Madras High Court reserves judgment in challenge to constitutionality of GSTAT

The Madras High Court on Friday reserved its judgment in the petitions challenging the constitutionality of the GST Appellate Tribunal (GSTAT) under the prevailing GST regime.

Arguments in the matter concluded yesterday before the Bench of Justices S Manikumar and Subramonium Prasad. The High Court had initially issued notice to the Central Government in August last year.

The case involves two similar petitions, one by Advocate V Vasanthakumar and another by the Revenue Bar Association (RBA). Both petitions assail Sections 109 and 110 of Chapter XVIII of the Central Goods and Services Tax (GST) Act and the corresponding provisions in the state Act.

These provisions lay down that the appellate tribunals for tax matters are to be constituted by one judicial member, one technical member (Centre) and one technical member (State) i.e. two technical members and a judicial member.

The petitioners have challenged this scheme, contending that the number of technical members on the tribunal cannot exceed the number of judicial members. The broad basis of the challenge is that the dominance of technical members on the GSTAT would would violate the doctrine of separation of powers and infringe upon the independence and impartiality of the judiciary.

Further, the exclusion of lawyers from being appointed as members of the GSTAT has also been challenged. Under the present GST regime, only civil servants and judicial officers are eligible for appointment as judicial members to the appellate tribunal.

The final round of hearings in the case had commenced before the present Bench on June 8.

While concluding the reply on behalf of the RBA on Friday, Senior Advocate Arvind Datar asserted that such exclusion of advocates from appointment to the GSTAT was incomprehensible, irrational and illogical. Datar was briefed in the matter by Advocates Rahul Unnikrishnan and Karthik Sundaram. Inter alia, Datar stated in his reply that the Constitutional scheme called for appointment of persons with judicial expertise as opposed to domain expertise to the tribunal.

Appearing in person, Advocate Vasanthakumar has made allied submissions while referring to Articles 124, 217 and 233 of the Constitution, These provisions allow the direct recruitment of advocates having sufficient experience to the District Courts and the Higher Judiciary. This being the Constitutional position, Vasanthakumar has asserted that there cannot be a deviation when it comes to recruitment of members to the GSTAT and that the Constitution scheme will prevail.

Among other cases, the petitioners placed reliance on the law laid by the Supreme Court in the cases of Union of India v R Gandhi, MBA v UOI, SP Sampath Kumar v UOI and Union of India v. Delhi High Court Bar Association to buttress their arguments.

In arguments made last week the State defended the validity of the challenged provisions by contending that the composition of tribunals must conform to the concerned statute.

Without statutory backing, Additional Solicitor General G Rajagopalan argued, the appointment of lawyers as judges would be illegal. Inter alia, he had also submitted that a lawyer’s right to practice under Article 19 (1) (g) of the Constitution does not include the right to be appointed a judge. The ASG had appeared for the Union Ministry of Law and Justice.

Submissions were also made last week on behalf of the Union Finance Ministry and the GST Council, as well as by the state of Tamil Nadu supporting the Law Ministry’s stance. It was argued that what is required is that the Tribunal members are legally qualified and judicially trained. In this scenario, judicial training meant that the member had sufficient adjudicatory experience, it was argued.

Appearing tor the Finance Minister and the GST Council, Advocate Aparna Nandakumar went on to submit that in the case of the GSTAT, a selection committee would be tasked to select members who have such requisite adjudicatory experience. She pointed out that this selection committee is yet to be appointed and that the the present challenge is, therefore, premature as well.

Inter alia, it was also argued that the MBA case cannot be relied upon in the instant case as the constitution of the GSTAT is traceable to Article 246A (exclusive power of the Parliament to make laws concerning GST, which was not in existence when the MBA judgment was pronounce) and not Article 323B (general power of the legislature of enact laws for the creation of tribunals) of the Constitution.

Bombey High court asks Devendra Fadnavis govt is Minor in tribal belt getting nutritious food.

A division bench of Justices N H Patil and G S Kulkarni of Bombey High court has sought to know from the Maharastra BJP government to know from the Maharashtra government  regarding the distributes nutritious food to children and lactating mothers living in the tribal belt of the state. The court  raised the question earlier this week while hearing a bulk of PILs highlighting increase of graph in malnutrition deaths and illnesses among the population living in the Melghat region of Vidarbha and other tribal areas across the Maharashtra.

Different benches of the high court have passed several orders on the issue over the last two years, directing the government to ensure that people in the tribal areas get adequate nutritious food, proper health care, sanitation and education facilities.

The court took the chart on record and asked government about its planning and policies  to know what needful exercise being taken to provide food to children and lactating mothers.

On July 17, the government submitted before the HC a chart indicating the number of health camps held in Melghat, Amravati district, to address the issue of malnutrition.The chart also shows about the government  strategy to take appropriate steps for the children, new born, and women so as to provide them medical aid.

“The government pleader shall take instructions as to whether the departments concerned of the state machinery distribute nutritious food to children and lactating mothers,” the court said.

The bench posted the petitions for further hearing on August 1.

The Higher court also instructed government to keep checking and put a close watch on the departments of the state machinery distribute nutritious food to children and lactating mothers.

 

 

Goa govt’s view sought over SC judgement

Goa govt's view sought over SC judgement
Goa govt’s view sought over SC judgement

The Bombay High Court has directed the Goa government to inform it of its stand in view of the Supreme Court judgement making it mandatory to convene a session of the Legislative Assembly within six months of its last sitting.

The division bench of the court here asked the Goa government to come forward with its stand on February 27.

The direction came after the court took up the hearing of a petition filed by social activist Aires Rodrigues seeking directions to the Goa Government to comply with the mandate of Article 174 of the Constitution by either summoning a session or dissolving the Goa Legislative Assembly.

Drawing the court’s attention that the last session of the Goa Legislative Assembly was on August 31, 2016, Rodrigues pointed out that the Law department had in November last year moved a file for summoning the session and on January 6, 2017 had also opined that the Assembly needed to be dissolved.

He pleaded that the state government had just been sitting on the advice given by the Law department.

In the petition filed under Article 226 of the Constitution, Rodrigues has stated that surprisingly there was no proposal by the government to convene a Session of the Legislative Assembly as required under the Constitution though the government was duty bound to ensure that the constitutional mandate is followed.

Rodrigues has pointed out that in terms of Article 174 of the Constitution it was the duty of the Governor to summon the House and that six months should not pass between its last sitting and the next sitting.

Submitting that there was an imminent danger of a constitutional breakdown and the continuance of an illegal and unconstitutional government, Rodrigues in his petition has stated that a government which defies the Constitution or does not follow the Constitutional mandate cannot continue in office even for a moment and requires to be dismissed.

Rodrigues has stated that the continuation of the Legislative Assembly without its meeting in compliance with Article 174 of the Constitution would not only be a travesty of the Constitutional mandate but also an absolute breakdown of the Constitutional scheme.

( Source – PTI )

Rlys, armed forces & varsities seeks recall of BCCI judgement

Rlys, armed forces & varsities seeks recall of BCCI judgement
Rlys, armed forces & varsities seeks recall of BCCI judgement

In a fresh development, Railways, armed forces and Association of Universities today moved the Supreme Court seeking recall of its judgement on implementation of Justice R M Lodha panel recommendations advocating sweeping reforms in BCCI.

Attorney General Mukul Rohatgi, appearing for them, told a bench headed by Justice Dipak Misra that as a result of the Lodha panel’s recommendations, their membership in BCCI has been “downgraded” from permanent to associate status.

The top law officer said all the three bodies have been “integral constituents” of BCCI and have been promoting cricket and employing cricketers.

“Railways, armed forces, Associations of Universities, are three members of BCCI’s which has 30 full-time members.

They have had voting rights in the last 50 years, have bodies in cricket, give jobs, have stadiums, but now have been downgraded. My status as a full-time member has been taken away…

“We have no love for BCCI but larger questions must be addressed and debated by a larger bench. There has been a change in the electoral college. How could the court downgrade our full membership in BCCI without even issuing notice to us,” he said and cited a judgement in the A R Antulay case in which the court had revisited its earlier verdict.

Rohatgi said the Lodha panel was primarily formed to probe IPL spot-fixing issue and later the scope got widened to the extent that it is now participating in day-to-day affairs of the BCCI.

He referred to the inapplicability of certain suggestions of the panel and gave an illustration of DDCA, saying it is a company and how can it be governed by regulations when there is a specific (company) law to deal with it.

Detailing the facts, he said the BCCI was a private society under the Tamil Nadu Societies Registration Act and Railways, Armed Services and Association of Universities were its permanent members.

“The issue which needs to be examined is whether an interim application can be filed in a parent judgment. We will not shy away from legal issues,” the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said while posting the matter for hearing on January 24.

( Source – PTI )

Full Judgement on Babri Masjid and Ayodhya Ram janambhoomi

No temple was demolished for mosque: Justice S.U. Khan

1. The disputed structure was constructed as mosque by or under orders of Babar.

2. It is not proved by direct evidence that premises in dispute including constructed portion belonged to Babar or the person who constructed the mosque or under whose orders it was constructed.

3. No temple was demolished for constructing the mosque.

4. Mosque was constructed over the ruins of temples, which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque.

5. That for a very long time till the construction of the mosque it was treated/believed by Hindus that some where in a very large area of which premises in dispute is a very small part birthplace of Lord Ram was situated, however, the belief did not relate to any specified small area within that bigger area specifically the premises in dispute.

6. That after some time of construction of the mosque Hindus started identifying the premises in dispute as exact birthplace of Lord Ram or a place wherein exact birthplace was situated.

7. That much before 1855 Ram Chabutra and Seeta Rasoi had come into existence and Hindus were worshipping in the same. It was very very unique and absolutely unprecedented situation that in side the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.

8. That in view of the above gist of the finding at serial no.7 both the parties Muslims as well as Hindus are held to be in joint possession of the entire premises in dispute.

9. That even though for the sake of convenience both the parties i.e. Muslims and Hindus were using and occupying different portions of the premises in dispute still it did not amount to formal partition and both continued to be in joint possession of the entire premises in dispute.

10. That both the parties have failed to prove commencement of their title hence by virtue of Section 110 Evidence Act both are held to be joint title holders on the basis of joint possession.

11. That for some decades before 1949 Hindus started treating/believing the place beneath the Central dome of mosque (where at present make sift temple stands) to be exact birthplace of Lord Ram.

12. That idol was placed for the first time beneath the Central dome of the mosque in the early hours of 23.12.1949.

13. That in view of the above both the parties are declared to be joint title holders in possession of the entire premises in dispute and a preliminary decree to that effect is passed with the condition that at the time of actual partition by meets and bounds at the stage of preparation of final decree the portion beneath the Central dome where at present make sift temple stands will be allotted to the share of the Hindus.

Accordingly, all the three sets of parties, i.e. Muslims, Hindus and Nirmohi Akhara are declared joint title holders of the property/ premises in dispute as described by letters A B C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/ Commissioner appointed by Court in Suit No.1 to the extent of one third share each for using and managing the same for worshipping.

A preliminary decree to this effect is passed.

However, it is further declared that the portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree.

It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map.

It is further clarified that even though all the three parties are declared to have one-third share each, however if while allotting exact portions some minor adjustment in the share is to be made then the same will be made and the adversely affected party may be compensated by allotting some portion of the adjoining land which has been acquired by the Central Government.

The parties are at liberty to file their suggestions for actual partition by metes and bounds within three months.

List immediately after filing of any suggestion/ application for preparation of final decree after obtaining necessary instructions from Hon’ble the Chief Justice.

Status quo as prevailing till date pursuant to Supreme Court judgment of Ismail Farooqui (1994(6) Sec 360) in all its minutest details shall be maintained for a period of three months unless this order is modified or vacated earlier.

Ayodhya site is Lord Ram’s birthplace: Justice D.V. Sharma

 

Justice D.V. Sharma, one of the three judges who delivered the Ayodhya verdict, based his order on the findings of the Archaeological Survey of India (ASI) to say that the disputed site is the birthplace of Lord Ram.

The property in the suit is the site of the birthplace of Lord Ram and the Hindus have the right to worship at the site, he said.

The ASI had in a statement before the court said that the structure was a massive Hindu religious structure.

Justice Sharma’s key observations are:

* The disputed site is the birth place of Lord Ram.

* The place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as birthplace of Lord Ram as a child. The spirit of divine ever remains present everywhere at all times for any one to invoke in any shape or form in accordance with his own aspirations and it can be shapeless and formless also.

* The disputed building was constructed by (Mughal emperor) Babar, the year is not certain but it was built against the tenets of Islam. Thus, it cannot have the character of a mosque.

* The disputed structure was constructed on the site of old structure after demolition of the same.

* The idols were placed in the middle dome of the disputed structure in the intervening night of Dec 22-23, 1949.

* A suit filed in 1989 by the Sunni Central Board of Waqfs, Uttar Pradesh, Lucknow, and others vs Gopal Singh Visharad and others and another suit filed in 1989 by Nirmohi Akhara and another vs Sri Jamuna Prasad Singh and others, are barred by time.

* It is also established that the disputed structure cannot be treated as a mosque as it came into existence against the tenets of Islam.

No proof mosque was built in Babar’s reign: Justice Sudhir Agarwal

Justice Sudhir Agarwal, one of the three judges who delivered the Ayodhya judgment, in his order differed with his colleague Justice S.U. Khan that the mosque at the disputed site was built in the reign of Mughal emperor Babar.

‘The disputed structure was always treated, considered and believed to be a mosque and practised by Mohammedans for worship accordingly. However, it has not been proved that it was built during the reign of Babar,’ said Justice Agarwal.

He observed that the area covered under the central dome of the disputed structure is the birth place of Lord Ram as per faith and belief of Hindus.

‘It is declared that the area covered by the central dome of the three domed structure belong to plaintiffs (Suit-5) and shall not be obstructed or interfered in any manner by the defendants,’ he said in his order.

Some key observations of Justice Agarwal are:

* The area within the inner courtyard belongs to members of both the communities, Hindus (here plaintiffs, Suit-5) and Muslims since it was being used by both since decades and centuries.

* The disputed structure was always treated, considered and believed to be a mosque and practised by Mohammedans for worship accordingly. However, it has not been proved that it was built during the reign of Babar in 1528.

* In the absence of any otherwise pleadings and material it is difficult to hold as to when and by whom the disputed structure was constructed. But it is clear that it was constructed before the visit of missionary Joseph Tieffenthaler in Oudh area between 1766-71.

* The building in dispute was constructed after demolition of non-Islamic religious structure – a Hindu temple.

* The idols were kept under the central dome of the disputed structure in the night of Dec 22-23, 1949.

* The area covered by the structures, namely, Ram Chabutra, Sita Rasoi and Bhandar, in the outer courtyard is declared in the share of Nirmohi Akhara.

* The open area within the outer courtyard shall be shared by Nirmohi Akhara and plaintiffs (Suit-5) since it has been generally used by the Hindu people for worship at both places.

* The land which is available with the Government of India acquired under Ayodhya Act 1993 shall be made available to the concerned parties in such a manner so that all the three parties may utilise the area to which they are entitled to, by having separate entry and exit for people without disturbing each others rights.