Calcutta High Court
Pashupati Adhikary vs Pradyut Kumar Alias Tarapada Adhikary on 16 May, 2003
Equivalent citations: (2003)2CALLT538(HC)
Author: A.K. Mathur
Bench: Ashok Kumar Mathur, Jayanta Kumar Biswas
JUDGMENT A.K. Mathur, C.J.
1. The short question involved in this reference is whether the 'Munsif and 'District Judge' who decide the matter of preemption under Sections 8 and 9 of West Bengal Land Reforms Act, 1955 (hereinafter referred to as Act of 1955) are the 'authority' under the West Bengal Land Reforms Tenancy Tribunal Act, 1997 (hereinafter referred to as Act of 1997) or not.
2. This question arose because of difference of opinion of two learned single Judges taking contrary view in the matter. The question involved in this matter is whether against the order passed by the District Judge under Section 9 of the Act of 1955, a revision under Section 115 of the Civil Procedure Code is maintainable or not in view of the provisions of the Act of 1997. By virtue of the provisions contained in Sections 7 and 8 of the Act of 1997, jurisdiction of all Courts have been taken away and the same has been conferred on the Tribunal constituted under the Act of 1997, except the writ jurisdiction under Articles 226 and 227 of the Constitution and the same has to be exercised by the Division Bench of the High Court. Justice Bhattacharyya in the case of Kashinath Mondal and Ors. v. Bani Ballav Biswas and Ors., reported in 2001(2) CLJ 319 took the view that revision before this Court under Section 115 of the Civil Procedure Code is not maintainable. As against this Justice P.K. Ray in the case of Sk. Samsul Huda and Ors. v. Mosharaf Hussain and Ors., reported in 2000(2) CHN 227 took the view that the provisions of the Act of 1997 do not oust the jurisdiction of the High Court to entertain revision under Section 115 of the Civil Procedure Code. Therefore, on account of two conflicting opinions of the learned single Judges, Justice Alok Kumar Basu, has referred these matters to a Larger Bench to resolve the conflict of two single Bench judgment. As such the matter has come up before us by reference by Justice Basu to lay the correct position of law.
3. Brief facts of this case are that one Pashupati Adhikary filed two separate applications under Section 115 of the Civil Procedure Code registered as C.O. No. 2567 of 1998 and C.O. No. 2568 of 1998 challenging the order of the learned Additional District Judge, 5th Court, Midnapore, passed in Miscellaneous Appeal No. 61 of 1995 arising out of pre-emption matter under Section 9 of the Act of 1995. Both these revision applications were heard analogously. In the course of hearing the above referred two conflicting judgments were cited before the learned single Judge and the learned single Judge made a reference before this Court.
4. Before we proceed to decide the controversy involved in the matter, it will be relevant to mention the law bearing on the subject. As far as the question of pre-emption is concerned, it is to be decided under Section 9 of the Act of 1955 and the power to decide such application has been conferred on the 'Munsif and the 'Munsif, on such application being filed, will give notice to the parties and after taking necessary evidence, will decide the matter. Under Section 9(6) appellate power has been conferred on the 'District Judge' having territorial jurisdiction over the matter. Therefore, all the pre-emption matters are to be decided by the 'Munsif and appeal will lie to the 'District Judge' having jurisdiction over the area in which the land is situated. Section 9 of the Act of 1955 reads as under:
"9. Revenue Officer to allow the application and apportion lands in certain cases.-- (1) On the deposit mentioned in Sub-section (1) of Section 8 being made, the Munsif shall give notice of the application to the transferee, and shall also cause a notice to be affixed on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and prove the consideration money paid for the transfer and other sums, if any, properly paid by him in respect of the lands including any sum paid for annulling encumbrances created prior to the day of transfer, and rent or revenue, ceases or taxes for any period. The Munsif may after such enquiry as he considers necessary direct the applicant to deposit such further sum, if any, within the time specified by him and on such sum being deposited, he shall make an order that the amount of the consideration money together with such other sums as are proved to have been paid by the transferee or the person interested plus ten percent of the consideration money be paid to the transferee or the person interested out of the money in deposit, the remainder, if any, being refunded to the applicant. The Munsif shall then make a further order that the portion or share of the plot of land be transferred to the applicant and on such order being made, the portion or share of the plot of land shall vest in the applicant.
(2) When any person acquires the right, title and interest of the transferee in such plot of land by succession or otherwise, the right, title and interest acquired by him shall be subject to the right conferred by Sub-section (1) of Section 8 on a co-sharer of a raiyat in a plot of land or a raiyat possessing land adjoining the plot of land or bargadar.
(3) In making an order under Sub-section (1) in favour of more than one co-sharer of a raiyat in a plot of land or raiyat holding adjoining land or bargadar the Munsif may apportion the portion or share of the plot of land in such manner and on such terms as he deems equitable.
(4) Where any portion of share of plot of land is transferred to the applicant under Sub-section (1), such applicant shall be liable to pay all arrears of revenue in respect of such portion or share of the plot of land that may be outstanding on the date of the order.
(5) The Munsif shall send a copy of his order as modified on the appeal, if any, under Sub-section (6) to the prescribed authority for correction of the record-of-rights.
(6) Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. The fees to be paid by the parties and the procedure to be followed by the District Judge shall be such as may be prescribed.
(7) Every appeal pending before an Additional District Magistrate at the commencement of Section 8 of the West Bengal Land Reforms (Amendment) Act, 1972, shall, on such commencement, stand transferred to, and be disposed of by, the District Judge having jurisdiction in relation to the area in which the land is situated and on such transfer, every such appeal shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972."
5. It may also be relevant to mention here that earlier this power of deciding pre-emption matters were conferred on the Revenue Authority and appeal used to lie before the 'Additional District Magistrate but by the West Bengal Land Reforms (Amendment) Act, 1972 (hereinafter referred to as Act of 1972) the power of the 'Revenue Authority' was taken away and the same was conferred on the 'Munsif as the trial Court and the 'District Judge' (having jurisdiction over the area in which the land is situated) as the appellate authority. Therefore, earlier the power to decide the issue of pre-emption vested in the Revenue Authority, but by the Act of 1972 such power of adjudication was taken away from the Revenue Authority and the same was conferred on the judicial authority. It appears that this was done by the Legislature in their wisdom that since the question of pre-emption is complicated one and it has serious civil consequences, therefore, it was decided by the Legislature that this power should be conferred on the judicial authority instead of revenue authority and accordingly, this power of adjudication of pre-emption matters was taken away from the revenue authorities and it was conferred on the judicial authority. Since then preemption matters have been decided by judicial authority, i.e. 'Munsif as trial Court and 'District Judge' as appellate authority.
6. Against the order passed by the District Judge while exercising appellate authority revision used to lie before the High Court and this was the consistent view of the High Court in series of cases and in this connection reference may be made to the cases of Sontosh Sardar v. S.N. Karmakar, reported in 73 CWN 852; Behari Lal Santia v. Bishnupada Pattanayak, reported in 79 CWN 103; Prasanna Giri v. Gangadhar Raut, reported in 81 CWN 580; and Kalidasi Nath v. Obedulla Seikh, reported in 81 CWN 866. Therefore, prior to the Act of 1997 this was the position but after the Act of 1997 came into force what is the position of law is to be determined in this judgment.
7. Bhattacharyya, J. has taken the view that after the Act of 1997 came into force revision under Article 227 of the Constitution will lie because of the provisions contained in the Act of 1997. We shall discuss the judgment of Bhattacharya, J. later stage in detail. As against this P.K. Ray, J. has taken a different view and specifically held that revision under Section 115 of the Civil Procedure Code is maintainable before the High Court as the District Judge is not a persona designata but he decides the matter as a District Judge appointed under the Bengal, Agra and Assam Civil Courts Act, 1887, therefore, revision is maintainable. Alok Basu, J. while referring the matter before the Larger Bench has agreed with the view expressed by Bhattacharya, J.
8. Before we address to answer the question it will be relevant to refer to the provisions of the Act of 1997. This Act was promulgated in 1997 for setting up Land Reforms and Tenancy Tribunals in pursuance of Article 323B of the Constitution of India for adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to, or arising out of, land reforms or tenancy in land and other matters under a specified Act and for matters connected therewith or incidental thereto. However, it was made clear in the statement of objects and reasons that this will not exclude the jurisdiction of the High Court to exercise superintendence power by the Division Bench of the High Court under Articles 226 and 227 of the Constitution and the Supreme Court of India,
9. Section 2 of the Act of 1997 deals with definitions. Section 3 provides that this Act has an overriding effect notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or in any contract, express or implied. Section 4 deals with establishment of Tribunal and composition and function thereof. Section 4 empowers the Tribunal to frame rules. Section 5 deals with power to make regulations. Section 6 deals with jurisdiction, power and authority of the Tribunal to decide on any matter or any order made by the authority under a specified Act and it further says that proceedings, cases or appeals which are pending before the High Court shall be transferred to the Tribunal. Section 7 deals with the exercise by Tribunal of jurisdiction, power and authority exercisable by Court. Section 7 is relevant for our purpose, which reads as under:
"7. Exercise by Tribunal of jurisdiction, power and authority exercisable by Court.-- Save as otherwise expressly provided in this Act, the Tribunal shall, with effect from the date appointed by the State Government under Section 6, exercise all the jurisdiction, power and authority exercisable immediately before that day by any Court including the High Court, except the writ jurisdiction under Articles 226 and 227 of the Constitution exercised by a Division Bench of the High Court, but excluding the Supreme Court, for adjudication or trial of disputes and applications relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of any provisions of a specified Act."
10. Section 8 deals with exclusion of jurisdiction of Court. Section 8, which is relevant for our purpose, reads as under:
"8. Exclusion of jurisdiction of Courts.-- On and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, the High Court, except where that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution by a Division Bench, or any Civil Court, except the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act."
11. Section 9 deals with transfer of case records from High Court. Section 10 deals with application to the Tribunal.
12. By virtue of Section 8 jurisdiction of all Courts have been excluded, except where the High Court exercises jurisdiction under Article 226 and 227 of the Constitution by a Division bench or by the Supreme Court. Therefore, all the cases which were pending before the High Court were to be transferred to the Tribunal by virtue of Section 9 of the Act of 1997. Though we have been given to understand that the challenge to the validity of this Act is still pending before the Apex Court.
13. So far as exclusion of jurisdiction is concerned, Section 8 clearly says that the jurisdiction of all Courts to decide the matters under the specified Act has to be excluded, 'Specified Act' has been defined in Section 2(r) of the Act of 1997, which reads as under:
"2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,--
(r) 'specified Act' means-
(i) the West Bengal Estates Acquisition Act, 1953 (West Ben. Act I of 1954); or
(ii) the West Bengal Land Reforms Act, 1956 (West Ben. Act X of 1956); or (iia) the West Bengal Restoration of Alienated Land Act, 1973 (West Ben. Act XXIII of 1973); or
(iii) the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (West Ben. Act XXXVII of 1981); or
(iv) the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975 (West Ben. Act XLVII of 1975); or
(v) Omitted
(vi) the West Bengal Premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997)."
14. On perusal of the above sections, it transpires that any order passed under these specified Acts shall be subject to the order passed by the Tribunal and the jurisdiction of all Civil Courts except writ jurisdiction of High Court to be exercised by the Division Bench stands excluded. One of the Acts, included in the 'specified Act' is the West Bengal Land Reforms Act, 1955 (West Ben. Act X of 1956).
15. In the background of the provisions of both these Acts, now we will advert to the present case. If we confine ourselves to the provisions of the Act of 1997 then any matter arising out of the Act of 1955 is concerned, then any order passed by the authority under that Act, the jurisdiction of all Civil Courts shall remain excluded except the writ jurisdiction of High Court under Articles 226 and 227 of the Constitution exercisable by a Division Bench and all orders passed under that Act shall be subject to the order of the Tribunal. But the complication arises because of the fact that under Section 9 of the Act of 1955, as far as pre-emption matters are concerned, jurisdiction to try such cases has been conferred on the 'Munsif as the trial Court and appellate power has been conferred on the District Judge. Therefore, both the authorities, i.e. 'Munsif as well as 'District Judge' are not the revenue authority while deciding the question of pre-emption under Section 9 of the Act of 1955. Both these authorities are judicial authorities appointed under Bengal, Agra and Assam Civil Courts Act, 1887 and they are exercising their power as judicial authority and not as revenue authority. Learned counsel for the private respondents has specifically invited our attention to Section 2(b) of the Act of 1997, which defines 'authority', which reads as under:
"(b) 'authority' means an officer or authority or functionary exercising powers or discharging functions as such under a specified Act;".
16. It was contended by the learned counsels that the 'Munsif or the 'District Judge' are not authority under the Act of 1955 or under the Act of 1997, therefore, they cannot be made subordinate to the Tribunal as this will amount to interfering with the judicial power under the Constitution. The State Legislature cannot change the basic structure of the Constitution. Independence of Judiciary is one of the basic structure of the Constitution recognised by the Apex Court and it is the settled principle of law in our country. By this Act the State Legislature has indirectly tried to change the basic structure of the Constitution by bringing the subordinate judiciary under the control of administrative Tribunal constituted under Article 323B of the Constitution. This is not permissible. 'Munsif and 'District Judge' are not persona designata, they are the Courts to whom power of adjudication was entrusted under the Act of 1955. By giving power to the judicial authority to exercise matters relating to revenue will not change their character from a judicial officer to that of a revenue officer. They are appointed under Article 233 of the Constitution and they are not administrative offices so as to become amenable to the jurisdiction of the Tribunal. Section 2(b) of the Act of 1997, as quoted above, only defines 'authority' to mean an officer or authority or functionary exercising powers or discharging functions as such under a specified Act. 'Munsif and 'District Judge' are not officers appointed under the Act of 1955 nor are they authority or functionary exercising power or discharging functions under the Act of 1955, but they are judicial authority adjudicating the rights of the parties under that Act. Therefore, they do not fall in any of the definitions of 'authority' under the Act of 1997 so as to become amenable to the jurisdiction of the Tribunal. Section 6 confers jurisdiction and power on the authority of the Tribunal, it says that the Tribunal shall exercise power in relation to any order made by the authority under the specified Act or an application complaining inaction or culpable negligence of an authority under a specified Act. Therefore, what it contemplates is that any order passed by the authority under the specified Act, means a functionary like the revenue authority appointed under the Act of 1955 whose order shall be subject to the, jurisdiction of the Tribunal. The idea behind this is that all the orders which are passed by the revenue authority shall be subject to the decision of the Tribunal. But as mentioned above, 'Munsif or the 'District Judge' are not authority under the Act of 1955. Revenue Officers who are appointed under the Act of 1955 and discharging functions under that Act, against their order the Tribunal shall exercise its jurisdiction. Section 2(4) of the Act of 1955 defines 'Collector', as "collector means the Collector of a District or any other office appointed by the State Government to discharge any of the functions of a Collector under this Act" meaning thereby that one of the functionaries under the Act of 1955 is the 'Collector' and he is to be appointed by the State Government and various powers which has been conferred under the Act of 1955 are to be discharged by the Collector. Similarly, in Section 2(12) of the Act of 1955 defines 'Revenue Officer', which reads as follows:
"(12) 'Revenue Officer' means any officer whom the State Government may appoint by name or by virtue of his office to discharge any of the functions of a Revenue Officer in any area."
17. It means that State Government may appoint any officer by name or by virtue of his office to discharge any of the functions of a Revenue Officer in any area under the Act of 1955. The 'Munsif or the 'District Judge' is not appointed under the Act of 1955. All these persons who are officers under the Act of 1955 and discharging functions under that Act are State appointees and they function as revenue officers under the Act of 1997 as against the 'Munsif or 'District Judge'. Therefore, if we read Section 2(b) with Sections 6, 7and 8 of the Act of 1997 it would appear that the Tribunals have been created to adjudicate or look into the complaint of inaction or culpable negligence of an authority under the Act of 1997. It means that all the authorities who are functioning as revenue authorities be it Collector or any other person under the Act like revenue officer, their act has been made subject to the order of the Tribunal and not that of an order passed by a judicial officers adjudicating issues under the Act of 1955. The judicial officers who are functioning under the Act of 1955 cannot by any stretch of imagination be treated as 'authority', as neither they are officers of the State nor are they functionaries of the State under the Act of 1955. Judicial Officers are class apart as against the employees of the State Government under the Act of 1955. Adjudicating the issues of pre-emption is an additional duty conferred on the judicial officers, that will not change the character of a judicial officer to that of an authority or functionary under the Act of 1955. They are not authority or functionary under the Act of 1955 so their orders cannot be made subject to the order of the Tribunal. This is a total mis-conception, dehors the basic feature of the Constitution. By creating such administrative Tribunals the judicial orders cannot be made subject to the administrative control of the Tribunal as that will go against the basic tenets of the Constitution and basic feature of the Constitution. It is not necessary to go into further details with regard to appointment of judicial officers. It is well known that the appointment of judicial officers including that of 'Munsif or the 'District Judge' is subject to the control of the High Court under Article 233 of the Constitution. Therefore, any order passed by a judicial authority adjudicating rights of the parties under any Act cannot change their character, they cannot be made subject to the sub-ordination of any Tribunal.
18. Therefore, If the matter is to be viewed constitutionally this exclusion provision of the Act of 1997 will not be applicable so far as the orders passed by the 'Munsif or 'District Judge' or the 'Additional District Judge' is concerned. Their orders cannot be made subject to the order of the Tribunal and it will be only subject to the judicial review by the High Court under Section 115 of the Civil Procedure Code being directly subordinate to the High Court. In this connection reference may be made to a decision of the Apex Court in the case of Mukri Gopalan v. C.P. Aboobacker, . In this case appellate power was conferred on the District Judge under Kerala Buildings (Lease and Rent Control) Act, 1965 and in that context their Lordships held that persons who are discharging such judicial adjudication under Section 18 of the aforesaid Act cannot be treated to be persona designata. In this connection their Lordships relied on an earlier decision of the Apex Court in the case of Central Talkies Ltd., Kanpur v. Dwarka Prasad which is quoted hereunder:
"... A personal designata is a 'person who is appointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.' (see Osborn's Concise Law Dictionary, 4th Edn. p. 253). In the words of Schwabe, CJ. in Parthasarathi Naidu v. Koteswara Rao, ILR 47 Mad 369 : AIR 1924 Madras 561 (FB), persona designata are 'persons selected to act in their private capacity and not in their capacity as Judges.' The same consideration applied also to a well known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purpose of the Eviction Act. The decision of Sapru, J. in the Allahabad case, with respect, was erroneous."
19. On the basis of the aforesaid ratio laid down by the earlier decision of the Apex Court their Lordships observed that the District Judge under Section 18 of the Act deciding the matter is not persona designata and he is a person who is adjudicating the matter as 'District Judge'. It was observed by their Lordships as under;
"When the aforesaid well settled tests for deciding whether an authority is a Court or not are applied to the powers and functions of the appellate authority constituted under Section 18 of the Rent Act, it becomes obvious that all the aforesaid essential trappings to constitute such an authority as a Court are found to be present. In fact, Mr. Nariman learned counsel for the respondent also fairly stated that these appellate authorities would be Courts and would not be persona designata"
20. Same is the position here in the present case that when the District Judge decides the matter as appellate authority against the order passed by the Munsif he is not persona designata, he decides the matter as a Court, though not strictly complying with the provisions of the Civil Procedure Code as specific procedure has been prescribed for disposal of the pre-emption matter under Section 9 of the Act of 1955. But, nonetheless, the fact remains that both the officers are essentially judicial officers and their orders cannot be made subject to review by the administrative Tribunal.
21. Nothing prevents the State Government from taking away the power of adjudication on the question of pre-emption under Section 9 of the Act of 1955 and restore it back to the revenue officers. But so long as this powers remains to be decided by judicial officers that is by the Munsif and the District Judge then their orders cannot be made subject to control of the administrative Tribunal as their orders are passed in exercise of judicial power, therefore, they can only be corrected by way of revision by the High Court.
22. In the case of Chhagan Las v. Municipal Corporation, Indore, somewhat similar question arose that under Section 149 of the M.P. Municipal Corporation Act, 1956 appeal against the order passed by the Municipal Commissioner lies to the District Court when any dispute arises as to the liability of any land or building or assessment and it was observed that the order passed by the learned District Judge shall be final and argument was that the order passed by the District Judge is final and no revision will lie to the High Court. This was negatived by the Apex Court and it was held that under Section 115 of the Civil Procedure Code, the High Court has power to revise the order passed by the Court subordinate to it. It was observed that it cannot be disputed that the District Court is subordinate Court and is liable to the revisional jurisdiction of the High Court.
23. Now coming to the judgment of Bhattacharya, J. and P.K. Ray. J., this aspect, which we have adverted to, above, was not placed before both the Benches. However, the question before Justice Bhattacharya was with regard to review application under Article 227 of the Constitution against the order passed by the Appellate Authority, i.e. the Additional District Magistrate and District Land Revenue Officer, 24-Parganas. Objection was raised by the other side with regard to maintainability of revision under Article 227 of the Constitution. Learned single Judge after examining the matter found that by virtue of Section 12 of the Act of 1997 that reference to the High Court should mean reference to Tribunal, therefore, the learned single Judge held that no such revision under Article 227 will lie before the High Court and held that because of the exclusion clause in Section 8 of the Act of 1997 the Tribunal alone has the authority to decide such appellate orders. With great respect to the learned single Judge, we are of the opinion as mentioned above that the 'Munsif and the 'District Judge' both are not 'authority' under the Act of 1955, therefore, their orders cannot be made subject to the order of the Tribunal and the exclusion clause will not operate as far as the orders passed by the 'District Judge' is concerned. As we have already discussed above that the order passed by both these authorities are orders passed by a Court therefore their orders in exercise of judicial power cannot be made subject to review by an administrative Tribunal. This amounts to breach of basic feature of the Constitution. Independence of judiciary is one of the basic feature of the Constitution of India and if the orders of judicial authority are made subject to the orders of administrative Tribunal then it will amount to changing the basic feature of the Constitution and that cannot be done as it is the settled principle of law. In this connection reference may be made to a decision of the Apex Court in the case of L. Chandra Kumar v. Union of India, wherein the Apex Court of the land has held as under:
"The power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also, part of the basic structure of the Constitution. This is because a situation were the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided."
24. Now coming to the judgment of P.K. Ray, J., the view taken by the learned single Judge, for reasons mentioned above, is correct that a revision against the order passed by the District Judge under Section 9(6) of the Act of 1955 will be maintainable to the High Court as the District Judge is subordinate to the High Court.
25. The learned Advocate General submitted that in view of Sections 6, 7, 8, 9 and 22 of the Act of 1997 no revision lies to the High Court and the jurisdiction of all Civil Courts have been excluded. It was also submitted that by substituting the word 'Munsif in place of 'revenue officer' specially empowered by the State Government in this behalf, the jurisdiction of the Executive Authority has not been transferred to judicial authority, the 'Munsif continues to be a persona designata as much as the revenue officer. This submission is absolutely misconceived and is being referred to be rejected for the reasons mentioned above. In this connection reference was made to the case of Brajnandan Sinha v. Jyoti Narain, where question arose whether the Commissioner appointed under Section 37 of Public (Inquiries) Act, 1850 is a Court or not. Their Lordships held that the Commissioner appointed under the Section 37 of Public Servants (Inquiries) Act, 1850 does not constitute a Court within the meaning of Contempt of Courts Act. This case is of no help to the petitioner because there cannot be any doubt about the appointment of 'Munsif and the 'District Judge'. Once the District Judge presides over the Court and orders are passed his orders are subject to judicial review and cannot be made subject to administrative review by the administrative Tribunal.
26. The next decision cited by the learned Advocate General is the case of Virinder Kumar v. State of Punjab, . There also the question arose whether any offence is committed in a judicial proceeding or not as Section 195(1)(b) apply to Judicial proceeding and in that context the question was whether the offence is committed in relation to proceedings before a 'Court' and in that context their Lordships held that what distinguishes a 'Court' from a quasi judicial Tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of the parties in a definitive Judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imparts an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial Tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court. Their Lordship found that the returning officer deciding on the validity of nomination paper under Section 36(2) is not a Court for the purpose of Section 195(1)(b) of the Code of Criminal Procedure. Therefore, this case also has no relevance to the issue involved in this matter.
27. After having rival submissions of the parties, we are of the opinion that the orders passed by the learned District Judge or Additional District Judge under Section 9(6) of the Act of 1955 will be amenable to revisional jurisdiction of High Court under Section 115 of the Constitution and the exclusion clause in the Act of 1997 will not be applicable so far as orders passed by the Judicial authority are concerned. However, this will not prevent the State Government from withdrawing the power conferred on the 'Munsif and the 'District Judge' to decide the pre-emption matter and restore it back to the revenue officers that will automatically attract Section 8 of the Act of 1997.
The reference is accordingly answered. Let these matters be remitted back to the learned trial Judge for disposal.
J.K. Biswas, J.
28. I agree.
N.B. If an urgent xerox certified copy of the judgment is applied for, the same is to be supplied to the applicant at an early date.
Under Article 246 of the Constitution of India the State Legislature has exclusive power to legislate with respect to matter in List-II and has concurrent power with respect to matters included List-Ill. The State Government cannot withdraw the power conferred on the 'Munsif and the 'District Judge' to decide pre-emption matter and restore it back to the Revenue Officer unless the State Legislature amend the existing laws of the land in accordance with law. The State Government is bound by the statute. The State Government has no right to withdraw the power of adjudication given to 'Munsif and District Judge without the necessary amendment of the provisions of Land Reforms Act, 1955 by the State Legislature. Therefore, the observation by the Hon'ble Division Bench presided over by the Hon'ble Chief Justice to the effect that nothing prevents the State Government from taking away the power of adjudication on the question of pre-emption under Section 9 of the Act of 1955 and restore it back to the Revenue Officer and the observation in the concluding portion of the judgment that this order will not prevent the State Government from withdrawing the power conferred on the 'Munsif and the 'District Judge' to decide the pre-emption matter and restore it back, Revenue Officers that will automatically attract Section 8 of the Act of 1997 is not correct.