Madhya Pradesh High Court
N.K. Saxena And Anr. vs State Of M.P. And Anr. on 5 March, 2008
Equivalent citations: 2008(2)MPHT365
Bench: Chief Justice, Prakash Shrivastava
ORDER A.K. Patnaik, C.J.
1. The petitioner No. 1 is a practicing Advocate and practices mainly in co-operative matters. He is also the Vice President of the Bar Association of M.P. State Co-operative Tribunal. The petitioner No. 2 is active in the co-operative movement in the State of Madhya Pradesh. The petitioners have filed this writ petition as a Public Interest Litigation challenging the appointment of respondent No. 2 as Chairman of the M.P. State Co-operative Tribunal (for short 'the Tribunal') and have prayed for a writ of quo warranto for removal of the respondent No. 2 from the post of Chairman of the Tribunal. The ground for challenge to the appointment of the respondent No. 2 as Chairman of the Tribunal is that under Section 77 (3) (a) of the M.P. Co-operative Societies Act, 1960 (for short 'the Co-operative Act'), a person who has been a Judge of the High Court or has held the office of District Judge for not less than five years is qualified to be appointed as Chairman of the Tribunal, but the respondent No. 2 was not a Judge of the High Court and has also not held the office of the District Judge for five years.
2. In the return filed by the respondent No. 2, a preliminary objection has been taken that there is no element of public interest in the writ petition and the petitioners have filed the writ petition only because the respondent No. 2 has decided a revision petition and a review petition against the petitioners. The respondent No. 2 has further stated that he was promoted as officiating District Judge in the Higher Judicial Service of the State by order dated 14-5-1987 and thereafter was sent on deputation as Deputy Secretary, Department of Law & Legislative by order dated 9-11-1990, was Additional Judge to the Court of District Judge, Dewas from 12-5-1994, he was sent on deputation as Additional Welfare Commissioner, Bhopal Gas Victim from 15-3-1995, he was transferred as District & Sessions Judge, Bhind by order dated 22-4-1996 where he joined on 13-5-1996, he was posted on deputation as Registrar, High Court by order dated 10-5-1999, then as Registrar (Vigilance) by order dated 28-11-2001 and as Registrar General of the High Court by order dated 28-3-2002. He was granted extension for a period of six months on the post of Registrar General, High Court with effect from 1-7- 2003 and continued on extension till 30-6-2005. The case of the respondent No. 2 is that he has worked on the post of District Judge, Additional District Judge and other deputational posts equivalent to the post of District Judge and Additional District Judge since 1987.
3. At the hearing, Mr. Ankit Saxena, learned Counsel for the petitioners, submitted that in the year 1976, a provision was made in Sub-section (3) (a) of Section 77 of the Co-operative Act providing that a person who has held the office of District Judge for not less than five years would be qualified for appointment to the post of Chairman of the Tribunal. He submitted that the Court of District Judge and the Court of Additional District Judge had been classified as two different Courts in the M.P. Civil Courts Act, 1958 (for short 'the Civil Courts Act'). He submitted that the amendments introduced in the Civil Courts Act after 1976 cannot be considered by the Court while interpreting the provisions of Section 77 (3) (a) of the Co-operative Act made in the year 1976. He further submitted that in Kumari Shrilekha Vidyarthi and Ors. v. Stale of U.P. and Ors. , the Supreme Court has held that the word 'office' means the right and duty to exercise an employment or a position of authority and trust to which certain duties are attached. He argued that the expression 'office of a District Judge' used in Section 77 (3) (a) of the Co-operative Act has to be interpreted in the light of such meaning given to the word 'office' and only those who have the right and duty to exercise the powers of District Judge can be said to be holding the office of District Judge. He submitted that in the Civil Courts Act, the powers and duties of the office of the District Judge are different from those of an Additional District Judge. In particular, he referred to the provisions in Section 14 of the Civil Courts Act, which says that the District Judge shall superintend and control all other Civil Courts established including all Additional Judges, Section 15, which says that the District Judge may by order in writing direct that any civil business cognizable by his Court, or by other Civil Courts established under Section 5 shall be distributed amongst himself and Additional Judges, Section 18, which states that in case of temporary vacancy in the office of District Judge, the senior most Judge, according to cadre seniority as per hierarchy shall discharge the duty, and the provisions of Section 19 which says that any District Judge leaving the headquarters and proceeding on duty to any place may delegate to the senior most Additional Judge of the Court the powers of performing such duties as may be emergent and of disposing of any emergent matter. Referring to all these provisions, he argued that the provisions of the Civil Courts Act arc therefore clear that the powers and duties of a District Judge are different from the powers and duties of the Additional District Judge. He also referred to Section 24 of the Code of Civil Procedure, 1908 (for short 'the CPC) by which powers have been vested in the District Court to transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and to withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and try and dispose of the same and submitted that Sub-section (3) of Section 24 of the CPC provides that the Courts of Additional and Assistant Judges shall be deemed to be subordinate to the Court of District Judge and this will go to show that the powers and duties of the Additional District Judge are different from the powers and duties of the District Judge.
4. Mr. Saxena cited the decision of the Supreme Court in Kuldip Singh v. State of Punjab and Anr. , wherein the Supreme Court has taken a view that under Section 18 of the Punjab Courts Act, 1918, the Court of Additional Judge is constituted a distinct class of Court and Additional Judges cannot discharge all judicial functions of District Judge. He also relied on the decision of this Court in Nannulal Kishanlal (Firm) v. New Malwa Transport Co. and Ors. 1972 MPLJ 36, in which a learned Single Judge of this Court has held that the Court of Additional District Judge is distinct from the Court of District Judge and the Additional District Judge can exercise appellate powers 'only when the appellate work is assigned to him by the District Judge.
5. Mr. Saxena submitted that the respondent No. 2 no doubt has put in about seven years as Additional District Judge and District Judge but he has worked as District Judge only for three years and one month and, therefore, he has not held the office of the District Judge for five years and was not qualified to be appointed as Chairman of the Tribunal under Section 77 (3) (a) of the Co-operative Act. He submitted that since the petitioners are interested in co-operative cases both as Advocates and otherwise, they have an interest in ensuring that a person qualified to the appointed as Chairman of the Tribunal under Section 77 (3) (a) of the Co-operative Act is appointed as Chairman of the Tribunal and for this reason, they have filed this writ petition as a Public Interest Litigation.
6. Mr. V.S. Shroti, learned Senior Counsel appearing for the respondent No. 2, on the other hand, submitted that by M.P. Act No. 17 of 1982, amendments were introduced in the M.P. Civil Courts Act, 1958 and it will be clear from the M.P. Civil Courts Act, 1958, as amended by M.P. Act No. 17 of 1982 that the Additional District Judge exercises the same powers and duties as the District Judge. In particular, he referred to the provisions of Section 2 (a) of the Civil Courts Act to show that District Judges and Additional District Judges were both included in the "cadre of Higher Judicial Service". He referred to the provisions of Sections 6 and 7 of the Civil Courts Act to show that the Additional District Judge exercises the original jurisdiction of the District Judge and also discharges the functions of the District Judge. He also referred to the provisions of Section 13 of the Civil Courts Act to show that the appellate jurisdiction vested in the Court of District Judge can also be exercised by the Additional District Judge. He argued that it would be clear from the provisions of the Civil Courts Act that the duties and powers of the District Judge and the Additional District Judge are one and the same and, therefore, the expression 'office of the District Judge' in Section 77 (3) (a) of the Act will mean not only the office of the District Judge but also the office of the Additional District Judge.
7. Mr. Shroti cited the decision in State of Assam v. Horizon Union and Anr. , in which the Supreme Court has held that an Additional District Judge was qualified under Section 7-A(3)(aa) of the Industrial Disputes Act, 1947 to be appointed as Presiding Officer of the Industrial Tribunal. He also relied on the decision in Statesman (Private) Ltd. v. H.R. Deb and Ors. , in which the Supreme Court has taken a view that there was no distinction between judicial function and Judicial office and that a Magistrate exercising judicial function was holding judicial office and was qualified for appointment as Presiding Officer of a Labour Court under Section 7 of the Industrial Disputes Act, 1947. He also referred to the observations of the Supreme Court in the case of Statesman (Private) Ltd. (supra), that the High Court in the quo warranto proceedings should be slow to pronounce upon the matter unless there is a clear infringement of the law.
8. Mr. Shroti submitted that the respondent No. 2 was appointed as Additional District Judge after the M.P. Act No. 17 of 1982 amended the Civil Courts Act and provided therein that the Additional District Judge can discharge all the functions and exercise all the powers of the District Judge and therefore the respondent No. 2 who has worked as Additional District Judge and District Judge for a period of more than seven years approximately held the office of the District Judge and was qualified under Section 77 (3) (a) of the Act to be appointed as Chairman of the Tribunal. He submitted that in any case, the petitioners had no locus standi to file this public interest litigation challenging the appointment of the respondent No. 2 as the Chairman of the Tribunal.
9. We are not impressed with the objection of the respondent No. 2 that the petitioners have no locus standi to file this writ petition as a Public Interest Litigation. The petitioner No. 1 is an Advocate practicing in co-operative matters and the petitioner No. 2 is interested in the co-operative movement in the State. Both the petitioners have therefore substantial interest in ensuring that a person who is qualified as per the provisions of the Co-operative Act to hold the office of Chairman of the Tribunal is appointed as Chairman of the Tribunal.
10. The question that arises for decision in this Public Interest Litigation is whether the respondent No. 2 has the qualification to be appointed as Chairman of the Tribunal as prescribed in Section 77(3)(a) of the Co-operative Act. Section 77(3)(a) of the Co-operative Act is quoted herein below:
77. Madhya Pradesh State Co-operative Tribunal:
(1) *** *** *** *** *** (2) *** *** *** *** *** (3) (a) No person shall be qualified to be the Chairman of the Tribunal unless he had been a Judge of a High Court or has held the office of a District Judge for not less than five years.
It will be clear from the language of Section 77 (3) (a) of the Co-operative Act that where a person other than a High Court Judge is appointed as Chairman of the Tribunal, he must have held the office of the District Judge 'for not less than five years'. The Co-operative Act does not define the expression "office of the District Judge" nor does it define the term "office".
11. The term 'office' has different connotations and is not easy to interpret. As has been observed by V.R. Krishna Iyer, J., in Madhukar G.E. Panakakar v. Jaswant Chobbidas Rajani and Ors. :
11...To begin with the very beginning; what is an office ? - too simplistic to answer with case that it the same sense. Indeed, in Latin and English, this word has protean connotations and judicial choice reaches the high point of frustration when the highest Courts here and abroad have differed, dependent on varying situations, or statutory schemes, the mischief sought to be suppressed and the surrounding social realities....
In Statesman v. Deb (supra), however, the Supreme Court observed:
An office means no more than a position to which certain duties are attached. According to Earl Jowitt's Dictionary a public office is one which entitles a man to act in the affairs of others without their appointment or permission.
In Ku. Shrilekha Vidyarthi and Ors. v. State of U.P. and others (supra), the Supreme Court similarly held that 'office' means the rights and duties attached to an authority.
12. We have therefore to examine the provisions of the Civil Courts Act to find out whether the Additional District Judge exercises the same powers and discharges the duties as the District Judge. Sections 3, 6, 7, 13, 14, 15, 18 and 19 of the Civil Courts Act, as amended by Act No. 17 of 1982, on which learned Counsel for the parties have relied on, are extracted herein below:
3. Classes of Civil Courts.:
(1) In addition to the Courts established under any other law for the time being in force, there shall be the following classes of Courts, namely:
(1) the Court of the District Judge;
(2) the Court of the Additional District Judge;
(3) the Court of the Civil Judge (Class I); and (4) the Court of the Civil Judge (Class II).
(2) A Presiding Officer of the Court of District Judge, Additional Judge to the Court of District Judge or Additional District Judge shall be from the cadre of Higher Judicial Service:
Provided that a Judge from the supernumerary cadre of Additional District Judge may also be appointed for the time being to a Court of Additional District Judge.
(3) An Additional Judge to the Court of Civil Judge may be appointed from the cadre of Lower Judicial Service.
(4) The Court of District Judge shall include the Court of Additional Judge to the Court of District Judge and the Court of Civil Judge Class I or Class II shall include the Court of Additional Civil Judge to that Court.
6. Original Jurisdiction of Civil Courts.:
(1) Subject to the provisions of any law for the time being in force:
(a) the Court of the Civil Judge (Class II) shall have jurisdiction to hear and determine any suit or original proceeding of a value not exceeding Rs. 10,000.
(b) the Court of the Civil Judge (Class I) shall have jurisdiction to hear and determine any suit or original proceeding of a value not exceeding Rs. 20,000.
(c) the Court of the District Judge and the Court of the Additional District Judge shall have jurisdiction to hear and determine any suit or original proceeding without restriction as regards value.
(2) The local limits of the jurisdiction of the Courts specified in clauses (a) and (b) of Sub-section (1) shall be such as the State Government may, by notification, define.
(3) Nothing in clauses (a), (b) and (c) of Sub-section (1) shall affect any suit or original proceedings instituted before 26th January, 1979.
7. Principal Civil Courts of Original Jurisdiction.:
(1) The Court of the District Judge shall be the Principal Civil Court of original jurisdiction in the civil district.
(2) An Additional District Judge shall discharge any of the functions of a District Judge, including the functions of the Principal Civil Court of original jurisdiction, which the District Judge may by general or special order assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge.
13. Appellate Jurisdiction.:
(1) Save as otherwise provided by any law for the time being in force, appeals from decrees or orders of Courts exercising original jurisdiction shall lie as follows:
(a) from a decree or order of the Court of the Civil Judge (Class I) or of the Civil Judge (Class II) - to the Court of the District Judge;
(b) from a decree or order of the Court of the District Judge or Additional District Judge - to the High Court.
Explanation:- The Court of the Civil Judge or the Court of the District Judge shall include an Additional Judge to that Court.
(2) Notwithstanding the fact that a suit or proceeding was instituted or commenced prior to 26th January, 1979, an appeal against any decree or order passed in such suit or proceeding shall lie as provided in Sub-section (1).
(3) Nothing in this section shall apply to any appeal instituted before 26th January, 1979.
14. Subject to the general superintendence and control of the High Court, the District Judge shall superintend and control all other Civil Courts established including all Additional Judges appointed to such Courts under this Act in the local area within his jurisdiction, and in the discharge of such functions it shall be his duty to:
(a) inspect or cause to be inspected the proceedings of the Courts, Judges and offices under his control;
(b) give such administrative directions with respect to any matters as he may think fit; and
(c) call for such reports and returns from the Subordinate Courts and Judges in the district as may be prescribed by the High Court or as he may require for administrative purposes.
15. Power to distribute business.:
(1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908), or the law relating to Courts of Small Causes, for the time being in force in any area, or in any provisions contained in this Act, the District Judge may, by order in writing, direct that any civil business cognizable by his Court or by other Civil Courts established under Section 5, in his civil district, shall be distributed amongst himself and Additional Judges, if any, of his Court, as also amongst other Courts under his control and amongst Additional Judges of such other Courts 'inter se' in such manner as he deems fit:
Provided that, except in so far as it may affect the exclusive jurisdiction of a Court of Small Causes, or of a Court invested with the jurisdiction of a Court of Small Causes, a direction given under this section shall not empower any Court to exercise powers or deal with business beyond the limits of its pecuniary and notified territorial jurisdiction.
(2) Any judicial act in any suit, appeal or proceeding, instituted in a Court of competent jurisdiction, shall not be invalid only by reason of the fact that such institution was not in accordance with the order of distribution of business referred to in Sub-section (1).
(3) Whenever it appears to any Court, as is referred to in Sub-section (2) that institution of suit, appeal or proceeding, pending before it, was not in conformity with the order of distribution of business made under Sub-section (1), it shall submit the record of such suit, appeal or proceeding, as the case may be, to the District Judge for appropriate orders, and the District Judge in relation thereto may pass orders either transferring the concerned record to proper Court as per order of distribution of business or otherwise to any other Court of competent jurisdiction.
(4) In distribution of civil business under Sub-section (1), the District Judge shall be guided by such principles as the High Court may, by rules, prescribe.
18. Temporary vacancy in the office of the District Judge.- In the event of death of a District Judge or his absence from civil district on leave or in the event of his being prevented from performing his duties by illness or other cause, senior most judge, according to cadre seniority as per hierarchy of the cadres, shall assume charge of the District Court, without interruption to his ordinary duties; and while so in charge, shall perform the duties of a District Judge with respect to the filing of suits and appeals, receiving pleadings, petitions, execution of processes, return of writs and the like; and shall further have power and jurisdiction to dispose of emergent interlocutory matters of such nature, as the High Court may by rules prescribe and the Judge so incharge shall continue in such charge until the office of the District Judge has been resumed or assumed by an officer duly appointed thereto.
19. Delegation of powers of District Judge.- Any District Judge leaving the headquarters and proceeding on duty to any place within his District, may delegate to the senior most Additional Judge of his Court at the headquarter or where there is no Additional Judge, to a Civil Judge at the headquarters, the powers of performing such duties as may be emergent and of disposing of any emergent matters as may be specified under Section 18 and such Judge shall be deemed to be a Judge in charge of the Court of the District Judge.
13. A reading of the provisions of the Civil Courts Act, as amended by the Act No. 17 of 1982 extracted above would show that although the Court of District Judge and the Court of Additional District Judge have been classified as two separate classes of Court under Sub-section (1) of Section 3, they belong to one and the same cadre, namely, the cadre of Higher Judicial Service, and that the Additional District Judge and the District Judge exercise almost the same judicial powers. Under Sub-section (1) of Section 6 of the Civil Courts Act, the Court of District Judge and the Court of Additional District Judge have jurisdiction to hear and determine any suit or original proceeding without restriction as regards value. Under Sub-section (2) of Section 7, the Additional District Judge shall discharge any of the functions, of a District Judge including the functions of Principal Civil Court of original jurisdiction which the District Judge may by general or special order assign to him and in the discharge of such functions, he can exercise the same powers as the District Judge. Under Sub-section (1) of Section 13 of the Civil Courts Act, appeals from decrees or orders of Court of Civil Judge Class I or Civil Judge Class II lie to the Court of District Judge. But the explanation under Sub-section (1) of Section 13 makes it clear that the Court of District Judge shall include an Additional Judge to that Court and Sub-section (2) of Section 3 makes it clear that the Additional Judge to the Court of District Judge shall be from the cadre of Higher Judicial Service. Hence, an Additional District Judge and District Judge have the same appellate jurisdiction.
14. Section 14oftheCivil Courts Act provides for superintendence and control over the Civil Courts and such power is vested in the District Judge. Section 15 confers power on the District Judge to distribute business. Obviously, since the District Judge is the head of hierarchy of the District Courts, superintendence and control of all Civil Courts and the power to distribute business between the Civil Courts will also have to be vested in the District Judge. There can be one head in a district for purposes of administration and, therefore, Additional District Judges cannot also be heads in an administrative hierarchy of the District Court when the District Judge is available. But Section 18 of the Civil Courts Act is clear that in the absence of the District Judge or in the event of his being prevented from performing his duties, the senior most Judge according to the cadre seniority as per the hierarchy of cadres shall assume the charge of the District Court and while so in charge, shall perform the duties of a District Judge. Similarly Section 19 is very clear that any District Judge leaving the headquarters and proceeding on duty to any place within his district, may delegate to the senior most Additional Judge of his Court at the headquarters the powers of performing such duties as may be emergent. Hence, the Additional District Judges can also exercise powers of superintendence and control, distribution of business and other duties of the District Judge in the absence of the District Judge.
15. Coming now to the decisions cited by Mr. Ankit Saxena, learned Counsel for the petitioners, in Kuldip Singh (supra), the Supreme Court found that Section 18 of the Punjab Courts Act constituted the Court of 'Additional Judge' as distinct from 'Additional District Judge' as a separate class of Court and also found that the Punjab Courts Act did not provide for the Court of the Additional District Judge and accordingly held that Additional Judge was not a Judge of co-ordinate Judicial Authority with the District Judge. In Nannulal Kishanlal (Firm) v. New Malwa Transport Co. and Ors. (supra), the question which arose was whether the Additional District Judge can exercise powers of the Appellate Court without the same being assigned to him by the District Judge and a learned Single Judge of this Court held that the Additional District Judge though empowered with all powers of the District Judge can exercise such powers only when the appellate work is assigned to him by the District Judge. This only says that the Additional District Judge has the same jurisdiction as that of the District Judge but he can exercise the appellate powers only when the District Judge assigns a case to him. These two decisions are of no relevance to this case because we have found that since 1982 in the State of Madhya Pradesh, the Additional District Judges have been exercising the same powers and discharging the same duties as the District Judge under the provisions of the Civil Courts Act.
16. Section 24 of the Code of Civil Procedure, 1908, on which Mr. Saxena, learned Counsel for the petitioners has relied on, deals with the power of transfer and withdrawal of cases conferred on the District Court and Sub-section (3) of Section 24 of the Code of Civil Procedure reads as under:
(3) For the purposes of this section,:
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.
(b) "Proceeding" includes a proceeding for the execution of a decree or order.
Hence, it is only for the purpose of Section 24 of the Code of Civil Procedure that Courts of Additional and Assistant Judges are deemed to be Courts subordinate to the District Judge. This only means that the District Judge can also withdraw cases from the Court of Additional District Judge and also transfer such cases from the Additional and Assistant Judges. Obviously, District Judge being the head of the hierarchy of the District Court has to be exclusively vested with such power and such power cannot be exercised by the Additional District Judge.
17. From 1982, therefore, the office of the District Judge and the office of the Additional District Judge have been equated in all respects with regard to powers, functions and duties. The respondent No. 2 has worked as District Judge and Additional District Judge after 1982 for about seven years and, therefore, held the office of the District Judge for more than five years and is qualified under Section 77 (3) (a) of the Co-operative Act to be appointed as Chairman of the Tribunal. We, therefore, do not find any merit in the writ petition and accordingly dismiss the same. There shall be no order as to costs.