Harbhajan Singh vs State of M.P.

Shivdayal, C.J.—A Division Bench has framed the following question and referred it to us for answer:

Whether or not the Judicial Authority u/s 6C of the Essential Commodities Act acts as a persona designata while hearing appeals u/s 6A of the Act and, secondly whether a revision would lie against the order of the Judicial Authority before the High Court?

It appears that the Collector proceeded against the Petitioner and 11 others u/s 6A of the Essential Commodities Act, 1955, (hereinafter called the ''Act'') He served a show cause notice u/s 6B of the Act and proposed to confiscate the wheat and trucks. After enquiry, the Collector found the applicants to have contravened the provisions of the Inter-Zonal Wheat and Wheat Products (Movement Control) Order, 1973, and confiscated the wheat as well as the trucks. The Petitioner and others preferred an appeal to the judicial Authority, i.e. the District and Sessions Judge, Khandwa, who dismissed the appeal of the Petitioner and two others, but allowed the appeal of the other Appellants.

Aggrieved by the order of the Judicial Authority, Harbhajansingh (revision-Petitioner) filed this revision under the Code of Criminal Procedure. A preliminary question arose whether the Judicial Authority was persona designata and not a Court inferior to the High Court. In the latter case, this revision would be incompetent. In Sitaram Deokisan Heda Vs. State of Madhya Pradesh, a Division Bench of this Court, to which the question had been expressly referred, took the view that a District and Sessions Judge, appointed as Judicial Authority u/s 6C(1) of the Act, acts as a persona designata so that his decisions are not revisable by the High Court. The remedy under Article 227 of the Constitution (as it then stood) was available.

In the present case, the revision-Petitioner urged that Article 227 of the Constitution having been amended by the Constitution (42nd Amendment) Act, 1976, that remedy was not available to him and he could only invoke the jurisdiction of this Curt under Article 226 of the Constitution. It was, however, urged on his behalf that the decision in Sitaram v. State of M.P. (supra) required reconsideration. He urged, alternatively, that his Criminal Revision be converted into a writ petition under Article 226 of the Constitution. This application came up before the Division Bench which has referred the question, reproduced at the outset, for decision by a larger Bench.

Having regard to the scheme of Section 6A, 6B and 6C of the Act, the policy of the law, becomes abundantly clear. Section 6A confers power on the Collector of the District in which the essential commodity is seized in pursuance of an order made u/s 3, to order confiscation of the essential commodity, any package, covering etc. and any animal, vehicle etc., if he is satisfied that there has been a contravention of the order. Patently enough, this power is penal in nature. u/s 6B an opportunity of making a representation and also of being heard is provided. Now, the Legislature was conscious of the fact that while in its wisdom it was empowering the Collector to order such confiscation, his order would be penal in character and also that questions relating to rights and liabilities based on general law may be involved. It was, therefore, deemed just and proper that the Collector''s exercise of that power should be judicial and it should be open to scrutiny by Judicial Court. Therefore, an appeal has been provided and the State Government has been enjoined to appoint a Judicial Authority to hear appeals from the Collector''s order. In the setting of these provisions, it must be said that the Judicial Authority, although to be appointed by the State Government, must necessarily be a Judicial Court in the hierarchy of Courts. "Judicial Authority" is defined in Black''s Law Dictionary as "power and authority appertaining to the office of a judge jurisdiction, the official right to hear and determine questions in controversy". In 14 American Jurisprudence, Courts, Section 4, Page 248, it is stated:

While there is a well defined and generally recognised distinction between a Judge and a judicial tribunal and while it takes more than a presiding officer to constitute a Court, yet the Judge of a Court while presiding over it is by common courtesy called ''the Court'' and the words ''Court'' and ''judge'' are frequently used in the statutes of various States as synonymous and convertible terms.

Although the State Government has a discretion u/s 6C to appoint any Judicial Authority as appellate authority, it cannot be an authority other than a judicial authority. Again, the intention of the Legislature is clear that the judicial authority here refers to Judicial Court; otherwise, an appeal would ordinarily lie to higher Revenue Authorities, such as, the Commissioner, from the order passed by the Collector. See, for instance, Sections 44 and 56 of the M.P. Land Revenue Code.

In Madhya Pradesh, District and Sessions Judge has been appointed Judicial Authority. He being a Court in the bie- archy of Courts, he acts as a Court and his jurisdiction is enlarged, where by a statute matters are referred to the determination of a Court of record with no further provision the necessary implication is, that the Court will determine the matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same, (per Lord Parker in National Telephone Co Ltd. v. His Majesty''s Postmaster General (1913) AC 546, It is simply the question of extending the jurisdiction of an existing Court of law, with all its incidents including a right of appeal to a new matter closely resembling in character these matters over which it has already jurisdiction as a Court of law. [Per Lord Atkinson in National Telephone Co. Ltd. (supra)]

In AIR 1948 12 (Privy Council) , Lord Simonds spoke for the Judicial Committee thus:

The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.

A Full Bench of the Andhra Pradesh High Court, in The Public Prosecutor Vs. Legisetty Ramayya and Another, also took the above view and the same view taken by the Karnataka High Court in Vasundara Traders Vs. State of Karnataka, which overruled the earlier view of the Mysore High Court in The State of Mysore Vs. Pandurang Purusappa Naik and Others, , A contrary view was taken in Sitaram v. State of M.P. (supra) The question is now concluded by the decision of the Supreme Court in Thakur Das v. State of M.P. 1978 JLJ 165, where it is laid down thus:

We are accordingly of the opinion that even though the State Government is authorised to appoint an appellate authority u/s 6C the legislature clearly indicated that such appellate authority must of necessity be a judicial authority, Since under the Constitution the Courts being the repository of the judicial power and the officer presiding over the Court derives his designation from the nomenclature of the Court even if the appointment is made by the designation of the judicial officer the appellate authority indicated is the Court over which he presides discharging functions under the relevant Code and placed in the hierarchy of Courts for the purposes of appeal and ''revision''. Viewed from this angle, the Sessions Judge, though appointed an appellate authority by the notification what the State Government did was to constitute an appellate authority in the Sessions Court over which the Sessions Judge presides. The Sessions Court is constituted under the Code of Criminal Procedure and indisputably it is an inferior criminal Court in relation to High Court. Therefore, against the order made in exercise of powers conferred by S. 6C a revision application would lie to the High Court and the High Court would be entitled to entertain a revision application under Ss 435 and 439 of the Code of Criminal Procedure 1898 which was in force at the relevant time and such revision application would be competent.

Their Lordships broadly approved the decision in Public Prosecutor (AP) v. Ramayya (supra).

Our answer to the question is that a Judicial Authority u/s 6C of the Essential Commodities Act does not act as a persona designata while hearing appeals from Orders u/s 6A of the Act, but acts as a Criminal Court inferior to the High Court. From the order of the Judicial Authority, a revision would lie under the Code of Criminal Procedure. Where the Judicial Authority is a Sessions Judge, a revision would lie to the High Court u/s 401 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).

This revision will now be placed before a Division Bench.