Calcutta High Court
Commissioner Of Entertainment Tax And ... vs Mitra Cinema And Ors. on 17 September, 1999
Equivalent citations: AIR1999CAL247, AIR 2000 CALCUTTA 247, (2000) 1 CAL LJ 59 (2000) CAL WN 47, (2000) CAL WN 47
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT
1. Learned counsel for the appellants is permitted to remove the defect.
2. Having heard the learned counsel for the parties, we are of the opinion that this appeal itself should be disposed of at this stage.
3. This appeal is directed against an order dated 4-8-99 passed by a learned Judge of this Court whereby and whereunder certain interim orders have been passed.
4. The writ petitioner filed a writ application before this Court claiming, inter alia, the following reliefs :
"(A) Writ/Order/Direction in the nature of Prohibition do issue upon the respondents prohibiting them from taking any case for decision including that of the case of the petitioner being C.R. No. 10280 (W) of 1984 (renumbered as RN-110 (T) of 1999 which were pending before the High Court and stood transferred upon promulgation of the West Bengal Taxation Tribunal Act 1987 from exercising powers not warranted under the statute;
(B) Writ/Order/Direction in the nature of Mandamus do issue upon the respondents to rescind/cancel withdraw the impugned notice and letter being Annexure "D", "E" and "F" whereby and whereunder the Tribunal has proposed to decide the case being C.R. No. 10280(W) of 1984 and further to command them to act and proceed strictly in accordance with law;"
5. The learned trial Judge, by reason of the order impugned in this appeal, inter alia, held:
"The position now is that if a party approaches the West Bengal Taxation Tribunal then it might do so as it is permitted to approach that Tribunal as a Court of first instance.
But if the party chooses to invoke the writ jurisdiction of the High Court, then and in that event, it is for the High Court alone to determine whether it will take up the writ itself even at the first instance, in the facts and circumstances of that particular case, or it will transmit the records to the Taxation Tribunal so that the matter might be thrashed out there in the first instance.
That decision was not consciously taken by the High Court in this matter as the law at that time was not clear.
However, the decision has to be taken now.
As such, the records in the earlier writ which was transmitted to the Tribunal (C.R. 10280 (W) of 1984) be re-transmitted to this Court. The application be moved afresh as a "Motion" and a decision to be invited by the petition therein, who is also the petitioner herein as to whether according to the pleasure of this Court, the writ should be heard out in the first instance in the High Court itself or it will be transmitted to the Tribunal.
The transmission of writ papers to the Taxation Tribunal on a Registrar to Registrar basis is today absolutely forbidden and is not to be taken resorted to in any manner whatsoever. Only upon a judicial decision can such transmission order to be made.
As affidavits have not been called for in this writ, the respondents cannot be taken to have admitted any allegations or conceded any submissions.
The two impugned letters of the Tribunal, are thus permanently stayed. However, the parties will be at liberty to take future steps in accordance with law and the observations made hereinabove."
6. By the letter impugned in the writ application dated 12-2-99 the Additional Registrar, West Bengal Taxation Tribunal, had asked the Registrar of this Court in the following terms :
"In enclosing a list showing the particulars of the case records lying with the Hon'ble High Court, Appellate Side, Mandamus Section I am directed to request you to take necessary steps for transmitting them for adjudication in this Tribunal.
An early action in the matter will be highly appreciated."
7. The records had been transmitted in terms of the letter dated 30-3-99.
8. The question which arises for our consideration is as to whether the decision of the Apex Court in L. Chandra Kumar v. Union of India, applies prespectively. It is not disputed that in L. Chandra Kumar, the Apex Court while upholding the prayer for judicial review of this Court on the ground that the same is a basic structure of the Constitution of India, directed that the applications should be at the first instance decided by the Tribunals set up under Article 323A or Article 323B of the Constitution of India reserving the right of this Court to exercise its power of judicial review. The learned Judges, however, observed (para 94) :
"The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective overruling so as not to disturb the procedure in relation to decisions already rendered."
9. Relying on or on the basis of the said decision, Mr. Roychowdhury appearing on behalf of the respondent/writ petitioner submits that as a prospective operation had been given as regards the direction issued by the Apex Court, the records which were already pending before this Court, should not have been directed to be transferred. The submission of Mr. Roychowdhury cannot be accepted for more than one reason. L. Chandra Kumar (supra) has laid down a law, which is binding upon the High Court. If a question arises as to whether the Tribunal has jurisdiction or not, such a juris-dictional fact at the first instance also can be decided by the Tribunal. It must be borne in mind that the Tribunals constituted under Article 323A and 323B of the Constitution of India have plenary jurisdiction to determine all questions which would by necessary implication include the power to decide question as regards their own jurisdiction. The decision of the Apex Court in L. Chandra Kumar must be read as a whole. In paragraph 94 the Apex court made the aforementioned observation keeping in view the fact that prior thereto, special leave applications used to be filed before the Supreme Court of India under Article 136 of the Constitution of India from the orders passed by the Tribunals so that matters which were pending before the Supreme Court may not have to be transferred back. In Express Newspapers (P) Ltd. v. The Workers, , the Apex Court observed :
'The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay is hands and to embark upon the preliminary enquiry itself. The jurisdiction of the High Court to adopt this course cannot be, and is indeed not disputed. But would it be proper for the High Court to adopt such a course unless the ends of justice seem to make it necessary to do so? Normally, the questions of fact, though they may be jurisdictional facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the Special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it. would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible rule; whether or not even the preliminary facts should be tried by a High Court in a writ petition, must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should mere appropriately be dealt with by the Tribunal. The Appeal Court has made it clear that any party who feels aggrieved by the finding of the Tribunal on this preliminary issue may move the High Court in accordance with law. Therefore, we are not prepared to accept Mr. Sastri's argument that the Appeal Court was wrong in reversing the conclusion of the trial Judge in so far as the Trial Judge proceeded to deal with the question as to whether the action of the appellant was a closure or a lockout."
10. In state of U.P. v. Brahm Datt Sharma, , the Supreme Court held (para 9) :
"The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. servant to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. The High Court in our opinion ought not to have interfered with the show cause notice."
11. The provisions of the West Bengal Taxation Tribunal Act as regards its exclusive jurisdiction to determine all questions arising out of the statutes mentioned therein are neither in doubt nor in dispute, but in view of L. Chandra Kumar (supra), now the High Court will have the power of judicial review as the same is a basic structure of the Constitution of India. In fact, the law has clearly been laid down in paragraph 99 of the said decision which reads thus :
"In view of the reasoning adopted by us, we held that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the Constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
12. For the reasons aforementioned, the impugned order cannot be sustained, but there cannot be any doubt whatsoever that if the writ petitioner raises a question as regards applicability of the Act, such a question can be raised before the Tribunal itself, and it will be at liberty to consider the same as a preliminary issue, in view of the decision of the Supreme Court in Express Newspapers (supra). The view we have taken also finds support from a recent decision of the Supreme Court dated 9-8-99 in S.L.P. (Civil) No. 10308 of 1999 (State of West Bengal v. Ashish Kumar Roy) in the context of West Bengal Land Reforms and Tenancy Tribunal Act, 1997, wherein it was held :
"In view of the fact that the functioning of the Tribunal set up under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 is directly affected by the impugned judgment and orders of the express direction given by this Court in L. Chandra Kumar v. Union of India the petitioner need not be asked to go in appeal before the Division Bench of the Calcutta High Court in facts and the circumstances of this case.
In view of paragraph 99 of the judgment in L. Chandra Kumar v. Union of India there will be an interim stay of the impugned judgment and the Tribunal will function in accordance with the direction given in the said paragraph pending disposal of this appeal. Liberty to the parties to apply for appearly date of hearing as also for transfer of pending appeal of original petitioners in the Calcutta High Court."
13. Both the appeal and the application are allowed.
14. Prayer for stay of operation of the order is considered and refused.
15. Urgent xerox certified copy of the order be supplied on priority basis.