Pratap Kumar Ray, J. - (1.) HEARD the learned Advocates appearing for the parties.
(2.) ADMITTEDLY writ petitioners were not parties before learned Tenancy Tribunal below whose order is under challenge in this writ application. The question as to whether a person who was not a party in the proceeding before learned Tribunal, may assail the order of learned Tribunal in the High Court, cropped up in the case Rajeev Kumar vs. Hemraj Singh Chauhan, reported in 2010(4) SCC 554, by the Apex Court, which was answered to this effect that writ application was not maintainable and course open to the writ petitioner to approach the Tribunal by filing a review application. In passing such view, the Apex Court in Rajeev Kumar (supra) relied upon L. Chandra Kumar vs. Union of India, reported in 1997(3) SCC 261 wherein the Apex Court observed that all the Tribunals set up under different Act framed under Article 323A and 323B. would be the Courts of first instance to agitate the matters in respect of areas of law for which they were constituted. Relying upon said observation, in the case Rajeev Kumar (supra) it is held that a person who is not a party in the proceeding before learned Tribunal is not legally entitled to approach the High Court under Article, 225, or 227 of the Constitution of India, assailing the order of Tribunal. Said principle could be applied in the instant case. Relevant paragraphs (13, 14, 15 and 16) of the decision of the Apex Court in the case Rajeev Kumar (supra) are quoted hereinbelow. "(13) On a proper reading of these two sentences, it is clear (a) The Tribunals will function as the only Court of first instance in respect of the areas of law for which they have been constituted, (b) Even where any challenge is made to the vires of legislation excepting the legislation under which Tribunal has been set up, in such cases also litigants will not be able to directly approach the High Court overlooking the jurisdiction of the Tribunal. (14) The aforesaid propositions have been repeated again by the Constitution Bench in the penultimate paragraph 99 t page 33 of the report in the following words. "The Tribunals will nevertheless continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not therefore be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned." (15) In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which C.A.T. has jurisdiction, is not legally sustainable. The Division Bench of the High Court with great respect fell into an error by allowing the appellants to treat the High Court as a Court of first instance in respect of their service disputes for adjudication of which C.A.T. has been constituted. (16) The grievances of the appellants in this appeal are that they were not made parties in proceedings before the Tribunal. But in the impleadment application filed before the High Court it was not averred by them that they were not aware of the pendency of the proceeding before the Tribunal. Rather from the averments made in the impleadment petition it appears that they were aware of the pendency of the proceedings before the Tribunal. It was, therefore, open for them to approach the Tribunal with their grievances. Not having done so, they cannot, in view of the clear law laid down by the Constitution Bench of this Court in Chandra Kumar (supra), approached the High Court and treat it as the Court of first instance in respect of their grievances by 'overlooking the jurisdiction of the Tribunal'. The C.A.T. also has the jurisdiction of Review under Rule 17 of CAT (Procedure) Rules, 1987. So, it cannot be said that the 'appellants were without any remedy."
(3.) RELEVANT paragraphs (92 and 99) of the case L. Chandra Kumar (supra), are quoted hereinbelow. "(92) We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above- mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution. (99) 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 Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Article 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Article 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 and Tribunals may perform a supplemental role in discharging the powers conferred by Article 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of the statutory provisions and rules. All decision of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of the statutory legislation (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and Constitutional and is to be interpreted in the manner we have indicated." In the instant case, it appears that under clause (d) of section 16 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997, power of review is vested in the Tribunal below by using the language "that the Tribunal have same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, while trying the suit. Section 16 clause (d) reads such. "16. Power of Tribunal to take evidence on oath etc.- The Tribunal shall for the purpose of this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters: (d) reviewing its decisions." ;