State of Tamil Nadu and another vs Arya Bhavan and another

Manmohan Singh Liberhan, C.J.—At the outset, the Additional Government Pleader (Taxes) brought to our notice a decision of a Division

Bench of this Court dated July 21, 1997 in W.A. Nos. 1471 and 1482 of 1993 to contend that the appeals have to go before the Tamil Nadu

Taxation Special Tribunal, constituted under the Tamil Nadu Taxation Special Tribunal Act, 1992, having regard to section 19 of the said Act. The

learned counsel for the assessee also endorsed this stand. We have gone through the provisions of the Act as also the decision of the Division

Bench. Section 15 of the Act stipulates that no writ shall lie in the High Court to set aside or modify any proceeding or order taken or made by the

appropriate authority. Section 14 of the Act provides that on and from the appointed date, on court except the Supreme Court shall have or be

entitled to exercise any jurisdiction, powers or authority in relation to matters specified in the specified State Acts. Though section 18 of the Act

provides for an overriding effect to the provisions of the said Act, it is only to the extent of any inconsistency with any other law, other than the said

Act, and the question before us is not projected on the basis of any such inconsistency. Section 19 of the Act providing for transfer of cases

pending before the High Court, on which the Division Bench as also the counsel before us placed strong reliance reads, so far as it is material for

our purposes, thus :

Section 19 : Transfer of pending cases from High Court. - (1) All matters and proceedings including appeals relating to the levy, assessment,

collection and enforcement of tax under any specified State Act and matters connected therewith or incidental thereto pending before the High

Court on the appointed day, shall stand transferred to the Special Tribunal :

...........

(3) An appeal transferred from the High Court to the Special Tribunal shall be decided by a Bench of three Members.

Concedingly, as even the Division Bench pointed out, the apex Court held, in the decision reported in L. Chandra Kumar v. Union of India

[1997] 105 STC 618, that the Tribunals will continue to function as the only courts of first instance in respect of the areas of law for which they

have been constituted. It is equally an admitted position that there is no internal appeal within the forum itself against any order passed by the

Tribunal. The Tamil Nadu General Sales Tax Act, 1959, prior to the amendments introduced by the Tamil Nadu Taxation Special Tribunal Act,

1992, provided in section 37 for the filing of an appeal to this Court against orders passed u/s 34 of the very same Act, to be heard and disposed

of by virtue of section 39 by a Bench of not less than two judges. The provisions of the Special Tribunal Act, particularly section 19, when it

postulates transfer of appeal, it could mean and in our view, shall be held to have meant to refer only such appeals filed u/s 37 of the Tamil Nadu

General Sales Tax Act and which were pending on the appointed day and not referable to writ appeals filed under clause 15 of the Letters Patent

against a final order already passed on a writ petition which was finally disposed of by a learned single Judge of this Court, in exercise of his

powers of Judicial Review under article 226/227 of the Constitution of India. That is and that could be the only possible, reasonable and just as

well as proper construction to be placed upon section 19(1) of the Special Tribunal Act, is made clear from the scheme underlying the very Act,

which does not and could not have also conferred upon the Special Tribunal the jurisdiction or power or authority to sit in judgment on appeal over

the decision of a learned single Judge of this Court. The Special Tribunal cannot, by any stretch of imagination, be viewed as a Tribunal with such

super powers to sit as an appellate forum over the High Court or orders passed by the Judges of the High Court. The ratio of the decision of the

Supreme Court noticed supra would also belie any such claim besides such construction being, if countenanced, constituting a serious inroad into

the Rule of Law and defiling the basic structure of the Constitution itself. It will be useful at this stage to point out that even the Administrative

Tribunals Act, 1985 enacted by the Parliament, particularly in section 29, which provided for transfer of pending cases, specifically provided that

nothing in the said provision for transfer of pending cases shall apply to any appeal pending before the High Court and the mere omission to have

such specific stipulation in the Special Tribunal Act, enacted by the State Legislature does not by itself justify a construction to center appellate

jurisdiction to the Special Tribunal over the final orders passed by the Judges of the High Court. We are also unable to appreciate or approve of

the course adopted by the Division Bench in making an observation that when the writ appeals are transferred, the writ petition themselves in

substance are transferred to the Special Tribunal and the same has to decide the matters as a court of first instance, inasmuch as the final orders

passed already on the writ petition cannot be said to have been nullified or voided by any provisions in the Special Tribunal Act and no such

powers could be claimed to be either possessed or be attributed to be possessed by the State Legislature. Consequently, in our considered view,

the decision of the Division Bench dated July 21, 1997 in W.A. Nos. 1471 and 1482 of 1993 does not lay down the correct position of law and

we overrule the said decision and reject the request of the counsel for transfer. We, now proceed to deal with and dispose of the writ appeals

which have been referred to the Full Bench, on merits.

Counsel for the parties agree that the law laid down in Oberio Associated Hotels Limited v. Commercial Tax Officer [1994] 94 STC 594

(Mad.) is the correct law as laid down and found by the honorable Supreme Court. He also respectfully agree with the principle laid down in the

said judgment and approve the same. Consequently, this Full Bench is rendered as academic only and no question need be answered and the writ

petition are dismissed. The petitioners in the writ petitions will be at liberty to apply to the State for any relief as granted by the honourable

Supreme Court in Civil Appeal Nos. 643-645 of 1995 (Hotel Parisutham Pvt. Ltd. v. Deputy Commercial Tax Officer-I, Tanjore) - decided on

July 18, 1996. The writ appeals are allowed accordingly, There will be no order as to costs.

Writ appeals allowed.