Calcutta High Court (Appellete Side)
Popat & Kotecha Property & Anr vs The State Of West Bengal & Ors on 14 July, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
1
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Tapan Kumar Dutt
And
The Hon'ble Mr. Justice Prasenjit Mandal
WP No.331 of 2009
Popat & Kotecha Property & Anr.
Versus
The State of West Bengal & Ors.
For the Petitioner: Mr. Saptangshu Basu,
Mrs. Vijaya Bhatia,
Mr. Debajyoti Datta,
Mrs. Anisha Surana.
For the State/Respondents: Mr. Balai Chandra Roy,
Mr. Sandip Srimani.
Heard on: 02.05.2011.
Judgment on: 14th July, 2011.
Bhaskar Bhattacharya, J.:
By this writ application, although the writ-petitioner initially prayed for declaration that Section 2(r) (vi) of the West Bengal Land Reforms & Tenancy 2 Tribunal (Amendment Act, 2002) is ultra vires the Constitution of India, subsequently, in view of the decision of the Supreme Court in the case of Union of India vs. R. Gandhi reported in (2010) 11 SCC page 1, during the pendency of this writ-application, Mr. Basu, the learned Senior Advocate appearing on behalf of the writ petitioner, extended the scope of the writ-application and attacked various other provisions of the West Bengal Land Reforms & Tenancy Tribunal Act, 1997 as ultra vires the Constitution of India, as according to him, those provisions are unable to stand the tests indicated by the Supreme court in the aforesaid case of R. Gandhi.
In view of the prayer of the writ-petitioner for permitting him to take the aforesaid additional grounds, we adjourned the matter from time to time to enable Mr. Roy, the learned Advocate General, appearing on behalf of the State/Respondent, to answer the additional questions raised by the writ-
petitioner.
The contentions of the learned Advocate for the petitioner in support of the writ-application, as it originally stood, may be summed up thus:
a) The West Bengal Land Reforms & Tenancy Tribunal Act, 1997 ("WBLRTT Act") along with its Rules contained various anomalies and are in direct conflict with the West Bengal Premises Tenancy Act, 1997.3
b) The WBLRTT Act was enforced with effect from 3rd August, 1998 vide Notification No.2788-L dated 12.12.1997 published in the Kolkata Gazette on 12.12.1997.
c) The West Bengal Premises Tenancy Act, 1997 was enforced with effect from 10th July 2001 vide Notification No.3052L dated 9th July 2001 published in the Kolkata Gazette on the same day.
d) The WBLRTT Act, was amended by the WBLRTT (Amendment) Act of 2002, (notified on 17th July, 2002), whereby Section 2(r) of the WBLRTT Act was amended and Section 2(r)(vi) was inserted therein, to include West Bengal Premises Tenancy Act as a "specified Act"
under the said Act with effect from 10th July, 2001.
e) By virtue of the inclusion of the WBPT Act as a specified Act under the WBLRTT Act, Section 6(b) and (d) of the WBLRTT Act gave the LRT Tribunal jurisdiction, inter alia, to hear and decide applications against any inaction or culpable negligence of an Authority under the WBPT Act as also any applications challenging the constitutional validity of the WBPT Act.
f) However, Section 10 of the WBLRTT Act provided only applications by way of appeal from any order passed by an Authority or any action taken by an Authority, but does not cover applications "complaining inaction or culpable negligence of an Authority under a Specified Act" or applications "relating to constitutional validity of 4 any Act under the provisions of a Specified Act" as referred to in Section 6 of the said Act.
g) Thus, Section 10 of the said Act is clearly in conflict with the provisions of Section 6 of the said Act. There are also no other sections or provisions in the said Act which provide for making application referred to in Section 6(b) and (d) of the said Act.
h) If, by applying the canons of interpretations of statutes Section 10 of the WBLRTT Act is held to prevail over Section 6 (b) and (d) thereof, then sub-section (b) and (d) of Section 6 are effectively nullified. The jurisdiction of the High Court having been curtailed by virtue of Sections 7 and 8 of the said Act, the petitioners are left without a forum to challenge the vires and/or the constitutional validity of the WBPT Act 1997. By virtue of the same, the petitioners are also left without any remedy against the inaction of the Controller in not sending copies of the applications for deposit of rent by the tenants to the petitioners. The provisions of Section 10 of the WBLRTT Act are clearly arbitrary, discriminatory and arbitrary and being violative of your petitioners' rights under Article 14 of the Constitution of India, ought to be struck down as ultra vires.
i) The rules framed under the WBLRTT Act also do not provide for making of any such applications as provided for in Section 6(b) and 5
(d) of the said Act. Though the heading of Rule 3 mentions "Filing of applications under Section 6 or Section 10", it does not provide for applications against "inaction or culpable negligence of an Authority under a Specified Act" or applications "relating to constitutional validity of any Act under the provisions of a Specified Act" as referred to in Section 6(b) and 6(d) of the said Act.
j) The Rules are, and in particular, the Rule 3, is vague, arbitrary, contrary to the parent Sections of the Act and are liable to be struck down as unworkable and ultra vires Article 14 of the Constitution of India.
k) Apart from the aforesaid anomalies in the WBLRTT Act, after the amendment of the WBPT Act, 1997 in 2005 the provisions of the said Act are now in conflict with the provisions of the WBLRTT Act, as would be evident from the following paragraphs.
l) Before the amendment of the WBPT Act in 2005, all matters relating to the provisions of the WBPT Act, including the eviction of tenants, used to be filed before the Controller or the Additional Controller or Deputy Controller who used to function under the direction of the Controller. The amendment in 2005 brought about a major change in the Act in that, inter alia, matters relating to eviction of tenants were taken out from the purview of the Controller and placed within 6 the domain of a Civil Judge. Thus, instead of filing applications for eviction of tenants before the Controller, landlords were required to file suits before a Civil Judge praying for a Decree for eviction of tenants. The jurisdiction of Small Causes Courts was also taken away by such amendment.
m) Another amendment that was made is that the Controller, Additional Controller or Deputy Controller was to be a member of either the Indian Administrative Service or from the Executive Branch of the State civil service. The previous requirement of the Controller being a member from the judicial branch of the State civil service was deleted.
n) Section 7 of the WBLRTT Act clearly states that from the date of coming into force of the Tribunal, the Tribunal "shall exercise all the jurisdiction power and authority exercisable immediately before that day by the court including the High Court" in relation to "matters arising out of any provisions of a specified Act". Section 7 however retained the writ jurisdiction under Article 226 and 227 of the Constitution exercised by the Division Bench of this Hon'ble Court.
o) Section 8 of the WBLRTT Act clearly bars any civil courts to entertain any "matter under any provision of a specified Act." 7
p) The provisions of Sections 7 and 8 of the WBLRTT Act are clearly contradictory to provisions of sections 6, 7, 9 and 11 in the WBPT Act which deal with the ambit of the Civil Judge.
q) After the amendment of Sections 6, 7, 9 and 11 of WBPT Act, a further amendment ought to have been made in the WBLRTT Act, and WBPT Act ought to have been brought out of its ambit as a specified Act. It is to be noted that when WBPT Act was included in section 2(r) (vi) as a specified Act, all the powers and functions under the WBPT Act had been vested in and exercised by the Controller; it is only in 2005 that the Civil Judge has been vested with powers Sections 6, 7, 9 and 11 by way of amendment and the Controller's powers in those respects have been take away. Till the coming into force of the WBPT Act 1997 on 10th July 2001 the old WBPT Act 1956 was kept out of the ambit of WBLRTT Act only because it had given powers to Civil Judges to decide eviction suits and the powers to Controllers were restricted to deposit of rent and fixation of fair rent. Thus after the amendment of 2005, WBPT Act 1997 ought to have been taken out of the purview of the WBLRTT Act.
r) The provisions of Rule 3 of the West Bengal Land Reforms and Tenancy Tribunal Rules, 1997 is contradictory to Section 6 to 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. Due to inclusion of Section (2)(r)(vi) of the West Bengal Land Reforms and 8 Tenancy Tribunal Act 1997, the provisions of Land Reforms and Tenancy Tribunal Act and the provisions of West Bengal Premises Tenancy Act are contradictory to each other. It cannot be presumed that legislature has made a mistake, but its deliberate mistake on the part of legislature and thus, the intention of legislature is mala fide. Hence, Section 2(2) of the West Bengal Land Reforms and Tenancy Tribunal (Amendment) Act of 2002 by which Section 2(r) was amended should be struck down.
s) Section 2(2) of the WBLRTT (Amendment) Act of 2002 by which section 2(r) of the WBLRTT Act, 1997 was amended ought to be struck down as ultra vires along with Section 2(r)(vi) of the WBLRTT Act, 1997 as being unworkable and arbitrary for the reasons aforesaid.
However, during the pendency of this Reference, the West Bengal Act XXXII of 2010 and West Bengal Act XXIX of 2010 have been assented to by the Governor of West Bengal and by virtue of the aforesaid two Amending Acts, it appears that some of the disputes referred to in this writ-application particularly with reference to the right of the Tribunal in relation to the adjudication of the eviction-disputes between the landlord and the tenant governed by the West Bengal Premises Tenancy Act have lost their relevance. The aforesaid two amending Acts are quoted below:
9"Registered No.WB/SC-247 No.WB(Part-III/2010/SAR-33 The Kolkata Gazette Extraordinary Published by Authority _________________________________________________________________ ASVINA 28] WEDNESDAY, OCTOBER 20, 2010 [SAKA 1932 _________________________________________________________________ PART III-Acts of the West Bengal Legislature.
GOVERNMENT OF WEST BENGAL LAW DEPARTMENT Legislative NOTIFICATION No.1460-L.-20th October, 2010.-The following Act of the West Bengal Legislature, having been assented to by the Governor, is hereby published for general information:-
West Bengal Act XXXII of 2010 THE WEST BENGAL PREMISES TENANCY (AMENDMENT) ACT, 2010.
[Passed by the West Bengal Legislature.] [Assent of the Governor was first published in the Kolkata Gazette, Extraordinary, of the 20th October, 2010.] An Act to amend the West Bengal Premises Tenancy Act, 1997. WHEREAS it is expedient to amend the West Bengal Land Reforms and Tenancy Tribunal Act, West Ben.
1997, for the purposes and in the manner Act XXV of
hereinafter appearing; 1997.
10
It is hereby enacted in the Sixty-first Year of the Republic of India by the Legislature of West Bengal, as follows:-
1. (1) This Act may be called the West Bengal Land Reforms and Tenancy Tribunal (Amendment) Act, 2010.
Short title and (2) It shall come into force on such date as commenc the State Government may, by notification, ement appoint.
The West Bengal Land Reforms and Tenancy Tribunal (Amendment) Act, 2010.
(Sections 2, 3.)
2. In the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereinafter referred to as Amendme the principal Act), for item (vi) of clause (r) of nt of section 2, the following item shall be section 2 substituted:-
of West Ben. Act XXV of 1997.
"(vi) the West Bengal Premises tenancy Act, 1997 (only against final order of the Controller);" West Ben.
Act XXXVII of 1997.
3. The amendment made in the principal Act by section 2 shall be deemed to have been made 11 Validation with effect from the 10th day of July, 2001 and . accordingly anything done or any action taken or purported to have been taken or done under the principal Act on or after the said date and before the commencement of this Act, shall, notwithstanding anything contrary contained in any judgment, decree or order of any court, tribunal or other authority, be deemed to be, and to have always been for all purposes, as validly and effectively taken or done as if the said amendment had been in force at all material time.
By order of the Governor, K.Y.S. MANHAS, Pr. Secy.-in-charge to the Govt. of West Bengal, Law Department."
"Registered No.WB/SC-247 No.WB(Part-III/2010/SAR-29) The Kolkata Gazette Extraordinary Published by Authority ASVINA 13] TUESDAY, OCTOBER 5, 2010 [SAKA 1932 ________________________________________________________________________ PART III-Acts of the West Bengal Legislature. GOVERNMENT OF WEST BENGAL LAW DEPARTMENT Legislative 12 NOTIFICATION No.1415-L.-5TH October, 2010.-The following Act of the West Bengal Legislature, having been assented to by the Governor, is hereby published for general information:-
West Bengal Act XXIX of 2010 THE WEST BENGAL PREMISES TENANCY (AMENDMENT) ACT, 2010.
[Passed by the West Bengal Legislature.] [Assent of the Governor was first published in the Kolkata Gazette, Extraordinary, of the 5th October, 2010.] An Act to amend the West Bengal Premises Tenancy Act, 1997.
WHEREAS it is expedient to amend the West Bengal Premises Tenancy Act, 1997, for the purposes West and in the manner hereinafter appearing; Ben.
Act XXXVII of 1997.
It is hereby enacted in the Sixty-first Year of the Republic of India, by the Legislature of West Bengal, as follows:-
1. (1) This Act may be called the West Bengal Short title and Premises Tenancy (Amendment) Act, 2010.
commencement (2) It shall come into force on such date as the State Government may, by notification, appoint.
The West Bengal Premises Tenancy (Amendment) Act, 2010.
13(Sections 2-4.)
2. To section 39 of the West Bengal Premises Amendment of Tenancy Act, 1997 (hereinafter referred to as section 39 of the principal Act), the following Explanation West Ben. Act shall be added:-
XXXVII of 1997 "Explanation.- For the removal of doubt, it is hereby declared that the proceeding under this section means a proceeding which relates to fixation of fair rent in relation to any premises to which this Act applies and includes an application for execution and any other proceeding whatsoever which the Controller is empowered to decide under section 35, section 36, section 37 or other sections of the Act but does not include a suit or proceeding under section 6, section 7, section 9 or section 11 of the Act."
Insertion of new 3. After section 43 of the principal Act, the section 43A.
following section shall be inserted:-
43A. The procedure for filing an appeal against 5 of decree or final order of Civil Judge, and the 1908. powers to be exercised and the procedure to be followed in admitting and dealing with such "Appeal revision appeal, shall be the same as in case of appeals and review under the Code of Civil Procedure, 1908. In against decree case of revision and review against any decree or final order of or final order of Civil Judge, the provisions of Civil Judge.
the Code of Civil Procedure, 1908, mutatis mutandis, apply."
4. The amendments made in the principal Act by 14 Validation. section2 section 3 shall be deemed to have been made with effect from the 10th day of July, 2001 and accordingly anything done or any action taken or purported to have been taken or done under the principal Act on or after the said date and before the commencement of this Act, shall, notwithstanding anything contrary contained in any judgement, decree or other of any court, tribunal or other authority, be deemed to be, and to have always been for all purposes, as validity and effectively taken or done as if the said amendments had been in force at all material time.
By order of the Governor, K.Y.S. MANHAS, Pr. Secy.-in-charge to the Govt. of West Bengal, Law Department."
Thus, Mr. Basu, the learned Senior Advocate appearing on behalf of the writ-petitioner, at the time of hearing, mainly relied upon the decision of the Supreme Court in the case of Union of India vs. R. Gandhi (Supra), and contended that the Act, as it now stands even after the aforesaid amendment, should be struck down as violative of Article 14 of the Constitution of India.
Mr. Basu before making his submission heavily relied upon the following observations of the Supreme Court in the above matter:
15"112. What is a matter of concern is the gradual erosion of the independence of the judiciary, and shrinking of the space occupied by the judiciary and gradual increase in the number of persons belonging to the civil service discharging functions and exercising jurisdiction which was previously exercised by the High Court. There is also a gradual dilution of the standards and qualification prescribed for persons to decide cases which were earlier being decided by the High Courts. Let us take stock. 112.1. To start with, apart from jurisdiction relating to appeals and revisions in civil, criminal and tax matters (and original civil jurisdiction in some High Courts), the High Courts were exercising original jurisdiction in two important areas; one was writ jurisdiction under Articles 226 and 227 (including original jurisdiction in service matters) and the other was in respect to company matters.
112.2. After constitution of the Administrative Tribunals under the Administrative Tribunals Act, 1985 the jurisdiction in regard to original jurisdiction relating to service matters was shifted from the High Courts to the Administrative Tribunals. Section 6 of the said Act deals with qualifications for appointment as Chairman, and it is evident therefrom that the Chairman has to be a High Court Judge either a sitting or a former Judge. For judicial member the qualification was that he should be a Judge of a High Court or is qualified to be a Judge of the High Court (i.e. an advocate of the High Court with ten years' practice or a holder of a judicial office for ten years) or a person who held the post of Secretary, Government of India in the Department of Legal Affairs or in the Legislative Department or Member-Secretary, Law Commission of India for a period of two years; or an Additional Secretary to Government of 16 India in the Department of Legal Affairs or Legislative Department for a period of five years.
112.3. For being appointed as Administrative Member, the qualification was that the candidate should have served as Secretary to the Government of India or any other post of the Central or the State Government carrying the scale of pay which is not less than as of a Secretary of the Government of India for at least two years, or should have held the post of Additional Secretary to the Government of India or any other post of the Central or the State Government carrying the scale of pay which is not less than that of an Additional Secretary to the Government of India at least for a period of five years. In other words, matters that were decided by the High Courts could be decided by a Tribunal whose members could be two Secretary level officers with two years' experience or even two Additional Secretary level officers with five years' experience. This was the first dilution.
112.4. The members were provided a term of office of five years and could hold office till 65 years and the salary and other perquisites of these members were made the same as that of High Court Judges. This itself gave room for a comment that these posts were virtually created as sinecure for members of the executive to extend their period of service by five years from 60 to 65 at a higher pay applicable to High Court Judges. Quite a few members of the executive thus became members of the "Tribunals exercising judicial functions".
112.5. We may next refer to the Information Technology Act, 2000 which provided for establishment of the Cyber Appellate Tribunal with a single member. Section 50 of that Act provided that a person who is, or has been, or is qualified to be, a Judge of a High Court, or a person who is, or has been, a member of the Indian Legal Service 17 and is holding or has held a post in Grade I of that service for at least three years could be appointed as the Presiding Officer. That is, the requirement of even a Secretary level officer is gone. Any member of Indian Legal Service holding a Grade I post for three years can be a substitute for a High Court Judge.
112.6. The next dilution is by insertion of Part I-B in the Companies Act, 1956 with effect from 1-4-2003 providing for constitution of a National Company Law Tribunal with a President and a large number of judicial and technical members (as many as 62). There is a further dilution in the qualifications for members of the National Company Law Tribunal which is a substitute for the High Court, for hearing winding-up matters and other matters which were earlier heard by the High Court. A member need not even be a Secretary or Additional Secretary level officer. All Joint Secretary level civil servants (that are working under the Government of India or holding a post under the Central and the State Government carrying a scale of pay which is not less than that of the Joint Secretary to the Government of India) for a period of five years are eligible. Further, any person who has held a Group A post for 15 years (which means anyone belonging to Indian P&T Accounts and Finance Service, Indian Audit and Accounts Service, Indian Customs & Central Excise Service, Indian Defence Accounts Service, Indian Revenue Service, Indian Ordnance Factories Service, Indian Postal Service, Indian Civil Accounts Service, Indian Railway Traffic Service, Indian Railway Accounts Service, Indian Railway Personal Service, Indian Defence Estates Service, Indian Information Service, Indian Trade Services, or other Central or State Service) with three years of service as a member of the Indian Company Law Service (Account) Branch, or who has "dealt" with any problems relating to company law can become a member. This means that the cases which were being 18 decided by the Judges of the High Court can be decided by two members of the civil services--Joint Secretary level officers or officers holding Group A posts or equivalent posts for 15 years, can now discharge the functions of the High Court. This again has given room for comment that qualifications prescribed are tailor-made to provide sinecure for a large number of Joint Secretary level officers or officers holding Group A posts to serve up to 65 years in tribunals exercising judicial functions.
112.7. The dilution of standards may not end here. The proposed Companies Bill, 2008 contemplates that any member of the Indian Legal Service or the Indian Company Law Service (Legal Branch) with only ten years' service, out of which three years should be in the pay scale of Joint Secretary, is qualified to be appointed as a judicial member. The speed at which the qualifications for appointment as members is being diluted is, to say the least, a matter of great concern for the independence of the judiciary.
113. When the Administrative Tribunals were constituted, the presence of members of civil services as Technical (Administrative) Members was considered necessary, as they were well versed in the functioning of government departments and the rules and procedures applicable to government servants. But the fact that senior officers of civil services could function as Administrative Members of the Administrative Tribunals, does not necessarily make them suitable to function as technical members in the Company Law Tribunals or other tribunals requiring technical expertise. The tribunals cannot become providers of sinecure to members of civil services, by appointing them as technical 19 members, though they may not have technical expertise in the field to which the tribunals relate, or worse, where purely judicial functions are involved. While one can understand the presence of the members of the civil services being technical members in Administrative Tribunals, or Military Officers being members of the Armed Forces Tribunals, or electrical engineers being members of the Electricity Appellate Tribunal, or telecom engineers being members of TDSAT, we find no logic in members of the general civil services being members of the Company Law Tribunals.
114. Let us now refer to the dilution of independence. If any member of the tribunal is permitted to retain his lien over his post with the parent cadre or ministry or department in the civil service for his entire period of service as member of the tribunal, he would continue to think, act and function as a member of the civil services. A litigant may legitimately think that such a member will not be independent and impartial. We reiterate that our observations are not intended to cast any doubt about the honesty and integrity or capacity and capability of the officers of civil services in particular those who are of the rank of Joint Secretary or for that matter even junior officers. What we are referring to is the perception of the litigants and the public about the independence or conduct of the members of the tribunal. Independence, impartiality and fairness are qualities which have to be nurtured and developed and cannot be acquired overnight. The independence of members discharging judicial functions in a tribunal cannot be diluted."
(Emphasis supplied by us).
20The submissions of Mr. Basu attacking the alleged unconstitutionality of the Act based on the above observations may be epitomized thus:
a) In the matter of appointment of administrative members of the Tribunal, the State Government has the absolute authority by ignoring even the advice of the Chairman of the Selection Committee who happens to be the nominee of the Chief Justice and a judge of this court, inasmuch as, in the Selection Committee, the nominee of the Chief Justice, although is the Chairman, is a minority, if the other two members, being nominated by the State Government, decide to remain united.
b) The qualifications of the Administrative Member of the Tribunal do not pass the tests laid down by the Supreme Court in the case of R. Gandhi (supra) as his qualification fixed by the Act is that of not below the rank of a Joint Secretary, either of the Central Government or the State Government and even in the absence of any administrative experience in dealing with matters relating to all the specified Acts, one is entitled to be appointed as such.
c) On a conjoint reading of the provisions contained in Articles 323A and 323 B of the Constitution, it would appear that while there is specific provisions of constituting one service Tribunal for the State Government Employees and another for the Central Government Employees, as provided in Article 323A, there cannot be one Tribunal lawfully 21 constituted for dealing with the matters relating to more than one specified Act and in this case, the Tribunal being constituted for dealing with matters relating to several specified Acts, the constitution thereof, was on the face of it, illegal.
d) The conferment of power upon the State Government to constitute larger bench in case of difference of opinions between two benches of the Tribunal at its own sweet will by even making the presence of the Judicial Member in such larger bench insignificant, is violative of Article 14 of the Constitution.
Mr. Roy, the then learned Advocate General appearing on behalf of the State, at the very outset, conceded that the last point mentioned above, giving unlimited right to the State Government to constitute larger bench as provided in Proviso to 4(13) of the Act, was violative of Article 14 of the Constitution of India and the said provision should be declared as such.
Mr. Roy has, however, opposed all the other contentions of Mr. Basu.
According to Mr. Roy, the various observations of the Supreme Court in the case of R. Gandhi (supra), quoted by us, are not the part of the ratio decidendi of the said decision and are not binding upon us as a valid precedent in accordance with the mandate of Article 141 of the Constitution. In other words, Mr. Roy contends that only the ratio decidendi of a decision is binding as 22 a valid precedent and not each and every observation made in a judgment and thus, we are free to ignore those observations of the Supreme Court regarding the qualifications of the Administrative members.
Mr. Roy contends that in the case of State of West Bengal vs. Asish Kumar Roy and others reported in (2005) 10 SCC 110, the Supreme Court having specifically upheld the vires of the selfsame Act as not ultra vires the Constitution, the present writ-application challenging the selfsame Act is not maintainable.
Mr. Roy further contends that the mere fact that in the process of selection of the Administrative members, there may be a situation where the view of the Chairman of the Selection Committee may be a minority in comparison to the views taken by the members nominated by the State Government, such fact by itself cannot be a ground of declaring the provision of constitution of Selection Committee of Administrative Members in the Committee or the constitution of the Committee itself as ultra vires the provisions of the Constitution. Mr. Roy submits that till today, even no such situation has arisen as the members of the Selection Committee nominated by the State Government have all along paid due respect to the views of the Chairman who happens to be a sitting judge of this Court.
Mr. Roy emphatically contends that there being admittedly no legislative incompetency of the State Legislature to enact the legislation in question, this court should reject the prayer of the writ-application.
23In support of his contentions, Mr. Roy relies upon the following decisions:
1) Director of Settlement, A. P. and others vs. M. R. Apparao and another reported in (2002) 4 SCC 638 Para- 7= AIR 2002 SC 1598;
2) State of Orissa vs. Md. Illyas reported in (2006) 1 SCC 275 Para- 12= AIR 2006 SC 258;
3) Union of India vs. Dhanwanti Devi reported in (1996) 6 SCC 44 Paragraph- 9.
In order to appreciate the respective contentions of the parties, it would be profitable to refer to the provisions contained in sub-sections (2), (3) and (13) of Section 4 and Section 2(r) of the Act which are quoted below:
Section 2(r)- "Specified Act" means--
(I) the West Bengal Estate Acquisition Act, 1953; or (II) the West Bengal Land Reforms Act, 1955; or 1[(iia) the West Bengal Restoration of Alienated Land Act, 1973; 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 Fisherman Act, 1975; or
(v) 2[ * *] [(VI) the West Bengal Premises Tenancy Act, 1997;] 24
4. Establishment of Tribunal and composition and functions thereof.--
(2) (a) The Chairman and the Judicial Member shall be appointed by the Governor in consultation with the Chief Justice : Provided that if--
(i) the Chairman is, by reason of leave, illness-or other cause, temporarily unable to discharge his functions under this Act, or
(ii) a vacancy occurs in the office of the Chairman by reason of death, resignation or otherwise, then, the State Government may authorise a Judicial Member to discharge the functions of the Chairman under this Act during the period of such temporary inability or a Chairman, appointed in accordance with the provisions of this Act, enters upon his office, as the case may be.
(b) The Administrative Member shall be appointed by the Governor on the recommendation of a Selection Committee consisting of three members, to be constituted by the Governor, of which the Chairman shall be a sitting Judge of the High Court nominated by the Chief Justice and the other two members shall be nominated by the State Government. (3) No person shall be qualified for appointment-- (a) as the Chairman unless he is, or has been, a Judge of the High Court or has held, for a period of not less than one year, the office of a Judicial Member; (b) as a Judicial Member unless he has been, or is qualified to be, a Judge of a High Court;
[(c) as an Administrative Member unless he is, or has been, an officer-- (i) of the Central Government, not below the rank of a Joint Secretary to that Government, and has dealt with matters under a specified Act during his service under the State Government for a period of not less than three years, or (ii) of the State Government, not below the rank of a Joint Secretary to that Government, and has dealt with matters under a 25 specified Act during his service under the State Government for a period of not less than five years.] (13) The Tribunal shall exercise jurisdiction, power and authority and perform functions conferred or imposed on it by or under this Act by one or more Benches, each Bench consisting of such number of Judicial Member and Administrative Member as may be determined by the Chairman:
Provided that each such Bench shall consist of at least one Judicial Member and one Administrative Member:
Provided further that if the Judicial Member and the Administrative Member of a Bench are divided in their opinion on any matter, such matter shall be referred to a Bench which shall consist of one Administrative Member and two Judicial Members of whom the Chairman shall be one:
Provided also that in the case of difference of opinion between two or more Benches, the State Government shall constitute a larger Bench consisting of such number of Members as that Government may think fit.
Explanation.---For the purposes of this sub-section, Judicial Member shall include the Chairman.
(Emphasis supplied by us).
After hearing the learned counsel for the parties and after going through the aforesaid provisions of the Act, we find that at present the jurisdiction of the Tribunal has been extended to the subject-matters relating to six specified Acts, namely, (I) the West Bengal Estate Acquisition Act, 1953; (II) the West Bengal Land Reforms Act, 1955; (III) the West Bengal Restoration of Alienated Land Act, 1973; (IV) the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981;(V) 26 the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fisherman Act, 1975 and(VI) part of the West Bengal Premises Tenancy Act, 1997. The object of the Act is to vest the Tribunal with the jurisdiction over those matters which were previously dealt with by the High Courts. Thus, the Tribunal is required to function as a judicial tribunal which was earlier conducted by High Court.
We, however, do not find substance in the contention of Mr. Basu, the counsel appearing for the petitioner that the functions of the Tribunal being judicial in nature which was earlier exercised by High Court, there was no necessity of nominating administrative members therein as pointed by the Supreme Court in the case of R. Gandhi (supra). The following observations of the Supreme Court relied upon by Mr. Basu, are quoted below:
"The tribunals cannot become providers of sinecure to members of civil services, by appointing them as technical members, though they may not have technical expertise in the field to which the tribunals relate, or worse, where purely judicial functions are involved. While one can understand the presence of the members of the civil services being technical members in Administrative Tribunals, or Military Officers being members of the Armed Forces Tribunals, or electrical engineers being members of the Electricity Appellate Tribunal, or telecom engineers being members of TDSAT, we find no logic in members of the general civil services being members of the Company Law Tribunals."27
We find that even after making the aforesaid observations, the Supreme Court has ultimately upheld the inclusion of the technical members in the Tribunal, of course, with modified qualifications of such members. Thus, the aforesaid observations are not the ratio of the said decision when the Court ultimately did not do away with the necessity of the keeping any technical member in the Company Law Tribunals by declaring the creation of the posts of technical members as ultra vires the Constitution.
We are, however, impressed by the submission of Mr. Basu, the learned counsel appearing on behalf of the petitioners, that the qualification of the Administrative Members demands that he is required to have experience in dealing with matters relating to all the specified Acts which come within the purview of the Tribunal and not to only "a specified Act" as provided in the Act impugned.
Thus, there is substance in the contention of Mr. Basu that by creation of only one Tribunal, dealing with more than one specified Act whereas the Administrative Members having no expertise in all the specified Acts, has made the purpose of creation of the Tribunal ineffectual, particularly, when the Tribunal is required to perform judicial functions which was previously done by the High Court Judges under the specified Acts. The Administrative Members, in our opinion, must have experience to deal with all the specified Acts if one Tribunal is proposed to be created for dealing with more than one specified Act, 28 otherwise, their presence in the Tribunal will not be in consistence with the provisions of the Constitution.
It further appears that in order to be selected as an Administrative Member of the Tribunal, the qualification as prescribed in the Act is not that of an officer of the rank of Secretary or the Additional Secretary of the Government but a person holding the rank of even Joint secretary of the Government has been prescribed to be sufficient if he has dealt with the matters relating to any one of the specified Acts for the prescribed period of time. As pointed out by the Supreme Court in the case of R. Gandhi (supra), in paragraph 112.6 quoted by us, the functions previously done by a High Court Judge cannot be invested to a Tribunal having an Administrative member of the rank of joint secretary and such provision in the Act itself is sufficient for holding the same as ultra vires the Constitution of India.
Over and above, the formation of the Selection Committee for the selection of the Administrative Members of the Tribunal is also violative of the basic structure of the Constitution by giving supremacy to the executive over the judiciary in the matter of judicial functions of the State. We find that nominee of the Chief Justice in the Selection Committee although is the chairman, yet, the other two members of the Committee are selected by the Government and thus, in the selection of the Administrative Members, there is no effective role of the Chairman if the two government nominated members decide to act against the 29 view of the Chairman and those two members are really the selectors of the Administrative Members of the Tribunal.
Regarding the fourth point advanced by Mr. Basu, we have already pointed out that Mr. Roy, the Advocate General appearing on behalf of the State has conceded that the provision of constitution of the larger bench in case of difference of the two benches is arbitrary and we find that by such process, the Government has been given power to constitute a bench even having no judicial member and thus, such provision is violative of the basic structure of the Constitution as the judicial functions has been invested to a non-judicial forum or a forum having insignificant presence of the judicial members.
The next question is whether the decision of the Supreme Court in the case of R. Gandhi (supra), particularly the observations quoted above by us are binding upon us as precedent by virtue of the power conferred under Article 141 of the Constitution.
Mr. Roy in this connection strongly argued that those observations quoted by us above are not the ratio decidendi of that case and thus, are not binding as precedent.
For the purpose of ascertaining what ratio decidendi is, we propose to rely upon the very decision of the State of Orissa vs. Md. Illiyas (supra), relied upon by Mr. Roy. In that case, the Supreme Court observed as follows: 30 "A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates -
(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See : State of Orissa v.
Sudhansu Sekhar Misra and Ors., (AIR 1968 SC 647) and Union of India and Ors. v. Dhanwanti Devi and Ors., (1996) (6) SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinen v. Leathem, (1901) AC 495 (HL), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides."
(Emphasis supplied by us).
31If we apply the aforesaid test to the decision of the Supreme Court in the case of R. Gandhi (supra), for the purpose of finding out its ratio, it would appear that the said Court was dealing with the appeals which arose from the order dated March 30, 2004 of the Madras High Court in WP No. 2198/2003 filed by the President of Madras Bar Association (MBA for short) challenging the constitutional validity of Chapters 1B and 1C of the Companies Act, 1956 inserted by Companies (Second Amendment) Act 2002 providing for the constitution of National Company Law Tribunal and National Company Law Appellate Tribunal.
In the said writ petition, Madras Bar Association ('MBA') raised inter alia the following contentions:
1) The constitution of the National Company Law Tribunal and transferring the entire company jurisdiction of the High Court to the Tribunal, which is not under the control of the Judiciary, is violative of the doctrine of separation of powers and independence of the Judiciary which are parts of the basic structure of the Constitution.
2) The various provisions of Chapters IB and IC of the Act (sections 10FB, 10FD, 10FE, 10FF, 10FL(2), 10FO, 10FR(3), 10FT and 10FX) are defective and unconstitutional, being in breach of basic principles of Rule of Law, Separation of Powers and Independence of the Judiciary.32
The Madras High Court by its order dated March 30, 2004 held that the creation of the NCLT and vesting the powers hitherto exercised by the High Courts and CLB in the Tribunal was not unconstitutional. It referred to and listed the defects in several provisions (that is mainly sections 10FD (3) (f) (g) (h), 10FE, 10FF, 10FL (2), 10FR (3), 10FT) in Parts IB and IC of the Act. It therefore declared that until the provisions of Parts IB and IC of the Act, introduced by the Amendment Act which were defective being violative of basic constitutional scheme (of separation of judicial power from the Executive and Legislative power and independence of judiciary enabling impartial exercise of judicial power) are duly amended by removing the defects that were pointed out, it will be unconstitutional to constitute a Tribunal and Appellate Tribunal to exercise the jurisdiction now exercised by the High Court or the Company Law Board.
While disposing of such appeals, the Supreme Court ultimately made the following observations:
"There is an erroneous assumption that company law matters require certain specialized skills which are lacking in Judges. There is also an equally erroneous assumption that members of the civil services, (either a Group-A officer or Joint Secretary level civil servant who had never handled any company disputes) will have the judicial experience or expertise in company law to be appointed either as Judicial Member or Technical Member. Nor can persons having experience of fifteen years in science, technology, medicines, banking, industry can be termed as experts in Company Law for being appointed as Technical Members. The practice of having experts as Technical Members is 33 suited to areas which require the assistance of professional experts, qualified in medicine, engineering, and architecture etc. Lastly, we may refer to the lack of security of tenure. The short term of three years, the provision for routine suspension pending enquiry and the lack of any kind of immunity, are aspects which require to be considered and remedied.
We may now tabulate the defects in Parts IB and IC of the Act:
(i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only the High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as judicial members as provided in sub-
section (2)(c) and (d) of Section 10FD. The expertise in Company Law service or Indian Legal service will at best enable them to be considered for appointment as technical members.
(ii) As the NCLT takes over the functions of High Court, the members should as nearly as possible have the same position and status as High Court Judges. This can be achieved, not by giving the salary and perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in rank, experience or competence to High Court Judges are appointed as members. Therefore, only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical members of the National Company Law Tribunal. Clauses (c) and (d) of sub-section (2) and Clauses (a) and (b) of sub-section (3) of section 10FD which 34 provide for persons with 15 years experience in Group A post or persons holding the post of Joint Secretary or equivalent post in Central or State Government, being qualified for appointment as Members of Tribunal is invalid.
(iv) A 'Technical Member' presupposes an experience in the field to which the Tribunal relates. A member of Indian Company Law Service who has worked with Accounts Branch or officers in other departments who might have incidentally dealt with some aspect of Company Law cannot be considered as 'experts' qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub- section (3) are not valid.
(v) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 15 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as Technical Members in Company Law Tribunal, is invalid.
(vi) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered for appointment as Technical Members.
(vii) In regard to category of persons referred in clause (g) of sub- section (3) at least five years experience should be specified.
(viii) Only Clauses (c), (d), (e), (g), (h), and later part of clause (f) in sub- section (3) of section 10FD and officers of civil services of the rank of the Secretary or Additional Secretary in Indian Company Law Service and Indian Legal Service can be considered for purposes of appointment as Technical Members of the Tribunal.
35(ix) Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10FX, the Selection Committee should broadly be on the following lines :
(a) Chief Justice of India or his nominee-Chairperson (with a casting vote);
(b) A senior Judge of the Supreme Court or Chief Justice of High Court-Member;
(c) Secretary in the Ministry of Finance and Company Affairs-
Member; and
(d) Secretary in the Ministry of Law and Justice-Member.
(x) The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the concerned field. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages these Tribunals to be treated as post-retirement havens. If these Tribunals are to function effectively and efficiently they should be able to attract younger members who will have a reasonable period of service.
(xi) The second proviso to Section 10FE enabling the President and members to retain lien with their parent cadre/ministry/department while holding office as President or Members will not be conducive for 36 the independence of members. Any person appointed as members should be prepared to totally disassociate himself from the Executive. The lien cannot therefore exceed a period of one year.
(xii) To maintain independence and security in service, sub- section (3) of section 10FJ and Section 10FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India.
(xiii) The administrative support for all Tribunals should be from the Ministry of Law and Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.
(xiv) Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members.
We therefore dispose of these appeals, partly allowing them, as follows: (i) We uphold the decision of the High Court that the creation of National Company Law Tribunal and National Company Law Appellate Tribunal and vesting in them, the powers and jurisdiction exercised by the High Court in regard to company law matters, are not unconstitutional.
(ii) We declare that Parts 1B and 1C of the Act as presently structured, are unconstitutional for the reasons stated in the preceding para. However, Parts IB and 1C of the Act, may be made operational by making suitable amendments, as indicated above, in addition to what the Union Government has already agreed in pursuance of the impugned order of the High Court."
37(Emphasis supplied by us).
The aforesaid decision of the Supreme Court makes it clear that the fourteen defects mentioned above which were directed to be removed from the impugned Act are really the substance of the ratio of the said decision and we can apply among those, the ones which are relevant to the facts of the present case.
The other contention of Mr. Roy, that in view of the decision of the Supreme Court in the case of State of West Bengal vs. Ashish Kumar Roy (supra), this application should be held to be barred by the principles of res judicata, has unable to impress us. In the case of Asish Kumar Roy (supra), the selfsame Act was challenged under Article 226 of the Constitution of India as ultra vires the Constitution of India and for declaring that clause 3(e) of Article 323-B 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 High Court also declared section 9 of the Act as ultra vires the Constitution and violative of the basic structure of the Constitution. Three following 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 323-B (1)(d) of the Constitution of India as it lacks the necessary attributes prescribed by the said Article.38
2. The jurisdiction, power and authority of the Tribunal specified in Sections 5, 6, 7 and 8 of the 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 Articles 226 and 227 of the Constitution of India, as a Court of first instance;
2. 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.
A learned Single Judge of this Court negatived the first contention and held that the said Act was enacted for the 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 323-B (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 others (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.
39Having examined it independently, His Lordship concluded that the impugned provisions of the said Act were violative of the Constitution including the basic structure thereof and struck them down.
The State of West Bengal went to the Supreme Court against the judgement of the learned Single Judge without preferring a mandamus appeal in the Division Bench.
The Supreme Court first turned down the finding of the learned Single judge that the observations made in the case of L. Chandra Kumar (supra) did not amount to "law declared" within the meaning of Article 141 of the Constitution by observing:
"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 straightway be set aside as inconsistent with the law laid down by this Court which was binding on the High Court."
The Supreme Court then proceeded to examine the legality of the first finding of the learned Single Judge which went against the writ-petitioner by 40 giving liberty to the Respondent before the Supreme Court to agitate the same before it and upheld the finding of the learned Single Judge by making the following findings:
"It is contended that the Tribunal constituted under the impugned Act is not a Tribunal within the meaning of Article 323-B (2)(b), 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 Art. 323-B 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 xxxx
(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;"
24. 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. 41
25.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 323-B could take away some of the jurisdiction of the High Courts. AIR 1997 SC 1125 : 1997 AIR SCW 1345 : 1997 Lab IC 1069
26. 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 323-B 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 31-A. Article 31-A itself defines the expression 'estate' in clause (2). Both Article 31-A and the definition of 'estate' in clause (2) of Article 31-A have received judicial interpretation by Constitution Benches of this Court which have uniformally taken the view that the protection of Article 31-A 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 323-B 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 323-B(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.
27. The argument is unacceptable for three-reasons. The first is the fallacious assumption that in order to be a valid Tribunal constituted 42 under Articles 323-B(1) and 323-B(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 323-A(2)(d) is only for the purpose of enumeration. Instead of repeating the entire definition contained in clause (2) of Article 31-A in sub-clause (d) of 323-B, the framers of the Constitution merely indicated that the word 'estate' would have the same meaning as in Article 31-A. The reference to the definition of 'estate' in Article 31-A made in Article 323-B(2)(d) serves no other purpose.
28. 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 v. 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 43 are found in relation to the life of the agricultural community. The village man, his welfare, is the target."
29. 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.
30. Thirdly, the contention also proceeds on a misreading of Art. 323-B (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".
31. We are, therefore, unable to accept the contention of the learned counsel that in order to fall within the protection of umbrella of Article 323-B, 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 323-B of the Constitution.
32. "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 44 Acts was very much a Tribunal within the meaning of Article 323-B of the Constitution"
It is, therefore, apparent that the points taken before us were never argued before the Supreme Court in the case of Ashish Kumar Roy (supra), and thus, the Supreme Court had no occasion to consider these points based on the subsequent five-judge-bench decision of the Supreme Court. We, therefore, find no substance in the contention of Mr. Roy that in view of the aforesaid decision, this writ-application should be held to be barred by any law for the time being in force.
We now propose to deal with the decisions cited by Mr. Roy.
In the case of Director of Settlement, A. P. and others vs. M. R. Apparao and another (supra), a three-judge-bench of the Supreme Court laid down the proposition of law that what is binding is the ratio of the decision and not any finding of facts. According to the said decision, it is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence and to determine whether a decision has 'declared law', it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court, the court proceeded, has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered and the law which will be binding under Article 141 45 would, therefore, extend to all observations on points raised and decided by the Court in a given case. The court reminded that so far as constitutional matters are concerned, it is a practice of the Supreme Court not to make any pronouncement on points not directly raised for its decision.
We have in fact followed the aforesaid principles in coming to the conclusion that not all the observations but those which were the basis of the ultimate conclusion were the ratio of the case of R. Gandhi (supra), and consequently, turned down the contention of Mr. Basu that no Administrative Member should be included in the Tribunal.
The case of Union of India vs. Dhanwanti Devi (supra), has been relied upon in the case of State of Orissa vs. Md. Illyas (supra), relied upon by us and thus, it does not require any further elucidation.
Thus, the decisions cited by Mr. Roy do not help his client in any way.
On consideration of the entire materials on record, we, therefore, hold that unless the following defects in the Act are removed in the light of our observations, the Act as presently structured is unconstitutional for the reasons stated earlier. However, the Act may be made operational by making suitable amendments, as indicated below:46
A) Section 4(2) (b) of the Act should be deleted and should be substituted by a new provision for constitution of Selection Committee broadly on the following lines:
(a) Chief Justice of High Court or his nominee- as Chairperson (with a right of casting vote);
(b) A senior Judge of the High Court- as Member;
(c) Secretary in the Ministry of Finance -as Member; and
(d) Secretary in any of the Ministries -as Member. B) In Section 4(3) (c ) (i) of the Act, the phrase "Joint Secretary" should be deleted and substituted by "Secretary" or Additional Secretary" and the phrase "a specified Act" mentioned therein should be deleted and substituted by "all the specified Acts".
C) In Section 4 (3) (c) (ii) of the Act, the phrase "Joint Secretary" should be deleted and substituted by 'Secretary or Additional Secretary" and the phrase "a specified Act" mentioned therein should be deleted and substituted by "all specified Acts".
D) The last proviso to Section 4(13) of the Act should be deleted and instead thereof, suitable proviso should be incorporated by giving power of constitution of the larger Bench of the Tribunal to the Chairman of the same in case of difference of opinions between two or more benches 47 with further stipulation that in such larger Bench, the number of Administrative Member must be less than that of Judicial Member.
The writ-application is, thus, disposed of in terms of our present order.
In the facts and circumstance, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) We agree.
(Tapan Kumar Dutt, J.) (Prasenjit Mandal, J.) 48 Later:
As prayed for by Mr. Mukherjee, the learned Additional Government Pleader, let xerox-plain-copy of this order, duly countersigned by the Assistant Registrar (Court), be handed over to him in course of this day on undertaking to apply for certified copy by tomorrow.
The learned Registrar General of this Court is directed to immediately communicate this order to the concerned learned Tribunal.
(Bhaskar Bhattacharya, J.) We agree.
(Tapan Kumar Dutt, J.) (Prasenjit Mandal, J.)