Calcutta High Court (Appellete Side)
Arshad Ali & Ors vs The State Of West Bengal And Ors on 3 May, 2017
Author: R. K. Bag
Bench: Ranjit Kumar Bag
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Ranjit Kumar Bag.
W. P. No.29815(W) of 2016
Arshad Ali & Ors.
V.
The State of West Bengal and Ors.
For the Petitioners : Mr. Aniruddha Chatterjee,
Mr. Satyanarayan Shaw,
Mr. Syed Nurul Arefin,
Mr. Rajesh Kumar Shaw,
Mr. Rahul Singh,
For the Respondent no.3 : Mr. Saptangsu Basu, Sr. Adv.,
Mr. Sk. Reazul Islam,
Mr. Ehtesham Islam,
Hearing concluded on : 12.04.2017
Judgment on : 03.05.2017
R. K. Bag, J.
The petitioners have challenged the order dated November 9, 2016 passed by the respondent no.2, Deputy Controller, Kolkata Tikha Tenancy in connection with Misc. Case No.31 of 2015, by which the respondent no.2 held that premises no.1, Acre Road, Kolkata-700017 does not come under the purview of tikha tenancy.
2. The petitioners claim that one Muhammad Yusuf purchased the structure situated on premises no.1, Acre Road, Kolkata-700017 (hereinafter referred to as "the said premises") from Chandra Sekhar Mallik and Nanda Kishore Mallik under registered deed dated February 19, 1947 and took the lease of the land of the said premises under registered deed dated February 19, 1947. Muhammad Yusuf sold out the structure of the said premises to Haji Rasul Baksh under registered deed dated February 22, 1949 and granted lease of the land of the said premises in his favour under registered deed dated February 22, 1949. The said Haji Rasul Baksh again sold the structure of the said premises to Sainoo Bibi and three others under registered deed dated May 18, 1955 and granted lease of the land of the said premises in their favour under registered deed dated May 21, 1955. The petitioners claiming to be the legal heirs of Sainoo Bibi and others filed return in Form-A by asserting their rights as tikha tenants in respect of the said premises. They also claim to have paid rent to the erstwhile landlord by producing rent receipts issued by the erstwhile landlord in favour of predecessor-in-interest of the petitioners in connection with the said premises before the respondent no.2. On the other hand, the respondent no.3 purchased 8 cottahs 9 chittacks of land together with structure situated on the said premises from Shyamali Mallik and others under registered deed of the year 2009. The claim of the petitioners as tikha tenants of the said premises was rejected by the respondent no.2, Deputy Collector, Kolkata Tikha Tenancy by order dated November 9, 2016 in connection with Misc. case No.31 of 2015 - being proceeding under Section 5(3) of the West Bengal Tikha Tenancy (Acquisition and Regulation) Act, 2001 (hereinafter referred to as "Thika Tenancy Act of 2001). The said order of the respondent no.2 is under challenge in this writ petition on the ground of violation of the principles of natural justice.
3. Mr. Aniruddha Chatterjee, Learned Counsel representing the petitioners contends that the petitioners can invoke the writ jurisdiction of this Court in spite of having alternative remedy, as the respondent no.2 has violated the principles of natural justice by not considering the series of authorities cited before the said respondent no.2 by Learned Advocate for the petitioners in the proceeding under Section 5(3) of the Tikha Tenancy Act of 2001. Relying on the unreported decision of Learned Single Judge of this Court in "M/s Kkalpana Industries (India) Ltd. & Anr. V. Union of India & Anr." (W. P. No.1662(W) of 2017 decided on February 4, 2017) and the decision of Division Bench of our High Court in case of "Artee Overseas Pvt. Ltd. V. Union of India" reported in 2013(4) CHN(CAL) 667 and the decision of the Supreme Court in "Radhey Shyam V. Chhabi Nath"
reported in (2015) 5 SCC 423, Mr. Chatterjee submits that this Court can invoke the jurisdiction under Article 226 of the Constitution of India in spite of having alternative remedy when the respondent no.2 has violated the principles of natural justice in passing the impugned order under challenge in the writ petition.
4. Mr. Saptangsu Basu, Learned Senior Counsel appearing on behalf of the respondent no.3 submits that he does not dispute the proposition of law that this Court can invoke the writ jurisdiction in spite of having alternative remedy when the principles of natural justice have been violated in passing any order. However, Mr. Basu argues that the remedy of the petitioner lies before West Bengal Land Reforms and Tenancy Tribunal (in short "Tenancy Tribunal"). He further submits that the Tikha Tenancy Act of 2001 is a specified Act under Section 2(r) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (in short the "Tenancy Tribunal Act of 1997") and as such the Tribunal constituted under Section 4 of the Tenancy Tribunal Act of 1997 has jurisdiction in relation to any order made by an authority under the specified Act as laid down in Section 6 of the Tenancy Tribunal Act of 1997. The specific submission of Mr. Basu is that the jurisdiction of the High Court under Article 226 of the Constitution of India exercised by the Single Bench in connection with any matter falling within the jurisdiction of the Tenancy Tribunal is barred under Section 8 of the Tenancy Tribunal Act of 1997. He has relied on the decision of the Co-ordinate Bench of our High Court in "Eastern Chemical Industries V. Fona Rubber Pvt. Ltd." reported in 2012(2) CHN (CAL) 417 and the decision of another Co-ordinate Bench of our High Court in "Reliance Infrastructure Ltd. V. Deputy Commissioner, Sales Tax" reported in 2014(1) CHN (CAL) 211 and the decision of Constitution Bench of the Supreme Court in "L. Chandra Kumar V. Union of India" reported in (1997) 3 SCC 261 in support of his above contention.
5. There is no dispute on the proposition of law that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and the said power is not limited by any other provisions of the Constitution. The law is well-settled that the High Court can exercise jurisdiction under Article 226 of the Constitution in spite of having alternative remedy when the principle of natural justice is violated or when the order is passed without jurisdiction or the vires of any statute is under challenge or prayer is made for enforcement of any Fundamental Right. In "Whirlpool Corporation V. Registrar of Trade Marks, Mumbai" reported in (1998) 8 SCC 1 the Supreme Court has crystallized the above proposition of law in paragraph 15 of the judgement, which is as follows:
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or where the vires of an Act is challenged. ..."
6. Now, the question for consideration of the Court is whether this Court can exercise jurisdiction under Article 226 of the Constitution to examine the validity of the impugned order on the ground of violation of the principles of natural justice, in spite of having alternative remedy of moving before the Tenancy Tribunal. In "Radhe Shyam V. Chhabi Nath" reported in 2015(5) SCC 423 the three Judge Bench of the Supreme Court decided that the judicial orders passed by the Civil Courts are not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India, though the High Court can exercise the power of superintendence over the Civil Courts under Article 227 of the Constitution of India. In this reported case one interim order passed by the Civil Court in a pending suit was challenged before Allahabad High Court by the defendant of the suit by filing a writ petition under Article 226 of the Constitution of India. When the High Court vacated the said interim order granted by the Civil Court, the plaintiff of the suit moved the Supreme Court by way of Special Leave Petition contending, inter alia, that the High Court cannot exercise writ jurisdiction under Article 226 of the Constitution against the order passed by the Civil Court. By overruling two Judge Bench decision of the Supreme Court in "Surya Dev Rai V. Ram Chander Rai" reported in (2003) 6 SCC 675 and by following the ratio of an earlier nine Judge Bench judgement of the Supreme Court in "Naresh Shridhar Mirajkar V. State of Maharashtra" reported in AIR 1967 SC 1, the Supreme Court came to the conclusion that the judicial orders of the Civil Courts are not amenable to writ jurisdiction under Article 226 of the Constitution of India and thereby the order of the High Court was set aside. The ratio of this decision cited on behalf of the petitioner has no bearing on the facts of the present case where the petitioner has challenged the order passed by the Deputy Controller, Kolkata Tikha Tenancy in connection with a proceeding under Section 5(3) of the Tikha Tenancy Act of 2001.
7. In "L. Chandra Kumar V. Union of India & Ors." reported in (1997) 3 SCC 261 the seven Judge Bench of the Supreme Court has held that all decisions of Tribunals, whether created pursuant to Article 323-A or 323-B of the Constitution, will be subject to the writ jurisdiction of the High Court under Article 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. In other words, all decisions of the Tribunals constituted under Article 323-A or under Article 323-B of the Constitution will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal falls. It is further held by the Constitution Bench that it will not be open for litigants to directly approach the High Court even in cases where they challenge the vires of statutory legislations (except where the legislation which created particular Tribunal is under challenge) by overlooking the jurisdiction of the Tribunal concerned. Accordingly, it is the dictum of the Constitution Bench of the Supreme Court that a litigant at the first instance will have to move before the Tribunal having jurisdiction over the matter and thereafter the aggrieved party can challenge the order of the Tribunal before the Division Bench of the High Court under Article 226 or under Article 227 of the Constitution of India. In the instant case the impugned order is passed under Section 5(3) of the Tikha Tenancy Act of 2001 by the Deputy Controller, Kolkata Tikha Tenancy. Section 5(3) of Tikha Tenancy Act of 2001 confers jurisdiction on the Controller of Tikha Tenancy to decide the question whether a person is a tikha tenant or not or whether the land in question is tikha land or not, after giving the persons interested an opportunity of hearing and after examining all documents and particulars which need to be considered for the purpose of enquiry. The said Tikha Tenancy Act of 2001 is a specified Act falling under Section 2(r) of the Tenancy Tribunal Act of 1997. The Tenancy Tribunal (West Bengal Land Reforms and Tenancy Tribunal) is constituted under Section 4 of the Tenancy Tribunal Act of 1997. It is relevant to quote the provisions of Section 6 of the Tenancy Tribunal Act of 1997, which is as follows:
"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 (W.B. Act 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 High Court and other Authorities to the Tribunal in accordance with the provisions of this Act."
8. On perusal of the provisions of Section 6 the Tenancy Tribunal Act of 1997 I find that the Tribunal has jurisdiction, power and authority in relation to any order made by any authority under a specified Act. In other words, the Tribunal has the jurisdiction to entertain any application challenging any order passed by any authority under any provision of the specified Act, viz, the Tikha Tenancy Act of 2001. The Tenancy Tribunal Act of 1997 was published in the Calcutta Gazette after the ascent of the Governor on December 12, 1997 and the Tribunal was set up in pursuance of Article 323B of the Constitution of India for adjudication and trial of the disputes, claims, objections and applications relating to land reforms or tenancy in land and other matters under specified Act. The provisions laid down in Section 7 of the Tenancy Tribunal Act of 1997 indicate that the Tribunal can exercise the jurisdiction, power and authority which can be exercised by the High Court, except the writ jurisdiction of the High Court under Article 226 and 227 of the Constitution exercised by a Division Bench of the High Court. Section 8 of the Tenancy Tribunal Act of 1997 has expressly excluded the jurisdiction of the High Court under Article 226 and 227 of the Constitution exercised by a Single Bench of the High Court. It is relevant to quote the provisions of Section 8 of the Tenancy Tribunal Act of 1997, which is quoted below:
"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."
On consideration of the above provisions of law I have no manner of doubt that this Court sitting singly cannot exercise jurisdiction under Article 226 of the Constitution in relation to an order passed by an authority under the specified Act, when the Tenancy Tribunal has the authority to exercise the jurisdiction in relation to the said order.
9. In "Eastern Chemical Industries V. Fona Rubber Pvt. Ltd." reported in 2012(2) CHN (CAL) 417 the Co-ordinate Bench of this Court refused to invoke jurisdiction under Article 227 of the Constitution of India while the order of Tikha Controller was challenged on the ground of ouster of jurisdiction by Sections 7 and 8 of the Tenancy Tribunal Act of 1997. In the said reported case the landlord instituted the suit against the tenant for eviction on the ground of reasonable requirement. The trial court decreed the suit, but the First Appellate Court reversed the judgement and decree of the trial court. During pendency of the second appeal at the instance of the landlord, the tenant took the plea of tikha tenancy and moved the Tikha Controller for deciding the dispute with regard to the claim as tikha tenant. The landlord raised the issue of maintainability of the application of the tenant. The issue of maintainability was kept open by the Tikha Controller. The issue raised before the Single Bench of the High Court exercising jurisdiction under Article 227 of the Constitution was whether the maintainability of the dispute with regard to the tikha tenancy or tikha property can be considered as jurisdictional error of the Tikha Controller for exercise of jurisdiction of superintendence by the High Court. The Co-ordinate Bench held in paragraph 19 of the judgement that the challenge to the impugned order of the Tikha Controller cannot be entertained by a judge of this Court sitting singly since the point of maintainability raised by the petitioner is to be decided by virtue of the provisions of the Tikha Tenancy Act of 2001. By dismissing the application under Article 227 of the Constitution the Co-ordinate Bench held in paragraph 20 of the judgement as follows:
"20. .... The Article 227 jurisdiction of the Single Bench of the High Court cannot be invoked on the specious ground that the jurisdictional fact has been decided wrongly, for Sections 7 and 8 of the Tenancy Tribunal Act stare at the face and create a bar to exercise of jurisdiction."
10. In "Reliance Infrastructure Ltd. V. Dy. Commissioner, Sales Tax"
reported in 2014(1) CHN (CAL) 211 the Co-ordinate Bench of this Court dealt with an order passed by the Dy. Commissioner, Sales Tax under Section 46 of the West Bengal Value Added Tax Act, 2003 while exercise writ jurisdiction under Article 226 of the Constitution.
The said order of the Dy. Commissioner, Sales Tax was not challenged on merit, but the same was challenged on the ground of not affording opportunity of hearing before finalisation of assessment order. Since the order of Dy. Commissioner, Sales Tax was challenged before Learned Single Judge of the High Court under Article 226 of the Constitution of India without preferring appeal before the Tribunal, the Co-ordinate Bench observed in paragraphs 21, 22 and 23 of the judgement as follows:
"21. The West Bengal Taxation Tribunal is constituted in pursuance of Article 323B of the Constitution of India upon enacting the West Bengal Taxation Tribunal Act, 1987. Section 5 of the said Tribunal Act bestowed the Taxation Tribunal to exercise jurisdiction, powers and authority in relation to all matters of adjudication or concerning of any disputes, complaints or offences with respect to levy assessment and collection of enforcement of any tax under any specified State Act and all matters connected therewith or incidental thereto.
22. Though Sections 5 and 6 of the Taxation Tribunal Act excludes the jurisdiction of the High Court but the Apex Court in case of L. Chandra Kumar (supra) have declared the said exclusion clause to be unconstitutional and retained the power of the High Court under Article 226/227 of the Constitution of India but to be exercised by the Division Bench of the respective High Courts.
23. The schedule appended to the Taxation Tribunal Act includes the West Bengal Value Added Tax Act, 2003 to come within the ambit of the specified State Act and, therefore, any matter touching Sections 5 and 6 of the Tribunal Taxation Act can be assailed before the Tribunal on all point including the point relating to violation of principles of natural justice. The single bench of the High Court, therefore, does not retain the jurisdiction to entertain the writ petition which is the exclusive domain of the Taxation Tribunal but the Division Bench of the High Court can certainly entertain the writ petition after exhausting the remedy available to the aggrieved person after approaching the Tribunal."
11. In the unreported case of "M/s Kkalpana Industries (India) Ltd. & Anr. V. Union of India & Anr." (W.P. No.1662(W) 2017 decided on February 4, 2017) cited on behalf of the petitioners Learned Single Judge of this Court quashed the order passed by the Commissioner of Central Excise by invoking writ jurisdiction under Article 226 of the Constitution of India on the ground that the petitioner of the said writ petition was denied the right of cross-examination of the witness, in spite of having alternative remedy of preferring appeal against the impugned order. In this unreported judgement the issue was not raised whether the Single Bench of the High Court cannot exercise jurisdiction under Article 226 of the Constitution against the order passed by the Commissioner of Central Excise. Nor has Learned Single Judge decided whether jurisdiction under Article 226 of the Constitution can be exercised by the Single Bench for quashing an order passed by the Commissioner of Central Excise. So, the ratio of this unreported case cannot apply in the facts of the present case where the issue for consideration of the Court is whether the Single Bench of the High Court can exercise writ jurisdiction under Article 226 of the Constitution in relation to an order against which remedy lies before the Tenancy Tribunal, particularly when the Tenancy Tribunal Act has specifically excluded the writ jurisdiction of the Single Bench of the High Court.
12. In "Artee Overseas Pvt. Ltd. V. Union of India" reported in 2013(4) CHN (CAL) 667 cited on behalf of the petitioners the Division Bench of our High Court had set aside an order passed by the Additional Commissioner of Customs for violation of the principles of natural justice in spite of having alternative remedy of preferring appeal, though Learned Judge of the first Court dismissed the writ application on the ground of having alternative remedy. In this report issue was neither raised nor decided whether the jurisdiction of the Single Bench exercising power under Article 226 of the Constitution is barred. So, the ratio of the report cannot have any manner of application in the facts of the present case where the issue is raised whether this Court sitting singly can exercise jurisdiction under Article 226 of the Constitution in relation to an order for which remedy lies before the Tenancy Tribunal and the Tenancy Tribunal Act has excluded the writ jurisdiction of the Single Bench of the High Court.
13. Mr. Chatterjee, Learned Counsel for the petitioner submits that the Customs, Excise and Service Tax Appellate Tribunal (in short CESTAT) is constituted under the Customs & Excise Revenues Appellate Tribunal Act, 1986, but the Single Bench of the High Court exercising jurisdiction under Article 226 of the Constitution has entertained writ application challenging the order passed by the Commissioner of Central Excise or the order passed by the Additional Commissioner of Customs, in spite of having exclusion of the jurisdiction of all Courts (except the Supreme Court of India) under Section 26 of the said Customs and Excise Revenues Appellate Tribunal Act, 1986 in relation to matters for which appeals lie before the said Tribunal. Section 1(3) of the Customs & Excise Revenues Appellate Tribunal Act, 1986 provides that the said Act will come into force on such date as the Central Government may by notification in the official gazette appoint. Mr. Chatterjee has failed to produce notification issued by the Central Government and published in the official gazette to establish that the Customs & Excise Revenues Appellate Tribunal Act, 1986 has come into force, though the Supreme Court has made incidental observation in paragraph 4.4 and paragraph 5.4 of the judgement in "Madras Bar Association V. Union of India" reported in (2014) 10 SCC 1 that the Customs & Excise Revenues Appellate Tribunal Act, 1986 came into force on December 23, 1986.
14. With regard to the above submission of Mr. Chatterjee, I would like to point out why the Single Bench of the High Court is exercising jurisdiction under Article 226 of the Constitution in relation to an order in respect of which appeal lies before CESTAT. In "Samruddhi Industries V. CESTAT, Mumbai" reported in 2009(242) ELT 321(Bom) an order passed by the CESTAT under Section 35-F of the Central Excise Act, 1944 while entertaining an appeal against the order passed by the Commissioner of Central Excise, Nagpur was challenged by filing application under Article 226 of the Constitution of India. It is held in paragraph 12 of the judgement by Learned Single Judge of Bombay High Court that CESTAT is not constituted under Article 323-B of the Constitution and the said Tribunal owes its existence to Section 129 of the Customs Act and as such the mandate of the Supreme Court in "L. Chandra Kumar case" (supra) would not be applicable and as such writ application can be entertained by a Single Judge of the High Court. I also find that the Customs, Excise and Gold Control Appellate Tribunal was constituted under Section 129 of the Customs Act, 1962. With introduction of Service Tax under Chapter-V of the Finance Act, 1994 the said Tribunal was conferred jurisdiction to hear appeals pertaining to Service Tax disputes as well. The said Tribunal is re-designated as CESTAT by way of amendment of Section 129 of the Customs Act, 1962 on May 14, 2003. Section 35-B of the Central Excise Act, 1944 provides for preferring appeal to the said CESTAT against the specific orders passed by specified authority exercising jurisdiction under the Central Excise Act, 1944. So, the CESTAT was created under the Customs Act, 1962 long before enactment of the Customs & Excise Revenues Appellate Tribunal Act, 1986. Since, the CESTAT was created under Section 129 of the Customs Act, 1962 and since appeal lies to the said Tribunal against the specific orders passed by the specified authorities under the Central Excise Act, 1944 and the Customs Act, 1962 and these statutes have not excluded jurisdiction of the Single Bench of the High Court exercising power under Article 226 of the Constitution, the Single Bench of the High Court can exercise writ jurisdiction in relation to an order passed by the Commissioner of Central Excise or by the Commissioner of Customs, in spite of having alternative remedy of preferring appeal before CESTAT when principles of natural justice are violated or when the order has been passed without jurisdiction. In view of my above observations, I am unable to accept the contention made on behalf of the petitioner that this Court can exercise jurisdiction under Article 226 of the Constitution sitting singly in relation to an order passed under the specified Act when the Tenancy Tribunal has the jurisdiction in relation to the said order. The natural corollary is that the present writ application is not maintainable before the Single Bench of the High Court. The writ application is, thus, dismissed. The urgent xerox certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(R. K. Bag, J.)