Calcutta High Court On Thika Tenancy And Issue Of Jurisdiction: Approach West Bengal Land Reforms And Tenancy Tribunal

The Single Bench of the Calcutta High Court, where the prayer of the Dealer was limited to seeking only "A declaration be issued by this Hon'ble Court that premises no. 151, Bidhan Sarani, Kolkata does not come within the purview of the Act of 2001 and does not stand vested and never stood vested in the State of West Bengal either under the said Act of 1981 or under the Act of 2001" had rejected the argument on maintainability of the petition filed by the retail outlet dealer on the strength of Amit Basu v. The controller & Ors. [(2014) 2 High Court Cases (Cal) 584] and Lakshmimoni Das & Ors v. State of West Bengal & Ors. (1987(2) CLJ 53).

Being aggrieved by such Order, the oil company had preferred a Review of the judgment of the Learned Single Judge which was also dismissed.

Against both dismissal orders, Appeals were preferred by Indian Oil Corporation Limited which was heard primarily on the point of "that the learned Single Judge did not have jurisdiction to entertain the writ petition in view of the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (in short 'the 1997 Act')"

It was argued by Indian Oil Corporation Limited that in view of the express provisions of West Bengal Land Reforms and Tenancy Tribunal Act, 1997 ('1997 Act'), the writ petition was not maintainable before the Learned Single Bench.

The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 is a specified Act under Section 2(r) of the 1997 Act and Section 6 empowers the Tribunal to have jurisdiction over such specified acts. By the operation of Section 7 and 8 of the 1997 Act, the Learned Tribunal and not any Civil court or High Court has been bestowed with aIl the jurisdiction, power and authority which are exercisable by any Court including the High Court (save and except the jurisdiction under Article 226 and 227 of the Constitution of India exercised by the Division Bench of the High Court and except 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 provisions of a specified Act. No civil

Further, it was argued that the Courts have on many occasions held that Learned Tribunals will continue to act like courts of first instance and it will not be open for the litigants to directly approach the High Courts even in cases where they question the vires of the statutory legislations by overlooking the jurisdiction of a tribunal concerned. Reliance was placed on L. Chandra Kumar vs Union of India [(1997) 3 SCC 261. The West Bengal Land Reforms and Tenancy Tribunal constituted under the 1997 Act is a Tribunal within the meaning of Part XIV-A and Article 3238 of the Constitution of India, 1950 and the present case can be said to have been falling under Article 323-B (2) (h), (i) and (i). Reliance was also placed on State of West Bengal vs Ashis Kumar Roy [(2005) 10 SCC 110 where the Land Tribunal was held to be the authority at 1^st instance whose decision will be challenged before the Division Bench.

Per contra, it was argued on behalf of the Dealer that there exist cases which clarify that land on which a petrol pump operates, is not a thika land and does not come within the purview of the 1981 Calcutta Thika Tenancy Act or the 2001 Thika Act. Consequently, such land did not vest in the State under either of the said two Acts. Hence, the learned Single Judge rightly allowed prayer (a) of the writ petition.

Further, the writ jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India cannot be ousted by any statute. The Thika Controller was vested with the power of deciding the question as to whether or not a person is a Thika Tenant or whether or not a particular land is Thika land, by the amended sub-section 3 of Section 5 of the 2001 Thika Act which came into force on November 1, 2010. Prior, thereto, he had no such power.

The Division Bench of the Calcutta High Court observed:

• It was in exercise of the power under Article 323B of the Constitution that West Bengal legislature promulgated the 1997 Act.

• The Preamble to the 1997 Act makes the object of the Act amply clear which was to set up a tribunal for adjudication of disputes touching the provisions of a "specified Act" and for exclusion of the jurisdiction of all Courts excepting the Supreme Court of India and a Division Bench of the High Court exercising jurisdiction under Articles 226 and 227 of the Constitution, in respect of such disputes.

• Challenge to such exclusion of "the jurisdiction of 'all courts' expect that of the Supreme Court under Article 136 in respect of disputes 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" was settled by the Hon'ble Supreme Court in L. Chandra Kumar (Supra).

• For adjudication of any dispute which touches any provision of a 'specified Act', one must approach the tribunal at the first instance and all other civil Courts including the High Court excepting the Division Bench exercising writ jurisdiction under Articles 226/227 of the Constitution, have lost the power and jurisdiction to entertain such dispute.

• The Tribunal has exclusive jurisdiction to decide, after considering the nature and character of the property in question and the decisions governing the field, whether or not the writ petitioner's property is a Thika property.

Ultimately, it was held that "Hence, in our view, the writ petitioner ought to have approached the Land Tribunal as the jurisdiction of the learned Single Judge stood ousted for the reasons discussed above… this appeal succeeds. The judgment and order impugned in this appeal is set aside. This will not prevent the respondent/writ petitioner from approaching the West Bengal Land Reforms and Tenancy Tribunal with the prayers that were made in the writ petition filed before the learned Single Judge."

Case: Indian Oil Corporation Limited vs Anchit Agarwal & Ors.

Court: High Court at Calcutta

Advocates for Appellant: Tilak Kumar Bose, Sr. Advocate, Vineeta Meharia, Amit Meharia, Puspendu Chakraborty, Madhurima Halder, Paramita Banerjee, Subika Paul, Amrita Das, Advocates – Meharia & Company (MCO Legals)

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