AMAR NATH SEN Vs. UNION OF INDIA

JUDGEMENT

(1.) Dr. Pal, appearing for the petitioners, contends that this Ordinance is constitutionally bad, as the power of the President under Article 123 to promulgate the same is conditioned. He must be satisfied that circumstances exist which render it necessary for him to take immediate action. His satisfaction must be an objective one and is not subjective. According to him no circumstances can be said to reasonably exist for which it is incumbent upon him to take immediate action. The object of this Ordinance is to set up a Tax Tribunal purported to be under Article 323B of the Constitution of India in place of the High Court for adjudication of the disputes relating to direct and indirect taxes.

(2.) He contends further that for the last 60 years, if not more, the High Court has been satisfactorily functioning in relation to the jurisdiction conferred upon it by the various tax statutes. This is not the subject for which an immediate result could be achieved by promulgating the Ordinance. It will take much time to set up infrastructure in various parts of the country by constructing buildings and making proper arrangement of man-power, it cannot be done overnight. He contends even during the last budget session and the monsoon session there was no whisper of setting up of this Tribunal. Taking advantage of Parliament not being in session for a brief period in the month of October, 2003, this Ordinance has been promulgated. The Government could have waited till the winter session of Parliament commences in the mid November, 2003. It is quite apparent that there is an oblique motive and mala fides on the part of the executive Government whose purported satisfaction as to existence of the emergent circumstances has been endorsed by the President.

(3.) His further contention is that the satisfaction of the President is judicially reviewable and further justiciable. According to him the standard for judging the reasonableness in reaching satisfaction of the President should be that of a reasonable prudent man on the given facts and circumstances of this case. Whether on the given facts and circumstances of this case a reasonable prudent man could have taken such a decision is the test of reasonableness and the same is also applicable in case of legislative action like executive action.