Executive v. Judiciary: Divesting of powers of Revenue Tribunal by Guj govt. challenged in Gujarat HC

In a case that could have significant ramifications in the sphere of judicial independence and separation of powers, the Gujarat High Court yesterday issued notice in a PIL filed by Gujarat Revenue Tribunal Bar Association challenging Sections 9(2) and 9(3) of the Gujarat Revenue Tribunal Act, 1957 (GRT Act)..What makes this case interesting is the fact that the State government has allegedly gone one step ahead of tribunalisation and divested the tribunal of its powers and vested those powers with itself..This has been done by way of a notification issued on January 13, 2016 by which it has resumed to itself the power to decide cases falling in the First Schedule of the GRT Act. The said notification has also been challenged by the petitioner..The matter was heard by a Division Bench of Chief Justice R Subhash Reddy and Justice Vipul M Pancholi. Senior Advocates Yatin N Oza along with advocates Masoom K Shah and Mohini K Shah appeared for the petitioner. Advocate Manisha Shah appeared on behalf of the state of Gujarat..History.The issue raised in the petition is more than 30 years old and has its genesis in the GRT Act which created a tribunal for deciding revenue cases between the litigants inter se and the Government..In 1988, the same petitioner had challenged Sections 4 and 20 of the Act and Rule 3(1) of the Gujarat Revenue Tribunal Rules, 1982 (Rules). The issue under consideration was whether a government functionary like Chief Secretary or Additional Secretary of the State can be appointed as President of the Tribunal or not..The Gujarat High Court, in its judgment in the said petition, had held that the Tribunal essentially performs the function of the Civil Court and hence the person holding the post of the President comes within the definition of the “District Judge”. It was held that the Tribunal decides lis, which were decided by the ordinary Civil Court. It also held that the Court or Tribunal created for deciding such disputes must be considered to be Civil Court and when the Tribunal discharges its judicial function to resolve disputes of a Civil Nature, it is necessary that they should be independent of the Executive..Hence, the court ruled that persons from non – judicial service such as police, excise, revenue, etc. should not be considered eligible for appointment as President of the tribunal. The Gujarat government preferred an appeal against this decision in the Supreme Court which affirmed the judgment of the High Court..Subsequently, another petition was filed in 2013 challenging section 3(2) of the GRT Act and Rule 3 of the Rules which dealt with appointment of the members of the Tribunal. The High Court issued notice in that petition whereupon the State of Gujarat made a statement before the Court that an amendment of the said Act and its rules will be made soon. The said statement was recorded by the court..In 2015, the High Court was intimated that the judgment of the Supreme Court directing appointment of President of the tribunal has not been complied with. The High Court took note of the same and by an order dated November 26, 2015, directed that the appointment to the post of President should be made within 6 weeks..Subsequently, the Gujarat government issued the impugned notification on January 13, 2015 by which it allegedly divested the tribunal of its powers in relation to matters contained in the First Schedule of Act and vested those powers with the government..Case.The petitioner has alleged in the petition that the notification is an attempt by the Gujarat government to overreach the judgement of the Supreme Court with which it had not complied for more than 4 years and to render the directions of the High Court for appointment of the President infructuous..The petitioner has contended that by virtue of the said notification all the powers of the tribunal under the First Schedule have now been vested with government and matters which were earlier being heard by the tribunal are now being sent to Additional Chief Secretary/Principal/Additional Secretary (Appeals) since the second week of March this year..Attempt to defeat HC and SC judgments.The petitioner has contended that the impugned notification has been issued solely with the reason to defeat the judgement of the High Court which was affirmed by the Supreme Court. It has contended that the state, which is the biggest litigant could not appoint its Secretary as President of the Tribunal by virtue of the judgment of the High Court and Supreme Court. Hence, it resorted to transferring the powers of the tribunal to the government..“By virtue of the said judgement, no longer the biggest litigant’s Secretary could have decided the matters as the President of the Tribunal. Hence the biggest litigant decided to transfer the power again to the Secretary (this time Additional and/or Principal Secretaries) through the impugned provisions and notification. ……………...rather than make the appointment of the President in consultation with the Chief Justice and make the amendments the biggest litigant through its action to subvert the process of law, defeat the Supreme Court judgement and to find a way that it’s cases are still decided by it’s Secretaries against the litigants passed the impugned notification and took away all the entries of the First Schedule from the Tribunal. It’s a power struggle by the State against the mandate of the article 50 and the Supreme Court judgment holding the field.”.Doing indirectly what cannot be done directly.The petitioner has contended that the above act of the state is an attempt to do something indirectly which it could not have done directly. The petitioner has also submitted that the source of the power to issue the above notification lies in Sections 9(2) and (3) of the GRT Act and the same is also ultra vires the Constitution..“It is indirectly doing something which could not have been accomplished directly. Hence the source of power i.e. s. 9(2) and (3) which allow the executive to tinker with the jurisdiction of the tribunal, transfer the jurisdiction from the judiciary to the executive is required to be declared ultra vires.”.Arbitrary and violative of independence of Judiciary.The petitioner has contended that Section 9 (2) and 9(3) violate Article 50 of the Constitution of India, which mandates that the State shall take steps to separate the judiciary from the executive..“…s. 9(2) and 9(3) defeats the independence of the judiciary as the matters which shall be decided by the independent tribunal shall be decided by the executive…. The impugned provisions directly interfere in the independence of judiciary as by the same the State Government can at its own whim and fancies control which matters shall be heard by the Tribunal. The blanket power to omit the entries and to render the First Schedule of the GRT Act blank and empty and the Independent Tribunal without any matters to be decided from First Schedule is arbitrary and unreasonable…..…the State is the biggest litigant in the revenue matters which are sought to be taken away from the First Schedule. Hence the biggest litigant cannot be delegated the power to decided that which matters shall decide by the Tribunal. .….if the judgement of the Supreme Court which affirmed the verdict of this Hon’ble Court, is required to have full play and full effect, that is independence of the Tribunal, then the executive cannot be left with the power to decide the jurisdiction of the matters to be heard by the Tribunal. The said impugned provisions violate the basic structure i.e. independence of the judiciary.”.Excessive delegation.Besides the above, one of the main contentions of the petitioner is that the legislature has delegated excessive, unbridled power to the Executive to add, amend or omit the First Schedule of the GRT Act. It has submitted that the Constitution has vested the power on the Legislature to decide on the jurisdiction of a court and if a tribunal is created to perform the functions of a court, then the power to decide on the jurisdiction of the said tribunal cannot be delegated to the executive..“…legislature has delegated unbridled, uncanalised and untrammeled power to the State Government to add, amend or omit the First of the GRT Act. There is no guidance or assistance provided in the Act, in the manner as to which the power is required to be exercised. Hence this is excessive delegation of essential legislative function..…….Jurisdiction of the Court is an essential attribute’ which has been vested in the legislature under the Constitution. If the legislature as a matter of principle or policy clearly decides to create a Tribunal the power to decided the jurisdiction of the said tribunal cannot be delegated to the executive. The decision to decide jurisdiction as such cannot be delegated. The delegation of such essential powers will be tantamount to abdication, of essential legislative functions. … The delegation of such wide power and the exercise of the same cannot be included within the ambit of “conditional legislation” or “delegated legislation”.”.Prayer.The petitioner has prayed for striking down Sections 9(2) and 9(3) of the GRT Act and the notification issued on January 13, 2016 (bearing no. GHM/2016/M-12/GRT/102015/4360/J) as unconstitutional..The court issued notice to the Gujarat government and Gujarat Revenue Tribunal while granting the petitioner the liberty to make some amendments in the petition. The matter will now be taken up on March 31.