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2015 (12) TMI 1381 - DELHI HIGH COURT

2015 (12) TMI 1381 - DELHI HIGH COURT - TMI - Whether Loan defaulters have Right of representation though an advocate before the Grievance Redressal Committee (GRC) of the Bank - willful defaulter - The appellant Punjab National Bank (PNB) in LPA No.589/2014 proposed to so classify the respondents No.1 to 3 i.e. Kingfisher Airlines Limited, United Breweries (Holdings) Ltd. and Dr. Vijay Mallya as wilful defaulters and gave an opportunity to the said respondents to represent thereagainst; the res .....

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find any basis for such apprehension. There is no basis for the Bank / FIs to form an opinion that while the defaulting borrower and / or his representatives would not delay the proceedings, an advocate appearing for them would. Moreover the members of GRC can always control and guide the proceedings before it and as per the exigencies limit the time of hearing.

We therefore conclude that the GRC of the appellant banks erred in denying representation through the advocates to the resp .....

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ngly dismissed. The appellant banks to proceed to fix a date of hearing before their GRC, to proceed with their proposal for declaring the respondents as wilful defaulters - LPA 589/2014, CMs No.14796/2014 (for stay) & 14798/2014, LPA No.113/2015 & CM.No.3742/2015 (for stay) - Dated:- 17-12-2015 - MR. RAJIV SAHAI ENDLAW, J. For The Appellant : Mr. Yashraj Singh Deora, Adv. For The Respondent : Mr. Rajiv Nayar, Sr. Adv. with Mr. Diwakar Maheshwari, Mr. Saurabh Seth, Mr. Karun Mehta, Mr. Vinam Gup .....

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sued on cases of wilful default, was issued. The purpose thereof was defined as, to put in place a system to disseminate credit information pertaining to wilful defaulters for cautioning Banks / FIs so as to ensure that further bank finance is not made available to them. The said Circular inter alia provides for submission by Banks / Financial Institutions of data of wilful defaulters to RBI on a quarterly basis and preparation of a list of wilful defaulters by the RBI and communication thereof .....

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as a wilful defaulter. The Circular also requires the Banks / FIs to i) advise the borrower about the proposal to classify him as wilful defaulter along with the reasons therefor; ii) give the borrower time of fifteen days for making representation against proposed decision; iii) constitute a Grievance Redressal Committee (GRC) headed by the Chairman and Managing Director and two other senior officials of the Bank / FI, to hear the person sought to be classified as a wilful defaulter, if he so d .....

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classify the respondents No.1 to 3 i.e. Kingfisher Airlines Limited, United Breweries (Holdings) Ltd. and Dr. Vijay Mallya as wilful defaulters and gave an opportunity to the said respondents to represent thereagainst; the respondents, besides representing, sought a hearing. The GRC of the appellant PNB though gave a hearing, as mandated by the Circular aforesaid of the RBI, but during the said hearing objected to the said respondents being represented by a Senior Advocate. 4. This led to the f .....

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re the respondents were not entitled to be represented by an Advocate. It was further submitted that similar notices had been issued to a large number of other borrowers for declaring them also as wilful defaulters and that if the defaulting borrowers are permitted to be represented by an Advocate, the GRC would be severely impeded in disposing of those cases. 5. The learned Single Judge disposed of the writ petition vide order dated 28th August, 2014, finding / observing / holding: (i) that it .....

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and would have significant implications; (iv) that though the effort of the appellant Bank to expeditiously dispose of the matter is appreciable but the idea of preventing adequate representation to the affected parties for such disposal is unacceptable; (v) that the right to be represented by a Advocate is not an integral part of natural justice and it is not necessary that in all cases before domestic forums representation through a legal practitioner should be permitted; however the Courts h .....

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afforded adequate opportunity to represent; (viii) that the apprehension expressed by the counsel for the appellant PNB that the respondents / writ petitioners were seeking to delay the proceedings, could be allayed by fixing timelines. The writ petition was accordingly disposed of inter alia by fixing the date of hearing and by clarifying that the respondents / writ petitioners would have a right of representation in the said hearing through an Advocate or a Senior Advocate but with the condit .....

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oners in the meanwhile had already been declared as a wilful defaulter by another Bank. Though, in the light of the same, we enquired from the counsels, whether not the appeal had become infructuous, inasmuch as it matters not, whether a person is classified as a wilful defaulter by one Bank / FI or by more than one Bank / FI but on the contention of all the counsels that the issue involved is of general importance and is likely to arise in future as well, we proceeded to hear the appeal and res .....

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r Sections 13(2), (3) & (3A) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) has held that there is no right of hearing; iii) that the petition from which this appeal arises, notwithstanding the judgment of the Division Bench of the Calcutta High Court, was filed by way of a wager. Reliance was placed by the counsel for the appellant PNB on the following judgments: (A) N. Kalindi Vs. M/s. Tata Locomotive and Engineeri .....

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ase); (B) J.K. Aggarwal Vs. Haryana Seeds Development Corporation Ltd. (1991) 2 SCC 283, in the context again of departmental enquiry, holding that right of representation by a lawyer may not in all cases be held to be a part of natural justice except when a man‟s reputation or livelihood is at stake and that the discretion in this regard is to be exercised taking into consideration, whether there is likelihood of the combat being unequal, entailing a miscarriage or failure of justice and .....

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mitting representation, of the misappropriated amount being very large, number of documents and witnesses being numerous and workman being not able to get assistance of any other able co-worker, were held to be irrelevant; (D) D.G., Railway Protection Force Vs. K. Raghuram Babu (2008) 4 SCC 406 also laying down that ordinarily in a domestic / departmental enquiry, the person accused of misconduct has to conduct his own case, inasmuch as, such an inquiry is not a suit or criminal trial where a pa .....

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out whether the noticee had committed any violation of the contractual stipulations and in the absence of any allegation of mala fides, the said inquiry could not be held to be in violation of principles of natural justice; (F) Poolpandi Vs. Superintendent, Central Excise (1992) 3 SCC 259 where the contention, that since there was no statutory provision in the Customs Act, 1962 prohibiting the presence of a counsel during the interrogation of a person concerned, a request in that regard, if made .....

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k had already passed the order declaring the appellant in that case as a wilful defaulter); 8. Per contra, the senior counsel for the respondents / writ petitioners, argued: (I) that no prejudice is caused to the appellant Bank from the impugned judgment, as the interest of the appellant Bank has been sufficiently protected by fixing a time bound schedule of hearing; (II) that the RBI should be a party, since the Master Circular of the RBI is being interpreted / construed (however we had pointed .....

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iew of such a serious consequence, the representation through an Advocate is essential (however we had drawn the attention of the senior counsel to Superintendent of Police (C.B.I) Vs. Deepak Chowdhary (1995) 6 SCC 225 laying down that no opportunity of hearing is required to be given before the grant of sanction for prosecution under the Prevention of Corruption Act,1988 etc.); (IV) attention was invited to Section 303 of the Code of Criminal Procedure, 1973 (CrPC) conferring the right to be de .....

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attention was invited to Clause 4.3 of the Master Circular providing that it should also be ensured that the penal provisions are used effectively and determinedly but after careful consideration and due caution and advising the Banks / FIs to put in place a transparent mechanism for initiating criminal proceedings based on facts of each case and it was argued that for the sake of complete transparency also, representation through an Advocate is necessary; (VI) attention was invited to Clause 3 .....

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is an express prohibition against the appearance of the Advocate as under the Family Courts Act, 1984 and the Industrial Disputes Act, 1947 or under the Co-operative Societies Act, 2003; there is no such bar under the Master Circular; (VIII) that the appellant Bank in the notice issued to the respondents / writ petitioners proposing to declare them as wilful defaulters relied upon and referred to the investigative report of Ernst & Young LLP (EY) being an external agency; similarly assistan .....

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practise throughout the territories to which this Act extends,- (i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. and enquired whether the right of the Advocates to practise thereunder extended to before the GRC of the Bank. 10. The senior counsel for the respondents / writ petitione .....

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yers to appear on their behalf before the Courts and Tribunals in which they have cases and in the light thereof, there appeared to be no justification for not bringing into force Section 30 of the Advocates Act; (b) N.K. Bajpai Vs. Union of India (2012) 4 SCC 653 and invited attention to paras 20, 21, 24 to 27, 36, 38 and 70 thereof and contended that in the present case, the RBI has not deemed it expedient to bar the appearance of Advocate in the hearing provided for to the person sought to be .....

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ating any reason, setting aside the same; (e) India Photographic Company Ltd. Vs. Saumitra Mohon Kumar alias Saumitra Kumar 1983 SCC Online Cal 156 holding that no general rule can be laid down regarding right of legal representation and it must be left for consideration in the light of facts of each individual case; (f) PETT Vs. Greyhound Racing Association Ltd. 1969 1 Q.B. 125 laying down that where there is a right of audience and when the charge concerns a person‟s reputation and his l .....

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by the Advocate at the hearing contemplated therein, the same cannot be presumed to be taking it away, and; (h) attention was invited to Section 35A of the Banking Regulation Act, 1949 empowering the RBI to give directions and it was contended that the Master Circular has been issued in the exercise of power thereunder and the said section also does not deal with the right of representation. 11. With reference to Section 30 of the Advocates Act, we had further enquired from the counsels, what is .....

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receive evidence. Attention was invited to Section 11 of the Industrial Disputes Act constituting the Labour Court as a Tribunal and giving powers thereto of a Civil Court and it was contended that it was for this reason, since lawyers would have been entitled as a matter of right to appear before it, that the need for prohibiting them by Section 36(3) arose. Attention was also invited to Zonal Manager, Life Insurance Corporation of India Vs. City Munsif, Meerut AIR 1968 Allahabad 270 where with .....

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ury‟s Laws of India, 1999 Edition, summarising that the right to practice granted by the Advocates Act does not confer on a litigant the right to be represented by an Advocate. It was further argued that India Photographic Company Ltd. supra relied upon by the respondents / writ petitioners is contrary to the law laid down by the Supreme Court. To answer our query, whether a lawyer could appear before the GRC as an agent of the noticee, reference was made to Chapter X on Agency in Pollock .....

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ate (Amendment) Bill. 14. After we reserved judgment in LPA No.589/2014, LPA No.113/2015 entailing same controversy was listed and the counsels therein stated that they would be bound by the judgment to be delivered in LPA No.589/2014. Accordingly, judgment therein also was reserved. 15. While the judgment was reserved, the Division Bench of the High Court of Bombay in Kingfisher Airlines Ltd. Vs. Union of India MANU/MH/1768/2015, faced with a similar controversy, largely relying on the judgment .....

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e Court vide order dated 18th September, 2015 declined to interfere as the legal question had been decided in favour of the Bank and for the reason that the High Court while permitting the petitioner in that case to be represented by a lawyer had directed the hearing to be concluded in one day. The Supreme Court further clarified that its order will not constitute a precedent. 16. Thus as of now there is no pronouncement from the Supreme Court on the subject and the view of the Calcutta High Cou .....

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ilful defaulter are wide and drastic. Such declaration sounds the commercial death knell of the borrower in the sense that credit facilities would no longer be available to such borrower. Not only would such a borrower be deprived of credit facilities from banks and financial institutions but is likely to be also deprived of credit from any other person with whom it may be having financial / commercial dealings. The suppliers of goods and raw materials to such borrowers would stop supplying good .....

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of the Master Circular is to caution banks and financial institutions from giving any bank finance to a wilful defaulter. It was held that credit information could not be confined to only wilful defaults made by existing borrowers of the bank but would also cover constituents of banks who had defaulted in their dues under banking transactions with banks and who intended to avail further finance from the banks. Non-funded facilities such as guarantees were held to be covered by a Master Circular .....

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be so declared as a wilful defaulter of the intention to do so and to give an opportunity to represent against such proposal and a right of hearing before a GRC headed by Chairman and Managing Director of the Bank / FI. (D) As per the Master Circular the decision to classify the borrower as a wilful defaulter is to be entrusted to a committee of higher functionaries headed by Ex-Director and consisting of two General Managers / Deputy General Managers, as decided by the Board of Directors of Ba .....

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GRC on the representation of the borrower. (E) It would thus be seen that before the borrower is notified, a committee of high functionaries of Bank/FI has already collected and documented evidence and recorded reasons for proposing to declare him as a wilful defaulter. What follows before the GRC is not an inquiry, as is the case in a departmental proceeding in employment disputes, judgments with respect whereto have been cited by the Bank. Here, before the borrower is called upon to represent .....

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luded that the borrower be declared as a wilful defaulter. Resultantly, the GRC would be required to consider and weigh the evidence and the reasons on the basis of which the bank has arrived at the decision vis-a-vis the rebuttal evidence and arguments of the borrower and thereafter take a view. The proceedings before the GRC are thus not inquisitorial as in the case of departmental proceedings supra but are rather adversarial and the decision of GRC is final, against which no remedy is provide .....

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to be a judgment of lenders based on objective facts of the case. (G) We are of the view that a borrower himself or his workers / officials may not be well versed to, during the hearing before the GRC, support or explain the representation made against the proposal of the bank and may not be able to answer any query or give clarification as is sought by members of GRC with respect to contents of representation filed and which is likely to be prepared by professionals including advocates. It can .....

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which are invariably structured by experts including law firms and not by the borrowers themselves. To require the borrower in such circumstances to explain or unravel the same himself may, in our view undo the very purpose of giving an opportunity of being heard and infringe the fairness‟ of the process. (H) Supreme Court, in Kulja Industries Limited Vs. Chief General Manager W.T. Project BSNL AIR 2014 SC 9, in the context of blacklisting has held: (i) that though a freedom to contract or .....

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of blacklisting made pursuant thereto; (iv) reasonableness, fairness and proportionality of the order to the gravity of the offence is examinable by a writ Court; (v) that though the right of the petitioner is in the nature of a contractual right but the manner, method and motive behind the decision of the authority whether or not to enter into a contract is subject to judicial review on the touchstone of fairness, relevance, natural justice, non-discrimination, equality and proportionality. (I) .....

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from all Banks / FIs by though giving a hearing but without the element of fairness therein. (J) Supreme Court in Smt. Kavita Vs. State of Maharashtra (1981) 3 SCC 558 reiterated in Nand Lal Bajaj Vs. State of Punjab (1981) 4 SCC 327 emphasized that adequate legal assistance is essential for the protection of Fundamental Rights guaranteed by the Constitution and valuable rights may be jeopardised and reduced to mere nothing without adequate legal assistance in the light of the intricacies of th .....

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ented by an agent of choice may amount to denial of natural justice and that ordinarily it is considered desirable not to restrict this right of representation by counsel or an agent of one‟s choice. Though a restriction by law can be imposed. (L) We had during the hearing wondered whether not depriving the borrower the right of legal representation may also result in discrimination in proceedings before GRC vis-a-vis different borrowers. (M) We had in this context enquired from the counse .....

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oard of the borrower company and / or as an employee of such a company would be entitled to so represent the borrower before the GRC, not permitting an advocate as a professional to so represent the borrower who has no advocate on its Board or in its employment would cause discrimination. (N) The present times are times of specialization and outsourcing. Though in olden times large business houses / companies (and it is generally they who are likely to be declared as wilful defaulters) were know .....

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h instead of maintaining its own legal department relies on external professionals therefor would in our opinion amount to discrimination not based on any reasonable criteria and not having any rationale nexus to the object sought to be achieved. (O) The way in which businesses are conducted and transacted today has also undergone a drastic change. Today, we have companies who are marketing and selling goods worth crores of rupees but who are not manufacturers of such goods and may not themselve .....

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Disputes Act, 1947, practicing advocates have continue to appear before the Labour / Industrial Court save for the fact that they appear not as advocates wearing black coats and robes but as agents of the employer. This Court cannot shut its eyes to the reality of life and we are of the view that the law may rather be in consonance with the practice than such which is practiced in breach. (Q) That takes us to Section 30 of the Advocates Act supra conferring in the advocates a right to practice. .....

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Section 30 of the Advocates Act held that the right to practice is not only a statutory right but would also be a fundamental right under Article 19(1)(g) of the Constitution. (S) Supreme Court in Dr. D.C. Saxena, Contemnor Vs. Hon'ble the Chief Justice of India (1996) 5 SCC 216 held that advocacy touches and asserts the primary value of freedom of expression so dear in a democracy. It was further held that freedom of expression produces the benefit of the truth to emerge and assists stabil .....

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to be considered is whether the GRC qualifies as a Tribunal or a person legally authorized to take evidence within the meaning of Clause (ii) of Section 30. (V) We have in this context wondered whether the words legally authorized to take evidence qualify both Tribunal as well as person preceding the same but separated by the word or . (W) Supreme Court recently in Star Industries Vs. Commissioner of Customs (Imports) MANU/SC/1150/2015 quoted with approval Justice G.P. Singh‟s Statutory In .....

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d Tribunal . (X) Though the counsel for the respondents, from Clause 3(ii) of the Master Circular requiring the decision taken on classification as a wilful defaulter to be well documented and supported by requisite evidence contended that the GRC is authorized to take evidence but we find the words legally authorized to take evidence‟ meaning, authorized to compel presence of any person as a witness and which we do not find the GRC to be authorized to. It thus cannot be said that the GRC .....

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conferring in the Supreme Court the power to grant special leave to appeal, provides for a special leave to appeal from any judgment, decree, determination, sentence or order passed by any Court or Tribunal. (BB) Supreme Court in The Engineering Mazdoor Sabha Representing Workmen Employed Under the Hind Cycles Ltd. Vs. The Hind Cycles Ltd., Bombay AIR 1963 SC 874, in the context of Article 136 held that while the expression Court in the technical sense is a Tribunal constituted by the State as a .....

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e clothed with some of the powers of the Courts, inter alia their decisions must be consistent with the general principles of law i.e. they must be acting judicially and reach their decisions in an objective manner and cannot proceed purely administratively or base their conclusions on subjective tests or inclinations. A Tribunal within the meaning of Article 136 was held to include within its ambit all adjudicating bodies provided they are constituted by the State and are invested with judicial .....

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e or executive functions, it was explained that duty to act judicially upon an authority does not necessarily clothe the authority with the judicial power of the State as even administrative or executive authorities are required to act judicially in dealing with questions affecting the rights of citizens. It was further explained that in deciding whether an authority required to act judicially would be regarded as a Tribunal or not the principle incident is the investiture of a trappings of a Co .....

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ity other than a Court may be vested by a statute with judicial power in widely different circumstances and the proper thing is to examine and ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial power of the State. Any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them was held to satisfy the test of an authority vested with .....

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acting under section 10-A of the Industrial Disputes Act, 1947 would not satisfy the test of a Tribunal but a State Government deciding an appeal under the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952 vested with the powers to confirm the punishment or set it aside and pass consequential orders and determine the civil rights of the parties with regard to matters in controversy between them would be a Tribunal. (EE) Supreme Court in Mrs. Sarojini Ramaswami Vs. Union .....

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and does not exclude Arbitrator. (GG) Seen in this conspectus, the GRC has been constituted by the Master Circular. Such Circulars of the Reserve Bank of India (RBI) have in, ICICI Bank Ltd. Vs. Official Liquidator of APS Star Industries Ltd. (2010) 10 SCC 1 and in Peerless General Finance & Investment Co. Limited Vs. Reserve Bank of India (1992) 2 SCC 343 been held to have a statutory character and force of law. The GRC thus satisfies the test aforesaid of having been constituted by the Sta .....

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the Master Circular so provide but we have already noted above the dicta of the Supreme Court in Kulja Industries Limited supra holding that the hearing in this regard has to satisfy the requirement of fairness. (II) Supreme Court in Anshuman Shukla supra was concerned with the Arbitral Tribunal constituted under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 to resolve the disputes and differences pertaining to works contract or arising out of or connected with execution, discharge o .....

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per law. (JJ) In All Party Hill Leaders' Conference, Shillong Vs. Captain W.A. Sangma (1977) 4 SCC 161, the Election Commission deciding the question of a symbol to the parties contesting the election was held to be a Tribunal. (KK) Recently in Columbia Sportswear Company Vs. Director of Income Tax, Bangalore (2012) 11 SCC 224 while holding the Authority for Advanced Rulings (Income Tax) constituted under the Income Tax Act, 1961 to be a Tribunal, it was reiterated that Tribunals are bodies .....

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d avail the services of an advocate. (NN) A Division Bench of the High Court of Punjab and Haryana in Paramjit Kumar Saroya Vs. Union of India MNU/PH/0765/2014, in the context of the provision in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 debarring representation through an advocate before the Tribunals constituted under the said Act, held that after the coming in to force of Section 30 of the Advocates Act, there cannot be an absolute bar to the assistance by legal pra .....

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ra (1985) 1 SCC 479 the challenge to the vires of Section 9A of the Maharashtra Restoration of Lands to Schedule Tribes Act, 1974 prohibiting advocates from appearing in proceedings under the Act on the ground of restricting the right to practice the provision was negatived only on the ground of Section 30 of the Advocates Act having not been brought into force and though it was observed such a right is no doubt conferred thereby. (QQ) It thus follows that the restriction placed by the GRC of th .....

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