Gujarat High Court
Gujarat Co Operative Bar Association & vs State Of Gujarat & 3....Opponent(S) on 11 September, 2015
Equivalent citations: AIR 2016 (NOC) 294 (GUJ.), 2016 AIR CC 578 (GUJ) (2016) 1 GUJ LR 679, (2016) 1 GUJ LR 679
Bench: Jayant Patel, J.B.Pardiwala
C/MCA/2908/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 2908 of 2011
In
SPECIAL CIVIL APPLICATION NO. 676 of 2011
With
CIVIL APPLICATION NO. 8318 of 2012
In
MISC. CIVIL APPLICATION NO. 2908 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL
and
HONOURABLE MR.JUSTICE J.B. PARDIWALA
=============================================
1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
NO
thereunder ?
=============================================
GUJARAT CO OPERATIVE BAR ASSOCIATION & 1....Applicant(s)
Versus
STATE OF GUJARAT & 3....Opponent(s)
=============================================
Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR S N THAKKAR, ADVOCATE for the
Applicant(s) No. 1 2
DELETED for the Opponent(s) No. 3 4
MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL for the Opponent(s) No. 1 2
NOTICE SERVED BY DS for the Opponent(s) No. 1 2
=============================================
Page 1 of 66
HC-NIC Page 1 of 66 Created On Sat Sep 12 02:38:13 IST 2015
C/MCA/2908/2011 CAV JUDGMENT
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 11/09/ 2015
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B. PARDIWALA)
1. By this application, the applicants - original petitioners seek review of the judgment and order dated 5th September, 2011 passed by a Division Bench of this Court (to which one of us J. B. Pardiwala, J., was a party) in the Special Civil Application No.676 of 2011 principally on the ground that few submissions on pure questions of law although were raised and argued yet the same have not been considered and dealt with in the judgment.
2. Since this is a review application, it is necessary for us to look into the subject matter of the main petition. The main petition was filed with the following prayers:
"(A) Your Lordships may be pleased to hold and declare that the provisions of Sections 150(1), 150(2) and 150(3) of the Gujarat Cooperatives Societies Act, 1961 are ultra vires and violative of Article 14 of the Constitution of India to the extent the same confers unbridled and untrammeled power upon the State Government to appoint the Members of the Gujarat State Cooperative Tribunal and to prescribe the qualifications for appointment of persons to the said posts.
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ Page 2 of 66 HC-NIC Page 2 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT in the nature of mandamus directing the respondent State Government to seek effective consultation of this Hon'ble Court before appointing the Members of the Gujarat State Cooperative Tribunal and the Members of the Board of Nominees;
(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus directing the respondent no.2 to forbear from appointing the Registrar's Nominees and the Members of the Gujarat State Cooperative Tribunal without following the provisions of PartVI Chapter6 of the Constitution of India;
(D) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus declaring that the impugned notification dated 06.10.2010 (at Annexure0 hereto) is unjust, illegal, arbitrary, malafide and contumacious and in clear breach of the undertaking given by the State Government to this Hon'ble Court in Special Civil Application No.1835 of 2000 and 10801 of 2009 and be further pleased to quash and set aside the said notification dated 06.10.2010;
(E) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus, a writ of certiorari or a writ in the nature of certiorari quashing and setting aside the impugned notification dated 04.12.2010 at AnnexureR hereto;
(F) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus directing the respondent State Government and/or the respondent No.2 to henceforth constitute a Bench of the Gujarat State Cooperative Tribunal comprising of at least one Judicial Member;
(G) Pending the admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation, implementation and execution of : (I) the impugned notification dated 06.10.2010 at Annexure0 hereto;
(II) the impugned notification dated 04.12.2010 at AnnexureR hereto;
(H) Pending the admission, hearing and final disposal of the present petition, Your Lordships may be pleased to restrain, Your Lordships may be pleased to restrain the respondent State Government and/or the respondent No.2 from constituting any bench of the Gujarat State Co operative Tribunal without at least one judicial member;
(I) An exparte adinterim relief in terms of prayers (G) and (H) above may kindly be granted;Page 3 of 66
HC-NIC Page 3 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT (J) Such other relief(s) as deemed just and proper in the facts and circumstances of the present case may kindly be granted;"
3. The grievance of the Association was mainly with regard to the absence of a transparent mechanism in the adjudicatory process by the Registrar's Nominee as well as the Gujarat State Cooperative Tribunal while discharging functions and duties under the provisions of the Sections 96 to 102 of the Cooperative Societies Act [hereinafter to as 'the Act']. The case of the Association was that although it was declared by the State Government as a policy decision to appoint the Board of Nominees consisting of the retired Judges for deciding the dispute referred by the Registrar, the Government omitted to implement such policy and instead of appointing the retired Civil Judges as the members of the Board chose to appoint retired/existing departmental officers as the Registrar's Nominee so that the Government can have its control over the said authorities.
4. The Division Bench vide its judgment and order dated 5th September, 2011 dismissed the writ petition mainly on the following grounds:
(1) So far as the challenge to the appointment of Shri R.M. Thakkar and Shri V.C. Joshi as members of the Gujarat State Cooperative Tribunal [hereinafter referred to as 'the Tribunal] was concerned, the Page 4 of 66 HC-NIC Page 4 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT same was not deliberated as they had already resigned and their resignations had also been accepted.
(2) With regard to the appointment of the President of the Tribunal, one Shri H.P. Patel, a retired judicial officer of the rank of the District Judge, was appointed in consultation with the Chief Justice of the High Court. The Division Bench took the view that a proper legal procedure was followed by the Government as regards the appointment of the President of the Tribunal after consultation with the Chief Justice.
(3) The petitioners were unable to establish as to why the power of the President of the Tribunal to constitute Benches be declared as ultra vires in the absence of any conflict with any of the provisions of the Constitution of India.
(4) It was held that a degree in law from a University established by law in India as referred to in the newly substituted Clause [c] of the Rule 40A of the Gujarat Cooperative Societies [Amendment] Rules, 2007 would mean the degree of law from a University as established by law in India i.e. recognized by the University Grant Commission and Bar Council of India.
(5) If the State Government deleted the words "which entitles him to be enrolled as an advocate", it could not be faulted with and that would not Page 5 of 66 HC-NIC Page 5 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT render the newly substituted Clause [c] of Rule 40A as illegal or ultra vires.
(6) The decision of the Division Bench of this Court in the case of Rasiklal Patel v. Kailashgauri Ramanlal Mehta reported in 1971 GLR 355 still holds good and takes care of the argument as regards the lack of transparent adjudication of the dispute by the Nominees other than the judicial officers.
(7) In the case of Union of India v. R. Gandhi, President, Madras Bar Association reported in JT 2010 (5) SC 553, the Supreme Court held that the legislation can transfer certain areas of litigation from the Courts to Tribunals and also recognized that the legislature can provide for the technical members in addition to the judicial members in such Tribunal.
(8) The Gujarat State Cooperative Tribunal satisfy all the tests of a Court and the constitution of such Tribunal in absence of any conflict with the provisions of the Constitution should not upset solely on the ground that the rule does not provide for the appointment of administrative member in consultation with the Chief Justice of the State.Page 6 of 66
HC-NIC Page 6 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT (9) The Division Bench took the view that consultation with the Chief Justice is not necessary for the appointment of the administrative members other than the judicial members in the Tribunal in view of the decision of the Supreme Court in the case of State of Andra Pradesh v. K. Mohanlal and another reported in (1998) 5 SCC 468.
5. Mr. Mihir Joshi, the learned senior advocate assisted by Mr. S.N. Thakkar, the learned advocate appearing for the applicants submitted that there are palpable errors in the judgment going to the root of the matter, and therefore, the order should be reviewed. According to the learned senior advocate, many contentions were raised specifically in the course of hearing of the main petition, however, those have not been dealt with in any manner. According to the learned counsel, if a particular point or contention although raised and argued yet not considered by the Court would be a ground for review of the judgment and order.
6. The following are the contentions, according to the learned counsel, which have not been considered and discussed :
(1) The Notification dated 06.10.2010 introducing the Gujarat Co operative Societies (Amendment) Rules, 2010 i.e. the Amendment to Rule 40A and Rule 78, should be set aside as being illegal, arbitrary and malafide since the State Government by way of the said amendment, has exhibited its urge for bringing in "retired officers" who have their affinity Page 7 of 66 HC-NIC Page 7 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT for the government/its ideology etc. • Prayer (D) of the Special Civil Application No.676 of 2011.
• The said amendment was introduced by the State Government solely with a view to regain its control over the Nominees and Tribunal. (Para 5, Pg. 60 and Para 6, Page 62 and Para 10, Page 65 of the Special Civil Application No.676 of 2011) And • Ground (I) of the written submissions at Page 69/70 of the Miscellaneous Civil Application No.2908 of 2011. (2) The provisions of Section 96 to 98 and Rule 40A nowhere prescribe the guidelines for the appointment of Nominees, as to which type of cases u/s. 96 of the Act would be decided by which Nominee and the special adjudication machinery which replaces the ordinary forum of adjudication, viz. Civil Courts, has to be competent, effective and impartial and therefore, it is imperative that the State Government seeks effective consultation of the High Court before appointing the members of the Gujarat Coop Tribunal and members of Board of Nominee. (Para 3.7, 3.8, 3.9, 3.11 & 12, 3.15 to 3.17 and prayer 'B' of the petition) (Ground IV of written submission, at Page 72 73 of Miscellaneous Civil Application No.2908 of 201).
(3) The said Rule 40A confers unbridled power upon the State Government in the matter of selection/appointment of Registrar's Nominee despite the fact that an alternative forum has been created by the State Government displacing the regular mode of litigation i.e. Civil Suits. There is no guideline in the said Rule 40A as to which of the three categories mentioned in the said Rule, for priority in selection i.e. Advocates, Senior Civil Judge or Joint Registrar, thereby leaving the same to the absolute discretion of the State Government to pick and choose. Though advertisement was issued in the Year 2007 inviting Page 8 of 66 HC-NIC Page 8 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT applications from Advocates for appointment to the Board of Nominees, yet not a single Advocate has thereafter been considered for appointment as the Registrar's Nominees (Para 5 of Miscellaneous Civil Application No.2908 of 2011) • Ground IV of written submission (seen page 72 to 75 of Miscellaneous Civil Application) (4) The provisions of Section 150(1), 150(2) and 150(3) of the Gujarat Cooperative Society Act be declared as ultra vires and violative of Article 14 of the Constitution of India to the extent the same confers unbridled and untrammeled power on the State Government to appoint members of Gujarat State Cooperative Tribunal and to prescribe the qualifications for appointment of persons to the said posts (para 13 of petition and Prayer A, Page 70 of Special Civil Application No.676 of 2011) • Ground VI of written submissions (see page 77 to 79 of Miscellaneous Civil Application No.2908 of 2011) • The qualification and mode of selection must be prescribed in the statute.
(5) That the State Government be restrained from appointing the Registrar's Nominee and members of the Gujarat State Cooperative Tribunal without "consulting" the High Court (prayer (c) of Special Civil Application No.676 of 2011) (6) That despite repeated assurances given by the State Government and recorded by a Division Bench of this Court in 1971 (8) GLR 355 of restoring confidence of the public in fairness, efficiency and purity of administration of justice by appointing retired judges as the Registrar' Page 9 of 66 HC-NIC Page 9 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Nominee, and the subsequent repeated assurances given thereafter to this Court, the Government failed to evolve a transparent mechanism in the quasijudicial adjudicatory machinery, and there is no independence of the Nominees and Tribunal.
• Ground 3.26 to 3.28 of the Special Civil Application No.676 of 2011.
• Ground I of written submissions (page 65 to 70 of Miscellaneous Civil Application No.2908 of 2011) (7) That the appointment of the Members of Tribunal should be made in "consultation" with the Hon'ble the Chief Justice or in consultation with a committee constituted by the High Court since the State Government has shown its inclination of continuing with its control by constituting (vide Resolution dated 08.04.2011), a Committee of (I) the Hon'ble Minister of Cooperation, (ii) Secretary in charge of Co operation and (iii) President of Gujarat State Cooperative Tribunal for selecting and recommending suitable officers for appointment as members in the Tribunal.
7. This application for review has been vehemently opposed by Mr. P.K. Jani, the learned Additional Advocate General appearing for the State. Mr. Jani submitted that no error, not to speak of any error of law could be said to have been committed by the Division Bench warranting any review. Mr. Jani submitted that having regard to the submissions made by the learned counsel appearing for the petitioners and the issues raised in this review application, it tantamountly amounts to rehearing of the main matter, which is not permissible in law. Mr. Jani submitted Page 10 of 66 HC-NIC Page 10 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT that this review application is in the guise of an appeal and the grounds which the applicants could have raised in appeal before the Supreme Court have been raised in this review application.
8. Mr. Jani submitted that the scheme of the Gujarat Cooperative Societies Act, more particularly, the provisions of the Sections 96, 97 and 98 provides for an inbuilt mechanism from its inception. Mr. Jani pointed out that under Section 3 of the Act, the State Government has the power to appoint a person to be the Registrar. Mr. Jani laid much stress on the fact that there is no divesting of the jurisdiction of the Civil Court. Mr. Jani submitted that any order or award which is passed by the nominee is subject to the superintendence of this Court under Article 227 of the Constitution of India. He pointed out that the appointment of the nominees under Rule 40(A) and Rule 78 of the Rules is consistent with the law laid down by the Supreme Court in R. Gandhi's case (supra) and Madras Bar Association's case (supra). He submitted that there being no merit in the review application, the same be rejected. In support of his submission, he has relied on the following decisions:
(1) Gujarat University vs. Miss Sonal P Shah, reported in (1982 ) 1 GLR 171;
(2) M/s Northern India Caterers (India) Ltd vs. Lt. Governor of Delhi, reported in (1980) 2 SCC 167;Page 11 of 66
HC-NIC Page 11 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT (3) Harinagar Sugar Mills Ltd and another vs. State of Bihar and others, reported in (2006) 1 SCC 509;
(4) Rasiklal Patel v. Kailashgauri Ramanlal Mehta, reported in 1971 GLR 355.
9. Before we advert to the rival submissions canvassed on either side, it is necessary for us to consider the scope of entertaining a Review Application in exercise of the powers under Article 226 of the Constitution of India.
10. Considering the amendment made in Section 141 of the Civil Procedure Code in the year 1976, the provisions of Order 47 of the Code relating to review are not applicable to the proceedings before the High Court under Article 226 of the Constitution of India automatically. The powers of this Court to review its own judgment are the powers which every Court of plenary jurisdiction inheres. The Supreme Court in the case of Shivdeo Singh Vs. State of Punjab, reported in AIR 1963 SC 1909, held that it is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Thus, although the Supreme Court by necessary implication negatived the attraction of the provisions of Order 47 of the Civil Procedure Code to the writ jurisdiction of the High Court, it firmly Page 12 of 66 HC-NIC Page 12 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT established the existence of such powers, but it clarified that such inherent powers could be invoked "to prevent miscarriage of justice or to correct grave and palpable errors committed by the High Court".
11. The aforesaid judgment of the Supreme Court came to be followed by the Bench of two Judges of the Supreme Court in the case of A.T. Sharma Vs. A.P. Sharma reported in AIR 1979 SC 1047, which reiterated the existence of inherent powers of the High Court to review its earlier decision in exercise of inherent powers. The Supreme Court in that case, however, clarified the ambit and scope of the power of review because in Shivdeo Singh's case (supra) the Supreme Court considered the existence of the power of review and the purpose of exercising that power alone. The Supreme Court in paragraph 3 observed as under: "It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it,but there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence, which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate Court." (Emphasis supplied).
12. Thus, the following legal propositions are discernible from the two Page 13 of 66 HC-NIC Page 13 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT decisions of the Supreme Court referred to above: (1) The provisions of the Civil Procedure Code in Order 47 are not applicable to the High Court's power of review in proceedings under Art.226 of the Constitution automatically. (2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet "palpable" means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination).
(3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47 Rule 1, namely.
(i) discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence;
(ii) existence of some mistake or error apparent on the face of the record; and
(iii) existence of any analogous ground.
These are the very three grounds referred to in order 47 Rule 1 Civil P.C. and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or Page 14 of 66 HC-NIC Page 14 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT limitations of the High Court's power.
13. In Meera Bhanja v. Smt. Nirmala Kumari Choudary, reported in AIR 1995 SC 455, the Supreme Court held that :
"It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, the apex Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [AIR 1979 SC 1047] speaking through Chinnappa Reddy, J. has made the following pertinent observations:
It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the subordinate court."
14. In a very recent pronouncement of the Supreme Court in the case of Kamlesh Verma Vs. Mayawati and ors. (supra), on which strong reliance has been placed by Mr. Joshi. The Supreme Court has laid down few grounds of review.
"Summary of the principles: Thus, in view of the above, the following grounds of review are Page 15 of 66 HC-NIC Page 15 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT maintainable as stipulated by the statute: (A) When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram Vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos Vs. Most Rev., Mar Poulose Athanasius, (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India Vs. Sandur Manganese & Iron Ores Ltd. JT 2013 (8) SC 275. (B) When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import;
(iii) Review proceedings cannot be equated with the original hearing of the case;
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice;
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error; Page 16 of 66 HC-NIC Page 16 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT
(vi) The mere possibility of two views on the subject cannot be a ground for review;
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched;
(viii) The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the review petition;
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
15. More importantly, we may usefully refer to a decision of the Supreme Court in the case of Rasiklal Manikchand Dhariwal and another v. M.S.S. Food Products reported in (2012) 2 SCC 196, more particularly, para 61 of the said judgment. Para 61 reads as under:
"61. It is true that in the counter affidavit filed by the respondent, nothing has been said about the above statement made in the synopsis. However, in our view, in case the contentions raised by the appellants were not considered by the High Court, the proper course available to the appellants was to bring to the notice of the High Court this aspect by filing a review application. Such course was never adopted. In view of this, we are not persuaded to permit the appellants to challenge the orders passed by the trial court on the interlocutory applications now and argue that trial court erred in not adhering to the pretrial procedures"
16. In the case of M.M. Thomas v. State of Kerala and another reported in (2000) 1 SCC 666, the Supreme Court while explaining the phrase "Court of Record" observed in paras 14, 15, 16 and 17 as under:
"14. High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Page 17 of 66 HC-NIC Page 17 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior Court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regards is plenary. In Naresh Sridhar v. State of Maharashtra, (1966) 3 SCR 744 : AIR 1967 SC 1, a nine Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a Court of plenary jurisdiction being a Court of Record.
15. In Halsbury's Laws of England (4th Edn. Vol. 10, para 713) it is stated thus:
"The chief distinctions between superior and inferior Courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court. An objection to the jurisdiction of one of the superior Courts of general jurisdiction must show what other Court has jurisdiction, so as to make it clear that the exercise by the superior Court of its general jurisdiction is unnecessary. The High Court, for example, is a Court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendancy by showing that some other Court could save entertained the particular action."
(Though the above reference is to English Courts the principle would squarely apply to the superior Courts in India also.)
16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar a two Judge Bench of this Court in M.V. Elisabeth v. Karwan Investment and Trading Pvt. Ltd., has observed thus:
(AIR Headnote):
"The High Courts in India are superior Courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction. . . . ."
17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the Page 18 of 66 HC-NIC Page 18 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record."
17. The issue with which we are concerned was first raised in the case of Rasiklal Patel (supra). In the said case, the constitutional validity of Sections 96 to 102 of the Act, 1961 was challenged before a Division Bench of this Court principally on the ground that the main provisions were violative of the equal protection clause contained in Article 14 of the Constitution of India inasmuch as they made unjust discretion between the litigants having dispute with the Cooperative Societies and other litigants. Whereas the ordinary procedure for the adjudication of the dispute by the Civil Courts, according to the Code of Civil Procedure, was available to other litigants. The benefit of such procedure was denied to the litigants having dispute with the Cooperative Societies and special procedure was provided for them which was less advantageous than the ordinary procedure.
18. It was also argued before the Division Bench that the special machinery of adjudication provided in the impugned sections was unreasonable as the special machinery which provided for the arbitration by the Registrar or his Nominee was a poor substitute for the ordinary machinery of determination by a Civil Court.
19. While upholding the validity of the Act, the Division Bench in the Page 19 of 66 HC-NIC Page 19 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT case of Rasiklal Patel (supra) made the following observations in para 25 as under:
"25. ... Now when a dispute is referred to him by any of the parties for decision, he would naturally as a responsible officer first consider whether he is competent to decide the dispute. It is possible that he may be a lawyer or he may have acquired sufficient legal training in which event he may think that he can competently decide the dispute referred to him. But if he has no legal training, he would naturally find out a nominee who is fit and competent to decide the dispute and refer the dispute to him for decision. Now it is true that no minimum qualifications are prescribed for a nominee and, therefore, theoretically the nominee may be any person even without legal training. But it must be remembered that there are innumerable kinds of disputes, which may come for decision before the Registrar. Some disputes may be so simple that they do not require any particular knowledge of law and might best be decided by experienced co operators or commercial men. Then again there might be some disputes such as those relating to building or construction work, which can be more competently decided by architects or engineers than by lawyers. Some other disputes may come before him who involved questions of law but these questions may be fairly simple and it might be possible to have them decided by lawyers who are doing reasonably well in the profession. Then there might also be certain disputes, it may be necessary to have good senior experienced lawyers as nominees. The choice of the nominee must, therefore, necessarily depend on the nature of the dispute which comes before the Registrar and it would not be possible in the very nature of things to prescribe any rigid or definite qualifications which must be possessed by a person before can be appointed a nominee. The discretion must be left with the Registrar to choose a proper nominee having regard to the nature of the dispute before him. The Registrar must exercise his discretion fairly and with a sense of responsibility so that there should be a fit and competent nominee appointed to decide the dispute. It is true that sometimes cases have come to our notice where we have found that lawyers without much experience or having little or no practice at all are appointed by the Registrar as nominees to decide dispute and this has led to an uneasy feeling in the minds of the litigating public that appointments of nominees are sometimes made on extraneous considerations or at any rate without giving due and proper thought to the question. But in such cases where the discretion is exercised unfairly, unreasonably or perversely, the arms of the Court are sufficiently long to reach the Registrar and to strike down any improper appointment made by him. As a matter of fact we are told that now a policy has been adopted by the State Government to appoint a board of nominees consisting of retired Judges to decide disputes referred to the Registrar. This is a very healthy step taken by the State Government and we have no doubt that it will go a long way towards restoring Page 20 of 66 HC-NIC Page 20 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT the confidence of the public in the fairness, efficiency and purity of administration of justice under the special procedure provided by the impugned sections which by reason of illconsidered appointments of nominees in the past a ribminee does not in the circumstances have the effect of making the machinery of adjudication unreasonable.
20. Thus, from the above, it is clear that way back in the year 1970, a statement was made before this Court regarding the policy decision of the State Government to appoint a Board of Nominees consisting of retired Judges' to decide the dispute referred to the Registrar. However, it appears that such policy barring certain few instances was never implemented by the State Government at any point of time till this date.
21. This is exactly what has been very strenuously urged before us on behalf of the applicants.
22. We may also give a fair idea as regards the orders which were passed by us from time to time during the course of the hearing of the Review Application.
23. On 13.08.2012, the following order was passed:
"Mr. P.K. Jani, the learned Government Pleader, appearing on behalf of the Staterespondent submits that as regards the grievance of the petitioner that in every Bench before the Tribunal, there should be at least a Judicial Member and there should be majority of Judicial Members in a Bench consisting of more than two members, his client will consider the matter and for that reason, he prays for three weeks' time. Let the matter appear after three weeks i.e. on September 3, 2012."
24. Thereafter, an affidavit was filed by one A.M. Patel, Joint Page 21 of 66 HC-NIC Page 21 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Secretary (Appeal), Agriculture and Cooperation Department, stating inter alia that the State Government had in principle approved the proposal for making an amendment in the Gujarat State Cooperative Tribunal Regulations by introducing Regulation No.3A in the said Regulations and that the Tribunal is supposed to take appropriate steps for actually bringing the said Regulation into force.
25. The matter was heard thereafter from time to time and after the order dated 20.03.2015, an affidavit dated 22.06.2015 was filed on behalf of the opponent No.1 State Government stating inter alia that the Amended Regulation 3A had already been brought into force in the Gujarat State Cooperative Tribunal Regulations, that the State Government had addressed letters to the High Court through the Registrar General for sending the list of the names of the retired District Judges to the State Government for appointment of the President of the Cooperative Tribunal and that the Legal Department had communicated to the Deputy Secretary, Agriculture and Co operation Department the list of retired Judicial Officers and that as per Rule78, the appointment of the President of the Gujarat State Co operative Tribunal would be made by the State Government in consultation with the Chief Justice of the High Court, that for the appointment of the administrative members, the same would be appointed/decided by the committee consisting of (i) the Hon'ble Page 22 of 66 HC-NIC Page 22 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Minister for Cooperation as a Chairman, (ii) Secretary Incharge of Co operation Department and (iii) President of Gujarat State Cooperative Tribunal (who is retired District Judge) and that the appointment of such members shall be made in consultation with the learned Advocate General of the State.
26. On 04.04.2015 the State Government addressed a letter to the Registrar General, High Court of Gujarat, requesting to forward the list of the names of learned Civil Judges or retired Judge of higher rank for appointing the members of the Board of Nominees and that the State Government had taken effective steps and followed the necessary provisions of law to appoint the Judicial Members in both i.e. in the Gujarat State Cooperative Tribunal and in the Board of Nominees. An impression was given to us that the consultative process was over. 26.1 The letter dated 10.02.2015 annexed along with the said affidavit inreply of the State Government apparently revealed that the list of 67 retired Judicial Officers was sent by the Gujarat High Court to the Deputy Secretary for filling up the post of the members of the Gujarat State Cooperative Tribunal.
27. Thereafter, on 25.06.2015, during the course of hearing, few Page 23 of 66 HC-NIC Page 23 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT suggestions and counter suggestion were made before the Court. It was suggested as to whether the State Government was willing to state before the Court for appointing from time to time, the retired Civil Judges as the members of the Board of Nominee and also whether the appointment of the President of the Tribunal would be made by the State Government as per the decision of the Apex Court in Lokayukta Case i.e. State of Gujarat v/s. Justice R.A. Mehta (retired) and others reported in 2013(3) SCC 1.
28. On 25.06.2015, the following order was passed:
"We have heard the learned counsel for some time. However, there is suggestion and counter suggestion and for further detailed hearing, as per the request made by the Additional Advocate General, S.O. to 15.07.2015 at 2.30 PM."
29. On 07.08.2015, this Court passed the following order:
"1. The arguments were concluded on 23.07.2015. However, as there was no dispute on the aspects of, viz., (1) appointment of the president and judicial members to be made in consultation with Honble the Chief Justice of the High Court and (2) appointment of the Board of Nominees from the judicial officers of the rank of Senior Civil Judge to be made in consultation with the High Court on administrative side, the matter was kept today for considering the response of the State Government as to whether by interim measure the board of nominees as well as the President of the Gujarat Cooperative Tribunal and the judicial member of the Gujarat Cooperative Tribunal can be considered for appointment.
2. Mr. Jani, learned Additional Advocate General submitted that he had pursued the matter before the concerned authority of the State Government, but he has not received any clear instructions in this regard and therefore, he is unable to make statement today.
3. Considering the facts and circumstances, we find that one more opportunity may be given to the State, more particularly because the Tribunal as well as the nominees are not at all available for discharge of Page 24 of 66 HC-NIC Page 24 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT the judicial work. Hence, S.O. to 12.08.2015 at 4.30 PM."
30. Thereafter, on 12.08.2015, a statement was made before the Court by the learned Additional Advocate General that he could not convince the authority concerned as regards the suggestions recorded in the order.
31. The appointment of the President of the Tribunal, of course, has to be of a person who is or had been a Judge of the High Court or is or had been a District Judge. To this extent, there is no problem since as regards the mode of their appointment because Rule 78 of the Rules provides that the appointment of a person as the President of Tribunal shall be made in consultation with the Chief Justice of the High Court. Therefore, the President would definitely be a person from a strong legal background being either is or was a Judge of the High Court or is or was a District Judge.
32. It has been pointed out to us that the concern expressed by the petitioners as regards the appointment of the judicial officers as the members of the Tribunal has been taken care of by way of a Notification issued by the State Government in its Agriculture and Cooperation Department dated 21st October 2013. The State Government, in exercise of powers conferred by Subsection (7) of Section 150 of the Gujarat Co Page 25 of 66 HC-NIC Page 25 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT operative Societies Act, 1961 framed regulations called the Gujarat Cooperative Tribunal (Amendment) Regulations, 2013.
33. After regulations 3, the following new Regulation 3(A) was inserted :
"3(A) Constitution of Bench
(i) At the time of constituting of Bench, there shall be one Judicial member and one Administrative member in every such bench.
(ii) In case of constituting a bench, more than two members, majority of members shall be from judicial."
34. Thus, the regulation provides that there will be one Judicial member along with one Administrative member in every bench. The regulation also takes care of a situation where a bench is of more than two members, then in such circumstances, the majority of the members will be Judicial members.
35. We appreciate such decision of the State Government so far as providing Judicial members in the Tribunal is concerned.
36. However, in this regard, one important question which we need to discuss is regarding their mode of appointment.
37. As on today, we are told that there is no President in the Tribunal. One Shri H.P. Patel, a retired District Judge, was appointed, but he retired long time back. Since the post fell vacant, it appears that the Page 26 of 66 HC-NIC Page 26 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT State Government called for the names of the retired District Judges from the High Court for being considered to be appointed as the President of the Tribunal. The original files were made available by the Registry of this High Court for our perusal. We found something very disturbing on perusal of the same. It appears that the High Court through its Registrar General forwarded about more than 50 (fifty) names of the retired Judicial officers of the rank of the District Judge and, out of those, the State Government shortlisted few and decided to appoint two out of those shortlisted one for the post of the President and another for the post of Judicial member of the Tribunal by undertaking such exercise. It was argued before us by Mr. Jani, the learned Additional Advocate General that there was effective consultation with the Chief Justice of the High Court as provided under the rules.
38. We are unable to agree with the submission of Mr. Jani as regards the mode and method of consultation.
39. The meaning of the word "consultation" has been very well explained in details by the Supreme Court in the case of the State of Gujarat v. R.A. Mehta reported 2013 (3) SCC page 1. In this case, the issue before the Supreme Court was with regard to the consultation by the State Government with the Chief Justice of the High Court for the appointment to the post of Lokayukta. The Supreme Court, in paras 25 Page 27 of 66 HC-NIC Page 27 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT to 32, observed as under:
"25. In State of Gujarat v. Gujarat Revenue Tribunal Bar Assn., this Court held that the object of constitutional is to render its process meaningful so that it may serve its intended purpose. Consultation requires the meeting of minds between the parties that are involved in the consultative process on the basis of materials facts and points in order to arrive at a correct or at least a satisfactory solution. If a certain power can be exercised only after consultation such consultation must be conscious, effective,meaningful and purposeful. To ensure this, each party must disclose to the other all relevant facts for due deliberation. The consultee must express his opinion only after complete consideration of the matter on the basis of all the relevant facts and quintessence. Consultation may have different meanings in different situations depending upon the nature and purpose of the statute.
26. In Chandramouleshwar Prasad v. The Patna High Court, this Court held that, consultation or deliberation can neither be complete nor effective, before the parties thereto, make their respective points of view, known to the other, or others, and discuss and examine the relative merits of their views. If one party makes a proposal to the other, who has a counter proposal in mind, which is not communicated to the proposer, a direction issued to give effect to the counter proposal, without any further discussion with respect to such counter proposal, with the proposer cannot be said to have been issued after consultation.
27. In N. Kannadasan v. Ajoy Khose, this Court considered a case regarding the appointment of the Chairman of a State Consumer Disputes Redressal Commission, under the provisions of the Consumer Protection Act, 1986, and examined the communication between the consultant and consultee, i.e. the State Government and the Chief Justice of the High Court, and observed that, where the High Court had placed for consideration, certain material against a person, whose name was proposed by the State Government, for consideration with respect to his appointment to the post of Chairman of the State Commission, and no specific explanation was provided for the nonconsideration of such material, then an appointment made in light of such circumstances, cannot be held to be an appointment made after due consultation. The Court held as under:
"13.... But, where a decision itself is thickly clouded by non consideration of the most relevant and vital aspect, the ultimate appointment is vitiated not because the appointee is not desirable or otherwise, but because mandatory statutory requirement of consultation has not been rendered effectively and meaningfully".Page 28 of 66
HC-NIC Page 28 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Thus, in such a situation, even if a person so appointed was in theory, eligible for the purpose of being considered for appointment to the said post, the fact that the process of consultation was vitiated, would render the ultimate order of appointment vulnerable, and liable to questioning. In N. Kannadasan case, this Court also considered its earlier decisions in Ashish Handa v. Chief Justice of High Court of P & H and Ashok Tanwar v. State of H.P. and came to the conclusion that, the Chief Justice must send only one name, and not a panel of names for consideration, or else, the word 'primacy' would lose its significance. If the Chief Justice sends a panel of names, and the Governor selects one from them, then it would obviously become the primacy of the Governor, and would not remain the primacy of the Chief Justice, which is the requirement under the law. The concept of primacy in such a situation, has been included, owing to the fact that, the Chief Justice of the High Court of the concerned State, is the most appropriate person to judge the suitability of a retired Judge, who will act as the Lokayukta and the object of the Act would not be served, if the final decision is left to the executive. The opinion of the Chief Justice would be entirely independent, and he would most certainly be in a position to determine who the most suitable candidate for appointment to the said office is. This Court has, therefore, explained that, the primacy of the opinion of the Chief Justice must be accepted, except for cogent reasons, and that the term consultation, for such purpose shall mean concurrence.
28. In N. Kannadasan, while interpreting the provisions of Section 16 of the Consumer Protection Act, 1986, this Court held that, consultation under the said Act, cannot be equated with consultation, as contemplated by the Constitution under Article 217, in relation to the appointment of a Judge of the High Court. However, the Court further held, that primacy will be given to the opinion of the Chief Justice, where such consultation is statutorily required.
29. In Centre for PIL and Anr. v. Union of India, this Court considered the argument of unanimity, or consensus, in the matter of the appointment of the Central Vigilance Commissioner and observed:
"79. It was further submitted that if unanimity is ruled out then the very purpose of inducting the Leader of the Opposition in the process of selection will stand defeated because if the recommendation of the Committee were to be arrived at by majority it would always exclude the Leader of the Opposition since the Prime Minister and the Home Minister will always be ad idem.
* * * Page 29 of 66 HC-NIC Page 29 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT
81. We find no merit in these submissions. To accept the contentions advanced on behalf of the petitioners would mean conferment of a "veto right" on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation."
30. This Court, in Justice K.P. Mohapatra v. Sri Ram Chandra Nayak considered the provisions of Section 3(1)(a) of the Orissa Lokpal and Lokayuktas Act, 1995, which are pari materia with those of Section 3 of the Act, 1986. In the aforementioned case, the question that arose was with respect to the meaning of consultation, as contemplated under the Orissa Act, which is a verbatim replication of Section 3 of the Gujarat Act, and upon consideration of the statutory provisions of the Act, this Court came to the conclusion that:
"12. ... The investigation which Lokpal is required to carry out is that of quasijudicial nature which would envisage not only knowledge of law, but also of the nature and work which is required to be discharged by an administrator. In this context, the word "consultation" used in Section 3(1) proviso (a) would require that consultation with the Chief Justice of the High Court of Orissa is a must or a sine qua non. For such appointment, the Chief Justice of the High Court would be the best person for proposing and suggesting such person for being appointed as Lokpal. His opinion would be totally independent and he would be in a position to find out who is most or more suitable for the said office. In this context, primacyis required to be given to the opinion of the Chief Justice of the High Court. ...
* * *
16. Applying the principle enunciated in the aforesaid judgment, scheme of Section 3(1) of the Act read with the functions to be discharged by the Lokpal and the nature of his qualification, it is apparent that the consultation with the Chief Justice is mandatory and his opinion would have primacy."
(Emphasis added) The aforesaid appeal was filed against the judgment of the Orissa High Court in Ram Chandra Nayak v. State of Orissa, wherein the High Court had held that the Governor, while appointing a person as Lokpal, must act upon the aid and advice of the Council of Ministers, and that there was no question of him exercising any power or discretion in his personal capacity. The said judgment was reversed by this Court on other grounds, but not on this issue.
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31. In Indian Administrative Service (S.C.S.) Association, U.P. and Ors. v. Union of India, this Court explained the term 'Consultation', though the same was done in the context of the promotion of certain officials under the provisions of the All India Services Act, 1951. The Court laid down various propositions with respect to consultation, inter alia:
"26.(6) No hard and fast rule could be laid, no useful purpose would be served by formulating words or definitions, nor would it be appropriate to lay down the manner in which consultation must take place. It is for the Court to determine in each case in the light of its facts and circumstances whether the action is 'after consultation'; 'was, in fact, consulted' or was it a 'sufficient consultation'."
32. Thus, in view of the above, the meaning of consultation varies from case to case, depending upon its factsituation and the context of the statute, as well as the object it seeks to achieve. Thus, no straightjacket formula can be laid down in this regard. Ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess, in relation to each other, and then arriving at a decision. However, in a situation where one of the consultees has primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence. The court must examine the factsituation in a given case to determine whether the process of consultation, as required under the particular situation did in fact, stand complete."
40. We may also usefully refer to one another decision of the Supreme Court in this regard in the case of N. Kannadasan v. Ajoy Khose reported in (2009) 7 SCC page 1. In this case, the Supreme Court had to consider whether the consultative process required to be gone into for the purpose of appointment of the Chairman, the State Consumer Commission was complied with. The Supreme Court made the following observations in paras 81, 82, 83, 84 and 85 as under: Page 31 of 66
HC-NIC Page 31 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT "81. The word "consultation" may mean differently in different situations depending on the nature and purport of the statute.
Consultation, although in regard to the appointment of the High Court and the Supreme Court Judges, having regard to the decision of this Court in Supreme Court AdvocatesonRecord Association (supra) would mean "concurrence", should it for the purpose of the provisions of Section 16 mean differently is the question.
82. Indisputably, in view of the decisions of this Court in Ashok Tanwar (supra) and Ashish Handa (supra) consultation with the Chief Justice would not mean the consultation with the Collegium of the High Court. Concededly again, proposal for such appointment must be initiated by the Chief Justice. The manner of initiation of proposal for consultation need not be as laid down in Ashish Handa (supra) but as laid down in Ashok Tanwar (supra) wherein it was clearly laid down that the manner of initiation of proposal must remain the same throughout as the law in this behalf is quite well settled and the Bench was felt bound by the same.
83. In State of Haryana and Ors. v. National Consumer Awareness Group and Ors. this Court did not give a literal meaning to subsection (1 A) of Section 16 to hold that both subsection 1(a) and (1A) of Section 16 must be harmoniously construed, stating : "19. The learned counsel, alternatively, argued that the scheme contemplated by subsection (1A) is quite workable even in a situation where there exists already a President, but the question arises of his reappointment which would make him unable to act as Chairman of the Selection Committee. In such cases, a sitting Judge of the High Court could be nominated by the Chief Justice of the High Court to act as a Chairman. Even this argument does not commend itself to us. A literal reading of subsection (1A) may prima facie suggest that appointments under clauses (a) and
(b) of subsection (1) are also governed by the procedure contemplated therein, under subsection(1A), but as rightly held by the High Court the two subsections have to be harmoniously construed. The procedure contemplated under subsection (1A) can apply only in respect of appointment of members falling within the contemplation of clause (b) of subsection (1) of Section 16. In our view, the High Court has given adequate and justifiable reasons for this interpretation with which we agree. The interpretation given by the circular, and the view taken by the Union of India in the matter of Section 16(1A), is incorrect and we hold that the procedure contemplated therein applies only to the appointments made under clause (b) of subsection (1) of Section
16."
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84. While approving Ashish Handa (supra) and Ashok Tanwar (supra) it was observed : "14. A careful reading of Ashok Tanwar shows that the Constitution Bench differed from Ashish Handa only on the issue whether consultation with the Chief Justice meant consultation with the collegium of the High Court. In other respects, Ashish Handa is approved."
85. This Court in S.P. Gupta (supra) opined that the principles as regards consultation for appointment of Judges in terms of Article 217 of the Constitution of India would be the same as laid down in State of Gujarat v. Sankalchand Khodidas Patel, and other cases, stating :"
"30. ... '2. ..."The word `consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct or at least a satisfactory solution"
and added:
'39. ... "In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision".
Krishna Iyer, J. speaking on behalf of himself and Fazal Ali, J. also pointed out that :
'103. ... "all the materials in the possession of one who consults must be unreservedly placed before the consultee' and further '103.. ... a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him.' and
103.. ... the consultant in turn must take the matter seriously since the subject is of grave importance.' The learned Judge proceeded to add:
'103. ... Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must Page 33 of 66 HC-NIC Page 33 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system.' These observations apply with equal force to determine the scope and meaning of "consultation" within the meaning of clause (2) of Article 124 and clause (1) of Article 217. Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or nonappointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge.' In regard to the position of the Additional Judges, it was clearly held that same process must be followed."
41. We may also usefully refer to the decision of the Supreme Court in the case of State of Andhra Pradesh v. K. Mohanlal and another reported in (1998) 5 SCC 468. In the said case, the constitutional validity of the Andhra Pradesh LandGrabbing (Prohibition) Act, 1982 was challenged. The issue before the Supreme Court was with regard to the appointments to the Special Court constituted under the Act, 1982.
The Chairman of the Special Court is required to be either a sitting or a retired Judge of the High Court. It was argued before the Supreme Court that because the members of the Special Court were being appointed by the Government without consulting the Chief Justice of the State, the Special Court was an unconstitutional Court, since its members did not enjoy the same degree of independence as the members of the higher Page 34 of 66 HC-NIC Page 34 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT judiciary, more particularly, when the appointment of the Chairman has to be in consultation with the Chief Justice of the State. The Supreme Court made certain observations in paras 10,11, 12, and 13, important for our purpose, are as under:
"10. If this so, then the observations in the case of S.P, Sampath Kumar (supra) to which our attention was drawn, Will not now apply.
Undoubtedly it is highly desirable that Administrative Tribunals enjoy the same degree of independence as judicial bodies, if the independence of the judiciary is not to be diluted by creation of Tribunals that do not enjoy the same degree of independence. Nevertheless, the power of judicial review granted under the Constitution to the higher judiciary under Articles 226, 227 and 32 of the Constitution is an important check On the malfunctioning of Tribunals. In this context, in L. Chandra Kumar's case (at page 301) this Court has expressly observed, "The constitutional safeguard which ensure the independence of the Judges of the superior judiciary are not available to the Judges of the subordinate judiciary or with those who man Tribunals created by ordinary legislations. Consequently, Judges of the later category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation.... We, therefore, hold that the power of judicial review over legislative action vested in the High Court under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure."
11. In the perspective of these observations, it would not be correct to hold that because the Members of the Special Court, in the present case, can be appointed by the Government without consulting the Chief Justice of the Stage, the Special Court is an unconstitutional court, since its Members do not enjoy the same degree of independence as the members of the higher judiciary, especially when the Chairman's appointment is in consultation with the Chief Justice of" the State, Also, the remedy under Articles 226 ans 227 is available against the orders of the Special Court.
12. Article 233 of the Constitution also does not apply to the appointment of retired District Judges as Judicial members of the Special Court or to the appointment of revenue members. In respect of a sitting District Judge, however, appointment cannot be made by the Stage Government without complying with Article 235. Under this Article the control over District Courts and courts subordinate thereto, including Page 35 of 66 HC-NIC Page 35 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT posting and promotion and the grant of leave to persons belonging to the judicial service of the State shall be vested in the High Court. A District Judge in the judicial service of the State, therefore, cannot be appointed by the Government to the Special Court without the consent of the High Court. This condition will have to be read into Section 7 to make it valid. In respect of the retired Judges of the District Courts and the Revenue Officers not below the rank of a District Collector, we do not see any reason why the authority to appoint, which is given to the Government under Section 7 of the said Act, cannot be upheld. A composite Tribunal consisting of Judicial and Administrative Members may be constituted in the manner prescribed by law. !t may or may not enjoy the same degree of independence as the higher judiciary of the country. Howsoever desirable that independence may be, its absence will not per se, make the Tribunal unconstitutional since its orders can be "corrected" by the higher judiciary as held in L. Chandra Kumar.
13. In the present case there are some additional safeguards. The appointments of the Chairman has to be in consultation with the Chief Justice of the High Court if he is a retired High Court Judge or it has to be of a person nominated by him, if he is a sitting High Court Judge, with the concurrence of the Chief Justice of India. This will go a long way towards securing the kind of independence that one is looking for in such a Special Court. However, Section 7 cannot be considered as violative of any provision of the Constitution. Our attention was drawn to a decision of this Court (to which one of us was a party) in the case of The Stage of Maharashtra v. Labour Law Practitioner's Association & 'Ors; (1988) 1 SCALE 565. The question considered in that case as some what different from the question before us here. In that case, the question was whether a member of the executive could be appointed to a service which was held to be a judicial service of the State. This Court held that he could not be so appointed. In the present case the said Special Court is not a part of the judicial service of the State. It is an Administrative Tribunal with a mixed composition of Judicial and Revenue Members. The appointments of retired District Judges and Revenue Members do not attract Article 234."
42. If we apply the principle of meaningful consultation, as explained by the Supreme Court in the aforenoted decisions to the facts of the present case, then in our view, there was no meaningful or effective consultation with the Chief Justice of the High Court for the purpose of the appointment of the President in the Tribunal. We are saying so for Page 36 of 66 HC-NIC Page 36 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT more than one reason. First, the whole procedure adopted by the State Government and the High Court could be termed as illegal or rather an eye wash as the same would not serve the real purpose of consultation. The Supreme Court has strongly deprecated the practice or rather the method of sending panel names asking the State Government to select one from them. This is exactly what has been done in the present case. In such circumstances, it would obviously become primacy of the Government and would not remain the primacy of the Chief Justice of the High Court, which is the requirement under the law. It is the Chief Justice of the High Court who would be the most appropriate person to judge the suitability of a retired Judge for the purpose of appointing him as the President or Judicial member of the Tribunal. The opinion of the Chief Justice would be totally independent and he would be in a position to determine who the most suitable candidate for the appointment to the post of Cooperative Tribunal is.
43. Therefore, the correct procedure should be that the Chief Justice of the High Court should send only one name for the President and one name for the Judicial member and not a panel names for consideration. We may clarify that if the Government has any reservation as regards the one or any name recommended by the Chief Justice of the High Court, then it would always be upon for the State Government to discuss about the same with the Chief Justice.
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44. We have explained in detail how the President and the Judicial member of the Tribunal should be appointed, more particularly, the mode and method of consultation. The anxiety of the applicants so far as the Tribunal is concerned is taken care of to a larger extent by the amendment in the Gujarat State Cooperative Tribunal Regulations, 2013 as regards one Judicial member and one Administrative member in every bench.
45. We shall now consider what should be the position so far as the Board of Nominees is concerned. Rule 40 provides for the Board of Nominees. Rule 40 reads as under:
"Rule 40 Board of Nominees Where the Registrar appoints a Board of Nominees under Section 98, he shall appoint one of the nominees to be the Chairman on the Board. The chairman so appointed shall fix the date, time and place of hearing the dispute referred to the board and carry out the necessary correspondence in connection with the disposal of the dispute."
46. Rule 40A provides for the qualifications of a Nominee or the Board of Nominees. Rule 40A as was in force between 17.02.2007 and 05.10.2010 read as under:
"40A. Qualifications of a nominee of the Board of Nominees- No person shall be eligible for appointment as a nominee of a Board of Nominees, unless he, [a] is holding or has held a judicial office not lower in rank than that of Senior Civil Judge, or Page 38 of 66 HC-NIC Page 38 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT [b] has practiced as an Advocate, Pleader or Vakil for not less than ten years, or [c] is enrolled as an Advocate or holds a degree or other qualification in law of any University established by law or of any other authority which entitles him to be enrolled as an Advocate, and either, [i] is a Joint Registrar of Cooperative Societies, or [ii] has held office not lower in rank than that of Deputy Registrar of Cooperative Societies or equivalent for not less than five years.
[d] No person shall hold or continue to hold the office of the Nominee of a Board of Nominees after he attains the age of sixty five years."
47. Rule 40A from 06.10.2010 onwards reads as under:
"40A. Qualifications of a nominee of the Board of Nominees- No person shall be eligible for appointment as a nominee of a Board of Nominees, unless he, [a] is holding or has held a judicial office not lower in rank than that of Senior Civil Judge, or [b] has practiced as an Advocate, Pleader or Vakil for not less than ten years, or [c] holds a degree in law from a University established by Law in India; and
(i) has worked for not less than five years as a Deputy Registrar of Cooperative Societies, Gujarat State or its equivalent post: or
(ii) has worked as a Joint Registrar of Cooperative Societies, Gujarat State.
[d] No person shall hold or continue to hold the office of the Nominee of a Board of Nominees after he attains the age of sixty five Page 39 of 66 HC-NIC Page 39 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT years."
48. The constitutional validity of the provisions of Rule 40A was also the subject matter of challenge in the main writ petition and according to the applicants, this aspect has not been considered in the judgment. It was argued before us that the provisions of Sections 96 to 99 of the Act read with the provisions of Rule 40A, nowhere prescribes the guidelines for appointment of the Nominees by the Registrar. Although the provisions of Section 96 read with Section 98 (1) of the Act provide for a decision of the Registrar for deciding the dispute himself or for referring for a disposal to a Nominee or a Board of Nominees appointed by the Registrar, yet till this date, the Lavad Suits filed in the State of Gujarat are directly heard by the Registrar's Nominees. It was argued that there has never been a decision of the Registrar for referring the dispute in the manner contemplated by Section 98(1). There are no guidelines whatsoever as to which type of cases/dispute under Section 96 would be heard by the Registrar himself or his Nominee or by the Board of Nominees. The decision on the said issue has been left to the sole discretion of the Registrar.
49. It was also argued that there are no guidelines whatsoever in the provisions of Sections 96 to 102 of the Act read with Rule 40A prescribed by the State Government in respect of the pecuniary Page 40 of 66 HC-NIC Page 40 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT jurisdiction exercised by the Registrar / his Nominee / Board of Nominees.
50. It was very vehemently argued that according to the erstwhile Notification dated 17.02.2007, the qualifications prescribed for appointing a Nominee or Board of Nominees were (a) holding or has held judicial office not lower in rank than that of a Senior Civil Judge, or
(b) has practiced as an Advocate, Pleader or Vakil for not less than ten years, or (c) is enrolled as an Advocate or holds a degree or other qualification in law of any University established by law or of any other authority which entitles him to be enrolled as an Advocate, and either (i) is a Joint Registrar of Cooperative Societies or (ii) has held office not lower in rank than that of Deputy Registrar of Cooperative Societies or equivalent for not less than five years.
51. Mr. Joshi vehemently submitted that instead of adhering to its commitment and assurance given by this Court of bringing in judicial fervor and ensuring the independence of the Registrar's Nominee, the State amended the provisions of Rule 40A vide Notification dated 06.10.2010 and the said Clause (c) of Rule 40A was substituted by a new Clause (c) referred to above. It may not be out of place to state that the Notification dated 06.10.2010 was impugned in the main petition. Page 41 of 66 HC-NIC Page 41 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT
52. We find substance in the submissions of Mr. Joshi, the learned Senior Advocate appearing for the applicants that instead of ensuring that a capable person like practicing advocate or a person qualified and holding a degree in law from a recognized University which entitles him to be enrolled as an Advocate and having knowledge of specialized subject such as Civil Procedure Code, Law of Evidence, etc, is appointed as a Registrar's Nominee, the State Government has deemed fit to do away with such qualification and instead has thought fit to appoint candidates who have cleared 2nd LL.B. Therefore, even in the Clause (c) as amended vide said Notification dated 06.10.2010 i.e. "holds a degree in law from a University established in law in India" should be construed or read as a degree recognized by the Bar Council of India which would mean only such candidates who have cleared their 3rd LL.B. (Special) or completed five years integrated course, would be qualified for the said appointment, according to Rule 40A (c).
53. We are of the view that the amended Clause (c) of Rule 40A as introduced vide Notification 06.10.2010 should be interpreted in such a manner that the State Government would be entitled to appoint as Registrar's Nominee, only such candidates who have obtained three year degree in Bachelor of law.
54. We are at one with Mr. Joshi that though the Government had Page 42 of 66 HC-NIC Page 42 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT given an assurance way back in the year 1970 to this Court and such assurance was recorded by the Division Bench of this Court in the case of Rasiklal Patel (supra) that the Government would be appointing Judicial officers as Board of Nominees or as a Nominee. Yet such assurance was never adhered to. There may be some disputes touching the constitution, business, management of the Societies which could be decided by an Administrative member i.e. Nonjudicial. Whereas day and day out, many other important complicated matters come up which only a person with the judicial background may be able to consider the same and decide.
55. We may usefully refer to the decision of the Supreme Court in the case of Union of India v. R. Gandhi, President, Madras Bar Association reported in (2010) 11 SCC 1. In this case, the challenge was to the constitutional validity of Parts IB and IC of the Companies Act, 1956 providing for the constitution of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT). The Supreme Court from paras 106 to 112.3 made the following observations:
"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.Page 43 of 66
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(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 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 reorganize 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.
Whether the constitution of NCLT and NCLAT under Parts 1B and 1C of Companies Act are valid.
107. We may now attempt to examine the validity of Part 1B and 1C of the Act by applying the aforesaid principles. The issue is not whether judicial functions can be transferred from courts to Tribunals. The issue is whether judicial functions can be transferred to Tribunals manned by persons who are not suitable or qualified or competent to discharge such judicial powers or whose independence is suspect. We have already held that the Legislature has the competence to transfer any particular jurisdiction from courts to Tribunals provided it is understood that the Tribunals exercise judicial power and the persons who are appointed as President/Chairperson/Members are of a standard which is reasonably Page 44 of 66 HC-NIC Page 44 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT approximate to the standards of main stream Judicial functioning. On the other hand, if a Tribunal is packed with members who are drawn from the civil services and who continue to be employees of different Ministries or Government Departments by maintaining lien over their respective posts, it would amount to transferring judicial functions to the executive which would go against the doctrine of separation of power and independence of judiciary.
108. 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 is possible 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. Therefore, only persons with a judicial background, that is, those who have been or are Judges of the High Court and lawyers with the prescribed experience, who are eligible for appointment as High Court Judges, can be considered for appointment of Judicial Members.
109. A lifetime of experience in administration may make a member of the civil services a good and able administrator, but not a necessarily good, able and impartial adjudicator with a judicial temperament capable of rendering decisions which have to (i) inform the parties about the reasons for the decision; (ii) demonstrate fairness and correctness of the decision and absence of arbitrariness; and (iii) ensure that justice is not only done, but also seem to be done.
110. We may refer to the following words of Bhagwati, C.J., in Sampath Kumar, (AIR 1987 SC 386) (supra) :
"We cannot afford to forget that it is the High Court which is being supplanted by the Administrative Tribunal and it must be so manned as to inspire confidence in the public mind that it is a highly competent and expert mechanism with judicial approach and objectivity. Of course, I must make it clear that when I say this, I do not wish to cast any reflection on the members of the Civil Page 45 of 66 HC-NIC Page 45 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Services because fortunately we have, in our country, brilliant civil servants who possess tremendous sincerity, drive and initiative and who have remarkable capacity to resolve and overcome administrative problems of great complexity. But what is needed in a judicial tribunal which is intended to supplant the High Court is legal training and experience."
111. As far as the Technical Members are concerned, the officer should be of at least Secretary Level officer with known competence and integrity. Reducing the standards, or qualifications for appointment will result in loss of confidence in the Tribunals. We hasten to add that our intention is not to say that the persons of Joint Secretary level are not competent. Even persons of Under Secretary level may be competent to discharge the functions. There may be brilliant and competent people even working as Section Officers or Upper Division Clerks but that does not mean that they can be appointed as Members. Competence is different from experience, maturity and status required for the post. As, for example, for the post of a Judge of the High Court, 10 years' practice as an Advocate is prescribed. There may be Advocates who even with 4 or 5 years' experience, may be more brilliant than Advocates with 10 years' standing. Still, it is not competence alone but various other factors which make a person suitable. Therefore, when the legislature substitutes the Judges of the High Court with Members of the Tribunal, the standards applicable should be as nearly as equal in the case of High Court Judges. That means only Secretary Level officers (that is those who were Secretaries or Additional Secretaries) with specialized knowledge and skills can be appointed as Technical Members of the Tribunal.
112. What is a matter of concern is the gradual erosion of the independence of the judiciary, and shrinking of the space occupied by the Judiciary and gradual increasein the number of persons belonging to the civil service discharging functions and exercising jurisdiction which was previously exercised by the High Court. There is also a gradual dilution of the standards and qualification prescribed for persons to decide cases which were earlier being decided by the High Courts. Let us take stock. 112.1. To start with, apart from jurisdiction relating to appeals and revisions in civil, criminal and tax matters (and original civil jurisdiction in some High Courts). The High Courts were exercising original jurisdiction in two important areas; one was writ jurisdiction under Articles 226 and 227 (including original jurisdiction in service matters) and the other was in respect to company matters.
112.2. After constitution of Administrative Tribunals under the Administrative Tribunals Act, 1985 the jurisdiction in regard to original jurisdiction relating to service matters was shifted from High Courts to Administrative Tribunals. Section 6 of the said Act deals with Page 46 of 66 HC-NIC Page 46 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT qualifications for appointment as Chairman, and it is evident therefrom that the Chairman has to be a High Court Judge either a sitting or a former Judge. For judicial member the qualification was that he should be a Judge of a High Court or is qualified to be a Judge of the High Court (i.e. an advocate of the High Court with ten years practice or a holder of a judicial office for ten years) or a person who held the post of Secretary, Govt. of India in the Department of Legal Affairs or in the Legislative Department or Member Secretary, Law Commission of India for a period of two years; or an Additional Secretary to Government of India in the Department of Legal Affairs or Legislative Department for a period of five years.
112.3. For being appointed as Administrative Member, the qualification was that the candidate should have served as Secretary to the Government of India or any other post of the Central or State Government carrying the scale of pay which is not less than as of a Secretary of Government of India for at least two years, or should have held the post of Additional Secretary to the Government of India or any other post of Central or State Government carrying the scale of pay which is not less than that of an Additional Secretary to the Government of India at least for a period of five years. In other words, matters that were decided by the High Courts could be decided by a Tribunal whose members could be two Secretary level officers with two years experience or even two Additional Secretary level officers with five years experience. This was the first dilution." 55.1 In para 113, the Supreme Court made some important observations are as under:
"113. When Administrative Tribunals were constituted, the presence of members of civil services as Technical (Administrative) Members was considered necessary, as they were well versed in the functioning of government departments and the rules and procedures applicable to Government servants. But the fact that senior officers of civil services could function as Administrative Members of Administrative Tribunals, does not necessarily make them suitable to function as Technical Members in Company Law Tribunals or other Tribunals requiring technical expertise. The Tribunals cannot become providers of sinecure to members of civil services, by appointing them as Technical Members, though they may not have technical expertise in the field to which the Tribunals relate, or worse where purely judicial functions are involved. While one can understand the presence of the members of the civil services being Technical Members in Administrative Tribunals, or Military Officers being members of Armed Forces Tribunals, or Electrical Engineers being members of Electricity Appellate Tribunal, or Telecom Engineers being members of TDSAT, we find no logic in members of general Civil Services being members of Page 47 of 66 HC-NIC Page 47 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Company Law Tribunals."
55.2 In para 119, the following observations were made:
"119. There is an erroneous assumption that company law matters require certain specialized skills which are lacking in Judges. There is also an equally erroneous assumption that members of the civil services, (either a GroupA officer or Joint Secretary level civil servant who had never handled any company disputes) will have the judicial experience or expertise in company law to be appointed either as Judicial Member or Technical Member. Nor can persons having experience of fifteen years in science, technology, medicines, banking, industry can be termed as experts in Company Law for being appointed as Technical Members. The practice of having experts as Technical Members is suited to areas which require the assistance of professional experts, qualified in medicine, engineering, and architecture etc. Lastly, we may refer to the lack of security of tenure. The short term of three years, the provision for routine suspension pending enquiry and the lack of any kind of immunity, are aspects which require to be considered and remedied."
56. The same principle could be applied in the present case also when it comes to Gujarat Cooperative Tribunal and Board of Nominees is concerned. When the State legislature thought fit to shift from Courts to the Tribunals and the Board of Nominees, the cooperative sector rather the dispute under the Cooperative Societies Act on various grounds like pendency and delay in Court, then the Tribunal as well as the Board of Nominees should normally have only Judicial members. Only in cases where the exercise of jurisdiction involves inquiry and decision into technical or special aspects, the presence of the technical or administrative members would be useful.
57. We may quote the decision of the Supreme Court in the case of Madras Bar Association v. Union of India, Judgment Today 2015 (5) Page 48 of 66 HC-NIC Page 48 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT SC 33. This case is a sequel to the decision referred to above in the case of R. Gandhi (supra). In R. Gandhi (supra), the petitioner had challenged the constitutional validity of creation of the National Company Law Tribunal and National Company Law Appellate Tribunal along with certain other provisions pursuant thereto. In the later case, the challenge was to the new Company Law enacted by the Parliament in the form of Indian Company Act, 2013, replacing the earlier Act, 1956. The cause for filing the petition was the allegation that notwithstanding various directions given in 2010 judgment, the new provisions in the Act were almost on the same lines as were incorporated in the Act, 1956 and, therefore, those provisions suffered from the vice of unconstitutionality as well as on the application of the ratio in 2010 judgment. The Bench made the following observations in 22, 23, 23.1 :
"22. What gets revealed from the reading of para 120, particularly, subpara (ii) thereof that only officers who are holding the ranks of Secretaries or Additional Secretaries alone are to be considered for appointment as technical Members of NCLT. Provisions contained in clauses (c) and (d) of subsection (2) and Clause (a) and (b) of sub section (3) of Section 10FD which made Joint Secretaries with certain experience as eligible, were specifically declared as invalid. Notwithstanding the same, Section 409(3) of the Act, 2013 again makes Joint Secretary to the Government of India or equivalent officer eligible for appointment, if he has 15 years experience as member of Indian Corporate Law Service or Indian Legal Service, out of which at least 3 years experience in the pay scale of Joint Secretary. This is clearly in the teeth of dicta pronounced in 2010 judgment.
23. In the counter affidavit, the respondents have endeavored to justify this provision by stating that this variation was made in view of the lack of available officers at Additional Secretary level in Indian Companies Law Service. It is further mentioned that functionally the levels of Additional Secretary and Joint Secretary are similar. These Page 49 of 66 HC-NIC Page 49 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT officers have knowledge of specific issues concerning operations and working of companies and their expertise in company law which is expected to benefit NCLT. Such an explanation is not legally sustainable, having regard to the clear mandate of 2010 judgment.
23.1 We would like to point out that apart from giving other reasons for limiting the consideration for such posts to Secretary and Additional Secretary, there was one very compelling factor in the mind of the Court viz. gradual erosion of independence of judiciary, which was perceived as a matter of concern. This aspect was demonstrated with specific examples in certain enactments depicting gradual dilution of the standards and qualifications prescribed for persons to decide cases which were earlier being decided by the High Court. We, thus, deem it apposite to reproduce that discussion which provides a complete answer to the aforesaid argument taken by the respondents. The said discussion, contained in para 112, with its subparas, reads as under:
"112. What is a matter of concern is the gradual erosion of the independence of the judiciary, and shrinking of the space occupied by the Judiciary and gradual increase in the number of persons belonging to the civil service discharging functions and exercising jurisdiction which was previously exercised by the High Court. There is also a gradual dilution of the standards and qualification prescribed for persons to decide cases which were earlier being decided by the High Courts. Let us take stock.
112.1 To start with, apart from jurisdiction relating to appeals and revisions in civil, criminal and tax matters (and original civil jurisdiction in some High Courts). The High Courts were exercising original jurisdiction in two important areas; one was writ jurisdiction under Articles 226 and 227 (including original jurisdiction in service matters) and the other was in respect to company matters.
112.2 After constitution of Administrative Tribunals under the Administrative Tribunals Act, 1985 the jurisdiction in regard to original jurisdiction relating to service matters was shifted from High Courts to Administrative Tribunals. Section 6 of the said Act deals with qualifications for appointment as Chairman, and it is evident therefrom that the Chairman has to be a High Court Judge either a sitting or a former Judge. For judicial member the qualification was that he should be a judge of a High Court or is qualified to be a Judge of the High Court (i.e. an advocate of the High Court with ten years practice or a holder of a judicial office for ten years) or a person who held the post of Secretary, Govt. of India in the Page 50 of 66 HC-NIC Page 50 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Department of Legal Affairs or in the Legislative Department or Member Secretary, Law Commission of India for a period of two years; or an Additional Secretary to Government of India in the Department of Legal Affairs or Legislative Department for a period of five years.
112.3 For being appointed as Administrative Member, the qualification was that the candidate should have served as Secretary to the Government of India or any other post of the Central or State Government carrying the scale of pay which is not less than as of a Secretary of Government of India for at least two years, or should have held the post of Additional Secretary to the Government of India or any other post of Central or State Government carrying the scale of pay which is not less than that of an Additional Secretary to the Government of India at least for a period of five years. In other words, matters that were decided by the High Courts could be decided by a Tribunal whose members could be two Secretary level officers with two years experience or even two Additional Secretary level officers with five years experience. This was the first dilution.
112.4 The members were provided a term of office of five years and could hold office till 65 years and the salary and other perquisites of these members were made the same as that of High Court Judges. This itself gave room for a comment that these posts were virtually created as sinecure for members of the executive to extend their period of service by five years from 60 to 65 at a higher pay applicable to High Court Judges. Quite a few members of the executive thus became members of the "Tribunals exercising judicial functions".
112.5 We may next refer to Information Technology Act, 2000 which provided for establishment of Cyber Appellate Tribunal with a single member. Section 50 of that Act provided that a person who is, or has been, or is qualified to be, a Judge of a High Court, or a person who is, or has been, a member of the India Legal Service and is holding or has held a post in Grade I of that service for at least three years could be appointed as the Presiding Officer. That is, the requirement of even a Secretary level officer is gone. Any member of Indian Legal Service holding a GradeI Post for three years can be a substitute for a High Court Judge.
112.6 The next dilution is by insertion of Chapters 1B in the Companies Act, 1956 with effect from 1.4.2003 Page 51 of 66 HC-NIC Page 51 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT providing for constitution of a National Company Law Tribunal with a President and a large number of Judicial and Technical Members (as many as 62). There is a further dilution in the qualifications for members of National Company Law Tribunal which is a substitute for the High Court, for hearing winding up matters and other matters which were earlier heard by High Court. A member need not even be a Secretary or Addl. Secretary Level Officer. All Joint Secretary level civil servants (that are working under Government of India or holding a post under the Central and State Government carrying a scale of pay which is not less than that of the Joint Secretary to the Government of India) for a period of five years are eligible. Further, any person who has held a GroupA post for 15 years (which means anyone belonging to Indian P&T Accounts & Finance Service, Indian Audit and Accounts Service, Indian Customs & Central Excise Service, Indian Defence Accounts Service, Indian Revenue Service, Indian Ordnances Factories Service, Indian Postal Service, Indian Civil Accounts Service, Indian Railway Traffic Service, Indian Railway Accounts Service, Indian Railway Personal Service, Indian Defence Estates Service, Indian Information Service, Indian Trade Services, or other Central or State Service) with three years' of service as a member of Indian Company Law Service (Account) Branch, or who has `dealt' with any problems relating to Company Law can become a Member. This means that the cases which were being decided by the Judges of the High Court can be decided by twomembers of the civil services Joint Secretary level officers or officers holding Group `A' posts or equivalent posts for 15 years, can now discharge the functions of High Court. This again has given room for comment that qualifications prescribed are tailor made to provide sinecure for a large number of Joint Secretary level officers or officers holding Group `A' posts to serve up to 65 years in Tribunals exercising judicial functions.
112.7 The dilution of standards may not end here. The proposed Companies Bill, 2008 contemplates that any member of Indian Legal Service or Indian Company Law Service (Legal Branch) with only ten years service, out of which three years should be in the pay scale of Joint Secretary, is qualified to be appointed as a Judicial Member. The speed at which the qualifications for appointment as Members is being diluted is, to say the least, a matter of great concern for the independence of the Judiciary."
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58. Thus the above makes it clear that the role of the Registrar's Nominees or the Board of Nominees is important insofar as the adjudication of the varied claims is concerned and we are of the view that the post should be manned by Judicial officers.
59. Although the prayer in the main petition was to declare few provisions of the Act as well as the rules unconstitutional, yet if the mechanism as explained by us is provided and read into those provisions of the Act and the rules, then we need not declare the same as unconstitutional. If the mechanism as explained by us is provided the provisions by itself will become workable.
60. We are of the view that instead of declaring the provisions as unconstitutional, all endevour should be made to uphold the validity by adopting the principle of "reading down" or "reading into", so as to make the provisions of the Act and the Rule more effective, workable and ensure the attainment of the object of the rule. Ordinarily, the Courts would be reluctant to declare a law or rule invalid or ultravires on account of unconstitutionality. The Court should make all possible endeavour to interpret in a manner which would be in favour of the constitutionality, as declaring the law or a rule unconstitutional should be one of the last resorts which the Court may take.
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61. A validity of a rule has to be adjudged on three well recognized tests: (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution (Maharashtra State Board of Secondary and Higher Secondary Education Vs. P.B. Mukarsheth, AIR 1984 SC 1543). There is presumption in favour of the validity of the rule.
62. In Venkayya Vs. Pullayya reported in AIR 1942 Mad. 466, a Division Bench of the Madras High Court, after referring to a decision by the House of Lords in Blackwood Vs. London Chartered Bank of Australia (1874) 5 PC 92, at p.108 observed as under: "As has been pointed out by the House of Lords in (1874) 5 PC 92, at pg. 108, the tests to apply in considering whether rules are within the powers of the rulemaking authority under a statute are: (1) Whether the rules are reasonable and convenient for carrying the Act into full effect; (2) Whether the rules relate to matters arising under the provisions of the Act; (3) Whether they relate to matters not in the Act otherwise provided for and (4) Whether they are consistent with the provisions of the Act. The validity of a rule is to be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute and whether it is consistent with the statute, reasonable and not contrary to general principles."
63. In the case of Namit Sharma Vs. Union of India reported in Page 54 of 66 HC-NIC Page 54 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT (2013) 1 SCC 745, the subject matter before the Supreme Court was one under the Right to Information Act, 2005. The Court made the following observations in paragraphs 51 and 61, which are reproduced hereinbelow: "51. Another most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the principle of reading down or reading into the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this court in its various pronouncements."
"61. It is a settled principle of law, as stated earlier, that courts would generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like reading into and/or reading down the relevant provisions, as opposed to declaring a provision unconstitutional. The courts can also bridge the gaps that have been left by the legislature inadvertently. We are of the considered view that both these principles have to be applied while interpreting Section 12(5). It is the application of these principles that would render the provision constitutional and not opposed to the doctrine of equality. Rather the application of the provision would become more effective."
63.1 Namit Sharma (supra), referred to above, was taken in review by the Supreme Court in the petition filed under Article 137 of the Constitution of India by the Union of India as well as the State of Rajasthan and another. The Supreme Court in the case of Namit Sharma (supra) had held that the provisions of Section 12(5) and 15(5) of the Right to Information Act, 2005 did not specify the basic qualification of the persons to be appointed as the Information Commissioner and only Page 55 of 66 HC-NIC Page 55 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT mentioned that the Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. The Supreme Court held that the knowledge and experience in the different fields mentioned in Section 12(5) and Section 15(5) of the Act would presuppose a graduate who possesses basic qualification in the field concerned. The Supreme Court also expressed the opinion that for effectively performing the functions and exercising the powers of the Information Commissioner, there is a requirement of a judicial mind. The Supreme Court further held that separation of powers and the independence of judiciary were functional constitutional values in the structure of our Constitution as without these two constitutional values, impartiality would not thrive, as been held by the Supreme Court in Madras Bar Association (supra). In the Review Application, it was argued on behalf the Union of India that it is only the legislature which has the power to make law and amend the law and the Court should not exercise of its judicial power encroached into the field of legislation. It was argued that the view taken by the Supreme Court in the judgment under Review that the Information Commissioner should possess the essential attributes of the Court and that for effectively performing the functions and powers of the Information Commissioner, there is a Page 56 of 66 HC-NIC Page 56 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT requirement of a judicial mind and hence, persons eligible for the appointment as the Information Commissioners should preferably have some judicial background and possess judicial acumen, was a patent error of law. It was argued that the Information Commissioner have a duty to act judicially and perform quasijudicial function, but that would not mean that they must have the experience and acumen of judicial officer.
63.2 The Supreme Court in the case of Namit Sharma (2) reported in 2013(10) SCC 359 allowed the Review Applications by recalling the directions and declaration in the judgment under Review. While doing so, the following observations were made in paras 21, 22, 29:
"21. Review of a judgment or order of this Court under Article 137 of the Constitution is confined to only errors apparent on the face of the record as provided in Order XL Rule 1 of the Supreme Court Rules, 1966. A three Judge Bench of this Court has held in CST v. Pine Chemicals Ltd that if a reasoning in the judgment under review is at variance with the clear and simple language in a statute, the judgment under review suffers from a manifest error of law, an error apparent on the face of the record, and is liable to be rectified. Hence, in these Review Petitions, we have to decide whether the reasoning and directions in the judgment under review is at variance with the clear and simple language employed in the different provisions of the Act and accordingly whether the judgment under review suffers from manifest errors of law apparent on the face of the record."
"22. As we have noticed, Sections 12(5) and 15(5) of the Act provide that Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. These provisions of the Act do not provide that the Chief Information Page 57 of 66 HC-NIC Page 57 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT Commissioner and Information Commissioners shall be persons having judicial experience, training and acumen and yet this Court has held in the judgment under review that for effectively performing the functions and exercising the powers of the Information Commission, there is a requirement of a judicial mind and therefore persons eligible for appointment should preferably have judicial background and possess judicial acumen and experience. We may now examine the bare provisions of the Act, whether this finding that there is requirement of a judicial mind to discharge the functions of Information Commission is an error apparent on the face of the record."
"29. Once the Court is clear that Information Commissions do not exercise judicial powers and actually discharge administrative functions,the Court cannot rely on the constitutional principles of separation of powers and independence of judiciary to direct that Information Commissions must be manned by persons with judicial training, experience and acumen or former Judges of the High Court or the Supreme Court. The principles of separation of powers and independence of judiciary embodied in our Constitution no doubt require that judicial power should be exercised by persons with judicial experience, training and acumen. For this reason, when judicial powers vested in the High Court were sought to be transferred to tribunals or judicial powers are vested in tribunals by an Act of the legislature, this Court has insisted that such tribunals be manned by persons with judicial experience and training, such as High Court Judges and District Judges of some experience. Accordingly, when the powers of the High Court under Companies Act, 1956 were sought to be transferred to Tribunals by the Companies (Amendment) Act, 2002, a Constitution Bench of this Court has held in Union of India v. R. Gandhi, President Madras Bar Association (supra) "108. ... 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. Therefore, only persons with a judicial background, that is, those who have been or are Judges of the High Court and lawyers with the prescribed experience, who are eligible for appointment as High Court Judges, can be considered for appointment as judicial members.""Page 58 of 66
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64. The proposition of law discernible from the aforesaid decision of the Supreme Court is that if the reasoning in the judgment under review is at variance with the clear and simple language in a statute, the judgment under review could be said to be suffering from a manifest error of law, and an error apparent on the face of the record, and is liable to be rectified.
65. The aforesaid principle of law directly applies to the case in hand. We have explained in details why the reasoning assigned by the Division Bench in the judgment under review is at variance with the clear and simple language employed in the different provisions of the Gujarat Cooperative Societies Act. Once it is noticed or rather found apparent that the President of the Tribunal and its members as well as the Board of Nominee exercise judicial power and not just discharge administrative functions, it is open for the Court to rely on the Constitutional principles of separation of powers and the independence of judiciary to direct that the Cooperative Tribunal as well as the Board of Nominee must be manned by persons with judicial training, experience and acumen. When the judicial powers vested in the Civil Courts were sought to be transferred to the Cooperative Tribunals, then the Court must insist that such Tribunals and Board of Nominee be manned by the persons with judicial experience and training.
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66. As per the mechanism of Sections 96 97 of the Act, the Registrar or its nominee may be competent to decide the disputes but when the powers of adjudication of civil litigation are delegated by the Legislature to other statutory authority, it should have the qualifications to decide such disputes like a Judicial Officer or qualifications to be appointed as a Judicial officer. Such aspect did not fall for the consideration of this court in its decision in the case of Rasiklal Patel (supra) since a declaration was made to appoint the Registrar's nominee from amongst the retired Judicial Officers.
67. The attempt to contend by Mr. Jani, the learned Additional Advocate General that when a person becomes a member in a society, the mode and mechanism of adjudication of dispute is accepted and the member cannot make any valid grievance, cannot be countenanced because of two reasons, first that the member has no choice but for law made by the Legislature and secondly, that any law made by Legislature has to meet with the test of the Constitution of India. In any case, there can be no bar or estoppal against the constitutional rights.
68. The decision of the Apex Court in Satya Pal Anand V/s. State of Madhra Pradesh reported in 2014 (7) SCC 244 was also referred to by both sides since the same related to the provisions of Section 77(3)(b) and Section 77(6) of the M.P. Cooperative Societies Act as being Page 60 of 66 HC-NIC Page 60 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT unconstitutional. However, in the said decision, the question as regards the qualifications of a Board of Nominee of the Registrar, whose function is only to decide the disputes and no administrative or ministerial work had not come up for consideration before the Apex Court with the further aspect that in the Gujarat State when the constitutional validity was challenged far back as in 1971, a declaration was made to appoint retired Civil Judges as the Registrar's Nominee for the adjudication of the disputes. The applicant relied upon paragraph 20, 21 and 22 of the said decision in support of their contention that the appointments to the post of Registrar's Nominee and the Tribunal Members must be of persons who are independent in their functioning and have acquired the necessary expertise to effectively deal with the disputes coming before them and that the appointments be made keeping in mind the mandate of the Constitution Bench in the case of Madras Bar Association (supra) for ensuring the independence of the adjudicatory mechanism in the Board of Nominees and the Gujarat State Cooperative Tribunal and that therefore the same be made in consultation with the High Court.
69. Mr. Jani, the learned Additional Advocate General relied on few decisions of the Supreme Court as well as this Court referred to above in para 8. The decisions are on the subject of review, more particularly, the scope of review. There need not be any debate so far as the proposition Page 61 of 66 HC-NIC Page 61 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT of law explained by the Court in those cases is concerned. We are conscious of the fact that the review proceedings should not be equated with the original petition. We are also conscious of the fact that an order should be reviewed only in cases of glaring omission, patent error or like grave error and not for rehearing of the case. We have explained in details in our judgment the reason for undertaking the exercise of review. All the judgments relied upon could be said to have been delivered in the facts of those cases and are not applicable to the case in hand.
70. Mr. Jani also placed strong reliance on the decision of this Court in the case of Rasiklal Patel (supra) to contend that the constitutional validity of Sections 96 to 102 of the Gujarat Cooperative Societies Act was challenged in the past and such challenge had failed. Mr. Jani placed reliance on the observations made by the Division Bench of this Court while upholding the validity that merely because the subject machinery was provided in place of the ordinary machinery of civil suit, it would not mean that the same was unreasonable. However, we pointed out to Mr. Jani the observations made by the Division Bench in para 25 which we have relied upon in our judgment. This decision also does not help the client of Mr. Jani in any manner.
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71. It is well established that a judgment is a precedent for what it decides and not what may appear to logically flow from it. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.
72. Reference could be made to a decision of the Supreme Court in the case of Ashwani Kumar Singh v/s. U.P. Public Service Commission and others, 2003 11 SCC 584, in which the Supreme Court has explained as to how courts should place reliance on precedents. Observations made in paragraphs 10, 11, 12 and 13 are referred to hereinbelow: "10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.
Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton, 1951 AC 737 at p.761), Lord Mac Dermot observed: Page 63 of 66
HC-NIC Page 63 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT "The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
"11. In Home Office v. Dorset Yacht Co. 1970 2 AIIER 294) Lord Reid said, "Lord Atkin's speech ............is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in Shepherd Homes Ltd. V. Sandham, 1971 1 WLR 1062) observed:
"One must not, of course, construe even a reserved judgment of Russell, L. J. as if it were an Act of Parliament."
In Herrington v. British Railways Board, 1972 2 WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
13. The following words of Lord Denning in the matter of applying precedents have become locus classicus :
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
xxx xxx xxx xxx "Precedent would be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you Page 64 of 66 HC-NIC Page 64 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
73. We record our final conclusion as under:
(1) The Sections 96 and 97 of the Act insofar as it relates to the adjudication of disputes by the Registrar or his nominee can be maintained only if the nominee so appointed are having experience as the Judicial Officer of not less than five years or qualified to be appointed as the Judicial Officer like advocate with 5 years experience, otherwise such a provision to that extent would be ultra vires the Constitution of India.
(2) The appointment of President and/or Judicial member in the Gujarat State Cooperative Tribunal has to be after consultation as held in the present order.
(3) This order will have prospective effect and the appointments already made or the judgment or order passed by any appointee in the respective capacity as nominee or member or President of the Tribunal shall not be invalidated in view of the present order.
(4) As we are informed that due to the present litigation large number of posts of the nominee as well as the President and Judicial members and consequently administrative members have Page 65 of 66 HC-NIC Page 65 of 66 Created On Sat Sep 12 02:38:13 IST 2015 C/MCA/2908/2011 CAV JUDGMENT remained vacant, the competent authority - State Government shall fill up the posts preferably within three months from the date of the receipt of the order in tune with the observations made in the present order.
74. This Review Application is, accordingly, disposed of.
75. In view of the order passed in the main matter, the connected Civil Application is also disposed of.
(JAYANT PATEL, ACJ.) (J.B. PARDIWALA, J.) chandresh Page 66 of 66 HC-NIC Page 66 of 66 Created On Sat Sep 12 02:38:13 IST 2015