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TMI Blog2004 (12) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. 2. 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. 3. 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. 4. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the basic structure thereof and struck them down. 7. 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. 8. 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 323B(2)(d) of the Constitution of India. The Act 9. The object of the enactment is indicated in the preamble as under: Whereas it is exped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 13. 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. 14. 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Articles 226 and 227 cannot be ousted by enacting any legislation under Articles 323A 323B 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. 18. 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. 19. In our considered view, the learned Judge was not right in 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 Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch 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. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the High Court and the Supreme Court by Articles 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. 22. 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 v. Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 uniformly 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 challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to look to the substance of the act and not its mere outward form. 31. 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 323B 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 . 32. 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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