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TMI Blog2022 (3) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 2017/ U.P. Goods and Service Tax Act, 2017 (hereinafter referred to as 'the Acts, 2017') in form GST-RFD-01 on 31.03.2020 for which an acknowledge receipt in RFD- 02 was issued by the respondents on 09.04.2020. The refund application of the petitioner was rejected by the proper officer by order dated 29.04.2020 in form GST-RFD-06. Aggrieved with the aforesaid order dated 29.04.2020, the petitioner filed an appeal before the respondent No.2, i.e. the First Appellate Authority under the Act, 2017, which was partly allowed by order dated 29.06.2021. Against the order of the First Appellate Authority, the petitioner has a right of appeal under Section 112 of the Act, 2017 but since GST Tribunal has not been constituted so far in the State of Uttar Pradesh, therefore, the petitioner has filed the present writ petition under Article 226 of the Constitution of India praying to quash the impugned order dated 29.06.2021 passed by the respondent No.2 in so far as it rejects the application for refund of the petitioner for the months prior to March, 2018 to the extent of Rs. 7,92,739/-. Preliminary objection raised by the Respondents:- 5. Learned standing counsel and the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. vs. Union Of India And 5 Others) and other 29 connected writ petitions, has not been challenged so far by the respondent Nos.4 and 5 before the Hon'ble Supreme Court. Submission on behalf of the petitioner:- 8. Learned counsel for the petitioner has referred to the provisions of Section 109 of the Act, 2017, judgment of Lucknow Bench of this Court dated 31.05.2019 in PIL CIVIL No.6800 of 2019 (Oudh Bar Asso. High Court, Lko. Thru General Secretary & Anr vs. U.O.I. Thru Secy. Ministry Of Finance & Ors.), the judgment dated 09.02.2021 in Writ Tax No.655 of 2018 (M/S Torque Pharmaceuticals Pvt. Ltd. vs. Union Of India And 5 Others) and 29 other connected writ petitions and the interim order dated 04.03.2021 in PIL CIVIL No.6024 of 2021 (Awadh Bar Association High Court, Lko Thru Gen.Secy. & Anr. vs. U.O.I.Thru Secy. Finance Ministry, New Delhi & Ors.). He submits that firstly, interim order dated 04.03.2021 passed in PIL CIVIL No.6024 of 2021 is wholly without jurisdiction inasmuch as by the aforesaid interim order, the effect and operation of the division Bench judgment in the case of M/S Torque Pharmaceuticals Pvt. Ltd. (supra) has been suspended by another Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5. For ready reference the order dated 04.03.2021 passed in PIL CIVIL No.6024 of 2021, is reproduced below: "At the threshold, it is stated by learned Additional Solicitor General of India that respondent nos. 1 and 2 have taken a decision to file a Special Leave Petition to assail correctness of the judgment dated 09.02.2021 in Writ Tax No. 655 of 2018 passed by a coordinate Bench of this Court at Allahabad. This petition for writ is preferred on behalf of Awadh Bar Association High Court, Lucknow and Sri Sharad Pathak, Secretary of the Awadh Bar Association High Court, Lucknow. Grievance of the petitioners is with regard to decision of the Goods and Services Tax Council on Agenda Item No. 6 undertaken in its 39th meeting held on 14.03.2020. Several contentions have been raised by learned counsel for the petitioners while questioning correctness of the decision aforesaid. Having considered the same, we deem it appropriate to admit this petition for writ and to hear the same finally at earliest. Accordingly, the writ petition is admitted for hearing. No post admission notice be issued as the parties are already represented by their counsels. Having considered the argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation. Unless the provision is manifestly unjust or glaringly unconstitutional, the courts do show judicial restraint in staying the applicability of the same. It is evident from a perusal of the above judgment that normally an interim order is not passed to stultify statutory provisions. However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie unconstitutional or contrary to the law laid down by this Court. " (Emphasis supplied by us) 14. In Union of India vs. Cipla Ltd., (2017) 5 SCC 262 (para-168), Hon'ble Supreme Court considered the question of grant of interim relief where public interest is involved and held as under: "168. Under these circumstances, we are clearly of the view that in matters where public interest is involved, the Court ought to be circumspect in granting any interim relief. The consequence of an interim order might be quite serious to society and consumers and might cause damage to public interest and have a long term impact. We make it clear that it is not our intention to suggest to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is seen, it becomes obvious that the High Court has sought to take over responsibility of carrying on the functions of the BPSC by appointing its own chairman for conducting a meeting of the BPSC. It is no doubt open to the Court to reject the affidavit filed on behalf of the BPSC by the Chairman on its view that it cannot be regarded as the opinion of the BPSC. But, in a case, even where such decision of the Commission as a body had been called for, the High Court was not enabled, in the purported exercise of its jurisdiction under Article 226 of the Constitution, to make such interim orders which would have made the functioning of the BPSC, a constitutional institution, a mockery in the eyes of the general public and exposed its constitutional functionaries to ridicule. It is true that Article 226 of the Constitution, empowers the High court to exercise it discretionary jurisdiction to issue directions, orders or writs, including writs in the nature of habeas corpus, certiorari, quo warranto and mandamus or any of them for the enforcement of the rights conferred under the Constitution or for an other purpose, but such discretion to issue directions or writs on orders conferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Supreme Court considered the question when a public interest litigation may be entertained by a court and held as under:- "2.......Before embarking upon an inquiry into the legality of the impugned judgment of the High Court, it is necessary to bear in mind that a public interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the courts of law in a public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the court finds that in the garb of a public interest litigation actually an individual,s interest is sought to be carried out or protected, it would be the bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated. It is in fact a litigation in which a person is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dh Bar Association High Court, Lko Thru Gen.Secy. & Anr. vs. U.O.I.Thru Secy. Finance Ministry, New Delhi & Ors.), directing for not establishing GST Appellate Tribunal for State of Uttar Pradesh without leave of the court, could be passed in conflict with the final judgment dated 09.02.2021 in Writ Tax No.655 of 2018 passed by the Division Bench? (ii) Whether under the facts and circumstances of the case and in the interest of dealers in State of Uttar Pradesh under the CGST Act/ U.P.GST Act, 2017, a direction needs to be issued immediately to the respondent No.4 to notify the State Bench and Area Benches of GST Appellate Tribunal in the State of Uttar Pradesh, within a time bound period so that persons/ dealers may avail statutory remedy of appeal under Section 112 of the CGST Act/ U.P. GST Act, 2017 and they may not suffer further? (iii) Establishment of the State Bench of GST Appellate Tribunal at Prayagraj and its four Area Benches in the State of Uttar Pradesh in terms of the final judgment of the Division Bench dated 09.02.2021 in Writ Tax No.655 of 2018 (M/s Torque Pharmaceuticals Pvt. Ltd. vs. Union of India and 5 others) and other 29 connected writ petitions? 22. Let ..... X X X X Extracts X X X X X X X X Extracts X X X X
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