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CASE NO.:

Appeal (civil) 4454 of 1999

PETITIONER:

State of West Bengal

RESPONDENT:

Ashish Kumar Roy and ors.

DATE OF JUDGMENT: 03/12/2004

BENCH:

Shivaraj V. Patil & B.N. Srikrishna

JUDGMENT:

J U D G M E N T

SRIKRISHNA,J.

This appeal by special leave impugns a judgment of the Division

Bench of the Calcutta High Court allowing a writ petition under Article

226 of the Constitution of India, holding certain provisions of the West

Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereinafter

referred to as 'the Act') as ultra vires the Constitution of India as also

declaring that clause 3(e) of Article 323B 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 judgment also

declares section 9 of the said Act as ultra vires the Constitution and

violative of the basic structure of the Constitution.

The Government of West Bengal, after obtaining the assent of the

Governor, notified and published the provisions of the said Act in the

official gazette dated December 12, 1997.

The respondents 1 to 4, who are advocates and members of the

Bar Association of Calcutta High Court, filed writ petition no.

7110(W)/ 1998 in the Calcutta High Court challenging the provisions

of the said Act as ultra vires, null and void and ineffective, and seeking

a declaration that Article 323B (2)(d) of the Constitution could not take

away the power of the High Court and other civil courts to decide

disputes in relation to the acts specified in the said Act.

The Act was brought into force by a Notification dated 3rd August

1998. Simultaneously, a Tribunal called the West Bengal Land

Reforms and Tenancy Tribunal, contemplated under section 4 of the

Act, was also brought into existence by another notification issued on

the same date. Another notification was issued on the same date

specifying the place at which the Benches of the said Tribunal shall

ordinarily sit. It was also notified on the same day that w.e.f. 12th

August 1998 (the appointed date) the tribunal shall exercise

jurisdiction, power and authority in relation to the matters specified in

clauses (a) to (e) of section 6 of the said Act. The learned single Judge

of the Calcutta High Court heard the writ petition and by the impugned

judgment dated 16.4.1999 struck down certain provisions of the said

Act as already indicated. The State of West Bengal is in appeal.

Three 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 323B (1)(d) of the Constitution of India

as it lacks the necessary attributes prescribed by the said Article.

2. The jurisdiction power and authority of the Tribunal specified in

Sections 5,6,7 and 8 of the said Act are ultra vires the Constitution of

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India, as the said provisions abridge and take away the power of

judicial review of the High Court under Article 226 and 227 of the

Constitution of India, as a court of first instance;

3. 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.

The learned single Judge of the High Court negatived the first

contention and held that the said Act was enacted for 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 323B (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 ors. (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. Having examined it

independently, he concluded that the impugned provisions of the said

Act were violative of the Constitution including the basic structure

thereof and struck them down.

The learned counsel for the appellant contends that the High

Court erred in accepting the second and third contentions urged by the

writ petitioners. He submits that a careful reading of the observations

and directions in paragraph 99 of the Constitution Bench judgment in

L Chandra Kumar (supra) makes it clear that they were 'law declared'

within the meaning of Article 141. This law was binding on the

learned single Judge and he could not have taken a contrary view in the

matter, submits the learned counsel.

The learned counsel for the respondents reiterated the contentions

urged before the High Court and supported the view of the High Court

on the second and third contentions . In addition, the learned counsel

for the respondents also urged that the finding of the single Judge of the

High Court as to the nature of the Tribunal was erroneous and urged

that we should hold that the Tribunal constituted under the Act is not a

Tribunal within the meaning of Article 323 B (2)(d) of the Constitution

of India.

The Act

The object of the enactment is indicated in the preamble as under:

"Whereas it is expedient to provide for the

setting up of a Land Reforms and Tenancy

Tribunal and for adjudication and trial by such

Tribunal of disputes, claims, objections and

applications relating to, or arising out of, land

reforms or tenancy in land and other matters

under a specified Act and for the exclusion of

the jurisdiction of all courts except a Division

Bench of the High Court exercising writ

jurisdiction under Articles 226 and 227 of the

Constitution of India and the Supreme Court of

India in adjudication and trial of such disputes,

claims, objections and applications and for

matters connected therewith or incidental

thereto."

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Under chapter 2 a tribunal called the West Bengal Land

Reforms and Tenancy Tribunal is established. Section 6 therein

provides that

"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 \026

(a) an order in original made by an Authority under

a specified Act;

(b) an application complaining in action or culpable

negligence of an Authority under a specified Act;

(c) an appeal against an order or the Mines Tribunal

appointed under section 36 of the West Bengal

Estates Acquisition Act, 1953;

(d)adjudication of disputes and applications relating

to matters under any provision of a specified Act

involving interpretation of any provision of the

Constitution or of validity of a specified Act or of

any other law for the time being in force;

(e) adjudication of maters, 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."

Section 7 provides that from the date appointed by the

State Government under section 6, the Tribunal shall exercise

all the jurisdiction, power and authority exercisable immediately

before that day by any court including the High Court, except the

writ jurisdiction under articles 226 and 227 of the Constitution

exercised by a Division Bench of the High Court, but excluding

the Supreme Court, for adjudication or trial of disputes and

applications relating to land reforms and matters connected

therewith or incidental thereto and other matters arising out of

any provision of a specified Act.

Section 8 bars the jurisdiction of 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, to 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.

Section 9 makes provision for transfer of all matters

pending before the High Court except matters pending in the writ

jurisdiction before the Division Bench under Articles 226 and

227, or any other Court, to the Tribunal for disposal in

accordance with the provisions of the Act, if they are matters,

proceedings, cases and appeals relating to land reforms and

matters connected therewith or incidental thereto and other

matters arising out of a specified Act.

The Tribunal is also given appellate powers over the orders

passed by an authority or functionary under a specified Act.

Section 11 of the Act bars an appeal or application against any

decision of the Tribunal in a proceeding in any Court except the

Supreme Court and the Division Bench of the High Court

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exercising writ jurisdiction under Articles 226 and 227 of the

Constitution.

There are certain other incidental and consequential

sections which are not necessary to be noticed in detail.

Section 2(h) defines the terms 'estate' as the holding of

land of any description or classification of a raiyat or

intermediary or other person under a specified Act. Section

(2) ( r) defines the term 'specified Act' to mean (i) the West

Bengal Estates Acquisition Act, 1953; or (ii) the West Bengal

Land Reforms Act, 1955; 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 Fishermen Act, 1975; or (v) the West Bengal Land

Holding Revenue Act, 1979.

Legal Contentions

We may conveniently club contentions 2 and 3 urged

before us as to the constitutional validity of the provisions of the

Act. Learned counsel for the appellant urges that the direction

given by this Court in L.Chandra Kumar (supra) is 'law

declared' so as to make it binding under Article 141 of the

Constitution. The learned single Judge observed on this issue:

"I have refrained myself from making any comment and

deciding as no ground has been taken in the petition, further

while testing a legislative action on the anvil of constitutional

provision, legal implication of the above decision of the Supreme

Court shall not be ascertained in this action. So, I have left it

open". Nonetheless, the learned single Judge proceeded to hold :

"In my opinion, ratio and/or issue which has

been decided in the aforesaid judgment is

whether the power under Articles 226 & 227 of

the High Court can be ousted by enacting a

legislation in exercise of power under Articles

323 A & B. It has been decided answering the

above issue that the power of the High Court

under Articles 226 & 227 is inviolable

provision and the same being the par of the

basic structure of the Constitution. The

legislature is not competent to take away such

authority. In paragraphs 90 & 99 it has been

made amply clear.

Therefore, I hold the ratio decided in the

aforesaid judgment of the Supreme Court in

L.Chandrakumar's case in answer to the issues

and/or questions to the question No. 1 that the

power of the High Court under Articles 226 and

227 cannot be ousted by enacting any

legislation under Articles 323 A & B and this

decision is declared law under Article 141 of

Constitution. In other words, if any provision

made in this kind of legislation to oust the

jurisdiction under Articles 226 & 227 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 as court of first

instance."

Having thus observed, the learned Judge came to the

conclusion that the provisions of the Act were violative of the

basic structure of the Constitution and struck down the

provisions of Sections 6,7 and 8 of the Act.

In our considered view, the learned Judge was not right in

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disposing of the observations in L.Chandra Kumar (supra) by

side-stepping them. The issues considered by the Constitution

Bench of this Court in L.Chandra Kumar (supra) have been

formulated (vide para 1) and they are as under:

(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?

(3) Whether these Tribunals, as they are

functioning at present, can be said to be effective

substitutes for the High Courts in discharging the

power of judicial review? If not, what are the

changes required to make them conform to their

founding objectives?"

After an elaborate discussion of the contentions urged before it,

and careful appraisal of the law laid down in several judgments,

and noticing the critical comments made with regard to the

functioning of the Tribunals set up under Articles 323A and

323B of the Constitution by the Law Commission of India and

the Malimath Committee, finally this Court observed thus in

paragraphs 98 and 99 of the Judgment:

"98. Since we have analysed the issue of the

constitutional validity of Section 5(6) of the Act at

length, we may now pronounce our opinion on this

aspect. Though the vires of the provision was not in

question in Dr. Mahabal Ram case , we believe that

the approach adopted in that case, the relevant portion

of which has been extracted in the first part of this

judgment, is correct since it harmoniously resolves

the manner in which Sections 5(2) and 5(6) can

operate together. We wish to make it clear that where

a question involving the interpretation of a statutory

provision or rule in relation to the Constitution arises

for the consideration of a Single Member Bench of

the Administrative Tribunal, the proviso to Section

5(6) will automatically apply and the Chairman or the

Member concerned shall refer the matter to a Bench

consisting of at least two Members, one of whom

must be a Judicial Member. This will ensure that

questions involving the virus of a statutory provision

or rule will never arise for adjudication before a

Single Member Bench or a Bench which does not

consist of a Judicial Member. So construed, Section

5(6) will no longer be susceptible to charges of

unconstitutionality.

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99. In view of the reasoning adopted by us, we

hold that clause 2(d) of Article 323-A and clause 3(d)

or 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."

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 straightaway be set aside as inconsistent with the law

laid down by this Court which was binding on the High Court.

The learned counsel for the respondents, however, faintly

urged that L.Chandra Kumar (supra) itself holds that the

legislature has no power to exclude the powers of the High Court

under Articles 226 and 227 and the directions given in para 98

and 99 were merely reiteration of the principle of exhaustion of

other remedies. We are unable to accede to this contention.

After analyzing the constitutional provisions, the

Constitutional Bench of this Court pointed out that Article 323A

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

totally the jurisdiction of the High Court and Supreme Court

under Articles 226 and 227 and 32 of the Constitution were

unconstitutional. The constitutionality of the said provisions was

saved by the well known process of reading down the provisions.

This Court held that while the jurisdiction of the High Court

under Article 226/227, and that of the Supreme Court under

Article 32, could not be totally excluded, it was yet

constitutionally permissible for other Courts and Tribunals to

perform a supplementary role in discharging the powers

conferred on the High Court and the Supreme Court by Articles

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226/227 and 32 of the Constitution, respectively. Hence, it was

held that as long as Tribunals constituted perform a

supplementary role, without exclusion of the jurisdiction of High

Court Articles 226 and 227 and of the Supreme Court, 32 of the

Constitution, the validity of the legislation constituting such

Tribunals could not be doubted. It was in these circumstances

that a direction was given that the Tribunals would act as

authorities of the first instance, whose decisions could be

challenged before the Division Bench of the High Court in its

writ jurisdiction. Thus the Constitution Bench of this Court

upheld section 56 of the Administrative Tribunal Act, 1985 as

valid and constitutional, interpreted in the manner indicated in its

judgment. We are, therefore, unable to accept the contention of

the learned counsel for the respondent for we are of the view that

the matter is no longer res integra.

We may now turn to the first contention which was urged

before the High Court, which failed to impress the High Court.

The learned counsel for the respondents relied on a judgment of

this Court in Jamshed Hormusji Wadia vs. Board of Trustees,

Port of Mumbai and another (2004) 3 SCC 214 and urged that it

is open to the respondent to canvas that the finding of the single

Judge of the High Court on the issue as to the nature of the

tribunal was erroneous and should be reversed, though there was

no appeal or cross objection filed. We shall assume that the

respondents have such a right to canvas the correctness of the

finding of the single Judge of the High Court on this issue and

shall proceed to examine the contention on its merits.

It is contended that the Tribunal constituted under the

impugned Act is not a tribunal within the meaning of Article

323B (2)(d), 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 Article 323B 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 xxxxx

(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;"

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.

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 323B

could take away some of the jurisdiction of the High Courts.

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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 323B 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 31A. Article 31A itself defines the

expression 'estate' in clause (2). Both Article 31A and the

definition of 'estate' in clause (2) of Article 31A have received

judicial interpretation by Constitutional Benches of this Court

which have uniformally taken the view that the protection of

Article 31A 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 323B 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

323B(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.

The argument is unacceptable for three reasons. The first is

the fallacious assumption that in order to be a valid tribunal

constituted under Article 323B(1) and 323B(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 323B (2)(d) is only for the purpose of

enumeration. Instead of repeating the entire definition

contained in clause (2) of Article 31A in sub-clause(d) of 323B,

the framers of the Constitution merely indicated that the word

'estate' would have the same meaning as in Article 31A. The

reference to the definition of 'estate' in Article 31A made in

Article 323B(2)(d)serves no other purpose.

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 vs.

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 \026 we are merely giving, by

way of illustration, a few familiar proposals of

agrarian reform \026 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

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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 are found in relation

to the life of the agricultural community. The

village man, his welfare, is the target."

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.

Thirdly, the contention also proceeds on a misreading of

Article 323B (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".

We are, therefore, unable to accept the contention of the

learned counsel that in order to fall within the protection of

umbrella of Article 323B, 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 323B of the Constitution.

"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 Acts was very much a

tribunal within the meaning of Article 323B of the Constitution.

We, therefore, accept the reasoning of the learned single

Judge and hold that the learned single Judge was justified in

rejecting the contention that the tribunal constituted under the

impugned Act was not a tribunal within the meaning of Article

323B of the Constitution. There is no merit in the contention.

In the result, the appeal is allowed and the impugned

judgment of the High Court is set aside.

However, in the circumstances of the case, there shall be

no order as to costs.