HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 538/2021
Vipul Kaushik S/o Harish Kaushik
----Petitioner
Versus
Union Of India
----Respondent
For Petitioner(s) : Mr. Parthiv K. Goswami through VC Mr. Sameer Sharma For Respondent(s) : Mr. R.D. Rastogi, ASG assisted by Mr. Akshay Bhardwaj through VC Mr. Namandeep Singh on behalf of Mr. Anand Sharma HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANOJ KUMAR VYAS Order 16/08/2021
1. Heard learned counsel for the parties.
2. Today, the matter has been listed on an application (No.2/2021) filed by the Union of India seeking vacation of the interim order dated 28.01.2021 as modified by order dated 15.02.2021 essentially on the ground of writ petitioner having been granted leave to prefer an appeal before the PMLA Tribunal and the Tribunal be allowed to proceed with the appeal without waiting for a decision on the writ application challenging the constitutional validity of Section 50 before this Court.
3. Mr. R.D. Rastogi, learned Additional Solicitor General placed reliance on paras 179 and 180 of the judgment delivered by the Hon'ble Supreme Court in the case of Roger Mathew Vs. South India Bank Limited reported in (2020) 6 SCC page 1, which are quoted hereinbelow:-
(Downloaded on 19/08/2021 at 09:49:52 PM)(2 of 4) [CW-538/2021] "179. This Court had earlier noted the statements of the Ld. Attorney General vide order dated 27 March 2019 in W.P. (C) No. 267/2012, wherein it was submitted that the Ministry of Law is already overburdened and cannot effectively perform the supervisory function, as a single nodal Ministry, for all the Tribunals, as was earlier suggested by this Court.
180. What appears to be of paramount importance is that every Tribunal must enjoy adequate financial independence for the purpose of its day to day functioning including the expenditure to be incurred on (a) recruitment of staff;(b) creation of infrastructure; (c) modernisation of infrastructure; (d)computerisation;(e) perquisites and other facilities admissible to the Presiding Authority or the Members of such Tribunal. It may not be very crucial as to which Ministry or Department performs the duties of Nodal Agency for a Tribunal, but what is of utmost importance is that the Tribunal should not be expected to look towards such Nodal Agency for its day to day requirements. There must be a direction to allocate adequate and sufficient funds for each Tribunal to make it self-sufficient and self- sustainable authority for all intents and purposes. The expenditure to be incurred on the functioning of each Tribunal has to be necessarily a charge on the Consolidated Fund of India. Therefore, hitherto, the Ministry of Finance shall, in consultation with the Nodal Ministry/Department, shall earmark separate and dedicated funds for the Tribunals. It will not only ensure that the Tribunals are not under the financial control of the Department, who is a litigant before them, but it may also enhance the public faith and trust in the mechanism of Tribunals."
Relying on the above, learned ASG has submitted that there is no impediment for the Tribunal to hear the appeal in view of the observations made by the Hon'ble Supreme Court, as noted hereinabove.
4. Mr. Parthiv K. Goswami, learned counsel for the petitioner on the other hand, drew our attention to various other directions (Downloaded on 19/08/2021 at 09:49:52 PM) (3 of 4) [CW-538/2021] issued by Hon'ble Supreme Court in the same judgment and in particular the direction issued by Hon'ble Supreme Court in para 118, which reads as under:-
118.There is yet another reason why we feel the matter should be referred to a Constitution Bench of seven Judges. L. Chandra Kumar Vs. Union of India (1997) 3 SCC 261, which was decided by a Bench of seven Judges, had also interpreted on the ambit of supervision by the High Courts under Article 227(1) of the Constitution to observe that the constitutional scheme does not require that all adjudicatory bodies which fall within the territorial jurisdiction of the High Courts should be subject to their onerous burden. Consequently, adding to their supervisory functions vide Article 227(1) cannot be of assistance in any manner. Thereafter, it was observed that different tribunals constituted under different enactments are administered by the Central and the State Governments, yet there was no uniformity in administration. This Court was of the view that until a wholly independent agency for such tribunals can be set up, it is desirable that all such tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these tribunals. For a number of reasons, the Court observed that the Ministry of Law would be the appropriate Ministry. The Ministry of Law in turn was required to appoint an independent supervisory body to oversee the working of the Tribunals. As noticed above, this has not happened. In these circumstances, it would be appropriate if these aspects has not happened. In these circumstances, it would be appropriate if these aspects and questions are looked into by a Bench of seven Judges."
Placing reliance on para 118, Mr. Goswami submits that judgment relied upon by the petitioner i.e Union of India Vs. R.
Gandhi and Others, (2010) 11 SCC page 1 continues to be the (Downloaded on 19/08/2021 at 09:49:52 PM) (4 of 4) [CW-538/2021] law of the land and in any event, as noted in para 118 in the case of Roger Mathew (supra), the Hon'ble Supreme Court referred the matter to a larger Bench.
5. At the present juncture, we need not enter into merits of the present case and the contentions raised vis-a-vis constitutional validity of the Section 50 of challenge therein. However, we modify our interim order permitting the PMLA Tribunal to proceed with the appeal and pass orders thereon strictly in accordance with law.
However, issues raised by the writ petitioner in the present case on constitutional validity shall remain pending for consideration by this Court. The application stands disposed of.
6. By interim order dated 28.01.2021, we had directed Union of India to comply with the directions issued by the Hon'ble Apex Court in R. Gandhi case (supra). Said direction remains to be complied with till date.
7. Admit.
(MANOJ KUMAR VYAS),J (INDRAJIT MAHANTY),CJ JKP/HARSHIT/24 (Downloaded on 19/08/2021 at 09:49:52 PM) Powered by TCPDF (www.tcpdf.org)