Gauhati High Court
Khemani Engineering Corporation vs General Manager, N.F. Railway And Ors. on 5 December, 2005
Equivalent citations: (2006)2GLR709
JUDGMENT
1. This appeal arises out of an order passed in WP(C) 8899/2004 dated 10.9.2004 by which the learned Single Judge dismissed the writ petition filed by the appellants.
2. We have heard Mr. R. L. Yadav, learned Counsel for the petitioner and Mr. J. Singh, learned Senior Standing Counsel of the N.F. Railway for the respondents.
3. The case of the appellants, inter alia, is that the appellants took possession of an area of land measuring 1 B 2 Kha 18 L covered by Dag No. 392 (Old)/422 (New NK Patta No. 20) (Old)/1378 (New) of Mouza Garh Pandu, Ramsarani, Vill. Kamakhya, Maligaon in the district of Kamrup, Assam. From the original owner of the land on the basis of an unregistered deed of mortgage executed on 15.5.1964. The Railway authorities having issued notice under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the Act) alleging that the land in question belongs to Railway authorities and thereby public premises within the meaning of the aforesaid Act, passed orders of eviction of the petitioners from the said land.
4. Challenging the said order being violative of the principles of natural justice, the petitioners filed Misc. Appeal Nos. 4 and 5 of 1991 before the learned District Judge, Kamrup Guwahati under Section 9 of the Act. The learned Addl. District Judge allowing the appeals remanded the matter back for fresh disposal by giving reasonable opportunities of hearing to the appellant. Thereafter notices under Section 4 of the Act dated 22.02.1993 were served upon the petitioner in connection with eviction case Nos. EO/MLG/1/88 and EO/MLG/28/91. On receipt of the notice, the appellants appeared before the Estate Officer, N.F Railway, Maligaon and filed their necessary objections on 10.3.1993. h The Estate Officer after hearing the petitioners and considering the objection so raised by them, rejected the objection vide order dated 2.2.1999.
5. Against the aforesaid Order 2(two) appeals under Section 9 of the Act being Misc. Appeal Nos. 4 of 1999 and 5 of 1999 were filed before the learned District Judge, Kamrup. The appeals were passed by the learned Additional District Judge, Kamrup and after hearing the learned Counsel for the parties, vide judgment and order dated 10.9.2004, was pleased to dismiss the appeals filed by the appellants. The aforesaid order passed in these appeals by the learned Additional District Judge, Kamrup was again challenged in WP(C) 8899/2004 by filing an application under Article 226/227 of the Constitution of India.
6. The learned Single Judge having dismissed the writ petition vide order dated 7.12.2004, the present writ appeal has been filed by the appellants challenging the same. At the time of hearing of the appeal, a question arose regarding the maintainability of the writ petition filed by the petitioner and in fact, vide order dated 27.5.2005, the appeal was directed to be heard on the point of maintainability including the merit.
7. Mr. J. Singh, learned Standing Counsel for the NF Railway submits that the order passed by the learned Additional District Judge dismissing the Misc. Appeal No. 4 of 1999 and No. 5 of 1999 in exercise of the power conferred under Section 9 of the Act has attained it's finality in terms of Section 10 of the Act and as such, the writ petition filed by the petitioners is misconceived and is liable to be dismissed as not maintainable.
8. Mr. R.L. Yadav, learned Counsel appearing on behalf of the appellants on the other hand has submitted that although Section 10 of the Act puts a finality clause to the order passed by the appellate officer under the Act, the power of the High Court under Article 226 still be available for judicial review, the impugned order within the parameter of the Article 226 of the Constitution of India. On merit of the case, it is submitted that orders passed by the learned District Judge is illegal and arbitrary for not consideration of the relevant facts available on record, and it has caused injunction to the appellants.
9. We have considered the rival submissions made by the learned Counsel for the parties and also perused the impugned order passed by the learned Single Judge and other materials and documents available on record.
10. The scope and the power of judicial review of the High Court under Article 226/227 of the Constitution came to be considered by the Apex Court in various cases. In a Constitutional Bench case (L. Chandra Kumar v. Union of India and Ors.), the Apex Court, inter alia, held that the powers vested upon in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also a part of basic structure of the Constitution. Paras 69, 75, 78 and 79 having relevant to the issues are quoted hereinbelow:
69. In his minority judgment in Minerva Miss case, Bhagwati, J, held as follows : (SCC pp. 577-78, para 87) ...The Constitution has, therefore, created an independent machinery for revolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the Legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the Legislature within the limits of the powers conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 32 and 226 of the Constitution.... The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which, inter alia, requires that 'the exercise of powers by the government whether it be the Legislature, or the executive or any other authority, he conditioned by the Constitution and the law'. The power of judicial review is an integral part of our constitutional system...the power of judicial...is unquestionably...part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Paliament.
73. We may now analyse certain other authorities for the proposition that the jurisdiction conferred upon the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution respectively, is part of the basic structure of the Constitution. While expressing his views on the significance of draft Article 25, which corresponds to the present Article 32 of the Constitution, Dr. B.R. Ambedkar, the Chairman of the Drafting Committee of the Constituent Assembly stated as follows: (CAD. Vol. VII p. 953) If I was asked to name any particular Article in this Constitution as the most important - as Article without which this Constitution would be a nullity - I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance.
78. The legitimacy of the power of courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of the in decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the Legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter 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 Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution. High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.
11. Adverting to the issues relating to the maintainability of this petition for judicial review under Article 226 of the Constitution of India, it is the judicial authority to enforce the constitution against an unconstitutional acts is conventionally traced to the classic enunciation of the principle by CJ John Marshall's in Marburry v. Madison 5.U.S. (1.Cr) 137, 177 (1803) and its claim that written constitution is included within that law for which it is "the province and duty of the judicial department to see what the law is" (Ref. Judicial Review and the law of the Constitution- By Sylvia Snowiss).
In this appeal, we are only examining whether the powers exercised upon a writ court exercising the impugned order of the learned District Judge is within the framework of the related Act under which it was decided or not and not beyond that. This Writ Court is not sitting as a court of appeal to scrutinize the impugned judgment and order, nor the writ court will substitute it's own view on the proved facts of the case, but is only entitled to see that whether there has been any infraction of the statute in the decision making process carried out by the Tribunal and not beyond that. Accordingly, even if, a statute does not provide an appeal in respect of certain matters and the declaration that the order to be a final one, the remedy of approaching this High Court in exercise of the power of judicial review under Article 226 of the Constitution would not be barred. In a challenge made before the Apex Court assessing the constitutional right against an order under a statute not providing any right of appeal, the Apex Court in the case of Jamshed N. Guzdar v. State of Maharasthra and Ors. .
At para 86, it is held as follows :
86. Merely because an appeal is not provided in any statute, that by itself does not render a statute constitutionally invalid. It is well settled that the right of appeal is to be provided by a statute. In other words, right of appeal is statutory and not a constitutional right. This apart, if a statue does not provide an appeal in respect of certain matter, the party still will have remedy in approaching the High Court or this Court, as the case may be in exercise of power of judicial review including under Article 136 of the Constitution....
12. The said power of judicial review is a constitutional power, which is the basic structure of the Constitution. The Constitution is an Act of extraordinary legislation by which the people of India have established the structural mechanism of their Government in which they prescribed fundamental rules to regulate the motion of the several parts. On the other hand, a "Statute" is an Act of ordinary legislation, made by the appropriate organ of the Government, the provisions of which are to be executed by the concerned authority under the statute. The Constitution does not contain the practical rules of administration for distributive of justice, which the Judiciary alone has to do. The provisions of the Constitution are to be carried into effect by the relevant organs. Hence, by putting a finality clause in a statute of the nature with which, we are dealing with the present case, the constitutional a powers of judicial review cannot be taken away, by providing a finality clause as regards to certain class of orders.
13. The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 provide a machinery and procedure for eviction of unauthorised occupants from any "public premises" as defined under the Act. Section 15 of the Act puts as defined a bar upon exercising the jurisdiction by the Court to entertain any suit or proceeding in respect of the matter mentioned therein, particularly, the eviction of any person who is in unauthorized occupation of any public premises, or recovery of costs of removal of any building, structure or fixture or goods, cattle or other animal.
14. Section 4 of the Act authorizes the Estate Officer to issue a prescribed notice in writing calling upon the person concerned in occupation of a public premise to show cause as to why the order of eviction, should be made. Before making an order of eviction, the Estate Officer is duty bound under the law to hear and dispose of the objection, if any, filed by the person concerned in pursuance to notice under Section 4 and to consider the evidence produced by him.
15. Under Section 9, an appeal lies from every order of the Estate Officer made in respect of any public premises under Section 5 or Section 5B, or Section 5C or Section 7 to an appellate officer who shall be the very District Judge of the District in which public premises are situated.
16. Section 10 provides that every order made by an Estate Officer, or appellate officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other author in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
17. Thus, under the scheme of the Act, the "appellate officer" has a duty and obligation to decide the appeal in accordance with the principles of law and the appellant has a right to get the appeal disposed of in accordance with law. It is the legal obligation to dispose such statutory appeal by the appellate officer under certain norms and prescribed rules to be followed by such an authority. In spite of having put the finality, the clause under Section 10 of the Act, such obligations cast upon the appellate authority to decide the appeal in consonance with the law and on the basis of the principle of justice exists and any complaint relating non-performance of such duties and obligation by the appellate authority can be brought to the notice of the High Court in exercise of its power of judicial review under Article 226 of the Constitution and denying such right of judicial review would amount to violation of the Rule of Law. The finality clause as provided under a Section 10 of the Act, thus, means that the order of the appellate officer shall not be challenged under this Act in any original suit, application or execution proceeding and on a reasonable interpretation of this provision under the Scheme of the Act, it can safely be held that such finality clause would not exclude the exercise (sic) power for judicial review provided under Article 226 of the Constitution which is one of the basic structure of the Constitution.
18. Regarding the interpretations of the finality clause under Section 10 of the Act, we also gain support from the decisions reported in AIR 1983 MP 39, AIR 1961 Punjab 98, AIR 1966 MP 7 and 1999 AIHC (MP) 3470.
19. Thus, the preliminary objection assailing maintainability of the Writ Petition in view of the bar under Section 10 of the Act is over ruled.
20. Although such an application under judicial review of the impugned decision is held to be maintainable, it is not that in each and every case, a judicial review of such impugned decision of the authority would lie. It will vary from facts of the case to case.
21. Relating to the merit of the case, the learned Single Judge in the impugned order dated 7.12.2004 has considered all necessary relevant facts. The learned Single Judge has found that the petitioners do not have any definite case and their plea before the appellate authority was that they occupied the land on the basis of an unregistered deed of mortgage and on the other hand, their plea before the Estate Officer was that the land still to be vested upon the Railway and that was the Railways came in possession of the land on acquisition proceeding, a mere declaration will not vest the land with the Railways.
22. On consideration of the pleas raised by the petitioners, the learned Single Judge after taking note of the detailed discussions made by the Estate Officer on the materials available on record including the other revenue record and the order passed by the learned Additional District Judge, Kamrup, found that there was nothing to show that the petitioner get possession over the land in question or a recorded pattadar. It is also the findings on record that on the basis of certified copy of draft chitha of Dag No. 422, the land measuring 81 B 4 Kha 14 L on Maligaon under Jalukbari Mouza covered by disputed Dag No. 422 was acquired by the Government from the recorded Pattadars for the Railways and the land was converted in to a government land and the ownership of the land was also vested with the Railways. It is also on record that Assistant Settlement Officer, Guwahati reported that the land in question pertaining to the Railways and the records have been corrected way back in 1971. Taking all these factors into account, the learned Single Judge did not disturb the findings of facts as recorded by the authorities below and dismissed the Writ Petition.
23. The learned Counsel for the appellant has not been able to persuade us to show any perversity or illegality not to speak of the errors in the decision making process, while passing the impugned order.
24. For the reasons aforesaid, we do not find any merit in this appeal and accordingly, the same stands dismissed. The interim order dated 5.1.2005, which was extended from time to time, stands vacated.
25. No order as to costs.