Supreme Court of India
STATE OF WEST BENGALversusASHISH KUMAR ROY AND ORS.
- Citation
- 2004 INSC 693
- Decided
- 3 December 2004
- Disposal
- Appeal(s) allowed
- Bench
- SHIVARAJ V PATIL
Holding
The Supreme Court held that the High Court’s judgment was inconsistent with law declared in L. Chandra Kumar and that the West Bengal tribunal is a valid tribunal under Article 323B, whose provisions do not oust the High Court’s writ jurisdiction.
Summary
The West Bengal Bar Association challenged the West Bengal Land Reforms and Tenancy Tribunal Act, 1997, alleging that its provisions were ultra vires the Constitution because they ousted the High Court's jurisdiction under Articles 226 and 227. The Calcutta High Court struck down sections 6, 7 and 8 of the Act, holding them violative of the basic structure doctrine. On appeal, the Supreme Court held that the High Court had erred by treating the observations in L. Chandra Kumar v. Union of India as non‑binding, whereas they constitute law declared under Article 141. The Court clarified that tribunals created under Article 323B may perform a supplementary role without excluding the High Court’s writ jurisdiction, and that the West Bengal tribunal is a valid tribunal within the meaning of Article 323B(2)(d). Consequently, the challenged provisions were upheld and the High Court’s judgment was set aside.
Issues considered
- The constitutionality of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997, particularly sections 6, 7 and 8, in view of Articles 226, 227 and the basic structure doctrine
- Whether the observations in L. Chandra Kumar v. Union of India constitute law declared under Article 141 and are binding on the High Court
- Whether a tribunal constituted under Article 323B(2)(d) must be limited to agrarian‑reform matters or may adjudicate any land‑reform related disputes
- Whether the tribunal can validly exclude the High Court’s jurisdiction except for writ jurisdiction
Legislation cited
- Administrative Tribunal Act, 1985s. 56
- Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981
- Constitution of Indias. Article 136, s. Article 141, s. Article 226, s. Article 227, s. Article 31A, s. Article 32, s. Article 323A, s. Article 323B
- West Bengal Estates Acquisition Act, 1953
- West Bengal Land Reforms Act, 1955
- West Bengal Land Reforms and Tenancy Tribunal Act, 1997s. 11, s. 4, s. 5, s. 6, s. 7, s. 8, s. 9
Subjects
tribunalArticle 323BArticle 141High Court jurisdictionland reformsbasic structure doctrineconstitutional validityultra viressupplementary jurisdictionL. Chandra Kumaragrarian reform
Judgment
- STATE OF WEST BENGAL
v.
ASHISH KUMAR ROY AND ORS.
A
DECEMBER 3, 2004
B
[SHIVARAJ V. PATIL AND B.N. SRIKRISHNA, JJ.]
Constitution of India, 1950; Articles 31A, 323(A) & (B), Entry 18 to
List II of 7th Schedule/West Bengal Land Reforms and Tenancy Tribunal
Act, 1997; Ss. 5, 6, 7, 8, and 9 :
c
Constitution of Land Reforms Tribunal-Provisions conferring
jurisdiction, power and authority-Constitutionality of-Held: Since it is
permissible for the Tribunals/Courts to perform supplementary functions/
role without exclusion of the jurisdiction of the High Courts/Supreme Court
under Articles 2261227 or Article 32 of the Constitution, State Legislature D
competent to constitute such Tribunal-Legislature competent to make laws
with regard to Entry 18 in List II of 7th Schedule of the Constitution
including law connected with land reforms-A Tribunal could deal with
disputes arising under any law relating to not only law for agrarian reforms
but also with law relating to land reforms-It appropriately falls within
the ambit of Article 323B(2)(d) of the Constitution. E
Article 141-Law laid down by the Supreme Court-Held: It is not
open to High Court to express its views inconsistent with the law laid down
by the Apex Court.
F
Words and Phrases :
'Agrarian reforms '-Meaning of in the context of Article 31-A of the
Constitution of India.
The Government of West Bengal enacted the West Bengal Land G
Reforms and Tenancy Act. Respondent-Bar Association challenged
certain provisions of the Act as ultra vires the Constitution, and filed a
writ petition before the High Court. Single Judge of the High Court
struck down the provisions as ultra vires the Constitution. Hence the
present appeal filed by the State of West Bengal. H
665
666 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A It was contended by the appellant-State that the observations and
directions given by the Constitution Bench of the Supreme Court in the
case of L. Chandra Kumar were law declared within the meaning of
Article 141 of the Constitution and thus binding on the High Court; and
that the High Court could not give any views inconsistent with/contrary
B to law so laid down.
Respondent submitted that the Tribunal constituted under the
provisions of the Act is not a Tribunal within the meaning of Article
323(B) (2)(d) of the Constitution of India.
c Allowing the appeal, the Court
HELD : 1.1. The Single Judge of the High Court was not right in
disposing of the observations of the Constitution Bench in the case of
L. Chandra Kumar* by side-stepping them. The opinion pronounced by
-
D the Constitution Bench of this Court and the directions given clearly
amount to law declared within the meaning of Article 141 of the
Constitution of India. It was not open to the Single Judge of the High
Court to take any view inconsistent with or deviating from the law thus
laid down. The findings made and the directions given by the Single
E Judge of the High Court are inconsistent with the law laid down by this
Court, hence set aside, as the law bid down by this Court was binding
on the High Court. (674-B; 676-C-D]
L. Chandra Kumar v. Union of India & Ors., [1997] 3 SCC 261,
followed.
F
1.2. The Constitution Bench of this Court in the case of L. Chandra
Kumar pointed out that 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, 227 and 32 of the Constitution, were
G 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 23, could not be totally
excluded, it was yet constitutionally permissible for other Courts and·
H Tribunals to perform a supplementary role in discharging the powers
. ST ATE v. ASHISH KUMAR ROY
conferred on the High Court and the Supreme Court by articles 226/
227 and 32 of the Constitution, respectively. Hence, it was held that as
667
A
long as Tribunals constituted perform a supplementary role, without
exclusion of the jurisdiction of High Court under Articles 226 and 227
and of the Supreme Court under Article 32 of the Constitution, the
validity of the legislation constituting such Tribunals could not be B
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. [676-E-F-G-H; 677-A-B)
1.3. The contention that the Tribunal contemplated under Article C
323 B clause (1) read with clause (2)(d) of the Constitution 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 of the
Constitution or that the contention that the impugned Act is not immune
from challenge on the ground of violation of the Constitutional provisions D
is unacceptable. The assumption that in order to be a valid Tribunal
constituted under Article 323B(l) and 323B(2)(d) of the Constitution,
the Tribunal must necessarily deal with laws for agrarian reforms, is
fallacious. Since the reading of the expression 'estate' from clause (2).
of Article 31A into Article 323B(2)(d) is only for the purpose of
enumeration, the concept of 'agrarian reform' is not confined only to E
agriculture or its reform. 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. The contention also
proceeds on a misreading of Article 323B(2)(d) of the Constitution.
Under clause (1) the State Legislature is empowered to .make a law with F
regard to entry 18 in List II of the 7th Schedule. Sub-clause (d) of Article
323(B) of the Constitution is not confined to land reforms by acquisitions
of estates or extinguishment or modification of any such right for the
clause ends with the words "or in any other way", which are wide
enough to accommodate any other type of law which is intended for
"land reforms". Hence, it cannot be said that in order to fall within the G
protection of umbrella of Article 323B, the Tribunal must have been
constituted only with regard to disputes arising under anylaw 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. (678-H; 679-A-B-C, G-H; 680-A-B-C] H
668 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.
A State ofKera la & Anr. v: The Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd.
Etc., AIR (1973) SC 2734, relied on .
. 2. "Agrarian reforms" itself is a wide concept and there is no
. reason why the objects attemp~ed to be fulfilled by the specified Acts
would not fall within the ambit.of this compendious term. Looking at
B the preambles and the schemes of the five specified Acts, the reasoning
of the Single Judge of the High Court cannot faulted, since 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. Hence, Single Judge of the High Court was justified
c 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. [680-D-E]
CIVIL APPELLATE JURISDICTION Civil Appeal No. 4454of1999.
D From the Judgment and Order dated 16.4.99 of the Calcutta High Court
in W.P.No. 71 lO(W) of 1998.
K.K. Venugopal, Avijit Bhattacharjee and Atanu Saikia for the
Appellant.
E Jaideep Gupta, C. Mukund, Ashok Jain, Pankaj Jain and Deb Mallya
Banerjee for Bijoy Kumar Jain for the Respondents.
The Judgment of the Court was delivered by
SRIKRISHNA, J. : This appeal by special leave impu~ns a judgment
p 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 oflndia
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 323B
G 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
H Governor, notified and published the provisions of the said Act in the
STATE v. ASHISH KUMAR ROY [SRIKRISHNA, J.] 669
official gazette dated December 12, 1997. A
t
The respondents I to 4, who are advocates and members of the Bar
Association of Calcutta High Court, filed writ petition no. 711 O(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 B
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 C
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 D
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.
E
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 (l)(d) of the Constitution oflndia as it lacks F
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 oflndia,
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, G
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 H
670 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.
A and takes away the jurisdiction and powers of the High Court under Articles
226 and 227 of the Constitution oflndia and consequently violates the basic
structure of the Constitution.
The learned single Judge of the High Court negatived the first contention
B 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 coul.d be validly constituted under Article 323 B of the Constitution
oflndia. 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
C 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
D it independently, he concluded that the impugned provisions-of the said Act
were violative of the Constitution includi.ng 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
E 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
F
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
G 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:
H
STATE v. ASHISH KUMAR ROY [SRIKRISHNA, J.] 671
"Whereas it is expedient to provide for the setting up of a Land A
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 B
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."
Under chapter 2 a tribunal called the West Bengal Land Reforms and C
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 D
authority in relation to
(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; .E
(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 F
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 G
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 H
672 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A 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
B 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
C 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
D 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.
E
The Tribunal is also giv~n 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
F Court 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.
G 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
H Regulation) Act, 1981; or (iv) the West Bengal Acquisition of Homestead
STATE v. ASHISH KUMAR ROY [SRIKRISHNA, J.] 673
Land for Agricultural Labourers, Artisans and Fishermen Act, 1975; or (v) A
the West Bengal Land Holding Revenue Act, 1979.
Legal Contentions
We may conveniently club contentions 2 and 3 urged before us as to
B
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 c
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 D
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 ~fthe Constitution. The legislature is not competent E
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
F
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 oflegislation to oust the jurisdiction
under Articles 226 & 227 runs counter to the power of judicial G
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 H
674 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.
A 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 disposing
B of the observations in £.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:
(I) Whether the power conferred upon Parliament or the State
Legislatures, as the case may be, by 'sub-clause (d) of clause (2) of
c 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)
D 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
E 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 ~hanges required
F 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 oflndia
G 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
H opinion on this aspect. Though the vires of the provision was not
STATE v. ASHISH KUMAR ROY [SRIKRISHNA, J.] 675
in question in Dr. Mahabal Ram case 1 , we believe that the approach A
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 B
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 C
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.
D
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 E
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 F
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 G
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
1. [19941 2 sec 401. HI
676 SUPREME COURT REPORTS (2004) SUPP. 6 S.C.R.
A 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
B 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' with.in the meaning of Article 141
of the Constitution of India. It was not open to the learned single Judge of
C 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.
D
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 ac-cede to this contention.
E
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 exelude totally the jurisdiction of the High Court and
Supreme Court under Articles 226 and 227 and 32 of the Constitution were
p unconstitutional. The constitutionality of the said provisions was saved by
the well known process ofreading 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
G 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
under Articles 226 and 227 and of the Supreme Court, under Article 32 of
the Constitution, the validity of the legislation constituting such Tribunals
H could not be doubted. It was in these circ11mstances that a direction was
STATE v. ASHISH KUMAR ROY [SRIKRISHNA, J.] 677
given that the Tribunals would act as authorities of the first instance, whose A
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 B
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 v. Board of Trustees, Port of Mumbai and Another, [2004] 3 SCC C
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 D
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 E
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: F
"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. G
(2) The matters referred to in clause (I) are the following,
namely :-
xx xx xx xx xxxxx H
678 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A (d) land reforms by way of acquisition by the State of any estate
as defined in article 31 A 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;"
B 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 undS!r 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. Stimpat Kumar (supra), and
c 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.
In the instant case, the Tribunal has been· constituted under the West
D 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 3 lA. Article 31 A itself defines the expression
E 'estate' in clause (2). Both Article 3 lA and the definition of'estate' in clause
(2) of Article 3 lA have received judicial interpretation by Constitutional
Benches of this Court which have uniformally taken the view that the
protection of Article 3 lA is available only to laws which are intended to
carry out agrarian reforms. The predominant purpose of sub-clause ( d) of
F 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
G 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
H assumption that in order to be a valid tribunal constituted under Article
STATE v. ASHISH KUMAR ROY [SRIKRISHNA, J.] 679
323B(l) and 323B(2)(d), the tribunal must necessarily deal with laws for A
agrarian reforms. In our view, the reading of the expression 'estate' from
clause (2) of Article 31 A into Article 323B (2)(d) is only for the purpose
of enumeration. Instead of repeating the entire definition contained in clause
(2) of Article 31 A in sub-clause( d) of 323 B, the framers of the Constitution
1 merely indicated that the word 'estate' would have the same meaning as in B
Article 31 A. The reference to the definition of 'estate' in Article 3 lA 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 Kera/a and Another v. The Gwalior Rayon Silk Mfg C
(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 D
social function of the land and includes - we are merely giving, by
way of illustration, a few familiar proposals of agrarian reform-
creation of economic units of rural production, establishment of
adequate credit system, implementation of modern production
techniques, construction ofirrigation systems and adequate drainage,
making available fertilizers, fungicides, herbicides and other E
methods of intensifying and increasing agricultural production,
providing readily available means of c.ommunication 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 it so as to bring it conveniently F
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."
G
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 H
680 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A (2)(d). Under clause (l) 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" .
.B 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
C 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.
D
"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
E 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
F 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.
G
However, in the circumstances of the case, there shall be no order as
to costs.
S.K.S. Appeal allowed.
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