Esab India Limited vs Electro Steel Castings Limited & ...
2022 Latest Caselaw 2284 Cal

                                                       W.P.L.R.T No.4/22 Page 1 of 15


                     IN THE HIGH COURT AT CALCUTTA

                      CIVIL APPELLATE JURISDICTION

                              APPELLATE SIDE



      Present:

      THE HON'BLE JUSTICE HARISH TANDON
                    &
      THE HON'BLE JUSTICE RABINDRANATH SAMANTA



                           W.P. L.R.T. No. 4 of 2022


                             ESAB India Limited
                                     Vs.

                     Electro Steel Castings Limited & Ors.



Appearance:

For the Petitioner            :     Mr. Saktinath Mukherjee, Sr. Adv.

                                    Mr. Saptangshu Basu, Sr. Adv.

                                    Mr. Supratim Dhar, Adv.

                                    Mr. Siddhartha Banerjee, Adv.

                                    Mr. Abhisek Baran Das, Adv.



For the Respondent no. 1      :     Mr. Abhrajit Mitra, Sr. Adv.

Mr. Sharbopriyo Mukherjee, Adv.

Mr. A. Agarwalla, Adv.

Judgment On                   :     22.04.2202

    Harish Tandon, J.:

The instant writ petition has been taken out assailing an

interim order dated 7th October, 2021 passed by the West Bengal

Land Reforms and Tenancy Tribunal in OA no. 2011 of 2021 by

which the direction was passed not to give effect to the impugned

order dated 28.7.2021 passed by the Commissioner, Presidency

Division in Appeal case no. 2 of 2019/2020 together with an

order dated 28.8.2019 passed by the District Land and Land

Reforms Officer, North 24 Parganas in Case no. C - 14/18 under

Section 4C of the West Bengal Land Reforms Act, 1955 till the

next date. The dispute pertains to the land comprised of 7.2

acres in different plots appertaining to in Khatian no. 7572 JL

no. 2 at Mouza Khardaha within the Khardaha Police Station in

the District of 24 Parganas (North). The said plots of land

originally belonged to M/s. India Oxygen Ltd. for carrying on

manufacturing of the electrodes. Subsequently, the said land was

sold to the petitioner herein by dint of purchase dated 16 th

March, 1993. Prior to the sale of the said land the original owner

applied under Section 20 of the Urban Land (Ceiling and

Regulation) Act, 1976 seeking permission to sell the said plot of

land together with the structures standing thereupon in favour of

the writ petitioner herein. By an order dated 29th October, 1992,

the exemption was granted under Section 20 of the said Act with

certain conditions incorporated therein. Though the writ

petitioner has pleaded that there was no necessity to seek

permission as the said plots of land were outside the purview of

the said Act yet it appears that the said permission was taken

and granted which are disclosed in the record. After purchase of

the property, the petitioner claimed to have continued with the

business activities thereat till 2015. It subsequently transpired

that the said plot of land was recorded as 'Shali' although the

business activity was carried on at the said plot of land by the

predecessor since 1956 and continued after the sale by the writ

petitioner till 2015. The Respondent no. 1 showed his intention to

purchase land owned and possessed by the petitioner and upon

negotiation and the settlement of the terms and conditions, 3.26

acres of land comprised in different plot nos. were sold,

transferred and conveyed to the Respondent no. 1 by the

petitioner by executing deed of conveyance on 18 th July, 2003

which was subsequently registered before the competent

registering authority. Upon purchase of the said plot of land, the

Respondent no. 1 demarcated the said land by raising a high wall

and it does not appear from the pleading of the parties that there

is any dispute concerning the boundary. The pleading goes in the

instant writ petition is that the said Respondent no. 1 intended to

purchase the property which the writ petitioner retained and/or

owned and having received the refusal, the approach was made

to the Department of Urban Development and Municipal Affairs

(Urban Land Ceiling Branch), Government of West Bengal for

revocation of the exemption granted under Section 20 of the said

Act at the behest of the predecessor of the writ petitioner. The

proceeding was considered as an appeal filed by the Respondent

no. 1 which having filed before the Special Secretary and the

appellate authority by an order dated 23rd January, 2021

dismissed the said appeal. The order of the appellate authority

was further challenged before this court in WPA no. 1165 of 2 of

2021 which is still pending. There is no interim order passed in

the said writ petition and, therefore, as of this day the order

passed by the appellate authority under the said Act is still

operative. Amidst the pendency of such dispute, an application

was taken out by the petitioner before the Additional District

Magistrate and District Land and Land Reforms Officer seeking

conversion of the character of the plot of land from 'Shali' to

residential purposes. The aforesaid application was taken out

under Section 4C of the West Bengal Land Reforms Act, 1955

and in course of the hearing, an amendment was taken out to the

effect that instead of residential purposes such conversion should

be granted for establishment of the "industrial park". The

Respondent no. 1 intervened in the said proceedings and a plea

of locus was raised but the said authority without venturing to go

into the aforesaid aspect permitted him to make submissions and

ultimately allowed the application by granting conversion of the

land from 'Shali' to 'industrial park'. A plea was taken before the

said authority that by virtue of a notification dated 24.9.2014 the

conversion of a land to industrial park can only be permitted if

the land in question is comprised of 20 acres or more. Such

contention was repelled for the simple reason that though the

record of right indicates the nature of the plot as 'shali', but, in

fact, it was being used for industrial purposes from time

immemorial and, therefore, there is no fetter in the statute to

grant such conversion. The said order is assailed before the

Tribunal by the Respondent no. 1. By the impugned order, the

Tribunal recorded the submission of the writ petitioner as well as

the Respondent no. 1 and surreptitiously jumped to the

conclusion that if the interim order is not passed, the purpose of

filing the original application would be frustrated.

In L. Chandra Kumar vs. Union of India & Ors.

Reported in 1997 (3) SCC 261 the basic question which fell for

consideration is whether the Tribunals constituted under Article

323A and 323B can exclude the power of judicial review

enshrined under Article 226 or a power of superintendence under

Article 227 of the Constitution of India. Incidentally, the

argument was also advanced whether by establishing such

Tribunal, a power under Article 32 of the Constitution of India

conferred upon the Supreme Court has been whittled down

and/or abrogated through a legislative fiat. Repelling the

aforesaid contention, the Constitution Bench of the Supreme

Court held that by establishing the Tribunal it does not abridge

the power of the High Court and the Supreme Court under Article

226/227 and 32 of the Constitution respectively but they

performed as supplemental thereto and cannot be treated as

substitute of the High Court or the Supreme Court. It has been

held that the power of the High Court under Article 226/227 and

the power of the Supreme Court under Article 32 are the basic

ethos of the Constitution and cannot be curbed and/or taken

away. The enlightening observations made therein are

reproduced as under:

"80. However, it is important to emphasise that though

the subordinate judiciary or Tribunals created under

ordinary legislations cannot exercise the power or

judicial review or legislative action to the exclusion of

the High Courts and the Supreme Court, there is no

constitutional prohibition against their performing a

supplemental - as opposed to a substitutional - role in

this respect. That such a situation is contemplated

within the constitutional scheme becomes evident when

one analyses clause (3) of Article 32 of the Constitution

which reads as under:

32. Remedies for enforcement of rights conferred

by this Part. -

     (1)           *              *                     *


     (2)           *              *                     *

(3) Without prejudice to the powers conferred on

the Supreme Court by clauses (1) and (2), Parliament

may by law empower any other court to exercise within

the local limits of its jurisdiction all or any of the

powers exercisable by the Supreme Court under clause

(2).

(emphasis supplied)

81. If the power under Article 32 of the Constitution,

which has been described as the "heart" and "soul" of

the Constitution, can be additionally conferred upon

"any other court", there is no reason why the same

situation cannot subsist in respect of the jurisdiction

conferred upon the High Courts under Article 226 of

the Constitution. So long as the jurisdiction of the High

Courts under Article 226/227 and that of this Court

under Article 32 is retained, there is no reason why the

power to test the validity of legislations against the

provisions of the Constitution cannot be conferred upon

Administrative Tribunals created under the Act or upon

Tribunals created under Article 323-B of the

Constitution. It is to be remembered that , apart from

the authorisation that flows from Article 323-A and

323-B, both Parliament and the State Legislatures

possess legislative competence to effect changes in the

original jurisdiction of the Supreme Court and the High

Courts. This power is available to Parliament under

Entries 77,78,79 and 95 of List I and to the State

Legislatures under Entry 65 of List II; Entry 46 of List

III can also be availed of both by Parliament and the

State Legislatures for this purpose.

82. There are pressing reasons why we are anxious to

preserve the conferment of such a power on these

Tribunals. When the Framers of our Constitution

bestowed the powers of judicial review of legislative

action upon the High Courts and the Supreme Court,

they ensured that other constitutional safeguards were

created to assist them in effectively discharging this

onerous burden. The expectation was that this power

would be required to be used only occasionally.

However, in the five decades that have ensued since

Independence, the quantity of litigation before the High

courts has exploded in an unprecedented manner. The

decision in Sampath Kumar case was rendered against

such a backdrop. We are conscious of the fact that

when a Constitutional Bench of this Court in Sampath

Kumar Case adopted the theory of alternative

institutional mechanisms, it was attempting to remedy

an alarming practical situation and the approach

selected by it appeared to be most appropriate to meet

the exigencies of the time. Nearly a decade later, we

are now in a position to review the theoretical and

practical results that have arisen as a consequence of

the adoption of such an approach.

83. We must, at this stage, focus upon the factual

position which occasioned the adoption of the theory of

alternative institutional mechanisms in Sampath

Kumar Case. In his leading judgment, Ranganath

Misra, J. Refers to the fact that since independence,

the population explosion and the increase in litigation

had greatly increased the burden of pendency in the

High Courts. Reference was made to the studies

conducted towards relieving the High Courts of their

increased load. In this regard, the recommendations of

the Shah Committee for setting up independent

Tribunals as also the suggestion of the Administrative

Reforms Commission that Civil Service Tribunals be set

up, were noted. Reference was also made to the

decision in Kamal Kanti Dutta v. Union of India where

this Court had, while emphasising the need for speedy

resolution of service disputes, proposed the

establishment of Service Tribunals."

From the aforesaid observations made in the above-noted

report, the Tribunal functions as supplement to the aforesaid

powers yet, the decision or judgment of the Tribunal is amenable

to be tested, corrected and reviewed by the High Court and the

Supreme Court under Article 226/227 and 32 of the Constitution

of India. The nature of the Tribunal and its functioning leaves no

ambiguity that they decide the cause and the action of the

authorities on the well settled legal parameters and even they are

well equipped to consider the constitutional provisions including

the virus thereof. Once the power is conferred upon the Tribunal

to vary, set aside, modify and/or uphold the decision of the

authority, the power to pass an interim order is inbuilt and

inherent in it. While passing the interim order, the Tribunal

cannot assume unbrindled, indefinite and uncertain procedure

but must confine within the peripheral of the settled proposition

of law declared by the Supreme Court concerning the interim

orders. In Shiv Kumar Chadha vs. Municipal Corporation of

Delhi & Ors Civil Appeal no. 2532 of 1993 (3) SCC 161, the

Apex Court has succinctly indicated the parameters required for

passing the interim order and deprecated the mode of passing

such interim order in a cryptic manner. Any journey travelled

without recording the reason has been deprecated by the

Supreme Court in the above-noted decision. The importance of

reason has been highlighted time and again and is considered as

a heart and soul of the body of the order. The order bereft of

reason cannot be regarded as legally, sustainable order far to

speak of, no order. Though the High Court in exercise of judicial

review does not act as a court of appeal yet, it can go into the

decision making process or the thought process which forms the

basis of the interim order. Any order without any reason shall not

assist the court to understand the thought process of the learned

Judge manning the Tribunal. Interim orders are basically passed

upon satisfaction of three golden tests namely, the existence of

prima facie case, balance of convenience and inconvenience and

irreparable loss and injury. It is an ardent duty of the court or

the Tribunal while passing the interim order to make a prima

facie finding on the existence of a prima facie case and the

balance of convenience and inconvenience that would be cause to

the parties and if the order is not passed it would cause

irreparable loss and injury. We find no reason to concur with the

finding of the Tribunal that merely because the Tribunal

application has been taken out challenging the order of the

appellate authority and if the interim order is not passed it would

render it infructuous. We do not find any discussion nor a

finding returned on the existence of a prima facie case nor on the

other two parameters and, therefore, the said impugned order is

cryptic and passed in a truncated manner defying the mandate of

the Apex Court where the importance of providing the reasons

has been highlighted. Though arguments have been advanced on

the locus of the Respondent no. 1 which, in our opinion, is

essentially a question to be decided in the Tribunal application

and, therefore, we do not venture to go into such aspect at this

stage more particularly when an interim order is a subject matter

of challenge in the instant writ petition. All the points are kept

open and shall be decided by the Tribunal. Since we have found

that the impugned order is lacking reasons, the same cannot be

sustained and, therefore, is set aside. The matter is remitted to

the Tribunal with a liberty to the Respondent no. 1 to pray for

interim order and if such prayer is made, the Tribunal shall

decide the same after giving opportunity of hearing to the writ

petitioner and the other respondents therein by recording proper

reasons in the light of the observations made hereinabove. The

writ petition is, thus, disposed of.

No order as to costs.

Urgent photostat certified copies of this judgment, if applied

for, be made available to the parties subject to compliance with

requisite formalities.

         I agree.                            (Harish Tandon, J.)




(Rabindranath Samanta, J.)




Later

After delivery of the judgment in open Court, the learned

Advocate for the respondent prays for stay of the operation of this

order.

After considering the same, we do not find any ground

warranting the order of stay to be passed.

Hence, the prayer is refused.

(Harish Tandon, J.)

(Rabindranath Samanta, J.)