JUDGMENT
P.S. Mishra, J.
1. Can this Court entertain a writ application and exercise its powers under Articles 226 and 227 of the Constitution after the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1987 (Bihar Act 21 of 1987), hereinafter to be referred to as the Act, which has created the Bihar Land Reforms Tribunal and barred the jurisdiction of all courts, except the Supreme Court under Article 32 and under Article 136 of the Constitution is a question which this Court must determine before the petitioner’s case is considered by it.
2. The petitioner has questioned the validity of Sections 53(3), 34, 55 and 59 of the Act and has contended that the Tribunal constituted under Section 50 of the Act is not a real substitute of the High Court; the State Legislature has gone beyond its competence in saying that every order passed by the Tribunal shall be final and shall not be called in question in any court including the High Court under Article 226 or 227 of the Constitution and that no writ shall lie in the High Court to set aside or modify any proceeding or order taken or made by any authority, appellate Court, the Board of Revenue and the Tribunal and excluded the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 32 and Article 136 of the Constitution.
3. The Amendment Act which was published in the Bihar gazette (Extraordinary) No. 185 dt. 20-4-1987 has contemplated in Section 48 thereof the Constitution of the Tribunal under Article 323-B of the Constitution for land reforms matters. The said provision states that the authority referred to in Clause (b) of Section 2 of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, the appellate authority referred to in Section 30 thereof and the Board of Revenue referred to in Section 32 thereof and the Bihar Land Reforms Tribunal constituted under Section 50 of the Amendment Act shall be the hierarchy of Tribunals for the purpose of Sub-clause (a) of Clause (3) of Article 323-B of the Constitution for adjudication or trial of any disputes or complaints with respect to land reforms matters arising under the Act. It has then defined “Chairman” to mean ‘Chairman of Bihar Land Reforms Tribunal’ and ‘member’ to mean ‘member of the Bihar Land Reforms Tribunal’ in Section 49 and provided for the constitution of the Bihar Land Reforms Tribunal consisting of a Chairman and two other members appointed by the State Government in Section 50 thereof Section 50 states :–
“Constitution of the Bihar Land Reforms Tribunal– .
(1) the State Government shall, by notification in the official Gazette constitute for the State a Tribunal called the Bihar Land Reforms Tribunal (hereinafter referred to as the Tribunal) for the purpose of this Act.
(2) The Tribunal shall exercise the powers and functions conferred on it by or under the Act.
(3) The Tribunal shall consist of a Chairman and two other members appointed by the State Government.
(4) No person shall be qualified for appointment –
(a) as Chairman of the Tribunal unless he is or he is qualified to be appointed as the has been a Judge of a High Court.
(5) as a member of Tribunal unless he has been (i) the Secretary to Government Law Department, or the District and Sessions Judge for a period of not less than three years; or
(ii) an Officer of the Government not below the rank of Commissioner and Secretary to Government, whether in the Secretariat or, elsewhere, and who has dealt with Land Reforms measures during his service in the Government in any capacity for a period of not less than one year in the aggregate.
(5) Any vacancy in the office of the Chairman, or any member shall be filled by the Government in accordance with the provisions of this Chapter.”.
Section 51 prescribes the terms and conditions of service of Chairman and member, saying that no person shall be appointed or shall continue in the office of the Chairman if he has attained the age of sixty-five years and no person shall be appointed or shall continue in the office as the member if he has attained the age of sixty-two years. Section 52 has spelled out the powers of the Tribunal stating that the Tribunal shall have power to entertain any application against the order passed by the Board of Revenue and shall have powers vested in the Civil Court under the C.P.C., 1908 (Act V of 1908) including the power to punish for contempt of court. Section 53 states that subject to the provisions of the Act, or any rule made thereunder, the Tribunal may by order, regulate its practice and procedure and all applications filed before the Tribunal shall be in the prescribed form and shall be verified in the prescribed manner. Sub-section (3) of Section 53 states-
“Every order passed by the Tribunal shall be final and shall not be called in question in any Court including the High Court under Articles 226 and 227 of the Constitution except the Supreme Court as provided under Section 54.”
This is followed by two other provisions in Sections 54 and 55 of the Act. These provisions are worded thus : —
“54. Bar of Jurisdiction of all courts except the Supreme Court : Notwithstanding anything contained in any other law, the jurisdiction of all courts, except the jurisdiction of the Supreme Court, under Article 32 and Article 136 of the Constitution, is excluded with respect to any matter which is by or under this Act required to be decided or dealt with by any authority, appellate court, the Board of Revenue and the Tribunal.
55. Bar of writs in High Court — No writ shall lie in the High Court to set aside or modify any proceeding or order taken or made by any authority, appellate Court, the Board of Revenue and the Tribunal.”
Another provision which has been introduced, relating to the proceedings pending in the High Court, is contained in Section 59 of the Act which says-
“All cases connected with the Land Reforms dealt under this Act and pending in the High Court immediately before the date of commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Ordinance, 1986 as would have been within the jurisdiction of such Tribunal, if the cause of action on which such proceedings are based had arisen after the said date of commencement, shall stand transferred to the Tribunal with effect from the said date of the commencement.”
Reference to the Amendment Ordinance, 1986 in the said provision is relevant for the Amendment Act was preceded by the said Ordinance which contained provisions as to the bar of jurisdiction of all courts, bar of writs in the High Court and that every order passed by the Tribunal shall be final and shall not be called in question in any court including the High Court under Article 226 or 227 of the Constitution except the Supreme Court as provided under Section 54.
4. The two provisions introduced in the Constitution by the Constitution (Forty-second Amendment) Act, 1976 are placed in Part XIV A of the Constitution and are numbered as Article 323-A and Article 323-B. Article 323-A is a provision for constituting Administrative Tribunals by law made by the Parliament for the adjudication or trial of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. It has a provision in its Clause (2) which says-
“A law made under Clause (1) may –
XX XX XX XX
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in Clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
xx xx xX”
Article 332-B is a provision for Tribunals for other matters which are enumerated in Clause 2 thereof. It states that the appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in Clause (2) with respect to which such legislature has power to make laws. Matters enumerated in Clause (2) include in Sub-clause (d) land reforms by way of acquisition by the State of any estate as defined in Article 31-A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other law. In its Clause (3) there is a provision similar to one in Clause (2) of Article 323A which says-
“A law made under Clause (1) may-
(a) provide for the establishment of a hierarchy of tribunals;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunal
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to all or any of the matters falling within the jurisdiction of the said tribunals.
(e) provide for the transfer to each such tribunal of any cases pending before any Court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate Legislature may deem necessary for the effective functioning of and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.”
Clause (4) of the said Articles says-
“The provisions of this article shall have effect notwithstanding anything in any other provisions of this Constitution or in any other law for the time being in force.”
In the explanation introduced in Part XIV-A of the Constitution, it is said that ‘appropriate Legislature’ in Article 332-B in relation to any matter means ‘Parliament’ or as the case may be ‘a State Legislature competent to make law with respect to such matters in accordance with the provisions of Part XI.
5. In S. P. Sampath Kumar v. Union of India, 1987 BBCJ (SC) 90 : (AIR 1987 SC 386) the Constitution Bench of the Supreme Court has considered the vires of the Administrative Tribunals Act 1985 framed within the ambit of Article 323-A of the Constitution. The learned Attorney general of behalf of the Central Government assured the court that early steps would be taken to amend the law so as to save the jurisdiction under Article 32, remove other minor anomalies and setup a bench of the Tribunal at the seat of every High Court, still the counsel appearing for different parties besides raising other questions also contended-
“Judicial review is a fundamental aspect of the basic structure of our Constitution and bar of the jurisdiction of the High Court under Articles 226 and 227 as contained in Section 28 of the Act cannot be sustained;
(2) Even if the bar of jurisdiction is upheld, the Tribunal being a substitute of the High Court, its constitution and setup should be such that it would in fact function as such substitute and become an institution in which the parties could repose faith and trust.”
6. Before the Constitution Bench, reliance was placed on the judgment of Bhagwati, J. in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, where it is said-
“The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that, however, effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the Legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.
So also if a constitutional amendment is made which has the effect of taking away the power of judicial review……”
Referring to the debate of the Constituent Assembly by Dr. Ambedkar on Article 32 therein as the ‘soul’ and ‘heart’ of the Constitution, Ranganath Mishra, J. speaking for the Court has said-
“……it is in recognition of this position that though Article 323-A(2)(d) authorised exclusion of jurisdiction under Article 32 and the original Act had in Section 28 provided for it, by amendment, jurisdiction under Article 32 has been left untouched. The Act thus saves jurisdiction of this Court both under Article 32 in respect of original proceedings as also under Article 136 for entertaining appeals against decisions of the Tribunal on grant of Special Leave. Judicial review by the apex court has been left intact.”
This indeed has been preserved and the Amendment Act in question has not excluded the jurisdiction of the Supreme Court either under Article 32 of the Constitution or Article 136 thereof. Judicial review by the apex court has been left intact. The Tribunal constituted by the State Legislature for land reforms matters, however, has been created as the institutional machanism for judicial review in place of the High Court exercising power to issue writs and of superintendence over the authorities and courts including the Board of Revenue under Section 32 of the Act.
7. In Sampath’s case (AIR 1987 SC 386) (supra), however, the Court considered, whether bar of jurisdiction under Articles 226 and 227 of the Constitution affects the basic structural provisions for judicial review or not. Speaking for the Court, Ranganath Mishra, J. has said-
“……….The right to move the High Court in its writ jurisdiction unlike the one under Article 32, is not a fundamental right. Yet, the High Courts, as the working experience of three and a half decades shows, how in exercise of the power of judicial review played a definite and positive role in the matter of preservation of fundamental and other rights and in keeping administrative action under reasonable control. In these thirtysix years following the enforcement of the Constitution not only has India’s population been more than doubled but also the number of litigations before the Courts including the High Courts has greatly increased………. Then came the Forty-Second Amendment of the Constitution bringing in Article 323-A which authorised Parliament to provide by law “for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government.” As already stated this Article envisaged exclusion of the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in Clause (1) Though the Constitution now contained the enabling power, no immediate steps were taken to set up any Tribunal as contemplated by Article 323-A………”
8. After giving lucid deliberation to the reasons that prompted the Parliament to amend the Constitution and introduce Article 323-A therein, Ranganath Mishra, J. has observed-
“……….We have already seen that judicial review by this Court is left wholly unaffected and thus there is a forum where matters of importance and grave injustice can be brought for determination or rectification. Thus exclusion of the jurisdiction of the High court does not totally bar judicial review. This Court in Minerva Mills, AIR 1980 SC 1789 (case) did point out that “effective alternative institutional mechanisms or arrangements for judicial review” can be made by Parliament. Thus it is possible to set up an alternative institution in place of the High Court for providing judicial review……”
9. Bhagwati, C.J. who has supplemented the reasons assigned by Ranganath Mishra, J. has said-
“It is now well-settled as a result of the decision of this Court in Minerva Mills Ltd. v. Union of India, (1981) 1 SCR 206 : (AIR 1980 SC 1789 that judicial review is a basic essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate it or take it away……”
He has chosen to quote a passage from Minerva Mills case (supra) which contained words of far reaching effects. In his own words in Minerva Mills case-
“I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution……..”
His quotation has covered the words already quoted in this judgment and then included-
“………if such amendment is violative of the basic structure and, therefore, outside the amendatory power pf Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution……”
He has left no doubt as to the law on the subject by emphasising that his words constituted a minority judgment in Minverva Mills Ltd. case-
“……….but so far as this aspect is concerned, the majority Judges also took the same view and held that judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution and it is equally clear from the same decision that though judicial review cannot be altogether abrogated by Parliament by amending the Constitution in exercise of its consistent power Parliament can certainly, without in any way violating the basic structure doctrine, set up effective alternative institutional mechanisms or arrangements for judicial review. The basic and essential feature of the judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided-it is not less efficacious than the High Court. Then, instead of the High Court, it would be another institutional mechanism or authority which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the -Rule of Law. Therefore, if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, it would not be violative of the basic structure doctrine, so long as the essential condition is fulfilled, namely, that the alternative institutional mechanism or authority set up by the Parliamentary amendment is not less effective than the High Court.”
Since Article 323-A authorised the Parliament
to make law and, thus, the constitutional
amendment postulated creation of alternative
institutional mechanism for judicial review,
in Sampath’s case (AIR 1987 SC 386) (supra)
the Supreme Court noticed no constitutional
infirmity in the provisions of the
Administrative Tribunals Act, 1985 which
Parliament made and proceeded to examine,
whether the mechanism provided therein was
an effective alternative institutional
mechanism or arrangement for judicial review
or not. It then considered various provisions;
of the Administrative Tribunals Act and found
that certain amendments were needed to
make the Tribunal equally effective,
efficacious and independent as the High Court
is as the authority empowered by the
Constitution to issue writs and exercise
superintendence over the courts and the
Tribunals.
10. I shall advert to this aspect of the matter a bit later, because a delicate question has arisen which, for obvious reasons, did not fall for a decision in Sampath Kumar’s case (AIR 1987 SC 386) (supra) which this Court must decide before any other question.
11. In Umaji Keshao Meshram v. Smt. Radhikabai, AIR 1986 SC 1272 Clause 15 of the Letters Patent of the Chartered High Courts fell for consideration. In his separate judgment, O. Chinnappa Reddy, J. has given a learned exposition to the development of law, creation of courts and the powers conferred upon the High Court by Articles 226 and 227 of the Constitution. Naturally a reference to Article 225 of the Constitution became necessary which says that subject to the provisions of the Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that Legislature by the Constitution, the jurisdiction of and the law administered in any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of the courts and to regulate sittings of Courts and all of members thereof sitting alone or in the Division Courts shall be the same as immediately before the commencement of the Constitution. As the Letters Patent of the chartered High Courts, Letters Patent of this Court also provides for the powers that the| Judges of this court exercise either sitting alone or in Division Courts. O. Chinnappa, Reddy, J. has said-
“The fact that Article 225 makes the jurisdiction and powers of the existing High Courts subject to a law of the appropriate Legislature does not mean that the jurisdiction under Article 226 or 227 cannot come within the scope of Article 225. A law made by an appropriate Legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Articles 226 and 227 and 228 are not made subject to any law made by Parliament or the State Legislatures, the powers conferred by these three Articles cannot be limited, abridged or taken away by any Legislature. They can only be affected by amending the Constitution. All that the qualifying phrase in Article 225 means is that if a particular jurisdiction of an existing High Court is one conferred by ordinary legislation, it can be affected, either by way of abridgment or enlargement, by a law made by the appropriate Legislature and if it is one conferred by the Constitution, it can only be so affected by a Constitutional amendment……”
A Division Bench of the Madhya Pradesh High Court in Jagdishlal Dhody v. State of Madhya Pradesh, AIR 1988 Madh Pra 4 was required to consider, whether the power under Article 227 of the Constitution can be curtailed or fettered by the rules framed under Article 225 of the Constitution or not. It has in its judgment considered the amplitude of the power of the High Courts under Article 227 and competence of the State Legislature to curtail or fetter the said power. The Court has discussed various provisions of the Constitution and has concluded-
“The upshot of the above discussion in the context of the legislative history of Article 227 is that the power of “superintendence” of a High Court, and for that matter of any Judge of the High Court is so deeply entrenched constitutionally in the legal system of the country that it has acquired the character of inherent power of the High Court exercisable by any Judge of the High Court for discharging his judicial duties in accordance with his constitutional oath. The ambit of the power and jurisdiction of a Judge of a High Court under Article 227(1) constitutionally vested in him to act suo motu under Article 227 cannot, therefore, be curtailed in any manner : neither by any law enacted by Legislature, nor by Rules framed even under Article 225 of the Constitution. I am inclined to agree with the view expressed by Falshaw, J. in Shyam Krishen v. State of Punjab, AIR 1952 Punj 70, that Article 226 is a self contained Code, and would add further that Article 227 shares the same character. The question whether the power and jurisdiction vested in a High Court under Articles 226 and 227 can be whittled down by the Industrial Disputes Act was considered by the Apex Court in State of Haryana v. Haryana Co-operative Transport, AIR 1977 SC 237, Answering the question in the negative, it was held, “to strike down usurpation of Office is a function and duty of High courts in exercise of their constitutional powers under Articles 226 and 227″. To the same effect is the decision in Chandrashekar Singh v. Siya Ram Singh, AIR 1979 SC 1, where in it was held that powers of the High Court under Article 227 cannot be curtailed under Section 146 of the Code of Criminal Procedure, P. N. Bhagwati, J. as his Lordship then was, speaking for the Division Bench of Gujarat High Court in S. J. Jhala v. Chief Electoral Officer, AIR 1969 Guj 292, expressed the view that the constitutional remedy envisaged under Articles 226 and 227 cannot be tinkered in any manner by any infra-constitutional enactment”.
This conclusion has been arrived at after quoting in extenso from the judgment of the Supreme Court in Umaji’s case (AIR 1986 SC 1272) (supra), which has in turn referred to the reports which were considered by the Constituent Assembly, Para 84 of the report, as quoted in the said judgment, is to the effect that the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate Legislature put these articles beyond the legislative reach of the Parliament and the State Legislature with the result that the jurisdiction conferred by these articles can only be curtailed or excluded with respect to any matter by a constitutional amendment and not by an ordinary legislation, arid para 90 which says-
“…….A law made by an appropriate Legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Articles 226, 227 and 228 are not made subject to any law made by Parliament or the State Legislature, the powers conferred by these three Articles cannot be limited, abridged or taken away by any Legislature. They can only be affected by amending the Constitution. All that the qualifying phrase in Article 225 means is that if a particular jurisdiction of an existing High Court is one conferred by ordinary legislation, it can be affected, either by way of abridgement or enlargement, by a law made by the appropriate Legislature and if it is one conferred by the Constitution, it can only be so affected by a Constitutional amendment…..”
12. It is indeed necessary to take notice of the constituent power of the Parliament preserved by the Article 368 of the Constitution. It provides that nowithstanding anything in the Constitution, Parliament may in exercise of its constitutent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in the said Article. Chapter V of Part VI of the Constitution which includes Article 226, 227 and 228 is mentioned in the proviso to Clause (2) of Article 368 of the Constitution providing therein that an amendment of the Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be required to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision of such amendment is presented to the President for assent. Besides the constituent power ordinary law making power of the parliament and the State Legislatures are spelled out in chapter I of Part XI of the Constitution. Any amendment to the provisions in chapter I of Part XI of the Constitution is again made subject to a constitutional amendment Act and subject to ratification by the Legislatures of not less than one-half of the States by resolution to that affect passed by those Legislatures. Article 246 is a storehouse of the powers of the Legislatures of states, which says –
“(1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (In this Constitution referred to as the “Union List)
(2) Notwithstanding anything in Clause (3), Parliament, and, subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).
(3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the State List”).
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List”.
This confines the law making power of the State Legislature to the matters enumerated in the State List. Item 46 of the State List is almost the same as item 95 of the Union List with respect to any of the matters which fall in the State List, in the case of a State Legislature and Union List in the case of Parliament. Item 46 of the State list is worded as follows : —
“Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List”
Item 95 of the Union List is as follows : —
“Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; admiralty
jurisdiction”.
Besides these, items 78 and 79 of the Union List are also relevant. They provide as follows :–
“78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts.
79. Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union territory”.
Item 46 of the State List and item 95 of the Union List evidently do not make any State Legislature or Parliament competent to exclude the jurisdiction of a High Court. Items 78 and 79 of the Union List give to the Parliament power to provide for constitution, organisation and extension of jurisdiction of a High Court to and exclusion of its jurisdiction from any Union territory, but not otherwise. Does it not then mean that in delivering to the State Legislature power to make laws, the Constitution has withheld any power to either exclude or create jurisdiction in the High Courts and make laws with respect to the matters not falling in the State List?
13. Article 323-B has in the opening words put emphasis upon the legislative competence of the Legislature concerned in making laws in the matters referred to in Clause (2) thereof. It has said that the appropriate Legislature may by law provide for the adjudication or trial by Tribunals of any disputes, complaints or offences with respect to all or any of the matters specified in Clause (2), with respect to which such Legislature has power to make laws. When it has in Clause (3) provided for the establishment of a hierarchy of the Tribunals and excluding jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136 of the Constitution with respect to all or any of the matters falling within the jurisdiction of the said Tribunals, it has created in the State Legislature a certain power which it cannot possess, unless there is a limitation put to its interpretation to confine to the powers which its laws may create in the courts including the High Courts and no more for reading such power to exclude the jurisdiction will mean conferring powers upon the State Legislature which it does not have in Article 246 of the Constitution.
14. In Minerva Mills case (AIR 1980 SC 1789) (supra) it has been pointed out that it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile, if by a constitutional amendment the power of judicial review is taken away and it is provided that validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the Legislature or is violative of any fundamental right.
15. In Sampath Kumar’s case (AIR 1987 SC 386) (supra) also it has been emphasised that judicial review cannot be altogether abrogated by parliament by amending the Constitution in exercise of its constituent power. It would be within the competence of the Parliament to amend the Constitution, so as to substitute in place of the High Court another institution or machanism or arrangement of judicial review, provided it is not less efficacious than the High Court and in that context a law made by Parliament under Clause (1), of Article 323-A which replaced High Court with respect to the disputes or complaints referred to therein, was held valid, since the said Article specifically authorised the Parliament to do it. What remained to be determined in the said case was, whether constitution amendment, like one in Article 323-B(3) providing for the exclusion of the jurisdiction of all courts intended to confer upon the State Legislature power to amend the Constitution and bar jurisdiction of the High Court under Articles 226 and 227 of the Constitution while making laws with respect to the matters falling within its competence or not. This has to be considered keeping in mind the language in Article 368 of the Constitution which has got overriding effect upon anything in the Constitution which undoubtedly means notwithstanding anything in Article 323-B of the Constitution. This has to be applied even on the face of the language in Clause (4) of Article 323-B, which says that the provisions of the said Article shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force. Although Article 323-B is a provision introduced by the parliament in exercise of its constituent power and it in terms has provided for excluding the jurisdiction of all courts in Clause (3) and in Clause (4) such words as noticed are used, they must mean to vest the State Legislature with such law making power only, which is within its competence and not the constituent power which is preserved for the Parliament by Article-368 of the Constitution. Explanation in Article 323-B also gives some support to the view while making law with respect to matters like, Land Reforms, as stated in Article 323-B(2)(d), the State Legislature can make laws in accordance with the provisions of part XI of the Constitution which part in Article 246 says that the Legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in list II in the Seventh Schedule. List II in the Seventh Schedule gives no power to the State Legislature to bar or abrogate the jurisdiction of the High Court in any manner to the extent such jurisdiction is preserved in it by Articles 226 and 227 of the Constitution. The exclusion of the jurisdiction of the High Court in Articles 226 and 227 is beyond the competence of the State Legislature.
16. In Sampath Kumar’s case (AIR 1987 SC 386) (supra) the Supreme Court has already held that power under Article 32 of the Constitution is a basic and essential feature of the Constitution and the same cannot be abrogated even by exercise of constituent power by the Parliament. It has also left no doubt to the law that excluding the jurisdiction of the High court under Articles 226 and 227 of the Constitution is permissible only by the Parliament exercising its constituent power. When such constituent power is exercised in providing for exclusion of the jurisdiction of the High Court by the Parliament in Article 323-A, one may find no reason to notice any conflict with the provision in Article 368 of the Constitution, as the parliament combines the constituent power with other law making powers in respect of the items enumerated in the Union List, wherein constitution, organisation including vacations of the High Courts in item 78 is available for making laws but the same cannot be said about the State Legislature, which has not been given any item in the State List to cover the jurisdiction of the High Court in Article 226 and 227 of the Constitution.
17. It is possible for the State Legislature to travel to the items in the State List and the concurrent List in the absence of a Law made by the Parliament to exclude the jurisdiction of the High Courts also if such jurisdiction is conferred upon it by a law providing for the appellate or revisional jurisdiction conferred upon it. Jurisdiction under Section 115 of the C.P.C., for example, cannot be withdrawn by the State Legislature as item 13 of the concurrent List confers such powers to it. But Item 11-A introduced by Forty Second Constitution amendment Act, 1976 in the Concurrent List, while providing for law making powers of the State Legislatures and the Parliament states about administration of justice; constitution and organisation of all courts and also adds “except the Supreme Court and the High Courts. “Constitutional law, according to Dicey includes –
“all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State”. In Umaji’s case (AIR 1986 SC 1272) (supra) definition of the term “Constitution” has been quoted from Jowitt’s ‘Dictionary of English Law’ (second edition page 430) to mean” any regular form or system of Government” and term “constitutional law” as all rules which directly or indirectly affect the distribution or the exercise of the sovereign power the law relating to the legislature, executive and the judiciary.”
18. In Sri Shankari Prasad Singh Deo v. Union of India and State of Bihar, AIR 1951 SC 458 it has been pointed out –
“Although ‘law’, must ordinarily include constitutional law, there is a dear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Dicey defines constitutional law as including ‘all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State’, It is thus mainly concerned with the creation of the three great organs of the State, the executive, the legislature and the judiciary, the distribution of governmental power among them and the definition of their mutual relation”.
19. Answering a question, why it was thought necessary to incorporate in the Constitution the jurisdiction and powers conferred by Articles 226, 227 and 228 the Supreme Court in “Umaji’s case (AIR 1986 SC 1272) (supra) has said.
“……The answer is obvious. Provisions similar to Articles 227 and 228 already existed in a Constitution Act, namely in Sections 224 and 225 of the Government of India Act, 1935. The said Sections 224 and 225 were not made subject to the provisions of Part IX of the said Act and of any Order in Council made under the said Act or any other Act or to the provisions of any Act of the appropriate Legislature as the jurisdiction of the existing High Courts was by Section 223 of the said Act. These sections could, therefore, have” been amended only by a legislation made by the British Parliament by amending the Government of India Act, 1935. The Government of India Act, 1935 was repealed by Article 395 of the Constitution. It was, therefore, necessary to reenact these provisions and the only way in which it could be done was to insert them in the Constitution because were these powers to be treated on the same footing as the other powers and jurisdiction of the existing High Courts, they would have become subject to laws made by the appropriate Legislature. So far as Article 226 is concerned, the power to issue prerogative, writs was possessed by the three chartered High Courts only. As the Constitution makers intended to confer the enlarged power under Article 226 upon all High Courts, and not merely the three Chartered High Courts, this power had to be embodied in an Article of the Constitution. It should also be borne in mind that the jurisdiction under Articles 226, 227 and 228 was intended to be conferred upon all High Courts; not only the existing High Courts but also any other High Court as and when it came to be established in the future. Further, the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate Legislature put these Articles beyond the legislative reach of Parliament and the State Legislatures with the result that the jurisdiction conferred by these Articles can only be curtailed or excluded with respect to any matter by a constitutional amendment and not by ordinary legislation.”
20. Will it then be not a case of making the Legislature and the executive of a State arbiter of the issue what powers the highest judiciary of the State may exercise and do so exercising its ordinary legislative power and not constituent power? If such constituent powers is deemed to be conferred upon the State Legislature by Article 323-B, will it not make Articles 226, 227 and 228 in the Constitution subject to any law to be made by the appropriate Legislature? These Articles 226, 227 which were put beyond the legislative reach of Parliament and the State Legislatures with the result that the jurisdiction conferred by these Articles could only be curtailed or excluded with respect to any matter by a constitutional amendment and not by ordinary legislation, shall, thus, be treated as subject to the ordinary law making power of the State Legislature.
21. The more I ponder, the more I am convinced that Article 323-B cannot create such constituent power in the State Legislatures, the High Court cannot be denied its constitutional authority to issue writs and to exercise superintendence by a law by the State Legislature. The Parliament alone, by providing for an effective institutional mechanism do it.
22. Tribunal set up as referred to in Section 48 is claimed to be one under Article 323-B of the Constitution for Land Reforms matters. Article 323-B has authorised the State Legislature to make laws creating hierarchy of Tribunals for adjudication or trial of any disputes or complaints with respect to Land Reforms matters. Even if the State Legislature is found competent to make provision for ousting the jurisdiction of the High Court under Articles 226 and 227 of the Constitution, it must create a mechanism truly effective and efficacious as the High Court is exercising its power under Articles 226 and 227 of the Constitution.
23. In Sampath’s case (AIR 1987 SC 386) (supra) it has been pointed out that the mechanism provided for judicial review should be a real substitute of a High Court not only in form and de jure but in content and de facto. To stand to the standard of a High Court as the unfailing protector of the civil rights and the liberties, person, property and honour of the litigants, the substituted institution has to be a worthy successor of the High Court in all respects, both in regard to the mode of appointment of the Chairman, Vice-Chairman and members of the Administrative Tribunal and selection of personnel to man the posts to constitute the Tribunal in every respect equal to the High Court. Both Ranganath Mishra, J. and Bhagwati, C.J. in their respective but in concurrent judgments have pointed out that personnel constituting the Tribunal must be those, who are found to be of proven merit and are proper and competent people to man high offices of trust and help to build up reputations. That would in no way give opportunity to raise fingers to the establishment of the Tribunal. It is a solace of a sort that Section 50(4) of the Act states that no person shall be qualified for appointment as Chairman of the Tribunal unless he is or he is qualified to be appointed as or he has been a Judge of a High Court. But so far as members of the Tribunal are concerned, they do not qualify to constitute a Bench with the Chairman. It provides that a person to be appointed as a Member of the Tribunal has to be a Secretary to Government, Law Department or the District and Sessions Judge fora period for not less than three years or an officer of the Government not below he rank of commissioner and Secretary to Government, whether in the Secretariat or elsewhere, and who has dealt with Land Reforms measures during his service in the Government in any capacity for a period of not less than one year in the aggregate. Such qualifications, to sit in the Tribunal which shall provide the alternative forum to the High Court, are insufficient. Such members may not be inefficient, yet they shall not inspire the same confidence as a Judge of the High Court.
24. Selection, however, of the Chairman and the members is entirely in the discretion of the State Government. There is no requirement of any consultation much less consultation with a person or body as competent and independent as the Chief Justice of the High Court and the Chief Justice of India in the matter of appointment of a Judge of a High Court.
25. In K. Nageswara Rao v. Union of India, 1987 Lab IC 1802, the constitution of the Andhra Predesh Administrative Tribunal by Presidential order issued under Article 371-D of the Constitution fell for consideration. Observation of Bhagwati, C.J. in Sampath’s case( AIR 1987 SC 386) (supra),
……….It is necessary that those who adjudicate upon these questions should have same modicum of legal training and judicial experience……..”
was applied and the Bench deciding the case found it difficult to sustain the constitution of a Bench in which the qualities required of a Judge and a member of the Tribunal were found vastly different. The Bench also took notice of the mode of appointment and the tenure of service and found it not possible to accept that a Tribunal so constituted could give as effective and efficacious remedy to the litigants as the High Court could under Articles 226 and 227 of the Constitution.
26. Several other cases come to mind, including one again decided by the Andhra Pradesh High Court in Govt. of India v. National Tobacco Co., AIR 1977 Andh Pra 250 (FB). I need not, however, go to case law to find that Sub-section(3) of Section 50 of the Act alone is enough to destroy altogether the quality and independence of the Tribunal, because the State Government has been conferred unfettered discretion to select the Chairman and Members of the Tribunal.
27. An affidavit has been filed on behalf of the State, in which it has been asserted that the Chairman of the Tribunal has been appointed by the State Government after consulting the Chief Justice of the High Court. Such was the grace shown by the State Government in selecting the Chairman of the Tribunal. The incumbent was a sitting Judge of the High Court when his name was recommended and has since retired. His qualities as a Judge of exemplary courage, impartiality and quality are widely acknowledged, but with his selection the process of selecting the Chairman shall not come to an end. The law as it exists gives to the State Government discretion to select any person as the Chairman who is qualified to be appointed as a Judge of the High Court, and the State Government alone shall become the authority to decide who is fit to be appointed as a Judge of the High Court. The Supreme Court’s concern, to ensure independence of the Administrative Tribunal constituted under the Administrative Tribunals Act, is express in its recommending, and the Union of India accepting the rule that the Chairman, Vice-Chairman and the Members shall be appointed in consultation with a High powered Body, like the Chief Justice of India or a committee of the Judges of the Supreme Court. The Amendment Act, however, makes no provision for any consultation whatsoever. Even on what has been stated on behalf of the State, except the Chairman no member has been appointed in consultation with the Chief Justice of the High Court. The present Tribunal in no way can be said to be an independent authority which can stand to protect the interests of the litigants or inspire confidence and show independence as the High Court does. The Tribunal in its very Constitution is an authority subject to this Court’s jurisdiction under Articles 226 and 227 of the Constitution.
28. Yet another aspect of the matter examined in the context of the scheme of the law creating the Tribunal goes to a long extent against the validity of the provisions in Sections 53(3), 54, 55 and 59 of the Act. Sections 52 and 58 of the Act state the powers of the Tribunal, providing therein that the Tribunal shall have power to entertain any application against the order passed by the Board of Revenue and shall have powers vested in the civil court under the C.P.C., 1908, including the power to punish for contempt of court and the Tribunal may, of its own motion or on an application, call for and examine any record of any proceeding disposed of by a Collector, Appellate Authority and the Board of Revenue under the Act to satisfy itself as to the regularity of such proceeding or the correctness or legality or propriety of any decision passed or order made therein and if in any case it appears to the Tribunal that any such decision or order should be modified, annulled or remitted for re-consideration, it may pass order accordingly. How then the Tribunal shall have the power similar to one provided in Articles 226 and 227. Powers of this Court in various provisions of the C.P.C. are not comparable with the power exercised by it under Articles 226 and 227 of the Constitution. Tribunal’s power to call for and examine any record of any proceeding disposed by the Collector, the appellate authority and the Board of Revenue to satisfy itself as to the regularity of such proceeding, correctness, legality or propriety of any decision made or order passed is akin to the revisional power exercised by this Court, in civil proceedings in accordance with the provisions in the Code of Civil Procedure or this Court’s revisional power in a criminal proceeding or order in a criminal case in accordance with the provisions in the Code of Criminal Procedure. Powers conferred upon the Tribunal by Sections 52 and 58 of the Act do not make it equal to the High Court for exercising constitutional powers conferred upon it by Articles 226 and 227 of the Constitution. Tribunal so constituted, thus, is not an effective alternative machanism or arrangement for judicial review to replace the High Court.
29. This Court has got no desire to load itself with the cases and creation of an alternative institutional mechanism by law made by the competent Legislature shall be welcome. As the sentinel of the rights and liberties of the people and the State’s independent organ, this Court has to guard against such rules of law which directly or indirectly affect the distribution or exercise of the sovereign power which it is duty bound to do. It must ensure that the institutional function of the judiciary is not made illusory, its independence and status is not impaired, no one is allowed to subvert the demarcation between the three organs of the State, no one outsteps the constitutional limitations. Like the British Parliament our Parliament is a sovereign and supreme Legislative and Constituent body. It can make laws affecting the three great organs of the State, the Executive, the Legislatures and the Judiciary.
It can exercise its constituent power and redistribute governmental power among the Legislature, the Executive and the Judiciary and re-determine their mutual relation. It is indeed necessary however, to see that even the constituent power is not abused and if it is assumed as the State Legislature has assumed that power to amend the Constitution by prescribing for an alternative authority and excluding the jurisdiction of the High Court under Articles 226 and 227 of the Constitution has been conferred upon it by Article 323-B of the Constitution, Article 323-B itself shall run the risk of being ultra vires Article 368 of the Constitution.
30. I have given, therefore, such meaning to Article 323-B which in the context of the power of the Legislature of the State to legislate is reasonable and understand that the Parliament in making Article 323-B as a part of the Constitution did not intend to enlarge the law making power of the State Legislature akin to its constituent power. The provisions in Sections 53(3), 54, 55 and 59 which evidently affect the constitutional authority of this Court, are thus beyond the legislative competence of the State Legislature. Also for the reasons that the Tribunal constituted under Section 58 in accordance with the provisions in Section 50 of the Act is not an effective alternative institutional mechanism to the High Court and that its powers are limited to the powers exercised by it in its capacity as the appellate or the revisional court and not as the Court exercising powers under Articles 226 and 227 of the Constitution, Articles 53{3), 54, 55 and 59 of the Act are ultra vires.
31. A writ application, under Article 226 or 227 of the Constitution shall be maintainable, notwithstanding the creation of the Tribunal under Article 323-B of the Constitution against the order of the authorities referred to in Clause (b) of Section 2, appellate authority referred to in Section 30, the Board of Revenue referred to in Section 32 and the Bihar Land Reforms Tribunal constituted under Section 50 of the Bihar Land Reforms (Fixation of Ceiling area and Acquisition of Surplus Land) Act, 1961 as amended by Bihar Act 21 of 1987.
32. Although an application challenging any order or proceeding before or of these authorities is maintainable, it does not mean that this Court shall entertain an application without insisting that the petitioner should exhaust the remedy under Section 52 of the Act. This Court has always maintained that it should desist from entertaining any application under Articles 226 or 227 of the Constitution of India until remedy under the Act is exhausted and has made exceptions in cases, where the impugned orders passed by the authority concerned are without jurisdiction or made in violation of the principle of natural justice. This self imposed restriction shall guide this Court in its exercising powers under Articles 226 and 227 of the Constitution.
33. The petitioner shall be well advised to move the Tribunal against the order of the Board of Revenue before he comes to this court, since the Tribunal has been vested with the power to modify, annul, reverse, or remit for re-consideration the order passed by the Collector, the appellate authority and the Board of Revenue. Since the petitioner has not exhausted the alternative remedy before the Tribunal, this application is dismissed. The petitioner, however, shall be at liberty to move this Court, if he is aggrieved by the order passed by the Tribunal.