JUDGMENT

1. This Rule is directed against the order of the West Bengal Co-operative Tribunal dated December 21, 1976 reversing on appeal an award of the Co-operative Development Officer and Aritratrator II dated June 18, 1976.

2. It appears that there was a dispute between the petitioner and the opposite party No. 3 in respect of shares in the Surendranath Co-operative Housing Society Ltd. as also the right, title and interest in Suite No. 22 Unit No. 1, East Block of the Society.

3. The petitioner who is the widow of late Tapan Kumar Mitra claimed, with her mother-in-law, the suite as the heirs and legal representatives of the deceased while his brother, the respondent No. 3 claimed the suite as also the shares of the deceased in the society on the basis of a nomination made in his favour by the deceased earlier under S. 69 of the West Bengal Co-operative Societies Act, 1973. The Arbitrator held that the heirs, and legal representatives are entitled to the suite while the respondent No. 3 is entitled to the shares of the deceased in the society. On appeal, the Co-operative Tribunal while confirming the decision on the shares held that the respondent No. 3 was entitled to a transfer of the shares to him and on his being accepted as a member of the society, the suite would vest in him with all liabilities. The connected application under Article 227 of the Constitution was moved on February 28, 1977 on which the instant Rule was issued.

4. Mr. K.D Mukherjee raised a preliminary objection as to the maintainability of the application in view of the amendment to the Article 227 of the Constitution by the Forty-Second Amendment which came into force with effect from February 1, 1977. It was contended that the High Court's power of judicial or administrative superintendence over tribunal and other authorities not under its appellate or revisional jurisdiction had been taken away and the impugned order being one of the West Bengal Co-operative Tribunal, this court has no jurisdiction to interfere with the impugned order. This contention is now to be examined with reference to the like provisions under the earlier Constitutional Acts. Section 107 of the Government of India Act 1915 provides as follows:

“Section 107. Powers of the High Courts with respect to Subordinate Courts. Each of the High Courts has super intendance over all courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say:—

(a) call for returns;

(b) direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction;

(c) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;

(d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and

(e) settle tables of fees to be allowed to the sheriff, attorneys and clerks and officers of courts;

5. In considering the scope of interference under S. 107, Rankin C.J in Manmatha Nath Biswas… v. Emperor…Opposite Party. (1932) 37 CWN 201 (D.B) observed—

“The general superintendence which this Court has over all jurisdictions subject to appeal is a duty to keep them within the bounds of their authority, to see that they do what their duty requires and they do it in a legal manner. It does not involve responsibility for the correctness of their decisions either in fact or in law.”

The court was of opinion that if there is no evidence at all for the charge, or a defect of jurisdiction or fraud on the part of the prosecutor or error on ‘face of proceedings,’ these will be cases calling for interference under S. 107 even though S. 439 of the Code of Criminal Procedure 1898 had no application. In Sholapur Municipality v. Tuljaram AIR 1931 Bom. 582, it was held that the District Court exercising judicial functions under Bombay City Municipalities Act 1898 is a Subordinate court under S. 107 of the Government of India Act 1915, if not under S. 115 of the Code and the order of the District Court could be set aside if he had no jurisdiction to pass it. The position accordingly appear to be settled that the superintendence envisaged under S. 107 of the Government of India Act, 1915 was accepted and interpreted by courts as not merely administrative superintendence but judicial superintendence as well over courts under its appellate jurisdiction in certain specified circumstances even though no appeal or revision was specifically provided for such interference. Though such remedy as quashing the orders or judgments under challenge was available by issue of writs of certiorari by Presidency High Courts, further directions in respect of the matter might not be possible under such writs.

6. Section 224 of the Government of India Act, 1935 made the following provisions.

“Section 224. Administrative function of the High Court—

(1) Every High Court shall have superintendence over all courts in India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say,—

(a) call for returns;

(b) make and issue general rules and prescribe froms for regulating the practice and proceedings of such courts;

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of courts, and

(d) settle tables of fees to be allowed to the sherff, attorneys, and all clerks and officers of courts:

Provided that such rules, forms and tables shall not be not inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision.”

7. In Jhanabi Prosad Banerjee v. Basudeb Paul (1949) 54 CWN 626 (D.B), the Court surveyed the history of revisional powers of the High Court and noted that the right of superintendence conferred by S. 107 of the Government of India Act, 1915 included superintendence in judicial matters and the High Court could correct any error in a decision of a Court subject to its appellate jurisdiction even in cases not covered by S. 115 of the Code of Civil Procedure, in order to prevent injustice. It was further observed that power of judicial interference was taken away by S. 224 of the Government of India Act, 1935 and this section confined the revisional powers to administrative matters while sub-s. (2) does not confer a general power of judicial interference in cases not otherwise subject to appeal or revision.

8. The Constitution in Article 227 restarted the position as under the S. 107 of the Government of India Act, 1915 and even extended it to all tribunals throughout the territories in relation to which the High Court exercises its jurisdiction. The provisions of Article 227 which came into force on January 26, 1950 are as follows:—

“227. (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the forgoing provision, the High Court may—

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle table of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force and shall require the previews approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.”

9. The construction of the said article 227 has been before the Courts and it was held in Waryam Singh v. Amal Nath AIR 1954 SC 215 that this article went further than S. 224 of the Government of India Act, 1935 under which the superintendence was purely administrative. Further, the Article restored the position under S. 107 of the Government of India Act, 1915 which inter alia provides judicial superintendence as well. This proposition was followed in the case of Harivishuu Kamath v. Ahmed AIR 1955 SC 233. It will also be noticed that clause (2) of Article 227 which provides for administrative superintendence is “without prejudice to the generality of the foregoing provision” i.e judicial superintendence as envisaged in clause (1).

10. The High Court however placed self-imposed limitations in exercising powers under this Article 227. Such interference is to be used most sparingly and the article can not be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power of appeal. Its function is limited, as held by the Supreme Court, to seeing that the Subordinate Court or tribunal functions within the limits of its authority and jurisdiction or the order of a court or tribunal is not violative of the fundamental basic principles of justice and fair play or that there is no patent or flagrant error in procedure or law. The High Court may also justifiably intervene under this article when the order passed results in manifest injustice.

11. We now come to the last step of our survey. By the Constitution (Forty-second Amendment) Act, 1976, S. 40, the following amendment was made to Article 227.

Section 40. Amendment of Article 227:

(a) for clause (1), the following clause shall be substituted namely:—

(1) Every High Court shall have superintendence over all courts subject to its appellate jurisdiction.

After clause (4), the following clause shall be inserted namely:

(5) Nothing in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision.”

12. The amendment, which as already stated came into force on February 1, 1977, did not absolutely curtail the judicial superintendence of courts by the High Court subject to its appellate or revisional jurisdiction. It confined the operation of the article to courts only and tribunals were expressly excluded. On a close examination of the different clauses of Article 227 unamended or amended, it appears that clauses thereof are operative independently of each other, so that none of the clause curtail or affect the operation of any other clause therein and together are complementary to achieve the superintendence—administrative and judicial—of subordinate courts under its appellate or revisional jurisdiction. The judicial superintendence is clearly envisaged by clauses (1) and (5) though confined under clause (1) to court subject to the appellate jurisdiction of the High Court or under clause (5) to judgments of any inferior court subject otherwise to appeal or revision.

13. The word ‘court’ has not been defined in the Constitution. There can be little dispute that the court includes hierarchy of courts, civil and criminal, constituted under the relevant laws of the State or Center, which are invested with the inherent and sovereign judicial powers of the State. The Tribunal, as held in Engineering Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874, is also a seat of justice and it shares some of the characteristics of the court. There are however different types of tribunals like purely administrative tribunals or domestic tribunals in departmental proceedings. The decisions of such tribunals do not have the finality and enforceability of their decisions nor do they exercise any of the judicial powers of the State conferred upon them by statute. There may be other types of Tribunals which are entrusted with judicial functions, that is to say of deciding litigated questions according to law, deriving their powers from the State and exercising judicial powers of the State. Such a tribunal will constitute a court as observed by Mahajan, J. (as he then was) in Bharat Bank Ltd. v. Its employees AIR 1950 SC 188. The judicial power, it was observed, mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty and property. Such tribunal must have the power to give a binding and authoritative decision.

14. In was noted in Bapusaheb v. State of Maharastra, AIR 1975 Bom. 143 (F.B) followed in Shripatrao v. State Maharastra (F.B) AIR 1977 Bom. 384, on a survey of all relevant judicial authorities in particular of the decision in Thakur Jugal Kishore v. Sitamari Co-operative Band Ltd. AIR 1967 SC 1494 that a tribunal or authority will be a court (i) if it is basically a court with power to give a definitive judgment or a decision in a lis between the parties which has the finality and authoritativeness that would bind them appearing before it so far as the rights litigated before it are concerned and (ii) the appointment of the tribunal or an authority as well as the source of its power must be the judicial powers of the State coming to it by the statute itself. To it, is also to be added the enforceability of such orders or judgments through the process of law. Such tribunal or authority must also follow the normal judicial procedure in arriving at its decision. It will require the parties to file their respective statements, follow the rules or norms of evidence in determining questions of fact by compelling attendance of witnesses or production of documents, hold public trial wherever possible and hear the parties or consider their respective cases according to law and the principles of natural justice before arriving at its decision. Such tribunal or authority will be it is obvious, court as understood in accepted legal parlance and must be taken to be so as contemplated under Article 227 of the Constitution in absence of any definition in the Constitution.

15. Even so, to be amenable to provisions of Article 227 as amended there is a further condition which is an imperative one, namely, that such court must be subject to the appellate jurisdiction of the High Court as stated in clause (1) or the judgment that may be interfered with must be of an inferior court which is subject to appeal or revision by the High Court.

16. In respect of clause (1) of Article 227 it seems that the judicial superintendence is confined to courts which are under the appellate jurisdiction of the High Court. The appellate jurisdiction so contemplated obviously include the courts created by the statutes providing hierarchy of courts, including all the subordinate courts thereunder and may not possibly include the tribunals or authorities which, though court in legal parlance on the tests noted above, are not really subject to the appellate jurisdiction of the High Court under any statute. In such cases, it may be possible to contend that judicial interference will not extend to decisions of such tribunals or authorities are not subject to the appellate jurisdiction of the High Court.

17. Clause (5), though has been put in the double negative form, means that there may be judicial interference against any judgment of any inferior court which judgment is otherwise subject to appeal or revision, obviously by the High Court. The definition of court in this clause includes all authorities and tribunals which satisfy the above tests. If any judgment of such court in the state which is obviously an inferior court to the High Court, is subject to appeal or revision by the High Court, the judicial interference under Article 227 will be warranted in law in appropriate cases. We may mention here some statutes wherein provisions have been made for appeal to the High Court against judgments of such tribunal or authority which in the tests indicated above are courts in legal parlance. Such statutes are:—

1. The Chartered Accountants' Act 1947—S. 21

2. The Employees' State Insurance Act, 1948—S. 82

3. The Workmen's Compensation Act.—S. 30

4. Trade and Merchandise Mark Act, 1958.—S. 108.

5. Patents Act, 1970—S. 116

6. The Motor Vehicle's Act, 1939—S. 110(d) against decrees of the Claims Tribunal.

7. The Income-Tax Act,—S. 269 H against the order of the Appellate Tribunal.

8. Foreign Exchange Regulations Act, 1947—S. 23 (EE) or Foreign Exchange Regulation Act, 1973, S. 54, from the order of the Appellate Board.

9. The Calcutta Improvement Act, 19 1—S. 77A from the decision of the Calcutta Improvement Tribunal.

18. There may again be cases where an appeal from the order of a Tribunal or authority is provided to a Court within the hierarchy of courts, established by statutes. Such courts exercising appellate powers are in their turn, subordinate and inferior to the High Court, and judgments of such courts may be subject to appeal or revision by the High Court. In such cases again, the judgments of such subordinate courts also are subject to judicial interference under Article 227 in appropriate circumstances.

19. Under the West Bengal Premises Tenancy Act, 1956, S. 29 the order of the Rent Controller is subject to appeal before the District Judge or Chief Judge, Small Causes Court, with power to transfer such causes to Additional district Judges or Subordinates Judge or to any other Judge of the Small Causes Court. Similarly under the Calcutta Thika Tenancy Act, 1949, S. 27 an appeal lies to the District Judge or the Chief Judge of Court of Small Causes with similar powers of transfer. These appellate authorities are not persona designata as held in Nandalal v. Manmatha, AIR 1962 Cal 597, and they are referred to as Courts which are established under the Bengal, Agra and Assam Civil Courts Act, 1887 and accordingly they are courts whose judgments are subject to revision even under S. 115 of the Code of Civil Procedure. The judgments of such courts are also thus liable to judicial interference under Article 227 in circumstances warranting such interference in view of the provisions of clause (5). We may note Article 323A which provides for constitution of service tribunals as also Article 323B which prodides for tribunals for certain purposes luce, ceiling on urban properties, foreign exchange, customs, industrial disputes, elections and the like. It was noticed in Bapu Saheb's case that these are enabling provisions empowering Parliament to make laws providing for the constitution of such tribunals on matters specified therein. It was also laid down in Article 323B(3)(d) that there may be law made by the Parliament constituting such tribunals which may provide for exclusion of jurisdiction of all courts excepting the Supreme Court under Art. 136. It was held that these provisions without more do not imply any Junctions their intention of excluding all tribunals irrespective of their nature or their functions from the purview of High Court's judicial superintendence while amending the original Art. 227.

20. In the instant case, on the tests referred to above, under the West Bengal Co-operative Societies Act, 1973, the Registrar or arbitrator has been conferred full powers to decide the dispute, pass interlocutory orders, hear the parties in accordance with the rules framed thereunder. There are provisions for appeals from the orders to the Co-operative Tribunal which also has all the trappings of the Court. There can be little dispute, on the tests indicated above, that such tribunals or authorities are courts deciding the lis between the parties which are binding on them. But such tribunal or authority are not subject to the appellate jurisdiction of the High Courts, and their judgments are not subject to appeal or revision by the High Court. It may sound incongruous that the High Court as the highest judiciary of the State is incompetent in law to remedy any defect or error as may be committed by the court, tribunal or authority functioning within its territorial jurisdiction. It will however, be the sagacity of Parliament and of the State legislature to provided for adequate relief if it considers fit and proper in such cases. In this view of the matter as the High Court had no jurisdiction over such tribunals and authorities nor are their judgments subject to appeal or revision by the High Court and as the instant application has been filed after the commencement of the amended provisions of Art. 227, this application is not maintainable in law.

21. Mr. De, learned Advocate appearing for the petitioner has filed an application for conversion of the instant application into one under Article 226 of the Constitution. It is difficult at this stage to concede to this prayer, as a Rule has already been issued under Article 227 which has been heard today and it will be for the Court exercising constitutional writ jurisdiction to decide whether on such application a Rule can be issued at all. In this view, I reject the application for conversion of the application under Article 227 into one under Article 226.

22. The Rule is accordingly, discharged. There will be no order as to costs in the circumstances of the cases. The petitioner is given liberty to move the appropriate court for such redress as she may be advised on same cause of action and facts. I make it clear; however that I have not, as I cannot enter into the merits of the cases of the respective parties.

23. On the prayer of Mr. De, I direct that status quo shall be maintained for three weeks from today.

24. Let the certified copy of the judgment of the West Bengal Co-operative Tribunal under challenge be returned to Mr. De on his furnishing a plain copy thereof.

Rule discharged.