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1999 Supreme(Cal) 508
High Court Of Calcutta
S. B. SINHA, M. H. S. ANSARI
COMMISSIONER OF ENTERTAINMENT TAX - Appellant
Versus
MITRA CINEMA - Respondent
M. A. T. 2909 Of 1999
Decided On : 09/17/1999
AMIT PANCHAL, B.R.BHATTACHARJEE, DINA-BANDHU CHAWDHARY, NANDINI MITRA, S.ROY CHAUDHARY
The jurisdiction of the High Courts under Arts. 226/227 and upon the Supreme Court under Art. 32 of the Constitution is part of the inviolable basic structure of our Constitution.
Headnote:
CONSTITUTIONAL LAW - WRIT JURISDICTION - WEST BENGAL TAXATION TRIBUNAL ACT, 1987 - JURISDICTION OF HIGH COURT AND TRIBUNAL - PROSPECTIVE APPLICATION OF SUPREME COURT DECISION IN L. CHANDRA KUMAR V. UNION OF INDIA - TRIBUNALS HAVE JURISDICTION TO DECIDE JURISDICTIONAL FACTS - HIGH COURT CAN INTERFERE ONLY IF ENDS OF JUSTICE REQUIRE IT.
Fact of the Case:
The writ petitioner filed a writ application before the High Court claiming, inter alia, a direction to the Tribunal to refrain from taking up a case for decision and a direction to the Tribunal to act in accordance with law. The learned trial Judge, by reason of the order impugned in this appeal, inter alia, held that the records in the earlier writ which was transmitted to the Tribunal be re-transmitted to this Court and 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.
Finding of the Court:
The court held that 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 (AIR 1963 SC 569) (supra).
Issues: 1. Whether the decision of the Apex Court in L. Chandra Kumar v. Union of India applies prospectively? 2. Whether the Tribunals constituted under Art. 323a and 323b of the Constitution of India have jurisdiction to determine all questions arising out of the statutes mentioned therein?
Ratio Decidendi: 1. The decision of the Apex Court in L. Chandra Kumar (AIR 1997 SC 1125) (supra) applies prospectively. The directions issued by the Apex Court 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. 2. The Tribunals constituted under Art. 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.
Final Decision: The appeal and the application were allowed. The prayer for stay of operation of the order was considered and refused.
( 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'blehigh 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, reported in (1997) 3 SCC 261 : (AIR 1997 SC 1125) applies prospectively. It is not disputed that in L. Chandra Kumar, the Apex Court while uph
