State
of West Bengal Vs.
Ashish Kumar Roy & Ors [2004] Insc 737 (3 December 2004)
Shivaraj V. Patil & B.N. Srikrishna SRIKRISHNA,J.
This appeal by special leave impugns a judgment of the Division Bench of the
Calcutta High Court allowing a writ petition under Article 226 of the
Constitution of India, holding certain provisions of the West Bengal Land
Reforms and Tenancy Tribunal Act, 1997 (hereinafter referred to as 'the Act')
as ultra vires the Constitution of India as also declaring that clause 3(e) of Article
323B of the Constitution to the extent it provides for transfer of all pending
cases under Article 323 B violates the basic structure of the Constitution. The
judgment also declares section 9 of the said Act as ultra vires the
Constitution and violative of the basic structure of the Constitution.
The Government of West Bengal, after obtaining the assent of the Governor,
notified and published the provisions of the said Act in the official gazette
dated December 12, 1997.
The respondents 1 to 4, who are advocates and members of the Bar Association
of Calcutta High Court, filed writ petition no.
7110(W)/ 1998 in the Calcutta High Court challenging the provisions of the
said Act as ultra vires, null and void and ineffective, and seeking a
declaration that Article 323B (2)(d) of the Constitution could not take away
the power of the High Court and other civil courts to decide disputes in
relation to the acts specified in the said Act.
The Act was brought into force by a Notification dated 3rd August 1998. Simultaneously, a Tribunal called the West Bengal Land Reforms and Tenancy
Tribunal, contemplated under section 4 of the Act, was also brought into
existence by another notification issued on the same date. Another notification
was issued on the same date specifying the place at which the Benches of the
said Tribunal shall ordinarily sit. It was also notified on the same day that
w.e.f. 12th August 1998 (the appointed date) the tribunal shall exercise
jurisdiction, power and authority in relation to the matters specified in
clauses (a) to (e) of section 6 of the said Act. The learned single Judge of
the Calcutta High Court heard the writ petition and by the impugned judgment
dated 16.4.1999 struck down certain provisions of the said Act as already indicated.
The State of West Bengal is in appeal.
Three principal contentions were urged before the High Court, namely :
1. The Tribunal constituted under the said Act is not a Tribunal within the
meaning of Article 323B (1)(d) of the Constitution of India as it lacks the
necessary attributes prescribed by the said Article.
2. The jurisdiction power and authority of the Tribunal specified in
Sections 5,6,7 and 8 of the said Act are ultra vires the Constitution of India,
as the said provisions abridge and take away the power of judicial review of
the High Court under Article 226 and 227 of the Constitution of India, as a
court of first instance;
3. The provision of the said Act, by which all pending matters, proceedings,
cases and appeals before the High Court stood transferred to the Tribunal under
section 9, is also ultra vires the Constitution as it abridges and takes away
the jurisdiction and powers of the High Court under Articles 226 and 227 of the
Constitution of India and consequently violates the basic structure of the
Constitution.
The learned single Judge of the High Court negatived the first contention
and held that the said Act was enacted for resolution of disputes relating to
and arising out of certain acts specified therein for which purpose the Tribunal
could be validly constituted under Article 323 B of the Constitution of India.
The learned single Judge also held that Constitution of the Tribunal under the
said Act in relation to the specified enactments was not ultra vires Article
323B (2) (d) of the Constitution. However, the learned single Judge accepted
the second and third contentions by taking the view that the observations made
by Constitution Bench of this Court in L. Chandra Kumar v. Union of India and
ors. (1997) 3 SCC 261 did not amount to 'law declared' within the meaning of
Article 141 of the Constitution of India, and therefore, was not binding on the
High Court. Having examined it independently, he concluded that the impugned
provisions of the said Act were violative of the Constitution including the
basic structure thereof and struck them down.
The learned counsel for the appellant contends that the High Court erred in
accepting the second and third contentions urged by the writ petitioners. He
submits that a careful reading of the observations and directions in paragraph
99 of the Constitution Bench judgment in L Chandra Kumar (supra) makes it clear
that they were 'law declared' within the meaning of Article 141. This law was
binding on the learned single Judge and he could not have taken a contrary view
in the matter, submits the learned counsel.
The learned counsel for the respondents reiterated the contentions urged
before the High Court and supported the view of the High Court on the second
and third contentions . In addition, the learned counsel for the respondents
also urged that the finding of the single Judge of the High Court as to the
nature of the Tribunal was erroneous and urged that we should hold that the
Tribunal constituted under the Act is not a Tribunal within the meaning of
Article 323 B (2)(d) of the Constitution of India.
The Act The object of the enactment is indicated in the preamble as under:
"Whereas it is expedient to provide for the setting up of a Land
Reforms and Tenancy Tribunal and for adjudication and trial by such Tribunal of
disputes, claims, objections and applications relating to, or arising out of,
land reforms or tenancy in land and other matters under a specified Act and for
the exclusion of the jurisdiction of all courts except a Division Bench of the
High Court exercising writ jurisdiction under Articles 226 and 227 of the
Constitution of India and the Supreme Court of India in adjudication and trial
of such disputes, claims, objections and applications and for matters connected
therewith or incidental thereto." Under chapter 2 a tribunal called the
West Bengal Land Reforms and Tenancy Tribunal is established. Section 6 therein
provides that "Subject to the other provisions of this Act, the Tribunal
shall, with effect from such date as may be appointed by the State Government
by notification in this behalf, exercise jurisdiction, power and authority in
relation to (a) an order in original made by an Authority under a specified
Act;
(b) an application complaining in action or culpable negligence of an
Authority under a specified Act;
(c) an appeal against an order or the Mines Tribunal appointed under section
36 of the West Bengal Estates Acquisition Act, 1953;
(d)adjudication of disputes and applications relating to matters under any
provision of a specified Act involving interpretation of any provision of the
Constitution or of validity of a specified Act or of any other law for the time
being in force;
(e) adjudication of maters, proceedings, cases and appeals which stand
transferred from the High Court and other Authorities to the Tribunal in
accordance with the provisions of this Act." Section 7 provides that from
the date appointed by the State Government under section 6, the Tribunal shall
exercise all the jurisdiction, power and authority exercisable immediately
before that day by any court including the High Court, except the writ
jurisdiction under articles 226 and 227 of the Constitution exercised by a
Division Bench of the High Court, but excluding the Supreme Court, for adjudication
or trial of disputes and applications relating to land reforms and matters
connected therewith or incidental thereto and other matters arising out of any
provision of a specified Act.
Section 8 bars the jurisdiction of the High Court except where that Court
exercises writ jurisdiction under articles 226 and 227 of the Constitution by a
Division Bench, or any civil court, except the Supreme Court, to entertain any
proceeding or application or exercise any jurisdiction, power or authority in
relation to adjudication or trial of disputes or applications relating to land
reforms or any matter connected therewith or incidental thereto or any other
matter under any provision of a specified Act.
Section 9 makes provision for transfer of all matters pending before the
High Court except matters pending in the writ jurisdiction before the Division
Bench under Articles 226 and 227, or any other Court, to the Tribunal for
disposal in accordance with the provisions of the Act, if they are matters,
proceedings, cases and appeals relating to land reforms and matters connected
therewith or incidental thereto and other matters arising out of a specified
Act.
The Tribunal is also given appellate powers over the orders passed by an
authority or functionary under a specified Act.
Section 11 of the Act bars an appeal or application against any decision of
the Tribunal in a proceeding in any Court except the Supreme Court and the
Division Bench of the High Court exercising writ jurisdiction under Articles
226 and 227 of the Constitution.
There are certain other incidental and consequential sections which are not
necessary to be noticed in detail.
Section 2(h) defines the terms 'estate' as the holding of land of any
description or classification of a raiyat or intermediary or other person under
a specified Act. Section (2) ( r) defines the term 'specified Act' to mean (i)
the West Bengal Estates Acquisition Act, 1953; or (ii) the West Bengal Land
Reforms Act, 1955; or (iii) the Calcutta Thika Tenancy (Acquisition and Regulation)
Act, 1981; or (iv) the West Bengal Acquisition of Homestead Land for
Agricultural Labourers, Artisans and Fishermen Act, 1975; or (v) the West
Bengal Land Holding Revenue Act, 1979.
Legal Contentions We may conveniently club contentions 2 and 3 urged before
us as to the constitutional validity of the provisions of the Act. Learned
counsel for the appellant urges that the direction given by this Court in
L.Chandra Kumar (supra) is 'law declared' so as to make it binding under
Article 141 of the Constitution. The learned single Judge observed on this
issue:
"I have refrained myself from making any comment and deciding as no
ground has been taken in the petition, further while testing a legislative
action on the anvil of constitutional provision, legal implication of the above
decision of the Supreme Court shall not be ascertained in this action. So, I
have left it open". Nonetheless, the learned single Judge proceeded to
hold :
"In my opinion, ratio and/or issue which has been decided in the
aforesaid judgment is whether the power under Articles 226 & 227 of the
High Court can be ousted by enacting a legislation in exercise of power under
Articles 323 A & B. It has been decided answering the above issue that the
power of the High Court under Articles 226 & 227 is inviolable provision
and the same being the par of the basic structure of the Constitution. The
legislature is not competent to take away such authority. In paragraphs 90
& 99 it has been made amply clear.
Therefore, I hold the ratio decided in the aforesaid judgment of the Supreme
Court in L.Chandrakumar's case in answer to the issues and/or questions to the
question No. 1 that the power of the High Court under Articles 226 and 227
cannot be ousted by enacting any legislation under Articles 323 A & B and
this decision is declared law under Article 141 of Constitution. In other
words, if any provision made in this kind of legislation to oust the
jurisdiction under Articles 226 & 227 runs counter to the power of judicial
review conferred on the High Courts under Articles 226 & 227 and on the
Supreme Court under Article 32 of the Constitution as court of first
instance." Having thus observed, the learned Judge came to the conclusion
that the provisions of the Act were violative of the basic structure of the
Constitution and struck down the provisions of Sections 6,7 and 8 of the Act.
In our considered view, the learned Judge was not right in disposing of the
observations in L.Chandra Kumar (supra) by side-stepping them. The issues
considered by the Constitution Bench of this Court in L.Chandra Kumar (supra)
have been formulated (vide para 1) and they are as under:
(1) Whether the power conferred upon Parliament or the State Legislatures,
as the case may be, by sub- clause (d) of clause (2) of Article 323-A or by
sub- clause (d) of clause (3) of Article 323-B of the Constitution, to totally
exclude the jurisdiction of 'all courts', except that of the Supreme Court
under Article 136, in respect of disputes and complaints referred to in clause
(1) of Article 323-A or with regard to all or any of the matters specified in
clause (2) of Article 323-B, runs counter to the power of judicial review
conferred on the High Courts under Articles 226/227 and on the Supreme Court
under Article 32 of the Constitution? (2) Whether the Tribunals, constituted
either under Article 323-A or under Article 323-B of the Constitution, possess
the competence to test the constitutional validity of a statutory
provision/rule? (3) Whether these Tribunals, as they are functioning at present,
can be said to be effective substitutes for the High Courts in discharging the
power of judicial review? If not, what are the changes required to make them
conform to their founding objectives?" After an elaborate discussion of
the contentions urged before it, and careful appraisal of the law laid down in
several judgments, and noticing the critical comments made with regard to the
functioning of the Tribunals set up under Articles 323A and 323B of the
Constitution by the Law Commission of India and the Malimath Committee, finally
this Court observed thus in paragraphs 98 and 99 of the Judgment:
"98. Since we have analysed the issue of the constitutional validity of
Section 5(6) of the Act at length, we may now pronounce our opinion on this
aspect. Though the vires of the provision was not in question in Dr. Mahabal
Ram case , we believe that the approach adopted in that case, the relevant
portion of which has been extracted in the first part of this judgment, is
correct since it harmoniously resolves the manner in which Sections 5(2) and
5(6) can operate together. We wish to make it clear that where a question
involving the interpretation of a statutory provision or rule in relation to
the Constitution arises for the consideration of a Single Member Bench of the
Administrative Tribunal, the proviso to Section 5(6) will automatically apply
and the Chairman or the Member concerned shall refer the matter to a Bench
consisting of at least two Members, one of whom must be a Judicial Member. This
will ensure that questions involving the virus of a statutory provision or rule
will never arise for adjudication before a Single Member Bench or a Bench which
does not consist of a Judicial Member. So construed, Section 5(6) will no
longer be susceptible to charges of unconstitutionality.
99. In view of the reasoning adopted by us, we hold that clause 2(d) of
Article 323-A and clause 3(d) or Article 323-B, to the extent they exclude the
jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and
32 of the Constitution, are unconstitutional. Section 28 of the Act and the
"exclusion of jurisdiction" clauses in all other legislations enacted
under the aegis of Articles 323-A and 323-B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon the High Courts under
Articles 226/227 and upon the Supreme Court under Article 32 of the
Constitution is a part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts and Tribunals may
perform a supplemental role in discharging the powers conferred by Articles
226/227 and 32 of the Constitution. The Tribunals created under Article 323-A
and Article 323-B of the Constitution are possessed of the competence to test
the constitutional validity of statutory provisions and rules. All decisions of
these Tribunals will, however, be subject to scrutiny before a Division Bench
of the High Court within whose jurisdiction the Tribunal concerned falls. The
Tribunals will, nevertheless, continue to act like courts of first instance in
respect of the areas of law for which they have been constituted. It will not,
therefore, be open for litigants to directly approach the High Courts even in
cases where they question the vires of statutory legislations (except where the
legislation which creates the particular Tribunal is challenged) by overlooking
the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid
and constitutional and is to be interpreted in the manner we have indicated."
In our view, the opinion pronounced in para 98 and the directions given in para
99 clearly amount to 'law declared' within the meaning of Article 141 of the
Constitution of India. It was not open to the learned single Judge of the High
Court to take any view inconsistent with or deviating from the law thus laid
down. Hence, in our judgment, the findings made and the directions given by the
learned single Judge on contentions 2 and 3 must straightaway be set aside as
inconsistent with the law laid down by this Court which was binding on the High
Court.
The learned counsel for the respondents, however, faintly urged that
L.Chandra Kumar (supra) itself holds that the legislature has no power to
exclude the powers of the High Court under Articles 226 and 227 and the
directions given in para 98 and 99 were merely reiteration of the principle of
exhaustion of other remedies. We are unable to accede to this contention.
After analyzing the constitutional provisions, the Constitutional Bench of
this Court pointed out that Article 323A and clause 3(d) of Article 323B, to
the extent they exclude totally the jurisdiction of the High Court and Supreme
Court under Articles 226 and 227 and 32 of the Constitution were
unconstitutional. The constitutionality of the said provisions was saved by the
well known process of reading down the provisions.
This Court held that while the jurisdiction of the High Court under Article
226/227, and that of the Supreme Court under Article 32, could not be totally
excluded, it was yet constitutionally permissible for other Courts and
Tribunals to perform a supplementary role in discharging the powers conferred
on the High Court and the Supreme Court by Articles 226/227 and 32 of the
Constitution, respectively. Hence, it was held that as long as Tribunals
constituted perform a supplementary role, without exclusion of the jurisdiction
of High Court Articles 226 and 227 and of the Supreme Court, 32 of the
Constitution, the validity of the legislation constituting such Tribunals could
not be doubted. It was in these circumstances that a direction was given that
the Tribunals would act as authorities of the first instance, whose decisions
could be challenged before the Division Bench of the High Court in its writ
jurisdiction. Thus the Constitution Bench of this Court upheld section 56 of
the Administrative Tribunal Act, 1985 as valid and constitutional, interpreted
in the manner indicated in its judgment. We are, therefore, unable to accept
the contention of the learned counsel for the respondent for we are of the view
that the matter is no longer res integra.
We may now turn to the first contention which was urged before the High
Court, which failed to impress the High Court.
The learned counsel for the respondents relied on a judgment of this Court in
Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai and another (2004)
3 SCC 214 and urged that it is open to the respondent to canvas that the
finding of the single Judge of the High Court on the issue as to the nature of
the tribunal was erroneous and should be reversed, though there was no appeal
or cross objection filed. We shall assume that the respondents have such a
right to canvas the correctness of the finding of the single Judge of the High
Court on this issue and shall proceed to examine the contention on its merits.
It is contended that the Tribunal constituted under the impugned Act is not
a tribunal within the meaning of Article 323B (2)(d), at the highest, it may be
an ordinary tribunal.
Hence, the legislation constituting such a ordinary tribunal could not oust
the writ jurisdiction of the High Court as it did not fall within the
protective umbrella of Article 323B of the constitution.
Article 323 B reads as under:
"323B. Tribunals for other matters (1) The appropriate Legislature may,
by law, provide for the adjudication or trial by tribunals of any disputes,
complaints, or offences with respect to all or any of the matters specified in
clause (2) with respect to which such Legislature has power to make laws.
(2) The matters referred to in clause (1) are the following, namely :- xxxx
xxxx xxxxx (d) land reforms by way of acquisition by the State of any estate as
defined in article 31A or of any rights therein or the extinguishment or
modification of any such rights or by way of ceiling on agricultural land or in
any other way;" Clause (3) provides that a law made under clause (1),
inter alia, may exclude the jurisdiction of all courts except the jurisdiction
of the Supreme Court under Article 136 with respect to all or any other matter
falling within the jurisdiction of the said tribunal.
The view which was propounded in L. Sampat Kumar (supra), and reiterated
subject to qualification in Chandra Kumar (supra), is that a validly
constituted tribunal under Article 323B could take away some of the
jurisdiction of the High Courts.
In the instant case, the Tribunal has been constituted under the West Bengal
Tenancy Tribunal Act and it has been given the jurisdiction to entertain
disputes with regard to the five specified acts. Learned counsel for the
respondents argues thus: the tribunal contemplated under Article 323B clause
(1) read with clause (2) (d) can only be a tribunal for deciding disputes or
matters with respect to land reforms by way of acquisition of any estate as
defined in Article 31A. Article 31A itself defines the expression 'estate' in
clause (2). Both Article 31A and the definition of 'estate' in clause (2) of
Article 31A have received judicial interpretation by Constitutional Benches of
this Court which have uniformally taken the view that the protection of Article
31A is available only to laws which are intended to carry out agrarian reforms.
The predominant purpose of sub-clause (d) of clause (2) of Article 323B is to
constitute a tribunal only with respect to disputes pertaining to laws carrying
out agrarian reforms. Out of the 5 specified Acts, the West Bengal Land Reforms
Act, 1955, the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981
and the West Bengal Land Holding Revenue Act, 1979 have no connection
whatsoever with agrarian reforms. Therefore, the Tribunal constituted to deal
with these Acts cannot be a tribunal within the meaning of Article 323B(2)(d)
of the Constitution. Hence, the learned counsel contends that the impugned Act
is not immune from challenge on the ground of violation of the Constitutional
provisions.
The argument is unacceptable for three reasons. The first is the fallacious
assumption that in order to be a valid tribunal constituted under Article
323B(1) and 323B(2)(d), the tribunal must necessarily deal with laws for
agrarian reforms. In our view, the reading of the expression 'estate' from
clause (2) of Article 31A into Article 323B (2)(d) is only for the purpose of
enumeration. Instead of repeating the entire definition contained in clause (2)
of Article 31A in sub-clause(d) of 323B, the framers of the Constitution merely
indicated that the word 'estate' would have the same meaning as in Article 31A.
The reference to the definition of 'estate' in Article 31A made in Article 323B(2)(d)serves
no other purpose.
Secondly, the concept of 'agrarian reform' is not confined only to
agriculture or its reform. In the words of Krishna Iyer,J.
in his concurring judgment in State of Kerala and another vs.
The Gwalior Rayon Silk Mfg (Wvg.) Co. Ltd. Etc. (AIR 1973 SC 2734) (para
30):
"30. The concept of agrarian reform is a complex and dynamic one
promoting wider interests than conventional reorganization of the land system
or distribution of land. It is intended to realize the social function of the
land and includes we are merely giving, by way of illustration, a few familiar
proposals of agrarian reform creation of economic units of rural production,
establishment of adequate credit system, implementation of modern production
techniques, construction of irrigation systems and adequate drainage, making
available fertilizers, fungicides, herbicides and other methods of intensifying
and increasing agricultural production, providing readily available means of
communication and transportation, to facilitate proper marketing of the village
produce, putting up of silos, warehouses etc. to the extent necessary for
preserving produce and handling it so as to bring it conveniently within the
reach of the consumers when they need it, training of village youth in modern
agricultural practices with a view to maximizing production and help solve
social problems that are found in relation to the life of the agricultural
community. The village man, his welfare, is the target." Further, in
testing as to whether the law was intended for agrarian reform, the Court is
required to look to the substance of the act and not its mere outward form.
Thirdly, the contention also proceeds on a misreading of Article 323B
(2)(d). Under clause (1) the State Legislature is empowered to make a law with
regard to entry 18 in List II of the 7th Schedule which reads "Land, that
is to say, right in or over land, land tenures including the relation of
landlord and tenant, and the collection of rents; transfer and alienation of agricultural
land; land improvement and agricultural loans, colonization". Sub-clause
(d) of Article 323 B is not confined to land reforms by acquisitions of estates
or extinguishment or modification of any such rights for the clause ends with
the phrase "or in any other way", which are wide enough to
accommodate any other type of law which is intended for "land
reforms".
We are, therefore, unable to accept the contention of the learned counsel
that in order to fall within the protection of umbrella of Article 323B, the
tribunal must have been constituted only with regard to disputes arising under
any law intended for agrarian reform. As long as it is a law with respect to
"land reforms", it is sufficient to fall within the ambit of sub-
clause (d) of clause (2) of Article 323B of the Constitution.
"Agrarian reforms", itself is a wide concept and we do not see why
the objects attempted to be fulfilled by the specified Acts would not fall
within the ambit of this compendious term.
Looking at the preambles and the schemes of the five specified Acts, we are
unable to find fault with the reasoning of the learned single Judge that the
tribunal constituted to deal with the disputes arising under the said specified
Acts was very much a tribunal within the meaning of Article 323B of the
Constitution.
We, therefore, accept the reasoning of the learned single Judge and hold
that the learned single Judge was justified in rejecting the contention that
the tribunal constituted under the impugned Act was not a tribunal within the
meaning of Article 323B of the Constitution. There is no merit in the
contention.
In the result, the appeal is allowed and the impugned judgment of the High
Court is set aside.
However, in the circumstances of the case, there shall be no order as to
costs.
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