9911796707
TMI Blog2003 (11) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... promulgate the same is conditioned. He must be satisfied that circumstances exist which render it necessary for him to take immediate action. His satisfaction must be an objective one and is not subjective. According to him no circumstances can be said to reasonably exist for which it is incumbent upon him to take immediate action. The object of this Ordinance is to set up a Tax Tribunal purported to be under article 323B of the Constitution of India in place of the High Court for adjudication of the disputes relating to direct and indirect taxes. He contends further that for the last 60 years, if not more, the High Court has been satisfactorily functioning in relation to the jurisdiction conferred upon it by the various tax statutes. This is not the subject for which an immediate result could be achieved by promulgating the Ordinance. It will take much time to set up infrastructure in various parts of the country by constructing buildings and making proper arrangement of man-power, it cannot be done overnight. He contends even during the last budget session and the monsoon session there was no whisper of setting up of this Tribunal. Taking advantage of Parliament not being in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, satisfying the court that circumstances really exist and such circumstances warranted reasonably to take such a decision as a reasonable prudent man could have taken. Dr. Pal does not dispute the proposition that the power of the President under Chapter III of article 123 is of a power of a Legislature though the President is the head of the executive. The learned Additional Solicitor General of India, Mr. S.K. Kapur, while opposing this application and praying for the discontinuation of the interim order contends that the President has properly and constitutionally promulgated the Ordinance having felt that such circumstances exist which rendered it necessary for him to take immediate action. It is not in dispute that Parliament is not in session. Therefore, the conditions in article 123 have been fulfilled. He submits that satisfaction of the President or bona fides in his satisfaction cannot be judicially reviewable nor is the same justiciable. If there is a statement in the object of the Ordinance of satisfaction of the President as to existence of the emergent circumstances the court cannot hold they do not exist. Unlike executive action the theory of reasonableness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was felt that to reduce the burden of the High Courts on the one hand and for effective and speedy disposal of cases arising out of revenue laws on the other this Ordinance is required to be promulgated to set up the National Tax Tribunal. It is not in dispute that Parliament is competent to legislate. Whether taking away the jurisdiction of the High Court under various fiscal statutes is mala fide or for that matter whether it amounts to an onslaught on the judiciary, can be a subject-matter of debate on the floor of Parliament not in courts primarily, so long as Parliament enjoys its power within its own field. This has already been established and settled in the latest decision of the Supreme Court rendered in L. Chandra Kumar's case [1997] 228 ITR 725. By this Ordinance the power of judicial review of the High Courts and the Supreme Court under article 226/227 and under article 32, respectively, have not been touched and in fact it cannot be as the same is part of the basic structure of the Constitution. His further contention is that it is too early for the petitioners to rush to this court for obtaining an interim order as at present no infrastructure has been established n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re falling within entries Nos. 82, 83, 84 and 90 of List I of the Seventh Schedule. In this connection, the decision of the Supreme Court reported in L. Chandra Kumar v. Union of India [1997] 228 ITR 725; [1997] 3 SCC 261 (paragraphs 81 and 82) may be referred to. On a careful reading of article 123 of the Constitution of India it will appear that the President can promulgate ordinances in the event the following conditions are satisfied: (i) Both the Houses of Parliament are not in session. (ii) The subject matter of the ordinance must be falling within the subject of List I and List III of the Seventh Schedule of the Constitution of India. (iii) Satisfaction of the President that circumstances exist which render it necessary for him to take immediate action. The first two conditions are not disputed at all. The only condition is as to whether the President is satisfied that circumstances exist for which immediale action is necessary. I accept the argument of Dr. Pal that this action of the President is susceptible to judicial review under article 226 of the Constitution of India and article 32 of the Constitution of India by the High Courts and the Supreme Court. It t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t particularly a superior one to exercise power of judicial review. Dr. Pal has relied on the decision of the Supreme Court reported in Union of India v. Sankalchand HimatIal Sheth, AIR 1977 SC 2328 (2356) and in my view this judgment is also not helpful in this case, as the said decision was rendered while dealing with a case of transfer of a High Court judge vis-a-vis independence of the judiciary. Here at this stage it is early to say that the independence of the judiciary is at stake. The decision of the Supreme Court rendered in the S.R. Bommai case [1994] 3 SCC 1 was rendered by the apex court while deciding the question whether the action of the President under article 356 of the Constitution of India is amenable to judicial review or not. It was held that the power of the President under article 356 is essentially an executive one under the Constitution. It was held further that the superior court can scrutinise the materials on the basis of which advice is given by the council of ministers and ultimately the President has taken a decision thereupon. Therefore, the S.R. Bommai case [1994] 3 SCC 1 may be applicable after affidavits are filed and at the time of final hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this legislative action of the President or the Governor must be an unconstitutional one. In the case of K. Nagraj v. State of A.P., AIR 1985 SC 551, the Supreme Court in paragraph 31 has observed as follows: "It is impossible to accept the submission that the Ordinance can be invalidated on the ground of non-application of mind. The power to issue an Ordinance is not an executive power but is the power of the executive to legislate. The power of the Government to promulgate an Ordinance is contained in article 213, which occurs in Chapter IV of Part VI of the Constitution. The heading of that Chapter is 'Legislative power of the Governor'. This power is plenary within its field like the power of the State Legislature to pass laws and there are no limitations upon that power except those to which the legislative power of the State Legislature is subject. Therefore, though an Ordinance can be invalidated for contravention of the constitutional limitations which exists upon the power of the State Legislature to pass laws it cannot be declared invalid for the reason of non-application of mind, any more than any other law can be. An executive act is liable to be struck down on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo grounds alone: (i) lack of legislative competence and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no other ground." In this case when the question of the satisfaction of the President as to the existence of the circumstances is insulated from justiciability of the court and when it is found in the Statement of Objects of the Ordinance that the President is satisfied it shall be presumed prima facie, of course, that the President has validly exercised his legislative-power. This could have been unconstitutional had there been no such satisfaction being recorded. Therefore, I hold prima facie that the President has validly exercised under article 123 of the Constitution of India unless it is established that there is no material to reach such satisfaction. There are other old decisions rendered by the Privy Council reported in Bhagat Singh v. Emperor [1931] 58 IA 169, at page 171; Emperor v. Benoari Lal Sarma [1945] 72 IA 57, at page 66 of Lakhi Narayan Vas v. Province of Bihar, AIR 1950 FC 59. The decision rendered by the Privy Council while dealing with the corresponding provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 323B which is the source of such power of Parliament and the State Legislature providing equally efficacious independent justice-delivery system. Therefore, I find that there is legislative competency and prima facie no violation of any provisions of the Constitution. I cannot accept the argument of Dr. Pal that this Ordinance will offend free and independent justice-delivery system. All these findings and observations of mine are prima facie and are subject to final decision of this court. The learned Additional Solicitor General says that no infrastructure has yet been established nor any appointment of personnel like chairperson or members of the Tribunal has been made. Therefore, the apprehension of the petitioners is without any basis at the present moment. Under such circumstances I do not find any reason to continue the interim order. As such the same is vacated. The matter would be heard on affidavits. Affidavit-in-opposition may be filed by the respondent, inclusive of the Attorney General of India if so advised, within two weeks from date. Reply thereafter. Matter to appear after four weeks hence, for hearing. Any action which might be taken excepting placing the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
