Bombay High Court
Tax Bar Association Pune Through ... vs The State Of Maharashtra Through ... on 14 January, 2021
Bench: K.K. Tated, R. I. Chagla
13.wp.35.2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 35 OF 2021
Tax Bar Association Pune ... Petitioner
Versus
The State of Maharashtra & Anr. ... Respondents
.........
Mr. Gautam Ankhad a/w Ishaan Patkar i/b Mr. Adwait Bhonde for the
Petitioner.
Ms. Neha Bhide, 'B' Panel Counsel for the State.
.........
CORAM : K.K. TATED &
R.I. CHAGLA, JJ.
DATE : 14th JANUARY, 2021.
P.C. :-
1 Heard the learned Counsel for the parties.
2 By this Petition under Article 226 of the Constitution of India
Petitioner is challenging the Rule 6 (1 B) of the Maharashtra Value Added Tax
Rules, 2005 which have stipulated a tenure of two years for members of the
Maharashtra Sales Tax Tribunal which is contrary to the directions issued by
the Hon'ble Supreme Court in Union of India vs. Madras Bar Association 1 and
Madras Bar Association vs. Union of India judgment dated 27.11.2020 in Writ
Petition (C) No.804 of 2020. The Petitioner also challenges other provisions
of the said Rules. The learned Counsel for the Petitioner relies on paras 32,
1 (2010) 11 SCC 1
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33, 34 and 35 of the said judgment of the Apex Court in the matter of Madras
Bar Association which reads thus :
"32. Mr. Datar argued that the term of office of the
Chairperson and the members of the Tribunal should be
for a minimum period of five years by relying upon the
judgments of this Court in S.P. Sampath Kumar (supra),
Union of India v. Madras Bar Association (2010) (supra)
and Rojer Mathew (supra). He referred to Section 184 of
the Finance Act, 2017 which stipulated the term of office
shall be for a period not exceeding five years. He
submitted that in spite of this Court holding that the
tenure should be between five to seven years, the 2020
Rules have provided for only four years as the maximum
term. According to him, a term of minimum five years for
the members of the Tribunals with a right of re-
appointment is mandatory. Citing Rule 9(2) of the 2020
Rules which stipulates that the term of office shall be four
years or till a person attains the age of 65 years whichever
is earlier, the learned Amicus Curiae argued that a Judge
of a High Court will not get more than three years as a
member of the Tribunal after his retirement at the age of
62 years even if he is appointed immediately after his
superannuation. He mentioned that in 18 out of the 19
Tribunals governed by the 2020 Rules, retired Judges of
High Courts can be appointed either as Vice Chairperson
or as the member. In view of the delay in making
appointments, most of such retired Judges of High Courts
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will normally have a very short tenure of not more than
two years. Therefore, Mr. Datar submitted that Rule 9 (2)
requires to be struck down as being arbitrary.
33. According to the learned Attorney General, as the
term of four years is subject to re-appointment, it would
not make much of a difference if the term fixed is four
years instead of five years. He mentioned that due to the
provision for re-appointment, eligible lawyers who shall be
appointed at the age of 45 years will have the advantage
of four or five extensions or till the said member reaches
the age of 65 years.
34. This Court directed the extension of the tenure of
the members of the Tribunal from three years to seven or
five years subject to their eligibility in the case of Union of
India v. Madras Bar Association (2010) (supra). This Court
was of the opinion that the term of three years is very
short and by the time the members achieve the required
knowledge, expertise and efficiency, the term would be
over. In the said judgment it was further observed that the
Tribunals would function effectively and efficiently only
when they are able to attract younger members who have
a reasonable period of service. In spite of the above
precedent, a tenure of three years was fixed for the
members of Tribunals in the 2017 Rules. While setting
aside the 2017 Rules, this Court in Rojer Mathew (supra)
held that a short period of service of three years is anti-
merit as it would have the effect of discouraging
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meritorious candidates to accept the posts of judicial
members in the Tribunals. In addition, this Court was also
convinced that the short tenure of members increases
interference by the executive jeopardizing the
independence of judiciary.
35. The 2020 Rules are not in compliance with the
principles of law laid down in Union of India v. Madras
Bar Association (2010) (supra) and Rojer Mathew (supra)
in respect of the tenure of the members of the Tribunals in
spite of this Court repeatedly holding that short tenure of
members is detrimental to the efficiency and
independence of the Tribunals. Rule 9(1) of the 2020
Rules provide for a term of four years or till a Chairman or
Chairperson or President attains the age of 70 years
whichever is earlier. No rationale except that four years is
more than three years prescribed in the 2017 Rules
(described as too short, in Roger Mathew (supra)) was put
forward on behalf of the Union of India. In so far as the
posts of Vice Chairman or Vice-Chairperson or Vice-
President and members are concerned, Rule 9(2) fixes the
tenure as four years or till they attain the age of 65 years
whichever is earlier. In view of the law laid down in the
earlier judgments, we direct the modification of the tenure
in Rules 9(1) and 9(2) of the 2020 Rules as five years in
respect of Chairman or Chairperson, Vice Chairman or
Vice-Chairperson and the members. Rule 9(1) permits a
Chairman, Chairperson or President of the Tribunal to
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continue till 70 years which is in conformity with
Parliamentary mandate in Section 184 of the Finance Act.
However, Rule 9(2) provides that Vice Chairman and other
members shall hold office till they attain 65 years. We are
in agreement with the submission made by the learned
Amicus Curiae that under the 2020 Rules, the Vice
Chairman, Vice-Chairperson or Vice-President or members
in almost all the Tribunals will have only a short tenure of
less than three years if the maximum age is 65 years. We,
therefore, direct the Government to amend Rule 9 (1) of
the 2020 Rules by making the term of Chairman,
Chairperson or President as five years or till they attain 70
years, whichever is earlier and other members dealt with
in Rule 9(2) as five years or till they attain 67 years,
whichever is earlier."
3 The learned Counsel for the Petitioner submits that as on today
the Respondents are appointing the present members for two years only. He
submits that the position of the Tribunal on 23.11.2020 is as under :
Name Date of Date of Effective
appointment retirement tenure
Judicial Members
1 Hon'ble Shri Prakash Mali 8.3.2019 7.3.2021 2 years
(President)
2 Hon'ble Shri Keshav Ippar 3.8.2019 22.1.2021 1 year 5
days
3 Hon'ble Smt. Chanda 2.1.2020 7.9.2021 1 year 8
Nathani months 6 days
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4 Hon'ble Shri Bhagwat Patil 1.7.2019 30.6.2021 2 years
5 Hon'ble Shri Dadasaheb 29.6.2019 1.6.2021 1 year 11
Mandhar months 4 days
6 Hon'ble Shri Prashant 26.7.2019 25.7.2021 2 years
Nandedkar
He submits that there is urgency in the present matter.
4 The learned Counsel for the Petitioner submits that by way of
interim relief the Respondents may be directed to delete the condition from
Notification dated 01.01.2020 of two years in respect of appointment of
Smt. Chanda Ajay Nathani, Retired District Judge, as the Judicial Member of
the Maharashtra Sales Tax Tribunal, Notification dated 26.02.2019 in respect
of Shri Prakash Himmatrao Mali, Notification dated 02.08.2019 in respect of
Shri Sharad Ramkishor Trivedi and Shri Keshav Bhagwanrao Ippar and
Notification dated 10.06.2019 in respect of Shri Prashant Anantrao
Nandedkar, Shri Dadasaheb Haribhau Mandhare and Shri Bhagwat
Namdevrao Patil.
5 On the other hand the learned A.G.P. Ms. Neha Bhide appearing
on behalf of Respondent- State submits that she requirs some time to file the
affidavit- in-reply.
6 Considering these facts, the following order is passed :
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i) Respondent to file their reply on or before 12.02.2021 with
copy to other side. Rejoinder if any, to be filed on or before 17.02.2021 with
copy to other side.
ii) Matter to appear on board on 22.02.2021.
Waishali S.
Waghmare
Digitally signed by
Waishali S. Waghmare
Date: 2021.01.16 ( R.I. CHAGLA, J. ) ( K.K. TATED, J. )
02:27:47 +0530
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