JUDGMENT
R.C. Patnaik, J.
1. Upon publication of a notification under Sub-section (1) of Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, every suit and proceeding for declaration of any right or interest in any land situate within the consolidation area, proceeding pending before any Civil Court, whether of the first instance or appeal, reference or revision, is to stand abated on an order being passed in that behalf by the Court concerned. Section 51 bars jurisdiction of the Civil Courts in regard to matters relating to right, title, interest and liability in land lying within the consolidation area which ordinarily under the general civil law would be cognisable by them.
2. The Act has created a hierarchy of forums for determination of the questions–original, appellate and revisional, the highest being the revisional Court. In matters of civil dispute and the civil law, the District Judge or the Subordinate Judge, as the case may be, depending on the valuation and the prescribed procedure, is the final Court on question of fact. Substantial questions of taw can only be agitated before the High Court in appeal where second appeal is provided. Hence generally the highest revenue Court is the substitute of the Court of the District Judge or the Subordinate Judge, as the case may be, and even of the High Court.
3. Under the scheme of the Act, the revisional authority being the highest forum in the hierarchy adjudicating questions of facts and law should be a substitute in reality and not theoretically. Law is respected and obeyed when the people have trust and faith in it. Law is made for the weal of the people. Hence, if the well being of the people is the object of the law, they should have trust not only in the contents of the law but also in its implementation by the agency entrusted therewith. If implementation is not commensurate with the object and purpose of the law, it fails to create confidence in the minds of the people and loses their trust. The result is disenchantment and chaos. It therefore behaves the implementing agency to implement the law not only in letter but also in spirit.
4. This prologue is considered warranted having regard to our perception of the implementation of the scheme of the Consolidation Act by the Government.
5. The consolidation authorities by the very nature of the jurisdiction vested in them are required to adjudicate civil right involving personal law and relating to immovable property and other crivil rights. Even the questions that crop up and posed are of complicated nature. It, therefore, obligates the authorities to know the law before they assume and exercise jurisdiction to adjudicate in accordance with law and for the litigants, an ignorant judge is a devil’s representative putting on the mask of an adjudicator. It is no doubt true that ail adjudicators and Judges are not learned in law in all its branches. Law is a vast ocean. Study for a lifetime even would not be enough to make it. But those who are required to adjudicate civil rights including personal and properly rights should have studied law or are trained in law. It is a trite saying that justice must not only be done, but seem manifestly to have been done. Hence a person involved in a civil dispute before he enters the precincts of the Court should have the trust and confidence that the person who sits on the chair as an adjudicator. Judge is competent to appreciate and understand matters having regard to his knowledge and capability and is adequately equipped to decide. For him highsounding designation is not of much worth, his confidence and trust are what matters. When the people make laws through their representatives for their happiness and well-being, they intend that the authorities under the Act who are being made substitutes of the Presiding Officers in the Civil Courts and the High Court should also be competent by virtue of their ability to function truly as substitutes. Otherwise, it will be a fraud on the peoples’ intention. Therefore, as we have said, the psychological factor in the mind of the litigant is more important than how a is lis decided by the adjudicating authority. A person ignorant and innocent of law cannot create that trust nor is he capable of adjudicating by hearing both the sides. It is the duty of the Judge to utilise his own insight into law even where the parties have tumbled or failed. For adjudicating the lis in accoidance with law to the best of his Judgment is his responsibility and obligation. To decide to the best of his Judgment, he must be properly equipped in law to understand, appreciate and decide.
6. Can one think of a highly eminent engineer or erudits Judge ignorant of human anatomy or surgery conducting operation on human body 7 It is unthinkable ; it is preposterous for someone not versed in surnery or anatomy of the body making an attempt. That is why specialities and super specialities abound. So also in the matter of administration of law, the person concerned should have the knowledge of law howsoever gathered-either by courses in college or otherwise or should be trained in law.
7. To call upon an administrative officer howsoever eminent or competent he might be in his own fieled but who does not have the knowledge of law or is not trained in law or doss not have the judicial aptitude and accumen, is akin to a Judge being called upon to conduct a surgical operation. Hence it follows that as a Judge or an engineer cannot be appointed as a Professer of Surgery or even as a surgeon so too a person unversed in law; ignorant in law should not be entrusted with the responsibility of adjudicating questions of law for, that would amount to breach of trust that the people imposed on the implementing agency. They intended that competent and worthy persons capable of adjudicating civil rights involving questions of law-simple and complicated-should be appointed as adjudicators.
8. So far as the Assistant Consolidation Officer is concerned, it is a different matter. Matters in which parties come to an amicable settlement are disposed of by him. But where the parties differ and are out for a fight, do not the people expect that the referee, the Judge, the adjudicator should be competent ? Now coming to the question of referee if a person does not know the rules of the game of football, can he be a competent referee ? Should such a ‘person be appointed as a referee ? So also in matters of adjudication under the Consolidation Act.
9. We are constrained to dilate at length because of our experience in the High Court day after day, month after month and year after year in regard to matters arising under the Consolidation Act. Very often we find persons adjudicating know not even the rudiments of the laws and procedures. To appreciate questions of law presented by both the parties, it is necessary to appreciate, comprehend and then adjudicate. Therefore, to adpreciate and comprehend, the adjudicator should know the fundamentals, the rudiments of law or must have been trained in law or must to have been involved in adjudication of legal matters for a number of years so as to clothe him with competence. We do not want to generalise bacause some Officers in the lower rung as well as at the highest level have displyed a good comprehension of the law and its application, and have brought to bear a judicial mind on matters in dispute but, as we said, the chair does not confer competence. It is the competence of the parson that confers dignity and trust on the chair.
10. From our experience we can boldly say that while appointing the Commissioner or the revisional authority, the implementing agency, i. e., the Government, has not always kept this in mind. Law was not framed for the purpose of statistics. It was framed for the object and purposes depicted in the objects and reasons and the Preamble to the Act.
11. The law may be inter vires but if it is implemented in a manner inconsistent with the objects and purpose, action could be challenged as ultra vires, as a fraudulent imposition. Hence appointment of an incompetent person to adjudicate legal matters can be challenged as ultra vires being contrary to the intendment.
12. No doubt jurisdiction is vested in this Court under Arts. 226 and 227 of the Constitution to set right injustice, mistakes in proceeding before the consolidation authorities. But it should be borne in mind that such jurisdiction is discretionary and is not a matter of right and is otherwise also circumscribed. Besides the more important question is ; Why should not the people have faith in the adjudication by the consolidation authorities but have to rush to this Court with their grievances. Faith and faith alone in the adjudicator is the paramount consideration.
13. On perusing the decision of the Commissioner, we are satisfied that the questions that were pertinent for consideration were not kept in view by the Commissioner. The question mooted was it the sale deed executed by opp. party No. 2 in favour of the petitioner could compete with the sale deed executed by the former in favour of opp. party No. 1. It is alleged that opp. party No. 1 entered into an agreement with the petitioner on 27-11-1983 in respect of the disputed property. It is further alleged that the said opp. party No. 2 had also executed a sale deed on 2-1- 1979 in favour of opp. party No. 1. But the same was not presented for registration within the time prescribed. Hence another sale deed was executed and registered on 11-1-1930. In the meanwhile opp.. party No. 2 executed a, deed cancelling the sale deed executed on 2-1-1979. The question therefore is ; Did the opp. party No. 1 have prior knowledge of the agreement executed by opp. party No. 2 in favour of the petitioner ? If he had knowledge. the sale deed in his favour wilt not be valid. If, however, he had no knowledge, the sale deed dated 2-1-1979 would be construed as an agreement and if the petitioner had knowledge thereof, the sale deed executed on 11-1-1980 would have precedence over the sale deed dated 2-1-1979. These are two vital considerations which went abegging for answer. It is a representative case of the hundreds of cases which have demonstrated the vacuum in several adjudicating authorities including some commissioners and it would not be inappropriate to say that where a comptent person is not appointed as an adjudicator the litigants are being deceived, a fraud is being played on them by mere show because the reality is lacking.
14. Under some States Acts, the final Court is presided over by Judicial Officers. No doubt, consolidation programmes are time bound programmes. Hence, we should suggest that where legal rights are involved, the final Court is presided over by Judicial Officers well versed in law and, therefore, competent to decide legal questions leaving matters like creation of Chakas etc, not involving civil rights to an administrative officer or as in some other progressive Acts, relating to tenant, the revisional authority is conferred on the High Court as regards questions of law. These are matters in regard to which we can only make suggestions for consideration of the law making authorities. But the Government being representative of the people is obliged to safeguard the interests of the people. We, therefore, command the Government to appoint officer as regards revisional forum who has legal background and is well-versed or trained in law so that the appearance inspires faith and confidence.
15. In the result, we set aside the impugned order and remit the matter to the revisional authority for disposal in accordance with law. There would be no order as to costs. Copy of this order be sent to the Chief Secretary to the Government of Orissa and the Secretary, Revenue Department.
D.M. Patnaik, J.
16. I agree.
