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Judgment
This writ appeal is directed against the judgment dated 15-6-2015 passed by the learned Single Judge in W.P.(C) No. 394 of 2010 declining to interfere with the order dated 11-2-2010 of the Principal Secretary, Revenue Department, Govt. of Tripura passed by him under Sections 95 and 96 of the Tripura Land Revenue and Land Reforms Act, 1960 in Misc. Case No. 9 of 2003.
At the outset, Mr. D. Bhattacharya, the learned counsel for the respondents, drawing our attention to the decision of the Apex Court in Lokmat Newspapers Pvt. Ltd. v. Shankar Prasad, (1999) 6 SCC 275, contends that the impugned order of the learned Single Judge, which was passed under Article 227 of the Constitution, cannot be challenged by the appellant in an intra-court appeal. Elaborating his contention, the learned counsel submits that the order under challenge before the learned Single Judge was passed by a Revenue Court under Sections 95/96 of the Tripura Land Revenue and Land Reforms Act, 1960 ("the Act" for short) and the fact that the authority passing the order was the Principal Secretary, Revenue Department, does not detract from the fact that he was in that case assuming the power of a Revenue Court. He, therefore, submits that once a Revenue Court exercises its revisional or review power U/s 95 and 96 of the Act pass an order, it necessarily becomes and assumes the character of a Tribunal and has the trapping of a civil court so much so that its order can only be challenged under Article 227 of the Constitution and not under Article 226 of the Constitution. Nor can the power of the High Court under Article 226 and Article 227 of the Constitution be equated. He maintains that Revenue Courts constituted under the Act such as the revisional or review authority herein passing the impugned order come within the sweep of the term "tribunals" referred to in Article 227 of the Constitution. He, therefore, submits that this writ appeal is not maintainable and is liable to be dismissed at the very threshold.
On other hand, Mr. A.K. Bhowmik, the learned senior counsel for the appellants, maintains that this appeal is maintainable inasmuch as the writ petition was entertained by the learned Single Judge both under Articles 226 and 227 of the Constitution. He takes us to paragraph 3 of the impugned judgment, which says that "[L]earned counsel for the respondents have (sic) no objection and therefore the writ petition filed under Article 226 of the Constitution is also treated as one under Article 227 of the Constitution[.]" and submits that the respondents are now barred from making this objection. He, therefore, urges this Court to reject the preliminary objection and proceed to hear the appeal on merit.
Before proceeding further, it will be apposite to refer to the provisions of Articles 226 and 227 of the Constitution, which read thus:
"226. Power of High Courts to issue certain writs.-(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4)] The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.
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Power of superintendence over all courts by the High Court.-(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
In Himalayan Coop. Group Housing Society v. Balwan Singh and others, (2015) 7 SCC 373, one of the issues, which confronted a three-Judge Bench of the Apex Court was as follows:
(i) What is the jurisdiction of the Court while dealing with a petition filed under Articles 226 and 227 of the Constitution of India?
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The answer is found at paras 15, 16 and 17 of the judgment, which reproduced below:
"15. The first issue need not detain us for long. It is the stand of the learned counsel for the respondents, that, since the writ petition that was filed was both under Articles 226 and 227 of the Constitution of India, the Court apart from examining the merits of the writ petition could also issue incidental and ancillary directions to do complete justice between the parties litigating before it. We do not agree. The issue in our view is no more debatable in view of the decision of this Court in Jai Singh v. MCD (2010) 9 SCC 385: (2010) 3 SCC Civ) 782. The Court has stated:
"15. ... we may notice certain well-recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints."
(emphasis supplied)
The scope and extent of power of the writ court in a petition filed under Articles 226 and 227 of the Constitution came up for consideration before a three-Judge Bench of this Court in the recent case of Radhey Shyam v. Chhabi Nath (2015) 5 423: (2015) 3 SCC (Civ) 67. This Court observed that the writ of certiorari under Article 226 though directed against the orders of an inferior court would be distinct and separate from the challenge to an order of an inferior court under Article 227 of the Constitution. The supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall in the purview of the scope of supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked.
In the present case, what was challenged by the members of the Society was an order passed by the Registrar and the Revisional Authority under the provisions of the Act and the Rules framed thereunder. The prayer was to set aside the orders passed by the authorities below. Even if the said petition(s) were styled as a petition under Article 226, the content and the prayers thereunder being ones requiring exercise of supervisory jurisdiction only, could be treated as petitions filed under Article 227 of the Constitution only."
(Underlined for emphasis)
Thus, there is a real distinction between the powers of the High Court under Article 226 and its powers under Article 227 of the Constitution, which should never be confused. It is only when the remedy sought for cannot be dealt with under the supervisory jurisdiction under Article 227 that the jurisdiction of the Court under Article 226 could be invoked. Since the powers of superintendence/supervision over courts and tribunals are expressly conferred by the Constitution upon the High Court under Article 227 of the Constitution and not upon the High Court under Article 226, it is only when, as held by the Apex Court in Balwan Singh case (supra), the remedy sought for cannot be achieved under this Article, the question of invoking Article 226 will arise. This then begets the second question as to whether the Principal Secretary, Revenue Department, Government of Tripura, who passed the impugned orders in his capacity as the Revisional Court under Section 95 of the Act, can be construed to be a revenue court inasmuch as it does not expressly come within the purview of Section 4 of the Act. One thing is clear: State Government or its delegate cannot ordinarily be a court. If that is so, the next question to be considered is whether it can be held to be a revenue court? If it is held that the State Government or its delegate exercising the power of revision under Section 95 of the Act cannot be held to be a revenue court, the supervisory jurisdiction of the High Court under Article 227 will not extend to the proceedings/decisions of such authority or body. However, if it is found to be a revenue court, can it be taken to be a tribunal within the sweep of Article 227? To answer this question, it will be necessary to refer to Section 95 of the Act, which is in the following terms:
"95. State Government or the Collector may, at any time, either on his own motion or on the application of any party, call for the records of any proceedings before any revenue officer subordinate to him for the purpose of satisfying himself as to the legality or the propriety of any order passed by such revenue officer, and may pass such order in reference thereto as he thinks fit:
Provided that he shall not vary or reverse any order affecting any right between private persons without having given to the parties interested notice to appear and be heard."
An enquiry and investigation into facts is a material part of judicial function. The legislature, in its wisdom has created tribunals and transferred the work which was regularly done by the civil courts to them, as it was found necessary to do so in order to provide efficacious remedy and also to reduce the burden on the civil courts and also to save the aggrieved person from bearing the burden of heavy court fees, etc. Thus, the system of tribunals was created as machinery for the speedy disposal of claims arising under a particular statute/Act. However, in each case, the principles of natural justice are required to be observed. Such tribunals, therefore, basically perform quasi-judicial functions. Under certain statutes, tribunals have been authorized to exercise certain powers conferred under some provisions of the Code of Civil Procedure (hereinafter referred to as "CPC") or the Code of Criminal Procedure (hereinafter referred to as "CrPC"), but not under the whole Code, be it Civil or Criminal. In State of Gujarat and another v. Gujarat Revenue Tribunal Bar Assn. and another, (2012) 10 SCC 353, the Apex Court after reviewing a number of decisions observed:
"18. Tribunals have primarily been constituted to deal with cases under special laws and to hence provide for specialized adjudication alongside the courts. Therefore, a particular Act/set of rules will determine whether the functions of a particular tribunal are akin to those of the courts, which provide for the 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; (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 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 trappings of a "court", but not all. In case certain powers under CPC or CrPC have been conferred upon an authority, but it has not been entrusted with the judicial powers of State, it cannot be held to be a court."
In the instant case, the State Government is empowered by Section 95 of the Act to call for the records of any proceedings pending before a revenue officer subordinate to it for the purpose of satisfying itself as to the legality or the propriety of any order passed by such revenue officer and may pass such order in reference thereto as it thinks fit. The proviso, however, requires it not to vary or reverse any order affecting any right between private persons without giving notice to the person interested. This indicates the existence of power with the State Government to adversely affect any right of a private person while exercising the power of revision. Furthermore, this power can be invoked in a dispute not only between an authority and the subject but also between private persons. The State Government is also required to act judicially, or, at any rate, quasi-judicially, while exercising the jurisdiction under Section 95 of the Act as it has the duty to follow the procedure of a revenue court laid down in Schedule III to the TLR & LR Rules. In other words, the State Government (or its delegate) under Section 95 is one who is appointed to decide controversies arising under a certain special law, namely, Tripura Land Revenue and Land Reforms, 1960 as amended from time to time. This is evident from the following characteristics of the body constituted under Section 95 of the Act:
Section 95 conferring the power of revision appears in Chapter VIII of the Act dealing with the procedure of revenue officer: appeals and revisions.
Section 124(1) provides that the procedure for revenue courts and of proceedings before revenue officers shall be governed by Schedule III while Sub-section (2) thereof provides that subject to other provisions of the Rules, any enquiry by a revenue court, not specifically required to be held in the manner of formal enquiry, shall be held in the manner provided for summary enquiry in Schedule III.
Section 125 indicates the extent of applicability of CPC and says that subject to the provisions of the Act and the Rules, the Code of Civil Procedure, 1908, shall, as far as may be, apply to all or any of the proceedings taken by a revenue court under the Act.
Clause 46 of Schedule III prescribes the contents of memorandum of appeals, review or revision, whereas Clause 48 confers the power of suspending execution of a lower court pending result of appeal, review or revision.
Clause 49(1) says that it shall not be necessary for the State Government when confirming an order or decree of a lower court to do more than record an order of dismissing the appeal or application and confirming the order of a decree of the court, whereas Sub-clause (2) provides that in all other cases, the court deciding the appeal, or application for revision shall record a judgment as required by rule 31 of Order XII of the Code of Civil Procedure.
From the characteristics of the State Government exercising the power of revision as are culled out from the provisions extracted above, we have no doubt in our mind that the State Government exercising the power of revision under Section 95 of the Act is also a revenue court even though it does not find a place in the definition of the term "revenue court" provided for in Section 4(1) of the Act. Once the State Government (the Principal Secretary as the delegate of the State Government) is, by necessary implication, construed to be a revenue court, then, ex proprio vigore, it can be said to have all the trappings of a tribunal, which is thus amenable to the supervisory jurisdiction of the High Court under Article 227 of the Constitution.
Having found that the Principal Secretary, as a delegate of the State government, who passed the impugned order under Section 95, was functioning as a Tribunal and is, therefore, amenable to the supervisory jurisdiction of this Court under Article 227 of the Constitution, the next question to be determined is whether the appellant has the luxury of invoking both Articles 226 and 227 at the same time to question the legality of the impugned order passed by the Principal Secretary/Revenue Department. At this stage, it will be apposite to recall that the appellant in the writ petition was seeking a writ of mandamus for setting aside the impugned order dated 11-2-2010 passed by the Principal Secretary/Revenue Department, a writ of prohibition for directing the respondents not to proceed further with the impugned judgment and a writ of certiorari to call for the record of Review Case No. 74 of 1997 passed by the District Collector, Kailasahar, and was questioning the legality of the same judgment dated 11-2-2010. The prayer in the writ petition is for setting aside the said order dated 11-2-2010. As already noticed, the jurisdiction of this Court under Article 226 comes into play in the latter case only when the scope and ambit of the remedy sought for does not fall in the purview of the scope of supervisory jurisdiction under Article 227; the instant case is not one in which the jurisdiction of the Court under Article 226 can be invoked. This is because a writ of certiorari under Article 226 though directed against the orders of an inferior court would be distinct and separate from the challenge to an order of an inferior court under Article 227 of the Constitution. Even if the said petition was styled as a petition under Article 226 or was treated one under both Article 226 and 227 by the learned Single Judge, the content and the prayers in the writ petition being ones requiring exercise of supervisory jurisdiction only, the same could be treated as a petition filed under Article 227 of the Constitution only. There is no such thing as treating two separate jurisdictions as one for redressing the grievance of the appellant, when the same could be dealt with under Article 227; such exercise will be a nullity (coram non judice). In that view of the matter, there is force in the contention of Mr. D. Bhattacharjee, the learned counsel for the respondent No. 1, that the learned Single Judge had no jurisdiction to entertain the writ petition filed by the appellant under both Articles 226 and 227 of the Constitution or under Article 226 of the Constitution. In that view of the matter, we are constrained to observe that the learned Single Judge should not have treated the writ petition filed by the appellant as one under both Articles 226 and 227 of the Constitution. The writ petition was filed, or, at any rate, was deemed to have been one filed, under Article 227 of the Constitution, for which there can be no intra-court appeal.
For what has been stated in the foregoing, this appeal is not maintainable and is hereby dismissed. Consequently, the impugned judgment need not be interfered with. No cost.