TaxTMI 
TaxTMI 
1995 (3) TMI 506
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....26 of the Constitution was the notification dated 5 July, 1994 issued by the Central Government in the Ministry of Finance, Department of Economic Affairs, Banking Division, whereby, under S. 3 of the Act, Debts Recovery Tribunal, with the areas of jurisdiction as Delhi was established. It is alleged that the appointment of the third respondent is an exercise of fraud on the powers conferred on the Central Government under the Act. 2. This petition was filed on 22 July, 1994 and when it came up for admission, notice was issued to the respondents to show cause as to why rule nisi not be issued, and at the same time the operation of the Act in its applicability to Union Territory of Delhi was stayed by passing the following order on 25 July, 1994 :-- "CM. No. 5739/94 : Notice for 4 August, 1994. Mr. Luthra submits that the impugned Act, namely, The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, is invalid. He says the Act is discriminatory in nature and that there is no provision for filing of counter-claims or set off before the Tribunal constituted under the Act, and further that while the High Court tries the suits of the value of Rs. 5 l....
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....unproductive assets, the value of which deteriorates with the passage of time. The Committee on the Financial System headed by Shri M. Narasimham has considered the setting up of the Special Tribunals with special powers for adjudication of such matters and speedy recovery as critical to the successful implementation of the financial sector reforms. An urgent need was, Therefore, felt to work out a suitable mechanism through which the dues to the banks and financial institutions could be realised without delay. In 1981 a Committee under the Chairmanship of Shri T. Tiwari had examined the legal and other difficulties faced by banks and financial institutions and suggested remedial measures including changes in law. The Tiwari Committee had also suggested setting up of Special Tribunals for recovery of dues of the banks and financial institutions by following a summary procedure. The setting up of Special Tribunals will not only fulfill a long-felt need, but also will be an important step in the implementation of the Report of Narasimham Committee. Whereas on 30th September, 1990 more than fifteen lakhs of cases filed by the public sector banks and about 304 cases filed by the financ....
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.... to recommend measures for recovery of the debts so due. In any case the Committee said that "these suggestions for legislative measures are not exhaustive. We would recommend that the legal implications with reference to each of our recommendations wilt need to be examined and detailed legislative steps identified by the Government in consultation with the Law Ministry." The criticism leveled by the petitioners has been that in a matter like this, the Law Commission which has been constituted by the Government resolution, should have been consulted and its report obtained for establishment of the Tribunals and their jurisdiction as envisaged by the Act. Reference was made to 120th Report of the Law Commission relating to the "Manpower Planning in Judiciary" and also to 115th Report on establishing "Tax Courts" in the country. It was submitted that delay occurring in suits in Civil Courts could not be a ground for establishment of Tribunals inasmuch as the Law Commission reported that there was paucity of judges and that the total Judge strength was grossly inadequate for India. This factor, it was submitted, was not taken into account while enacting the Act. On the 115th Report of....
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.... the extent of its application and it is as under: -- "(4) The provisions of this Act shall not apply where the amount of debt due to 3ny bank or financial institution or to a consortium of banks or financial institutions is less than ten lakhs rupees or such other amount, being not less than one lakh rupees, as the Central Government may, by notification, specify." 7. Section 2 of the Act defines certain words used in the Act and some of these definitions are as under :-- XX XX XX (d) "bank" means- (i) a banking company; (ii) a corresponding new bank; (iii) State Bank of India; (iv) a subsidiary bank; or (v) a Regional Rural Bank; (e) "banking company" shall have the meaning assigned to it in Cl. (c) of S. 5 of the Banking Regulation Act, 1949 (10 of 1949). (f) "corresponding new bank" shall have the meaning assigned to it in Cl. (da) of S. 5 of the Banking Regulation Act, 1949 (10 of 1949); (g) "debt" means any liability (inclusive of interest) which is alleged as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during....
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....ent by notification, establish one or more Tribunals, to be known as the Debts Recovery Tribunal, to exercise the jurisdiction, powers and authority conferred on such Tribunal by or under this Act. The Central Government shall also specify the areas within which the Tribunal may exercise jurisdiction for entertaining and deciding the applications filed before it. Under Section 4, the Presiding Officer of the Tribunal is to be appointed by the Central Government. Under Section 5, a person shall not be qualified for appointment as the Presiding Officer of a Tribunal unless he is, or has been, or is qualified to be, a District Judge. Under Section 6, the Presiding Officer 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 years, whichever is earlier. Under Section 7, the Tribunal shall be provided with a Recovery Officer by the Central Government and such other officers and employees as the Central Government may think fit. The Recovery Officer and all the staff shall discharge their functions under the general superintendence of the Presiding Officer. Their salaries and allowances and other conditions of se....
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....stion in any manner, and no act or proceedings before a Tribunal or an Appellate Tribunal shall be called in question in any manner on the ground merely of any defect in the Constitution of a Tribunal or an Appellate Tribunal. 11. Then comes Chapter III deal with jurisdiction, powers and authority of Tribunals. Sections 17 and 18 under this Chapter may be reproduced as under :-- "17. Jurisdiction, powers and authority of Tribunals. -- (1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. (2) An Appellate Tribunal shall exercise, on and for the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act." "18. Bar of jurisdiction. -- On and from the appointed day, no court or other authority shall have, nor be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Arts. 226 and 227 of the C....
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....debt is due to a bank or a financial institution, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal 75% of the amount of debt so due from him as determined by the Tribunal. The Appellate Tribunal may, however, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. 15. Section 22 provides for procedure and powers of the Tribunal and Appellate Tribunal. They are not bound by the procedure made by the Code of Civil Procedure but shall be guided by the principles of natural justice, and subject to the provisions of the Act and the Rules shall have powers to regulate their own procedure, including the place at which they shall have their sittings. 16. Section 24 provides that provisions of the Limitation Act, 1963, shall as far as may be, apply to an application made to a Tribunal. 17. Then, Chapter V deals with recovery of debt determined by Tribunal and Section 25 falling under this chapter prescribes modes of recovery of debts which are (1) attachment and sale of the movable or immovable property of the defendant; (2) arrest of the defendant and his detent....
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....shall, as soon as may be after such transfer, forward the records of such suit or other proceeding to the Tribunal; and (b) the Tribunal may, on receipt of such records, proceed to deal with such suit or other proceeding, so far as may be, in the same manner as in the case of an application made under Section 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit." Under Section 31 aforesaid, while every suit or other proceeding pending before court shall stand transferred to the Tribunal, no appeal pending before any court shall, however, be deemed to have been transferred to the Appellate Tribunal established under the Act. The Act, however, does not provide if the provisions of Section 21 of the Act would also be applicable to the suit or other proceedings transferred to the Tribunal under Section 31 of the Act. Though the right of appeal is statutory right, but it is vested right when suit or proceeding was instituted in the court though there is no such condition regarding deposit of the amount of the debt if held to be due on filing the appeal by the judgment debtor. 24. Under Section 34,....
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....anking Regulation Act, in addition to the business of banking, a banking company may engage in any one or more of the following forms of business. "(a) the borrowing, raising, or taking up of money; the lending or advancing of money either upon or without security; the drawing, making, accepting; discounting, buying, selling collecting and dealing in bills of exchange hoondees, promissory notes, coupons, drafts, bills of lading, railway receipts, warrants, debentures, certificates, scripts and other instruments, and securities whether transferable or negotiable or not; the granting and issuing of letters of credit,traveller's cheques and circular notes; the buying, selling and dealing in bullion and specie, the buying and selling of foreign exchange including foreign bank notes; the acquiring, holding, issuing on commission, underwriting and dealing in stock, funds, shares, debentures, debenture stock, bonds obligations, securities and investments of all kinds; the purchasing and selling of bonds, scrips or other forms of securities on behalf of constituents on others, the negotiating of loans and advances; the receiving of all kinds of bonds, scrips or valuables on de....
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....rights of the company; (m) acquiring and undertaking the whole or any part of the business of any person or company, when such business is of a nature enumerated or described in this sub-section; (n) doing all such other things as are incidental or conducive to the promotion or advancement of the business of the company; (o) any other form of business which the Central Government may, by notification in the Official Gazette, specify as a form of business in which it is lawful for a banking company to engage." 28. Examination of provisions of the Act would show that while a bank can file an application for recovery of the debt due to it, if the respondent has any claim against the bank he must necessarily go to the civil court. There is no provision under the Act or the Rules for a person to raise any counter claim. It cannot be said that counter-claim can be raised as a part of natural justice. Perhaps not. Mr. Chandrasekharan, learned Additional Solicitor General, said that counterclaim or any other defense raised will bar the claim of the bank. Admittedly, Therefore, counter-claim, if valid, cannot be decreed by the Tribunal and the claimant per forc....
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....made to him which amount is to carry interest at a particular rate per annum. The bill concerns the consignment of lubricated oil sent by first defendant at Delhi to its customer defendant No. 2 at Lucknow through the third defendant, a transporter. The bill is not honoured by the second defendant when presented for the first time. There is a great deal of correspondence between the bank, the first and second defendants, and ultimately the bank instructs the third defendant, the transporter, to re-book the consignment to Delhi. The third defendant informs the bank that the goods are lying undelivered at its U.P. border office, and the third defendant makes a claim against the bank for Rs. 'Y' on account of transportation charges, demurrage/storage charges. The transporter also raises its counter-claim against defendants 1 and 2. Various defenses are raised by defendants 1 and 2 denying their liability to the bank, issues are framed, evidence led and after examination of the whole case the court comes to the conclusion that defendants 1 and 2 are not liable, and that the claim of the third defendant, the transporter, is justified against the bank. The court will in that case....
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....having areas of jurisdiction as Delhi. Under Section 5 a person shall not be qualified for appointment as the Debts Recovery Tribunal unless he is, or has been, or is qualified to be, a District Judge. Under Section 18 of the Act, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Arts. 226 and 227 of the Constitution) in relation to the matters specified in Section 17. Under Section 17, the Debts Recovery Tribunal shall exercise the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions which, as per sub-section (4) of Section 1, could only be of the amount of rupees ten lakhs and above. Thus, the Delhi High Court though having supervisory jurisdiction and jurisdiction under Art. 227, and also jurisdiction under Art. 226 of the Constitution to issue writs, orders or directions to the Debts Recovery Tribunal can try suits only between the value of rupees five to rupees ten lakhs, and above that the suits can be tried only by an aut....
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....ed to in Art. 329 and Art. 329A; (g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods; (h) rent, its regulation and control and tenancy issues including the right, title and interest of landlords and tenants; (i) offences against laws with respect to any of the matters specified in sub-clauses (a) to (h) and fees in respect of any of those matters; (j) any matter incidental to any of the matters specified in sub-clauses (a) to (i). (3) A law made under clause (i) may - (a) provide for the establishment of a hierarchy of tribunals; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals; (c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals; (d) exclude the jurisdiction of all courts except the jurisdiction of the Supreme Cour....
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....List I which provides for "jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; admiralty, jurisdiction", it was submitted that the Parliament could legislate with reference to jurisdiction and powers of all courts with respect to any of the matters in List I which also contains banking and insurance as Entries 45 and 47 respectively, and that though financial institutions were not specifically mentioned in any of the entries in List I, what could be covered under residuary Entry 97. The argument was that no tribunal could be constituted, Therefore, with reference to any matter in List I, and the present Act, which constituted tribunals, was void. Then the submission was that the Constitution contemplates four tier system of courts, i.e., (1) the Supreme Court (Articles 124-146), (2) High Court of a State (Articles 264-231), (3) District, and (4) Subordinate Courts (Articles 233-237). It was submitted that a Constitution of Tribunal does not fit under the scheme of the Constitution. 35. Entry 11-A in List III (Concurrent List) was inserted by the Constitution (Forty-second Amendment) Act, 1976, and it is as under :-- ....
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....o recruitment and conditions of service of public servants belonging to the Union or the State or any local or other authority. The administrative Tribunal established under this provision would exercise exclusive jurisdiction, except the jurisdiction of the Supreme Court under Article 136. Thus the jurisdiction of all other courts including the High Courts stands ousted on the establishment of an administrative Tribunal under this provision. Article 323B empowers the appropriate Legislature to enact a law providing for adjudication or " trial of disputes, complaints or offences with respect to all or any of the nine matters specified in cl. (2) which, inter alia, includes matters relating to levy, assessment, collection and enforcement of any tax. The expression 'appropriate Legislature', in relation to any matter, means Parliament or State Legislature competent to make laws with respect to such matters in accordance with Part XI. The law enacted under this provision may provide for the establishment of a hierarchy of Tribunals and exclude the jurisdiction of all courts except the Supreme Court under Art. 136 of the Constitution. Under entry 82 in List I of the VII Schedul....
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....involvement which is so vital to the strength of any institution." 37. The Chief Justice also referred to the idea of setting up a National Tax Court or Tribunal having jurisdiction through out the country which, according to him, had been making the rounds since some time past, and then said :-- "However, our experience with Tribunals, other than ITAT, is none too happy if you go by the pendency in the Central Administrative Tribunal (over 40,000 cases) and CEGAT in regard to which we were constrained to comment, rather strongly, in R. K. Jain v. The Union of India MANU/SC/0291/1993 : 1993(65)ELT305(SC) . That decision brought to the fore the malfunctioning of the CEFAT which constrained us to recommend that the Law Commission undertake an intensive and extensive study of various Tribunals functioning in the country. That exercise is on. Before a final decision on the setting of an all-India Tribunal for Direct Taxes is taken, the report of the Law Commission should be awaited." He concluded by saying :-- "While we all are and should be concerned about the mounting arrears, the remedy may not be to divest the High Courts of work which is essentially judicia....
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....mendment) Ac(, 1976, and no doubt heading of Part XIV-A is Tribunals but apart from the two Articles under Part XIV-A, the Parliament has power to constitute Tribunals. There are provisions both in List I or List III of the 7th Schedule to the Constitution which permit Parliament to make laws to establish Tribunals. Articles 323A and 323B are intended to cover certain Tribunals mentioned therein. But there can be Tribunals like the present one outside these Articles. There cannot be any implied limitation, or bar on the legislative power of the Parliament. The power of Parliament is all pervasive and there has to be an express bar. Article 323B covers cases where the Constitution confers discretion on the Parliament to legislate providing for excluding the jurisdiction of all courts including the High Court except the jurisdiction of the Supreme Court (sub-clause (d) of clause (3) of Article 323B). Where the Constitution does not want Parliament to exercise any such discretion, Parliament can make laws which will not exclude the jurisdiction of the High Court. In the present case, the jurisdiction of the High Court under Arts. 226 and 227 has been kept intact. List II of the 7th Sc....
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....thers, MANU/SC/0006/1995 : AIR1995SC21, challenge was to the validity of S. 52-A in the Tamil Nadu Revenue Recovery Act, 1864, which section was inserted by the Amending Act of 1972. Section 52-A provided as under : -- "52-A. Recovery of sums due to the Tamil Nadu Agro-Industries Corporation and other Corporations, etc., -- Without prejudice to any other mode of recovery which is being taken or may be taken, all loans granted and all advances made to any person - (i) by the Tamil Nadu Agro-Industries Corporation Limited, Madras, or (ii) by such other Corporation (the shares of which have been contributed, underwritten or guaranteed by the State Government), as may be notified in this behalf by the State Government in the Tamil Nadu Government Gazette, or (iii) from out of the Amalgamated Tamil Nadu shares of the Post-War Services Re-construction Fund and the Special Fund for Reconstruction and Rehabilitation of Ex-servicemen, together with interest on such loans and advances, and all sums due to the Corporations mentioned in cl. (i) and (ii) may be recovered in the same manner as arrears of land revenue under the provisions of this Act."....
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....istration of. justice" and "constitution and organisation of all courts" are the subjects on which the State Legislature can legislate. These expressions have been authoritatively interpreted by this Court in Narothamdas case, MANU/SC/0011/1950 : [1951]2SCR51 . It is, Therefore, settled that under Entry 11-A the State Legislature has the power to make laws thereby enlarging or reducing the powers of the courts. The State Legislature can create new courts, reorganise the existing courts, provide jurisdiction to the said courts and also take away the existing jurisdiction if it so desires. We, Therefore, see no reason why a State Legislature cannot confer additional jurisdiction on existing revenue courts to recover any public dues as arrears of land revenue." There cannot be any doubt that the Collector under the revenue law of a State is a revenue court. It is in that context, Therefore, the court held that power of a revenue court by inserting S. 52-A for recovery of sums due to Tamil Nadu Agro-Industries Corporation Limited, etc., could be enhanced and that the section was valid under Entry 11-A, List III, Schedule 7 to the Constitution. The court also referred to Entry ....
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....ese Courts can be described as ordinary Courts of Civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these Courts exercise, are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions." and then also (para 9 of AIR): "Judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy, the State transfers its judicial functions and powers mainly to the Courts established by the Constitution; but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to tribunals by entrusting to them the task of adjudicating upon special matters and disputes between parties. It is really not possible or even expedient to attempt to describe exhaustively the features which are common to the tribunals and the Courts, and features which are distinct and separate. The basic and the fundamental feature which is comm....
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....he machinery of administrative tribunals. In my opinion, item 3 of the State List is Sufficient to give express power to the State Legislature to create and determine the powers and jurisdiction of the office of the House Controller, which is in the nature of a quasi-judicial Tribunal." We agree with these observations. Entry 11-A in Concurrent List has to be given a wide import. 45. In Synthetics and Chemicals Ltd. etc. v. State of U. P.,, the seven judge bench of the Supreme Court said that a Constitution must not be construed in any narrow or pedantic sense and that construction which is most beneficial to the widest possible amplitude of its power, must be adopted. We, Therefore, reject the argument of the petitioners that Tribunal under the Act could not have been established outside the matters mentioned in Art. 323B of the Constitution. 46. Independence of judiciary is the basic feature of the Constitution. It was asserted by the petitioners that the Act erodes independence of judiciary and is invalid. In the appointment of Presiding Officers of the Tribunal and the Appellate Tribunal there is no role of the High Court. The High Court also does not exercise any judi....
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....ing statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy." Constitution of the Tribunal in the present case is a step backward and against the mandate of the Constitution. Parliament can legislate in terms of the Directive Principles, but cannot legislate in derogation of those principles. As noted above, High Court has no role to play in the appointment of the Presiding Officer of either of the Tribunal or the Appellate Tribunal. The appointment is done by the Central Government. In the present case, respondent No. 3 is a member of the Indian Legal Service under the Central Government. Principal banking transactions in the country are done by the public sector banks which are controlled by the Central Government. Financial institutions are also incorporated under Acts of Parliament or State Legislature and are again under the control of the Central/State Government. Indirectly, thus, it will be the Central Government which will be main litigant before the Tribunal and the list is sought to be decided by a Presiding Officer under the control of the Central Government. The provisions of the Act do not show that the....
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....the Income Tax (Certificate Proceedings) Rules, 1962, for recovery of the debt found due already stand incorporated in the Act. Under Section 18 of the Act, jurisdiction of all Courts is barred in relation to matters specified in Section 17. This, however, does not apply to the Supreme Court and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution. It was wholly unnecessary to provide Section 18 saving the jurisdiction of the High Court under Articles 226 and 227 of the Constitution as the Act is not on any of the matters specified in Article 323B of the Constitution. That jurisdiction of a High Court is saved under Articles 226 and 227 of the Constitution, is no substitute for trial of the suit for recovery of debt in the High Court, or the High Court bearing appeal in such a matter from the subordinate court. Again as noted above, under the provisions of the Act, the Tribunal cannot adjudicate upon the claim of set off, adjustment or counterclaim made by the respondent. Assume a case where counter-claim or adjustment is proved and the amounts become due to the respondent and in that case the Tribunal cannot give a judgment in favor of the respondent....
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....nd of inability to fulfill a contractual obligation." The Court said the Covenant banned imprisonment merely for not discharging the decree debt, and unless there be some other vice or means read apart from failure to foot the decree, international law frowns on holding the debtor's person in civil prison, as hostage by the Court. In this case the Court remanded the matter back directing the executing Court to read judicator on the means of the judgment-debtors, but said that the question might squarely arise some day as to whether the proviso to Section 51 read with Order XXI, Rule 37 of the Code was in excess of the constitutional mandate as contained in Article 21 and bad in part. In the present case, not only nationalised banks but other banks have also to proceed under the Act for recovery of their debts and the provisions regarding recovery of debts determined by the Tribunal would also apply to all the banks. The provisions of the Act for recovery of the debt found due may perhaps run counter to the observations of the Supreme Court in Jolly George Varghese's case MANU/SC/0014/1980 : [1980]2SCR913 . 50. Civil Courts which are directly under the control and supe....
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.... to the persons not already in the Delhi Judicial Service, appointment to service shall be made by the Administrator on the recommendation of the High Court." "7. Regular Recruitment:-- Recruitment after the initial recruitment shall be made:-- (a) by promotion on the basis of selection from members of the Delhi Judicial Service, who have completed not less than 10 years of service in the Delhi Judicial Service; (b) by direct recruitment from the Bar. Provided that not more than 1/3rd of the posts in the service shall be held by direct recruits; Provided further that where a member of the Delhi Judicial Service is considered for such appointment under clause (a) all persons senior to him in the Service shall also be considered, irrespective of the fact whether or not they fulfill the requirements as to the minimum of 10 years service. Explanation :For calculating the period of 10 years of service for the purpose of clause (a) with respect to officer appointed to the Delhi Judicial Service at the time of its initial constitution, service rendered by them in the cadre to which they belonged at the time of the initial recruitment t....
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....ted as Prosecutor, Delhi. Also that he has vast experience and that he is well versed in civil laws. Respondent No. 3 further states as under:-- "I submit that, pursuant to appointment in Grade IV of the Indian Legal Service and my subsequent selection to Grade II in 1990 and promotion to Grade I in 1994, i.e., Joint Secretary and Legal Adviser to the Government of India, Ministry of Law & Justice, I have been advising various departments and Ministries of the Central Government in matters concerning Civil and Criminal Laws. These departments and Ministries include the Directorate General of Supplies and Disposal, Ministry of Urban Development, Ministry of Labour and several other departments. During this period, I have also functioned as Member, Emigration Appellate Committee, Ministry of Labour in which capacity I was disposing of appeals filed under the Emigration Act in a quasi-judicial capacity. I have also functioned as Central Government under Section 19A of the Employees' Provident Fund and Misc. Provisions Act, 1952 which is the final authority in the country in respect of disputes arising under the Act in matters referred to under the said Section. 1 was agai....
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....t framed Rules and Rule 49 provided that an advocate shall not be a full-time salaried employee of any person, Government firm, corporation, or concern so long as he continued to practise. However, there was a proviso which had been added to the rule which excluded its applicability to Law Officers of Central or State Government or Public Corporation or Body constituted by a statute which entitled the person to be enrolled as an advocate under Rule 49. The court held that Mr. Nehra fulfilled the qualification under Art. 233 inasmuch as the period during which he was serving as Assistant District Attorney or District Attorney or he was a Government Pleader and a Public Prosecutor, and in that capacity he was required to act or plead in courts on behalf of the Government, and that period during which he continued in service as such he would be deemed to be a practicing advocate. Mr. Chandrasekharan also drew our attention to a decision of the Calcutta High Court in Subir Chowdhury v. Union of India, MANU/WB/0002/1984 : AIR1984Cal7, where it had been held that separate meanings could not be attributed to the word 'Advocate' under Article 33 (2) of the Constitution on the one h....
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....rt after examining the provisions of the Advocates Act, the Rules framed thereunder, and Arts. 233, 309 and 311 of the Constitution and the Delhi Higher Judicial Service Rules came to the conclusion that the public prosecutors were not eligible for appointment as District Judges in Delhi. That the third respondent belonged to Indian Legal Service and had also seven years standing as an advocate before he joined that service is of no relevance as far as Delhi is concerned as he will not qualify to be appointed to the Delhi Higher Judicial Service, and, thus, to the post of District Judge. We may in this connection also referred to Art. 76 of the Constitution for appointment of Attorney General and Art. 165 for appointment of Advocate General of a State. A person can be appointed Attorney General for India if he is qualified to be appointed a Judge of the Supreme Court, and for post of an Advocate General a person is to be qualified to be appointed a Judge of a High Court. Qualification for a Supreme Court Judge are prescribed in Art. 124 and that of a High Court in Art. 217. Then, under cl. (3) of Art. 124, a person shall not be qualified for appointment as a Judge of the Supreme Co....
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....ade by the Governor of the State in consultation with the High Court exercising jurisdiction in that State. Clause (2) of Art. 233 uses the words "service of the Union or of the State" and these have been interpreted to mean judicial service. In Chandra Mohan v. State of Uttar Pradesh MANU/SC/0052/1966 : AIR 1966 SC 1987, the court was considering the question of the scope of the field of recruitment to the cadre of District Judges under Art. 233 of the Constitution. The U. P. Higher Judicial Service Rules provides for recruitment of District Judges and the question was if these contravene clauses (1) and (2) of Art. 233. Rule 14 provided for direct recruitment. It said that applications for direct recruitment shall be called for by the court and shall be made in the prescribed form and the applications to be accompanied with certain certificates. Then under Rule 15, Selection Committee, which consisted of two Judges of the High Court and the Judicial Secretary to the Government, was to scrutinise the applications received by the court and after interviewing them to recommend suitable candidates for appointment to the Higher Judicial Service to the Governor through the Court. Then ....
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....constituted under various enactments had been empowered to choose any procedure either under this Act or under their respective Acts or under the ordinary law of the land without there being any guidelines. We have not been shown any provisions in any of the five public financial institutions (Section 4-A of the Companies Act, 1956) where any different procedure for recovery of dues has been provided in the Acts establishing them. In Northern India Caterers Private Ltd. v. State of Punjab, MANU/SC/0283/1967 : [1967]3SCR399, the Supreme Court found that the State had two remedies open to it. One was under the ordinary law and the other was a drastic and "more prejudicial remedy" under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, and consequently S. 5 of the Act which empowered the Estate Officer to make an order of eviction was held to violate Art. 14 of the Constitution. This decision of the Supreme Court was referred to in Hari Singh v. Military Estate Officer, MANU/SC/0614/1972 : [1973]1SCR515, when the court was examining the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which has S. 15 providing barring of juris....
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....ious Acts Constituting the public financial institutions, cannot be held to be valid. 58. As noted in the beginning of the judgment, the respondents have questioned the locus standi of the petitioners in CWP No. 3050/94 to file this petition. We are of the view that there cannot be a better body than a Bar Association for upholding the independence of judiciary. We record our appreciation of the Delhi High Court Bar Association in bringing up this petition. 59. Thus, we hold that though tribunal could be constituted by Parliament not falling within Articles 323A and 323B of the Constitution, and that the expression "administration of justice" as appearing in Entry 11-A of List III of Seventh Schedule to the Constitution would include tribunals as well administering justice; the Act called "The Recovery of Debts Due to Banks and Financial Institutions Act, 1993", is unconstitutional as it erodes the independence of judiciary and is irrational, discriminatory, unreasonable, arbitrary and is hit by Article 14 of the Constitution; and that respondent No. 3 does not fulfill the qualification to be appointed as Presiding Officer of the Tribunal. The notification dated 5 July 1994 i....