TaxTMI 
TaxTMI 
2019 (9) TMI 983
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.... India and various judgments of the Hon'ble Supreme Court. 2. Article 246-A (Special provision with respect to goods and service tax) was inserted in the Constitution of India, by the Constitution (One Hundred and First Amendment) Act, 2016. As per Article 246-A(1), notwithstanding anything contained in Articles 246 and 254, Parliament, and subject to clause (2), the Legislature of every State has the power to make laws with respect to goods and services tax imposed by the Union or the State. 3. Article 246-A(2) gives Parliament its exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce. 4. Article 366(12-A), which was also inserted by the Constitution (One Hundred and First Amendment) Act, 2016 defines, "goods and services tax" to mean any tax on supply of goods, or services or both, except taxes on the supply of alcoholic liquor for human consumption. 5. Chapter XVIII of the Central Goods and Services Tax Act, 2017 [in short CGST Act, 2017] and Chapter XVIII of the Tamil Nadu Goods and Services Tax Act, 2017 [in short TNGST Act, 2017] provides for hie....
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.... (7) The State Bench or Area Benches shall have jurisdiction to hear appeals against the orders passed by the Appellate Authority or the Revisional Authority in the cases involving matters other than those referred to in sub-section (5). (8) The President and the State President shall, by general or special order, distribute the business or transfer cases among Regional Benches or, as the case may be, Area Benches in a State. (9) Each State Bench and Area Benches of the Appellate Tribunal shall consist of a Judicial Member, one Technical Member (Centre) and one Technical Member (State) and the State Government may designate the senior most Judicial Member in a State as the State President. (10) In the absence of a Member in any Bench due to vacancy or otherwise, any appeal may, with the approval of the President or, as the case may be, the State President, be heard by a Bench of two Members: Provided that any appeal where the tax or input tax credit involved or the difference in tax or input tax credit involved or the amount of fine, fee or penalty determined in any order appealed against, does not exceed five lakh rupees and which does not involve any question of law may....
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....ian Revenue (Customs and Central Excise) Service, Group A, and has completed at least fifteen years of service in Group A; (d) a Technical Member (State) unless he is or has been an officer of the State Government not below the rank of Additional Commissioner of Value Added Tax or the State goods and services tax or such rank as may be notified by the concerned State Government on the recommendations of the Council with at least three years of experience in the administration of an existing law or the State Goods and Services Tax Act or in the field of finance and taxation. (2) The President and the Judicial Members of the National Bench and the Regional Benches shall be appointed by the Government after consultation with the Chief Justice of India or his nominee: Provided that in the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or otherwise, the senior most Member of the National Bench shall act as the President until the date on which a new President, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office: Provided further that where the President is unable to discha....
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.... or Technical Member (State) of the Appellate Tribunal shall hold office for a term of five years from the date on which he enters upon his office, or until he attains the age of sixty-five years, whichever is earlier and shall be eligible for reappointment. (12) The President, State President or any Member may, by notice in writing under his hand addressed to the Central Government or, as the case may be, the State Government resign from his office: Provided that the President, State President or Member shall continue to hold office until the expiry of three months from the date of receipt of such notice by the Central Government, or, as the case may be, the State Government or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest. (13) The Central Government may, after consultation with the Chief Justice of India, in case of the President, Judicial Members and Technical Members of the National Bench, Regional Benches or Technical Members (Centre) of the State Bench or Area Benches, and the State Government may, after consultation with the Chief Justice of High Court, in case of the State Pr....
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....ncurrence of the Chief Justice of the High Court, may suspend from office, a Judicial Member or Technical Member (State) of the State Bench or Area Benches in respect of whom a reference has been made to the Judge of the High Court under sub-section (14). (17) Subject to the provisions of article 220 of the Constitution, the President, State President or other Members, on ceasing to hold their office, shall not be eligible to appear, act or plead before the National Bench and the Regional Benches or the State Bench and the Area Benches thereof where he was the President or, as the case may be, a Member. Sections 109 & 110 of the TNGST Act, 2017 reads as under 109. Appellate Tribunal and Benches thereof. (1) Subject to the provisions of this Chapter, the Goods and Services Tax Tribunal constituted under the Central Goods and Services Tax Act shall be the Appellate Tribunal for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority under this Act. (2) The constitution and jurisdiction of the State Bench and the Area Benches located in the State shall be in accordance with the provisions of section 109 of the Central Goods and Services....
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....by the Appellate Authority or the Revisional Authority in cases where one of the issues involved relates to the place of supply. 12. Section 109(7) provides that the State Bench or the Area Benches shall have the jurisdiction to hear appeals against the orders passed by the Appellate Authority or the Revisional Authority in the cases involving matters other than the issue relating to the place of supply. 13. Section 109(11) provides that if the Members of the National Bench, Regional Benches, State Bench or Area Benches differ in opinion on any point or points, it shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President or as the case may be, State President for hearing on such point or points to one or more of the other Members of the National Bench, Regional Benches, State Bench or Area Benches and such point or points shall be decided according to the opinion of the majority of Members who have heard the case, including those who first heard it. 14. Section 110 of the Act prescribes the qualification, appo....
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...., 2017, more particularly the composition and qualification of the members to the Goods and Services Tax Appellate Tribunal. 21. The first challenge is to the vires of Section 110 (1)(b) of the CGST Act, on the ground of exclusion of lawyers from being eligible to be appointed as a Judicial Member of the tribunal. According to the petitioners, exclusion of lawyers from zone of consideration as a Judicial Member, is violative of Article 14 of the Constitution of India. It is the contention of the petitioners that the exclusion of lawyers from being considered to hold the post of Judicial Member of the tribunal is a departure from the existing practice. It is the case of the petitioners that Advocates are eligible to be considered as members of various tribunals and there is no justification or reason as to why they should be excluded from the zone of consideration of being appointed as Judicial Members under the CGST and TNGST Act. The petitioners state that in the Income Tax Appellate Tribunal, which is the oldest tribunal of India, CESTAT, the Sales Tax /VAT Tribunals, Advocates having more than ten years of experience were being considered for selection as Judicial Members. It i....
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....rs can be considered for appointment as a judicial members. Persons who have held a Group A post or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and the Indian Legal Service (Grade I) cannot be considered for appointment as judicial members as provided in sub-sections (2) (c) and (d) of Section 10-FD. The expertise in Company Law Service or the Indian Legal Service will at best enable them to be considered for appointment as technical members." (emphasis supplied) 25. The next challenge is to the composition of the Appellate Tribunal. The composition of the Appellate Tribunal of CGST or TNGST, as the case may be, under Section 109(3) and 109(9) of the CGST Act, 2017 prescribes that the tribunal will consists of one Judicial Member, one Technical Member (Centre) and one Technical Member (State). Thus, there are two Technical Members as against one Judicial Member. The two Technical Members therefore can overrule the Judicial Member who will be in minority. 26. The submission of the petitioner is that any tribunal where the Judicial Member is in the minority in a Bench, is violative of Articles 14 and 50 o....
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....e tribunal. Mr.Arvind Datar, learned Senior Counsel appearing for the petitioners would rely on the Constitution of the Income Tax Appellate Tribunal, CESTAT and other Sales Tax / VAT tribunals in all the States in the Country, where lawyers with 10 years of practice or Lawyers eligible to be appointed as Judge of the High Court are being considered for selection and are also selected as Judicial Members. Mr.Arvind Datar, learned Senior Counsel appearing for the petitioners would submit that advocates who are practicing in that particular branch are experts in the field and would be very valuable and their experience will become very handy if they are selected as Judicial Members. 29. Mr.Arvind Datar, learned Senior Counsel appearing for the petitioners also places reliance on paragraph No.76 of the judgment of the Hon'ble Supreme Court in R.K.Jain Vs. Union of India, reported in 1993 (4) SCC 119, wherein the Hon'ble Supreme Court emphasis on the need for recruitment of members of the Bar to man the tribunal which reads as under. "Before parting with the case it is necessary to express our anguish over the ineffectivity of the alternative mechanism devised for judicial r....
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....e Tribunal, it will result in invalidation of the relevant provisions relating to the constitution of the Tribunal. If the qualifications/eligibility criteria for appointment fail to ensure that the members of the Tribunal are able to discharge judicial functions, the said provisions cannot pass the scrutiny of the higher Judiciary." 31. Mr.Arvind Datar, learned Senior Counsel appearing for the petitioners, would say that apart from the fact that the legislation has not appreciated the need of the hour and the guidelines, as given by the Hon'ble Supreme Court, he would state that Section 110(1)(b) which excludes lawyers from being considered eligible for appointment as Judicial Member of the Tribunal is arbitrary of Article 14 of the Constitution of India. He would state that confining the eligibility of Judicial Member, to retired High Court Judges and retired District Judges who are qualified to be appointed as High Court Judges and Officer of the Indian legal Services, is not a valid classification. He would state that exclusion of Advocates and especially those Advocates who have good experience in the said subject does not have any nexus with the objects sought to be achi....
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....e Government with experience in the Indian Company Law Service (Legal Branch) and the Indian Legal Service (Grade I) cannot be considered for appointment as judicial members while dealing with Section 10-FD(2)(c) and (d) of the Companies Act, 2013. He would state that Section 110(b)(iii) is per se contrary to the law laid down by the Hon'ble Supreme Court in the said judgment and must be struck down. 34. Mr.Arvind Datar, learned Senior Counsel appearing for the petitioners would state that the composition of the Benches in which the Technical Members would be majority is unconstitutional and he would state that Section 109 of the CGST Act, 2017, which prescribes that the tribunal shall consist of One Judicial Member, one Technical Member (Centre) and one Technical Member (State) i.e., two administrative members as against one judicial member is contrary to mandate of Article 50 of the Constitution of India and such a composition would seriously affect the independence of judiciary. 35. Mr.Arvind Datar, learned Senior Counsel appearing for the petitioners would rely on a judgment passed by a Hon'ble Division Bench of this Court in S.Manoharan Vs. The Deputy Registrar, Cent....
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....here the administrative members exceeds the judicial members. He would argue that this would be in direct contravention of the spirit of Article 50 of the Constitution of India. The purpose of Article 50 has to separate the judiciary from the executive in the public services of the State. The underlying concept being that the executive must be kept away from discharging judicial functions. Mr.Arvind Datar, would place reliance on the judgment of the Hon'ble Supreme Court in Supreme Court Advocates on Record Association Vs. Union of India, reported in 1993 (4) SCC 441, wherein at paragraph No.81, Hon'ble Supreme Court has observed as under. "According to this Article, the definition of the expression "the State" in Article 12 shall apply throughout Part IV, wherever that word is used. Therefore, it follows that the expression "the State" used in Article 50 has to be construed in the distributive sense as including the Government and Parliament of India and the Government and the Legislature of each State and all local or other authorities within the territory of India or under the control of the Government of India. When the concept of separation of the judiciary from the ....
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....gh, Regional Director (Northern Region) of the Ministry of Corporate Affairs. This affidavit makes it clear that, acting in compliance with the directions of the Supreme Court in the aforesaid judgments, a Selection Committee was constituted to make appointments of Members of NCLT in the year 2015 itself. Thus, by an order dated 27-7-2015, (i) Justice Gogoi (as he then was), (ii) Justice Ramana, (iii) Secretary, Department of Legal Affairs, Ministry of Law and Justice, and (iv) Secretary, Corporate Affairs, were constituted as the Selection Committee. This Selection Committee was reconstituted on 22-2-2017 to make further appointments. In compliance of the directions of this Court, advertisements dated 10-8-2015 were issued inviting applications for Judicial and Technical Members as a result of which, all the present Members of NCLT and Nclat have been appointed. This being the case, we need not detain ourselves any further with regard to the first submission of Shri Rohatgi. 36. It is obvious that the rules of business, being mandatory in nature, and having to be followed, are to be so followed by the executive branch of the Government. As far as we are concerned, we are bound....
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.... to be considered for appointment as a Judicial Member of the tribunal. The Advocates Act, 1961 permits only an advocate to practice in any Court. The Advocates Act, 1961 does not give any right to an Advocate, to be considered to be appointed as a Judge in a Tribunal and it is for the Government to decide as to whether an Advocate must or must not be considered to be eligible to be appointed as Judicial Member of the tribunal. In the absence of any right, no duty is cast on the government to consider the eligibility of advocates for being appointed as a member of the tribunal. It is stated that it is for the employer to decide the qualification and mere right to be considered cannot be a statutory or constitutional right, in the absence of any rule, which makes advocates eligible to be considered for appointment. It is also stated that just because the Administrative Members are more in number in the bench, it does not mean that the composition of the tribunal is bad. It is contended that the entire argument of the petitioners proceeds on an apprehension that the judgment of an Administrative Member while overruling the Judicial Member would be wrong and therefore the Administrati....
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....has been followed. The qualifications are the minimum qualifications, and during the process of selection, the Competent Authority would ensure that the officers of sufficient seniority and high level of competence are selected as members. It is also emphasised that the same qualification has been prescribed for the Member Technical (Accountant Member) in Income Tax Appellate Tribunal and this system has been smoothly functioning there, from many years. 46. The Union of India would state that the GSTAT is a creature of Article 246-A of the Constitution of India. The Appellate Tribunal constituted under Section 109 of the CGST Act, 2017 and the TNGST Act, 2017, have been created by virtue of the powers conferred on the parliament under Article 246-A of the Constitution of the India. They are not substitute to High Court and are therefore, not tribunal under Article 323 A and B of the Constitution of India. The Union of India would therefore submit that the judgments of the Hon'ble Supreme Court in S.P.Sampath Kumar and Ors. Vs. Union of India (UOI) and Ors, reported in 1987 (1) SCC 124, L.Chandrakumar Vs. Union of India, reported in 1997(3) SCC 261, Union of India Vs. R.Gandhi....
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....ive Tribunal. It is submitted that time and again it has been held in the case of Appellate Tribunals created under statute like FEMA, Central Excise Act/ Customs Act, VAT Acts that the remedy available to the High Court or to the Apex court is available only as a statutory appeal on a question of law, wherein the High Court or Supreme Court is a statutory forum of appeal and these tribunals do not exercise original jurisdiction. The Union of India, relies upon the decisions of the Hon'ble Supreme Court in Raikumar Shivhare Vs. Assistant Director, Directorate of Enforcement and ors., reported in (2010) 4 SCC 772, wherein, while answering a question as to whether a Writ Petition was maintainable as against the order of the Appellate Tribunal established under the Foreign Exchange Management Act, 1992 (FEMA), it was held that the right of appeal being always a creature of statute has to be determined to the statute itself. The Hon'ble Apex Court further held that:- "34. When a statutory forum is created by law for redressal of grievance and that too in a fiscal state, a writ petition should not be entertained ignoring the statutory dispensation. In this case High Court is a statut....
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....pointment under clauses d,e,f should also be legally qualified and judicially trained in the sense that they have long experience in dealing with quasi judicial proceedings and with adjudication proceedings. 49. It is therefore contended on behalf of Union of India that the reliance made on the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. R.Gandhi reported in 2010(11) SCC 1, Madras Bar Association Vs. Union of India, reported in 2014 (10) SCC 1 and L.Chandrakumar Vs. Union of India, reported in 1997(3) SCC 261, is misplaced. 50. The Union of India would state that just because Section 111(4) states that all proceedings shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code, and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973, that does not lead to a conclusion that the tribunal is a Court. It is submitted that on a proper reading of Section 111 it is clear that the Appellate Tribunal is not bound by the procedure laid down in Civil Procedure Code but can regula....
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....proceedings within the meaning of Sections 193 and 228 of the IPC, do not become Courts. It is submitted that Section 111(4) is only to ensure that the evidence given either oral or documentary have to bear the semblance of truth in it and to ensure cooperation during investigations and enquiry. It is submitted that likewise Section 111(4) of the CGST Act lays down that the proceedings are deemed to be "judicial proceedings" only in the circumstances mentioned in Section 111(4) of the CGST Act and have limited powers of a Civil Court, as exhaustively laid down in Section 111(2) of the CGST Act. The GSTAT is only an appellate body placed in the second tier in the appeal hierarchy of the GST which discharges judicial functions and cannot be placed on par with a Court of law and definitely, they are not substitutes of the High Court. The respondents place reliance on the decisions of the Hon'ble Supreme Court in Harinagar Sugar Mills Ltd. V. Shyam Sundar Jhunjhunwala reported in (1962) 2 SCR 339 have laid down following principles:- a) All Tribunals are not Courts, though all Courts are Tribunals". The word "Courts" is used to designate those Tribunals which are set up in an organi....
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....oner herein that there would be preponderance of technical members over judicial member is wholly untenable; That too in circumstances when the President or State President who are essentially judicial members have a say in the matter. 54. The Union of India further states that Section 110(3) of the CGST Act provides that the Technical Member of the National Bench/Regional Benches would be appointed by the Central Government on recommendation by Selection Committee. It is submitted that the President, Judicial Members and the Technical Members are yet to be appointed, the Selection Committee has also not being formed. It is therefore submitted that the apprehension entertained by the petitioner herein at this stage is premature and unwarranted. The revenue places reliance on a judgment of the High Court of Bombay in Sales Tax Tribunal Bar Association and Ors vs. The State of Maharashtra and Ors [2018] 50 GSTR 417 (Bom) which held that if the Technical Member are legally qualified and judicially trained in the sense that they have long experience dealing with quasi judicial proceeding/and or adjudication proceedings, the proceeding of the Tribunal would well qualify as judicial pro....
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....mbers than judicial. He would submit that the composition of the tribunal would depend upon the nature of disputes that is to be adjudicated and there cannot be any straight jacket formula applied as suggested by the Petitioner. He would state that the GST is an amalgam of all the above fiscal legislations and the members need to be experts in the branch of taxation and therefore, the composition of the tribunal having more experts than the judicial member cannot be found fault with. It is therefore stated that in view of checks and balances in the form of appellate jurisdiction exercised by the High Court under Section 117 and by the Supreme Court under Section 118 of CGST Act and also the fact that the orders of the tribunal are subject to judicial review under Article 226 there are adequate safeguards and thus a mere existence of more numbers of nonjudicial members may not by itself result in invalidating the legislation. 57. Heard the learned counsel for the parties and perused the materials available on record. 58. The issues therefore, which arise for consideration are (i) whether the exclusion of advocates from being considered for appointment as a Judicial Member in GST....
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.... Court at paragraph No.16 has observed as under. "16. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail. " 60. The submission of the Union of India that the right of Advocates is only to practice in a Court or tribunal and the A....
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.... held a post not less than Additional Secretary for a period of three years, is no longer res integra. The issue stands settled. Paragraph No.120 in Union of India Vs. R.Gandhi reported in 2010(11) SCC 1, categorically states that a person who has held a position under the Indian Legal service cannot be considered for appointment as judicial members. The Hon'ble Supreme Court in paragraph No.112.6 and 112.7 observed as under. "112.6. The next dilution is by insertion of Chapters 1B in the Companies Act, 1956 with effect from 1.4.2003 providing for constitution of a National Company Law Tribunal with a President and a large number of Judicial and Technical Members (as many as 62). There is a further dilution in the qualifications for members of National Company Law Tribunal which is a substitute for the High Court, for hearing winding up matters and other matters which were earlier heard by High Court. A member need not even be a Secretary or Addl. Secretary Level Officer. All Joint Secretary level civil servants (that are working under Government of India or holding a post under the Central and State Government carrying a scale of pay which is not less than that of the Joint ....
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....echnical matters, wherein which does not involve interpretation of law or adjudication on the basis of legal principles. The said tribunal is an appellate body against which an appeal, lies to Hon'ble Supreme Court. In this scenario it cannot be said that there is any difference from the standard applied to eligibility of members to be appointed to the NCLT / NCLAT and those members who have to be appointed to the GSTAT. In fact, the submission of the Union of India that the judgments of Union of India Vs. R.Gandhi reported in 2010(11) SCC 1 and Madras Bar Association Vs. Union of India, reported in 2014 (10) SCC 1, would apply only to a tribunal which are formed under Articles 323 and 323 B, cannot be accepted. 64. The submissions made by Mr.Arvind P.Datar, learned senior counsel that even tribunals, which are not constituted under Article 323-B of the Constitution of India, there cannot be any difference in matters of appointment of members. All the tribunals regardless of the fact that they are tribunals constituted under Article 323-A, 323-B or under any statute, are a part of justice delivery system and for effective justice delivery system, there is a need of an independ....
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.... of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental--as opposed to a substitution - role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses Clause (3) of Article 32 of the Constitution which reads as under: 32. Remedies for enforcement of rights conferred by this Part.-- (1).. (2) .. (3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2). Emphasis supplied)" 69. The Hon'ble Supreme Court in L.Chandra Kumar's case [quoted supra], has adverted to the Report of the Arrears Committee (1989-90), popularly known as and the Manlimath Committee, which has made recommendations regarding functions of tribunals. Para Nos.8.63 and 8.64 and 8.65 of the Report, has been reproduced in paragraph No.88 of the said judgment. It is specifically stated that the tribunals have not inspired confidence in the public mind and the foremost re....
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....f the High Courts in regard to matters entrusted for adjudication to such tribunals, ought not to overlook these vital and important aspects. It must not be forgotten that what is permissible to be supplant by another equally effective and efficacious institutional mechanism is the High Courts and not the judicial review itself. Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, uniformity of approach, predictability of decisions and specialist justice are to be achieved, the frame work of the tribunal intended to be set up to attain them must still retain its basic judicial character and inspire public confidence. Any scheme of decentralisation of administration of justice providing for an alternative institutional mechanism in substitution of the High Courts must pass the aforesaid test in order to be constitutionally valid." 70. A perusal of the said paragraph though deals with tribunals, the said paragraph cannot be restricted only to the tribunals which substitute the High Court. As observed earlier, L.Chandrakumar's case [quoted supra] itself an authority for proposition that all the tribunals must be subject ....
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....s that the Impugned Act, is different. The issue regarding dominance of the technical members and constitutional validity of the same shall have to be examined keeping in mind the Judgements of the Hon'ble Supreme Court, relating to the importance of the independence of the Judiciary, as well as the manner in which the Parliament could establish Tribunals, to discharge what is essentially a Judicial Function. 76. In the case of Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, Justice K.K. Mathew, observed as under: 318. The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and, the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever-shifting tangle of human affairs. A large part of the effort of man over centuries has been expended in seeking a solution of this great problem. A region of law, in contrast to the tyranny of power, can be achieved only through separating appropriately the several powers of the Government.If the lawmakers should also be the constant administ....
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.... that Montesquieu's doctrine did not mean that separate departments might have "no partial agency in or no control over the acts of each other". His meaning was, according to Madison, no more than that one department should not possess the whole power of another. [Emphasis Supplied] 77. Similarly, the Supreme Court in the case of, Union of India v. SankalchandHimatlalSheth, (1977) 4 SCC 193, has explained the need for the independence of Judiciary, especially in a country like India, where the largest litigants are the States, as under: 50.Now the independence of the judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document. It is indeed a part of our ancient tradition which has produced great Judges in the past. In England too, from where we have inherited our present system of administration of justice in its broad and essential features, judicial independence is prized as a basic value and so natural and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it is now almost taken for granted and it would be regarded an act of insanity for anyone to think otherwis....
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....ior judiciary and with what meticulous care they made provisions to that end. [Emphasis Supplied] 78. In the case of Ministry of Health & Welfare, Government of Maharashtra v. S.C. Malte, (2012) 13 SCC 118, the Hon'ble Supreme Court observed as under. "30. It is a known fact that a large part of the litigation in courts is generated from people being aggrieved against the governance, action and inaction of the Government including the executive and/or its instrumentalities. Thus, the courts must be kept free from any influence that the executive may be able to exercise by its actions, purely executive or even by its power of subordinate legislation. Where this Court refers to independence, fairness and reasonableness in decisionmaking as the hallmarks of judiciary, there it also states impartiality as one of its essentials. Though, what is most important is the independence of judiciary, its freedom from interference and pressure from other organs of the State. The courts and Judges, thus, must be provided complete freedom to act, not to do what they like but to do what they are expected to do, legally and constitutionally and what the public at large expects of administra....
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....ns. To preserve the doctrine of separation of powers, it is necessary that the provisions falling in the domain of judicial field are discharged by the judiciary and that too, effectively. [Emphasis Supplied] 80. In the case of S.P. Gupta v. Union of India, 1981 Supp SCC 87, the Hon'ble Supreme Court observed as under. "334. Dr Singhvi submitted that independence of judiciary comprises two fundamental and indispensable elements viz. (1) independence of judiciary as an organ and as one of the three functionaries of the State, and (2) independence of the individual Judge. 335.There can be no quarrel that this proposition is absolutely correct. Our Constitution fully safeguards the independence of Judges as also of the judiciary by a three-fold method- (1) by guaranteeing complete safety of tenure to Judges except removal in cases of incapacity or misbehaviour which is not only a very complex and complicated procedure but a difficult and onerous one, (2) by giving absolute independence to the Judges to decide the cases according to their judicial conscience without being influenced by any other consideration and without any interference from the executive. Article 50 ....
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....the Constitution and has to act within the limits of such power. It is a limited government which we have under the Constitution and both the executive and the legislature have to act within the limits of the power conferred upon them under the Constitution. Now a question may arise as to what are the powers of the executive and whether the executive has acted within the scope of its power. Such a question obviously cannot be left to the executive to decide and for two very good reasons. First the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law, the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, it....
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....er of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that clause (4) of the Article 368 is unconstitutional and void as damag....
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....on akin to a High Court, in the sense of being impartial and independent. 83. In the case of R.K. Jain v. Union of India, (1993) 4 SCC 119, at the Hon'ble Supreme Court laid emphasis on the importance on the presence of judicial approach, in Tribunals constituted under Articles 323-A and 323-B, and the observations, are extracted as under: "67. The tribunals set up under Articles 323-A and 323-B of the Constitution or under an Act of legislature are creatures of the statute and in no case can claim the status as Judges of the High Court or parity or as substitutes. However, the personnel appointed to hold those offices under the State are called upon to discharge judicial or quasi-judicial powers. So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modi....
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....cribe the qualification for the judicial member? The answer, of course, depends upon the nature of jurisdiction that is being transferred from the courts to tribunals. Logically and necessarily, depending upon whether the jurisdiction is being shifted from a High Court, or a District Court or a Civil Judge, the yardstick will differ. It is for the court which considers the challenge to the qualification, to determine whether the legislative power has been exercised in a manner in consonance with the constitutional principles and constitutional guarantees. ****** We may summarise the position as follows: (a) A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal. (b) All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a judicial tribunal. This means that such tribunal should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters a....
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....ist of at least one judicial member, and in the event that a larger bench was to be formed, such larger bench would necessarily require the present of judicial members at par, or in excess of the no. of technical members. 86. In the case of Madras Bar Assn. v. Union of India, (2014) 10 SCC 1, the Hon'ble Supreme Court observed as under. 124. One needs to also examine sub-sections (2), (3), (4) and (5) of Section 5 of the NTT Act, with pointed reference to the role of the Central Government in determining the sitting of the Benches of NTT. The Central Government has been authorised to notify the area in relation to which each Bench would exercise jurisdiction to determine the constitution of the Benches, and finally to exercise the power of transfer of Members of one Bench to another Bench. One cannot lose sight of the fact that the Central Government will be a stakeholder in each and every appeal/case which would be filed before NTT. It cannot, therefore, be appropriate to allow the Central Government to play any role, with reference to the places where the Benches would be set up, the areas over which the Benches would exercise jurisdiction, the composition and the consti....
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....e "independence of judiciary", and the "rule of law".It is difficult to appreciate how Accountant Members and Technical Members would handle complicated questions of law relating to tax matters, and also questions of law on a variety of subjects (unconnected to tax), in exercise of the jurisdiction vested with NTT. That in our view would be a tall order. An arduous and intimidating asking. Since the Chairperson/Members of NTT will be required to determine "substantial questions of law", arising out of decisions of the Appellate Tribunals, it is difficult to appreciate how an individual, well-versed only in accounts, would be able to discharge such functions. Likewise, it is also difficult for us to understand how Technical Members, who may not even possess the qualification of law, or may have no experience at all in the practice of law, would be able to deal with "substantial questions of law", for which alone, NTT has been constituted. [Emphasis Supplied] 87. In the case of State of Karnataka v. Vishwabharathi House Building Coop. Society, (2003) 2 SCC 412, after analysing the provisions of the Consumer Protection Act, 1986, the Hon'ble Supreme Court upheld the validity of the....
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....ourts of civil judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to courts, but are not courts. When the Constitution speaks of 'courts' in Articles 136, 227 or 228 or in Articles 233 to 237 or in the Lists, it contemplates courts of civil judicature but not tribunals other than such courts. This is the reason for using both the expressions in Articles 136 and 227. By 'courts' is meant courts of civil judicature and by 'tribunals', those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. W....
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....ch reads as under. (99) "Revisional Authority" means an authority appointed or authorised for revision of decision or orders as referred to in section 108; 96. The revisional authority subject to the provisions of Section 121 and any rules made thereunder, may, on his own motion or upon information received by him or on request from the Commissioner of State tax, or the Commissioner of Union Territory Tax, shall call for and examine the record of any proceedings, and if he considers that any decision or order passed under this Act or under the State Goods and Service tax Act or the Union Territory Goods and Services Tax Act, by any officer subordinate to him is erroneous and is prejudicial to the interest of revenue or it is illegal or improper or has not taken into account certain material facts, shall stay the operation of the order for such period as he deems fit and after giving the person concerned, an opportunity of being heard, can pass order as he thinks just and proper, including enhancing or modifying or annulling the said decision or order . 97. The order of the appellate authority and the order of the revisional authority, are taken to the appellate tribunal. The ap....
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.... any bias. Infact the Hon'ble Supreme Court in Manak Lal (Shri), Advocate Vs. Prem Chand Singhvi and Others, reported in 1957 SCR 575 has observed that when a tribunal or a Court decides the matter, the test is not whether in fact a bias has affected the judgment. The test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the Tribunal might have operated against him in the final decision of the tribunal. 101. The disputes which arise in these tribunals are between the assessee and the State. The technical members are nominees of the State government. In fact the Hon'ble Supreme Court in Manak Lal's case [quoted supra] has observed as under. "4... In dealing with cases of bias attributed to members constituting Tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest, however small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a Judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a re....
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....ation along with other Members and if the opinion among the Members is equally divided, he shall refer the matter to the other Members of the Tribunal. This is despite the fact that the Chairperson of the Tribunal, as per Section 5(1) of the Act, should have been either a Judge of the Supreme Court or the Chief Justice of a High Court. Perhaps, the situation contemplated by the Second Proviso to Section 21 of the National Green Tribunal Act, 2010 has not so far arisen, where it is possible for an Expert Member to tilt the balance in favour of the one contrary to what one set of Members including the Chairperson had decided. 42. It appears that in exercise of the powers conferred by Section 4(4) read with Section 35 of the National Green Tribunal Act, 2010, the Central Government has issued a set of rules known as National Green Tribunal (Practices and Procedure) Rules, 2011. Rule 3(1) of these Rules empowers the Chairperson of the Tribunal to constitute a Bench of two or more Members consisting of at least one Judicial Member and one Expert Member. Under Rule 5(1), an application or appeal should be heard by the Tribunal consisting of at least one Judicial and one Expert Member. ....