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Shamnad Basheer Versus Union Of India and Others

Qualification and selection of Chairman, Judicial Member and Technical Member of the Intellectual Property Appellate Board - Held that:- Supreme Court in Madras Bar Association Vs. Union of India (2014 (9) TMI 821 - SUPREME COURT), after taking note of the earlier decisions was pleased to hold that the role of a technical member is rather limited. Though the Legislature has got a power to appoint technical member, it has to decide its necessity first. Considering the nature of the Tribunal and t .....

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person as a technical member. However, the problem would possibly arise when a person sought to be appointed as a technical member merely because he works in the Legal Department of a State Government or Central Government or involved in the process of applications for registration filed under the Trade Marks Act or Geographical Indications Act or in teaching law in a recognised University or Institute.

The matter can be looked at a very different angle as well. Even an experienced l .....

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other words, when such an Officer cannot become a judge, he cannot also act in the said capacity. We only reiterate the reasoning assigned by the Supreme Court in this regard. Therefore, we have no hesitation in holding that Section 85(3)(a) is unconstitutional, particularly, in the light of the directions (i) and (ii) rendered in Union of India Vs. R.Gandhi, President, Madras Bar Association, (2007 (5) TMI 336 - SUPREME COURT OF INDIA).

In the light of the interpretation given by us .....

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e of India on the choice of selection to the post of Chairman should be given due weightage. Thus, we hold that the procedure adopted in seeking ''approval'' by the appointment committee of Cabinet is illegal. From the counter affidavit it is seen that the word ''consultation'' has been taken as recommendations of the Chief Justice of India. Therefore, we can infer that the recommendations are being made by the Chief Justice of India. Thus, we hold that the recomm .....

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d field has been treated as only a ''Technical Member" under Section 85(4)(b). The other submission made regarding the discrepancy under the patent Act as well as the Trade Marks Act qua the qualification also cannot be a ground to declare the provision as unconstitutional. Further, a Court of law will have to do the act of synchronising various enactments to avoid a possible conflict. - W.P.No.1256 of 2011 - Dated:- 10-3-2015 - Sanjay Kishan Kaul, CJ And M. M. Sundresh, JJ. For the Appe .....

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enshrined in the Constitution of India. 2. We have heard Mr.Aravind P.Datar, learned Senior Counsel appearing for the petitioner, Mr.G.Rajagopal, learned Additional Solicitor General assisted by Mr.A.S.Vijayaraghavan, Senior Central Government Standing Counsel for the 1st respondent and Mr.K.Rajasekaran, learned counsel appearing for the 2nd respondent and also perused the written submissions of either side. 3. As the issues that are germane to the writ petition have been substantially dealt wit .....

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ten one concurring with another giving separate reasons. The aggregate of it is deduced hereunder:- The Office of the Chairman for all practical purposes has to be equated with the office of the Chief Justice of High Court. Section 6(1)(c) was directed to be omitted which provides for the eligibility of a Secretary to Government to be appointed as a Chairman. Such an appointment to the post of Chairman will have to be made by a High Powered Committee with a sitting Judge of the Supreme Court to .....

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d be appropriate that a District Judge or an advocate, who is qualified to be a Judge of the High Court, should be regarded as eligible for being Vice-Chairman since the existing provisions having been tilted in favour of the members of the Services. 5. Union of India Vs. R.Gandhi, President, Madras Bar Association, ((2010) 11 SCC 1):- 5.1. In this case, a challenge was made to the constitutional validity of Chapters IB and 1C of the Companies Act, 1956 (inserted by Companies (Second Amendment) .....

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sic structure, which is one of the fulcrum of the Constitution of India. 5.2. The Independence of Judiciary was dealt with by the Supreme Court in the following paragraphs: ''46. Impartiality, independence, fairness and reasonableness in decision making are the hallmarks of Judiciary. If 'Impartiality' is the soul of Judiciary, 'Independence' is the life blood of Judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for Judges to do .....

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netary worries, freedom from influences and pressures within (from others in the Judiciary) and without (from the Executive). ..... 52. Independence of Judiciary has always been recognized as a part of the basic structure of the Constitution (See : Supreme Court Advocates-on-Record Association vs. Union of India - (1993 (4) SCC 441), State of Bihar vs. Bal Mukund Sah,((2000) (4) SCC 640), Kumar Padma Prasad vs. Union of India,((1992) (2) SCC 428) and All India Judges Association vs. Union of Ind .....

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55) 2 SCR 225), this Court explained the doctrine of separation of powers thus : (AIR p.556, para 12) "12. ..... The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially .....

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iate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised that "it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question than in the case of the superior Judges." Presu .....

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the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. So Article 50 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public services of the States. Simply stated, it means that there shall be a separate judicial service free from the executive control. (emphasis supplied) 55. In Indira Nehru Gandhi vs. Raj Narain,(1975 Supp SCC 1), this Court observe .....

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l power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior to the Constitution and also since the Constitution. It is not the intention that the powers of the Judiciary should be passed to or be shared by the Executive or the Legislature or that the powers of the Legislature or the Executive should pass to or be shared by the J .....

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of Government of Republic....... (SCC p.210, para 555) 688. ...... But no Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought to enter into problems entwined in the 'political thicket", Parliament must also respect the preserve of the court. The principle of separation of powers is a principle of restraint .... SCC p.260, para 688) 56. In L. Chandra Kumar Vs.Union of India, ((1997) 3 SCC 261), the seven-Judge Bench of this Court r .....

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equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence." (emphasis supplied) 57. The doctrine of separation of powers has also been always considered to be a part of the basic structure of the Constitution (See : Keshavananda Bharati vs. State of Kerala,((1973) 4 SCC 225), Indira Nehru Gandhi vs. Raj Narain, (1975 Supp SCC 1), State of Bihar .....

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person with expertise in the field of law, rather than a mere experience in civil service. A word of ''caution'' was sounded as an extrapolation qua the control of the Tribunal by the Executive by filling up the posts of technical members with its officers. It was also observed that the prescription of qualification/eligibility criteria by the Legislature is subject to judicial scrutiny. Accordingly, the provisions which paved the way for the appointment of technical member with .....

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t the necessary corrections to be brought forth. Some of them, which are apposite for our case, are placed below:- ''(i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only the High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practised as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held a Group A or equivalent post u .....

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ame position and status as High Court Judges. This can be achieved, not by giving the salary and perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in rank, experience or competence to High Court Judges are appointed as members. Therefore, only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical members of the National Company Law Tribunal. Clauses (c) and (d) of sub-section .....

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artments who might have incidentally dealt with some aspect of Company Law cannot be considered as 'experts' qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub-section (3) are not valid. (iv) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 15 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being .....

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or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10FX, the Selection Committee should broadly be on the following lines: (a) Chief Justice of India or his nominee - Chairperson (with a casting vote); (b) A senior Judge of the Supreme Court or Chief Justice of High Court - Member; (c) Secretary in the Ministry of Finance an .....

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eveals that the principles laid down therein have got application to all the Tribunals and it was not rendered on the fact situation alone. That is the reason why a specific direction was given that the administrative support for all Tribunals should be from the Ministry of Law and Justice. The principal issue decided qua the basic structure of the Constitution, ensures the separation of powers and independence of the Judiciary from the clutches of the Executive. 6. Madras Bar Association Vs. Un .....

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a to the basic structure of the Constitution of India. By a separate judgment, while concurring with the result qua the composition of the Tribunal it was held that the very creation itself as unconstitutional. 6.2. The Supreme Court in the said judgment once again dealt with in extenso the concept of independence of judiciary, basic structure and the power of judicial review and the earlier decision rendered in Union of India Vs. Madras Bar Association, ((2010) 11 SCC 1) was referred to with ap .....

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The following passage deals with the understanding of the Supreme Court of the earlier judgment of Union of India Vs. Madras Bar Association, ((2010) 11 SCC 1): ''107. In Union of India v. Madras Bar Assn., ((2010) 11 SCC 1), all the conclusions/propositions narrated above were reiterated and followed, whereupon the fundamental requirements which need to be kept in mind while transferring adjudicatory functions from courts to tribunals were further crystallised. It came to be unequivoca .....

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of matters, and not otherwise. Therefore, it was held that where the adjudicatory process transferred to tribunals did not involve any specialised skill, knowledge or expertise, a provision for appointment of technical members (in addition to, or in substitution of judicial members) would constitute a clear case of delusion and encroachment upon the independence of the judiciary and the ''rule of law''. The stature of the members, who would constitute the tribunal, would depend o .....

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nd commensurate stature of District Judges. The conditions of service of the members should be such that they are in a position to discharge their duties in an independent and impartial manner. The manner of their appointment and removal including their transfer, and tenure of their employment, should have adequate protection so as to be shorn of legislative and executive interference. The functioning of the tribunals, their infrastructure and responsibility of fulfilling their administrative re .....

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rsely affect the adjudicatory standards, whereupon it would be open to a court to interfere therewith. Such an exercise would naturally be a part of the checks and balances measures conferred by the Constitution on the judiciary to maintain the rule of ''separation of powers'' to prevent any encroachment by the legislature or the executive.'' 6.4. The Supreme Court once again reiterated the position that the proceedings before the Tribunal are judicial in nature and accor .....

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the learned counsel for the petitioners insofar as the first perspective is concerned. We find substance in the submission advanced at the hands of the learned counsel for the petitioners, but not exactly in the format suggested by the learned counsel. A closer examination of the judgments relied upon lead us to the conclusion, that in every new Constitution, which makes separate provisions for the legislature, the executive and the judiciary, it is taken as acknowledged/conceded that the basic .....

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ous/similar court/tribunal with a different name. However, by virtue of the constitutional convention while constituting the analogous court/tribunal it will have to be ensured that the appointment and security of tenure of Judges of that court would be the same as of the court sought to be substituted. This was the express conclusion drawn in Hinds v. R., (1977 AC 195 = (1976) 1 All ER 353 (PC)). In Hinds case, it was acknowledged that Parliament was not precluded from establishing a court unde .....

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by Peter W.Hogg, it was observed: if a province invested a tribunal with a jurisdiction of a kind, which ought to properly belong to a Superior, District or County Court, then that court/tribunal (created in its place), whatever is its official name, for constitutional purposes has to, while replacing a Superior, District or County Court, satisfy the requirements and standards of the substituted court. This would mean that the newly constituted court/tribunal will be deemed to be invalidly const .....

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the position expressed by this Court while dealing with the concepts of ''separation of powers'', the ''rule of law'' and ''judicial review''. In this behalf, reference may be made to the judgments in L.Chandra Kumar case, ((1997) 3 SCC 261), as also Union of India v. Madras Bar Association, ((2010) 11 SCC 1). Therein, this Court has recognised that transfer of jurisdiction is permissible but in effecting such transfer, the court to which the powe .....

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vested in superior courts cannot be transferred to coordinate courts/tribunals. The answer is, that such transfer is permissible. But whenever there is such transfer, all conventions/customs/practices of the court sought to be replaced have to be incorporated in the court/tribunal created. The newly created court/tribunal would have to be established in consonance with the salient characteristics and standards of the court which which is sought to be substituted.'' 6.5. The following are .....

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the Westminster model will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced are not incorporated in the court/tribunal sought to be created.'' 6.6. Thus, the Supreme Court was reemphasizing the protection of judiciary from the Executive qua the basic structure of the Constitution. Even in this case, the conclusions are general in nature, being applicable to all similar .....

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ation of powers between Executive and Judiciary. The basic structure as expounded by the Supreme Court right from Kesavananda Bharati's case ((1973) 4 SCC 225) is being violated. There is no statutory prescription for the selection process of members, Vice-Chairman and Chairman of IPAB. The procedure adopted for selection is contrary to the decision rendered in Union of India Vs. R.Gandhi, President, Madras Bar Association, ((2010) 11 SCC 1). What was sought to be avoided by the Supreme Cour .....

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er the Trade Marks Act and a Controller under Patent Act. In view of the same, a person with lesser number of years of service is likely to be appointed without adequate qualification. The consultative procedure under Section 85(6) of the Trade Marks Act is illusory, as the consultation with the Chief Justice of India for appointment of Chairman is made subject to the approval of the appointment Committee of the Cabinet. The entire administration of the IPAB is controlled by Government and not l .....

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en taken away and as such the decisions of the Supreme Court do not have any application. Even on the principle of law, the earlier decisions of the Supreme Court do not have any application. Specific qualifications have been prescribed for the Registrars. They hold Law Degrees apart from other requisite qualifications. Therefore, it cannot be said that they cannot be allowed to function either as Technical members, Vice-Chairman and thereafter as Chairman. There is a specific procedure adopted .....

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in a given case. While a Constitutional Court can declare a provision as unconstitutional, it should stop short of giving any direction to legislature to make an enactment in a particular way. Judicial restraint is being hailed as a virtue. However, we are dealing with a situation where directions have already been issued by the Supreme Court of India while dealing with the functioning of tribunals qua judicial independence and basic structure. The directions, in our considered view, are not rec .....

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stood on that day a fortiori would be applicable to all other cases as well. We are also of the view that a Court of law has to strive to bring forth a statutory harmony. The process might require at times a judicial craftsmanship to alleviate the possible difficulties. Thus, we approach this case with the above premise. 9.2. At this juncture, we may point out that during the course of hearing, we made a suggestion to the learned Additional Solicitor General to inform the 1st respondent to have .....

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meant for appointments to the Board. A Search-cum-Selection Committee has been constituted based on the guidelines of the Government as contained in the Department of Personnel and Training. The Search-cum-Selection Committee constituted recently comprises - (1) Secretary - Department of Industrial Policy and Promotion - Chairman (2) Chairman, Intellectual Property Appellate Board - Member (3) Secretary - Department of Legal Affairs - Member (4) Director General, Council for Scientific and Indus .....

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, the then Chairman of IPAB raised an issue about the role assigned in the selection process. However, it was decided to stick on to the very same procedure notwithstanding the decision rendered in Union of India Vs. R.Gandhi, President, Madras Bar Association, ((2011) 10 SCC 1) with a justification that it does not have any bearing on the present case. Resultantly the selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a dire .....

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olate through another. The need to protect the independence of judiciary has been dealt with and decided in all the decisions referred supra. It has been consistently held that the judiciary should have a substantial role in the selection. It was also held that the process of appointment should substantially be that of members of judiciary. We also note that under the Constitutional Scheme for the State Subordinate Judiciary, it is the High Court, which has got the primacy along with its adminis .....

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on committee required to be approved by the appointment Committee of the Cabinet for the post of Vice-Chairman and other members, we hold that the said methodology is also totally unconstitutional as it impinges upon the independence of the judiciary. Therefore, such an yardstick prescribed is also struck down in the light of the decisions of the Supreme Court referred supra. This exercise is done to alleviate the concern and to see that the independence of the judiciary is not destroyed by an i .....

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rusted to the 1st respondent. However, in the light of the principles deduced from the judgments of the Supreme Court referred supra, we may state with conviction that such a composition should exhibit the leading role of the judiciary. Thus, we feel that the 1st respondent may consider inclusion of judges from the higher judiciary signalling its greater participation, rather than filling the Committee from the Executive. Section 2(k) of the Trade Marks Act, 1999:- 9.7. Section 2(k) of the Trade .....

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99:- 9.8. Chapter XI of the Trade Marks Act, 1999 deals with the Appellate Board qua the establishment, composition, qualifications for appointment, term of office, functioning, salaries, etc., 9.9. Section 85 deals with the qualifications for appointment as Chairman, Vice-Chairman or other Members. Now, we are dealing with the constitutionality of this provision. For better appreciation, the said provision is reproduced hereunder: ''(1) A person shall not be qualified for appointment as .....

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d for appointment as a Judicial Member, unless he- (a) has been a member of the Indian Legal Service and has held the post in Grade I of that Service for at least three years; or (b) has, for at least ten years, held a civil judicial office. (4) A person shall not be qualified for appointment as a Technical Member, unless he- (a) has, for at least ten years, exercised functions of a tribunal under this Act or under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or both, and has held a p .....

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in Madras Bar Association Vs. Union of India ((2014) 10 SCC 1), after taking note of the earlier decisions was pleased to hold that the role of a technical member is rather limited. Though the Legislature has got a power to appoint technical member, it has to decide its necessity first. Considering the nature of the Tribunal and the steps that are being dealt with, we do not find any error in the provisions, which require appointment of a technical member. 9.11. The qualification for the post o .....

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r Masters Degree in Law of a recognised University with ten years' experience in teaching law or in conducting research in law in a recognised University or Research Institution.'' 9.12. In the present case, a technical member takes part on equal terms along with a judicial member in the decision making process. The qualification is also prescribed as 12 years of practice at the bar or 12 years experience in a State Judicial Service with a Degree in Law. With the above said qualifica .....

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milarly, a Masters Degree in Law of a recognised University with ten years' experience in teaching law that may be a qualification for appointment of a Registrar cannot be termed as a qualification requisite for appointment of a technical member. The Scheme of the Act also provides for the appointment of a technical member as a Vice Chairman and then as Chairman. Therefore such persons cannot be made eligible. We are fortified in our views by the judgment rendered in R.K.Jain Vs. Union of In .....

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and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion .....

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said post of Joint Registrar with 12 years of practice in a State Judicial Service and not otherwise. The said reasoning has been arrived at in order to create a statutory harmony between the various provisions contained in Section 85. We believe by re-defining the qualification there may not be any difficulty for such a technical member with the qualification of a practising lawyer to be considered for a post of Vice-Chairman and then Chairman, being on par with the judicial member. As suggesti .....

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, 1999 will have to be read down to make eligible only those who held a post not lower than the post of Joint Registrar with the qualification of practice at bar or experience in the State Judicial Service as desired in the Notification dated 17.2.2011 issued by the Ministry of Commerce and Industry. Insofar as Section 85(4)(b) is concerned, there is neither challenge nor there can be any grievance. Therefore, we are not willing to go into the same. Judicial Member:- 9.14. The concern expressed .....

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, being different, such a person cannot be asked to exercise the function particularly as a Judicial Member without any experience. The matter can be looked at a very different angle as well. Even an experienced lawyer with specialised knowledge and expertise is treated only as a technical member under Section 85(4)(b). If that is the case, merely because someone holds the post in a Government Department he cannot be bestowed with the eligibility of being appointed as a Judicial Member sans expe .....

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ht of the directions (i) and (ii) rendered in Union of India Vs. R.Gandhi, President, Madras Bar Association, ((2011) 10 SCC 1). Insofar as Section 85(3)(b) is concerned, there is neither any challenge nor do we find any unconstitutionality in it. Vice-Chairman:- 9.15. Sub-section 85(2)(b) provides for the qualification for appointment as a Vice-Chairman qua a member of Indian Legal Service, who held a post of Grade I of that service or any higher post for at least for five years. The reasons as .....

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office of judicial Member or technical member. The definition of ''judicial member'' includes ''Chairman and Vice-Chairman'' as a deeming provision by which a Chairman and Vice Chairman as the case may be, will have to be construed as judicial member for the purpose of discharging functions in the said capacity. Perhaps, this definition has been introduced to get over clause (xiii) of the decision of Union of India Vs. R.Gandhi, President, Madras Bar Association, .....

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er. Chairman:- 9.17. Section 85(1) speaks about the qualifications for appointment of a Chairman. No difficulty is expressed by any one qua Sub-section (1)(a) of Section 85. The challenge is only in respect of Clause (1)(b) of section 85. It is the main contention of the petitioner that a Vice-Chairman, without being a Judicial Member and without having sufficient legal training and experience as a lawyer would become a Chairman. By the yardstick adopted by us with respect to the qualification q .....

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y subjecting it to the approval of the appointment Committee of the Cabinet. Again, at the cost of repetition, we reiterate that the principle, as we understand in the decision rendered in R.Gandhi's case, would govern this issue as well. The word ''consultation'' has got a different connotation on different fact situations. If we are to interpret the same on the touchstone of separation of powers, judicial independence and basic structure, then the only irresistible conclusi .....

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us, there is no material on the procedure governing the appointment of Chairman. Therefore, we are not in a position to go into its correctness. However, we have no hesitation in holding that the view of the Chief Justice of India on the choice of selection to the post of Chairman should be given due weightage. Thus, we hold that the procedure adopted in seeking ''approval'' by the appointment committee of Cabinet is illegal. From the counter affidavit it is seen that the word &# .....

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ission that the Tribunal, being a creature of a statute, the decisions rendered therein are not applicable to the present case. A further submission has been made that as the power of judicial review is in tact under Articles 226 and 227 of the Constitution of India, the situation as that was prevalent in the decision rendered in (2014) 10 SCC 1 is not present in this case. The submissions made do not appeal to us. The determination before the IPAB is a judicial one. The IPAB is exercising judic .....

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227 is not normally supposed to go into the inter se factual disputes between the parties, as the power of judicial review is required to be exercised only on the decision making process. Viewing from that angle, a decision of IPAB on the factual dispute acquires more significance. Therefore, the contentions raised are hereby rejected. 9.21. The IPAB plays a pivotal role in resolving the commercial disputes. A good adjudicatory process is a sine qua non for the development of the Society, more .....

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ic interest also, the IPAB has got an eminent role to perform. 9.22. The learned Senior Counsel for the petitioner submitted that lawyers with experience and knowledge ought to be included as Judicial Members. We are afraid that we cannot take the role of the Legislature. Incidentally, we may also note that even a lawyer with experience in the specialised field has been treated as only a ''Technical Member" under Section 85(4)(b). The other submission made regarding the discrepancy .....

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