# STATE OF GUJARAT AND ANR v. GU.JARAT REVENUE TRIBUNAL BAR ASSOCIATION AND ANR

- **Citation:** [2012] 10 S.C.R. 816
- **Court:** Supreme Court of India
- **Decided:** 2012-10-16
- **Case number:** Civil Appeal No. 7208 of 2012
- **Bench:** Dr. B.S. Chauhan, Fakkir Mohamed Ibrahim Kalifl:Lla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-and-anr-v-gu-jarat-revenue-tribunal-bar-association-and-anr-27947
- **Pages:** 31

## Headnote

C
Tribunal - Gujarat Revenue Tribunal - Appointment of
President - Held: Gujarat Revenue Tribunal is akin to a court
and performs similar functions - Consequently, consultation/
concurrence of tfie High Court required in appointment of the
President of the Gujarat Revenue Tribunal - The consultation
D must be conscious, effective, meaningful and purposeful and
not empty formality - Bombay Revenue Tribunal Act, 1957
- s.3(2) - Gujarat Revenue Tribunal Rules, 1982- r.3(1)(iii)(a)
- Constitution of India, 1950 - Article 234.
E
Tribunal - Creation of - Purpose - Tests to determine
whether a tribunal is a court or not - Discussed.
F
Words and Phrases - "court" and "tribunal" - Meaning of
-
Held: The terms 'court' and 'tribunal' are not interchangeable.
Words and Phrases - "judicial office" - Meaning of.
The State Government of Gujarat, in exercise of its
powers under the Bombay Revenue Tribunal Act, 1957
G and the Gujarat· Revenue Tribunal Rules, 1982 appointed
appellant no.2 as the President of the Gujarat Revenue
Tribunal. The respondents filed a writ petition challenging
the appointment on the ground that the office concerned,
being a "judicial office" could not be usurped by
H
816
STATE OF GUJARAT v. GUJARAT REVENUE
817
TRIBUNAL BAR ASSOCN.
appellant no.2, who had been an Administrative officer all
A
his life. The High Court allowed the writ petition and
struck down Rule 3(1 )(iii)(a) of the Gujarat Revenue
Tribunal Rules 1982, which conferred upon the State
Government the power to appoint the Secretary to the
Government of Gujarat, as the President of the Revenue
B
Tribunal constituted under the Bombay Revenue Tribunal
Act, 1957. The High Court held that the Revenue Tribunal
was in the strict sense, a "court" and the President, who
presided over such Tribunal could therefore, only be a
"Judicial Officer", a District Judge etc., for which c
concurrence of the High Court was necessary under
Article 234 of the Constitution. Hence the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1. Although, the term 'court' has not been
D
defined under the Bombay Revenue Tribunal Act, 1957,
it is indisputable that courts belong to the judicial
hierarchy and constitute the country's judiciary, as
distinct from the executive or legislative branches of the
State. Judicial functions involve the decision of rights and
liabilities of the parties. An enquiry and investigation into
facts is a material part of the judicial function. The
legislature, in its wisdom has created tribunals and
transferred the work which was regularly done by the civil
courts to them, as it was found necessary to do so in
order to provide efficacious remedy and also to reduce
the burden on the civil courts and further, also to save
the aggrieved person from bearing the burden of heavy
court fees etc. Thus, the system of tribunals was created
E
F
as a machinery for the speedy disposal of claims arising
G
under a particular Statute/Act. Most of the Tribunals have
been given the power to lay down their own procedure.
In some cases, the procedure may be adopted by the
Tribunal and the same may require the approval of the
competent authority/government. However, in each case,
H
818
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A the principles of natural justice are required to be
observed. Such tribunals therefore, basically perform
quasi-judicial functions. The system of tribunals is hence,
unlike that of the regularly constituted courts under the
hierarchy of the judicial system, which are not authorised
B to devise their own procedure for dealing with cases.
Under certain statutes, 'T'ribunals have been authorised
to exercise certain powers conferred under certain
provisions of the Code of Civil Procedure or the Code of
Criminal Procedure, but not under the whole Code, be it
C Civil or Criminal. However, hi a regular court, the said
Codes, in their entirety, civil as well as criminal, must be
strictly adhered to. Therefore, the terms 'court' and
'Tribunal' are not inter-ch

## Text

_Characters 0–39,989 of 60,303. This is a partial read: ask again with offset=39989 for what follows._

A
B
[2012] 10 S.C.R. 816
STATE OF GUJARAT AND ANR.
v.
GU.JARAT REVENUE TRIBUNAL BAR ASSOCIATION AND
ANR.
(Civil Appeal No. 7208 of 2012)
OCTOBER 16, 2012
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFL:LLA, JJ.]
C
Tribunal - Gujarat Revenue Tribunal - Appointment of
President - Held: Gujarat Revenue Tribunal is akin to a court
and performs similar functions - Consequently, consultation/
concurrence of tfie High Court required in appointment of the
President of the Gujarat Revenue Tribunal - The consultation
D must be conscious, effective, meaningful and purposeful and
not empty formality - Bombay Revenue Tribunal Act, 1957
- s.3(2) - Gujarat Revenue Tribunal Rules, 1982- r.3(1)(iii)(a)
- Constitution of India, 1950 - Article 234.
E
Tribunal - Creation of - Purpose - Tests to determine
whether a tribunal is a court or not - Discussed.
F
Words and Phrases - "court" and "tribunal" - Meaning of
-
Held: The terms 'court' and 'tribunal' are not interchangeable.
Words and Phrases - "judicial office" - Meaning of.
The State Government of Gujarat, in exercise of its
powers under the Bombay Revenue Tribunal Act, 1957
G and the Gujarat· Revenue Tribunal Rules, 1982 appointed
appellant no.2 as the President of the Gujarat Revenue
Tribunal. The respondents filed a writ petition challenging
the appointment on the ground that the office concerned,
being a "judicial office" could not be usurped by
H
816
STATE OF GUJARAT v. GUJARAT REVENUE
817
TRIBUNAL BAR ASSOCN.
appellant no.2, who had been an Administrative officer all
A
his life. The High Court allowed the writ petition and
struck down Rule 3(1 )(iii)(a) of the Gujarat Revenue
Tribunal Rules 1982, which conferred upon the State
Government the power to appoint the Secretary to the
Government of Gujarat, as the President of the Revenue
B
Tribunal constituted under the Bombay Revenue Tribunal
Act, 1957. The High Court held that the Revenue Tribunal
was in the strict sense, a "court" and the President, who
presided over such Tribunal could therefore, only be a
"Judicial Officer", a District Judge etc., for which c
concurrence of the High Court was necessary under
Article 234 of the Constitution. Hence the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1. Although, the term 'court' has not been
D
defined under the Bombay Revenue Tribunal Act, 1957,
it is indisputable that courts belong to the judicial
hierarchy and constitute the country's judiciary, as
distinct from the executive or legislative branches of the
State. Judicial functions involve the decision of rights and
liabilities of the parties. An enquiry and investigation into
facts is a material part of the judicial function. The
legislature, in its wisdom has created tribunals and
transferred the work which was regularly done by the civil
courts to them, as it was found necessary to do so in
order to provide efficacious remedy and also to reduce
the burden on the civil courts and further, also to save
the aggrieved person from bearing the burden of heavy
court fees etc. Thus, the system of tribunals was created
E
F
as a machinery for the speedy disposal of claims arising
G
under a particular Statute/Act. Most of the Tribunals have
been given the power to lay down their own procedure.
In some cases, the procedure may be adopted by the
Tribunal and the same may require the approval of the
competent authority/government. However, in each case,
H
818
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A the principles of natural justice are required to be
observed. Such tribunals therefore, basically perform
quasi-judicial functions. The system of tribunals is hence,
unlike that of the regularly constituted courts under the
hierarchy of the judicial system, which are not authorised
B to devise their own procedure for dealing with cases.
Under certain statutes, 'T'ribunals have been authorised
to exercise certain powers conferred under certain
provisions of the Code of Civil Procedure or the Code of
Criminal Procedure, but not under the whole Code, be it
C Civil or Criminal. However, hi a regular court, the said
Codes, in their entirety, civil as well as criminal, must be
strictly adhered to. Therefore, the terms 'court' and
'Tribunal' are not inter-changeable. [Para 9] [834-A-G]
1.2. A Tribunal may not necessarily be a court, inspite
D of the fact that it may be presided over by a judicial officer,
as other qualified persons may also possibly be
appointed to perform such duty. One of the tests to
determine whether a tribunal is a court or not, is to check
whether the High Court has revisional jurisdiction so far
E as the judgments and orders passed by the Tribunal are
concerned. Supervisory or revisional jurisdiction is
considered to be a power vesting in a superior court or
Tribunal, enabling it to satisfy itself as regards the
correctness of the orders of the inferior Tribunal. This is
F the basic difference between appellate and supervisory
jurisdiction. Appellate jurisdiction confers a right upon
the a~grieved person to make a complaint in the
prescribed manner, to a higher forum whereas,
supervisory/revisional power has a different object and
G purpose altogether as it confers the right and
responsibility upon the higher forum to keep the
subordinate Tribunals within the limits of the law. It is for
this reason that revisional power can be exercised by the
competent authority/court suo motu, in order to see that
H subordinate Tribunals do not transgress the rules of law
STATE OF GUJARAT v. GUJARAT REVENUE
819
TRIBUNAL BAR ASSOCN.
and are kept within the framework of powers conferred
A
upon them. Such revisional powers have to be exercised
sparingly, only as a discretion in order to prevent gross
injustice and the same cannot be claimed, as a matter of
rtght by any party. Even if the person heading the
Tribunal is otherwise a "judicial officer", .he, may merely
B
be persona designata, but not a ~ourt, despite the fact that
he is expected to act in a quasi-judicial manner. In the
generic sense, a court is also a Tribunal. However, courts
are only such Tribunals as have been created by the
concerned statute and belong to the judicial department c
of the State as opposed to the executive branch of the
said State. The expression 'court' is understood in the
context of its normally accepted connotation, as an
adjudicating body, which performs the judfcial functions
of rendering definitive judgments having a sense of 0
finality and authoritativeness to bind the parties litigating
before it. Secondly, it must be in the course of exercise
of the sovereign judicial__power transferred to it by the
State. Any Tribunal or acrthority therefore, that possesses
these attributes, may be categorized as a court. [Para 9]
[834-H; 835-A-H]
1.3. Tribunals have primarily been constituted to deal
with cases under special laws, and to hence provide for
specialised adjudication alongside the courts. Therefore,
E
a particular Act/set of .Rules will determine whether the
F
functions of a particular Tribunal are akin to those of the
courts, which provide for the basic administration of
justice. Where there is a Us between two' contesting
parties and a statutory authority is required to decide
such dispute between them, such an authority may be
G
called as a quasi-judicial authority, i.e., a situation where,
(a) a statutory authority is empowered under a statute to
do any act (b) the order of such auttiority would
adversely affect the subject and (c) although there is no
tis or two contending parties, and the contest is between
H
820
SUPREME COURT REPORTS
(2012] 10 S.C.R.
A the authority and the subject and (d) the statutory
authority is required to act judicially under the statute, the
decision of the said authority is a quasi judicial decision.
An authority may be described as a quasi-judicial
authority when it possesses certain attributes or
B trappings of a 'court', but not all. In case certain powers
under C.P.C. or Cr.P.C. have been conferred upon an
authority, but it has not been entrusted with the judicial
powers of the State, it cannot be held to be a court. [Para
1 O] [836-A-E]
c
The Bharat Bank Ltd., Delhi v. The Employees of Bharat
Bank & Anr. AIR 1950 SC 188: 1950 SCR 459; Virindar
Kumar Satyawadi v. The State of Punjab, AIR 1956 SC 153:
1955 SCR 1013; Engineering Mazdoor Sabha & Anr. v. Hind
Cycles Ltd. AIR 1963 SC 874: 1963 Suppl. SCR 625;
D Associated Cement Companies Ltd. v. P.N. Sharma & Anr.
AIR 1965 SC 1595: 1965 SCR 366; Ramrao & Anr. v.
Narayan & Anr. AIR 1969 SC 724: 1969 (3) SCR 185; State
of Himachal Pradesh & Ors. v. Raja Mahendra Pal & Anr. AIR
1999 SC 1786: 1999 (2) SCR 323; Keshab Narayan
E Banerjee v. State of Bihar & Ors. AIR 2000 SC 485: 1999 (5)
Suppl. SCR 394; Indian National Congress (/) v. Institute of
Social Welfare & Ors. AIR 2002 SC 2158: 2002 (3) SCR
1040; K. Shamrao & Ors. v. Assistant Charity Commissioner
(2003) 3 SCC 563: 2003 (2) SCR 523; Trans Mediterranean
F Airways v. Universal Exports (2011) 10 SCC 316: 2011 (14)
SCR 47; Namit Sharma v. Union of India JT 2012 (9) SC 166
and Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjunwala
& Ors. AIR 1961 SC 1669: 1962 SCR 339 - relied on.
G
Shell Co. of Australia v. Federal Commissioner of
Taxation (1931) A.C. 275 - referred to.
H
2.1. The present case is also required to be examined
in the context of Article 227 of the Constitution of India,
with specific reference to the 42nd Constitutional
STATE OF GUJARAT v. GUJARAT REVENUE
821
TRIBUNAL BAR ASSOCN.
Amendment Act 1976, where the expression 'court' stood
A
by itself, and not in juxtaposition with the other
expression used therein, namely, 'Tribunal'. The power of
the High Court of judicial superintendence over the
Tribunals, under the amended Article 227 stood
obliterated. By way of the amendment in the sub-article,
B
the words, "and Tribunals" stood deleted, and the words
"subject to its appellate jurisdiction" have been
substituted, after the words, "all courts". In other words,
this amendment purports to take away the High Court's
power of superintendence over Tribunals. Moreover, the c
High Court's power has been restricted to have judicial
superintendence only over the judgments of inferior
courts, i.e. judgments in cases where against the same,
appeal or revision lies with the High Court. A question
does arise as regards whether the expression 'courts' as
0
it appears in the amended Article 227, is confined only to
the regular civil or criminal courts that have been
constituted under the hierarchy of courts and whether all
Tribunals have in fact been excluded from the purview of
the High Court's superintendence. Undoubtedly, all
courts are Tribunals but all Tribunals are not courts. [Para
12) [838-C-G]
E
2.2.
The
High
Court's
power of judicial
superintendence, even under the amended provisions of
Article 227 is applicable, provided that two conditions are
F
fulfilled; firstly, that such Tribunal, body or authority must
perform judicial functions of rendering definitive
judgments having finality, which bind the parties in
respect of their rights, in the exercise of the sovereign
judicial power transferred to it by the State, and secondly,
G
that such Tribunal, body or authority must be subject to
the High Court's appellate or revisional jurisdiction. [Para
13) [838-H; 839-A-B]
3. A person holds 'judicial office' if he is performing
H
822
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A judicial functions. The scheme of Chapters V and VI of
the Constitution deal with judicial office and judicial
service. The expression, 'judicial office' in the generic
sense, may include a wide variety of offices which are
connected with the administration of justice in one way
8 or another. The holder of a judicial office under Article
217(2)(a), means a person who exercises only judicial
functions, determines cases inter-se parties, and renders
decisions in purely judicial capacity. 'Judicial office'
means a subsisting office with a substantive position,
C which has an existence independence from its holder.
[Paras 18, 19] [840-E-F; 841-A-C]
Statesman (Private) Ltd. v. H.R. Deb & Ors. AIR 1968 SC
1495: 1968 SCR 614 - followed.
D
Shri Kumar Padma Prasad v. Union of India & Ors.
(1992) 2 sec 428: 1992 (2) SCR 109 - relied on.
S.P. Sampath Kumar v. Union of India AIR 1987 SC
346; L. Chandra Kumar v. Union of India & Ors. AIR 1997
E SC 1125: 1997 (2) SCR 1186; V.K. Majotra & Ors. v. Union
of India & Ors. AIR 2003 SC 3909: 2003 (3) Suppl. SCR 483
- referred to.
4.1. Upon an examination of the functions and
powers of the Gujarat Revenue Tribunal, it is crystal clear
F that the Tribunal does not deal only with revenue matters
as provided under the Schedule I of the Bombay
Revenue Tribunal Act, 1957, but has also been conferred
appellate/revisional powers under various other statutes.
Most of those statutes provide that the Gujarat Revenue
G Tribunal, while dealing with appeals, references,
revisions, would act giving strict adherence to the
procedure prescribed in the CPC, for deciding a matter
as followed by the Civil Court and certain powers have
also been conferred upon it, as provided in the Cr.P.C.
H
STATE OF GUJARAT v. GUJARAT REVENUE
823
TRIBUNAL BAR ASSOCN.
and IPC. The Gujarat Revenue Tribunal has been
A
conferred the power to adjudicate disputes, which may
arise from the provisions of the Bombay Tenancy and
Agricultural Lands Act, 1948. Section 75(1) of the said Act
provides that an appeal against the award of the Collector,
made under Section 66 may be filed before the Tribunal.
B
Sub-section (2) of Section 75 provides, that in deciding
appeals preferred under sub-section (1), the Tribunal shall
exercise all the powers which a court has and subject to
the regulations framed by the Tribunal under the Act 1957,
follow the same procedure which a court follows, in c
deciding appeals from the decree or order of an original
court under the CPC. Section ?80 of the Act provides that
all inquiries and proceedings before the Tribunal shall be
deemed to be judicial proceedings within the meaning of
Sections 193, 219 and 228 of the IPC. The Gujarat 0
Agricultural Lands Ceiling Act, 1960, was enacted to fix
a ceiling on holdings of agricultural lands, and to provide
for the acquisition and disposal of surplus agricultural
lands. Chapter VI of the said Act deals with procedure,
appeals and revision. Section 36 provides that any
E
person aggrieved by an award made by the Tribunal
under Section 24, or by the Collector under Section 28,
may appeal to the Tribunal. Sub-section (3) of S~ction 36
provides that in deciding such appeal the Tribunal shall
exercise all the powers which a Court has, and must
follow the same procedure which the Court follows in
F
deciding appeals from the decree or order of the original
court under the CPC. Section 48 provides that all inquiries
and proceedings before the Tribunal shall be deemed to
be 'judicial proceedings', within the meaning of Sections
193, 219 and 228 of the IPC. The Bombay Public Trust Act,
G
1950, has been enacted to regulate, and to make better
provision for the administration of public religious and
charitable trusts in the State of Bombay, which also
extends to the State of Gujarat. Section 74 of the Act
H
824
SUPREME COURT ~EPORTS
[2012] 10 S.C.R.
A provides that all inquiries and appeals shall be deemed
to be judicial proceedings within the meaning of Sections
193, 219 and 228 of the IPC. Section 76 provides that,
save, in so far as they may be inconsistent with anything
contained in the Act, the provisions of the CPC will apply
B to all proceedings before the court under this Act. Section
13(1) of the Act, 1957, provides that in exercising the
jurisdiction conferred upon the Tribunal, the Tribunal
shall have all the powers of a civil court as enumerated
therein and shall be deemed to be a civil court for the
c purposes of Sections 195, 480 and 482 of the Cr.P.C., and
that its proceedings shall be deemed to be judicial
proceedings, within the meaning of Sections 193, 219 and
228 of the IPC. Thus, the Gujarat Revenue Tribunal is akin
to a court and performs similar functions. [Paras 23, 24,
D 25, 26 and 27] [843-8-H; 844-A-E; 845-A-G]
4.2. The High Court has supervisory control over the
Gujarat Revenue Tribunal, to the extent that it can revise
and correct the judgments and orders passed by it. In
such a fact-situation, the consultation/concurrence of the
E High Court, in the matter of making the appointment of
the President of the Gujarat Revenue Tribunal is required.
[Para 27]- [846-A-B]
4.3. The object of consultation is to render the
F consultation meaningful to serve the intended purpose.
It requires the meeting of minds between the parties
involved in the process of consultation on the basis of
material facts and points, to evolve a correct or at least
satisfactory solution. If a power can be exercised only
G after consultation, such consultation must be conscious,
effective, meaningful and purposeful. It means that the
party must disclose all the facts to other party for due
deliberation. The consultee must express his opinion
afte.r full consideration of the matter upon the relevant
facts and quintessence. Evidently the procedure to be
H
STATE OF GUJARAT v. GUJARAT REVENUE
825
TRIBUNAL BAR ASSOCN.
observed under Article 234 of the Constitution goes to the
A
extent of the true meaning of consultative process and
not an empty formality. [Paras 28, 29) (846-C-D; G]
UO/ v. Sankalchand Himatla/ Sheth AIR 1977 SC 2328:
1978 (1) SCR 423; Subhash Sharma & Ors. v. UOI AIR 1991
B
SC 631: 1990 (2) Suppl. SCR 433; Justice K.P Mohapatra
v. Sri Ram Chandra Nayak and Ors. (2002) 8 SCC 1: 2002
(3) Suppl. SCR 166; Gauhati High Court & Anr. v. Ku/adhar
Phukan & Anr. AIR 2002 SC 1589: 2002 (2) SCR 808; High
Court of Judicature for Rajasthan v. P.P Singh AIR 2003 SC c
1029: 2003 (1) SCR 593; UOI v. Kali Dass Batish, AIR 2006
SC 789 and Andhra Bank v. Andhra Bank Officers AIR 2008
SC 2936: 2008 (7) SCC 203 - relied on.
Case Law Reference:
1950 SCR 459
relied on
Para 10
D
1955 SCR 1013
relied on
Para 10
1963 Suppl. SCR 625
relied on
Para 10
1965 SCR 366
relied on
Para 10
E
1969 (3) SCR 185
relied on
Para 10
1999 (2) SCR 323
relied on
Para 10
1999 (5) Suppl. SCR 394 relied on
Para 10
F
2002 (3) SCR 1040
relied on
Para 10
2003 (2) SCR 523
relied on
Para 10
2011 (14) SCR 47
relied on
Para 10
G
JT 2012 (9) SC 166
relied on
Para 10
1962 SCR 339
relied on
Para 11
(1931) A.C. 275
referred to
Para 13
H
826
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
AIR 1987 SC 346
referred to
Para 14
f"ln".,
1997 (2) SCR 11.86
referred to
Para 15
2003 (3) Suppl. SCR 483 referred to
Para 16
B
1968 SCR 614
followed
Paras 1718
1992 (2) SCR 109
relied on
Para 19
· 1978 (1) SCR 423
relied on
Para 28
c
1990 (2) Suppl. SCR 433 relied on
Para 28
2002 (3) Suppl. SCR 16E> relied on
Para 28
2002 (2) SCR 808
relied on
Para 28
D
2003 (1) SCR 593
relied on
Para 28
AIR 2006 SC 789
relied on
Para 28
2ooa (7) sec 203
relied on
Para 28
-
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7208 of 2012.
From the Judgment and Order dated 14.09.2009 of the
High Court of Gujarat at Ahmedabad in Special Civil
Application No. 8209 of 1988.
F
Preetesh Kapur, Hemantika Wahi, S. Panda for the
Appellants.
Yashank Adhyaru, Laxmi Abhichandani, Vimal Chandra S.
Dave for the Respondents.
:.
G
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the impugned judgment and order dated 14.9.2009,
H passed by the High Court of Gujarat at Ahmedabad in Special
STATE OF GUJARAT v. GUJARAT REVENUE
827
TRIBUNAL BAR ASSOCN. [DR. B.S. CHAUHAN, J.]
Civil Application No.8209 of 1988, by way of which the High
A
Court has allowed the writ petition filed by the respondents
striking down Rule 3(1)(iii)(a) of the Gujarat Revenue Tribunal
Rules 1982 (hereinafter referred to as 'Rules 1982'), which
conferred power upon the State Government to appoint the
Secretary to the Government of Gujarat, as President of the
B
Revenue Tribunal (hereinafter referred to as 'Tribunal')
constituted under the Bombay Revenue Tribunal Act, 1957
(hereinafter referred to as the 'Act, 1957').
2. The facts and circumstances giving rise to this appeal
C
are mentioned hereunder:
A The Government of Gujarat, in exercise of its power
under the Act of 1957 and the Rules, 1982 appointed appellant
no.2 as the President of the Gujarat Revenue Tribunal vide order
dated 16.4.1988. His appointment was challenged by the
D
respondents herein, on the ground that the office of the
Chairman, being a "judicial office" could not be usurped by a
person who had been an Administrative Officer all his life. The
validity of Sections 4 and 20 of the Act 1957 and Rule
3(1 )(iii)(a) of the Rules 1982 was challenged. The appellants
E
contested the writ petition, submitting that in exercise of the
power conferred under Section 20 of the Act 1957 and the
Rules 1982, a notification was issued on 8.2.1983, making the
Secretary to the Government eligible for appointment as
Chairman of the Revenue Tribunal, and as he had acted as a
F
Revenue Officer while holding the posts of Sub Divisional
Officer, District Collector, and Divisional Commissioner, it could
not be held that he was ineligible to hold the said post of
President of the Tribunal.
B. During the pendency of the aforementioned writ petition
G
before the High Court, the Government of Gujarat made the
appointment of Shri A.O. Desai, a retired I.AS. Officer on
27.2.2007 to the post of President of the Tribunal, however, the
operation of his appointment order was stayed by the High
Court. This Court, while entertaining Special Leave Petition (C)
H
828
SUPREME COURT REPORTS
(2012] 10 S.C.R.
A No.4924 of 2007, vide order dated 26.3.2007, stayed the
operation of the order of the High Court. The said S.L.P. was
finally disposed of vide order dated 16.4.2008 observing that,
the petition had been filed only against the interim order passed
by the High Court. However, the said interim order dated
B 26.3.2007 passed by this Court, by which it stayed the order
of the High Court, as mentioned earlier, would continue till the
disposal of the Special Civil Application No.8209 of 1988 by
the Gujarat High Court. Subsequently, State of Gujarat vide
order dated 29.7.2009, appointed Mr. A.J. Shukla as the
c President of the Tribunal.
C. The High Court then, vide impugned judgment and
order dated 14.9.2009 held that the Tribunal was in the strict
sense, a "court" and that the President, who presides over such
Tribunal could therefore, only be a "Judicial Officer", a District
D Judge etc., for which, concurrence of the High Court is
recessary under Article 234 of the Constitution of India. Hence,
the present appeal.
3. Shri Preetesh Kapur, learned counsel appearing on
E behalf of the appellants, submitted that the High Court
committed an error by striking down the aforesaid rule, holding
that the Secretary to the Government of Gujarat cannot be
appointed as President of the Tribunal. It erred in holding that
the Tribunal was a court and only a "Judicial Officer", i.e., a
F Judicial Officer holding such equivalent post as is referred to
in Rule 3(iii) of the Rules 1982 can be appointed as President
of the said Tribunal. The Secretary to the Government had
already worked as a Revenue Officer for a prolonged period
of time and, hence, has acquired the requisite experience to
G deal with all types of revenue matters, in spite of the fact that
the Tribunal has the trappings of a court, he is eligible for the
said post in terms of qualifications. An Administrative Officer,
who is a member of the Tribunal under Rule 3(1)(iii)(g) can still
be appointed as the President of the Tribunal as the validity of
H clause (g) was not under challenge. But on that count there will
STATE OF GUJARAT v. GUJARAT REVENUE
829
TRIBUNAL BAR ASSOCN. [DR. B.S. CHAUHAN, J.]
be no illegality. The Tribunal cannot be held to be a 'court' within
A
the meaning of the Constitutional provisions. The Act 1957 and
Rules 1982, do not even suggest consultation with the High
Court, while appointing the President of the Tribunal. Thereft>re,
the appeal deserves to be allowed.
4. On the contrary, Shri Yashank Pravin Adhyaru, learned
Senior counsel appearing on behalf of the respondents has
vehemently opposed the appeal contending that, no error can
B
be found with the impugned judgment and order of the High
Court. This is because the earlier Acts, which stood repealed
by the Act of 1957, did not contain any provision enabling the
C
State Government to appoint an Administrative Officer as the
President of the Tribunal. Under the old Act, the person who is
eligible to hold such post was a retired Judge of the High Court.
Moreover, Rule 3(iii) of the Rules 1982 enables the State
Government to appoint a Judicial Officer, a District Judge, the
D
President of the Court of Small Causes, Bombay and the
Principal Judge of the City Civil Court to the aforementioned
post. In case they are still in service, the question of their
appointment as President of the Revenue Tribunal, would never
arise, without the effective consultation/concurrence of the High
Court. The provisions of Articles 233 to 236 of the Constitution
E
of India are attracted. In fact, this is the ratio of the impugned
judgment. In the facts and circumstances of the case, no
interference is warranted. The appeal lacks merit and is liable
to be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
F
6. The High Court itself has taken note of the previous
statutory provisions, observing that the Bombay Revenue
G
Tribunal Act, 1939 (hereinafter referred to the 'Act 1939'), did
not provide for the post of President as such, and that this
power was conferred upon the rule making authority. Rule 4(1)
of the Bombay Revenue Tribunal Rules 1939, (hereinafter
H
830
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A referred to 'Rules 1939') prescribed the qualifications for the
post of President, as a person who has officiated as a Judge
of the High Court, or has served as such, or has exercised the
powers of, a District Judge, or the Chief Judge of the Court of
Small Causes, Bombay, for a period of not less than 10 years
s and has retired from service of the Crown in India.
7. In the year 1941, Rule 4(1) of the Rules 1939 was
amended vide Notifications dated 5.12.1940 and 22.9.1941.
As per the amended Rules, the President could be a person
C who had either officiated as a Judge of the High Court, or had
served as, or exercised the powers of a District Judge, or of
the Chief Judge of the Court of Small Causes, Bombay, for a
period of not less than 10 years, and had retired from the service
of the Government of India or the Government of any State. In
1957, Rule 4(1) was substituted, enabling the rule making
D authority, inter-alia, to appoint the Secretary to the Government
of Bombay, Legal Department and the Legal Remembrancer
of Legal Affairs as President of the Tribunal. Later, the Act of
1939 was substituted by the Act, 1957.
E Relevant Statutory Provisions :
8. Section 3(2) of the Act 1957, provides for the
appointment of the President and Members of the Tribunal.
Section 9 thereof, provides for the jurisdiction of the Tribunal
F to entertain and decide appeals from, and revise decisions and
orders in respect of cases arising under the provisions of the
enac.iments specified in the First Schedule. Schedule 1 includes
the Bombay Land Revenue Code, 1879, the Bombay Land
Revenue Code, 1874 as extended to the Kutch area of State
of Bombay, the Indian Forest Act, 1927 etc.
G
H
Section 9(4) of the Act reads as under:
"Notwithstanding anything contained in any other law for the
time being in force, when the Tribunal has jurisdiction to
entertain and decide appeals from and revise decisions
STATE OF GUJARAT v. GUJARAT REVENUE
831.
TRIBUNAL BAR ASSOCN. [DR. B.S. CHAUHAN, J.]
and orders of, any person, officer or authority to any matter
A
aforesaid, no other person, officer or authority shall have
jurisdiction to entertain and decide appeals from and
revise decisions or orders of such person, officer or
authority in that matter."
Section 13(1) of the Act reads as under:
B
"In exercising the jurisdiction conferred upon it by or under
this Act, the Tribunal shall have all the powers of a Civil
Court for the purpose of taking evidence on oath,
affirmation or affidavit, of summoning and enforcing the
C
attendance of witnesses, of compelling discovery and the
production of documents and material objects,
requisitioning any public record or any copy thereof from
::1ny Court or office, issuing commissions for the
examination of witnesses or documents, and for such other
D
purposes as may be prescribed and the Tribunal shall be
deemed to be a Civil Court for all the purposes of sections
195, 480 and 482 of the Code of Criminal Procedure,
1898, and its proceedings shall be deemed to be judicial
proceedings within the meaning of sections 193, 219 and
E
229 of the Indian Penal Code."
Section 15 empowers the Tribunal to entertain question of
interpretation regarding laws of public importance which can
only be decided after hearing the State Government on the
matter. Section 16 provides that no appeal shall lie to the State
Government against the order passed by the Tribunal. Section
F
17 of the Act confers upon the Tribunal the power to review its
own decision, on grounds similar to the ones mentioned in
Order 47 Rule 1 CPC. Such review application may be filed
before it within a period of 90 days from the date of the said
G
decision of the Tribunal. The Tribunal has further been given the
power to condone delay in making applications for review.
Section 20 reads as under:
H
A
B
c
D
E
832
SUPREME COURT REPORTS
[2012] 10 S.C.R.
"20(1) The State Government may, by notification in the
Official Gazette, make rules consistent with the provisions
of this Act for carrying into effect the purposes of this Act.
(2) In particular and without prejudice to the generality of
the foregoing provision, such rules may provide for the
following matters, namely:-
(a) the qualifications of the President and other
members of the Tribunal;
(b) the period of office and the terms and conditions of
service of the President and other members of the
Tribunal;
(c) the qualifications of the Registrar and Deputy
Registrars;
(d) any other powers of a Civil Court which may be vested
in the Tribunal."
(Emphasis added)
Rule 3 of the Rules 1982 reads as under :
"3. Qualification of President and members of
TribunalF
(1) The President shall be a person who has not attained
the age of 65 years, and
(i) Who is or has been a judge of a High Court, or
(ii)Who is an advocate qualified to be a judge of a High
G
Court, or
(iii) Who has, for a period of not less than three years, held
the office, or as the case may be, exercised the powers
ofH
(a) The Secretary to the Government of Gujarat;
STATE OF GUJARAT v. GUJARAT REVENUE
833
TRIBUNAL BAR ASSOCN. [DR. B.S. CHAUHAN, J.]
(b) The Principal Judge of the City Civil Court,
A
Ahmedabad;
(c) A District Judge;
(d) The Chief Judge, Small Cause Court, Ahmedabad;
(e) A member of the Industrial Court constituted under the
Bombay Industrial Relations Act, 1946;
(f) A member of the Industrial Tribunal constituted under the
Industrial Disputes Act, 1957; or
(g) A member of the Gujarat Revenue Tribunal constituted
under the Bombay Revenue Tribunal Act, 1957."
(Emphasis added)
B
c
(2) A member shall be a person who has not attained the age
D
of 65 years and-
(a) Who is holding or has held an office not lower in rank
than that of -
(i) A Collector;
(ii) A Deputy Secretary to the Government of Gujarat;
(iii) A District Judge;
E
(iv) An Assistant Judge, or a Civil Judge (Senior Division)
F
appointed under the Bombay Civil Courts Act, 1869, or a
Civil Judge holding an equivalent office under any other law
for the time being in force; or
(b) Who is an advocate or attorney of the High Court, or a
G
legal practitioner entitled to practice before courts other
than the High Court under any law relating to legal
practitioners for the time being in force in this State, has
practiced for not less than five years in any Civil Courts or
H
834
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A
before the Tribunal, and is, in the opinion of the State
Government, well versed in revenue and tenancy laws.•
9. Although, term 'court' has not been defined under the
Act, it is indisputable that courts belong to the judicial hierarchy
8 and constitute the country's judiciary as distinct from the
executive or legislative branches of the State. Judicial functions
involve the decision of rights and liabilities of the parties. An
enquiry and investigation into facts is a material part of judicial
function. The legislature, in its wisdom has created tribunals and
transferred the work which was regularly done by the civil courts
C to them, as it was found necessary to do so in order to provide
efficacious remedy and also to reduce the burden on the civil
courts and further, also to save the aggrieved person from
bearing the burden of heavy court fees etc. Thus, the system
of tribunals was created as a machinery for the speedy
D disposal of claims arising under a particular Statute/Act. Most
of the Tribunals have been given the power to lay down their
own procedure. In some cases, the procedure may be adopted
by the Tribunal and the same may require the approval of the
competent authority/government. However, in each case, the
E principles of natural justice are required to be observed. Such
tribunals therefore, basically perform quasi-judicial functions.
The system of tribunals is hence, unlike that of the regularly
constituted courts under the hierarchy of judicial system, which
are not authorised to devise their own procedure for dealing
F with cases. Under certain statutes Tribunals have been
authorised to exercise certain powers conferred under some
provisions of the Code of Civil Procedure (hereinafter referred
to as the 'CPC') or the Code of Criminal Procedure (hereinafter
referred to as the 'Cr.P.C.'), but not under the whole Code, be
G it Civil or Criminal. However, in a regular court, the said Codes,
in their entirety, civil as well as criminal, must be strictly adhered
to. Therefore, from the above, it is evident that the terms 'court'
and 'Tribunal' are not inter-changeable.
H
A Tribunal may not necessarily be a court, in spite of the
STATE OF GUJARAT v. GUJARAT REVENUE
835
TRIBUNAL BAR ASSOCN. [DR. B.S. CHAUHAN, J.]
fact that it may be presided over by a judicial officer, as other
A
qualified persons may also possibly be appointed to perform
such duty. One of the tests to determine whether a tribunal is a
court or not, is to check whether the High Court has revisional
jurisdiction so far as the judgments and orders passed by the
Tribunal are concerned. Supervisory or revisional jurisdiction is
B
considered to be a power vesting in any superior court or
Tribunal, enabling it to satisfy itself as regards the correctness
of the orders of the inferior Tribunal. This is the basic difference
between appellate and supervisory jurisdiction. Appellate
jurisdiction confers a right upon the aggrieved person to c
complain in the prescribed manner, to a higher forum whereas,
supervisory/revisional power has a different object and purpose
altogether as it confers the right and responsibility upon the
higher forum to keep the subordinate Tribunals within the limits
of the !aw. It is for this reason that revisional power can be / 0
exercised by the competent authority/court suo motu, in order
to see that subordinate Tribunals do not transgress the rules
of law and are kept within the framework of powers conferred
upon them. Such revisional powers have to be exercised
sparingly, only as a discretion in order to prevent gross injustice
E
and the same cannot be claimed, as a matter of right by any
party. Even if the person heading the Tribunal is otherwise a
"judicial officer", he may merely be persona designata, but not
a court, despite the fact that he is expected to act in a quasijudicial manner. In the generic sense, a court is also a Tribunal,
however, courts are only such Tribunals as have been created
F
by the concerned statute and belong to the judicial department
of the State as opposed to the executive branch of the said
State. The expression 'court' is understood in the context of its
normally accepted connotation, as an adjudicating body, which
performs judicial functions of rendering definitive judgments
G
having a sense of finality and authoritativeness to bind the
parties litigating before it. Secondly, it should be in the course
of exercise of the sovereign judicial power transferred to it by
the State. Any Tribunal or authority therefore, that possesses
these attributes, may be categorized as a court.
H
836
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
10. Tribunals have primarily been constituted to deal with
cases under special laws and to hence provide for specialised
adjudication alongside the courts. Therefore, a particular AcU
set of Rules will determine whether the functions of a particular
Tribunal are akin to those of the courts, which provide for the
B basic administration of justice. Where there is a lis between
two contesting parties and a statutory authority is required to
decide such dispute between them, such an authority may be
called as a quasi-judicial authority, i.e., a situation where, (a) a
statutory authority is empowered under a statute to do any act
c (b) the order of such authority would adversely affect the subject
and (c) although there is no lis or two contending parties, and
the contest is between the authority and the subject and (d) the
statutory authority is required to act judicially under the statute,
the deeision of the said authority is a quasi judicial decision.
0 An authority may be described as a quasi-judicial authority
when it possesses certain attributes or trappings of a 'court',
but not all. In case certain powers under C.P.C. or Cr.P.C. have
been conferred upon an authority, but it has not been entrusted
with the judicial powers of the State, it cannot be held to be a
court.
E
(See : The Bharat Bank Ltd., Delhi v. The Employees of
Bharat Bank & Anr., AIR 1950 SC 188; Virindar Kumar
Satyawadi v. The State of Punjab, AIR 1956 SC 153;
Engineering Mazdoor Sabha & Anr. v. Hind Cycles Ltd., AIR
F
1963 SC 874; Associated Cement Companies Ltd. v. P.N.
Sharma & Anr., AIR 1965 SC 1595; Ramrao & Anr. v. Narayan
& Anr., AIR 1969 SC 724; State of Himachal Pradesh & Ors.
v. Raja Mahendra Pal & Anr., AIR 1999 SC 1786; Keshab
Narayan Banerjee v. State of Bihar & Ors., AIR 2000 SC 485;
G Indian National Congress (/) v. Institute of Social Welfare &
Ors., AIR 2002 SC 2158; K. Shamrao & Ors. v. Assistant
Charity Commissioner, (2003) 3 SCC 563; Trans
Mediterranean Airways v. Universal Exports, (2011) 10 SCC
316 at page 338; and Namit Sharma v. Union of India, JT
H 2012 (9) SC 166).
STATE OF GUJARAT v. GUJARAT REVENUE
837
TRIBUNAL BAR ASSOCN. [DR. B.S. CHAUHAN, J.]
11. In Harinagar Sugar Mills Ltd. v. Shyam Sundar A
Jhunjunwala & Ors., AIR 1961 SC 1669, Hidayatullah, J. (as
His Lordship then was) made a distinction between a "court"
and a "Tribunal" as is explained hereunder:
" ....... These Tribunals have the authority of law to
pronounce upon valuable rights; they act in a judicial
manner and even on evidence on oath, but they are not
part of the ordinary Courts of Civil Judicature. They share
B
the exercise of the judicial power of the State, but they are
brought into existence to implement some administrative
C
policy or to determine controversies arising out of some
administrative law. They are very similar to Courts, but
are not Courts. When the Constitution speaks of ' Courts'
in Art. 136, 227 or 228 or in Arts. 233 to 237 or in the
Lists, it contemplates Courts of Civil Judicature but not
Tribunals other than such Courts.