The central legal point established in the judgment is the importance of appointing a Judicial Member from the judiciary or the bar to maintain the independence of the judicial system.

JUDGMENT

(Prayer: Petition filed under Article 226 of the Constitution of India praying for a Writ of Declaration to declare Section 9 of the Prohibition of Benami Property Transactions Act, 1988 (Act 45 of 1988, as amended by the Benami Transactions (Prohibition) Amendment Act, 2016) pertaining to qualification of appointment of Judicial Member and Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 (Act 45 of 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016) as unconstitutional as it runs counter to the doctrine of Separation of Powers, which is the basic structure and in violation of Article 14 of the Constitution of India.

Munishwar Nath Bhandari, J.

1. This writ petition challenges Sections 9 and 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 [for brevity, "the Act of 1988"], as amended by the Benami Transactions (Prohibition) Amendment Act, 2016.

2. The petitioner, appearing in person, and learned counsel for the respondent submit that so far as the challenge to the constitutional validity of Section 9 of the Act of 1988 is concerned, the writ petition has become infructuous, as Section 9 of the Act of 1988 has been deleted.

3. In view of the above, the issue that now remains to be considered is the constitutional validity of Section 32(2)(a) of the Act of 1988.

4. The petitioner, appearing in person, submitted that the qualification for appointment as a Judicial Member of the Appellate Tribunal given under Section 32 of the Act of 1988 is now hit by the judgment of the Apex Court in the case of Union of India v. R.Gandhi, President, Madras Bar Association, (2010) 11 SCC 1. It is precisely for the reason that for the post of Judicial Member of the Appellate Tribunal, under the Act of 1988, a Member of Indian Legal Service who has held the post of Additional Secretary or equivalent post has been made eligible, while as per the judgment of the Apex Court cited supra, the post of Judicial Member should be manned only by a person who served as a Judge or a member of the Bar and not by a member of Indian Legal Service. In view of the above, the provision of Section 32(2)(a) of the Act of 1988 is hit by the said judgment and, thus, challenge to it has been made.

5. Referring to a judgment of the Division Bench on the same issue in Shamnad Basheer v. Union of India and others, 2015 2 LW 941, the prayer is reiterated because therein a similar challenge was made to Section 85 of the Trademarks Act, 1999, besides Section 116 of the Patents Act, 1970. Section 85 of the Trademarks Act was containing a similar provision for appointment of the Judicial Member as stipulated under Section 32(2)(a) of the Act of 1988. The provisions therein, i.e., Sections 85(2)(b) and 85(3)(a) of the Trademarks Act, 1999, were declared to be unconstitutional as those provisions made a member of the Indian Legal Service eligible for appointment for the post of Chairperson or Judicial Member of the Intellectual Property Appellate Board.

6. A further reference of another judgment of the Division Bench of this court in the case of Revenue Bar Association v. Union of India, 2019 4 LW 689, has been given. Therein, the challenge was to Sections 109 and 110 of the Central Goods and Service Tax Act, 2017. It was regarding the constitution of the Appellate Tribunal and qualification and appointment of the members. The provision making a member of Indian Legal Service eligible to be appointed as Judicial Member in the Goods and Services Tax Appellate Tribunal was held to be unconstitutional.

7. Accordingly, the 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.

8. The writ petition was seriously contested by the side opposite. It is submitted by learned for the respondent that the membe