Calcutta High Court (Appellete Side)
Present vs The Union Of on 5 May, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
5.5.2011. W.P.L.R.T. No. 187 of 2010
Re: C.A.N. No. 628 of 2011
Pratap Kumar Ray, J.
Nobody appears to place this application for leave to move the writ application registered as W.P.L.R.T. No. 187 of 2010.
From the application for leave, it appears that the present petitioner was not a party in Original Application No. 2103 of 2009 (LRTT) before the West Bengal Land Reforms and Tenancy Tribunal.
The writ petitioner has claimed ownership over the concerned property, which was the subject matter of lis of said original application being O.A. No. 2103 of 2009. Jurisdiction of the High Court under Articles 226/227 of the Constitution of India is a jurisdiction declared by the Apex Court in the case L. Chandra Kumar -vs- The Union of India & Ors. reported in JT 1997 (3) SC 589 wherein the vires of the Administrative Tribunals Act was under
challenge assailing ouster provision about jurisdiction of the Writ Court by statute to assail any order passed by the Tribunal.
Having regard to the subject matter and the issue, Apex Court held that the jurisdiction of the High Court under Articles 226/227 of Constitution of India could not be ousted by statute applying basic structure principle and accordingly observed that the Tribunal as set up following 2 the Administrative Tribunals Act in exercise of power under Articles 323A and 323B of the Constitution of India by the Parliament by setting up the Administrative Tribunals dealing with subject matters arose out of disputes relating to specified Acts as was identified in the concerned Act framed, would be original forum to agitate the issue and therefrom matter could be moved assailing the order of the Tribunals in the High Court under jurisdiction of Articles 226/227 of the Constitution of India. It has been observed in L. Chandra Kumar (supra) that the Tribunals will be courts of first instance in respect of the areas of law for which they have been constituted. The relevant paragraphs 93 and 99 of L. Chandra Kumar (supra) read such:-
"93. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court. We have already emphasised the necessity for ensuring that the High Court are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of the Constitution. In R.K. Jain's case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a 3 High Court within whose territorial jurisdiction the Tribunals falls, be perused. It appears that no follow up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the afore-stated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls."
"99. The suggestions that we have made in respect of appointments to Tribunals and the supervision of their administrative function need to be considered in detail by those entrusted with the duty of formulating the policy in this respect. That body will also have to take into consideration the comments of expert bodies like the LCI and the Malimath Committee in this regard. We, therefore, recommend that the Union o India initiate action in this behalf and after consulting all e3concerned, place all these Tribunals under one single nodal department, preferably the Legal Department."
The said issue cropped up in the Apex Court in a case Rajeev Kumar & Anr. -vs- Hemraj Singh Chauhan & Ors. reported in (2010) 4 SCC 554 on the point as to whether a non-party before a Tribunal in any proceeding as set up under the constitutional provision aforesaid may approach the High Court assailing the order of Tribunal. In that case the subject matter of dispute was service dispute within the domain of Service Tribunal that is 4 Administrative Tribunal. The Court answered the point that as in L. Chandra Kumar (supra) it is categorical view of the Apex Court that the concerned Tribunals as to be set up in respect of areas of law for which they have been constituted, will be courts of first instance, accordingly a person, who is not a party in a proceeding before the Tribunal, cannot assail the order of the Tribunal in the Writ Court. It is held that remedy lies to any such person, who is aggrieved by the order of learned Tribunal, to pray review of the order of Tribunal by filing appropriate application before the learned Tribunal itself. The view of Rajeev Kumar (supra) has been detailed in paragraphs 13, 14 and 16 which read such:-
"13. In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which CAT has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with great respect, fell into an error by allowing the appellants to treat the High Court as a court of first instance in respect of their service disputes for adjudication of which CAT has been constituted.
14. The grievances of the appellants in this appeal are that they were not made parties in proceedings before the Tribunal. But in the impleadment application filed before the High Court it was not averred by them that they were not aware of the pendency of the proceedings before the Tribunal. Rather from the averments made in the impleadment petition it appears that they were aware of the pendency of the proceedings before the Tribunal. It was therefore, open for them to approach the Tribunal with their grievances. Not having done so, they cannot, in view 5 of the clear law laid down by the Constitution Bench of this Court in L. Chandra Kumar, approach the High Court and treat it as the court of first instance in respect of their grievances by "overlooking the jurisdiction of the Tribunal".
CAT also has the jurisdiction of review under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987. So, it cannot be said that the appellants were without any remedy.
16. The principles laid down in L. Chandra Kumar virtually embody a rule of la and in view of Article 141 of the Constitution the same is binding on the High Court. The High Court fell into an error by allowing the appellants to approach it in clear violation of the Constitution Bench judgement of this Court in L. Chandra Kumar."
Under Section 16 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997, a Tribunal is vested with the power to review its decision. The said provision appears in Section 16 (d) which reads such:-
"16. Power of Tribunal to take evidence on oath etc. - The Tribunal shall for the purposes of this Act, have the same powers as are vested in a Civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters:-
(a) ............
(d) reviewing its decisions;"
Since the Land Reforms and Tenancy Tribunal is vested with power to review its decision exercising the power as vested in a Civil Court to review its order under the Code of Civil Procedure, 1908 while trying a suit, we are of the view that present writ application assailing the order of Tribunal is not maintainable following the decision Rajeev Kumar (supra).
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The petitioner is at liberty to move the learned Tribunal below seeking review of the impugned order before us in accordance with law.
As the writ application is not maintainable, on the said reasoning, the application seeking leave to file the writ application being C.A.N. No. 628 of 2011 stands dismissed. As a consequence of dismissal of application for leave, the writ application also stands dismissed.
(Pratap Kumar Ray, J.) I agree.
(Md. Abdul Ghani, J.) sks.