Calcutta High Court (Appellete Side)

Anindya Sundar Das vs West Bengal Taxation Tribunal Bar ... on 18 April, 2022

                  IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                             (Appellate Side)

                                                   MAT 374 of 2022
                                                       With
                                                    CAN 1 of 2022
                                                       And
                                                    CAN 2 of 2022


                                                   Reserved on: 31.03.2022
                                                   Pronounced on: 18.04.2022


Anindya Sundar Das

                                                                    ...Appellant

                                     -Vs-

West Bengal Taxation Tribunal Bar Association and Others

                                                                    ...Respondents

Present:-

Mr. Billwadal Bhattacharyya, Mr. Anish Kumar Mukherjee, Mr. Suryaneel Das, Mr. Amrit Sinha, Mr. Surojit Saha, Advocates ... for the appellant

Mr. S.N. Mookherjee, Ld. AG Mr. Anirban Ray, Ld. GP Mr. T.M. Siddiqui, Sr. Adv.

Mr. Raja Saha, Mr. Debasish Ghosh, Advocates ... for the State

Ms. Reshmi Ghosh, Advocate ... for the High Court Administration

Mr. Abhratosh Majumdar, Sr. Adv.

Mr. Avra Mazumder, Mr. Jaweid Ahmed Khan, Ms. Sweta Mukherjee, Mr. T. Ahmed Khan, Mr. Sandip Choraria, Mr. Anil Dugar, Mr. D. Basu Thakur, Advocates ... for the respondent no. 1 2 MAT 374 of 2022

Mr. S.N. Ganguli, Mr. Sukalpa Seal, Advocates ... for the respondent

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

Prakash Shrivastava, CJ:

1. This appeal is directed against the interlocutory order of the

learned Single Judge dated 4th October, 2021 passed in WPA No. 16203

of 2021 whereby the tenure of the existing Technical Member of the West

Bengal Taxation Tribunal has been extended until formal appointment of

Technical Member by the Government.

2. Appellant was not a party before the learned Single Judge,

therefore, CAN No. 1 of 2022 has been filed seeking leave to appeal

against the impugned order. This application has been opposed by the

respondent nos. 1 and 2 (writ petitioners). Having examined the record, it

is noticed that appellant, a practicing advocate, who in application

seeking leave, has stated that he conducts his cases in all fields of law,

being a person aggrieved with the order impugned, is entitled for leave.

The writ petition itself was at the instance of the Tax Bar Association and

one of the advocate member, hence, both, appellant and respondents

(writ petitioners) fall in the same category and stand on the same footing

who are questioning the locus of each other, therefore, it would not be

proper to dismiss the appeal as not maintainable when writ petition at

the instance of respondent Nos. 1 and 2 herein has been entertained

by learned Single Judge and when an important legal issue has been

raised in this appeal. Hence, CAN 1 of 2022 is allowed and leave to file

this appeal is granted.

3. Respondent nos. 1 and 2 (writ petitioners) had approached the

learned Single Judge with the plea that the tenure of the Technical 3 MAT 374 of 2022

Member of the West Bengal Taxation Tribunal had expired and the fresh

appointment was not made, therefore, the prayer made in the writ

petition was to allow the incumbent Technical Member to continue and

direct the respondents to expeditiously initiate and complete the process

of appointment.

4. Learned Counsel for the appellant has submitted that the writ

petition itself was not maintainable because it has been filed at the

instance of the society without authorization and Section 19 of the West

Bengal Societies Registration Act, 1961 is attracted and that the

provisions of West Bengal Taxation Tribunal, 1987 (for short, 'Act of

1987') do not permit continuation of appointment after the expiry of

tenure, hence, learned Single Judge, on the basis of the consent which

was contrary to law, could not have passed the order ignoring the

provisions of the Act. Further submission has been made that the

impugned order has been passed in absence of the High Court

Administration. It is also submitted by the learned Counsel for the

appellant that the impugned order does not take into consideration any

fact and legal position and does not even indicate if the petition has been

kept pending and no next date has been given, hence, otherwise also it

cannot be sustained.

5. Learned Counsel for the respondents (writ petitioners) have

submitted that it was second round of litigation and by the earlier order

dated 2nd August, 2021, the tenure of the Technical Member was

extended for three months by the learned Single Judge and that if the

Technical Member retires, then the Tribunal will become defunct and

that the impugned order has been passed with consent and the Technical

Member has not reached the outer limit of 65 years and the tenure of

Chairman is also upto 2nd April, 2022, therefore, the order of the learned

Single Judge does not suffer from any error.

4 MAT 374 of 2022

6. Learned Counsel for the State has also supported the impugned

order and submitted that the impugned order only provides for a stopgap

arrangement.

7. We have heard learned Counsel for the parties and perused the

record.

8. On the perusal of the impugned order, we find that no facts, legal

provisions, existence of any ground for issuance of interim direction has

been noted and in one sentence, without giving any further date in the

matter, the stay has been granted. The impugned order reads as under:-

"By consent of the parties, the tenure of the existing technical member of the West Bengal Taxation Tribunal shall stand extended until formal appointment of a technical member by the Government.

(Rajasekhar Mantha, J.)"

9. Though, consent of the parties has been mentioned in the

impugned order but the learned Counsel for the High Court

Administration was not present when the order was passed. Even

otherwise, a strong submission has been raised before this Court that

consent given against the provision of law is of no consequence and on

the basis of such a consent, an order contrary to law could not have been

passed. In this regard, the judgment of the Hon'ble Supreme Court in the

matter of Veer Kunwar Singh University Ad Hoc Teachers Association

and Others vs. Bihar State University (C.C.) Service Commission and

Others reported in (2009) 17 SCC 184 has been relied upon, wherein it

is held that:

"33. In B.S. Bajwa v. State of Punjab to which our attention was drawn by Mr Misra, this Court held : (SCC pp. 525- 26, para 6) "6. Obviously on this conclusion alone the writ petition should have been dismissed by setting aside the judgment of the Single Judge allowing the LPA without any caveat. However, the Division Bench, after reaching 5 MAT 374 of 2022

the above conclusion, proceeded to grant the benefit of a much earlier date, namely, 6-4-1964 as the date of appointment on the basis of a concession of the Additional Advocate General made therein without considering the effect of the same or of taking into account the inconsistency with its earlier finding. We have no doubt that the concession on this point, being one of law, it cannot bind the State and, therefore, it was open to the State to withdraw as it has been done by filing a review petition in the High Court itself."

10. It is also noticed that Section 3 of the Act of 1987 provides for

establishment, composition and functions of the Tribunal. Section 3(2)(b)

of the Act of 1987 relates to the appointment of Technical Member and

reads as under:

"3(2)(b) A Technical Member shall be appointed by the Governor on the recommendation of the Selection Committee of three members constituted by the Governor, of which the Chairman shall be a sitting Judge of the High Court nominated as such by the Chief Justice and two other Members nominated by the State Government."

11. Sub-section 5 of Section 3 provides for tenure and reappointment

of Technical Member and reads as under:

"3(5) A Judicial member or a Technical Member shall hold office as such for a term of five years from the date on which he enters upon his office, but he shall be eligible for reappointment for another term of five years:

Provided that no Judicial Member or Technical Member shall hold office as such after he has attained the age of sixty-five years:"

12. In the Act, there is no provision for continuation after expiry of

the tenure of five years unless the reappointment is made.

13. Attention of this Court has also been drawn to the order of the

Hon'ble Supreme Court dated 31st May, 2021 in Writ Petition (Civil) No.

510 of 2021 in the matter of National Company Law Tribunal and

Appellate Tribunal Bar Association through its Secretary vs. Ministry of

Corporate Affairs wherein the similar issue of filling up the vacancies of 6 MAT 374 of 2022

Chairman of NCLAT and President of NCLAT came up. Though, the

Hon'ble Supreme Court had wide powers under Article 142 of the

Constitution, yet, the Hon'ble Court, after taking note of the fact that the

Government had already initiated the process of reappointment, had only

expressed trust and hope that the process will be completed

expeditiously.

14. That apart, the issue of maintainability of writ petition itself has

been raised by the appellant referring to Section 19 of the West Bengal

Societies Registration Act, 1961 which provides for authorization by the

governing body to the President, Secretary or any office bearer for suing

on behalf of the society. It has been submitted that no such

authorization was filed with the writ petition, hence, the petition itself

was not maintainable.

15. Learned Counsel for the appellant has also placed reliance upon

paragraph 10 of the judgment of the Hon'ble Supreme Court in the

matter of Kerala Solvent Extractions Ltd. vs. Unnikrishnan and

Another reported in (2006) 13 SCC 619 which reads as under:

"10. We are inclined to agree with these submissions. In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability"

7 MAT 374 of 2022

16. We find that none of the above aspects have been taken into

consideration by the learned Single Judge while passing the impugned

interlocutory order, hence, we are unable to sustain it. Therefore, the

impugned order passed by the learned Single Judge is set aside, however

by making it clear that if a fresh prayer for stay is made before the

learned Single Judge, then the same will be duly considered in

accordance with law and appropriate order will be passed taking into

account the aforesaid relevant aspects of the matter.

17. The Administrative Member of the Tribunal has continued by

virtue of interim order of learned Single Judge, therefore, the orders

passed by him in the meanwhile are saved from challenge on the ground

of his continuance as such.

18. Having regard to the nature of controversy related in the matter,

the learned Single Judge is expected to take up the petition expeditiously

and decide it finally in accordance with law.

19. Since it is pointed out that due to non-appointment of the

Technical Member, the work of the Tribunal is suffering, therefore, we

direct the State Government to take expeditious steps for appointment of

the Technical Member in the Tribunal.