9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (4) TMI 661 - HC - Benami PropertyQualifications for appointment of Chairperson and Members of Appellate Tribunal - Constitutional validity of Sections 9 and 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 - prayer is to declare Section 32(2)(a) of the Act of 1988 to be unconstitutional and to suitably amend the provision so as to make a person who had served as a Judge or the member of the Bar to be eligible to be appointed as Judicial Member of the Appellate Tribunal - HELD THAT - The principle laid down in the case of Union of India v. R.Gandhi, President, Madras Bar Association, 2010 (5) TMI 393 - SUPREME COURT has application to all the Tribunals and was not rendered on the fact situation alone. It is for that reason a specific direction was given that administrative support for all the Tribunals should be from the Ministry of Law and Justice. The principal issue decided qua the basic structure of constitution ensures the separation of powers and independence of the Judiciary from the clutches of the Executive. The matter was examined by the Division Bench of this court in the case of Shamnad Basheer v. Union of India and others 2015 (3) TMI 943 - MADRAS HIGH COURT and considering the issue that the proceedings before the Tribunal would be judicial in nature, the necessity for appointment of a member from the judiciary or the bar was realized. It was for the reason that prior to constitution of the Tribunal, the adjudication of the issue was by the courts. Therefore, with the constitution of the tribunals, they would be discharging the work earlier discharged by the courts and adopting the Westminister policy which prescribes the qualification akin to that of the judicial officer who has been dealing with such matters prior to the constitution of the tribunal. The necessity and importance of a judicial member and, that too, a person who served as a Judge or a member of the Bar was felt and, accordingly, the Division Bench of this Court held certain provisions of the Trademarks Act, 1999 and the Patents Act, 1970 to be unconstitutional. It is true that the extent of judicial review that can be exercised in a given case is quite limited. Though a constitutional court can declare a provision to be unconstitutional, it should not give any direction to the Legislature to make an amendment in a particular way. The judicial restraint is, therefore, being hailed as a virtue. However, in a case where a direction has been given by the Apex Court to have the judicial independence, it is required to be followed by the High Courts as well as the Executive. In view of the position aforesaid, we hold Section 32(2)(a) of the Act of 1988 to be unconstitutional.The respondent is directed to frame the provision keeping in mind the directions of the Apex Court in the case of Union of India v. R.Gandhi, President, Madras Bar Association 2010 (5) TMI 393 - SUPREME COURT . The amended provision may be brought in immediately.
Issues Involved:
1. Challenge to the constitutional validity of Section 9 of the Prohibition of Benami Property Transactions Act, 1988. 2. Challenge to the constitutional validity of Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988. Issue-wise Detailed Analysis: 1. Challenge to the Constitutional Validity of Section 9 of the Act of 1988: The petitioner initially challenged Section 9 of the Act of 1988. However, both the petitioner and the respondent acknowledged that this issue had become infructuous because Section 9 had been deleted from the Act. Therefore, the court did not need to address this issue further. 2. Challenge to the Constitutional Validity of Section 32(2)(a) of the Act of 1988: The primary issue for consideration was the constitutional validity of Section 32(2)(a) of the Act of 1988. This section outlines the qualifications for appointment as a Judicial Member of the Appellate Tribunal, specifically stating that a Member of the Indian Legal Service who has held the post of Additional Secretary or an equivalent post is eligible for appointment. The petitioner argued that this provision was unconstitutional based on the precedent set by the Supreme Court in the case of Union of India v. R. Gandhi, President, Madras Bar Association. The Supreme Court had held that the post of Judicial Member should be manned only by individuals who have served as judges or members of the Bar, not by members of the Indian Legal Service. The petitioner also referred to similar cases where provisions allowing members of the Indian Legal Service to be appointed as Judicial Members were declared unconstitutional. These included: - Shamnad Basheer v. Union of India and others: The Division Bench declared similar provisions in the Trademarks Act, 1999, and the Patents Act, 1970, unconstitutional. - Revenue Bar Association v. Union of India: The Division Bench held provisions in the Central Goods and Services Tax Act, 2017, unconstitutional for allowing Indian Legal Service members to be appointed as Judicial Members. The respondent contended that Section 32(2)(a) did not offend any constitutional provision and that the government was empowered to legislate on the subject matter. They argued that the mere reference to judgments of the High Court and the Supreme Court was insufficient to declare a provision unconstitutional. Upon considering the rival submissions and perusing the records, the court examined the principle of the separation of powers, as discussed in the case of Indira Nehru Gandhi v. Raj Narain. The court emphasized the importance of maintaining judicial independence and ensuring that the judicial system remains free from executive influence. The court referred to the Supreme Court's judgment in Union of India v. R. Gandhi, President, Madras Bar Association, which held that only judges and advocates could be considered for appointment as Judicial Members of tribunals. The Supreme Court had invalidated provisions allowing members of the Indian Legal Service to be appointed as Judicial Members, emphasizing the need for judicial independence. The court also cited the Division Bench's judgment in Shamnad Basheer v. Union of India and others, which highlighted the necessity of appointing individuals with judicial experience to tribunals, as they discharge functions previously handled by courts. Based on these precedents and the principle of judicial independence, the court held Section 32(2)(a) of the Act of 1988 to be unconstitutional. The court directed the respondent to amend the provision in line with the Supreme Court's directions in Union of India v. R. Gandhi, President, Madras Bar Association, ensuring that only individuals with judicial experience are eligible for appointment as Judicial Members. The writ petition was disposed of with the direction to amend the provision immediately, and there was no order as to costs.
|
