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H.P.

NATIONAL LAW UNIVERSITY, SHIMLA

Assignment-

Scope of Judicial Review against the decisions passed by the National


Company Law Tribunal with specific reference to decided cases

Submitted To- Submitted By-

Dr. Alok kumar Shashank Tiwari

Assistant Professor Roll no. – 36

Company Law BA.LLB. (HONS.)

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1. INTRODUCTION-

We as human beings are becoming more and more overzealous in our day to day lives. With the
development of technology and the so-called sophistication of the life to meet their self-
requirements, they are indulging in cheating, malpractice and are following shortcuts in life to
make more money. To check the mismanagement in the functioning of a company, the Central
government of India has set up a tribunal called the National Company Law Tribunal.

The National Company Law Tribunal or NCLT is a quasi-judiciary body established in India,
that makes a formal judgment on a disputed matter, relating to the companies issues in India. It
was set up to govern the companies registered in India. It is a successor to the Company Law
Board. The government has appointed 11 benches for NCLT. Selection of members is done by a
selection committee headed by the Secretary of the Corporate Affairs Ministry (MCA)
The National Company Law Tribunal was established by the Central Government in 2016 under
Section 408 and 410 of the Companies Act of 2013, and it was constituted on June 1, 2016 by the
government of India & is based on the recommendation of the justice Eradi committee on law
relating to insolvency and winding up of companies

2. EMERGENCE OF NCLT-

NCLT was conceptualized by Eradi Committee. It was initially introduced in Companies Act,
1956 in 2002 but the provisions of Companies (Second Amendment) Act, 2002 were never
notified as they got mired in litigation surrounding constitutionality of NCLT. 2013 Act was
enacted and the concept of NCLT was retained. However, the powers and functions of NCLT
under 1956 Act and 2013 Act are different. The constitutionality of NCLT related provisions
were again challenged and this case was finally decided in May 2015. The Apex Court upheld
the constitutionality of the concept of NCLT but some of the provisions on constitution and
selection process were found defective and unconstitutional

3. Transition from CLB to NCLT-

The Act has set out in detail the procedure to deal with cases which are pending in various
forums in Section 434. The Government has notified 1st June 2016 for transfer of matters from
CLB to NCLT. On that date, all the pending proceedings before CLB will be transferred to

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NCLT and Tribunal will dispose of such matters in accordance with the provisions of law.
Tribunal has discretion to take up the pending CLB proceeding from any stage. At its discretion,
it can take up the matter at stage where it was left by CLB or start the proceedings afresh or from
any stage it deems fit.

4. DIFFERENCE BETWEEN NCLT AND NCLAT

The NCLT has primary jurisdiction whereas NCLAT has appellate jurisdiction. NCLAT is a
higher forum than NCLT. Evidence and witnesses are generally presented before NCLT for
taking the decisions and NCLAT generally reviews decisions of NCLT and checks it on a point
of law or fact. Fact finding and evidence collection is primarily a task of Tribunal whereas the
Appellate Tribunal decide cases based on already collected evidences and witnesses.

5. SCOPE AND FUNCTIONING OF NATIONAL COMPANY LAW TRIBUNAL

The National Company Law Tribunal consolidates the corporate jurisdiction of the Appellate
Authority for Industrial and Financial Reconstruction (AAIFR), the Company Law Board, Board
of Industrial and Financial Reconstruction (BIFR) and the powers relating to the winding up of
the company and other provisions vested in High Courts1. The Company Law Board which was
set up under the Companies Act, 1956 stands dissolved with the establishment of National
Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT).
Given the fact that NCLT combines the powers of different forums the expectations from this
regulator, touched below, are rather high2.

5.1 Consolidated forum:

Before NCLT’s constitution, matters involving the same companies or parties were spread across
different forums viz., High Courts (for winding-up and merger/amalgamation schemes), CLB
(for oppression and mismanagement) and BIFR (for being declared sick). Litigants were forced
to move different courts and tribunals for seeking different reliefs causing multiplicity of
proceedings and delays due to the dearth of a consolidated redressal tribunal. The NCLT is
formed with an aim to merge these various forums and provide a single medium for adjudication

1
Excerpts from the ‘Explanatory Notes to the Tribunals, Courts and Enforcement Act, 2007’ prepared by the
Ministry of Justice, British Parliament
2
Creyke, Robin, Tribunals in the Common Law World, The Federation Press, United Kingdom, 2008 at p. 20.

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of all company matters. Having a consolidated platform will, hopefully, provide a smooth
passage for litigants to seek reliefs under one roof. It is further expected to save time and
resources and provide more efficiency in corporate dispute resolution.

5.2 Efficiency in redressal of company matters:

The NCLT and NCLAT are expected to effectively reduce the pendency of cases, expeditiously
dispose-off applications and appeals filed before it. Currently, the High Courts are burdened with
company matters including liquidation proceedings. Transfer to NCLT is expected to reduce the
burden and help lower the High Court pendency. Additionally, as an appeal from an order of
NCLT will lie before the NCLAT, High Courts ought to have a further reduced burden,
considering that earlier, appeal from the order of CLB had to be filed before the High Court as
well. With the notification of the Insolvency and Bankruptcy Code, 201611 (“Code”), NCLT
would offer a completely new and improved process for liquidation of Indian companies.

5.3 Class Action Suits:

This concept has finally been introduced under section 245 of the Act. Under these proceedings,
a class of investors aggrieved by the same act can jointly file a single suit in one forum, as
opposed to individuals filing various suits in different forums which, in turn, prevent litigious
duplicity. For example, multiple shareholders can file joint proceedings and seek cumulative
relief against oppression by the management.

6. JUDICIAL REVIEW; NCLT

The power of judicial review enables the judiciary to determine the constitutional validity of
legislative and/or executive actions, possibly making them subject to invalidation. The power of
judicial review by Tribunals was examined and decided by the Supreme Court in S.P. Sampath
Kumar v. Union of India and in the subsequent case of L. Chandra Kumar v. Union of
India. After the decision in Sampath Kumar case divergent views were taken by various benches
of the Supreme Court. The matter was therefore referred to a seven judge bench of the Supreme
Court in L. Chandra Kumar.

It was finally held that the vesting of power of judicial review upon Tribunals would not violate
the basic structure of the Constitution provided such alternative mechanism is effective and a real

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substitute for the powers of High Courts3. The following principles were laid down by the
Supreme Court:

1. The jurisdiction of the High Courts under Article 226 and of the Supreme Court under
Article 32 cannot be ousted by an alternative institutional mechanism as it would violate
the basic structure of the Constitution.

2. In their supplementary capacity, however, Tribunals are competent to sit on judicial


reviews of legislation/subordinate legislation and/or rules. However, this is subject to the
limitation that such Tribunals, being creatures of a statute, are not entitled to entertain
the vires of their parent statutes. Furthermore, any question of interpretation of a statutory
provision or rule shall be heard by a bench consisting of at least one judicial member.

3. In cases wherein the vires of the parent act is in question, the relevant High Court must be
approached directly. However, in all other cases, the Tribunals will act as the Courts of
first instance for the areas of law for which they have been constituted.

4. All the decisions of the Tribunal will be subject to the jurisdiction of the High Court under
Articles 226/227 of the Constitution of India before a Division Bench of the Court within
whose territorial jurisdiction the concerned Tribunal falls.

6.1Order of NCLT- Section 421

1. can be appealed in NCLAT


2. within 45 days
3. appellate tribunal may entertain appeal after 45 days [up to additional 45 days] if satisfied
that there was a sufficient cause for not filing appeal in time
4. no appeal shall lie if the order was passed with the consent of parties

6.2 Order of NCLAT- Section 423

1. can be appealed in Supreme Court


2. within 60 days

3
Administrative Tribunals in Canada, available at: http://www.thecanadianencyclopedia.ca/en/article/administrative-
tribunals/ (last visited on 31-09- 2018)

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3. Supreme Court may entertain appeal after 60 days [up to additional 60 days] if satisfied
that there was a sufficient cause for not filing appeal in time
4. Appeal to Supreme Court can be made only on a Question of Law

There is no provision for forming benches of Appellate Tribunal. It appears that all members of
Appellate Tribunal will constitute a bench. However, Section 10FS(1) provides that in case of
vacancy in post of chairperson, senior-most member will sit as Chairperson. Central Government
can also nominate a person to act as chairperson in absence of chairman [Section 10FS(2)]. If for
reason other than temporary absence any vacancy occurs in the office of the Chairperson or a
Member, the Central Government shall appoint another person in accordance with the provisions
of this Act to fill the vacancy and the proceedings may be continued before the Appellate
Tribunal from the stage at which the vacancy is filled [Section 10FS(3)]. Thus it appears that if
post of chairman or any member falls vacant, other members can continue the functions of
Appellate Tribunal4.
No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter
which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or
any other law for the time being in force and no injunction shall be granted by any court or other
authority in respect of any action taken or to be taken in pursuance of any power conferred by or
under this Act or any other law for the time being in force [ Section 10GB].
The term judicial review has restrictive connotation as compared to judicial control. Judicial
review is supervisory rather than corrective in nature. Judicial review is denoted by writ
jurisdiction under articles 32 and 226 of Constitution. Judicial control, on the other hand, is
broader and includes judicial review. Judicial control comprises all methods through which a
person can seek relief against the administration through courts such as appeal, writs,
declaration, injunction etc5.
The system of judicial review is radically different from appeal. While hearing an appeal court is
concerned with merits of a decision. The Court is concerned with legality of an order while
subjecting any administrative act into judicial review. In an appeal the question is correctness of

4
Basu, Durga Das, Commentary on the Constitution of India, Lexis Nexis, New Delhi, 8 th edn., 2011 at p. 10650;
See also, State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612
5
Smith, Edward Conard and Zurcher, Arnold Jhon, Dictionary of America Politics, Barnes and Noble, New York,
1959, p. 212.

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a decision. In judicial review the question is legality of a decision. The right of appeal is always
statutory. On the other hand judicial review is the exercise of court’s inherent power to keep all
bodies exercising judicial power within jurisdiction. No statutory authority is necessary to
exercise judicial review6. The basis of judicial review is common law. The court is performing
only ordinary functions of a superior court of law.
Judicial review thus is a fundamental mechanism for keeping public authorities within due
bounds to uphold rule of law. On appeal the court substitutes the decision of the primary
authority. This is not permissible under judicial review. The power to decide belongs to the
administrative authority and the court can only quash it and remand for fresh disposal. In Council
of Civil Service Union v. Minister for the Civil Service the House of Lords held that judicial
review should not be available if the particular decision under challenge was not justiciable.
The Supreme Court overruled S. P. Sampath Kumar where it was held that a tribunal could be a
substitute of High Court. In L. Chandra Kumar64 the Supreme Court recognized the need for
tribunals as distinct from courts, but reiterated that no tribunal could really be a substitute of a
High Court. L. Chandrakumar has led to some undesirable consequences. A bill have been
introduced in Rajya Sabha on 18th March 2006 for the abolition of administrative tribunals
dealing with service related matters since they had become subject to the jurisdiction of High
Courts. The Bill sought to amend the Act of 19857, which envisaged setting up of administrative
tribunals. This bill is to bring in line with the judgment of Supreme Court in the case of L.
Chandra Kumar. Since tribunals became subject to the jurisdiction of High Courts it is no longer
necessary to retain power to punish for contempt with them.While the Sampath Kumar and
Chandra Kumar decisions con- cerned tribunals constituted under Article 323-A and exercising
jurisdiction constitutionally vested in the High Courts in the first instance under Article 226, the
National Company Law Tribunal (‘NCLT’) was mooted with the agenda of divesting the original
company law jurisdiction statutorily vested till then with the High Courts. Automatically, the
challenge to this Tribunal appeared to be weaker, since it did not seemingly tinker with the
power of judicial review, which was held to be a part of the basic structure. For that matter, the
move to place important powers such as the winding up of corporations and the ap- proval of
schemes of amalgamation, merger and de-merger of companies with a Tribunal did not appear to

6
Sinha, S. B., “Judicial Reform in Justice-Delivery System” (2004) 4 SCC (Jour) 35
7
Wade, H.W.R & Forsyth, C.F., Administrative Law, Oxford University Press, United Kingdom, 10th edn., 2009 at
p. 773

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violate any provisions in the Constitution. However, this proposal could well signal the
beginning of the end of the High Courts’ authority and varied jurisdiction, as understood and
experienced by the citizen. In other words, the concern raised in Chandra Kumar to the effect that
the High Courts could be divested of all other judicial functions apart from that of con-
stitutional interpretation8, started presenting itself as a distinct and tangible out- come, thus
instigating the constitutional challenge to the Companies (Second Amendment) Act, 2002 before
the Madras High Court. This Amendment in- serted Chapters 1B and 1C of the Companies Act,
1956, which provided for the National Company Law Tribunal and the National Company Law
Appellate Tribunal respectively.
The division bench of the Madras High Court, in a well-reasoned judgment in R.Gandhi v. Union
of India,9 struck down several provisions of the amendment pertaining to the qualification and
appointment of members to the Tribunal as well as their conditions of service. The significance
of this judg- ment, apart from it being upheld in entirety by the Supreme Court, lies in the fact
that the High Court glossed over the constitutional silence, emphasized by the Union of India, to
generate a set of minimal standards which any adjudica- tory body had to satisfy.

7. CASE LAWS-
Cheran properties limited v. Kasturi and sons limited and ors10
This agreement was entered into between KCP, KSL, SPIL and Hindcorp. Even though the
appellant purchased the shares of SPIL as a nominee of KCP, the arbitral award which has been
rendered in proceedings between the parties to the agreement dated 19 July 2004 does not bind
the appellant; Secondly, the principle that an arbitration agreement will, under Section 7, bind
only parties and not a third party in the position of the appellant, is settled by the decisions of this
Court in Indowind Energy Limited v Wescare (India) Limited and in S.N.Prasad, Hitek
Industries (Bihar) Limited v Monnet Finance Limited; Thirdly, an arbitral award has to be
enforced as a decree of a civil court in view of the provisions of Section 36. The arbitral award
could not have been enforced by pursuing proceedings before the NCLT; fourthly, though a
review was sought before the NCLAT on the basis of the law laid down by this Court in

8
Kagzi, M.C.J, The Indian Administrative Law, Metropolitan Book Co. Pvt. Ltd., Delhi, 3 rd edn., 1973 at pp. 276
and 279.
9
(2004) 120 Comp. Cas. 510.
10
2018 SCC OnLine SC 431

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Indowind (supra) it was summarily dismissed on the ground that there was no error in the
original judgment.

Sas Hospitality pvt. ltd. & anr v. Surya Constructions pvt. ltd. & ors11.
The Defendants, further, contend that in view of the notification and coming into effect of the
National Company Law Tribunal , this Court has no jurisdiction to try and entertain the suit in
view of the bar contained in Section 430 and Section 434(1)(c) of the Companies Act, 2013
(hereinafter, ‘2013 Act’). Applications under Order VII Rule 11 CPC have been filed seeking
rejection of the plaint12. The Plaintiffs have also filed an application under Order XXXIX Rules
1 & 2 CPC in which an ex-parte injunction order was granted in the following terms vide order
dated 12th March, 2014.

I am satisfied that the plaintiff has made out a prima facie case for grant of an ex parte ad
interim injunction and in case the ex parte ad interim injunction is not granted, the plaintiff shall
suffer an irreparable loss and injury. The balance of convenience is also in favour of plaintiff. It
is directed that till the next date of hearing defendants No. 5 to 9 shall not exercise any rights in
respect of shares allotted to them on 5.10.2013 Further, defendants No. 2 to 4 are restrained
from disposing of any asset of the company or creating any third party interest in the assets of
the company except in the ordinary course of business. In case any immovable asset is disposed
of or any third party is created even in the ordinary course of business, the said defendants shall
file such a statement before the court.

In the 2013 Act, Sections 407 onwards deal with the constitution of the Tribunal. Section 420 has
vested the Tribunal with powers to ‘pass such orders thereon as it thinks fit’. The Tribunal is also
vested with the power of review. Under Section 424 of the Companies Act, 2013, the Tribunal
also has the same powers and functions as are vested with a Civil Court. In addition to the above,
the Tribunal also has the power to punish for contempt which was hitherto not available with the
CLB. In various ways, the NCLT is not merely exercising the jurisdiction of a Company Court
under the new Act, but is also vested with inherent powers and powers to punish for contempt. It
is in this background that the court has to decide the issue of jurisdiction, which has been raised
by the Defendant.

11
2018 SCC OnLine Del 11909
12
Walker, David M., Oxford Companion to Law, Oxford University Press, ISBN 0-19-866110-X, 1980 at p.1239

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Mcdonald's India Private Limited and Anr. .v. Union of India and Ors13. .
ON the first above-said application-Company Appl. No. 301(PB)/2017 filed under Section 242
of the Companies Act, 2013-the following order was passed by NCLT:—
“…This is an application filed by the petitioner in a disposed of matter with a prayer that
subsequent to the disposal of the company petition no. 13.07.2017, non-applicant/respondent has
issued notice dated 21.08.2017 (Annexure-Z) for terminating the contract with J.V Company. A
prayer has been made to set aside the notice of termination and declare each of the Operating
Licence Agreements/Franchise Agreements in respect of 145 restaurants to be valid and
subsisting14. A further direction has been sought to non applicant-respondent Nos. 2 to 5 to
execute Operating Licence Agreements/Franchise Agreements in respect of 20 restaurants as per
the notice of termination dated 21.0.2017 Some other prayers have also been made

The Companies Act, 2013 has established authorities that include NCLT and NCLAT. Section
420(1) mandates that NCLT would pass such orders in the proceedings brought before it as it
thinks fit after giving to the parties “a reasonable opportunity of being heard15”. In terms of
Section 421, any person aggrieved by an order of NCLT “may prefer an appeal” to the NCLAT,
the exception being, per sub-section (2), in case the order has been passed by NCLT “with the
consent of parties”. The mandate to NCLAT is similar in as much as Section 421(4) requires that
NCLAT shall pass such orders ONthe appeal “as it thinks fit” by confirming, modifying or
setting aside the order impugned before it “after giving the parties to the appeal a reasonable
opportunity of being heard”. Section 424(2) confers upon NCLT and NCLAT certain powers of
the civil court prescribed under the Code of Civil Procedure, 1908 (CPC) while clarifying, by
sub-section (1), that the said forums while disposing of the proceedings brought before them be
not “bound by the procedure laid down in the Code of Civil Procedure, 1908” but “shall be
guided by the principles of natural justice, and, subject to the other provisions of this Act and of
any rules framed thereunder”, also adding that both the said forums i.e NCLT and
NCLAT “shall have powers to regulate their own procedure”. . Since the impugned orders have
been passed only at the threshold scrutiny by NCLT and there is no order issued holding any of
the petitioners or other parties arrayed as contemnors as being guilty, not the least punishing any

13
2018 SCC OnLine Del 6617
14
Corwin, Edward S., A Constitution of Powers in a Secular State, The Michie Company, USA,1951, p. 3-4
15
. Basu, D.D., Limited Government and Judicial Review, Sarkar and Sons, Calcutta, 1972, p. 275

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person for contempt of court, the remedy of appeal may not be even available. Be that as it may,
then Judicial review, if called for in the facts and circumstances of the case, can neither be
grudged nor denied.
In J.B. Chopra v. Union of India16, it was held that the Administrative Tribunal being a substitute
of the High Court had the necessary jurisdiction, power and authority to adjudicate upon all
disputes relating to service matters including the power to deal with all question pertaining to the
constitutional validity or otherwise of such laws as offending Article 14 and 16(1) of the
Constitution. In H.N. Patro v. Ministry of Information and Broadcasting17, it was reiterated that
the provisions contained in the Administrative Tribunals Act, 1985 bars the jurisdiction of the
High Court and the High Court should be careful to satisfy itself that it had jurisdiction to deal
with the matter and make an order nullifying the direction of the Tribunal
8.COMMITEE REPORTS-
A. Justice Rankin Committee Report - 1924 –
Justice Rankin Committee was set up to “Enquire in to the operation and effects of the
substantive and adjective law, whether enacted or otherwise, followed by the Courts in India in
the disposal of Civil suits, appeals, application for revision and other civil litigation...”. 45 The
Committee submitted its Report suggesting various reforms to deal with the pendency of cases,
as delay and backlog of cases had been a problem even in pre-independence period also.

B. Administrative Reforms Commission – 1966-


The Administrative Reforms Commission of India, set-up a Study Team on Administrative
Tribunals to explore the possibilities of establishing administrative Tribunals in different spheres.
The study team recommended in 1969, the setting up of Civil Services Tribunals to act as the
final adjudicatory authority in respect of orders inflicting the major punishments of dismissal,
removal and reduction in rank.

C. Wanchoo Committee - 1970 –


The Committee recommended for the establishment of Income-Tax Settlement Commission, to
serve as an alternative dispute resolution body in the administration of fiscal laws, the primary

16
AIR 1987 SC 357.
17
163 1993 1 SCC (Supp) 550

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objective of which was to increase the realisation of revenue. It was felt that there should be a
provision for compromise and settlement which should be fair, prompt and independent.

D. The High Courts’ Arrears Committee Report – 1972-


In 1969, Justice J.C. Shah Committee, popularly known as The High Courts’ Arrears Committee,
was set up by the Union Government which pointed out that there was an urgent need to set up
independent Tribunals to exclusively deal with service matters of Government employees in
view of the pendency of large number of writ petitions filed by Government servants pending in
the Supreme Court and various High Courts.

9. LAW COMMISION REPORTS-

14th Report of Law Commission of India, 1958-


The delay in disposal of cases is as old as the law itself. The inordinate delay increases the cost
of litigation and results in the miscarriage of justice. But at the same time, the speedy justice
does not mean a hasty or summary dispensation of justice. It should be ensured that there is
determination of facts in controversy and thereafter there is application of the legal principles to
those determined facts. A major issue before the Law Commission was whether to recommend
the creation of tribunals for specific subject/areas. The Commission examined the Comparative
experiences in England, France and the United States before concluding that the ‘creation of a
general administrative body like the Counseil d’Etat in France is not feasible’ in India.

58th Report of Law Commission of India, 1974


The Commission in its 58th Report on ‘Structure and Jurisdiction of the Higher Judiciary’
observed: ‘In regard to service matters, it is urged that a separate high powered tribunal or
Commission should be set up to deal with service matters and this Commission should be
presided over by a judge of the status of the Supreme Court Judge assisted by two independent
experts, and the decisions of this tribunal or commission should be final, subject to the right of
the public servant to approach the Supreme Court under Article 136 on the ground that his
fundamental rights are violated. The terms and conditions of the service of members of this
tribunal or commission should be similar to those of the judges of the Supreme Court. ..But, if

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the supervisory jurisdiction of the High Court and the Supreme Court remains intact, and the
decision of the service Court is subject to review by these higher Courts, we do not see how the
creation of Service Courts will reduce the growing volume of arrears in these Courts. …In our
opinion, the existing legal and constitutional position affords sufficient protection. We do not,
therefore, recommend the creation of a separate Service Tribunal.’

115th Report of Law Commission of India, 1986-


The Commission examined the vertical hierarchy of Tribunals and Courts involved in tax
litigation and recommended for the setting-up of a Central Tax Court to eliminate the jurisdiction
of High Courts in Tax matters. The feasibility of setting up of a central Tax court for Direct and
Indirect Taxes, was expressed in the following words: Administration of justice primarily aims at
providing mechanism for resolution of disputes arising in the society. Different form have been
set-up to different types of disputes e.g. civil courts, criminal courts, labour courts, tax tribunals
etc. Specific forum especially devised to deal with specific disputes caters to the needs of
persons who seek resolution of these specified types of disputes.

215th Report of Law Commission of India, 2008-


In Report titled ‘L. Chandra Kumar be revisited by Larger Bench of Supreme Court’ it was
observed by the Commission that Administrative Tribunals are a valuable and indeed an essential
part of adjudicatory system of a democratic State. The Tribunals have come to stay. Special
Tribunals are likely to grow rather than diminish. The impression that the Tribunal constituted
under the Act of 1985 is dependent upon the Government is misconceived. The functioning of
the Tribunal is not at all controlled by the Government, in any manner whatsoever. In this regard,
it was observed: ‘7.8 The High Court is at the apex of the State Judicial apparatus. Unless the
base level, where litigation is initiated and vertically moves upward to the High Court by way of
appeal or revision, is restructured and this proliferating appellate jurisdiction is either controlled
or curtailed, the inflow of work in the High Court would neither be regulated nor diminished.
The Law Commission expressed the view that, wherever possible, proliferating appellate and
wide original jurisdiction should be controlled or curtailed without impairing the quality of

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justice. The approach of the Commission is to reduce number of appeals, to set up specialist
courts/tribunals, simultaneously eliminating the jurisdiction of the High Court.

10. CONCLUSION-
The strength of the Indian Republic can be said to rest on the doctrine of separation of powers
between the legislature and the executive on the one hand and the judiciary on the other. On 11
January 2007, the dynamics of this doctrine revealed a clear tilt in favour of the judiciary, with
the Supreme Court appropriating to itself the power to pronounce on the legality of laws enacted
by Parliament with inbuilt immunity from the consequences of their impact on fundamental
rights. The Court did so when a nine judge Bench sought to resolve a constitutional issue
involving the nature and character of the protection provided by Art. 31B of the Constitution of
india to laws added to the Ninth Schedule of Constitution in I.R. Coelho v. State of Tamil
Nadu18and others. Article 31B, inserted by the first Amendment to the Constitution in 1951, says
that none of the Acts and Regulations specified in the Ninth Schedule shall be void on the
grounds of inconsistency with the fundamental rights guaranteed under the Constitution. The
power of Parliament to make any law at will and put it in the protective umbrella of Ninth
Schedule will transgress fundamental rights in their entirety and will be incompatible with the
basic Structure doctrine of the constitution.

18
AIR 2007 SC 861.

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15