- (1.) This writ petition has been filed by the petitioner, Managing Committee of Aklank Secondary School, Kota challenging validity of Section 27-A of Rajasthan Non-Government Educational Institution Act, 1989(for short 'the Act of 1989') with the prayer that the same be declared ultra vires of the Constitution of India and struck down and on that basis order dated 21.05.2015 passed by the Civil Court and warrant of attachment dated 25.05.2015 be quashed and set aside.
(2.) Mr. S.C. Goyal, learned counsel for the petitioner has argued that by inserting Section 27-A in the Act of 1989, the State has encroached upon the field already occupied by the provisions of Code of Civil Procedure, which is a Central Legislation. Section 2(2) of CPC defines the expression "Decree", which may be passed by a Court exercising jurisdiction under the relevant provisions of CPC. The said definition does not cover the order passed by the Tribunal established under the Act of 1989. Provisions of Sections 25, 26 and 27 of the Act of 1989 are not in consonance with the relevant provisions of CPC, an existing Central Legislation. While the assent of the President was obtained on 04.06.1992 before the Act of 1989 was made operational w.e.f. 01.1.1993, but no such assent was obtained for Section 27-A of the Act of 1989. Section 27-A of the Act of 1989 is repugnant to the provisions of CPC and has created an anomalous situation and cannot co-exist with the provisions of sections 25, 26 and 27 of the Act of 1989 and the relevant provisions of CPC. While a decree of the Civil Court is appellable, the judgment of the Tribunal has been given finality.
(3.) Validity of the aforesaid Section 27-A of the Act of 1989 has already been considered by this Court in The Managing Committee Arya Kanya Madhyamik Vidhyalaya, Bharatpur Vs. Kumari Prabha Gupta & Ors, 2011 3 WLC(Raj) 598, wherein argument with regard to presidential assent having not been obtained for Section 27-A of the Act of 1989 and repugnancy thereof with Sections 19 and 21 of Rajasthan Civil Courts Ordinance and CPC and other arguments were considered and rejected by this Court. Para 10 to 14 and 17 of the aforesaid judgment are reproduced hereunder: "10. We are not inclined to uphold the contention that since Section 19 of the Rajasthan Civil Courts Ordinance empowers a civil Judge, Junior Division to try and decide civil suit of the valuation upto Rs.25,000/-, therefore, he would not be competent to entertain and decide execution application filed by the respondent, valuation whereof exceeds Rs.3 lacs and even more. In order to truly appreciate the controversy, Section 27A of the Act of 1989 is reproduced hereunder: "27A-Execution of orders of Tribunal- The order of the Tribunal deciding appeals preferred under section 19 and disputes referred to in section 21 shall be deemed to be the decree of the lowest civil court having territorial jurisdiction over the local area in which the respondents/against whom the order has been made, ordinarily resides or carries on business or personally works for gain and shall be executed as such by such civil court." 11. Perusal of the aforesaid provision would indicate that the judgement of the Tribunal has not only been deemed to be decree by virtue of the aforesaid provision but it has been further deemed to be decree of lowest civil court having territorial jurisdiction over the local area in which the respondent resides or carries on business for gain. It has been further provided that such deemed decree shall be executed as such by such civil court. In the normal course, although the Civil Judge of Junior Division would be competent to try and decide the civil suit having valuation of Rs.25,000/- as per Section 19 of the Civil Court Ordinance, but here in the present case, such power has been specifically conferred upon him by virtue of Section 27A,where the judgement/order of Tribunal deciding appeals preferred u/s.19 or in dispute referred to in Section 21, has been deemed to be decree of that lowest civil court with the further stipulation that such order shall be executed as if it were a decree of such civil court. When the legislature has engrafted a specific provision in the Act itself authorising the concerned lowest civil court having territorial jurisdiction to execute the orders of the Tribunal, jurisdiction of such court shall have to be determined with reference to the provision by which that authority has been conferred upon it. This being a special provision, general provision contained in Section 19 of the Act would not be a determining factor for deciding issue of its competence to entertain execution application. 12. Much though the learned counsel for the petitioner has argued on the question of validity of Section 27A of the Act and that of its repugnancy with Sections 19 and 21 of the Rajasthan Civil Court Ordinance and Section 9 of CPC, we are not inclined to uphold this argument for the simple reason that the Civil Judge, Junior Division while entertaining execution application in respect of the orders passed by the Tribunal draws his power and authority for doing so from Section 27A, which is a special provision and not general provision of either Civil Code of Procedure or Rajasthan Civil Court Ordinance. Section 9 of the CPC also in this connection does not create any bar because it is special enactment of the legislature by which Civil Court, Junior Division has been authorised to entertain and decide the execution application. Section 27A of the Act cannot be held ultra vires of the Constitution merely because it has not received assent of the President. Section 27A is an ancillary provision to the main provision of Sections 19 to 23 whereby adjudicatory powers have been conferred upon the Tribunal, whereas no power of execution was given to the Tribunal when the main provision of adjudication received assent of President. Section 27A, which has been inserted subsequently, cannot be held to be ultra vires only for the reason that it has not independently received assent of the President. Section 27A has been purposely engrafted into the Act of 1989 by subsequent amendment owing to the fact that Tribunal did not have the power to enforce its order and this Court was flooded with number of writ petitions seeking issuance of writ of mandamus on the government and/or the concerned educational institution to execute the orders of the Tribunal. 13. Contention that since Section 27A has not received assent of the President, whereas the main Act of 1989 did receive such assent, therefore, this newly introduced provision being repugnant to the provisions of Rajasthan Civil Court Ordinance, 1949 or CPC should be declared illegal and ultra vires of the Constitution, cannot be accepted because this argument proceeds on the assumption of repugnancy between the Act of 1989 and that of CPC or Ordinance of 1949, which in our view, does not exist. 14. For deciding the question of repugnancy, we have to find out as to for what purpose, the original enactment was reserved for assent of the President. In the present case, the assent of the President had to be obtained in view of Sections 19, 20, 21, 22 and 23 of the Act of 1989 because those provisions created a separate adjudicatory mechanism out of CPC in so far as the disputes covered under the Act of 1989 are concerned, by creating a bar for maintainability of such suit before the civil court under Section 27 of the Act. Section 9 of the Code of Civil Procedure provides that the Courts subject to provisions contained therein shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. This is where Section 27 of the Act of 1989 comes into effect which bars jurisdiction of the civil courts. Effect of Section 27A introduced by way of amendment is that power which had been taken away from the civil courts though for adjudication purpose and conferred upon the Rajsthan Non-Government Education Institution Tribunal established under Section 22 with the assent of the President would continue to vest in such Tribunal, but the power to execute and enforce the orders passed by the said Tribunal have thereby been conferred upon the Civil Court Junior Division. But for the bar created in Section 27 of the Act of 1989, the power for adjudication as well as execution of the decrees would rest with the civil courts. Now with the newly inserted Section 27A, adjudicatory power being kept intact, power of execution has come to be vested again in the civil court. The purpose behind this is that civil courts have got a complete set of procedure and mechanism and also paraphernalia to execute the orders of the Tribunal, which have been in this amended provision deemed to be decree of such courts. Therefore, there does not in our view arise any question of repugnancy, inconsistency or incompatibility. 17. Even if, therefore, it is held that in this case, both Parliament and the State Legislature derived their power to enact from entry 13 read with 46 of the concurrent list, there does not arise any question of repugnancy in the facts of the present case because Section 27A can co-exist and operate independently without repugnancy with the provisions of the existing law namely CPC for the reason that in so far as adjudicatory powers are concerned, the Act of 1989 had already received the assent of the President and that there is no clear and direct inconsistency between the Central and State Act and further that such inconsistency is not such which is irreconcilable or brings the State Act in direct conflict with the Central Act or brings about a situation where obeying one would lead to dis-obeying the other. The argument of the learned counsel for the petitioner with regard to repugnancy is also therefore rejected.";