Gujarat High Court
Jay Atul Shah & 2 vs Arvindbhai Amrutbhai Patel & ... on 21 July, 2017
Equivalent citations: AIR 2018 GUJARAT 8
Author: Anant S.Dave
Bench: Anant S. Dave, N.V.Anjaria
C/CRA/386/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 386 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
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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 No
India or any order made thereunder ?
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JAY ATUL SHAH & 2....Applicant(s)
Versus
ARVINDBHAI AMRUTBHAI PATEL & 11....Opponent(s)
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Appearance:
MR SUNIT SHAH WITH MR MAUNISH T PATHAK, ADVOCATE for the
Applicant(s) No. 1 - 3
MR KP RAVAL, AGP for the Opponent(s) No. 11
MR PC KAVINA, SR. ADVOCATE WITH MR BK. RAJ, ADVOCATE for the
Opponent(s) No. 1 - 10
NOTICE SERVED BY DS for the Opponent(s) No. 12
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 21/07/2017
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C/CRA/386/2015 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.V.ANJARIA) Whether the Mamlatdar's Court under the Mamlatdars' Courts Act, 1906 and the Collector exercising powers under Section 23(2) of the Act, could be said to be a 'court', and the court 'subordinate to High Court' within the ambit of and as envisaged under Section 115 read with Section 3 of the Code of Civil Procedure, 1908; whether therefore Civil Revision Application under Section 115 of the Code of Civil Procedure would lie against the orders passed under the Mamlatdars' Courts Act - are the crisp questions of law required to be addressed and decided together with their incidental legal contours.
2. A divergence of views arose as to the question whether the orders passed under the Mamlatdars' Courts Act, 1906, in particular the order of the Collector passed in exercise of his powers under Section 23 of the Act, could be challenged by filing Civil Revision Application by invoking Section 115 of Code of Civil Procedure.
2.1 This Court in order dated 05th August, 2010 passed in Narendrabhai Raijibhai Patel v State of Gujarat being Special Civil Application No.13028 of 2009, order dated 29th June, 2010 in Patel Fuljibhai Ghemarbhai v State being Special Civil Application No.7445 of 2010 and order dated 01st May, 2014 in Devchandrabhai V. Kachhadiya v Batukbhai Visami being Special Civil Application No.5465 of 2014, after Page 2 of 25 HC-NIC Page 2 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT placing reliance on the decisions of the Bombay High Court in Babaji Kondaji Mali v Bala Fakira Mahar [1938 BLR (Vol.40) 104]; Dalpat Zopdoo Patil v Mahadu Uka [1912 BLR (Vol.14) 259] as well as in Purshottam Janardhan Chaphakar v Mahadu Pandu Turmalkar [1912 BLR (Vol.14) 947], took the view that Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to sa 'the Code') is maintainable.
3. While dealing with the captioned Civil Revision Application, learned Single Judge, after prima facie consideration of Section 115 read with Section 3 of the Code and further prima facie taking into account the kind and nature of the provisions of the Mamlatdars' Courts Act viewed the issue differently, stating inter alia in order dated 07th April, 2017, "9. From the aforestated provisions of Mamlatdars' Courts Act, it clearly transpires that the legislature has drawn a clear distinction between the Mamlatdar's Court and the Civil Court, inasmuch as specific references of Civil Court have been made in many provisions as distinct from the Mamlatdar's Court. The Court, therefore, is of the opinion that the Court presided over by Mamlatdar to decide the disputes under the Mamlatdars' Courts Act, may be called Mamlatdar's Court but could not be called a Civil Court much less a Civil Court subordinate to the HighCourt as contemplated under Section 3 for the purposes of exercising powers under Section 115 of CPC."
3.1 The issue was referred to the Division Bench, and accordingly came to be placed before this Bench.
4. Heard learned advocate Mr.Sunit Shah with learned advocate Mr.Maunish Pathak, learned advocate Mr.Asim Pandya and learned advocate Mr.Dipen Shah, who Page 3 of 25 HC-NIC Page 3 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT all staunchly argued that Civil Revision Application under Section 115 of the Code would lie. According to them, the nature of powers exercised under the Mamlatdars' Courts Act (hereinafter refered to as 'the Act') are suggestive that the authorities under the Act function as a court and a civil court. It was sought to be highlighted from the provisions of the Act more particularly from the provision of Section 5 of the Act, by submitting that under the provisions the authorities are vested with powers of civil and judicial nature for adjudication of disputes with regard to possession and enjoyment of land including rights in relation to the land-use, which is an important feature to make the Mamlatdar a civil court. It was submitted that as per Section 5, every Mamlatdar is to preside over a court having power to issue injunctions. It was submitted that a petition presented before the Mamlatdar under Sections 8 and 9 is called plaint, that under Section 12 Mamlatdar has powers to reject plaint and under Section 13 he can return the plaint. It was submitted that they are the powers analogues to the provisions under the Civil Procedure Code. Learned counsels further relied on the provision of Section 15 regarding attendance of witnesses, regarding power of rejection of plaint with cost on failure of the plaintiff to attend as per Section 16, the provision regarding points to be decided by the Mamlatdar at the time of hearing as per Section 19, the powers of Mamlatdar to examine witnesses and inspect the properties in dispute and other attendant provisions to buttress the case that Page 4 of 25 HC-NIC Page 4 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT the Mamlatdar and the authorities under the Act had all characteristics of a court. It was further submitted that under Section 23 it is provided that Collector is deemed to be a court and therefore, as per the deeming fiction, the concept of court which the Collector is, has to be taken to its logical end.
4.1 Learned advocates professing the aforesaid view, relied on various decisions in support. In addition to the orders in Narendra Rajabhai Patel (supra), Patel Fuljibhai (supra) of this Court and the decisions of the Bombay High Court in Babaji Kondaji Mali (supra), Dalpat Zopdoo Patil (supra) and Purshottam Janardan Chaphakar (supra), a decision of Karnataka High Court in Narayan Naggappa Hegde v Shankar [AIR 1966 Karnataka 5] was pressed into service, which held that the orders of the Mamlatdar and the Collector under the Act were revisable before the High Court under Section 115 of the Code. Also relied on was the decision of the Bombay High Court in Sanjay Dinkar Kulkarni v Shankarappa G. [AIR 1971 Bombay 302] which observed that though Collector is given revisioal powers under Section 23 of the same nature as under Section 115 of the Code, it does not mean that the High Court cannot exercise revisional powers under Section 115 for the orders passed by the Collector.
4.2 The crux of the above cluster of submissions was that the Mamlatdar and the Collector functioning under the Mamlatdars' Courts Act discharge the powers of judicial nature, that they adjudicate the disputes Page 5 of 25 HC-NIC Page 5 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT between the parties and that they had all the trappings of the court contemplated under Section 115 of the Code to make their orders amenable to the revisional jurisdiction before the High Court. It was submitted that the list of courts considered subordinate under Section 3 of the Code was not exhaustive. They further referred to the definition of 'court' under the Indian Evidence Act, 1972 which defines the court 'to include all judges, magistrates and all persons except arbitrators legally authorised to take evidence', and submitted that authorities under the Mamlatdars' Courts Act were deciding the case after taking evidence.
4.3 On the other hand, learned senior advocate Mr.P.C. Kavina with learned advocate Mr.B.K. Raj as well as learned advocate Mr.Amit Thakkar submitted that the authorities under the Mamlatdars' Courts Act cannot be construed as 'court' in its strict sense. It was submitted that the orders of the authorities under the Act cannot be termed as final as, civil remedy is always open for the aggrieved parties even if the Mamlatdar or Collector decides under the Act and grants relief. They submitted that it is only a temporary mechanism for redressal of limited kinds of possessory nature of rights for which the farmers may approach the authorities under the Act. They next submitted that subordination of court contemplated under Section 115 read with Section 3 cannot be expanded to include even the tribunals and forums which may have the features of court in their functioning. It was submitted that the orders of such Page 6 of 25 HC-NIC Page 6 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT forums may come under the supervisory writ jurisdiction of the High Court.
5. The primary question which falls for consideration is as to whether Mamlatdar's court is a court. Therefore it would be germane to examine the concept of 'court' from its jurisprudential dimensions, to comprehend properly what the 'court' means in its generic meaning, and in technical sense.
5.1 In Rama Rao v Narayan [(1969) 1 SCC 167], the Supreme Court cited with approval Articles 809 and 810 from the Halsbury's Laws of England, 3rd edition, Vol.9 which lucidly defined the concept of court as is understood commonly thus, "The expression "court" in ordinary parlance is a generic expression and in the context in which it occurs may mean a 'body or organisation' invested with power, authority or dignity. Originally, the term 'court' meant, among other meanings, the sovereign's place; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the sovereign". The court is understood to be a body which settles disputes and decides rights and liabilities of parties before it. In Canara Bank v Nuclear Power Corporation of India [1995 Supp (3) SCC 81] it was observed that the word 'court' must be read in the context in which it is used in a statute which would includes such courts which are the Tribunals exercising judicial powers.
Page 7 of 25HC-NIC Page 7 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT 5.2 In an English decision in Shell Company of Australia Limited v Federal Taxation Commissioner [1931 All ER 671], Lord Sankey in his picturesque language explained what the court really means, which was quoted with approval by the Apex Court in Bharat Bank Limited v Employees [AIR 1950 SC 188]. It was observed that they are Tribunals with many of the trappings of the court which nevertheless, are not courts in the strict sense of exercising judicial power. A Tribunal is not necessarily a court in this strict sense only because it gives a final decision, nor because it hear witnesses on oath, nor because two or more contending parties appear before it between whom it has to decide, nor because it gives decision which affect the rights of subjects nor because there is an appeal to a court, nor because it is a body to which a matter is referred by another body.
5.3 The word 'court' is often understood in its limited sense with reference to and in context of particular statute also. The word 'court' is defined under Section 3 of the Indian Evidence Act but merely because a body is empowered to take evidence, it may not readily make the body a 'court'. A body may be considered to be a court for the purpose of applying Section 14 of the Limitation Act. In P. Sarathy v SBI [(2000) 5 SCC 355], the Supreme Court examined the term 'court' in the context of Section 29(2) of the Limitation Act, 1963 and drew a distinction between a 'civil court' and a 'court'. It was observed that Section 14 of the Limitation Act does not speak of a 'civil court' but mentions only of a 'court'. It is Page 8 of 25 HC-NIC Page 8 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT not necessary that the court spoken of in Section 14 should be a 'civil court'. It was observed that any authority or tribunal having the trappings of a court would be a 'court' within the meaning of this section.
5.4 Also, for the purpose of application of Contempt of Courts Act, 1952, a body or person may be viewed as court to make them amenable to the jurisdiction under the Contempt of Courts Act. In Horli v Keshav [(2012) 5 SCC 525] which was a case under U.P. Jamindari Abolition and Land Reforms Act, 1950, it was held that though by virtue of Section 341 of the said Act, provision of the Code of Civil Procedure are made applicable to the proceedings under the Act, however the said aspect would not make the authorities specified under the Act as 'court' and those authorities shall continue to have their nomenclature as courts for limited and restricted jurisdiction. In Malay Kumar Ganguly v Dr.Sukumar Mukherjee [(2009) 9 SCC 221], the Supreme court held that the proceedings before the consumer fora, though are judicial in nature, yet they are not courts within the meaning of the Code of Civil Procedure, 1908.
5.5 In Bharat Bank Limited (supra) the Apex Court observed that there can be no doubt that industrial tribunal has all the trappings of the court and performs function which can be regarded as judicial, that is, deciding according to law the litigated questions in the disputes between the parties. The Supreme Court observed, defining the concept of court that "before a person or persons can Page 9 of 25 HC-NIC Page 9 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT be said to constitute a court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State".
5.6 In Jagadguru Anandanishwara Maha Swamiji v V.C. Allipur [(2009) 4 SCC 625] after considering various decisions, it was observed by the Supreme Court, "It is now a well-settled principle of law and having regard to the definition of the court contained in various statutes like the Code of Civil Procedure or the Evidence At, it would mean a tribunal, whose decision shall be final and/or would be entitled to take evidence in terms of the provisions of the Evidence Act. It is also well settled that although a tribunal may exercise some of its powers in terms of the Code of Civil Procedure or Code of Criminal Procedure and have all the trappings of a court but still would not be treated as a court." (Para 8)
6. With the aforesaid principles kept in view, now proceeding to analyse as to whether the Mamlatdar's Court and the authorities thereunder are courts. The Mamlatdars' Courts Act, 1906 was enacted to consolidate the law relating to the powers and procedures of the Mamlatdar and the Collector who are the authorities functioning under the Act, and who preside over the forum to deal with the matters and disputes referred to in Section 5 of the Act. Clause
(a) and clause (b) of Section 5(1) of the Act demarcate the areas and kinds of disputes which the Mamlatdar's Court may resolve between the parties by exercising powers under the Act. It will be useful and relevant to reproduce clauses (a) and (b) of sub- section (1) of Section 5 of the Act.
"(a) to remove or cause to be removed any impediment, erected otherwise than under due authority of law, Page 10 of 25 HC-NIC Page 10 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land used for such purpose or to any such grazing, trees or crops thereon;
(b) to give immediate possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or to restore the use of water from any well, tank, canal or water-
course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than by due course of law, or who has become entitled to the possession or restoration thereof by reason of the determination of any tenancy or other right of any other person, not being a person who has been a former owner or part-owner, within a period of twelve years before the institution of the suit of the property or use claimed, or who is the legal representative of such former owner or part- owner."
6.1 Thus, the Mamlatdar is given powers under the Act to address and redress the grievances in relation to the land used for agriculture. The agriculturists or farmers who face impediments or obstructions with regard to use and cultivation of their agricultural land have a recourse under the provisions of the Act for immediate relief. The aggrieved party is enabled to obtain a quick relief which is necessary having regard to the nature of rights to be claimed in the circumstances. Sub-section (2) empowers the Mamlatdar to pass injunctive orders. From a close reading of Section 5 above, it would be noticed that this forum is created essentially to redress the disputes which could be said to be of revenue nature. The rights which may be enforced under the Act could be classified as revenue-cum-agriculture related rights.
6.2 The Proviso below the abovementioned clauses Page 11 of 25 HC-NIC Page 11 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT to Section 5(1) may be noticed with significance. It says that "if in any case the Mamlatdar considers it inequitable or unduly harsh to remove or cause to be removed any such impediment or, to give possession of any such property or to restore any such use to a person who has become entitled thereto merely by reason of the determination of any such tenancy or other right, or if it appears to him that such case can be more suitably dealt with by a Civil Court, he may in his discretion refuse to exercise the power aforesaid, but shall record in writing his reasons for such refusal." The civil remedy before the civil court is thus kept available and under the aforesaid Proviso, the Mamlatdar has discretion to refuse to exercise the powers under the Act.
6.3 The orders passed by the authorities under the Mamlatdars' Courts Act are not final and either of the parties can seek relief from the civil court by instituting civil suit. The civil court is not bound by the orders and decisions of the authorities under the Mamlatdars' Courts Act and may upturn the same after trying the dispute between the parties. These aspects clearly show that the civil court is treated as a different and separate forum under the provisions of the Act themselves. From more than one provisions of the Act it can be specifically demonstrated that the forum of Mamlatdar's Court and the civil court are perceived to be distinct bodies. Giving a clear indication in this regard, for instance, Section 22 of the Act says that a party in whose favour Mamlatdar has passed an order of removal of impediment or for Page 12 of 25 HC-NIC Page 12 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT restoration of the possession or for having continued flow of surface water or has granted injunction, such person is able to enjoy the orders under the Mamlatdar's Court only until such order or decision is otherwise decreed or such person is ousted from the enjoyment by the competent civil court.
6.4 Viewed from the standpoint of the nature of rights dealt with by the authorities under the Act, the rights which are subject matter of exercise of powers by the Mamlatdar are in the realm of possessory rights related to agricultural activity or of a revenue kind. These rights can be said to be a transitory in nature, in asmuch as they could crystalised in a civil remedy finally before the civil court. The Mamlatdar's Court pronounces on the rights which stand as inchoate in their kind. They may not be called or treated as the full fledged 'civil rights'.
6.5 Under sub-section (4) of Section 4, Mamlatdar has powers to transfer and re-transfer suits to Joint Mamlatdar. Under sub-section (3), the State Government can delegate its powers under sub-section (1) to any officer not below the rank of Collector. Sub-section (1) of Section 4 says that the State Government may issue Notification to appoint in any Taluka a Joint Mamlatdar to be given under the Act coextensive powers and concurrent jurisdiction with the Mamlatdar except that he shall dispose of only such suits which he may receive from Mamlatdar. Again Section 6 empowers the Collector to transfer the suits from any Mamlatdar's Court in his district to any Page 13 of 25 HC-NIC Page 13 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT other Mamlatdar's Court. Section 23 deals with the revisional powers of the Collector against the Mamlatdar's proceedings. It provides in its sub- section (2A) that the Collector may delegate powers conferred on him to any Assistant Collector or Deputy Collector subordinate to him. Sub-section (3) of Section 23 thereafter says that the Collector, Assistant Collector or Deputy Collector who takes out any proceedings 'under this Act' shall be deemed to be a court 'under this Act'.
6.6 The abovementioned are the other and further strong traits which unmake Mamlatdar's Court so called, as 'court'. For, the provisions of transfer and re-transfer of suits from one Mamlatdar to another by the State Government, and by the Collector, not only indicate the executive hegemony, but they militate against the idea of independence which is conceived as basic for a forum to become a court. The provision quite incongruous with the concept of court is the power of delegation of functions which are contemplated more particularly under sub-section (2A) of Section 23 of the Act. The 'court' discharges a judicial function and the judicial power which a enjoys, cannot be delegated. The non-delegating nature of powers is an undilutable and essential feature. This principle about impermissibility of delegation of judicial function, came to be reiterated though in a different context of facts, amongst several other decisions by the Apex Court, also in recent decision in S. Krishna Sradha v State of Andhra Pradesh [(2017) 4 SCC 516].
Page 14 of 25HC-NIC Page 14 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT 6.7 In Engineering Mazdoor Sabha v Hind cycles Limited [AIR 1963 SC 874], the Apex Court pointed out the distinction between a court and a tribunal having trappings of the court to lay down that the expression 'court' is one constituted by the State as a part of ordinary hierarchy of Courts which are invested with the State's inherent judicial powers. It was laid down that a tribunal as distinguished from the court, exercises judicial powers and decides matters brought before it judicially or quasi-judicially, but it does not constitute a court in the technical sense. Again in A.C. Companies v P.N. Sharma [AIR 1965 SC 1595] the distinction between a court in the strict sense and the tribunal was pointed out in these words, "The expression 'Court' in the context denotes a tribunal constituted by the State as a part of the ordinary hierarchy of Courts which are invested with the State's inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary Courts which have been constituted under its relevant provisions. The Constitution recognised a hierarchy of Courts and to their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These Courts can be described as ordinary Courts of Civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these Courts exercise are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions." 6.8 Merely because the parties before the Mamlatdar under the Mamlatdars' Courts Act, 1906 are described as 'plaintiff' and 'defendant', forums under the Act do not become the court. It would also be Page 15 of 25 HC-NIC Page 15 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT naive to reason that since application lodged before the Mamlatdar is called plaint, the proceedings become judicial proceedings. Nor the aspect that the Mamlatdar under the Act examines the witnesses and takes evidence in that form or that he follows some of the procedures of the Civil Procedure Code, 1908, it does not make him a court in its technical sense of the term.
6.9 An adjudicatory body invested with certain traits and trappings of the court is not necessarily a 'court' in the core concept of the court. The forums which enjoy judicial nature of powers may be quasi judicial or judicial forum so called, but then, they can be said to have only the trappings of the court. They are Tribunals which may take evidence and decide the dispute or even the lis between the parties. Still however, such forums are not to be treated as courts. A forum with trappings of court may be called 'court' in restricted sense, for different purposes, and for the application of various statutes where injection of concept of judicial manner in functioning becomes necessary, however these forums are Tribunals. All Tribunals are not courts. A 'court' is forum exercising judicial power, functioning as the part of judicial set up of the State and it represents judicial wing of the State. A very important feature to be noticed is that the authorities/officers functioning under the Mamlatdars' Courts Act are appointed by the government. The powers to appoint is with the executive only. The High Court which is at heirarchial hegemony vis-a-vis all civil courts, has Page 16 of 25 HC-NIC Page 16 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT no role, neither a say in the appointment. Mamlatdar's Court cannot be considered as a court in its true and technical sense.
7. Section 115 of the Code delineates and determines the revisional jurisdiction of the High Court. The Section inter alia says that the High Court may call for record of any case decided by 'any courts subordinate to such High Court'. Clause (a) to (c) mentions the grounds on which the revisional powers may be exercised. As the Section reads, the revisional powers are exercisable in respect of any case decided by 'any court subordinate to such High Court' which is called upon to exercise the powers and jurisdiction. The phrase 'court subordinate' brings into picture Section 3 of the Code. Section 3 provides for subordination of courts to read 'for the purposes of this Code, the District Court is subordinate to the High Court and every court of a grade inferior to that of a District Court and every court of Small Causes is subordinate to High Court and the District Court'.
7.1 The subordination of courts created under Section 3 of the Code is determined by virtue of and on the basis of hierarchial order of the courts in judicial set up. What Section 3 of the Code mentions is the civil courts in their hierarchial order to bring out the set up of subordination. As the Section speaks, the District Court is subordinate to High Court; every civil court inferior to the District Court and every court of Small Causes is also a court subordinate to the High Court. There is no gainsaying Page 17 of 25 HC-NIC Page 17 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT that in the reverse pyramid of this subordination, the court which is a court 'subordinate to High Court' is a civil court in the judicial set up. It is a court inferior in grade to the District Court. A court subordinate to High Court has to be a court below the District Court in the hierarchial ladder.
7.2 The court as mentioned in Section 115 of the Code is indeed not a forum which could be described as court only for the consideration that the forum is attached with trappings of the court. The court mentioned in Section 115 of the Code is a civil court used with limited, that is, in specific contextual sense. The subordinate courts under these provisions and for the purpose of these provisions means the courts of civil judicature. They are the courts which are subject to the authority of the High Court in the judicial set up. The 'court' referred to in Section 3 and for that matter in Section 115 of the Code is a civil court in its strict sense. Unless the words 'subordinate court' in Section 115 are understood in the sense given to them in Section 3, the words 'for the purpose of this court' would be rendered redundant.
7.3 The Full Bench of the Madhya Pradesh High Court in Yeshwant Rao v Sampat [AIR 1979 MP 21], addressed the issue whether the Commissioner under the Workmen's Compensation Act was a court subordinate for the purpose of Section 115 of the Code. The provisions of the Workmen's Compensation Act, 1923 are akin to the provisions of the Mamlatdars' Courts Act when it Page 18 of 25 HC-NIC Page 18 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT comes to comparing them for the purpose of comprehending whether these forums are courts. The Commissioner has powers of civil court under the Code for the purpose of taking evidence on oath, of enforcing attendance of witnesses and compelling production of documents and material objects. The Commissioner is provided to be a civil court by deeming fiction for the purpose of Section 195 and of Chapter XXXV of the Criminal Procedure Code. In the scheme of provisions of the said Act, if workman has instituted suit in the civil court for damages, he has no right to claim compensation before the Commissioner. After considering the provisions of the Workmen's Compensation Act, Madhya Pradesh High Court held, "... ... the word "Court" as used in S.115 of the Code of Civil Procedure is used in a narrow sense, meaning only a Civil Court in the normal hierarchy of Courts. The word "Court" as it occurs in S.115 will not include tribunals which are established under special Acts and exercise special jurisdiction. The view taken by us is strongly supported by the decision in Sawatram Ramprasad Mills v. Vishnu Pandorang (AIR 1950 Nag 14) which is a Division Bench case decided by Hidayatullah, J. (as he then was) and R. Kaushalendra Rao, J. The same view was taken by a Full Bench of the Allahabad High Court in H.C.D. Mathur v. E.I. Rly. (AIR 1950 All 80 (FB)). In both these cases it was held that the authority invested with jurisdiction under the Payment of Wages Act, 1936, is not a Court subordinate to the High Court within the meaning of S.115 of the Code of Civil Procedure. Although these decisions do not deal with the position of the Commissioner under the Workmen's Compensation Act, yet the principles laid down in them are fully applicable here. The main question is whether the word "Court" in S.115 of the Code of Civil Procedure also includes tribunals, or whether it is restricted to Civil Courts subordinate to the High Court. So far as this broad question is concerned, the matter is fully dealt with in both these decisions, and we respectfully agree with the opinion expressed in them that the word "Court" in S.115 is restricted to Civil Courts and does not include tribunals."
Page 19 of 25HC-NIC Page 19 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT 7.4 A concurrence has to be extended to the aforesaid view expressed and the principle propounded by Full Bench of the Madhya Pradesh High Court in Yeshwant Rao (supra). The Yeshwant Rao (supra) also finds place in another Full Bench decision of the Bombay High Court in Gangwani and Co v Saraswati wd/o Maniram Banewar [2001 Law Suit (Bom) 325 : 2001 LabIC 2637], which stated as under, to be worthily noticed.
"Even otherwise, the word "court" used in section 115 of the Code of Civil Procedure has a restrictive meaning and referrable only to the Civil Court in the normal hierarchy of the courts and does not include in its ambit forums, which are constituted under the special Acts and exercising special jurisdiction. As stated hereinabove, by and large the essential features of the Court and special forums are quite similar in regard to exercising judicial powers of the State. Their decisions are binding in nature. The procedure is almost similar except in case of special forums, the same need not be strictly followed as in the case of courts. The approach also needs to be adopted by both is also more or less the same. The distinguishing feature between Court and Tribunal or special forum is that a Court is constituted by the State as a part of the normal hierarchy of courts of Civil Judicature maintained by the State under its Constitution exercising judicial powers of the State and perform all the judicial functions of the State except those, which are excluded by law from their jurisdiction, whereas Tribunal is constituted under the special Act to exercise special jurisdiction in order to decide controversy arising under certain special laws and, therefore, by its very composition and formation, is distinct and separate and cannot be treated as Court by necessary implication." (Para 19)
8. The decisions relied on in favour of the proposition that Mamlatdar's Court is a court and that the Revision Application under Section 115 of the Code is maintainable may now be referred to. First was the decision of this High Court in Dahyabhai Somabhai v Ramaji Kesraji [AIR 1971 Gujarat 332] which was banked upon to submit that it was held therein that the Mamlatdar's Court constituted under the Act was a Page 20 of 25 HC-NIC Page 20 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT civil court. An attentive and close examination of the facts of the said case showed that such observation was in an entirely different context of the facts and in the background of separate kind of controversy. The respondent had filed suit under Section 5 of the Mamlatdars' Courts Act praying for possession claiming specifically right to possession of the land on the ground that he was a tenant in the rents and was unlawfully dispossessed. This specific plea taken in the plaint before the Mamlatdar, was denied by the other side. The Court took into account Section 70 of the Bombay Tenancy and Agricultural Lands Act, 1948 under which the Mamlatdar is constituted to be exclusive forum for decision on the said issue and Section 85A of the Act enacts bar for any suit in the civil court in which such issue arises to decide. While considering nature of such controversy and holding that the Mamlatdar under the Mamlatdars' Courts Act could not have decided the issue and ought to have referred the same to the Tenancy Court, it was observed that for the purpose of Section 85 of the Tenancy Act, the Mamlatdar's Court could be regarded as a civil court. In the said case, a writ of certiorari was prayed for.
8.1 It could not be said that emanates from the decision in Dahyabhai Somabhai (supra), a ratio decidendi that Mamlatdar's Court and the authorities thereunder are the civil court in the hierarchy contemplated under Section 3 of the Code. Not only that the Dahyabhai Somabhai (supra) neither had the occasion, nor had the controversy before it to examine Page 21 of 25 HC-NIC Page 21 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT with jurisprudential inputs as to the real nature of the forums under the Mamlatdars' Courts Act, whether they could be considered as 'courts' properly so- called. Even otherwise, an observation adopted and applied to support a reasoning to decide a particular controversy having different setting of facts, does not become a ratio of the case. Taking such observations to be applied as precedent, irrespective of the background of the controversy, would only land the subsequent court, into a realm of error. It has to be held therefore that the observations in Dahyabhai Somabhai (supra) do not lay down the proposition having any precedential value so as to accept the dictum on that basis that the authorities under the Mamlatdars' Courts Act are the courts subordinate to the High Court in the hierarchy for the purpose of revisional jurisdiction of the High Court under Section 115 of the Code, and therefore to view a revision being competent against the orders of such authorities.
8.2 In Babaji Kondaji Mali (supra), the question before the Bombay High Court was whether Collector while exercising revisional jurisdiction functioning under Section 23(2) of the Mamlatdars' Courts Act could have reversed the finding of fact recorded by the Mamlatdar and set aside on that basis Mamlatdar's order. Answering in negative, the Bombay High Court was of the view that such order of the Collector fell within the terms of Section 115 of the Code of Civil Procedure. As the Collector had exercised the jurisdiction not vested in him, High Court could Page 22 of 25 HC-NIC Page 22 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT interfere in the order of such nature. In Purshottam Janardan Chaphekar (supra) and in Dalpat Zopdoo Patil (supra) the Bombay High Court ruled similar to hold that reversing finding of fact recorded by the Mamlatdar was outside the jurisdictional area of the Collector and High Court under Section 115 of the Code, could interfere. In neither of the aforesaid decisions, the Bombay High Court addressed the proper question whether the authorities functioning under the Mamlatdars' Courts Act could be termed as 'court' in its true sense for the purpose. Nor was helpful another decision of the Bombay High Court in Sanjay Dinkar Kulkarni (supra) relied on to suggest that Collector under the Mamlatdars' Courts Act was a court. In this decision, the Bombay High Court held that where the Collector is having more or less same powers as that of High Court under Section 115 of the Code, it did not mean that the High Court was deprived of powers of superintendence.
8.3 In view of the above reasons supplied, the view taken by this Court in Narendra Rajabhai Patel (supra), Patel Fuljibhai (supra) and Devchandbhai (supra) does not lay down the correct proposition of law. For the very reason, the Karnataka High Court in Narayan Naggappa Hegde (supra) misdirected itself to hold that Section 3 of the Code of Civil Procedure should be interpreted as comprehensive so as to include the authorities under the Mamlatdars' Courts Act within the sweep of 'subordinate court' for the purpose of Section 115 of the Code. Having respectfully disagreeing with the aforesaid decisions, Page 23 of 25 HC-NIC Page 23 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT it has to be ruled that all the said decisions are not good law.
9. While concluding the discussion, as regards the reference made to the decision in Anand Municipality v Union of India [AIR 1960 Gujarat 40 (F.B.)] as well as decision in State of Gujarat v Gordhandas Keshavji Gandhi [AIR 1962 Gujarat 128 (F.B.)] which were relied on to press the submission that the decisions of the Bombay High Court delivered prior to 1960 are binding to this Court, it is already noted and observed in the immediate fpregpomg [aras 8.2 and 8.3 hereinabove, that decision of the Bombay High Court in Babaji Kondaji Mali v Bala Fakira Mahar (supra), Dalpat Zopdoo Patil v Mahadu Uka (supra) and Purshottam Janardhan Chaphakar v Mahadu Pandu Turmalkar (supra) did not address, much less elaborately, whether the Mamlatdar's Court was court or not. When the said decisions of the Bombay High Court observed about the revisability of the orders under the Mamlatdars' Courts Act under Section 115 of the Code, the same cannot be said to be ratio of those decisions. For that reason, there cannot be a binding proposition in that regard stemming from those decisions and will not displace the authority of this Court in deciding the referred issue and the proposition of law thereon.
10. In light of the foregoing discussion and reasons, the reference is answered as follows.
"Civil Revision Application would not be maintainable before this Court under Section Page 24 of 25 HC-NIC Page 24 of 25 Created On Mon Aug 14 20:16:30 IST 2017 C/CRA/386/2015 CAV JUDGMENT 115 of the Code of Civil Procedure, 1908 against the orders passed by the Collector under Section 23(2) of the Mamlatdars' Courts Act, as the Collector functioning under the said Section or any of the authorities under the Mamlatdars' Courts Act cannot be construed as 'court' within the meaning and for the purposes of Section 115 of the Code and they are not 'the court subordinate to the High Court' under and for the purposes of the Code."
The Registry shall place the respective matters before the appropriate court for its decision in light of what is held hereinabove.
(ANANT S.DAVE, J.) (N.V.ANJARIA, J.) Anup Page 25 of 25 HC-NIC Page 25 of 25 Created On Mon Aug 14 20:16:30 IST 2017