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1965 DIGILAW 89 (DEL)

TARLOCHAN SINGH v. NIAMAT KAUR

1965-10-19

S.K.KAPUR

body1965
S. K. Kapur ( 1 ) BY this writ petition the petitioner has asked for quashing of the judgment of the learned Additional District Judge. Delhi, dated the 12th June 1958 passed on a reference made to him under the proviso to section 9 of the Displaced Persons (Compensation and Rehabilitation) Act 1954. The said proviso is in the following terms :- "provided that the Settlement Officer or the Settlement Commissioner, as the case may be, may refer any such dispute to the District Judge nominated in this behalf by the State Government whose decision thereon shall be final. "the nomiation by the State Government for the purposes of the said proviso was made by notification published in the Gazette dated 10th January 1957. ( 2 ) THE only point raised on behalf of the petitioner is that under the proviso to section 9 of the said Act only the District Judge could be nominated and not the Additional District Judge as was done in this case. The learned counsel for the petitioner refered to sections 18 to 20 of the Punjab Courts Act and submitted that the only categories recognised by the said provisions as they then stood were District Judges, Additional District Judges and Subordinate Judges, According to the learned counsel there can beonly one District Judge in a district as provided in section 20 of the said Act and by virtue of section 24 thereof it is the Court of District Judge alone which is deemed to be the District Court or principal Court of original jurisdiction in the district. He further argued that Additional District Judge, who was nominated under the provisko to section 9 of t Displaced Persons (Compensation and Rehabilitation) Act, was a category unknown to law and could not have been in contemplation of the said proviso. The Punjab Courts Act was amended by the Punjab Courts (Amendment) Act, 1963 (Punjab Act No. 35 of 1963), By section 2 of the said Amending Act the words " (2) The Court of the Additional Judge" insection 18 were omitted. Bysection 5 thereof a new section 21 was substituted for the existing section and power was given to the State Government to appoint Additional District Judges in consultation with the High Court for exercising jurisdiction in one or more Courts of the District Judges. Bysection 5 thereof a new section 21 was substituted for the existing section and power was given to the State Government to appoint Additional District Judges in consultation with the High Court for exercising jurisdiction in one or more Courts of the District Judges. Sub-section (2) of section 21 as substituted provides that the Additional District Judges shall have jurisdiction to deal with and dispose of such cases only as the High Court, by general or special order, may direct them to deal with and dispose of or as the District Judge of the District may make over to them for being dealt with and deposed of. According to the learned counsel the said amendment Act not being restrospective did not cure the invalidity of the notification under section 9 of the Act. He also submitted that in spite of the amendment the Additional District Judge could not have been appointed because section 9 requires only a District Judge to be nominated. The learned counsel has relied on Kuldip Singh v. The State of Punjab and Abdul Wahab v. Phiraya Lal. In Kuldip Singh s case Ss. 476-A and 195, Cr, Procedure Code fell for consideration. Section 476-A, Criminal Procedure Code, inter alia provides that when the Court in which the offence is said to have been committed neither makes a complaint nor rejects an application for the making of a complaint" the Court to which such former Court is subordinate within the meaning of section 195, sub-section (3)" may take action under section 476. The question was whether the Additional District Judge, had the jurisdiction to take action under section 476-A, Criminal Procedure Code, the original Court not having taken any. The answer to that question depended upon whether the Court of Additional District Judge was a Court to which appeals from the original Court "ordinarily lie" as provided in section 195 (3), Criminal Procedure Code. The Supreme Court held that such Court could only be the District Judge s Court and not of the Additional District Judge. After considering various provisions of the Punjab Courts Act REFERRED TO to above Bose J. observed- "but that is not the scheme of the Punjab Courts Act and the mere fact that Mr. J. N. Kapur called himself the Additional District Judge and purported to act as such cannot affect the matter of his jurisdiction. After considering various provisions of the Punjab Courts Act REFERRED TO to above Bose J. observed- "but that is not the scheme of the Punjab Courts Act and the mere fact that Mr. J. N. Kapur called himself the Additional District Judge and purported to act as such cannot affect the matter of his jurisdiction. As the Punjab Courts Act does not contemplate the appointment of Additional Judges to the District Court, none can be appointed. The Court contemplated is the Court of the Additional Judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the matters specially entrusted to its jurisdiction. We hold therefore that the Court of the Additional Judge is not a division Court of the District Judge but a separate and district Court of its own. Now, as we have seen, when the original Court does not make a complaint under section 476 of the Criminal Procedure Code or reject the application, then the only other Court competent to exercise these powers is the Court to which appeals from the original Court "ordinarily lie". That Court, in the present case, was the Court of the District Judge and not the Court of the Additional Judge Mr. J. N. Kapur. "in my view the aforesaid decision fully applies to the present case. Under the provisions of Punjab Courts Act, as it stood in 1957, the Court of Additional District Judge was not recognised by the said Act and there could be only one Dirtrict Judge in the district who could be nominated under proviso to section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The amendment in the Punjab Courts Act also does not improve the position for (1) the said amendment was not restrospective and (2) even by the amendment the Additional District Judge has not been equated with the District Judge. The amendment in the Punjab Courts Act also does not improve the position for (1) the said amendment was not restrospective and (2) even by the amendment the Additional District Judge has not been equated with the District Judge. The learned counsel for the respondent raised three contentions : (1) Delhi Administration, who made the nomination was a necessary party and had not been impleaded; (2) As is evident from section 254 (3) of the Government of India Act the expressions "district Judge" and "additional District Judge" were synonymous; and (3) The petitioner had the alternate remedy or approaching the Central Government against the impugnedorder under section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and the petition should not, therefore, be entertained. I will deal with the contentions in the order in which they have been set out above. (1) Delhi Administration was in my opinion not a necessary party. The order sought to be quashed was of the Additional District Judge on the ground that he had not been properly appointed. He and other parties interested had been impleaded as respondents. In the circumstances there is no force in this, contention of the respondent. (2) The term district Judge is defined in section 3 (17) of the General Clause? Act as under :- "district Judge" shall mean the Judge of a principal Civil Court of the original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. " This definition is not inclusive but exhaustive and is applicable to the interpretation of the Displaced Persons (Compentation and Rehabilitation) Act, which is a Central Act. Consequently no Judge other than the Judge of a principal Civil Court of original jurisdiction can fall within the ambit of the proviso to Section 9. Having regard to the provisions of the Punjab Courts Act, the Judge of a principal Civil Court of original jurisdiction would be the District Judge alone. Neither the provisions of section 254 (3) of the Government of India Act, 1935 nor of Article 23 6 of the Constitution persuade me to arrive at a contrary conclusion. The extended definition in the said two enactments is only for limited purposes, namely, for the purposes of sections 254 and 255 of the Government of India Act and for the purposes of Chapter VI of the Constitution. The extended definition in the said two enactments is only for limited purposes, namely, for the purposes of sections 254 and 255 of the Government of India Act and for the purposes of Chapter VI of the Constitution. But the said provisions deal with the appointments, postings, promotions, etc. of the District Judges, the appointment of certain other judicial officers and the control of the High Court over subordinate Courts. That limited extension cannot, therefore, govern the meaning to be given to the expression "district Judge" in section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. (3) Since the attack is against the very jurisdiction of the Additional District Judge and his appointment, the alternate remedy, if any, can be no bar to the entertainment of the writ petition. After the petition had been argued, the learned counsel for the respondent by his application dated 25th September 1965, brought to my notice another notification, dated 6th April, 1960 published in the Government of Punjab Gazette, dated April 15, 1960. By the said notification certain Officiating/additional District and Sessions Judges were confirmed retrospectively. The relevant part of the said notification is as under. ""* * * * the Governor of Punjab is pleased to confirm the following officiating District/additional District and sessions Judges with effect from the dates noted against each :-On the basis of the aforesaid notification learned counsel for the respondent wants me to hold that Shri (new Hon ble Mr. Justice) P. D. Sharma was District Judge from 1-10-1956 and, therefore, he must be held to be a District Judge on the date he was nominated under section 9 by notification dated 2nd January, 1957. In my opinion the subsequent notification does not improve upon position. The said notification does not show that on the day he was nominated, he was an "officiating District Judge". On the other hand the notification dated 2nd January, 1957, clearly shows that on that day he was an "additional District Judge" Subsequent confirmation from officiating District Judge to substantive permanent District Judge will not make the appointment valid retrospectively. ( 3 ) ON 2nd January, 1957, that is the date of nomination, there was District Judge in Delhi and under section 20 of the Punjab Courts Act there could be only one District Judge in -a district. ( 3 ) ON 2nd January, 1957, that is the date of nomination, there was District Judge in Delhi and under section 20 of the Punjab Courts Act there could be only one District Judge in -a district. That District Judge alone could have been nominated under section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. In view of the above, finding it must be held that the nomination of Shri (now Hon ble Mr. Justice) P. D. Sharma was invalid and he had no jurisdiction to dispose of the said reference. The impugned order was, therefore, without jurisdiction and must to set aside. The petition is, therefore, allowed and the order, dated 12th June, 1958, passed by the Additional District Judge, Delhi, quashed. Parties will bear their own costs.