TaxTMI 
TaxTMI 
2018 (5) TMI 726
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....gal expertise, judicial experience and legal training Para 67. Independence of judiciary is a must for fair justice Para 68. Institution of Tribunals being a substitute for courts could not be less effective than the courts to uphold faith of litigant public Para 70. The Court expressed anguish over ineffectivity of alternative mechanism for judicial review. It was observed that dispensing of justice by Tribunals leaves much to be desired. Remedy of appeal to this Court was costly and prohibitive and people in far flung areas could ill afford to reach this Court. Members of the Bar should be recruited to man the Tribunals and working of Tribunals may need fresh look and regular monitoring Para 76. 3. In L. Chandra Kumar versus Union of India (1997) 3 SCC 261, a Bench of 7-Judges referred to the reports of Expert Committees and Commissions which dealt with the problem of arrears. 124th Report of the Law Commission (1988) analyzed the situation existing in High Courts and recommended specialized Tribunals. The Malimath Committee Report (1989-1990) noted that not all the Tribunals inspired confidence in public mind on account of lack of competence, objectivity and judicial approach....
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.... by the judiciary and increase in number of persons belonging to civil service discharging functions which were earlier exercised by courts which was needed to be checked Para 112 and 120. 5. In Madras Bar Association versus Union of India (2014) (2014) 10 SCC 1, it was observed that the newly constituted Tribunals will be invalidly constituted unless its members are appointed in same manner and are entitled to same conditions of service as were available to the judges of the courts sought to be substituted Para 113.2. Constitution Bench of this Court observed that setting up of a Tribunal with seat at Delhi may deprive the litigants convenience of access to justice. Litigants may have to face hardship of travelling long distance and incur heavy expenses Para 122. It should be inappropriate for the Central Government to have any administrative dealings with the persons or its members to uphold their independence and fairness. Para 124 Appointment of non judicial members may constitute dilution and encroachment upon independence of judiciary and rule of law. The accountant members or technical members could not handle complicated questions of law. The judicial members are to hand....
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....rt requested Shri Arvind P. Datar learned senior counsel to assist the court as amicus. On 6th December, 2017, the Court had an interaction with the Attorney General on the issue of restructuring of Tribunals specially creation of a regular cadre to man the Tribunals. 10. On 15th March, 2018, learned amicus gave a Concept Note. It was also submitted that short term appointments out of retired persons was not conducive to the justice delivery by the Tribunals. The Tribunals must be manned by a regular cadre. Selection should be by a national competition by an expert autonomous body. Oversight mechanism must be vested with an autonomous body. There should be no statutory appeal directly to this Court as it hampered access to justice, litigation in this Court being costly and difficult for a litigant located at far off places. 11. Accordingly, this Court recorded that revisit of the structure of tribunals was necessary to uphold the rule of law and independence of judiciary. The Central Government was directed to file its response. 12. Again on 4th April, 2018, following further issues were noted : "i) How to remedy the handicap in access to justice when a Tribunal h....
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....n 31.03.2017 only 78,961 cases were pending before 39 Debt Recovery Tribunals. It is however concluded that Union of India was not averse to revisit the issue of access to justice. 15. Learned amicus pointed out that the affidavit of Union of India does not deal with the issues raised in these proceedings. The assumption in the affidavit in comparing the working of courts and Tribunals was not based on entire relevant data. Reference to 15 lakh cases appears to be reference to all the cases, while reference to pendency before Tribunals is only in cases involving more than 10 lakhs. Moreover, the data of yearly institution and disposal has not been furnished to compare the rate of disposal. Longest period of pendency before different Tribunals is also not indicated. 16. Learned amicus referred to the concept note to the effect that there was need for an independent oversight body in the light of observations in L. Chandra Kumar (supra) which have been reiterated in NCLT case (Madras Bar Association) (2015) (supra) to the effect that the Tribunals or their members should not be required to seek facilities from the sponsoring or parent ministries or concerned departments. 74th R....
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.... competition. Their performance and functioning must be reviewed by an independent body in the same was as superintendence by the High Court under Article 235 of the Constitution. Direct appeals must be checked. Members of the Tribunals should not only be eligible for appointment to the High Courts but a mechanism should be considered whereby due consideration is given to them on the same pattern on which it is given to the members of Higher Judicial Service. This may help the High Courts to have requisite talent to deal with issues which arise from decisions of Tribunals. A regular cadre for the Tribunals can be on the pattern of cadres for the judiciary. The objective of setting up of Tribunals to have speedy and inexpensive justice will not in any manner be hampered in doing so. Wherever there is only one seat of the Tribunal, its Benches should be available either in all states or at least in all regions wherever there is litigation instead of only one place. 19. To sum up, the issues requiring consideration may be as under : (i) Creation of a regular cadres laying down eligibility for recruitment for Tribunals; (ii) Setting up of an autonomous oversight bo....