9911796707
TMI Blog2017 (12) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... is as regards challenge to the statutory provisions. The second part is as regards issues of infrastructure provided to the said Tribunal. Though there are no specific prayers made in the petition as far as the infrastructure is concerned, the orders passed by this Court from time to time show that the parties were put to notice that various issues concerning infrastructure provided to the said Tribunal are subject matter of the controversy and the said issues have been dealt with by this Court. 2. The learned counsel appearing for the petitioners has pointed out that almost all issues concerning infrastructure have been taken care of. Most of the issues concerning infrastructure of the Courts and Tribunals have been settled by the judgment and order dated 5th May 2017 of this Court in PIL No.156/2011 (Mumbai Grahak Panchayat v. State of Maharashtra and others) and other connected matters. However, we propose to issue certain directions while disposing of the petitions in terms of the said judgment dated 5th May 2017. 3. Now, we turn to the first part of the controversy. Under the Bombay Sales Tax Act, 1989 (for short "the said Act"), Section 21 of the said Act provided for cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 6 reads thus: "R.6. Qualifications of members of Tribunal and term of office. (1) Every member of the Tribunal shall be a person who (a) is or has been a Judge of the High Court, or (a1) is or has been a District Judge, or (b) is qualified for appointment as a District Judge, and has held judicial office for not less than ten years, or (c) is a Chartered Accountant and has practised as such for not less than six years, or (d) not being a person described in clause (c), has in the opinion of the State Government, adequate knowledge and experience in Accounting, or (e) has, in the opinion of the State Government, special knowledge of, or experience in commerce or industry, or (f) has for a continuous period of not less than three years held an office, not below the rank of Deputy Commissioner of Sales Tax, in the Sales Tax Department of the State Government: Provided that, a person appointed as a member of the Tribunal under clause (f) shall not be eligible for further employment in the Sales Tax Department, after he ceases to hold office as a member of the Tribunal. (2) The appointment of a member of the Tribunal may be terminated before the expiry of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf and such point or points shall be decided according to the majority of the members of the Tribunal who heard the case including those who first heard it. (7) During the course of any proceedings, if a Bench is of the opinion that any earlier decision of any Bench on any point or issue requires reconsideration, or where such Bench is inclined to take a decision on any point or issue different than the decision earlier taken by any Bench, then such Bench shall refer the point or the issue to the President for formation of a larger Bench. The president shall thereupon form a larger Bench of such members of the Tribunal as he may determine. Such larger Bench shall, as far as practicable, be presided over by the President. The point or the issue shall be decided according to the decision of the majority of the members constituting such larger Bench. Where any member including the President is sitting singly he may in similar circumstances refer the matter to the President for formation of a larger Bench. (8) The Tribunal shall have power to award costs after giving the dealer or person, as the case may be, a reasonable opportunity of being heard, and the amount of such costs shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f mind or of body, or any other reason. (4) A Member of the Tribunal shall, on the expiry of his term of office be eligible for reappointment. (5) A Member of the Tribunal may, at any time, by writing under his hand addressed to the State Government, resign his office, and his resignation shall take effect from the date on which it is accepted. 4. The first challenge in this petition is to the constitutional validity of Section 11 of the VAT Act and Rule 6 of the VAT Rules. Another challenge incorporated in the petition by way of amendment is to the Government Resolution dated 2nd June 1973 issued by the Finance Department, Government of Maharashtra. The said Government Resolution deals with the appointment of Deputy Commissioners of Sales Tax as Members of the Tribunal. The said Government Resolution provides that retired Deputy Commissioner of Sales Tax should not be considered for appointment on the Tribunal. It provides that the selection of the Members of the Tribunal should be entrusted to a High Power Selection Board with the Chief Secretary as Chairman and the Secretary of Law and Judiciary Department and the Secretary of Finance Department as its members. 5. As fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for being appointed as a Member of the Tribunal. However, explanation of to subrule (1) lays down that even the service as a Deputy Commissioner for three years before the appointed date shall be considered. 8. Inviting our attention to the provisions of subsection (5) of Section 11 of the VAT Act, he pointed out that the functions of the Tribunal are required to be discharged by the Members sitting either singly or in Benches of two or more Members, as may be determined by the President. He submitted that neither in the VAT Act nor in the VAT Rules there is a provision that whenever a Bench of two or more is constituted, the same shall be headed by a judicial Member possessing qualification laid down in clauses (a) or (b) or (c) of subrule (1) of Rule 6. He submitted that in absence of any such provision, even a person who is holding the office as a Joint Commissioner of Sales Tax can be allowed to head the Bench though the other Member may be a former Judge of the High Court or a former District Judge. There is no provision which ensures that only a judicial Member sits singly and not an Administrative Member. He submitted that the act of making a provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed. He urged that in view of the statements made in the affidavit of Shri Rajendra D. Bhagat, no interference is called for. 11. We have considered the submissions. Before we deal with the decisions. Section 11 of the VAT Act provides that the power to appoint all the Members of the Tribunal is vested in the State Government. Subsection (2) of Section 11 provides that the State Government shall appoint one of the Members of the Tribunal to be the President thereof on the basis of seniority in judicial service. Though Section 11 does not specifically provide for appointment of Judicial or Administrative/Technical Members, the very fact that subsection (2) refers to seniority of Members in judicial service shows that appointment of judicial officers is contemplated as Members of the said Tribunal. Subsection (3) of Section 11 provides that the qualifications and terms of office of the Members of the Tribunal shall be as prescribed. In view of the definition in subsection (19) of Section 2, the word "prescribed" means prescribed by the rules or by any notification. Though subsection (5) of Section 11 of the VAT Act provides that the functions of the Tribunal may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brule (1) of Rule 6, a Deputy Commissioner is not at all qualified to hold the post of a Member. Apart from this discrepancy, when clause (d) of subrule (1) of Rule 6 does not recognize the service as a Deputy Commissioner as the qualifying service, the explanation purports to override clause (d) and makes a provision to that effect. 15. It is well settled that violation of Article 14 is also one of the grounds on which there can be a challenge to the constitutional validity of a statute. According to us, the explanation is completely arbitrary. If the explanation is allowed to remain, a person who has been appointed as Joint Commissioner of Sales Tax, who does not have experience of two years in the said office will be appointed on the basis of his service as a Deputy Commissioner. Therefore, it is very difficult for us to save the explanation from unconstitutionality. Therefore, we hold that notwithstanding the explanation, a Joint Commissioner who is appointed as a Member should have experience of working in the said post for minimum two years. 16. For dealing with the main challenge, it will be necessary to make a reference to the affidavitinreply of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit as the statement made on behalf of the State Government. Therefore, for each and every appointment of Judicial Members, the consultation with this Court shall be mandatory. 17. Even the statement made in clause (e) is very material. We accept the statement made in clause (e) of paragraph11 that the Administrative/ Technical Members cannot and do not sit singly which means that only the Judicial Members can sit singly. As the statement made in paragraph 11(e) is accepted as the statement of the State Government, no Administrative Member can sit singly. In view of this categorical statement on oath, we need to detain ourselves any further on this aspect. As far as clause (d) of paragraph11 is concerned, constitution of selection committee for appointment of Members is sought to be justified. We are dealing with the said aspect separately. . 18. Now, we make a reference to the decision of the Apex Court in the case of Union of India v. R.Gandhi, President, Madras Bar Association (supra). In the said decision, various issues concerning Tribunal were considered. Paragraph 106 of the said decision is relevant, which reads thus: "106. We may summarize the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is material is clauses (c) and (d) of the above paragraph. Clause (c) holds that whenever there is a need for Tribunals, there is no presumption that there should be Technical Members of the Tribunals. It was held that only where exercise of jurisdiction involves inquiry and decisions on technical or special aspects, the presence of Technical Members will be useful. Thus, the law laid down by the Supreme Court is that it is permissible in law to appoint Technical/ Administrative Members. In the present case, considering the nature of the jurisdiction exercised by the Tribunal, for dealing with the taxing statutes imposing Sales Tax and Value Added Tax, experience of Joint Commissioners of Sales Tax is very useful. In fact, in the case of Tribunals dealing with matters of Excise, Customs, Service Tax and IncomeTax, there is a provision for appointment of technical/administrative members who are having experience of making adjudication in Tax matters. Such members usually have a long experience in making adjudication on the the tax disputes. There is no illegality associated with it, especially in the light of the statement made in the affidavit of Shri Rajendra D. Bhagat, Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons. Thus, as held by the Apex Court, even in a case of a nonjudicial Member (Technical or Administrative Member), he has to be legally qualified, judicially trained and experienced in the field. 22. On the aspect of allowing the Administrative Member to be appointed on the Tribunal, there is some discussion in the said judgment. It was observed in paragraph105 that requirement of a judicial mind for manning the judicial Tribunal is a well accepted discipline in all the major international jurisdictions with hardly any exceptions. Thus, the Apex Court recognized the need of the Administrative Member having judicial mind. 23. We must note here that an argument was canvassed by the learned senior counsel appearing for the petitioners at the outset that the said Tribunal is a Court and, therefore, it will be under the administrative control of the High Court in accordance with Article 234 and 235 of the Constitution of India. At this stage, we must note here that on plain reading of the provisions of Article 323B of the Constitution of India, the Tribunal will not be a Tribunal within the meaning of Article 323B of the Constitution of India. Once it is held that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner was in the case of State of Gujarat v. Gujarat Revenue Tribunal Bar Association (2012) 10 SCC 353. This was a case where Rule 3(1)(iii)(a) of the Gujarat Revenue Tribunal Rules 1982, which conferred power upon the State Government to appoint the Secretary to the Government of Gujarat as the President of the Revenue Tribunal, was struck down. In an appeal preferred by the State of Gujarat, the Apex Court upheld the decision of the Gujarat High Court. What is relevant for our consideration is what is held by the Apex Court in paragraphs 16 and 17, which read thus: "16 Although the term "court" has not been defined under the Act, it is indisputable that courts belong to the judicial hierarchy and constitute the country's judiciary as distinct from the executive or legislative branches of the State. Judicial functions involve the decision of rights and liabilities of the parties. An enquiry and investigation into facts is a material part of judicial function. The legislature, in its wisdom has created tribunals and transferred the work which was regularly done by the civil courts to them, as it was found necessary to do so in order to provide efficacious r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the competent authority/court suo motu, in order to see that subordinate Tribunals do not transgress the rules of law and are kept within the framework of powers conferred upon them. Such revisional powers have to be exercised sparingly, only as a discretion in order to prevent gross injustice and the same cannot be claimed, as a matter of right by any party. Even if the person heading the Tribunal is otherwise a "judicial officer", he may merely be persona designata, but not a court, despite the fact that he is expected to act in a quasijudicial manner. In the generic sense, a court is also a Tribunal, however, courts are only such Tribunals as have been created by the concerned statute and belong to the judicial department of the State as opposed to the executive branch of the said State. The expression 'court' is understood in the context of its normally accepted connotation, as an adjudicating body, which performs judicial functions of rendering definitive judgments having a sense of finality and authoritativeness to bind the parties litigating before it. Secondly, it should be in the course of exercise of the sovereign judicial power transferred to it by the State. Any T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y; "(3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?" In the said decision, the Apex Court has extensively referred to its earlier decision in the case of S.P. Sampath Kumar v. Union of India and others. (supra). As far as the question 3 is concerned, in paragraph 95, the Apex Court dealt with the issue of the competence of those who man the Tribunals. Paragraph 95 reads thus: "We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. In the case of Administrative Tribunals, it has been pointed out that the administrative members who have been appointed have little or no experience in adjudicating such disputes; the Malimath Committee has noted that at times, IPS Officers have been appointed to these Tribunals. It is stated that in the short tenures that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ministrative Member infringe the doctrine of separation of powers which is a part of the basic structure of the Constitution of India. It is in that context we have referred to the decision of the Apex Court in the case of Namit Sharma v. Union of India (supra) wherein the Apex Court dealt with the issue of constitutional validity of subsection (5) of section 12 and subsection (5) of section 15 of the Right to Information Act, 2005 (for short "the said Act of 2005"). Subsection (5) of section 12 of the said Act of 2005 provides that the Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. The Argument was that enactment of the provisions of eligibility criteria for appointment to such high offices, without providing qualifications, definite criterion or even consultation with judiciary, is in complete violation of the fundamental rights guaranteed under Articles 14, 16 and 19(1)(g) of the Constitution of India. The provisions were attacked on the ground that the usag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal jurisdictions with hardly with any exceptions. Even if the intention is to not only appoint people with judicial background and expertise, then the most suitable and practical resolution would be that a 'judicial member' and an 'expert member' from other specified fields should constitute a Bench and perform the functions in accordance with the provisions of the Act of 2005. Such an approach would further the mandate of the statute by resolving the legal issues as well as other serious issues like an inbuilt conflict between the Right to Privacy and Right to Information while applying the balancing principle and other incidental controversies. We would clarify that participation by qualified persons from other specified fields would be a positive contribution in attainment of the proper administration of justice as well as the object of the Act of 2005. Such an approach would help to withstand the challenge to the constitutionality of Section 12(5)." (emphasis added) The Apex Court observed that the participation by persons from other specified fields would be a positive consideration for achievement of the object of the said Act of 2005. However, the Apex Court observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal mind or whether they are judicially trained. A submission was sought to be made by the State that the Secretary of the Law and Judiciary Department is a part of the Committee who is under the direct superintendence of this Court being a Judicial Officer. The said submission is factually incorrect. Once a serving District Judge is appointed as the Secretary of the Law and Judiciary Department, the only control which the High Court can exercise over the said officer is of recalling his services to the judiciary. As we have read the aforesaid qualifications into the rules, it is necessary that the Selection Committee must be of such persons who will be able to judge whether the candidates covered by the clauses (d), (e) and (f) of subrule (1) of Rule 6 possess the necessary qualifications. As far as the Chartered Accountant or any other person covered by clause (e) is concerned, though he may be an expert, he may not have judicial experience. But the requirement of possessing the legal qualifications or legally trained mind cannot be dispensed with. For example, a Chartered Accountant or other expert who has wide experience of working as arbitrator can be chosen. It is for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said decision this Court has made a reference to the judgment and order dated 2nd January 2017 passed by the Apex Court in the case of Imtiyaz Ahmad Vs. State of Uttar Pradesh and others Criminal Appeal Nos.254-262 of 2012 decided on 2nd January 2017. In the said order, based on interim recommendations of the National Court Management System Committee (NCMSC), the Apex Court directed that the appointment of adequate numbers of the Judges required in the Courts should be made by creating additional posts and accordingly necessary infrastructure be provided. 37. The State Government will have to undertake the scientific study of number of members required for the said Tribunal. While doing so, the State Government will be naturally guided by the law laid down in the case of Imtiyaz Ahmad Vs. State of Uttar Pradesh & Ors. (supra). By appointing a Committee, preferably headed by a retired Judge of this Court, the State Government will have to undertake the said exercise and after considering the recommendations of the Committee, the State Government will have to appoint such number of the additional members who are required to take care of pendency at present and the pendency in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auses (a), (b) or (c) of subrule (1) of Rule 6 of the VAT Rules shall be appointed without making effective consultation with the High Court of Judicature at Bombay. Needless to add that the effective consultation shall be as per the law laid down in the case of State of Gujarat Vs. Gujarat Revenue Tribunal Bar Association (supra); (ii) In view of the statements made in the aforesaid affidavit, we clarify that a Bench of two or more Members shall always be headed by a Judicial Member appointed under clauses (a), (b) or (c) of subrule 1 of Rule 6 of the VAT Rules; (iii) The matters which are required to be decided by the Members sitting singly shall always be placed before a Judicial Member only. In case of emergency, when none of the Judicial Members are available, the matters where an urgent adinterim or interim relief is sought can be placed before the Administrative Member sitting singly; (iv) As far as selection of the Members covered by clauses (d), (e) and (f) of subrule (1) of Rule 1 of Rule 6 is concerned, the State Government shall constitute a proper Selection Committee preferably headed by a retired Judge of this Court, in the light of observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident/Members of the Tribunal as regards the infrastructure to be provided to them and to the Tribunal, the State Government will be bound by the law laid down by this Court in the case of Mumbai Grahak Panchayat & Anr. (supra); (xii) The Tribunal shall take immediate steps to ensure that all the orders passed by the Tribunal are immediately uploaded on the dedicated website; (xiii) The Tribunal shall consider of adopting project of computerisation and digitization on the lines of ECourt Phase I and ECourt Phase II deviced by eCommittee of the Hon'ble Supreme Court of India. Needless to add that on requisition made by the President of the Tribunal, necessary assistance will be rendered by the team of the High Court of Judicature at Bombay, Central Project Coordinator. If a requisition is made by the President of Tribunal for creating posts of technical staff, the State Government shall take immediate steps for creating necessary technical posts. (xiv) We must clarify here that what is held by this Court and what is directed by this Court will not affect the validity of appointment of the Members who are already appointed and who are functioning today ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
