As per case facts, the petitioner filed an eviction suit in 1999, but the respondent later claimed to be a Thika Tenant based on a certificate issued by the Thika ...
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon’ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon’ble Mr. Justice Supratim Bhattacharya
WPLRT No.51 of 2026
TRIMPLEX INVESTMENTS LIMITED
-Versus-
THE STATE OF WEST BENGAL and Others
For the petitioner : Mr. Arindam Banerjee, Sr. Adv.,
Mr. Saptarshi Banerjee,
Mrs. Anisha Kochar, ... Advs.
For the respondents : Mr. Sk. Md. Galib, Sr. Govt. Adv.,
Ms. Priyamvada Singh, Adv.
Heard on : 30.03.2026, 31.03.2026
& 06.04.2026
Reserved on : 06.04.2026
Judgment on : 09.06.2026
Sabyasachi Bhattacharyya, J.:-
1. Although the present application has been couched as an application under
Article 226 of the Constitution of India arising out a decision passed by the
West Bengal Land Reforms and Tenancy Tribunal, being classified as
“WPLRT”, the same assails two orders passed by the Controller and Deputy
2
Controller, Kolkata Thika Tenancy, respectively on November 21, 2011 and
June 9, 2022.
2. The brief background of the case is that the petitioner filed an eviction suit
against the private respondent no.5 in the year 1999 under the West Bengal
Premises Tenancy Act, 1956. The defendant in the said suit (respondent no.
5 herein) was contesting the same.
3. On July 31, 2017, the defendant/respondent no.5 produced a certificate
issued by the Thika Controller dated September 22, 2016 whereby the said
respondent was declared a Thika Tenant in respect of the suit property. The
writ petitioner gave a representation to the Thika Controller on January 22,
2019, seeking recall of the certificate, upon which the Deputy Thika
Controller initiated Miscellaneous Case No.130 of 2020. The said case was
rejected on June 9, 2022, holding that the Thika Controller had already
declared the respondent as a Thika Tenant on November 22, 2011 and, as
such, the same could not be recalled.
4. Challenging the said order dated June 9, 2022, the writ petitioner filed OA
No.2472 of 2022 (LRTT) before the Tribunal.
5. Subsequently, OA No.3032 of 2023 (LRTT) was also filed by the petitioner
challenging the earlier order dated November 22, 2011, whereby the
Controller had declared the respondent no.5 to be a Thika Tenant.
6. Thereafter, the present challenge has been preferred, seeking quashing of
the Form-“A” Return filed by the respondent no.5 before the Thika Controller
as well as for setting aside the final order dated November 21, 2011 in R/F
No.70/121, as well as the final order dated June 9, 2022 , passed in
3
Miscellaneous Case No.130 of 2020 arising out of the same. Consequential
reliefs have also been claimed.
7. Learned senior counsel appearing for the petitioner argues that the order
dated November 21, 2011, is arbitrary and void since the same was passed
without jurisdiction. Apart from no hearing being given to the
landlord/owner of the premises, the procedure mandated under Section 5(3)
of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001
(for short “the Thika Tenancy Act”) was not followed. Moreover, the Thika
Controller stepped beyond his jurisdiction under Section 5(3) in declaring
the respondent no.5 as a Thika Tenant on return in Form -“A” despite the
admission of respondent no.5 that the structures constructed were pucca in
nature. It is argued that if a pucca structure is constructed without prior
permission of the Thika Controller for residential purposes under Section
10A of the Calcutta Thika Tenancy Act, 1949 or without such prior
permission, coupled with a sanctioned building plan, under the subsequent
Thika Tenancy Acts, it fundamentally disentitles any person from claiming it
to be a Thika Tenancy.
8. It is argued that after prosecuting the eviction suit from 1999 till 2017, the
respondent no.5 suddenly relied on the alleged Thika Tenancy certificate-in-
question, compelling the petitioner to move the Tribunal. In view of the
sheer abuse of the process of law by respondent no.5, the petitioner has
been compelled to take recourse to Article 226 of the Constitution of India
before a Division Bench of this Court notwithstanding the pendency of the
original applications before the Tribunal.
4
9. It is argued that the respondent no.5 cannot be permitted to approbate and
reprobate in the same breath, having all along admitted itself to be a
premises tenant in the eviction suit but all on a sudden claiming to be a
Thika Tenant, which stands are mutually exclusive.
10. That apart, it is argued that the declaration by the Controller by simply
approving portions of a previous note-sheet marked as „X‟, „Y‟ and „Z‟
respectively simpliciter was palpably de hors the law.
11. The petitioner contends that such return being ex facie void, the jurisdiction
of the Division Bench of this Court can be invoked. In support of such
proposition, learned senior counsel for the petitioner cites Shahi Enclaves
Private Limited v. State of West Bengal & Ors., reported at 2016 SCC OnLine
Cal 1204.
12. As held in State of U.P. v. Mohd. Nooh, reported at AIR 1958 SC 86, the
existence of any alternative remedy cannot be a bar to issuance of a writ of
Certiorari and/or Prohibition by the jurisdictional High Court.
13. It is argued that the purported declaration of the Thika Tenancy in the year
2011 is manifestly void and without jurisdiction. In support of such
contention, learned senior counsel cites the following judgments:
(i) Lakshmimoni Das and others v. State of West Bengal and other,
reported at 1987 SCC OnLine Cal 140;
(ii) Nemai Chandra Kumar v. Mani Square Ltd., reported at (2024) 17 SCC
743;
(iii) Mani Square Ltd. v. State of W.B., reported at 2014 SCC OnLine Cal
5448; and
5
(iv) An unreported judgment dated November 24, 2025 in WPLRT No.6 of
2014 [Dynamic Vyapar Private Limited v. M/s. Hindustan Petroleum
Corporation Ltd. and Others].
14. Learned senior counsel appearing for the petitioner next argues that where
the facts of the case are not disputed but only a question of law is required
to be answered, the writ court should entertain the challenge and not
relegate the citizens to alternative remedies provided under the governing
statutes, if any. In support of such argument, learned senior counsel cites
Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority
and others, reported at 2023 SCC OnLine SC 95.
15. It is argued that jurisdiction is a coat of many colours and a jurisdictional
error can occur when an authority tasked with adjudication fails to taken
into account a fundamentally relevant point or takes into account a
fundamentally extraneous point to arrive at a conclusion, the effect of which
is to render such decision a nullity, being de hors jurisdiction. Learned
senior counsel cites, in support of such proposition, Shri M.L. Sethi v. Shri
R.P. Sethi, reported at (1972) 2 SCC 427, where the Hon‟ble Supreme Court
quoted with approval passages from Anisminic Ltd. v. Foreign Compensation
Commission, reported at (1969) 2 AC 147.
16. Learned senior counsel next argues that the judgment of the Hon‟ble
Supreme Court in L. Chandra Kumar v. Union of India and others, reported
at (1997) 3 SCC 261, does not totally debar the present writ petition directly
6
before the Division Bench of this Court, as held in Shahi Enclaves Private
Limited (supra)
1
by a Division Bench of this Court.
17. Again, in Paragraph No.392 of Rojer Mathew v. South Indian Bank Ltd.,
reported at (2020) 6 SCC 1, cited by the State, the Hon‟ble Supreme Court
recognized that a direct approach to the High Court under Article 226 of the
Constitution of India is permissible when the Tribunal is not established or
is not functioning. In Rajendra Diwan v. Pradeep Kumar Ranibala, reported
at (2019) 20 SCC 143, also cited by the State, it was held that the High
Court can interfere under Article 226 in cases of patent error of law going to
the root, perversity, arbitrariness, unreasonableness, violation of principles
of natural justice, lack of jurisdiction and usurpation of power and such
power of the High Court cannot be abrogated by statutory enactment or
even by a constitution amendment. Thus, there is no water-tight bar to an
approach being made to the High Cou rt under Article 226 of the
Constitution of India.
18. It is next argued by the writ petitioner that the West Bengal Land Reforms
and Tenancy Tribunal Act, 1997 (hereinafter referred to as “the 1997 Act”)
does not curtail the power of the High Court under Ar ticle 226 of the
Constitution of India. Section 8 of the 1997 Act, it is argued, recognizes the
fact that the High Court can be approached under Article 226 in respect of
specified Acts within the meaning of Section 2(r) of the 1997 Act, which
approach shall, however, be made to a Division Bench of the High Court.
1
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
7
19. In T.K. Rangarajan v. Government of T.N. and others, reported at (2003) 6
SCC 581, it was held that the High Court may be approached directly as well
under Article 226 in exceptional cases.
20. Citing Hari Vishnu Kamath v. Syed Ahmad Ishaque and others , reported at
(1954) 2 SCC 881, it is contended by the writ petitioner that Certiorari will
be issued for correcting errors of jurisdiction as well as when the inferior
Court or Tribunal acts without jurisdiction or in excess to it or fails to
exercise it. Illegal acts in exercise of the jurisdiction of a Court or Tribunal
may also prompt a Certiorari to be issued, particularly where there is a
violation of the principles of natural justice.
21. Hence, it is argued that there is no absolute bar in invocation of Article 226
before a Division Bench of the High Court in a matter like the present one.
22. Learned Senior Government Advocate, appearing for the State, contends
that only an appeal under Clause 15 of the Letters Patent is amenable to
challenge before the Division Bench of a High Court. Learned Senior
Government Advocate cites in this regard Chapter-II, Rule 5(a) and Chapter-
VIII, Rule 2 (Notes) of the Appellate Side Rules of this Court. Further, writ
jurisdiction under Article 226 can be exercised by a Division Bench of the
High Court in case of a Public Interest Litigation as envisaged under Rule
57(a) of the Rules of the Calcutta High Court relating to applications under
Article 226 of the Constitution of India (Appendix-IV, Appellate Side Rules).
23. It is submitted by the State that the availability of alternative remedy per se
is not a bar to the invocation of Article 226 of the Constitution of India in
four exceptional cases, being:
8
(i) Where there is a violation of principles of natural justice;
(ii) Infringement of fundamental rights;
(iii) Vires of an Act is under challenge; and
(iv) The authority passes the order without jurisdiction.
24. In the present case, it is argued that even if it was to be assumed (without
admitting) that the order passed by the Thika Controller under Section 5(3)
of the Thika Tenancy Act was without jurisdiction, the forum to challenge
the same should have been a learned Single Judge of this Court taking up
applications under Article 226 of the Constitution of India.
25. It is next contended that tribunalisation in India has taken place as the
Courts of First Instance in respect of areas of law for which they were
constituted. Their decisions on merit are amenable to challenge before a
Division Bench of the High Court. However, in the present case, there is no
“decision on merit” by the Tribunal.
26. The Apex Court, in the Constitution Bench judgment of L. Chandra Kumar
(supra)
2
, has zealously guarded the existence, jurisdiction and power
exercisable by the Constitutional Tribunals formed under Articles 323A and
323B of the Constitution of India. The object is never to bypass and/or
short-circuit the power or jurisdiction of the said Tribunals.
27. Learned Senior Government Advocate also cites Rajendra Diwan (supra)
3
in
support of such contention.
2
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
3
Rajendra Diwan v. Pradeep Kumar Ranibala, reported at (2019) 20 SCC 143
9
28. A litigant, it is argued, can invoke the Constitutional Writ Jurisdiction of a
Single Bench of the High Court in respect of areas of law for which
Constitutional Tribunals have been constituted under Articles 323A and
323B only under two circumstances:
(i) Very very exceptional cases [T.K. Rangarajan (supra)
4
];
(ii) When the Tribunals are not established or functioning [Rojer Mathew
(supra)
5
].
29. Learned Senior Government Advocate next contends that the 1997 Act came
into force after the pronouncement of the judgment in L. Chandra Kumar
(supra)
6
. Hence, its Preamble echoes the proposition of the said judgment.
Section 2(r) enumerates the specified Acts. The Thika Tenancy Act is one of
such Acts.
30. Section 7 of the 1997 Act invested the Tribunal with the jurisdiction and
authority of a Single Bench of the High Court with effect from the date of its
appointment. In tune with Section 7, Section 8 of the 1997 Act also
excluded the jurisdiction of the High Court except that of a Division Bench
meant for hearing an appeal or application against any decision of the
Tribunal as contemplated under Section 11 of the said Act. Hence, the
power of issuance of a Writ in the nature of Certiorari and the like are vested
with the Tribunal akin to the power of a Single Bench of the High Court
exercising Writ Jurisdiction.
4
T.K. Rangarajan v. Government of T.N. and others , reported at (2003) 6 SCC 581
5
Rojer Mathew v. South Indian Bank Ltd., reported at (2020) 6 SCC 1
6
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
10
31. However, the jurisdiction of the Division Bench cannot be directly invoked in
respect of any matter for the adjudication of which Tribunals have been
constituted.
32. In respect of the areas of law covered by the respective Tribunals,
constituted under Articles 323A and 323B of the Constitution of India, a
Division Bench can certainly issue a Writ, in the nature of Certiorari or
otherwise, but there has to be a “decision” of the Constitutional Tribunal.
For such proposition, learned Senior Government Advocate cites Hari Vishnu
Kamath (supra)
7
.
33. It is argued that in Shahi Enclaves Private Limited (supra)
8
, the judgment of
the Division Bench arose out of a pending proceeding before a Thika
Controller where, as in the instant writ petition, the Controller had not
already concluded the proceeding under Section 5(3) of the Thika Tenancy
Act. Moreover, the Division Bench, in Shahi Enclaves Private Limited
(supra)
8
, took cursory note of the Constitution Bench judgment of the
Hon‟ble Supreme Court in L. Chandra Kumar (supra)
9
.
34. The other judgments cited by the writ petitioner are not dealt with by the
State since, as per the State, the writ petition itself is not maintainable
before this Court.
35. Heard the rival contentions of the parties.
7
Hari Vishnu Kamath v. Syed Ahmad Ishaque and others , reported at (1954) 2 SCC
881
8
Shahi Enclaves Private Limited v. State of West Bengal & Ors., reported at 2016
SCC OnLine Cal 1204
9
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
11
36. The issue of maintainability of the present writ petition hits at the root of the
matter and, as such, is taken up for adjudication as a preliminary issue
prior to entering into the merits of the matter.
37. L. Chandra Kumar (supra)
10
, delivered by a Seven-Judge Constitution Bench
of the Hon‟ble Supreme Court, is of seminal importance in the context. The
contents of the relevant paragraphs of the said judgment are set out below:
“1. The special leave petitions, civil appeals and writ petitions which
together constitute the present batch of matters before us owe their origin to
separate decisions of different High Courts and several provisions in
different enactments which have been made the subject of challenge.
Between them, they raise several distinct questions of law; they have,
however, been grouped together as all of them involve the consideration of
the following broad issues:
(1) Whether the power conferred upon Parliament or the Sta te
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?
10
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
12
***
90. We may first address the issue of exclusion of the power of judicial
review of the High Courts. We have already held that in respect of the power
of judicial review, the jurisdiction of the High Courts under Articles 226/227
cannot wholly be excluded. It has been contended before us that the
Tribunals should not be allowed to adjudicate upon matters where the vires
of legislations is questioned, and that they should restrict themselves to
handling matters where constitutional issues are not raised. We cannot
bring ourselves to agree to this proposition as that may result in splitting up
proceedings and may cause avoidable delay. If such a view were to be
adopted, it would be open for litigants to raise constitutional issues, many of
which may be quite frivolous, to directly approach the High Courts and thus
subvert the jurisdiction of the Tribunals. Moreover, even in these special
branches of law, some areas do involve the consideration of constitutional
questions on a regular basis; for instance, in service law matters, a large
majority of cases involve an interpretation of Articles 14, 15 and 16 of the
Constitution. To hold that the Tribunals have no power to handle matters
involving constitutional issues would not serve the purpose for which they
were constituted. On the other hand, to hold that all such decisions will be
subject to the jurisdiction of the High Courts under Articles 226/227 of the
Constitution before a 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 matter.
91. It has also been contended before us that even in dealing with cases
which are properly before the Tribunals, the manner in which justice is
dispensed by them leaves much to be desired. Moreover, the remedy
provided in the parent statutes, by way of an appeal by special leave under
Article 136 of the Constitution, is too costly and inaccessible for it to be real
13
and effective. Furthermore, the result of providing such a remedy is that the
docket of the Supreme Court is crowded with decisions of Tribunals that are
challenged on relatively trivial grounds and it is forced to perform the role of
a first appellate court. We have already emphasised the necessity for
ensuring that the High Courts are able to exercise judicial superintendence
over the decisions of the Tribunals under Article 227 of the Constitution.
In R.K. Jain case [(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC
464] , after taking note of these facts, it was suggested that the possibility of
an appeal from the Tribunal on questions of law to a Division Bench of a
High Court within whose territorial jurisdiction the Tribunal falls, be
pursued. It appears that no follow-up action has been taken pursuant to the
suggestion. Such a measure would have improved matters considerably.
Having regard to both the aforestated contentions, we hold that all decisions
of Tribunals, whether created pursuant to Article 323-A or Article 323-B of
the Constitution, will be subject to the High Court's writ jurisdiction under
Articles 226/227 of the Constitution, before a Division Bench of the High
Court within whose territorial jurisdiction the particular Tribunal falls.
92. We may add here that under the existing system, direct appeals have
been provided from the decisions of all Tribunals to the Supreme Court
under Article 136 of the Constitution. In view of our above-mentioned
observations, this situation will also stand modified. In the view that we
have taken, no appeal from the decision of a Tribunal will directly lie before
the Supreme Court under Article 136 of the Constitution; but instead, the
aggrieved party will be entitled to move the High Court under Articles
226/227 of the Constitution and from the decision of the Division Bench of
the High Court the aggrieved party could move this Court under Article 136
of the Constitution.
93. Before moving on to other aspects, we may summarise our conclusions
on the jurisdictional powers of these Tribunals. The Tribunals are competent
to hear matters where the vires of statutory provisions are questioned.
However, in discharging this duty, they cannot act as substitutes for the
High Courts and the Supreme Court which have, under our constitutional
14
set-up, been specifically entrusted with such an obligation. Their function in
this respect is only supplementary and all such decisions of the Tribunals
will be subject to scrutiny before a Division Bench of the respective High
Courts. The Tribunals will consequently also have the power to test the vires
of subordinate legislations and rules. However, this power of the Tribunals
will be subject to one important exception. The Tribunals shall not entertain
any question regarding the vires of their parent statutes following the settled
principle that a Tribunal which is a creature of an Act cannot declare that
very Act to be unconstitutional. In such cases alone, the High Court
concerned may be approached directly. All other decisions of these
Tribunals, rendered in cases that they are specifically empowered to
adjudicate upon by virtue of their parent statutes, will also be subject to
scrutiny before a Division Bench of their respective High Courts. We may
add that the Tribunals will, however, continue to act as the only courts of
first instance in respect of the areas of law for which they have been
constituted. By this, we mean that it will not be open for litigants to directly
approach the High Courts even in cases where they question the vires of
statutory legislations (except, as mentioned, where the legislation which
creates the particular Tribunal is challenged) by overlooking the jurisdiction
of the Tribunal concerned.
***
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
15
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.”
38. It is evident from the issues formulated in the very first paragraph of the
said report that the Hon‟ble Supreme Court was not confined to examining
the vires and scope of Section 28 of the Administrative Tribunals Act but
adjudicated upon the constitutionality and ambit of Tribunals constituted
both under Articles 323A and 323B of the Constitution of India in general.
Whereas Article 323A speaks exclusively about Administrative Tribunals,
Article 323B provides for Tribunals in respect of other matters stipulated
therein, including 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, ceiling on urban property, regulation
and control and tenancy issues including the rights, title and interest of
landlords and tenants as well as any matter incidental thereto.
16
39. Clause (3) of Article 323B provides that a law made under Clause (1) thereof
may provide for the establishment of a hierarchy of Tribunals, specify the
jurisdiction, powers and authority of the Tribunals, provide for the
procedure and exclude the jurisdiction of all courts, except that of the
Supreme Court under Article 136, as well as contain such supplemental,
incidental and consequential provisions as the appropriate Legislature may
deem necessary for the effective functioning and for the speedy disposal of
cases and the enforcement of the orders of such Tribunals.
40. Clause (4) of Article 323B provides that the provisions of the Article shall
have effect notwithstanding anything in any other provision of the
Constitution or in any other law for the time being in force.
41. Similar provisions find place in Article 323A as well.
42. Insofar as the present case is concerned, the provisions of the 1997 Act have
come up for consideration. The Tribunal under the said Act is formed
within the contemplation of Article 323B.
43. Apart from the issues enumerated in Paragraph No.1 of L. Chandra Kumar
(supra)
11
, from Paragraph No.99 of the said report as well, it is evident that
the sweep of the judgment also covers Article 323B and Tribunals formed
thereunder, thus extending much beyond the scope of the Administrative
Tribunals Act, which was enacted pursuant to Article 323A, as opposed to
Article 323B.
11
L. Chandra Kumar v. Union of India an d others, reported at (1997) 3 SCC 261
17
44. Certain important conclusions were arrived at by the Hon‟ble Supreme
Court in L. Chandra Kumar (supra)
12
, which are enumerated below:
(i) The Tribunals constituted under Articles 323A and 323B will continue
to act as the only Courts of First Instance in respect of areas of law for
which they have been constituted ;
(ii) The Tribunals constituted under both the said Articles shall be
competent to hear matters where vires of statutory provisions are
questioned, except the vires of their parent statutes, under which they
are formed;
(iii) It will not be open to litigants to directly approach the High Courts even
in cases where the question of vires of statutory legislations (except
the parent statute creating the Tribunals) is raised, by overlooking the
jurisdiction of the Tribunals;
(iv) The High Court can be approached directly when the vires of the
parent statute creating the Tribunals is under challenge (it is not
specified that such challenge will be before a Division Bench of a High
Court);
(v) All other decisions of the Tribunals under their parent statutes shall be
subject to scrutiny by the High Court, sitting in Division Bench.
(EMPHASIS SUPPLIED BY US)
45. In Paragraph No.90 of L. Chandra Kumar (supra)
13
, the Hon‟ble Supreme
Court held that the Tribunals have jurisdiction to take up Original
12
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
13
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
18
Applications in the respective areas of law for which they are created,
whereas their decisions would be subject to challenge under Articles
226/227 before a Division bench of the High Court. By way of justification,
the Hon‟ble Supreme Court observed that such hierarchy ensures that
frivolous claims are filtered out by the Tribunals and the High Courts would
have the benefit of reasoned decisions on merits by the Tribunals.
46. Again, in Paragraph No.91 of the judgm ent, it was reiterated that the
decisions of the Tribunals, created both under Articles 323A and 323B of
the Constitution, would be subject to challenge under Article 226/227
before a Division Bench of the High Court.
47. In Paragraph No.92, it was laid down that no appeal from a decision of a
Tribunal shall lie directly to the Supreme Court under Article 136 but shall
be maintainable before the concerned High Court under Articles 226/227,
sitting in Division Bench. A challenge under Article 136 of the Constitution
of India, it was held, would lie against the judgment of the Division Bench of
the High Court to the Supreme Court.
48. In Paragraph No.99 of L. Chandra Kumar (supra)
14
, the Hon‟ble Supreme
Court declared Article 323A(2)(d) and 323B(3)(d) to be ultra vires to the
extent that they exclude the jurisdiction of the High Courts under Articles
226/227 and the Supreme Court under Article 32 of the Constitution.
Conspicuously, such adumbration of law covers both Articles 323A and
323B, and is not confined only to Article 323A, which provides for
constitution of Administrative Tribunals. Only thereafter, in Paragraph
14
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
19
No.99, the Hon‟ble Supreme Court proceeded to hold Section 28 of the
Administrative Tribunals Act ultra vires to the above extent.
49. Thus, although the genesis of challenge in L. Chandra Kumar (supra)
15
was
in relation to Section 28 of the Administrative Tribunals Act, the more
fundamental question of constitutionality of all Tribunals constituted both
under Articles 323A and 323B of the Constitution of India were considered
and adjudicated upon by the Hon‟ble Supreme Court. The propositions of
law laid down therein are, thus, binding precedents, being the law declared
by the Hon‟ble Supreme Court under Article 141 of the Constitution.
50. The petitioner relies heavily on Shahi Enclaves Private Limited (supra)
16
,
where a Division Bench of this Court, while considering the propositions laid
down in L. Chandra Kumar (supra)
17
, observed nonetheless that the said
decision was rendered only in the context of Section 28 of the Administrative
Tribunals Act. In Paragraph No. 43 of Shahi Enclaves Private Limited
(supra)
18
, it was recorded by the Division Bench that a challenge had been
thrown against the order of the Thika Controller, whereas in Paragraph
Nos.133 and 134 thereof, the co-ordinate Bench observed that the writ
petition before the Division Bench was directed against an order of the
Tribunal allowing addition of parties and directing affidavits.
15
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
16
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
17
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
18
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
20
51. Certain portions of L. Chandra Kumar (supra)
19
were quoted in Paragraph
133 of Shahi Enclaves Private Limited (supra)
20
. However, in Paragraph 136
of Shahi Enclaves Private Limited (supra)
21
, the co-ordinate Bench held that
L. Chandra Kumar (supra)
22
was rendered only in relation to the
Administrative Tribunals Act, 1985 and, on such premise, in Paragraph No.
145 it was observed that the 1997 Act or the decision of L. Chandra Kumar
(supra)
23
do not affect the powers of the High Court under Article 226 to be
invoked, provided such power is exercised by a Division Bench. Again, in
Paragraph No. 152 of Shahi Enclaves Private Limited (supra)
24
, the co-
ordinate Bench held that the 1997 Act does not preclude the jurisdiction of
the Division Bench of this Court under Article 226/227.
52. With utmost respect, the said proposition is diametrically contrary to the
proposition laid down in L. Chandra Kumar (supra)
25
on the following
grounds:
53. The co-ordinate Bench in Shahi Enclaves Private Limited (supra)
26
overlooked
the specific proposition laid down in Paragraph No.93 of L. Chandra Kumar
(supra)
27
that the Tribunals constituted both under Articles 323A and 323B
would continue to act as the only Courts of First Instance in respect of the
19
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
20
Shahi Enclaves Private Limited v. State of West Bengal & Ors., reported at 2016
SCC OnLine Cal 1204
21
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
22
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
23
L. Chandra Kumar v. Union of India and others, reported at (1997) 3 SCC 261
24
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
25
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
26
Shahi Enclaves Private Limited v. State of West Bengal & Ors., reported at 2016
SCC OnLine Cal 1204
27
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
21
areas of law for which they have been constituted. Throughout the judgment
in L. Chandra Kumar (supra)
28
, the Hon‟ble Supreme Court considered that a
challenge before a Division Bench of the High Court shall only lie against a
decision taken by the Tribunal, as opposed to a direct first challenge against
order of the authorities constituted under the respective Acts from which
such challenge is preferred. In fact, the Hon‟ble Supreme Court explained
that the hierarchy contemplated therein, that is, the Tribunal at the first
instance, thereafter, a Division Bench of the High Court and from there
under Article 136 before the Supreme Court, was to ensure that frivolous
claims are filtered out by the Tribunals and the High Court would have the
benefit of the Tribunals‟ reasoned decisions on merits, upon which the
Supreme Court would have jurisdiction under Article 136 to scrutinize the
decision of the Division Bench of the High Court.
54. Article 323A(2)(d) as well as Article 323B(3)(d) were held to be
unconstitutional and ultra vires inasmuch as they excluded the jurisdiction
of the Division Bench of the High Court and the power of the Supreme Court
under Article 32. It was specifically enumerated that the challenge before
the Division Bench of the High Court shall lie only against a decision of the
Tribunal.
55. Such vital aspect, with utmost respect, was completely overlooked by the co-
ordinate Bench in Shahi Enclaves Private Limited (supra)
29
, which proceeded
28
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
29
Shahi Enclaves Private Limited v. State of West Bengal & Ors., reported at 2016
SCC OnLine Cal 1204
22
on the basis that L. Chandra Kumar (supra)
30
was rendered only in relation
to the Administrative Tribunals Act, 1985, losing sight of the issues
formulated in the very first paragraph of the said judgment and the tenor of
the judgment throughout, which took under its sweep of adjudication the
constitutionality of all Tribunals, formed both under Articles 323A and 323B
of the Constitution.
56. Apart from misconstruing the proposition of L. Chandra Kumar (supra)
31
,
Shahi Enclaves Private Limited (supra)
32
on the above aspect, the co-ordinate
Bench also (in our humble opinion, incorrectly) held that the 1997 Act does
not exclude the jurisdiction of the Division Bench under Article 226/227 to
entertain even a direct challenge against the order/inaction of first
authorities under the specified Acts, thereby acting as the Court of First
Instance. With respect, such a construction of the 1997 Act is alien to the
very grain of the said Act itself as well as the purpose for which the Act was
enacted.
57. It is to be noted that the judgment in L. Chandra Kumar (supra)
33
was
delivered on March 18, 1997 and immediately became a beacon with regard
to several aspects of the constitutionality o f the very concept of
Tribunalisation. The 1997 Act was enacted by the State Legislature of West
Bengal after March 18, 1997 and received the assent of the Governor only
on December 12, 1997. Thus, the Legislature had the benefit of the law laid
30
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
31
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
32
Shahi Enclaves Private Limited v. State of West Bengal & Ors., reported at 2016
SCC OnLine Cal 1204
33
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
23
down in L. Chandra Kumar (supra)
34
while enacting the 1997 Act. Hence, the
1997 Act has to be construed in the context and backdrop of the proposition
laid down in the said judgment as well as Article 323B of the Constitution of
India.
58. Sections 6, 7, 8 and 11 of the 1997 Act are germane in the context and are
set out below:
“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 notific ation 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;
(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.
7. Exercise by Tribunal of jurisdiction, power and authority exercisable by
court.— Save as otherwise expressly provided in this Act, 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 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 provisions of a specified Act.
8. Exclusion of jurisdiction of courts.—On and from the date from which
jurisdiction, power and authority become exercisable under this Act by the
34
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
24
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.
***
11. Appeal to lie to Division Bench of High Court.—No appeal or application
against any decision of the Tribunal in a proceeding shall lie to any court except
the Supreme Court and the Division Bench of the High Court exercising writ
jurisdiction under Articles 226 and 227 of the Constitution.”
59. The co-ordinate Bench in Shahi Enclaves Private Limited (supra)
35
took into
account Section 8 of the 1997 Act in isolation; however, without reference to
Sections 6, 7 and 11 thereof. The said four Sections, between themselves,
complement each other and form a tetrad.
60. Whereas Section 8 excludes the jurisdiction of the High Court under Articles
226 and 227 except as exercised by a Division Bench of such Court, Section
11 provides a road-map to the extent of such jurisdiction of the Division
Bench. The latter provision stipulates that no appeal or application against
any decision of the Tribunal shall lie to any court except the Supreme Court
and the Division Bench of the High Court exercising writ jurisdiction under
Articles 226 and 227 of the Constitution of India.
61. Hence, Section 8 of the 1997 Act is circumscribed by Section 11 thereof. It
would be an absurd proposition to hold that a Division Bench of the High
Court simultaneously exercises jurisdiction as the Court of First Instance as
35
Shahi Enclaves Private Limited v. State of West Bengal & Ors., reported at 2016
SCC OnLine Cal 1204
25
well as the Appellate Court, which would be the necessary fallout if the
proposition laid down in Shahi Enclaves Private Limited (supra)
36
is to be
taken to its logical conclusion.
62. Notably, Section 8 excludes the jurisdiction of the High Court in matters in
which jurisdiction, power and authority become exercisable under the 1997
Act by the Tribunal, except only where the High Court exercises writ
jurisdiction under Articles 226 and 227 of the Constitution by a Division
Bench. Thus, by necessary implication, the writ jurisdiction ordinarily
exercisable by a learned Single Judge of the High Court is excluded. To
understand the context of such exclusion, we are necessarily to look at
Section 11 of the 1997 Act, which is the source of power of the Division
Bench of the High Court in matters coming within the ambit of the said Act.
The said Section confers exclusive jurisdiction to the Supreme Court and the
Division Bench of the High Court under Articles 226 and 227 of the
Constitution against any decision of the Tribunal. Hence, the expression
“where the High Court exercises writ jurisdiction under Articles 226 and 227
of the Constitution by a Division Bench” in Section 8 of the 1997 Act quite
obviously refers to the jurisdiction conferred by Section 11 of the said Act,
which is restricted only to appeals and applications “against any decision of
the Tribunal”, and does not extend to original writ petitions filed directly
against the orders or inaction of the authorities under the specified Acts as
stipulated in the 1997 Act.
36
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
26
63. Such scheme of the Statute is further strengthened by the scope of exercise
of jurisdiction by the Tribunals, as enumerated in Sections 6 and 7 of the
1997 Act. Section 6, in no uncertain terms, confers jurisdiction on the
Tribunal constituted under the said Act in relation to “any order made by an
Authority under a specified Act” and even applications “complaining inaction
or culpable negligence of” such Authorities. Again, 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”
have been brought within the fold of the Tribunal‟s jurisdiction. Clause (e) of
Section 6 empowers the Tribunal to adjudicate on matters, proceedings,
cases and appeals which stand transferred from the High Court and other
Authorities to the Tribunal. The transferred matters from the High Court
would also include writ petitions pending before learned Single Judges of
that Court.
64. The aforementioned provisions, read in conjunction, clothe the Tribunal
with the same powers which were previously exercisable by a learned Single
Judge of the High Court. Section 7 of the 1997 Act vests the Tribunal with
the jurisdiction, power and authority exercisable 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”, thus
specifically excluding the writ jurisdiction previously exercised by a learned
Single Judge of the High Court. Powers of the Tribunal akin to issuance of
writs of Certiorari and Mandamus, exercisable otherwise by a Single Judge
of the High Court, are inbuilt in the said provisions.
27
65. As discussed earlier, the expression “writ jurisdiction under Articles 226 and
227 of the Constitution exercised by a Division Bench of the High Court”
clearly refers to the powers vested in the Division Bench by Section 11 of the
1997 Act itself, which is restricted to appeal and applications against
decisions of the Tribunal and not direct challenges against orders/inaction of
Authorities under the specified Acts, the latter species of challenges being
vested exclusively with the Tribunal under Section 6 of the said Act.
66. The hierarchy of fora, pre- and post-1997 Act, is depicted below (the
progression on the left representing the pre-Act position and that on the
right the post-Act scenario):
67. From the above graphic, it is evident that the Tribunal has now replaced the
learned Single Judge of the High Court (sitting in writ jurisdiction under
Article 226/227 of the Constitution) as the forum of first instance to
adjudicate upon direct challenges to any order/inaction of the Authorities
designated under the specified Acts under the 1997 Act. Interestingly, the
Authorities under
specified Acts
Single Judge of High
Court under Article
226/227
Tribunal
Division Bench of High Court
in Mandamus/Letters Patent
Appeal
Division Bench of High Court
(u/S.11, 1997 Act)
28
Division Bench of the High Court has been retained as the next superior
forum in hierarchy. The decision of a learned Single Judge of the High
Court, sitting in writ jurisdiction over orders/inaction of statutory
Authorities is otherwise amenable to a Mandamus/Letters Patent appeal
before the Division Bench of the High Court, whereas the challenge against
a decision of the Tribunal in respect of specified Acts now lies also before the
Division Bench of the High Court, either in appeal or otherwise, under
Section 11 of the 1997 Act (read with the specific provision of appeal, if any,
in the specified Act). It is relevant to note that even Section 12 of the Thika
Tenancy Act, which is a „specified Act‟ under the 1997 Act, provides for an
appeal against the order of an authority under the Thika Tenancy Act to the
Tribunal.
68. The scheme of the 1997 Act perfectly synchronizes with the hierarchy of
challenge enumerated in L. Chandra Kumar (supra)
37
, which was the clear
intention of the State Legislature as well, since the 1997 Act was enacted
soon after the said judgment and gives effect to it.
69. A contrary interpretation of the provisions of the 1997 Act, thus, would
create anarchy in hierarchy. If the proposition of Shahi Enclaves Private
Limited (supra)
38
is to be followed, there would be two immediate and
obvious anomalies:
(i) The Division Bench of the High Court would simultaneously
function as the court of first instance of challenge against an order
37
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
38
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
29
of the authorities under the specified Acts and also the court of
second instance, sitting in appeal over the decision of the Tribunal,
which acts as the first forum against orders of such authorities –
thus, acting in principle as the original as well as appellate forum;
(ii) Both parties would be deprived of one level of challenge if the
Division Bench acts as the first forum of challenge against the
order of authorities under the specified Act, since it would preclude
a further challenge against its order to itself, whereas if the
challenge to the authorities‟ order comes via the Tribunal route, a
further challenge would be available before the Division Bench of
the High Court – on a more fundamental premise, t his would
create gross inequality between litigants in whose cases the first
challenge is decided by the Division Bench (depriving them of a
second challenge, since it would have to be before the same
Division Bench) and where it is decided by the Tribunal (in which
case a further challenge would lie to the Division Bench.
70. Hence, the ratio laid down in the groundbreaking judgment of L. Chandra
Kumar (supra)
39
, read in conjunction with Sections 6, 7, 8 and 11 of the
1997 Act, necessarily lead to the sole conclusion that the Division Bench of
the High Court shall only exercise supervisory powers against the decisions
of the Tribunal and not usurp the powers of the Tribunal as the court of first
instance, as categorically laid down in L. Chandra Kumar (supra)
40
.
39
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
40
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
30
71. Thus, with deepest respect, we cannot but hold that Shahi Enclaves Private
Limited (supra)
41
did not lay down the correct proposition of law and is par
incuriam (being violative of the 1997 Act as well as the ratio laid down in L.
Chandra Kumar (supra)
42
) insofar as it held that the Division Bench of the
High Court exercises original jurisdiction under Articles 226/227 of the
Constitution over orders passed by authorities under the concerned statutes
over which the Tribunals constituted under Articles 323A and 323B of the
Constitution wield jurisdiction.
72. The petitioner in the instant case relies on Whirlpool Corporation v. Registrar
of Trade Marks, Mumbai and others, reported at (1998) 8 SCC 1, where the
Hon‟ble Supreme Court held that the High Court , under Article 226, has
plenary power and the discretion to entertain or not having regard to the
facts of the case. Such reliance, however, is misplaced since it was reiterated
in the selfsame judgment that such jurisdiction is normally not exercised.
Certain exceptions to non-interference were carved out, where the issue
relates to enforcement of fundamental rights, violation principles of natural
justice, the order/proceeding is wholly without jurisdiction and the vires of
an Act is under challenge. However, the said general proposition cannot be
applied in the present context, in view of the specific propositions laid down
in L. Chandra Kumar (supra)
43
as well as in the context of the 1997 Act itself.
41
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
42
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
43
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
31
73. In Mohd. Nooh (supra)
44
, also cited by the petitioner, the Hon‟ble Supreme
Court merely laid down that Article 226 is to be interpreted broadly to
interfere even in cases where part of the process started before the
Constitution was enacted. The said judgment was rendered in a completely
different context, during the formative years of Constitutional Jurisprudence
of India, primarily dealing the applicability of judicial review under Article
226 in situations where the cause of action commenced in the pre -
Constitution era. Thus, the same cannot be a valid precedent for the issue
at hand in the present case.
74. The judgment in Godrej Sara Lee Ltd. (supra)
45
, also relied on by the
petitioner, merely sets out the general proposition that where a controversy
is purely legal and does not involve any disputed question of fact, the High
Court should decide the writ petition concerned.
75. None of the above general propositions are disputed. However, those are, as
mentioned above, “general” and do not apply to the present context of the
powers of the Division Bench of the High Court as charted out in L. Chandra
Kumar (supra)
46
as well as the 1997 Act.
76. The respondents, on the other hand, cite Hari Vishnu Kamath (supra)
47
,
where it was held by the Hon‟ble Supreme Court that the decision of an
Election Tribunal is amenable to challenge under Articles 226 and 227 of
the Constitution of India before the High Courts. It was further observed
44
State of U.P. v. Mohd. Nooh, reported at AIR 1958 SC 86
45
Godrej Sara Lee Ltd. v. Excise and Taxation Officer -cum-Assessing Authority and
others, reported at 2023 SCC OnLine SC 95
46
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
47
Hari Vishnu Kamath v. Syed Ahmad Ishaque and others , reported at (1954) 2 SCC
881
32
that whereas Certiorari could be issued under Article 226 to annul the
decision of the Tribunal, under Article 227, apart from Certiorari, the High
Court may issue further directions in the matter. Such proposition was
rendered in the context of Article 329(b) of the Constitution of India, which
was held to impose restriction only to initiation of a proceeding before the
Election Tribunal and not to a subsequent challenge against the order of the
Election Tribunal under Article 226/227. The context of the said judgment,
however, is not relevant in the present backdrop.
77. The respondent also relies on Rojer Mathew (supra)
48
, where it was held that
Article 226 could be invoked by the High Court if a Bench of particular
Tribunal in a State or Union Territory is not established or functioning. In
the case at hand, however, there is no such issue. Thus, such proposition
is also not germane in the case at hand.
78. In T.K. Rangarajan (supra)
49
, the Hon‟ble Supreme Court reiterated that L.
Chandra Kumar (supra)
50
is binding on it, having been rendered by a Larger
Bench, but went on to hold that Article 226 can be invoked by the High
Court in “very very exceptional circumstances”.
79. For context, we are to look at the facts of the said case. The Tamil Nadu
Government had, in an “unprecedented action” (an expression used by the
Hon‟ble Supreme Court itself), terminated the services of all employees who
resorted to strike for their demands in one sweep. The said fact was
48
Rojer Mathew v. South Indian Bank Ltd. , reported at (2020) 6 SCC 1
49
T.K. Rangarajan v. Government of T.N. and others , reported at (2003) 6 SCC 581
50
L. Chandra Kumar v. Union of India and others, reported at (1997) 3 SCC 261
33
recorded in Paragraph No.2 of T.K. Rangarajan (supra)
51
. In Paragraph No.9
thereof, it was observed that at that juncture, the Tamil Nadu
Administrative Tribunal, was manned by only one man. In Paragraph No.10,
it was taken into consideration that in such circumstances, the Tribunal
would not be in a position to render justice to the cause if “thousands of
employees are directed to approach the Administrative Tribunal”.
80. In the present case, however, no such exceptional circumstance has made
out at all.
81. The respondent also relies on Rajendra Diwan (supra)
52
, which is apt in the
context of the present case. In Paragraph Nos.85 to 87 of the said
judgment, the Hon‟ble Supreme Court reiterated categor ically that the
proposition laid down in L. Chandra Kumar (supra)
53
cannot be considered to
enlarge the jurisdiction of High Courts under Article 226/227 to enable it to
exercise appellate powers, since Article 227 is not an “appeal in disguise”
but is sparingly used, where patent errors of law going to the root of the
decision, perversity, arbitrariness and/or unreasonableness, violation of
principles of natural justice, lack of jurisdiction and usurpation of powers
are found.
82. In the present case, the invocation of the powers of the Division Bench of
this Court is intended to be an appeal without any pretence, not even being
“in disguise” as held in Rajendra Diwan (supra)
54
. We say so since Section
51
T.K. Rangarajan v. Government of T.N. and others , reported at (2003) 6 SCC 581
52
Rajendra Diwan v. Pradeep Kumar Ranibala, reported at (2019) 20 SCC 143
53
L. Chandra Kumar v. Union of India and others, reported at (1997) 3 SCC 261
54
Rajendra Diwan v. Pradeep Kumar Ranibala, reported at (2019) 20 SCC 143
34
12(1) of the Thika Tenancy Act categorically provides tha t any person
aggrieved by an order of a Controller, may prefer an appeal in writing before
the Land Reforms and Tenancy Tribunal established under the 1997 Act.
83. Thus, under the concerned statute, an appeal is provided for specifically to
the Tribunal, which is in complete consonance with the proposition laid
down in L. Chandra Kumar (supra)
55
that the Tribunal shall act as the Court
of First Instance against any action or decision of a statutory authority
falling within the ambit of the Tribunal. Hence, in the event the Division
Bench of this Court exercises its original power under Article 226/227, it
will be in stark contravention of the proposition laid down by the
Constitution Bench of the Hon‟ble Supreme Court in L. Chandra Kumar
(supra)
56
as well as in the teeth of Section 12 of the Thika Tenancy Act, read
in conjunction with Section 11 of the 1997 Act.
84. Hence, this is not merely a matter of this Court exercising a self-imposed
restriction to abstain from invoking Article 226/227 of the Constitution
whereas it otherwise has the power to so invoke, but a case where the
exercise of such jurisdiction by the Division Bench of the High Court,
thereby usurping the power of the Tribunal as the Court of First Instance, is
specifically debarred by the Constitution Bench judgment of L. Chandra
Kumar (supra)
57
, read in conjunction with the provisions of the 1997 Act.
55
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
56
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
57
L. Chandra Kumar v. Union of India and others , reported at (1997) 3 SCC 261
35
85. Thus, we conclude that the present Tribunal Application under Article 226
of the Constitution of India is not maintainable before this Court in the eye
of law.
86. Furthermore, the writ petitioner in the instant case has already preferred
challenges against the two orders/actions of the Thika Controller, which are
impugned herein, before the Tribunal within the contemplation of Section 12
of the 1997 Act, prior to approaching this Court against the self-same orders
of the Thika Controller. Such challenges are still pending before the
jurisdictional Tribunal. One of such challenges is accompanied by a
condonation application, since it has been filed much beyond the limitation
period of 30 days as enumerated in Section 12(1) of the Thika Tenancy Act.
It would be a travesty of justice if the petitioner is permitted to go on
shopping forums, in the process also seeking to bypass the statutory
limitation period for preferring an appeal before the Tribunal at least in one
of the challenges before the Tribunal.
87. Thus, the present writ petition is fit to be dismissed on such grounds, as
enumerated in the immediately foregoing paragraph, as well, irrespective of
the issue of non-maintainability of the same in law before this Court.
88. In view of the above findings, we deem it unnecessary and futile to enquire
into and adjudicate upon the other issues urged in the present application
on merits, since the present application is being turned down at the
threshold as not maintainable. Also, such adjudication may touch upon the
merits of the case prematurely and adversely affect either of the parties in
the pending Original Applications before the concerned Tribunal.
36
89. Accordingly, WPLRT No.51 of 2026 is dismissed as not maintainable.
90. In view of the mala fide attempt on the part of the petitioner to forum shop
by preferring the instant challenge against the self-same orders of the Thika
Tenancy Controller against which prior challenges are already pending at its
behest before the designated Tribunal, particularly to by-pass the bar of
limitation in one of those pending matters, as well due to the consequent
harassment caused to the respondents in being compelled to contest before
different fora, we impose costs on the petitioner to the tune of Rs.20,000/-,
payable collectively to the State-respondent nos.1 to 4, to be deposited in
the account of any Public Scheme for the marginalised sections of society
run by the State of West Bengal, as well as further costs of Rs.20,000/-
payable by the petitioners to the private respondent no.5. Both components
of costs shall be payable by the petitioner within a fortnight from date.
91. We hasten to clarify that nothing in the above judgment shall preclude the
writ petitioner from canvassing all issues on merits before the Tribunal in
the pending Original Applications filed by the petitioner before the West
Bengal Land & Land Reforms Tribunal , subject, of course, to the delay in
filing one of those being condoned, if at all.
92. Since we have, with utmost respect, expressed our reservations about and
differed with the view expressed by a co-ordinate Bench in Shahi Enclaves
Private Limited (supra)
58
, we hereby refer the following questions to be
58
Shahi Enclaves Private Limited v. State of West Bengal & Ors. , reported at 2016
SCC OnLine Cal 1204
37
answered by a Larger Bench, to be constituted by the Hon‟ble the Chief
Justice:
(i) Whether a writ petition under Article 226/227 of the Constitution
of India is maintainable before a Division Bench of the High Court
directly against an order/inaction of an Authority under any of the
specified Acts stipulated in the West Bengal Land Reforms and
Tenancy Tribunal Act, 1997, without first exhausting the remedy of
appeal available under the concerned specified Act and/or under
Section 11 of the 1997 Act.
(ii) If the answer to the first question is in the negative, whether the
Division Bench judgment in Shahi Enclaves Private Limited v. State
of West Bengal & Ors., reported at 2016 SCC OnLine Cal 1204 is par
incuriam to such extent.
93. Urgent certified copies of this judgment, if applied for, be supplied to the
parties upon compliance of all formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Supratim Bhattacharya, J.)
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