Calcutta High Court (Appellete Side)
M/S. Howrah Trading Corporation vs The State Of West Bengal & Ors on 5 June, 2014
Author: Harish Tandon
Bench: Harish Tandon
1
380 05.06.14 W.P. 24325 (W) of 2013
akd
M/s. Howrah Trading Corporation
Vs.
The State of West Bengal & Ors.
--------
Mr. Sukumar Bhattacharyya, Ms. Piyali Show.
... for the petitioner.
Mr. Sailaja nanda Bhattacharyya, Mr. Somnath Bhattacharyya.
... for the State.
Though an innocuous prayer is made in this writ petition for a direction upon the concerned authority to dispose of the representation made for early disposal of the proceedings initiated under the provisions of West Bengal Land Reforms Act, a plea has been taken at the instance of the respondents that the Single Bench of this Court should not entertain the writ petition under Article 226 of the Constitution of India.
The writ petition proceeds on the basis of inaction on the part of the Block Land & Land Reforms Officer, Sankrail in disposing of the proceedings initiated for correction of the record of rights erroneously recorded therein. The petitioner says that the power of the High Court under Article 226 or 227 of the Constitution of India is not taken away despite the existence of alternative remedy and the Court in appropriate case can invoke such jurisdiction. To buttress the aforesaid submission reliance is placed upon a judgement of the Supreme 2 Court in case of ABL International Ltd. & Anr. Vs. Export Credit Guarantee Corporation of India Ltd. & Ors. reported in (2004) 3 SCC 553.
The petitioner further submits that the High Court enjoins plenary jurisdiction under Article 226/227 of the Constitution of India, which cannot be restricted or brindled by promulgation of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997.
Before proceeding to deal with the point canvassed as above, it would be profitable to quote the relevant provisions of West Bengal Land Reforms and Tenancy Tribunal Act, 1997.
"6. Jurisdiction, power and authority of Tribunal. - 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) any order made by an Authority under a specified Act;
(b) an application complaining inaction or culpable negligence of an Authority under a specified Act;
(c) an appeal against an order of the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953 (West Ben. Act I of 1954);
(d) applications relating to matters under any provision of a specified Act or matters relating to any constitutional validity of any Act under the provisions of a specified Act;
(e) adjudication of matters, proceedings, cases and appeals which stand transferred from the 3 High Court and other Authorities to the Tribunal in accordance with the provisions of this Act.
7. Exercise by Tribunal of Jurisdiction power and authority execisable by court. - Save as otherwise expressly provided in this Act, the Tribunal shall, with effect from the date appointed by the State Government under section 6, 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 provisions of a specified Act.
8. Exclusion of jurisdiction of courts.-- On and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, 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, shall not 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.
9. Transfer of case records from High Court. -
(1) All 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 pending before the High Court, except where a Division Bench of that Court exercises writ jurisdiction under Articles 226 and 227 of the 4 Constitution, on the date appointed by the State Government under section 6, shall stand transferred to the Tribunal for disposal in accordance with the provisions of this Act.
(2) Where any matter, proceeding, case or appeal stands transferred from the High Court to the Tribunal under sub-section (1) --
(a) the High Court shall, as soon as may be after such transfer, forward the records of such matter, proceeding, case or appeal to the Tribunal in accordance with such procedure as may be prescribed; and
(b) the Tribunal shall, on receipt of such records, proceed to dispose of such matter, proceeding, case or appeal so far as may be, from the stage reached before such transfer or from any earlier stage or de novo as it may deem fit :
Provided that any interim order granted in a matte, proceeding or case by the High Court shall stand vacated on the expiry of twelve weeks from the date appointed by the State Government under section 6 unless the Tribunal by an order varies, modifies or extends the same earlier on an examination of the records of such matte, proceeding or case.
(3) (a) All proceedings pending before the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953 (West Ben. Act I of 1954) on the date appointed by the State Government under section 6 of this Act, shall stand transferred to the Tribunal for disposal.
(b) Upon such transfer, the records of such proceedings shall be forwarded to the Tribunal in accordance with such procedure as 5 may be prescribed."
The aforesaid Act was promulgated in exercise of powers conferred under Article 323B of the Constitution for speedy, expeditious and timely disposal of the proceedings relating to the specified Act. It admits no ambiguity that the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 is incorporated within the definition of a specified Act assigned under Section 2 (r) of the said Act. Section 6(b) of the said Act confers jurisdiction on the Tribunal in relation to an application complaining inaction or culpable negligence of an Authority under a specified Act. As indicated above, the grievance raised in this writ petition relates to inaction on the part of the State authority in disposing of the proceedings originated on an application taken out for correction of the record of rights. Section 7 of the said Act expressly provides that the writ jurisdiction under Articles 226 and 227 of the Constitution exercisable by a Division Bench of the High Court is not bestowed upon the Tribunal, even if it pertains to an order or eventuality contemplated under Section 6 of the said Act under the specified Act. Section 8 of the said Act abundantly makes clear that on and from the date of coming in force of the said Act the power and authority exercisable by the High Court except those by the Division Bench is vested upon the Tribunal to be exercised as such; even Section 9 makes imperative to transfer of the pending proceedings or matters pertaining to the specified Act from the High 6 Court, except those exercisable or pending before the Division Bench, to be transferred to the Tribunal for disposal in accordance with law.
Since the matters, which are entertainable or maintainable before the Single Bench of High Court, are intended to be adjudicated by the Tribunal, the writ petition should not be entertained by the Single Bench, if any dispute is raised, which is covered under any of the contingencies recorded under Section 6 of the said Act relating to the specified Act. The aforesaid proposition can further be fortified from a Constitution Bench decision of the Supreme Court rendered in case of L. Chandra Kumar vs. Union of India reported in (1997) 3 SCC 261, wherein it is held that the Tribunal created under Articles 323A and 323B of the Constitution possessed powers and competence even to test the constitutional validity of the statutory provisions and rules pertaining to the specified Act, which is, however, subject to the further scrutiny by the Division Bench of the High Court under Articles 226 and 227 of the Constitution of India. It would be apt to quote paragraph 99 of the said judgement, which reads thus :
"In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of 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 7 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 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 jurisdictioin 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."
It is no longer res integra that the existence of alternative remedy is not an absolute bar in exercising the power of judicial review enshrined under Article 226 or the power of superintendence under Article 227 of the Constitution of India. In paragraph 28 of the judgement rendered in ABL International (supra), it is held that the powers under Articles 226 and 227 of the Constitution cannot be curtailed if an action of the State or its instrumentality is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. Even in case of L. Chandra Kumar (supra), the Constitution Bench of the 8 Supreme Court upheld the authority or power conferred by the High Court under Articles 226 and 227 of the Constitution against the order passed by the State or its instrumentality, as their actions are not immuned from being tested or judged on the parameters of the Constitutional or statutory provisions. Even The Constitution Bench has held that the action of the authorities under the specified Act is capable of being assailed before the High Court under Articles 226 and 227 of the Constitution, but after exhausting the remedy before the Tribunal constituted under Articles 323-A and 323-B of the Constitution.
This Court, therefore, does not concur with the submissions of the petitioner that the writ petition before the Single Bench is maintainable for inaction on the part of the authorities constituted under the specified Act despite the promulgation of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. This Court, therefore, finds that the writ petition is not entertainable.
The writ petition is thus dismissed.
However, it is made clear that the dismissal of this writ petition shall not prevent the petitioner in approaching the appropriate forum in accordance with law.
There will be no order as to costs.
(HARISH TANDON, J.) 9