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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.