of "Courts of Civil Judicature....."
The word ''court' has also been defined in Amar Chand v. Union of India (AIR 1973 SC 313 and in paragraph8 of the said decision, the Apex Court while dealing with the question whether a person is entitled to get benefit of section 4 of the Indian Limitation Act, observed that the word ''court' in Section 4 means a proper court which has jurisdiction to entertain the suit.
In Kihoto Holloham v. Zachillhu and others, 1992 SCC (Supp) Vol. 2 p 651, the Apex court was seized of the question relating to what is court and what is tribunal. In paragraph 98 of the said decision, the Apex Court held that all tribunals are not courts though all tribunals are courts. It is further held that the word ''court' is used to designate those tribunals, which are set up in areas for administration of justice. By the phraseology' by administration of justice' it has been held, is meant the exercise of judicial powers of State to maintain/uphold the right and to punish the wrong wherefrom there is infringement of rights or injury, the courts are there to restore vinculum juris.
"98. But then is the Speaker or the Chairman acting under Paragraph6 (1) a Tribunal? "All tribunals are not courts, though all courts are tribunals". The word "courts" is used to designate those tribunals which are set up in an organised State for the Administration of Justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the courts are there to restore the vinculum juris, which is disturbed...........
"99. Where there is a lis-an affirmation by one party and denial by another- and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court. In Associated Cement Companies Ltd. V. P.N.Sharma this Court said : (SCR pp. 386-87)
"...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 as a part of the State's inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under Rule 6(5) and Rule 6(6) is a part of the State's judicial power....There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding."
X x x x x x x x x
"109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Paragraph 6, the scope of judicial review under Articles 136, and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6would be confined to jurisdictional errors only viz, infirmities based on violation of constitutional mandate, malafide, non compliance with rules of natural justice and perversity."
Reverting to Hari Nagar Sugar Mills v. Shyam Sunder Rai, 1961 SC 1669, the matter at issue was considered by the Apex Court and in this case the Apex Court laid down certain principles for creation of Tribunals which may be exercised below.
"With the growth of civilisation and the direction of border life, a large number of administrative Tribunals have come into existence. These Tribunals have authorities of law to pronounce upon the valuable rights. They act in judicial manner and even on evidence on oath but they are not part of the ordinary courts of civil jurisdiction. They share exercise of judicial power of State but they were brought into existence to implement some administrative policies or to determine controversies arising out of same administrative law. They are very similar to the courts but are not courts."
In Hari Nagar Sugar Mill's case, the question was whether Central Government acted as Tribunal within the meaning of Article 136 of the Constitution of India when it passed an order in an appeal under section 3 of Article 111 of the companies Act. Majority view in this case was in affirmative.
Recently after the amendments in the Constitution of India, Articles 323 A and 323 B of the Constitution was added and Parliament by adding these provisions made it clear that Tribunals could be created for the subject matter mentioned under Articles 323, 323 A and 323 B of the Constitution. Article 323 A of the Constitution may be quoted below.
"323A. (I) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the government of India or of any corporation owned or controlled by the Government.
(2) A law made under clause (I) may-
(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(C) provide for the procedure (including the provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136 , with respect to the disputes or complaints referred to in clause (I);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) repeal or amend any order made by the President under clause (3) of article 371D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by; and the enforcement of the orders of, such tribunals.
(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force."
It envisages that Parliament, may by law, provide for adjudication or trial of any matter by the administrative tribunal, of disputes, and complaint with respect of recruitment and condition of service of the persons appointed in public service and posts in connection with the affairs of the Union or of State or legal or other authority within the territory of India or under control of Government of India or of any corporation owned or controlled by the government of India. Similarly, Article 323 B provides for appropriate legislature to make law to provide for adjudication or trial by Tribunal of any dispute complaint or offences with respect of or any of the matters specified in clause (2) with respect of which such Legislatures have power to make law. Article 323 B (2) (d) of the Constitution of India provides for land reforms by way of acquisition by the State of any estate as defined in article 31A of Constitution of India or of any rights therein or the extinguishments or modification of any such rights or by way of ceiling on agricultural land or in any other way. Now the Constitution makes it clear that competent legislature may create tribunals in the matters mentioned in article 323 B of the Constitution. It does not refer to adjudication and declaration of title in land. Article 323 B of the Constitution runs as under:
"(1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws.
(2) The matters referred to in clause (1) are the following, namely; -
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c ) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in article 31 A or of any rights therein or the extinguishments or modification of any such rights or by way of ceiling on agricultural land or in any other way,
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in Article 329 and article 329 A;
(g) production, procurement, supply and distribution of food-stuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;
(h) offences against laws with respect to any of the matters specified in sub clauses (a) to (g) and fees in respect of any of those matters;
(i) any matter incidental to any of the matters specified in sub-clauses (a) to (h),
(3) A law made under clause (1) may-
(a) provide for the establishment of a hierarchy of tribunals;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c ) provide for the procedure(including provisions as to limitation and rules of evidence)to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under article 136 with respect to all or any of the matters falling within the jurisdiction of the said tribunals;
(e) provide for the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal, if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate legislature may deem necessary for the effective functioning of, and for the speedy disposal of causes by, and the enforcement of the orders of , such tribunals.
(4) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
Explanation: In this article "appropriate Legislature", in relation to any matter, means Parliament or, as the case may be, a State Legislature competent to make laws with respect to such matter in accordance with the provisions of Part XI."
In L.Chandra Kumar v. Union of India, a Constitution Bench of the Apex Court considered the report of Malimat Committee relating to alternative mode or forum for dispute resolution system created by State called ''tribunals'. In paragraph 8.66, the committed observed as under:
"The overall picture regarding the tribunalisation of justice in our country is not satisfactory and encouraging. There is need for fresh look and review and serious consideration before exemption is extended to new areas or fields specifically if the constitutional jurisdiction of the High Court is to be simultaneously ousted not many tribunals satisfying the aforesaid tests can possibly be established."
In AIR 1963 SC 87 in which the Constitution Bench of the Apex Court was dealing with the question whether the Arbitrator appointed under section 10 A of the Industrial Disputes Act is a tribunal, it was held that "the fact that his appointment once made by the parties is recognised by S. 10 A and after his appointment he is clothed with certain powers and has thus, no doubt, some of the trappings of a court, does not mean that the power of adjudication which he is exercising is derived from the State and so the man testing determining the question about the character of an adjudicating body is not satisfied."
While reckoning with the matter relating to consolidation, the Apex Court in Mohd. Shakoor Mian v. Raj Mangal Mishra (1999) 7 SCC p 461 held in para 6 that the Consolidation authorities cannot be equated with regular courts. While specifying powers of the consolidation authorities, it was specifically pointed out in section 37-B that the Consolidation Authorities, while hearing any matter in dispute, shall have all such powers, rights and privileges which are available to a civil court in respect of the matters including enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise and issuing a commission to examine witnesses; or to compel any person to produce documents. The Consolidation Authorities were also vested with the power to punish a person guilty of contempt. In this case, the Apex Court was seized of interpretation of Sections 37 A and 37 B of the Bihar Consolidation of Holdings & Prevention of Fragmentations Act, 1956 which are quoted below.
"37-A. Authorities under the Act to be deemed courts of competent jurisdiction.- Notwithstanding anything to the contrary contained in any other law for the time being in force, the Director of Consolidation, the Deputy Director of consolidation, the Assistant Director of Consolidation, the Consolidation Officer and the Assistant Consolidation Officer shall be deemed to be courts of competent jurisdiction while hearing objections or appeals or deciding disputes under this Act.
"37-B. Authorities under this Act to have powers and privileges as are vested in a civil court in certain matters.- (1) The Director of Consolidation, the Deputy Director of Consolidation, the Assistant Director of Consolidation, the Consolidation Officer and the Assistant Consolidation Officer shall have all such powers, rights and privileges while hearing any matter in dispute as are vested in a civil court in respect of the following matters, namely,-
(a) Enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise and issuing a commission to examine witnesses;
(b) Compelling any person for the production of any document;
(c) Punishing the persons guilty of contempt.
(2) A summons signed by such officer may be substituted for and shall be equivalent to any formal process capable of being issued in any action by a civil court for enforcing the attendance of witnesses and compelling the production of any document."
Recently, the Apex Court in State of West Bengal v. Ashish Kumar Roy (2004 AIR SCW 6905), deliberated over the validity of West Bengal Land Reforms and Tenancy Tribunal Act to deal with dispute relating to under the specified Acts i.e. (1) West Bengal Estate Acquisition act, 1953, (2) West Bengal Land Reforms Act, 1955, (3) the Calcutta Thika Tenancy (Acquisition and Regulation) At, 1981; (4) The Wet Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975; and (5) the West Bengal Land Holding Revenue Act, 1979. In the ultimate analysis, the Apex Court declared the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 valid within the legislative competence to constitute a Tribunal under Article 323 B Sub-clause (d) of Clause (2) of the Constitution of India. The Apex Court while interpreting article 31 A of the Constitution of India, converged to the conclusion that the State can split a Tribunal for agrarian reform as defined in State of Kerala and another v. The Gwalior rayson Silk Mfg. (Wvg.) Co. Ltd Etc. (AIR 1973 SC 2734). In paragraph 28 of this judgment, paragraph 30 of the judgement in Kerala and another (supra) has been quoted and the same is abstracted below here in this judgement.
"30. The concept of agrarian reform is a complex and dynamic one promoting wider interests than conventional reorganisation of the land system or distribution of land. It is intended to realise the social function of the land and includes- we are merely giving, by way of illustration, a few familiar proposals of agrarian reform- creation of economic units of rural production, establishment of adequate credit system, implementation of modern production techniques, construction of irrigation systems and adequate drainage, making available fertilizers, fungicides, herbicides and other methods of intensifying and increasing agricultural production, providing readily available means of communication and transportation, to facilitate proper marketing of the village produce, putting up of silos, warehouses etc. to the extent necessary for preserving produce and handling it so as to bring it conveniently within the reach of the consumers when they need it, training of village youth in modern agricultural practices with a view to maximizing production and help solve social problems that are founding relation to the life of the agricultural community. The village man, his welfare, is the target."
The Apex court further held that Entry 18 in List II of the 7th Schedule as well as Article 323 B of the Constitution of India were or in any other way are wide enough to accommodate any other type of law which is intended for land reforms. The Apex court also held that tribunals dealing with dispute covering land reforms could be created by the concerned legislature observing that agrarian reforms is a very wide concept.
Regard being had to the above case-laws as well as the discussions made above, the question which falls for consideration before this Court is whether the power to adjudicate title in an immovable agricultural land which was already vested in the members of judicial service of the State presiding over the civil courts and also regard being had to the fact that mandate is enshrined in the Constitution for separation of judiciary from executive, the legislature is competent to legislate against the mandate of the constitution while taking away all the powers and delegating the same in the persons manning the executive Branch for adjudication of disputes relating to title of immovable property. The cases cited above does not deal with this question. It is not borne out from the facts of the above cases that in those cases also, the powers vesting in officers manning the judicial service were taken away and were conferred on officers of executive Branch. So far as question whether the consolidation courts as well as revenue courts are concerned, the legislature, it brooks no dispute that the legislature can create such courts under Entry 18 in List II of the 7th Schedule of the Constitution but in the facts of the case where after the Constitution was enforced in India, the powers vesting in the members of judicial services who are well qualified in law and are equipped with judicial training in the justice delivery system, could not be delegated to the executive branch who have no comparison with the trained judicial mind being ill-equipped in so far as qualification of law, judicial training etc. are concerned. In the above conspectus, this Court is of the view that such powers under the U.P.Z.A. & L.R.Act and the U.P. Consolidation of Holdings Act, earlier vested in judiciary presided over by the members of judicial service in the matter of adjudication of title in relation to agricultural land and cannot be conferred by legislature, to officers of executive cadre their action being one militating against the mandate of Article 50 of the Constitution of India which as has been held in numerous decisions of the Apex court, forms part of basic structure of the Constitution. It bears no repudiation as held in various decisions that all courts are tribunals but all tribunals are not courts. Even assuming that consolidation as well as revenue courts are tribunals under the U.P. Z.A.& L.R. Act as well as under the U.P. Consolidation of Holdings Act, the adjudication of title on Bhumidhari rights vests in courts and which could only be held by the members of judicial service.
RECRUITMENT TO JUDICIAL SERVICE - QUALIFCATION AND PROCEDURE-
Recruitment by Public Service Commission in consultation with the High Court.
In order to constitute Nyayik Sewa, the Governor in exercise of powers under Article 334 read with proviso to Article 309 of the constitution of India in consultation with the U.P. Public Service Commission and the High Court of Judicature has framed rules known as U.P.Nyayik Sewa Niyamawali, 1951.Rules 6,12, 15 and 18 of the said Niyamwali being germane to the point at issue are quoted below.
"6. Source of recruitment.- Recruitment to the service shall be made on the result of a competitive examination conducted by the commission."
X x x x x x x x x
"12. Academic qualifications.- (1) A candidate for recruitment to the service must be either-
(a) a Bachelor of Laws of a University established by law in Uttar Pradesh or of any other University of India recognised for this purpose by the Governor; or
(b) an advocate, Vakil or Pleader on the roll of, or entitled to practice in, the Court or Courts subordinate thereto; or
(c ) A Barrister of England or Northern Ireland or a member of the Faculty of Advocates in Scotland.
(2) He must possess a thorough knowledge of Hindi written in Devanagari script.
X x x x x x x x x x
15. Competitive Examination.- The examination may be conducted at such time and on such dates as may be notified by the Commission and shall consist of-
(a) written examinations in such legal and allied subjects, including procedure, and as maybe included in the syllabus prescribed under Rule 18;
(b) an examination to test the knowledge of the candidates in Hindi and Urdu; and
(c ) an interview to assess the all round student career of the candidates and their personality, address and general suitability.
X x x x x x x x x
"18. Syllabus.- The syllabus and the rules relating to the competitive examination shall be as in Appendix E provided that they may be amended by the Governor in consultation with the Commission and the Court."
It would thus transpire that the aforestated Rules clearly prescribe the academic qualification for a candidate for recruitment i.e. Bachelor of Law, or an Advocate/Vakil/Pleader entitled to practice in the Court or Courts subordinate thereto and the selection is prescribed through competitive examination and interview. The syllabus is enumerated in Appendix E the details of which are depicted below.
(1) The present day
(3) Law: Paper 1- Substantive Law
(4) Law: Paper II- Evidence and Procedure
(5) Law: Paper III-Revenue and Criminal
(6) Viva voce.
The further details about above papers are enumerated below.
(1) The Present Day- This paper is designed to test the candidate's knowledge of the reactions to what is happening in India and the world generally at the present day, particularly in the legal sphere and also his power of expression in English. Questions, the answers to which should be in essay form, will relate mainly to jurisprudence, international law neutrality, recent legislation, particularly Indian constitutional law and developments, especially on their legal aspect and so on, but will not be confined to them. Credit will be given both for substance and expression, conversely deduction will be made for bad expression, including faults of grammar, misuse of words, etc.
(2) Language- There will be one paper into two parts. A passage in English will be set and candidate will be required to translate it into the ordinary language spoken in courts using the Devanagari script. In the second part a passage in Hindi will be chosen or prepared by the Commission and after transliteration into both the Persian and Devanagari scripts will be lithographed.
The candidate will be required to transliterate the passage into the opposite script, taking as original whichever script he prefers time will be restricted in order to test fluency.
(3) Law: Paper I-Substantive Law- The question set will be restricted to the field covered by- The Law of Contracts; the Law of Partnership; the Law concerning easements and torts; the Law relating to transfer of property, including the principles of equity specially applicable thereto; the principles of equity with special reference to the Law of Trust and specific relief. Hindu Law and Mohammedans Law.
(4) Law: Paper II- Procedure and Evidence- The field will be covered by the Law of Evidence, the Criminal Procedure Code and the Code of Civil Procedure, including the principles of pleading. The questions set will relate mainly to practical matters, such as the framing of charges and issues, the methods of dealing with the evidence of witnesses, the writing of judgements and the conduct of cases generally but will not be restricted to them.
(5) Law Paper III- U.P.Zamindari Abolition and Law Reforms Act and Indian Penal Code.
(6) Via Voce- The suitability of the candidate for employment in the Judicial Service will be tested with reference to his record at school, College and University and his personality, address and physique. The questions which may be put to him may be of a general nature and will not necessarily be of an academic or legal nature.
Under articles 233,234,235 and 236, a member of Judicial service is required to possess certain requisite qualifications apart from judicial training.
Members of Executive Cadre- Procedure and qualification for recruitment in the executive cadre.
The procedure prescribed for selection in the Executive cadre is contained in U.P. Civil Services (Executive) Branch Rules 1941. The source of recruitment for this cadre is (1) through competitive examination conducted by the U.P. Public Service Commission, (2) by promotion of confirmed Tahsildar provided that Governor may in emergency sanction the appointment in temporary vacancy of Naib Tahsildar who have been approved for permanent vacancy in Tahsildar. The academic qualification for direct recruitment is that a candidate must hold degree of University established by law in U.P. B.A. or B.Sc degree shall be recognised for the purposes of direct recruitment. The Syllabus is mentioned in Appendix "C". The compulsory subjects are General English, Essay, General Hindu, General Knowledge, Elementary Maths. Law, it would appear is optional paper at Sl. No. 35 and 36 which includes, jurisprudence, Constitutional law, Law of Tort and Law of Bias. The Law second paper consists of General Principles of Law of Contract, Law of Indemnity, Grantee, Bailment, Pledge, Agency, Law of Sales of goods, Law of Partnership and Banking. The law third paper relates to International law.
As stated supra, the members of executive cadre such as Sub Divisional Officers etc who are competent to try suit under the U.P.Z.A.& L.R.Act are also open to be filled by way of promotion from Tahsildar who get entry into the service through competitive examination under U.P. Subordinate Revenue Executive Tahsildar Services Rules 1966. It may be noticed that source of recruitment in this regard is from Naib Tahsildar, Kanoongo Inspectors and Sadar Kanoongo. The recruitment of the post of Naib Tahsildar is governed by subordinate revenue executive Service Rule and source of recruitment is through competitive examination conducted by U.P. Public Service Commission and also by promotion from amongst the Kanoongo as well as promoted from amongst the collection Amins whose educational qualification as prescribed is intermediate from U.P. Board of High School and Intermediate Examination. It is also notice-worthy that 1/18thof the total vacancies by promotion are reserved for promotion from amongst the Collection Amins. In the Syllabus of the written examination for the post of Naib Tahsildar, subjects are English Composition, Hindi Composition, General Knowledge, Indian History, General Geography, Elementary Physics and Chemistry, Economics and viva voce. Similarly, for promotion from the other posts of supervisor Kanoongo, Amin etc. from where the recruitment to the post of Naib Tahsildar or Tahsildar is provided to be made, there is no mention of any qualification relating to law or any judicial training. It is also noticeable that the officers from these cadres are promoted to the post of Asstt. Collector who is vested with the jurisdiction to adjudicate upon title relating to agricultural land. Their promotions are not restricted to the posts of Asstt. Collector but they may be promoted as Addl. Commissioner or members of Board of Revenue upon those officers the statute confers power to adjudicate upon title dispute also under the U.P. Z.A. & L.R.Act.
From the above discussion, it is obvious that the officers appointed in Executive Branch who are assigned the work of discharging judicial functions while presiding over revenue as well as consolidation courts have neither any basic qualification of law nor have any judicial training at par with members of the judicial service.
Whether members of cadre of executive officers are in the role of prosecutor as well as Judge.
There is another very significant and glaring aspect to be reckoned with. The aspect is that in every suit instituted under section 229 B for declaration of right and title and other suit n relation to agricultural land, the State Government through Collector and Gaon Sabha are always arrayed as Opposite party. It may be recalled here that after abolition of Zamindari in U.P. all estates vested in the State of U.P. and the State provided them with certain rights as stated supra. By this reckoning, the State of U.P. is a necessary party in the adjudication of title. It needs hardly be said that the Asstt. Collector or collectors who are Incharge of Division or the Collector of District are also executive officers having their hands full of administrative duties. Besides they also exercise various administrative powers under the U.P.Z.A. & L.R.Act in land, such as land which are under the management of Gaon Sabha or local authorities, still vests in the State. In a dispute pertaining to these properties, quite often in suits or proceedings rights are claimed against the State of U.P. and Gaon Sabha on the ground that such land did not vest in the Gaon Sabha. Besides, all allotment of land made for purposes under the U.P. Z.A. & L.R.Act require approval of allotment as the case may be, by Asstt. Collector Incharge of Sub Division/Asstt. Collector vested with the jurisdiction to adjudicate upon rights in suits arising out of U.P.Z.A. & L.R.Act. In case allotment is challenged before them or before the Collector, they adorn the robe of both prosecutors and Judge. In proceeding arising under U.P. C.H. Act also, the contribution of every tenure holder is compulsorily taken for public purposes, which ultimately vests in the State of U.P./Gaon Sabha by the consolidation authorities. In number of disputes between State and the tenure holders where State claims rights to have already vested in the State of U.P. under the U.P.C.H.Act or while claiming that the tenure-holders rights stand extinguished under the U.P.Z.A. & L.R.Act, and vest in the State, a Judge in true sense un-swayed by the interest or influence of the Government is required to adjudicate upon the dispute. Here, it is quite often noticed that in a dispute between State and the Tenure holders, these executive officers also work as prosecutor, or a party as well as Judge which the law and our Constitution does not countenance.
On the question where the State Government or Gaon Sabha or both are contesting parties against individual, the adjudication of dispute by officers from executive branch has always been viewed with concern and anxiety on the principles "Memo debit esse judex in propria causa ( No one should be a judge in his own cause or that the person should be impartial and without bias). In various decisions, the doctrine of Nemo debit essee judex in propria causa has received churning by the Apex Court and few of decisions in which the Apex Court has dwelt upon the doctrine may be noticed here. In Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425, in para 4, it was observed by Hon. Apex Court as under:
"The principle, says Halsbury, memo debit essejudex in causa propria sua precludes a justice who is interested in the subject matter of a dispute from acting therein. In our opinion there is and there can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of the parties."
In g. Nageshwar Rao v. A.P.S.R.T. Corporation, AIR 1959 SC 308, the Constitution Bench in para 30 after considering the law and various rulings on the point, observed as under:
"The aforesaid decisions accept the fundamental principles of natural justice that in the case of quasi judicial proceedings, the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute........This is on the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
In Gullappli Nageshwar Rao v. State of A.P. AIR 1959 SC 1376, it was observed in para 6 as under:
"The principles governing the doctrine of bias vis-à-vis judicial tribunals are well settled and they are (i) no man shall be a judge in his own cause, (ii) justice should not only be done but manifestly and undoubtedly be seen to be done. The two maxims field the result that if a member of a judicial body is subject to a bias (whether financial or other) in favour on against any party to a dispute, or in such a position that a bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal."
In M/S J. Mahapatra and Co. v. State of Orissa, AIR 1984 SC 1572, it was observed as under:
"Memo Judex in causa sua, that is no man should be a judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on the principle that the proceedings in Court of law are open to the public except in those cases where for special reasons the law requires or authorise a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceedings but also to quasi judicial and administrative proceedings."
In Ranjit Thakur v. Union of India, (1987) 4 SCC 611, it was observed in para 15 as under:
"The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have though that bias was likely and is whether respondent was likely to be disposed to decide the matters only in a particular way."
In para 16 it was observed that minimal requirement of natural justice is that Court or Tribunal is composed of impartial person acting fairly and without bias and in good faith.
Before embarking upon the above subject, it would be useful to quote the observations of the Apex Court in Bidi Supply Company v. Union of India (1956 SCR 267.
"The heart and core of a democracy lies in the judicial process, and that means independent and fearless Judges free from executive control brought up in judicial traditions and trained to judicial ways of working and thinking. The main bulwarks of liberty and freedom lie there and it is clear to me that uncontrolled powers of discrimination in matters that seriously affect the lives and properties of people cannot be left to executive or quasi executive bodies even if they exercise quasi judicial functions because they are then invested with an authority that even Parliament does not possession. Under the Constitution, Acts of Parliament are subject to judicial review particularly when they are said to infringe fundamental rights, therefore, if under the Constitution Parliament itself has not uncontrolled freedom of action, it is evident that it cannot invest lesser authorities with that power."
In exercise of sovereign power, the judicial function necessarily involves element of detachment in subject matter in the authority or the court having competence. Allocation of State powers of adjudication and declaration of rights to the executive officers and the persons having no qualification or training at par with judicial service is highly arbitrary and against public policy and thus it is rightly urged that a separate cadre for declaration or adjudication of title by the officers presiding over revenue courts or consolidation courts is a necessity. The matter can also be seen from another angle. It has been held by the Apex Court in several pronouncement of the Apex court that democracy is a basic feature of the Constitution. The sovereign power also notionally vets in the People of India who adopted, enacted and gave to themselves the Constitution of India and enforced the rule of law in India. It is common knowledge that more than 70% people of India are attached, governed or concerned with agricultural sector. In case, urban people have been given a foolproof justice delivery system for getting their rights adjudicated and for getting the wrongs committed either by the State undone through civil courts manned by Presiding officers who are well equipped with law, legal knowledge and judicial training, the people living in rural areas also expect and are entitled to get their disputes adjudicated by experienced competent persons in the matter of law having qualification and judicial training cannot be left to fend for themselves at the mercy of officers of executive cadre who have no qualification of law and are ill-equipped in so far as judicial training, or legal knowledge, knowledge of law or qualification of law are concerned and whose transfer, posting, promotion etc. is undertaken by executive i.e. council of ministers and not legislators.
The scope of judicial review to be exercised by High Court as well as Supreme court against any decision of court or tribunal is very limited and that cannot be a excuse for permitting such officers of executive cadre to exercise judicial power of the court merely on the ground that power of judicial review vests in the High Court of the Supreme Court. As has already been mentioned above, the revenue courts and consolidation courts are required to deal with all matters relating to civil rights including, evidence Act, Transfer of Property Act, Testamentary, non-Testamentary Succession law relating to mortgage, different rules of interpretation including golden Rules, Mischief Rules, law relating to devolution, applicability and non-applicability of precedents, interpretation of various substantive laws, revenue laws including the North-west Frontier Rent Act 1873, the North-west Frontier Rent Act 1881, the North-west Province Tenancy act 1901, the Awadh Rent Act 1886, the Agra Tenancy Act, 1926 and the U.P. Tenancy Act 1939. The literal rule, golden rule, mischief rule of interpretation are pertaining to pleading in exercise of sovereign power to adjudicate the dispute relating to immovable agricultural land. This Court is of the view that powers of the Court cannot be delegated to the executive/administrative officers who act as prosecutor and at the same time wear the mantle to act as a Judge. Besides judgements delivered by these Executive officers exercising judicial function of the court become final and civil courts and revenue courts are barred to look into the matter as contemplated under section 49 of the U.P.C.H.Act. The finding recorded therein are finding of fact and cannot be reopened except on very exceptional ground that too under the writ jurisdiction for judicial review as scope is very limited.
Separation of judiciary from Executive under Art. 50 of the Constitution.
The theory of separation of powers largely connotes some basic ideals; firstly that one individual should not be associated with more than one organ of the government; secondly that one organ should not meddle with the other organs; and thirdly that one organ should not carry out the functions assigned to others.
In Article 50 of the Constitution of India is engrafted the mandate that "The State shall take steps to separate the judiciary from the executive in the public services of the State." The concept of separation of judiciary from executive has its genesis in the principles that (1) a Judge who tries a case must not be in any manner connected or interested with the prosecution and (2) he must not be in direct administrative subordination to any one connected with prosecution or defence. To be precise, in case an officer trying a suit is dependent for his transfer, posting promotion or other prospects of the service upon the executive or the persons who may influence the final outcome of the matters he may not be impartial officer. The concept of separation of judicial functions from executive functions involves elimination of the above two evils.
For the first time in the year 1793, Warren Hasting was the first protagonist of the doctrine of separation of power by regulation 1793 by which the revenue officers were deprived of their judicial powers but in 1871 again, collectors were entrusted with magisterial powers combining in them the functions of administrator, prosecutor and Judge- all in one. This position endured almost till the Constitution was enforced in India. The members of constituent assembly while engrafting Article 50 of the Constitution in the directive principles, mandated the State to separate the judiciary from the executive. The State has taken steps accordingly in the year 1973 by enacting new Criminal Procedure Code, 1973 by which the judiciary was separated from executive under the doctrine of separation of powers but the exercise of separate was left half-way inasmuch as the entire adjudicatory functions on revenue side whereby declaration of title in a suit is still being discharged by the revenue as well as consolidation courts, are still subsisting in the hands of the officers of executive cadre.
In Keshavanand Bharti's case reported in AIR 1973 SC 1461, thirteen-Jude-Bench of the Apex Court has held that separation between legislature, executive and judiciary is a basic structure of the Constitution of India. Paragraph 302 of the aforestated decision is quoted below.
"302.........The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic forms of Government.
(3) Secular character of the constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution."
This Court agrees with the arguments of Sri R.P.Gupta, learned Amicus-curie as well as learned counsel for the petitioner that any amendment if made in the Acts, which is against the basic structure of the Constitution may be unenforceable and void and is liable to be declared ultra-vires. Learned Addl. Advocate General canvassed that the doctrine of separation of judiciary from executive falls in the field of directive principles of State Policy which is part of Chapter IV of the Constitution and is therefore unenforceable by virtue of Article 37 of the Constitution of India and as such separation of judicial function from executive control cannot be enforced by a court of law.
This controversy was resolved by the Apex Court in a judgment in Minerva Mills Ltd and others v. Union of India (1980 SC (1) p 789). The Apex court held that merely because directive principles are not justiciable it does not follow that they are in any way subservient or inferior to the fundamental rights. The directive principles imposes an obligation on the State to take positive action of creating such conditions in which there will be an egalitarian society with justice so that individual liberty etc. will become a cherished value and dignity of the individual a living reality not only for number of persons but for the entire people of the country. It will thus be seen that directive principles have a very high place in the constitutional scheme and it is only in the frame-work of the socio-economic structure envisaged in the directive principles that the fundamental rights are intended to operate. It is then that they will become meaningful and significant for the millions of poor and deprived lot. It is not correct to say that under our Constitution, the directive principles must yield place to the fundamental rights. Both fundamental rights and directive principles are in fact equally fundamental and courts have therefore in recent times tried to harmonise them by importing directive principles in the construction of the fundamental rights. The Apex Court declared aforesaid amendment by which Sub sections (4) and (5) in Article 368 of the Constitution were inserted, unconstitutional and void on the ground that it damages basic structure of the constitution which goes beyond the amending power of the parliament. The State legislature acted illegally and arbitrary in transferring jurisdiction vested in the civil courts presided over by officers of the judicial services to the executive cadre for adjudicatory functions in suits including suit for declaration of rights. It is worthy of notice that after the Constitution was enforced, the jurisdiction of adjudicatory function under U.P.Z.A. & L.R.Act as well as under Consolidation of Holdings Act vested in the members belonging to judicial service and thereafter it was gradually transferred to the officers of executive cadre to exercise judicial power against the mandate of the Constitution.
As has already been discussed above, the fundamental rights and directive principles of state policy are complementary and supplementary to each other. The directive principles form a fundamental feature and socio-conscience of the Constitution which enjoins upon the State to implement these directive principles. These directive principles thus provide policy and guidelines and the end of socio-economic problems and Articles 14 and 16 are means to implement the policy to achieve ends sought to be promoted by the directive principles. So far as courts under the U.P.Z.A.& L.R.Act and under the U.P.C.H.Act are concerned as there is no apparent inconsistency between the directive principles contained in Chapter IV and the fundamental rights mentioned in Chapter III of the Constitution, there is no difficulty in putting harmonious construction which advances the object of the constitution. In view of lay laid down by the Apex Court in various cases including State of Kerala v. V.M.Thomas 1976 (1) SCR 906 =1976 SC 9490, Pathumma v. State AIR 1978 SC 771, His Holiness Keshwanand Bharti v. State of Kerala 1973 SC 6461, State of Bombay v. R.M.D.Chamar Bauwala, 1957 SC 699, Fatehchand Himmat Lal v. State of U.P. AIR 1977 SC 1825, Delhi Development board Horticulture Employees Union v. Delhi Development Board AIR 1992 SC W 616, AIR 1996 SC 180 I feel called to hold that the directive principles of State policy are also fundamental which constitutes stairs to climb the high edifice of socialistic State and fundamental rights which under Article 14 of the Constitution are means through which one can reach the top of the edifice. Article 50 of the constitution of India, which is one of the important directive principles of the State policy, may be seen from another angle also. The apex Court has recognised various rights, included in right to life under Article 21 of the Constitution. Those rights are rights to go abroad (AIR 1967 SC 1836), right of privacy (1975 SC 1378), right against solitary confinement (AIR 1978 SC 1675), right against bar fetters (AIR 1978 SC 1514), right of livelihood (AIR 1978 SC 1548), right to speedy trial (AIR 1979 1360), right against handcuffing (AIR 1980 SC 1535), right against delayed execution, (AIR 1983 SC 361), right against custodian violence (AIR 1983 SC 378), right against public hanging (1986 SC 467), right of doctor's assistance (1989 SC 2039), right of shelter (AIR 1990 SC 630).
The Apex Court has expounded the horizon of Article 21 of the Constitution. All the rights deprivation of which affects the life are included in Article 21 of the Constitution.
Considering the matter of adjudication of right and title by Consolidation and Revenue courts, all the tenure holders (Agriculturist) whose rights is affected in case, a lis or dispute is raised, it may also give rise to a cause of action of deprivation of livelihood or deprivation of agricultural land which may be the only source of livelihood of an agriculturist. A majority of tenure holders (agriculturists) are in a position to earn their livelihood any how from agricultural land. Any dispute raised about their title either by the State or by any individual or Gaon Sabha, requires early disposal of the disputes whose livelihood may be affected by litigation relating to agricultural land, entitles the person to get adjudication of their rights by the qualified officers who have legal experience or training in law, rather than getting adjudication of their rights by an officer having no qualification of law or no judicial training or experience in the field of law.
The other decisions in which the Apex Court quintessentially asserted that the justice should be administered through the courts and that the Judges must be independent of public officers are Subhash Sharma's case reported in AIR 1991 SC 631, The First All India Judges Association's case (AIR 1992 SC 165), Union of India v. Delhi High Court Bar Association ((2002) 4 SCC 275, Gowhati High Court v. Kuladhar ((2002) 4 SCC 524, State of Maharashtra v. Labour Law Practitioners' Association (AIR 1988 SC 1233), ((2002) 10 SCC 159. In the following cases, the Apex Court dwelt upon the aspect of separation of judicial functions from Executive and Legislative functions in view of provisions of Article 50 of the Constitution of India. Following cases also support the view I am taking i.e.State of Bihar v. Bal Mukund Shah ((2000) 4 SCC 640), Clariant International Ltd. V. Securities and Exchange Board of India, ((2004) 8 524, State of Haryana v. National Consumer Awareness Group, ((2005) 5 SCC 284), Salem District Bar Association, Tamil Nadu v. U.O.I (2005 AIR SCW 3827)
Regard being had to the above discussion, this Court is of the view that separation of judiciary and executive under Article 50 of the Constitution of India so far as agricultural land is concerned is also to facilitate or give effect to Article 14 and 21 of the Constitution of India. Our Constitution conceives of a justice delivery system whose officers are fearless untrammelled by any political, governmental or executive influence in any matter so that the persons whose livelihood depends upon agricultural land may also get justice from such officers who are well qualified and have judicial training like members of judicial service under the superintendence and control of the High Court and not from the body or cadre of officers who are subordinate to the executive and whose transfer and posting, appointment etc are in the hands of the political executive at the State. In the present scenario of democracy when elected representatives exercise entire control over the State Administrative machinery including fiscal control over large State funds at their disposal, with power to distribute largesse in their constituency through the executive officers including collector and Asstt. Collectors etc and who have enough clouts in the corridors of State Executives that is, justice delivery system relating to agricultural land is severely affected at the very level.
The questions whether the power of State i.e. judiciary, executive and legislation could be exercised by which authority and what was the intendment while enacting section 50 of the Constitution of India, were considered by the Apex Court in All India Judges Association v. Union of India (1993) 4 SCC 288. Para 7 of the decision being relevant is excerpted below.
"We cannot however, help observing that the failure to realize the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the judgment. The judicial service is not service in the sense of ''employment'. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State."
It leaves no manner of doubt that members of judiciary exercise sovereign judicial power of State and they are holder of the public office in the same manner as the members of the council of Ministers but the officers of executive subordinate to political executive cannot be exercise the sovereign function.
The Apex Court in (1992) 1 SCC at p. 119 i.e. All India Judges' Assn. V. Union of India, in paragraph 20, again marked distinction between the nature of work of executive officers and judicial officers which they are called upon to discharge. Paragraph 20 is quoted below.
"There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge. The work of the judicial officers is usually sedentary while that of the executive officers involves a lot of physical movement. This is particularly so in the lower cadres of both the services. In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical. Experience is an indispensable factor and subject to the basic physical fitness with growing age experience grows."
In paragraph 29 of the aforestated decision, it was observed as under:
"Unlike the administrative officer, the judicial officer is obliged to work for long hours at home. When he reserves a judgement he has usually to prepare the same at his residence. For that purpose, he has to read the records as also the judicial precedents cited by counsel for the adversaries. Even otherwise with a view to keeping himself upto date about the legal position he has to read judgements of his own High Court, other High Courts and of the Supreme Court. He has also to read legal journals."
In paragraph 30 of the aforesaid decision, the Apex Court observed as under:
"Law Books, law reports and legal journals are indispensable to a judicial officer. They are in fact his tools and in case a junior officer has to discharge his duties satisfactorily he has to get acquainted with these. His ability to perform his duty to a considerable extent depends upon his reading habit and devoting a sizeable working time to reading all this literature. Reading habit is indispensable to a judicial officer and possession of a small library of one's own helps generation of the proper reading habit."
It was brought to the notice of this Court that no such facilities are available to executive officers or consolidation officers to adjudicate upon the dispute.
The Apex Court has dealt with the distinction between judiciary and executive and legislature and has also dwelt upon the aspect of parity between judiciary, political executive and legislature. It has been held that subordinate staff of administrative executive which implement the decisions of the political executives cannot e equated with judiciary. The relevant observations of the Apex Court are excerpted below.
"However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive, which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive."
Para 8 of the said decision being relevant is also excerpted below.
"This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the Judges in want of essential accoutrements and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself."
It is thus clear that judicial functions exercised by members of judicial service in justice delivery system cannot be delegated for adjudication of title in immovable property i.e. agricultural land to the subordinate staff of executive who constitutes executive under the Constitution of India.
I cannot help recalling the sordid situation obtaining in the courts dealing with revenue cases. These courts were brought into existence with the avowed object of speedier disposal of title cases. I feel constrained to take judicial notice of the fact that the executive officers including collectors also remain absorbed in the administrative works more and more and devote less and less time to the judicial works. The administrative machinery at the district level can be seen to be involved in tackling drought, flood and other calamities, election duty which involves supervision and conduct of election throughout the year be that Panchayat Raj Election, local bodies election, Vidhan Sabha or parliament election etc. besides being involved in VIP duties. Executive officers are constrained to attend on political leaders, Ministers, State Ministers, and also superior officers in the V.I.P. duties besides being required to deal with law and order situation. Demolition drives and all other matters throughout their career. This affects the disposal of pending cases and disposal rate pending at the end of these officers is also too low for the above reasons.
In a recent case in writ petition no. 63740 of 2005 Udai Narain Singh v. State of U.P. and others, the State of U.P. was called upon to produce Rules and Regulations if any or draw attention of the Court to any other provisions by which timing for sitting of the revenue court or consolidation courts was prescribed or any quota has been fixed. Having straddled over the matter for long, the Court was ultimately intimated that no fixed hours or fixed quota is envisaged for these courts. In the ultimate analysis this Court was constrained to issue a general mandamus to the State of U.P. to fix timing for sitting and quota for disposal of cases. Pursuant to the general mandamus, a circular has been issued. It is spelt out in the said circular that there are some instructions by which some quota for revenue court was now fixed but there is no Act or Rule for these courts for the purposes of timings quota and other guidelines relating to disposal of suits or proceedings for adjudication of title. In this perspective, I would not scruple to say that in case the Executive has not taken any steps towards reorientation of these courts by prescribing fixed hours or fixed quota for the last about 40 or 50 years as the case may be, this is indicative of the fact that the members of executive has been wholly callous towards the plight of poor agriculturists who remain enmeshed for years in state sponsored litigation in flagrant violation of the aims and objects for which these courts were established. The directions issued therein are abstracted below.
"In view of the above, there is felt need that functioning of the courts created under the statutes i.e. under the U.P.Z.A. & L.R.Act, the U.P. Land Revenue Act and the U.P. Consolidation of Holdings Act and also other courts created under various other Acts dealing with the disputes pertaining to agricultural land, should be regulated simulating the standard of a regular court of law so as to appear to be acting judicially.
"1. That these courts in compliance of a string of decisions rendered by the Apex court aforestated, shall abide by the instructions contained in Circular issued by this Court on Administrative Side in so far as it is quoted above in the body of this Judgement by issuing appropriate circular/directions etc.
2. That the Government shall prescribe minimum quota for disposal of cases in a month and fix days and time for sitting of revenue courts as well as consolidation courts so as to provide speedier and quicker disposal of cases on revenue side consistent with the aims and objects of the statute.
3. That the concerned authorities aforestated shall initiate appropriate steps forthwith in the form of issuing Government orders or circulars as the case may be."
Inspite of mandamus issued and inspite of the fact that Board of Revenue has issued a circular in compliance of the directions of the court on 6.10.2005, the judicial work has not yet commenced in revenue as well as consolidation courts.
For the aforesaid reasons, I feel called to say that the Constitution has already mandated to create a separate independent justice delivery system by Article 50 of the Constitution of India, which constitutes soul of the Constitution. In this context, Seven Judge Bench of the Apex court in S.P.Gupta v. Union of India AIR 1981 SCC (Supp) p 87 held as under in para 27 of the judgement is necessary to be referred which is quoted below.
"The questions are of great constitutional significance affecting the principle of independence of the judiciary which is a basic feature of the constitution and we would therefore prefer to begin the discussion by making a few prefatory remarks highlighting what the true function of the judiciary should be in a country like India which is marching along the road to social justice with the banner of democracy and the rule of law, for the principle of independence of the judiciary is not an abstract concept but it is a living faith which must derive its inspiration from the constitutional charter and its nourishment and sustenance from the constitutional values. It is necessary for every Judge to remember constantly and continually that our Constitution is not a non-aligned national character. It is a document of social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State, to transform the status quo ante into a new human order in which justice, social economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The judiciary has therefore a socio-economic destination and a creative function. It has to use the words of Glanville Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice.
It was further observed by the Apex Court as follows:
"Where the contest is between those who are socially or economically unequal, the judicial process may prove disastrous from the point of view of social justice, if the Judge adopts a merely passive or negative role and does not adopt a positive and creative approach. The judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a pro-active goal orientated approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the Constitution and who are imbued with the constitutional values."
The question of great constitutional significance affecting the principles of separation of judiciary from executive which is the basic feature of the Constitution and would therefore prefer to begin discussion for making a few prefatory remarks highlighting what the true function of the judiciary should be in country like India which is marching along the road to social justice with banner of judiciary and rule of law.
Creation of separate Judicial Revenue Cadre to Preside over Revenue and Consolidation Courts.
The next question to be considered is whether State can establish separate revenue cadre for judicial work to preside over revenue as well as consolidation courts to decide matter relating to title in view of prevailing situation in the revenue courts which are manned by executive officers.
In the Constitution of India, Chapter VI deals with the subordinate courts and appointment of persons to be, and the posting and promotion of district judges as well as other members of the judicial service. Articles 234,235,236 and 237 being one dealing with the appointment and conditions of judicial services are quoted below.
"234. Appointment of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State."
"235. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."
"236: In this Chapter- (a) the expression "district judge" includes judges of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge; (b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge."
"237. The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relating to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modification as may be specified in the notification."
The above-mentioned provisions make it explicit that Governor by public notification may create separate judicial cadre in exercise of power under Article 237 of the Constitution of India. U.P. Judicial officers Service Rules, 1960 makes it clear that the cadre of revenue officers was created for doing judicial work on revenue side only. The basic qualification of those officers as prescribed in Rule 10 of Rules 1960 was the degree in law of a university established by law in U.P. or any other University recognised for this purpose by the Governor but the recruitment to this cadre was stopped in the year 1967 though the Rules, 1960 still exist. By Government order dated 29th Sept 1997, to facilitate the policy of separation of judiciary from executive with the approval of the High Court, such judicial officers were recognised as member of the judicial service. The Government Order dated Sept 29,1967 is quoted below.
Chief Secretary to Government, U.P.
Appointment (c) Department Dated Lucknow,
Subject: Separation of the Judiciary from the Executive.
I am directed to refer to the High Court's letter no. 19038, dated October 28,1966 containing the views of the Court on the question of separation of Judiciary from the Executive. Further though was given to this matter and a Committee was set up to examine the details of the proposal. Government have carefully considered the report of the Committee, and, in pursuance of the recommendations made by it, have decided to bring about a more complete separation of the Judiciary from the Executive in the public services of the State with effect from October 2,1967. Accordingly, a notification is being issued under Article 237 of the Constitution. The scheme of separation will be implemented in the manner indicated below:
(1) ADMINISTRATIVE CONTROL AND ITS EXERCISE:
All members of U.P. Judicial Officers' Service whose names are given in the Annexure except the eight Additional Commissioners shown at numbers 1 to 6 and 8 and 9 will be placed under the administrative control of the High Court from October 2,1967. They will form a separate wing under the High Court and will not be merged with the cadres of the U.P. Civil Service (Judicial Branch) and the U.P. Higher Judicial Service. It is hereby clarified that notwithstanding Section 17 (5) Cr.P.C. the High Court will exercise its administrative control over Additional District Magistrates (Judicial) and other Magistrates belonging to the said service, under Article 235 of the Constitution, through the District and Sessions Judge. The Additional District Magistrate (Judicial) who are already vested with all the powers of the District Magistrate will continue to exercise those powers in relation to Judicial Magistrates and Munsif Magistrates, while District Magistrates will continue to exercise those powers in relation to Judicial Magistrates and Munsif Magistrates, while District Magistrates will continue to exercise similar powers in relation to the Executive Magistrates and Special Railway Magistrates. IN respect of Sections 192 (1) and 528 (2) Cr.P.C. occasions may arise when a District Magistrate may have to transfer a case wrongly instituted in the Court of an Executive Magistrate to the Court of a Judicial Magistrate or, in a converse situation, an Additional District (Judicial) may have to transfer a case to an Executive Magistrate, but these powers will, as a matter of convention, be exercised by the officers concerned only in consultation with their counterparts. The Police will continue to send I.P.C. cases (including applications for remand and final reports under section 169 Cr.P.C. in respect of such cases) to the Judicial Magistrates and other cases to Executive Magistrates. The same distribution will be observed in respect of complaint cases and if a complaint case is received in the Court of a Magistrate contrary to this distribution action should be taken under sections 192 or 526 of the Cr.P.C.
2. The Judicial officers will be subordinate to the Additional District Magistrate (Judicial) who, in turn, will be subordinate to the District and Sessions Judge and through him to the High Court, Regular leave upto six weeks will be granted to these officers by the High Court. Leave exceeding this limit will be sanctioned by Government as in the case of other officers of the Judiciary. Entries in the Character Rolls of Judicial Officers will be made by the Additional District Magistrate (Judicial), District and Sessions Judge and the High Court while entries in the rolls of the Additional District Magistrate (Judicial) will be given by the District and Sessions Judge and the High Court. Cases relating to the efficiency bars of these officers will be dealt with by the High Court and they will be competent to take a final decision on them. Promotion of Judicial Officers to the post of Additional District Magistrate (Judicial) and of the latter to the post of Additional Commissioner will be made by Government in consultation with the High Court.
(2) DISPOSAL OF REVENUE CASE WORK:
Under the existing arrangement all suits and proceedings under the U.P. Zamindari Abolition and Land Reforms Act (and allied Acts), the U.P. Land Revenue Act, and under other miscellaneous Acts triable by Collector or Assistant Collectors as well as sales of immovable property ordered under section 68 of the Code of Civil Procedure are dealt with by Judicial Officers. The Judicial officers who work as Magistrates will cease to do these cases from October 2,1967.This will be handled by the Sub Divisional Officers and other Deputy Collectors or such Judicial Officers as are obtained on deputation from the High Court from time to time for the purpose. High Court have agreed to lend the services of Judicial Officers for revenue work vide their letter no.C-783, dated September 7,1967. All Judicial Officers who are to deal exclusively with criminal case work under the control of the High Court will immediately refer any revenue cases pending in their courts to the Collectors concerned who will arrange to transfer them, in due course, to the Courts of Sub Divisional Officers or Judicial Officers posted for revenue case work.
X x x x x x x x
(4) EFFECT OF SEPARATION ON LAW AND ORDER ARRANGEMENTS:
with the transfer of Judicial officers to the control of the High Court, they will no longer be available to the District Magistrates for law and order duties arising from day to day as at present. It will, therefore, be necessary to make alternative arrangements to meet such emergencies. While some arrangements are being made to enable District Magistrates to tackle law and order problems, situations may arise in which the proposed steps may not be found to be adequate. To cope with such eventualities, as already agreed to by the High Court in their letter No. C-783, dated Sept 7,1996, the District Magistrate can, in cases of urgent and pressing necessity when the other resources at his disposal are, in his view, inadequate avail of the services of the judicial Officers posted in the district with the approval of the District and Sessions Judge who will, in due course, report the matter to the High Court for their information. The services of Judicial Officers obtained on deputation from the High Court for dealing with revenue casework can also be utilised by District Magistrates in meeting difficult law and order situations. For this purpose, it will be necessary to continue the magisterial powers of the Judicial officers even when they are on deputation with Government for dealing with revenue case work, consultation with the District and Sessions Judge for using the services of such officers in connection with the maintenance of law and order will not be necessary.
(5) FUTURE RECRUITMENT OF JUDICIAL OFFICERS:
After October 2,1967, no further recruitment of Judicial Officers will be made and normal wastage in their cadre will be made good by the recruitment of an equal number of Munsifs for the disposal of criminal case work and Deputy Collector for the disposal of revenue case work. In this way, in course of time, the cadre of Judicial officers would disappear and ultimately criminal cases under the Indian Penal Code at the Magisterial level, would all come to be dealt with by Munsif Magistrates while revenue case work will gradually be taken over by Deputy Collectors.
X x x x x x x x
(8) STAFF, BUILDINGS AND OTHER MISCELLANEOUS MATTERS:
To begin with, the staff at present working with the Judicial Officers and the Additional District Magistrates (Judicial) will be placed on deputation under the control of the District Judges with effect from October 2,1967. Government in the Revenue Department will consider in consultation with the Judicial Department the feasibility of absorption of this staff in the ministerial cadres of the Civil Courts. Until alternative accommodation can be provided, these officers will continue to use the present accommodation provided for them, even after separation. In respect of record room, inspection of records, issues of copies, statutory forms, contingency, petition writers, court hours, holidays and other matters not specifically dealt with herein, the existing arrangements and orders shall continue until further orders."
By notification dated Sept 30,1967, the Government constituted a separate U.P. Judicial Officers' Service followed by further notification by which it was provided that services shall be distinct and separate from the U.P. Civil Service (Judicial Branch). The matter was taken in challenge by the members of State Judicial Service in Dinesh Chand Srivastava v. State of U.P. (AIR 1977 Alld page 310) in which a Division Bench of this Court upheld the notification for creating separate judicial cadre. The matter travelled to the Apex Court where the judgement of the Division Bench received affirmance (1995 (1) JT SC 180). The substance of what has been held by the Supreme Court is excerpted below.
"13. The point for consideration before the High Court as also here is whether the Governor could transform the existing U.P. Judicial Officers Service to be a Judicial Service of the State alongside the existing U.P. Civil Service (Judicial Branch). The following passage from Chandra Mohan's case was put across to contend that distinct service could not be created:
" Article 237 enables the Governor to implement the separation of the judiciary from the executive. Under this Article, the Governor may notify that Articles 233, 234,235 and 236 of the Constitution will apply to magistrates subject to certain modifications or exceptions; for instance, if the Governor so notifies, the said magistrates will be come members of the judicial service, they will have to be appointed in the manner prescribed in article 234, they will be under the control of the High Court under Article 235 and the can be appointed as District Judges by the Governor under Article 233 (1). To state it differently, they will then be integrated in the judicial service which is one of the sources of recruitment to the post of district judges. Indeed, Article 237 emphasises the fact that till such an integration is brought about, the magistrates are outside the scope of the said provisions. The said view accords with the constitutional theme of independent judiciary and the contrary view accepts a retrograde step."
14. Reliance on Chandra Mohan's case is misplaced as we view it. The above passage talks of an instance of action but is by no means exhaustive. The State is not bound to adopt the course of making magistrates become members of the existing Judicial Service. They may obviate the procedure to be followed in making appointments in the manner prescribed under Article 234, State is not bound to cause any integration so that the Magistrates may become members of the existing Judicial Service. No bar anywhere could be pointed out to us by learned counsel for the appellant/petitioners by which the State could be prohibited from creating a parallel judicial service in which the magistracy of the kind involved herein was transformed. As said before, the Constitution recognises and it is plain otherwise, that Magistrates perform judicial functions when trying offences under the Indian Penal Code and other statutes, empowered as they are under the Code of Criminal Procedure. There could thus be no bar to confining the promotional avenues of the Magistrates to be uptil the Court of the Additional Sessions Judge and none other. The grievance of the members of the U.P. Civil Service (Judicial Branch) is highly over-blown when it is scanned to discover that they without functioning as Criminal courts and without gaining any experience in that field, get on to become Additional District & Sessions Judges merely on the experience gained on the civil side. This discloses that what is needed at that stage is judicial temper. Their attempt to thwart the promotional benefit given by the impugned notification to the Judicial Magistrates in becoming Additional Sessions Judges is on the face of it unequal in comparison to the service benefit obtained by the personnel of the U.P. Civil Service (Judicial Branch). The entire matter has to be viewed on the touchstone of Article 50 of the Constitution. In separating judiciary from the executive, the personnel of judicial service so retrieved by separation have to be given a place as a class as members of the judiciary, either by integration in the existing judicial service or by transformation into a separate judicial service. There apparently is no other way to place them. Articles 233 to 237 would have to be viewed in this light. On doing so, we go to agree with the High Court that the impugned notification of March 12,1975 and the others consequential notification stood validly issued by the Governor under Article 237 of the Constitution and that the erstwhile Magistrates, members of the U.P. Judicial Officers Service, became members of a separate Judicial Service of the same name intended to be promoted as Additional Sessions Judges only in the post meant for the Additional District and Sessions Judge and to stay apart alongside the U.P. Civil Service (Judicial Branch). We also view that the said service was validly created."
By notification 1967, recruitment to the posts of judicial officers was stopped as policy of constituting separate judicial cadre was approved by the Apex Court, which apart from U.P. Civil Service (Judicial Branch) has been recognised by the Apex Court.
The State has filed three counter affidavits. In the first counter affidavit, the State Government in para 10 averred that after completing considerable period of time on the post of Asstt. Consolidation officer they are promoted on the post of Consolidation officer who adjudication upon objections of the parties at various levels of adjudication and promotion is made in accordance with the procedure prescribed. It is further averred that at the time of adjudicating upon objections of the parties they also get proper assistance from the bar and on the basis of assistance of the Advocates, the orders are passed. It has also been averred in paragraph 11 of the counter affidavit that the Settlement Officer Consolidation and Deputy Director Consolidation are appointed from amongst the executive cadre of the State and selections are made through U.P. Public Service Commission and appointment is also made through promotion from consolidation service. It has been admitted by the State that Consolidation authorities discharge their functions and powers under direct control of the State of U.P. There is a separate directorate and as such they are not the members of subordinate judiciary and not under the direct control of the High Court. In paragraph 13, the State has fairly admitted that as primary object of U.P. Consolidation of Holdings Act is to consolidate the scattered holdings of the tenure holder, for providing them a cultivable land after getting land of tenure holders consolidated and after notification under section 52 of the U.P.C.H.Act the land is under control of the revenue authorities of the State. In paragraph 15, the State has taken the plea that Settlement Officer Consolidation and the Deputy Director Consolidations are conferred powers under the U.P.C.H.Act which is not contrary to the spirit of what is enshrined under Article 50 of the constitution. So far as allotment of chaks from scattered plot is concerned, it could be done by consolidation staff upto the level of Asst. Consolidation officer, but declaration of title is entirely different matter. The State of U.P. tried to justify their action in delegating power of adjudication of rights to the executive officers on the ground that such authorities entrusted with the functions and duties of adjudication are spread out in large number both in the service of State as well as Central Government and cited the instance of the U.P. Trade Tax Act, Income Tax Act and Revenue Department where they are acting as Presiding officer. It is further averred that such system is in vogue even before independence and is still continuing till today and the officers working in those departments are not necessarily required to possess degree of law.
In a recent judgement, in Union of India and Anr v. Delhi High Court Bar Association and others (2002) 4 SCC 275, the Apex Court while considering the validity of the Debt Recovery Tribunal Act and the Rules framed there-under has dealt with the question of enacting law constituting Banking Tribunals. In paragraph 25, the Apex Court held as under:
"Such Tribunals, whether they pertain to income tax or sales tax or excise or customs or administrative, have now become an essential part of the judicial system in this country. Such specialised institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such tribunals are not an effective part of the justice delivery system, like courts of law. It will be seen that for a person to be appointed as a Presiding officer of a tribunal, he should be one who is qualified to be a District Judge and, in case of appointment of the Presiding Officer of the Appellate Tribunal he is, or has been, qualified to be a Judge of a High Court or has been a member of the Indian Legal Service who has held a post in Grade I for at least three years or has held office as the Presiding officer of a Tribunal for at least three years. Persons who are so appointed as Presiding Officers of the Tribunal or of the Appellate Tribunal would be well versed in law to be able to decide cases independently and judiciously.
According to averments in the counter affidavit, the qualification and training provided to the officers of consolidation department are sufficient for efficiency in discharge of functions and duties by the Consolidation officers/authorities as they are not judicial officers as enshrined under Article 235 of the constitution and they are not under the control and supervision of the High Court. The substance of what has been stated in the first counter affidavit, is that the officers exercising judicial functions in consolidation courts are not equipped with the required qualification or training which in my opinion is essential for adjudication of title and declaration of rights relating to agricultural land. The State has fairly conceded in paragraph 13 of the counter affidavit that the primary duty under the Consolidation of Holdings Act is to consolidate the scattered holding of the tenure holder. The Consolidation of Holdings Act was enacted for this very purpose as is clear from the object. It has already been discussed above that 50% of the staff manning this hierarchy who rise up to become Asstt. Consolidation officer and Consolidation officer, are equipped with qualification of High School and they move on in the hierarchy to become Settlement Officer Consolidation and Deputy Director Consolidation which is the final authority of the fact and law under the statute. The paradigm quoted by the State in the counter affidavit by citing the instance of Trade Tax, Income Tax Tribunals etc. cannot be invoked for application in the present case inasmuch as under those Acts, the taxes are collected for some other purposes. It does not adjudicate the title in immovable properties. This Court has already dealt with this aspect relating to revenue courts and the authorities exercising judicial powers as revenue courts in the preceding paragraphs. It is admitted fact that prior to notification under section 4, the authorities under the U.P.Z.A. & L.R.Act, U.P. Land Revenue Act and other connected Acts and power of revenue courts is exercised by executive officers and again after notification under section 52, the power is exercised by the same authority.
There is a very significant aspect which requires consideration and it is that in case of cancellation of an instrument whether it is sale deed, gift deed, Will relating to an agricultural property, civil courts presided over by the officers belonging to judicial service well equipped with the knowledge, qualification and training of law, are seized of powers to decide intricate questions posed to them in the matter but in case, the same instrument requires adjudication and declaration as void as well as for declaration of rights in the same agricultural land, after ignoring those documents which may be void under law on plaint allegations and other pleadings, the agriculturists are constrained to seek redress in the revenue courts or consolidation courts being presided over by members of executive cadre below the rank of executive as discussed above, who have no experience knowledge, training and qualification of law.
By an application moved by the State on 23rd Oct 2003, State of U.P. Specifically stated in paragraph 2 that the State took time for reconsideration of the matter at the highest level in the government and the matter thereafter was posted for 21st October 2003. In paragraphs3 and 4 of the affidavit of Atul Sinha, it is averred that the Government discussed the matter with the learned Advocate General and considered the question involved in the writ petition and decided to hold full-fledged discussion with secretary of concerned department and Hon Revenue Minister. It was further averred that the matter at different level with the Hon. Revenue Minister is likely to take time for final decision in the matter to be taken by the Government and issues involved in the case and sought time for the same. Subsequently by a supplementary counter affidavit of Mohd. Rafiq Siddique, Dy. Secretary Revenue Department, U.P. Secretariat Lucknow decision taken by the Government has been intimated as contained in paragraphs 4,5 and 6. It has been informed through this affidavit that the matter of creation of separate Rajsva Judicial Service Cadre was considered and it was decided that since creation of separation cadre will involve huge amount of extra budget and therefore, Government decided not to create separate Rajsva judicial cadre on the grounds (1) that the consolidation work at the level of the Asstt. Consolidation officer with thorough knowledge of field book, survey and measurement is necessary and most of cases are decided on the spot, (2) employees having working experience are more effective for the purposes of consolidation scheme and (3) the creation of separate cadre for judicial work on consolidation side will consume much more time in disposal of cases and lastly (4) the efforts are made at the level of the Asstt. Consolidation officer to decide the cases on the basis of conciliation. Photo copy of proceedings signed by Principal Secretary, Revenue was produced before the Court by learned Standing counsel. From a perusal of the proceedings aforestated, it would transpire that decision has been taken not by the political executive recognised by law as discussed above but by members of the Executive subordinate to political executive authorised to implement the policy decision of State. The matter was considered by Sarva Sri Dev Saran Singh Yadav, Secretary Revenue U.P.Shasan, Rajan Shukla, Special Secretary, U.P.Shasan Lucknow, S.A.A.Rizvi, commissioner and Secretary, Board of Revenue , R.S.Saxena, Consolidation Commissioner, U.P. Shasan Lucknow, R.N.Tripathi, Addl. Commissioner, Consolidation U.P. Lucknow, Chandrika Prasad, Deputy Director consolidation, Headquarters, B.P.Gaur Addl. Legal Remembrancer U.P.Shasan Lucknow and U.P.Singh, Deputy Director Consolidation Gorakhpur. These officers except Sri B.P.Gaur are cadre members of the executive subordinate to executive who under the Constitution are charged with the duty of enforcing the policy decision taken by the political executive which are recognised as executive under the constitution as held by the Apex Court in a decision discussed above. In paragraph 6 of the supplementary counter affidavit, it has been stated that instead of creating separate cadre, the cadre already working in the department will be drawn for judicial work. The legislature has enacted special law i.e. U.P. Consolidation of Holdings Act with a view to ensuring prompt and speedy disposal of such matters to get over the hardship and inconvenience by the General public in the normal civil proceeding and in case any separate cadre is created the entire intention of the legislature will be defeated. Having considered the pleas raised by the Government in the affidavits and supplementary affidavits aforesaid, the Court is of the view that all the pleadings made by the State are unacceptable and do not commend to me for acceptance and it appears to me that these pleas have been set up as an expedient excuse for not creating separate judicial cadre for adjudication of rights on revenue side or consolidation side. It has not been repudiated by the Opposite parties that the Consolidation of Holdings Act was enacted to consolidate the fields for the benefits of small tenure holders for rapid agricultural development. It was never intended by the legislature to assign powers of adjudication of title to these authorities who are not qualified for the purposes of adjudication of title in immoveable property. The experience of consolidator and Rectangulators in the matter of measurement, field book and survey, as claimed by the government to be of consequence as it facilitates easy and expeditious resolution of disputes, is in my opinion wholly irrelevant for the purposes of exercise of judicial functions of adjudication of title. Here, we are not concerned with preliminary measurement and survey for allotment of chak made by the consolidation subordinate authorities. What is of consequence here is the adjudication of rights and title of agricultural holdings. For this purpose, the Asstt. Consolidation officer has not been given any competence under the Act to decide any rights raising dispute by the rival parties. His knowledge of field book and survey and measurement is not relevant for the title. The experience in this matter is wholly irrelevant for the purposes of deciding the title. The other grounds that it will entail huge expenditure are too frivolous and flimsy to be reckoned with. The exercise of judicial adjudicatory function is an exercise of sovereign function of the state and State under the Constitution of India is bound to provide foolproof mechanism by way of separate judicial cadre for revenue cases for providing Citizen of India the competent and qualified officers to exercise judicial functions which cannot be exercised by a cadre which is subordinate to executive and cannot be acquainted with law. The State in the counter affidavit laid much stress on the work of Asstt. Consolidation officer. Under the Scheme of the U.P. Consolidation of Holdings Act, as already stated, initially, the Asstt. Consolidation Officer had not been assigned any adjudicatory function and as such the appointment on the post of the Consolidation officer or Settlement Officer consolidation or for that purpose, the Deputy Director Consolidation by way of promotion from the cadre of Asstt. Consolidation officer is nothing but to create a cadre consisting of such persons having no concern with the adjudication of judicial function to adjudicate the title in the land.
In this connection, decision of the Apex Court in All India Judges' Association (1992) 1 SCC 137 may be noticed. In paragraph 53 of the said decision, the Apex Court observed as under:
"53. We would like to point out that dispensation of justice is an inevitable feature in any civilised society. Maintenance of law and order require the presence of an efficient system of administration of criminal justice. Under the civil code, court fee is realised under the Court Fees Act. For some time demand to abolish it has been made but the States have abandoned the idea on account of the demand by the States of compensation from the Centre in case of abolition of court fee. Court fee is not a tax and is a fee as has been held by a Constitution Bench of this Court in Secretary, Government of Madras, Home Department v. Zenith Lamp and Electrical Ltd. In paragraph 29 of this judgement Sikri, C.J. speaking for this Court pointed out: (SCC pp.169-70, paras 29 and 30).
"It seems to us that the separate mention of ''fees taken in court' in the entries referred to above has no other significance than that they logically come under entries dealing with administration of justice and courts. The draftsman has followed the scheme designed in the Court Fees Act, 1870 of dealing with fees taken in court at one place. If it was the intention to distinguish them from fees in List II, Entry 66, surely some indication would have been given by the language employed. If these words had not been separately mentioned in List I, Entry 77 and List II...
It seems plain that ''fees taken in court' are not taxes, for if it were so, the word ''taxes' would have been used or some other indication given. It seems to us that this conclusion is strengthened by two considerations. First, taxes that can be levied by the Union are mentioned in List I from Entry 82; in List II taxes that can be imposed start from Entry 45. Secondly, the very use of the words ''not including fees taken in any court' in Entry 96 List I, and Entry 66 List II, shows that they would otherwise have fallen within three entries. It follows that ''fees taken in court' cannot be equated to ''taxes'. If this is so, is there any essential difference between fees taken in court and other fees? We are unable to appreciate why the word ''fees' bears a different meaning in Entry 77 List I and Entry 96 List I or Entry 3 List II and Entry 66 List II. All these relevant cases on the nature of ''fees' were reviewed in Indian Mica and Micanite Industries Ltd v. State of Bihar by Hegde J, and he observed: ( SCC p. 241, para 11).
''From the above discussion, it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable co-relationship with the services rendered by the Government. In other words, the levy must be proved to be a quid pro quo for the services rendered. But in these matters it will be impossible to have an exact co-relationship. The co-relationship expected is one of a general character and not as of arithmetical exactitude."
In para 54 of the aforestated decision, the Apex Court observed as under:
"54. It is not our intention to raise a dispute on this aspect. We adverted to these authorities and the views of this Court to bring support for the review that what is collected as court fee at least be spent on the administration of justice instead of being utilised as a source of general revenue of the States. Undoubtedly the income from court fees is more than the expenditure on the administration of justice. This is conspicuously noticeable from the figures available in the public in the Ministry of Law and Justice."
This Court feels constrained to say that the State is earning huge amount by way of court fee and it does not commend to me for acceptance that creation of a separate judicial cadre would be a burden on the exchequer of the State. In my opinion, denial to create a separate judicial revenue service on the ground that it would entail extra burden on the exchequer, is a denial by the State authorities as the State, which is under a duty to provide foolproof justice delivery system to render justice to its citizens through competent and qualified members of Revenue judicial service. In my considered view, refusal to create separate revenue judicial service for adjudication of dispute of title in the land, which was already in vogue after enforcement of Constitution of India in Uttar Pradesh, is a refusal against public policy and against rule of law, which also perpetuates exercise of arbitrary powers by officers of executive branch discharging such functions.
The administration of justice by competent and qualified officers by creating separate Revenue Judicial Service is the requirement of law as mandated by the Constitution under Article 50 of the Constitution and State cannot go against basic structure of the Constitution of India.
In view of above discussion, issues 1,6 and 7 are decided in affirmative and it is held that function of the authorities under the U.P. Consolidation of Holdings Act for adjudication of title and declaration of rights in relation to agricultural land is a judicial function and a separate revenue judicial service should be constituted as mandated by Article 50 of the Constitution of India by the State of U.P. under Articles 235, 236 and 237 of the Constitution of India under the superintendence and control of the High Court. Issue Nos. 3,4 and 8 are decided in affirmative and it is held that mandate of the Constitution of India is to create a separate revenue judicial service untrammelled from the control of the members of the executive and it requires further separation by constitution of a separate judicial cadre for adjudication of title and declaration of rights in agricultural land being performed by executive officers while manning revenue courts under the U.P.
Z.A.& L.R. Act and courts under the U.P. Consolidation of Holdings Act.
As a result of foregoing discussion made above, the writ petitions aforestated succeed and are allowed on the short question that judgements/orders therein are bereft of reasons and that the impugned judgement/orders passed by consolidation authorities do not, by any reckoning, simulate the standard of a judicial order. A writ of mandamus is issued to State of U.P. to take steps to crate a separate Revenue judicial service to work as Presiding officer in the revenue courts in which dispute of title in Bhumidhari is involved, to hear, try and decide suits, appeals at the first appellate stage and second appellate stage. The members of such Judicial revenue cadre may also work as Presiding Officer in the courts to perform adjudicatory functions relating to disputes arising under sections 9 and 12 and 21 of the U.P.C.H. Act as also at the appellate as well as revisional stage. This will be permanent cadre interchangeable and inter-transferable from consolidation to the revenue side and vice versa.
In view of the above discussion, it is ordered that in-
(1) Writ Petition No. 13384 of 2003, impugned order dated 11.11.2002 passed by Deputy Director Consolidation (Annexure 8 to the writ petition) is quashed and revisional authority is directed to consider the entire materials on record as well as subsequent events affecting the rights of the parties after giving opportunity to adduce evidence of hearing to the parties who are at liberty to raise all question of law and fact available to them and as raised in this court or revisional courts.
(2) Writ Petition No. 53754 connected with writ petition no. 42882 of 2002, the orders/judgments impugned dated 26.8.2002, 9.9.2002 and 17.9.2002 are quashed and revisional authority is directed to decide the matter afresh after reckoning with the rival claims of the parties and giving them due opportunity of hearing and shall assign reasons for his conclusions in accordance with law.
(3) In so far as Writ petition no. 63741 of 2005 is concerned, though the order passed by Deputy Director Consolidation does not enumerate any reason for setting aside the exparte order dated 24.3.2005 and that by the impugned order dated 12.9.2005, the revisional authority issued direction to consider the case of the parties on merits, I am of the view that in the facts and circumstances of the case, the interest of justice would be best attained if rival claims of the parties may be considered on merits as opposite party is claiming herself to be widow of Ram Murti deceased and in consequence, claims mutation in the plots in question. Since order passed in favour of the petitioner was passed after issuing proclamation but notices were not issued to Smt. Sharda Devi, it is directed that the writ petition be disposed of with the direction to the Consolidation officer to decide the claims of the parties on merits in accordance with law and after affording opportunity of hearing.
(4) Writ Petition No. 63949 of 2005. In this writ petition, it is necessary to give a condensed account of the facts. From the record it is clearly borne out that after considering the arguments of the learned counsel for the petitioner and learned Standing counsel and on perusal of the record application dated 5.8.2000 filed by Opp. party to recall order dated 13.1.2000 which was barred by time was allowed by order dated 5.7.2004 but without recording any reasons and without application of mind. The delay in filing application was also not condoned and appellate court was wholly incompetent to pass order without condonation of delay. The revisional court erred in law in dismissing the restoration application to recall the order vide order dated 23.8.2004 and revisional order dismissing the revision dated 7.6.2005 are liable to be quashed. In consequence, writ petition succeeds and allowed and impugned orders dated 28.8.2004 and 7.6.2004 are quashed and matter is remitted to Settlement officer consolidation to consider the restoration application of Opp. party on merit in accordance with law and pass appropriate orders by a speaking order assigning reasons for conclusions.
(5) Writ Petition No. 4674 of 2003- In this case learned counsel for the petitioner urged that appellate court decided the appeal without application of mind and without recording any reasons. The cases of rival parties were not considered. The order was passed allegedly in the interest of justice. This order was set aside by Deputy Director Consolidation on the ground that the appellate authority has not applied its mind and ordered the matter to be remanded to Settlement Officer Consolidation. After considering the arguments of the learned counsel for the parties and also considering the materials on record, this Court is of the view that under the U.P. Consolidation of Holdings Act, if an appeal is preferred before the appellate authority, the appellate authority is bound to consider the rival claims of the parties. Non-application of mind and recording no reasons in support of the judgment pronounced by the appellate court is highly unwarranted and arbitrary exercise. Such types of orders are quite often being passed by the consolidation authorities. The revisional authority rightly set aside the order. In view of the above, the writ petition is disposed of finally directing the appellate authority to consider and decide the appeal in accordance with law after giving opportunity of hearing by a reasoned and speaking order.
Besides the above, in the conspectus of discussion made in the body of the judgment, the Court feel called to issue following writs-
(A) A writ of mandamus is issued commanding the State of U.P. to take immediate steps to create separate permanent revenue judicial service cadre for performance of judicial functions in courts discharging judicial functions under the U.P.Zamindari Abolition & Land Reforms Act, 1950 as well as under the U.P. Consolidation of Holdings Act 1953 in the suits and other proceedings arising out of U.P.Z.A. &L.R.Act in which dispute of title or matter affecting the rights of a tenure holder in Bhumidhari land is involved for adjudication in suits first appeal and second appeal/revision as well as all proceedings arising from sections 9,11,12, 21(2) and 48 of U.P. Consolidation of Holdings Act for adjudication of dispute affecting the rights of tenure holder (Bhumidhari). The qualification and appointment of members of such service shall be at par with members of judicial service and shall be imparted judicial training consistent with the standard of training of members of State Judicial Service under the control of the High Court.
(B) It is further directed that the members of judicial Revenue cadre so created by the State shall work as Presiding officers in the Revenue Courts as well as in the Consolidation courts whose services will be inter-transferable and inter-changeable. Such cadre shall be created as early as possible within a period not exceeding one year and for a period of one year or till creation and appointment of members of judicial service whichever is earlier, the present arrangement shall continue to hold good.
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