- (1.) This appeal has been preferred against the impugned judgment and order dated 14.9.2009, passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.8209 of 1988, by way of which the High 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 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 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 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 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 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 before the High Court, the Government of Gujarat made the appointment of Shri A.D. Desai, a retired I.A.S. 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) 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 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 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 Judge etc., for which, concurrence of the High Court is necessary under Article 234 of the Constitution of India. Hence, the present appeal.
(3.) Shri Preetesh Kapur, learned counsel appearing on 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 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 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 clause (g) was not under challenge. But on that count there will be no illegality. The Tribunal cannot be held to be a 'court' within 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. Therefore, the appeal deserves to be allowed.;