Holding

Section 7’s appointment scheme, requiring consultation only for the Chairman, is constitutionally valid and the High Court’s directions for mandatory consultation for all members are set aside.

Summary

The State of Andhra Pradesh enacted the Land Grabbing (Prohibition) Act, 1982 which creates a Special Court consisting of a Chairman (a High Court judge) and four other members (two former District Judges and two former District Collectors). Section 7 of the Act allows the Government to appoint all members, requiring consultation with the Chief Justice of the High Court only for the Chairman. The respondents challenged the constitutionality of this appointment scheme, arguing that lack of consultation for the other members violated the independence required of tribunals under Articles 323A and 323B of the Constitution. The Andhra Pradesh High Court directed that all appointments, including those of the other members, must be made after consultation with the Chief Justice, and that existing appointments be placed before the Chief Justice for his opinion. On appeal, the Supreme Court held that the Act is within the State’s legislative competence and that Section 7’s limited consultation requirement does not render the Special Court unconstitutional, as judicial review under Articles 226, 227 and 32 remains available. Consequently, the High Court’s directions mandating consultation for all members were set aside. The appeals were allowed and the High Court order was vacated.

Issues considered

Whether Section 7 of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, which requires consultation with the Chief Justice of the High Court only for the Chairman, violates the Constitution’s requirement of independence for tribunals under Articles 323A and 323B.
Whether the High Court’s direction mandating consultation with the Chief Justice for the appointment of all members of the Special Court is constitutionally valid.
Whether the Act falls within the legislative competence of the State of Andhra Pradesh.

Legislation cited

Andhra Pradesh Land Grabbing (Prohibition) Act, 1982s. 7
Constitution of Indias. Article 226, s. Article 227, s. Article 233, s. Article 234, s. Article 235, s. Article 32, s. Article 323A, s. Article 323B

Subjects

Land Grabbing ActSpecial CourtTribunalAppointment of membersJudicial independenceConstitutional validityArticle 323BState legislationJudicial review

Judgment

STATE OF A.P. AND ORS. A
v.
K. MOHANLAL AND ANR.

MAY 14, 1998

[SUJATA V. MANOHAR, S. RAJENDRA BABU, JJ.] B

Service Law :

Andhra Pradesh Land Grabbing (Prohibition) Act, 1982-Section 7 -
Appointment of Judicial and Revenue Members-Whether consultation with C
the Chief Justice essential-Held, Not essential.

- Constitution ofIndia-Articles 32,226, 323A, 323B --A.P. Land Grabbing
(Prohibition) Act, 1982-Section 7-appointment of Members of Tribunal-
without consultation with High Court-Validity of -- upheld
D
The Respondents challenged the validity of the Andhra Pradesh Land
•- ~ Grabbing (Prohibition) Act, 1982 on the ground that the Act is not within
the legislative competence of the State that Section 7 of the Act is
unconstitutional in as much as the appointment of the members of the
Tribunal is not done in consultation with the Chief Justice of the concerned E
High Court and that the Constitution of such a Tribunal is unconstitutional.

The High Court though upheld the validity of the Act passed certain
directions as regards the appointment of the Judicial and Revenue Members
to the Tribunal. The High Court held that the State shall not make any
appointments without consultation with the Chief Justice of the concerned F
High Court.

-
On appeal, the Respondents contended that the members of a Tribunal
Constituted under Article 323B must enjoy the same degree of independence
and freedom from executive influence, as is enjoyed by the higher judiciary
because some of the jurisdiction of the judiciary is transferred to the Special G
Court or Tribunal and that ifthere is no consultation with the chief Justice
of the High Court in the appointments to the Special Court or Tribunal, this
independence will be effected.

Allowing the appeals, this Court held
I. It would not be correct to hold that because the members of the H
463
464 SUPREME COURT REPORTS [ 1998) 3 S. C.R.

A Special Court can be appointed by the Government without consulting the
Chief Justice of the State, the Special court is an unconstitutional court,
since its members do not enjoy the same degree of independence as the
members of the higher judiciary, especially when the Chairman's appointment
is in consultation with the Chief Justice of the State. Also, the remedy under
Articles 226 and 227 is available against the Orders of the Special Court.
B [469-BJ
L. Chandrakumarv. UO.I., (1997] 3 SCC 261 and S.P. Sampat Kumar
etc. etc. v. UO.!. and Ors., [1987] 1 SCC 124, referred to.

2. The authority to appoint, which is given to the Government under
C Section 7 of the Act of 1982 is upheld. A composite Tribunal consisting of
Judicial and Administrative Members may be constituted in the manner
prescribed by law. It may or may not enjoy the same degree of independence

-
as the higher judiciary of the country. Howsoever desirable that independence
may be, its abseuce will not per se, make the Tribunal unconstitutional since
its orders can be "corrected" by the higher judiciary. [469-E-F]
D L. Chandra Kumar v. U.0.1.and Ors., (1997] 3 SCC 261, referred to.
3. The power of judicial review which the High Court as well as this
Court exercises under Articles 226 and 227 in respect of the High Court
and Article 32 in respect of this Court has been looked upon as a safeguard
against improper functioning of such Tribunals. However, in the light of the
E express provision of Part XIV of the Constitution containing Articles 323
A and 323 B, it is incorrect to hol!J that the Tribunal are unconstitutional,
at least when the appointment of the Chairman of the Tribunal is in
consultation with/nomination by the Chief Justice of the High Court.
(470-E-F]
F 4. The High Court's directions for mandatory consultation with the
Chief Justice of the High Court in the case of appointment of all members
including Revenue Members of the Special Court, is not correct. The High
Court's direction that existing appointments made to the Special Court
should be placed before it for the opinion of the Chief Justice of the High
Court is also not correct. [470-G)
G CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2734-2735 of
1998

From the Judgment and Order dated 1.4.97 of the Andhra Pradesh High
Court in W.P. No. 25370 and 25683 of 1996. .

H Dipankar Gupta (A.C.) for the Appellants.
STATE v. K. MOHANLAL [SUJATA V. MANOHAR, J.] 465

1
Mrs. K. Amreshwari, Ms. Asha Nair, Ms. Shanti Narayan and K. Ram A
Kumar for the State.

P. Niroop for Harishankar K. for the respondents.

The Judgment of the Court was delivered by
B
MRS. SUJATA V. MANOHAR, J. Leave granted.

On 29th June, 1982 the State of Andhra Pradesh promulgated the Andhra
.....
Pradesh Land Grabbing (Prohibition) Ordinance, 1982. It was subsequently
replaced by the Andhra Pradesh Land Grabbing (Prohobition) Act, 1962. The
Act has since been amended twice -- once by Andhra Pradesh Act 16 of 1987 C
and again by Andhra Pradesh Act 6 of 1988.

- In 1996 a practising advocate filed a writ petition before the Andhra
Pradesh High Court challenginng the constitutional validity of the Andhra
Pradesh Land Grabbing (Prohibition) Act, 1982. One N. Vekatesh also
addressed a letter to the Chief Justice of the Andhra Pradesh High Court with D
a press clipping relating to the appointments to the Special Court constituted
under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, which was
treated as a writ petition. Both these petitions were heard together. By the
impugned judgment, the Andhra Pradesh Higil Court gave certain directions
which can be summarised as follows : E
(I) The State shall convey to the Registrar of the High Court all
material pertaining to the qualifications and ability/suitability
etc. of the existing incumbents both Judicial Members and
Revenue Members of the Special Court constituted under the
said Act forthwith : F
(2) The Registrar shall place the material so received before the
Chief Justice of the High Court and shall convey the orders of
the Chief Justice of the High Court in this behalf to the Chief
Secretary to the Governments :

(3) The State is restrained from making any appointments of Judicial 0
Members and Revenue Members without "the consutation in
respect of the selection of such Member/Members with the
Chief Justice of the High Court" ; and

(4) The State shall decide whether any incumbent Judicial member/
Reveune Member shall continue after receiving the opinion in H
466 SUPREME COURT REPORTS [1998] 3 S.C.R.

A this behalf of the Chief Justice of the High Court and such
t
incumbent shall cease to function in case opinion adverse to his
continance is conveyed to him.

The present appeals are filed from the above judgment and order.
-
The Statement of Objects and Reasons for the said Act states, "It was
B
come to the notice of the Government that there are organised attempts on
the part of certain lawless persons operating individually and in groups
tograb either by force or by deceit or otherwise lands belonging to the
Government, a local authority, a religious or charitable institution or
endownment, including a wakf or any other private persons. The land grabbers
C are froming bogus co-operative housing societies or setting up fictitious
claims and indulging in large scale and unprecedented and fraudulent sales
of land through unscrupulous real estate dealers or otherwise .... ". The Special
Court has been set up under the said Act to deal with such acts of land
grabbing.
-
D The challenge in the proceedings is to the constitutional validity of
Section 8 relating to the appointments to be made to the Special Court. The
relevant parts of Section 7, as it stands at present, are as follows :

"7. Constitution of Special Courts :- (I) The Government may, for the.
purpose of providing speedy enquiry intoany alleged act of land
E grabbing, and trial of cases in respect of the ownership and title to,
or lawful possession of, the land grabbed, by notification, constitute
a Special Court.

(2) A Special Court shall consist of a Chariman and four other members,
to be appointed by the Government.
F (3) The Chairman shall be a person who is or has been a Judge of a
High Court and of the other four members, two shall be persons who
are or have been District Judges (hereinafter referred to as Judicial
Members) and the other two members shall be persons who hold or
have held a post not below the rank of a District Collector (hereinafter
refered to as Revenue Members ):
G
Provided that the appointment of a person who was a Judge of
a High Court as the Chairman of the Special Court shall be made after
consultation with the Chief Justice of the High Court concerned;
Provided further that where a sitting Judge of a High Court is to be
H appointed as Chairman, such appointment shall be made after
STATE v. K. MOHANLAL [SUJATA V. MANOHAR, J.] 467
nomination by the Chief Justice of the High Court concerned, with the A
concurrence of the Chief Justice of India.

(4) ......................................... .

Articles 323B of the Constitution provided that the appropriate B
Legislature may, by law, provide for the adjudication or trial by Tribunal of
any dispute, complaint or offences in respect to all any of the matters specified
in Clause (2) with respect to which such legislature has a power to make the
laws. Clause (2)(d).refers, inter alia, to any rights in land or the extinguishment
or modification of any such rights. The Andhra Pradesh High Court has, C
therefore, rightly held that the Act which sets up a Special Court for land
grabbing cases, is within the legislative competence of the State Government.

The original petitioners had challenged the constitutional validity of
Section 7 relating to the Special Court. The Chairman of the Special Court is
required to be either a sitting or a retired Judge of a High Court. The proviso D
to Section 7(3) prescribes that the appointment of a person who was a Judge
of a High Court as Chairman of the Special Court shall be made after
consultation with the Chief Justice of the High Court concerned. It also
provides that when the Chairman is a sitting Judge, his appointment shall be
on nomination by the Chief Justice of the High Court concerned, with the
co.ncurrence of the Chief justice of India. It is, however, contended that in the E
case of other members, that is to say, two persons who are or have been
District Judges and two persons who hold or have held a post not below the
rank of a District Collector, there is no provision for consultation with the
Chief Justice of the High Court concerned. It is, therefore, contended that the
constitution of such a Tribunal is unconstitutional. It is contennded that the F
members of a Tribunal constituted under Article 323B must enjoy the same
degree of idnependence and freedom from executive influennce, as is enjoyed
by the higher judiciary because some of the jurisdiction of the judiciary is
transferred to the Special Court or Tribunal. If there is no consultation with
the Chief Justice of the High Court in the appointments to the Special Court
or Tribunal, this independence will be affected. G
Reliance is placed on certain observations of this Court in S.P. Sampat
Kumar etc. v. Union of India & Ors., [1987] 1 SCC 124. In S.P. Sampath .
Kumar, this Court at (page 144) observed,"Obviously, therefore, if the·
Administrative Tribunal is created in substitution of the High Court and the
jurisdicion of the High Court under Articles 226 and 227 is taken away and H
·-I_

468 SUPREME COURT REPORTS [1998] 3 S.C.R.

A vested in the Administrative Tribunal, the same independence from possibility
t
of a executive pressure or influence must also be ensred to the Chairman,
Vice-Chairman annd members of the Administratve Tribunal. Or else the
Administrative Tribunal would cease to be an equally effective and efficacious
substitute for the High Court and provisions of the impugned Act would be
-
B rendered invlaid." This Court was required to make these observations because
even the power of judicial review of the decisions of the Tribunal under
Articles 226, 227 and 32 of the Consitution was taken away under Article
223B(3)(d). But in the case of L.Chandra Kumar v. Union of India & Ors.,
[ 1997] 3 SCC 261, this Court has held that the power of judicial review vested
in the High Courts under Articles 226 and 227 and in the Supreme Court under
C Articles 32 of the Constitution, is an integral and essential feature of the
Constitution constituting a part of its basic structure. Therefore, the power
of judicial review cannot be ousted or excluded. This Court has accordingly
held Clause (3)(d) of Article 3238 to be unconstitutional. In other words, in
respect of the decisions of the Administrative Tribunals and/or Special Courts,
D the High Court's power of judicial review in respect of its decisions is now
expressly preserved as a basic feature of the Constitution under the above
judgment. The power of the High Court, therefore, to judicially review the ~_
decisions of the Special Court under the siad Act also remians.

If this so, then the observations in the case of S.P. Sampath Kumar
E (supra) to which our attention was drawn, will not now apply. Undoubtedly
it is highly desriable that Administrative Tribunals enjoy the same degree of
indepencence as judicial bodies, if the independence of the judiciary is not
to be diluted by creation of Tribunals that do not enjoy the same degree of
independence. Nevertheless, the power of judicial review granted under the
Constitution to the higher judiciary under Articles 226, 227 and 32 of the
F
Constitution is an important check on the malfunctioning of Tribunals. In this
context, in L. Chandra Kumar's case (at page 30 I) this Court has expressly
observed, "The constitutional safeguard which ensure the independence of
the Judges of the superior judiciary are not available to the Judges of the
subordinate judiciary or with those who man Tribunals created by ordinary
G legislations. Consequnetly, Judges of the later category can never be
considered full and effective substitutes for the superior judiciary in
discharging the function of consitutional interpretation .... We, therefore, hold
,.
...
that the power of judicial review over legislative action vested in the High
Court under Article 226 and in this Court under Article 32 of the Constitution
H is an integral and essential feature of the Constitution, consitituting part of
STATE v. K. MOHANLAL [SUJATA V. MANOHAR, J.] 469
its basic structure." A

- In the perspective of these observations, it would not be correct to hold
that because the Members of the Special Court, in the present case, can be
appointed by the Government without consulting the Chief Justice of the
Stage, the Special Court is an unconstitutional court, since its Members do
not enjoy the same degree of indepndence as the members of the higher B
judiciary, especially when the Chairman's appointment is in consultation with
the Chief Justice of the State. Also, the remedy under Articles 226 ans 227
is available against the orders of the Special Court.

Aritlces 233 of the Constitution also does not apply to the appointment C
of retired District Judges as Judicial members of the Special Court or to the
appointment of revenue members. In respect of a sitting District Judge,
however, appointment cannot be made by the Stage Government without
complying with Article 235. Under this Article the control over District Courts
and courts subordinate thereto, including posting and promotion and the
grant of leave to persons belonging to the judicial service of the State shall D
be vested in the High Court. A District Judge in the judicial service of the
State, therfore, cannot be appointed by the Government to the Special Court
without the consent of the High Court. This condition will have to be read
into Section 7 to make it valid. In respect of the retired Judges of the District
Courts and the Revenue Officers not below the rank of a District Collecter,
we do not see any reason why the authority to appoint, which is given to E
the Government under Section 7 of the said Act, cannot be upheld. A composite
Tribunal consisting of Judicial and Administrative Members may be consituted
in the manner prescribed by law. It may or may not enjoy the same degree
of independence as the higher judiciary of the country. Howsoever desirable
that independence may be, its absence will not per se, make the Tribunal F
unconsitutional since its orders can be "corrected" by the higher judiciary as
held in L. Chandra Kumar (supra).

In the present case there are some additional safeguards. The
appointments of the Chairman has to be in consultation with the Chief Justice G
of the High Court if he is a retired High Court Judge or it has to be of a person
nominated by him, if he is a sitting High Court Judge, with the concurrence
of the Chief Justice of India. This will go a long way towards securing the
kind of independence that one is looking for in such a Special Court. Hcrwever,
Section 7 cannot be considered as violative of any provision of the
Constitution. Our attention was drawn to a decision of this Court (to which H
470 SUPREME COURT REPORTS [1998] 3 S. C.R.

A one of us was a party) in the case of The Stage of Maharashtra v. Labour

-
Law Practitioner's Association & Ors., (1988) I SCALE 565. The question
considered in that case as some what different from the question before us
here. In that case, the question was whether a member of the executive could
be appointed to a service which was held to be a judicial service of the State.
This Court held that he could not be so appointed. In the present case the
B said Special Court is not a part of the judicial serivce of the State. It is an
Administrative Tribunal with a mixed composition of Judicial and Revenue
Members. The appointments ofretired District Judges and Revenue Members
do not attract Article 234.

Mr. Dipankar Gupta, learned counsel who was gracious enough to
C appear before us amicus curie at our request, drew our attention to a large
number of such Tribunals with a mixed compostion constitued, for example,
under the Consumer Protection Act, 1986, under the Income-Tax Act,
1961,under the National. Environment Tribunal Act, 1995, under the Sick
Industiral Companies (Special Provisions) Act, 1985 and so on. From the
observations of this Court in the case of L. Chandra Kumar & SP. Sampath
D Kumar (supra), it would appear that the power of judicial review which !he
High Court as well as this Court exercise under Articles 226 and 227 in respect
of the High Court and Article 32 in respect of this Court has been looked
upon as a safeguard against improper fun.ctioning of such Tribunals.
Undoubtedly, with the increase in the number of such Tribunals, and the
E vesting in them of jurisdiction which had earlier vested in the judiciary, the
constitutional guarantee of independence of the judiciary may get, to some
extent, diluted. However, in the light of the express provisions of Part XIV of
the Constitution containing Articles 323A and 3238, and the observations of
this Court in L. Chandra Kumar (supra), it would not be correct to hold that
such Tribunals are unconstitutional, at least when the appointment of the
p Chairman of theTribunal is in consultation with/nomination by the Chief
Justice of the High Court.

The High Court, therefore, was not right in giving directions for
mandatory consultation with the Chief Justice of the High Court in the case
of appointment of all Members including Revenue Members of the Special
G Court. The High Court was also not right in directing that existing appointments
made to the Special Court should be placed before it for the opinion of the
Chief Justice of High Court, and in giving the directions it did.

The impugned judgment and order of the High Court is, therefore, set
aside. The appeals are allowed, with no order as to costs.

H V.M. Appeals allowed.