Karnataka High Court
State Of Karnataka vs Emerald Haven Estates Ltd on 20 July, 2018
Author: S G Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.23635/2018(GM-CPC)
BETWEEN:
1. STATE OF KARNATAKA
FOREST, ECOLOGY AND
ENVIRONMENT DEPARTMENT
M.S.BUILDING
BENGALURU-560 001.
KARNATAKA STATE
REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. CHIEF CONSERVATOR OF FORESTS(TERRITORIAL),
CHAMARAJANAGAR CIRCLE
GOVERNMENT OF KARNATAKA
SULTAN SHARIFF CIRCLE
SATYAMANGALAM ROAD
CHAMARAJNAGAR-571 313.
KARNATAKA STATE.
3. CONSERVATOR OF FORESTS &
DIRECTOR BRT TIGER RESERVE
GOVERNMENT OF KARNATAKA
SULTAN SHARIFF CIRCLE
SATYAMANGALAM ROAD
CHAMARAJNAGAR-571 313.
KARNATAKA STATE.
2
4. DEPUTY COMMISSIONER,
(CHAMARAJNAGAR CIRCLE),
DEPARTMENT OF REVENUE
GOVERNMENT OF KARNATAKA
CHAMARAJNAGAR
CHAMARAJNAGAR-571 313.
KARNATAKA STATE.
... PETITIONERS
(BY SRI.M.B.PRABHAKAR, SPL. GOVT.ADV.)
AND:
EMERALD HAVEN ESTATES LTD.,
HAVING ITS REGISTERED OFFICE AT:
RENAISSANCE REGALIA, 95,
6TH MAIN ROAD, 15TH CROSS
MALLESHWARAM, BENGALURU-560 003.
REPRESENTED BY ITS SPECIAL OFFICER
M.R. MURALI.
... RESPONDENT
(BY SRI.S.VIJAYA SHANKAR, SR.COUNSEL FOR
SRI.S.B. MATHAPATI & SRI. G.K.DESHPANDE , ADVS.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
ENTIRE RECORDS IN MISC NO.937/2017 ON THE FILE OF
THE COURT OF XXII ADDITIONAL CITY CIVIL AND SESSION
JUDGE, BENGALURU.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 02.07.2018, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
3
ORDER
Petitioners are before this Court under Article 227 of the Constitution of India assailing the order dated 28-04-2018 passed in Misc. No.937/2017 by the XXII Additional City Civil and Session Judge, Bengaluru.
2. The brief facts of the case are:
The petitioners had issued a notice dated 16-12-2015 proposing to hold an enquiry under Section 99 of the Karnataka Forest Act, 1963 (for short 'the Act') read with Rule 69 of the Karnataka Forest Rules, 1969. Annexure-A to the writ petition is the enquiry notice dated 16-12-2015 issued to the respondent indicating the respondent to produce the following documents:
You are instructed to produce the following original or certified documents related to the lands in question which are in your custody or power:
(i) the complete records including how have acquired these lands, whether through any lease indentures, assignment deeds etc., regarding the 4 said Reserved Forest lands in Chamarajanagar district in the State of Karnataka and the documents to show your rights to continue in said lands.
(ii) the details of lease rent paid in respect of the said lands;
(iii) the details of timber-value paid by you in respect of trees removed from the said lands; from the beginning of lease, trees removed from the lands, bonus received from the Government in respect of certain species, transit permits issued by the Forest department and your applications under the Karnataka Preservation of Trees Act, 1976 (Karnataka Act No.76 of 1976) and the Rules thereunder; and
(iv) the details of any other land parcels under your occupation in Chamarajanagar district in the State of Karnataka and how you acquired.
The said notice dated 16-12-2015 came to be challenged before this Court in W.P.No.41187/2016. This Court by its order dated 16-03-2017 quashed the notice dated 16-12-2015 and all subsequent proceedings. The petitioners-State, being 5 aggrieved by the said order filed Special Leave to Appeal (C) No.18889/2017 before the Hon'ble Supreme Court, wherein the Apex Court passed the following order on 14-11-2017:
" The present dispute boils down ultimately as to whether the respondent's lands are in fact part of a reserved forest or whether they are covered under de-notified areas under notifications by the then State of Mysore. In order to determine the factual controversy as to whether the respondent's lands are indeed denotified lands or whether they are actually covered by the said forest notification of 1896 and 1901 of the State of Mysore, we relegate the parties to the District Judge, Bangalore.
The respondents will file their claim petition within a period of four weeks from today. The petitioner-State will respond within a period of four weeks thereafter. The District Judge will then determine the aforesaid question and will return a finding which will then be sent to this Court within a period of six months' thereafter. The matters are adjourned until the District Judge's finding reaches this Court.
Liberty to mention, in addition".6
The Hon'ble Supreme Court by its above order nominated the District Judge to determine the aforesaid question and return a finding to the Apex Court within a period of six months. The question referred for determination is as to whether the respondent's lands are in fact part of a reserved forest lands or whether they are covered under the denotified areas under
the notifications by the then State of Mysore?.
3. In pursuance of the above order of the Hon'ble Supreme Court, the respondent herein filed claim petition before the District Judge i.e., City Civil and Session Judge, Bangalore which is registered as Miscellaneous No.937/2017. In response to the notice, the petitioners filed detailed objections to the claim petition. Thereafter, the District Judge proceeded to record the statements on behalf of the parties. The respondent, during the course of enquiry sought to mark the photocopy of handwritten proceedings of the Government of His Highness of Maharaja of Mysore dated 31-01-1894 7 (Annexure-F to the writ petition) and a photocopy of the agreement dated 24-06-1957 (Annexure-G to the writ petition) as exhibits. Petitioners objected to those documents being marked in the proceedings on the ground that those documents are inadmissible under the provisions of Indian Evidence Act, 1872. The petitioners contended that the documents produced are not copies of the original and do not contain the original signature or otherwise certification with regard to proceedings dated 31-01-1894. According to the petitioners, they are neither primary nor secondary evidence. Therefore, they are inadmissible in law. With regard to the agreement dated 24-06-1957 is concerned, the petitioners contended that it is not even stamped and does not bear the signature. According to the learned counsel for the petitioners both the documents are photocopies.
4. The respondent contended that the said two documents are secondary evidence in law. With regard to agreement dated 24-06-1957, it was contended that it was duly certified 8 by the District Forest Officer, Mysore Division and the same was incidentally taken into consideration in O.S.No.251/1994 in the Court of Civil Judge (Jr.Dn.) Chamarajanagara. With regard to document dated 31-01-1894, it is contended that there is reference in Ex.P14 i.e. the gazette notification published by the Government of Maharaja of Mysore, which discloses the grant of certain lands to the predecessors of the title holder-respondent herein. The District Judge by his order dated 28-04-2018 permitted marking of those documents. The said order is impugned in the present writ petition.
5. This Court by an order dated 30-05-2018 granted an interim order of stay of order dated 28-04-2018 with an observation that the interim order would not come in the way of further proceeding in the matter.
6. The respondent appeared before this court and filed I.A.No.1/2018 for vacating the interim order dated 30-05-2018. As the hearing of I.A.No.1/2018 is as good as 9 hearing of the main matter itself, with the consent of the parties, the matter is taken up for final disposal.
7. Heard the Special Government Advocate for the petitioners/State and Sri.S.Vijaya Shankar, learned Senior Counsel appearing for the respondent. Perused the writ papers.
8. Learned Senior Counsel Sri.Vijaya Shankar appearing for the respondent has raised preliminary objection with regard to maintainability of the writ petition and he submits that the writ petition is not maintainable since the District Judge is acting on behalf of the Apex Court and he is answerable only to the Apex Court. In the facts and circumstances of the case, this Court has no jurisdiction to entertain the above writ petition. It is further submitted that a careful reading of the order of the Apex Court makes it clear that the Apex Court has appointed the District Judge only to determine the question referred in its order dated 14-11-2017 and to return the finding on the said question to the Apex 10 Court. In the said proceedings, the District Judge is directly answerable to the Apex Court and this Court has no jurisdiction to interfere with the proceeding either at the interlocutory stage or after final finding which is to be returned to the Apex Court, when there is a specific direction to that effect. Further, the learned Senior Counsel referring to Article 227 of the Constitution of India submits that this Court has supervisory jurisdiction over all the Courts and Tribunals throughout the territory of the State. But in the present case, the District Judge is appointed to act as a Commissioner by the Hon'ble Supreme Court for a specific purpose and he is an extended arm of the Hon'ble Supreme Court. It is his further submission that the District Judge would not decide anything, but only record the evidence and forward his finding to the Apex Court. Ultimately it is for the Apex Court to take a decision on the documents made available by the parties. It is further submitted that the Apex Court is seized of the appeal and the appeal is pending before the Apex Court in SLP No.18889/2017 and therefore, when 11 the matter is seized by the Apex Court, this Court has no jurisdiction to interfere with the same either at interlocutory stage of the proceedings or at the end of the proceedings.
9. The learned Senior Counsel invited my attention to Section 11 of the Arbitration and Conciliation Act, 1966 and submits that the designated officer exercises the power of designatee. In the case on hand, the Apex Court has nominated the District Judge with a particular assignment and to report to the Apex Court. Therefore, according to the learned Senior Counsel, the District Judge is acting on behalf of the Apex Court. In this regard, he invites my attention to paragraph 47 of the decision reported in (2005) 8 SCC 618 in the case of SBP & CO. v/s PATEL ENGINEERING LTD. AND ANOTHER "47. We, therefore, sum up our conclusions as follows:
(i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power.12
(ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court.
(iii) In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the statute.
(iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators.
The Chief Justice or the designated Judge would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated Judge. 13
(v) Designation of a District Judge as the authority under Section 11(6) of the Act by Chief Justice of the High Court is not warranted on the scheme of the Act.
(vi) Once the matter reaches the Arbitral Tribunal or the sole arbitrator, the High Court would not interfere with the orders passed by the arbitrator or the Arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.
(vii).............................
(viii)............................
(ix)..............................
(x)..............................
(xi).............................
(xii)............................
10. The learned Senior Counsel also submits that the District Judge would not get jurisdiction to deal with the matter of this nature and parties could not have approached the District Judge in the normal course. Only because of the Hon'ble Supreme Court order, the parties are before the 14 District Judge on a specific question and finding thereon shall be submitted to the Apex Court. But for the order of the Apex Court, the parties would not have been before the District Judge and the District Judge in the normal circumstances has no jurisdiction to deal with the petition like the one filed before the District Judge in the Miscellaneous Petition No.937/2017. To contend that when the matter is pending before the Hon'ble Supreme Court, this Court would not get jurisdiction, he relied upon a decision reported in (1999) 5 SCC 733 in the case of UNION OF INDIA v/s JAISWAL COAL CO. LTD. AND OTHERS. Paragraph 4 of the said judgment reads as under:
"We are rather concerned to note that Writ Petition No.823 of 1999 (Krishna Kumar Tiwari v.
Civil Judge (S.D) Mohanlalganj) has been
entertained by the Lucknow Bench of the
Allahabad High Court. That writ petition is directed against the auction-sale of House No.546-547, Sector E, Hind Nagar, Kanpur Road, Lucknow and seeks an order to the effect that the auction-sale be not confirmed. The learned Single Judge of the 15 High Court has noticed, in the interim order made on 30-3-1999, that auction was being conducted under orders of this Court and that the matter concerning auction of the house was pending in this Court. How then a writ petition could be entertained in the High Court is not understandable. Judicial discipline required the High Court not to entertain any such petition, when the proceedings were pending in this Court in respect of the subject-matter of the case. The parties should have been asked to approach this Court, if so advised. The High Court had no jurisdiction to entertain the writ petition in the fact situation. We need say nothing further on this aspect except to record our displeasure. This order shall be brought to the notice of the High Court."
11. The learned Senior Counsel next contended that judicial discipline would require in a hierarchical system, it is imperative that such conflicting exercise of jurisdiction should strictly be avoided. He further submits that concept of judicial discipline precludes any other Court from entertaining cases emanating from the pending petition before 16 the Apex Court. Further he submits that when the matter is pending and seized before the Apex Court, this Court not to entertain this writ petition regard being had to the fundamental concept of judicial discipline. The learned Senior Counsel also made submission relying upon catena of decisions with regard to exercise of power under Article 227 of the Constitution of India and its limitations while exercising powers.
12. Learned Senior Counsel apart from the above submission with regard to maintainability, further submits that the trial Court has rightly passed the order allowing marking of two documents and justified the order passed by the District Judge. He refers to Annexures - F and G which are the documents in dispute and have been permitted to be marked by the District Judge. According to him, Annexure-F is referred in Ex.P14-Gazette notification produced and marked in the proceedings wherein it refers to the grant order dated 31-01-1894. Annexure-G is the agreement dated 17 24-06-1957 which is certified by the District Forest officer, Mysore Division. Further, he submits that the said document is referred in the judgment dated 17-03-2003 in O.S.No.251/1994. It is his further submission that those documents are Photocopies, original of which are with the Government/petitioners herein. When those documents were sought under Right to Information Act, the petitioners/Government has replied stating that those documents are not available, but it is not their case that the said documents are not in existence. Learned Senior Counsel referring to sub-Sections 2 and 3 of Section 63 of the Indian Evidence Act contended that those two documents are secondary evidence and they fulfill the conditions referred to in Section 65 of the Indian Evidence Act. He also invited my attention to the proviso to Section 66 and also Section 74 to contend that they are public documents. Section 90 of the Indian Evidence Act is also referred to contend that they are more than 30 years old documents and that the Court may presume that the signature and every other part of such 18 document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Learned Senior Counsel also referred to catena of decisions of Hon'ble Supreme Court to contend that they are public documents. Further referring to the observations made by the trial Court that mere admission of a document in evidence would not amount to its proof nor mere marking of an exhibit of a document dispense with its proof which is otherwise required to be proved in accordance with law that the trial Court has merely permitted marking of those documents and it is yet to be proved in accordance with law. In support of his submission, he relies upon a decision reported in (2001) 3 SCC 1 in the case of BIPIN SHANTILAL PANCHAL v/s STATE OF GUJARAT AND ANOTHER. Hence, he prays for dismissal of the writ petition. 19
13. Per contra, learned Special Government Advocate appearing for the petitioners/State submits that this Court has jurisdiction to entertain the writ petition under Article 227 of the Constitution of India. The power conferred under Article 227 of the Constitution of India cannot be taken away and it is not excluded in the facts and circumstances of the present case as contended by the learned Senior Counsel. He submits that it is true that the Apex Court by an order dated 14-11-2017 nominated the District Judge to return the finding on the issues referred therein, but at the same time, the Hon'ble Supreme Court has not taken away the power under Article 227 of the Constitution of India. During the process of enquiry, if the District Judge commits any error or illegality, this Court has supervisory jurisdiction under Article 227 and the petitioners have constitutional right to invoke the jurisdiction to rectify the errors or else the error gets immunity and cannot be cured at a later stage. It is the submission of the Special Government Advocate that the matter pending before the Apex Court is different and issue 20 involved in the present Miscellaneous case is entirely different as no papers are forwarded. The order makes it clear that the respondent is asked to file a claim petition and the State is directed to respond to the said claim petition. He further submits that the Apex Court has not stated any procedure in its order and submits that it is an independent proceeding for determination of the question referred therein.
14. The learned Special Government Advocate submits that the District Judge is not a Commissioner as contended by the learned Senior Counsel. A special jurisdiction is conferred on the District Judge by virtue of the order of the Apex Court dated 14-11-2017. He relied upon Sections 2, 3 and Section 8 of the Bangalore City Civil Court Act, 1979 to contend that the Miscellaneous Petition is filed before the District Judge having jurisdiction under the Bangalore City Civil Court Act and Civil Procedure Code. More over, he submits that when the parties have submitted themselves to the jurisdiction of the District Judge and the claim petition is registered as 21 Miscellaneous Petition, the District Judge has all powers conferred on him by the Bangalore City Civil Court Act and under Civil Procedure Code. Hence, this Court has supervisory jurisdiction. He also refers to Section 9 of the Karnataka High Court Act with regard to power of the High Court. He further submits that Miscellaneous petition filed before the City Civil Court is to be treated as original proceedings under the General Law. The District Judge has to conduct the proceedings in accordance with law. He further contends that nothing can be added or imported to the order of the Apex Court to restrict the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
15. In support of his contention, the learned Special counsel relies upon a decision of the Hon'ble Supreme Court reported in AIR 2018 SC PAGE 1 in the case of STATE OF JHARKHAND v/s M/s. HINDUSTAN CONSTRUCTION CO. 22 LTD. He invites my attention to paragraphs 11, 14, 15, 18, 52, 53, 57 and 58 of the said judgment which reads as under:
"11. .Mr.Viswanathan, learned senior counsel appearing for the respondent, in his turn, contends that Section 2© of the Act defines Court and the definition when read in an apposite manner shows that the word "Court" can be assigned a different meaning depending on the context. For the said purpose, he has commended us to the authorities in Commissioner of Gift Tax, State of Gujarat v. Union Medical Agency, Saith and Skelton (AIR 1972 SC 1507) (supra) and Whirlpool Corporation v.
Registrar of trade Marks, Mumbai and others. It is urged by the learned senior counsel for the respondent that Section 14(2) of the Act indicates that there may be a case where the Court itself can direct the award to be filed in the court and once the superior court has retained control and passed a specific direction to file an award in terms of Section 14(2) before the Court, the all other courts cease to have jurisdiction for determination of the controversy. Emphasizing on the hierarchical structure, he contends that judicial discipline and respect has to prevail and, therefore, no proceeding 23 can be initiated in any court other than the superior court. It is his submission that when this Court retains control over the arbitration proceedings, any proceeding flowing from the act has to be initiated before this Court. In this regard, he has drawn inspiration from few passages in Saith and Skelton (AIR 1972 SC 1507) (supra) and Guru Nanak Foundation (AIR 1981 SC 2075) (supra). According to him, the submission advanced on behalf of the appellants that they would lose the right of appeal has been squarely rejected in Guru Nanak Foundation (supra) and there is no necessity to dislodge the said principle.
14. In the case Saith and Skelton (AIR 1972 SC 15074, Para 19) (supra), the Court was dealing with Section 2© and Section 14(2) of the Act and in that context, the three-Judge Bench, keeping in view the language employed in the beginning of Section 2, opined;-
15. In the aforesaid case, the Court had appointed the arbitrator on the consent of the parties and had directed him "to make his award". That apart, no further direction was given in the said case. The 24 arbitrator after passing the award had filed the same before this Court and in that context, the Court held;-
18. After the award was passed, the arbitrator approached the Registry of this Court for filing of the award and he was advised by an officer of this Court that the award should be filed before the Delhi High Court. The arbitrator filed the award in Delhi High Court. At that juncture, the respondent therein filed the petition seeking a declaration that the award was required to be filed before the Supreme Court in view of the provisions contained in Section 14(2) read with Section 31 (4) of the Act. It was contended before the High Court that as the reference was made to the arbitrator by the Supreme Court and further directions were given, this Court was in seisin of the matter and it alone had the jurisdiction to entertain he award in view of the provisions of Section 31(4) of the Act. The matter came to be challenged before this Court and the proceedings before the High Court were stayed.
52. Another significant issue that arises for consideration is whether the Court can, by 25 assuming such original jurisdiction, deprive the party to prefer an appeal which is statutorily provided. In Bharat Coking Coal Limited (AIR 2008 SC 2028) it has been observed thus:-
"8.It is now a trite law that whenever a term has been defined under a statute, the same should ordinarily be given effect to. There cannot, however, be any doubt whatsoever that the interpretation clause being prefaced by the words "unless there is anything repugnant in the subject and context" may in given situations lead this Court to opine that the legislature intended a different meaning.
53. It is worthy to mention that in the said case, the two-Judge Bench had distinguished Guru Nanak Foundation (AIR 1981 SC 2075) on facts. But the emphasis has been on the sustenance of the right of a party to prefer an appeal. In this context, Mr.Sinha has drawn our attention to the Constitution Bench decision in Garikapati Veeraya (AIR 1957 SC 540) (supra) that lays down that the legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and 26 are to be regarded as one legal proceeding and the right of appeal is not a mere matter of procedure but is a substantive right. It has been further held that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the is commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal and the said vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
57. In Guru Nanak Foundation (AIR 1981 SC 2075) (supra), as noted earlier, the two-Judge Bench has distinguished the principle laid down in Garikapati Veeraya (AIR 1957 SC 540)(supra) by stating that the door of this Court is not closed to the appellant. In fact, as has been stated, the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in 27 an originating summons. The aforesaid statement of law is not correct because the superior court is not expected in law to assume jurisdiction on the foundation that it is a higher court and further opining that all contentions are open. The legislature, in its wisdom, has provided an appeal under Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues directions or has retained some control over the arbitrator by requiring him to file the award in this Court, it cannot be regarded as a court of first instance as that would go contrary to the definition of the term 'court' as used in the dictionary clause as well as in Section 31(4). Simply put, the principle is not acceptable because this Court cannot curtail the right of a litigant to prefer an appeal by stating that the doors are open to this Court and to consider it as if it is an original court. Original jurisdiction in this Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant. That apart, as we see, the said principle is also contrary to what has been stated in Kumbha Mawji. (AIR 1953 SC 313). It is worthy to note that 28 this Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction.
58. In Surjit Singh Atwal (AIR 1970 SC 189) (supra), a three-Judge bench had opined that applications under Section 8 and under Section 20, though clearly applications "in the matter of a reference" and may fall within the purview of Section 31(4) of the Act even though these applications are made before any reference has taken place. The purpose of referring to the said authority is that the principle stated in Kumbha Mawji."
Thus, he submits that the facts of the above case are similar to the facts of the case on hand and that the writ petition is maintainable against the interlocutory order passed by the District Judge in Misc. Case No.937/2017. Learned Special Government Advocate also refers to number of decisions with regard to exercise of power by the High Court under Article 227 of the Constitution of India and its exercise. 29
16. The learned Special Government Advocate submits that the order passed by the District Judge is wholly illegal and the District Judge could not have permitted marking of the photocopies in the proceedings, when the respondent has failed to lay any foundation with regard to secondary evidence. It is his contention that the respondent has not laid any foundation in his affidavit as to when, how and where those documents came into their possession. It is photocopy of a handwritten document on a plain paper. He submits that anybody can write on a plain paper, but without any signature or seal, they cannot claim that it is a secondary evidence. Further, it is submitted that the agreement and grant order are fabricated and concocted documents. The document dated 31-01-1894 is not a counter part or copy of the original issued by the Chief Secretary of Mysore in terms of Explanation (1) of Section 62 of the Indian Evidence Act, 1872, but it is only a photocopy.
30
17. With regard to agreement dated 24-06-1957, the learned Special Government Advocate states that the said document is not stamped and does not bear the signature of the so called executants named therein. Non-production of original is to be held against the respondent and he submits that photocopy of the document cannot be allowed to be admitted as evidence. Further he submits that mere noticing of the said document in the judgment dated 17-03-2003 in O.S.No.251/1994 will not amount to admission of the said documents by the petitioner-State and its officials. He relies upon number of decisions to contend that the said documents are not secondary evidence and to say that it cannot be marked in the proceedings before the District Judge.
18. On consideration of the above submissions of the learned Senior Counsel and the learned Special Government Advocate, the following questions arise for my consideration: 31
Whether the writ petition is not maintainable and if the answer is in the negative, the next question would be whether the petitioners have made out grounds to interfere with the order of the District Judge permitting the marking of two documents in question?
19. Admittedly, an issue of fact as to the land in question being or not being in the reserve forest having cropped up in the SLP proceedings, the Apex Court in its wisdom has called for a report from the District Judge, who acts as an extended arm of the Apex Court, if not, the Commissioner of the Apex Court. The District Judge is asked to hold a particular enquiry and to prepare and submit a report for consideration of the Apex Court in a pending matter. If the Apex Court intended that, this Court can interfere in the enquiry proceedings that are held by the District Judge, it would as well remanded the matter to this Court itself, which course apparently was not adopted, since SLP is being retained for consideration after the report is submitted. 32
20. Secondly, it is not within the Province of this Court to entertain a challenge to the legality or regularity of the proceedings that are being held by the District Judge as an extended arm of the Apex Court. It is always open to the aggrieved party to point out to the Apex Court as to the defect lying in the report or as to the legality of the proceedings that culminate into the report. There is no scope for intervention of this Court or any other body in the proceedings that are assigned to District Judge either at interlocutory stage or at final stage. If the Apex Court intended that the District Judge should hold the said proceedings under the supervision of this Court, obviously the same would have been indicated in the order, whereby the District Judge was asked to hold enquiry and submit his report.
21. Thirdly, how the proceedings are held, how the report is prepared, what should happen to the said report and what weightage is to be attached to the same are the questions that essentially fall within the domain of the pending SLP 33 proceedings. In the hierarchical system of the judiciary, there is no scope for intervention of this Court in the proceedings of the District Judge in as much as, the said proceedings have not arisen under any Act or Rules made thereunder. On the other hand, the enquiry proceedings are for ascertaining the existence or non-existence of reserved forest land that are being held by the District Judge, on the order of the Apex Court in a pending SLP. The report intended to be submitted to the Apex Court does not have 'proprio vigore', per se, but the report may constitute to be a piece of evidence before the Apex Court and nothing beyond. In the absence of any rights and liabilities arising from such report, the writ jurisdiction cannot be invoked. The District Judge is appointed by the Hon'ble Apex Court in a pending SLP and he is answerable to the Court which appointed him assigning a particular assignment of recording evidence and submitting the report. In the event, if any of the parties are aggrieved by any action of the District Judge, the remedy 34 would be before the Court which nominated him and in the said pending proceedings.
22. The contention of the learned Special Government Advocate that all proceeding, judicial or quasi judicial undertaken by the Authority like District Judge are subject to supervisory jurisdiction under Article 227 of the Constitution of India, appears to be attractive at the first instance. However, the deeper consideration of the matter shows it otherwise. The contention that all authority exercising power in a State are subject to the supervisory jurisdiction could have been tenable, if such proceedings were undertaken on an order passed under any Act or Rules or pursuant to the direction of this Court. In the instant case, admittedly, the proceedings are not under any statute of law. But the same are undertaken pursuant to the direction of the Apex Court. The argument that the supervisory jurisdiction constitutionally vested in this Court cannot be appreciated but it appears to be too far fetched if not misconceived. 35
23. The contention that the writ remedy would lie against any action of the District Judge cannot be accepted as the hierarchy of remedy in the normal course is not available against the actions of the District Judge in the facts of the present case. If it were to be an order whereby proceedings were relegated to the trial Court in its entirety or to the appellate Court, remedy is available under CPC as per established procedure.
24. The learned Senior Counsel has rightly relied upon a decision of the Apex Court reported in (2005) 8 SCC 618 extracted supra and submitted that the power that is exercised by the designated judge would be that of the Chief Justice as conferred by the Statute under Section 11 of the Arbitration and Conciliation Act, 1996. When a Judge is designated by the Chief Justice to act on his behalf, he would certainly exercise power vested in the Chief Justice under Section 11 of the Arbitration and Conciliation Act. In the case on hand also, the District Judge is appointed by the Apex 36 Court for conducting a particular enquiry and he has been asked to submit his report to the Apex Court. When such being the case, it is not proper on the part of the High Court to exercise its supervisory jurisdiction over the District Judge who is conducting the enquiry pursuant to the direction of the Hon'ble Supreme Court.
25. Nextly, the learned Senior Counsel has relied upon a decision reported in (1999) 5 SCC 733 (supra) wherein the Apex Court directed to conduct auction sale in a pending matter. The Apex Court took objection to the writ petition being entertained by the High Court, stating that the judicial discipline required the High Court not to entertain any such petition when the proceedings are pending before the Apex Court. In the instant case also, respecting the judicial discipline, when the matter is seized by the Apex Court, exercising of supervisory jurisdiction under Article 227 of the Constitution of India is not proper.
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26. The learned Special Government Advocate in support of his contention that the writ petition is maintainable relied upon a decision of the Hon'ble Supreme Court reported in AIR 2018 SC PAGE 1 which is extracted supra. It was a case where the following question that fell for consideration of the Apex Court.
"Whether this Court can entertain an application for making the award as Rule of the Court, even if retain seisin over arbitral proceedings?"
The facts of the case were that in an appeal, the Apex Court appointed an Arbitrator. On conclusion of the arbitral proceedings, the award was filed before the Apex Court. The appellant therein challenged the said award by filing its objections before the Civil Court and respondent filed an affidavit requesting the Apex Court to pronounce the judgment in terms of the affidavit. In that background, the matter was referred to Five Judges Bench, which framed the 38 above question for consideration. At the cost of repetition paragraphs 57 and 58 are extracted below:
57. In Guru Nanak Foundation (AIR 1981 SC 2075) (supra), as noted earlier, the two-Judge Bench has distinguished the principle laid down in Garikapati Veeraya (AIR 1957 SC 540)(supra) by stating that the door of this Court is not closed to the appellant. In fact, as has been stated, the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons. The aforesaid statement of law is not correct because the superior court is not expected in law to assume jurisdiction on the foundation that it is a higher court and further opining that all contentions are open. The legislature, in its wisdom, has provided an appeal under Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues directions or has retained some control over the arbitrator by requiring him to file the award in this Court, it cannot be regarded as a court of first instance as that would go contrary to the definition of the term 'court' as used in the dictionary clause as well as in Section 31(4). Simply put, the 39 principle is not acceptable because this Court cannot curtail the right of a litigant to prefer an appeal by stating that the doors are open to this Court and to consider it as if it is an original court.
Original jurisdiction in this Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant. That apart, as we see, the said principle is also contrary to what has been stated in Kumbha Mawji. (AIR 1953 SC 313). It is worthy to note that this Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction.
58. In Surjit Singh Atwal (AIR 1970 SC 189) (supra), a three-Judge bench had opined that applications under Section 8 and under Section 20, though clearly applications "in the matter of a reference" and may fall within the purview of Section 31(4) of the Act even though these applications are made before any reference has taken place. The purpose of referring to the said 40 authority is that the principle stated in Kumbha Mawji."
(AIR 1953 SC 313) (supra) has been elaborated in Surjit Singh Atwal (Supra). It is to be borne in mind that the Court that has jurisdiction to entertain the first application is determinative by the fact as to which Court has the jurisdiction and retains the jurisdiction. In this regard, an example may be cited. When arbitrator is not appointed under the Act and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Sections 30 and 33 of the Act. The jurisdiction of a Court conferred under a statute cannot be allowed to shift or become flexible because of a superior court's interference in the matter in a different manner."
27. The discussion in the above paragraphs makes it abundantly clear that jurisdiction conferred under the Act or Statute cannot be allowed to be shifted because of an order of 41 superior Court on a collateral issue. In the case on hand, the Miscellaneous case is not registered, challenging an order passed under any Act or Statute or from any original proceedings, but because of the direction of the Apex Court in a pending SLP appointing the District Judge with specific assignment to conduct enquiry and to submit his report. Hence, the District Judge is answerable to the Apex Court and any action of the District Judge, if it is adverse to any one of the parties, they have to bring it to the notice of the Apex Court, moreover when the order of the Apex Court specifically mentions that parties are at liberty to mention.
28. The other contentions raised by the learned Special Government Advocate are also not tenable. The learned Special Government Advocate has referred to the provisions of Bangalore City Civil Court Act and provisions of the Code of Civil Procedure to indicate the meaning of the Court which would be of no help to his arguments. As stated earlier, the learned District judge is not acting under any of the 42 provisions of the Act or Rules, to say that the Miscellaneous Petition is not filed under the Bangalore City Civil Court Act nor under any of the provisions of the Act or Rules or either under the CPC invoking the original jurisdiction of the District Judge. The District Judge is particularly acting under the directions of the Hon'ble Supreme Court.
29. Hence, I am of the view that this writ petition is not maintainable. The question framed thereunder is answered in the affirmative. When the question of maintainability is answered in the affirmative, answering the other question would not arise. Accordingly, the writ petition is dismissed.
SD/-
JUDGE mpk/-*CT:SK