Kalyan Jyoti Sengupta, J.@mdashIn this petition the petitioner being the learned member of the Bar Association (the respondent No. 3) has challenged the vires of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997, (hereinafter referred to as the said Act.)
2. In the petition it has been alleged amongst others that they being the regular practitioners of this court are seriously affected as they are having substantial practice in litigations of land laws in the event the said Act comes in operation.
3. In the petition the sum and substance of the challenge as against the Act are given hereunder.
(i) It is not a Tribunal within the meaning of the provision of Article 323B(1) clause (d) as it lacks all the attributes of this Article.
(ii) The jurisdiction, power and authority of the Tribunal as mentioned in sections 6, 7, & 8 of the Act are ultra vires Constitution of India as it intends to take away the power of judicial review of the High Court under Articles 226 & 227 of the Constitution of India, as a court of first instance.
(iii) The provision of transfer of all the pending matters, proceedings, cases and appeals in this Hon''ble Court u/s 9 of the said Act also ultra vires Constitution as it intends to take away jurisdiction and power of this court under Articles 226 & 227 of the Constitution of India, consequently it hits basic structure of the Constitution.
4. Mr. Samaraditya Pal, learned senior Advocate, appearing for the writ petitioners, has amplified in his submission the aforesaid points in the manner as follows :-
A. It is not a tribunal under Article 232B of the Constitution of India.
He urges the jurisdiction of the tribunal under Article 323B(1) must be confined to matters specified in clause (2) of that Article.
5. In order to qualify to be a tribunal under Article 232B(2) (d), it must have jurisdiction in respect of "land reforms by way of acquisition by the State of any estate as defined in Article 31A of any rights therein or the extinguishment or modification of any such right or by way of ceiling on agricultural land or in any other way."
6. He argues, "Land Reforms", in its normal and ordinary significance in the Indian context means restructuring of the land tenure system in respect of agricultural land. The most important feature of land reform is agrarian reform. The long title of West Bengal Land Reforms Act, 1955 as originally enacted suggests the definition of land reforms is nothing but agrarian reforms.
7. Mr. Pal has laid emphasis on word ''estate'' which is the governing and/or tilting factor of sub-clause (d) of clause (2) of Article 323B. He further submits that the word ''estate'' as defined in Article 31A of Constitution of India overlaps the words land reforms. Therefore, the meaning of the word ''estate'' as defined in Article 31A is the only criteria to understand and comprehend the meaning of land reforms mentioned in the aforesaid sub-clause (d). He argues, the word ''estate'' as defined in Article 31A of the Constitution of India confines to agricultural land since a law under Article 31A (1) (a) must relate to agrarian reform. In support of his submission he relies on and cites two decisions of the Supreme Court-one is reported in
8. It would appear from the definition of the word ''estate'' in clause(2) of Article 31A that the expression of which has a meaning in "the existing law relating to land tenures" it will have the same meaning. In support of the aforesaid submission he relies on a decision of the Supreme Court reported in
9. The point of time for locating the existing law is 26th January, 1950. He has drawn reference in support of his above submission to a decision of the Supreme Court reported in
10. So, the word " land reform" used in Article 323B(2) (d) has got restricted meaning and the same cannot be stretched beyond the agrarian reform. He relies on and cites two decisions of the Supreme Court-one is reported in
11. He submits the definition of the word ''estate'' mentioned in section 2(h) of the said Act completely deviates from the definition of the word ''estate'' as defined in Article 31A(2) of the Constitution. Similarly, the definition of "Land Reform" mentioned in section 2(1) of the said Act is at variance with the meaning of the expression in Article 323B(2)(d) of the Constitution.
12. He argues that so far as the specified Acts mentioned in the Act are concerned the scope and contents of the same are devoid of any attributes of the definition of the estate qua land reforms as required under Article 323B(2)(d) of the Constitution. This would be apparent from the definition of the land mentioned in section 2(7) of the West Bengal Land Reforms Act, 1955. The definition therein would explicitly be clear that the same does not confine to matter of Land Reforms by acquisition of any-''estate'' as defined in Article 31A(2). Similarly, another specified Act, the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 has no nexus with any ''land reform'' or any ''estate'' as defined in Article 31A(2). The other two specified Acts mentioned in the aforesaid Act, viz., the West Bengal Acquisition of Homestead for Agricultural Labourers etc. Act, 1975 and the West Bengal Land Holding Revenue Act, 1979 have nothing to do worth the agricultural land so also agrarian reform.
13. He argues, the said tribunal at the highest can be termed as an ordinary tribunal constituted by the State legislature in exercise of its legislative powers under Article 245 read with Article 246(3) read with Entry 18 of List-II of the 7th Schedule. Since, according to him, the aforesaid tribunal as intended to be set up by the aforesaid Act cannot be said to have been constituted for the reasons and facts and circumstances as above, under the provisions of Article 323B the ratio and/or decision rendered in
14. B. Mr. Pal submits in his alternative argument even if it is assumed that the said tribunal is validly formed under Article 323B still then the decision rendered in L. Chandrakumar''s case prohibiting litigants to approach High Court under Article 226/227 as court of first instance is not ''law declared'' within Article 141 of the Constitution. He has amplified this portion of submission in the manner as follows:-
The Supreme Court is a creature of the Constitution.
A. Any declaration of law under Article 141 of the Constitution must be consistent with the provisions of the Constitution and cannot transgress, modify, alter etc. any provision of the Constitution. So the direction given in paragraph 92 at page 308 (SCC) of the said decision that Article 136 will stand modified and no appeal from the decision of a tribunal will directly lie before the Supreme Court under the Article, if construed as law declared, will directly violate Article 136.
B. Similarly, the direction in paragraph 93 at page 309(SCC) that it will not be open for the litigants to directly approach the High Court will be violative of Article 226 since that Article confers a constitutional right to move the High Court for appropriate writs/directions against any authority and for any purpose. Since it is not ''law declared'' it will not have any binding force. These directions would be considered as nothing more than a reiteration of the principle that ordinarily the Supreme Court under Article 136 and the High Courts under Article 226 require the litigants to exhaust the other available remedies. In support of his submission that these directions are not to be read as statute she relies on two decisions of the Supreme Court reported in
C. Mr. Pal argues on the provision of section 9 regarding transfer of pending cases in High Court is wholly discriminatory against the litigants who have their cases pending in the High Courts as the litigants whose cases are pending before the sub-ordinate courts are not to be transferred by the aforesaid section. This singling out of the High Court cases offends straightaway Article 14 of the Constitution of India besides section 9 of the said Act affects the writ jurisdiction of the High Court under Articles 226 & 227, so it is unconstitutional.
D. He further argues that the scope and purport for setting up of the said Act is to take away the jurisdiction of this Civil Courts without having any appropriate replacement as the tribunal only will be acting as reviewing bodies. This tribunal would be functioning as reviewing bodies would be deduced from the principle decided in the cases by the Supreme Court and reported in
The removal of the Civil Court in the justice delivery system of the State with regard to land matters is also arbitrary and unreasonable, violative of Article 14 of the Constitution of India.
E. His argument is also that the provisions mentioned in section 6 and 10(3) are totally inconsistent with each other and makes the 1997 Act unworkable violating Article 14 of the Constitution.
F. His further argument is that the provision of section 23 is patently unconstitutional as it purports to delegate adjudicatory functions on any officer of the State Government and allows ex-parte collection of materials to be treated as evidence.
15. Mr. Soumendra Chandra Bose, the learned senior Advocate, appearing for Bar Association High Court, Calcutta besides adopting the arguments of Mr. Pal has supplemented in support of Challenge that the provision of section 9 of the Tribunal Act is discriminatory and the same is also unconstitutional because it purports to oust jurisdiction of the High Court exercising power of Article 226/227 of the Constitution by a learned single Judge. The State legislature has no legislative List for ousting the jurisdiction of the single Judge of the High Court exercising power under Article 226/227 of the Constitution of India.
16. He also argues that right to sue or prefer Appeals or Revision are substantive rights and are creature of statutes and to that extent are also a vested right. Such rights of the Court or Tribunals not having been interfered with by the Land Tribunal Act, courts and other authorities continue to proceed with those pending cases notwithstanding the creation of Tribunal. Unless the provisions of the statutes so express, the pending cases are not affected by a new law. He relies on : (i) Craies on Statute Law, 7th Edition pages 399, 400 & (ii) Justice G. P. Singh "Interpretation of Statute" 6th Edition 1996 page 347 - first paragraph.
17. He submits that by section 9, only proceedings pending in the High Court under Articles 226 & 227 before a single Bench are transferred to the Tribunal but no such transfer of any other proceeding in relation to the specified Act pending before any other authorities or courts, is made. On the principles relied on hereinabove those proceedings remain to be adjudicated as before. He also argues there is no rational nexus for making such discrimination otherwise the provisions of Article 14 are infringed.
18. Mr. Bose further argues that the provision of section 9 is violative of the basic structure of the Constitution and in List - II of the 7th Schedule there is no entry whereby the State Legislature can oust the jurisdiction of the High Court under Articles 226 & 227 of the Constitution; it has been consistently held by the judicial decisions that even where the decision is said to be final, such decision is subject to the decision of the High Court under Articles 226 & 227 of the Constitution.
19. In case of
20. Mr. Bose argues that under the formation, power and authority as providing Articles 214 to 227 are part of the basic structure of the Constitution and those powers cannot be interfered with by any authority. Mr. Bose further argues that the decision of L. Chandrakumar''s case so far as it relates to ouster of initial jurisdiction of the High Court under Articles 226 & 227 are nothing but a direction in nature and the same cannot be a declared law under Article 141 of the Constitution of India so as to incorporate in Entry in the legislative List-II of the 7th Schedule so as to enable State legislature to exclude the jurisdiction of single Judge of the High Court in exercising power under Articles 226 & 227 of the Constitution. He argues that it is not everything said by a Judge when giving judgment that constitute precedent "Rupert Cross v. President in English Law, First Edition, page 34.
21. Mr. Balai Chandra Roy, the learned senior Advocate, appearing on behalf of the State being the respondent No. 2 herein submits at the very outset in answer to the point that the Act cannot be claimed to have been enacted in accordance with the provisions of Article 323B of the Constitution of India, that the West Bengal Estates Acquisition Act, 1953 being one of the specified Acts defined in section 2(r) of the impugned Act is admittedly undisputed and unchallenged. So, he submits the other specified Acts as defined in the aforesaid section are required to be explained as being the laws relating to land reform as defined in Article 323B(2) (d).
22. While explaining the interpretation and connotation of the word ''estate'' in clause (a) of sub-Article (2) of Article 31A of the Constitution of India he submits that the word ''estate'' not only means what are mentioned in clause (a) but also includes all those other categories of land mentioned in sub-clauses (i), (ii), & (iii) of clause (a). The definition of the word cannot be given a restrictive meaning. He has relied on a decision of the Supreme Court on this point, reported in AIR 1988 SCC 782 (para 65). He submits even one is to go by the argument made by Mr. Pal the definition of the word ''estate'' is the same definition mentioned in sub-section (4) of section (3) of the Bengal Tenancy Act, 1885 then the word estate has got exhaustive meaning opposite to restricted meaning.
23. Mr. Roy argues, hence land reforms by way of acquisition by the State of any holding of a raiyat or under - raiyat or of any right in such holding or extinguishment or modification of any such right of a raiyat or under-raiyat amount to acquisition, extinguishment or modification of any such right in an estate.
24. While distinguishing the judgment delivered in
25. Mr. Roy further argues the expression ''estate'' appearing in Article 31A(2) (a) of the Constitution comprehends not only lands held by Zamindars but also lands held by patnidar, darpatnidar, sepatnidar as well as lands held by raiyats and under-raiyats. The expression ''estate'' has been given an inclusive definition. In sub clauses (ii) of clause (a) of sub-Article (2) of Article 31A of the Constitution any land held under raiyatwari settlement is an ''estate''. So he submits that each and every specified Acts, excluding the undisputed Act as aforesaid, deals with such kinds of land that must be categorised as estate or part of an estate within the meaning of Article 31A(2)(a) of the Constitution. It is thus apparent that even if the definition of estate had not been expanded by including sub-clauses (i), (ii), & (iii) the holding of a raiyat or under-raiyat as also land holding by a patnidar, darpatnidar or sepatnidar would be regarded as an estate and rights in their land holdings would be such rights in an estate.
26. Mr. Roy further argues in giving answer to the argument of Mr. Pal that specified Acts do not relate to agrarian reform and as such beyond the scope of Article 323B(2)(d) of the Constitution. He submits the dominant provision of clause (d) of Article 323B of the Constitution is Land Reforms to be achieved by-(i) acquisition by the State of any estate as defined in Article 31A, or (ii) any rights therein, or (iii) the extinguishment or modification of any such right, or (vi) by way of ceiling of agricultural land, or (v) in any other way. He argues that the language of clause (d) is not ambiguous. the provision plainly intends to convey that it relates to land reforms to be achieved by one or other modes indicated above. He argues acquisition of estate or rights in an estate is one of such modes. The other modes being the second one is extinguishment of right in an estate and the third is modification of any such right in an estate. He submits that land reforms may also be done by fixing ceiling area of agricultural land. If laws are made providing for land reforms "in any other way" then also such law falls within clause (d) 323B(2) of the Constitution. He further argues that extinguishment or modification of rights in an estate need not be by way of acquisition by the State. In support of this he relies on a Supreme Court decision rendered in the case of
27. Mr. Roy further argues the expression land reforms mentioned in clause (d) of sub-Article (2) of that Article of 323B of the Constitution of India cannot be equated with agrarian reform. The aforesaid words land reforms are not confined to legislation for agrarian reforms. This has been held, according to Mr. Roy by a Supreme Court decision in support case of
28. In answer to the argument of Mr. Pal that the real connotation and meaning of the word ''estate'' mentioned in Article 323B(2) (d) relates to agrarian reform only, Mr. Roy submits the agrarian reform does not necessarily mean for agricultural purpose. He submits that the concept of agrarian reform is a complex and dynamic one promoting wider interest than conventional reorganization of the land system or distribution of land. He argues referring to a decision of Supreme Court reported in
29. Mr. Roy argues having applied the aforesaid test it would be crystal clear that all the disputed specified Acts are relating to land reforms and within the expression as mentioned in the aforesaid Article 323B(2)(d). Mr. Roy submits that the decision in L. Chandrakumar''s case in paragraphs 38 & 39 clearly indicate that what were the issues that the Supreme Court had in mind. He argues that the aforesaid decision is a binding precedent and declared law under Article 141. So this impugned Act has been enacted as far as the ouster of the jurisdiction of the High Court as a court of first instance under Articles 226 & 227 in the line and in compliance of the Supreme Court decision of L. Chandrakumar''s case. Therefore, the said Act is constitutionally valid and the challenge which has been thrown by the petitioners are wholly unacceptable this Court would not accept the same.
30. Mr. Dasgupta, appearing for the learned Advocate General, adopted the submission of Mr. Roy.
31. I have heard submissions of all the learned lawyers. It appears to me the submission made by Mr. Pal and Mr. Bose who are sailing in the same boat while spearheading the attack against the vires of the said Act, are substantially three folds :
(i) The impugned Act has not been enacted in conformity with Article 323B clause 2(d). In other words, that Act does not come within the sweep and/or purview of Article 323 clause(2)(d). It may at the highest be construed as a piece of legislation while exercising power under Article 245 read with Article 244 of the Constitution of India.
(ii) The jurisdiction of the High Court under Articles 226 & 227 of the Constitution of India cannot be taken away in view of the recent decision of the apex court reported in
(iii) The provision for transfer of all the pending cases in this Hon''ble Court as mentioned in section 9 of the impugned Act is ultra vires and which has been held by necessary implication in L. Chandra Kumar''s case. The decision and direction given in L. Chanrakumar''s case debarring the litigants from approaching at the first instance the High Court under Article 226 & 227 is not a declared law within the meaning of Article 141 as such the same cannot be binding upon this court while testing vires of the aforesaid Act.
32. In order to appreciate and decide the first question, I feel it necessary to analyse the scope, purport and purview of Article 323B(2)(d) as admittedly the impugned legislation has been enacted in exercise of the aforesaid power.
33. It is no longer res integra that Article 323B in its entirety is unconstitutional and invalid. So, this question does not require any consideration at all. Before analysing the scope and purport of Article 323B, it will be appropriate to reproduce the Article 323B(1) clause (2) (d) of the Constitution of India.
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 clause. sub-section (2)-The matters referred to in clause (1) are the following. viz.,
(a) ....
(b) ....
(c) ....
(d) Land reforms by way of acquisition by the State of any estate as defined in Article 31A or any right therein or the extinguishment or modification of any such right or by way of ceiling on agricultural land or in any other way.
34. It is settled position that List-II being the State List in Schedule 7 of the Constitution the State legislature is competent to frames and/or enact any law relating to such power falls within Entry 18. It appears to me upon interpretation of Article 323B clauses (2)(d) that State legislature is competent to enact any law providing for the adjudication or trial by a tribunal of all or any dispute, complaints or offences in relation to amongst other land reforms.
35. Mr. Pal addressed me saying words ''land reforms'' necessarily mean agrarian reform and/or relate to agricultural land. I am unable to accept this argument. He further argues that the words land reforms used in Article 323B are compendium words and the same cannot be spitted. I regret to accept the submission which appears to me to be apparently absurd. It is meaningless if the two words land and reforms are spitted in the context of the entire provision clause (2)(d) of Article 323B. The books cited and relied on by Mr. Pal, viz., Land Reforms in West Bengal written by Basu and Bhattacharya Dutta & Sundaram - Indian Economy and long title of Land Reforms Act, 1955 as originally enacted are not the authorities to hold the meaning of the land reform has restricted meaning and the same confined to agrarian reform only or for that matter the same relate to agricultural land.
36. The decision of Supreme Court reported in
37. This decision did not lay down that land reform will necessarily mean and/or restrict to agrarian reform. In this judgment Justice Krishna Ayer while concurring with majority view further added inter alia if the Act by which ''the estate'' as defined in Article 31A and is sought to be acquired is not essentially meant for agrarian reform then no protection of the above Article in available. Rather in paragraph 31 of the same judgment it is observed " it is thus clear to those who understand developmental dialectic and rural planning that agratian reform is more humanist than mere ''land reform'' and scientifically viewed, covers not merely abolition of intermediary tenures, zamindaries and the like restructuring of village life itself taking in its broad embrace population."
38. Similarly, the decision of the Supreme Court cited by Mr. Pal in this context in
39. The said decision does not lay down that land reform shall be restricted to agrarian reform or relate to agricultural land.
40. In a decision of Supreme Court reported in
41. In clause (2)(d) of Article 323B it has been provided illustratively ways of land reforms. One of the ways in my view is acquisition of any estate as defined in Article 31-A as it is clear from the word "or" used in the above clause. Therefore, it is necessary to understand the purport and meaning of the definition of ''estate'' as mentioned in Article 31A of the Constitution of India that is quoted hereunder:-
The expression of "Estate" shall in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to tenures in force in that area and shall also include -
(i) any Jagir, Inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any Janmam right;
(ii) any land held under Ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, for pasture or sites of buildings and other structures occupied by cultivators of land agricultural labourers and village artisans.
42. Given the aforesaid definition, meaning of the word ''estate'' essentially or exclusively confined to agricultural land or relate to agrarian reform only and not otherwise as submitted by Mr. Pal, cannot be accepted. It will appear from plain reading of Article 31A (2)(a) of the Constitution of India that ''estate'' not only means what are mentioned in clause (a) but also includes all those other categories of land mentioned in sub-clauses (i), (ii) & (iii) of clause (a). The purport of sub-clause (i) provides clearly for the lands of all classes, while sub-clauses (ii) & (iii) make room for agricultural land and agrarian reform. I am in agreement with Mr. Roy that the word ''include'' expands the meaning of word ''estate'' as it has been held by Apex court in two decisions reported in
43. Mr. Pal has rightly submitted that the definition of estate in clause (2) of Article 31A is having the same meaning as that of expression had in the Bengal Tenancy Act, 1885, then being existing law in West Bengal relating to land tenures that was in force at the time of incorporation of Article 31A of the Constitution of India. The meaning and definition of estate in the aforesaid Act as mentioned in section (3) of sub-section(4) is as follows :-
(4) ''estate'' means land included under one entry in any of the general registers of revenue paying lands and revenue free lands, prepared and maintained under the law for the time being in force by the Collector of a district and includes Government kahs mahals and revenue free lands entered in any register.
44. Thus, it is clear from the aforesaid definition that the word ''estate'' did or does not relate or confine to any specified class or nature of land not to speak of agricultural land alone. In my view, estate means an interest and/or right in any kind of land whether it is revenue paying or revenue free, having control over the land. My view is drawn from the ratio laid down in a decision cited by Mr. Roy, of Supreme Court reported in
45. Mr. Pal of course wants me to give the meaning of the word ''estate'' otherwise, rather asks me to give restrictive meaning as being agricultural land and/or agrarian reform by citing decisions of the Supreme Court reported in
46. The decision of the Supreme Court reported in
47. Now it has to be examined and tested as to whether specified Acts mentioned in the said Act have attributes of the ''land reform'' as defined in Article 323-B clause (2) (d) or not.
48. The lexicon meaning of land is solid part of the earth''s surface (New Webster''s Dictionary). In Black''s Law Dictionary (6th Edition) the meaning of land is any ground, soil or earth whatsoever including fields, meadows, pastures, woods, moors, waters, marshes, and rock. The word reform means restructuring and/or reorganisation for betterment of the people. There is no definition of combined words ''land reforms'' in the Constitution. So, ordinary meaning reformation of land and/or land reform is to be applied. In Constitution I find the word land only. The connotation of word ''land'' means all kinds of lands. This view of mine is supported by the decision of Supreme Court rendered in case of
49. In the impugned Act I find that there are five specified Acts, viz., (i) West Bengal Estate Acquisition Act, 1953, (ii) The West Bengal Land Reforms Act, 1955, (iii) The Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, (iv) The West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975 and (v) The West Bengal Land Holding Revenue Act, 1979.
50. I should mention that Mr. Pal, however, does not dispute that West Bengal Estate Acquisition Act, 1953 does have attribute of ''land reform'' as mentioned in clause 2(d) of the said Article. According to him it is an Act which has got the trappings of agrarian reform. The challenge to that extent against the said Act is not pressed. So remaining four specified Acts are to be examined on the anvil of the provision of Article 323B(2)(d) :
i) The West Bengal Land Reforms Act, 1955-This Act in my view has provided for land reform by way of acquisition by the State of any estate and further right of a raiyats, extinguishment and modification of right of a raiyat and lastly by way of ceiling on agricultural land.
Chapter-V of the said Act which covers sections 39 to 48A, deals with the acquisition of the right of the raiyats. Section 39 specifically deals with the acquisition of the right of raiyat upon payment of compensation. Section 40 of the said Act deals with redistribution of the land after acquisition. So it purported creation and/or modification of the right of the raiyats.
Chapter-IIB of the aforesaid Act deals with fixation of ceiling on agricultural land and this fixation of ceiling on holding is directed towards acquisition of the excess land by way of vesting.
Chapter-VI of the said Act deals with distribution of the excess land so vested under Chapter-IIB. This necessarily means modification of the right of a raiyat. In the said Act a further right by way of Bargadar has been provided in Chapter-III.
ii) The Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981-This Act has been enacted for extinguishment of right of the superior landlord and further acquisition of such right. Moreover, the right of the Thika Tenant and that of Bharatia mentioned in the Calcutta Thika Tenancy Act have been modified. So this has got also attributes of the aforesaid clause 2(d).
iii) The West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975-The scope and purport of the aforesaid Act also relate to acquisition of the homestead land for Agricultural Labourers, Artisans and Fishermen Act and by the said Act necessarily it means the extinguishment of the right of a class of a holder of the land and further creation of right in favour of some other class. This Act also has trapping and attributes of the aforesaid clause 2(d).
iv) The West Bengal Land Holding Revenue Act, 1979-This Act comes within the purview of ''any other way'', as this Act is intended to be brought into existence for rationalization and improvement of the system of revenue of land holdings in the interest of proper implementation of comprehensive measures for land reform in the State with a view to providing incentives for increased production and ensuring proper distribution of material resources for social and economic welfare. This Act may not have object or effect of land reforms by way of acquisition of any estate or of any right therein or extinguishment or modification of any such right, but it has object or effect of land reform by "any other way.
51. Therefore, I hold that by the said Act for resolution of all the disputes relating to and/or arising out of the aforesaid four Acts, a tribunal can be established for adjudication thereof. Accordingly, I have no hesitation to accept the submission of Mr. Roy that the formation of the tribunal by the said Act in relation to the aforesaid four (five) specified Acts is not ultra vires of Article 323B(2(d).
52. Now, I am to examine whether the formation of a tribunal by the said Act in exercise of power under Article 323B in any affects the basic structure of the Constitution in taking away the power of judicial review of High Court under Articles 226 and 227 as a court of first instance or not.
53. The Supreme Court had conflicting opinion before the judgment of the Supreme Court forming a Bench of seven Judges in
54. In the context of the aforesaid divergent views of the apex court and the High Court the decision in L. Chandra Kumar''s case was rendered and the apex court has, however, set at rest all the disputes arising out of the divergent views of the various Courts.
55. After the decision rendered in L. Chandra Kumar''s case I am to examine how far the said Act is constitutionally valid so far as it affects power of judicial review of High Court under Articles 226 & 227 as a court of first instance. In other words, whether the scope and purport of the said Act in the context of decision of Supreme Court in L. Chandra Kumar''s case have affected basic structure of the Constitution by taking away power of judicial review of High Court under Articles 226 and 227, as a court of first instance.
56. Mr. Pal and Mr. Bose strenuously attacked various sections of the said Act as not being constitutionally valid. It will appear from the preamble of the impugned Act and the background of the farming of the Act that this Act has been framed following the decision of L. Chandra Kumar''s case and this has been made amply clear in the preamble itself. It is quoted below.
Whereas it is expedient to provide for 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 Division Bench of the High Court exercising writ jurisdiction under Articles 226 & 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.
The statement of object and reasons also make it clear expressly that the said tribunal has been constituted following the decision of the Supreme Court in L. Chandra Kumar''s case.
57. Therefore, it is imperative for me to analyse the ratio and decision of the Supreme Court in L. Chandrakumar''s case.
58. From very first paragraph of the said the judgment delivered by the then Hon''ble Chief Justice of India Mr. Justice Ahmedi (as His Lordship then was) it would be clear that the said decision was necessitated to be rendered in view of the various earlier decisions of the Supreme Court and that of different High Courts on several provisions in different Acts enacted under Articles 323A & 323B of Constitution. The questions and/or issues which were formulated for decision are set out in paragraph 1 of the said judgment. The questions and/or issues are reproduced hereunder.
i) Whether the power conferred upon Parliament or the Sate legislatures, as the case may be, by sub-clause (d) of clause(2) of Article 323A or by sub-clause (d) of clause(3) of Article 323B of the Constitution to totally exclude jurisdiction of all courts excepting that of the Supreme Court under Article 136 in respect of disputes and complaints referred to in clause(1) of Article 323A or with regard to all or any of the matters specified in clause(2) of Article 323B, runs counter to the power of judicial review conferred on the High Court under Article 226/227 and on the Supreme Court of Article 32 of the Constitution ?
ii) Whether the tribunals constituted either under Article 323A or under Article 323B of the Constitution possesses the competence to test the constitutional validity of statutory provision/rule ?
iii) 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 objects ?
59. In this case the questions and or issues in item No. (i) is a very exhaustive one and the decision and/or judgment rendered on clause(1) would be relevant in this case.
60. L. Chandra Kumar''s case while examining the questions as to whether the power of judicial review of the High Court and the Supreme Court under Articles 226 & 227 and Article 32 being one of the basic structures of the Constitution can be taken away by enacting laws by the Parliament and the State under above Articles the Supreme Court considered various decisions. Their Lordships after analysing all the decisions of this point starting from the first ever case
61. In paragraphs 90 and 93 Their Lordships have been pleased to hold that power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot be excluded. After holding this, Their Lordships, however, were pleased to add that the tribunal is competent to decide all questions except the questions of constitutional validity of the parent Act by which it is formed and the decision of the tribunal should be made judicially reviewed by the High Court under Articles 226 & 227.
62. In paragraph 99 it has been expressly held by Their Lordships in view of the reasoning adopted by us, we hold that clause (2) (d) of Article 323A, and clause(3) (d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Article 226/227 and 32 of the Constitution are unconstitutional. It has been further held that section 28 of the Act (Administrative Tribunal Act) and the exclusion of jurisdiction clauses in all other legislation enacted under the aegis of Articles 323A & 323B would to the same extent be unconstitutional. Their Lordships continue to add in paragraph 99 that the jurisdiction conferred upon the High Court under Articles 226 & 227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted other Courts or tribunals may perform a supplemental role in discharging the powers conferred by Articles 226 & 227 and Article 32 of the Constitution.
63. Simultaneously holding the aforesaid manner Their Lordships, however, have also come to the opinion and/or views : "The tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty they cannot act as substitute for the High
