Calcutta High Court (Appellete Side)
For The vs Union Of India Reported In (1997) 3 Scc on 21 September, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
21.9.2011. W.P.L.R.T. No. 57 of 2011
Mr. Kishore Dutta
Ms. Koyeli Bhattacharya
...... for the petitioners.
Mr. Lalit Mohon Mahato
.. for the State.
Mr. Puspendu Chakraborty
.. for the respondent no. 3.
________
Pratap Kumar Ray, J.
Heard learned Advocates appearing for the parties. Assailing the order dated 5th October, 2010 passed in T.A. No. 3505 of 2006 (LRTT) by the West Bengal Land Reforms and Tenancy Tribunal, this writ application has been filed.
The impugned order reads such:-
"05.10.10. - The hearing arises out of an application dt. 16-09-1982 filed by the petitioner praying for an order declaring that the Calcutta Thika Tenancy (Acquisition Regulation) Act, 1981 as ultra vires and void on the ground stated therein.
At the time of hearing Ld. Govt. Representative as well as Ld. Counsel on behalf of the respondent no. 3 submitted before this Tribunal that the instant application should be rejected summarily as the aforesaid Act 1981 has already been repealed/annulled. In support of their above contention Ld. Govt. Representative drew out attention to section 27 of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001. We have carefully perused the provisions of Section 27 of the aid Act, from which it is clearly seen that Calcutta Thika Tenancy (Acquisition & Regulation) Act 1981 has already been repealed/annulled from the 2 date of commencement of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001 i.e. from 01-03-2003.
Considering this aspect the instant Transferred Application filed by the petitioners is rejected summarily.
T.A. No. 3505 of 2006 (LRTT) is thus disposed of...."
It is the submission of learned Advocate for writ petitioners that original application as moved before learned Tribunal below not only the vires issue was agitated, but the issue about legality and validity of letter dated 12th July, 1982 issued by Hindustan Petroleum Corporation Limited relating to their claim that the concerned land vested to the State of West Bengal under the Thika Tenancy Act, 1981, also was under challenge. That part so far as challenge of letter dated 12th July, 1982 has not been decided or answered by learned Tribunal below.
Mr. Dutta, learned Advocate, appearing for writ petitioners, submits that this Court may decide that point about legality and validity of claim made by Hindustan Petroleum Corporation Limited, an authority under Article 12 of the Constitution of India, on applying the settled legal position that petrol pump cannot be within the statutory ambit of said Thika Tenancy Act.
Having regard to the judgment passed in the case L. Chandra Kumar -vs- Union of India reported in (1997) 3 SCC 261, it appears that Tribunal will continue to act as the only court of first instance in respect of the areas of law for which 3 they have been constituted. The jurisdiction of High Court to have judicial review of the decision of learned Tribunal, is a judgement law, but not included in a statutory provision and parameter of such judicial review cannot be extended to have a decision deciding in the angle of an Appellate Court. Mr. Dutta, learned Advocate, practically submits before us to exercise the power of Appellate Court as the point as raised before learned Tribunal below regarding legality and validity of said letter of Hindustan Petroleum Corporation Limited was not decided and adjudicated by learned Tribunal below. Since no decision reached by learned Tribunal below, we are of the view that there is no scope for judicial review sitting in writ jurisdiction. The jurisdiction of High Court could be exercised only to identify the legality and validity of decision making process. As a corollary thereof, there must be a decision by learned Tribunal which could be the subject matter of judicial review of this Court under the scanner of judicial review tools.
Considering that aspect of matter, we are not inclined to decide the question raised. It appears from original application that legality and validity of said letter was challenged. Since learned Tribunal below did not decide the issue on merit, it is a fit case for remand for proper adjudication of issue raised.
Having regard to the aforesaid findings, learned Tribunal below is directed to dispose of the original application on merit with reference to the question raised about legality and validity of letters dated 12th July, 1982 4 and 13th July, 1982 issued by Hindustan Petroleum Corporation Limited claiming that the property vested to the State of West Bengal under Thika Tenancy Act concerned and thereby will pass a reasoned decision on hearing the parties. The impugned order so far as vires point is justified order and accordingly we are not quashing the same, but directing the learned Tribunal below to dispose of other issue as discussed above on the reflection of said Calcutta Thika Tenancy Act, 1981.
Since cause of action arose long back in the year 1982 and writ application was moved on that cause of action in the year 1982 which stood transferred to learned Tribunal by application of statutory provision, we are of the view that the matter should be disposed of as early as possible and preferably within three months positively without granting any adjournment to any of the parties.
To expedite the matter, we are directing State respondents and Hindustan Petroleum Corporation Limited, who are present today before us through their respective learned Advocates, to file affidavit-in-opposition of Transfer Application before learned Tribunal below by 8th November, 2011, reply, if any, by 15th November, 2011 and the Tribunal will dispose of the Transfer Application before 23rd December, 2011 by considering the case on priority basis.
The writ application is accordingly disposed of. 5 Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates appearing for the parties on usual undertakings.
(Pratap Kumar Ray, J.) I agree.
(Md. Abdul Ghani, J.) sks.