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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1741 OF 2008
1. The Sales Tax Tribunal Bar Association,
A Society registered under the Bombay
Public Trust Act 1950 constituted of
persons practising before Maharashtra
Sales Tax Tribunal and having its
Office at Room No.713/B, Vikrikar
Bhavan, Mazgaon, Mumbai--400 020.
2. Chandrakant B. Thakar,
President, of the Sales Tax Tribunal
Bar Association having his office at
Room No.713/B, Vikrikar Bhavan,
Mazgaon, Mumbai--400 010. : Petitioners
V/s.
1. S.D. Mathane, Member,
Sales Tax Tribunal appointed as
such by order dated 25.6.2008 of
Deputy Finance Secretary, Finance
Department, Maharashtra and having
his office at 7th floor, Vikrikar
Bhavan, Mazgaon, Mumbai--10.
2. Nasima M. Shaikh,
Deputy Secretary,
Finance Department,
The State of Maharashtra having
her office at Mantralaya, Madam Cama
Road, Mumbai--32.
3. The State of Maharashtra,
having its office at Mantralaya,
Madam Cama Road, Mumbai--400 032. : Respondents
....
Mr.R.V.Desai with Mr.M.M.Vaidya for the petitioners.
Mr.C.U.Singh with Mr.V.A.Sonpal for respondent no.1.
Mr.D.A.Nalawade, Government Pleader for resp. nos.2 & 3.
....
CORAM : SWATANTER KUMAR, C.J.&
S.A. BOBDE, J.
Date of Reserving ) : 20.10.2008
the Judgement. )
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Date of Pronouncing) : 18.12.2008
the Judgement. )
JUDGEMENT (Per S.A.Bobde, J.)
1. The petitioners have challenged the appointment of the
respondent no.1 Mr.S.D. Mathane as Member of the Sales
Tax Tribunal by an order dated 25.6.2008. They seek the
issue of a writ of certiorari calling upon the respondents
to place the records pertaining to the impugned
appointment and a writ of quo warranto for quashing the
said appointment dated 25.6.2008. The Sales Tax Tribunal
to which the respondent no.1 has been appointed has been
constituted under
igsection 11 of the Maharashtra Value
Added Tax Act, 2002, which has been brought into force
from 1.4.2005. Sub-section (3) of section 11 provides for
qualification and the terms of office of the members of
the Tribunal which reads as follows:-
“(3) The qualifications and the terms of
office of the members of the Tribunal shall
be such as may be prescribed, and a member
shall hold office for such period as may beprescribed or as the State Government may,
by special order in his case, specify.”
Qualifications have been prescribed under rule 6(1) of
the MVAT Rules which read as follows:-
“6. Qualifications of members of Tribunal
and term of office:
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(1) Every Member of the Tribunal shall be a
person who,
(a) is or has been a Judge of the High
Court, or
(b) is or has been a District Judge, or
(c) is qualified for appointment as a
District Judge, and has held judicialoffice for not less than ten years, or
(d) has, for a continuous period of not
less than three years held an office, not
below the rank of Joint Commissioner ofSales tax, in the Sales Tax Department of
the State Government, or
(e) is a Chartered Accountant and has
practiced as such for not less than sevenyears, or
(f) not being a person described in clause
(d), has in the opinion of the State
Government, adequate knowledge,
experience in accounting, or has in the
oropinion of the State Government, special
knowledge or experience in commerce or
industry.
Explanation: For the purpose of clause
(b), the service as a Deputy Commissioner
before the appointed day shall beconsidered for determining the period of
three years.”
2. It is common ground that the impugned appointments is
under clause 6(f) alone. The thrust of the contention on
behalf of the petitioners is that the respondent no.1 did
not have adequate knowledge or experience in accounting
and the Government could not have formed any opinion that
he has special knowledge and experience in commerce or
industry under clause 6(f). The respondent no.1 not
being therefore qualified could not have been appointed
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as a Member of the Sales Tax Tribunal at all. It is not
necessary to go into the qualification of the respondent
no.1 with reference to any other clause of rule 6 since
the Government has appointed the respondent no.1 only
under clause 6(f).
3. It must be noted at the outset that whether a person
is qualified for appointment as a Member of the Tribunal
is dependant on the opinion of the State Government as to
adequate knowledge, or experience in accounting or
special knowledge or experience in commerce or industry,
vide clause 6(f). It is settled law that words such as
“in the
opinion of” or “reason to believe” suggest the
requirement of the authority to arrive at a subjective
satisfaction. However, the formation of the opinion has
been considered to be a process not altogether
subjective. It lends itself to a limited scrutiny by the
Court that such an opinion was not formed on relevant
facts or within the restraints of the statute, vide
Barium Chemicals Ltd. v. Company Law Board (AIR 1967 SC
295 at page 324. Therefore, in assessing the validity of
an administrative act under a law which provides that
certain thing shall be done “if in the opinion of” a
certain authority certain circumstances exist, an inquiry
by the Court must be directed to whether the opinion,
apart from being bona fide, is based on the existence of
relevant objective facts. Once such objective fact or
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material is shown to exist, then the opinion formed by
the authority would not be liable to question i.e. to
say it would not be open for the Court to consider
whether the authority has come to the conclusion which it
would come to itself, or whether the conclusion is what
any other person would have arrived at as long as it is
not an opinion which was impossible to be arrived at.
The extent of intervention under such provision has been
indicated in the following passage quoted with approval
by J.S.Verma,J. in S.R.Bommai v. Union of India [(1994)
3 SCC 1]:-
“Where the existence or non-existence of a
fact is left to the judgment and discretion
of a public body and that fact involves a
broad spectrum ranging from the obvious tothe debatable to the just conceivable, it
is the duty of the court to leave the
decision of that fact to the public body to
whom Parliament has entrusted the
decision-making power save in a case where
it is obvious that the public body,consciously or unconsciously, are acting
perversely.”
With this, the formation of the opinion by the State
Government may be examined.
4. At the relevant time, the respondent no.1 was a Joint
Commissioner of Sales Tax which is equivalent to the post
of Deputy Secretary and was appointed in the Finance
Department as a Deputy Secretary. He had, apart from
long experience in the Department, three years’
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experience as Deputy Secretary. At the outset, it must
be stated that the Government has formed its opinion on
the basis that the 1st respondent has been working for
about three years on the post of Deputy Secretary and has
selected him, considering his deep study of Sales Tax
laws and long experience in dealing with the same. In
the meeting of the Selection Committee held on 26.5.2008,
the respondent no.1’s candidature was considered along
with that of two other departmental candidates who had no
experience of working on the legal side. The question is
whether the Government could have validly formed an
opinion under clause 6(f) that the respondent no.1 has
special
knowledge or experience in commerce or industry.
Even though it is true that the Selection Committee, in
its minutes referred to the deep study of Sales Tax laws
and long experience in dealing with the same without
expressly referring to the respondent no.1’s knowledge or
experience in commerce or industry, the Committee has
made it clear that the selection is under rule 6(f). The
learned counsel for the petitioner submits that
non-mentioning of experience or knowledge in commerce or
industry in the minutes of the meeting of the Selection
Committee was sufficient to show that the respondent no.1
is not qualified. We have examined the various notings
which show that the various officers who processed the
file, in fact, considered the knowledge of the candidate
in regard to industry and commerce. From the file, it
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appears that an adequate appraisal of the respondent
no.1’s qualifications to hold the post has been made at
every stage. The respondent no.1’s application was
received and appraised by the Desk Officer who also
appraised the applications of other candidates. A
reference was made to a Government Resolution which
provides that persons who have worked for a minimum of
two years in the legal branch should be given preference
for appointment. Thereafter, it was suggested that the
Sales-tax Department be asked to certify whether the
respondent no.1 had knowledge of accounts and commerce.
On this the Finance Secretary made the following
observations:-
“‘X’ may be approved.
2. Shri Mathane’s record is outstanding.
He has extremely good knowledge of salestax, VAT Laws and accounts. Accordingly,
he was especially chosen to work inMantralaya first as O.S.D. (but given DS
level work taxation) and then as DS
(taxation/VAT) where he was promoted as Jt.
Commissioner level in the Department. He
is still working in the F.D.
3. In view of the above ‘x’ is put up for
approval, so that Shri Mathane could be
considered for appointment as a member on
Sales Tax Tribunal. He is eminently
qualified to discharge thatresponsibility.
Sd/-
8/5/08″
Finance Secretary
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5. It appears that it is on the basis of the above that
the Government formed the opinion that he had sufficient
knowledge and experience in commerce and industry within
the meaning of rule 6(f). The Government is conscious
that it has made the appointment under rule 6(f). We are
not inclined to set it aside because the Minutes of the
Selection Committee do not reflect the words of rule
6(f), particularly since knowledge or experience in
commerce and industry is allied to the key and
implementation of Sales Tax laws. The knowledge and
experience of commerce and industry contemplated by rule
6(f) does not appear to be that of a trader or an
industrialist as the scheme of the Rules does not suggest
such an appointment. We find from the notings that there
was sufficient material before the Government to form
such an opinion which indeed is a subjective opinion
based on the career graph and the abilities of the
candidate. It is, therefore, not possible to accept the
argument on behalf of the petitioner that the respondent
no.1 was clearly disqualified. In such a case, even if
it is pointed out that there are certain contradictions
in the affidavit of the Government and the office files,
we are of view that such an appointment should not be
lightly interfered with on such grounds provided it is
found that the Government formed its opinion on the basis
of consideration of relevant material. The office file
shows that the question of the appointment was processed
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at various stages of the Department. The initial note
was put up by the Desk Officer. The matter was then
referred to the Law & Judiciary Department which
eventually gave an opinion. The issue was then forwarded
to the Principal Secretary (Finance) and the entire file
was thereafter put up before a High Power Committee under
the chairmanship of the Chief Secretary and Addl. Chief
Secretary (Finance) and Principal Secretary (Law &
Judiciary). The recommendation of the High Power
Committee had been accorded sanction by the Finance
Minister and the Chief Minister. We find no merit in the
challenge to the appointment of the respondent no.1.
6. Writ Petition is dismissed.
Sd/-
CHIEF JUSTICE
Sd/-
S.A. BOBDE, J.
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