TMI Blog2017 (5) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice are violated or when the order has been passed without jurisdiction. The natural corollary is that the present writ application is not maintainable before the Single Bench of the High Court - The writ application is, thus, dismissed. - W. P. No. 29815 (W) of 2016 - - - Dated:- 3-5-2017 - Hon ble Justice Ranjit Kumar Bag, J. For the Petitioners : Mr. Aniruddha Chatterjee, Mr. Satyanarayan Shaw, Mr. Syed Nurul Arefin, Mr. Rajesh Kumar Shaw, Mr. Rahul Singh For the Respondent : Mr. Saptangsu Basu, Sr. Adv., Mr. Sk. Reazul Islam, Mr. Ehtesham Islam JUDGMENT R. K. Bag, J. The petitioners have challenged the order dated November 9, 2016 passed by the respondent no.2, Deputy Controller, Kolkata Tikha Tenancy in connection with Misc. Case No.31 of 2015, by which the respondent no.2 held that premises no.1, Acre Road, Kolkata-700017 does not come under the purview of tikha tenancy. 2. The petitioners claim that one Muhammad Yusuf purchased the structure situated on premises no.1, Acre Road, Kolkata-700017 (hereinafter referred to as the said premises ) from Chandra Sekhar Mallik and Nanda Kishore Mallik under registered deed dated February 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017) and the decision of Division Bench of our High Court in case of Artee Overseas Pvt. Ltd. V. Union of India reported in 2013(4) CHN(CAL) 667 and the decision of the Supreme Court in Radhey Shyam V. Chhabi Nath reported in (2015) 5 SCC 423, Mr. Chatterjee submits that this Court can invoke the jurisdiction under Article 226 of the Constitution of India in spite of having alternative remedy when the respondent no.2 has violated the principles of natural justice in passing the impugned order under challenge in the writ petition. 4. Mr. Saptangsu Basu, Learned Senior Counsel appearing on behalf of the respondent no.3 submits that he does not dispute the proposition of law that this Court can invoke the writ jurisdiction in spite of having alternative remedy when the principles of natural justice have been violated in passing any order. However, Mr. Basu argues that the remedy of the petitioner lies before West Bengal Land Reforms and Tenancy Tribunal (in short Tenancy Tribunal ). He further submits that the Tikha Tenancy Act of 2001 is a specified Act under Section 2(r) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (in short the Tenancy Tribunal Act of 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or where the vires of an Act is challenged. 6. Now, the question for consideration of the Court is whether this Court can exercise jurisdiction under Article 226 of the Constitution to examine the validity of the impugned order on the ground of violation of the principles of natural justice, in spite of having alternative remedy of moving before the Tenancy Tribunal. In Radhe Shyam V. Chhabi Nath reported in 2015(5) SCC 423 the three Judge Bench of the Supreme Court decided that the judicial orders passed by the Civil Courts are not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India, though the High Court can exercise the power of superintendence over the Civil Courts under Article 227 of the Constitution of India. In this reported case one interim order passed by the Civil Court in a pending suit was challenged before Allahabad High Court by the defendant of the suit by filing a writ petition under Article 226 of the Constitution of India. When the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal before the Division Bench of the High Court under Article 226 or under Article 227 of the Constitution of India. In the instant case the impugned order is passed under Section 5(3) of the Tikha Tenancy Act of 2001 by the Deputy Controller, Kolkata Tikha Tenancy. Section 5(3) of Tikha Tenancy Act of 2001 confers jurisdiction on the Controller of Tikha Tenancy to decide the question whether a person is a tikha tenant or not or whether the land in question is tikha land or not, after giving the persons interested an opportunity of hearing and after examining all documents and particulars which need to be considered for the purpose of enquiry. The said Tikha Tenancy Act of 2001 is a specified Act falling under Section 2(r) of the Tenancy Tribunal Act of 1997. The Tenancy Tribunal (West Bengal Land Reforms and Tenancy Tribunal) is constituted under Section 4 of the Tenancy Tribunal Act of 1997. It is relevant to quote the provisions of Section 6 of the Tenancy Tribunal Act of 1997, which is as follows: 6. Jurisdiction, power and authority of Tribunal. Subject to the other provisions of this Act, the Tribunal shall, with effect from such date as may be appointed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act by the Tribunal, the High Court, except where that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution by a Division Bench, or any civil court, except the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act. On consideration of the above provisions of law I have no manner of doubt that this Court sitting singly cannot exercise jurisdiction under Article 226 of the Constitution in relation to an order passed by an authority under the specified Act, when the Tenancy Tribunal has the authority to exercise the jurisdiction in relation to the said order. 9. In Eastern Chemical Industries V. Fona Rubber Pvt. Ltd. reported in 2012(2) CHN (CAL) 417 the Co-ordinate Bench of this Court refused to invoke jurisdiction under Article 227 of the Constitution of India while the order of Tikha Controller was challenged on the ground of ouster of jurisdiction by Sections 7 and 8 of the Ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution of India without preferring appeal before the Tribunal, the Co-ordinate Bench observed in paragraphs 21, 22 and 23 of the judgement as follows: 21. The West Bengal Taxation Tribunal is constituted in pursuance of Article 323B of the Constitution of India upon enacting the West Bengal Taxation Tribunal Act, 1987. Section 5 of the said Tribunal Act bestowed the Taxation Tribunal to exercise jurisdiction, powers and authority in relation to all matters of adjudication or concerning of any disputes, complaints or offences with respect to levy assessment and collection of enforcement of any tax under any specified State Act and all matters connected therewith or incidental thereto. 22. Though Sections 5 and 6 of the Taxation Tribunal Act excludes the jurisdiction of the High Court but the Apex Court in case of L. Chandra Kumar (supra) have declared the said exclusion clause to be unconstitutional and retained the power of the High Court under Article 226/227 of the Constitution of India but to be exercised by the Division Bench of the respective High Courts. 23. The schedule appended to the Taxation Tribunal Act includes the West Bengal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy of preferring appeal, though Learned Judge of the first Court dismissed the writ application on the ground of having alternative remedy. In this report issue was neither raised nor decided whether the jurisdiction of the Single Bench exercising power under Article 226 of the Constitution is barred. So, the ratio of the report cannot have any manner of application in the facts of the present case where the issue is raised whether this Court sitting singly can exercise jurisdiction under Article 226 of the Constitution in relation to an order for which remedy lies before the Tenancy Tribunal and the Tenancy Tribunal Act has excluded the writ jurisdiction of the Single Bench of the High Court. 13. Mr. Chatterjee, Learned Counsel for the petitioner submits that the Customs, Excise and Service Tax Appellate Tribunal (in short CESTAT) is constituted under the Customs Excise Revenues Appellate Tribunal Act, 1986, but the Single Bench of the High Court exercising jurisdiction under Article 226 of the Constitution has entertained writ application challenging the order passed by the Commissioner of Central Excise or the order passed by the Additional Commissioner of Customs, in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, 1962 on May 14, 2003. Section 35-B of the Central Excise Act, 1944 provides for preferring appeal to the said CESTAT against the specific orders passed by specified authority exercising jurisdiction under the Central Excise Act, 1944. So, the CESTAT was created under the Customs Act, 1962 long before enactment of the Customs Excise Revenues Appellate Tribunal Act, 1986. Since, the CESTAT was created under Section 129 of the Customs Act, 1962 and since appeal lies to the said Tribunal against the specific orders passed by the specified authorities under the Central Excise Act, 1944 and the Customs Act, 1962 and these statutes have not excluded jurisdiction of the Single Bench of the High Court exercising power under Article 226 of the Constitution, the Single Bench of the High Court can exercise writ jurisdiction in relation to an order passed by the Commissioner of Central Excise or by the Commissioner of Customs, in spite of having alternative remedy of preferring appeal before CESTAT when principles of natural justice are violated or when the order has been passed without jurisdiction. In view of my above observations, I am unable to accept the contention made on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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