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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.
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