2022 (4) TMI 876 - HC - VAT and Sales Tax

Validity of orders passed - Extension of tenure of the existing Technical Member of the West Bengal Taxation Tribunal - extension until formal appointment of Technical Member by the Government - HELD THAT - It is found that no facts, legal provisions, existence of any ground for issuance of interim direction has been noted and in one sentence, without giving any further date in the matter, the stay has been granted. Though, consent of the parties has been mentioned in the impugned order but the learned Counsel for the High Court Administration was not present when the order was passed. Even otherwise, a strong submission has been raised before this Court that consent given against the provision of law is of no consequence and on the basis of such a consent, an order contrary to law could not have been passed. The issue of maintainability of writ petition itself has been raised by the appellant referring to Section 19 of the West Bengal Societies Registration Act, 1961 which provides for authorization by the governing body to the President, Secretary or any office bearer for suing on behalf of the society. It has been submitted that no such authorization was filed with the writ petition, hence, the petition itself was not maintainable. The Administrative Member of the Tribunal has continued by virtue of interim order of learned Single Judge, therefore, the orders passed by him in the meanwhile are saved from challenge on the ground of his continuance as such - Since it is pointed out that due to non-appointment of the Technical Member, the work of the Tribunal is suffering, therefore, the State Government are directed to take expeditious steps for appointment of the Technical Member in the Tribunal. Appeal disposed off.

Issues:
1. Maintainability of the appeal against the interlocutory order extending the tenure of the Technical Member of the West Bengal Taxation Tribunal.
2. Validity of the impugned order extending the tenure of the Technical Member.
3. Interpretation of relevant legal provisions regarding the appointment and tenure of Technical Members.
4. Consideration of consent in passing orders contrary to law.
5. Maintainability of the writ petition under the West Bengal Societies Registration Act, 1961.
6. Compliance with legal principles and judicial reasoning in passing interlocutory orders.

Analysis:

1. The appeal challenged the interlocutory order extending the tenure of the Technical Member of the West Bengal Taxation Tribunal. The appellant, a practicing advocate, sought leave to appeal, arguing that being a person aggrieved, he was entitled to challenge the order. The issue of maintainability was raised due to the appellant not being a party before the learned Single Judge.

2. The impugned order was challenged on various grounds, including lack of consideration of legal provisions, absence of High Court Administration during the order's passing, and the order's failure to provide any further dates or legal justifications. The consent-based extension of the Technical Member's tenure was contested as being contrary to the law.

3. The legal provisions regarding the appointment and tenure of Technical Members under the West Bengal Taxation Tribunal Act, 1987 were analyzed. It was highlighted that the Act did not allow for the continuation of appointment after the expiry of the tenure unless reappointment was made, emphasizing the importance of statutory compliance.

4. The significance of consent in passing orders contrary to law was discussed, citing legal precedents to emphasize that consent against legal provisions cannot validate orders that are not in accordance with the law. The judgment of the Hon'ble Supreme Court in a related matter was referenced to support this argument.

5. The maintainability of the writ petition under the West Bengal Societies Registration Act, 1961 was questioned, pointing out the requirement of authorization by the governing body for suing on behalf of the society. The absence of such authorization raised concerns about the petition's validity.

6. The judgment emphasized the importance of legal reasoning and the legitimacy of judicial conclusions. It highlighted the need for judicial decisions to be logical, tenable within the legal framework, and not based on misplaced sympathy or generosity. The order was set aside due to the lack of consideration of legal aspects and directed the learned Single Judge to decide the matter expeditiously in accordance with the law.

Overall, the judgment addressed various legal issues related to the extension of the Technical Member's tenure, statutory compliance, consent in legal proceedings, and the importance of maintaining the integrity of judicial reasoning and legal conclusions.

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