CHANDRA BHAN Vs. DEPUTY DIRECTOR OF CONSOLIDATION GORAKHPUR

JUDGEMENT

(1.) -This review petition has been preferred on behalf of the State of U. P. seeking reconsideration of certain points considered and decided by this Court by means of judgment and order dated December 13, 2005.

(2.) AFTER the review petition had been filed by the State on 24.3.2006 alongwith an accompanying application to condone the delay, the same was presented before the Court on 18.5.2006 alongwith office report dated 17.5.2006 on which date learned standing counsel prayed for adjournment on the ground that learned Advocate General would appear to argue the case. On the request aforesaid the case was adjourned to 22.5.2006 on which date on further request made by learned standing counsel, the case was adjourned to 25.5.2006. Learned advocate general was heard on 25.5.2006 but on his request, the case was adjourned to 14th July, 2006. On 14.7.2006, the case was directed to be put up on 17.7.2006 on the request made by learned standing counsel. On 17.7.2006, Chairman Board of Revenue appeared in person and prayed for permission to seek clarification and also to discuss the nitty gritty of the consequences flowing from the main decision aforesaid. Thereafter, on 28.7.2006, judgment was reserved in the review petition. On 2.8.2006, learned advocate general appeared and prayed for rehearing of the matter on certain points claiming the same to be of pivotal significance and in deference to the request, the matter was directed to be put up on 3.8.2006. On 3.8.2006, the learned advocate general stated across the bar that the matter was under active consideration of the Government and on this ground sought adjournment and again in deference to the request, the case was directed to be put up on 18.8.2006. On 18.8.2006, again the case was adjourned to 11th September, 2006 on the request of learned Advocate General. Thereafter, the matter stood de-listed and has come up today for hearing.

(3.) THE second ground urged on behalf of the State is that State of U. P. by a Government order dated 29th September, 1967 has already taken a decision for separation of judiciary from executive and further urged that by this Government order, judicial officer who were then had the appellation "Additional District Magistrate (Judicial)" and were earlier members of Judicial Officers Services were included in a separate judicial cadre under the policy of separation of judiciary from executive but all the suits and proceedings under the U.P.Z.A. and L.R. Act were transferred to S.D.Os. THE learned counsel further urged that the G.O. aforesaid was issued after eliciting the concurrence of the High Court in its administrative side vide reference at page 75 of the judgment of this Court. From a perusal of the aforesaid Government order particularly para 3 of the said G.O. it would crystallize that the High Court had merely concurred to create a separate judicial services comprising officers who were empowered to deal exclusively with the criminal works under the control of the High Court the necessary consequence of which was that revenue works pending before these judicial officers were transferred to S.D.Os. or Judicial Officers who were posted for revenue cases. It is significant to mention here that under this Government order, all the members belonging to earlier judicial officers services were included in a separate judicial service hedged with certain condition. It would further appear that this Government order was considered by a Division Bench of this Court in Dinesh Chand Srivastava v. State of U. P., AIR 1977 All 310, which matter journeyed upto the Apex Court and the decision of the Apex Court is in JT 1995 (1) SC 180. THE ratio flowing from the decision rendered by the Apex Court was that a separate judicial cadre could be created other than U. P. Civil Services (Judicial) and in view of the above, this Court following the ratio of the Apex Court issued mandamus to create a separate revenue judicial cadre. This Government order issued by the State Government does not confer any power on the State to act against the mandate of Article 50 of the Constitution. In my considered view, after coming into force the Constitution, that power cannot be taken away and conferred on such Administrative authorities who are neither equipped with qualification of law or have training for judicial work to deal with important issue like adjudication of title in land which is the very backbone of Indian economy. THEre is yet another aspect to be reckoned with and it is that all the land has already vested in the State by virtue of Section 4 of the U.P.Z.A. and L.R. Act and the State in turn has conferred different kind of rights on various tenure holders namely, bhumidhari, sirdari, asami rights or other rights. It appears that the State has not carefully gone through its own Government order dated 29th September, 1967 quoted in the main judgment of this Court dated 13.12.2005 by which accepting policy of separation of judiciary from executive, the State placed all judicial officers under the control of the High Court. THE State has further mentioned in the G.O. that revenue matters may be decided by the Sub-Divisional Officer, Deputy Collectors or such judicial officers obtained on deputation from the High Court from time to time for the purpose and the High Court agreed to lend service of judicial officers for revenue work vide D.O. letter dated 7th September, 1967. It was further mentioned in paragraph 4 that those judicial officers who will work and dispose of revenue cases on deputation from High Court will not be assigned any duties relating to maintenance of law and order.