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IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Before:

The Hon’ble Justice Hiranmay Bhattacharyya

WPA 8789 of 2026

Ambe Plywoods Pvt. Ltd. & Anr.

Vs.

The Office of the Controller, Kolkata Thika Tenancy & Ors.

With

CAN 1 of 2026

For the petitioners : Mr. Krishnaraj Thakar, Sr. Adv.

Mr. Deepan Kumar Sarkar

Mr. Aurin Chakraborty

Mr. Pushan Kar

Mr. Sagnik Majumder

Ms. Shreya Ghosh Dastidar

….. advocates

For the respondent No.3 : Mr. Partha Pratim Roy

Mr. Shounak Mukhopadhyay

Mr. Amit Meharia

Ms. Paramita Banerjee

Mr. Sayan Dey

Mr. Yash Meharia …… advocates

For proposed added

respondent : Mr. Tanmoy Mukherjee

Ms. Aditi Kumar

Mr. Rudranil Das ……. advocates

Heard on : 06.05.2026 and 14.05.2026

Judgment on : 14.05.2026

Hiranmay Bhattacharyya, J.:-

1. The petitioner has challenged the assumption of jurisdiction by the Learned

Deputy Controller, Kolkata Thika Tenancy in relation to a property being

premises no. 16B, Gurusaday Road, Kolkata, 700019 and has prayed for

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setting aside the summons dated 02.01.2026 issued by the Deputy

Controller, Kolkata Thika Tenancy in Misc. Case No. 63 of 2025.

2. Petitioner claims that their predecessor-in-interest instituted a suit being

Title Suit No. 39 of 2000 before the Learned Civil Judge, (Senior Division),

2

nd

Court at Alipore for eviction of the 3

rd

respondent on the ground of

expiry of lease by efflux of time. During the pendency of the said suit, the

petitioner purchased the said property by registered deed of conveyance and

got themselves substituted in place and stead of the original plaintiff in the

said suit. The said suit was decreed and the 3

rd

respondent preferred an

appeal being Title Appeal No. 7 of 2025.

3. In the meantime, the decree was put into execution by the petitioner giving

rise to Title Execution Case No. 20 of 2025. It is alleged that the 3

rd

respondent in collusion with M/s Engineers Service Station filed an

application Under Section 47 of the Code of Civil Procedure being Misc. Case

No. 211 of 2025, wherein a plea has been taken that the 3

rd

respondent is

the thika tenant under The Calcutta Thika Tenancy (Acquisition and

Regulation) Act, 1981 (for short “the 1981 Act”). In Title Appeal No. 7 of

2025, the 3

rd

respondent disclosed a copy of the notice to be treated as

summons in Misc. Case No. 63 of 2025.

4. Challenging the authority of the Deputy Controller, Kolkata Thika Tenancy

to issue the notice to be treated as summons dated 02.01.2026, the

petitioner has approached this court.

5. Mr. Thakkar, Learned Senior Advocate for the petitioner contended that the

3

rd

respondent in its written statement filed in Title Suit No. 39 of 2000 took

the plea that the property in question stood vested with the State of West

Bengal under the 1981 Act as the same is the thika property. He contended

that such plea was considered and rejected by the Learned Trial Judge while

passing the judgment and decree dated November 20, 2024. Mr. Thakkar

contended that the Civil Court was vested with the jurisdiction to adjudicate

whether the status of the property is a thika property as well as the issue of

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thika tenancy under the 1981 Act and the Controller lacked inherent

jurisdiction to decide such issues. He further contended t hat the 3

rd

respondent had never set up any claim of Thika Tenancy under the The

West Bengal Thika Tenancy (Acquisition And Reg ulation) Act, 2001

(hereinafter, the “2001 Act”). Mr. Thakkar thus, contended that the Deputy

Controller, Kolkata Thika Tenancy could not have assumed jurisdiction and

issued summons to the petitioners.

6. Mr. Roy, Learned Advocate appearing for the 3

rd

respondent raised an

objection as to the entertainability of this writ petition. He contended that

the West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001 (for

short “the 2001 Act”) is a “specified Act” under Section 2 (r) of the West

Bengal Land Reforms and Tenancy Tribunal Act 1997 (for short ‘1997 Act’).

He contended that the petitioner has challenged the summons issued by the

Deputy Controller Kolkata Thika Tenancy fixing a date of hearing as per

section 5(3) of the West Bengal Thika Tenancy (Acquisition and Regulation)

Act 2001. Mr. Roy contended that since the impugned notice relates to a

matter under the provision of a specified Act, the West Bengal Land Reforms

and Tenancy Tribunal (for short “WBLRTT”) is empowered to decide such

issue in view of provision laid down under Section 6 of the 1997 Act.

7. Mr. Roy contended that the WBLRTT has been vested with the jurisdiction,

power and authority to adjudicate or try the disputes and applications

relating to land reforms and matters arising out of any provisions of the

specified Act, and the jurisdiction of the High Court, except where the High

Court exercises writ jurisdiction under Articles 226 and 227 of the

Constitution by a Division Bench, has been excluded. He thus, contended

that the instant writ petition should not be entertained by this court. In

support of such contention, Mr. Roy placed reliance upon the judgement

delivered by this court on March 20, 2026 in a batch of writ petitions, the

lead case being WPA 25183 of 2025 in the case of Gour Chandra Ghosh &

Ors. Vs. State of West Bengal and Ors. Mr. Roy contended that he shall

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make appropriate submissions on merit onl y after the issue of

maintainability is decided.

8. In reply, Mr. Thakkar, Learned Senior Advocate for the petitioner contended

that in spite of availability of alternative remedy, the High Court can still

exercise jurisdiction in cases where there has been wrongful assumption of

jurisdiction by an authority. In support of such contention he place d

reliance upon the decisions of the Hon’ble Supreme Court in the case of

Whirlpool Corporation vs. Registrar of Trade Marks Mumbai and Ors.

reported at 1998 (8) SCC 1, Godrej Sara Lee Ltd. Vs. E xcise and

Taxation Officer Cum Assessing A uthority and Ors. reported at 2023

SCC Online SC 70 and North Eastern Development Finance Corporation

Ltd. (NEDFI) vs. M/S L. Duol Builders reported at (2026) 3 SCC 310.

9. Mr. Thakkar, Learned Senior Advocate distinguished the decisions in the

case of PHR Invent Educational Society Vs. UCO Bank and Ors. reported

at (2024) 6 SCC 579 by contending that the said decision also carved out

certain exceptions when a petition Under Article 226 of the Constitution

could be entertained in spite of availability of an alternative remedy. He

contended that the Hon’ble Supreme Court dismissed the writ petition on

the ground that the said reported case did not fall under any of the

exceptions carved out by the Hon’ble Supreme Court in the case of CIT Vs.

Chhabil Dass Agarwal reported at (2014) 1 SCC 603. Mr. Thakkar

however contended that the decision in the case of Leelavathi N. and Ors.

Vs. State of Karnataka and Ors. reported at 2025 SCC Online (SC) 2253

held that a writ petition under Article 226 may be maintainable

notwithstanding the existence of tribunals constituted Under Articles 323A

or 323B of the Constitution of India. He contended that the decision in the

case of Gour Chandra Ghosh (supra) is distinguishable on facts as the

order passed in an appeal under Section 54 of the West Bengal Land

Reforms Act 1954 was directly challenged by filing a writ petition before this

court.

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10. Heard the learned Advocates for the parties on the issue of maintainability

of this writ petition and perused the materials placed.

11. Since an objection as to the entertainability of this writ petition has been

raised by the 3

rd

respondent, this court proposes to deal with such objection

at the threshold.

12. The issue that arises for consideration is whether an application under

Article 226 of the Constitution of India challenging a notice issued by an

“Authority” under the West Bengal Thika Tenancy (Acquisition and

Regulation) Act, 2001 is entertainable before this Court.

13. The availability of a remedy under the West Bengal Land Reforms and

Tenancy Tribunal Act, 1997 before the West Bengal Land Reforms and

Tenancy Tribunal (for short “the WBLRTT”) is the principal ground of

objection raised by Mr. Roy against entertainability of this writ petition.

14. In reply, Mr. Thakkar contended that it is well settled that existence of an

alternative remedy cannot operate as an absolute bar in case of an action

taken by an “Authority” which is wholly without jurisdiction.

15. The Hon’ble Supreme Court in Whirlpool Corporation vs. Registrar of

Trade Marks, Mumbai & Ors. reported at (1998) 8 SCC 1, reiterated the

proposition of law that alternative remedy shall not operate as a bar in at

least three contingencies, namely, where the writ petition has been filed for

enforcement of any of the Fundamental Rights or where there has been a

violation of the principles of natural justice or where the order or

proceedings are wholly without jurisdiction or the vires of an Act is

challenged.

16. The Hon’ble Supreme Court held thus-

“14. The power to issue prerogative writs under Article 226 of the

Constitution is plenary in nature and is not limited by any other

provision of the Constitution. This power can be exercised by the High

Court not only for issuing writs in the nature of habeas corpus,

mandamus, prohibition, quo warranto and certiorari for the enforcement

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of any of the Fundamental Rights contained in Part III of the

Constitution but also for “any other purpose”.

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 the vires of an Act is challenged. There is a plethora of

case-law on this point but to cut down this circle of forensic whirlpool,

we would rely on some old decisions of the evolutionary era of the

constitutional law as they still hold the field.”

17. The power of the High Court under Article 226 of the Constitution is plenary

in nature and considering the facts of the case, the High Court has

discretion to entertain or not entertain a writ petition, if an alternative

efficacious remedy is available.

18. The Hon’ble Supreme Court in Radha Krishan Industries vs. State of

Himachal Pradesh & oth ers reported at (2021) 6 SCC 771 after noticing

several decisions including Whirlpool Corporation (supra), formulated the

principles of law on the “rule of alternate remedy” in paragraph 27 of the

said reports. The Hon’ble Supreme Court held that when a right is created

by a statute which itself prescribes the remedy or procedure for enforcing

the right or liability, resort must be had to that particular statutory remedy

before invoking the discretionary remedy under Article 226 of the

Constitution.

19. The Hon’ble Supreme Court held thus-

“27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issue writs can

be exercised not only for the enforcement of fundamental rights, but for

any other purpose as well.

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27.2. The High Court has the discretion not to entertain a writ petition.

One of the restrictions placed on the power of the High Court is where

an effective alternate remedy is available to the aggrieved person.

27.3. Exceptions to the rule of alternate remedy arise where : (a) the

writ petition has been filed for the enforcement of a fundamental right

protected by Part III of the Constitution; (b) there has been a violation of

the principles of natural justice; (c) the order or proceedings are wholly

without jurisdiction; or (d) the vires of a legislation is challenged.

27.4. An alternate remedy by itself does not divest the High Court of its

powers under Article 226 of the Constitution in an appropriate case

though ordinarily, a writ petition should not be entertained when an

efficacious alternate remedy is provided by law.

27.5. When a right is created by a statute, which itself prescribes the

remedy or procedure for enforcing the right or liability, resort must be

had to that particular statutory remedy be fore invoking the

discretionary remedy under Article 226 of the Constitution. This rule of

exhaustion of statutory remedies is a rule of policy, convenience and

discretion.

27.6. In cases where there are disputed questions of fact, the High

Court may decide to decline jurisdiction in a writ petition. However, if

the High Court is objectively of the view that the nature of the

controversy requires the exercise of its writ jurisdiction, such a view

would not readily be interfered with.”

(emphasis supplied)

20. It is now judicially settled that when a statutory forum is created by law for

redressal of grievances, the High Court may not entertain a writ petition

ignoring the statutory dispensation.

21. In Thansingh Nathmal vs. Suprintendent of Taxes reported at AIR 1964

(SC) 1419, the Constitution Bench of the Hon’ble Supreme Court reiterated

the rule of self-imposed restraint that the High Court will not entertain a

writ petition if an effective remedy is available to an aggrieved person.

22. The Hon’ble Supreme Court held thus-

“7. …Ordinarily the Court will not entertain a petition for a writ under

Article 226, where the petitioner has an alternative remedy, which

without being unduly onerous, provides an equally efficacious remedy.

Again the High Court does not generally enter upon a determination of

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questions which demand an elaborate examination of evidence to

establish the right to enforce which the writ is claimed. The High Court

does not therefore act as a court of appeal against the decision of a

court or tribunal, to correct errors of fact, and does not by assuming

jurisdiction under Article 226 trench upon an alternative remedy

provided by statute for obtaining relief. Where it is open to the aggrieved

petitioner to move another tribunal, or even itself in another jurisdiction

for obtaining redress in the manner provided by a statute, the High

Court normally will not permit by entertaining a petition under Article

226 of the Constitution the machinery created under the statute to be

bypassed, and will leave the party applying to it to seek resort to the

machinery so set up.”

(emphasis supplied)

23. The Hon’ble Supreme Court in CIT vs. Chhabil Das Agarwal reported at

(2014) 1 SCC 603 after reiterating the well recognised exceptions to the rule

of alternative remedy, held that the proposition of law laid down in

Thansingh Nathmal (supra) still holds the field.

24. The Hon’ble Supreme Court in PHR Invent Educational Society (s upra)

after noticing that despite its repeated pronouncements with regard to the

High Courts ignoring the availability of statutory remedies under the RDBFI

and SARFAESI Acts and exercising jurisdiction under Article 226 of the

Constitution of India, held that the High Courts will not entertain a petition

under Article 226 of the Constitution of India if an effective remedy is

available to the aggrieved person or the statute under which the action

complained of has been taken itself contains a mechanism for redressal of

grievance.

“37. It could thus clearly be seen that the Court has carved out certain

exceptions when a petition under Article 226 of the Constitution could be

entertained in spite of availability of an alternative remedy. Some of them

are thus:

(i) where the statutory authority has not acted in accordance with

the provisions of the enactment in question;

(ii) it has acted in defiance of the fundamental principles of judicial

procedure;

(iii) it has resorted to invoke the provisions which are repealed; and

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(iv) when an order has been passed in total violation of the principles

of natural justice.

38. It has however been clarified that the High Court will not entertain a

petition under Article 226 of the Constitution if an effective alternative

remedy is available to the aggrieved person or the statute under which the

action complained of has been taken itself contains a mechanism for

redressal of grievance.” (emphasis supplied)

25. The Hon’ble Supreme Court in Rikhab Chand Jain vs. Union of India

reported at Civil Appeal no. 6719 of 2012 reiterated the proposition of law

laid down in the Constitution Bench decision in the case Thansingh

Nathmal (supra) that when it is open to the aggrieved petitioner to move

another tribunal for obtaining redress in the manner provided by the

statute, the High Court normally will not permit the entertaining of a

petition under Article 226 of the Constitution of India, the machinery

created under the statute to be bypassed and will leave the party applying to

it to seek resort to the machinery so set up.

26. From the aforesaid discussion, it follows that if the alternative remedy

available to an aggrieved person is an effective one, a writ petition may not

be entertained ignoring the statutory dispensation. In other words, whether

the alternative remedy is an effective one or not would be one of the guiding

as well as relevant factors in deciding the manner in which the High Court

should exercise its discretion.

27. However, the Tribunals created under Article 323A and 323B stand on a

completely different platform than the remedies available for redressal of

grievances of aggrieved persons under various statutes as well as the

Tribunals and Appellate Tribunals under The Recovery of Debts and

Bankruptcy Act, 1993 (for short “RDB Act”) and Securitisation and

Reconstruction of Financial Assets and Enforcement of Security Interest Act,

2002 (for short “SARFAESI Act”).

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28. Articles 323A and 323B falls within Part XIVA of the Constitution of India

which were inserted by the Constitution (Forty-second Amendment) Act,

1976. Part XIVA provides for creation of Tribunals. Article 323A deals with

Administrative Tribunals and Article 323B deals with Tribunals for other

matters.

29. Clause 2(d) of Article 323A and Clause 3(d) of Article 323B of the

Constitution provides for exclusion of jurisdiction of all courts except the

jurisdiction of the Supreme Court under Article 136.

30. The Administrative Tribunal Act, 1985 was enacted pursuant to the power

conferred upon the Parliament under Article 323A of the Constitution.

31. Section 28 of the 1985 Act when originally enacted provided for exclusion of

jurisdiction of Courts except the Supreme Court under Article 136 of the

Constitution.

32. Two out of the three issues which fell for consideration before the

Constitution Bench in L. Chandra Kumar vs. Union of India and others

reported at (1997) 3 SCC 261 are as follows-

“(1) Whether the power conferred upon Parliament or the State

Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article

323-A or by sub-clause (d) of clause (3) of Article 323-B of the Constitution,

to totally exclude the jurisdiction of ‘all courts’, except that of the Supreme

Court under Article 136, in respect of disputes and complaints referred to

in clause (1) of Article 323-A or with regard to all or any of the matters

specified in clause (2) of Article 323-B, runs counter to the power of judicial

review conferred on the High Courts under Articles 226/227 and on the

Supreme Court under Article 32 of the Constitution?

(2) Whether the Tribunals, constituted either under Article 323-A or under

Article 323-B of the Constitution, possess the competence to test the

constitutional validity of a statutory provision/rule?”

33. The Hon’ble Supreme Court held that the power of judicial review over

legislative action vested in the High Courts under Article 226 and before the

Supreme Court under Article 32 of the Constitution is an integral and

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essential feature of the Constitution, constituting part of its basic structure.

Ordinarily, therefore, the power of the High Courts and the Supreme Court

to test the Constitutional validity of legislations can never be ousted or

excluded (see para 78 of L.Chandra Kumar’s case).

34. It was further held that the power vested by the High Courts to exercise

judicial superintendence over the decisions of all Courts and tribunals

within their respective jurisdictions also forms part of the basic structure of

the Constitution. (see para 79).

35. The Hon’ble Supreme Court held that so long as the jurisdiction of the High

Courts under Articles 226/227 and that of the Supreme Court under Article

32 is retained, there is no reason why the power to test the validity of

legislations against the provisions of the Constitution cannot be conferred

upon Administrative Tribunals created under the 1985 Act or upon

Tribunals created under Article 323B of the Constitution. (see para 81)

36. The contention that the Tribunals should not be allowed to adjudicate upon

matters where the vires of a legislation is questioned and whether they

should restrict themselves to handling matters where constitutional issues

are not raised stood rejected in L. Chandra Kumar (supra). The Hon’ble

Supreme Court observed that to hold that the Tribunals have no power to

handle matters involving constitutional issues would not serve the purpose

for which it was constituted. On the other hand, to hold that all such

decisions will be subject to the jurisdiction of the Division bench of the High

Court within whose territorial jurisdiction the Tribunal concerned falls, will

serve two purposes. While saving the power of judicial review of legislative

action vested in the High Courts under Articles 226/227 of the Constitution,

it will ensure that frivolous claims are filtered out through the process of

adjudication in the Tribunal. The High Court will also have the benefit of a

reasoned decision on merits which will be of use to it in finally deciding the

matters. (See paragraph 90)

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37. The Hon’ble Supreme Court held that the Tri bunal cannot act as a

substitute for the High Courts and the Supreme Court and their function is

only supplementary and all such decisions of the Tribunals will be subject

to scrutiny before a Division Bench of the respective High Courts. In

paragraph 99 of the said reports, it was held thus-

“99. In view of the reasoning adopted by us, we hold that clause 2(d) of

Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude

the jurisdiction of the High Courts and the Supreme Court under Articles

226/227 and 32 of the Constitution, are unconstitutional. Section 28 of

the Act and the “exclusion of jurisdiction” clauses in all other

legislations enacted under the aegis of Articles 323-A and 323-B would,

to the same extent, be unconstitutional. The jurisdiction conferred upon

the High Courts under Articles 226/227 and upon the Supreme Court

under Article 32 of the Constitution is a part of the inviolable basic

structure of our Constitution. While this jurisdiction cannot be ousted,

other courts and Tribunals may perform a supplemental role in

discharging the powers conferred by Articles 226/227 and 32 of the

Constitution. The Tribunals created under Article 323-A and Article 323-

B of the Constitution are possessed of the competence to test the

constitutional validity of statutory provisions and rules. All decisions of

these Tribunals will, however, be subject to scrutiny before a Division

Bench of the High Court within whose jurisdiction the Tribunal

concerned falls. The Tribunals will, nevertheless, continue to act like

courts of first instance in respect of the areas of law for which they

have been constituted. It will not, therefore, be open for litigants to

directly approach the High Courts even in cases where they question

the vires of statutory legislations (except where the legislation which

creates the particular Tribunal is challenged) by overlooking the

jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid

and constitutional and is to be interpreted in the manner we have

indicated.”

(emphasis supplied)

38. Whether the High Court can entertain a writ petition in respect of matters

falling within the domain of Tribunal under Article 323A as a Court of first

instance came up for consideration before the Hon’ble Supreme Court in

T.K. Rangaranjan vs. Government of Tamil Nadu and others reported at

(2003) 6 SCC 581. In this case, the Tamil Nadu Government terminated the

services of thousands of employees who had resorted to strike for their

demands. Challenging such an action, writ petitions were filed under

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Articles 226/227 of the Constitution and the learned Single Judge passed

an interim order which was set aside by the Hon’ble Division Bench by

holding that without exhausting the alternative remedy of approaching the

Administrative Tribunal, the writ petitions were not maintainable. The

Hon’ble Supreme Court reiterated that under Article 226 of the Constitution,

the High Court is empowered to exercise its extraordinary jurisdiction to

meet unprecedented extraordinary situation. However, it was clarified that

extraordinary powers are required to be sparingly used.

39. The Hon’ble Supreme Court noticed that at the relevant point of time, in

Tamil Nadu, the Administrative Tribunal was manned by only one man. The

Hon’ble Supreme Court after noting that the State Government had

dismissed about two lakh employees for going on strike, held that the facts

of the said case was most extraordinary and observed that if such a large

number of employees were directed to approach the Administrative Tribunal,

the Tribunal would not be in a position to render justice to the cause. In

view of such exceptional circumstances, the Hon’ble Supreme Court held

that there was no justifiable reason for the High Court not to entertain the

petitions on the ground of alternative remedy.

40. By referring to the observations made by the Hon’ble Supreme Court in

paragraph 37 of the decision in the case of Leelavathi N. (supra), Mr.

Thakkar would vehemently contend that this Court should entertain this

writ petition as the “Authority” under the 2001 Act acted without

jurisdiction.

41. In Leelavathi N. (supra), after reiterating the proposition of law laid down

in Radha Krishan Industries (supra) and PHR Invent Educational

Society (supra), the Hon’ble Supreme Court arrived at a conclusion in

paragraph 36 of the reports that the High Court should not entertain a writ

petition under Article 226 of the Constitution of India in matters falling

squarely within the domain of the Tribunals.

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42. Leelavathi N. (supra) after holding that the proposition of law laid down in

Thansingh Nathmal (supra) and other similar judgments still holds the

field, in paragraph 37 of the said reports, reiterated the proposition of law

laid down in T.K. Rangarajan (supra) that in exceptional circumstances a

writ petition may still be maintainable notwithstanding the existence of an

alternative remedy.

43. It, therefore, follows that ordinarily the High Court will not entertain a writ

petition if an alternative and efficacious remedy is available in the form of a

Tribunal constituted under Articles 323A and 323B of the Constitution but

can entertain a writ petition in very very exceptional circumstances.

44. It is well settled that a judgment is to be read as a whole in order to cull out

the ratio decidendi.

45. The observations made in Paragraph 37 of Leelavathi N. (supra) should not

be read as laying down a proposition that an aggrieved party can bypass the

tribunal constituted under Articles 323A and 323B at the mere asking and

directly approach the High Court in respect of matters falling within the

domain of the tribunal. In this regard it would be relevant to take note of the

observation of the Hon’ble Supreme Court in L. Chandra Kumar (supra)

wherein it was held that while the jurisdiction conferred upon the High

Courts under Articles 226 and 227 and upon the Supreme Court Under

Article 32 of the Constitution is a part of basic structure of our Constitution

and such jurisdiction cannot be ousted and Trib unals may perform a

supplementary role in discharging the powers conferred by Articles 226 and

32 of the Constitution.

46. For the aforesaid reason, this Court is not inclined to accept the contention

of Mr. Thakkar that Leelavathi N. (supra) is an authority for the

proposition of law that a writ petition, alleging that the issue raised therein

falls within the exceptions carved out by the Hon’ble Supreme Court in a

catena of judgments, has to be entertained and tried by the High Court even

in cases where the matter falls within the domain of the Tribunal.

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47. To the mind of this Court, if a Tribunal constituted under Articles 323A &

323B of the Constitution, is an effective alternative remedy, the High Court

would not normally exercise its jurisdiction keeping in mind the rule of self-

imposed restraint which plays an important role in the exercise of discretion

to entertain or not to entertain a writ petition.

48. West Bengal Land Reforms and Tenancy T ribunal Act 1997 received the

assent of His Excellency the Governor of the State on 12.12.1997. The said

Act came into force few months after the judgment in L. Chandra Kumar

(supra) was delivered. The said Act was promulgated to provide for setting

up of a Land Reforms and Tenancy Tribunal pursuant to Article 323B of the

Constitution and for the adjudication and trial by such tribunal of disputes,

claims, objections and applications relating to, or arising out of the, land

reforms or tenancy in land and other matters under a specified Act and for

matters connected there with or incidental thereto.

49. Section 6 of the 1997 Act deals with the jurisdiction, power and authority of

the Tribunal. Section 6 states that the Tribunal shall with effect from such

date as may be appointed by the State Government by notification in that

behalf, exercise jurisdiction, power, and authority in relation to any order

made by an authority under a specified Act; an application complaining of in

action or culpable negligence of an authority under a specified Act; an

appeal against an order of the Mines Tribunal appointed under Section 36 of

the West Bengal State Acquisition Act 1953; 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; and

adjudication of matter, proceedings, cases and appeals with stood

transferred from the High Court and other authorities to the Tribunals in

accordance with the provisions of this Act.

50. Section 7 of the 1997 Act states that the Tribunal shall, with effect from the

date appointed by the State Government under Section 6 exercise all the

jurisdiction, power and authority exercisable immediately before that date

by any court including the High Court, except the writ jurisdiction by a

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Division Bench of the High Court but excluding the Supreme Court for

adjudication or trial of disputes and applications relating to land reforms

and matters connected therewith or incidentally thereto and other matters

arising out of any provisions of a specified Act.

51. Section 8 deals with the exclusion of jurisdiction of Courts. It states that on

and from the date from which the jurisdiction, power and authority become

exercisable under that 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.

52. Upon a conjoint reading of Sections 6, 7 and 8 of the 1997 Act, this Court

finds that the jurisdiction, power and authority which used to be exercised

by any Court including the High Court except the writ jurisdiction under

Articles 226 and 227 of the Constitution exercised by the Division Bench of

the High Court prior to the date appointed by the State Government under

Section 6 of the 1997 Act in respect of matters relating to land reforms and

other matters arising out of any provisions of a specified Act have been

vested upon the Tribunal.

53. It, therefore, follows that the adjudication that used to be made by this

Court under Article 226/227 as a Court of first instance in respect of the

matters specifically provided for in Sections 6, 7 and 8 have been taken

away from the jurisdiction of the High Court and entrusted to the Tribunal

set up under the 1997 Act.

54. It is now well settled that the Tribunals will act as a Court of first instance

and shall perform a supplementary role in discharging the powers conferred

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under Articles 226/227 and it will not be open to the litigants to directly

approach the High Court overtaking the jurisdiction of the Tribunal.

55. In State of W.B. v. Ashish Kumar Roy reported at (2005) 10 SCC 110, the

vires of the 1997 Act was challenged. The Hon’ble Supreme Court reiterated

the observations of the Constitution Bench decision in the case of L.

Chandra Kumar (supra) and it was held that as long as the tribunal

constituted performs a supplementary role, without exclusion of the

jurisdiction of the High Court under Article 226 and 227 and under Article

32 of the Constitution of India, the validity of the legislation constituting

such tribunals could not be doubted. It was further held that the Tribunals

would act as authorities of first instance whose decision could be challenged

before the Division Bench of the High Court in its writ jurisdiction.

56. The Hon’ble Division Bench in the case of Ananda Koley vs. State of West

Bengal and Ors reported at (2016) 3 WBLR 577 after noting the provisions

of Article 323 B of the Constitution of India and the interpretation of the

same as made in the ca se of L. Chandra Kumar (supra) held that a

tribunal created under Article 323B of the Constitution is a Court of first

instance and in a case coming within the jurisdiction of the West Bengal

Land Reforms and Tenancy Tribunal, the Court si tting under Article

226/227 of the Constitution of India cannot act as a court of first instance.

The Hon’ble Division Bench held that there are two distinguishable features

so far as the tribunals created by virtue of any statute where the power flows

from the provisions of Article 323A or 323B of the Constitution of India,

which are as follows-

(i) The Tribunal is a court of first insta nce and under the

provisions of Section 8 of the 1997 Act the jurisdiction of a

Court sitting under Article 226 and 227 of the Constitution of

India has been ousted to act as the Court of first instance and

that judicial review is a basic structure of the Constitution of

India.

(ii) The Tribunal created under the provisions of Article 323A of the

Constitution of India or by virtue of the provisions of the Act

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which is legislated by the State Legislature in exercise of power

conferred on it by the provision of Article 323B of the

Constitution of India is competent to examine the vires of any

provision of an Act save and except any provision of an Act

which creates that tribunal.

(emphasis supplied)

57. The Hon’ble Division Bench in the case of Indian Oil Corporation Limited

vs. Anchit Agarwal reported at 2023 (1) CHN (CAL) 493 after considering

the decision of the Hon’ble Supreme Court in the ca se of L. Chandra

Kumar (supra) and Ashish Kumar Roy (supra) held that it indubitably

follows that for adjudication of any dispute which touches upon any

provision of a specified Act under the West Bengal Land Reforms and

Tenancy Tribunal Act 1997, one must approach the Tribunal at the first

instance and all other civil courts including the High Court except the

Division Bench exercising the writ jurisdiction under Article 226/227 of the

Constitution of India do not have any power and jurisdiction to entertain

such dispute.

58. From the aforesaid discussion it follows that the jurisdiction of the single

bench of the High Court under Article 226 and 227 of the Constitution of

India as a Court of first instance has been expressly excluded by virtue of

Section 8 of the 1997 Act in respect of matters falling within the jurisdiction,

power and authority of the WBLRTT thereby retaining the jurisdiction of the

Division Bench of the High Court under Articles 226 and 227 of the

Constitution of India.

59. The decision of the co-ordinate bench of this court in the case of Rita Basu

and Ors. vs. State of West Bengal and Ors. reported at WP 1205 of

2010, supports the aforesaid view taken by this Court wherein it was held

that the writ petition before the Division Bench without exhausting the

remedy before the Tribunal is not maintainable. It was further held that the

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writ petition under Article 226 of the Constitution of India is not

maintainable before the Single Bench of the High Court.

60. This Court in Gour Chandra Ghosh (supra) after considering various

provisions of the 1997 Act held that the machinery created under the 1997

Act is an effective alternative remedy.

61. West Bengal Land Reforms and Tenancy Tribunal has been vested with the

jurisdiction, power and authority in relation to matters relating to any

Constitutional validity of any Act under the provisions of a specified Act. The

Tribunal can also decide whether the statutory authority has acted in

accordance with the provisions of the enactment in question or not or it has

acted in defiance of the fundamental principles of judicial procedure or has

resorted to the provisions which are repealed or an order has been passed in

total violation of principles of natural justice.

62. The object of constitution of the Tribunal is to ensure that frivolous claims

are filtered out through the process of adjudication in the Tribunal and High

Court while exercising the power of judicial review will have the benefit of a

decision of merits which will be used by it in finally deciding the matter. The

said object shall be frustrated if writ petitions are entertained at the mere

asking of a party in respect of matters falling within the domain of Tribunal.

63. The summons that was issued for hearing under Section 5(3) of the 2001

Act, is under challenge in this writ petition. Thus, it is evident that the

petitioner approached this Court in relation to a matter under the provisions

of the 2001 Act which is a specified Act under Section 2(r) of the 1997 Act.

The issue involved in this writ petition falls within the jurisdiction of the

Tribunal under the first limb of Clause (d) of Section 6 of the 1997 Act.

64. WBLRTT, which is the Tribunal constituted under Article 323(B) of the

Constitution is well equipped to deal with the matters as specifically

mentioned in Section 6 of the 1997 Act. The said Tribunal is also competent

to decide matters relating to any constitutional validity of any Act under the

provisions of the specified Act. Thus, it cannot be urged that the question

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whether the Deputy Controller, Kolkata Thika Tenancy acted beyond its

authority to issue the notice of summons cannot be raised before the

Tribunal.

65. Mr. Thakkar placed strong reliance upon the decision in the case of Godrej

Sara Lee (supra) in support of his contention that when the jurisdiction of

an authority has been questioned, the writ petition can be entertained

instead of relegating the petitioner to the alternative statutory remedy.

66. In Godrej Sara Lee (supra), returns under the VAT Act were filed declaring

the goods to fall under a particular Entry and the Assessing Officer accepted

the classification of goods and the rate of tax as stated by the appellant

therein. Subsequently the revisional authority sought to revise the said

assessment. The jurisdiction of the revisional authority was questioned.

67. In Godrej Sara Lee (supra), the Hon’ble Supreme Court placed reliance on

two earlier decisions wherein it was held that whether a particular item falls

within an entry in a sales tax statute raises a pure question of law and if

investigation into facts is unnecessary, the High Court could entertain a writ

petition in its discretion even though alternative remedy was not availed of.

68. After noting the provisions of Section 34 of the VAT Act the Hon’ble Supreme

Court observed that the first proviso imposed a restriction on exercise of suo

motu power, if an issue had been settled inter alia by an appellate authority.

Taking note of the admitted factual position that the decision of the Tribunal

had attained finality, the Hon’ble Supreme Court observed that once the

issue stands finally concluded, the decision binds the State, a fortiori, the

revisional authority. The Hon’ble Supreme Court after observing that the

issue raised therein being a pure question of law, held that the writ petition

ought not to have been thrown out at the threshold.

69. Section 4 of the 1997 Act deals with the composition of the Tribun al. It

states that the Tribunal shall consist of a Chairman and not less than one

Judicial Member and one Administrative Member. No persons shall be

qualified as a Judicial Member unless he has been or is qualified to be, a

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Judge of a High Court. No person shall be qualified to be appointed as a

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. Each

bench of the Tribunal shall consist of at least one Judicial Member and one

Administrative Member.

70. If such is the composition of the Tribunal, there is no reason why the

petitioner could not approach the Tribunal which is well equipped to decide

the question of jurisdiction of the Controller under 2001 Act to issue the

impugned summons. That apart, the question of jurisdiction raised by the

petitioner herein is not a pure question of law and it requires an

investigation on facts as well. The question of jurisdiction in the case on

hand is a mixed question of law and fact.

71. In North Eastern Development Finance Corporation Ltd. (supra) the

Hon’ble Supreme Court after noting that the loan agreement was executed

on 11.05.2001 and SARFAESI Act became operational from 21.06.2002 held

that the SARFAESI Act was erroneously invoked by the Corporation and

since such invocation was without jurisdiction, there is no question of

relegating the company to the Debt Recovery Tribunal under Section 17 of

the SARFAESI Act. The said decision being distinguishable on facts, cannot

come to the aid of the petitioner.

72. For all the reasons as aforesaid this court holds that the WBLRTT

constituted under Article 323B of the Constitution should not be allowed to

be bypassed on the ground of alleged wrongful assumption of jurisdiction by

an “Authority” under the 2001 Act, as the WBLRTT has the power, authority

and jurisdiction to decide such issue.

73. Accordingly, the writ petition stands dismissed as not entertained. The

connected application stands disposed of.

74. Petitioner is, however, left free to approach the proper forum in accordance

with law.

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75. Before parting, it is made clear that this court has not entered into the

merits of the claim made by the petitioner in this writ petition and the

findings rendered hereinbefore are only for the purpose of supporting the

ultimate conclusions on the issue of entertainability of this writ petition and

the same shall not prejudice either of the parties before the proper forum if

such forum is approached by the parties. They shall, however, be no order

as to costs.

76. Urgent photostat certified copies, if applied for, be supplied to the parties

upon compliance of all formalities.

(HIRANMAY BHATTACHARYYA, J.)