Himachal Pradesh High Court
Tara Chand & Ors vs Virender Singh & Anr on 19 March, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 421 of 2014.
Reserved on: 10.3.2015.
.
Decided on: 19.3.2015.
Tara Chand & ors. ......Petitioners.
Versus
Virender Singh & anr. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioners:
For the respondents:
Justice Rajiv Sharma, J.
r to
Mr. Dalip K. Sharma, Advocate.
Mr. Y.P.Sood, Advocate.
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Mutation No. 388 dated 28.7.2010 of Mohal Khawangi, mutation No. 498 dated 28.7.2010 of Mohal Reckong Peo and mutation No. 147 of Mohal Japroden of Tehsil Kalpa, Distt. Kinnaur, H.P. were attested by the Asstt. Collector 2nd Grade, Kalpa after the death of Sh. Middle Singh, son of Sh. Tanba Chhering of Village Khawangi. The petitioners filed an appeal against the order dated 28.7.2010 before the Sub Divisional Collector, Kalpa. The petitioners have taken a specific ground that Middle Singh has not executed the 'Will' and preliminary inquiry before the attestation of mutation was not conducted. The Sub Divisional Collector, allowed the appeal on 10.7.2013 and order dated 28.7.2010 was set aside.
The Sub Divisional Collector has observed that while attesting the mutation A.C. 2nd Grade has not afforded an opportunity to the petitioners and proforma respondent to submit their version. Neither the scribe nor the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 2marginal witnesses of the Will were examined before the attestation of the mutation(s). The petitioners were not summoned. The A.C. 2nd Grade Kalpa .
was directed to attest the mutation of inheritance in equal shares amongst all the sons of late Sh. Middle Singh son of Sh. Tanba Chhering. Liberty was reserved to the respondents to get the genuineness of the Will adjudicated from the competent court of law.
2. The respondents, feeling aggrieved by the order dated 10.7.2013, filed an appeal before the Divisional Commissioner alongwith an application under Section 5 of the Limitation Act. The application is on record. Surprisingly, the Divisional Commissioner, Division Kinnaur at Shimla, stayed the impugned order dated 10.7.2013 without adjudicating upon the application filed under Section 5 of the Limitation Act in appeal No. 82 of 2014 on 15.7.2014. The petitioners filed revision petition No. 101 of 2014 before the Financial Commissioner (Appeals), against the order dated 15.7.2014. The Financial Commissioner (Appeals), dismissed the revision on 9.9.2014. Hence, this petition.
3. What emerges from the facts enumerated hereinabove, is that the order passed by the Assistant Collector 2nd Grade dated 28.7.2010 was set aside by the Sub Divisional Collector on 10.7.2013 by passing a speaking/detailed order. An appeal No. 82 of 2014 was preferred against the order dated 10.7.2013 on 15.7.2014 before the Divisional Commissioner, Division Shimla. The appeal was barred by limitation.
4. Section 15 of the H.P. Land Revenue Act, 1953 (hereinafter referred to as the Act), reads as under:
::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 3"Sec. 15. Limitation for Appeals:- Save as otherwise provided by this Act, the period of limitation for an appeal under the last foregoing section shall run from the date of the order appealed against, and shall be as follows, that is to say:-
.
(a) when the appeal lies to the Collector- thirty days.
(b) when the appeal lies to the Commissioner- sixty days.
(c) when the appeal lies to the Financial Commissioner-ninety days."
5. In the instant case, the appeal was required to be filed within 60 days. However, the fact of the matter is that the appeal was filed beyond this period and an application under Section 5 of the Limitation Act was also preferred alongwith the appeal No. 82 of 2014. The Divisional Commissioner was required to adjudicate upon the application filed under Section 5 of the Limitation Act, before staying the operation of order dated 10.7.2013.
6. Section 166 of the Act, provides that in computation of period for an appeal from, or an application for the review of, and order under this Act, the limitation thereof shall be governed by the Indian Limitation Act, 1908. The appeal was not properly constituted till the delay was condoned.
This is the basic procedure which was required to be followed by the Divisional Commissioner while passing the order dated 15.7.2014. He should have issued the notice on application filed under Section 5 of the Limitation Act. He could permit dasti service of the opposite party in order to facilitate the early hearing of the application under Section 5 of the Limitation Act. The Financial Commissioner has also erred in law by confirming the order passed by the Divisional Commissioner on 9.9.2014.
7. The application for condonation of delay is to be adjudicated before the appeal is taken up for hearing. The valuable right has accrued to ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 4 the petitioners after the expiry of the period of limitation in filing the appeal before the Divisional Commissioner. The Financial Commissioner (Appeals), .
came to the wrong conclusion that there was no miscarriage of justice and illegality or irregularity. The order passed by the Divisional Commissioner besides being irregular, is also illegal. The orders passed by the Divisional Commissioner and Financial Commissioner are without jurisdiction. The Assistant Collector, Collector, Commissioner, Financial Commissioner(Appeals) discharge quasi-judicial functions under the H.P. Land Revenue Act, 1953.
8. In the case of Krishnasami Panikondar vrs. Ramasami Chettiar and others, reported in AIR 1917 Privy Council, their lordships have held that the practice of admitting the time barred appeal without notice to the opposite party and allowing the question of sufficiency of cause shown for admitting it beyond limitation, to be raised at the hearing, is open to grave objection. Their lordships have held as under:
".....But while this procedure may have the sanction of usage, it is manifestly open to grave objection. It may, as in this case, lead to a needless expenditure of money and an unprofitable waste of time, and thus create elements of considerable embarrassment when the Court comes to decide on the question of delay. Their Lordships therefore desire to impress on the Courts in India the urgent expediency of adopting in place of this practice a procedure which will secure at the stage of admission, the final determination (after due notice to all parties) of any question of limitation affecting the competence of the appeal."
9. In sequel to the observations made by the Privy Council, the Law Commission considered this issue and observed as under:
"In the Fourteenth Report, attention was drawn to the practice which was previously followed of admitting an appeal subject to objections as to limitation being raised at the time of hearing, ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 5 when the memorandum of appeal was accompanied by a petition seeking condonation of delay under S. 5, Limitation Act. This practice has been disapproved by the Privy Council, which has stressed the expediency of adopting a procedure securing at .
the stage of admission the final determination (after due notice), of question of limitation affecting the competence of the appeal. Following this advice, the High Courts of Andhra Pradesh, Bombay and Madras have made appropriate amendments to the rule, and the Fourteenth Report recommended that similar amendments be made by other High Courts."
10. The Joint Committee of Parliament studied the recommendation. It also felt that a provision was also necessary that the Court should not grant stay of execution of decree unless the Court has decided to hear the appeal. The Committee, hence, added:
"Clause 87 (Original Clause 90) (ii)- The Committee are of the view that the Court, should not be empowered to grant ad interim stay of execution of the decree unless the court has, after hearing under Rule 11 of the Order 41, decided to hear the appeal. Sub-rule (3) in the proposed Rule 3-A of Order 41 has been inserted accordingly".
11. Consequently, the recommendation of the Law Commission and of the Joint Committee of Parliament were accepted and Rule 3-A was inserted after Order 41 Rule 3 CPC. The basic principles of CPC would be applicable in the proceedings pending before the revenue authorities. Rule 3-A of the CPC reads as follows:
"3A. Application for condonation of delay.- (1) When an appeal is presented after the expiry of the period of limitation specified there for, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.
(2) If the court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 6
(3) Where an application has been made under sub-rule (1), the court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the court does not, after hearing under rule 11, decide to .
hear the appeal."
12. The Division Bench of this Court in the case of Radha Soami Satsang Beas vrs. State of Himachal Pradesh and another, reported in 1984 PLJ 535, has held that the powers under Sections 13 to 16 of the H.P. Land Revenue Act, are quasi-judicial in nature. It has been held has under:
"13. It is true that under Section 12, Sub-section (4), subject to the limitations therein laid down, the Collector has the "control"
over all other Revenue Officers in his district. However, such control is apparently administrative in character and it does not extend to or encompass quasi-judicial or statutory functions specially vested in an inferior Revenue Officer. In other words, the power of control cannot be construed as empowering the Collector to interfere with a case pending before or disposed of by a subordinate Revenue Officer in exercise of the quasi-
judicial or statutory powers and functions conferred upon such Revenue Officer. The scheme of the statute under consideration leaves no room for doubt or debate on this aspect. Chapter II of the Act, which consists of Sections 7 to 28, deals with several matters under different headings. Sections 7 to 11 are grouped under the heading "Revenue Officers" and sub-heading "Class and powers". Sections 12 and 13 find place under the heading "Administrative Control". Sections 14 to 17 occur under the heading "Appeal, Review and Revision". Sections 18 to 23 form a fasciculus under the heading "procedure". Sections 24 to 28 are clubbed together under the heading "Supplemental Provisions". The arrangement of these various sections under different headings and the conferment of distinct powers thereunder on different authorities and, more particularly, the placement of Sections 12 and 13 under the heading "Administrative Control"
and Sections 14 to 17 under the heading "Appeal, Review and Revision", bring out the legislative intention of maintaining a clear demarcation between the different powers exercisable by superior Revenue Officers over inferior Revenue Officers in varying context, circumstances and situations and of separately categorising those powers according to their nature, character and content. It is manifest that whereas the powers under Sections 12 and 13 are administrative or executive in character, ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 7 those under Sections 14 to 17 are quasi-judiciai in nature. By and large, the same set of superior Revenue Officers are conferred with supervisory power over Revenue Officers placed lower in hierarchy under the various sections grouped together .
under these two different headings. However, there is a basic and essential distinction between the nature and character of such supervisory power and the occasions and conditions for its exercise are governed by different prescriptions. If this distinction is borne in mind, it would become manifest that the Collector, in exercise of the powers conferred by Section 12, is not competent to interfere with a case which is pending or which has been disposed of by a competent Revenue Officer in exercise of the statutory powers conferred upon him by Section 107 of the Act, Be it realised that a Revenue Officer exercising powers under Section 107 of the Act is a statutory authority exercising powers and discharging functions entrusted to him under the enactment and that the powers so vested are exercisable by him and none other. If the Revenue Officer has acted without or in excess of jurisdiction or has committed an illegality or irregularity in the exercise of his jurisdiction, such excess, error or irregularity is curable in exercise of revisional powers conferred by Section 17 of the Act but any attempt to do so in the purported exercise of powers conferred by Section 12 will be wholly lacking in power, authority and jurisdiction. It is, therefore, not possible to uphold the submission of the learned Advocate General that the impugned direction ordering fresh demarcation on the basis that the previous delimitation was not proper could have been issued by the second respondent in exercise of the powers vested in him under Section 12 of the Act."
13. This Court is of the considered view that the Assistant Collector or Collector, Commissioner and Financial Commissioner (Appeals), must have the requisite legal background to adjudicate the matters under the H.P. Land Revenue Act, 1953. They determine the valuable rights of the parties.
The quasi judicial authorities are also required to take notice of the facts and thereafter to apply the law. The adjudication by the revenue authorities has certain trappings of the Court as well.
::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 814. Their lordships of the Hon'ble Supreme Court in the case of Thakur Jugal Kishore Sinha vrs. The Sitamarhi Central Co-operative .
Bank Ltd. And another, reported in AIR 1967 SC 1494, have held that the Assistant Registrar discharging functions of Registrar under S. 48 read with S. 6 (2) of Bihar and Orissa Co-operative Societies Act is a Court. Their lordships have held a under:
"11. It will be noted from the above that the jurisdiction of the ordinary civil and revenue courts of the land is ousted under s. 57 L4 Sup. Cl/67-12 of the Act in case of disputes which fell under S. 48. A Registrar exercising powers under S. 48 must therefore be held to discharge the duties which would otherwise have fallen on the ordinary civil and revenue courts of the land. The Registrar has not merely the trappings of a court but in many respects he is given the same powers as are given to ordinary civil courts of the land by the Code of Civil Procedure including the power to summon and ;examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own ,order and even exercise the inherent jurisdiction of courts mentioned in s. 151 of the Code of Civil Procedure. In such -a case, there is no difficulty in holding that in adjudicating upon a dispute referred under s. 48 of the Act, the Registrar is to all intents and purposes a court discharging the same functions and ,duties in the same manner as a court of law is expected to do.
20. It was sought to be argued that a reference of a dispute had to be filed before the Registrar and under sub-s. 2(b) of s. 48 the Registrar transferred it for disposal to the Assistant Registrar and therefore his position was the same as that of a nominee under the Bombay Co- operative Societies Act. We do not think that contention is sound merely because sub-s. (2) (c) of s. 48 authorises the Registrar to refer a dispute for disposal of an arbitrator or arbitrators. This procedure was however not adopted in this case and we need not pause to consider what would have been the effect if the matter had been so transferred. The Assistant Registrar had all the powers of a Registrar in this case as noted in the delegation and he was competent to dispose of it in the same manner as the Registrar would have done. It is interesting to note that under r. 68 sub-r. (10) of the Bihar and Orissa Cooperative Societies Rules, 1959 :
"In proceedings before the Registrar or arbitrator a party may be represented by a legal practitioner."::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 9
In conclusion, therefore, we must hold that the Assistant Registrar was functioning as a court in deciding the dispute between the bank and the appellant and Jagannath Jha."
.
15. Their lordships of the Hon'ble Supreme Court in the case of Union of India vrs. R. Gandhi President, Madras Bar Association & connected matter, reported in (2010) 11 SCC 1, have held that so far as technical members are concerned, mere experience in civil service, is not enough and to be technical members of tribunals, persons concerned should be persons with expertise in the area of law concerned or allied subjects and mere experience in civil service cannot be treated as technical expertise in the area of law concerned. Their lordships have further held that the rule of law can be meaningful only if there is an independent and impartial judiciary to render justice. An independent judiciary can exist only when persons with competence, ability and independence with impeccable character man the judicial institutions. Their lordships have held a under:
"106. We may summarize the position as follows:
(a) A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal.
(b) All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a Judicial Tribunal.
This means that such Tribunal should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters and the members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.
(c) Whenever there is need for `Tribunals', there is no presumption that there should be technical members in the Tribunals. When any jurisdiction is shifted from courts to Tribunals, on the ground of pendency and delay in courts, and the jurisdiction so transferred does not involve any technical aspects requiring the assistance of experts, the Tribunals should normally have only judicial members. Only where ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 10 the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, where presence of technical members will be useful and necessary, Tribunals should have technical members. Indiscriminate appointment of technical members in all Tribunals will .
dilute and adversely affect the independence of the Judiciary.
(d) The Legislature can re-organize the jurisdictions of Judicial Tribunals. For example, it can provide that a specified category of cases tried by a higher court can be tried by a lower court or vice versa (A standard example is the variation of pecuniary limits of courts). Similarly while constituting Tribunals, the Legislature can prescribe the qualifications/eligibility criteria. The same is however subject to Judicial Review. If the court in exercise of judicial review is of the view that such tribunalisation would adversely affect the independence of judiciary or the standards of judiciary, the court may interfere to preserve the independence and standards of judiciary. Such an exercise will be part of the checks and balances measures to maintain the separation of powers and to prevent any encroachment, intentional or unintentional, by either the legislature or by the executive.
108. The Legislature is presumed not to legislate contrary to rule of law and therefore know that where disputes are to be adjudicated by a Judicial Body other than Courts, its standards should approximately be the same as to what is expected of main stream Judiciary. Rule of law can be meaningful only if there is an independent and impartial judiciary to render justice. An independent judiciary can exist only when persons with competence, ability and independence with impeccable character man the judicial institutions. When the legislature proposes to substitute a Tribunal in place of the High Court to exercise the jurisdiction which the High Court is exercising, it goes without saying that the standards expected from the Judicial Members of the Tribunal and standards applied for appointing such members, should be as nearly as possible as applicable to High Court Judges, which are apart from a basic degree in law, rich experience in the practice of law, independent outlook, integrity, character and good reputation. It is also implied that only men of standing who have special expertise in the field to which the Tribunal relates, will be eligible for appointment as Technical members."
16. In the case of State of Gujarat and another vrs. Gujarat Revenue Tribunal Bar Association and another, reported in (2012) 10 SCC 353, their lordships of the Hon'ble Supreme Court have held that ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 11 where there is a lis between the two contesting parties and a statutory authority is required to decide such dispute between them, such an .
authority may be called as a quasi-judicial authority i.e. a situation where,
(a) a statutory authority is empowered under a statute to do any act; (b) the order of such authority would adversely affect the subject; and (c) although there is no lis or two contending parties, and the contest is between the authority and the subject; and (d) the statutory authority is required to act judicially under the statute, the decision of the such authority is a quasi-
judicial decision. Their lordships have held as under:
"18. Tribunals have primarily been constituted to deal with cases under special laws and to hence provide for specialised adjudication alongside the courts. Therefore, a particular Act/set of Rules will determine whether the functions of a particular Tribunal are akin to those of the courts, which provide for the basic administration of justice. Where there is a lis between two contesting parties and a statutory authority is required to decide such dispute between them, such an authority may be called as a quasi-judicial authority, i.e., a situation where, (a) a statutory authority is empowered under a statute to do any act (b) the order of such authority would adversely affect the subject and (c) although there is no lis or two contending parties, and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is a quasi judicial decision. An authority may be described as a quasi-judicial authority when it possesses certain attributes or trappings of a 'court', but not all. In case certain powers under C.P.C. or Cr.P.C. have been conferred upon an authority, but it has not been entrusted with the judicial powers of the State, it cannot be held to be a court.
21. The present case is also required to be examined in the context of Article 227 of the Constitution of India, with specific reference to the 42nd Constitutional Amendment Act 1976, where the expression 'court' stood by itself, and not in juxtaposition with the other expression used therein, namely, 'Tribunal'. The power of the High Court of judicial superintendence over the Tribunals, under the amended Article 227 stood obliterated. By way of the amendment in the sub-::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 12
article, the words, "and Tribunals" stood deleted and the words "subject to its appellate jurisdiction" have been substituted after the words, "all courts". In other words, this amendment purports to take away the High Court's power of .
superintendence over Tribunals. Moreover, the High Court's power has been restricted to have judicial superintendence only over judgments of inferior courts, i.e. judgments in cases where against the same, appeal or revision lies with the High Court. A question does arise as regards whether the expression 'courts' as it appears in the amended Article 227, is confined only to the regular civil or criminal courts that have been constituted under the hierarchy of courts and whether all Tribunals have in fact been excluded from the purview of the High Court's superintendence. Undoubtedly, all courts are Tribunals but all Tribunals are not courts.
22. The High Court's power of judicial superintendence, even under the amended provisions of Article 227 is applicable, provided that two conditions are fulfilled; firstly, such Tribunal, body or authority must perform judicial functions of rendering definitive judgments having finality, which bind the parties in respect of their rights, in the exercise of the sovereign judicial power transferred to it by the State, and secondly such Tribunal, body or authority should be the subject to the High Court's appellate or revisional jurisdiction.
23. In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 346, this Court held that, in the Central Administrative Tribunal (hereinafter referred to as the 'CAT'), the presence of a judicial member was in fact a requirement of fair procedure of law, and that the administrative Tribunal must be presided over in such a manner, so as to inspire confidence in the minds of the people, to the effect that it is highly competent and an expert body, with judicial approach and objectivity and, thus, this Court held that the persons who preside over the CAT, which is intended to supplant the High Court must have adequate legal training and experience. This Court further observed that it was desirable that a high- powered committee, headed by a sitting Judge of the Supreme Court who has been nominated by the Chief Justice of India to be its Chairman, should select the persons who preside over the CAT, to ensure the selection of proper and competent people to the office of trust and help to build up its reputation and accountability. The Tribunal should consist of one Judicial Member and one Administrative Member on any Bench.
24. In L. Chandra Kumar v. Union of India & Ors., AIR 1997 SC 1125, this Court held that the power of judicial review of the High Court under Article 226 of the Constitution of India, being a basic feature of the Constitution cannot be excluded. In this context, the Court held:::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 13
"88....It must not be forgotten that what is permissible to be supplanted by another equally effective and efficacious institutional mechanism is the High Courts and not the judicial review itself......."
.
The Court further observed that the creation of this Tribunal is founded on the premise that, specialised bodies comprising of both, well trained administrative members and those with judicial experience, would by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. The contention that the said Tribunal should consist only of a judicial member was rejected, and it was held that such a direction would attack the primary grounds of the theory, pursuant to which such Tribunals were constituted.
25. In V.K. Majotra & Ors. v. Union of India & Ors., AIR 2003 SC 3909, this Court reversed the judgment of the Allahabad High Court wherein, direction had been issued that the Vice- Chairman of the CAT could be only a retired Judge of the High Court, i.e., a Judicial Member and that such a post could not be held by a Member of the Administrative Service, observing that such a direction had put at naught/obliterated from the statute book, certain provisions without striking them down.
26. A Constitution Bench of this Court in Statesman (Private) Ltd. v. H.R. Deb & Ors., AIR 1968 SC 1495, examined the provisions of Sections 7(3)(d) and g(1) of the Industrial Disputes Act, 1947, which contain the expression 'judicial office', and held that a person holds 'judicial office' if he is performing judicial functions. The scheme of Chapters V and VI of the Constitution deal with judicial office and judicial service. Judicial service means a separation of the judiciary from the executive in public services. The functions of the labour court are of great public importance and are quasi-judicial in nature, therefore, a man having experience of the civil side of the law is more suitable to preside over it, as compared to a person working on the criminal side. Persons employed performing multifarious duties and, in addition, performing some judicial functions, may not truly fulfil the requirement of the statute. Judicial office thus means, a fixed position for the performance of duties, which are primarily judicial in nature.
27. In Kumar Padma Prasad v. Union of India & Ors., (1992) 2 SCC 428, this Court held that the expression, `judicial office' in the generic sense, may include a wide variety of offices which are connected with the administration of justice in one way or another. The holder of a judicial office under Article 217(2)(a), means a person who exercises only judicial functions, determines cases inter- se parties and renders decisions in purely judicial capacity. He must belong to the judicial services which is a class in itself, is free from executive control, and is ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 14 disciplined to hold the dignity, integrity and independence of the judiciary. The Court held that `judicial office' means a subsisting office with a substantive position, which has an existence independence from its holder.
.
........
33. During the course of arguments before the High Court, learned Additional Advocate General had conceded that the judgments and orders passed by the Tribunal can be challenged under Article 227 of the Constitution. Thus, it has been conceded before the High Court that the High Court has supervisory control over the Tribunal, to the extent that it can revise and correct the judgments and orders passed by it. In such a fact-situation, the consultation/concurrence of the High Court, in the matter of making the appointment of the President of the Tribunal is required.
34. The object of consultation is to render the consultation meaningful to serve the intended purpose. It requires the meeting of minds between the parties involved in the process of consultation on the basis of material facts and points, to evolve a correct or at least satisfactory solution. If the power can be exercised only after consultation, consultation must be conscious, effective, meaningful and purposeful. It means that the party must disclose all the facts to other party for due deliberation. The consultee must express his opinion after full consideration of the matter upon the relevant facts and quintessence."
17. In the case of Satya Pal Anand vrs. State of Madhya Pradesh and another, reported in (2014) 7 SCC 244, their lordships of the Hon'ble Supreme Court have held that the Registrars, Joint Registrars of the Co-operative Societies and other officials discharging quasi-judicial functions are supposed to be conscious of competing rights and decide issues justly, fairly and by legally sustainable orders. The State Government was directed to appoint suitable persons as Registrars, Joint Registrars, etc. commensurate with the functions exercised under scheme of State Cooperative Societies Act. Their lordships have held as under:
"20. Having determined the question raised, we would like to emphasize the need for appointment of suitable persons not only as ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 15 Registrar, Joint Registrar etc. but as Chairman and members of the tribunal as well. While discharging quasi-judicial functions Registrar, Joint Registrars etc. have to keep in mind that they have to be independent in their functioning. They are also expected to acquire .
necessary expertise to effectively deal with the disputes coming before them. They are supposed to be conscious of competing rights in order to decide the case justly and fairly and to pass the orders which are legally sustainable.
21. In this behalf, we would like to refer to judgment dated 3.9.2013 passed in the Review Petition (C) No.2309/2012 (Namit Sharma case). In that case, one unfortunate feature that was noted was that experience over the years has shown that the orders passed by Information Commissions have, at times, gone beyond the provisions of the Right to Information Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act. The reasons for this experience about the functioning of the Information Commissions could be either that the persons who do not answer the criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief Information Commissioner or that the persons appointed even when they answer the aforesaid criteria, they do not have the required mind to balance the interests indicated in the Act. It was therefore insisted that experienced suitable persons should be appointed who are able to perform their functions efficiently and effectively. In this behalf certain directions were given and one of the directions was that while making recommendation for appointment of CIC and Information Commissioners the Selection Committee must mention against name of each candidate recommended the facts to indicate his eminence in public life ( which is the requirement of the provision of that Act), his knowledge and experience in the particular field and these facts must be accessible to the citizens as part of their right to information under that Act, after the appointment is made.
22. Taking clue from the aforesaid directions, and having gone through the similar dismal state of affairs expressed by the petitioner in the instant petition about the functioning of the cooperative societies, we direct that the State Government shall, keeping in mind the objective of the Act, the functions which the Registrar, Joint Registrar etc. are required to perform and commensurate with those, appointment of suitable persons shall be made. Likewise, having regard to the fact that the Chairman of the Tribunal is to be a judicial person, namely, Former Judge of the High Court or the District Judge, we are of the opinion that for appointment of the Chairman and the Members of the Tribunal, the respondent- State is duty bound to keep in mind and follow the mandate of the Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for appointment of the Chairman and Members of the Tribunal, the selection to these posts should preferably be made by the Public Service Commission in consultation with the High Court."::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 16
18. In the case of Mamuda Khateen and ors. Vrs. Beniyan Bibi and ors., reported in AIR 1976 Calcutta 415, the Full Bench has held .
that where an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of delay alongwith the memorandum of appeal, until the application under Section 5 of the Limitation Act is allowed, the appeal cannot be finally allowed or admitted. It has been held as follows:
"7. It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under Section 5 is allowed the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application under Section 5 the appeal is non est. In that event, the question of rejecting a memorandum of appeal does not arise at all at this stage."
19. In the instant case, the application under Section 5 of the Limitation Act, ought to have been adjudicated before granting the interim order. The orders passed by the Divisional Commissioner and the Financial Commissioner are without jurisdiction and thus no nest in the eyes of law.
20. In the case of Des Raj vrs. Om Parkash and another, reported in AIR 1986 Punjab & Haryana 3, the Division Bench has held that it is incumbent upon the Court to decide the application before it proceeds to decide the appeal on merits. It has been held as under:
"9. It is clear from sub-rule (I) of R. 3A that an appellant at the time of filing an appeal, which is barred by limitation, is required to file an application giving the reasons that he had sufficient cause for not filing the appeal within the period of limitation. It is incumbent upon the court to decide the application before it proceeds to decide the appeal on merits. The court can dismiss the application without issuing notice or after issuing notice to the respondent. In case the court accepts ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 17 the application, only then it can proceed under R. 1. or Rr. 13 of O. 41. Therefore, if the application for condoning the delay in filing the appeal is dismissed, the question of registration of the appeal under R. 9 and its consideration under R. 11 does not .
arise. In such a situation it cannot be held that the order of dismissal amounts to affirmance of the decree of the trial court and, therefore, is decree within the meaning of s. 2(2) of the code. The above conclusion also finds support from the objects and reasons for introduction of R. 3A which has been reproduced above. In the above view I am fortified the following observations in Chhitu v, Mathuralal, AIR 1981 Madh Pra 13;
"The governing expression in the sub-rule (2) shall be finally decided by the court before it proceeds to deal with the appeal under R. 11 or R. 13, as the case may be makes it imperative for the appellate court first to decide the question of limitation and puts an embargo on its (court's) power to proceed further in the appeal. The appeal cannot be heard even on the question of admission much less on merits. In effect there is no appeal before the court unless the delay is condoned. This conclusion gets buttressed from the expression 'the appeal is proposed to be filed'. The use of this expression even in face of the fact that memorandum of appeal along with the application for condonation of delay is on record, clearly bears out the intention of the legislature that till the delay is not condoned, it cannot be treated in law that there is an appeal before the Court."
21. In the case of Chhelaram vrs. Manak, reported in AIR 1997 Rajasthan 284, the learned Single Judge has held that Rule 3-A erects a positive bar disabling a Court to pass any order in any appeal filed before it without taking care to first decide finally the question of limitation, as to whether or not the appeal is time barred. It has been held as under:
"10. It is clear from Sub-rule (1) of Rule 3 A that at the time of presentation of appeal which is barred by limitation appellant is required to file an application that he has sufficient cause for not filing the appeal within the period of limitation. It is incumbent upon the Court to decide the application before it proceeds to decide the appeal on merits. In case the Court accepts the application only then it can proceed under Rule 11 or Rule 13. If the application for condoning the delay in filing the appeal is dismissed the question of registration of appeal ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 18 under Rule 9 and its consideration under Rule 11 does not arise. In such a situation it cannot be held that the order of dismissal amounts to affirmation of the decree of the trial Court and, therefore, is a decree within the meaning of Section 2(2) of .
the C.P.C.
11. As a matter of fact Rule 3A erects a positive bar disabling a Court to pass any order in any appeal filed before it without taking care to first decide finally the question of limitation, as to whether or not the appeal is time-barred. The legislature has been so particular that it has debarred the Court even from making any order for stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not after hearing under Rule 11, decides about the consideration of appeal. It is thus obvious that the Court will have to decide first as to whether the delay should be condoned or not and if the Court comes to the conclusion that there were not sufficient grounds to condone the delay, the appeal shall not be treated to have been admitted and in that case appeal cannot be preferred to the higher Court."
22. It is reiterated that the functions discharged by the revenue authorities under the H.P. Land Revenue Act, 1953 are quasi-judicial in nature. They determine the lis between the parties. Their decision is binding upon the parties subject to appeal. The orders passed by the appellate authority are open to supervision under Article 226 and 227 of the Constitution of India. Under the scheme of the H.P. Land Revenue Act, 1953, in certain contingencies the revenue authorities can convert themselves into Courts and their orders are to be treated as decrees.
23. Accordingly, the petition is allowed. The order of the Divisional Commissioner, Shimla H.P. in Case No. 82 of 2014 dated 15.7.2014 as well as the order dated 9.9.2014 passed by the Financial Commissioner, are quashed and set aside. The Divisional Commissioner is directed to decide the application filed by the respondent under Section 5 of the Limitation Act in Appeal No. 82 of 2014, within three months from today. The State ::: Downloaded on - 15/04/2017 17:49:28 :::HCHP 19 Government is directed to appoint/post suitable officers having legal background as Commissioners and Financial Commissioner (Appeals), .
under the H.P. Land Revenue Act, 1953 and also to appoint Registrars, Addl. Registrars/Joint Registrars under the H.P. Co-operative Societies Act, 1968, commensurate with the functions exercised by them.
24. The petition is disposed of, so also the pending application(s), if any.
March 19, 2015, ( Rajiv Sharma ),
(karan) Judge.
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