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TMI Blog2019 (6) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... nt recommending that the State Bench of the GST Tribunal should be constituted at Lucknow. The said proposal dated 21.02.2019 was in response to the request made by the GST Council, New Delhi seeking response from the State Government on the following two questions : (I) Do you want the State Bench of Tribunal for your State?, if yes, in which City? (II) Do you want Area Benches also?, if yes, in how many cities? 3. In response to the aforesaid queries by the GST Council, the State Government informed by means of letter dated 21.02.2019, which is quoted below :- 1- Do you want a State Bench of Tribunal for your state? If yes, in which city? 2- Do you want the Area benches also? If yes in how many cities? 4. A perusal of the aforesaid proposal makes it abundantly clear that the aforesaid Proposal has been made after due application of mind and taking into consideration necessary factors relating to the filing of appeal and their disposal by the various Benches of the VAT Tribunal prior to coming of the GST Tribunal. 5. It has also been stated in the said proposal that the earlier Tribunal was also functioning with its Head Quarter at Lucknow and, therefore considering all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e released. However, the penalty proceeding continued and the penalty order has been passed and the authority has directed to deposit a sum of Rs. 8,14,260/- equivalent to the tax. This penalty order dated 7th February, 2018 has been challenged by means of an appeal before the Additional Commissioner, under Section 107 of the Act. The appeal has been dismissed. Till date, the tribunal has not been constituted, hence the petitioner has no way but to challenge the impugned penalty order by means of present writ petition. Prima facie arguments advanced appears to have some substance and requires consideration by this Court. Learned Special Counsel appearing for the State and learned counsel appearing for the respondent nos.1 and 6 may file counter affidavit within a month. Rejoinder affidavit, if any, may be filed within ten days thereafter. List immediately after expiry of the aforesaid period. Till further order of this Court, the penalty amount shall not be realised from the petitioner." 10. The State Government filed counter affidavit in the aforesaid writ petition on 19th June, 2018, but in paragraph no. 23 of the said counter affidavit it did not reply to the averme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to set up a Bench of the Tribunal at Lucknow, which is also not in accordance with the order passed by Hon'ble Supreme Court in the case of Madras Bar Association vs. Union of India and another reported in (2014) 10 SCC 1 which provides that the Tribunal will be set up at the place where the Principal Bench of the High Court is situate. In the present case the principal Bench of the High Court is in Allahabad. This seems to be another dilatory tactics. On the one hand the right of appeal is not being given to the petitioner, on the other hand the State and the Centre are both very quick to make recoveries from persons, who have orders against them. A litigant cannot be left without a remedy for reasons that the Government is unable to provide forums. In the present case there is not even an assurance that within next six months, one year or two years it may come up. In view of this, we direct both the Centre and the State Governments to file better affidavits giving us a cut off date by which they propose to set up the Tribunal. Learned Standing Counsel also states today that they are likely to give a revised proposal. They may do so within next two weeks. List this mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India, (2014) 10 SCC 1, Hon'ble Supreme Court has held that the Tribunal should be constituted only at the place where principal Bench of the High Court is situated and as the Principal Bench of the High Court is at Allahabad, the High Court has directed that proposal is to be sent within a period of two weeks and, therefore in the light of the said direction, revised proposal has been forwarded for constitution of the State bench at Allahabad. 20. Sri A.M. Tripathi, learned counsel for the petitioner has submitted that as per Section 109 of the CGST Act, there is a provision for constitution of GST Appellate Tribunal, which shall be constituted by the Government on the recommendation of the GST Council. In Clause-4 of the Section 109 it has also been provided that the Government shall, on the recommendation of the Council, by notification, constitute such number of Regional Benches as may be required and such Regional Benches shall consist of one Judicial Member, one Technical Members (Center) and one Technical Member (State). 21. It has been submitted that the State Government after taking into account all the factors made its recommendations in accordance with S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter. We are of the view that the issue with regard to setting up of permanent Bench and Circuit Benches of the Tribunal is not to be the subject matter of consideration by the judicial forum unless facts of the case are so appalling that judicial interference would be called for. The present, in our considered view is not such a case. We therefore, allow this appeal; set aside the order of the High Court with direction to the appellant/Union of India to take necessary steps to ensure that the cases pertaining to the State of Uttranchal pending before the Armed Forces Tribunal are heard and disposed of by the Circuit Bench as expeditiously as possible. With the aforesaid observations the appeal is allowed." 27. Sri Tripathi, has submitted that according to Section 109 of the CGST Act, the decision as to where the Benches of Tribunal have to be constituted is a matter, which purely falls within the domain of the Government, and it is the Government which shall take a decision after considering all the relevant facts and material, and unless there are some extraordinary circumstances, the High Court is denuded of its power from interfering in such matters. It has further been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court at Allahabad and seats of High Court at Allahabad and Lucknow can be changed according to the United Provinces (High Courts) Amalgamation Order, 1948 and further submitted that there are two seats of High Court of equal status. The seat of the High Court at Allahabad is just like another seat of High Court at Lucknow. It is erroneous view that the seat of High Court at Allahabad is principal or permanent seat of the High Court. 31. He also submits that the Apex Court in the case of Madras Bar Association (supra) also did not consider or hold that the principal Bench of the Tribunal should be constituted at the place where principal Bench of the High Court is situated. The said observations made by the Division Bench at Allahabad were also not in consonance with the judgment of the Apex Court and to that extent are factually incorrect. 32. It was further argued that the decisions in the case of S.P. Sampath Kumar (supra) and Madras Bar Association (supra), provide that "alternative Court/Tribunal shall be established; at every place where there is seat of the High Court" and as, in view of the dictum of the Supreme Court in Nasiruddin (supra) there are two seats of All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of India, New Delhi for establishing State Bench at Lucknow and Area Benches at twenty other cities. Subsequently, in the light of order dated 28.02.2019, passed in Writ Tax No. 655 of 2018 - M/s Torque Private Ltd. Vs. Union of India and Ors., the Commissioner, Trade Tax, U.P. Lucknow wrote a letter dated 01.03.2019 to the Additional Chief Secretary, Trade Tax, U.P. for sending amended proposal for constitution of State Bench of Tribunal at Allahabad. In view of the order dated 28.02.2019, passed in Writ Tax No. 655 of 2018, the amended proposal was sent vide letter dated 15.03.2019, by the Additional Chief Secretary, Institutional Finance, Tax and Registration, Government of U.P. to the Finance Secretary and Secretary, GST Council, Government of India for establishing State Bench at Prayagraj (Allahabad) and Area Benches in four other Cities. 35. In sum and substance, it was admitted that initially the State Government had proposed to set up the State Bench at Lucknow with area Benches elsewhere including at Allahabad but after the order of the High Court dated 28.02.2019, a fresh proposal was sent for constitution of State Bench of the GST Tribunal at Praygraj (Alla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efficacious, and thus unacceptable in law. The instant aspect of the matter was considered by this Court with reference to the Administrative Tribunals Act, 1985, in S.P. Sampath Kumar case (supra) and L. Chandra Kumar case (supra), wherein it was held, that permanent benches needed to be established at the seat of every jurisdictional High Court. And if that was not possible, at least a circuit bench required to be established at every place where an aggrieved party could avail of his remedy. The position on the above issue, is no different in the present controversy. For the above reason, Section 5(2) of the NTT Act is in clear breach of the law declared by this Court." 38. On the issue of providing a convenient and expedient redress before the alternative court/tribunal, the Apex Court in Madras Bar Association (supra) followed S.P. Sampath Kumar (supra). In S.P. Sampath Kumar (supra) the Apex Court in para 8, held as follows : "8. I may also add that if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court on the basis of which alone the impugned Act can be sustained, there must be a permanent or if there is not suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Lucknow in order to exercise jurisdiction and power in respect of cases arising in the area of Oudh territory. Article 14 of the Amalgamation Order, 1948 is reproduced here in below :- "The new High Court, and the Judges and division Courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint: Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice otherwise directs, such judges of the new High Court, not less than two in number, as the Chief Justice may from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such area in Oudh as the Chief Justice may direct, the Jurisdiction and power for the time being vested in the new High Court: Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad." 42. The Hon'ble Apex Court in the case of Nasiruddin (supra) held as under :- "24. Though the Lucknow Bench can exercise jurisdiction under Articles 226, 227 and 228, there is lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it is read in a manner in which it is capable, though not in an ordinary sense, there would not be any inconvenience at all; there would be reason why one should not read it according to its ordinary grammatical meaning. Where the words are plain the Court would not make any alteration. 27. The arguments which were presented at the Bar on behalf of the Bar Association at Allahabad as well as the Bar Association at Lucknow suggested that those views can be described to be protagonists of Allahabad or of Lucknow on the one hand and antagonists to Allahabad or Lucknow on the other. The construction is to be dispassionate with out any leaning either in favour or against either of the places mentioned in the Order. 28. The Order describes the High Court as the new High Court. The two High Courts have amalgamated in the new High Court. The seat is at Allahabad or at such other places as may be determined. There is no permanence attached to Allahabad. If that were the intention of the Order, the word "and" instead of the word "or" would have been used. Other places may be determined by the Chief Justice in consultation with the Governor. It is left to prudence of the authorities m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the Order be directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 28.02.2019 did not notice the binding decision of the Supreme Court on this issue in the case of Nasiruddin (supra). Therefore for this reason also the observations are at best obiter and not binding. 46. All the learned Counsels appearing before this Court in the present matter were asked to point out any such observation made in the Madras Bar Association (supra) as is referred in order dated 28.02.2019, all the Counsels unanimously submitted that they had all carefully perused the aforesaid judgment but no such observation or finding has been recorded therein. We have also perused the said judgments and agree with the submissions of the counsels. 47. From the perusal of the letter of the Commissioner, Commercial Tax, Lucknow, it is clear that there is no other material which could have created an occasion to re-consider/review its earlier proposal dated 21.02.2019 for constitution of the Bench of the Tribunal at Lucknow, and area Benches at other places including Allahabad except the order passed by the Division Bench of this court at Allahabad on 28.02.2019. 48. In view of the above discussion the basis for the revised proposal dated 15.03.2019 is a misreadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.02.2019, which was a reasoned and considered one, shall be acted upon and GST Benches shall be constituted accordingly, expeditiously, say within three months'. 52. We wish to record appreciation to the learned Counsels Sri Jaideep Narain Mathur, learned Senior Advocate, Sri Anupam Mehrotra, Advocate, Sri Dhruv Mathur, Advocate who have appeared before this Court on our request and rendered their valuable assistance. 52. It has also been informed at the Bar that various Tribunals and Forum are not working on account of there being no Presiding Officer and the posts are lying vacant since long causing serious prejudice and difficulties to the litigants. 53. Before parting with the case, we would like to mention that in the preceding paragraph of the judgment, we have mentioned the statement made at the Bar that several Tribunals and forum like Armed Forces Tribunal, Human Rights Commission, Services Tribunal etc. are not functioning properly on account of the posts being vacant since a considerable long time. Needless to observe that the Tribunals are Expert Bodies and apart from being experts, it consists of technical members along with judicial members. Therefore, on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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