TaxTMI 
TaxTMI 
2013 (1) TMI 252
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....oned Company petition be transferred to the Southern Bench of the Hon'ble Company Law Board for hearing to be completed before the Hon'ble Company Law Board Member Shri Kanthi Narahari on the already agreed dates or any other mutually convenient dates; (b) In the alternative, the Hon'ble Company Law Board Member Shri Kanthi Narahari be permitted to preside over the Hon'ble Company Law Board, Western Bench for the limited purpose of completing the hearing in the above captioned Company petition on the already agreed dates or any other mutually convenient dates; 2. The following questions of law arise in the above Appeal which is taken up for hearing and final disposal: (a) Whether the impugned order is amenable to challenge under Section 10F of the Act? (b) Whether the Chairman of the CLB has the power under the Act and the CLB Regulations to grant either of the reliefs prayed for in the Company Application by the Appellant? (c) Whether the impugned order amounts to an abdication or fettering of jurisdiction in a case where such power ought to have been exercised? (d) Whether the impugned order is perverse, arbitrary, unsustainable in law and therefore ....
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....following order: "Adjournment request was made on behalf of the petitioner on health grounds. The respondents opposed the same. Even though the Learned Counsel for the petitioner and the respondents, have argued the matter extensively on various dates and requested the Bench to accommodate four more days for further arguments. In spite of the fact that this Bench is overburdened with the hearings, however, the Bench accommodated the counsel for advancing their arguments on four days. Therefore, the matter was fixed for four days for hearing i.e. on 10th, 11th, 20th and 21st July, 2011. The petitioners now sought adjournment on the health grounds and requested the Bench to take up the matter as it is fixed on 20th & 21st July, 2011. No further dates will be given to the parties except the above dates and the Counsel shall confine their arguments for two hours each i.e. the petitioners and the respondents. If for any reason the Counsel not able to complete their arguments, the Bench will reserve the matter for orders." Despite such a strong, clear and specific order, the parties have thereafter argued the matter for almost a span of one year i.e. on 20th July, 2011, 21st July, 2011....
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....rinciples laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforesaid decisions are these: Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial. 25. Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be a quasi-judicial authority if it is required to act judicially. 26. Coming to the second argument of learned counsel for the respondents, it is true that mere presence of one or two attributes of quasi-judicial authority would not make an administrative act as a quasi-judicial act. In some c....
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.... be held to be appealable under Section 10F of the Act. The impugned order does raise substantial questions of law, inter alia, as to whether the Learned Chairman of the CLB in the facts of the present case as mentioned above, has validly exercised his discretion and jurisdiction. The decision of the Hon'ble Supreme Court in the case of Raj Kumar Shivhare v. Asstt. Director, Directorate of Enforcement [2010] 100 SCL 211 considered the scope of an appeal under the FEMA Act under an appeal provision that is in pari materia to Section 10F of the Act. The Hon'ble Supreme Court laid down the position as to the right to appeal, wherein it observes as under: "19. The word "any" in this context would mean "all". We are of this opinion in view of the fact that this section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by statute, as it is barred here under Section 34 of FEMA, is an inherent right (See Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by a statute. While conferring such r....
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....nt shall, by notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration. (1A) The Company Law Board shall exercise and discharge such powers and functions as may be conferred on it, before the commencement of the Companies (Second Amendment) Act, 2002 by or under this Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under this Act or any other law as may be conferred on it before the commencement of the Companies (Second Amendment) Act, 2002 by the Central Government, by notification in the Official Gazette under the provisions of this Act or that other law. (2) The Company Law Board shall consist of such number of members, not exceeding nine, as the Central Government deems fit, to be appointed by that Government by notification in the Official Gazette: Provided that the Central Government may, by notification in the Official Gazette, continue the appointment of the Chairman or any other member of the Company Law Board functioning as such immediately before the commencement of the Companies (Amendment) Act, 1988, as the Chairman or any other member of the Comp....
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.... have power to regulate its own procedure." II. CLB Regulations, 1991 : "2. Definitions.- (1) In these regulations, unless the context otherwise requires. ** ** ** (e) "Bench" means a Bench of the Board and includes the principal Bench (Additional Principal Bench) and a member sitting singly; ** ** ** (g) "Board" means the Board of Company Law Administration, constituted under Section 10E o the Act; ** ** ** (l) "Chairman" means Chairman of the Board; ** ** ....
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....; ** ** ** 7. Jurisdiction of the Bench. - (1) All proceedings, other than the proceedings before the Principal Bench under regulation 4, shall be instituted before the Bench within whose jurisdiction the registered office of the Company is situated. (2) The States or Union-territories falling under the geographical jurisdiction of the Regional benches shall be as provided in Annexure-I. (3) The Regional Benches shall ordinarily have their sittings at Kolkata, Mumbai, Chennai and New Delhi: Provided that the Bench may, at their discretion, hold sittings in any other city or town falling within their respective geographical jurisdiction or any other place outside their jurisdiction with the consent of the parties." ** ** ** "44. Saving of inherent power of the Bench. - Nothing in these rules shall b....
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....ce", the Learned Senior Counsel submitted that on a fair, proper and contextual interpretation of the relevant language of Section 10E(4B) of the Act, it is clear that an order under that Section may be in relation to the hearing of a transferred matter by a Regional Bench, which would also be a power and function of the CLB. 9. Mr. Dwarkadas next submitted that the above submissions pertaining to interpretation of Section 10E(4B) of the Act are in fact buttressed by the recent notification of 4th May 2012. Paragraph 2 of the order dated 4th May 2012 reads thus: "2. Matters in which upon conclusion of final hearing orders have been reserved by the Members under transfer vide office order of even number dated 30/4/2012, such Members would pass orders in such matters at their new place of posting after due notice to the parties" It is submitted that on a reading of paragraph 2 of the said order, it is apparent that matters in which hearings have been concluded and orders were reserved have been, in effect, transferred by the Learned Chairman of the CLB from the Bench in which they were heard to the Bench where the Member who heard the matter is currently sitting. It is submitted t....
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.... collection of tax, consistent with the reasonable convenience of the assessee. It is submitted that in the said decision the High Court expressly rejected the contention that the controlling authority had no power to transfer matters unless the same was specifically conferred by the statute. It is submitted that there are several matters in which the Learned Chairman of the CLB has passed orders transferring the matters from one Bench of the CLB to another Bench, either with the consent of the parties or upon application by one of the parties. Matters which have been transferred as such are continuing before the respective Regional Benches to which they have been transferred and would be vitally affected if this Court were to come to the conclusion that there is no inherent and/or implicit power in the learned Chairman of the CLB to transfer matters from one Bench to another. 11. Mr. Dwarkadas next submitted that the second proviso to Regulation 4 of the CLB Regulations is not a provision that deals with transfer of matters and does not impinge upon the power of the Learned Chairman of the CLB to transfer a matter from one Bench to another Bench in exercise of powers under Sectio....
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.... CLB. 12. Mr. Dwarkadas has relied on the decision of this Court in C.R.H. Readymoney Ltd. v. State of Bombay AIR 1956 Bom. 304 and the decision of the Hon'ble Supreme Court in Madan Lal Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd. AIR 1962 SC 1543 and submitted that no negative import can be implied from the words "it shall be lawful" used in the second proviso to Regulation 4(3) of the CLB Regulations. It is submitted that the purport of the second proviso to Regulation 4(3) of the CLB Regulations is meant to get over an order, if any, passed under Regulation 4(3) of the CLB Regulations by which only the Regional Benches could "deal with" matters falling under all other sections of the Act other than those arising under Sections 247, 250, 269 and 388B of the Act. It does not carry the negative import of depriving the Learned Chairman of the CLB of his inherent power or power under Section 10E(4B) of the Act to allocate work which would include the power to transfer matters from one Regional Bench to another Regional Bench, more so when there is no express bar from doing so. Mr. Dwarkadas has therefore submitted that strictly without prejudice to his above submissions ....
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....t submitted that Section 10E(4B) is contained in a part of the Act headed "Constitution of Board of Company Law Administration". That provision deals only with the Constitution of the Board and formation of the Benches of the Board. It does not at all deal with the power to transfer matters. The only provision for "transfer" of any matters is to be found in the second proviso to Regulation 4(3) of the CLB Regulations. The said proviso expressly sets out the power of the Chairman to transfer any matter pending before any Regional Bench. The intent is plainly and unambiguously expressed. Relying on the decision of the Hon'ble Supreme Court in Ansal Properties & Industries Ltd. v. State of Haryana [2009] 3 SCC 553, it is submitted on behalf of Respondent No.1 that it is settled law that the Court cannot read anything into a statutory provision, which is plain and unambiguous and if the language of the enactment is clear and unambiguous, it would not be proper for the Courts to add any words thereto and evolve some legislative intent, not found in the statute. 16. Mr. De'vetre has further submitted that the Appellant's reliance on Regulation 44 of the CLB Regulations is misplaced. Reg....
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....tify the scheme of Regulation 4 read with Regulation 7 of the CLB Regulations. The inherent power of the Court cannot be invoked to nullify a statutory provision. Mr. De'vetre submitted that hearing of Company Petition No. 62 of 2009 by the same Member Shri Kanthi Narahari would entail reconstitution of Benches of the Board. Regulation 7 of the CLB Regulations fixes the jurisdiction of each bench (dependent on the location of the registered office). The present Member, Southern Bench, CLB has no jurisdiction to hear matters instituted before the Western Region bench under Regulation 7 of the CLB Regulations. He can hear the matter only if he was a Member of the Western Region Bench. No such application was made by the Appellant. The question of granting either of the two reliefs to the Appellant therefore does not arise. 18. Mr. De'vetre has further submitted that the Appellant has relied on certain touring orders dated 17th May 2012, 14th June 2012 and 13th July 2012 passed by the CLB. The first two orders dated 17th May 2012 and 14th June 2012 were issued to grant leave to Shri Amalesh Bandopadhyay (Member, CLB, Kolkata Bench). Consequently, Shri B.S.V. Prakash Kumar (Member, CL....
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....ction was assigned those matters or the additional charge. Mr. De'vetre has therefore submitted that assuming that the Chairman of the CLB has the power to re-constitute Benches under Section 10E(4B) of the Act giving Shri Kanthi Narahari (Member, CLB, Chennai Bench) an additional charge of the Mumbai Bench, to specifically hear this matter alone (being prayer (b) sought for by the Appellant), the same would disrupt the entire working of the Chennai Bench, and such disruption would be merely to accommodate this matter. This would be completely contrary to the scope and scheme with which the said "touring" orders sought to be relied upon by the Appellant were passed by the CLB. 19. Mr. Khambata, the Learned Senior Advocate appearing for Respondent No. 8, has submitted that the Chairman, CLB has no power to grant the reliefs prayed for. Relying on the decision of the Hon'ble Supreme Court in Member, Board of Revenue v. Arthur Paul Benthal AIR 1956 SC 35, B.R. Enterprises v. State of U.P [1999] 9 SCC 700 and the decision of this Court in Maharana Jaywantsinhji Ranmalsinhji Thakore Saheb of Sanand v. State of Bombay [1954] 56 BLR 1054 (DB), Mr. Khambata submitted that where a statute ....
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....erent powers referred to in Regulation 44 of the CLB Regulations to either the Chairman or the Vice-Chairman when they act as such. The provisions of Regulation 44 of the CLB Regulation by themselves cannot confer any new power (independent of the Company Law Board) in the Chairman, who acts exclusively as a delegate of powers from the CLB. Mr. Khambata has submitted that in any event a Bench will enjoy inherent powers only in respect of such matters as validly lie before it. A Regional Bench has no power to pass any orders in exercise of its inherent powers that go beyond the jurisdiction of that Regional Bench. Hence one Regional Bench cannot direct another Regional Bench to do anything or to hear any matter. 21. Mr. Khambata has submitted that Regulation 7(1) of the CLB Regulations provides that all proceedings, other than the proceedings before the Principal Bench under Regulation 4, shall be instituted before the Bench within whose jurisdiction the registered office of the Company is situated. He submits that this is the mandate of the CLB as a whole and the manner in which the CLB has chosen to regulate its own procedure as provided by Section 10E(6) of the Act. Nothing in t....
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....with effect from 15th October 1965) which reads as under: "(4A) The Board, with the previous approval of the Central Government, may, by an order in writing authorise the Chairman or any of its other members or its principal officer (whether known as Secretary or by any other name) to exercise and discharge, subject to such conditions and limitations, if any, as may be specified in the order, such of its powers and functions as it may think fit; and every order made or act done in the exercise of such powers or discharge of such functions shall be deemed to be the order or act, as the case may be, of the Board." Under this provision, the Chairman could only exercise such powers as were delegated to the Chairman with the previous approval of the Central Government. Section 10E(1), as it stood then, read as under: "(1) As soon as may be after the commencement of the Companies (Amendment) Act, 1963 (53 of 1963) the Central Government shall, by notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration to exercise and discharge such powers and functions conferred on the Central Government by or under this Act or any other law as may....
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....ny Court with regard to certain powers and functions under the Act. 25. Mr. Dwarkadas has submitted that it is thus established that the Board is not a delegate of the Central Government. The question that arises is - What is the meaning to be given to the expression "the Board" as appearing in Section 10E(1) of the Act? The expression has not been defined under the Act. However, a conjoint reading of the provisions in Section 10E(1) to (5) would indicate that the Board consists of such number of members not exceeding nine, as the Central Government deems fit to be appointed by notification in the Official Gazette. Section 10E(3) of the Act provides that one of the members shall be appointed as the Chairman of the CLB. Mr. Dwarkadas has submitted that the purpose and object behind Section 10E(3) of the Act namely to appoint one of the members as Chairman of the CLB can only mean that the function of forming Benches and authorising each such bench to exercise and discharge such of the Board's functions as may be specified by an order in writing can only refer to the Chairman exercising the power of the Board. There is no question of either the Board as constituted under Section 10E....
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.... Section 10E(4B) of the Act and Regulation 3(2) of the CLB Regulations for constitution of Benches and allocating work would be exercised by two different repositories i.e. the Board other than the Chairman under Section 10E(4B) of the Act and the Chairman under Regulation 3 of the CLB Regulations. 27. Mr. Dwarkadas has further submitted in his rejoinder that now it is well settled that once the power is conferred upon any person, such as the Chairman of the CLB or the Chief Justice of the High Court or the Supreme Court, the head of the Institution does not require any further delegation from the Institution to which he belongs. In fact, he is as much a part of the Institution as any other member of the Institution, save and except that he has the power of superintendence. He has submitted that therefore the argument that the Chairman can only exercise such powers as are expressed in the CLB Regulations is incorrect. In support of his contention that the Chairman is therefore the administrative head of the CLB and his position is akin to the Chief Justice of any High Court or the Supreme Court who is regarded as the master of the roster, Mr. Dwarkadas has relied on the decision o....
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....ication from any one of such Benches to any other." Mr. Dwarkadas has submitted that in exercise of the power conferred by Rule 4 (1) read with Section 255 of the Income-Tax Act, 1961 , the President of the Income-Tax Appellate Tribunal has constituted 48 Benches falling in nine different geographical zones. The President has in exercise of the power of allocation of work conferred by Rule 4 (1) of the ITAT Rules has in fact routinely transferred matters from one zone to another. Mr. Dwarkadas has produced some of the orders passed by the President of the Income-Tax Appellate Tribunal. Mr. Dwarkadas has submitted that by virtue of the power conferred upon the President under Section 252 (5) of the Income-Tax Act, 1961, the President has delegated certain powers to the Vice-President of the ITAT which include inter alia the power to transfer any appeal or application filed before any Bench within a Zone to any other Bench within the same Zone. Thus whereas the delegated powers of the Senior Vice-President and the Vice-President are limited to intra-zone transfers (contemplated by Rule 4 (2) of the ITAT Rules) the powers of the President under Rule 4 (1) is much wider and includes t....
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.... him by the very nature of his position. 32. Mr. Khambata submitted that the Chairman of the CLB is a creature of statute, whose powers are circumscribed by Section 10E of the Act and by the CLB Regulations. Hence, the Chairman is bound to exercise his power within the four corners of the CLB Regulations. Relying on the decision of the Hon'ble Supreme Court in Transcore v. Union of India [2007] 73 SCL 11 Mr. Khambata submitted that the power of the Chairman being confined to the provisions of the Regulations, no action could have been taken by him contrary to or inconsistent therewith. Mr. Khambata submitted that it is obvious that if it was intended to invest any power in the Chairman aside from those expressly delegated to him, the same would have been expressly provided for by the statute framers. In the present case, there is nothing in the CLB Regulations as would indicate any intention that the Chairman was intended to be vested with any powers, aside from those expressly delegated to him under Regulations 3 and 4 of the CLB Regulations. Mr. Khambata therefore submitted that the position of the Chairman of the CLB is therefore not akin to that of the Chief Justice of a High ....
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....w viz. whether the Chairman of the CLB has the power under the Act and the CLB Regulations to grant either of the reliefs prayed for by the Appellant in the Company Application?. As submitted on behalf of the contesting Respondents, the clear cut and demarcated position of the three entities that are referred to in the Act and the CLB Regulations and relevant for the purpose of deciding the issue in hand are the following: (i) The Board of Company Law Administration constituted under Section 10E (1) of the Act ("the Company Law Board") and also defined under Regulation 2 (1) (g) of the CLB Regulations - the Company Law Board consists of all the members appointed to it by the Central Government by Notification in the Official Gazette under Section 10E (2) of the Act. (ii) The Chairman of the Company Law Board who is defined by Regulation 2 (1) (I) to be the Chairman of the Board i.e. the Company Law Board; and (iii) Bench of the Company Law Board - "Bench" is defined under Regulation 2 (1) (e) as meaning a Bench of the Board and includes the Principal Bench, the Additional Principal Bench and a member sitting singly. 35. As held by the Hon'ble Supreme Court in ....
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....n 4 (1) ]; (iv) Specification by the Chairman of matters falling under Regulation 4 (3) to be dealt with by Regional Benches [Regulation 4 (3) ]; (v) The power to transfer any matter pending before the Regional benches to the Principal Bench [second proviso to Regulation 4 (3) ]. 37. A reading of Regulation 3 of the CLB Regulations makes it clear beyond any doubt that the Chairman of the CLB is empowered by the Board to constitute the Benches of the Board as per the composition of Benches prescribed under Section 10E (4B) of the Act. Regulation 3 (3) of the CLB Regulations empowers the Chairman to specify the Member of the Bench before whom every matter requiring decision by the Board shall be placed for orders and in the absence of such Member so specified every such matter shall be placed before any other member of the Bench who is present. Thus Regulation 3 (3) of the CLB Regulations delegates the power of intra Bench allocation of matters to the Chairman i.e. transfer of a matter from one Member of a Bench to another Member of a Bench but not inter Bench transfer i.e. from one Member of the Bench to a Member of another Bench. Regulation 4 empowers the Chairman to....
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....dealt with by the Principal Bench. All other proceedings are required to be instituted before and consequently to be heard by the respective Benches within whose jurisdiction the registered offices of Companies are situated. To this rule, the only exception is carved out in the second proviso to Regulation 4 (3), which contains the non obstante clause i.e. "Notwithstanding anything contained in Regulation 7". This exception empowers the Chairman to transfer any matter from the Regional Benches to the Principal Bench. Thus the power delegated to the Chairman is the power to transfer matters before the Regional Benches only to the Principal Bench since any other transfer inter se between Regional Benches would otherwise violate the mandate of Regulation 7 (1), and this is not the power that the Company Law Board has delegated to the Chairman. 38. Thus the subject of "power to transfer" has been expressly and exhaustively provided in and limited by the second proviso to Regulation 4 (3) of the CLB Regulations. The Chairman cannot have direct recourse to the powers of the CLB over and above what is delegated to him under the CLB Regulations. The Appellant's contention based on the jud....
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.... which the Chairman may even be the only Member; (ii) Regulation 4 (2), for example, separately refers to the Principal Bench and Regulation 4 (3) also separately refers to Regional Benches both as distinguished from the Chairman of the CLB; (iii) Regulation 2 (1) (e) includes within the meaning of the word "Bench" even a Member sitting singly. This only means that a Bench need not be constituted of two or more Members but can be validly constituted even of one member whether it be the Principal Bench or a Regional bench. The fact that the definition of "Bench" includes a Member sitting singly does not in any manner dilute the clear distinction made in the Act as well as under the CLB Regulations between the Chairman of the CLB on the one hand and the Benches of the CLB including even the Principal Bench on the other; (iv) Regulation 2 (1) (m) clarifies that the term "member" includes the Chairman and Vice-Chairman. This is because a Bench may consist exclusively of one member viz. the Chairman of the CLB; (v) The CLB Regulations make a distinction between the Chairman acting as such and Benches, even if constituted of the Chairman as the sole or as one ....
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....on the decision of Punjab & Haryana High Court in Devi Dass Gopal Krishan's case (supra), argued that the Chairman of the CLB can transfer matters from one Regional Bench to another under his power as a controlling authority to superintend the administering and the functioning of the CLB including the Regional Benches. Unlike the case of Devi Dass Gopal Krishan (supra) where, under the Punjab General Sales Tax Act, 1948, the Excise and Taxation Commissioner was the final controlling authority and was empowered to superintend the administrative and collection of leviable tax, there is no general controlling authority or power to superintend vested in the Chairman of the CLB under the Act. The powers of CLB as a body to fix the roster and assign work to the individual members have been delegated to the Chairman under the CLB Regulations. There is no general delegation to superintend the work of the respective Benches or Members to the Chairman beyond the aforesaid express delegation and as discussed herein, the Chairman must act within such express delegation. The ratio of the decision of Devi Das Gopal Krishnan's case is thus not applicable in the instant case. 43. The other submis....
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.... FINANCIAL AND ADMINISTRATIVE POWER OF THE CHAIRMAN.- The Chairman shall exercise such financial and administrative power over the Benches as may be vested in him under the Rules made by the appropriate government; (2) The appropriate government may designate one or more Members to be the Vice-Chairman or, as the case may be, Vice-Chairman thereof and the Members so designated shall exercise such of the powers and perform such of the functions of the Chairman as may be delegated to him by the Chairman by a general or special order in writing. 25. POWER OF CHAIRMAN TO TRANSFER CASES FROM ONE BENCH TO ANOTHER._ On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to any other Bench". (ii) Section 91 of the Trade Marks Act, 1999: "96. Power of Chairman to transfer cases from one Bench to another._ On the application of any of the parties and after notice to the parties and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman ....
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.... and powers of the Chairman, CLB are akin to that of the Chief Justice of a High Court. As submitted on behalf of the contesting Respondents, the Office of the Chief Justice is an institution predating the Government of India Act, 1915, the Government of India Act, 1935 and the Constitution of India. Section 108 (2) of the Government of India Act, 1915 expressly vested power in the Chief Justice of the High Court akin to the master of the roster. The Learned Senior Counsel appearing for Respondent No. 8 submitted that the recitals to the Letters Patent provided that it was an act for establishing High Courts, each of which shall consist of a Chief Justice. Clause 8 of the Letters Patent authorised and empowered the Chief Justice to make appointments as "shall be found necessary for the administration of justice, and the due execution of all the powers and authorities granted and committed to the said High Court" by the Letters Patent. Article 225 of the Constitution of India saves the jurisdiction of the then existing High Courts, and the respective powers of the Judges therein in relation to administration of justice in the Courts, as also the power to make rules for the Court and....
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....n Dr. Manju Varma (supra), the power of the Chief Justice to transfer a matter from one territorial jurisdiction to another is distinct from his power to frame a roster to determine the distribution of judicial work in the High Court. In that case the Chief Justice of the Allahabad High Court had express power under Clause 14 of the United Provinces High Courts (Amalgamation) Order, 1948, to transfer matters from specified areas of U.P. to Allahabad, which is similar to the second proviso to Regulation 4 (3) of the CLB Regulations. The transfer of matters inter-jurisdictionally, apart from the Principal Bench, not being part of the power to frame the roster, has to be expressly conferred on the Chairman. In the absence of any express power, the Chairman cannot claim such a power. The Judgment of the Madras High Court in A. Kalyanasundaram (supra) compares the President of the ITAT to the Chief Justice of a High Court only in the context of the Income Tax Act, which expressly conferred the power of constitution of Benches upon the President. 51. Even if we proceed on the basis that the Chairman of the CLB has similar powers to those of the Chief Justice of the High Court, the Chair....
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.... The Chairman, CLB certainly has the power to accede to this request of the Appellant, as sought to be made in the said prayer clause (b). I am therefore of the view that the Chairman, CLB has the power and jurisdiction to grant the prayer sought in the alternative i.e. prayer clause (b). Prayer clauses (c) and (d) are consequential prayers and need not be commented upon. 53. The third and the fourth questions of law which need to be addressed are: Whether the impugned order amounts to an abdication or fettering of discretion/jurisdiction in a case where such power ought to have been exercised? and Whether the impugned order is perverse, arbitrary, unsustainable in law and therefore deserves to be set aside? Both the questions are together dealt with hereinafter. 54. It appears that the contesting Respondents have at the time of making submissions before the Chairman - CLB have not pressed the contention that the Chairman - CLB has no powers under the Act or the CLB Regulations to grant either of the reliefs sought in Company Application No. 275 of 2012. The Learned Chairman of the CLB has therefore without going into the question as to whether he has the power and jurisdiction....
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....ll such matters would start pouring in from all Benches causing not only the disruption of work in the Benches as the Member would be required to visit other Benches to complete hearing in part heard matters. If part heard matters are transferred to a Bench where the Member, before whom hearing was part heard, is posted it would cause inconvenience to the parties as the parties would be required to travel distances to appear before other Benches in which the Member before whom the matter was part heard is posted. I have enquired from the Benches and I am told that such part heard matters are many. A perusal of para 10 of CA No. 275/2012 shows that while the arguments for the Petitioner's side were concluded in four hearings, the Respondents took eleven hearings to complete their arguments. Then after completion of the arguments of the Petitioner in rejoinder in another four hearings, the Respondents again took three more hearings for arguments in sur rejoinder. What is even more surprising is that the matter has now been listed on 16th, 17th and 25th July 2012 for arguments in sur sur rejoinder. This kind of procedure is unknown and I am unable to understand why after hearing argu....
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....after applying his mind to the merits of the same, exercise his discretion on that basis. The Learned Senior Advocate for the Appellant has submitted that in rejecting the said application, the Learned Chairman has given distinct and separate reasons for rejecting the two prayers made by the Appellant in the said application which are as follows: "(i) In relation to prayer (b) the learned Chairman observed that "merely because C.P. No. 62/2009 is part heard and hearing is at closing stage an exception ought not to be carved out for this matter alone as it would be creating a precedent and similar applications in all such matters would start pouring in from all Benches causing not only the disruption of work in the Benches as the Member would be required to visit other Benches to complete hearing in part heard matter" (ii) In relation to prayer (a), the learned Chairman observed that "If part heard matters are transferred to a Bench where the Member, before whom hearing was part heard, is posted it would cause inconvenience to the parties as the parties would be required to travel distances to appear before other Benches in which the Member before whom the matter was p....
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....nquired from the Benches and I am told that such part heard matters are many" is not an independent reason given in support of the rejection of the Company Application. On a proper reading of the impugned order, it is clear that the reasons in support of the impugned order are to be found in the preceding part of the same (fourth) paragraph and in the subsequent paragraph. This sentence is a mere general factual statement and even if read with any of the other reasons in the impugned order, does not save the same from being unsustainable and perverse. Further this sentence refers to part heard matters generally and even if taken as an isolated reason for the refusal of the Company Application, the same would not save the impugned order as the entire submission of the Appellant is that the present matter was not just another part heard matter and for the purpose of transfer of a matter all part heard matters cannot be treated alike. It is submitted that if the Learned Chairman by the expression "such part heard matters" was referring to matters similarly placed as the present one, then a proper exercise of discretion would require that all such cases be transferred, assuming any suc....
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....has held that where judgment has not been pronounced for six months after it was reserved, a party would be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the case and make it over to any other Bench for fresh arguments. It is submitted that though the said guidelines may not apply directly in a case like the present one, it cannot be lost sight of that in the present case where admittedly the opening arguments of Respondent No. 1 were concluded in August 2010 and the rejoinder arguments of Respondent No.1 were concluded in November 2011, it would not be in the interest of justice that the Respondent be put to the disadvantage of judgment being delivered long after the close of their opening/rejoinder arguments. Mr. De'vetre submitted that taking into consideration the aspect of delay in the hearings, is hardly an irrelevant consideration. It cannot be said that the exercise of the discretion is perverse. It is submitted that the Chairman has exercised discretion reasonably and in a judicial manner . The view of the Chairman is more than reasonably possible based on the material before him. There is no question of the Chairman h....
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....ambata, the Learned Senior Advocate appearing for Respondent No.8 has adopted the arguments advanced on behalf of Respondent No.1. In addition, he has submitted that it is well settled that an administrative authority can always lay down certain guidelines which aid in the exercise of its discretionary power in individual cases. Such norms or rules by which an administrative authority regulates the exercise of its discretion are not fetters but rather safeguards against the arbitrary exercise of discretion. He has submitted that even in the judgment cited on behalf of the Appellant viz. U.P. State Road Transport Corporation (supra), the Hon'ble Supreme Court has held that the conferment of discretionary power upon an authority does not confer any vested right in any person for the exercise of such discretion (Para 11). The Hon'ble Supreme Court also held that whereas statutory discretion could not be fettered by self-created rules or policy, it is open to an authority to which discretion has been entrusted to lay down the norms or rules to regulate exercise of such discretion (Para 13). The Hon'ble Supreme Court itself noticed that there are two factors which are relevant. Firstly,....
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....k of bona fides against the Chairman. It is therefore submitted by Mr. Khambata that the Appeal filed by the Appellant be dismissed. 65. Before I consider the merits of the controversy in this regard, at the outset it may be noted that so far as the alternative prayer, i.e. prayer (b), is concerned the power of the Chairman invoked therefor is essentially an administrative power and the correctness or otherwise of its exercise must be tested having regard to the administrative considerations applied by the Chairman for the order thereon. The following discussion shows that the order is just and proper having regard to the considerations so applied. Even as regards prayer (a), though I have already held that the power to grant the same does not vest in the Chairman, even assuming that such power vests in the Chairman, the decision or order of the Chairman on prayer (a) also can be sustained on the basis indicated in the following discussion. 66. The order impugned in this Appeal is reproduced in paragraph 51 above. A perusal of the said order shows that though the Respondent No.1 has in its affidavit filed before the CLB in Company Application No. 275 of 2012 submitted that the Ch....
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....ications, if allowed, would disrupt the work of the Benches where the Member is presently posted. Without considering whether he has the power to transfer a matter from one Regional Bench to another, the Learned Chairman of the CLB has also taken a view that asking a Member to hear matters which have been partly heard by him at the Bench where he was earlier posted would cause inconvenience to the parties. 68.Having considered the aforestated order of the Learned Chairman of the CLB, I do not find the reasoning given by the Learned Chairman of the CLB perverse as alleged, nor am I of the view that the Chairman has fettered the discretion granted to him under the Act or the CLB Regulations to decide such an application. As submitted by the contesting Respondents, it cannot be gainsaid that the Chairman is concerned with the proper functioning of the Tribunal, in the interests of the larger litigating public. Private/individual interests must yield to broader considerations of interests of the litigating public and general efficient functioning of the Tribunal and its Benches. In fact the power of formation of Benches and assigning matters to them is essentially an administrative ex....
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.... The Learned Chairman of the CLB has therefore dismissed the Company Application filed by the Appellant by recording that granting any of the reliefs as prayed for would militate against the administrative order dated 4th May 2012 i.e. the order allowing a Member under transfer to pass orders in matters finally concluded whilst sitting at the earlier Bench, at their new place of posting after due notice to the parties, and would create a precedent whereby a chaotic situation would arise in all Benches, if in all such matters on the basis of such a precedent applications start pouring in. The Learned Chairman of the CLB has therefore taken a view that it is not possible for him to allow an application seeking directions against a Member to leave his new place of posting for some time and to go to his old place of posting and hear part-heard matters or to sit at his new place of posting and hear matters which were partly heard by him at his earlier place of posting as such an order would create a precedent where a chaotic situation would arise in all the Benches. In my view, such reasoning of the learned Chairman of the CLB again can neither be treated as perverse nor can it be held ....
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....o be sustained even if it is based on some relevant considerations since it is also based on several irrelevant considerations. In support of this contention, the Appellant has relied on the decision of the Hon'ble Supreme Court in Ascu Arch Timber Protection Ltd. (supra) wherein the Hon'ble Supreme Court has relied upon its earlier decision in Dhirajlal Girdharilal v. CIT [1954] 26 ITR 736, and held as follows: "The learned Attorney-General frankly conceded that it could not be denied that to a certain extent the Tribunal had drawn upon its own imagination and had made use of a number of surmises and conjectures in reaching its result. He, however, contended that eliminating the irrelevant material employed by the Tribunal in arriving at its conclusion, there was sufficient material on which the finding of fact could be supported. In our opinion, this contention is not well founded. It is well established that when a court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmis....
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....ibunal on the basis that there was an error apparent on the face of the record. By a majority it was held by the Tribunal that as the test reports pertaining to the other two parties were also relied upon for arriving at a finding against Ascu, there was an error apparent on the face of the record. As the Tribunal had set aside its earlier order, the Appeal stood disposed of as infructuous. Against that order, an Appeal was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court by judgment in the case of CCE v. Ascu Ltd. [2003] 9 SCC 23 has held that in effect the Tribunal had reviewed its own order. It was held that the Tribunal had no power to review. The Hon'ble Supreme Court thus set aside the order reviewing the earlier order and the Appeals were revived by the Hon'ble Supreme Court. After hearing the parties, the Hon'ble Supreme Court was of the view that the Tribunal has, in considering the three Appeals, used materials which pertain to one party to arrive at a finding against another party which the Tribunal could not have done. It was submitted before the Hon'ble Supreme Court that even if the test reports pertaining to the other parties, which were included in ....
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....lare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal...If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unassailable", the order of the Governor... was final ..... Therefore, if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction...to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice...." 75. In B.K. Takkamore (supra), the Hon'ble Supreme Court has upheld the order of suspension of a Municipality, holding that even if one of....