State of Chhattisgarh and Another vs Gupteshwar Prasad Sinha

I.M. Quddusi, J.—Heard.

This writ appeal has been filed against the order dated 21.07.2008 passed in M.C.C. (S) No. 36/2005 whereby the learned Single Judge has set aside the order dated 24.6.1998 passed by the M.P. State Administrative Tribunal (for short `the tribunal'') and allowed the Transfer Application No. 1349/98 of the respondent herein.

At the very outset, it is necessary to mention the relevant brief facts of the case. The respondent herein initially filed a civil suit which after formation of the tribunal under the Administrative Tribunals Act was transferred to the tribunal and registered as T.A. No. 1349/89. The tribunal heard the said application and dismissed the same vide order dated 24.6.1998 against which the respondent herein has filed a writ petition before this Court, which was registered as W.P. No. 4157/98. The said writ petition was also dismissed by this Court vide order dated 18.12.1998 with the observation that it would be open for the petitioner/respondent herein to approach the tribunal and if the petitioner/respondent herein approaches the tribunal and the tribunal entertains the review or clarification application, then the petitioner/respondent herein would also be at liberty to argue the other aspects of the matter relating to the application dated 23.6.1982.

Thereafter, the respondent herein filed a review petition against the order dated 24.6.1998 before the tribunal and the same was registered as M.A. No. 21/99. Unfortunately, the tribunal was abolished by the Government of India vide Notification dated 17.04.2003 and thereafter an Adhiniyam namely "M.P. Rajya Prashasanik Adhikaran (Lambit Evam Nirakrat Avedano Ka Antaran) Adhiniyam, 2003" (for short `the Adhiniyam''), published in the Extraordinary Gazette dated 25.8.2003, which came into force w.e.f. 12.5.2003, was promulgated for transfer of cases pending before the abolished tribunal. Section 3 of the Adhiniyam provides thus:

Transfer of pending and disposed off cases and applications.- (1) Any plaint or other proceeding which was transferred by any Civil Court and is pending on the appointed day before the Tribunal shall stand transferred back to the same Civil Court from which it was transferred and in case such Court is not in existence then to the court of competent jurisdiction in its place and such Court shall proceed to dispose off the same as if it were a plaint under the Code of Civil Procedure, 1908 (No. 5 of 1908).

(2) Every proceeding which was transferred by the High Court to the Tribunal and is pending on the appointed day before the Tribunal shall stand transferred back to the High Court.

(3) Every proceeding of a case which was filed as an application in the Tribunal and is pending on the appointed day before the said Tribunal shall stand transferred to the High Court.

(4) Every proceeding relating to contempt, execution or review of final order of interim order pending before the Tribunal on the appointed day shall stand transferred to the High Court.

(5) The record of all cases/applications decided by the Tribunal upto appointed day shall stand transferred to the High Court and District Courts respectively.

Since, in the instant case, the civil suit was transferred to the tribunal and the tribunal decided the same finally as transferred application, as mentioned above, the suit no more remain pending and as such, there was no question of transferring the same back to the Civil Court and at the time when this Adhiniyam, 2003 came into force only review petition was pending before the tribunal. The transfer was made effective under Sub-section (4) of Section 3, as quoted above, which provides that "every proceeding of a case which was filed as an application in the tribunal and is pending on the appointed day before the said tribunal shall stand transferred to the High Court". However, needless to mention here that the Hon''ble Apex Court in the matter of L. Chandra Kumar Vs. Union of India and others, has laid down certain norms with regard to the decision to be taken by the High Court in respect of judgments of the tribunal by way of scrutiny. Para-93 of the said judgment is relevant and the same is quoted herein below:

Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statues, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.

Therefore, any matter in which the High Court had to make scrutiny of the judgment of the tribunal, the same would be decided by the Division Bench of the High Court.

Since in the instant matter there was a judgment of the tribunal existing and review petition was transferred to the High Court and the High Court had to make scrutiny of the judgment of the tribunal, therefore, in view of the law laid down in L. Chandra Kumar''s case (supra), the same was to be decided by the Division Bench.

In this context, it is necessary to mention that in case the claim or original petition or any interim matter pending in the tribunal was to be transferred to the High Court, the directions contained in L. Chandra Kumar''s case (supra) would not have been applicable, but in case of scrutiny of the judgment of the tribunal, it was necessary to consider the same by the Division Bench of the High Court.

In the instant case, the review petition was registered as M.C.C. (S) No. 36/2005 and listed before the learned Single Judge who referred the matter to the Division Bench vide order dated 09.08.2007 and the then Hon''ble Acting Chief Justice approved the listing of case before the Division Bench. However, when the case was listed before the Division Bench, the same was again transferred to the learned Single Judge and the learned Single Judge decided the same accordingly. However, the directions issued in L. Chandra Kumar''s case (supra) were not pointed out by any of the learned Counsel appearing for the parties.

The judgment of the Hon''ble Apex Court is law of land and has to be followed by everyone inasmuch as judicial forums are concerned. In the case of L. Chandra Kumar (supra) the Hon''ble Apex Court has specifically directed that scrutiny of judgment of the tribunal will be made by the Division Bench of the High Court and as such the same could not have been made by the learned Single Judge in the instant case.

In the instant case, the learned Single Judge set aside the order of the tribunal and allowed the transfer application which could not have been done without making scrutiny of the judgment of the tribunal and as such the learned Single Judge had no jurisdiction to pass the impugned order in view of the L. Chandra Kumar''s case.

Therefore, we set aside the impugned order dated 21.7.2008 passed by the learned Single Judge and direct that MCC (S) No. 36/2005 shall be restored to its original number and shall be listed before the Division Bench for hearing as early as possible.

The writ appeal is allowed to the above extent. No order as to costs.