Appeal No 2854 of 1993
From the Judgment and Order dated 641992 of the Karnataka High Court in RSA No 534 of 1990
SD Bajaj and P Mahale for the Appellants
Ms Kiran Suri for the Respondent
The Judgment of the Court was delivered by VENKATACHALA J
We grant Special Leave
Since we heard learned counsel for parties on the merits of the appeal
we are finally deciding it
An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands comprised in Survey No 242A and Survey No 342B of Kubihal Village in Kundgol Taluk of Dharwad District
They are the disputed lands in this appeal
The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act 1874 known as Watan Act
Basappa Bheemappa who was the Watandar of the disputed lands leased them in the year 1950 in favour of appellant 1 and father of appellant 2 for their personal cultivation
With the coming into force on 25th January 1951 of the Bombay Paragana and Kulkarni Watans Abolition Act 1950 known s the Watan Abolition Act all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans
But there was a right conferred under the Watan Act on every Watandar the holder of the 782 Watan land to obtain its regrant subject to payment of occupancy price
After the resumption of the disputed lands by the State of Bombay under the Watan Abolition Act Basappa Bheemappa claiming to be their former holder applied for the irregrant before the Assistant Commissioner
Savannah as by then Dharwad District where the disputed lands were located had come to Karnataka State from Bombay State by reason of the reorganisation of States under the 
Thereafter by his Order dated 30th November 1968 the Deputy Commissioner of Dharwad District made the regrant of disputed lands resumed Watan lands in favour of their former Watandar Basappa Bheemappa
The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural lands Act 1948 the BT  Al Act from the time Bassppa Bheemappa as their Watandar had leased them in favour of appellant 1 and father of appellant 2 in the year 1950 the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan Abolition Act did not entitle him to obtain possession of them except under the BT  AL Act
Although the Karnataka Land Reforms Act 1961 the KLR Act which came into force in Karnataka on 2101965 repealed by its section 141 the Watan Abolition Act and by its section 143 the BT  A L Act 1948 nothing thereunder adversely affected the rights of the appellants  tenancy in the disputed lands
However the said Basappa Bheemappa sold the disputed lands in favour of their tenants the appellant 1 and father of appellant 2 on 3 1st March 1969 under a registered sale deed
The land Tribunal under the KLR Act before which the appellants sought registration of their occupancy rights in the disputed lands found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlord regrade Basappa Bheemappa
But on 8th December 1976 the respondent filed a suit in the Court of Munsiff at Kundogol against his eldest brother Basappa Beemappa the seller of the disputed lands and two other brothers arraying them as defendants 1 to 3
That was a suit for partition of 14th share in the disputed lands and putting him ink separate possession of that share
His claim for partition and separate possession of his share in the disputed lands was based on the plea that the sale deed dated 31st March 1969 by which defendant 1 his eldest brother had sold the disputed lands joint family lands in favour of the tenants without the prior consent of his brothers and for no legal necessity of the family was void ab initio
The impleaded in that suit appellants 1 and 2 as defendants 4 and 5 since they were in possession of the disputed lands
Defendants 1 4 and 5 resisted the plaintiff s claim for 783 partition and separate possession of his 14th share in the disputed lands urging inter alia that he had no right to get any share in them
After trial of the suit the Munsiff Court ranted a decree in favour of the respondent
That decree of the Munsiff Court was based on its findings i that the disputed lands were Hindu joint family properties of the plaintiff and defendants 1 to 3 ii that the sale of the disputed lands in favour of defendant 4 and father of defendant 5 had since been made by defendant 1 without the consent of his brothers the plaintiff and defendants 2 and 3 and without legal necessity of the family the same was void ab initio iii that the plea of defendants 1 4 and 5 that the tenancy revived if the sale by defendant 1 in favour of defendant 4 and father of defendant 5 was found to be vs  d was unacceptable  and iv that the sale by defendant  in favour of defendant 4 and father of defendant 5 of the disputed lands was also void since sale of them Fragments was prohibited under the provision
1 of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act 1966 the Karnataka Prevention of Fragmentation Act
However defendants 4 and 5 challenged the correctness of the decree of the Munsiff Court by filing an appeal before the Court of the Civil Judge at Hubli
In that appeal the Court of the Civil Judge held that the sale deed date 3 1st March 1969 by which defendants had sold the disputed lands was void because of the provisions of the Karnataka Prevention of Fragmentation Act prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant 1 and claim his share in the disputed lands
Accordingly it dismissed the appeal
A Regular Second Appeal filed by defendants 4and 5 before the High Court of Karnataka against the decree of the Civil Judge s Court affirming the decree of the Munsiff s Court was dismissed in limine
It is those decrees which are impugnned by defendants 4 and 5 in the present appeal by Special Leave
Shri Padmanabha Mahale the learned counsel for the appellants contended that the Courts below ought to have held that the agricultural tenancy of the appellants in respect of the disputed lands revived when according to them sale of the disputed lands by defendant 1 in favour of defendants 4 and 5 appellants 1 and 2 was ab initio void either i because the sale was of the joint family lands effected by the eldest brother in the family without the consent of the other brothers and for no legal necessity or ii because the sale was effected when such a sale was prohibited under the provisions of the Karnataka Prevention of Fragmentation Act
Had it been so held it was argued there would not have been scope for the 784 Munsiff Court to have made a decree in favour of the respondent for partition of his 14th share in the disputed lands and putting him in possession thereof to the extent of such share and granting him mesne profits and that decree to have been affirmed by the Appellate Court
On the other hand Mrs Kiran Surj the learned counsel for the respondent submitted that the tenancy or lease hold rights in the disputed lands held by the appellants got merged in the sale effected in their favour by defendant 1 on 31st March 1969
That sale when was found to be void by the Courts below such finding did not have the effect of reviving the marked tenancy of the appellants as would restore their tenancy rights in the disputed lands
This appeal was therefore liable to be dismissed
The Court of Munsiff the Trial Court and the Court of Civil Judge the First Appellant Court have recorded a concurrent finding that the sale by defendant 1 in favour of defendant 4 and father of defendant 5 of the disputed lands by registered sale deed dated 3 1 st March 1969 was void ab initio that being a sale prohibited under the provisions of the Karnataka Prevention of Fragmentation Act
Besides the Trial Court has recorded a finding that the said sale deed was void on its view that the 34th share of the plaintiff and defendants 2 and 3 in the disputed lands belonging to there joint family had been sold by their eldest brother defendant 1 without their consent and when there was no legal necessity of the family for such sale
The Trial Court has accordingly made the decree in the suit in favour of the plaintiff and that decree is affirmed by the Appellate Court because of the said findings recorded by them
The Second Appeal filed before the High Court by defendants 4 and 5 has been dismissed in limine
That the sale deed dated3 1st March 1969 if is void being a prohibited sale under the provisions of the Karnataka Prevention of Fragmentation Act as is held by the Court of Munsiff and also the Court of Civil Judge the consequence contained in sub section 3 of section 39 of that Act should have followed that is Any person unauthorisedly occupying or wrongfully in possession of any land the transfer or partition of which is void under the provisions of this Act may be summarily evicted by the Deputy Commissioner and after such eviction such land shall be deemed to 785 be in the possession of the person lawfully entitled to such possession
In the instant case the tenants on the lands defendants 4 and 5 being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof the Court below ought to have seen that the partition decree sought for by the plaintiff respondent here could have been ranted in respect of such tenanted lands only if the same was permissible in law and not otherwise
The other finding of the Courts below is that the sale deed dated 31st March 1969 was void because defendant 1 could not have sold the undivided interest of his brothers the plaintiff respondent here and defendants 2 and 3 in the disputed lands being their joint family properties without their consent and without the legal necessity of the family
If that be so defendant 1 had to be regarded as having sold in favour of defendant 4 and father of defendant 5 under sale deed dated 31st March 1969 only his 14th undivided interest in the disputed lands and not
34th of the undivided interest of the plaintiff and defendants 2 and 3
That means that the lessors  entire interest or entire reversion in the disputed lands cannot be regarded as having been sold under the sale deed of 31st March 1969
From this it following that the lease hold interests of defendant 4 and father of defendant 5 in the disputed lands and lessors  entire reversion could not have merged in one and some person
so as to constitute merger envisaged under section 111 d of the  in that for constituting merger under that provision the interests of the lessee and the interests of the lessor in the whole of the property
had to vest at the same time in one person in the same right
Thus on the basis of the finding of the Courts below if it has to be held that defendant 1 had not sold the undivided interest of the plaintiff and defendants 2 and 3 in the disputed lands to the extent of their 34th share there could not have been any merger of tenancy rights of defendant 4 and father of defendant 5 in the disputed lands with that of lessors landlords whole rights
If so tenancy rights of the appellants in the disputed lands ought to be regarded as not affected or disturbed by the sale deed of 31st March 1969
Hence consideration of the question whether there arose revival of the right of tenancy of the appellants in the disputed lands is unnecessary In the result we allow this appeal set aside the judgments and decrees of the Courts below and remit the case to the Court of Munsiff at Kundgol Dharwad 786 District of Karnataka State with a direction to it to take back the suit on to its file and decide after affording the parties an opportunity of hearing the question whether the plaintiff would be entitled to the decree sought for in the suit if the disputed lands had continued as tenanted lands as found by us
No costs
UR Appeal allowed


Summary:
By a letter dated December 26 1991 addressed to the Chief Justice of India the petitioner Editor Excise Law Times complained that ever since the retirement of president of the Customs Excise and Gold control Appellate Tribunal CEGAT in 1985 no appointment of President was made as a result of which the functioning of the Tribunal was adversely affected
He also alleged malfunctioning in the CEGAT and sought directions for immediate appointment of the President as well as an enquiry into the mal functioning of CEGAT
The letter was treated as a Writ Petition in public interest litigation and on February 251992 this Court issued Rule Nisi to Union of India to make immediate appointment of the President of CEGAT preferably a senior High Court Judge
After the directions were issued by this Court Respondent No 3 who was initially appointed as judicial Member and subsequently as Senior Vice President of the Tribunal was appointed as President
The petitioner filed another petition challenging the appointment of President and sought to quash the same on the grounds that 1 the appointment was in breach of judicial order passed by this Court on February 25 1992 because as per the convention a sitting or retired Judge of the High Court should have been appointed as President in consultation with the Chief Justice of India even though High Court Judges were available no serious attempt was made to requisition the services of one of them for appointment as President 2 before the Act was made a positive commitment was made time and again by the Government on the floor of the House that judicial independence of CEGAT is sine qua non to sustain the confidence of the 804 litigant public
The appointment of any person other than sitting or a retired judge of the High Court as President would be in its breach and 3 the appointment of Respondent No 3 as a Judge of the Delhi High Court was turned down by Chief Justice of India doubting his integrity therefore appointment of such a person as President of CEGAT would undermine the confidence of the litigant public in the efficacy of judicial adjudication
even though Rules may permit such appointment
The petitioner also prayed that Rules 1013 and 4 of the CEGAT Members Recruitment and Conditions of Service Rules 1987 should be struck down as violative of Article 43 of the Constitution
the rules were ultra vires of the basic structure of the Constitution namely independence of Judiciary
On May 41992 this Court issued Rule Nisi and on the next date of bearing the relevant rile on which decision regarding the appointment of President was made produced in the Court but on behalf of the Union of India an objection was taken by the Additional Solicitor General that this Court cannot inspect the rile as he intended to claim privilege
Accordingly pursuant to the directions given by this Court that a formal application may be made setting out the grounds on which the claim for privilege was founded the Finance Secretary and the Minister of State for Finance filed affidavits claiming privilege under Sections 123 and 124 of the and Article 74 2 of the Constitution stating that the Government had no objection for the Court to peruse the rile but claimed privilege to disclose the contents of the rile to the petitioner
On behalf of the Union of India it was contended that a Cabinet SubCommittee approved the appointment of Respondent No 3 as President of CEGAT and by operation of Article 773 and 741 the appointment was made by the President
The rile constitutes Cabinet documents forming part of the preparation if the documents leading to the formation of the advice tendered to the President
Section 123 of the Evidence Act and Article 74 2 precluded this Court from enquiring into the nature of the advice tendered to the President and the documents were therefore immune from disclosure
The disclosure would cause public injury preventing candid and frank discussion and expression of views by the bureaucrats at higher level and by the MinisterCabinet Sub Committee causing serious injury to public service
On behalf of Respondent No3 it was contended that 1 he had an excellent and impeccable record of service without any adverse remarks and dropping of his recommendation for appointment as a Judge of Delhi High 805 Court could not be construed adverse to him 2 the Government had prerogative to appoint any member or Vice Chairman or Senior Vice President as President and Respondent No3 being the Senior Vice President was considered and recommended by the Cabinet Committee for appointment
Hence he was validly appointed as President
Disposing the petitions this Court HELD Per Ramaswamy J 1The claim in the affidavits of the State Minister for Finance and the Secretary for immunity of state documents from disclosure is unsustainable
However having perused the file and given anxious considerationsthe Court is of the view that on the facts and circumstances of the case and in the light of the view taken it is not necessary to disclose the contents of the records to the petitioner or his counsel
11Section 123 of the Evidence Act gives right to the Government to claim privilege in other words immunity from disclosure of the unpublished official state documents in public interest
The initial claim for immunity should be made through an affidavit generally by the Minister concerned in his absence by the Secretary of the department or head of the Department indicating that the documents in question have been carefully read and considered and the deponent has been satisfied supported by reasons or grounds valid and germance as to why it is apprehended that public interest would be injured by disclosure of the document summoned or called for
The claim for immunity should never he on administrative routine nor be a garb to avoid in convenience embarrassment or adverse to its defence in the action the latter themselves a ground for disclosure
12When a claim for public interest immunity has been laid for nondisclosure of the State documents it is the Minister s due discharge of duty to state on oath in his affidavit the grounds on which and the reasons for which he has been persuaded to claim public interest immunity from disclosure of the State papers and produce them
He takes grave risk on insistence of oath of secrecy to avoid filing an affidavit or production of State documents and the Court may be constrained to draw such inferences as are available at law
Accordingly the oath of office of secrecy adumbrated in Article 754 and Schedule III of the Constitution does not absolve the Minister either to state the reasons in support of the public interest immunity to produce the State documents or as to how the matter was dealt with or for their production when discovery order nisi or rule nisi was issued
On the other hand it is his due 806 discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the Government
Attorney General vs Jonathan Cape Ltd  Sankey vs Whitlan and Whitlam vs Australian Consolidated Press  referred to
If the Court is satisfied from the affidavit and the reasons assigned for withholding production or disclosure the Court may pass an appropriate order in that behalf If the Court still desired to peruse the record for satisfying itself whether the reasons assigned in the affidavit would justify withholding disclosure the court would in camera examine the record and satisfy itself whether the public interest subserves withholding production or disclosure or making the documents as part of the record
By operation of Section 162 of Evidence Act the final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the Court
The Court is not bound by the statement made by the Minister or the Head of the Department in the affidavit and it retains the power to balance the injury to the State or the public service against the risk of injustice
The real question which the Court is required to consider is whether public interest is so strong to override the ordinary right and interest of the litigant that he shall he able to lay before a Court of justice the relevant evidence
In balancing the competing interests it is the duty of the court to see that there is the public interest that harm shall not be done to the nation or the public service by disclosure of the document and there is a public interest that the administration of justice shall not be frustrated by withholding documents which must he produced if justice is to be done
The basic question to which the court would therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or the public service and if so whether the public interest in its non disclosure is so strong that it must prevail over the private interest in the administration of justice and on that account it should not be allowed to be disclosed
State of UP vs Raj Narain  Ors  SP Gupta Ors
807 etc
vs Union of India  Ors etc
etc 1982 2 SCR 365 relied on
Conway vs Rimmer   D vs National Society for the Prevention of Cruelty to Children 1978 AC 171 HL Burmah Oil Co Ltd vs Governor and Company of the Bank of England   Butters Gas and Oil Co vs Hammer  Air Canada vs Secretary of State for Trade  Council of Civil Service Unions vs Minister for the Civil Service  United State vs Reynolds   Environmental Agency vs Pats T Mink  35 L Ed
2nd 11 9 Newyond Times vs US   US vs Richard M Nixon    1035 Robindon vs State of South Australia  Shankey vs Whitlan   FAI Insurances Ltd vs The Hon Sir Henn Arthur Winneke and Ors   Whitlan vs Australian Consolidated Press Ltd  Minister for Arts Heritage and Environment and Ors
vs Peko Wallsend Ltd and Ors
 Commonwealth of Australia vs Northern Land Council and Anr  R vs Shinder Gagnon vs Ouebec Securities Commission  Bruce vs Waldron  Re Tunstall exhibit
P Brown 19661 84 WN Pt2 NSW Corbett vs Social Security Commission  Greednz Inc vs Governor General Apponhamy vs Illangarutute 1964 66 CLW 17 Jamaica in Allen vs Byfields No2 1964 7 WIR69 and Scotland in Glasgow Corporation vs Central Land Board 1956 Scotland Law Time 4 referred to
Mecormic on Evidence 4th Edn
by John w Strong referred to
17Every communication which proceeded from one of ricer of the State to another or the officers inter se does not necessarily per se relate to the affairs of the State
Whether they so relate has got to be determined by reference to the nature of the consideration the level at which it was considered the contents of the document or class to which it relates to and their indelible impact on public administration or public service and administration of justice itself
The power to issue discovery order nisi  is express as well as inherent as an integral power of judicial review and process in the Court to secure the attendance of any person or discovery or production of any document or to order investigation in that behalf
However in an appropriate case depend 808 ing on facts on hand
Court may adopt such other procedure as would be warranted
The petitioner must make a strong prima facie case to order discovery order nisi etc
and it must not be a haunting expedition to fish out some facts or an attempt to cause embarrassment to the respondents nor for publicity
But on issuance of rule nisi by this Court under Article 32 or a discovery order nisi the Government or any authority constitutional civil judicial statutory or otherwise or any person must produce the record in their custody and disobedience thereof would be at the pain of contempt
The Cabinet known as Council of Ministers headed by Prime Minister under Article 75 3 is the driving and steering body responsible for the governance of the country
Collective responsibility under Article 753 of the Constitution inheres maintenance of confidentiality as enjoined in oaths of office and of secrecy set forth in Schedule III of the Constitution that the Minister will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under his consideration or shall become known to him as Minister except as may be required for the due discharge of his duty as Minister 
The base and basic postulate of its significance is unexceptionable
But the need for and effect of confidentiality has to be nurtured not merely from political imperatives of collective responsibility envisaged by Article 753 but also from its pragmatism
Satwant Singh Sawhney vs D Ramarathnam Asstt
Passport Officer  Magnbhai Ishwarbhai Patel vs Union of India and Anr   Shamsher Singh vs State of Punjab   Rai Sabhib Ram Jawaya Kapur  Ors
vs State of Punjab and Commonwealth of Australia vs Northern Land Council  Anr  referred to
Sir Ivor Jennings Cabinet Government Patrick Gordon Walker The Cabinet 1973 Revised Ed
P 178 John P Mackintosh The British Cabinet 2nd Edn p1 1 0 Hood Phillips and Paul Jackson Constitutional and Administrative Law 7th Edn
P 301 Walker The Cabinet p 183 Halsbury Laws of England 4th Edn
8 para 820 Bagehot and The English Constitution 1964 Edn referred to
The Court would be willing to respond to the executive public interest immunity to disclose certain documents where national security or high policy high sensitivity is involved
Information relating to national security diplomatic relations internal security or sensitive diplomatic corre 809 spondence per se are class documents and that public interest demands total immunity from disclosure
Even the slightest divulgence would endanger the lives of the personnel engaged in the services etc
The maxim Salvs Populs Cast Suprema Lax which means that regard for public welfare is the highest law is the basic postulate for this immunity
Asiatic Petroleum vs Anglo Persian oil  Duncan vs Cammell Laird 1942 AC 624 Council of Civil Service Union vs Minister for Civil Service and Mark Hosemball R vs Home Secretary exparte Hosenball  referred to
But it would be going too far to lay down that no document in any particular class or one of the categories of Cabinet papers or decisions or contents thereof should never in any circumstances be ordered to he produced
Robinson vs State of South Australia  SP Gupta vs Union of India  Ors 1982 2 SCR 365 State of U P vs Raj Narain  Ors 1975 2 SCR333 Conway vs Rimmerl968AC910 HLBurmah Oil Co Ltd vs Governor and Company of the Bank of England   Reg
vs Lewes Justices Ex Parte Secretary of State for the Home Department and D V National Society for the Prevention of Cruelty to Children   Air Canada vs Secretary of State for Trade 1983 2 AC 394 HL Shankey vs Whitlan 1979 53 ALR 1 Harbour Corp of Queensland vs Vessey Chemicals Pvt Ltd  Manthal Australia Pvt Ltd vs Minister for Industry Technology and Commerce  Koowarta vs Bjelke Petersen  United States vs Richard M Nixon  Lawyers Ed
2nd Ed 1039 Attorney General vs Jonathan Cape Ltd  Minister for Arts Heritage and Environment and Ors
vs Pekowallsend Ltd and Ors 1987 75 ALR 218 Commonwealth of Australia vs Northern Land Council and Anr  Australian Community Party  Ors
vs Commonwealth  Ors
  and Queen vs Tohey   referred to
Undoubtedly the Prime Minister is enjoined under Article 78 to communicate to the President all decisions of the Council of Minister relating to the administration of the affairs of the Union and proposals for legislation and to furnish such information relating to the administration or reconsideration by the Council of Minister if the President so requires and submit its 810 decisions thereafter to the President
That by itself is not conclusive and does not get blanket public interest immunity from disclosure
The Council of Ministers though shall be collectively responsible to the House of the people their acts are subject to the Constitution Rule of law and judicial review are parts of the scheme of the Constitution as basic structure and judicial review is entrusted to this Court High court under Article 226
331The communication of cabinet decisions or policy to the President under Article 741 gives only limited protection by Article 742 of judicial review of the actual tendered to the President of India
The rest of the file and all the records forming part thereof are open to in camera inspection by this Court
Each case must be considered on its own facts and surrounding scenario and decision taken thereon
Jyoti Prakash Mitter vs Chief Justice Calcutta High Court  and Union of India vs Jyoti Prakash   referred to
332Article 742 is not a total bar for production of the records
Only the actual advice tendered by the Minister or Council of Ministers to the President and the question whether any and if so what advice was tendered by the Minister or Council of Ministers to the President shall not be enquired into by the Court
In other words the bar of judicial review is confined to the factum of advice its extent ambit and scope but not the record ie the material on which the advice is founded
SP Gupta vs Union of India  Ors 1982 2 SCR 365 referred to
4Judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to made or the procedure adopted whether fair just and reasonable
Exercise of Judicial Review is to protect the citizen from the abuse of the power etc
by an appropriate Government or department etc
In Court s considered view granting the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely
When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice President or President of Tribunal this Court cannot sit over the choice of the selection but it be left to the executive to select the personnel as per law or procedure in this behalf
Shri Kumar Padma Prasad vs Union of India  Ors  811 distinguished
In service jurisprudence it is settled law that it is for the aggrieved person ie non appointee to assail the legality of the offending action
Third party has not locus standi to canvass the legality or correctness of the action
Only public law declaration would be made at the behest of the petitioner a public spirited person
Therefore the contention that there was need to evaluate the comparative merits of Respondent and the senior most Member for appointment as President would not be gone into in a public interest litigation
Only in a proceedings initiated by an aggrieved person it may be open to be considered
It is expedient to have a sitting or retired senior Judge or retired Chief Justice of a High Court to be the President
The rules need amendment immediately
Government had created a healthy convention of providing that the Tribunals will be headed by a President who will be a sitting or a retired judge of the High Court This Court to elongate the above objective directed the Government to show whether the convention is being followed in appointment of the President of CEGAT and further directed to consider appointment of a Senior Judge or a retired Chief Justice of the High Court as it President Admittedly Chief Justice of India was not consulted before appointing Respondent No3 as President of CEGAT The solemn assurance given to the Parliament that the Tribunal bears a judicious blend by appointment of a High Court Judge as President was given a go bye
61While making statutory rules the executive appears to have made the appointment of a sitting or retired High Court Judge as President unattractive and Directly frustrating the legislative animation
A sitting Judge when he is entitled to continue in his office upto 62 years would not he willing to opt to serve as President if his superannuation as President is co terminus with 62 years
He would he attracted only if he is given extended three years more tenure after his superannuation
But Rule 10 3 says that the total period of the enure of the President by a sitting or retired Judge is a period of three years or till he attains the age of 62 years whichever is earlier  ie co terminus with superannuation as a Judge of the High Court
The proviso is only discretionary at the whim of the executive depleting independence and is an exception to the rule
Thereby practically the spirit of the Act the solemn assurance given by the Government to the Parliament kindling hope in the litigant public to have a sitting or a retired Judge appointed as President has been frustrated deflecting the appointment of a 812 judicially trained judge to exercise judicial review
Court is constrained to observe that the rules though statutory were so made as to defeat the object of the Act
7There are persistent allegations against mal functioning of the CEGAT and against Respondent No 3 himself
Though this Court exercised self restraint to assume the role of an investigator to charter out the ills surfaced suffice to say that the Union Government cannot turn a blind eve to the persistent public demands and the Court directs to swing into action an indepth enquiry made expeditiously by an officer or team of officers to control the malfunctioning of the institution
It is expedient that the Government should immediately take action in the matter and have fresh look
The Tribunals set up under Articles 323A and 323B of the Constitution or under an Act of legislature are creatures of the Statute and in no case can claim the status as Judges of the High Court or parity or as substitutes
However the personnel appointed to hold the office under the State are called upon to discharge judicial or quasi judicial powers
So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional administrative and tax laws
The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication
It is therefore necessary that those who adjudicate upon these matters should have legal expertise judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision
MB Majumdar vs Union of India   Union of India vs Paras Laminates Ltd  Krishna Sahai  Ors
vs State of U P  Ors
   and Rajendra Singh Yadav  Orsv
State of UP  Ors 1990 2 SCC 763 referred to
81Equally the need for recruitment of members of the Bar to man the Tribunals as well as the working system by the Tribunals need fresh look and regular monitoring is necessary
An expert body like the Law Commission of India should make an in depth study in this behalf including the desirability of bringing CEGAT under the control of Law and Justice Department in line with Income tax Appellate Tribunal and make appropriate urgent recommendations to the Government of India who should take remedial steps by an 813 appropriate legislation to overcome the handicaps and difficulties and make the Tribunals effective and efficient instruments for making judicial review efficacious inexpensive and satisfactory
For inspiring confidence and trust in the litigant public they must have an assurance that the person deciding their causes is totally and completely free from the influence or pressure from the Government
To maintain independence imperativity it is necessary that the personnel should have at least modicum of legal training learning and experience
Selection of competent and proper people instill people s faith and trust in the office and help to build up reputation and acceptability
Judicial independence which is essential and imperative is secured and independent and impartial administration of justice is assured
Absence thereof only may get both law and procedure wronged and wrong headed views of the facts and may likely to give rise to nursing grievance of injustice Therefore functional fitness experience at the Bar and aptitudinal approach are fundamental for efficient judicial adjudication
Then only as repository of the confidence as its duty the Tribunal would properly and efficiently interpret the law and apply the law to the given set of facts
Absence thereof would be repugnant or derogatory to the Constitution
Union of India vs Sankal Chand Himatlal Sheth  Anr   referred to
Judicial review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary
It cannot be dispensed with by creating Tribunal under Articles 323A and 323B of the Constitution
Any institutional mechanism or authority in negation of judicial review is destructive of basic structure So long as the alternative institutional mechanism or authority set up by an Act is not less effective than the High Court it Ls consistent with constitutional scheme
The faith of the people is the bed rock on which the edifice of judicial review and efficacy of the adjudication are founded
The alternative arrangement must therefore be effective and efficient
Keshwanand Bharati vs Union of India  Waman Rao vs Union of India  Raghunathrao Ganpatrao vs Union of India   Krishna Swathi vs Union of India 1199214 SCC 605 SP Sampat Kumar vs Union of India  Ors  and JB Chopra vs Union of India  referred to
814 91
It is necessary tip express Court s anguish over the ineffectivity of the alternative mechanism devised for judicial review
The judicial review and remedy are fundamental rights of the citizens
The dispensation of justice by the Tribunals is much to be desires
Court is not doubting the ability of the members or Vice Chairman non judges who may be experts in their regular service
But judicial adjudication is a special process and would efficiency be administered by advocate Judges
The remedy of appeal by special leave under Article 136 to this Court also proves to be costly and prohibitive and far flung distance too is working as a constant constraint to litigant public who could ill afford to reach this Court
An appeal to a Bench of two Judges of the respective High Courts over the orders of the Tribunals within its territorial jurisdiction on questions of law would assuage a growing feeling of iNjustice of those who can ill afford to approach the Supreme Court
No one can suppose that the executive will never be guilty of the sins common to all people
Sometimes they may do things which they ought not to do or will not do things they ought to do
The Court must be alive to that possibility of the executive committing illegality in its process exercising its powers reaching a decision which no reasonable authority would have reached or otherwise abuse its powers etc
If the proceeding decision or order is influenced extraneous considerations which ought not to have been taken into account it cannot stand and needs correction no matter of the nature of the statutory body or status or stature of the constitutional functionary though might have acted in good faith
It is therefore the function of the Court to see that lawful authority is not abused
Under modern conditions of responsible Government Parliament should not always be relied on as a check on excess of power by the Council of Ministers or Minister
Though the Court would not substitute its views to that of the executive on matters of policy it is its undoubted power and duty to see that the executive exercises its power only for the purpose for which it is granted
It is the constitutional legitimate and lawful power and duty of this Court to ensure that powers constitutional statutory or executive are exercised in accordance with the Constitution and the law
This may demand though no doubt only in limited number of cases Yet the in networkings of government may be exposed to public gaze
Per Ahmadi J For himself and Punchhi J Concurring 1
This Court cannot sit in judgment over the wisdom of the Central 815 Government in the choice of the person to be appointed as a President so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment
Respondent No 3 was a Senior Vice President when the question of filling up the vacancy of the President came up for consideration
He was fully qualified for the post under the Rules
No challenge is made on that count
Under Rule 10 1 the Central Government is conferred the power to appoint one of the Members to be the President
Since the validity of the Rule is not questioned there can be no doubt that the Central Government was entitled to appoint Respondent No 3 as President
This Court cannot interfere with the appointment of Respondent No 3 on the ground that his track record was poor or because of adverse reports on which account his appointment as a High Court Judge had not materialised
Assuming that the allegations against Respondent No 3 are factually accurate this Court cannot sit in judgment over the choice of the person made by the Central Government over the choice of the person made by the Central Government for appointment as a President if the person chosen is qualified and eligible for appointment under the Rules
However to instill the confidence of the litigating public in the CEGAT the Government must make a sincere effort to appoint a sitting Judge of the High Court as a President of the CEGAT in consultation with the Chief justice of India and if a sitting Judge is not available the choice must fall on a retired Judge as far as possible
Sub rule 4 of Rule 10 of the CEGAT Members Recruitment and Conditions of Service Rules 1987 needs a suitable change to make it sufficiently attractive for sitting High Court judges to accept appointment as the President of the CEGAT
The rules empower the Central Government to appoint any member as the President of the CEGAT
It is true that under subrule 4 a serving Judge and under the proviso thereto a retired Judge can also be appointed a Member and President simultaneously
In the case of a serving Judge his age of superannuation is fixed at 62 years but in the case of the retired Judge he may be appointed for a period of three years at the most
Insofar as a service High Court Judge is concerned he holds office until he attains the age of 62 years vide Article 217 of Constitution
It therefore beats common sense why a sifting Judge of tile High Court would opt to serve as the President of the CEGAT if he is to retire at the same age without any benefit
On the contrary he would lose certain 816 perks which are attached to the office of a High Court Judge
Even status wise he would suffer as his decisions would he subject to the writ jurisdiction of the High Court under Article 226227 of the Constitution
He may agree to accept the offer only if he had an extended tenure of at least three years
The allegations made by Petitioner in regard to the working the CEGAT are grave and the authorities can ill aford to turn a Nelson s eye to those allegations made by a person who is fairly well conversant with the internal working of the Tribunal
Refusal to inquire into such grave allegations some of which are capable of verification can only betrays indifference and lack of a sense of urgency to tone up the working of the Tribunal
It is high time that the administrative machinery which is charged with the duty to supervise the working of the CEGAT wakes up from its slumber and initiates prompt action to examine the allegations by appointing a high level team which would immediately inspect the CEGAT identify the causes for the crises and suggest remedial measures
This cannot brook delay
The time is ripe for taking stock of the working of the various Tribunals set up in the country after the insertion of Articles 323A and 323B in the Constitution
A sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law
An independent and impartial justice delivery system in which the litigating public has faith and confidence alone can deliver the goods
After the incorporation of these two articles Acts have been enacted where under Tribunals have been constituted for dispensation of justice
Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they have served the purpose and objectives for which they were constituted
Complaints have been heard in regard to the functioning of other Tribunals as well and it is time that a body like the Law Commission of India ha a comprehensive look in with a view to suggesting measures for their improved functioning
That body can also suggest changes in the different statutes and evolve a model on the basis where of Tribunals may be constituted or reconstituted with a view to ensuring greater independence
An intensive and extensive study needs to be undertaken by the Law Commission in regard to the constitution of Tribunals under various statutes with a view to ensuring their independence so that the public confidence in such Tribunals may increase and the quality of their performance may improve
It is strongly recommended to the Commission of India to undertake such an exercise 817 on priority basis
On the facts of the case it is not necessary to disclose the contents of the records to the petitioner or his counsel