- (1.) this writ application, although the writ-petitioner initially prayed declaration that section 2(r)(vi) of the West Bengal Land Reforms and Tenancy Tribunal (Amendment) Act, 2002 is ultra vires the Constitution of India, subsequently, in view of the decision of the Supreme Court in the case of Union of India vs. R. Gandhi, 2010 11 SCC 1, during the pendency of this writ application, Mr. Basu, the learned Senior Advocate appearing on behalf of the writ petitioner, extended the scope of the writ application and attacked various other provisions of the West Bengal Land Reforms & Tenancy Tribunal Act, 1997 as ultra vires the Constitution of India, as according to him, those provisions are unable to stand the tests indicated by the Supreme court in the aforesaid case of R. Gandhi.
(2.) In view of the prayer of the writ petitioner for permitting him to take the aforesaid additional grounds, we adjourned the matter from time to time to enable Mr. Roy, the learned Advocate General, appearing on behalf of the State/respondent, to answer the additional questions raised by the writ petitioner.
(3.) The contentions of the learned Advocate for the petitioner in support of the writ-application, as it originally stood, may be summed up thus: a) The West Bengal Land Reforms & Tenancy Tribunal Act, 1997 ("WBLRTT Act") along with its Rules contained various anomalies and are in direct conflict with the West Bengal Premises Tenancy Act, 1997. b) The WBLRTT Act was enforced with effect from 3rd August, 1998 vide Notification No. 2788-L dated 12.12.1997 published in the Kolkata Gazette on 12.12.1997. c) The West Bengal Premises Tenancy Act, 1997 was enforced with effect from 10th July, 2001 vide Notification No.3052L dated 9th July 2001 published in the Kolkata Gazette on the same day. d) The WBLRTT Act, was amended by the WBLRTT (Amendment) Act of 2002, (notified on 17th July, 2002), whereby section 2(r) of the WBLRTT Act was amended and section 2(r)(vi) was inserted therein, to include West Bengal Premises Tenancy Act as a "specified Act" under the said Act with effect from 10th July, 2001. e) By virtue of the inclusion of the WBPT Act as a specified Act under the WBLRTT Act, section 6(b) and (d) of the WBLRTT Act gave the LRT Tribunal jurisdiction, inter alia, to hear and decide applications against any inaction or culpable negligence of an Authority under the WBPT Act as also any applications challenging the constitutional validity of the WBPT Act. f) However, section 10 of the WBLRTT Act provided only applications by way of appeal from any order passed by an Authority or any action taken by an Authority, but does not cover applications "complaining inaction or culpable negligence of an Authority under a Specified Act" or applications "relating to constitutional validity of any Act under the provisions of a Specified Act" as referred to in section 6 of the said Act. g) Thus, section 10 of the said Act is clearly in conflict with the provisions of section 6 of the said Act. There are also no other sections or provisions in the said Act which provide for making application referred to in section 6(b) and (d) of the said Act. h) If, by applying the canons of interpretations of statutes section 10 of the WBLRTT Act is held to prevail over section 6 (b) and (d) thereof, then sub-section (b) and (d) of section 6 are effectively nullified. The jurisdiction of the High Court having been curtailed by virtue of sections 7 and 8 of the said Act, the petitioners are left without a forum to challenge the vires and/or the constitutional validity of the WBPT Act 1997. By virtue of the same, the petitioners are also, left without any remedy against the inaction of the Controller in not sending copies of the applications for deposit of rent by the tenants to the petitioners. The provisions of section 10 of the WBLRTT Act are clearly arbitrary, discriminatory and arbitrary and being violative of your petitioners' rights under Article 14 of the Constitution of India, ought to be struck down as ultra vires, i) The rules framed under the WBLRTT Act also do not provide for making of any such applications as provided for in section 6(b) and (d) of the said Act. Though the heading of Rule 3 mentions "Filing of applications under section 6 or section 10, it does not provide for applications against "inaction or culpable negligence of an Authority under a Specified Act" or applications "relating to constitutional validity of any Act under the provisions of a Specified Act" as referred to in section 6(b) and 6(d) of the said Act. J) The Rules are, and in particular, the Rule 3, is vague, arbitrary, contrary to the parent sections of the Act and are liable to be struck down as unworkable and ultra vires Article 14 of the Constitution of India. k) Apart from the aforesaid anomalies in the WBLRTT Act, after the amendment of the WBPT Act, 1997 in 2005 the provisions of the said Act are now in conflict with the provisions of the WBLRTT Act, as would be evident from the following paragraphs. 1) Before the amendment of the WBPT Act in 2005, all matters relating to the provisions of the WBPT Act, including the eviction of tenants, used to be filed before the Controller or the Additional Controller or Deputy Controller who used to function under the direction of the Controller. The amendment in 2005 brought about a major change in the Act in that, inter alia, matters relating to eviction of tenants were taken out from the purview of the Controller and placed within the domain of a Civil Judge. Thus, instead of filing applications for eviction of tenants before the Controller, landlords were required to file suits before a Civil Judge praying for a Decree for eviction of tenants. The jurisdiction of Small Causes Courts was also taken away by such amendment. m) Another amendment that was made is that the Controller, Additional Controller or Deputy Controller was to be a member of either the Indian Administrative Service or from the Executive Branch of the State civil service. The previous requirement of the Controller being a member from the judicial branch of the State civil service was deleted. n) Section 7 of the WBLRTT Act clearly states that from the date of coming into force of the Tribunal, the Tribunal "shall exercise all the jurisdiction power and authority exercisable immediately before that day by the court including the High Court" in relation to "matters arising out of any provisions of a specified Act". Section 7 however retained the writ jurisdiction under Article 226 and 227 of the Constitution exercised by the Division Bench of this Hon'ble Court. o) Section 8 of the WBLRTT Act clearly bars any civil courts to entertain any "matter under any provision of a specified Act." p) The provisions of sections 7 and 8 of the WBLRTT Act are clearly contradictory to provisions of sections 6, 7, 9 and 11 in the WBPT Act which deal with the ambit of the Civil Judge. q) After the amendment of sections 6, 7, 9 and 11 of WBPT Act, a further amendment ought to have been made in the WBLRTT Act, and WBPT Act ought to have been brought out of its ambit as a specified Act. It is to be noted that when WBPT Act was included in section 2(r)(vi) as a specified Act, all the powers and functions under the WBPT Act had been vested in and exercised by the Controller; it is only in 2005 that the Civil Judge has been vested with powers sections 6, 7, 9 and 11 by way of amendment and the Controller's powers in those respects have been take away. Till the coming into force of the WBPT Act 1997 on 10th July 2001 the old WBPT Act 1956 was kept out of the ambit of WBLRTT Act only because it had given powers to Civil Judges to decide eviction suits and the powers to Controllers were restricted to deposit of rent and fixation of fair rent. Thus after the amendment of 2005, WBPT Act 1997 ought to have been taken out of the purview of the WBLRTT Act. r) The provisions of Rule 3 of the West Bengal Land Reforms and Tenancy Tribunal Rules, 1997 is contradictory to section 6 to 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. Due to inclusion of section (2)(r)(vi) of the West Bengal Land Reforms and Tenancy Tribunal Act 1997, the provisions of Land Reforms and Tenancy Tribunal Act and the provisions of West Bengal Premises Tenancy Act are contradictory to each other. It cannot be presumed that legislature has made a mistake, but its deliberate mistake on the part of legislature and thus, the intention of legislature is mala fide. Hence, section 2(2) of the West Bengal Land Reforms and Tenancy Tribunal (Amendment) Act of 2002 by which section 2(r) was amended should be struck down. s) Section 2(2) of the WBLRTT (Amendment) Act of 2002 by which section 2(r) of the WBLRTT Act, 1997 was amended ought to be struck down as ultra vires along with section 2(r)(vi) of the WBLRTT Act, 1997 as being unworkable and arbitrary for the reasons aforesaid.;