SUSHIL ARORA Vs. GOVERNEMENT OF NCT OF DELHI

JUDGEMENT

(1.) The petitioner has preferred the present writ petition to assail the Notification No. F.6(33)/2009-Judl./1125-1131 dtd. 15/9/2010 issued by the Lieutenant Governor of NCT of Delhi to the extent that it confers powers of Presiding Officer of the Designated Court and Special Court constituted, inter alia, under the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'Act') to each and every Officer of the Delhi Higher Judicial Service, to be exercisable by each of them with effect from the date of assumption of charge of the post of Presiding Officer or Judge of the Designated Court or Special Court, as the case may be, in pursuance of the transfer or posting orders made by the Chief Justice of the Delhi High Court. The Notification under challenged may be reproduced before proceeding further in the matter:

(2.) The submission of the learned counsel for the petitioner is that Sec. 3 of the Act empowers the Central Government or the State Government, by Notification in the Official Gazette, to "appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try " the offences, namely, any offences punishable under the Act and any conspiracy to or any attempt to commit or any abetment of any of the offences punishable under the Act. Sec. 3(2) states that a person shall not be qualified for appointment as a Special Judge under the said Act, unless he is or has been a Sessions Judge or an Additional Sessions Judge, or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973.

(3.) Mr. Chauhan submits that the impugned Notification seeks to confer the powers of Presiding Officer of the Designated Court/Special Court, on the Officer of the Delhi Higher Judicial Service from the date of assumption of the charge of the post of Presiding Officer, or Judge of the Designated Court or Special Court, in pursuance of the transfer or posting orders made by the Chief Justice of the Delhi High Court. He submits that there is no "appointment" made by the impugned Notification in terms of Sec. 3(1) of the Act. He submits that "conferment" of powers cannot be equated with "appointment" as a special judge under the Act. He further submits that the power is exercisable by the Central Government or the State Government by issuance of Notification in the Official Gazette. However, the purport of the impugned Notification is that it has been left to the Chief Justice of the Delhi High Court to confer the power of a Designated Court/Special Court, by resort to issuance of transfer or posting orders of the officers of the Delhi Higher Judicial Service. This, according to him, is excessive delegation of the statutory functions - which the Central Government or the State Government are obliged to discharge under Sec. 3(1) of the Act, upon the Chief Justice of the Delhi High Court, and is not permissible.