A Tribunal created under Article 323A or 323B of the Constitution of India is a Court of first instance and the jurisdiction of the High Court under Article 226 is ousted in respect of matters within the jurisdiction of the Tribunal. Such Tribunals can examine the vires of statutory legislation, except the vires of their own parent Act.

This is an application filed under Article 226 of the Constitution of India for a direction upon the West Bengal Land Reforms and Tenancy Tribunal to fix up an early date for hearing of the original application of the writ petitioner in the matter of Ananda Koley v. State of West Bengal & Others bearing O.A. 3598 of 2015.

2. At the very outset a preliminary objection is raised on behalf of the State respondents. It is submitted by Mr. Pranab Kumar Dutt, learned senior standing Counsel, West Bengal that the learned Tribunal has not been made a party to this proceedings. Therefore, it is not maintainable on the ground of non-joinder of the necessary party.

3. It is submitted by Mr. Dutt that according to the settled proposition of law, Writ of certiorari lies only in respect of a judicial and quasi judicial act as distinguished from administrative act. According to him, the question where in a Writ in the nature of certiorari under Article 226 of the Constitution of India, a party or parties in whose favour a Tribunal or authority had made an order, which is sought to be quashed, is/are necessary party or parties.

4. The second limb of argument of Mr. Dutt is that an allegation is raised against the learned Tribunal by rejecting the prayer for fixing an early date. Therefore, in view of the fact involved herein the Tribunal is necessary party to this writ petition.

5. Mr. Dutt relies upon the case of Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & Another reported, in AIR 1963 SC 786.

6. Mr. Saptansu Basu, learned Advocate appearing on behalf of the petitioner submits that it is the settled principles of law that the learned Tribunal is not a proper and necessary party unless allegations are made against the learned Tribunal, which need a reply from them. It is not usual for the Tribunal to be represented by a lawyer.

7. Drawing our attention towards the facts and circumstances of this case, he submits that the presence of learned Tribunal through a lawyer is not necessary in view of the facts and circumstances of the case involved in this writ petition. It is also submitted by Mr. Basu that in the instant case the Tribunal under reference is created under the provisions of West Bengal Land Reforms and Tenancy Tribunal, Act, 1997.

8. He relies on a decision of Syed Yakoob v. Radhakrishnan reported in AIR 1964 SC 477 and Sabitri Devi v. District Judge, Gorakhpur& Others, reported in AIR 1964 SC 477.

9. He further relies on AIR 1999 SC 976 (Savitri Devi v. District Judge, Gorakhpur & Others) and 2003 (2) CLT 73 in support of his above submissions. The legislature enacted the above act deriving its power from the provisions of Article 323B of the Constitution of India.

10. We have heard the learned Counsel appearing for the respective parties in respect of the above preliminary objection and we have considered the facts and circumstances of this case. The question of adding a Tribunal as a party respondent to a proceeding initiated under Article 226 or 227 of the Constitution of India praying for Writ of certiorari was not taken into consideration in the matter of Udit Narain Singh Malpaharia (supra) by the Hon'ble Supreme Court. Rather, there was no scope to consider the question of making a Tribunal a party, which has been created in exercise of the provisions of Article 323A of the Constitution of India or by virtue of legislation of the State in exercise of power conferred under Article 323B the Constitution of India.

11. It was decided in the above matter that in a Writ of certiorari no only the Tribunal or authority whose order is sought to be quashed but also, the parties in whose favour the said order is issued are necessary parties.

12. In the decision of Syed Yakoob v. Radhakrishnan reported in AIR 1964 SC 477, a Constitution Bench consisting of Five Hon'ble Judges of the Supreme Court held that unless allegations are made against a learned Tribunal created under the provisions of any statute wh