Allahabad High Court
Vimlawati Devi vs Tehsildar Tehsil Hata District Kushi ... on 24 February, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 39 Case :- WRIT - C No. - 6407 of 2020 Petitioner :- Vimlawati Devi Respondent :- Tehsildar Tehsil Hata District Kushi Nagar And 2 Others Counsel for Petitioner :- Akhilesh K. Dwivedi Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner is permitted to implead State of Uttar Pradesh through its Additional Chief Secretary, Revenue, U.P. at Lucknow as well as Chairman of the Board of Revenue, U.P. at Allahabad as respondent nos.4 and 5 respectively, and notices on behalf of said respondent is also accepted by learned Standing Counsel.
2. Twenty eight writ petitions filed under Article 226 of the Constitution of India have been assigned by Hon'ble The Chief Justice to be heard by this Court. Eighteen out of these twenty eight petitions i.e. Writ Petition Nos.6407 of 2020, 6419 of 2020, 6453 of 2020, 6461 of 2020, 6462 of 2020, 6435 of 2020, 6448 of 2020, 6472 of 2020, 6473 of 2020, 6474 of 2020, 6478 of 2020, 6483 of 2020, 6491 of 2020, 6495 of 2020, 6501 of 2020, 6513 of 2020, 6519 of 2020 and 6525 of 2020, raise a common grievance that proceedings before the revenue courts/authorities under the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ''Act of 1950'), U.P. Land Revenue Act, 1901 (hereinafter referred to as ''Act of 1901') and U.P. Revenue Code, 2006 (hereinafter referred to as ''Code of 2006') are being kept pending for unduly long (even decades in some cases) causing innumerable difficulties for the petitioners. Prayer is, consequently, made to command the authorities concerned to expedite the proceedings. Writ Petition No.6407 of 2020 is taken as the leading case and all other petitions have been connected to it.
3. State of Uttar Pradesh has a substantial agrarian economy and majority of its citizens live in villages. Agricultural land is, therefore, of utmost importance to the citizenry living in the villages. Issues and disputes relating to agricultural lands like mutation, demarcation, partition, removal of encroachment, title disputes etc. are to be dealt with by the revenue courts/authorities. The fact that such large number of writs are being filed only with the prayer to expedite proceedings pending before revenue authorities/courts is a matter of serious concern. Apart from creating discord amongst otherwise closely knit social set up it is one of the primary cause for commission of crimes/offences in villages. It is, therefore, necessary for this Court to examine the concern in wider perspective and issue necessary directions in that regard.
4. The Act of 1950 made provisions for constitution of the Revenue Courts specified in Schedule II, referred to in Section 331 of the Act of 1950, and also specified the nature of jurisdiction to be exercised by them. By virtue of Section 330 and 331 of the Act of 1950 the jurisdiction of civil courts stood ousted in so far as the issues triable by Revenue Courts were concerned. These Revenue Courts in the State of Uttar Pradesh functioned under supervision and control of the Board of Revenue, established under The United Provinces Board of Revenue Act, 1922 (hereinafter referred to as ''Act of 1922'). The orders passed by revenue courts attain finality under the Act(s). The Act of 1950 as also the Act of 1901 and the Act of 1922 etc. have been repealed by the Code of 2006.
5. The Code of 2006 also provides for the Board of Revenue in Chapter III. By virtue of Section 8 the Board is to be the Chief Controlling Authority in all matters relating to disposal of cases, appeals or revisions and subject to the superintendence, direction and control of the State Government, in all other matters provided for in the Code of 2006. Chapter XIII of the Code of 2006 provides for jurisdiction and procedure of Revenue Courts. Section 206 of the Code of 2006 clearly provides that no civil court shall exercise jurisdiction over any of the matters specified in the Second Schedule and no other court than the Revenue Court or the Revenue Officer specified in Column 3 of Third Schedule shall entertain any suit, application or proceedings specified in Column 2 thereof. Section 207 provides for the remedy of first appeal while Section 208 provides a remedy of second appeal in a case involving substantial question of law. The Board of Revenue or the Commissioner are vested with power of revision and the Board also has the power of review. Section 212 permits the Board to transfer cases from one Revenue Officer to another. By virtue of Section 214 of the Code of 2006 the provisions of the Code of Civil Procedure, 1908 and that of the Limitation Act, 1963 are made applicable unless otherwise provided for in the Code of 2006.
6. Section 4 (16) of the Code of 2006 defines Revenue Court in following terms:-
"4(16) "Revenue Court" means all or any of the following authorities (that is to say) the Board and all members thereof, Commissioners, Additional Commissioners, Collectors, Additional Collectors, Chief Revenue Officers, Assistant Collectors, Settlement Officers, Assistant Settlement Officers, Record Officers, Assistant Record Officers, Tahsildars, Tahsildars (Judicial) and Naib Tahsildars;"
7. The proceedings which are sought to be expedited in this bunch of petitions raise issues/disputes pending before the Revenue Court/Revenue Authorities and lie exclusively in the realm of the Code of 2006. The jurisdiction in that regard of Civil Court stands ousted by virtue of Second Schedule and lies exclusively in the Revenue Court by virtue of Third Schedule appended to the Code of 2006. The functioning of the Revenue Authorities/Revenue Courts, therefore, arise substantially for consideration in this matter.
8. At the outset, it is worth noticing that this is not the first occasion when the concern in this regard is being noticed by this Court. After the Revenue Code of 2006 was enforced on 29.11.2012 a Division Bench of this Court in PIL No.53556 of 2015 (Yashpal Singh Vs. State of U.P. and others) took note of the provisions of the Code of 2006, as per which Additional Commissioners, Additional Collectors and Assistant Collectors were to be appointed only to exercise judicial duties as is assigned to them by State Government. On 30th October, 2015 the Division Bench after considering the report submitted by the District Judge with regard to functioning of revenue courts made following observations:-
"....The vast proportion of disputes before the Revenue Courts relate to agricultural land and property. It has been reported that the Presiding Officers of the Revenue Courts do not observe regular and disciplined sittings in the Revenue Courts and because of their administrative duties and law and order responsibilities, they do not get much time to devote to judicial functioning. The report of the District Judge suggests that one option is to create a separate cadre of revenue officers, who are devoted to only judicial functioning in the Revenue Courts or to appoint one or two Executive Officers in every district who can sit in the Court throughout the day and perform judicial duties."
This Court observed in the subsequent order dated 4.12.2015 as under:-
"Having regard to this background, in our view, it would be necessary for the State Government to act in the matter to ensure that a cadre of officers, exclusively to the resolution of revenue cases, is created along the lines as suggested by the Board of Revenue. Moreover, due and appropriate attention should be bestowed on the need to ensure that persons so appointed have sufficient knowledge of law so as to facilitate the disposal of revenue cases. Since this proposal is pending consideration before the State Government, we direct that a decision in that regard be taken within a period of two months from today".
The petition ultimately came to be disposed of vide following directions dated 1.3.2016:-
"We are of the view that the State Government must immediately take steps under the enabling provisions of sub section (5) of Section 11 and Section 12 and sub section (6) of Section 13. This would ensure that judicial work is assigned to officers who would only perform judicial duties on the revenue side and would be exempted from administrative functions. Judicial work requires a frame of mind, qualification and experience which are quite different from the discharge of administrative duties and it is but necessary that the provisions which have been contained in the newly enforced provisions of the Code are implemented in the State expeditiously. As regards the proposal for the creation of a cadre, it has been stated that the Finance Department to whom a proposal was submitted for consent had raised certain queries which has been responded to on 22 February 2016 by the Board of Revenue. After the consent of the Finance Department, the proposal would be placed before the Cabinet after obtaining the consent of the Law Department and the Department of Personnel. Since the proposal is now pending before the Government and the Government has indicated its intention to finalize the matter expeditiously, we direct that a final decision thereon should be taken within a period of six months from the receipt of a certified copy of this order."
It would be worth noticing that more than six lakh cases were pending as on 1.1.2015 before the revenue courts.
9. Again in Ayodhya Prasad Tripathi and others Vs. State of U.P. through Principal Secretary, Department of Revenue and others, in Writ Petition No.1184(M/B) of 2016, the directions issued in the case of Yashpal Singh (supra) were reiterated by a subsequent Division Bench and the State Government was directed to take necessary decision in the matter within two months. The petition has been ultimately disposed of on 9.1.2018.
10. A period of about five years have passed since the above directions were issued in the matter but no satisfactory measures appear to have been taken and the situation has not improved.
11. In the leading writ petition no. 6407 of 2020 a prayer has been made to direct the Tehsildar, District Kushinagar, to dispose of the proceedings of Case No. T.201905440205022 pending since April, 2010 under Section 34 of the U.P. Land Revenue Act, 1901. In some of the other petitions which are directed to be connected with this case such proceedings are pending for the last about two decades. According to petitioner in the present case she has purchased certain land situated in Village Ahirauli, Tappa Bachholi, Pargana Sahjahanpur, Tehsil Hata, District Kushinagar on 8th March, 2010 and has applied for mutation of her name but even after expiry of 10 years, the proceedings have not been concluded. The ordersheet has been annexed, according to which hundred of dates have been fixed but the Tehsildar concerned has not decided the matter, so far. Similar are the facts in other seventeen cases which are clubbed with the present writ petition.
12. Learned counsel for the petitioner states that there is only one Tehsildar (Judicial) in Tehsil Hata, District Kushinagar, who is mostly engaged in other Protocol and VIP Duty etc. and has no time to attend judicial proceedings. It is stated that even summary proceedings are kept pending for decades together and even routine orders are not passed. Thereafter, unless this Court intervenes the situation is not likely to change.
13. Prima facie, this Court finds petitioner's grievance to have substance. Mutation proceedings are admittedly summary in nature and ought to be concluded, expeditiously, or else various other complications arise for the parties.
14. Learned counsel for the petitioner states that neither any separate cadre of judicially trained persons is created to discharge the work of Revenue Courts including Tehsildar (Judicial) and the work assigned to them is virtually placed at the bottom with priority given to other administrative and protocol matters. The ordersheet of the pending case is a sad reflection of the casual manner in which proceedings are routinely adjourned, which results in no orders being passed, as is expected of the revenue authority/court.
15. It would also be relevant to note that the judicial work before the revenue courts is being allocated to administrative officers who even lack the basic awareness of law, inasmuch as a law degree is not even mandatory for them. While dealing with appointment of Presiding Officers of the Labour Court the Supreme Court of India in the case of The State of Maharashtra Vs. Labour Law Practitioners' Association and others, reported in (1998) 2 SCC 688, observed that Industrial Tribunals have the trappings of a court and the functions performed by their Presiding Officers has to be regarded as judicial functions. After referring to Article 234 to 236 of the Constitution of India the Supreme Court observed as under:-
"The District Judge, therefore, covers a judge of any Principal Civil Court of Original Jurisdiction. With an increase in the numbers of a specialised courts and tribunals which are being set up to deal with specific kinds of civil litigation which would otherwise have been dealt with b y the ordinary civil courts, we now have a number of specialised courts exercising different categories of civil original jurisdiction. It can be specialised civil original jurisdiction pertaining to Labour and Industrial disputes specified in the relevant Acts as in the case of Labour and Industrial Courts, or it could be pertaining to recovery of bank debts and so on. The structure of civil courts exercising original jurisdiction is no longer monolithic. The judge of the Principal Civil Court heading the concerned set of courts under him an d exercising that jurisdiction can also fall in the category of a "District Judge" by whatever name called. Learned single judge and learned Judges of the Division Bench have, therefor, held t hat and Industrial Court is a civil court exercising civil original jurisdiction; and the person presiding over it could well be termed as a District Judge. The term "District Judge" should not b e confined only to the judge of the Principal Civil Court in the hierarchy of general civil courts. The term would now have to include also the hierarchy of specialised civil courts, such as a hierarchy of Labour Courts and Industrial Courts. The fact that the Chief Presidency Magistrate and the Sessions Judge were also included in the definition of "District" Judge indicates that a wide interpretation is to be given tot he expression "District Judge". The extensive definition of a District Judge under Article 236 is indicative of the same.
Under Article 236 (b), the expression "judicial service" is defined to mean "a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge." Judicial service thus postulates a hierarchy of courts with t he District Judge as the head an d other judicial officers under him discharging only judicial functions.
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We need not refer at length to various other judgment which have dealt with the question whether a Tribunal set up under different Acts which were before the Court in each case was a judicial body or a court, and whether it was a court subordinate to the High Court. In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala & Ors. [AIR 1951 SC 1559], the Central Government exercising appellate powers under Section 111 of the Companies Act was held to be acting as a judicial body and not as an administrative body. In t he case of Shripatrao Dajisahab Ghatge & Anr v. The State of Maharashtra & Anr. [AIR 1977 Bombay 384], the term "courts" was held to cover all tribunals which were basically courts performing judicial functions giving judgments which were binding and exercising sovereign judicial power transferred tot hem by the State. It was held that High Court could exercise its jurisdiction under Article 227 over such tribunals. A Full Bench of the Gujarat High Court in the case of Shaikh Mohammedbhikhan Hussainbhai & etc. v. The Manage, Chandrabhanu Cinema & Ors, etc. [1986 Lab I.C. 1749] held that Labour Courts and Industrial Courts were courts for the purposes of contempt of Courts Act and were also courts subordinate to the High Court.
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The constitutional scheme under Chapter V of Part VI dealing with the High Courts and Chapter VI of Par VI dealing with eh subordinate courts shows a clear anxiety on the part of the framers of the Constitution to preserve and promote independence of the judiciary from the executive. Thus Article 233 which deals with appointment of District judges requires that such appointments shall be made by the Governor of the State in consultation with the High Court. Article 233(2) has been interpreted as prescribing that "a person in the service of the Union or the State" can refer only to a person in the judicial service of the Union or the State. Article 234 which deals with recruitment of persons other that District Judges to the judicial service requires that their appointments can be made only in accordance with the Rules framed b y the Governor of the State after consultation with the State Public Service Commission and with the High Court. Article 235 provides that he control over district courts and courts subordinate thereto shall be vested in the High Court; and Article 236 defines the expression "District Judge" extensively as covering judges of a city civil court etc, as earlier set out, and the expression "judicial service" as meaning a service consisting exclusively of persons intended to fill the post of the District Judge and other civil judicial posts inferior to the post of District judge. Therefore, bearing in mind the principle of separation of powers and independence of the judiciary, judicial service contemplates a service exclusively of judicial posts in which their will be a hierarchy headed by a District Judge. The High Court has rightly come to the conclusion that the persons presiding over Industrial and Labour Courts would constitute a judicial service so defined. Therefore, the recruitment of Labour Court judges is required to be made in accordance with Article 235 of the Constitution."
16. The Revenue Courts also perform judicial functions and their Presiding Officers are expected to be legally trained persons who can work independently. Knowledge in the field of Law is otherwise expected of such officers as they interpret various provisions of law and their decisions attain finality. This aspect does not appear to have been examined. Quality of determination by those who even do not have a law degree is likely to suffer. Large number of writ petitions are, therefore, entertained against the orders passed by the revenue courts as the rights of parties, including title matters, are decided finally by such courts.
17. The Revenue Courts established under the Code of 2006 apparently have all attributes of a Tribunal. The officers manning Revenue Courts are therefore expected to be at least law graduates and adequately trained to deal with the disputes arising before the Revenue Courts. It would be worth referring at this stage to a judgment of the Supreme Court of India arising out of a challenge laid to the appointment of President of the Gujarat Revenue Tribunal, wherein the Gujarat High Court had set aside the appointment of the President of the Gujarat Revenue Tribunal. While affirming the view taken by the Gujarat High Court the Hon'ble Supreme Court extensively examined the statutory provisions relating to constitution of Tribunal as also the procedure to be followed by it and the duty cast upon it to act judicially. The orders of Tribunal were found amenable to exercise of jurisdiction of the High Court under Article 226 and 227 of the Constitution of India. In such circumstances the Apex Court held that the appointment of the President of the Gujarat Revenue Tribunal had to be made only after consultation with the Chief Justice of that State. Following observations of the Apex Court in State of Gujarat Vs. Gujarat Revenue Tribunal Bar Association and another reported in (2012) 10 SCC 353, are reproduced hereinafter:-
"16. Although the term "court" has not been defined under the Act, it is indisputable that courts belong to the judicial hierarchy and constitute the country's judiciary as distinct from the executive or legislative branches of the State. Judicial functions involve the decision of rights and liabilities of the parties. An enquiry and investigation into facts is a material part of judicial function. The legislature, in its wisdom has created tribunals and transferred the work which was regularly done by the civil courts to them, as it was found necessary to do so in order to provide efficacious remedy and also to reduce the burden on the civil courts and further, also to save the aggrieved person from bearing the burden of heavy court fees, etc. Thus, the system of tribunals was created as a machinery for the speedy disposal of claims arising under a particular statute/Act. Most of the tribunals have been given the power to lay down their own procedure. In some cases, the procedure may be adopted by the tribunal and the same may require the approval of the competent authority/Government. However, in each case, the principles of natural justice are required to be observed. Such tribunals therefore, basically perform quasi-judicial functions. The system of tribunals is hence, unlike that of the regularly constituted courts under the hierarchy of judicial system which are not authorised to devise their own procedure for dealing with cases. Under certain statutes tribunals have been authorised to exercise certain powers conferred under some provisions of the Code of Civil Procedure (hereinafter referred to as "CPC") or the Code of Criminal Procedure (hereinafter referred to as "CrPC"), but not under the whole Code, be it Civil or Criminal. However, in a regular court, the said Codes, in their entirety, Civil as well as Criminal, must be strictly adhered to. Therefore, from the above, it is evident that the terms "court" and "tribunal" are not interchangeable.
17. A tribunal may not necessarily be a court, in spite of the fact that it may be presided over by a judicial officer, as other qualified persons may also possibly be appointed to perform such duty. One of the tests to determine whether a tribunal is a court or not, is to check whether the High Court has revisional jurisdiction so far as the judgments and orders passed by the tribunal are concerned. The supervisory or revisional jurisdiction is considered to be a power vesting in any superior court or tribunal, enabling it to satisfy itself as regards the correctness of the orders of the inferior tribunal. This is the basic difference between appellate and supervisory jurisdiction. The appellate jurisdiction confers a right upon the aggrieved person to complain in the prescribed manner to a higher forum whereas, supervisory/revisional power has a different object and purpose altogether as it confers the right and responsibility upon the higher forum to keep the subordinate tribunals within the limits of the law. It is for this reason that revisional power can be exercised by the competent authority/court suo motu, in order to see that subordinate tribunals do not transgress the rules of law and are kept within the framework of powers conferred upon them. Such revisional powers have to be exercised sparingly, only as a discretion in order to prevent gross injustice and the same cannot be claimed, as a matter of right by any party. Even if the person heading the tribunal is otherwise a "judicial officer", he may merely be persona designata, but not a court, despite the fact that he is expected to act in a quasi-judicial manner. In the generic sense, a court is also a tribunal, however, courts are only such tribunals as have been created by the statute concerned and belong to the judicial department of a State as opposed to the executive branch of the said State. The expression "court" is understood in the context of its normally accepted connotation, as an adjudicating body, which performs judicial functions of rendering definitive judgments having a sense of finality and authoritativeness to bind the parties litigating before it. Secondly, it should be in the course of exercise of the sovereign judicial power transferred to it by the State. Any tribunal or authority therefore, that possesses these attributes, may be categorised as a court.
29. The present writ petition was filed on the premise that the post of the President of the Gujarat Revenue Tribunal was covered by the expression "District Judge", as has been defined under Article 236 of the Constitution; the definition being an exclusive one, and thus, in view of the provisions of Article 233 of the Constitution, the appointment of the President of the Tribunal can be made only upon consultation with the High Court. In the alternative it was suggested that the said Tribunal is a court and that the post of the President is one of judicial service, and in view of the provisions of Article 234 of the Constitution, the appointment of the President can be made only upon consultation with the High Court, as well as the Gujarat Public Services Commission. Even otherwise, having regard to the functions, powers and duties vested in the President, a person with legal qualification and long judicial experience should alone be appointed as President. Reference to the Bombay Legislative Assembly debate dated 18-4-1939, as expressed by the then Revenue Minister, revealed that the intention of the legislature had been that the post be filled by a retired High Court Judge, or a District Judge of not less than ten years' standing. Further, the Tribunal dealing with various cases under the Gujarat Agricultural Lands Ceiling Act, 1960, the Gujarat Private Forests Act, the Bombay Public Trusts Act, the Bombay Tenancy and Agricultural Lands Act, the Bombay Jagirdari and Other Tenure Abolition Act, and with questions of title under Section 37(2) of the Bombay Land Revenue Court has to deal with large number of civil disputes between the citizens, as well as between the Government and citizens and, it is pertinent to note that at the relevant time of filing of this writ petition, 6500 cases were pending before the Tribunal. With these assertions, the prayers made by the writ petitioners were mainly to declare Sections 4 and 20 of the 1958 Act as ultra vires and unconstitutional on the grounds that they gave absolute unguided power to the State Government in relation to the appointment of the President, and further, to declare Rule 3(1) so far as it authorises the appointment of the Secretary, as ultra vires and void, and also to quash the appointment of the respondent as the President.
33. During the course of arguments before the High Court, the 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."
18. The provisions of the Code of 2006, referred to above, would prima facie suggest that it has all attributes of a Tribunal and the provisions of Chapter VI of the Constitution of India would be attracted. In the Revenue Code, 2006 the legislature has also fixed a timeline within which various proceedings are required to be performed by the Revenue Courts/Authorities. More often than not such timelines are not adhered to and writ petitions are routinely filed for issuing necessary directions to conclude the proceedings. Contempt petitions are also being filed in large numbers before this Court as proceedings are not being concluded even despite directions issued by this Court. This is not a desirable situation. State Legislature having fixed specific time frames for disposal of matters must also provide for necessary supporting infrastructure for implementing the statutory provisions limiting the period within which disputes are to be resolved. Merely creating rights or fixing timelines for disposal of cases in the Legislation will not yield any results and would remain a farce unless necessary supporting infrastructure is created for the purpose. As the task of adjudication is assigned in specific areas exclusively to the Revenue Courts it is in utmost public interest that competent officers in the field of law (atleast law graduates) having adequate training are made available in sufficient numbers or else the malaise will continue. Being a part of the judicial dispensation system of State the Revenue Courts are also expected to be given their independence in accordance with the constitutional scheme.
19. In such circumstances, instead of issuing a routine direction to the Revenue Court/Revenue Authority to dispose of the proceedings pending before it, it would be necessary to confront the State with the pressing issues, noticed in this order, and to call upon the Additional Chief Secretary of the Department concerned to examine it in larger public interest and to file his personal affidavit clarifying the stand of the State on following issues:-
(i) What is the total number of cases pending before the Revenue Courts in the State of Uttar Pradesh as on 1.1.2020?
(ii) Whether any specialized cadre of law knowing officers has been created to man the Revenue Courts and what is the minimum qualification prescribed for them at different levels? The strength of cadre at different levels would also be specified both in terms of its sanction and the officers existing as on 1.1.2020.
(iii) Whether the officers manning the Revenue Courts are exclusively entrusted with the task specified in the Revenue Code 2006 or are given other administrative and protocol duties, etc.?
(iv) How the State proposes to provide fair and early disposal of cases pending before Revenue Courts/Revenue Authorities?
(v) Whether the Chairman and the Members of the Board of Revenue are appointed in consultation with Hon'ble The Chief Justice?
The required affidavit would be filed by the Additional Chief Secretary of Revenue Department of the State of Uttar Pradesh, within four weeks.
20. Since the issues noticed in this order are predominantly found to be in public interest, as such, the Registry is directed to treat this matter alongwith connected petitions as a Public Interest Litigation and to place it on 6th April, 2020 before a bench to be nominated by Hon'ble the Chief Justice.
Order Date :- 24.2.2020 Anil (Ashwani Kumar Mishra, J.)