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2017 (5) TMI 337 - CALCUTTA HIGH COURT

2017 (5) TMI 337 - CALCUTTA HIGH COURT - TMI - Principles of natural justice - alternative remedy - non-consideration of the series of authorities cited before the said respondent no.2 by Learned Advocate for the petitioners in the proceeding under Section 5(3) of the Tikha Tenancy Act of 2001 - power yo issue writs - Held that: - the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and the said power is not limited by any other provisions of t .....

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al 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. - 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 .....

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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, 1947 and took the lease of the land of the said premises under registered deed dated February 19, 1947. Muhammad Yusuf sold out the structure of the said premises to Haji Rasul Baksh under reg .....

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y asserting their rights as tikha tenants in respect of the said premises. They also claim to have paid rent to the erstwhile landlord by producing rent receipts issued by the erstwhile landlord in favour of predecessor-in-interest of the petitioners in connection with the said premises before the respondent no.2. On the other hand, the respondent no.3 purchased 8 cottahs 9 chittacks of land together with structure situated on the said premises from Shyamali Mallik and others under registered de .....

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of violation of the principles of natural justice. 3. Mr. Aniruddha Chatterjee, Learned Counsel representing the petitioners contends that the petitioners can invoke the writ jurisdiction of this Court in spite of having alternative remedy, as the respondent no.2 has violated the principles of natural justice by not considering the series of authorities cited before the said respondent no.2 by Learned Advocate for the petitioners in the proceeding under Section 5(3) of the Tikha Tenancy Act of 2 .....

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e 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 n .....

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sdiction in relation to any order made by an authority under the specified Act as laid down in Section 6 of the Tenancy Tribunal Act of 1997. The specific submission of Mr. Basu is that the jurisdiction of the High Court under Article 226 of the Constitution of India exercised by the Single Bench in connection with any matter falling within the jurisdiction of the Tenancy Tribunal is barred under Section 8 of the Tenancy Tribunal Act of 1997. He has relied on the decision of the Co-ordinate Benc .....

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to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and the said power is not limited by any other provisions of the Constitution. The law is well-settled that the High Court can exercise jurisdiction under Article 226 of the Constitution in spite of having alternative remedy when the principle of natural justice is violated or when the order is passed without jurisdiction or the vires of any statute is under challenge or prayer is made for enforcement .....

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and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement 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 challe .....

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s 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 High Court vacated th .....

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Court in Naresh Shridhar Mirajkar V. State of Maharashtra reported in AIR 1967 SC 1, the Supreme Court came to the conclusion that the judicial orders of the Civil Courts are not amenable to writ jurisdiction under Article 226 of the Constitution of India and thereby the order of the High Court was set aside. The ratio of this decision cited on behalf of the petitioner has no bearing on the facts of the present case where the petitioner has challenged the order passed by the Deputy Controller, .....

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territorial jurisdiction the particular Tribunal falls. In other words, all decisions of the Tribunals constituted under Article 323-A or under Article 323-B of the Constitution will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal falls. It is further held by the Constitution Bench that it will not be open for litigants to directly approach the High Court even in cases where they challenge the vires of statutory legislations (except where .....

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ndia. 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 b .....

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t, the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise jurisdiction, power and authority in relation to - (a) [any order] made by an Authority under a specified Act; (b) an application complaining inaction or culpable negligence of an Authority under a specified Act; (c) an appeal against an order of the Mines Tribunal appointed under Section 36 of the West Bengal Estates Acquisition Act, 1953 (W.B. Act of 1954); (d) .....

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ority in relation to any order made by any authority under a specified Act. In other words, the Tribunal has the jurisdiction to entertain any application challenging any order passed by any authority under any provision of the specified Act, viz, the Tikha Tenancy Act of 2001. The Tenancy Tribunal Act of 1997 was published in the Calcutta Gazette after the ascent of the Governor on December 12, 1997 and the Tribunal was set up in pursuance of Article 323B of the Constitution of India for adjudi .....

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f the Tenancy Tribunal Act of 1997 has expressly excluded the jurisdiction of the High Court under Article 226 and 227 of the Constitution exercised by a Single Bench of the High Court. It is relevant to quote the provisions of Section 8 of the Tenancy Tribunal Act of 1997, which is quoted below: 8. Exclusion of jurisdiction of courts. - On and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, the High Court, except where that Court exe .....

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o 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 w .....

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tenancy and moved the Tikha Controller for deciding the dispute with regard to the claim as tikha tenant. The landlord raised the issue of maintainability of the application of the tenant. The issue of maintainability was kept open by the Tikha Controller. The issue raised before the Single Bench of the High Court exercising jurisdiction under Article 227 of the Constitution was whether the maintainability of the dispute with regard to the tikha tenancy or tikha property can be considered as ju .....

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ion the Co-ordinate Bench held in paragraph 20 of the judgement as follows: 20. …. The Article 227 jurisdiction of the Single Bench of the High Court cannot be invoked on the specious ground that the jurisdictional fact has been decided wrongly, for Sections 7 and 8 of the Tenancy Tribunal Act stare at the face and create a bar to exercise of jurisdiction. 10. In Reliance Infrastructure Ltd. V. Dy. Commissioner, Sales Tax reported in 2014(1) CHN (CAL) 211 the Co-ordinate Bench of this Cou .....

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gh Court under 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 .....

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rticle 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 Value Added Tax Act, 2003 to come within the ambit of the specified State Act and, therefore, any matter touching Sections 5 and 6 of the Tribunal Taxation Act can be assailed before the Tribunal on all point including the point relating to violation of principles of natural justice. The single bench o .....

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f the petitioners Learned Single Judge of this Court quashed the order passed by the Commissioner of Central Excise by invoking writ jurisdiction under Article 226 of the Constitution of India on the ground that the petitioner of the said writ petition was denied the right of cross-examination of the witness, in spite of having alternative remedy of preferring appeal against the impugned order. In this unreported judgement the issue was not raised whether the Single Bench of the High Court canno .....

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urt can exercise writ jurisdiction under Article 226 of the Constitution in relation to an order against which remedy lies before the Tenancy Tribunal, particularly when the Tenancy Tribunal Act has specifically excluded the writ jurisdiction of the Single Bench of the High Court. 12. In Artee Overseas Pvt. Ltd. V. Union of India reported in 2013(4) CHN (CAL) 667 cited on behalf of the petitioners the Division Bench of our High Court had set aside an order passed by the Additional Commissioner o .....

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ere 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 Appel .....

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which appeals lie before the said Tribunal. Section 1(3) of the Customs & Excise Revenues Appellate Tribunal Act, 1986 provides that the said Act will come into force on such date as the Central Government may by notification in the official gazette appoint. Mr. Chatterjee has failed to produce notification issued by the Central Government and published in the official gazette to establish that the Customs & Excise Revenues Appellate Tribunal Act, 1986 has come into force, though the Su .....

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which appeal lies before CESTAT. In Samruddhi Industries V. CESTAT, Mumbai reported in 2009(242) ELT 321(Bom) an order passed by the CESTAT under Section 35-F of the Central Excise Act, 1944 while entertaining an appeal against the order passed by the Commissioner of Central Excise, Nagpur was challenged by filing application under Article 226 of the Constitution of India. It is held in paragraph 12 of the judgement by Learned Single Judge of Bombay High Court that CESTAT is not constituted und .....

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