CESC LIMITED Vs. STATE OF WEST BENGAL
HIGH COURT OF CALCUTTA
STATE OF WEST BENGAL
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(1.)By this Writ Application under Article 226 of the Constitution of India the Writ Petitioners, C.E.S.C. Limited and another (hereinafter referred to as petitioners), have prayed the Court for an order
"that Sections 5, 6 and 14 of the West Bengal. Taxation Tribunal Act, 1987 in so far as it takes away the jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India and confers jurisdiction upon the said Tribunal to decide the constitutional points are violative of basic structure of the Constitution of India and void to the said- extent"
and issue of a writ in the nature of Mandamus commanding the respondent to act in accordance with law and to cancel and/or rescind and/or withdraw the judgment and order dated 22nd March, 1995 passed by the respondent No. 6 in cases Nos. R. N. 481(T) of 1989 and 241(T) of 1992, the Memo No. 4130 dated 26th September, 1995 and Memo No. 4285 dated 19th October, 1995 both issued by the respondent No. 2 and the memo No. 22967 CT dated 9th December, 1995 written by the respondent No. 5 and the verbal threat made by the respondent No. 2 as contained in paragraph 24 of the petition and all proceedings thereunder and/or in pursuance thereof," along with the other reliefs prayed for therein, for the reasons stated and on the grounds made out therein.
(2.)On the writ application (hereinafter referred to as application) being moved, the learned Counsel for the contending respondents had raised a preliminary point of law as to the maintainability of the writ application and jurisdiction of this Court to entertain the same on the submissions made. It had been submitted by the learned Counsel that the question of maintainability and jurisdiction of this Court to entertain the application may first be decided before entertaining the same and issuing any direction therein. The aforesaid point having been seriously urged on the submissions made, I had proposed to take up and hear the aforesaid question of maintainability and jurisdiction before entertaining the application. I had accordingly heard the submissions of the learned Advocates for both sides at length on different dates on the points so raised.
(3.)It was submitted by the learned Counsel for the contending respondents that the writ application is mainly and inevitably directed against the judgment and order dated 22nd March, 1995 passed by the respondent No. 6-The West Bengal Taxation Tribunal (for 5 short Taxation Tribunal), being Annexure 'E' to the writ application, on an earlier writ application filed by the petitioner No. 1 herein. The prayer (a) to the instant writ application challenging the constitutional validity of Sections 5, 6 and 14 of the West Bengal Taxation Tribunal Act, 1987 (hereinafter referred to as Act of 1987) on the ground stated in ground No. VIII thereof is only an endeavour to bring the matter within the jurisdiction of this Court. It was submitted that the petitioner had duly participated in the earlier writ application under Article 226 of the Constitution of India, after being transferred to the Taxation Tribunal from the High Court, and had allowed the same to be disposed of. No such plea regarding the constitutional validity of Sections 5, 6 and 14 of the Act of 1987 had been raised by the petitioner herein. The said plea is taken herein for the first time by the petitioners after being unsuccessful in the aforesaid earlier writ application only as a device to avoid the aforesaid impugned judgment and order dated 22-3-1995 passed by the Taxation Tribunal, which is clearly barred by the principles of constructive res judicata. The aforesaid impugned judgment and order of the Taxation Tribunal is thus sought to be challenged by the petitioners in the instant writ application in this round about way by sadly seeking to clothe the High Court with the jurisdiction to entertain the instant writ application in view of the prayer(s) thereof on the ground stated in ground VIII thereto.
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